Levers of the people's advocate institution on the protection of the rights of the individual

Author:Catalina-Georgeta Dinu
Position:PhD. Senior Lecturer
Pages:101-107
SUMMARY

The People's Advocate Institution carries out its activity in accordance with the provisions of Law no. 35/1997, republished, as subsequently amended and supplemented, which regulates it with a material competence and a specific activity in promoting and protecting the rights of a person injured by a public authority. The leverage available to the People's Advocate is different from what we are accustomed to meeting with other public administration authorities, be it autonomous - as the institution in question. These means by which the People's Advocate Institution operates through its People's Advocate or the Central and Territorial Specialist apparatus derives from the very essence of this institution and from the fudge of its establishment as well as its constitutional consecration, namely, the mediator between the citizens and the state institutions. Throughout this article, we will attempt to briefly present and analyze these levers in order to be able to develop the subject through practical examples relevant to the work of the People's Advocate Institution.

 
CONTENT
Levers of the people’s advocate institution on the protection of the rights... 101
LEVERS OF THE PEOPLE'S ADVOCATE INSTITUTION
ON THE PROTECTION OF THE RIGHTS OF THE INDIVIDUAL
PhD. Senior Lecturer Ctlina-Georgeta DINU1
catalina.matei@unitbv.ro
Abstract
The People's Advocate Institution carries out its activity in accordance with the provisions of
Law no. 35/1997, republished, as subsequently amended and supplemented, which regulates it with a
material competence and a specific activity in promoting and protecting the rights of a person injured
by a public authority. The leverage available to the People's Advocate is different from what we are
accustomed to meeting with other public administration authorities, be it autonomous - as the
institution in question. These means by which the People's Advocate Institution operates through its
People's Advocate or the Central and Territorial Specialist apparatus derives from the very essence of
this institution and from the fudge of its establishment as well as its constitutional consecration,
namely, the mediator between the citizens and the state institutions.
Throughout this article, we will attempt to briefly present and analyze these levers in order to be
able to develop the subject through practical examples relevant to the work of the People's Advocate
Institution.
Keywords: Public law, People's Advocate, human rights, protection.
1. Brief introduction
According to art.50 of the Romanian Constitution, the Ombudsman exercises
his powers ex officio or at the request of the persons injured in their rights and
freedoms, within the limits established by the law.
Law no. 35/1997 on the organization and functioning of the People's Advocate
Institution, republished, as subsequently amended and supplemented, regulates
the duties of the People's Advocate, as well as the legal means that the People's
Advocate Institution can use in the exercise of his activity. According to art.14 of
the law, the People's Advocate Institution can exercise its powers ex officio, in
which case the public authorities are obliged to respect the right of access of the
representatives of the People's Advocate Institution, including the classified
information that they hold.
According to art. 21 of the Law no. 35/1997, the People's Advocate issues
recommendations by means of the recommendations issued by the public
administration authorities regarding the illegality of administrative acts or deeds.
1 Transylvania Unviersity of Brasov, Law Department, Romania.
Law Review vol. VII, special issue, December 2017, p. 101-107
102 CĂTĂLINA-GEORGETA DINU
The silence of administrative authorities or the late issuance of administrative acts
is assimilated to administrative acts.
Also, according to article 22 of the same law, the People's Advocate, his
deputies, as well as the specialized personnel of the People's Advocate Institution
have the right to make their own inquiries, to ask the public authorities any
information or documents necessary for the investigation, to hear and to make
statements from the heads of the public administration authorities or from any
public official. The surveys target either public administration authorities or public
institutions or any public services under the authority of public administration
authorities.
At the territorial level, these legal means through which the People's Advocate
Institution operates are proposed by the territorial office that has the competence
to resolve the case and are subsequently approved by the People's Advocate. The
choice of the proposed legal remedy is at the discretion of the titular of the work
and the appreciation of the People's Advocate, depending on the circumstances
and particularities of the situation to be solved, but also on the previous steps
taken towards the notified authorities.
Regarding the evolution of the activity of the People's Advocate Institution
from year to year, there is noticed a strategy change that tends to put in the
forefront more and more ways to streamline the activity of the institution and
direct it towards concrete results in order to the protection of the rights of
individuals. For example, in 2010, the ex officio notifications were not mentioned
having any weight in the activity of the territorial offices, the emphasis being on
quantitative aspects, namely the number of petitions and the number of audiences
(at the level of the People's Advocate Institution at Braşov Territorial Office had
been registered 1395 audiences, 289 registered petitions and 261 phone calls
received from citizens) [1]. In the same year, they had been registered at the level
of the entire institution, only 18 investigations and one recommendation from the
People's Advocate.
Subsequently, in 2014, there are already 56 ex officio complaints and 137
inquiries, out of which 104 inquiries carried out only by the territorial offices, and
the number of recommendations issued by the People's Advocate increased to 33
[2].
We specify that inquiries are means made available to the People's Advocate to
examine petitions with which he has been informed and to verify information
provided by the press or any other way insofar as they relate to possible violations
of the rights of the individual.
Thus, ex officio notifications are a specific way for the People's Advocate,
triggered when the representatives of this institution find out by any means that
the rights or freedoms of individuals have been violated.
The recommendation is perhaps a last resort addressed to public authorities
that have been found to violate the legal provisions on the rights of the individual,
Levers of the people’s advocate institution on the protection of the rights... 103
the People's Advocate requesting through it that the authority take concretely
identified measures to remove the illegalities and recognize the rights of the
injured person. The Recommendation is an act through which the Ombudsman
exercises his duties, being considered "both as an insistence to the public
administration authorities and as a warning seriously addressed to them" [3]. The
recommendations do not produce legal effects specific to sanctions, but it is
perhaps the most eloquent expression of the unique identity in the area of public
authorities, of the People's Advocate Institution, namely its function of mediator
between the public administration and the citizen, as well as of the autonomy of
the People's Advocate Institution by any other authority [4].
In 2016, the People's Advocate Institution carried out 194 inquiries, out of
which 97 at the territorial offices and 200 ex officio complaints. Also, 44
recommendations were issued by the People's Advocate [5].
2. Aspects from the practice of the People's Advocate Institution. Excerpts ex
officio
In the local Covasna Observatory on January 19, 2016, an article was published
stating that an adult with mental disorders lives in the streets despite the attempts
of journalists from the same daily to find a solution to protect this person, with the
help of the local authorities, the Police or the non-governmental organization
Maltese Help Service in Sfântu Gheorghe, which administers a Night Shelter in
Sfântu Gheorghe.
The Covasna Observatory team tried to help the homeless man who had
improvised on the Olt bank in Sfantu Gheorghe a cellophane tent, living in
precarious conditions and being at risk of dying during the night due to the cold.
Mister. V. Z. has a behavior specific to an indiscriminate person, which is why
he was headed to the Maltese Helpdesk in Sfantu Gheorghe, where he did not
return. Later on, the journalists of the Covasna Observatory reported to the Police
of Sfântu Gheorghe, who said that V.Z. "Could not be heard as a result of health".
The person concerned lost his identity papers and his right to retirement was
terminated, according to the article. In conclusion, it is appreciated that "V. Z.
would need specialized help, a psychiatrist's assessment and a constant shelter, but
he is condemned to remain in the streets with no papers, no legal guardian, no
other support ... "
As a result of the Office of the People's Advocate Institution, the General
Directorate for Social Assistance and Child Protection Covasna informed us of the
following:
- The Maltese Help Service in Sfântu Gheorghe was contacted, in whose
records Mr V. Z. appears from 21.10.2015;
- the representative of the Maltese Help Service, Sfântu Gheorghe, has taken all
care to obtain by Mr. V.Z. of the provisional identity card, of the national health
insurance card, as well as the retroactive payment of the disability pension not
104 CĂTĂLINA-GEORGETA DINU
directed by Mr V.Z. for more than a year, by submitting an application to Covasna
County Pensions House. An account was also opened at CEC Bank, where the
outstanding amounts are to be paid as invalidity pension;
- Dl.V.Z. has received shelter for homeless people from the Maltese Help
Service in Sfântu Gheorghe, where he has disappeared many times, the last time
being registered on 18.01.2016;
- the suspect requires medical care with health problems. According to the
representatives of the Emergency County Hospital "Dr.Fogolyan Kristof" in Sfântu
Gheorghe, Mr. Vass was amputated a part of the inferior member, an intervention
absolutely necessary to save his life. Currently, Mr. V.Z. is hospitalized, being out
of danger.
After discharge, the following social protection measures will be taken by
DGASPC Covasna: counseling and support from DGASPC Covasna for enrolling
and obtaining a Disability Disability Certificate issued by the Comprehensive
Evaluation Panel for Disabled Persons Covasna; guidance and help from the
Maltese Help Service in Sfântu Gheorghe for internment and permanent
supervision in an asylum for the elderly with psychiatric problems; making all the
necessary steps for the sums of money to which Mr V.Z. has the right to cover its
maintenance.
The Police of Sfântu Gheorghe also told us the following:
- Mr V.Z. a provisional identity card was issued to him and a bank account
opened at CEC Bank where he can receive his disability pension again;
- at present, Mr V.Z. is hospitalized at the "Dr.Fogolyan Kristof" Emergency
Hospital in Sfântu Gheorghe, at the Surgery Department, and will undergo a
specialized psychiatric consultation;
- dl.V.Z. has given his verbal consent to be hospitalized at the Asylum for the
elderly with psychiatric problems in Curtici, Arad County, after discharge.
3. Ex officio referral. Case Study
As a result of an official complaint registered at the People's Advocate
Institution regarding the information in the press indicating that the headquarters
of the Public Finance Administration of Fgraş and the Treasury of Fgraş
municipality do not provide access for the disabled people with the stairs being
steep and narrow and consequently, the Brasov Territorial Office of the People's
Advocate Institution has taken steps to the General Directorate of Public Finances
in Brasov (DGRFP Braşov, further on), as well as for people who do not suffer from
disabilities [6].
As a result, D.G.R.F.P. Brasov communicated the following information:
- The Fgraş Municipal Tax Service and the Fgraş Territorial Department of
Taxes operate in a building that is not adapted to the unhindered access of
disabled people;
Levers of the people’s advocate institution on the protection of the rights... 105
- the owner of the building in which the two services operate is CEC Bank,
D.G.R.F.P. Brasov having concluded a lease with this company,
- at the request of D.G.R.F.P. Brasov, CEC Bank has agreed to start the works
necessary to build a ramp, at the expense of D.G.R.F.P. Brasov;
- D.G.R.F.P. Braşov informed us that it was established as a suitable solution to
purchase and install a folding platform for the access of persons with locomotor
disabilities at the headquarters of the Municipal Fiscal Service and the Fgraş
Treasury. In this respect, the investment list for the year 2016 was modified and
subsequently approved.
By address, D.G.R.F.P. Braşov informed us that the activities of mounting a
folding platform for the access of persons with locomotor disabilities to the
Municipal Tax Service and the Fgraş Treasury were executed and are
approaching completion.
4. Recommendation on violation of constitutional provisions regarding free
access to justice and private property, provided by art. 21 and art. 44 of the
Romanian Constitution
By a petition filed with the People's Advocate on April 31, 2015, JV reported
that, through a civil sentence, the Târgu Secuiesc Court of Appeal admitted the
petitioner's action against the Zagon Local Commission for the Establishment of
Private Property Rights on Land and ordered the latter to compile and submit the
necessary documentation for the issue of the property title for the land covered by
the Property Certificate. Although, according to the aforementioned court decision
and the legislation in the field (actually referred to by the court), the obligation to
draw up the necessary documentation for the possession of the property is the
responsibility of the local land fund committees (in this case Zagon Local
Commission for the Establishment of Property Rights Private Town Hall), Zagon
Town Hall informed the petitioner that there is no authorized topographic expert
at the level of Zagon commune, so the petitioner has the obligation to identify the
land through a topo expert.
On the occasion of the investigation, the discussions with the representatives
of Zagon Town Hall showed the following:
At the level of Zagon Commune Town Hall and the Zagon Land Fund Local
Commission, no money was allocated for parcel plans to be made available to
individuals who have submitted applications for property reconstitution.
Currently, the percentage of ownership and issuance of U.A.T. Zagon is about 70%
(including forests), but after the entry into force of Law no. 247/2005, no land and
agricultural land titles have been issued for lack of necessary funds.
Although the petitioner has a favorable final judgment that the local Zagon
Land Fund Commission has the obligation to draw up the necessary
documentation, Zagon Town Hall representatives maintain their view that the
petitioner must hire a topograph expert, at his own expense, as well as to address
106 CĂTĂLINA-GEORGETA DINU
the Covasna Real Estate Cadastre and Publicity Office to verify a correlation
between the old Land Survey Numbers invoked by the petitioner and the current
land cadastral numbers.
U.A.T. Zagon - The Zagon Land Fund Local Commission has so far not
undertaken any measure to carry out the topographical work requested by the
petitioner.
Also, no action has been taken to implement the judgment in question,
considering that the allocation of funds to this effect would contradict the rules
imposed by the Court of Auditors.
Compared to the situation presented, although it results that, following the
demarches of the People's Advocate Institution of Brasov Territorial Office, Zagon
Town Hall concluded a contract for the provision of topographical surveying
services and parcel plans with a specialized firm, but also the fact that it was
verified the legal status of the land on which the petitioner issued a certificate, the
Zagon Local Commission for the Establishment of Private Property Law on Lands
has not even undertaken any concrete measures to enforce the judgment
pronounced in favor of the petitioner, according to which he was disposed
obliging it to draw up and submit the necessary documentation for the issuance of
the ownership title for the land covered by the Certificate No. 948 / 25.09.1991.
In view of the above, we show that, according to Article 7 paragraph (2) of the
Law no. 165/2013 on the measures for completing the restitution process, in kind
or equivalent, of the buildings abusively taken over during the communist regime
in Romania, as subsequently amended and supplemented, are exempt from the
suspension of administrative procedures specific to the reconstitution of the
property right, the final and irrevocable judgments. Also, art.116 of the Land Fund
Law no. 18/1991, republished, as subsequently amended and supplemented, as
well as art.5 of the Government Decision no.890 / 2005 approving the Regulation
on the constitution procedure, the attributions and the functioning the
commissions for the determination of the right of private property on land, the
model and the manner of assigning the titles of ownership, as well as the
possession of the owners, as subsequently amended and supplemented, stipulate
that the obligation to carry out the works and the operations established by the law
rests with the local commissions the land fund, and, according to Article 27
paragraph (1) of the Law no. 18/1991, in conjunction with Article 24 paragraph (1)
of the Order no.700 / 2014 regarding the approval of the Regulation for approval,
receipt and registration cadaster and land register, the possession and release of
the property title can only take place after the cadastral documentation analog and
digital.
As a result, carrying out the necessary measurements and drawing up the plot
plan is a sine qua non condition for the realization of the applicant's property
reconstitution, a legal obligation that the Zagon Local Authority for the
Establishment of Private Property Rights has to execute.
Levers of the people’s advocate institution on the protection of the rights... 107
In this context, under the provisions of Art. 59 of the Constitution of Romania
and art. 13 lit. c), art. 21 and art. 23 of Law no. 35/1997 on the organization and
functioning of the People's Advocate Institution, republished, was issued the
People's Advocate Recommendation No. 27/2016.
As a result, the land plot for land 5, parcel 17/2 and plot 13 parcel 50/1 has
been drawn up, the mayor of Zagon Commune making the commitment to take
the necessary steps in the preparation of the necessary documentation for the
issuance of the property title, the applicant in possession [7].
References:
[1] Romanian Ombudsman Activity Report for 2010, http://avp.ro/rapoarte-
anuale/raport-2010-avocatul-poporului.pdf;
[2] Romanian Ombudsman Activity Report for 2014, http://avp.ro/rapoarte-
anuale/raport_2014_avp.pdf;
[3] Muraru, I., People’s Advocate – an Ombudsman institution, All Beck
Publishing House, Bucharest, 2004, p.98;
[4] Ibidem.
[5] Romanian Ombudsman Activity Report for 2016, http://avp.ro/rapoarte-
anuale/raport_2016_avp.pdf;
[6] https://www.juridice.ro/489007/avocatul-poporului-succes-dgrfp-brasov-
si-trezoreria-fagaras-instaleaza-rampe-destinate-persoanelor-cu-handicap.html;
[7] http://avp.ro/recomandari2016/recomandare27_2016.pdf.