Another problematic aspect refers to the examination of the complaints against the decision
regarding the application of the disciplinary sanction regulated by the provisions of Art. 248 1 of the
Enforcement Code.
In accordance with paragraph (2) of Art.2481 of the Enforcement Code: "The complaint
against the decision regarding the application of the disciplinary sanction ... does not suspend the
execution of the disciplinary sanction, except for disciplinary isolation." The solution resulting
from the disposition of the enforceable criminal law in force has as effect the execution of the
sanctions provided by Art.246 of the Enforcement Code, even in case of its annulment by the court.
The current legislation does not provide a clear deadline for the investigating judge to examine and
resolve the complaint.
The European Convention on Human Rights (ECHR) imposes obligations on Member States
to ensure that the right of access to justice is understood in a concrete and effective way, not
theoretically and illusory.
In this context, the People's Advocate considers that the express regulation of the term for
examining the complaint filed by the convict would be the solution that would guarantee the
detainee's rights and would remedy the effects of the disciplinary sanction imposed abusively.
Otherwise, the affected person should have access to other remedies, such as suspending the
sanction once it has been challenged, or granting compensatory measures.
With reference to the issue of applicability of this Article, it should be mentioned that the
People's Advocate previously submitted a recommendation to the Ministry of Justice regarding the
exclusion of the phrase "through the administration of the penitentiary institution" from paragraph
(1) of Art.2481 of the Enforcement Code. The People's Advocate pointed out that this phrase is
abusive and arbitrary, because it contradicts the fundamental rights of the person convicted to free
access to justice and the secrecy of correspondence. This phrase establishes a "filter" that allows the
penitentiary institution as a purpose and effect, to have a discretionary control over the
correspondence of the convicted person, restricting his/her right to free access to justice. The
Ministry of Justice supported the recommendation of the People's Advocate and gave assurances
that when amending the Enforcement Code, it will exclude the respective phrase21.
21
Letter of the Ministry of Justice of 08.04.2016 no.03 / 4915
13
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents