Romania | Ombudsman supports military personnel

The complainant stated that, due to the absence of the leasing contract with the military unit, he faced a series of problems in: (i) exercising his rights linked to the establishment of his legal residence, (ii) obtaining a permanent identity card, (iii) benefiting from health care services, (iv) exercising his right to vote, (v) the registration of children at school, etc.

The issues raised were analysed in the context of possible violations of the right of petition and the rights of persons aggrieved by a public authority under articles 51 and 52 of the Constitution.

Following the intervention of the Ombudsman's Office, the military unit — Village Mamaia, Constanta County — informed the Ombudsman that the complainant's request was resolved favourably and sent, as proof, a copy of the requested lease contract which was also given to the complainant.

The complainant was satisfied with the favourable manner in which his claim was settled and turned to the Ombudsman with a new complaint. He had requested, in writing, that the military unit pay his salary directly through the cashier unit and not on his card, but had received a reply according to which his request had been rejected based on article 5-8 of Government Ordinance no. 143/2007 for approving certain measures in the public finance sector.

The complaint was analysed in the context of possible violations of article 44 of the Constitution, read in conjunction with article 1 paragraph 1 of the First Protocol to the Convention on Human Rights and Fundamental Freedoms, which states that: "The right of property and debts incurring on the State are guaranteed. The content and limitations of these rights shall be established by law", and "Any person or entity has the right to peaceful enjoyment of possessions. No one shall be deprived of his possessions except in the public interest and the conditions provided by law and general provisions of international law."

In dealing with the case, the Ombudsman's Office requested information from the Village Mamaia, Constanta County, military unit and also informed the public authority that, by Decision no. 859 of 16 June 2009, the Constitutional Court admitted the exception of unconstitutionality raised directly by the Ombudsman and found article 5-8 of Government Ordinance no. 143/2007 for approving certain measures in the public finance sector to be unconstitutional insofar as it is understood that salary payments through cards are compulsory.

According to article 480 of the Civil Code, the right to property is both an absolute right exercised through its three prerogatives, usus, fructus, and abusus, and an exclusive right from the point of view of the owner, who can exercise them freely provided that the observance of public order and of the imperative legal provisions are respected. Alternatively, if, according to the Constitution, the right to private property is ensured, then it is ensured with all its three prerogatives. The legal texts under criticism, which establish the payment of salary rights though cards, infringe two of the prerogatives of the property right, namely possession and usage. According to the legal precedents of the European Court of Human Rights, the notion of "goods" includes any interest of private law of an individual which has an economic value. Thus, the salary can be assimilated to a good protected by article 1 of the first Additional Protocol to the Convention.

In addition, by Decision no. 1221/2008, the Constitutional Court stated that the right to a salary is a component of the right to employment and social protection, as a fundamental right with a complex content.

Following the intervention of the Ombudsman's Office, the military unit informed the Ombudsman that the complainant's request had been favourably resolved, in the sense that the complainant's salary will be paid by the cashier's unit.

Source: European Ombudsman