Termination of Local Councilor Mandate. Annulment of Prefect’s Order

Costaș, Negru & Asociații has recently completed successfully a litigation on the annulment of a Prefect of Arad County’s order to establish the lawful termination of a local councilor’s mandate (at the time, the deputy mayor).

In fact, this order had been automatically issued by the Prefect of Arad County following a request sent by e-mail by the party to which the deputy mayor was a member of and it was based on the attribution conferred to the Prefect by article 12 of Law no. 393/2004.

Before the administrative courts of law, we have succeeded in demonstrating that the Prefect’s order is illegal, provided that:

– The ruling on exclusion from the party had not been communicated directly to the deputy mayor, but only to the Prefect of Arad County.

– The deputy mayor (the claimant) had not even had the theoretical possibility to challenge his exclusion from the party. The contentious administrative courts have pointed out that by the Constitutional Court Decision no. 530/12.12.2013, article 16 paragraph (3) of the Political Parties Law no. 14/2003 was declared unconstitutional precisely because the access to justice for challenging the decision of exclusion was blocked.

– The order was in fact issued by the Subprefect of Arad County, although there was no act on the basis of which the Prefect had delegated to the Subprefect the power to issue the order for the establishing of the legal termination of the local councilor’s mandate.

– In a theatrical manner, the Prefect’s order had been issued the day before receiving the e-mail from the political party concerned.

For these reasons, by civil judgment no. 25/11.01.2018 of the Arad Tribunal and civil judgment no. 1266/11.06.2018 of the Timișoara Court of Appeal, the illegality of the Prefect of Arad County’s Order was established.

It must be noted that the current procedure for establishing the lawful termination of the mandate of an elected local councilor through a Prefect’s order has many deficiencies. Perhaps the most serious problem, however, is the interpretation that the Prefect Institution gives to the text, in the sense that no checks on the reality of exclusion from a political party and its definitive nature are necessary (after following all the internal legal remedies and eventually appeals before the contentious administrative court), with the Prefect going to issue the order for establishing a legal termination at the simple request of a political party.

Clearly, such an exclusion denied by the contentious administrative courts also has consequences, with the Prefect, the political party, and possibly the local councilors who have subsequently dismissed the deputy mayor answering for the prejudicial administrative acts.

The team that assured the legal representation consists of Mr. Cosmin Flavius ​​Costaş, PhD, Mrs. Lia Pricope, Ms. Maria Tuşa and Ms. Alexandra Mureșan.

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