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Civil Sentence Nr. 2016Referitoarea 1,219 From February 25 To Demand Settlement In Court With "administrative Cancellation"

Original Language Title: SENTINŢA CIVILĂ nr. 1.219 din 25 februarie 2016referitoarea la soluţionarea cererii de chemare în judecată având ca obiect „anulare act administrativ“

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CIVIL SENTENCE no. 1.219 1.219 of 25 February 2016 the reference to the settlement of the application for appeal with the object of "annulment of administrative act"
ISSUER BUCHAREST COURT-SECTION II ADMINISTRATIVE AND FISCAL LITIGATION
Published in OFFICIAL MONITOR no. 286 286 of 24 April 2017



File no. 41.050/3/2014 The Tribunal constituted: President -Ceslea Nicolae Alexandru Iron --Serban Florentina On the role is the resolution of the request for appeal made by the plaintiff Firicel Alexandru in contradiction with the defendants the Romanian state, through the Ministry of Internal Affairs, the Ministry of Internal Affairs, the Minister of Internal Affairs, the Directorate General Police of Bucharest Municipality, having as object "annulment of administrative act". By the conclusion of the debates dated 2.02.2016 and, subsequently, by the conclusion of the postponement of the pronouncement dated 10.02.2016, the Tribunal postponed the pronouncement for today's date, when it decided the following:
TRIBUNAL, deliberating on the present case, finds the following: By the application for a legal appeal registered before the Bucharest Tribunal-Section II Contencios Administrativ and Fiscal on 25.11.2014 with the number 41.050/3/2014, formulated by the applicant Firicel Alexandru, in contradiction with the defendants the Romanian state, through the representative of the Ministry of Internal Affairs, the Ministry of Internal Affairs, the Ministry of Internal Affairs and the General Police Directorate of the Municipality of Bucharest, was requested to find that within the concrete legal report police service in which a party is the claimant as a civil servant The Romanian state is the entity with the role of employer, the Ministry of Internal Affairs is the sole body of representation of the employer the Romanian state, in the working relationship with the undersigned, and the Police Department does not have as employer or organ of employer's representation in the working relationship; the inoposability of the Order of the Minister of Home 400/2004 on disciplinary research of personnel from the Ministry of Internal Affairs to the applicant, both at the date of issue of the provision of Directorate no. 2.381 of 17.04.2014, by which he was sanctioned with written reprimand, and the period before the issuance of the sanction provision in which the acts on disciplinary research were concluded that were the basis for the issuance of the provision of the Directorate no. 2.042 of 17.03.2014; to find that the Order of the Ministry of Internal Affairs is void; to be annulled the provision of the head of the Police of Sector 3 2.042 of 17.03.2014 by which he was disciplined. In motivating the action, the complainant pointed out that it is essential to qualify the notions of employee and employer to determine the rights and obligations of the parties; shows that he has not been informed of essential aspects of the employment relationship, in the context in acre receives orders from the ministry, inspectorate and direction, but does not know who the employer is; the order criticized was not published nor communicated to the complainant; the order was issued with non-compliance with the provisions on decision-making transparency in administration, Law no. 52/2003 ,, and by Constitutional Court Decision no. 392/2014 the exception of unconstitutionality of the provisions on the basis of the issuance of the order was admitted; for these reasons, as the sanction decision was issued on the basis of the criticized acts over, and this, as a subsidiary act, is hit by nullity; showed that he was sanctioned for exercising his right to free speech. In law he invoked the provisions Law no. 360/2002 , art. 247 247 of the Labor Code and requested the administration of the sample with documents. On 8.04.2015 the General Police Directorate of Bucharest made a welcome by which it requested the rejection of the application, as unfounded, motivated by the fact that the applicant is framed within the direction, legal, that the sanction provision was previously issued Constitutional Court Decision no. 392 392 of 2.07.2014 , and the sanction provision was issued legally. On 21.04.2015 the Ministry of Internal Affairs made a welcome by which it invoked the exception of inadmissibility of the first end of application, motivated by the fact that it is requested to find a factual situation, the exception of inadmissibility for lack of prior complaint for the end of application for the cancellation of Order no. 400/2004, the exception of the ministry's lack of passive procedural quality on the last end of the application, given that it did not issue the sanction decision, except for the prescription of the material right to action according to art. 11 11 of Law no. 554/2004 ,, and, amid the case, motivated by the fact that the provisions Law no. 360/2002 determine the time when the service report is born, and Constitutional Court Decision no. 1.658/2010 establishes the distinction between the public and private sectors, the order should not be published and the complainant had access to the court documents; he invoked judicial practice on the order of the minister. On 27.04.2015 the minister formulated a welcome by which he achiesed at the ministry's defences, showing, in addition, that he does not have passive standing, motivated by the fact that the legal direction is empowered to represent and engage ministry in relation to the courts. On 13.05.2015 the complainant replied to the meeting by which he reiterated the sustained ones and fought the defendants ' defenses. It was administered exclusively the evidence with documents, the procedural exceptions invoked being resolved at the meeting on 2.02.2016 (f.179). Analyzing the documents and the works of the file, the Tribunal holds As a preliminary ruling, the General Court held that the first two heads of application-the determination of the elements of the legal employment relationship and the inopposability of the Order 400/2004-constitutes substantive elements, the provision being adopted by the right court art. 22 22 of the Code of Civil Procedure . On the one hand, in the first case, it is the finding of a factual situation, inadmissible under the conditions art. 35 35 of the Code of Civil Procedure , but which constitutes a useful analysis in the delivery of the application for the annulment of the sanction provision, which is why it was appropriate to qualify. Given that the Order no. 400/2004, sanction with full effect, discussing the opposability of the order became superfluous; also, the inoposability has the legal nature of a substantive defense, given that the end of the application was formulated in the context of the annulment of the sanctioning provision, so that it does not have the character of a standalone application, otherwise it would be without interest, the Court of First Instance not being able to rule on the application of the legal With regard to the passive standing of the Ministry of Internal Affairs and the Minister of the same Ministry, the Tribunal rejected these exceptions by Conclusion dated 2.02.2016, showing that in the analysis of the fund will be drawn which are the persons responsible for the applicant's request. It is true that the ministry and the minister did not issue the sanction decision and cannot be drawn their responsibility in the issuance, in administrative law the passive procedural quality having the issuer of the criticized acts. As for the criticized Order no. 400/2002, it was issued by the minister, thus being irrelevant who represents the issuer in the judiciary, in the context in which he was called directly. Given that the ministry and the minister are not parties responsible for issuing sanction decision, they cannot invoke the exception of the prescription, compared to the provisions art. 2.513 of the Civil Code, which reserves the right to invoke the exception of parts of the In terms of procedural quality are relevant and those that will be established infra, at the time of analysis of the first aspect of the application for appeal-the relative at the request in finding. Against the background of the case, through the provision of the head of 2.042 of 17.03.2014 (f.16I), the appeal against this administrative act being rejected by Decision no. 2.381 of 17.04.2014 (f.25I), issued by the Director General of the General Police Directorate of Bucharest, the complainant was disciplined with written reprimand as he used offensive, tendentious expressions, bringing accusations unfounded on state institutions. The relevant parts of the decision: "acts of corruption, starvation, lack of yield at work", " through the underfunding of the Romanian Police, by letting its staff struggle between logistical needs and ambiguous legislation do nothing else than to favor crime and criminals, endangering the act of justice, "" only an unqualified staff omits the substance of the problem, "" I suggest to you both you. and to those who draft such answers to leave the place of the competent and empowered to understand the Romanian language, not to terse the image of the institution of the Romanian Police, as it has been going on for years by decisions on the knees, by phone, in offices, on the grounds that this is how it is desired even if it is illegal "," the current president of Romania imposed a seatbelt that proved to be a noose and cut my salary, respectively with the help of bureaucrats in the office, stole my 25% increase legal "," there is wage discrimination imposed by former nomenclaturists (communists, bolsheviks, fascists, especially those from the UDMR party and the security) "," the 25% increase for higher education that was taken from me and given to a pilos from the Interior Ministry ". It was noted that these statements were qualified as excessive and incriminating, constituting improper behaviors in service, family or society, affecting the honor, professional probity of the policeman and prestige. institution. The legal basis retained was art. 12 12 para. 1 lit. a) of O MAI no. 400/2004 400/2004 on the disciplinary regime and art. 57 lit. a) of Law no. 360/2002 . With regard to the first aspect, namely the one by which it was requested to find that within the framework of the concrete legal relationship of police service in which a party is the applicant as a public officer, the Romanian State is the entity with a role of the employer, the Ministry of Internal Affairs is the sole body of representation of the employer the Romanian state, in the working relationship with the undersigned, and the Police Department does not have the status of employer or body of representation of the employer in the work, the Tribunal holds that the service report is between the General Police Directorate of the Bucharest Municipality and plaintiff. Right. Constitutional Court Decision no. 1.658/2010 it was noted that in the public sphere the employer is the state through its various entities at central and local level. This mention is clear enough, in the sense that the state delegated the prerogatives at the level of the central and local authorities; in other words, what the Court established was that the General Police Directorate identifies itself with the Romanian state, by taking over specific tasks. The solution also follows naturally from the normative ensemble, given that the Directorate enjoys legal personality- art. 12 12 para. 1 1 of Law no. 218/2002 -and were given in the competence of specific duties, this taking over all rights and obligations aimed at the police activity, including those contained in the legal work report. The argument that the ministry is the employer, according to art. 2 lit. d and is from GEO no. 30/2007 , The Tribunal holds that duties in the public system may be shared and may be exercised by several entities. On the inoposability of the Order of the Minister of Internal Affairs 400/2004 on disciplinary research of personnel from the Ministry of Internal Affairs to the applicant, both at the date of issue of the provision of Directorate no. 2.381 of 17.04.2014, by which he was sanctioned with written reprimand, and the period before the issuance of the sanction provision in which the acts on disciplinary research were concluded that were the basis for the issuance of the provision of the Directorate no. 2.042 of 17.03.2014 on the grounds that it was not informed of the content of the order, the Tribunal considers that the defense is groundless. Order no. 400/2004 400/2004 has been issued as the Annex to GD no. 555/2001 was in force, the provisions art. 27 27 para. 3 establishing that the orders are not subject to the publication regime, the subsequent legislative changes being without effect in this regard. On the cancellation of the MAI Order no. 400/2004, the Tribunal achiesates to the reasons for annulment reflected in Civil Sentence no. 5.157 of 10.07.2015 delivered by the Bucharest Court-Second Section of Administrative and Fiscal Contencios, File no. 22.694/3/2013*, in the procedural phase of the appeal. Thus, by Constitutional Court Decision no. 392/2014 the exception of unconstitutionality of the provisions art. 59 59 para. ((2), art. 60 60 (1) and ale art. 62 62 para. ((3) of Law no. 360/2002 and these legal provisions have been declared unconstitutional. Right. art. 59 59 para. ((2) "The procedure for prior research is regulated by order of the Minister of the Interior" art. 60 60 para. ((1) ' The application of disciplinary sanctions is made according to the competences established by order of the Minister of Public Administration and Interior, after the expiry of the appeal period, provided art. 61 61 para. ((1) ""; art. 62 62 para. ((3) "The discipline councils operate under the regulation approved by order of the interior ministry." In recitals Decision no. 392/2014 392/2014, The Constitutional Court held that " Or, the legal provisions criticized not only do not regulate the prior disciplinary procedure, the application of disciplinary sanctions or the work of the discipline council, but delegate the regulation of these aspects important to the relevant minister who is empowered to adopt orders. Therefore, it comes to the situation that an essential aspect aimed at the execution and/or termination of service relations is regulated by an administrative act, which, moreover, in the present case, was not even published in the Official Gazette of the Romania, Part I, which is likely to confer an illusory character to the author of the exception of unconstitutionality to defend himself effectively. In these circumstances, the person investigated disciplinarily does not know the rules by which the procedure is carried out, given that the administrative act is not accessible and therefore neither opposable. Rules on disciplinary research must comply with certain stability and predictability requirements. The delegation of powers to establish these norms to a member of the Government, by issuing acts of an administrative nature that have a legal infra character, determine a state of legal uncertainty, this kind of acts usually having an increased degree of successive changes in time. " Application of provisions art. 59 59 para. ((2) , art. 60 60 para. ((1) and ale art. 62 62 para. ((3) of Law no. 360/2002 the Order of the Interior Ministry no. 400/2004 on the disciplinary regime of the staff of the Ministry of Interior Administration. How the legal provisions underlying the issuance of the MAI Order no. 400/2004 were declared unconstitutional. Or, since they were declared unconstitutional the legal provisions that established that the aspects regarding the application of disciplinary sanctions, disciplinary procedure and discipline commissions are to be regulated by order of the Minister, MAI Order no. 400/2004 400/2004 is thus deprived of the legal basis. For these reasons, the Order of the Minister of Internal Affairs no. 400/2004, and, compared to the subsidiary character of the sanctioning provision no. 2.042 of 17.03.2014, will also order the cancellation of this act. The latter solution is justified as an effect of the cancellation of the order under which it was issued, the cancellation producing retroactive effects, and not on the basis of the Constitutional Court's decision that produces effects for the future; in this way they are unfounded the Directorate's defences in the sense that the sanction decision was issued before the Constitutional Court's decision. Even so, the sanction decision has not been thoroughly issued. The complainant was sanctioned as he used offensive, tendentious expressions, bringing unfounded accusations against state institutions; his claims were qualified as excessive and incriminating, constituting behaviors. improper in service, family or society, affecting the honor, professional probity of the policeman and the prestige of the institution. The relevant parts of the decision: "acts of corruption, starvation, lack of yield at work", " through the underfunding of the Romanian Police, by letting its staff struggle between logistical needs and ambiguous legislation do nothing else than to favor crime and criminals, endangering the act of justice, "" only an unqualified staff omits the substance of the problem, "" I suggest to you both you. and to those who draft such answers to leave the place of the competent and empowered to understand the Romanian language, not to terse the image of the institution of the Romanian Police, as it has been going on for years by decisions on the knees, by phone, in offices, on the grounds that this is how it is desired even if it is illegal "," the current president of Romania imposed a seatbelt that proved to be a noose and cut my salary, respectively with the help of bureaucrats in the office, stole my 25% increase legal "," there is wage discrimination imposed by former nomenclaturists (communists, bolsheviks, fascists, especially those from the RMDSZ party and the security) "," the 25% increase for higher education that was stolen and given to a pup in the Interior Ministry ". The Tribunal holds that the plaintiff's claims are not excessive nor the incriminators of such a manner constitute improper conduct in service, family or society, prejudice to the honor, professional probity of the policeman and the prestige of the institution, given that it signals irregularities in the state system, without targeting the private life or the honor of the officials. It is also noted that the plaintiff is an active member of the Pro Lex union, this more so justifying the plaintiff's intervention to signal irregularities in the system. Also suitable art. 10 10 of Convention European human rights everyone has the right to freedom of expression. This right includes freedom of opinion and freedom to receive or communicate information or ideas without the interference of public authorities. The exercise of these freedoms involving debts and responsibilities may be subject to formalities, conditions, restrictions or sanctions provided by law, which constitute necessary measures, in a democratic society, for national security, territorial integrity or public security, the defence of order and the prevention of crime, the protection of health or morals, the protection of the reputation or the rights of others, to prevent the disclosure of confidential information or to guarantee authority and impartiality of judicial power. The present case raises the question of art. 10 10 of Convention European human rights, the court having the duty to assess the interference from the perspective of the whole case in order to determine whether it was proportionate to the legitimate purpose pursued and whether the grounds relied on by the national authorities to justify it appear to be relevant and sufficient (Zana v Turkey, judgment of 25 November 1997, Culegere 1997-VII, p. 2.547-2.548 2.547-2.548, § 51, and Kyprianou against Cyprus [MC] No. 73.797/01, § 171, 15 December 2005). It is undisputed that sanctioning the plaintiff with written reprimand for expressing dissatisfaction with the way the authorities operate constitutes an interference of the right to free speech, interference that is predictable and accessible, the date being the regulation of disciplinary liability, and pursuing a legitimate purpose-protecting the reputation of the person and institutions. It is still to be considered whether interference is necessary in a democratic society, if the reasons advanced by the defendants to justify the sanctioning of the person concerned are pertinent and sufficient. In order to rule on this issue, the court takes into account in particular the terms used in the statements made, the context in which they were used and the case as a whole, including the ways in which they were made the claims. The European Court has already looked at the compatibility of the criminalisation of the offence with the standards of the Convention, which is regarded as excessive, as long as it does not produce any particular effect and does not confer any to inform and express his opinion on it (a contrario, Artun and Guvener c. Turkey, no. 75.510/01, § 31, 26 June 2007). The petitioner committed the act by addressing the pleadings of the state authorities, without resorting to vulgar expressions, the degree of social danger of the act is low, by its content and by the fact that the complainant has not resorted to acts of violence, including verbal, the plaintiff's action did not concern the private life or honor of the person; as noted, the relevance is also the quality of the plaintiff. The complainant's claims constitute criticism of a political and administrative nature to which an official exposes himself in the exercise of his mandate inevitably and consciously, requiring politicians to show a high degree of tolerance in this regard. (Cause of EON c. France, judgment of 14 March 2013). The Tribunal also considers that the plaintiff did not exceed the dose of inordination and admissible challenge, by reference to his intervention, and opting for an acid but moderate register comes under protection. art. 10 10 of the Convention. Any penalty imposed, even rebuke, may have a deterrent effect on the applicant's subsequent intervention and which may play an important role in the debates on matters of general interest. For these reasons, the solution to cancel the sanctioning decision no. 2.042 2.042 of 17.03.2014 is required.
FOR THESE REASONS
For the law
RULINGS: Admits the request made by the applicant Firicel Alexandru, with the procedural headquarters elected at the Police Union of Romania "Diamond" in Bucharest, sector 4, str. Ienachita Vacarescu no. 17A, in contradiction with the defendants the Romanian state, through the Ministry of Internal Affairs, based in Bucharest, sector 1, Revolution Square no. 1A, Ministry of Internal Affairs, based in Bucharest, sector 1, Revolution Square no. 1A, Minister of Internal Affairs, based in Bucharest, sector 1, Revolution Square no. 1A, General Police Department of Bucharest, with headquarters in Bucharest, sector 3, Calea Victoriei no. 19. Cancel Order of the Minister of Internal Affairs 400/2004 and the sanctioning provision no. 2.024 2.024 of 17.03.2014. With appeal within 15 days of communication, the application will be submitted to the headquarters of the Bucharest Tribunal. Delivered in public sitting today, 25 February 2016.
PRESIDENT,
Ceslea Nicolae Alexandru
Grefier,
Serban Florentina CIVIL DECISION no. 469 469 of 6 February 2017