Report on Local and Regional Democracy in Romania - CG (2) 5 Part II

Rapporteurs: Giorgio DE SABBATA (Italy)

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EXPLANATORY MEMORANDUM

INTRODUCTION

This report on local democracy in Romania, has been produced a few months after the Conference on "Local Democracy and Development", organised jointly in Bucharest from 28 to 30 October 1994 by the Romanian Government, the Council of Europe, the European Union and the World Bank, it is part of the monitoring of the undertakings accepted by the Governments of member states on their accession to the Council of Europe, an activity proposed by the Parliamentary Assembly and decided by the Committee of Ministers.

As to the undertakings made in respect of local democracy, at the Bucharest Conference the Council of Europe experts were able to ascertain that Romanian legislation on local government, in its broad aspects, formed a satisfactory starting-point for a genuine process of local self-government.

However, the experts also wished to point out that the legislation in itself would not provide a full basis for operation of local self-government and furthermore, apart from the legislative backing needed, had major shortcomings and imperfections.

These findings, though based on theoretical analysis, have been amply confirmed in practice by a wave of dismissals, suspensions and resignations of elected local councillors and mayors.

The circumstances, which have been brought to the attention of the Congress of Local and Regional Authorities of Europe in recent months, very plainly demonstrate the weaknesses and inadequacy of Romanian legislation on local self-government.

In the light of this information, the Congress, aware of the scale of the phenomenon and alerted by the chief associations of Romanian local authorities, has decided to make an early enquiry into the real situation of local democracy in Romania, with special attention to:

- the supervisory arrangements applied to local authorities by the central authorities;

- other relevant legal aspects which were the subject of specific comments during previous expert appraisals of Romanian legislation on local self-government made by the Council of Europe.

Accordingly, so as to establish the precise facts and prepare a detailed report, an ad hoc Working Group and its Rapporteur and Chairman in particular made several visits to Bucharest.

During its visits the Group, headed by Mr CHENARD (France), was able to meet:

- qualified high-level representatives of the Romanian Government who displayed remarkable frankness and helpfulness;

- suspended and dismissed mayors whose cases had been singled out by the Working Group's legal experts, using specific questionnaires, as notably symptomatic of the problems observed;

- representatives of the Association of Presidents of Romanian Judets (County Councils) and the Federation of Romanian Municipalities.

As the meetings proceeded, the experts of the Working Group also carried out:

- thorough enquiries with the administrative litigation bodies and Romanian judicial authorities concerned;

- a legal study of the legislation under which the measures to dismiss and suspend elected bodies were taken by the central administrative authorities;

- a comprehensive analysis of Romania's legislative framework for local self-government which, once again revealed the absence of legislative norms on local finance, municipal and regional property, status of local representatives and staff, inter-municipal co-operation and training.

 

PART I

SUPERVISION OF LOCAL BODIES: INSTANCES OF DISMISSAL, SUSPENSION AND RESIGNATION OF ROMANIAN MAYORS

I. THE DE FACTO SITUATION

During the period 1992-95 the Romanian central administrative authorities removed a large number of mayors and local councillors from office. Other mayors were suspended and still others tendered their resignations in writing.

This situation may be viewed in the general context of the returns at the last local elections in 1992:

- number of mayors elected in 1992: 2,951

- number of local councillors elected in 1992: 40,178

Breakdown of outgoing mayors and municipal councillors by political party

Party

Councillors

Mayors

Public Salvation Front, subsequently divided into:

16,051

1,403

Social Democrat Party of Romania - PDSR (government)

-

502

Democratic Party - PD (opposition)

-

901

Democratic Convention of Romania - CDR (opposition)

8,337

255

Agrarian Party - PDAR (opposition)

4,532

70

Independent parties

2,743

670

Democratic Union of Magyars - UDMR (opposition)

2,606

117

Party of Romanian National Unity - PUNR (government)

1,510

38

The figures relating to the local bodies which underwent a procedure of dismissal or suspension or tendered their resignations of their own accord may be summarised as follows:

- mayors subjected to an inquiry: 578 (20%)

- mayors whose dismissal was proposed by prefects: 205

including:

- number dismissed by the government: 133 (4.8%)

- number reinstated after appeal: 3

- number belonging to the government parties: 17

- number belonging to the opposition or independent parties: 116

Number of mayors suspended by prefects: approx. 50 (2%)

- mayors having resigned: 264 (10%)

- local councillors removed from office: 98 (0.22%)

II. ROMANIAN STATUTES ON LOCAL SELF-GOVERNMENT

1. Foreword

In general terms, it must be observed that the reasons underlying the cases of dismissal, suspension and resignation of so many elected local councillors and mayors can be ascribed to:

- the deficiency of the Romanian legislative framework for local self-government;

- the non-compliance of certain provisions of Romanian legislation with the fundamental principles embodied in the European Charter of Local Self-Government;

- inappropriate use of the existing legal instruments by the central administrative authorities and the judicial authorities, in some cases conflicting with the principles of the European Convention on Human Rights.

From a practical standpoint, the following should be noted:

- The Constitution, Law 69/91 on local public administration and Law 70/91 on local elections represent the only statutes currently in force which directly regulate the general conditions of organisation of local democracy in Romania;

- in Romania at present, there are still no statutory texts on local and regional property, local finance, or conditions of service and training of local councillors and staff;

- in this situation of legislative deficiency, local representatives can very easily perpetrate errors which are left for the government representatives to determine by virtue of an almost absolute discretionary power and under laws which confer it;

- no systematic action has been taken to organise training for local councillors or staff, despite the opportunities offered by the international institutions.

2. The Constitution

The provisions of the Constitution on local self-government provide that public administration in territorial-administrative units, localities and towns shall be based on the principle of local self-government and on that of decentralisation of public services (Article 119);

The Constitution provides that the local bodies are:

- the local councils and mayors, elected in accordance with the law, for localities and towns;

- the county councils, which co-ordinate the activities of local and town councils in order to provide the public services of county importance (Articles 120 and 121).

At a localised central level, the Constitution provides that the Government shall appoint a prefect in each county and in the city of Bucharest.

The prefect is the representative of the government at local level and directs any decentralised public services of the ministries and other central agencies in the territorial-administrative units (paragraphs 1, 2 and 3 of Article 122).

Regarding supervision of local authorities, the Constitution provides that the prefect may challenge in the administrative court an act of a county council, local council or mayor if he deems it unlawful (Article 122, para. 4).

In this connection it should be observed that the above process involves supervision of acts only, not of persons.

3. Provisions of Law 69/91 on local public administration concerning supervision of local bodies

Considering that the main focus of this report is the wave of dismissals, suspensions and resignations of Romanian elected local councillors and mayors, this section will deal chiefly with the provisions concerning supervision of local authorities by the central authorities.

In the Law on local public administration, the principles regarding supervision of the acts of local authorities are set forth in Articles 12, 88, 100b. and 101; however, the principles regarding supervision of persons are laid down by Articles 33, 34, 35, 41 and 46.

Consequently, the decisions to dismiss and suspend local councillors have been taken under the terms of the provisions concerning supervision of persons.

Article 34 in paragraphs b. and c. in fact lays down that a local council may be dissolved and the mayor dismissed by an order of the government following a reasoned proposal by the prefect if these bodies: (...)

- adopt decisions contravening the general interests of the state or violating the legal system;

- wilfully prejudice the interests of the locality or town.

Article 35 provides that local councillors may be dismissed under the same procedure if they commit acts contrary to the Constitution or wilfully prejudice the interests of the locality or town.

Article 46 of Law 69/91 stipulates that the prefect may decide on the suspension of the mayor from his duties for the duration of a judicial inquiry.

On the other hand, nowhere is the legal status of acts by local or regional authorities clearly defined. This is not strictly speaking a legal loophole, but the absence of a regulatory framework determining the status of local government acts could be regarded as a grey area in Romanian law whose clarification could usefully contribute to solving the problem under consideration.

Following the above synoptic presentation of the provisions governing supervision of local authorities, at this juncture, without embarking on a detailed examination of the aforementioned provisions of Law 69/91, attention is drawn to a peculiarity of the law which in our view is illogical.

As has been demonstrated, Article 122 of the Romanian Constitution, broadly defining the function of prefects, provides in paragraph 4 that the prefect may challenge in the administrative court the acts of local authorities, but no mention is made in the Constitution of a procedure for suspending or dismissing elected bodies.

The co-existence in Law 69/91 of provisions on supervision of acts (Articles 12, 88, 110.(b) and 101) and supervision of persons (Articles 33, 34, 35 and 46) is not incompatible with the concept of local self-government, but as a rule supervision of persons should be accessory to supervision of acts and even regarded as a kind of extrema ratio.

Law 69/91 could reasonably be said to follow the same logic, to the extent that in the general provisions (Chapter I), supervision of local government acts alone is prescribed by Article 12, to the exclusion of any controls in respect of persons.

However, this is where Romanian legislation is perceived as lacking coherence. The most common form of control - which should take precedence in that it is the least prejudicial to the principle of local self-government, as well as according to a systematic interpretation of Law No. 60/91, is supervision of acts, which compels the administrative authorities (in this instance the prefect) to use a less straightforward procedure than the one applying to persons.

Indeed, the supervisory procedure in respect of acts, if initiated by the prefect by virtue of the responsibilities vested in him by Article 122, paragraph 4 of the Constitution and by Articles 12 and 100 (b) of Law 69/91 and under the procedure defined by Article 101 of Law 69/91, comes to depend on the decision of the competent courts.

Conversely, the procedure concerning persons, in accordance with the provisions of Articles 34 and 41, is directly applied by the administrative authorities, it being possible for the persons concerned to appeal to the courts after the event.

It is this inverse proportion of procedural difficulty to gravity of interference with local self-government which is viewed as illogical.

One can therefore understand, as an examination of the practice very clearly shows, that the administrative authority may be disinclined to avail itself of the more cumbersome procedure and has consequently resorted systematically to one which it finds simpler but which, especially when applied in preference to the procedure concerning acts, conflicts with the general principle of law constituted by the proportionality of measures, as well as with Article 8 of the European Charter of Local Self-Government in particular, and even with Article 122 of the Constitution.

It is therefore considered advisable for this inconsistency in Law 69/91 to be remedied at the earliest opportunity, thereby permitting, it is hoped, the development of a practice more in keeping with European standards of local self-government.

Among the relevant provisions of Law 69/91, other aspects also deserve to be reviewed. For instance, the grounds of dismissal set out in Article 34 (b) and (c) - which prove in practice to be those most commonly invoked for the purpose of ordering dismissal - give far too much weight to considerations of expediency. In particular, it seems difficult for the prefect to determine "the interests of the locality or town", according to the ground of dismissal stated in Article 34 (c).

The interests of the population would seem to be more effectively guaranteed by the processes of free democratic elections at local level than by the ruling of an administrative authority not elected by the local population and purporting to represent its interests.

Since we are convinced that it does not represent the populations's interests, we consider this situation inconsistent with the democratic principles guaranteeing local self-government.

Lastly, to continue this succinct analysis of the terms of Law No. 69/91 as regards controls which the administrative authority may apply to persons, Article 46 relating to the suspension of mayors seems imprecise in using the terms "judicial inquiry". According to the Romanian experts consulted, this principle is not clearly defined in Romanian law anyway. Another inference which can be made, particularly by analogy with the provisions of other countries' legislation, is that it would be more correct to use the term "criminal investigation". This of course restricts the scope of the provision but, if the practice is judged by European standards of local self-government, it is evident that the present wording frequently results in an unduly broad application.

In this connection, we also consider it important to note that Article 46 of Law 69/1991 nowhere stipulates the moment when a judicial inquiry of a criminal nature actually begins. This lacuna enables the Prefect to suspend a mayor without any real criminal proceedings on the part of the prosecuting authorities and therefore without taking account of the safeguards which the Code of Criminal Procedure lays down with regard to the defence in the event of prosecution of a citizen, in accordance with the principles of the European Convention on Human Rights.

4. The provisions of Law 69/91 in the context of the principles established by the European Charter of Local Self-Government

The European Charter of Local Self-Government provides in Article 3 that "Local self-government denotes the right and ability of local authorities, within the limits of the law, to regulate and manage a substantial share of public affairs under their own responsibility and in the interests of the local population".

In keeping with this general definition, Article 8 of the Charter defines "Administrative supervision of local authorities' activities".

Thus it must be observed at the outset that only supervision of the acts of local authorities is envisaged, to the exclusion of any form of control over their agencies. It is not as if the Charter evades the issue of local elected representatives' conditions of office; Article 7, on the contrary, provides that "The conditions of office of local elected representatives shall provide for free exercise of their functions". Thus the Charter is rule out any practical or regulatory impediment to the performance of elected representatives' functions.

Further to these preliminary points, it is observed that where the supervision of local bodies is concerned, Article 8 of the European Charter of Local Self-Government lays down three fundamental principles:

The first principle, set forth in paragraph 1, is that "Any administrative supervision of local authorities may only be exercised according to such procedures and in such cases as are provided for by the constitution or by statute."

The Romanian Constitution, as shown in the above paragraphs, provides that the prefect may indeed challenge before the administrative court any act of a county council, local council or mayor deemed unlawful.

Yet no provision of the Constitution covers suspension or dismissal of local or regional elected representatives. From this standpoint, it is perceived that not all the instances of dismissal and suspension of local councillors by the central authorities were "cases ... provided for by the Constitution."

The second principle governing administrative supervision of local authorities' acts is laid down by paragraph 2, which provides that "Any administrative supervision of the activities of local authorities shall normally aim only at ensuring compliance with the law and with constitutional principles. Administrative supervision may however be exercised with regard to expediency by higher-level authorities in respect of tasks the execution of which is delegated to local authorities."

In fact the situation in Romania goes far beyond mere review of the lawfulness of acts. This is because the terms of Article 34 (b) and (c) prescribe a review of expediency for the specific purpose of deciding on the dissolution of a local council.

Such a provision is scarcely compatible with the principle set forth in Article 8, paragraph 2 of the European Charter of Local Self-Government. The current practice of the Romanian administrative authorities and the very extensive use made of these provisions to order the dismissal of mayors under Article 41 of Law 69/91 show that these provisions give rise to recurrent infringements of the principles embodied in the European Charter of Local Self-Government and should consequently be revised as soon as possible.

The third principle, viewed as the basis on which a solution to the current crisis of local self-government in Romania could most readily be found, concerns the proportionality of the controls. Paragraph 3 establishes the principle that "the intervention of the controlling authority is kept in proportion to the importance of the interest which it is intended to protect". In other words, this principle compels the authority, when intervening by means of administrative supervision, to avail itself of measures which will achieve the desired aim without, however, prejudicing other contiguous interests.

By this standard, the practice of the Romanian administrative authorities would seem highly questionable; the dismissal of a mayor definitely infringes the principle of local self-government. This may be warranted by certain exceptional circumstances. In most other cases, however, measures less damaging to the principle of local self-government, such as an appeal against the act(s) deemed unlawful, should be contemplated. Law 69/91 expressly provides in Articles 12, 100 (b) and principally 101 that the prefect may challenge a local authority's act on the ground of illegality.

However, the practice shows that dismissal of elected bodies is systematically preferred to measures against those of their acts which are considered unlawful. Consequently, the principle that the administrative authority's intervention when applying supervisory measures should be in proportion to their object is not observed in Romania as things stand.

This brief review of the principles laid down by the European Charter of Local Self-Government as to supervision of local authorities' acts, which in the case of Romania has been considered by analogy with the supervision of Romanian local government entities, particularly mayors, shows that the present situation is at variance with the principles of the Charter.

5. Provisions for the dismissal of mayors in other laws

The Group was of course unable to make an exhaustive analysis of Romanian legislation as a whole. Some of the laws most frequently invoked to order the dismissal of mayors were nevertheless found worthy of more detailed consideration. In Governmental Decree 728/1992 relating to implementation of Property Law 18/91, Article 17 (2) provides that "Any mayor who contravenes the general interests of the State shall be dismissed in accordance with the procedure under Article 41 of Law 69/91". Quite apart from the fact, itself subject to criticism and already criticised, that such a ground of dismissal allows considerable latitude in assessing the legality of action taken by mayors, it is considered odd to say the least that a law on property also issues the court with instructions on the dismissal of mayors, - a serious implication indeed. The object of the law is to ensure suitable distribution of property, and the dismissal of mayors is a matter without direct bearing on the allocation of real property units. The principles of legal systematisation as applied in a state founded on rule of law are not contravened by the inclusion of this provision in Law 18/91.

Since only a few Romanian laws have been analysed, it is not known whether similar directives are given to the courts in other laws. It must nevertheless be pointed out that the sanction constituted by the dismissal of a mayor is an extremely heavy penalty and can only be exceptional. Therefore its dispersal over different areas of Romanian legislation is unacceptable.

6. Tentative conclusions

In conclusion to this section dealing with the Romanian statutes on local self-government, we consider that the foregoing rigorous comparative legal analysis has pinpointed some of the difficulties raised by the current situation in Romania. Paradoxically, a situation which to all appearances is most alarming as regards observance of European standards of local self-government might prove to be the outcome of certain drafting inconsistencies in Law 69/91 which are unfortunately magnified by practice. The remedy may thus be more accessible than the initial analysis of the situation might have implied.

III. APPLICATION OF THE LAW ON SUPERVISION OF LOCAL AUTHORITIES BY THE ROMANIAN CENTRAL AUTHORITIES

After the above detailed analysis of the Romanian legal framework for local self-government in the light of the provisions of the European Charter of Local Self-Government concerning supervision of local bodies, this section, concentrating more on the practical side, will set out to clarify the actual effects of the application of Romanian legislation on supervision of elected local government bodies.

In this connection, it should firstly be observed that even the application of Law 69/91 by the Romanian authorities appears contestable in a number of cases, for various reasons.

1. Lack of proportionality

The enquiries made among the dismissed mayors reveal that in most cases the proposal to dismiss them was not preceded by action to set aside the measures which they had taken, as prescribed by Article 101 of Law 69/91. Yet numerous dismissal orders, as can be seen from the notices in the official gazette, invoke specific acts contravening Romanian law (very often Property Law 18/91). These acts were not challenged on the ground of illegality in accordance with the procedure prescribed by Article 101 of Law 69/1991 but were subsequently invoked in the course of a dismissal procedure, and this is plainly contrary to the principle of proportionality, a general principle of public law. The Department of Local Administration, presented with this argument, supplied the following statistics. In 1994, 1,092 local or regional government acts were challenged before the courts by prefects, viz:

- 44 acts of county councils;

- 26 acts of county council standing committees;

- 8 acts originating from county council presidents;

- 790 acts of local councils;

- 244 acts of mayors.

These figures show that administrative oversight of the acts of local government officials does exist. This is commendable, but the statistics show that observance of the principle of proportionality through sequential application of administrative sanctions is not secured. Indeed, local council decisions are referred to the courts far more frequently than those of mayors but it is often the mayors who are dismissed and only seldom local councillors or even local councils in a body. It could therefore be inferred that no link necessarily exists between administrative oversight of the acts of bodies and oversight of the bodies as such.

2. "Secrecy" of the procedures

The enquiry conducted among dismissed mayors established that:

- in a large number of cases the mayors were not informed of their fate by official notification but learned the news from an outside source such as the press.

- many elected representatives injured by an administrative decision are not informed of all the charges against them until they appear before the court of appeal.

- having regard to the fact that the law makes no provision on this subject, the competent authorities in no case gave grounds for the administrative decision to dismiss or suspend local elected representatives.

We therefore consider that the above-mentioned administrative procedures for the suspension and dismissal of elected local councillors and mayors are inadmissible in a state founded on rule of law.

3. Suspension of mayors without a judicial inquiry

Suspension decisions in particular do not always seem to comply with the terms of Law 69/91. Reportedly, certain mayors (at least 19 cases have been identified) were suspended without any "judicial inquiry" being instituted against them, that is to say the prefect acted in breach of Article 46 of Law 69/91. This conduct on the part of certain prefects may stem from a confusion between the terms of Article 35, stipulating that "the prefect may suspend from his duties any person whose resignation he has requested", and the provision in Article 46 that "the prefect may decide on the suspension of a mayor from his duties for the duration of a judicial inquiry." For the suspension of mayors, Article 46 alone should be applied. Article 35 in fact concerns the members of local councils and thus should not be applied to mayors; the only provisions concerning local councillors which are applicable to mayors are those contained in Article 34 (b) and (c) which are referred to by Article 41 on mayors, but there is no such reference to Article 35. Furthermore, according to the general legal principle of lex specialis derogat generali, Article 46 should, in case of doubt, take precedence over Article 35. Unfortunately, in certain decisions - particularly decision 65/19 VII 1994 - file 690/94 by the Iasi Court of Appeal - it is held that the prefect may suspend any person prior to dismissal, which amounts to giving Article 35 precedence over Article 46 even where mayors are concerned.

4. Lack of effective remedies against decisions

This is a very serious problem. Unlike the other problems considered, however, the difficulty does not stem from the interpretation of a given provision of Law 69/91 but from a combination of factors which make access to a remedy highly problematic.

First of all, the lack of detailed notification of the grounds for dismissal or suspension, and the failure to indicate the availability of an appeal procedure or the time limits for bringing an appeal, have prompted certain mayors - as they wrote in reply to the questionnaire drawn up by the Council of Europe experts - to refrain from appealing the decision. According to established case-law of the European Court of Human Rights, the accused person's knowledge of the available remedies against the charge is a necessary precondition for the existence of a genuine right of appeal.

In addition, many mayors lack the means to finance an appeal. When they mention financial difficulties, they mean not only procedural costs but also the effect of a very restrictive interpretation of Article 37 of Law 69/91 in fine: "For the duration of the term of office of the mayor and the deputy mayor, their contracts of employment with independent administrations, commercial companies with state capital or budgetary institutions shall be suspended." While the rationale of this provision is plainly understandable, a material difficulty arises where a mayor's suspension from office is decided by the prefect in accordance with Article 46 of the law. Indeed, suspension does not equate to termination of office, and mayors who elect to engage in gainful activity while suspended are automatically considered by the administrative authority to have desisted from holding office. This is seen as a wrongful interpretation of the provision in Article 37; it may not infringe the letter of the provision but nonetheless misrepresents its spirit. The outcome for many mayors deprived of income while suspended is that they must refrain from appealing for this financial reason and find another occupation instead.

Another impediment to the availability of an effective remedy, in this case against the dismissal procedure, arises from the holding of fresh elections within 60 days after delivery of the dismissal decision. An appeal to a court has virtually no prospect of succeeding within this time. The problem here has a number of facets. Firstly, it is not certain that the reference in Article 41 to Article 43 of Law No. 69/1991 takes account of the holding of fresh elections within 60 days. Article 34 does indeed cover the eventuality of a local council being dissolved, in which case there are no other local authorities to carry out its functions. In the case of a mayor whose office has not definitely lapsed, Article 41 in fine of Law 69/91 prescribes not the holding of fresh elections but the appointment of a deputy mayor by the local council as acting mayor in the interim. Considering the need for the local authority to function properly, it can of course be appreciated that the authority has to limit the periods of vacation of office or of uncertainty as to tenure. However, it is quite conceivable that in the event of a mayor succeeding in an appeal against the administrative authority, another mayor having been elected in the meantime, the court would find it hard to decide whose interests should be placed first. In one case, a mayor who had been dismissed was reinstated in his pecuniary rights (salary), but was not entitled to resume office as mayor because the court held that the illegality of the decision leading to the dismissal of the (first) mayor did not constitute a ground for invalidating the election of the successor. While there is indeed a material link of cause and effect between the two situations, it is difficult to establish a legal link whereby the new election could be invalidated.

More serious still is the attitude of a number of courts which reject appeals by dismissed mayors because fresh elections have already been held, so that they consider the appeal groundless (as the Supreme Court of Justice held in its decision No. 534/94). This stance is of course inadmissible from the angle of rule of law and constitutes an obvious denial of justice for the dismissed mayor. One way to avoid this stumbling-block is for dismissed mayors to accompany their appeal against the dismissal decision with a request for an interim measure involving the suspension of the procedure for fresh elections. The Supreme Court of Justice accepts such a request (eg decision 738/3X of 1994) but not all regional courts of appeal do so.

From the same point of view, we consider it unacceptable that a mayor should be barred from standing for fresh local elections on the grounds that he has been the subject of an administrative decision taken by the central authorities to dismiss or suspend him.

5. The role of prefects

Certain comments received during this enquiry indicate that some people see the prefects as performing an exaggerated role, especially as regards suspension decisions which lie to them exclusively. It has admittedly been established by the foregoing analysis that such decisions have led to infringements of Law No. 69/91 (see point 3 above), but we are not convinced that this finding would substantiate the claim that prefects necessarily perform an exaggerated role. However, they are thought to make improper use of their control over the elected agencies of local authorities - particularly mayors, as the statistics prove - to the detriment of control over their acts. We can account for this tendency by the fact that for a prefect the supervisory procedure in respect of persons has the form of an exclusively administrative procedure (it becomes judicial only where the dismissed mayor lodges an appeal with a competent court), whereas the supervisory procedure in respect of acts is of necessity a judicial procedure whose outcome is consequently less certain from a prefect's standpoint.

Furthermore, it was ascertained from a detailed analysis of the case files of mayors who were suspended by order of a prefect that in certain cases the order was approved the same day as, or even the day before, the opening of the judicial inquiry by the magistracy.

This state of affairs has prompted us to acknowledge that in some circumstances, given that the Romanian Constitution stipulates that the State Counsel's Office is a judicial organ depending on the Executive, there might linger a form of confusion, or indeed collusion, between the administration and the judiciary.

 

PART II

INSTITUTIONAL RELATIONS BETWEEN CENTRAL, FEDERAL OR REGIONAL AUTHORITIES AND LOCAL AUTHORITIES: COMPARATIVE LAW STUDY

I. FOREWORD

The question of the administrative controls which central authorities (or regional authorities in federal states) can apply to local authorities certainly provides one of the best yardsticks of the scope and effectiveness of local self-government in a European state. The Congress of Local and Regional Authorities of Europe is furthermore conducting work on the study of "institutional relations between central and regional authorities and local authorities" in the Working Group on "Monitoring the implementation of the European Charter of Local Self-Government".

The studies highlight the importance to be attached to these comparatively technical questions, whose answers nevertheless determine the actual degree of autonomy enjoyed by decentralised authorities.

All countries without exception have one or more forms of administrative supervision of local authorities. There follows a brief survey of the arrangements and practice applying in various European states.

II. CASES, TYPES AND POLITICAL AND LEGAL CHARACTERISTICS OF SUPERVISION OF LOCAL AUTHORITIES IN CERTAIN COUNCIL OF EUROPE MEMBER STATES

In Germany, the national legislation has established review of legality which can be applied to all local government acts, but not automatically. Although it applies chiefly to acts, in certain Länder, if such supervision proves consistently inadequate and prompts repeated infringement of the law by local bodies, it may be lead to a procedure where local authorities are supplanted by the appointment of a commissioner. Thus there is a sequence of control, as follows:

- right of the authority to ask to be informed;

- disapproval expressed by the controlling authority regarding an act of a local authority;

- application to the judicial bodies to have the impugned act set aside;

- where the judicial order is not executed, transfer of decisional power and mandatory execution;

- where local authorities systematically infringe the law and refuse to take remedial action, the controlling authority may order the appointment of a commissioner to take over some or all of the local authority's functions. "Considering the gravity of such interference in local affairs, the controlling authority can only resort to this measure within very strict limits."

- In certain Länder it is even possible for the controlling authority to call for the dismissal of the mayor, but only after all the above measures have proved ineffective.

The notable aspects of the supervision system as applied in Germany are therefore the very full range of instruments which it offers for the purpose of supervision, and the sequential character of the measures, which must be applied strictly in accordance with the principle of proportionality. The commentators nevertheless observe that "despite the ostensible severity of central government control measures, it is quite unusual for such action to be taken in respect of a local authority".

In Austria, the system of administrative supervision of local authorities markedly resembles the German one described above in its foundation and its machinery. Suspension or dissolution of a local authority is thus possible but is to be regarded as an ultima ratio to be resorted to only when no other means of ensuring observance of the law is workable. In all eventualities, oversight is confined to legality and may not take into consideration the expediency of decisions. Lastly, the Constitution prescribes procedural safeguards for local authorities subjected to a supervisory procedure, of which they can avail themselves by appealing either to the Constitutional Court or to the administrative courts.

Belgium relaxed central government oversight of the communes in 1984, despite which it remains "one of the most stringent systems of control in Western Europe"; the Belgian supervisory machinery is found on close examination to be ponderous and complex. Article 162 of the Belgian Constitution provides for "intervention by the controlling authority or the legislative power to prevent infringement of the law or prejudice to the public interest". Thus the fundamental Belgian statutes evidently do not rule out a form of review of expediency where offences against the public interest are to be determined, although in practice it is sparingly applied. The essential distinction between this rigorous supervisory system and the procedures applying in Romania, however, is that in Belgium only the acts of local authorities are subject to oversight, and this facility does not enable the controlling authority to take measures against local authority bodies. Article 162 of the Constitution, forming the basis of this control system, is moreover undergoing a revision procedure at present.

In Denmark, the principle of local self-government secured by the Constitution is coupled with the central government's right to supervise the activities of local authorities. Supervision is restricted to the legality of local government acts and is performed only where illegality is blatant. As to direct oversight of local government bodies, there is no legal basis for suspending or dismissing a democratically elected local authority. It is nevertheless possible, subject to certain conditions, for a local councillor to be convicted by the courts of failing to honour his obligations, with the imposition of a fine; this is the only available sanction - apart from criminal convictions which have nothing to do with elected office - against elected local bodies in Denmark.

In Spain, the extent of local autonomy was principally determined by a Constitutional Court ruling of 2 February 1981 which declared it unconstitutional for any controls regarding the expediency of local government acts to be carried out by a higher authority (except in cases specifically founded on the Constitution) and, most importantly, held unconstitutional the power to suspend or dismiss presidents or members of local assemblies whether for misconduct, gross negligence or reasons of public policy. Even a proposal to suspend a local authority for a period of not more than sixty days in a case involving the public interest was considered contrary to the constitutional principle of autonomy. The same decision clearly states that all supervision, whatever its form, can only relate to the legality of acts and not to their expediency. Section 61 of Law No. 7/1985 on the foundations of local government nevertheless provides for two exceptional circumstances which may lead to the dismissal of an elected local body. Apart from the very strict substantive requirements, such a decision must be issued by the Council of Ministers with the prior approval of the Senate.

In France since 1982, the only avenue left open to the state authorities has been appeal to the appropriate court concerning acts of local authorities. No appeal of an administrative nature may result in the suspension or dismissal of bodies elected at local level. In the event of criminal proceedings against a local councillor, his mandate can be affected solely by an enforceable court decision.

In Greece, the existence of supervision in respect of persons may suggest, as the Greek Council of State seems to infer, that the Greek local authorities do not enjoy autonomy. However, it should be emphasised that this state of affairs did not prevent Greece from ratifying the European Charter of Local Self-Government, though admittedly with reservations. Procedures leading to suspension (limited to a maximum term of three months) and "removal from office" are set in motion by the prefect either for non-compliance with specific obligations or for reasons of public interest. These prefectorial decisions may be challenged by those concerned firstly through appeals to higher administrative authorities and subsequently by judicial appeal if need be; in the latter case an appeal has a suspensive effect and the suspension or dismissal measures are not enforced until final judgment is delivered. It should be pointed out, however, that these procedures have not actually been applied since the dictatorship ended.

In Ireland the 1941 and 1946 Local Government Acts enable the Minister responsible for Local Government to dismiss local councillors in four cases:

- inability to perform a function defined by law;

- failure to establish an adequate level of taxation or to authenticate the accounts;

- decisions taken without a quorum;

- failure of the administration to perform its functions in a satisfactory manner. It is observed that at least one of the grounds for dismissal relates to expediency, so that the Irish system can be said to remain one of the most centralised existing in Europe. In practice, two cases of dismissal were recorded in 1969 and one in 1985, which shows that such a procedure retains an exceptional character quite unlike what has been observed in Romania.

In Italy, the legislation does indeed define cases where controls may apply to bodies elected at local level. Organic Law 142/1990 and Law 81/1993 enable the President of the Republic to dissolve a local council at the proposal of the Ministry of the Interior:

- where the local authority violates the Constitution;

- where the local authority repeatedly and seriously breaks the law;

- for reasons of public policy;

- where satisfactory operation of the local authority's entities and services cannot be secured.

In addition, the laws against organised crime (anti-mafia laws) specify circumstances in which elected bodies may be dismissed. Any measure taken by the controlling authority in respect of elected bodies is appealable, but the appeal does not have an automatic suspensive effect (this must be secured by the appellant's request to the court, which is obliged to grant it except where the appellant is manifestly insincere). In practice the first type of dissolution does not seem uncommon although, considering the large number of Italian municipalities, the figure is certainly below 1%. The second case (collusion with organised crime) is uncommon.

Luxembourg recognises a supervisory system reminiscent of the Belgian pattern. It is applied solely to acts of local government bodies, to the exclusion of any administrative control over the bodies themselves.

In the Netherlands, it is also the principle of supervision which governs the controls applied to local authorities by the national authorities. There are three types of supervision: preventive, repressive and substitutive. The first two types concern the acts of local authorities, while the third directly affects the status of local representatives in that the local elected bodies may be replaced, the States Deputy (provincial executive) replacing the municipal council and the Commissioner of the Queen acting for the mayor (mayors are not elected by universal suffrage in the Netherlands). In practice, this form of supervision has been applied only 5 times since 1850, most recently in 1948. Repressive supervision is thus "regarded both in theory and practice as the ultimum remedium".

In Portugal, the law refers to the concept of administrative supervision equating to review of local government bodies' observance of the law. This form of supervision solely concerns legality and can in no circumstance be applied on grounds of expediency. Furthermore, it is applied only to the acts of local authorities and not directly to their constituent bodies.

In the United Kingdom, the concept of local government is by definition incompatible with the idea of control exercised by a higher authority. However, any person who considers himself injured by the action of a local authority may appeal against one or more of its acts, in which case the civil courts will need to review the legality of the acts challenged. Under the financial control or auditing procedures, one or more local councillors may, in the event of proven illegality, be sentenced to a fine (and in serious cases possibly declared ineligible for office) if held accountable for a deliberate misappropriation.

In Turkey, the 1982 Constitution empowers the Minister of the Interior to suspend mayors until final judgment. According to the report submitted for Turkey in reply to the CLRAE questionnaire on institutional relations between central and regional authorities and local authorities, 17 cases of suspension were observed in 1992, 12 in 1993 and 12 in 1994. The writer of this report finds the proportion quite sizeable (1.23% of mayors over a period of three years); it should nonetheless be pointed out that the suspension order is provisional and that the judicial authority has sole decision as to the dismissal of a councillor. Pending the decision, a mayor is elected ad interim. This means that on delivery of judgment the interim mayor's term of office ends and either the former mayor is reinstated or fresh elections are held. From the angle of interim measures, this represents a major contrast with procedure in Romania.

Insufficient data were available to consider all states of Europe, but those studied appear suitably representative. Furthermore, the financial control procedures, which concern budgets - ie not the acts of local authorities or the councillors themselves- have been left out of account. On the other hand, this brief overview of current methods clearly illustrates the divergency of the solutions adopted; some countries strictly prohibit any control affecting the representatives personally whereas others recognise such forms of control. In the latter case, however, it should be observed that the practice reveals an extremely cautious application of this type of control, with the possible exceptions of Italy and Turkey. Moreover, in all cases where a sanction can be imposed by the controlling authority on local authority members or staff, it is apparent firstly that in many countries this possibility is never or very seldom resorted to in practice, and secondly that the decision to make use of it is invariably subject to effective remedies before a competent court (judicial authority) and not before an administrative authority.

 

PART III

CONTACTS WITH THE ROMANIAN GOVERNMENT REPRESENTATIVES

During the aforementioned visits to Romania, the CLRAE Working Group met the following Romanian Government representatives, in that order:

- Mr COZMANCA - Secretary of State for Territorial Public Administration;

- Mr HREBENCIUC - Secretary General of the Government;

- Mr CONSTANTINESCU - Director of International Relations with the Ministry of Foreign Affairs;

- Mr VACAROIU - Prime Minister.

From these encounters the Working Group has gained the impression that the government representatives, while invoking the serious economic situation and the congestion of Parliament as reasons for the shortcomings of the legislation on local self-government, do acknowledge:

- the imprecise nature of the contested provisions of Law 69 and the need for alignment with the Constitution;

- the need for a town planning law, reportedly in preparation following a Council of Europe expert mission;

- some abuses by prefects due to retrograde attitudes and lack of training;

- absence of a law on national public property;

- some difficulties in separating administrative and judicial authority owing to the state of transition.

The Group also sensed the Romanian Government's determination:

- to undertake revision of Law 69 and also of some other laws if possible;

- to ratify the European Charter of Local Self-Government.

The Working Group's impressions are now supported by a written official statement from Mr HREBENCIUC expressing satisfaction over the constructive discussions held with the CLRAE representatives and informing the Group Chairman and the President of the Congress on behalf of the Prime Minister that:

- the questions raised are before the Government, which intends to present Parliament at an early date with an amended draft of Law 69/91 in keeping with the Constitution;

- the Government will make sure the draft revised version of the law is adopted by Parliament early enough to be in operation before the local elections scheduled for next spring;

- the Congress of Local and Regional Authorities of Europe will be informed of the proposals for amendment of Law 69/91.

In this connection, the Government officially requests that the Council of Europe legal experts be consulted in the final preparation of the draft for revision of Law 69/91.

The Romanian Government's statement, appended to this report, bears further testimony to the value of the dialogue established between the Romanian authorities and the representatives of the Congress of Local and Regional Authorities of Europe as a starting-point for modernisation of the system regulating the organisation of local government in Romania.

 

PART IV

CONCLUSIONS

I. FOREWORD

The Council of Europe experts, previously consulted as to the conformity of Law No. 69/1991 with the European Charter of Local Self-Government, despite some misgivings over a number of articles, had expressed reasonable confidence in the Romanian system's capacity to ensure the satisfactory operation of local self-government.

The relevant practice, especially the very large number of mayors dismissed, suspended or having resigned their office, shows that the gamble was somewhat over-optimistic and that serious problems persist.

However, despite these discouraging facts, and having regard to the positive results achieved by the Working Group of the Congress of Local and Regional Authorities of Europe through its commitment, we hope that this report on local democracy, to which the Romanian authorities also contributed with constant openness and helpfulness, may now represent a new departure towards genuine improvement of the conditions under which local self-government is exercised in Romania.

Furthermore, we are convinced that such an exercise is essential for genuine endogenous economic development and that a sound democracy permeating all the institutional levels will help Romania to take its place in the current European political and economic co-operation activities.

We therefore conclude our work with proposals which may help Romania through the present arduous and complex phase of democratic and economic transition, and possibly contribute to a valid plan for the modernisation of the country's local government.

The Council of Europe should express its readiness to assist the Romanian authorities in this work of reform through the LODE programme.

II. PROPOSALS

1. Revision of Law 69/91 on local public administration

During discussions between the Romanian governmental authorities and the Working Group of the Congress of Local and Regional Authorities of Europe, the Romanian Government officials informed the Group that the Department in charge of local public administration was proceeding with revision of Law 69/91.

On this subject, the Department officials expressed the wish that the Council of Europe experts should be consulted at various stages in the preparation of the revised law in order to ensure its compatibility with the principles of the European Charter of Local Self-Government.

For these purposes, it is stressed that the revision of Law 69/91 should be :

- prepared sufficiently in advance of the local elections scheduled for February 1996;

- consistent with the provisions of the Romanian Constitution;

- in keeping with the principles established by the European Charter of Local Self-Government an by practice in a large majority of Council of Europe member countries.

In particular, it should have the following characteristics as regards supervision of local bodies :

- emphasis on supervision of the decisionsmade by local bodies rather than on the people making them, with the possibility of any act deemed contrary to law being suspended by the controlling authorities until a final decision has been reached by the competent judicial authority;

- elimination of all controls regarding the expediency of local bodies' acts where performed in accordance with those functions of their office which are an integral part of local self-government, this form of administrative supervision being confined to the responsibilities delegated to local authorities by a higher authority.

Where the removal of elected local councillors and mayors is concerned, we consider it important to refrain from applying this procedure except after a criminal conviction of sufficient gravity to warrant reconsideration of the mandate conferred by universal suffrage.

Likewise, the procedure should be designed in such a way that elected local councillors and mayors are suspended only in the event of a flagrant second offence on at the explicit request of the judicial authorities in the course of a criminal investigation, in so far as the suspension is genuinely necessary for the purposes of the investigation in hand.

It would accordingly be desirable for corresponding measures, in keeping with the revision of Law 69/91 as regards supervision of local bodies, to be taken at a particular level in order to reinstate unjustly suspended mayors and councillors in their rights, and for dismissed mayors whose innocence is proven to be offered compensatory payments equivalent to the damage sustained, together with restoration of their good repute with a view to the next local election.

In addition, at the policy level the Romanian Government should, on the one hand, prevent cases of political tension from becoming any sort of incentive for controlling and sanctioning local bodies, and, on the other, instruct prefects to comply with the administrative procedures laid down in the law and, in the event of suspension, to ensure that elected local councillors and mayors are :

- either informed forthwith of the duly reasoned decision so as to make defence arrangements ;

- or informed beforehand of the grounds for opening a judicial inquiry ;

- able to appeal to the administrative and judicial litigation bodies ;

- not deprived of all means as at present, but guaranteed their emoluments pending the judicial decision.

As to the provisions regarding county councils (Judets), legislative revision should, on the one hand, provide for the direct election of the council in accordance with Article 3 (2) of the European Charter of Local Self-Government and the reinforcement of its functions and, on the other, clarify the executive responsibilities of the president of the permanent delegation in relation to those of the government's peripheral representatives.

The county council, we consider, should become a real driving force of regional action and truly representative of the country's diverse geographical, economic and cultural features.

With this end in view, it would be advisable for the functions of the county council to be supplemented by the same transfrontier co-operation responsibilities as are held by the localities.

This suggestion is warranted by the fact that transfrontier co-operation occurs principally at regional level.

Lastly, at the same time as revising Law 69/91 on local public administration, the Romanian authorities should take steps to ratify the European Charter of Local Self-Government.

2. Enactment of supplementary legislation on the operation of local self-government

The operation of local self-government is not confined to the formulation of the principles embodied in the fundamental law on local authorities.

A number of more specialised supporting enactments are crucial to the proper functioning of local authorities.

Draft laws should be prepared at the earliest opportunity - with the co-operation of Council of Europe experts where necessary.

In this connection, we would stress the need to draw up:

- a law on local budgets and finance consolidating independent local taxation and establishing objective criteria for financial transfers to local authorities, looking to the goals of financiaL equalisation on which balanced national development absolutely depends;

- a law on the property of local and county councils, crucial to effective local management;

- a law on town planning on which the Council of Europe experts have already given an opinion;

- regulations governing the conditions of office of local representatives, separate from the civil service regulations, capable of protecting councillors and mayors in the performance of their functions, and going beyond the present Article III of Law 69;

- regulations governing the conditions of service of local government staff, adequately distinguished from the state civil service regulations and safeguarding local self-government in accordance with Article 6 of the European Charter of Local Self-Government.

3. Training programmes

Proper functioning of local self-government in the interests of the Romanian people will not follow solely from a regulatory system, however elaborate. It is men and women at all levels who will make public administration in Romania work properly. Consequently, it is considered one of the essential requirements for workable local self-government in Romania to set up training programmes in conjunction with partners in Council of Europe member states.

Such programmes, specifically concerned with effective operation of local self-government in the interests of the population, should be offered to the following "target groups":

a. Ministry officials

b. Prefects

c. Local councillors

d. Local and regional authority staff.

The Romanian authorities should accordingly make efforts:

- to take advantage of the offers of technical and/or financial assistance extended by international organisations, particularly the Council of Europe (LODE programme), the European Union (PHARE programme), the OECD and the World Bank;

- to achieve the necessary partnership with associations representing the local and regional authorities of Romania and which similar associations in other European countries which are prepared to assist the Romanian associations.



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