{"id":7165,"date":"2022-01-10T13:03:00","date_gmt":"2022-01-10T11:03:00","guid":{"rendered":"https:\/\/facias.ro\/?p=7165"},"modified":"2022-05-20T17:51:34","modified_gmt":"2022-05-20T14:51:34","slug":"ghid-privind-apararea-drepturilor-cetatenilor-abuzati-printr-un-act-administrativ","status":"publish","type":"post","link":"https:\/\/facias.ro\/eng\/ghid-privind-apararea-drepturilor-cetatenilor-abuzati-printr-un-act-administrativ\/","title":{"rendered":"GUIDE TO DEFENDING THE RIGHTS OF ABUSE CITIZENS THROUGH AN ADMINISTRATIVE ACT"},"content":{"rendered":"

SUMMARY - GUIDE
\nLaw 554\/2004 on Administrative Litigation<\/strong><\/p>\n

\u00a0<\/strong><\/p>\n

FACIAS <\/strong>has developed a guide on the protection of the rights of abused citizens through an administrative act, in relation to state institutions. In this guide you will find the following information:<\/p>\n

 <\/p>\n

Contents:<\/strong><\/p>\n

    \n
  1. INTRODUCTION - brief presentation of Law 554\/2004 on Administrative Litigation;<\/strong><\/li>\n
  2. Specific conditions for NGOs;<\/strong><\/li>\n
  3. Procedure for resolving claims in Administrative Litigation;<\/strong><\/li>\n
  4. The term in which we can formulate an action in Administrative Litigation;<\/strong><\/li>\n
  5. Documents required for filing an action in Administrative Litigation;<\/strong><\/li>\n
  6. The solutions that the court can order.<\/strong><\/li>\n<\/ol>\n

    \u00a0<\/strong><\/p>\n

    I. Introduction<\/strong><\/p>\n

    Law 544\/2004 regulates the procedure to be followed in case of issuance or conclusion, as the case may be, of an administrative act, within the meaning of this law, either due to non-resolution within the legal term or unjustified refusal to resolve a request regarding a right or legitimate interest.<\/p>\n

    The administrative act, as defined in the Law on Administrative Litigation, is the unilateral act, which emanates from a central or local public authority in order to enforce or organise the enforcement of the law. Examples: Contracts concluded by the public authority concerning the enhancement of public property, ordinances or provisions of Government ordinances unconstitutional. \u201eAccording to art. 9 para. 1 of the Law on Administrative Litigation, the person harmed in his right or in a legitimate interest by ordinances or provisions of the ordinances may bring an action in the administrative litigation court, accompanied by the exception of unconstitutionality, insofar as the main object is not the finding unconstitutionality of the ordinance or provision of the ordinance. \"<\/em><\/p>\n

    Administrative acts, normative,<\/strong> are addressed to certain natural or legal persons. E.g:<\/p>\n

    –\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 \u00cencadrarea sau respingerea \u00eencadr\u0103rii \u00een grad \u015fi tip de handicap a unei persoane, atestat\u0103 prin certificat emis de c\u0103tre comisiile de evaluare – conform Legii nr. 448\/2006 privind protec\u021bia \u0219i promovarea drepturilor persoanelor cu handicap – dispozi\u021bia primarului privind respingerea cererii de acordare a ajutorului social prev\u0103zut de Legea nr. 416\/2001 privind venitul minim garantat, ori de acceptare sau de \u00eencetarea acord\u0103rii acestui drept.<\/p>\n

    –\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Autoriza\u021bia de construire sau desfiin\u021bare a unei construc\u021bii conform Legii nr. 50\/1991 – hot\u0103r\u00e2re a consiliului local privind aprobarea unui ajutor de urgen\u021b\u0103 pentru dep\u0103\u0219irea unei situa\u021bii de dificultate.<\/p>\n

    Administrative acts, normative <\/strong>are not addressed to a specific person, but contain rules of general and impersonal applicability. The degree of generality differs from case to case, the administrative acts maintaining their normative character as long as the subjects are not individually determined.<\/p>\n

    Examples: Decisions of the local council controlling the social housing fund located on the territory of the respective administrative-territorial units, based on the Housing Law no. 114\/1996;<\/p>\n

    The decisions of the local council regarding the approval of the Working Methodology regarding the granting of social benefits with the title of emergency aid from the local budget, taking into account the provisions of the Law on social assistance no. 292\/2011 and the Law on the guaranteed minimum income no. 416\/2001.<\/p>\n

    Medical certificates are not administrative acts within the meaning of art. 2 para. 1 lit. c of Law no. 554\/2004. The medical leave certificate is a medical certificate issued in accordance with the provisions of the O.U.G. no. 158\/2005 on leave and social health insurance benefits.<\/p>\n

    Prin urmare, pentru ca un litigiu s\u0103 poat\u0103 fi dedus spre solu\u021bionare instan\u021bei de contencios administrativ, acesta\u00a0 trebuie s\u0103 \u00eendeplineasc\u0103 urm\u0103toarele condi\u021bii:<\/p>\n

      \n
    1. At least one of the parties must be a public authority;<\/li>\n
    2. The litigation concerns the issuance \/ conclusion of an administrative act, the non-settlement IN LEGAL TERM by the public authority of a request by which the petitioner tends to capitalise on a legitimate right \/ interest or UNJUSTIFIED REFUSAL of the public authority to resolve such a request.<\/li>\n<\/ol>\n

       <\/p>\n

      II. SPECIFIC CONDITIONS FOR ASSOCIATIONS \/ FOUNDATIONS:<\/strong>\u00a0<\/strong><\/p>\n

      On 2 July 2020, the HCCJ ruled that the invocation of the legitimate public interest must be subsidiary to the invocation of a legitimate private interest arising from the direct link between the contested administrative act and the purpose (s) of the foundation. Therefore, by the action brought, natural and legal persons under private law (associations \/ foundations) must first prove that there has been an infringement of their right or legitimate private interest, and then claim in support of the application the harming of the public interest, arising from the contested administrative act.<\/p>\n

      As far as FACIAS is concerned, this condition is most often met by the purpose of the foundation promotion of civil rights and their protection in relation to abuses of state institutions<\/em><\/strong>, without being limited to a certain social category<\/u>, (for example, the Medical Associations can attack in administrative litigation only those acts that tend to harm the medical staff).<\/p>\n

       <\/p>\n

      FACIAS may be a party to an action in Administrative Litigation in the following cases:<\/p>\n

        \n
      1. Action brought by FACIAS concerning an interest of its own or a public interest harmed by an administrative act (group of individuals).<\/li>\n
      2. FACIAS intervention in a process in Administrative Litigation for the defence of the rights and legitimate interests of certain individuals.<\/li>\n<\/ol>\n

         <\/p>\n

        III. ADMINISTRATIVE DISPUTE SETTLEMENT PROCEDURE<\/strong><\/p>\n

        The procedure for resolving claims in administrative litigation is regulated in Art. 7 of Law 554\/2004.<\/p>\n

          \n
        1. The first step is to file a prior complaint<\/strong>, so the person who considers himself harmed in his right or in a legitimate interest by an individual administrative act must apply to the issuing public authority (or to the hierarchically superior authority, if any) in within 30 days from the date of communication of the act, revocation, in whole or in part, of it.<\/li>\n
        2. The prior complaint must be submitted in writing in such a way that proof of registration or only receipt can be obtained.
          \nIdeally, the application should be submitted directly to the public authority registry with the request to receive a copy with the registration number and date on it. If he does not receive a reply from the authority to which he submitted the application, he will have to attach to the contentious action the copy of the certified application by the number and date of registration with the public authority, the simple copy without number and date of registration cannot be taken into account in court.<\/li>\n<\/ol>\n

          If the prior complaint cannot be lodged directly with the public authority registry, the prior complaint may also be lodged by post in an envelope with a declared value and acknowledgment of receipt, or by electronic means (email) or fax. Provided that the application is submitted by means of distance communication, any document proving the fulfilment of the prior procedure, more precisely the proof of receipt of the prior complaint, may be submitted.<\/p>\n

           <\/p>\n

          By way of exception<\/strong>, a prior complaint shall not be required if the institution unjustifiably refuses to resolve a claim concerning a right or a legitimate interest or, as the case may be, fails to respond to the applicant within the legal time limit.<\/p>\n

           <\/p>\n

            \n
          1. Within 30 days from the date of filing the preliminary complaint, the authority is obliged to comply with the requests of the injured person and if the injured person is not satisfied with the response received to the preliminary complaint, he may notify the administrative court and request:<\/li>\n<\/ol>\n