In the practice of Costaș, Negru & Asociații we also approach matters of pure Administrative Law, such as the litigation regarding the validation of a local councilor’s mandate.
We believe a state governed by the rule of law political parties are a fundamental pillar of democracy, playing an essential role in representing citizens’ interests, and local councilors in the administration of administrative-territorial units. However, in legal practice, we are often confronted with situations in which the mandates of local councilors are unlawfully invalidated as a result of internal party conflicts or failure to comply with legal procedures. These cases draw attention to the urgent need to strengthen transparency and legality in the decision-making process, both of the political parties and of the authorities involved.
Local councilors play a crucial role in local government. They are elected by universal, direct and secret ballot to represent the local community and help take decisions of public interest. Their mandate is exercised on the basis of legality, impartiality and transparency and is indispensable for the proper functioning of local government.
The validation of the mandate of local councilors is the operation between the moment of election and the oath. This operation, which involves various administrative and judicial actors, checks that local councilors have been legally elected. Once a local councilor has been declared elected, they assume office only after their mandate has been validated and they have taken the required oath. The exercise of a councilor’s mandate is contingent upon the validation of that mandate. According to the doctrine, validation is an operation by which a state or local public authority designated by vote of the electoral corps is confirmed to occupy and exercise the office.
Validation is carried out by the court only if the person in question fulfills several conditions, contained in Art. 114 para. (2) of Emergency Ordinance No. 57 of July 3, 2019 on the Administrative Code and if the procedure prescribed by law is followed. These conditions must be met cumulatively and are as follows: domicile in the electoral area, eligibility to vote, submission of the detailed report of electoral income and expenses in accordance with the provisions of the law on the financing of political party activity and electoral campaigns by the coordinating financial agent; not resigning from office before validation; election was not made through tax fraud.
Proof of fulfillment of the aforementioned conditions shall be provided by the following documents, which shall be submitted to the court by the secretary general of the administrative-territorial unit: copy of the identity card; criminal record; confirmation of membership of the party on whose list the candidate was elected or the final judgment of the court; submission of the detailed report of electoral income and expenses in accordance with the provisions of the law on the financing of political parties and electoral campaigns by the coordinating financial agent; proof of non-renunciation of mandate pursuant to Art. 115 of the Emergency Ordinance no. 57 of July 3, 2019 on the Administrative Code; documents regarding the results of the elections submitted by the electoral office in the district of the court in whose territorial radius the electoral district for which the elections were held is located.
If all these conditions are met, the elected councilor’s mandate is validated within 25 days from the date of the local government elections at the latest, in a non-contentious procedure by a ruling of the council chamber, without the regularization procedure being applicable.
However, there are many cases where the validation or invalidation of a mandate is influenced by internal party conflicts. This highlights the tension between the individual rights of councilors and the internal discipline of political parties.
A practical example recently handled by the team of lawyers Costaș, Negru & Asociații illustrates the complexity and importance of strict compliance with legal procedures in delicate situations in the sphere of public administration and politics. In this case, our client, elected as a local councilor on the lists of a political party, was subject to a decision to invalidate his mandate, based on the alleged loss of his membership of that political party. Our legal team contested both the exclusion decision, which violated the party’s internal rules, and the decision of the Turda Court that invalidated our client’s mandate, despite his compliance with all legal requirements for validation. This approach has highlighted the importance of a well-founded legal defense to protect the legitimate rights and interests of persons involved in complex decision-making processes.
Thus, by the judgment recently rendered by the Cluj Tribunal, we managed to obtain a favorable solution for our client, in the sense of admitting the appeal and ordering the validation of the mandate of local councilor. The appeal procedure was carried out swiftly given the urgent nature of the resolution, i.e. 5 days from the filing of the appeal in accordance with art. 114 para. (6) of Emergency Ordinance no. 57 of July 3, 2019 on the Administrative Code.
The Tribunal held that exclusion from the political party could not serve as grounds for invalidating a local councilor’s mandate unless the exclusion decision had become final, either due to the lack of an appeal or following a definitive court ruling.
In the present case, from the documents submitted in the appeal file, it appears that the appellant had contested the exclusion decision before the Party’s Ethics, Integrity, and Arbitration Commission, and as of the Tribunal’s ruling, the exclusion decision had not reached finality. Therefore, the precondition for invalidating the mandate was not met, and there was no legal barrier to the validation of our client’s mandate.
The Tribunal further emphasized the clarity of Article 114, paragraph (2), letter (c) of Emergency Ordinance No. 57/2019, which explicitly states that the invalidation of a mandate is only possible following a final exclusion decision from the party on whose list the councilor was elected. This provision is based on the reasonable premise that appeals can be admissible, which may alter the finality of an exclusion decision.
On the basis of the Cluj Court’s decision and the information obtained during the trial, we have concluded that, in order to prevent abuses and protect the rights of local councilors, there are two applicable solutions. The first solution is to challenge the internal party decisions, which has the direct effect of suspending the measures imposed until the final resolution of the challenge. The second solution involves lodging an appeal against the ruling of invalidation by the court competent to validate such mandates, offering the possibility of correcting possible administrative errors. Thus, whenever deviations from the statutory rules occur, such as lack of convocation, uncertain quorum or insufficient reasoning, the above-mentioned solutions can be applied to remedy the situation and ensure that legitimate rights and interests are respected.
This case clearly highlights the complexity of the interaction between the internal discipline of political parties and the public mandate exercised by local councilors. Although political parties have the prerogative to establish their own internal rules, this organizational autonomy is conditional on the respect of the legal framework, of their own statutory rules. These requirements are not optional, but are essential to ensure a fair and transparent decision-making process.
In our client’s case, the invalidation of his mandate based on a loss of party membership, although ostensibly justified by the party’s internal rules, required careful scrutiny to ensure compliance with legal principles. A decision unsupported by a sound legal foundation or one arising from procedural errors can have profound consequences, potentially infringing upon the fundamental rights of the individual and undermining the principles of local democracy.
This case serves as a reminder that the public mandate of a local councilor, which is bestowed by the trust of the electorate, cannot be subject to arbitrary decisions within a political party. The right to hold and exercise a public mandate is not merely an extension of political affiliation, but a civic and legal responsibility that must be safeguarded against abuses.
This article was prepared for the blog of the law firm Costaș, Negru & Asociații by lwy. Sabina-Cătălina Maerean, from the Arad Bar Association.
Costaș, Negru & Asociații is a law firm with offices in Cluj-Napoca, Bucharest and Arad, which provides assistance, legal representation and advice in several practice areas through a team of 18 lawyers and consultants. Details of the legal services and the composition of the team can be found at https://www.costas-negru.ro.
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