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Law no. 35 of 13 March 1997 on the Organization and Functioning of the Advocate of the People Institution (The Ombudsman Act)
The Parliament of Romania has enacted the following law: CHAPTER ONE General
provisions Article 1 (1) The Advocate of the People Institution is aimed at the defence of the citizens' rights and freedoms in their relations with public authorities. (2) The Advocate of the People Institution is based in
Bucharest. Article 2 (1) In the course of his activities, the Advocate of the People shall be independent of any public authority. (2) In the exercise of his powers, the Advocate of the People shall be no substitute for other public authorities. (3) The Advocate of the People may not be subjected to
any imperative or representative mandate. No one shall be able to compel
the Advocate of the People to obey any instructions or orders. Article 3 (1) All activities carried out by the Advocate of the People, by his deputies and the staff employed under his authority are of a public nature. (2) At the request of a person whose rights and freedoms
have been aggrieved or for founded reasons, the Advocate of the People
may decide that his activities remain confidential. Article 4 Public authorities must communicate or, as the case may be, make available
to the Advocate of the People, under the terms of the law, any information,
documents or papers they have in their possession as may be linked with
the complaints lodged with the Advocate of the People, while giving him
support for the exercise of his powers. Article 5 (1) The Advocate of the People shall submit rep orts on the activities carried out by the Advocate of the People Institution to both Houses of Parliament in a joint plenary session, once a year or whenever they have so requested. Such reports may also contain recommendations for changes in legislation or other steps to be taken in order to defend civic rights and freedoms. (2) An annual report covers the activity of this Institution
for one calendar year and must be forwarded to Parliament before the 1st
of February of the following year, with a view to being taken under debate
in a plenary session of both Houses. Annual reports shall be published. CHAPTER TWO The Advocate of the People Appointment and End of Office Article 6 (1) The Advocate of the People is appointed by the Senate for a four-year term of office and is eligible for reappointment only once. (2) Any Romanian citizen who has the same qualifications
as are required by a justice of the Constitutional Court is qualified
for appointment as Advocate of the People. Article 7 (1) Candidates shall be nominated by the Senate Standing Bureau, on recommendations put forward by the party groups in both Houses of Parliament. (2) Candidates must submit to the Senate Committee on Legal Affairs, Discipline, Immunities and Validations all documents certifying that they are qualified, as required under the Constitution and this law, in order to fill the position of Advocate of the People. Candidates shall be heard before the same Committee. The Senate will decide on this hearing in a plenary session. The candidates will attend the debate. (3) The Advocate of the People shall be appointed by
a majority vote of the Senate. Where candidates have failed to get a majority
on the first ballot, new rounds will be organized in which only the two
candidates obtaining the greatest number of votes in the previous one
take part. Article 8 (1) The Advocate of the People shall take office on the day of his appointment by the Senate and his term of office lasts until the new incumbent has been installed. (2) Before entering the exercise of his powers, the Advocate of the People shall take the following oath before the Speakers of both Houses of Parliament: "I solemnly swear to abide by the Constitution and the laws of this Country, and to defend the citizens' rights and freedoms by discharging my powers as Advocate of the People in all good faith and impartiality. So help me Qod!" (3) The oath may be also taken without swearing by a religious formula. (4) If the Advocate of the People refuses to take the
oath, this shall preclude him from entering office and opens the procedure
for a new appointment. Article 9 (1) The Advocate of the People ceases to hold office before the expiry of his term in cases of resignation, removal, incompatibility with other public or private offices, disability to discharge powers for more than ninety (90) days which is certified by a specialized medical examination, or death. (2) Removal from office of the Advocate of the People, as a result of infringements upon the Constitution and the laws, shall be decided by a majority vote of the Senate on the proposal of the Senate Standing Bureau, based on the report prepared by the Committee on Legal Affairs, Discipline, Immunities and Validations. (3) A vacancy of office through resignation, incompatibility, disability to discharge office, or death must be certified by the Senate Standing Bureau within ten (10) days of the occurrence of that event.
CHAPTER THREE The Advocate of the People Deputies Article 10 (1) The Advocate of the People is assisted by two deputies who co-ordinate the exercise of powers within the Advocate of the People Institution in their respective areas of responsibility, in conformity with the Rules on the Organisation and Functioning of the Advocate of the People Institution. (2) In the event of a temporary disability of the Advocate
of the People to exercise his powers, his deputies will take over in order
of precedence as set by the Advocate of the People. Article 11 (1) The Advocate of the People shall appoint his deputies for the duration of his term of office, after taking the opinion of the Senate Committee on Legal Affairs, Discipline, Immunities and Validations. (2) The appointment of the deputies to the Advocate of
the People shall be published in the Official Gazette of Romania. Article 12 Provisions under Article 8 shall apply accordingly, except that the deputies are sworn in before a vice-president of the Chamber of Deputies and a Vice-President of the Senate.
CHAPTER FOUR The Advocate of the People Powers Article 13 The Advocate of the People shall have the following powers: (a) to co-ordinate the activities of the Advocate of the People Institution; (b) to take up and distribute complaints filed by persons who have been aggrieved by public administration authorities through violations of their civic rights and freedoms, and to decide on such complaints; (c) to follow up the legal resolution of complaints received and to request the public administration authorities or civil servants concerned to put an end to the respective violation of civic rights and freedoms, to reinstate the petitioner in his/her rights and to redress for the damages thus caused; (d) to represent the Advocate of the People Institution before the Chamber of Deputies, the Senate, and other public authorities as well as in his relations with any natural or legal persons; (e) to decide on staff employment to the Advocate of the People Institution and to exercise disciplinary powers over this staff; (f) to be the principal authority for payment and receipt of public money; (g) to perform any other functions as may be established
under the law or the Rules on the Organisation and Functioning of the
Advocate of the People Institution. Article 14 (1) The Advocate of the People shall exercise powers on his own initiative (ex officio) or upon complaints lodged with by persons as provided under Article 13 (b). (2) Complaints can be filed by any individual, irrespective
of his/her citizenship, age, sex, political affiliation, or religious
belief. Article 15 (1) Any complaints lodged with the Advocate of the People must be done in writing and contain indications of the full name and domicile of the person who has been aggrieved in his/her civic rights and freedoms, of the specific rights and freedoms thus violated, as well as of the administrative authority or civil servant concerned. The petitioner must also prove that the public administration has delayed or refused action to legally resolve his/her request. (2) Anonymous complaints or those directed against violations of civic rights, concerning events which are more than one year old than the date when the person concerned has had knowledge of the facts upon which such complaint is grounded shall not be taken under consideration. (3) The Advocate of the People can reject, on a motivated basis, those complaints which are patently unfounded or he may seek supplementary information for the examination and resolution of the case. (4) Any complaints dealing with acts issued by the Chamber
of Deputies, the Senate, or Parliament, acts and actions of MPs and Senators,
the President of Romania, the Government, as well as of the Constitutional
Court, the president of the Legislative Council, and the judical authority
cannot be subjected to the Advocate of the People Institution, therefore
must be rejected without indicating a reason. Article 16 Complaints filed with the Advocate of the People shall be exempted of
stamp fees. Article 17 (1) The administration of penitentiaries, reformatory and re-socialization establishments, as well as the Public Ministry and the police agencies must allow, with no restriction whatsoever, any one who serves imprisonment or is, as the case may be, under arrest or kept in detention, to approach the Advocate of the People in any possible way in connection with a violation of his/her rights and freedoms, with the exception of the legal restraints applicable. (2) The same obligation falls to the commanders of military
units with respect to persons who serve their compulsory military service
or an alternative service for utilitarian purposes, about violations of
their rights and freedoms, with the exception of the legal restraints
applicable. Article 18 Where the Advocate of the People finds that the resolution of a complaint
lodged with him is under the Public Ministry jurisdiction, or is on the
cause-list of a court of law, or deals with some miscarriage of justice,
he will refer that matter to the Prosecutor General or to the Superior
Council of the Magistracy, in accordance with their respective jurisdiction,
and must be duly informed by the latter of the conclusions reached and
measures taken in that case. Article 19 (1) The Advocate of the People shall have access to any documents which are classified secret and held by public authorities, as far as he deems it necessary in order to resolve complaints lodged to him. (2) The Advocate of the People must not disclose or make
public any of the secret information and documents he has had access to.
He shall continue to be bound by such obligation even after he ceased
activity as the Advocate of the People, and it also extends to his deputies
as well as the staff in his service, subject to criminal liability as
provided by the penal law. Article 20 (1) In the exercise of his powers, the Advocate of the People issues recommendations that cannot be subjected to either parliamentary control or appeal in court. (2) By his recommendations, the Advocate of the People
notifies the public administration authorities of their illegal administrative
acts or actions. Silence of the public administration agencies and belated
issuance of acts shall be considered administrative acts. Article 21 (1) The Advocate of the People has the right to make inquiries on his own, to request the public administration authorities to submit to him any information or documents as may be required for the conduct of inquiries, to take hearings and depositions from the heads and senior officials of the public administration authorities or from any civil servant who can give usefül information for the resolution of complaints. (2) Provisions under para. (1) shall apply to public administration authorities,
public institutions, as well as any public service placed under the power
of the public administration authorities. Article 22 (1) Where the Advocate of the People finds, as a result of his work of examination, that the aggrieved person's complaint is founded, he shall notify, in writing, the public administration authority which has violated the petitioner's rights with the request to reform or revoke its own administrative act, to redress for the damage thus caused and to reinstate that person to his/her former state. (2) The public authorities concerned shall immediately take all necessary
steps to remove the illegality thus found, to redress for damages and
to remove the reasons that caused or furthered a violation of the aggrieved
person's rights while duly informing the Advocate of the People thereof. Article 23 (1) Where a public administration authority or civil servant have failed to remove that illegality within thirty (30) days of the notification, the Advocate of the People shall address himself to the public administration authority which is hierarchically superior, and the latter must inform him of the measures taken, within forty-five (45) days. (2) When the public authority or civil servant concerned belongs to local
public administration, the Advocate of the People shall address himself
to the county prefect. A new deadline of forty-five (45) days will run
as of the date of sending in a request with the prefect's office. Article 24 (1) The Advocate of the People is entitled to notify the Government of any illegal administrative act or action which comes from central public administration and the prefects. (2) When the Government has failed to take measures within twenty days
in connection with illegal administrative acts or actions which are indicated
by the Advocate of the People, such failure shall be communicated to Parliament. Article 25 (1) The Advocate of the People shall inform the petitioner about the results of his/her complaint lodged with him. The Advocate of the People may also publicise these results through the media, if the person(s) concerned have given consent, while observing provisions under Article 19 on secret information and documents. (2) While during the course of his inquiries, the Advocate of the People
finds gaps in legislation or serious cases of corruption or violations
of the Country's laws, he will submit a report on his findings to the
Speakers of the two Houses of Parliament or, as the case may be, to the
Prime Minister. Article 26 Provisions hereunder shall also apply to administrative acts issued by the self managed public companies.
CHAPTER FIVE Answerability, Incompatibilities
and Immunity Article 27 The Advocate of the People and ins deputies shall not be legally answerable
for any opinions or acts during the discharge of the powers laid down
hereunder, if they are done while observing the law. Article 28 (1) During the exercise of office, the Advocate of the People and his deputies may not be kept in, searched, arrested or arraigned for criminal offences or misdemeanours unless approved by the Senate. (2) In cases of delicto flagrante committed by the Advocate of the People or his deputies, the Minister of Justice shall immediately inform the Speaker of the Senate of the offender's being kept in or arrested, but the Senate must then approve or invalidate this measure. A decision giving approval to his arrest and arraignment must be adopted by a majority vote of the Senate. (3) When the Advocate of the People or either of his deputies is arrested
or arraigned for a criminal offence, the Senate will decide by a vote
on having him suspended from office until the court decision remains final. Article 29 (1) For the duration of their term of office, the Advocate of the People and his deputies may not be members of any political party, nor may they hold any other public or private office. (2) Incompatibilities provided under para.(1) shall also apply to desk officers employed, with the exception of academic posts in a higher education institute.
CRAPTER SIX The Secretariat of Advocate of the People Institution Article 30 The organisational structure of the secretariat of the Advocate of the
People Institution and the number of employed staff shall be approved
by the Senate Standing Bureau, as it may be required for the discharge
of powers and duties and within limits of the budget approved. Article 31 The posts of desk officers shall be filled by competitive examination,
under the terms of the law. Examination is organized by the Appointments
and Disciplinary Commission which is composed of three counsellors designated
by the Advocate of the People. Article 32 Any violation of this law or of the Rules on the Organisation and Functioning of the Advocate of the People Institution shall entail criminal, disciplinary, or administrative liability, as the case may be. Disciplinary actions are those provided by the law on civil service.
CHAPTER SEVEN Transitory and final provisions Article 33 (1) All expenses and costs incurred by the operation of the Advocate of the People Institution shall be funded from the State budget.
(3) The position of Advocate of the People is classed as that of a minister,
a deputy's as that of a secretary of state, while senior and desk officers
as those in the Senate apparatus. Article 34 Until establishment of the Appointments and Disciplinary Commission of
the Advocate of the People Institution, its powers shall be exercised
by the Advocate of the People, together with his deputies. Article 35 If the person elected to the office of Advocate of the People is a magistrate,
his post must be reserved. Article 36 The Rules on the Organisation and Functioning of the Advocate of the People Institution shall be adopted by the Senate Standing Bureau, on the proposal of the Advocate of the People, within sixty days of his appointment.
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