This paper is to tackle the issue of corruption as representing a threat to the right to health, which is being evaluated as the set of the human rights and constituting the country’s duty to guarantee, within the framework of the legal sequel in Romania of the evolution and implementations of national law and international law alike. Notwithstanding the fact that the predicament for the enjoyment of the right to health in Romania is often distorted, but deservedly attributed to the agenda of the underdeveloped social, economic and political context rooted in the socialist past of the country and extrapolated to the contemporary status of the health system, there exists a lack of a comprehensive regulatory approach towards accrediting the flaws of the public health system to corruption.
The correlation between corruption and its detrimental effect on human rights does not exhibit a striking facet, however, the erosion of human rights in countries where corruption constitutes a real and palpable problem, such as in Romania, the possible relation between the two phenomena demands a thorough scrutiny which this paper will strive to introduce and demonstrate with the aim of arriving at the conclusion that corruption does not only impact the right to health in Romania, but it does so in an evidently detrimental manner based on doctrinal analysis and normative assessments.
List of Contents:
1. Abstract
2. Introduction
2.1 The definition of human rights
2.2 The definition of corruption
4. Human rights-based approach and anti-corruption initiatives
4.1 Communism: The interlaced heritage of corruption and human rights in Romania ..
4.2 The approach towards corruption in Romania
4.3 The legal approach to the right to health in Romania
5. Literature review on the link between corruption and the violation of human rights
6. The methodology used for the assessment of corruption and human rights
6.1 The functioning of the Romanian Public Health System
7. The oblivious proclivity towards corruption
7.1 The National Anticorruption Directorate
7.2 Corruption in the Romanian public health sector
8. The correlation between corruption and the violation of the right to health
8.1 The conditioning of public procurement
8.2 The envelope of medical services
8.3 The double-budgeting of the hospital units
8.4 The bolstering of the access of the staff into the medical system
9. The symptoms of corruption in the public health system
10. Conclusion
1. Abstract
Human rights represent the prerogative of all human beings on the grounds of the mere existence of humans, hence they embody universal and unalienable fundamental values. Human rights represent not only a prerogative of a person, but they also delineate obligations and responsibilities which people are accountable for as a reverberation of the rights they are entitled to. The correlation between human rights and responsibilities is grounded in the logical relationship existing between the individual and the state. While the protection of human rights at an international level is based on various conventions, declarations, treaties, agreements and so forth, which propose a given rule of conduct for the signatory states who thus commit themselves to the safeguard of and respect for human rights, the actual implementation of the realization of human rights ultimately lies within the hands of states themselves.
Corruption itself embodies the deviation from the exercise of political, administrative and legal duties as far as the safeguarding of human rights is concerned. The presence of corruption within the functional framework of any state is an indicator of a poor economy, an unethical concentration of wealth, a weak judicial system, low political transparency, high levels of bureaucracy, faulty administrative systems and so forth.
This paper is to tackle the issue of corruption as representing a threat to the right to health, which is being evaluated as the set of the human rights and constituting the country’s duty to guarantee, within the framework of the legal sequel in Romania of the evolution and implementations of national law and international law alike. Notwithstanding the fact that the predicament for the enjoyment of the right to health in Romania is often distorted, but deservedly attributed to the agenda of the underdeveloped social, economic and political context rooted in the socialist past of the country and extrapolated to the contemporary status of the health system, there exists a lack of a comprehensive regulatory approach towards accrediting the flaws of the public health system to corruption.
The correlation between corruption and its detrimental effect on human rights does not exhibit a striking facet, however, the erosion of human rights in countries where corruption constitutes a real and palpable problem, such as in Romania, the possible relation between the two phenomena demands a thorough scrutiny which this paper will strive to introduce and demonstrate with the aim of arriving at the conclusion that corruption does not only impact the right to health in Romania, but it does so in an evidently detrimental manner based on doctrinal analysis and normative assessments.
2. Introduction
2.1 The definition of human rights
The definition of human rights proves difficult to frame and express an exact and measurable value, as it is the case of other fundamental virtues, such as honesty, justice or morality. The legal definition of a right is delineated as a claim which a person is entitled to assert, require and vindicate. Human rights represent the prerogative of all human beings on the grounds of their mere existence as humans. The backbone of human rights is embodied by fundamental values, such as equality and dignity, which are intertwined on interpersonal and interstate proceedings. In accordance with national and international law, human rights are acknowledged as being natural and legal rights. The concept of a natural human right is exhausted by its universal and unalienable nature, meaning that the natural human right is not ancillary to any laws or customs of a particular state system, while it is applicable and recognizable at any time and place in an equal basis regardless of race, age, religion, ethnicity and so forth. The legal nature of a human right refers to it being bestowed upon a person by a legal system, meaning that legal human rights are legally and lawfully susceptible to the rules of human laws, as opposed to natural human rights.
The first half of the twentieth century was marked by two devastating wars which brought forth the realization and acknowledgment of the need for an internationally accepted measure which is to “reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small” (Charter of the United Nations 1945, Preamble/ This objective was formulated in the Charter of the United Nations which was signed on June 26, 1948. The commitment of the United Nations for the upholding of international peace associated with the safeguard of human rights was formally articulated in the International Bill of Human Rights. The bill of rights consists of the Universal Declaration of Human Rights adopted by the United Nations General Assembly on 10 December 1948. Furthermore, the bill of rights encompasses the 1966 International Covenant on Civil and Political Rights and the 1966 International Covenant on Economic, Social and Cultural Rights.
On the European level, the European Convention of Human Rights was drafted by the Council of Europe in 1950 with the aim of protecting human rights and political freedoms in most European countries and beyond. On the level of the European Union, the guiding principles of its purposes for subsistence and functioning are encompassed by the respect for human rights, democracy and the rule of law. These concepts, upon which the European Union was founded and which are to be found in several treaties, ranging from the Treaty of Maastricht to the Treaty of Lisbon, have helped amplify the significance of health policy, specifying that “a high level of human health protection shall be ensured in the definition and implementation of all Community policies and activities” (Decision No. 1082/2013/EU 2013). The European undertaking and action in the area of human rights protection is legally rooted in Article 168 and Article 114 of the Treaty on the Functioning of the European Union which the Charter of Fundamental Rights is annexed to. The Charter, which is concordant with the European Convention on Human Rights, is legally binding on the EU institutions and national governments alike. One of the aims for the adoption of these treaties along with numerous other documents was to consolidate the aforementioned principles through the facilitation of their institutional integration. In consequence, the overall structure and functions of the EU have been positively shaped by the perpetually growing need for the safeguard of human rights through the provision of new regulations set both on a European and global level.
The Charter represents the condensation of the entire sphere of civil, political, economic and social rights in a single document (Fuerea 2016, pp. 72-73). While the Charter acknowledges the competencies and obligations of the EU along with the principle of subsidiarity of the Member States, it also establishes the fundamental legal norms on human rights. These fundamental legal norms are meant to secure and uphold the equitable apprehension of the continuous development of human rights by all countries involved, as these rights stem from constitutional traditions and international treaties of the Member States, ranging from the 1953 Convention for the Protection of Human Rights and Fundamental Freedoms to the social charters adopted by the European Union and the Council of Europe, in conjunction with the jurisprudence of the Court of Justice of the European Union and the European Court of Human Rights.
As mentioned previously, the protection of human rights at an international level is based and established in the content of the various conventions, declarations, treaties and agreements which propose a given rule of conduct for the signatory states, who thus commit themselves to the safeguard of and respect for human rights. The international texts serve as a legal source for the international human rights law. The legal mechanism for the protection of human rights is represented by courts, such as the European Court of Human Rights as established by the European Convention on Human Rights, given the fact that the convention is of a legally binding nature, meaning that it has been ratified by each signatory’s state legislature.
Human rights represent not only a prerogative of a person, but they also delineate obligations and responsibilities which people are accountable for as a reverberation of the rights they are entitled to. The correlation between human rights and responsibilities is grounded in the logical relationship existing between the individual and the state. This logical rapport between the individual and the state exists on an equal footing from a legal point of view. While the individual retains responsibilities towards the society that he or she is part of, the state represents an organized form of society which also retains economic, social, political, civil and cultural responsibilities towards the citizens themselves as stipulated in the Convention for the Protection of Human Rights and Fundamental Freedoms. The proper and conscientious exercise of these responsibilities surmises a realm of the unity of mutual interests between governors and those governed. Rights contained within the Convention are subjected to relative provisional restrictions only to the extent established by law with the single and absolute purpose of preserving and protecting the rights and freedoms of other citizens, as well as for the respect for public safety, morality and general welfare.
2.2 The definition of corruption
The evolution of a human society within a state is influenced by the manner which the human rights of the citizens have been appreciated, regulated, institutionalized and consequently imbibed into the legal culture of the given state. The human values upheld and respected within a given state reflect the axiological thinking of the society an individual is part of. Any sort of devation from the duties and responsibilities the society is attributed to and empowered with to preserve human rights generically lead to the infringement and abuse of moral and legal norms.
Corruption itself embodies the deviation from the exercise of political, administrative and legal duties. The phenomenon of corruption is a product of society which through its manifestation affects all spheres of a state, ranging from the political to the social one, surpassing the borders of the state and consequently crippling its internationally perceived image and reception. Although there exists no conclusive definition explaining the notion of corruption, it can be widely described as “a set of immoral, illicit, illegal activities, performed not only by individuals with leadership positions or exercising a public role, but also by various groups and organizations (public and private) in order to obtain material advantages, or a moral and a higher social status, by using forms of coercion, blackmail, deception, bribery, buying, intimidation” (Cherciu 2004, p. 9).
The social, economic, environmental and cultural improvement and progress within a society is dependent upon the proper and beneficial functioning of the given society which is being managed by a government responsible for the decision-making regarding the implementation of policies for the performance of the above-mentioned societal domains. The very realization of human rights is closely related to the adequate functioning of several societal domains. Should there be a lack of accountability, transparency and good governance on the part of those responsible and entrusted with decision-making, the structure of societal development inevitably succumbs to corruption which affects the smallest constituents of a society, that is the individuals and their human rights, such as the right to health, the right to an adequate standard of living, the right to education and so forth.
3. Hypothesis
The correlation between corruption and its detrimental effect on human rights does not exhibit a striking facet. However, the erosion of human rights in countries where corruption constitutes a real and palpable problem, such as in Romania, the possible correlation between the two phenomena demands a thorough scrutiny. I surmise that the most pressing question to be asked and answered is not whether corruption has a detrimental impact on the fulfillment of human rights in Romania, but whether corrupt acts constitute an actual violation and breach of human rights and should these be punished as human rights violations. The concept of approaching corruption through the lens of human rights should lend a “valuable normative framework”, which is being seldomly addressed by states and their institutions alike (Pearson 2001, p. 30).
I argue that while human rights violation cases can be linked to corrupt deeds which have led to the given breach of human rights, the correlation of the two phenomena does not reflect the feasible causality and, more often, than not, the causal link between corruption and the violation of human rights is being ignored from a legal perspective. As a consequence, I propose addressing corruption through the lens of human rights, taking into account the intersection of national and international law, not only for the purpose of gaining significance, but also validating the need for the recognition of the casual link between human rights and corruption, which should thus lead to a more structured and standardized mechanism of human rights protection as far as the detrimental effect of corruption on these rights is concerned.
In this thesis I intend to analyze the impact of corruption on the right to health in Romania. The significance of this paper stems from the issue that corruption as such does contribute to the “violation of the social values and human rights in the modern era, moreover, corruption is paralyzing all the efforts of the sustainable economic development, especially when it is known that this disease is spreading in every and each corner of the today state, in the public and private sectors of the state” (Abu-Karaki 2011, p. 455).
The first hypothesis to be tested in this paper is that there exists a relationship between corruption and violations of the right to health. The literature review on the link between corruption and human rights violations, more specifically the right to health, reveal that the respective issue is not being thoroughly scrutinized, especially not in Romania. The second hypothesis of this thesis is that the interpretation of corruption not only as an issue affecting human rights, but as a feasible human rights violation may contribute to narrowing the implementation gap of anti-corruption instruments and could complement the predominantly criminal law-based approach, with special and specific regard to the corruption-caused infringement of the right to health.
In order to clarify and justify the interpretation of the link between human rights violation and corruption, it is of utmost importance to narrow the analysis of those sectors more prone to and affected by corruption which are more likely to be correlated with the violation of the right to health in Romania. I presume that the public sector is more susceptible to a more thorough analysis regarding corruption thereof given that more information is available for its scrutiny. As a consequence, in this thesis I am to research one specific sector within the public realm, namely the public health care system, based on the premise that “a poor governance in the field of public procurement blocks competition in the market and increases the price paid by an administration for goods and services, what has a direct impact on spending public and therefore on taxpayer resources”, according to a report of the European Commission (2017, p. 2).
4. Human rights-based approach and anti-corruption initiatives
The very essence of human rights, as far as equality among people is concerned, lays within the formulation of the Preamble of the Universal Declaration of Human Rights, which states that “the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom”. The element of social progress renders itself to numerous interpretations, one of which may be delineated in the adverse effect phenomenon of the corruption on the very progress of a society and all members thereof. Given the pervasive and obscure nature of all and any corrupt deeds, the disclosure of corruption requires a systematic and segmented approach, with special regard to the actual consequences of corruption in different spheres of society. Consequently, this thesis aims at examining the wanted connection between corruption and the right to health and the repercussion thereof.
By providing examples of corrupt acts, I endeavor to provide a coherent understanding of the impact of corruption. I contend that the identification of certain corrupt acts as violations of the right to health might ultimately lead to the inception of new channels of discussion for those engaged in the fight against corruption and the upholding of human rights alike, not to mention the actual victims of corruption, whose human rights have been impaired as a result. As a means for this thesis to construct a coherent and transparent scrutiny of the link between corruption and the right to health, a specific and well-defined category of both corruption and human rights within Romania is to be analyzed.
4.1 Communism: The interlaced heritage of corruption and human rights in Romania
Romania carries a communist past which has indubitably shaped its current social, political and economic environment, ranging from the institutional systems to the organizational policies. The legacy of corruption has been passed on in such a systemic manner that its substance has permeated and dispersed throughout the public and private sector to such an extent and degree, that corruption has become a ubiquitous presence and quite customary for the general population of Romania:
“[...] Romania suffers from the legacy left by the hegemonic (really totalitarian) and decades-long regime of the single party, in which there was no real constraint on the power of the leaders and in which they did not provide for separation between personal interests and the public interest. It is much harder for abuses of public trust to be controlled where there is not only a weak rule of law, but also a long and deep-rooted culture of corruption” (Burdujan 2016, p. 3).
Following the collapse of the communist regime in 1989, the path towards democratization was clear and pursuable. Nevertheless, as it was to be expected, the political, social and economic transition of such proportions proved that the deeply grounded communist practices left such an imprint on the functional institutions, bureaucratic procedures and the economic system itself, that its effects still reverberate in today’s Romania. During the communist era, the Romanian citizen was in fact destituted of most, if not all, constitutional and human rights and freedoms, ranging from the lack of freedom of speech to the deprivation of freedom in several cases. The principle of equality stood above all principles, as the main goal of the socialist régime was to create a “new communist man”, deprived of all rights, thus harmless to the proliferation of communism (Gutan 2013, p. 250). Although the constitutional text itself contained the basic principles of law, the lack of cooperation between the text and the constitutional instutitions and practices had consequently created a disastrous breach between the existence of human rights in the constitution itself and the actual application and protection thereof. The revolutionary waves of 1989 were to reach Romania among the last countries of Eastern Europe, albeit in the most turbulent manner possible. As the revolution escalated, it became obvious that the citizens of Romania wanted to regain their constitutional freedoms. Following the decades of isolationist politics which have enshrouded the nation, the integration into the unified Europe constituted yet another national requirement the Romanians were keen on. Once more, Romania had to draft yet another constitution which was to reflect the current post-communist political and social status.
Following the fall of Ceau§escu’s dictatorial régime, a void of power was formed which allowed for the most astute politicians to take the reigns of a country ingested for decades by the wrath of communism and which suddenly found itself in the democratic sphere of Europe. Although the newly instituted leaders of Romania were deemed to become the pioneers of democracy and capitalism, “the transition period brought to surface and rendered obvious informal practices that were silently formalized by the communist régime” to such an extent that “by the official beginning of negotiations for EU membership, Romania’s widespread and systemic corruption was no longer a secret for anyone” (Flintoaca-Cojocea 2012, p. 6). As the post-communist political elite was diligent enough to reorganize and adapt itself to the newly formed circumstances, it is of no surprise that the reform of the political, social and economic environment of Romania was to become a perpetually stuttering process of development.
As far as the health care system is concerned, the communist governments vouched for establishing a health care system to cater for everyone in need. Nevertheless, the entire health care system, as all public systems controlled by the communist party, plunged into a spiral of favouritism and corruption, which severly affected the allocation of public funds, medical resources and hospital treatment (Lindelow et al. 2006, p. 39). The privileged ones who were part of the party nomenklatura had access to a proper medical treatment, along with the astute ones who took advantage of their opportunistic relations to benefit from medical care, as well as those who could afford to offer informal payments to the medical personnel in order to have better chances of receiving an appropriate medical treatment as opposed to those who could not afford to pay extra. The proclivity towards corruption for the sake of a more humane treatment thus became an “integral part of the ‘shadow’ economies of communist countries” by breeding a “legacy of corruption throughout the region, particularly in the health sector” (Lindelow et al. 2006, p. 40).
Romania has expressed and showcased the willingness and effort to deter corruption through the development of the “foundation for an effective fight against corruption, targeting the development of a legal framework and institutional structure and stressing enforcement approaches” (Cosmaciuc 2001, p. 16). The Romanian government has made great progress in implementing national anti-corruption strategic measures and progress has been made with the formation of institutions which aimed at limiting corruption, especially in the public sphere. Following the fall of communism, the National Action Against Corruption represented one of the very first national plans which, in its essence, embodied an impressive list of measures and commitments which constituted the basis for the evaluation of and implementation of the fight against corruption on a governmental level. The roots of the Romanian anti-corruption politics officially date back to 1997, when the National Action Council Against Corruption and Organized Crime was established by President Constantinescu. Although the given Council registered no obvious effect on the stomping of corruption, it did initiate a very much needed debate regarding the demand for anti-corruption policies in a country previously ravaged by communism. Another key benefit gained from the establishment of the Council was the adoption of the 2000 Anti-Corruption Law for the prevention, detection and sanctioning of acts of corruption (Law nr.78/2000).
The following decades of the evolution of the Romanian political, social and economic realm can be defined as the correlative evolvement of the prospective of becoming a member of the European Union. This sort of European integration was believed to provide countless opportunities for Romania to finally arrive at the level of other European countries. Consequently, the aspirations to become integrated into the Union were fuelled by the want to revise the national system of law in order for it to better fit external models of international law, with special regard for the reconstruction and reform of the Romanian political system:
“The political factor is the one that decants, crystallizes and expresses the will of the state community of that society, a will that is expressed mainly by the elaboration by the competent institutions of power of the norms of law. Political determinism over law is therefore a direct determinism and is best highlighted in the context of changes between political factors in the leadership and exercise of state power. Sometimes such changes or rotations in power lead to essential changes in law as a whole (changes in forms of government, political regimes or forms of state structure, etc. usually attract, as a rule, important changes in legal norms or the legal system as a whole.)” (Sida et Berlinger 2007, p.32).
Nevertheless, the phenomenon of corruption further pervaded the society of Romania as a “consequence of an incoherent policy of prevention and control of corruption, an ankylosis in inefficient schemes of combating, mainly by criminal means, the phenomenon”, which can be deduced from the decresing numbers of active condamnations for corrupt acts, thus already indicating the presence of a “filtration system” within the judiciary mechanism itself (Program National de Prevenire a Corupfiei 2001, p. 15). It became obvious that the adoption of reasonable and appropriate measures against corruption ought to be based on preventive measures rather than punitive ones given the already corrupt nature of the judiciary system. For such preventive measures to become successful, the analysis and understanding of the real dimensions of corruption needed to be brought to light, ranging from the trigger mechanisms to the actual outcomes of corrupt deeds. A pivotal constituent of the preventive measures is considered to be the involvement of non-governmental organizations through informative campaigns for the public on the costs, causations and consequences of corruption.
4.2 The approach towards corruption in Romania
The adherence of Romania to the European Union in 2007 was preceded by the creation of the Mechanism for Cooperation and Verification which aimed at, among others, a more thorough monitoring of the fight against corruption which was deemed to have impeded the implementation of the European Union legislation and policies should the matter have had not been addressed by the European Commission. This would have led to the lack of full enjoyment of European Union citizens rights of the Romanian citizens themselves. Special provisions were added under Articles 37 and 38 to the Romanian Accession Treaty. The Mechanism for Cooperation and Verification formulated four main objectives which aimed at helping Romania address the deficiencies of the anti-corruption fight:
“1.Ensure a more transparent, and efficient judicial process notably by enhancing the capacity and accountability of the Superior Council of Magistracy. Report and monitor the impact of the new civil and penal procedures codes.
2. Establish, as foreseen, an integrity agency with responsibilities for verifying assets, incompatibilities and potential conflicts of interest, and for issuing mandatory decisions on the basis of which dissuasive sanctions can be taken.
3. Building on progress already made, continue to conduct professional, non-partisan investigations into allegations of high-level corruption.
4. Take further measures to prevent and fight against corruption, particularly within the local government” (Commission Decision 2006/928, p. 56).
Following Romania’s accession to the European Union, the Commission files annual reports to the European Parliament and the Council regarding the actual progresses attained by the country within the framework of the MCV. With regard to the constant surveillance to which the Romanian Government is being put under by the Europen Union as far as its anti-corruption policies are concerned, a new anti-corruption policy had been adopted in 2012 by the Government and implemented by the Parliament and the judiciary as a part of a strategy which:
“adopts a multidisciplinary approach and requires the development of sectoral and institutional anti-corruption strategies. The implementation of the strategy is monitored by the SNA (Strategia Nationalä Anticoruptie) Secretariat within the Ministry of Justice. The National Integrity Agency verifies the conflicts of interests, incompatibilities and personal assets of civil servants. A wide range of civil servants, including senior officials, are subject to strict wealth declaration obligations and their wealth declarations are publicly available” (Romanian Ministry of Justice 2015, p. 6).
The Romanian Government, along with specialized law enforcement agencies, judges and prosecutors, has adopted mainly a “repressive approach” in the fight against corruption through the foundation of an extensive legal framework for the criminalization of various corrupt offences, ranging from bribery to nepotism, as well as high-level corruption (Romanian Ministry of Justice 2015, p. 7). Perhaps one of the most important specialized agency set up to counteract corruption is the National Anticorruption Directorate, an independent agency holding extensive investigative powers, especially in the field of high-level corruption allegations, the investigations of which have led to the prosecution and conviction of “members of the judiciary, law enforcement officials and people from various sectors” (Romanian Ministry of Justice 2015, p. 7).
One of the most notable non-governmental organization established with the aim of protecting human rights in Romania and fighting for these in instances of their preservation being breached is the APADOR-CH, short for Asociatiapentru Apararea Drepturilor Omului m România - Comitetul Helsinki or the Association for the Defense of Human Rights in Romania - Helsinki Committee (Asociatia pentru Apärarea Drepturilor Omului in România - Comitetul Helsinki 2018). APADOR-CH is tasked with dealing with the breach of political and civil rights of citizens in their relations with the public authorities, meaning that the organization also proceeds in taking actions to impede and make the actual abuses of the given authorities known to the public. Some of the afore-mentioned actions, as elaborated in the organization’s strategy plan, include the following:
1. Developing written comments and proposals to amend laws/drafting laws with an impact on civil rights and freedoms;
2. conducting extrajudicial investigations in penitentiaries and police arrests to monitor detention conditions;
3. carrying out extrajudicial investigations into violations of the right to life, the right not to be tortured, subjected to inhuman or degrading treatment, the right to liberty and security of person, which he considers relevant;
4. supporting strategic cases before national courts and the European Court of Human Rights;
5. initiating and supporting public information campaigns on human rights issues;
6. consulting with state authorities;
7. providing information to those wishing to apply to the European Court of Human Rights (Asociatia pentru Apärarea Drepturilor Omului in România - Comitetul Helsinki 2018).
On the other hand, APADOR-CH does not engage in instances of human rights breaches either among individuals nor between individuals and private institutions. Nevertheless, the organization itself decides on the actual implication thereof in any case of human rights violation, as well as the level of its implication, meaning that given that some cases may degenerate into threats to civil and political rights, APADOR-CH may choose not to take any action in such instances.
Notwithstanding the communist legacy of Romania, which has simultaneously maintained the institutional disregard for human rights at all costs and propagated the custom of corruption in all economic, political and social spheres, the 2007 adherence to the European Union has provided the decisive spring from an international incentive towards the leap to the rule of law and respect for human rights on a national basis.
4.3 The legal approach to the right to health in Romania
The basic approach towards the safeguard of the right to health within the states of the European Union is based on Article 168 and Article 114 of the Treaty on the Functioning of the European Union. Under the 2009 Treaty of Lisbon, public health represents a policy area where the Union supports, complements or supplements the actions of the Member States, and aiming at improving these implemented public policies by the states through the supply of support for these states. The issue of public safety represents a common area where competence is shared between the Union and the Member States, as the dual character of the competences in the area of public health is mirrored in the various types of measures that the EU can apply under article 168 of the TFEU:
“A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities. Union action, which shall complement national policies, shall be directed towards improving public health, preventing physical and mental illness and diseases, and obviating sources of danger to physical and mental health. Such action shall cover the fight against the major health scourges, by promoting research into their causes, their transmission and their prevention, as well as health information and education, and monitoring, early warning of and combating serious cross-border threats to health (Art. 168 (1) TFEU).
Not only are the responsibilities of the European Union being enumerated within the TFEU, but so are the duties of the Member States of the EU, as the “Union action shall respect the responsibilities of the Member States for the definition of their health policy and for the organisation and delivery of health services and medical care. The responsibilities of the Member States shall include the management of health services and medical care and the allocation of the resources assigned to them” (Art. 168 (7) TFEU). The European Union legislation in this field is effectuated by the Council and the European Parliament in conformity with the ordinary legislative procedure. The TFEU also upholds the accountability and responsibility of the Member States for delineating their health policy on terms of the management and delivery of health services and medical care, in addition to the allocation of resources assigned to them (Kurrer 2021).
The development and application of the protection system of human rights within the EU was initiated by the Council of Europe. It is safe to state that the recognition of the need for a unified Europe during its early formation after the end of the second World War was also based on the crucial guarantee for the safeguard of human rights within the framework of the European system. This systemic protection was to be gradually and progressively materialized through organizations such as the Organization for Security and Cooperation in Europe, among numerous others. In order to enable and fulfil their obligations regarding the protection of human rights, the Member States of the Council of Europe are obliged to comply with the values and cognizance of human rights enshrined within the European legal instruments which are thus meant to be incorporated into the Member State’s national legislation.
The European system aimed at protecting human rights is a complex one, as it functions within specific international organizations, namely the European Union and the Council of Europe. In my judgement, the afore-mentioned organizations represent a determining factor in the protection of human rights within the legal framework of national system, more precisely that of Romania. The Council of Europe represents the cardinal international intergovernmental organization at the European regional level, since its main task encompasses the guardianship of human rights of the European citizens, as declared in the 1949 Statute of the Council of Europe:
“to achieve greater unity among its members in order to safeguard and realize the ideals and principles that are their common heritage and to facilitate their economic and social progress, this goal being promoted by the Council of Europe by means of discussing issues of common interest and by concluding agreements and adopting joint actions in the economic, social, cultural, scientific, legal and administrative fields, as well as by safeguarding and further respecting fundamental human rights and freedoms.”
As the competences and responsibilities of the European Community have constantly changed and adapted throughout the years ever since its establishment, the diversification and adjustment in significance of the fundamental rights had to be correlated and conjugated with the Community law. Consequently, the Single European Act thus provides that Member States are to promote the values of democracy based on fundamental rights, such as freedom, equality and social justice, as recognized in the constitutions and laws of each and every Member State, in the Convention for the Protection of Human Rights and Fundamental Freedoms as well as in the European Social Charter.
The prominance of European law within the national law system manifests itself under the principle of subsidiarity, which designates the margin of appreciation within the boundaries of a state which allow it to maneuver when balancing and implementing its own national law with European norms. The margin of appreciation is meant to counterbalance the national principle of sovereignty, given that state governments bear a direct legitimacy to weigh and appraise their actual authority and jurisdiction in each field (European Court of Human Rights 2015, p. 11). The occurrence of national and international legal discrepancies thus becomes inevitable in the far-ranging field of the application of European norms and acts, yet this gap is evened by a reasonable margin of appreciation. As a result, Romanian state authorities are to implement European norms in concordance with the distinct and definite needs and conditions of the Romanian social, economic and political sphere.
As far as the right to health is concerned, the ECHR does not substantiate the right to health explicitly, however, it can be understood as being derived from several articles of the ECHR, ranging from Art. 2 on the safeguarding the right to life under any circumstances to Art. 12 on protecting the right to respect for private and family life, such as concerning reproductive rights (Convention for the Protection of Human Rights and Fundamental Freedoms 1950). Rights directly concerned with health are not stipulated within the ECHR, although many prinicples of the EU human rights law are contextually related to health and thus may be claimed before the European Courts of Human Rights (Hervey et. McHale 2015, p. 161). Another yet paramount source for the respect and protection of human rights is derived from the national law of each Member State, namely the constitution. The Constitution of Romania does define and provide for the safeguard of the right to health in Art. 34 (2), which states that the “State shall be bound to take measures to ensure public hygiene and health” (Constitution of Romania 2003). As affirmed in Art. 52 (4) of the EU Charter of Fundamental Rights, the constitutional traditions of each Member State and EU law are to be mutually securable “in so far as this Charter recognises fundamental rights as they result from the constitutional traditions common to the Member States, those rights shall be interpreted in harmony with those traditions” (European Union 2012).
The constitutional provisions regarding the Romanian public health system are legally subsidized and regulated by the recently adopted Law nr. 95/2006 on the reform of the field of health (Legea nr. 95/2006). The state’s responsibility is formulated in Art. 7 and mainly covers the obligation to counteract all possible disabilities of the health system with preventive measures, then it goes on to enumerate the comprehensive fields of health, such as environmental and social health. Law 95/2006 also stipulates the multidisciplinary approach needed for the conservation of health, the necessity for the involvement of the state authorities and population for the better functioning of the health system, as well as the convenience of a decentralized public health system, the need for a comprehensive informational system available for the public and the necessity for a scientifically based health system decisionmaking management. From a penal point of view, the Romanian public health system is protected by the Romanian Criminal Code which criminalizes the impairment of the proper functioning of the system (Codul Penal al României 2009). The Criminal Code postulates in the Special Part crimes and offenses which breach the protection of the right to health within the public health system, ranging from the generic classification of crimes against the person within Chapter I to crimes against bodily integrity and health in Chapter II, such fatal injuries, beatings and other violences.
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