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Contents:

What the Practical Guide has delivered so far and what it will deliver in the next period

  1. Summary: What do we do in the face of abuse by state institutions and/or their representatives? Legislation

II.1.1: Criminal Code

II.1.2: Law 78/2000 for the prevention, detection and punishment of corruption offences

What the Practical Guide has delivered so far and what it will deliver in the next period

We have shown throughout our Practical Guide that the law provides us with tools that we can use to defend our rights, to prevent abuse or to fight against it.

Abuses will not be eradicated, eliminated altogether, but it is up to us as citizens to reduce them, if we know our rights, identify abuses and know what to do.

We won't succeed every time, but through exercise our chances will increase considerably and the representatives of the institution, in front of citizens who know their rights and duties, will think more before committing an abuse.

If we keep on shying away from complaining about certain situations just because it has happened to us or we have heard that our efforts would not have any result, we are not solving our problems. We just perpetuate them, and the authorities will see that it works.

 

[1] The list of National Health Programmes is available here: http://www.casan.ro/page-2/category/lista-programelor-nationale-de-sanatate.html

 

Notes:

  • This material represents the sum of the information provided in six months of the project through the Practical Guide "Be informed, not abused!".
  • Then, by the end of the year, we will address the rights of victims of domestic violence in relation to state institutions.
  • This will be followed by a section on the rights and abusive situations affecting patients with conditions introduced in national health programmes[2]
  • After these two chapters, the Practical Guide will address the relationship with local and central authorities.

Last week we clarified, applied, on the Guide, the following:

  • What the Practical Guide has provided so far and what will follow
  • How we ensure that abuses do not become the rule, using legal tools

Continuing today, answers to the questions:

✔ How we use the law when we are confronted with an abuse committed by state institutions.
✔How those who commit abuses are sanctioned and how we make sure this happens.

 

I.SUMMARY: WHAT DO WE DO IN THE FACE OF ABUSE BY STATE INSTITUTIONS AND/OR THEIR REPRESENTATIVES? LEGISLATION

As we have already said, there is legislation through which we complain about injustices, abuses and seek justice from the state authorities. It is necessary to demand its respect and application.

  • Refusal by an authority, negligence or indifference in the exercise of its duties is punishable by law. The Administrative Code[3]which is in fact a government ordinance, sets out very clearly the obligations, the rules of conduct of a civil servant working in the public administration (government, ministries, etc.) and local government (town halls, county councils). The Administrative Code[4] tells us what and how to sanction.
  • In addition, the Administrative Litigation Act[5] ((Administrative Litigation Act No 554/2004) for what situations we go to court and how they will be resolved, based on this law.

The unjustified refusal of a state employee to carry out his duties can be punished, for example, with a reduction of salary or dismissal from office, according to the Administrative Code. The Administrative Code provides useful information on the fact that civil servants are liable for their actions: disciplinary and civil liability as well as criminal liability.

As regards the civil and criminal liability of civil servants for their acts, we also find useful information in Law No 554 2004 on administrative disputes.

Police officers can be sanctioned for refusing to perform their duties or for inappropriate behaviour[6].

  • Ethics and discrimination

Authorities and institutions, and their employees, also have a professional ethic to respect when dealing with persons/citizens who request a service. Inappropriate behaviour can often constitute discrimination, which is also sanctioned in our law.

The entire legislation on discrimination can be found[7] on the website of the National Council for Combating Discrimination (an autonomous state authority under parliamentary control, working in the field of discrimination).

Potrivit Legii contenciosului administrativ nr. 554/2004, “orice persoană care se consideră vătămată într-un drept al său ori într-un interes legitim, de către o autoritate publică, printr-un act administrativ sau prin nesoluționarea în termenul legal a unei cereri, se poate adresa instanței de contencios administrativ competente, pentru anularea actului, recunoașterea dreptului pretins sau a interesului legitim și repararea pagubei ce i-a fost cauzată“. Mai multe informații aplicate și simplificate regăsim în Ghidul Practic  ”Fii informat, nu abuzat” de pe pagina web a FACIAS.

  • Penalties and the Civil Code area for misconduct or abuse of state institutions

The Administrative Code, i.e. Government Emergency Ordinance No. 57 /2019 shows us what acts are covered here. We will deal with them in the next chapter.

In the area of free access to information of public interest, if the authorities do not respond in time or at all to the requests submitted, a complaint can be filed directly with the head of the authority or public institution concerned.

  • Penalties in the criminal code area:

When money or other favours are demanded, we are already entering the criminal realm. The person who gives a bribe and then goes and reports it, escapes criminal liability. However, the person who did not give it should not leave the state official's conduct unpunished, but should report it to the public prosecutor's office.

Abuse and negligence in office also come into this discussion. Abuse of duty is when the official fails to perform an act or performs it defectively (in violation of the law) and thereby causes damage or injury to a person's legitimate rights or interests. Negligence is when we are talking about a culpable act.

II.1. Legislation: how are state officials sanctioned/punished when they commit abuses?

Throughout the Guide, we have already mentioned how the abuse of an institution's representative towards us, the citizens, can be identified and translated into legislation. About abuse and the forms it takes, you can find simplified information here: Practical Guide: The "robot" portrait of the one who is tempted or commits abuse, in his capacity as a representative of the state, in relation to citizens[8].

If in the material quoted above, we find the simplified information, below, we reproduce it exactly as we find it in the legislation, because it is advisable to go through it and use it when necessary.

The main anti-corruption provisions are to be found in Chapter I of Title V of the Criminal Code "Corruption and service offences"[9]and in Law 78/2000[10] on the prevention, detection and punishment of corruption:

II.1.1: Criminal Code

Bribery – art. 289

The act of a public official who, directly or indirectly, for himself or for another, demands or receives money or other benefits that are not due to him or accepts the promise of such benefits, in connection with the performance, non-performance, urgency or delay in the performance of an act that falls within his official duties or in connection with the performance of an act contrary to those duties, shall be punishable by imprisonment for a term of three to ten years and disqualification from holding public office or from exercising the profession or activity in the performance of which the act was committed.

The offence referred to in para. (1) committed by one of the persons referred to in Article 175 (2), shall constitute an offence only if it is committed in connection with the failure to perform, or the delay in performing, an act relating to his or her legal duties or in connection with the performance of an act contrary to those duties. Money, valuables or any other property received shall be subject to confiscation, and when they are no longer found, confiscation by equivalent shall be ordered.

Bribery – art. 290

Promising, offering or giving money or other benefits, under the conditions set out in Article 289, is punishable by imprisonment from 2 to 7 years. The offence referred to in para. (1) does not constitute an offence when the bribe taker was coerced by any means by the bribe taker. The briber shall not be punished if he or she reports the offence before it has been brought to the attention of the prosecuting authority. Money, valuables or any other property given shall be returned to the person who gave it, if it was given in the case provided for in paragraph (2) or given after the denunciation referred to in paragraph (3). The money, valuables or any other property offered or given shall be subject to confiscation, and when they are no longer found, confiscation in equivalent terms shall be ordered.

Trafficking in influence – art. 291

The demand, receipt or acceptance of the promise of money or other benefits, directly or indirectly, for oneself or for another, committed by a person who has influence or gives the impression that he has influence over a public official and who promises to induce the latter to perform, not to perform, to accelerate or to delay the performance of an act falling within his official duties or to perform an act contrary to these duties, is punishable by imprisonment from 2 to 7 years. Money, valuables or any other property received shall be subject to confiscation, and when they are no longer to be found, confiscation by equivalent shall be ordered.

Purchase of influence – art. 292

Promising, offering or giving money or other benefits, for oneself or for another, directly or indirectly, to a person who has influence or gives the impression of having influence over a public official, in order to induce the latter to perform, not to perform, to accelerate or to delay the performance of an act that falls within his or her official duties or to perform an act contrary to these duties, is punishable by imprisonment from 2 to 7 years and prohibition of the exercise of certain rights.

The perpetrator shall not be punished if he reports the act before the criminal prosecution authority has been notified of it.

Money, valuables or any other property shall be returned to the person who gave it if it was given after the denunciation referred to in paragraph 2. The money, valuables or any other property given or offered shall be subject to confiscation, and if they are no longer found, confiscation by equivalent shall be ordered.

Corruption and service offences committed by other persons - Art. 308

(1) The provisions of Articles 289-292, 295, 297-301 and 304 relating to public officials shall also apply accordingly to acts committed by or in connection with persons who perform, on a permanent or temporary basis, with or without remuneration, a duty of any kind in the service of a natural person referred to in Article 175. (2) or within any legal person.

(2) In this case, the special limits of the penalty shall be reduced by one third

 

II.1.2: Law 78/2000 for the prevention, detection and punishment of corruption offences

Corruption offences

Art. 7

Acts of bribery or trading in influence committed by a person who:

  1. a) holds an office of public dignity;
  2. b) is a judge or a prosecutor;

c) is a criminal investigation body or has the power to establish or punish offences;

  1. d) is one of the persons referred to in Article 293 of the Criminal Code shall be punished by the penalty provided for in Article 289 or 291 of the Criminal Code, the limits of which shall be increased by one third.

Offences similar to corruption offences

Art. 10 The following offences shall be punishable by imprisonment for a term of three to ten years and disqualification from exercising certain rights if committed with the aim of obtaining for oneself or for another person money, property or other undue advantage:

  1. a) the intentional determination of a lower value, in relation to the real commercial value, of goods belonging to economic operators in which the State or a local public administration authority is a shareholder, committed in the context of privatisation or foreclosure action, judicial reorganisation or liquidation or in the course of a commercial operation, or of goods belonging to the public authority or public institutions, in the context of an action for their sale or foreclosure, committed by those who have powers of management, administration, management, foreclosure, reorganisation or judicial liquidation;
  2. b) the granting of subsidies in breach of the law or the failure to ensure, in accordance with the law, that the subsidies are used for their intended purpose;
  3. c) the use of grants for purposes other than those for which they were awarded and the use for other purposes of loans guaranteed by public funds or to be repaid from public funds.

Art. 11

The act of a person who, having the task of supervising, controlling, reorganising or liquidating a private economic operator, carries out any task for it, intermediates or facilitates the carrying out of commercial or financial operations or participates with capital in such an economic operator, if the act is such as to bring him directly or indirectly an undue benefit, shall constitute a criminal offence and shall be punishable by imprisonment for a term of one to five years and disqualification. If the act referred to in paragraph (1) has been committed within 5 years of the termination of the pregnancy, the penalty shall be imprisonment for a term of 6 months to 3 years or a fine.

Art. 12

The following offences shall be punishable by imprisonment for a term of one to five years if committed with the aim of obtaining for oneself or for another person money, property or other undue advantage:

  1. a) carrying out financial transactions, as acts of commerce, incompatible with a person's position, office or assignment, or entering into financial transactions using information obtained by virtue of that person's position, office or assignment;
  2. b) using in any way, directly or indirectly, information which is not intended for public disclosure or allowing unauthorised persons access to such information.

Art. 13

The offence of a person who holds a leading position in a party, trade union or employer's association or in a non-profit-making legal person, of using his influence or authority to obtain for himself or for another person money, goods or other undue advantage, shall be punishable by imprisonment for a term of one to five years.

Art. 13^1

In the case of the offence of extortion, provided for in Article 207 of the Criminal Code, involving a person among those referred to in Article 1, the special limits of the penalty shall be increased by one third.

Art. 13^2

In the case of offences of abuse of office or misuse of office, if the public official has obtained for himself or for another an undue advantage, the special limits of the penalty shall be increased by one third.

Notes:

  • In the future, through the Practical Guide, we will address the rights, our tools in the fight against abuse, for victims of domestic violence and for the sick,
  • Then, the following materials of the Practical Guide will deal with the relationship and the defence of our rights and the fight against abuse in relation to the institutions at local level: the town hall and the local council.

This sounds like a lot of information, but the Guide has already covered some general issues in this area so far. In the new chapter on dealing with local and central authorities, we will also provide information, simplified and as a guide to help us defend our rights in relation to a town hall, a local council, a county council, a ministry, an agency under it, the government, etc.

[1] The list of National Health Programmes is available here: http://www.casan.ro/page-2/category/lista-programelor-nationale-de-sanatate.html

[2] The list of National Health Programmes is available here: http://www.casan.ro/page-2/category/lista-programelor-nationale-de-sanatate.html

[3] Codul administrativ (Cod administrativ  este Ordonanța de urgență a Guvernului nr. 57/ 2019privind Codul administrativ, disponibilăla http://legislatie.just.ro/Public/DetaliiDocument/215925

[4] Ghidul Practic al FACIAS va dedica, pînă la finalul anului, un capitol dedicat relațiilor noastre de cetățeni cu instituțiile publice la nivel local și apoi central.

[5] Legea nr. 554/2004 a contenciosului administrative, disponibilăla http://legislatie.just.ro/Public/DetaliiDocument/57426

[6] Recent, Ghidul Practic din cadrul proiectului ”Fii abuzat, nu informat!” a tratat acest subiect, în două materiale ce pot fi regăsite, la rubrica proiectului, pe pagina web a FACIAS.

[7]Consiliul Național pentru Combaterea Discriminării este autoritatea de stat autonomă, sub control parlamentar, care își desfașoară activitatea în domeniul discriminării, legislația pentru discriminare fiind aici:   https://www.cncd.ro/legislatie/

[8] https://facias.ro/ghid-practic-portretul-robot-al-celui-care-este-tentat-sau-care-comite-abuzuri-in-calitatea-sa-de-reprezentant-al-statului-in-raport-cu-cetatenii/

[9] http://legislatie.just.ro/Public/DetaliiDocument/109855

[10] http://legislatie.just.ro/Public/DetaliiDocument/22361

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