The obligation stipulated by law to submit asset declarations to the National Integrity Agency (ANI) for publication on its website disregards the right to the respect and protection of privacy, maitains the Constitutional Court of Romania (CCR).

The Court also says that imposing the obligation to declare not only one’s own rights and obligations, but also those of one’s spouse implies that the declarant assumes personal responsibility for information that he or she does not possess.

The Constitutional Court has published the reasoning of the decision of May 29 by which it established that the declarations of assets and interests should no longer be published on the website of the National Integrity Agency nor on the online pages of other public institutions, and that these declarations should no longer include the income and assets of spouses and children.

The Court ruled in the document that the obligation stipulated by law to publish the asset declaration on the websites of the entities where the persons who are required to submit them are employed, in accordance with the legal provisions, as well as their transmission to the National Integrity Agency for publication on its website, infringe the right to respect for and protection of privacy, enshrined in Article 26 of the Basic Law, as well as Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, by unjustifiably displaying in an objective and rational manner, on the website, data relating to the wealth of persons who are required by law to submit asset declarations.

The Court also points out that in the present case it is being criticized that the text of the law requires the drawing up of declarations of assets on one’s own responsibility, although they include, in addition to the rights and obligations of the declarant, also those of the spouse, as well as those of the children in the care of the declarant. Having regard to this normative content of Article 3(2) of Law 176/2010, the Court emphasizes that, by hypothesis, the declaration under one’s own responsibility,can only concern information relating strictly to the person of the declarant, for which he or she may assume responsibility, directly and individually. The declaration under one’s own responsibility, engages the criminal liability of the declarant, which is why it cannot be made other than in one’s own name, as a person cannot be held criminally liable for another person’s actions/declarations. As a matter of fact, Law 176/2010 also specifies, in Article 3 paragraph (1), that asset declarations are personal acts.

The constitutional judges also say that imposing the obligation to declare not only one’s own rights and obligations, but also those of the spouse implies the assumption of personal responsibility by the declarant for information that he/she does not have/does not know directly, but must obtain from a third person, namely the spouse. With regard to the declaration of rights and obligations of children in the declarant’s care, according to the Civil Code, it should be noted that parents can personally know, directly, the extent of their rights and obligations at most in the case of minor children, since they conclude legal acts on their behalf, as legal representatives, until the age of 14, and in the case of minors with restricted capacity to exercise their legal capacity they consent to their legal acts, with the exceptions provided for in art. 41 paragraph (3) of the Civil Code.

„The situation is different in the case of children who have reached the age of majority and who are in their parents’ care until the age of 26, according to art.499 of the Civil Code, if they are continuing their education, until the completion of their studies, and if they have full capacity to exercise the right to conclude legal acts in their own name. It is possible that this person (husband, wife or adult dependent child), who is a third party to the obligation imposed on the declarant, refusing to provide them, for various reasons, or even providing erroneous information, may be held liable by the same criminal or administrative liability, depending on the case, so that the declarant will be unable to provide data relating to its assets or will be put in the position of mentioning incorrect data, without having the possibility to verify them, in order to avoid the criminal sanction applicable for the offense of false statements or the contravention sanction, as the case may be,” notes the CCR.

The Constitutional Court also considers that the express publication of the first and last names of the spouse and children, together with details of their income, in a declaration made under the own responsibility of the person to whom this obligation applies, constitutes a disregard for the provisions of Article 26 of the Constitution, which guarantees respect for private life.

At the same time, the Court emphasizes that the legislature must identify an appropriate legislative solution that allows the National Integrity Agency to obtain information about the assets of the declarant’s spouse and adult children who are dependent on him or her, in order to achieve its legal purpose.

AGERPRES