Manifestations of the abuse of power in the romanian legislation regarding the prefect's office -constitutional censoring of this abuse of power - Case study

• Author: Marta Claudia Cliza
• Position: Nicolae Titulescu University
• Pages: 29-36

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I General presentation of the prefect's institution

According to art. 123 of the Constitution, the prefect is the representative of the Government at the county level, but from the overall interpretation of the constitutional norms, it results the following capacities of the prefect:

1. Representative of the Government;

2. Chief of the state services at the county level (Bucharest municipality);

3. Authority of administrative guardianship for the surveillance of the law to be observed by the local public administration authorities.

Art. 123 of the Constitution of Romania, revised and republished, stipulates that the Government will appoint a prefect in each county and in Bucharest Municipality and that this one is the representative of the Government at the local level. Paragraph 3 of the same article stipulates that the prefect's attributions will be set by the organic law. At first, Law no. 215/2001¹ regarding the local public administration had a chapter designated to the prefect, but the provisions of this law were abrogated through the coming into force of Law no. 340/2004² regarding the prefect' s institution. The new regulation creates a modern system of the public sector management through the increase, sometimes too much, of the part of the prefect's institution. The prefect, just as the sub-prefect, belongs at present to the category of the high public officials. The appointment of the prefect is made by the Government as its representative at the local level and the appointment is made at the proposal of the Ministry of Administration and Internal Affairs. In art. 4 of the law, it is

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stipulated that the prefect's activity is based on the principles of lawfulness, impartiality, objectivity, transparency, efficiency, responsibility, citizen orientation, and the management of the decentralized public services of the ministries and of the other bodies in the central public administration in the administrative- territorial unit is the prefect' s attribute and competence.

Out of the prefect's attributions, maybe the most interesting one from the legal point of view is the one stipulated by art. 123 paragraph 4 of the Constitution and art. 26 of the law, which is, the possibility to bring before the administrative court the administrative documents issued by the authorities of the local public or county administration, except for the management documents, if it considers that they are illegal. The contested document is legally suspended. This prerogative of the prefect bears the name of administrative guardianship (it should be mentioned in this context also that this article of the law was brought before the Constitutional Court³)

The prefect also appoints through order the secretary of the administrative - territorial unit and of the subdivisions of the municipalities as a result of the contest organized according to the law, or it orders this one' s disciplinary sanctioning except for the county general secretary and respectively, of Bucharest municipality.

The development of the individual professional performances of the prefects is made by a commission set based on the conditions of Law no 188/1999 regarding the status of the public officers, republished.⁴ In order to carry out the attributions that are granted to it by law, the prefect issues orders with individual or normative character, which have to be communicated and brought to knowledge by publication.

II Development of a legal norm - problem of the prefect's excess of power

In fact, the current study pursuits the development of a legal norm starting with Law no. 215/2001, then, the way how the same idea is resumed under a different shape in Law no. 340/2004 and finally, the present form of this legal norm after the modification of Law no. 340/2004 through Emergency Ordinance no. 179/2005⁵, approved in its turn by Law no. 181/2006⁶.

As I pointed out in the content of the paper, we found first the provisions that regulated the prefect's institution in Law no. 215/2001 - law of the local public administration.

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The text approved by the current analysis was art. 133 of Law no. 215/2001 that ordered in paragraph 2 that: "The appointment and dismissal from a position of the heads of the decentralized public services of the ministries are made with the prefect's consultative approval within the law."

In its three years of applicability, this text has created its own jurisprudence. For this reason, we point out that Resolution no. 8462 on November 24 2004 of the Court of Cassation⁷ basically considers that "the management positions in the public administration should be occupied as a result of an examination. The occupancy of such a position by another person without having the examination is illegal. The prefect's approval, requested for the registration in the exam based on Law no. 215/2001, has a consultative character." Considering this cause, the case has in view the action introduced by a person that passed an examination organized for the occupancy of a position of director with Suceava Fiscal Control Department, but who had not received the approval from Suceava County Prefect' s Office. Suceava Court of Appeal recorded that, according to art. 133 of Law no. 215/2001, the prefect leads the activity of the local public administration authority. The appointment and dismissal from position of the heads of these authorities are made with the prefect's approval and without this approval being granted, the appointment of the plaintiff was correctly finalized, although he had passed the examination. Against this sentence, it was declared recourse admitted by the Court of Cassation that pointed out the consultative character of the prefect's approval.

The above-...