Presentation on theme: "The extrajudicial mediation conducted by the Romanian administrative independent authorities Irina Marina Lazăr, Ph.D., University assistent, Faculty of."— Presentation transcript:
The extrajudicial mediation conducted by the Romanian administrative independent authorities Irina Marina Lazăr, Ph.D., University assistent, Faculty of Law and Administrative Sciences, University of Craiova
Contents : 1.Introduction about agencification 2.What is the meaning of central administrative independent/autonomous authority from a Romanian perspective? 3.The creation of autonomous authorities in theory and in reality 4.The powers possessed by central autonomous authorities 5.The extrajudicial mediation conducted by the Romanian administrative independent authorities – context, challenges and perspectives 6. Examples from practice of mediation 7.Conclusions
A creation of the Anglo- Saxon doctrine Scandinavian country : Ombudsman Origins : United States of America, in the late XIX century (1887) the first wave started in ’70 years the second one, after 1990, in Central and Eastern European countries Stages of creation in European countries organizations that operate outside government’s direct control less hierarchical and political influence more managerial freedoms What does it mean “agencification? is structurally disaggregated from the government, operates under more business-like conditions than the government bureaucracy An agency is an organization that: the distrust in the traditional structures impartiality and the efficiency depoliticization of the central administration Interpretation of the “movement”
Romanian Agencies = autonomous/independent administrative authorities Constitution: Art. 116 par. (2) “Other special organisms may be created under the subordination of Government or ministers, or, as autonomous administrative authorities” Art. 117 par. (3) :” The autonomous administrative authorities may be created through an organic law” Laws “ autonomous administrative authorities” (Concurrence Council) “independent and autonomous authority “ (People's Advocate - Mediator) “special consultative organisms of the Parliament” (Legislative Council)
Do the Romanian system of autonomous authority has an own identity, or is merely an useful label for regrouping disparate bodies ?!? What is the meaning of a central independent authority from a Romanian perspective? What powers do they possess? How can the state control these hybrid authorities once they are created, and functioning independently of any external influences (at least in theory)?
The limitation of the independence : Limited by the existence of judicial control of their documents. The role of the judge: “centripetal strength who tends the unification of the centrifugal tendencies that exist in the public administration” Limited by political power, through: the imminent (but regrettable) influences envisaged by the political nomination of the presidents of many independent authorities, the budgetary dependency Limited by the Constitutional Court itself which, despite admitting the independence designed by the legislator, doesn’t always utilize it sufficiently. This means that the Romanian Constitutional Court does not adopt an unflinching attitude and intervene to curtail the government’s habit of creating such organizations.
The creation of autonomous authorities in theory and in reality article 117 par. 3 of the Romanian Constitution organic laws competence Parliament article 53 par. 2: “restriction of the public freedoms or liberties can be done only by a law” (namely, an organic law) Decision no 16 from 10 January 2007 that “the competence of regulating the judicial regime of independent/autonomous administrative authorities belongs exclusively to the Parliament” !!!!!! In practice, Government emergency ordinance normative inflation absence of a steady jurisprudence of the Romanian Constitutional Court
The missions of central autonomous authorities The mission of mediation The mission of regulating a specific area The mission of protecting the public freedoms in sensitive areas Mission of guaranteeing the impartiality of public powers The mission of multidisciplin ary evaluation and expertise
Through the wide range of powers, administrative independent authorities become an alternative solution of mediation less complicated, much cheaper sometimes, more efficient. Do they really fulfill the established mission? !!!!! Examples from practice of mediation - between theory and reality !!!!
Conclusions : The most acute problem in Romania regarding the attainment of independence is how to detach these authorities from political influences so that they can benefit from real independence guarantees (in practice as well as in theory) Balancing between two types of theories: one which assumes that the independence of administrative authorities was always designed to be fragile: their action designed to be forever dictated by the voice of the state, which never leaves an institution free of political control other which states that any political influence or control over these organizations coming from any state’s institution alters their existence In the mean time, the difficulties in finding an identity was doubled by the legislative process and the perpetual interference between the Government and the Parliament, interference who in the field of autonomous authorities reveals to be an alteration of their own substance, meaning their independence. Many progresses were made, but many others are still to be made