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Recommendation 12 (1995)1 on local democracy in Romania

The Congress of Local and Regional Authorities of Europe:

1. Considering the European Charter of Local Self-Government and the European Convention on Human Rights;

2. Having regard to the results of the Conference on the development of local democracy, organised by the Romanian Government in Bucharest in October 1994, in conjunction with the Council of Europe, the European Union and the World Bank;

3. Having regard to the correspondence between the President of the Congress and the President of the Republic of Romania from the end of 1994 to the beginning of 1995, particularly the letters on the question of the dismissal and suspension of a large number of mayors in Romania;

4. Alerted by approaches from the Federation of Romanian Municipalities, the Association of County Councils of Romania and certain Romanian opposition parties, in connection with the same matter;

5. Having carried out a fact-finding mission and produced a study on the state of local democracy in Romania, involving, in particular:

5.1. consultation of dismissed and suspended mayors, by means of a questionnaire and analysis of the judicial decisions concerning them, with the co-operation of Romanian lawyers;

5.2. sustained contacts with qualified, high-level representatives of the Romanian government;

5.3. hearing with around fifteen of the dismissed or suspended mayors whose cases were selected by the lawyers as particularly representative of the problems which had come to light;

5.4. hearing with representatives of the two main associations of local and regional authorities in Romania mentioned above;

6. Thanking all those who helped to make this study mission run smoothly, in particular, the high-level Government representatives who not only put no obstacles in the way of the mission but also met with the rapporteur and members of the Group on two occasions and were willing to hold detailed discussions on the matter;

7. Having taken note of the detailed report drawn up by the Working Group created by the Bureau of the Congress to complete this study;

8. Emphasising that this is the first ever report on the situation with regard to local democracy in a Council of Europe member State and that, although it was drafted in response to particular circumstances, it is part of the wider context of the monitoring of undertakings entered into by Governments on their accession, proposed by the Parliamentary Assembly and decided by the Committee of Ministers;

9. Notes the following facts established by the Working Group and the lawyers who assisted with its work:

9.1. that although the Law on local public administration (Law No. 69 of 28 November 1991), is based, overall, on the principles of local self-government, it contains weaknesses, gaps and imprecisions – particularly with regard to the autonomy of county councils and their relationship to the prefects – along with articles on the supervision of mayors and elected local representatives (Articles 34, 35, 41 and 46) and Articles 48 and 69 which do not comply with the principles of the European Charter of Local Self-Government or even with Article 122 of the Romanian Constitution adopted one month after the Law;

9.2. that apart from an initial law on local taxes, which was judged to be inadequate at the Conference on the development of local democracy mentioned in Paragraph 1 above, no other law has been passed by the Romanian Parliament in this area since December 1991, despite the fact that new legislation is necessary to ensure that the mandate of local elected representatives operates effectively;

9.3. an obvious lack of training for local councillors and local authority staff, facing a difficult and complex legislative situation, even though the European Union had proposed to set up an effective, decentralised training structure (under the Phare Programme);

9.4. a number of abuses – particularly on the part of certain prefects – in the application of Law No. 69 on local self-government, in connection with the suspension and dismissal of mayors, the provisions of the said Law leaving too much discretion to the administrative authorities;

9.5. a number of dismissals, suspensions and resignations of mayors such as to significantly affect the outcome of the local elections, namely:

9.5.1. 133 mayors dismissed, or 4.8% of the mayors elected, 116 of whom belonged to opposition or independent parties and 17 to government parties at national level (although 20% of the mayors elected in 1992 belong to these parties);

9.5.2. only 26 of the 133 mayors dismissed have been convicted by the courts;

9.5.3. in addition to the mayors dismissed, around fifty mayors (approximately 1.8% of the mayors elected) have been suspended;

9.5.4. 264 mayors have handed in their resignation (approximately 9% of the mayors elected) which indicates a genuine break-down and dysfunctioning of local democracy in Romania;

9.6. Also notes, on the basis of the verifications of the Working Group and the lawyers who assisted it, the following infringements of the principles of the rule of law:

9.6.1. abuses of power, in particular, cases of prefects suspending mayors for administrative reasons, such suspensions not being provided for either by the Law or by the Constitution;

9.6.2. failure to respect the principle of proportionality, according to which disciplinary measures must primarily concern and be in proportion to the offence committed and dismissal of local elected representatives must be a solution of last resort;

9.6.3. failure to apply the principle of the presumption of innocence provided for by the Romanian Constitution (Article 23 Paragraph 8), particularly with regard to the application of Article 46 of Law No. 69;

9.6.4. denials of justice such as those practised by certain regional courts of appeal, which declared the appeals of certain dismissed mayors non-admissible on the grounds that a new mayor had already been elected;

9.6.5. the secrecy surrounding administrative supervision procedures, for instance the failure to notify elected representatives threatened with dismissal or suspension of details of the grounds for this decision, thereby making it difficult for them to exercise their right of defence (see Article 24 of the Romanian Constitution);

10. Takes note with interest of a letter sent by Mr Hrebenciuc, Secretary General of the Romanian Government on 9 May 1995, mentioning that the Romanian Government:

10.1. intends as soon as possible to table in Parliament a proposed review of Law No. 69 (1981) in accordance with the Constitution, so that it will be operational before the next local elections in February 1996;

10.2. hopes that the Council of Europe legal experts can be consulted on this proposed review of Law No. 69.

I. Wishing to encourage and assist with the reform of Romanian legislation on local democracy so as to bring it into conformity with the European Charter of Local Self-Government and the principles of the rule of law, recommends that the Romanian government and parliamentary authorities:

11. With respect to Law No. 69 on Local Public Administration:

11.1. suspend the application of Articles 34, 35, 41 and 46 of the Law until these articles are abrogated and replaced by new texts in conformity with the Romanian Constitution (Articles 119, 120, 121 and 122) and the principles of the European Charter of Local Self-Government (particularly Articles 7 and 8);

11.2. reinstate unjustly suspended mayors and local elected representatives and compensate dismissed mayors who have proven their innocence to a degree commensurate with the prejudice they have suffered and morally rehabilitate them, particularly with a view to the next municipal elections;

11.3. revise, in due time, before the next local elections scheduled for February 1996, the articles mentioned in the previous paragraph, in accordance with the following principles drawn from the European Charter of Local Self-Government and current practice in the majority of the member States of the Council of Europe;

11.3.1. to place the emphasis on supervising the actions of local elected representatives rather than supervising local elected representatives themselves, using the supervisory authorities’ power to stay any action presumed to contravene the law until a final judgment has been delivered by the competent judicial authority;

11.3.2. to cease to exercise supervision over local elected representatives with regard to expediency, with respect to acts carried out in the context of the full powers granted as an integral part of local self-government as defined by Law No. 69, instead restricting the said administrative supervision to duties whose execution has been delegated to local authorities by higher-level authorities;

11.3.3. to ensure that the principle of proportionality is applied in connection with the supervision of elected representatives, by taking steps to ensure that local elected representatives are suspended only in cases of blatant repeated offences, or at the express request of the judicial authorities in the context of a criminal investigation, to the extent that suspension is truly necessary to the enquiry;

11.3.4. to exhaust all other remedies before resorting to the extreme solutions of suspension and dismissal of mayors, for example, making use of the State’s power to substitute itself for the mayor in order to implement legislation or carry out a compulsory duty which the mayor has failed to execute, after a notice to remedy this state of affairs has been issued by the supervisory authority;

11.3.5. to resort to dismissal procedures for local elected representatives only after the delivery of a judgement forseen by the law as sufficiently serious as to call the results of universal suffrage into question;

11.3.6. to delete paragraphs b) and c) of Article 34;

11.3.7. to revise, as a priority, the following articles of the Law:

• Article 35, deleting in particular the phrase "or maliciously compromises the interests of the municipality or town";

• Article 46, specifying that the subject is a criminal (not judicial) inquiry and that the suspension can only be ordered when the State Counsel’s Office has signed the notice of prosecution;

• Article 48 on the appointment and dismissal of the municipal secretary and Article 69 on the secretary to the county council;

11.4. set a time for the election of a new mayor only after the completion of the judicial procedure confirming the dismissal, ensuring, in particular, that the mayor’s appeal against dismissal has a suspensive effect on preparations for new elections;

11.5. review Part V of Law No. 69, concerning county councils, with a view to:

11.5.1. strengthening the powers of county councils and defining the executive powers of the president and standing delegation with relation to those of the regional government representative, the Prefect, the administrative committee and the other decentralised governmental departments;

11.5.2. making the county council a genuine driving force behind regional initiatives and ensuring that it reflects the country’s geographical, economic and cultural diversity;

11.5.3. considering the possibility of introducing direct elections for county councillors so as to make the county council an ipso jure territorial authority;

11.6. guarantee the application of the provisions of Article 21, paragraphs X and Z, concerning county councils’ external relations, particularly transfrontier co-operation, in accordance with Council of Europe rules set out in the Outline Convention on this subject and in the additional Protocol currently in the process of adoption and revoke any administrative decisions excessively violating the principles of the Law;

11.7. revise Article 59 of the Law, concerning the powers of county councils, so as to give them the same powers as municipalities with respect to transfrontier co-operation, taking account of the fact that the development of transfrontier co-operation takes place mainly at regional level;

11.8. consult Council of Europe experts on drafting revisions of the Law and the control procedures for local authorities, and draw on the work of the Council of Europe’s Intergovernmental Committee (Steering Committee on Local and Regional Authorities);

12. with respect to Land Law No. 18 (1991), cancel the provisions on dismissal set out in Article 17 of Governmental Decree No. 728 (1992);

13. with respect to the establishment of legislation which will enable local self-government to be exercised satisfactorily:

13.1. in the spirit of the Constitution and the European Charter of Local Self-Government, speed up the drafting and adoption of the following legislation:

13.1.1. law on local finances and budgets, consolidating local fiscal autonomy and introducing objective criteria for the transfer of funds to local authorities, based on the objectives of financial equalisation essential to the country’s balanced development;

13.1.2. law on municipal and county council property, essential to efficient local management;

13.1.3. law on urban planning on which Council of Europe experts have already given an opinion;

13.1.4. a status for local elected representatives distinct from that of civil servants, capable of protecting elected representatives in the performance of their duties and going beyond Article 111 of Law No. 69 as it currently stands;

13.1.5. a status for local-level civil servants sufficiently differentiated from that of national-level civil servants and safeguarding local self-government in compliance with Article 6 of the European Charter of Local Self-Government;

13.2. ratify the European Charter of Local Self-Government, parallel to the revision of Law No. 69 on Local Public Administration, in keeping with the principles set out in the preceding paragraphs and subsequently ensure that all laws and their implementing decrees observe the principles of the Charter;

14. With regard to the training of local elected representatives and civil servants, make up the ground which has been lost in relation to other new democracies in this area by immediately setting up a truly decentralised training system for local elected representatives, on the one hand, and civil servants and county councils, on the other, and to this end:

14.1. take full advantage of the offers of technical assistance from international organisations, particularly the Council of Europe (Lode Programme), the European Union (Phare Programme), the OECD and the World Bank;

14.2. establish the necessary partnership with associations representing local and regional authorities in Romania and in other countries prepared to help the Romanian associations;

15. Commit themselves to finding solutions to the abuses observed in the context of the fact-finding mission mentioned in paragraph 9.6 of this Recommendation, and in particular, ensure:

15.1. that prefects are issued with instructions to respect administrative procedures and the letter and spirit of the law;

15.2. that, in the event of suspension, local elected representatives are immediately informed of the decision and its grounds, as well as any remedies against such decision, so that they can prepare their defence and, if necessary, that they are given prior information on the reasons for the opening of the judicial enquiry;

15.3. that they can appeal to administrative and ordinary courts;

15.4. that they will not be deprived of all sources of income, as is currently the case, but will be guaranteed a salary until such time as a final judgment is delivered;

15.5. that mayors who have been dismissed or suspended enjoy judicial guarantees equal to those laid down by the European Convention on Human Rights;

II. General Provisions

16. Urges the Parliamentary Assembly to support the implementation of this recommendation, and in particular to establish the necessary contacts with the Romanian Parliament via its delegation to the Parliamentary Assembly, in order to ensure, in the context of the monitoring of undertakings entered into on accession, that priority be accorded to the legislative reforms it advocates;

17. Recommends that the Committee of Ministers of the Council of Europe take account of this recommendation in the context of the monitoring of undertakings entered into by member countries and to keep the Congress informed of the Romanian Government’s action on the various recommendations;

18. Appeals to the government and opposition parties in Romania to find the necessary consensus to advance local democracy in their country and to strengthen democratic and judicial institutions, without partisanship and in the interests of the country’s civil and economic development.

19. Recommends that the Council of Europe’s Committee of Ministers appeal to European and international institutions (including the European Union, OECD and World Bank) to:

19.1. co-ordinate their activities in Romania still more closely, devoting particular attention to ensuring the parallel development, on the one hand, of democratic institutions and the institutions of a state governed by the rule of law and, on the other, of economic liberalisation and expansion, which are essential prerequisites for the country’s modernisation and preparation for its integration into the European Union;

19.2. significantly step up their technical and economic assistance to Romania in this difficult and delicate phase of democratic and economic transition and participate in a genuine programme to modernise the country’s local government;

19.3. accord aid for local and regional development, which will guarantee Romania’s sustainable and harmonious development, provided that it is based on local institutions and county councils with adequate powers and resources and highly qualified politicians and administrators staff.

1 Debated by the Congress and adopted on 31 May 1995, 2nd sitting (see Doc. CG (2) 5, Part I, draft Recommendation presented by Mr G. de Sabbata, Rapporteur). 2. Debated by the Standing Committee and adopted on 18 March 1993, 3rd sitting (see doc. CPL (28) 2, part I, draft Resolution presented by the Standing Committee, Rapporteur: Mr A Tchernoff). 3. Debated by the Standing Conference and adopted on 17 March 1993, 3rd sitting (see doc. CPL (28) 1C, Part I, draft Resolution presented by the Standing Committee, Rapporteur:Mr Paul Bongers

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