Operative OMBUDSMAN is real IMUNITARY SISTEM in the international world of the rule of law

septembrie 18, 2024

JUS * LEX * GOOD FAITH *

Draft Law
Romanian Supervisory Authority of Enforcement of Laws, Human Rights and Freedoms

Bucharest March 8, 2020
Advocate for Rights and Freedoms
ADL / A.R.S.A.L.D.L.O
Bucharest, str. Izvor no. 2-4, Sector 5
Lawyer ION GABRIEL ANGHELUS tel +40721736034

A.D.L.

PROJECT Law on the establishment of the Romanian Authority for the Supervision of the Application of Laws, Human Rights and Freedoms and the institution of the Advocate for Rights and Freedoms

Chapter 1 Establishment of the Romanian Authority for the Supervision of the Application of Laws, Human Rights and Freedoms EN – ASALHRF- in RO- (A.R.S.A.L.D.L.O) and the institution of the Lawyer of Rights and Freedoms EN LRF- in RO- (A.D.L.)
Art. 1 (1) The Romanian Authority for the Supervision of the Application of Laws, Human Rights and Freedoms is established, with its headquarters in Bucharest, Sector 5, Parliament Palace, 2-4 Izvor Street, as a public operative authority for surveillance, investigation, independent from the People’s Advocate, an authority subordinated to operative structures, similar to the 15 territorial offices of the People’s Advocate. The Romanian Authority for the Supervision of the Application of Laws, Human Rights and Freedoms, hereinafter referred to as ARSALDLO, is a specialized and independent structure, with legal personality, which takes over part of the operative activity of investigation and settlement of petitions, which was previously exercised by the technical apparatus of the People’s Advocate.
(2) The Romanian Authority for the Supervision of the Application of Laws, Human Rights and Freedoms is the public and autonomous authority of control and sanctioning in contravention matters, with clear objectives and competences of supervision and control in the distinct matter of respecting the laws, rights and fundamental human freedoms in Romania, enshrined in the Constitution, in the Treaties, Acts and International Covenants to which Romania is a party, being a multi-person ombudsman structure.
(3) A.R.S.A.L.D.L.O. represents the sovereign interests of the citizens. and it is fully competent to investigate and take all legal measures to restore order and legality.
(4) A.R.S.A.L.D.L.O. The Ombudsman exercises his duties through ombudsman-type civil servants – (legally appointed Advocates of Rights and Freedoms) (ADL). sanctioning (RECS).
(5) A.R.S.A.L.D.L.O. defends the rights and freedoms of citizens in relation to the principle of exercising them in good faith, as regulated by art. 57 of the Romanian Constitution and has the absolute material, territorial, general and functional competence of direct supervision and control and, in this sense,
JUS * LEX * GOOD FAITH * Draft Law <<< under construction>>>
Romanian Supervisory Authority of
Enforcement of Laws, Human Rights and Freedoms Bucharest March 8, 2022
Advocate for Rights and Freedoms
ADL / A.R.S.A.L.D.L.O
Bucharest, str. Izvor no. 2-4, Sector 5
Lawyer ION GABRIEL ANGHELUS
tel 0721736034
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investigates the facts and attracts, as the case may be, the legal liability of individuals and legal entities following legal notifications.
(6) The legal purposes of the A.R.S.A.L.D.L.O. are
1.operative supervision of the functioning and application of national laws on human rights and freedoms, by the use of procedural instruments and by the objective examination of all legal phenomena of circumvention or violation of central or local public administration;
a) the investigation and application of sanctions, including the disposition of technical remedial recommendations by the offenders, as the case may be, the finding of fluid and efficient solutions for the development of legal relations between the authorities and citizens;
b) making all public authorities responsible for the awareness that they are exclusively in the service of the citizen;
c) preventing and sanctioning bureaucratic abuses, blockages due to maladministration in the effective application of laws in all areas that affect human rights and freedoms;
(7) The Government and the General Council of the Municipality of Bucharest make available to the institution A.R.S.A.L.D.L.O. the headquarters and the parking space chosen as an economical and reasonable use in the Palace of the Parliament of Bucharest, str. Izvor nr 2-4 Sector 5.
Art. 2 For the purposes of this law, the terms and expressions below have the following meanings:
Expertise, finding and sanctioning reports (RECS). – the legally substantiated control and sanctioning document, which is based on a specialized legal and scientific expertise, which is carried out by the A.R.S.A.L.D.L.O. by A.D.L. in case of notification and finding of committing contraventions or violation of the laws on human rights and freedoms;
The Lawyer of Rights and Freedoms – (A.D.L) .- the civil servant who fulfills the activities of the file of the position of operative ombudsman, of investigation and control and sanctioning in the activity of vigilance on the observance of the application of laws, human rights and freedoms
The contentious-contraventional legal relationship – the procedure specific to the operative activities of ARSALDLO, which has a legal and factual connection with any administrative-contraventional procedural act, regarding human rights and freedoms, as well as with all special measures and procedures related to legal, thematic activities. exercised by ARSALDLO through its officials A.D.L
Chapter 2 Establishment of the Public Service of Operational Ombudsman – Advocate for Rights and Freedoms (ADL)
Art. 3 (1) The public position of Advocate for Rights and Freedoms – ADL – is established as a legal institution of ombudsman type, civil servant with all the rights, obligations and attributions of operative ombudsman, exercised exclusively within the ARSALDLO structure, by the Lawyer The people. In the practice of this newly created profession, clear distinctions are made regarding the obligations, responsibilities and duties and incompatibilities with the liberal legal profession, regulated by the Lawyer Statute and Law no. 51/1995 for the organization and exercise of the legal profession, as well as the
JUS * LEX * GOOD FAITH * Draft Law <<< under construction>>>
Romanian Supervisory Authority of
Enforcement of Laws, Human Rights and Freedoms Bucharest March 8, 2022
Advocate for Rights and Freedoms
ADL / A.R.S.A.L.D.L.O
Bucharest, str. Izvor no. 2-4, Sector 5
Lawyer ION GABRIEL ANGHELUS
tel 0721736034
3
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ombudsman, which is regulated by Law no. 35/1997 on the organization and functioning of the ombudsman institution.
(2) The activities carried out by lawyers for rights and freedoms (ADL) constitute acts of public control authority central to other authorities and persons of public and private law, in matters of supervision of the application of laws, human rights and freedoms, authorities and persons under public law and private individuals who are required to respond to the ADL’s reasoned request and A.R.S.A.L.D.L.O. and in case of contravention, administrative, If there are powers of other authorities ADL declines and notifies the cases for those concerned to be disciplined or criminally liable, according to the facts, guilt and damage of unjustified violation of applicable law.
(3) The A.D.L. they have the right to request and receive under the law any kind of information, data, documents, relations from public authorities / institutions or private entities, including from citizens, in order to carry out efficient research in the notified cases. The persons, who have the quality of parties in the cases, are obliged to actively participate and to give their full support in order to complete the activity of administering the evidence, on which the RECS is based. In case the RECS remains final or the court decision on the merits or appeal, the parties are obliged to comply with the final solutions that have become enforceable titles.
(4) A.R.S.A.L.D.L.O. orders the performance, as the case may be, of distinct expertises, specialized in order to clarify the technical or specialized aspects, whenever they are necessary under the sanction of the warning or the fine provided in the law in case of non-compliance with the obligations from par. (3).
(5) Expertise, finding and sanctioning reports (RECS). remain final, are binding on all persons, authorities / public institutions concerned.
(6) In all cases where A.D.L. have ordered the application of measures in the RECS, the offenders are liable either through the RECS or if it is within the competence of the other competent public authorities / institutions, in case of liability, civil or criminal and, as the case may be, to repair the damages, remove the causes generated or favored the violation of the rights of the injured persons.
(7) Persons, public or private entities dissatisfied with the measures ordered by the RECS have the right to challenge in court the sanctioning report issued by the lawyers of rights and freedoms A.D.L. within the A.R.S.A.L.D.L.O.
(8) By this Act A.R.S.A.L.D.L.O. the special structures of contravention contentious are recognized, the attributions of investigation and expertise of the specific cases that are notified to it. The authority also has the attributions of expressly issuing some recommendations, measures, in order to remedy the legal situations of violation of the laws in contravention.
(9) The courts through the specialized panels designated in the judicial control of RECS, issued by ADL within the A.R.S.A.L.D.L.O generate jurisprudence and legal doctrine regarding the observance of fundamental rights and freedoms at national level. The jurisprudence of the national courts in contravention of rights and freedoms is a source of law for the A.R.S.A.L.D.L.O and for the courts specialized in the matter of contravention.
(10) Any non-fulfillment of the obligations from the “job description”, established by laws in charge of the public authorities / institutions towards the injured Romanian citizens are and remain fully in the
JUS * LEX * GOOD FAITH * Draft Law <<< under construction>>>
Romanian Supervisory Authority of
Enforcement of Laws, Human Rights and Freedoms Bucharest March 8, 2022
Advocate for Rights and Freedoms
ADL / A.R.S.A.L.D.L.O
Bucharest, str. Izvor no. 2-4, Sector 5
Lawyer ION GABRIEL ANGHELUS
tel 0721736034
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legal and moral responsibility of the investigated authorities and officials, who according to the degree of guilt minor, medium or major causes, have all the responsibility and obligation to repair the damage caused.
(11) Reparation of damages and measures ordered by the R.E.C.S. by the Advocate for Rights and Freedoms, A.D.L. they are de jure based on the principle of law according to which where the violation of the law begins / the exceeding of the legal attributions of the administrative authorities, the protection of the law granted to the guilty official ceases by law, and according to the facts and the damage committed
Chapter 3 Organization and functioning of the Romanian Authority for the Supervision of the Application of Laws, Human Rights and Freedoms
The structure of the A.R.S.A.L.D.L.O.
Art. 4 (1) The Romanian Authority for the Supervision of the Application of Laws, Human Rights and Freedoms is headed by a President, two Vice-Presidents and an Executive Director of the Board of Directors who are elected by a majority of votes and who also appoints the President A.R.S.A.L.D.L.O. who holds the position of Minister of State, and the two Vice Presidents have the rank of State Secretaries so that the entire management structure is chosen on the basis of exclusive criteria of merit, competence and the elaboration of professional projects in the efficient management and organization of A.R.S.A.L.D.L.O.
The executive director is elected by the General Assembly of the ADL through democratic elections.
(2) The Romanian Authority for the Supervision of the Application of Laws, Human Rights and Freedoms is the main authorizing officer and has its own budget which is an integral part of the state budget.
(3) The draft budget of the authority shall be approved by the management of the A.R.S.A.L.D.L.O. and is submitted to the Government for the draft state budget subject to legislation. The objections of the President of the A.R.S.A.L.D.L.O. regarding the financing of the authority through the draft budget of the Government is presented to the two requests of the Romanian Parliament for settlement.
(4) The RECS remaining final, unattacked within 30 days from the communication, becomes an enforceable title, without any other formality, and the execution of the contravention sanctions is done by the Enforcement Directorate A.R.S.A.L.D.L.O. as the own apparatus of the authority, and the amounts are paid to the state budgets and distributed according to the presence of the law in percentage quotas established annually, in the draft ARS budget, in three directions:

Transfers to the General Consolidated State Budget Account;
Transfers to the Self-financing Account for self-financing A.R.S.A.L.D.L.O. in order to ensure the necessary logistics and the proper functioning of the authority;
Transfers to the Sponsorship Account of NGOs of public interest based on the observance of the public procedure at the headquarters of the A.R.S.A.L.D.L.O. in which the winners of grant grants in the field of invention and innovation and in the field of social assistance are designated.
JUS * LEX * GOOD FAITH * Draft Law <<< under construction>>>
Romanian Supervisory Authority of
Enforcement of Laws, Human Rights and Freedoms Bucharest March 8, 2022
Advocate for Rights and Freedoms
ADL / A.R.S.A.L.D.L.O
Bucharest, str. Izvor no. 2-4, Sector 5
Lawyer ION GABRIEL ANGHELUS
tel 0721736034
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(5) The assets necessary for the establishment of the A.R.S.A.L.D.L.O. respectively: real estate, means of transport, technical equipment, IT equipment, as well as other necessary material means are provided by the Romanian Government by issuing a government decision within 90 days from the entry into force of this law. After the proper endowment of the A.R.S.A.L.D.L.O. all procurements are made in accordance with the legal provisions on public procurement.
(6) A.R.S.A.L.D.L.O. may rent, lease or receive in administration, in accordance with the law, in order to carry out its own activity, movable and immovable property, public or private property,
(7) A.R.S.A.L.D.L.O. according to the law, it also has its own revenues for the self-financing of logistics investments and the structure for the good organization and adaptation of the operative structures, depending on the volume of the activities carried out.
Art. 5 (1) The status of the lawyer of rights and freedoms, the attributions and the role of the General Assembly of the ADL, the attributions and the role of the Board of Directors, as well as the attributions of the governing bodies of the A.R.S.A.L.D.L.O. are established by Organization and Functioning Regulations.
(2) Organization chart and list of functions of the central authority A.R.S.A.L.D.L.O. and of the 15 territorial offices shall be adopted by the Board of Directors and approved by the Government of Romania.
Art. 6 Control of the activity of the A.R.S.A.L.D.L.O. it is the exclusive competence of the People’s Advocate, to whom the authority has the obligation to present an annual activity report.
Chapter 4 The organization and staff of the A.R.S.A.L.D.L.O.
Article 7 (1). The Operational Council (OC) is composed of management and enforcement operational staff, organized into operational teams consisting of specialized officials appointed lawyers of law and liberties. The lawyer of rights and freedoms is the civil servant who performs the activities of the job description of the operative ombudsman, of investigation, control and supervision of the observance of the laws of fundamental rights and freedoms. This professional category with special civil status enters the profession through a competition, organized at national level, at the headquarters of the Authority, based on a pre-selection made on the basis of professional competence and probity criteria.
(2) The Scientific Council (SC) is composed of the most valuable academics, scientists, professors, experts, specialized in scientific and technical fields. The Scientific Council is divided into two groups:
A. – The body of associated and honorary experts, composed of established scientists, who prepare scientific studies and general academic reports on the evolution of socio-economic phenomena in the field of respect for the laws of the rights and freedoms of citizens and in the field of good governance in a rule of law , which issues legally and scientifically justified recommendations, brought to the attention of the Operational Council.
B. – The body of specialized experts who are listed in the table of technical experts A.R.S.A.L.D.L.O. are those who present perform the necessary expertises to the Operative Council at the level of the case, in case of request of the ADL, expertises that become annexes to the R.E.C.S .;
JUS * LEX * GOOD FAITH * Draft Law <<< under construction>>>
Romanian Supervisory Authority of
Enforcement of Laws, Human Rights and Freedoms Bucharest March 8, 2022
Advocate for Rights and Freedoms
ADL / A.R.S.A.L.D.L.O
Bucharest, str. Izvor no. 2-4, Sector 5
Lawyer ION GABRIEL ANGHELUS
tel 0721736034
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(3) The general conditions of employment of a public office or a contractual position within the A.R.S.A.L.D.L.O. are those provided by the provisions of art. 465 of the O.U.G. no. 57/2019 – Administrative Code, and the special and cumulative selection criteria for the national competition for a position of lawyer of rights and freedoms are: the minimum age of 35 years, to be graduates of undergraduate studies in law, doctors in law or with an equivalent diploma according to the provisions of art. 153 para. (2) of the National Education Law no. 1/2011, with subsequent amendments and completions, to have experience and evidence of judicial practice of at least 8 years of age, not to have a criminal record and to perform a psychological test prior to the competition.
(4) A.R.S.A.L.D.L.O. consists of: specialized operational staff, administrative and maintenance staff. The specialized operative staff includes: ADL- lawyers of rights and freedoms, who are selected from among the magistrates, lawyers, final legal advisers or notaries with full rights to exercise the profession, having at least 8 years of practical experience, clerks, experts , documentarians, system engineers, computer scientists, operators, analysts and other profile positions. Administrative staff hold positions in departments / offices in the following areas: logistics, accounting, legal, public procurement, IT, human resources, technical-administrative, information protection and communications, public relations, etc.
(5) The employment of the personnel from A.R.S.A.L.D.L.O. is carried out according to the applicable legislation in the matter.
(6) The attributions and competencies of the authority staff are established by the job description, according to the organizational structure, activity programs and service tasks elaborated by the Decision of the Board of Directors (HCD) and endorsed by the President of A.R.S.A.L.D.L.O.
(7) The promotion, sanctioning, dismissal of the staff of the A.R.S.A.L.D.L.O. is carried out in accordance with the relevant legal provisions.
(8) The continuous professional training of the specialized personnel within the authority is ensured by the specialized personnel within the Scientific Council A.R.S.A.L.D.L.O. by specialized personnel within the public / private higher education system or by specialists appointed by the authority, based on the decision of the Board of Directors of the A.R.S.A.L.D.L.O.
(9) A.R.S.A.L.D.L.O. holds all the rights and obligations established by the Internal Regulations and identifies itself with the badge in the case of ADL and with the service card in the case of the other professional categories working within the A.R.S.A.L.D.L.O. The model of the ADL service badge is the one provided in Annex no. 1 in the presence of the law.
(0) They are incompatible with the exercise of any function (public or contractual) within the Authority, unless special laws provide otherwise:
a) the deeds criminally convicted by a final sentence, except for the situation in which the rehabilitation, the post-conviction amnesty or the decriminalization of the deed took place;
a) the simultaneous exercise of salary activities in other fields or independent professions;
b) the quality of a delegated civil servant working in justice, respectively: judges, prosecutors and auxiliary staff;
JUS * LEX * GOOD FAITH * Draft Law <<< under construction>>>
Romanian Supervisory Authority of
Enforcement of Laws, Human Rights and Freedoms Bucharest March 8, 2022
Advocate for Rights and Freedoms
ADL / A.R.S.A.L.D.L.O
Bucharest, str. Izvor no. 2-4, Sector 5
Lawyer ION GABRIEL ANGHELUS
tel 0721736034
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d) the situation in which the person has been dismissed from a public position or his / her individual employment contract has been terminated for disciplinary reasons in the last 7 years,
e) the situation in which the person was an active worker or informant in the repressive security structures of the totalitarian state or was an activist of the Romanian Communist Party, or were and are active / undercover officers of the intelligence services or were people policies or administrative or governmental structures in the last 20 years and against them there is any reasonable evidence and evidence that they are guilty of any act contrary to fundamental human rights and freedoms.
Chapter 5 Rights and Obligations of A.R.S.A.L.D.L.O.
Art 8 (1) In carrying out the activity of supervision, control and expertise, lawyers of rights and freedoms, as civil servants, benefit from special legal protection of the state against any threats, interference and pressure of any kind from any person or authority / public institutions and are subject exclusively to the law and internal and hierarchical control within ARSALDLO
Advocates for rights and freedoms shall be accountable to the Internal Oversight and Discipline Commission. ADL officials may not be detained or prosecuted without the prior notice of the A.R.S.A.L.D.L.O. which is given following the notification and pronouncement of the Internal Control and Discipline Commission of the A.R.S.A.L.D.L.O.
(3) In case of bringing unjust accusations or simulating criminal investigations initiated for non-existent reasons, A.R.S.A.L.D.L.O. has the obligation to verify with its own means the attempts to commit the offenses of misleading the judicial bodies and to immediately notify the criminal bodies competent simultaneously with the commissions for the investigation of abuses within the Romanian Parliament. If the investigation is not initiated within a reasonable time, the A.R.S.A.L.D.L.O. it is entitled to refer in due time to the Ombudsman himself, the European Ombudsman and any competent international authorities / institutions.
(4) In conducting a case, advocates for rights and freedoms shall be protected by law against outrage and acts of violence and threats, which are offenses committed against a public official in the performance of his or her duties. competent public authorities / institutions of force, the Police, the local Gendarmerie for restoring order and carrying out control and sanctioning procedures, having full power to notify any public, local and central authorities including the SCM, the Ministry of Justice, the competent Prosecutor’s Offices and the courts. trial, as appropriate, whenever necessary.
(5) In the case of committing offenses ADL and A.R.S.A.L.D.L.O. they shall be required to report the facts forthwith immediately and to make the evidence available to the authorities.
Chapter 6 Special procedural rules specific to the field of notification, control and sanctioning activities of A.D.L. and A.R.S.A.L.D.L.O. – misdemeanor litigation
Section no. 1 Notification and registration of works
JUS * LEX * GOOD FAITH * Draft Law <<< under construction>>>
Romanian Supervisory Authority of
Enforcement of Laws, Human Rights and Freedoms Bucharest March 8, 2022
Advocate for Rights and Freedoms
ADL / A.R.S.A.L.D.L.O
Bucharest, str. Izvor no. 2-4, Sector 5
Lawyer ION GABRIEL ANGHELUS
tel 0721736034
8
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Art. 9 (1) The notification of the Authority may be made either ex officio or by written notification or complaint, addressed by any natural or legal person of private or public law, by mandatory completion of a standard notification form A.R.S.A.L.D.L.O. in editable physical or electronic format, notification accompanied by any copies of the documents proving the deed / facts, the identity of the persons complained of and the circumstances notified.
(2) Both the complaint and the documents proving the notified deed / facts may be sent in physical format by using the courier or postal services, either in electronic format, by e-mail or on the A.R.S.A.L.D.L.O. in which case they are scanned and uploaded to the petition platform provided by the Authority’s website.
(3) The documents in the case file that the petitioner submits are automatically registered at the authority’s registry in electronic format, they are stored on the server, receiving on the day of submission the official registration number which becomes the file of the electronic file provided by posting on the portal ARSALDLO
Section II Law Enforcement Oversight. Control acts and
Expertise, Finding and Sanctioning Report (RECS)
Art. 10 (1) Following the receipt and registration of the notification by the official in the registry, the fulfillment of the substantive and formal conditions of the notification is verified, the competence to solve and sends the notifications in digital format to the A.R.S.A.L.D.L.O. This committee classifies the file number in one of the categories of the case concerning the use of the indication of gravity, namely: minor cases, medium cases, or major and immediate cases, depending on the urgency and the operative state.
(2) The file is randomly assigned to a research and control team, competent on all 3 levels, of cases (minor; medium; major) which in principle consists of at least 2 lawyers of rights and freedoms appointed within the Operative Bureau, central or territorial ARSALDLO This team initiates, according to the internal procedures, all the legal investigation activities and, as the case may be, the settlement of the case, the issuance of the RECS and the taking of legal measures in the cases.
3 relevant representatives of the authorities involved.
(4) It is mandatory to indicate the file number and the indication of the case (minor, medium or major), the date, time and place of the procedure, the quality of those summoned, the documents and data to be provided by A.R.S.A.L.D.L.O. at the hearing.
(5) The hearings shall be made on the basis of the written and signed declaration applying the technical procedure, the audio-video recording and their conversion in writing of the first statements given by offenders, witnesses, experts, etc.
(6) The right to defense is guaranteed, the offender having the possibility to ensure the presence of the lawyer chosen at the hearings. At the date and time in question, scheduled for hearings, the persons are heard, the statements being recorded audio-video and automatically converted into summary and written in front of the chosen defense counsel who signs the documents with the person heard.
JUS * LEX * GOOD FAITH * Draft Law <<< under construction>>>
Romanian Supervisory Authority of
Enforcement of Laws, Human Rights and Freedoms Bucharest March 8, 2022
Advocate for Rights and Freedoms
ADL / A.R.S.A.L.D.L.O
Bucharest, str. Izvor no. 2-4, Sector 5
Lawyer ION GABRIEL ANGHELUS
tel 0721736034
9
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(7) In the procedure, all the data, documents in defense or those requested and presented by the offender shall be requested and taken over, as the case may be. , statements, confrontations and other situations necessary to be clarified in the case.
Section III Finding and Sanctioning Report (R.E.C.S.)
Art. 11 (1) In procedural activities, lawyers for rights and freedoms (ADL) complete the investigation by drawing up an Expert Report called the Expert Report, Finding and Sanctioning (RECS), which is presented in the form of a standardized national standard and is always stored in editable and printable digital form, which is finally enclosed in an encrypted pdf format in which the samples are attached and which can be used and printed in physical format on paper at any time.
(2) The evidence is attached to the Report of Findings and Sanctions, and the RECS headings have a mandatory structure in standardized paragraphs and objectives, the form being enforceable at the required level of numbered pages to unify and standardize procedures and highlight all relevant legal issues (parts, subject , facts, objective laura subjective side, degree of guilt, causal relationship damages, circumstances of the facts, legal grounds, legal reasoning, etc.).
(3) The evidence is annexed to the RECS being collected and stored and protected securely in digital format on the servers of the institution, these being subject to a permanent verification in terms of usefulness and legality.
The files, databases and files shall be organized in electronic format in 3 separate sections, namely:
a) the first section shall contain the internal jurisprudence according to the destination and the procedural needs of use and internal circuit of the authority;
b) two sections will identify the filing of the files in progress or of the appeals received before the courts;
c) the third section will contain the final files in the forced execution phase.
(6) The A.R.S.A.L.D.L.O. may issue periodically or at the request of public authorities / institutions a series of activity reports, public statistical data on the evolution of technical findings on law enforcement, statistical data established by categories of crimes / offenses at national level.
(7) The A.R.S.A.L.D.L.O. may provide through general reports and other public information regarding its activity or statistics requested by the authorities or by the specialized commissions within the Romanian Parliament, the Legislative Council, including public information of citizens through the Public Relations Office and official communiqués of the A.R.S.A.L.D.L.O.
Section IV Content of the Expertise Report, Finding and Sanctioning.
Enforcement effects and titles
Art. 12 (1) The report of expertise, ascertainment and sanction –RECS- constitutes an enforceable title.
JUS * LEX * GOOD FAITH * Draft Law <<< under construction>>>
Romanian Supervisory Authority of
Enforcement of Laws, Human Rights and Freedoms Bucharest March 8, 2022
Advocate for Rights and Freedoms
ADL / A.R.S.A.L.D.L.O
Bucharest, str. Izvor no. 2-4, Sector 5
Lawyer ION GABRIEL ANGHELUS
tel 0721736034
10
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(2) RECS is drawn up on a special and national standardized format inserted in the official records of the A.R.S.A.L.D.L.O. and expressly includes the registration number of the case file with the specific call sign according to the nature of the case (Min / Med / Maj), no. badge, signature of ADL ascertaining, date of elaboration, processing of personal data and other data specific and necessary for legal procedures.
(3) In the content of the RECS, the summary description of the referral on numbered heads of request – which in the resolution of the case represents the order of the operative part of the Report – all the facts in chronological order, structured by sections and natural / legal persons, express recording of names and the data on the identification and citation of the offenders, the finding of the offenses, the basis and the amount of the fine in case of application of the offenses sanctions.
(4) The penalties applicable may be the following:
a) the warning;
b) misdemeanor fine;
c) complementary and accessory measures.
4 physically or legally guilty of fulfilling certain obligations, to remove the effects of the act if it is possible to put it in the situation prior to the commission or to repair the damage or, as the case may be, to uphold the procedures and customs, which violate rights and freedoms.
(5) If it is found that the case falls within the competence of another authority / institution or is within the civil, criminal or administrative jurisdiction of a specific court in the Report of Expertise, Finding and Sanctions on human rights, lawyers of rights and freedoms the ADL case has been assigned to the competent authority / institution or court, as the case may be, and the full content of the case file is accompanied by the declination or, as the case may be, the RECS. simplified in copy if other facts are and remain within the competence of the A.R.S.A.L.D.L.O. disjoining the cases and sending the parties to the disjointed cases within the competence of the authorities in question.
(6) The procedure for the chain application of administrative fines and urgent or complementary measures, horizontally and vertically, designates the material competence of the ADL to apply horizontal and vertical chain sanctions on a hierarchical scale to all persons whose fault is competition and identified facts were proved regardless of the quality of perpetrators, co-perpetrators, instigators, including persons, who were and are accomplices directly or indirectly determined and / or were in a relationship of inferior or superior hierarchical organization on the level of tortious liability.
(7) The applied sanctions are ordered by their individualization according to the gravity of the committed crime, including by establishing the measures to remedy or repair the damages against the victims of contraventions, which the offender is obliged to carry out within the terms indicated in RECS.
Section V Ex officio referral to other authorities
Article 13 (1) A.R.S.A.L.D.L.O. by ADL may notify after conducting investigations and gathering evidence or at the same time conducting its own investigations any administrative, legislative, disciplinary or judicial or criminal control authority, as appropriate, in situations where it identifies the commission of flagrant disciplinary acts or acts administrative blockages.
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Advocate for Rights and Freedoms
ADL / A.R.S.A.L.D.L.O
Bucharest, str. Izvor no. 2-4, Sector 5
Lawyer ION GABRIEL ANGHELUS
tel 0721736034
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(2) In the situation of the existence of indications regarding the commission of certain offenses by the person / institution incriminated in the complaint, ADL has the obligation to notify ex officio the competent criminal bodies.
(3) The ADL has the right to order the fulfillment of clear and fair obligations towards the parties to the case, including the competent authorities, who refuse to fulfill their legal obligations to do so in compliance with legal provisions.
(4) If the offender, natural or legal person, does not fulfill in due time his / her obligation / obligations according to the Report of Expertise, Finding and Sanctioning, A.R.S.A.L.D.L.O. and ADL have the right and the obligation to move to the next level by applying the sanction of a new common law or special contravention fine, on the grounds of non-compliance of the offender or the commission of another new act.
(5) The end of the Report of Finding and Sanctioning (RECS) will include the obligatory mention of the objective side and the subjective side of the committed act, the causal relationship between the act and the damage, the details regarding the position of any of the offenders regarding the guilt, the reported evidence to the investigated subjects regarding the recognition of the deed or, on the contrary, the non-compliant attitude of denial, as well as the express mention of the right of the investigated persons to contest the RECS (in the obligatory procedure of prior complaint / appeal) within 30 days .
(6) After filing the appeal with the A.R.S.A.L.D.L.O. if the petitioner himself is still dissatisfied with the answer received, he shall also have the right to a prior appeal referred to above.
(7) Exclusive material, territorial and functional competence for the court of first instance in case of appeals rejected in the preliminary procedure by the Public Judicial Commission ARSALDLO, belongs exclusively to the Territorial Court in which the facts were committed, which meets and judges the appeals in full specialized in misdemeanor litigation, consisting of 2 judges.
The appellate court of material, territorial and functional jurisdiction is the Court of Appeal from the territorial area in which the acts were committed and which meets in a fully specialized court of contentious contravention, consisting of 3 judges.
(8) The appeals filed by the petitioners or contraveners to the courts of first instance, as well as to the courts of appeal are subject to judicial fees according to the provisions of art. 16 of the O.U.G. no. 80/2013 on judicial stamp duties, with subsequent amendments and completions, similarly to the matter of administrative litigation.
Chapter 4. Mandatory pre-appeal procedure.
Total or partial appeals to the R.E.C.S.
Section I – Preliminary procedure stage. Preliminary appeal
Art.14 (1) The appeals against the Reports of Expertise, Finding and Sanction of the A.R.S.A.L.D.L.O. they are submitted and judged obligatorily in the administrative procedure, under
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Bucharest, str. Izvor no. 2-4, Sector 5
Lawyer ION GABRIEL ANGHELUS
tel 0721736034
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the legal sanction of the inadmissibility of the notification of the competent court, before the Public Judicial Commission (CPJ) from the territorial headquarters A.R.S.A.L.D.L.O ..
(2) The Public Judicial Commissions (CPJ) of the A.R.S.A.L.D.L.O.) will judge the appeals in the simplified procedure of common law, in public session, A.R.S.A.L.D.L.O. recorded audio-video, respecting the principle of adversariality and the right to defense, like the civil procedure.
(3) The provisions of this law, insofar as they contain contrary provisions, shall be supplemented
with the provisions of the Code of Civil Procedure, which is the common law procedure in civil matters.
(4) The panel shall consist of three members, a clerk and two advocates for rights and freedoms within the authority, who shall, as a rule, be appointed by rotation and at random by decision of the A.R.S.A.L.D.L.O. or the territorial office.
(5) The solutions in case of application of the fair and gracious procedure are strictly limited to two solutions that the CPJ can give by issuing a decision, namely: to admit and reindividualize the sanctions, or to reject the appeal as inadmissible or unfounded non-payment sanction with court fee due by the appellant.
(6) After the trial before the CPJ at the headquarters of the A.R.S.A.L.D.L.O. in the preliminary procedure, the dissatisfied offenders have the possibility to address the courts under the conditions mentioned by the provisions of art. 12 para. 5 -12 of the present law, and in case of exceeding the term of 30 days from the communication of the A.R.S. the prescription of the right to action intervenes, being considered according to the common law a term of forfeiture for the exercise of a right or the commission of unilateral acts.
(7) Legal fees: the petitioners or the contesting contraveners of RECS themselves will pay into the public account A.R.S.A.L.D.L.O. the tax attaching a photocopy of the proof of payment of the legal fee of 50 lei for minor cases (indicative MIN), 150 lei for medium cases (indicative MED) and 300 lei for major cases (indicative MAJ) under the sanction of annulment of the notification.
(8) Sanctions related to procedural bad faith in the procedure of the referral before the CPJ- A.R.S.A.L.D.L.O. :
Repeated, unfounded or harassing complaints, which do not meet the legal conditions of form and content, are not taken into account, and will be destroyed, and if these attitudes continue in bad faith, the persons concerned will be sanctioned with a fine. value of 500 lei through RECS simplified procedural fine.
Chapter 5. Judgment before the court of first instance
Art.15 (1) The appeal shall be filed and resolved that the court of first instance at the Tribunal of the territorial area where the contravention was committed following the analysis of the Control and Sanctioning Report, as well as all documents attached to the notification filed with A.R.S.A.L.D.L.O. The competent court judges the appeal in question in full by 2 judges.
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Lawyer ION GABRIEL ANGHELUS
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(2) The tribunal shall keep records of the cases in ECRIS, on specialized panels with the express mention in the file number of the indicative of the case according to the criterion indicated by the procedure A.R.S.A.L.D.L.O. (Min / Med / Maj), as well as the appellants and the subject-matter of the proceedings.
(3) Decisions of the court: Cases are adjudicated on the merits within a short period of 20 days, ruling on all the claims of the appeal (partial or exclusive) and against all parties to the case – These solutions may be rejected or admitted total or partial appeal.
(4) In case of admission of the appeal, it is ordered the annulment or reindividualization of the sanctions applied by A.R.S.A.L.D.L.O. , and in case of rejection the court keeps the RECS device as regards exclusively the appellant.
(5) The principle of availability operates in the procedural framework of the trial and the court of first instance cannot modify parts of the RECS device, which have remained final and uncontested by the other parties. These sections of the RECS device remain final and enforceable for the rest of the facts and persons that are not the subject and extent of the specific judicial framework of appeal.
Chapter 6. Trial before the Court of Appeal, at the contentious section
Art. 16 (1) Natural or legal persons dissatisfied with the decision of the court of first instance at the level of the Tribunal, may exercise the appeal within the period of forfeiture of 30 days from the communication of the civil sentence given by the Tribunal, by submitting the appeal to the court whose decision is being appealed.
(2) The appeal is within the jurisdiction of the Territorial Court of Appeal in which the misdemeanor was committed as a court of judicial control of higher rank and it is judged in full by 3 judges, with short and consecutive terms of maximum 20 calendar days.
(3) The appellate court shall order, as the case may be, any of the legal solutions mentioned by the provisions of art. 13 para. (5) of the present law, clearly, concisely and concisely motivating the legal reasoning and the grounds for application to the factual situation, the evidence administered in question.
(4) Other special provisions: court decisions on misdemeanor proceedings shall be stored in electronic format and shall be drafted in a standardized national format – single type on chapters, sections / subsections and numbered paragraphs, for the technical purpose of ease of use of judgments, and of the unification of the judicial practice and of the facilitation of the citation and the keeping of the record of the national jurisprudence of contraventional contentious starting with the same ECRIS and of the courts.
(5) The final judgments of the Courts of Appeal, including the Appeals in the Interest of the Law (RIL) handed down by the HCCJ under the procedure for unifying the judicial practice in the field of misdemeanor litigation, constitute the national merits of as a procedural right, in the strict sense of the application of the principle „for the identity of reason in similar situations similar solutions apply” – „ubi eadem est ratio, eadem solutio esse debet”.
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ADL / A.R.S.A.L.D.L.O
Bucharest, str. Izvor no. 2-4, Sector 5
Lawyer ION GABRIEL ANGHELUS
tel 0721736034
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Chapter 7. Enforcement
Art. 17 (1) By the presence of the law A.R.S.A.L.D.L.O. has set up its own Enforcement Department, an apparatus that will use all procedural means and common law guarantees in the matter of enforcement.
(2) The Findings and Sanctions Reports, whether or not they are in joint procedural participation if they remain final on one or more heads of sanctions and ancillary measures, constitute enforceable titles of law and will be immediately executed by the personnel from within the enforcement department within ARSALDLO
(3) Within the enforcement procedure, it will be possible to grant payment installments under the conditions of the request and the presentation of guarantees by the offender. Also, upon request, the competent authorities have the obligation to provide legal support subject to the sanction of a procedural fine in the amount of 500 lei to 1000 lei for refusing to present or failing to comply with the measures indicated in the operative part of the writ of execution.
(4) The staff of the enforcement department within the authority has the obligation to implement the execution of all the measures imposed in the Expertise, Finding and Sanctioning Report, respectively of the fines and ancillary measures remaining enforceable.Capitolul 8. Sancțiuni și individualizări legale
Art. 18 (1) In the contravention investigation, the defendant is obligatorily asked by the lawyers of rights and liberties if he wants to apply the simplified procedure of acknowledging the guilt. Acknowledgment of guilt at the beginning of the investigation is also recorded by signing the initial declaration of recognition of the legal situation that entitles the offender to benefit from a mandatory 75% reduction in the amount of the fine and to pay a reduced fine in installments, with commitment and payment schedule installments .
(2) In case of final rejection of the appeal and entry of the enforceable title in the enforcement phase, the offender will be subject to the penalty amount increased by the right to double the fine initially applied, as an express sanction provided in this law for misconduct. or the harassing attitude, without being able to benefit from the payment rescheduling in the forced execution phase.
(3) The sanction of the obligatory doubling of the amount of the fine applied has as legal basis the presumption of sanctioning the offender in bad faith, according to the principles “malitiis non est indulgendum” and “erare humanum est sed perseverare diabolicum”.
(4) Any notification addressed to A.R.S.A.L.D.L.O. shall be sanctioned with a fine of 500 lei. , which proves to be manifestly unfounded and submitted for the purpose of misleading or harassing.
(5) Any refusal to present for identification, any act of evasion from control or summons before the ADL / A.R.S.A.L.D.L.O .. shall be sanctioned with a fine of 500 lei.
(6) Any natural or legal person, as well as their representatives, obliged to answer jointly and severally, shall be sanctioned with a fine of 500 to 1000 lei, in case of refusal to comply with the request to make available to A.D.L. / A.R.S.A.L.D.L.O .. documents, authorizations or information required for the purpose of settling a case.
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ADL / A.R.S.A.L.D.L.O
Bucharest, str. Izvor no. 2-4, Sector 5
Lawyer ION GABRIEL ANGHELUS
tel 0721736034
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(7) Impossibility to bring or reconstitute the documents requested by the A.D.L of the A.R.S.A.L.D.L.O. it constitutes a ground for exemption from the application of the fine only on condition that the non-existence of the requested documents be recognized immediately. In the case of misleading A.D.L. by invoking some documents, later proved to be non-existent, in order to hide the truth, the fine is doubled to the value of 1,000 lei.
Chapter 9 Sanctions for misdemeanor litigation. Hierarchy of cases, multiple facts, contravention co-participation
Secțiunea I – Minore Cases
Art. 19 (1) Minor causes are defined indefinitely as causes of any nature of the facts and guilt that triggered administrative dysfunctions, abuse, excessive zeal or inconsistency or poor management of authorities or officials who do not have fulfilled the obligation to make, take measures or issue documents, authorizations or answers within the legal deadlines. The category of minor cases also includes any obvious omissions or circumventions of the law, which affect fundamental human rights and freedoms.
(2) The fines applicable in the sphere of minor cases to natural persons are in the amount of 3,000 lei to 10,000 lei and the fines for legal entities are in the amount of 10,000 lei up to 50,000 lei.
In the case of fines applicable in minor cases for legal persons under private and public law, the amount of the fine shall be individualized according to the degree of guilt and the concrete factual and legal circumstances according to which the mitigating and / or aggravating circumstances for offenders.
Section II. Middle Causes
Art. 20 (1) The average causes are defined indefinitely as causes of any legal nature and area of human activity, committed in the form of direct intention, in which more serious middle-level administrative dysfunctions with values of damages were triggered and created. of at least 10,000 lei and which affected families or small groups of people, their professional activities, affected the exercise of fundamental human rights and freedoms, implemented defective or illegal initiatives or professional negligence or excess of power, overcoming attributions of the job description, or misdemeanors were committed by omission and / or caused the proper functioning of any human activity investigated in question.
(2) The fines applicable in the sphere of average cases to natural persons are of value of 10,000 lei up to the value of 50,000 lei applicable, and the fines applicable to legal persons of private or public law are in the amount of 100,000 lei up to 500,000 lei.
(3) In the case of fines applicable in secondary cases for legal persons under private and public law, the amount of the fine shall be individualized according to the degree of guilt and the concrete factual and legal circumstances according to which the mitigating and / or aggravating circumstances for offenders.
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Bucharest, str. Izvor no. 2-4, Sector 5
Lawyer ION GABRIEL ANGHELUS
tel 0721736034
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Section III Major Cases
Art. 21 (1) The major causes are defined indefinitely as those of any legal nature and area of human activity in which particularly serious administrative dysfunctions have been triggered and created, affecting interests at local and national public level, with values of damages over 1,000,000 lei and which affected large groups of people, localities and even public interests at the state level, national resources, industries and entire sectors or economic and professional activities. These causes have been manifested by the suppression of fundamental human rights and freedoms, by irresponsible decisions or initiatives, defective or manifestly illegal, belonging to a civil servant or group of officials, who have shown professional negligence in the form of excess of power or committed acts omissions and / or impaired the proper functioning of any human activity investigated in question.
(2) The fines applicable in the sphere of average cases to natural persons are of value of 50,000 lei up to the value of 500,000 lei applicable, and the fines applicable to legal persons of private or public law are in the amount of 500,000 lei up to 1,000,000 lei.
(3) In the case of fines applicable in major cases for legal persons under private and public law, the amount of the fine shall be individualized according to the degree of guilt and the concrete factual and legal circumstances according to which the mitigating and / or aggravating circumstances for offenders.
Chapter 10. Contraventions >>> underconstruction (CHAPTER IN PROGRESS)*
Art. 22 Defeat of fundamental rights and freedoms.
It constitutes the contravention of the violation of fundamental rights and freedoms, the disregard of some fundamental rights and freedoms, in any way, directly or indirectly by orders, norms or administrative acts or any verbal or written dispositions given by a public or private official not respecting the provisions of art. 53 of the Romanian Constitution. This deed is punished with an individualized fine depending on the gravity and the degree of guilt in accordance with the distinctions shown in art. 19 -21 in the presence of the law.
Art. 23 Imposition of excessive burdens
It constitutes the contravention of imposing excessive burdens on the citizen whenever they are imposed in any way, directly or indirectly, by a person working in the public administration by imposing excessive bureaucratic or financial / fiscal burdens that harm the fundamental freedoms of the citizen. and which make it impossible to access public goods or services. This deed is punished with an individualized fine depending on the gravity and the degree of guilt in accordance with the distinctions shown in art. 19 -21 in the presence of the law.
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Art. 24 The major contravention of the abolition norm the rights and freedoms by normative acts contrary to the Constitution
It constitutes the major contravention of abolition of rights and freedoms by administrative or normative acts contrary to the Constitution such as: normative acts, orders, decisions, which regardless of the justification or opportunity invoked, determine the evasion or violation of fundamental rights and freedoms. The deed is punished with an individualized fine, according to the gravity and the degree of guilt in accordance with art. 21 in the presence of the law and obliging the offenders to immediately revoke the provisions of normative acts, orders and illegal norms.
Art 25 Major contravention of subjugation of fundamental rights and freedoms to groups of domestic or foreign economic interests, contrary to human rights and fundamental freedoms
The major contravention of the subjugation of fundamental rights and freedoms to domestic or foreign economic interest groups is any act embodied in economic monopoly policies, administrative acts, orders, provisions and authorizations or trade effects which condition the exercise of rights and freedoms, and any lobbying activities carried out by any natural or legal person, belonging to national or international legal entities that decide or conceive individually or in an organized criminal group, strategies, policies and normative acts and laws that materialize in violation of rights and freedoms fundamental aspects of man. Also, the major violation of the subjugation of fundamental rights and freedoms may be the subjugation of masses of people through antisocial political or economic practices in order to obtain financial profits fraudulently, contrary to good faith and against the right of peoples to good administration. The deed is punished with a fine increased to double the value in accordance with art. 10 in the presence of the law.
Chapter 11 Final and transitional provisions
Art. 26 (1) The provisions of this special law are applied with priority, representing the source of law in the matter of contentious-contraventional, specific to the contraventional procedures ADL / A.R.S.A.L.D.L.O. , always supplemented by the rules of common material and procedural law on liability.
(2) The fortuitous case and force majeure remove the contraventional liability.
(3) The provisions of this law shall be supplemented by the common law provisions in contravention, civil and criminal matters, including common law procedures in the trial of cases, administration of evidence, prescription of liability, disjunction, dismissal and notification of judicial authorities, taking special measures. , seizure, confiscation, enforcement, in strict compliance with the standards imposed by the European and international treaties to which Romania is a party, as well as the jurisprudence of the ECHR applicable primarily in cases.
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Lawyer ION GABRIEL ANGHELUS
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(4) The provisions of art. 15 letter e) and f) of Law no. 35/1997 on the organization and functioning of the institution of the People’s Advocate shall be amended within the meaning of this law and any other provisions contrary to this law shall be repealed.
(5) Within 60 days from the date of publication of this law in the Official Gazette of Romania, Part I, the A.R.S.A.L.D.L.O. as an operative and independent public authority attached to the People’s Advocate.
(6) The organizational structure and other attributions of the Authority shall be regulated by the approval of the Regulations of the A.R.S.A.L.D.L.O. by Government Decision.
Art. 27 The presence of the law enters into force within 60 days from the date of its publication in the Official Gazette of Romania, Part I.
This law was adopted by the Romanian Parliament, in compliance with the provisions of art. 65 paragraph (2) and of art. 76 paragraph (1) of the Romanian Constitution of the Romanian Constitution, republished.
PRESIDENT OF THE SENATE THE PRESIDENT OF THE CHAMBER OF DEPUTIES
Florin – Vasile CÎȚU Ion- Marcel CIOLACU
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ANNEX I
ADL Logo and Badge Template
A.D.L.
JUS- LEX-GOOD FAITH
Inscribed on a stainless steel support is the heraldic symbol of the embossed eagle, based on the 3 foundations of justice JUS, LEX, BONA-FIDES (law and good faith), accompanied by the acronym ADL, badge identification number and name lawyer for rights and freedoms
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ANNEX 2
(R.E.C.S. MODEL) SPECIMEN
EXPERTISE, FINDING AND SANCTIONING REPORT
Seria: RECS/ARSALDLO nr. 000001 din data de /_/2022 INFRINGEMENT PARTIES FACTS INJURY VALUE DEGREE OF GUILT 3 Offending Parties ( PC) FACTS and CAUSATION REPORT between facts and prejudice Cauze minore Art. 17 (MIN) X 1. Bad faith X 2. direct intention 5 Injured Parties (PV) X Cauze medii Art 18 (MED) 3. indirect intention 10.000 lei 4. Direct guilt 1500 Virtual Injured Parts (PVV) Cauze majore Art 19 (MAJ) 5. indirect fault (praeterintentie)
Cap I Părțile: Chapter I Parts:
_________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________2. _______________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________3. _______________________________________________________________________________________________________________________________
______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________Cap II Fapte Sesizate și Fapte Constatate: Facts Notified and Facts Found:
____________________________________________________________________________________________________________________

_________________________________________________________________________________________________________________________

_________________________________________________________________________________________________________________________

Cap III Legea Aplicabilă: Applicable law:

_________________________________________________________________________________________________________________________

_________________________________________________________________________________________________________________________
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2

_________________________________________________________________________________________________________________________

Cap IV Formele Vinovăției: Forms of Guilt

_________________________________________________________________________________________________________________________

_________________________________________________________________________________________________________________________

_________________________________________________________________________________________________________________________

Cap V Prejudiciul si Raportul de cauzalitate Injury and Causation raport

_________________________________________________________________________________________________________________________

_________________________________________________________________________________________________________________________

_________________________________________________________________________________________________________________________

Cap VI Dispozitivul Raportului de Constatare DISPOZITIFE RECS
6.1. Sancțiuni Contravenționale: Contravention sanctions

_________________________________________________________________________________________________________________________

_________________________________________________________________________________________________________________________

_________________________________________________________________________________________________________________________

6.2 Recomandări și Măsuri Reparatorii: Recommendations and Repair Measures

_________________________________________________________________________________________________________________________

_________________________________________________________________________________________________________________________

_________________________________________________________________________________________________________________________

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Cu drept de contestație în termen de 30 de zile, în procedura prealabilă, în fața Comisiei Publice de Judecată de la sediul de competenta teritoriala ARS (C.P.J-A.R.S.) potrivit dispozițiilor Art. 12 si urm. Legea nr…………/ 2022 privind infiintarea institutiei avocatului de drepturi si libertati si a Autoritatii Romane de Supraveghere.
With the right to appeal within 30 days, in the preliminary procedure, before the Public Judicial Commission from the headquarters of the territorial competence ARS (C.P.J-A.R.S.) According to the provisions of Art. 12 et seq. Law no ………… / 2022 on the establishment of the institution of the lawyer of rights and freedoms and of the Romanian Supervisory Authority.
A.R.S.A.L.D.L.O
ADL . Contravenienti, offenders,
1 __________________ 1 ____________
2 __________________ 2 ____________
/ motiv refuz semnare
eason for refusing to sign
Prezentul raport de expertiză , constatare si sanctionare ramas definitiv, constituie titlu executoriu potrivit dispozițiilor Art. 11 alin 1 si art 15 din Legea nr…………/ 2022 privind infiintarea institutiei avocatului de drepturi si libertati si a Autoritatii Romane de Supraveghere.
This expert report, finding and sanction, which has become final, constitutes an enforceable title according to the provisions of Art. 11 paragraph 1 and art. 15 of Law no ………… / 2022 on the establishment of the institution of the lawyer of rights and freedoms and of the Romanian Supervisory Authority.
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REASONS FOR THE LAW
Section 1: Title of the draft normative act
Law on the establishment of the institution of the Lawyer of Rights and Freedoms
and the Romanian Authority for the Supervision of the Application of Laws, Human Rights and Freedoms
Section 2: Reason for issuing the normative act
The main reason for issuing this normative act is the urgent need to establish an autonomous and independent authority, in order to protect the entire segment of fundamental rights and freedoms, because in reality they are left unprotected and are permanently flagrantly violated by the state authorities themselves in the last two years. „Pandemic.” These rights and freedoms are flagrantly and unlawfully violated, often even by state authorities, under various illogical and false pretexts. These reprehensible facts, which became dominant in the Romanian society, led to the collapse of the national economy, to the fraud of the entire national economy and even to the expropriation of the most basic rights, freedoms and needs of the Romanian citizens. We consider that these faulty experiences of violating rights and freedoms, related to the new vision of UN General Assembly Resolution 75/186/2020 of December 16, 2020 must disappear in Romania by setting up this new institution, which is why we organize this state still of democratic law becomes an objective necessary to establish the Romanian Authority for the Supervision of the Application of Laws, Human Rights and Freedoms (ARSALDLO). as a state institution, specialized exclusively in ensuring the observance of the entire segment of fundamental human rights and freedoms and carrying out the operative activity of permanent control and investigation of human rights violations, exercised separately by this special law. We drafted this normative act in the imperative spirit of preserving and defending human rights and freedoms, as re-enacted by UN General Assembly Resolution 75/186/2020 of 16 December 2020 on the role of the Ombudsman and Ombudsman institutions in promoting and protecting human rights. man, good governance and the rule of law ”. The resolution stated at the global level that: „States should consider
JUS * LEX * GOOD FAITH * Draft Law <<< under construction>>>
Romanian Supervisory Authority of
Enforcement of Laws, Human Rights and Freedoms Bucharest March 8, 2022
Advocate for Rights and Freedoms
ADL / A.R.S.A.L.D.L.O
Bucharest, str. Izvor no. 2-4, Sector 5
Lawyer ION GABRIEL ANGHELUS
tel 0721736034
24
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establishing or strengthening the Ombudsman’s institutions as independent and autonomous institutions, at national level and, where appropriate, at regional or local level, in accordance with the principles of protection and promotion. Ombudsman (Venice Principles), whether or not with national human rights institutions ”, because (…)“ in accordance with the Vienna Declaration and the Program of Action, it is the right of each state to choose the national institutions, including the Ombudsman and the Ombudsman, which is best suited to its specific needs at national level, in order to promote human rights in accordance with international human rights instruments. „.
Description of the current situation:
In our country, the institution of the ombudsman is constitutionally based on the provisions of art. 58 – 60 of the Romanian Constitution, and by the Organic Law no. 35/1997 on the organization and functioning of the People’s Advocate institution, republished, establishes the legal framework, purposes, objectives, attributions, mode of operation, mandate of the People’s Advocate, etc.
From a historical point of view since 1991 and until now, the efforts made both in the field of rights and freedoms, as well as in the process of modernizing the institution of the ombudsman or the creation of supervisory authorities for law enforcement and enforcement, have yielded very slow results. only timid and very restrictive changes to the duties and procedures were adopted, and the national ombudsman himself did not have the necessary changes, according to his historical essence, namely: that of a civil servant with full powers of control, investigation and sanction.
In fact, in the last 20 years there has never been a real modernization of expertise and an extension in democratic and deontological parameters of the ombudsman’s operational capacity, who is constantly opposed to the exercise of rights and freedoms by all kinds of civil servants in the administration. which issues special unconstitutional acts as anachronistic and slippery institutions to which are added large private economic interest groups or international corporations with huge lobbying resources and great financial power. Sometimes these legal entities can lead to the direct occurrence of abuses, specific to crime in „white collar” (economic), because they have the interest to hinder the activity of defending the rights and freedoms of citizens, carried out by ombudsman officials. This could explain the lack of legitimate instruments of control, finding and administrative sanction (contraventional-tort), which are effectively related to the operation of a real and fundamental institution in a state governed by the rule of law. In legal theory and practice, the
JUS * LEX * GOOD FAITH * Draft Law <<< under construction>>>
Romanian Supervisory Authority of
Enforcement of Laws, Human Rights and Freedoms Bucharest March 8, 2022
Advocate for Rights and Freedoms
ADL / A.R.S.A.L.D.L.O
Bucharest, str. Izvor no. 2-4, Sector 5
Lawyer ION GABRIEL ANGHELUS
tel 0721736034
25
2
institution of the ombudsman must ensure at all times and promptly the prevention and sanctioning of slippage, respectively of public or private acts and administrative acts, which infringe fundamental rights and freedoms.
We remind you that the Romanian Parliament made legislative changes, which brought necessary corrections to the Romanian ombudsman, respectively: the right of the People’s Advocate to notify the Constitutional Court on the constitutionality of laws before their promulgation, the right of the People’s Advocate to raise directly before the Constitutional Court unconstitutionality; the obligation to communicate the views of the Constitutional Court in human rights cases. However, we consider that the most important legislative change consisted in the establishment of territorial offices of the People’s Advocate (15 ordered on the territorial criteria of the Courts of Appeal).
At the same time, the harshness of the social realities, which are constantly dynamic, has shown that it is not enough to have an institution and underfunded, with insufficient staff and limited powers to deal with the many problems triggered by a political and administrative apparatus dependent on old mentalities. from the communist period in relation to the vastness of the fields in which the civil rights and freedoms must be supervised and protected. It was clear that a new integrative approach was needed, and that was the reality, as national authorities had already been set up to monitor compliance with fundamental rights and freedoms. An example is the National Authority for the Supervision of Personal Data Processing, which is an autonomous central public authority with general competence in the field of personal data protection. It supervises and guarantees the observance of the fundamental rights to privacy and to the protection of personal data, established by the provisions of art. 7 and 8 of the Charter of Fundamental Rights of the European Union, by the provisions of art. 16 of the Treaty on the Functioning of the European Union and the provisions of art. 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Another example is the National Authority for the Rights of Persons with Disabilities Children and Adoptions (ANDPDCA), whose activity is regulated by Government Decision no. 2002/2019 on the organization and functioning of the National Authority for the Rights of Persons with Disabilities, Children and Adoptions.
Furthermore, the People’s Advocate has exercised and must exercise complex activities of monitoring the observance of rights and freedoms, activities of promotion and protection of human rights, within a good governance in large areas, as we find them in his activity, such as:

The field of human rights, equal opportunities between men and women, religious cults and national minorities;
-The domain of the rights of the family, young people, pensioners, people with disabilities;
-The field of defense, protection and promotion of children’s rights;
-The domain of the army, justice, police, penitentiaries;
-The field of property, labor, social protection, taxes and fees;
JUS * LEX * GOOD FAITH * Draft Law <<< under construction>>>
Romanian Supervisory Authority of
Enforcement of Laws, Human Rights and Freedoms Bucharest March 8, 2022
Advocate for Rights and Freedoms
ADL / A.R.S.A.L.D.L.O
Bucharest, str. Izvor no. 2-4, Sector 5
Lawyer ION GABRIEL ANGHELUS
tel 0721736034
26
2
-Domain on the prevention of torture and other cruel, inhuman or degrading treatment or punishment in places of detention (National Prevention Mechanism):
All these areas of interest must be covered by: Bucharest Zonal Center, Alba Zonal Center, Bacău Zonal Center, Craiova Zonal Center and which takes place at the Bucharest headquarters and by the Territorial Offices in: Alba-Iulia, Bacău, Brașov, Cluj-Napoca, Constanța, Craiova, Galați, Iași, Oradea, Pitești, Ploiești, Suceava, Târgu-Mureș, Timișoara.
According to the People’s Advocate’s 2021 Annual Report despite the pandemic and the limited legal means at its disposal, he investigated a series of administrative slippages, which seriously harmed citizens’ rights and freedoms by restricting certain rights, which were later considered unconstitutional. CCR decisions and sanctioned by 15 court decisions handed down by 5 Courts of Appeal. The volume of the People’s Advocate’s activity is very high, indicating statistical data such as: 12692 petitions, 1984 ex officio notifications, 1835 hearings, 183 investigations and 4 special annual reports. Moreover, there are 11 complaints to the Constitutional Court and 2 requests for annulment appeals filed with the High Court of Cassation and Justice, one of which was admitted.
“Out of the total number of 1889 petitions, applications were made to the relevant public authorities for a number of 195 of them, and for the rest of the petitions, the natural persons were referred to the responsible institutions, authorized by law, being indicated the legal way of followed, or specifying the conditions under which the institution of the People’s Advocate may intervene in resolving the cases notified. (…) Violations of fundamental rights and freedoms have been reported, as in previous years, most of them concerned the violation of the right to petition and the right to information, but also the right of the person harmed by a public authority (..). During 2021, 5 inquiries were carried out at several public institutions and, in some cases, by the minutes of the inquiry, recommendations were established, which were recommended by the authorities concerned. for the most part, so that it was no longer necessary to issue recommendations under art. 24 of Law no. 35/1997, republished ”.
https://avp.ro/wp-content/uploads/2022/01/RAPORT-2021.pdf
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Romanian Supervisory Authority of
Enforcement of Laws, Human Rights and Freedoms Bucharest March 8, 2022
Advocate for Rights and Freedoms
ADL / A.R.S.A.L.D.L.O
Bucharest, str. Izvor no. 2-4, Sector 5
Lawyer ION GABRIEL ANGHELUS
tel 0721736034
27
2
Graph of the 2020 Annual Report of the People’s Advocate
JUS * LEX * GOOD FAITH * Draft Law <<< under construction>>>
Romanian Supervisory Authority of
Enforcement of Laws, Human Rights and Freedoms Bucharest March 8, 2022
Advocate for Rights and Freedoms
ADL / A.R.S.A.L.D.L.O
Bucharest, str. Izvor no. 2-4, Sector 5
Lawyer ION GABRIEL ANGHELUS
tel 0721736034
28
2
Also, the year of the pandemic COV 19, 2021 marked, in the history of Romania, an immense shame of international notoriety, triggered by some politicians, who considered themselves „totally disturbed” by the legal activities, exercised by the People’s Advocate by raising exceptions of unconstitutionality against acts pandemic regulations of lower legal level.
JUS * LEX * GOOD FAITH * Draft Law <<< under construction>>>
Romanian Supervisory Authority of
Enforcement of Laws, Human Rights and Freedoms Bucharest March 8, 2022
Advocate for Rights and Freedoms
ADL / A.R.S.A.L.D.L.O
Bucharest, str. Izvor no. 2-4, Sector 5
Lawyer ION GABRIEL ANGHELUS
tel 0721736034
29
2
These normative acts practically abolished the fundamental constitutional rights and freedoms. People’s politicians and civil servants have expressed derogatory attitudes towards these duties, culminating in an attempt to implement an unconstitutional procedure for the removal of the People’s Advocate. Unfortunately, these facts remain in the history of Romania as facts of national and international public notoriety, also sanctioned by the President of the Venice Commission, who reacted vehemently by an official letter addressed to the Chambers of Parliament on June 17, 2021, as well as by the Constitutional Court. of Romania by CCR Decision no. 455/29 June 2021, of which we quote; “„ Decision of the Romanian Parliament no. 36/2021 for the revocation of Mrs. Renate Weber from the position of People’s Advocate violates the constitutional provisions contained in art. 1 para. (3) and (5) which enshrines the principle of the rule of law and the principle of legality and the supremacy of the Fundamental Law, as well as the provisions of art. 9 para. (2) of Law no. 35/1997. ” and that “the act of termination of the mandate of the People’s Advocate is unconstitutional” (…) “and ceases to produce legal effects (…) from the date of publication of the decision in the Official Gazette, the People’s Advocate resumes his capacity for which she was appointed by the Decision of the Romanian Parliament no. 18/2019, published in the Official Gazette of Romania, Part I, no. 524 of June 26, 2019. ”
Unfortunately, for over two decades and especially in the last two years, respectively in the period 2020-2022, it has been clearly observed that Romania suffers chronically due to the slippage of public authorities / institutions in front of good administration and respect for human rights and freedoms. a rule of law. Any kind of action that violates fundamental rights and freedoms, along with abuses of law and frequent phenomena of corruption, inevitably leads to economic decline, but also to the collapse of democracy and the concept of the rule of law, given that There are often hundreds of civil servants whose incompetence has been rising since. These civil servants use totally inappropriate methods, absurd bureaucratic procedures, blatant fraud, displaying them as state policies, all of which permanently prevent citizens from working in a favorable environment and creating genuine economic values in their own country.
The precarious state of fundamental rights and freedoms in the last two years is not caused by the conditions of the COVID-19 pandemic, but comes from the dark past of lack of democracy, mismanagement, real lack of intention to concretely protect these rights and freedoms, from exercising the function in bad faith to the detriment of good administration. Moreover, although all central and local public administration authorities, judicial authorities, institutions in the field of defense, public order and national security are governed by special laws, which regulate their rights and obligations, oaths of allegiance to the country and the people, duties from the job descriptions, by respecting the rights and freedoms of the people, codes of ethics. In reality, however, arrogance, incompetence, irresponsibility and empathy are pervasive, and achieving the goal of good administration has been replaced by national abuse, human error and poor management techniques, which have no way to progress and democracy. Unfortunately, human rights violations are a phenomenon that consists of dozens of reports from specialized institutions in Romania and internationally, in press investigations and especially in the ECHR jurisprudence in which Romania has been convicted in hundreds of cases, which had
JUS * LEX * GOOD FAITH * Draft Law <<< under construction>>>
Romanian Supervisory Authority of
Enforcement of Laws, Human Rights and Freedoms Bucharest March 8, 2022
Advocate for Rights and Freedoms
ADL / A.R.S.A.L.D.L.O
Bucharest, str. Izvor no. 2-4, Sector 5
Lawyer ION GABRIEL ANGHELUS
tel 0721736034
30
3
as a result of the tens of millions of euros in sanctions and compensations that our country has to pay for the flagrant violation of human rights.
The most common, unjustified and unrealistic argument against modernizing and endowing the ombudsman with the operative power to conduct investigations, expert reports and to sanction the violation of rights and freedoms is to overlap the powers of other authorities, including the judiciary. , in the field of civil rights and freedoms. Or, in reality, such statements denote legal inculturation because you can never confuse the clear distinction between the upper classes of intangible rights and freedoms, of constitutional level, with the other subjective rights in common matters and jurisdictions in civil, administrative, fiscal, contraventional, criminal legal reports. and so on In fact, there is not even a solution in a case in the field of human rights and freedoms in the case of all control authorities, at all levels of jurisdiction and even in the common law courts of the country for the simple reason that the object and procedural framework are limited to rights. and subjective obligations, deduced from jurisdiction, while fundamental human rights and freedoms – at best – are treated as collateral issues.
The subjective rights deduced to the court from the relations of administrative, civil, fiscal, criminal law, etc. cannot be confused. with the distinct segment of constitutional rights and freedoms.
Based on all the arguments mentioned above, it is necessary to expand and modernize the logistics, procedures and operational know-how of the ombudsman institution in Romania, to better manage the phenomena and ongoing challenges in society in need of ergonomics and social peace.
In the last two years, there have been situations in which citizens have been overwhelmed by the slippage of human rights and freedoms and lack of good administration, often having to choose to defend their rights and freedoms by organizing protests and demonstrations in the streets.
A simple radiograph of the incoherent legislation of Romania shows that, in 2020, a total legislative “production” of… 155,462 normative acts, individual and international, was reached, which, from 1864 to January 20, 2020, are distributed as follows. :
1926 acts before December 22, 1989 – 53 acts from the period December 22-31, 1989 – 1424 acts from 1990- 1121 acts from 1991- 1506 acts from 1992-1490 acts from 1993-1896 acts from 1994-2146 acts from 1995-3012 acts from 1996-3165 acts from 1997-2659 acts from 1998- 3112 acts from 1999-3803 acts from 2000-4871 acts from 2001-5360 acts from 2002-5590 acts from 2003-7344 acts from 2004-6794 acts from 2005- 7492 acts from 2006-7142 acts from 2007-7787 acts from 2008-8786 acts from 2009-7214 acts from 2010-6731 acts from 2011-6451 acts from 2012- 6304 acts from 2013-6099 acts from 2014-6488 acts from 2015-6823 acts from 2016- 7077 acts from 2017-7032 acts from 2018 -6608 acts from 2019 and 190 acts until January 20, 2020.
Basically, it is logical that a person should need at least 108 days in a year to go through the titles of the 155,462 laws at least once (granting 1min / law-24 / 24h), ignoring working hours, rest and food. ), but because we are still talking about man, not a machine, in reality it would take him almost 324 days a year! … I mean 1 year „with execution”!
JUS * LEX * GOOD FAITH * Draft Law <<< under construction>>>
Romanian Supervisory Authority of
Enforcement of Laws, Human Rights and Freedoms Bucharest March 8, 2022
Advocate for Rights and Freedoms
ADL / A.R.S.A.L.D.L.O
Bucharest, str. Izvor no. 2-4, Sector 5
Lawyer ION GABRIEL ANGHELUS
tel 0721736034
31
3
As early as 2000 years ago, Gaius Cornelius Tacitus (55-115) explained the state of a society, through a famous saying: „The more laws a state has, the more corrupt it is”!
But the image is even more disturbing if we calculate per day, compared to the peak production per hectare 8786 normative acts issued only in 2009, results only 24.07 laws / day which, at least theoretically, the citizen is obliged to swallow, to know and apply them. „Ad impossibilum, Nulla obligatio”!
It is not for nothing that the romanians says that… in Romania: “ people does not break the law, but the law violates people !
In turn, Justice, according to SCM (Justice) reports, since 2019 shows that it is suffocated with over 3,000,000 cases, which means between 6 and 7 million Romanians involved in cases, ie a real relentless, legal war, „Romanian – Romanian “belium omnes contra omnes”. Both the judiciary and the citizen have no other solution to the dispute. The citizen wants quality services, and the judiciary wants specialized staff, who will be able to solve this real invasion of cases and increased salaries. Unfortunately, the services provided by most authorities of any kind of state have shown an exponential drop in the quality of services provided by the state, often at huge expense, so that in the end the results clearly show poor management and more aggressive violation. of human rights and freedoms
Both officials and others, tax-burdened taxpayers are mistaken that administrative issues will be resolved from within the administration. Because the administration is also the one that preserves and blocks any kind of modernization work! Historically, any deviant bureaucratic system has never been reformed on its own! There must always be an external legal force and will to modernize.
Also from the data of the SCM reports it results that, until 2019, the load of cases is between 500 and 1,115 cases per judge. The largest segments are represented by litigations initiated by legal entities against public administration acts and activity, totaling almost 50% at the level of the Courts, separated between 23% and 32%, depending on the hierarchical degree of the courts, 11% contravention litigation and between 18 % and 46% of disputes between private individuals.
Criminal cases represent between 15% and 24% of the number of cases.
Against the background of the intensification of the activity of some public authorities (such as the Competition Council (fines of 93.5 million euros), ANRE (fines of 5 million euros), the National Authority for Consumer Protection (17 million euros, 43,420 cases or tax administrations), there is an increase The business environment is suffocated by all sorts of acts and procedures, and the ANAF is worse off than in the Middle Ages, and the computer system is from prehistoric times. with bureaucratic slippage.
In this country it has been forgotten that it is not a communist economy, the capital is not of the state and of the people of the economic agents and the administration cannot function on the administrative principles of dictatorship from the communist era. it implies that the forces of free initiative and market economic competition are allowed to manifest themselves freely. In reality, it should be understood in this tax dictatorship that a private entrepreneur does business on his own money and not the other way
JUS * LEX * GOOD FAITH * Draft Law <<< under construction>>>
Romanian Supervisory Authority of
Enforcement of Laws, Human Rights and Freedoms Bucharest March 8, 2022
Advocate for Rights and Freedoms
ADL / A.R.S.A.L.D.L.O
Bucharest, str. Izvor no. 2-4, Sector 5
Lawyer ION GABRIEL ANGHELUS
tel 0721736034
32
3
around, which is why he cannot be and is not an employee of ANAF to work full time on tax documents. It must be understood and accepted that the bureaucrats themselves do nothing to impose order and avalanches on bureaucratic tasks, reports, statements and other unnecessary procedures. All these documents imposed for bureaucratic justification are only related to the control of the camp in no case on the accounting criteria of the company of any entrepreneur but only handcuffs his free initiative and prevents him, through the bureaucratic macrophage mentioned above, to carry out his activity and the losing state has nothing to gain. The state is entitled to a percentage of tax and both… Or why did the state come to dictate in man’s money and pravalia when he really did not contribute anything good in human business… This is how we get to economic paradoxes, this is how we explain the exodus of proportions unprecedented that our Romanians have chosen. That is why millions of Romanians are leaving the country! It has happened in Romania that all those who produce must ask for approvals, from those who do not produce anything!
The Romanian has become the slave of the bureaucracy, which permanently and uselessly devours his time, his appetite for work and the little money he could produce, if he let him work.
That is why a complete change of vision is needed by setting up this new ombudsman-type authority.
That is why a complete change of vision is needed by setting up this new ombudsman-type authority.
Ombudsman institutions in all democracies allow citizens to lodge complaints in cases where the authorities / government have not acted lawfully or unjustly, resulting in an impartial investigation of the conduct and may be criticized for its actions or, depending on the case, and stronger consequences.
The role of ombudsmen in democratic governance includes their conceptualization that mechanisms for increasing vertical and horizontal accountability interfere with the concept of good administration. Regardless of the country, classic ombudsmen, hybrids or specialists in a state, can promote good administration.
Expected changes:
he establishment of the Romanian Authority for the Supervision of the Application of Laws, Human Rights and Freedoms (A.R.S.A.L.D.L.O.) and of the lawyer of rights and freedoms, ADL, implies the modification of art. e) and f) of the Law on the People’s Advocate, so that by this law a distinct part of the operative activities of investigation and settlement of petitions by the lawyers of rights and liberties will be outsourced by ADL who will carry out their activity under the Romanian Supervision of the Application of Laws, Human Rights and Freedoms by the People’s Advocate, Bucharest, as well as within the 15 territorial offices (located on the territorial criterion of the Courts of Appeal).
The Romanian Authority for the Supervision of the Application of Laws, Human Rights and Freedoms will be a supreme institution of supervision, investigation, control and sanction exclusively in the field of contraventions at national level and will have full and direct competence to ensure the enforcement of laws related to violations of rights. and civil liberties.
JUS * LEX * GOOD FAITH * Draft Law <<< under construction>>>
Romanian Supervisory Authority of
Enforcement of Laws, Human Rights and Freedoms Bucharest March 8, 2022
Advocate for Rights and Freedoms
ADL / A.R.S.A.L.D.L.O
Bucharest, str. Izvor no. 2-4, Sector 5
Lawyer ION GABRIEL ANGHELUS
tel 0721736034
33
3
It will also have the power to resolve, as the case may be, all complaints falling within its sphere of competence, with the possibility of rejecting the notification of the petition on issues related to the typical civil, criminal or administrative case, which are still of exclusive competence. of the courts.
Depending on the subject matter of the case, in the event that the resolution of the petitions falls within its sphere of competence, it will initiate an investigation and will draw up, as appropriate, a Report of Expertise, Finding and Sanctioning (RECS), which is open to appeal in justice.
Technically, the new operative ombudsman structure will not be confused with the classic institution of the People’s Advocate, which will keep its classical and representative attributions for Romania, as well as the competence in conducting its own investigations, as regulated in Law 35/1997. The Institution of the People’s Advocate will also maintain its attributions enshrined in law in relation to Romania’s international commitments.
Instead, the Romanian Authority for the Supervision of the Application of Laws, Human Rights and Freedoms (through the lawyer of rights and freedoms) will become the structure that will take over the operative activity of solving all citizens’ complaints, being a dynamic and operative structure that will also supervise operationalize the activity of solving all complaints and emergencies related to administrative slippage, by analyzing the wide range of situations that fall within its remit. The Institution of the People’s Advocate will have the sphere of general attributions in the sphere of human rights and freedoms, while the Romanian one for the Supervision of the Application of Laws, Human Rights and Freedoms -A.R.S.A.L.D.L.O-. through the lawyers of rights and freedoms, ADL will have the procedural, permanent operational levers, which will be used for the purpose of expertise, finding and sanctioning in time and completely the situations of violation of civil rights and freedoms at the level of operational law.
ARSALDLO will be able to apply contravention fines, provided in general or special laws, both to convicted offenders and even to control authorities from all over the country, in case they will be caught for not fulfilling their duties and thus their rights have been violated. and liberties or the provisions of the laws governing the area under investigation have been violated. In such cases, the Authority may find serious harm caused to the injured party or serious breaches of fundamental rights and freedoms. Procedurally ARSALDLO will comply with all guarantees in the matter of contravention, the investigation will be direct, being carried out by lawyers of rights and freedoms for the purpose of timely and complete investigation of the contraventions by identifying all the culprits, establishing the facts, the degree of guilt and the damage , causation, etc. Increased attention will be paid to the objective and subjective side of the act, the achievement of the preventive purpose, the individualization of sanctions and the taking of measures or the provision of recommendations for reparation and removal of the effects of contraventions that have violated human rights and freedoms. In conclusion, obviously at the level of responsibilities, attributions, functions and competence, ARS will not face the existence of overlaps in terms of specific attributions and functions with those of the People’s Advocate institution or other institutions and will never investigate cases. civil, criminal, administrative or misdemeanor, given in jurisdiction of other judicial institutions in the justice system.
JUS * LEX * GOOD FAITH * Draft Law <<< under construction>>>
Romanian Supervisory Authority of
Enforcement of Laws, Human Rights and Freedoms Bucharest March 8, 2022
Advocate for Rights and Freedoms
ADL / A.R.S.A.L.D.L.O
Bucharest, str. Izvor no. 2-4, Sector 5
Lawyer ION GABRIEL ANGHELUS
tel 0721736034
34
3
In his investigations A.R.S.A.L.D.L.O. whenever there are indications of the existence of other disciplinary violations, it may notify the competent disciplinary body or, as the case may be, the hierarchical control body competent in the matter, and in case of incidence of offenses, the prosecutor’s offices and / or investigation bodies criminal skills or specialized as the case may be.
ADL / A.R.S.A.L.D.L.O. they will not exceed their duties by interfering in the activities of other institutions / authorities and will not in any way affect the independence of the Judiciary or the judiciary.
A.R.S.A.L.D.L.O. and ADL will respect the authority of res judicata, but may limit these matters to the competent administrative body of the Ministry of Justice or SCM whenever it finds a violation of certain rights and freedoms by applying exclusively administrative procedures, which will contravene the principles of the order Right. The bodies notified by the A.R.S.A.L.D.L.O. they will be obliged to investigate the irregularities themselves, within a reasonable time, to order the restoration of those defective administrative procedures, outside the court act (such as deficient bureaucratic activities of issuing legalized copies, refusals to draft and non-communication of decisions for years, slippery procedures defiance of access to justice or the famous slippery grounds of appeal scheduled by the HCCJ over 3 years, which is a defiance of the very idea of access to justice).
A.R.S.A.L.D.L.O. will become practically a high forum of applied legal expertise, which will be recognized from the beginning due to the fairness of the given solutions and the accuracy of its activities, this being a perfectly functioning democratic authority and at the same time a precious source of official databases, expertise and annual scientific reports. Analyzing the activity submitted by the authority and by ADL, it will be possible to make reports and statistics essential to society on the evolution of criminal phenomena, based on an absolutely scientific and useful scientific support, which the authority will be able to make available to institutions / authorities and official requests. of Justice, Government of Parliament, etc
It is clear that at the level of high scientific training and the Operative Council and the Scientific Council of the A.R.S.A.L.D.L.O. there will never be overlapping competencies, as ADL always verifies its material competence in the procedural stage and of the registration of the notification and throughout the possible investigation and will motivate its response to the notification or will draw up the report of expertise, finding and sanction following the investigation. it shall set out the grounds of jurisdiction or refer the matter to the competent authority capable of investigating those facts and infringements.
Also, in response to the requirements, based on the principle „qui potest maius, potest minus”, ADL will have the right to impose the remedy of illegal situations with terms of recommendation, including the obligation to communicate the results of research and measures taken, there is no doubt that these aspects of communication official could ever be misinterpreted.
By law A.R.S.A.L.D.L.O. it is built as the supreme authority of direct control and sanction, and will be able to sanction the control authorities themselves in the case of identifying the defensive, elusive, or bad faith attitude. ADL will aim at refusing the notified authority to take measures under the sanction of a fine.
The ADL will have full competence to apply the fine to the official responsible for non-compliance with the provisions of the law in a timely manner, but especially with the duties of the office.
JUS * LEX * GOOD FAITH * Draft Law <<< under construction>>>
Romanian Supervisory Authority of
Enforcement of Laws, Human Rights and Freedoms Bucharest March 8, 2022
Advocate for Rights and Freedoms
ADL / A.R.S.A.L.D.L.O
Bucharest, str. Izvor no. 2-4, Sector 5
Lawyer ION GABRIEL ANGHELUS
tel 0721736034
35
3
In fact, this is the fundamental role and real genetic scope of the ombudsman in modern society, which implies assuming a wide dimension of action and organization of control, especially the possibility of sanctions in case of violations, being expected to defend the right to good government and to be a defender of human and civil rights. In this regard, see Our Common Work: Fairness, Dignity and Human Rights, written by Bience Gawanas and published by the International Ombudsman Institute, University of Alberta in 2000.
For these reasons, there is an urgent need to expand and modernize this operational dimension of the People’s Advocate Institution, whereas an official with powers of control in the application of laws, rights and freedoms, who does not have the right to impose fines, is unacceptable, just as, symmetrically, if the law lacks the sanction along with the disposition and hypothesis of the legal norm, surely the legal norm will be permanently ignored.
This technical solution and the proposed Normative Project for Romania will streamline the development of legal relations in society and will give high quality standards to the central and local administration, will ensure the stability and consolidation of democracy and the sovereignty of the people. Also the A.R.S.A.L.D.L.O. there will be a real support of the Romanian Parliament in the situations in which, based on the expert reports, it will be possible to activate parliamentary commissions of inquiry on the different special situations. But perhaps the one who will first feel the beneficial effects of the establishment of this authority will be the citizen of good faith. The judiciary will benefit from a reduction in the stock of classic cases (although the new cases of misdemeanor litigation will increase by only a few percent), and the legal profession, as a defense counsel chosen by the litigants (UNBR), as a result of the emergence of a new branch of law. , respectively of the contravention litigation, will have a new working front, with very dynamic cases and procedures, which until now did not exist and will not exist without the appearance of the modern institution ARS.
In conclusion, the United Nations General Assembly itself, by Resolution 75/186 adopted by the General Assembly on 16 December 2020 on the role of the institutions of the Ombudsman and the Ombudsman in promoting and protecting human rights, good governance and the rule of law, established that:
Strongly encourages Member States to:
a) Consider the establishment or consolidation of independent and autonomous Ombudsman and Ombudsman institutions, at national level and, where appropriate, at regional or local level, in accordance with the principles of protection and promotion of the Ombudsman’s institution (Venice Principles), or national human rights institutions, or with them;
b) Creating the necessary constitutional and legislative framework for the institutions of the Ombudsman and the Ombudsman, as well as providing state support and protection, adequate financial allocation for staff and other budgetary needs, a broad mandate covering all public services, they need to select the issues, to resolve cases of maladministration, to seriously investigate and communicate the results, as well as all other appropriate means to ensure the efficient and independent exercise of their mandate and to strengthen the
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Romanian Supervisory Authority of
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Advocate for Rights and Freedoms
ADL / A.R.S.A.L.D.L.O
Bucharest, str. Izvor no. 2-4, Sector 5
Lawyer ION GABRIEL ANGHELUS
tel 0721736034
36
3
legitimacy and credibility of their actions. mechanisms for the promotion and protection of human rights, the promotion of good governance and the rule of law;
d) To clearly state the mandate of the Ombudsman and Ombudsman institutions, where they exist, to prevent and properly address any inequities and cases of maladministration and to promote and protect human rights, and to report on their activities as appropriate, both in general and on specific issues;
e) Take steps to ensure that there is adequate protection for the institutions of the Ombudsman and the Ombudsman, where they exist, against coercion, reprisals, intimidation or threats, including from other authorities, and that such acts are promptly and properly investigated. , and the perpetrators are held accountable;
f) Pay due attention to the principles relating to the status of national institutions for the promotion and protection of human rights (Paris Principles) 9 when assigning to the institutions of the Ombudsman and the Ombudsman the role of national prevention mechanism and national monitoring mechanism;
g) To develop and carry out, as appropriate, awareness-raising activities at national level, in collaboration with all relevant stakeholders, in order to raise awareness of the important role of the institutions of the Ombudsman and the Ombudsman;
h) To share and exchange best practices regarding the work and functioning of the institutions of the Ombudsman and the Ombudsman, in collaboration with the Office of the United Nations High Commissioner for Human Rights, the International Ombudsman Institute and other international and regional Ombudsman organizations ;

Recognizes that, in accordance with the Vienna Declaration and the Program of Action, it is the right of each State to choose the framework of national institutions, including the Ombudsman and the Ombudsman, which is best suited to its specific needs at national level, to promote human rights in accordance with international human rights instruments;
https://avp.ro/wp-content/uploads/2021/01/rolul-ombudsmanului-RO-2.pdf
Finally, we can appreciate that the establishment of the institution of the lawyer of rights and freedoms and of the Romanian Supervisory Authority has the organic, socio-legal need to ensure the “immune system” of society and human organization in the rule of law and functioning of the legal order specific to democracy. not to tyranny and dictatorship, protection and officials designated by law and concrete procedures for the protection of the entire segment of intangible human rights and freedoms, protected at a higher constitutional level by enshrined international acts, pacts and treaties on rights and freedoms.
Or, this innovation and modernization of this ombudsman-type institution can be appreciated in other words, compared to the classic institution of the People’s Advocate, which will remain the „general medicine” socio-legal law enforcement and human rights and freedoms, and ARS and the rights and
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Bucharest, str. Izvor no. 2-4, Sector 5
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3
freedoms advocate will be „emergency medicine”, ie permanent and operative guards, real antibodies, white cells active and protective human rights in the social body of the Romanian State. (In fact, the service uniform itself will be white, imposing the symbol of respect and prestige of the authority for the defense of human rights and freedoms).
THE INITIATORS
Sectiunea a 3 a
Secţiunea a 3-a Impactul socio – economic al proiectului de act normative
Impactul macroeconomic
nu este cazul
11.Impactul asupra mediului concurenţial şi domeniului ajutoarelor de stat
Impact on the competitive environment and the field of state aid
A.R.S.A.L.D.L.O. it will only monitor law enforcement and intervene only in serious cases of foreclosure on the competitive market, in relation to antitrust policies, and will not normally interfere in the decisions and powers of control bodies and in the enforcement of competition laws. However, whenever there are complaints in its area of competence, it will ascertain the phenomena, analyze and document them and send legal recommendations to the competent institutions to remedy the situations in question.
A.R.S.A.L.D.L.O. va supraveghea doar aplicarea legilor și va interveni doar în cazuri grave de blocaje pe piața concurențială, raportat la politicile anti – trust și nu va interveni de regulă în deciziile și în competențele organismelor de control și în aplicarea legilor în domeniul concurenței. Însă ori de câte ori există plângeri în domeniul său de competență va constata fenomenele, le va analiza și documenta și va trimite recomandările legale instituțiilor competente să remedieze situațiile în cauză.
Impactul asupra mediului de afaceri
Impact on the business environment
The business environment will develop much better in Romania because it will have a special support in combating blockages and administrative errors, which permanently impede the development of business.
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Romanian Supervisory Authority of
Enforcement of Laws, Human Rights and Freedoms Bucharest March 8, 2022
Advocate for Rights and Freedoms
ADL / A.R.S.A.L.D.L.O
Bucharest, str. Izvor no. 2-4, Sector 5
Lawyer ION GABRIEL ANGHELUS
tel 0721736034
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3
In principle A.R.S.A.L.D.L.O. will only oversee the application of laws, rights and freedoms in the business environment. without interfering with the control bodies and the specific authorities. Only when there are well-founded complaints against the authorities who do not do their duty, ARS will intervene by sanctioning the offender in the chain, all the factors guilty in this case, the report also includes recommendations for resolving and avoiding future violations of rights and freedoms.
Mediul de afaceri se va dezvoltă cu mult mai bine în România deoarece va avea un deosebit sprijin în combaterea blocajelor și a erorilor administrative, care împiedică permanent dezvoltarea afacerilor.
De principiu A.R.S.A.L.D.L.O. va supraveghea doar aplicarea legilor, a drepturilor și libertăților în mediul de afaceri. fără a se interfera cu organismele de control și cu autoritățile cu atribuții specific. Doar când există plângeri întemeiate împotriva autorităților care nu-și fac datoria, ARS va interveni sancționând contravențional în lanț, toți factorii vinovați în respective speță, raportul cuprinzând și recomandările de rezolvare și evitare pentu viitor a încălcării drepturillor și libertăților.
21 Impactul asupra sarcinilor administrative
impact on administrative tasks
Although it is the favorite area of most abuses and excessive bureaucracy, the A.R.S.A.L.D.L.O. will only oversee the application of human rights and freedoms laws, without interfering with the decisions of the administration or the control bodies in the structures of the central administration with specific responsibilities. When there are well-founded complaints or situations in which certain officials flagrantly violate their duties or there are administrative and normative acts issued in contempt of human rights and freedoms, ADL / A.R.S.A.L.D.L.O. will check the limits of its action, given that the administrative acts in question – which are harmful are usually brought before the courts – and if sooner or later they are found in charge of officials and other disciplinary or criminal acts must be reported to the authorities criminal and separate disciplinary bodies.
Where appropriate, in the case of even clearer facts and evidence of guilt, chain fines may be applied directly, especially when there are sanctions in administrative laws, which are not complied with by guilty officials, by virtue of the principle qui potest majus potest minus, the report also includes the notification of the competent
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ADL / A.R.S.A.L.D.L.O
Bucharest, str. Izvor no. 2-4, Sector 5
Lawyer ION GABRIEL ANGHELUS
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3
hierarchical authorities and the recommendations for resolving the damage and avoiding for the future the violation of the rights and freedoms of the citizens.
Deși este domeniul predilect al majorităților abuzurilor și birocrației excesive, A.R.S.A.L.D.L.O. va supraveghea doar aplicarea legilor privind drepturile și libertățile omului, fără a interfera în deciziile administrației sau în organismele de control din structurile administrației centrale cu atribuții specific. Când există plângeri întemeiate sau situații în care anumiți funcționari încalcă în mod flagrant atribuțiile sau există acte administrative și normative emise în disprețul drepturilor și libertăților omului, ADL / A.R.S.A.L.D.L.O. va verifică limitele acțiunii sale, având în vedere că de regulă actele administrative în cauza – care sunt vătămătoare sunt deduse judecății în față instanțelor administrative – și dacă după sau înainte se regăsesc în sarcina funcționarilor și alte fapte de natură disciplinară sau penală se sesizează obligatoriu autoritățile penale și separat organele de disciplină .
După caz, în situațiile și mai clare de fapte și vinovăție evidență se pot aplică direct amenzi în lanț mai ales în momentul în care există sancțiuni contravenționale în legile administrative, nerespectate de funcționarii vinovați, în virtutea principiului qui potest majus potest minus, raportul cuprinzând și sesizarea autorităților ierarhice competențe și recomandările de rezolvare a prejudiciului și de evitare pentu viitor a încălcării drepturillor și libertăților cetățenilor.
22 Impactul asupra întreprinderilor mici și mijlocii
impact on small and medium-sized enterprises
It has the effect of social catharsis, of beneficial impact – Regenerating confidence in respecting the rights and freedoms of citizens and in the State, opening the appetite for investment and work for a small business from which to ensure their income for a decent living. It will thus be possible to regain confidence in the possibility of setting up SMEs, which will be able to operate without having to face the excessive acts of control of abusive officials, which go far beyond the scope of their duties.
Regenerating confidence in respecting the rights and freedoms of citizens and the state, opening the appetite for
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Advocate for Rights and Freedoms
ADL / A.R.S.A.L.D.L.O
Bucharest, str. Izvor no. 2-4, Sector 5
Lawyer ION GABRIEL ANGHELUS
tel 0721736034
40
4
investment and work for a small business from which to ensure their income for a decent living. It will thus be possible to regain confidence in the possibility of setting up SMEs, which will be able to operate without having to face the excessive acts of control of abusive officials, which go far beyond the scope of their duties.
The A.R.S.A.L.D.L.O. will ensure that the rights and freedoms of citizens are respected in relation to the structures of the administration, without interfering in their decisions, until the administration’s policies deviate and the complaints of citizens show and prove clear violations of rights and freedoms.
The very beneficial operation of the A.R.S.A.L.D.L.O. will change the mentalities in the society, so that the first effect will be to restore the trust of Romanians abroad in public institutions, who will be able to consider that the time has come to make things better in Romania as well. This positive signal may cause them to want to return home, giving up the fears that have dominated them in the past.
Impactul social
Beneficial changes in the democratic mentality are expected through the permanent and contagious biofeed-beack of an exemplary educational nature produced in society by the simple current activity of punishing the guilty and the contraventions by the fines applied by the A.R.S.A.L.D.L.O. through the Advocate for Rights and Freedoms.
It is indisputable that in every finding and sanctioning report one pays, and the other is satisfied that his rights have ceased to be infringed.
That is, there are both the culprits who have to pay and at the same time there are citizens who are satisfied that the aggression against their rights has stopped.
Through the work of ADL and A.R.S.A.L.D.L.O. The Romanian citizen is offered the opportunity to self-discipline, and Romania will be able to be better
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Bucharest, str. Izvor no. 2-4, Sector 5
Lawyer ION GABRIEL ANGHELUS
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4
managed, cleaner and with a more responsible and fairer social environment for all Romanians.
Impactul asupra mediului
nu este cazul
lte informa
ii
nu este cazul
Secţiunea
4-a Impactul financiar asupra bugetului general consolidat, atât pe termen scurt, pentru anul curent, cât şi pe termen lung (pe 5 ani) – mii lei
Proiectul de act normativ nu se referă la acest subiect
Indicator
Anul curent
Următorii 4 ani
Media pe 5 ani
1
2
3
4
5
6
7
2022
2023
2024
2025
2026
Modificări ale veniturilor bugetare, plus/minus, din care:
a) buget de stat, din acesta:
(i) impoz
t pe pro
it
(ii) impozit pe
ve
it
b) bugete loc
le:
(i) impozit pe profit
c) bugetul asigurărilor sociale de stat:
(i) contribuţii de asiqurări
Modificări ale cheltuielilor bugetare, plus/minus, din care:
a) buget de stat, din
cesta
(i) chelt
ieli d
personal
(ii) bunuri si servicii
b) bugete locale:
(i) cheltuieli d
personal
(ii) bunuri şi servicii
c) bugetul asigurărilor sociale de stat:
(i) cheltuieli de pers
nal
(ii) bunuri
i serv
cii
Impact financiar, plus/minus, din care:
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Bucharest, str. Izvor no. 2-4, Sector 5
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4
a) buget de stat
b) bugete locale
Propuneri pentru acoperirea creşterii cheltuielilor buqetare
Propuneri pentru a compensa reducerea veniturilor bugetare
Calcule detaliate privind fundamentarea modificărilor veniturilor
si/sau chel
uielilor bugetare
Alte informaţii
nu este cazul
Secţiunea a 5-a: Efectele proiectului de act normative asupra legislaţiei în vigoare
Măsuri normative necesare pentru aplicarea prevederilor proiectului de act normativ:
a) acte normative în vigoare ce vor fi modificate sau abrogate, ca urmare a intrării în vigoare a proiectului de act normativ;
b) acte normative ce urmează a fi elaborate în vederea implementării noilor dis
ozi
ii.
Amendment of Article 15 letter e) and f) of Law no. 35/1997 on the organization and functioning of the institution of the People’s Advocate
The Statute of the Lawyer of Rights and Freedoms ADL – is elaborated by A.R.S.A.L.D.L.O. and is endorsed by the Government and the Legal Committees of the Parliament.
1.1 Compatibilitatea proiectului de act normativ cu legislaţia în domeniul achiziţiilor publice
nu este cazul
Conformitatea proiectului de act normativ cu legislaţia comunitară în cazul proiectelor ce transpun prevederi comunitare
Conformity of the draft normative act with the community legislation in the case of projects transposing community provisions
It is compatible because the world and European legislation does not forbid the diversification and forms of the national ombudsman, the proof being that each country understands to use this institution adapted according to national needs.
Măsuri normative necesare aplicării directe a actelor normative comunita
e
nu este cazul
Hotărâri ale Curţii de Justiţie a Uniunii Europene
nu este cazul
Alte acte normative şi/sau documente internaţionale din care decurg angajamente
nu este cazul
Alte informaţii
nu este caz
l
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Romanian Supervisory Authority of
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ADL / A.R.S.A.L.D.L.O
Bucharest, str. Izvor no. 2-4, Sector 5
Lawyer ION GABRIEL ANGHELUS
tel 0721736034
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4
Secţiunea a 6-a Consultările efectuate în vederea e
aborării pr
i
ctului de act normative
Informaţii privind procesul de consultare cu organizaţii neguvernamentale, institute de cercetare şi alte organisme implicate
Fundamentarea alegerii organizaţiilor cu care a avut loc consultarea, pr
cum şi a modului în care activitatea acestor organizaţii este
legată de obiectul proiectului de act normative
In derulare
Consultările organizate cu autorităţile administraţiei publice locale, în situaţia în care proiectul de act normativ are ca obiect activităţi ale acestor autorităţi, în condiţiile Hotărârii Guvernului nr. 521/2005 privind procedura de consultare a structurilor asociative ale autorităţilor administraţiei publice locale la elaborarea proiectelor de acte normative
nu este cazul
Consultările desfăşurate în cadrul consiliilor interministeriale, în conformitate cu prevederile Hotărârii Guvernului nr. 750/2005 privind c
nstituirea consiliilor interministeriale permanente
nu este cazul
Informaţii privind avizarea de către:
a) Consiliul Legislativ
b) Consiliul Suprem de Apărare a Ţării
c) Consiliul Economic şi Social
d) Consiliul Concurenţei
e) Curtea de Co
turi
nu este cazul
Alte informaţii
nu este cazul
Secţiunea a 7-a Activităţi de informare publică privind elaborarea si implementarea proiectului de act normative
Informarea societăţii civile cu privire la necesitatea elaborării proiectului de act normative
In derulare.
Informarea societăţii civile cu privire la eventualul impact asupra mediului în urma implementării proiectului de act normativ, precum şi efectele asupra sănătăţii şi securităţii cetăţenilor sau diversităţii biologice
nu es
e cazul
Alte informaţii
nu este cazul
Secţiunea a 8-a Măsuri de implementare
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Măsurile de punere în aplicare a proiectului de act normativ de către autorităţile administraţiei publice centrale şi/sau locale – înfiinţarea unor noi organisme sau extinderea competentelor instituţiilor existente
nu este cazul
Alte informaţii
nu este cazul
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Romanian Supervisory Authority of
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ADL / A.R.S.A.L.D.L.O
Bucharest, str. Izvor no. 2-4, Sector 5
Lawyer ION GABRIEL ANGHELUS
tel 0721736034
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4
extract
OMBUDSMAN
Brief history of the legal institution: beginnings, development in different legal systems
The term ombudsman, denoting a public complaints investigator, came into English from Swedish, more precisely from the form umbothsmathr, from the old Nordic dialect (where it means the man who administers, composed of um – about and both – command), being used for official exclusives in 19603; we also note, as a possible root, the Celtic word ambactos, meaning servant, messenger. In 1241, the Danes practiced the form of ombudsman (designating a royal civil servant in a territorial unit), who later became an ombudsman; after 1552, similar forms of the word are found in other Nordics, such as Icelanders and Norwegians. New Zealand was the first English-speaking state to assimilate the term, in 1962, followed, after 4 years, by Great Britain.
The ancillary semantic changes to the term ombudsman have been generally limited since its inception in eighteenth-century Sweden until its takeover by world governments, including some in the United States, in the early 1960s. , the ombudsman was a public figure, an official who investigated and, in some cases, prosecuted violations of rights, freedoms, cases of excess of duties by other officials of the central or local administration. The term ombudsman is also mentioned in the primary legislation of the old Germanic tribes, who resorted to two types of punishment in the case of committing offenses against the interests of the community: either the community declared the offender guilty, in which case anyone could he kills, on the grounds that it satisfies the will of the community in this way — whether, in time, the culprit’s family was obliged to pay the victim’s family a sum, as compensation or a fine. Since its collection directly by a member of one of the families involved would inevitably have led to new violence, a neutral person has been appointed for this purpose.
This attribution explains why, in the old Germanic language, man-buds-man meant the one who collected the fine (man – about, bud – messenger who collects the fine) .4 In medieval Swedish law, Frostathing (a term synonymous with ombudsman) the agent who had the power to act for another, over time, more precisely in modern Swedish, the term erasing its meanings, including, for example, ombudsmen for the press, trade unions, consumers, but also the parliamentary ombudsman, appointed to he supervised the observance of the laws in the administration, according to the Swedish Constitution of 1809.
The Swedish Ombudsman, as a representative of the Riksdag, gives concrete expression to his personal conscience, in a similar way to the imposition of fines by Germanic tribes, who thus expressed their own conscience (Volkgeist).
However, by recursively analyzing (for reasons of textual economy) the field of complaint systems against irregularities generated by governments, we notice that they appear long before the appearance of the
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ombudsman; thus, the ancient kings of Egypt had appointed to their court persons charged with receiving and resolving such complaints; Moses himself, in order to go down in history, had appointed those responsible for dealing with the complaints of the Jews; also, during the Roman Empire, the activities of the administration were overseen by two censors, who received complaints about defective activities.
Researchers in the field of ombudsman have acknowledged that the first ombudsman was named after King Charles XII of Sweden, who became king in 1697 at the age of 15. In the autumn of 1700, the victory over the army of Tsar Peter turned him into a hero of the time, becoming a character in a famous biography written by Voltaire. However, in 1709, he was defeated by Tsar Peter at the Battle of the Vorskla River in present-day Ukraine, which affected his created halo and later led to the founding of the world’s first Ombudsman institution. Thus, after the battle, Charles settled in Bender, in today’s Moldova, and for 5 years became the more or less desirable guest of the sultan. The paradox of this fact was that Sweden, a great European power at the time, was ruled from a distance in this region until the autumn of 1714, when Charles decided to return to his kingdom. on a spectacular 2-week trip to Straslund in Pomerania on the Baltic Sea, a Swedish city. However, a year before this trip, in October 1713, to the castle of Timurtasch, Charles signed an ordinance laying the foundations of the King’s High Ombudsman.
3 See Ioan Ceterchi, The Institution of the Ombudsman in Sweden, “Romanian Law Studies” Magazine, Publishing House
Romanian Academy, Bucharest, year 3, no. 1-2, 1991; Constantin Brânzan, People’s Advocate. An institution at
the disposition of the citizen, Legal Publishing House, Bucharest, 2001, p. 72
4 See Monica Vlad, Ombudsman in Comparative Law, Servo-Sat Publishing House, Arad, 1999, p. 8.
5 Ibidem
In the second half of the twentieth century, the spread of ombudsman-type institutions was favored by a number of politico-administrative factors, in line with the growing complexity of economic and social life, which had a negative effect on the development of relations between citizens and the administration, the cooperation between them not being at all easy.9
Thus, the obvious increase of the tasks of the legislative power, but also of the public administration, made difficult the relations between citizens and administration, the consequence being the distrust, reluctance and resignation of the former, who began to show indifference to administrative structures, excessively bureaucratic and formalized.
Against this socio-administrative background, tensions were predictable and solutions forced public administration authorities to increase interest in eliminating the dysfunctions in the administration-citizen relations, most of these conflicts being favored by inducing, in the collective consciousness, an alleged subordination of the citizen to the administrative authority.
In this context, many states have recognized that the traditional institutions of legal protection of citizens and control of public administration authorities are no longer able to resolve these conflicts, requiring the design and institutionalization of new and effective tools to join those already in place. existing.10
At the end of the First World War, but especially of the Second World War, in the 1950s, in most European countries, there was a need to introduce non-contentious means of resolving human rights violations into national legal systems, thus substantiating the elements of the Ombudsman’s institution, starting from the Swedish model of the ombudsman.11
Against this common background of rules of organization and operation, the ombudsman knows particular nuances, both in terms of nomenclature12 and duties. The Ombudsman is met under various terms, such as: The European Ombudsman (in the European Union system); Ombudsman of the Republic (France); Ombudsman (Spain); Provider of Justice (Portugal); People’s Advocate (Romania) 13 etc. We also register the name of Parliamentary Prosecutor, Public Defender, Commissioner
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for Human Rights14, Advocate General, Parliamentary Commissioner, State Comptroller, etc. (We note in general terms that there is a Commission of Inquiry in Zambia,
and in Israel a State Comptroller, etc.). Some states even have an express name for female replacements (Ombudswoman, Ombudsfrau, Mediatrice). In Romania, the People’s Advocate institution, nominated by art. 58 of the Constitution, falls within these classical and traditional dimensions of the European Ombudsman.
Its unique appearance in the politico-state mechanism is the effect of the intention to reply to the insufficiency of the system of jurisdictional guarantees in terms of administrative action, its role being, separately from political action, to guarantee the legality of public administration activity, following, as finality, citizens to have another institutional way to defend their rights and interests.15
6 See Monica Vlad, op. cit, pp. 11.
7 Ibidem, pp. 12.
8See Corneliu Manda et al., The Science of Administration. University course. 3rd Edition, Univers juridic Publishing House,
2008, which describes the institution of the Ombudsman in Canada, Latin America, Germany.
9 See Drăgan Silviu Cătălin, Comparative study between the civil legal act and the administrative legal act, thesis
doctorate, University of Craiova, 2004, pp. 109-110.
10 See Cezar Corneliu Manda, Ovidiu Predescu, Ion Popescu Slăniceanu, Ombudsman. The fundamental institution
of the rule of law, Lumina Lex Publishing House, Bucharest, 1997, p. 135.
s a person, the ombudsman is appointed based primarily on his or her moral qualities, the appreciation of which allows for some nuance. Thus, the ombudsman must be able to perceive the multiple motivations of human action in general, and not to impose an obtuse view of „pure virtue”; he must be a person who is characterized by fairness and objectivity16 and who knows how to listen to the complaints that are addressed to him.
In most countries of the world, the main instrument of the ombudsman is his authority, the power to reprimand and criticize, the major support of public opinion, the receptivity and support of all public authorities.17 We also point out that his moral authority is based on the absence of partisan ties. with any political party or trade union.18
The ombudsman’s power is „reduced” to his authority. The experience of Sweden and the Scandinavian countries in general shows that the assertion that the Ombudsman is an independent institution, outside the administrative hierarchy he controls, must be perceived as a reference to its essential feature, independence.
A third country to set up an ombudsman’s office was Norway, which founded the Military Ombudsman in 1952, and later set up a General Ombudsman. The model was taken over by Denmark in 1955, when an ombudsman was appointed who had powers and responsibilities generally different from the model, including the fact that he had no jurisdiction over the judiciary, that he had no power of attorney. prosecute government officials for inappropriate or abusive behavior. Despite these differences between the ombudsman’s offices, it can be seen that, as they were in 1960, they all had similar skills and practices, respectively they could receive and investigate any written complaint that could be sent in a sealed envelope without reference to any other higher institution could initiate investigations and carry out inspections without first receiving a complaint; In this regard, they could request reports from any state structure, with the power to request official files. In general, we note that they are appointed by the parliament, are independent of the executive and present an annual report, being able to make critical comments on some activities or actions of the administration representatives, in their content identifying the issues they considered urgent.
By the end of the first half of the last century, the ombudsman had become a practice limited to the Scandinavian countries, where it existed only as part of the government. However, after the establishment of the Military Ombudsman of the Federal Republic of Germany in 1957 and the National Ombudsman of New Zealand in 1962, the idea of setting up an Ombudsman-type institution spread rapidly, between 1960 and 1970, to other countries, cities and other bodies. including Canadian provinces and American states.
One of the first attempts to introduce the concept of ombudsman in America was that of Professor Kenneth Culp Davis19, a specialist in administrative law, motivated by the fact that his own field analysis of a solution to solve problems in administration provided him with a clear model of the ombudsman. Scandinavia.
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The notion and concept of ombudsman spread throughout the twentieth century, the constitutional idea of an independent, easily accessible and balanced control of public administration, through people with a loyal reputation being today obviously linked to the principles of democracy and of the rule of law, since it is an essential contribution to the effectiveness of these principles.
12 Countries such as Antigua and Bermuda, Belize, Botswana, Canada, Malawi, Lesotho, Malta, Seychelles, Trinidad and Tobago etc. they officially named their institution after the classical model. Other groups of countries use specific and different names, deriving from the specialization of the institution; for example, the Ombudsman (Albania), the Commissioner for Freedom of Information and the Protection of the Right to Privacy (Canada), the Ombudsman (Argentina, Colombia, Ecuador,
Paraguay, Spain), the Office of the Public Prosecutor (Chile), the Ombudsman of the Republic (France and French-speaking Africa),
Commissioner for Data Protection (Germany), Committee on Human Rights and Administrative Justice (Ghana),
Human Rights Attorney (Guatemala), Parliamentary Commissioner for Civil Rights (Hungary), Anti-Corruption Ombudsman (India), Public Defender (Jamaica), Parliamentary Commissioner (St Lucia), Police Complaints Authority (Canada, Trinidad and Tobago).
13See Irina Moroianu Zlătescu, People’s Advocate Institution, in Human Rights Magazine no. 1/1992, p. 3.
14 See Alina Dinu, Ombudsman of the Republic in France, RDP 1/2008, p. 73
15 See Corneliu Manda et al., Op. cit., pp. 138
16 See Monica Vlad, op.cit., P. 14.
17 See Gheorghe Uglean, Constitutional Law and Political Institutions, Vol. II, Romania of Tomorrow Foundation Publishing House,
Bucharest, 2007, p. 22. Taking the expression of Erich Fromm, from Fear of Freedom, Teora Publishing House, 1998, p. 67, he admits that there is a fundamental difference between having authority and being an authority. He who is, in himself, an authority, will have authority, quite naturally. On the contrary, the one who, having authority, cannot impose it through his personality, is reduced to the formal aspect of this authority.
18 Corneliu Manda et al., Op cit., P. 43.
The dissolution of totalitarian regimes in the states of Central and Eastern Europe, as well as in Portugal, Spain, Greece, and the new process of democratization were key moments in the adoption of the idea of ombudsman. The Ombudsman’s institution also saw new stages in its evolution, as a reaction to the introduction of new states in the Council of Europe, by combining the two concepts of the rule of law and human rights. At present, 26 of the 28 EU Member States have set up national ombudsman-type institutions. In the other two states there are such institutions at the regional level.
Even the European Union has set up an institution specializing in the promotion and protection of human rights, the European Ombudsman.
At Council of Europe level, 45 of the 47 Member States have set up national or at least regional ombudsmen. On an international scale, we estimate that 40.62% of the member states of the International Institute of Ombudsmen are members of the Council of Europe.
Because each country has its own political and legal system, the ombudsman’s institution differs in nuance, thus imposing a set of criteria for classifying and describing the function. A first criterion for classifying the ombudsman institution is the authority to which he is appointed20.
This category includes two types of ombudsmen – the public and the private ombudsman, respectively.
Public ombudsmen are appointed by a public authority, but there are also private ombudsmen21 who are appointed by banking companies, the management of universities or enterprises, media ombudsmen, and so on.
The peculiarity of private ombudsmen, however, is that they do not have a legal nature, but carry out a mediation activity between the two contracting parties.
Instead, public ombudsmen being appointed by either the legislature or the executive have legal power. An essential factor in distinguishing an ombudsman as a Member of Parliament or an executive is the institution’s sources of funding, as the budget for the ombudsman does not have to be allocated by the authorities, but in the case of the parliamentary ombudsman, this funding is Parliament.
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A second essential criterion in the classification of ombudsmen is the number of persons who make up the institution22.
In relation to this, the ombudsman’s institution can be unipersonal or multi-personal. The classical institution of the ombudsman is unipersonal, as it was originally conceived in Sweden and adopted in other states.
Whether the law provides the ombudsman with the assistance of one or more deputies, collaborators or delegates, or not, the institution of the ombudsman, in this form, is unipersonal.
The institution of the multi-person ombudsman does not involve a large or small number of employees, just as in the states where a parliamentary ombudsman and several ombudsmen working in certain fields operate, we identify different institutions, not a form of multi-person ombudsman.
A multi-person institution is the institution of Justice ombudsman, consisting of four ombudsmen, elected for a period of 4 years: one of them is responsible for the administration of the institution and decides on the main direction of its activity. specialization of his skills.
In this respect, there are ombudsmen with general specializations and ombudsmen with express specializations23. In Sweden, for example, the Riksdag24 designates four ombudsmen who are empowered to deal with complaints from citizens whose rights have been violated by officials, as well as ombudsmen with special powers and competencies, which we will record below.
1.2. Generic variants of the notion of Ombudsman
In the broadest sense, the Ombudsman mechanism, both in the public and in the private sector, is generated to resolve the dysfunctions or misunderstandings that arise between a provider of goods and services (government, institution, industry, company, etc.) and the beneficiary of those goods / services (member of the company, customer, etc.) or an employee of the supplier25. Although every adaptation of the public sector ombudsman institution leads to its alterations, each variant is an attempt by the government, an institution or a company to resolve the legal and administrative problems encountered by members of the company, employees or clients in their conflicts with private sector or government bureaucracy.
19 See Kenneth Culp Davis, Administrative Law, St. Paul: Publishing Company, 1951, p. 14 ff.
20 Ibidem, pp. 61.
21 Examples of private ombudsmen: Ohio / Princetown / New Jersey University Advocate; organization
News Ombudsmen, Enterprise Ombudsmen from companies like General Motors, Ford, American Airline;
Constantin Brânzan, People’s Advocate. An institution available to the citizen, Legal Publishing House, Bucharest, 2001,
Functional radiography of the public sector ombudsman, as well as of the type mechanisms
The private sector ombudsman knows the following:
1) The public sector legislative ombudsman is:
a) Established by a national, subnational or municipal government;
b) Appointed and accountable to the legislative segment of the government;
c) Consecrated by constitutional provisions and / or legislation;
d) With jurisdiction over the legality and fairness of the government administration in a number
large number of state departments, agencies and corporations.
2) The public sector executive ombudsman is:
a) Established by a national, subnational or municipal government;
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b) Appointed by the executive branch of the government and accountable to the executive and / or legislative branch;
c) Consecrated by constitutional provisions, legislation or an executive act;
d) With jurisdiction over the legality and fairness of government administration in a number of state departments, agencies and corporations.
3) Hybrid public sector ombudsman (for human rights, anti – corruption, code
on civil service, security, etc.) is:
a) Established by a national, subnational or municipal government;
b) Appointed and accountable to the executive or legislative branch of government;
c) Consecrated by constitutional provisions, legislation or executive acts;
d) Express mandate for the analysis of complaints regarding human rights, corruption, etc.
against government administration, in addition to monitoring fairness and legality
general administration;
e) With jurisdiction over several state departments, agencies and corporations;
f) Some human rights ombudsmen may also receive complaints about human rights violations in the private sector.
4) The public sector legislative or executive ombudsman with objective jurisdiction
Limited (single sector, single purpose or specialty ombudsman) is:
a) Established by a national, subnational or municipal government;
b) Appointed and accountable to the executive and / or legislative branch of government;
c) Consecrated by constitutional provisions, legislation or executive acts;
d) It has jurisdiction over only one branch in the field of respect for human rights – the rights of the child, the prevention of discrimination (based on gender, ethnic minorities, disabilities), official language, privacy, freedom of information, police, defense forces.
5) The executive organizational ombudsman created by government departments, state corporations or agencies, for the resolution of internal and / or external complaints is:
a) Established by a government department, agency or state corporation at a national level
or subnational government;
b) Appointed and accountable to the Minister, the Head of Department or another official;
c) Normally enshrined in an internal instrument of the government department and
occasionally by law;
d) The grievance mechanism is (i) external: for members of the public who have come in contact with
department and / or (ii) internal: for employees of the department or agency (ombudsman at work).
6) The hybrid public / private sector ombudsman for a particular industry or sector created by law to deal with customer complaints is:
a) Established by a national or subnational government;
b) Appointed and accountable to the executive or legislative branch of the government or to a separate legal entity;
c) Consecrated by legislation;
d) With jurisdiction over a single service sector – banks, a single industry or financial institution, legal services.
22 Ibidem. pp. 81.
23 See Ioan Muraru, People’s Advocate-Ombudsman Institution, Ch. Beck Publishing House, Bucharest, 2004, p.370
24 The Riksdag is the Swedish name for the Parliament.
25 See M.A. Marshall and L.C. Reif, The Ombudsman: Maladministration and Alternative Dispute Resolution
(1995) 34 Alberta Law Rev, pp. 225-238.
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7) The self-regulatory ombudsman for a particular industry or service sector created by that industry or service sector to deal with customer complaints is:
a) The Ombudsman for a particular industry or service sector established by that industry or service sector acting collectively (banks, insurance companies);
b) Established by an industry agreement, often by the creation of an umbrella legal entity (non-profit corporations, foundations, commissions) and funded by industry;
c) Must also be appointed to report to an umbrella organization body that contains a number, preferably a majority, of non-industry members (the board of directors of the corporation or foundation);
d) Take complaints from industry / service sector members or customers participating in the scheme.
8) The organizational ombudsman created by private sector institutions and corporations is:
a) Established by an institution or company, newspaper or corporation offering goods / services, university, college;
b) Appointed and accountable to the executive or administration of the institution / company (audit committee, board of directors, chief executive, editor-in-chief);
c) Consecrated by legal instruments or by elements of internal policy a
institution / company;
d) With jurisdiction over internal or external complaints from the workplace submitted by
students, clients, etc. against the institution or company.
9) The international organization of the Ombudsman at work is:
a) Established by an international organization;
b) Established according to the internal instrument of the international organization;
c) Appointed and accountable to the Secretary-General or Deputy Secretary-General of the International Organization;
d) It presents an internal mechanism for receiving complaints from the employees of the international organization, on issues related to employment.
10) The classical ombudsman at the level of international or supranational government26 is:
a) Established by an international or supranational organization;
b) Named and responsible for the legislative branch of the international organization;
c) Consecrated by a constitutive treaty and / or an internal and formal legal instrument of the international organization;
d) Receives complaints from people outside the organization who have been affected by the activities
organization (and may also receive complaints from the organization’s employees).
1.3. The public sector ombudsman with expertise in certain areas
In the public sector, there are ombudsmen with competence in preventing discrimination and legal opportunities, only in a single sector / field, such as police, armed forces, correctional facilities, health services, children, protection of minorities, information, the right to privacy , the official language and consumer issues. They are called specialized ombudsmen, acting in a single sector or purpose. A specialized ombudsman may be appointed by the legislature or the executive. For example, even in Sweden, which has a long tradition of
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establishing the parliamentary ombudsman, specialized ombudsmen are appointed by the executive, with different legal powers27.
In general, some specialized ombudsmen do not have the power to investigate, while others do
these powers, some of which can make important decisions or even impose sanctions.
Single-purpose ombudsmen often have other functions, such as education or supporting legislative reform. If a general ombudsman acts in the same field as a specialized ombudsman, the former may have the power to investigate the latter. Single-purpose ombudsmen on a specific subject / field can only act on one or two government departments. Thus, it is necessary that they always be vigilant, in order to avoid the organizational blockage that would result from the close association with the target audience and the organization that are subjects of their jurisdiction.
An ombudsman working in a single sector must be differentiated from the situation where an ombudsman with general competencies is appointed by statute or decides, unilaterally, to appoint an ombudsman deputy within the institution, who is responsible for complaints coming from a single sector. . For example, the Defensor del Pueblo regional of Andalusia, Spain, is empowered by a regional statute for the protection of children and young people to appoint a deputy
Defensor del Menor – Defender of minors, who is responsible for receiving complaints against minors. In contrast, a specialized ombudsman has his own legal framework that presents the ombudsman’s powers and establishes the institution as an independent entity.
26 The only example that can be mentioned here is the European Ombudsman of the European Union
27 See P. Nobel, The Swedish Ombudsman against ethnic discrimination in F. Matscher, ed. Ombudsman in
Europe – The institution, Kehl: N.P. Engel, 1994.
Pros and cons of ombudsman diversification
There are arguments for and against establishing ombudsmen for a single sector, as opposed to
a full-fledged national (or provincial, etc.) ombudsman.
The establishment of ombudsman-type institutions for a single sector is a demonstration of the government’s serious intention to optimize the protection of those falling within that area. Establishing an ombudsman for a single sector also requires specialized expertise in that area.
Ombudsmen in a single sector may have a more limited range of functions than a general ombudsman, specifically if specialized ombudsmen face human rights issues. However, some general ombudsmen have criticized the intention to establish ombudsmen in a single sector in their jurisdiction, arguing that this will affect their institution or cause confusion among the population28
Another argument made by ombudsmen was that in a time of transition and financial insecurity, it would be more rational to focus all available resources on the existing offices of national ombudsmen and, where appropriate, to appoint deputies to deals with specific issues29.
However, single-sector Ombudsman institutions are proliferating, especially in developed countries, with financial resources to support more than one ombudsman.
In opposition, a growing number of Latin American, European, and African countries call themselves hybrid human rights ombudsmen and are more likely to set up deputies or departments that focus on fundamental rights issues.
In the area of human rights protection, there are ombudsmen for a single sector, with jurisdiction over discrimination (based on gender, disability, sexual orientation, etc.), protection of minorities and the rights and needs of
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children30. Other ombudsmen for a single sector may also play a role in protecting human rights, as issues related to them may be closely linked to complaints, such as the ombudsman for the army, police, freedom of information and security. the right to privacy, medical services. Although ombudsmen for a single sector working in the field of human rights can often be identified at the national level, we find examples of this at the sub-national or municipal level of government.
Regardless of the pros or cons in December 2020, the UN General Assembly settled definitively by pleading by UN resolution EXTENSION OF EXISTING OMBUDSMAN-INSTITUTIONS OR CREATION OF OTHER OMBUDSMAN-INSTITUTIONS IN ADDITION TO OTHER EXISTING ones, in order to oversee the enforcement of laws
The General Assembly of the United Nations, by Resolution 75/186 adopted by the General Assembly on 16 December 2020 on the role of the institutions of the Ombudsman and the Ombudsman in promoting and protecting human rights, good governance and the rule of law, established that:
Extract Resolution 75/186/16 December 2020 UN General Assembly
„Strongly encourages Member States to:
a) Consider the establishment or consolidation of independent and autonomous Ombudsman and Ombudsman institutions, at national level and, where appropriate, at regional or local level, in accordance with the principles of protection and promotion of the Ombudsman’s institution (Venice Principles), or national human rights institutions, or with them;
b) Creating the necessary constitutional and legislative framework for the institutions of the Ombudsman and the Ombudsman, as well as providing state support and protection, adequate financial allocation for staff and other budgetary needs, a broad mandate covering all public services, they need to select the issues, to resolve cases of maladministration, to seriously investigate and communicate the results, as well as all other appropriate means to ensure the efficient and independent exercise of their mandate and to strengthen the legitimacy and credibility of their actions. mechanisms for the promotion and protection of human rights, the promotion of good governance and the rule of law;
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(d) Clearly establish the mandate of the Ombudsman and Ombudsman institutions, where they exist, to enable the prevention and proper resolution of any inequities and cases of maladministration and the promotion and protection of human rights, and to report on their activities as appropriate , both in general and on specific issues;
(e) Take steps to ensure that there is adequate protection for the institutions of the Ombudsman and the Ombudsman, where available, against coercion, reprisals, intimidation or threats, including from other authorities, and that such acts are promptly and promptly investigated. appropriate and the perpetrators are held accountable;
(f) Pay due attention to the principles relating to the status of national institutions for the promotion and protection of human rights (Paris Principles) 9 when assigning to the Ombudsman and the Ombudsman the role of national prevention mechanism and national monitoring mechanism;
(g) Develop and carry out, as appropriate, outreach activities at national level, in collaboration with all relevant stakeholders, to raise awareness of the important role of the institutions of the Ombudsman and the Ombudsman;
(h) To share and exchange good practice in the work and operation of the institutions of the Ombudsman and the Ombudsman, in collaboration with the Office of the United Nations High Commissioner for Human Rights, the International Ombudsman Institute and other international organizations of the Ombudsman; and regional;
Recognizes that, in accordance with the Vienna Declaration and the Program of Action, it is the right of each State to choose the framework of national institutions, including the Ombudsman and the Ombudsman, which is best suited to its specific needs at national level, to promote human rights in accordance with international human rights instruments;
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1.3.2. The Ombudsman as a mechanism for democratic accountability
Classical and hybrid ombudsman-type institutions can act as mechanisms of democratic accountability, thus promoting such development in a state, and can be considered institutions with horizontal accountability in democratic governments. Since the 1990s, the concept of good governance has been adopted by international organizations and assisting states as a standard that should be met by assisting states. The Human Rights Ombudsman enhances the horizontal legal, constitutional and administrative responsibility of the government by impartially and objectively analyzing the conduct of public administration, by recommending changes in legislation, policy or practice when illegal or improper administration is discovered; it reports the results of the legislature and the public, in other countries with more extensive powers, such as legal action. Ombudsmen whose object is anti-corruption and the code of the management function may provide a legal, administrative and
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financial responsibility with interest for the misuse of public funds, for conflicts of interest, fraud, etc. Different ombudsman institutions have different purposes.
Ombudsman-type institutions allow citizens to lodge complaints in cases where the government has not acted lawfully or unjustly, resulting in an impartial investigation of the conduct and may be criticized for its actions or, as the case may be, and stronger consequences.
The role of ombudsmen in democratic governance, including their conceptualization as mechanisms for increasing vertical and horizontal accountability, interferes with the concept of good governance.
Good governance often targets those developing countries that need technical assistance, or those states that are in a post-conflict, peace-building phase. In international development circles, the notion of good governance has resulted from the limitations of economic growth in structural adjustment programs, the need to reform communist states, and the success of East Asian states in supporting economic growth31. The concept of good governance was adopted by the World Bank in 1989 to describe the attempt of a political power to solve the problems of a nation, and good governance is governed by an efficient public service, a reliable legal system, and a responsible administration. . In 1992, the World Bank defined good governance as the way power is exercised in the management of a developing country’s economic and social resources. Reality shows that there is an obvious connection between democracy and good governance, the first being a premise of the extended exercise of the concept of good governance. The protection of human rights is often included in the concept of good governance33, which is treated in either ambiguous or vague ways as one of the means needed to improve development.
However, from a moral and legal point of view, human rights must be considered as an essential and distinct issue for any state, regardless of its stage of development. The role of the ombudsman in building good governance is explicitly recognized at the national level, in several states, in constitutions and in the laws concerning hybrid ombudsmen. Thus, in Bosnia and Herzegovina, new legislation on the national human rights ombudsman includes the promotion of good governance as one of the institution’s objectives34. In Uganda, the 1995 Constitution and the Government Inspectorate Act reconfigure the inspectorate as an ombudsman with anti-corruption functions and the implementation of the code of management functions. Classic, hybrid, or specialized ombudsmen in a state can promote good administration. As Bience Gawanas35, the former ombudsman of Namibia, put it,
The role of the ombudsman is to take on a larger dimension by ensuring that he or she is expected to defend the right of people to good governance and to be a defender of human and civil rights. Classical and hybrid ombudsmen support the construction of good governance in public administration through the work they do to improve the basics, such as public participation in government, transparency of public administration, accountability of public authorities to the people and fairness in administration.
Public participation involves asking the public to get involved, expressing opinions on the proposed government actions, as well as expressing reactions to the government actions already taken. Effective participation in governance involves, inter alia, access to government courts and institutions, information and the existence of agencies, where members of the public can lodge and obtain complaints against the government. Transparency, in the context of public administration, includes: understanding
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the process by which public bodies make transparent decisions, the reasons for such decisions, and the public availability of the information on which those decisions are based.
A transparent government and its administration provide optimal public information on their own actions, through means such as publications, access to laws and procedural mechanisms for reviewing government behavior, including legal review and various horizontal accountability mechanisms.
Liability can be accepted as the responsibility for the performance of an institution, tasks or duties, not being a legal concept, in its entirety, but referring to standards of conduct of an ethical, institutional and legal nature. Accountability involves establishing appropriate ways or forms of accountability between the government and the public, rules for a fair procedure, communicating decisions and the reasons on which a decision is based.
32 See D. Gills, Human Rights, Democracy and Development, Montreal: International Center for Human Rights and Democratic Development, 1993.
33 The UN Secretary-General has stated that in recent years, human rights have begun to be perceived as an element
part of good governance, in an increasing way, in the Secretary-General’s Annual Report on the work of the
organization, 1997.
34 Law on the human rights ombudsman of Bosnia and Herzegovina, Official Gazette BaH, 32/2000 and 19/2002
35See Bience Gawanas, Our Common Work: Fairness, Dignity and Human Rights, International Ombudsman
Institute, University of Alberta, 2000.
Institution of the People’s Advocate in Romania
Although provided in the Romanian Constitution since 1991, Law no. 35/1997 regarding the organization and functioning of the People’s Advocate institution58, which establishes the limits within which it can exercise its attributions, as provided in art. 56 of the Constitution, was adopted, with a delay of more than 5 years, by the Chamber of Deputies and the Senate in a joint sitting, on February 21, 199759. Subsequently, in order to establish the organizational structure of the People’s Advocate institution, on 29 October 1997, the Regulation on the organization and functioning of the People’s Advocate institution was approved by the Permanent Bureau of the Senate60.
Following the adoption and publication of the normative acts necessary for the functioning of the institution, the organization and, respectively, the beginning of the activity of the institution was started; However, due to the lack of an adequate space for a good functioning, the institution was able to start its activity, in suitable conditions, only in January 1999.
Thus, it is provided that the institution aims to protect the rights and freedoms of citizens in their relations with public authorities.
The People’s Advocate is not a substitute for public authorities, or, it is known that this type of litigation is given to the competent authority for settlement. Also, in the spirit of the same article, the People’s Advocate cannot carry out criminal prosecution acts, because these are the field of settlement by the criminal investigation bodies from the Ministry of Interior or the Public Ministry, as the case may be.
However, according to art. 18 of the law, in situations where the People’s Advocate finds that the resolution of the request with which he was notified is within the competence of the Public Ministry, is pending before a court or has as object judicial errors, he will notify the Attorney General or the Superior
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Romanian Supervisory Authority of
Enforcement of Laws, Human Rights and Freedoms Bucharest March 8, 2022
Advocate for Rights and Freedoms
ADL / A.R.S.A.L.D.L.O
Bucharest, str. Izvor no. 2-4, Sector 5
Lawyer ION GABRIEL ANGHELUS
tel 0721736034
57
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Council of The magistrates, who are obliged to communicate the conclusions reached and the measures taken. Therefore, even if the People’s Advocate cannot replace the public authorities, according to art. 2 para. (2) of the law, however, it has the possibility to notify the competent authorities, which are obliged to communicate the conclusions reached and the measures taken.
In the same sense, the provision of art. 25 para. (2), which provides that if
The People’s Advocate finds, during the investigations, gaps in legislation or serious cases of corruption or non-compliance with the country’s laws, he will present a report, containing the findings, to the presidents of the two chambers of Parliament or, as the case may be, to the prime minister.
Even in these special situations, in which the People’s Advocate cannot be substituted, according to art. 2 para. (2) of the law, to the competent public authorities to solve such deeds, he has, however, the obligation to notify them to the presidents of the two chambers of the Parliament or to the prime minister, as the case may be.
However, in order to properly resolve the requests with which he was referred, the People’s Advocate has the possibility to conduct his own investigations, to request from the public administration authorities any information or documents necessary for the investigation, to hear and take statements from the heads of public administration authorities and any official who can provide the information necessary to resolve the request (art. 21 para. (1) of the law).
Also, for the same purpose, the People’s Advocate has access to the secret documents held by the public authorities, insofar as he considers them necessary for the settlement of the complaints addressed to him, with the legal and subsidiary obligation not to disclose or make public the information or secret documents. to which he had access, the obligation extending to the deputies and staff of the institution (art. 19 of the law).
In conclusion, even if the People’s Advocate, in his activity, does not replace the public authorities, he still has at his disposal extensive possibilities for conducting his own investigations, in order to legally resolve the complaints with which he was notified, but it is necessary that they falls within the sphere of competence provided by the law on the organization and functioning of the institution.
Although the People’s Advocate institution aims to defend the rights and freedoms of citizens in their relations with public authorities (from which it could be deduced that the competence of citizens’ relations with public authorities in their entirety falls within the competence), by art. 15 para. (2) and (4), the sphere of competence of the institution is limited, excluding anonymous complaints or which have as object violations of civil rights older than one year from the date on which the person became aware of the facts that are the subject complaints, as well as petitions concerning certain public authorities.
Thus, art. 14 para. (2) provides that anonymous complaints or those against violations of civil rights older than one year from the date on which the person concerned became aware of the facts which are the subject of the complaint may not be taken into account.
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Romanian Supervisory Authority of
Enforcement of Laws, Human Rights and Freedoms Bucharest March 8, 2022
Advocate for Rights and Freedoms
ADL / A.R.S.A.L.D.L.O
Bucharest, str. Izvor no. 2-4, Sector 5
Lawyer ION GABRIEL ANGHELUS
tel 0721736034
58
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If, in the case of anonymous complaints, it is normal for them not to be taken into account in respect of petitions concerning violations of civil rights older than one year, we consider that the restriction adopted by the legislator is severe, given that the People’s Advocate institution is a newly created institution in Romania and the citizens do not know very well what its competencies are.
Also, art. 15 para. (4) provides that the People’s Advocate is not the subject of the institution and the requests regarding the acts issued by the Chamber of Deputies, the Senate or the Parliament, the acts and deeds of the deputies and senators, of the President of Romania and the Government, as well as of the Constitutional Court , of the President of the Legislative Council and of the judicial authority. Therefore, from the general rule, established by art. 1 of Law no. 35/1997, by which the institution of the People’s Advocate aims at defending the rights and freedoms of the citizens in their relations with the public authorities, through art. 15 para. (4), the exception to this rule is established, namely, certain limited public authorities, such as the Parliament with the two chambers, the Senate and the Chamber of Deputies, the Government, the Judicial Authority and the Constitutional Court, are removed from the sphere of competence conferred on the institution. The President of Romania and the President of the Legislative Council. However, the same paragraph also includes the exception to its provisions, respectively the laws and ordinances, which may be the object of the People’s Advocate institution.
So, following the analysis of the above text, it can be observed that they remain in the sphere of competence of the People’s Advocate, as can be deduced from the text of art. 21 para. (2), only the public administration authorities. At the same time, it should be mentioned that, within the meaning of the text of art. 15 para. (4), in the case of the Constitutional Court, only the acts that emanate in its capacity of authority of Constitutional jurisdiction are exempted (art. 1 of Law no. 47/1992), in this case the Decisions taken by the Constitutional Court. In this spirit, we consider that the documents that do not have such a character can be the object of the activity of the People’s Advocate institution. We can exemplify, here, the acts of dismissal from various positions.
In the case of the judicial authority, the documents that are issued in its capacity of public authority are also exempted, with the mention, provided by art. 18 of Law no. 35/1997, republished, that, if the People’s Advocate finds that the solution of the request with which he was notified is within the competence of the Public Ministry, is pending before a court or has as object judicial errors, he will notify the Minister of Justice , The Public Ministry or the president of the court, according to their competence, who are obliged to communicate the conclusions reached and the measures taken.
At the same time, in the case of the Legislative Council, only the acts and deeds of the President are exceptions, not the other administrative acts emanating from this forum, the text of the law referring strictly to the „President of the Legislative Council”, the same remark being made The President of Romania.
Regarding the Legislature, as the Chamber of Deputies, the Senate, the Parliament are listed, we consider that administrative acts or facts cannot be the object of the People’s Advocate institution, except for those taken by the persons with leading positions in the administrative apparatus of the Parliament or the Chamber of Deputies or the Senate. but without having the quality of deputy or senator, for example decisions of dismissal from various positions.
The same conclusions can be configured regarding the Government, with the mention that, according to art. 107 of the Constitution, the acts of the Government are the decisions and ordinances, which means that the rest of the issued documents may be the object of the People’s Advocate institution.
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Romanian Supervisory Authority of
Enforcement of Laws, Human Rights and Freedoms Bucharest March 8, 2022
Advocate for Rights and Freedoms
ADL / A.R.S.A.L.D.L.O
Bucharest, str. Izvor no. 2-4, Sector 5
Lawyer ION GABRIEL ANGHELUS
tel 0721736034
59
5
It should be noted that, in addition to the public administration authorities, by art. 28 which provides that the provisions of Law no. 35/1997, republished, also applies to the administrative acts of the autonomous utilities, thus introducing in the sphere of competence of the institution the People’s Advocate and the autonomous utilities which, as it is known, cannot be considered public authorities, these being located in the commercial sphere, having a lucrative purpose and, in general, through their activity the aim is to obtain a profit.
However, since the autonomous administrations are in the administration of the state, these being found mainly in areas of national interest, it was considered necessary that they be included in the sphere of competence of the People’s Advocate, of course with strict reference to administrative acts issued by them. .
Up to this stage, we have highlighted the conditions under which the People’s Advocate can initiate investigations, namely the prior complaint of the citizens or, in case of ex officio notification, the public authorities against whom the complaints can be considered.
For an exhaustive description of this institution, we will briefly analyze the finality of the actions of the People’s Advocate, in case he finds that the complaint with which he was notified is well-founded. This is fixed by the provisions of art. 21 para. (1) of the law, which provides that, in the exercise of his duties, the People’s Advocate issues recommendations that cannot be subject to parliamentary control or judicial control, therefore the provisions of art. 2 para. (1) which enshrines the independence of the People’s Advocate from any public authority are strengthened by the provisions of art. 21 para. (1). should be noted that the recommendations may contain the notification of the public administration authorities on the illegality of administrative acts or facts (art. 21 para. (2) of the law), or the request of the public administration authorities that violated the rights or freedoms of the injured person to reform or revoke the act. administrative and to repair the damages caused, as well as to restore the injured person to the previous situation (art. 23 paragraph (1) of the law). The recommendations issued by the People’s Advocate have a binding character for the public authorities in question, provided by art. 23 para. (2), which provides that the public authorities shall immediately take the necessary measures to eliminate the illegalities found, to repair the damages and to remove the causes that generated or favored the violation of the rights of the injured person and shall inform the People’s Advocate.
In case of non-compliance by the public authorities concerned with the recommendations issued by the People’s Advocate, it should be noted that he has no sanctions or coercive measures at his disposal, but, in addition to using hierarchically superior channels, may publish in the media which has arrived, with the consent of the person or persons concerned and in compliance with the provisions of art. 19 on secret information and documents (art. 26 paragraph (1) of the law). It should also be noted that, according to Article 14 para. (2) of the law, applications may be addressed by any natural person, regardless of citizenship, age, sex, political affiliation or religious beliefs.
Therefore, it should be noted that, in addition to non-discrimination of citizens according to the mentioned landmarks, applications can also be addressed by foreigners, or by groups of people, stating that they need not be organized in any association or other form of association. which would presuppose having legal personality.
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Romanian Supervisory Authority of
Enforcement of Laws, Human Rights and Freedoms Bucharest March 8, 2022
Advocate for Rights and Freedoms
ADL / A.R.S.A.L.D.L.O
Bucharest, str. Izvor no. 2-4, Sector 5
Lawyer ION GABRIEL ANGHELUS
tel 0721736034
60
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Organizing the People’s Advocate Institution in Romania
The experience gained, as well as the reporting to the requirements of the European Ombudsman, involved some constitutional changes. Thus, in 2003 the Romanian Parliament, as a constituent power, brought some improvements aimed at: establishing the right of the People’s Advocate to refer to the Constitutional Court to rule on the constitutionality of laws before their promulgation, registration of the right of the People’s Advocate to raise directly before the Court Constitutional, exceptions of unconstitutionality, the establishment of specialized deputies by fields of activity, the election of the People’s Advocate, in the joint sitting of the Chamber of Deputies and the Senate, for a term of 5 years. These are measures that have polished and strengthened the autonomy of the institution.
Remarkable improvements were also made to the institution’s organic law: the obligation to communicate the views of the Constitutional Court in human rights cases was established, the possibility of setting up territorial offices was created (14 in number, according to the territorial criteria of the Courts of Appeal), a separate authority has been set up to supervise the work in the field of personal data protection (thus aligning us with relevant European legislation), the 63 constitutional provisions on People’s Advocates have been detailed, the rules on staff status have been supplemented and improved, and the financial ones.
The experience of the institution and its current efficiency show that its decisions cannot be based on the power of repression, on the sanctioning power, because it essentializes dialogue, mediating and pacifist spirit, all the more so as in a constitutional democracy, based on the classic principle of separation and balance of powers (principle enshrined in Article 1 of the Constitution), the People’s Advocate is and must remain the authority to facilitate the balance not only between the public authorities, but also between them and society61.
In application of art.55 of the Constitution and according to the provisions of article 15, paragraph (4) of Law no. 35/1997, republished, the People’s Advocate cannot extend his attributions over the Public Ministry and over justice, but can only notify, in connection with the issue, the Minister of Justice, the Public Ministry or the President of the court, as the case may be, who are obliged to inform him of the measures taken. Consequently, by the notion of “public authorities, referred to in Article 1 of the law, we must understand, by law, only the authorities of the public administration. Although it does not follow from the legal provisions that there are relations between the People’s Advocate and the judiciary, we consider that, by law, such relations could be regulated.
Thus, no constitutional provision prohibits the People’s Advocate from defending the rights and freedoms of citizens in relation to justice, a prohibition expressly provided in several constitutions of several states, obviously in one way or another. The organization and functioning made by organic law and the exercise of powers within the legal limits may not derogate from the purpose provided in the non-prohibitive constitutional provisions, regarding the legal relations of the People’s Advocate with public authorities (including, therefore, with justice).
In other words, compared to the provisions of the Constitution, the republished Law no. and civil liberties. Such attributions exist, as has already been examined, in other constitutional systems with a long tradition in the field and which, therefore, could not be ignored. As for the limits of the Ombudsman’s duties, this is a problem that can be resolved in the light of the provisions of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as the jurisprudence
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Romanian Supervisory Authority of
Enforcement of Laws, Human Rights and Freedoms Bucharest March 8, 2022
Advocate for Rights and Freedoms
ADL / A.R.S.A.L.D.L.O
Bucharest, str. Izvor no. 2-4, Sector 5
Lawyer ION GABRIEL ANGHELUS
tel 0721736034
61
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of the European Court of Human Rights. However, if these arguments could be countered, there is another that could hardly be removed, namely the provisions of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which is applicable in our legal system, under the conditions of Art. 20 of the Constitution and based on Law no. 30/1994 ratifying these conventions. According to Article 6 of the Convention, every person has the right to have his or her case heard fairly, publicly and within a reasonable time by an independent and impartial tribunal established by law.
In Romania, too, it is possible that this text has been violated by the judiciary itself, and the solutions for sanctioning judges, ordered by the Superior Council of Magistracy and for delaying the settlement of cases, are a demonstration in this regard. The intervention of the Superior Council of Magistracy does not remove the violation of Article 6 of the Convention and thus does not eliminate the need for the intervention of the People’s Advocate, because such a delay leads, at least, to a violation of a principle of citizens’ rights and freedoms. rights, provided by Art.16 of the Constitution. Such a violation is not examined by any institution in Romania, and the consequences are sometimes pecuniary.62
The text of the Romanian Constitution states that the People’s Advocate defends „the rights and freedoms of citizens” 63. This means that the protection offered by the People’s Advocate refers to all the rights contained in the Constitution and other laws. The introduction of the People’s Advocate as a defender of the rights and freedoms of the person in the Romanian legal framework allows the requests made by those harmed by the public administration authorities to know at least three ways to resolve them, without establishing any hierarchical order between them. These three options, available to any person, are: the administrative-hierarchical procedure, the non-contentious procedure before the People’s Advocate and the contentious procedure before the courts. It is therefore obvious that, in Romanian law, a complex and efficient system of legal guarantees for the protection of the person has been established, and the People’s Advocate is one of them, whose concrete role can only increase with the intensification of his activity. Its organizational structure presupposes the existence of governing bodies – the People’s Advocate assisted by his deputies and advisers – and of bodies for the execution of specific tasks, general services – specialized departments, the general secretariat and the directorate for relations with state institutions, civil society and of foreign relations.
The functioning of the People’s Advocate institution was conceived by the Romanian legislator in a way that necessarily implies its effective participation in its essential stages, the aspects of pure execution of the attributions being carried out autonomously by the executive bodies.
Carrying out the proceedings before the People’s Advocate
If the referrals show the need for their own investigation, the People’s Advocate is the only one who can decide accordingly. In the decision taken, he must indicate the facts and documents to be investigated, the administrative authority to which they belong, the motivation of his request by summarizing the request received and, finally, the persons who will carry out the investigation from his power of attorney (art. 40 of the Regulation). ). In carrying out this investigation, the People’s Advocates
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Romanian Supervisory Authority of
Enforcement of Laws, Human Rights and Freedoms Bucharest March 8, 2022
Advocate for Rights and Freedoms
ADL / A.R.S.A.L.D.L.O
Bucharest, str. Izvor no. 2-4, Sector 5
Lawyer ION GABRIEL ANGHELUS
tel 0721736034
62
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may hear and take statements from any civil servant of the authority indicated in its decision, including from its leaders, as well as from any person who could provide useful information. The conclusions of the investigation will be included in the report prepared by the holder of the paper and submitted to the People’s Advocate. The People’s Advocate can also carry out his activity outside the institution’s headquarters. Thus, he can enter the headquarters of any public authority, with the consent of its administrative management or, if necessary, with the help of the Public Ministry.
61 See Irina Moroianu Zlătescu, Constitutional Law in Romania, Ed. Kluwer, London, 2013, p. 96 ff.
62 See Gheorghe Iancu, People’s Advocate and Justice, in Public Law Review no.1 / 2002, C.H.Beck Publishing House,
Bucharest 2002, p.118.
He may carry out inspections in penitentiaries, other places of detention or re-education or on the premises of military units and may have discussions with any of the persons there (Articles 44 and 45 of the Regulation).
This part of his activity is the one in which it is presumed that the People’s Advocate ascertains the states of affairs that can lead to his self-notification. The procedure initiated ex officio follows the same course as the one on request.
If the request has been settled amicably or the grounds for its submission have ceased, the Ombudsman may discontinue his own investigation, which will put an end to the proceedings and the entire proceedings before this institution. Termination of the procedure will be brought to the notice of the petitioner (art. 41 of the Rules of Procedure).
At the end of the procedure, the intervention of the People’s Advocate is indispensable from two points of view. First of all, the completion of the procedure presupposes the knowledge of the person harmed by the result of his / her approach and the sensitization of the public administration authority regarding a possible improvement of his / her activity. Secondly, more generally, each individual procedure helps the institution of the People’s Advocate in fulfilling its mission, namely to actively contribute to the elimination of phenomena that parasitize any administration, by highlighting their ways of manifestation and proposing correct solutions..
THE EUROPEAN OMBUDSMAN
Since its inception, the European Ombudsman has emerged as a way of parliamentary control over the executive – in the old Nordic constitutional tradition – as well as an independent guardian of citizens’ rights38.
In the first months, the ombudsman was forced to adopt an attenuated profile, due to the novelty of the institution and the controversies that marked its creation. Strictly following the letter of the Treaties and the statutes that defined its functions. In his first report, after several months of work, he made it clear that he would not address political issues, but would assess the admissibility of complaints and study them carefully. It also stated that it did not intend to restrict its mission to cases of maladministration39, giving it a dual mission – both the implementation of citizens’ rights at all levels of government in the Union and transparency in the activities of Community institutions and bodies. underlined its intention to take on the dual role played by the
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Romanian Supervisory Authority of
Enforcement of Laws, Human Rights and Freedoms Bucharest March 8, 2022
Advocate for Rights and Freedoms
ADL / A.R.S.A.L.D.L.O
Bucharest, str. Izvor no. 2-4, Sector 5
Lawyer ION GABRIEL ANGHELUS
tel 0721736034
63
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Nordic ombudsman – to support citizens in their problems with the administration and to promote, on their own initiative, the principles of transparency and accountability inherent in the concept of good practice administration. Since then, he has consistently and repeatedly stated that his goal is not only to solve certain problems, but also to help strengthen an open, democratic and accountable administration.
The institution of the European Ombudsman was the guarantee of respecting the rights of the individual, in the conditions of the obvious mixing of the administrative system, fulfilling a mediation function, parallel to the one of educating the citizen in his relations with the bureaucracy, of his protection. .
Today, national ombudsmen in Europe are part of the European Network of Ombudsmen, which is made up of more than 90 offices in 32 European countries. The European Network of Ombudsmen was set up in 1996 and since then has developed into a powerful and effective tool for collaboration between ombudsmen and office staff, and is seen as a timely mechanism for co-operation and resolution of cases. , of particular importance to the European Ombudsman, the freedom to deal promptly and effectively with complaints falling within his remit is essential. The outsourcing of activities, the dissemination of experiences and practice are materialized in seminars and meetings, regular electronic correspondence or discussion forums. The national ombudsmen and similar bodies in the Network have each appointed a liaison to act as a liaison for the other members of the Network. The European Network of Ombudsmen comprises both national and regional ombudsmen, as well as similar bodies from the Member States or other European countries. This extension of the institutions dealing with the promotion and protection of human rights through non-contentious means, and in the administrative structures of non-EU European states, shows that, in pursuing the ideal of good administration, public authorities acknowledge that respect for citizens’ rights is paramount. important goal.
39 See Ioan Alexandru, Administrative Law in the European Union, Lumina Lex Publishing House, Bucharest 2006, p. 84.
40 See Raluca Beşteliu, Public International Law, Volume I, All Beck Publishing House, Bucharest, 2005, p. 101.
41 See Antonie Iorgovan, Treatise on Administrative Law, vol I, Nemira Publishing House, Bucharest, 2002, p. 74.
In addition to the European Network of Ombudsmen, other associations of ombudsmen can also be found, depending on the specifics of the activities or the area from which they come, as follows:
The Association of Francophone Ombudsmen and Mediators67 is a non-profit association that plays a key role in promoting and consolidating this type of institution. At the time of its establishment, of the 52 French-speaking states and governments, only 15 had regulated such an institution. Today, more than 30 countries have adopted it. The main role of the association is to promote the role of the Ombudsman in French-speaking countries and to encourage the development of independent mediation institutions in the French-speaking world.
The European Ombudsman Institute68 is a scientific association set up to scientifically address human rights issues, the protection of citizens and the institutions of ombudsmen. Its beginnings date back to 1982, when it was established in Innsbruck, the original name being the European Academy of Ombudsman.
The International Ombudsman Institute69, established in 1978, is the only global organization for cooperation between more than 150 ombudsman-type institutions. In addition to regular conferences, the Institute also organizes regional and international exchanges of information. It is arranged in regions such as Africa, Asia, Australasia & Pacific, Europe, the Caribbean and Latin America and North America. The institute has 3 working languages, English, French and Spanish.
JUS * LEX * GOOD FAITH * Draft Law <<< under construction>>>
Romanian Supervisory Authority of
Enforcement of Laws, Human Rights and Freedoms Bucharest March 8, 2022
Advocate for Rights and Freedoms
ADL / A.R.S.A.L.D.L.O
Bucharest, str. Izvor no. 2-4, Sector 5
Lawyer ION GABRIEL ANGHELUS
tel 0721736034
64
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The South East European Children’s Ombudsman Network (CRONSEE) 70 is an informal network of independent children’s rights institutions that has been set up and operates nationally, regionally or locally in the countries of south-eastern Europe. The purpose of CRONSEE is to contribute to the protection and promotion of children’s rights at the national and international levels, by facilitating the exchange of experience and the dissemination of information, by collaborating and by adopting and publishing joint declarations on children’s rights.
Analyzing the competencies and responsibilities of ombudsmen in the Member States of the European Network of Ombudsmen, we acknowledge that the protection of human rights, fundamental freedoms and all forms of discrimination against citizens are the commonalities of national ombudsmen. Another relevant aspect is that, for most national ombudsmen, the model of organization and formation of the institution is that of the first ombudsman in Sweden, borrowing from him some of the ideas and purposes for which it was set up but developed, individualized along the way, depending on the specifics of each country and the problems that citizens face in their relations with public authorities.
The reality in today’s Europe, revealed by the active presence of Ombudsman-type institutions, shows that, in practice, they have become universal, being the non-contentious means of promoting and protecting human rights.
Operating a synthesis of the forms of organization and manifestation of national ombudsmen in Europe, members of the European Network of Ombudsmen, it is observed that most are appointed by the Parliament of the state of which they are part and are nomenclatured according to national options. An exception is ombudsmen appointed by the president (for example, in France and Ireland) or at the suggestion of the queen (UK). The appointment of the persons appointed to exercise the duties of the national ombudsman is made for different periods, between 5 and 7 years.
In most states, the ombudsman is assisted by one or more deputies, depending on the complexity of the tasks that fall within his or her remit. In this regard, in the above analyzes, we also identified the practice of appointing a deputy (or several) on specific issues, such as children’s rights, for the Romani population (for example, in Greece), for those whose rights have been violated. within the health system (for example, the United Kingdom), but also for those who are imprisoned or deprived of their liberty for one reason or another, as a result of the implementation of the National Mechanism for the Prevention of Torture.
Regarding the dimension of competences, we notice that, out of the ombudsmen members of the European Network analyzed by us, a small number have the competence to investigate judges and report on their disciplinary violations, committed in the process of exercising their duties. We also note that one of the ombudsmen has the initiative to hold a forum for the submission of a public petition, to which all those who consider themselves injured in the matter under attention on this communication channel should contribute.
67 http://www.aomf-ombudsman-francophonie.org.
68 www.eoi.at.
69 www.theioi.org.
As a general and common obligation, we note that all the above-registered combudsmen are required to submit an annual report to Parliament on the work carried out during that year on matters relating to the observance of human rights by public authorities. Also, apart from the presentation of the annual report, the ombudsman member of the Network does not receive orders or recommendations from any authority, being an independent institution. Another common feature of most ombudsmen in the Network is the establishment of the National Mechanism for the Prevention of Torture, implemented following the ratification of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the United Nations General Assembly. in New York on December 18, 2002.
Characteristics European Ombudsman
The European Ombudsman shall be a single-member body having legal power of attorney
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Romanian Supervisory Authority of
Enforcement of Laws, Human Rights and Freedoms Bucharest March 8, 2022
Advocate for Rights and Freedoms
ADL / A.R.S.A.L.D.L.O
Bucharest, str. Izvor no. 2-4, Sector 5
Lawyer ION GABRIEL ANGHELUS
tel 0721736034
65
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precise powers of the European Parliament, which appoints him for a term of 5 years, which may be renewed without restriction. He exercises his duties in complete independence, in the general interest of
Communities and in the interests of the citizens of the European Union. In order to fulfill its mission,
The European Ombudsman has a secretariat, which is a real organization. He is assisted by 30 qualified people (lawyers, administrators, secretaries, etc.).
The European Ombudsman. Legal regulation
The main objective of the European Ombudsman is to achieve the Union’s administrative transparency, through its own inquiries into the cases referred to it; 45
The following regulations are added to the text of the treaties invoked, which ensure the specific functioning of the European Ombudsman:

Decision no. 94/262 of the European Parliament on the status and general conditions for the exercise of the functions of the Ombudsman;
In June 2008, the European Ombudsman’s statute was amended, with new regulations giving him full access to European Union documents in his inquiries, clarifying the rules on the testimony of officials who do not testify either as an individual or in an inquiry, but as an official. responsible for a particular case and recognize the need for the European Ombudsman to work with national institutions to promote and protect fundamental rights.47
The decision of the European Ombudsman on the adoption of implementing provisions, adopted on 8 July 2002, which regulates the internal functioning of the Ombudsman’s office and which entered into force on 1 January 2003. The right to complain to the Ombudsman is enshrined in the text of the Constitution. art. I-10 to Title II “Fundamental Rights and Citizenship of the Union” and in the Charter of Fundamental Rights art. II-103.48
europeanEuropean Code of Good Administrative Behavior.
Mission: 49
The European Ombudsman is the protection of persons in cases of maladministration in the activities of the Community institutions and bodies, with the exception of the Court of Justice of the European Union, in respect of judicial activity.

The European Ombudsman’s main means of action are:
a. The annual report, submitted to the European Parliament, in which it presents the results of its inquiries, and which contains data on the petitions dealt with by the Ombudsman, the various problems he has encountered in the exercise of his powers. The report is published to be accessible to any person.50
49 The general conditions for exercising the function were established by Decision no. 94/262 of 9 March 1994 of the Parliament – J. Of. L 113/15 of 4 May 1994.
50 See Gheorghe Iancu, People’s Advocate, 2004, p. 21.
b. The special report, which shall be submitted at the end of the investigation to the European Parliament and to the Community institution or body complained of and which may contain recommendations to eliminate the maladministration and to give satisfaction to the complainant. 51
The Ombudsman draws up a report containing recommendations, if he considers that:

the institution may eliminate the case of maladministration;
the case of maladministration has general implications.
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Within 3 months, the institution is required to send its circumstantial opinion to the European Ombudsman; this may consist of accepting the ombudsman’s decision and detailing the steps taken to implement the recommendations.
If the ombudsman considers and admits that the opinion is unsatisfactory, he may send a special report to the European Parliament in case of maladministration. He sends a copy of the report of the petitioner and the institution concerned52. The annual report and the special report may contain recommendations, and Parliament’s Committee on Petitions is responsible for drafting the report on the Ombudsman’s work. These reports are then debated and adopted in plenary. The report shall be translated into all the official languages of the European Union.53
c. Investigations are the way in which the state of affairs is established, which could represent a case
maladministration, in which it has the right to request from the Community institutions and bodies any information or documents necessary to clarify the situation and to hear officials or other officials belonging to them;
In terms of common practice, the European Ombudsman conducts inquiries on the basis of complaints received, but may also conduct inquiries on his own initiative; the ability to use an own-initiative inquiry allows the Ombudsman to consider a case of maladministration, as specified in a complaint, even if it is made by a person who is not authorized to refer the matter to the Ombudsman.55
d. Critical comments may be made if it is estimated that:
it is not possible for the institution concerned to eliminate the case of maladministration;
the case of maladministration has general implications.56
Extract
source: “Ombudsman Institution” at European level GRIGORE ALEXANDRU JIANU Ed. IRDO 2013

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