The Romanian Parliament
The Chamber of Deputies
The Judiciary, Discipline and Immunity Committee
Pl-x no . 372/2011 – Legislative proposal to modify Government Ordinance no. 26/2000 on associations and foundations, with subsequent modifications.
The signatory organizations ask for Article II of the Legislative proposal to modify Government Ordinance no. 26/2000 on associations and foundations to be eliminated from the document, as voted by the Senate on February 12, 2013. Maintaining Article II is in violation of the general principle of irretroactivity of the law (provided by Article 15, paragraph 2 of the Constitution), the principle of separation of powers (Article 1, paragraph 4 of the Constitution) and of the authority of res judicata of final and irrevocable court decisions , as well as of the right to freedom of association (guaranteed by Article 40, paragraph 1 of the Constitution).
Art. II of the legislative proposal provides:
“ ART.II (1) Associations, foundations or federations which have been legally created before the current law comes into effect are under obligation to change their name , as long as they fall under the provisions of Article 7, paragraph (3), (3/1) and paragraph (3/3)-(3/5) of Government Ordinance no. 26/2000 on associations and foundations, approved with amendments by Law no.246/2005, with subsequent modifications, including those brought by the current law.
(2) Failing to fulfill the obligation under paragraph (1) results in the dissolution and radiation from the Registry of Associations and Foundations, after a 2 year term within which associations, foundations and federations are allowed to use the original name, alongside the new one.
(3) Dissolution must b notified by a decision of the court of justice from the area where the legal persons under par. (1) have their legal headquarters, at the request of any interested part.”
All this means that the names of associations and foundations created according to the law and validated by the court through irrevocable decisions will have to be changed as a result of the retroactive effect of the new law. Without any constitutional grounds, the new law will fail to recognize and even will dissolve legal relations established in full respect of the old law.
It must be said that Article II of the draft bill raises for discussion irrevocable court orders that have established, with due authority, that the creation of the NGOs and their naming was made in accordance with the laws of the time.
The signatory organizations point out that the conditions for establishing a legal person cannot be changed by new regulations applicable to the past, unless they violate the principle of irretroactivity of the law. Also, a law that annuls irrevocable court decisions violates the principles of separation of powers and of the authority of res judicata .
On the other hand, in the case of associations and foundations, the name is a very important element of identification, closely related to their reputation and the way they are known and perceived by society. It is a connection similar to that between a person and his/her name.
If a law was passed asking persons to change their names, under penalty of being eliminated from society, despite the fact that their names were legally chosen and bestowed at the time of birth, it would surely be considered absurd.
And if such a regulation seems absurd and dangerous for physical persons, it is equally so in the case of legal persons such as associations or foundations.
Arbitrary modifications of the essential attributes of a person – and a name is equally important to legal and to physical persons – result in loss of identity and consequently exclusion from the public space and society. Such a practice has nothing to do with democracy.
Under such circumstances, one may ask how can associations and foundations run their activities when they have no certainty about their own existence, when they can be dissolved for reasons related to their creation (the name), although they were legally created (including the name), and confirmed so by irrevocable court decisions.
Also, one may ask how can NGOs function, attract new members, apply for funds and develop as institutions when they will be permanently threatened with dissolution for a pretended infringement of rules come from the future to re-judge the past.
This state of serious incertitude related to the existence of associations and foundations is of nature to prevent the normal exercise of the right to association, granted by Article 40, par. 1 of the Constitution and by Article 11 of the European Convention for Human Rights.
In conclusion, the signatory organizations ask for Article II to be eliminated from the draft bill for the modification of Government Ordinance no. 26/2000 on associations and foundations, passed by the Senate on February 12, 2013.
Diana -Olivia Hătneanu,
The Association for the Defense of Human Rights in Romania – the Helsinki Committee (APADOR-CH)
On behalf of:
Together Agency for Community Development, executive director Gelu Duminică
ActiveWatch – the Press Monitoring Agency, chairman Mircea Toma
ARIERGARDA Cultural Association, chairman Daniel Vighi
EPAS Association, chairman Codru Vrabie
MENTORCONSULT Association, chairwoman Augusta Moldovan
Spritual Militian Association, chairman Mihail Bumbeş
The National Association of Citizen Assistance Offices, director Ioan Tănase
The Association of Landscapers in Romania, vice-chairwoman Diana Culescu
The Association for Technology and the Internet, director Bogdan Manolea
Pro Democraţia Association, chairman Cristian Pârvulescu
The Romanian Anti-AIDS Association, director Maria Georgescu
Save the Danube and Delta Association, chairman Liviu Mihaiu
Valea Soarelui Association, Dan-Călin Tocaciu
The FILIA Center for Curricular Development and Gender Studies, chairwoman Oana Băluţă
The Center for Legal Resources, executive director Georgiana Iorgulescu
The Center of Resources for Public Participation, director Oana Preda
The Euroregional Center for Public Initiative, chairman Florin Buhuceanu
The Center for Social Development CEDES, chairwoman Nicoleta Anghel
The Center for Independent Journalism, executive director Ioana Avădani
The Ecopolis Center for Sustainable Policies, chairman Costel Popa
The Romanian Center for European Policies, director Cristian Ghinea
The Coalition of the Independent Cultural Sector, Raluca Pop
PACT Foundation, executive director Ruxandra Sasu
PARADA Foundation, executive director Ionuţ Jugureanu
The Foundation for Civil Society Development, Simona Constantinescu
Partners for Local Development Foundation, executive director Ana Vasilache
Soros Foundation – Romania, executive director Gabriel Petrescu
Speranţa Sf. Ştefan Foundation, Dan-Călin Tocaciu
FSN Alma Mater, Răzvan Bobulescu
The Human Rights Protection League – Cluj branch, chairwoman Ana Luduşan
Romani CRISS, executive director Marian Mandache
Romanian Harm Reduction Network, executive director Valentin Simionov
The Romanian Academic Society, chairwoman Alina Mungiu Pippidi
TERRA Mileniul III, chairwoman Lavinia Andrei
Transparency International Romania, executive director Victor Alistar