I leave a document I think, good in very good shape and in the background. An issue that affects every day is more newsworthy and less funny: the mania of mayors "enlightened" of trying to restrict rights to do what they want in their municipal work.
is a bad start for a mayor, want to restrict rights, and is a good start for those who want to lead their local politics, to defend them. Defend freedom of expression, the supervisory work of the opposition groups, forums for debate and discussion ... defend, ultimately, the values \u200b\u200bof our Constitution.
I said, I leave this legal challenge, and from the blog, our suspense who covers regulations that seem more fundamental laws that Democracy Act. --------
SANXENXO City Council of the Town Council ORGANIC RULES CHALLENGE.
******, in my capacity as local representative for the party *******; I appear before you and
SAY:
That, August 6, 2009 has been published in the Official Gazette of the Province extract regular full agreement of the Municipal Corporation of Sanxenxo held on 28 July in under which it agrees to the initial approval of the Town Council of Professional Regulation, giving interested parties within thirty days from that publication for the formulation of arguments to the text.
The political organization that represents you want to disagree with some of the content of the regulation, may object to the final approval thereof, and indicating their willingness to challenge by judicial, if not rectified the issues and then outlines the procedure in each case is delimited.
STATEMENT OF DISPUTED
FIRST. OPPORTUNITY.
In the text adopted, and aside from occasional technical correction would consider enriching the document sets severe limitations on the exercise of oversight and control functions that correspond to the political groups with municipal representation. Time constraints and limitations on content.
As expressed to the precision necessary thereafter, the difference between considering both kinds of limitations as a way of streamlining the institutions or as a restriction of rights is a close but sometimes, as the present one, obvious line.
And they have included, among others, the Popular Party councilor Socilista Party and even the Canary Islands in the City of La Laguna in Tenerife, at the adoption by Canary Coalition, Party in the Municipal Government of an ordinance the same scope as that which concerns us today, have described it as "biting" to "try to reduce to a minimum margin of maneuver that has the opposition to control the government team" subscribes to the Party Popular de La Laguna, and we affirm. What he wants the Municipal People's Party Group of Sanxenxo is muzzling the opposition and try to reduce if not eliminate the possibility of monitoring and control of the Group of Government. And as also expressed by representatives of the Partido Popular "limits the fundamental rights for the councilors of the opposition." And we affirm.
And they wonder why it is possible that the Partido Popular de La Laguna bitterly criticize something Sanxenxo People's Party intends to adopt. Well, the reason is more of legal logic. The regulations in force and cited in the Regulations approved, does not limit whatsoever with respect to the supervisory work of the opposition parties, so there is no legal cover to the extent that it seeks, if it is true that a court decision has tolerated some limitation introduced by the Regulations of the type at hand, but the problem is that the proportionality test from that moment is not in the hands of the law but the ruling and criteria established jurisprudence outlined above are not taken into account.
So fit limitations when given course as plenary delegations, plenary commissions, city councils of major cities, extended periods of use in the House or large number of motions, questions, etc ... in each of the plenary sessions. When none of these cases there is no logic we have a limited space and time in running the administration, but in pure restriction of a fundamental right, hence the Popular Party councilor despair La Laguna, as VIPS and so we made the allegations contained in this document and which, again, have not favorably received in the final document will be challenged in court. SECOND
. LEGALITY. I
ordinary legality.
In this section we proceed to explain, with the sole aim of enriching the document has been under consideration, those defects which we understand is the document that are merely ordinary legal imperfections constitute no restriction of fundamental rights and therefore reviewable under ordinary:
A. Article 7.1.a).
In the regime of rights of access to records, data and information held by municipal technical services, Articles 5 and 6 of the Regulation provide potential paths, the first request to the Mayor and with the rules provided in article 5 and the second, without notice and / or prior authorization when referring to the matters contained in article 6 º.
Despite the above, article 7 whose appeal we are concerned, establishing a regime to govern for consultation and examination of records and it provides for a restriction not covered in previous articles:
"... The issuance copies and issuing certifications are limited to those referred to in paragraph c) of the preceding article and the circumstances in which it is authorized by the Mayor ... ".
understand that such a restriction is inappropriate for application of Articles 77 of Law 7 / 1985, 226 of Law 5 / 1997 Local Government autonomous Galicia and 14 and 16 of the Rules of Organization and Functioning Legal System of Local Government, all in conjunction with the content of Articles 23.1. and 23.2. of the English Constitution as establishing the right of the council, given its status as public representative, to obtain as much information through consultation and / or issue of copy, is relevant to the role it plays.
For all we quote the content of the Judgement of the Tribunal Superior de Justicia de Galicia, Division of Administrative Litigation October 31, 2007 in which it makes a summary of the Constitutional Court Judgement 177/2002 of 14 October and 203/2000 of 15 October:
"THIRD .- The question is similar, as argued by the appellant, the Board ruled on by the City Council regarding the same in Case 1 March 2006 ruling on the appeal 379/2005 roll, even in this If preferred procedure is invoked to protect fundamental rights.
was said in that statement, and must reiterate now, by applying the principles of equality, legal certainty and unity of doctrine: "As has summarized the Constitutional Court 177/2002 of 14 October, remembering what which was entered in the previous STC 203/2000, of October 15, FJ 2, in a line of decisions that begins with the SSTC 5 / 1983, 4 February, and 10/1983 of 21 February, the Court itself has established a direct relationship between the right of an MP (extendable to a council as a political representative of the people) ex art . 23.2 ("to equal access to public functions and offices, with the requirements laid down by law") and that the Constitution conferred on citizens to participate in public affairs (art. 23.1), for "they are primarily political representatives of the people who give effect to their right to participate in public affairs ", as stated also in the STC 107/2001 of 23 April, FJ 3. So that the right Art. CE 23.2 EDL1978/3879 and, indirectly, that art. 23.1 recognizes citizens, would be worthless, or would be ineffective, if the political representative of the private saw or disturbed in the exercise (SSTC 10/1983 of February 21, FJ 2, and 32/1985 of 6 March, LC 3). This direct link between the two constitutional requirements for inferring that it is a "legal right to own" and that configuration includes parliamentary regulations and regulation of the actions of the council on local government regulations, which regulate and manage responsibility rights and responsibilities that they hold. That is why we must turn to this of local regulations in this case for purposes of analyzing whether there has been denouncing the violation. "
FOURTH .- And, in relation to that end, it was stated that" This brings us to the interpretation of regulations common knowledge relevant to the resolution of this dispute, such as the Law 7 / 1985 of April 2 EDL1985/8184, regulating the Local System or the Rules of Organization and Functioning Legal System of Local Governments, approved by RD 2.568/86 of 28 noviembreEDL1986/12278, and complementary legislation.
"... Article 77 of Law 7 / 1985 dated April 2, and 226 Regional law 5 / 1997 of 22 July, Local Government of Galicia, state that "all members of the local governments are entitled to have the Mayor or Chairman of the Committee on Government how many records, data or information held by Corporation's services and accurate results for the development of their function. " For his part, Article 14.1 RD 2568/1986 regulates the right above the reported identically in the previous paragraph, it being understood granted access to information by administrative silence after five days (art. 14.2), specifying that right in the office and examination of the records, books and documents in general, well in the general file or in the unit where it is, either by delivering a copy thereof or member of the Corporation concerned (art. 16). "Adding, in relation to access to payroll" In terms of access to payroll staff in the service of concello is reasonable to refuse it, it is not necessary because all economic data relating to them is included in general budgets concello as well as templates and a list of jobs and that personal data be protected by Law 5 / 1999 of 13 December. None of these arguments are convincing, primarily because, in order to appropriate performance of the work of control that corresponds to a councilman, one of the objectives of the review of payroll check might be just coincidence with what is in the general budgets of concello, in templates and a list of jobs and the finding that salaries are paid correctly due so not enough information that they provide, and secondly because ROF Article 16.3 provides for the possibility that local members of the Corporation have access to information that is reserved facilitate their development of their role, for which secrecy must, which is perfectly applicable to this case covered up the protection of the Organic Law 5 / 1999 through this duty of confidentiality. What we do not decide this question it is the mere invocation of the legislative hierarchy, saying that LO 5 / 1999 EDL is superior to ROF, since in reality the comparison is with the exercise of fundamental rights derived from article 23.1 EC and 23.2 corresponds to the actor, and you can not see restricted or constrained as alleged in this could lead to a limitation of that fundamental right unaffordable in the performance aspect of the role of a Councillor as representative of the citizens .
So enjoy the right of a council to obtain information covering constitutional, legal and regulatory, which information is essential for the proper performance of the functions of supervision and control of municipal management, it is clear the unlawful actions of Defendant City Council and, more specifically, its mayor and secretary, the actor does not provide the requested information completely, especially considering the appropriateness of it to the proper role of a Councillor "
And as regards the right to obtain copies of those documents indicated that" Regarding copies of the documentation, which has implicitly been rejected, Article 14.1 RD 2568/1986 regulates the right access to municipal information and documentation, understanding granted access to information by administrative silence after five days (art. 14.2 ROF), specifying that right in the consultation and review of the records, books and documents in general or in the general file or in the unit where you are, either by delivering a copy thereof or member of the Corporation concerned (art. 16 ROF). Even if we analyzed the situation regardless of the status of petitioner's information council photocopying, joint and harmonious reading of the arts. 18.1 e) and 70.3 of Law 7 / 1985, in relation to art. ROF 207 and art. 35, Law 30/1992 of November 26, would determine that any resident of a municipality, and more if it meets the condition of interest, has the right to know at any time the status of processing procedures which have the condition involved, and "copies of documents contained in them." Also, the art. 37 of the latter statute allows access to the finished file (paragraph 1), leading the right to such access or certified copies of documents whose examination is authorized by the Administration. It is therefore clear that the plaintiff is entitled to obtain copies of the documents. "
All of this as the budget Councilmember the right to full access to the files in question, including obtaining copies, resulting in this case identical statement, and thus the resource estimate.
Therefore, and given the principle of legal reserve and the need to accommodate the contents of the statements contained in this regulation as expressed by the rules cited in its second article, proceed to rescind the restriction contained in Article 7.1) regarding limitations on the issuance of copies.
B. Article 16.4. CHALLENGE FOR THE FREQUENCY OF THE MEETINGS OF THE COMMISSION REPORT.
As a consultative body before both the House of the Corporation and the Local Government Board, the Advisory Committees shall be convened in ordinary, and except in cases of urgency, with the same frequency that the House not only but also that the meetings of the Local Government Board. Therefore, the regulation should make mention of the mandatory pre-call meeting of the Local Government Board.
II restriction of fundamental rights.
In this section we will discuss the limitations to citizen participation through ownership restrictions their legally elected representatives in the organs of government oversight and control.
A. Article 16.2. CHALLENGING THE NORM OF WEIGHTED VOTING IN COMMITTEES INFORMATION.
Article 16.2. initially adopted Regulation provides that the opinions will be approved by the weighted voting system by which each member is granted the Commission a number of votes equal to the number of components of the political group represented or, if no Councillor affiliated member of the Commission, the total number of councilors who do not belong there in the Corporation.
Articles 123 and 125 of the Rules of Organization and Functioning and Legal System of Local Authorities cited as apply in the second article of the Regulation in question, and the interpretation given to them, under Article 23 of the English Constitution by the Constitutional Court in its Judgement 30/1993 of January 25, 32/1985 of 6 March and reflected in Supreme Court Decisions, including the November 30, 1995, February 8, 1999, makes it illegal and unconstitutional establishment of the system of weighted voting on the Advisory Committees .
We are not unaware of the fact that in any case as the Autonomous Community of Aragon, the regional rules provide for such a possibility and that same, so far has not been challenged and this could provide some legal cover to the councils of the region. Nothing is further from the truth. The Court is unanimous in the treatment of the problem is that the compositions and method of operation of the Advisory Committees should respect the system of proportionality of the Whole on the one hand and the principle of delegated voting of the council, on the other. This implies, as rightly down sentences that are reproduced below, the unconstitutionality and illegality of the contents of the second paragraph of Article 16 of the Regulation as finally adopted is proposed:
SS.TT.SS. on February 8, 1999.
"CUARTO." The starting point of the appellant's argument is that the challenged agreements that establish the weighted vote in the Advisory Committees, adopted within 30 days of the inaugural meeting of the City Council has the rank equivalent to that of Professional Regulation. But while it may be arguable that the case of singular administrative act of the plenary, as the decision affects the Corporation in the very essence of their organization and functioning in a way that can be argued that a result can not be compared to the orderly will Ente a singular act but a payer will the City organization, is also difficult, considering the content and development of such agreements, the proposed Regulation on Organization assimilation of the Corporation prevails over the provisions of Article 125 ROF, as interpreted by this Court Judgement dated November 30, 1995, precisely on the admissibility of composition of the Advisory Committees which was to respect the proportionality through the use of weighted voting mechanism. But in any case, whatever the nature of the arrangements discussed in plenary is unquestionable that they can not violate the principle that is implied in Articles 20.3, 46 and 47 LBRL and operating rules of the legal rule itself prevents the Information Commission, como en el Pleno, los Concejales puedan estar representados por otros para poder computar los «quorum» necesarios para la constitución o decisión puesto que el voto de los Concejales es personal e indelegable, y ello es así, incluso desde la propia perspectiva del artículo 23.2 CE. Así el Tribunal Constitucional, precisamente en la STC 30/1993 que la parte recurrente invoca, señala que no es admisible constitucionalmente una composición no proporcional de las Comisiones Informativas ya que, al ser divisiones internas del Pleno, deben reproducir en cuanto sea posible la estructura política de éste, para evitar que se elimine la participación de los Concejales de la minoría en la fase de estudio y elaboración proposal, which is of paramount importance, and steal to prevent the minority to participate fully effective in the final study of the decision. And, as has had occasion to point this Court in the aforementioned Judgement of 28 November 1995, the establishment of the weighted vote in these committees is beyond the power of self-organization on whose behalf the City Council and defense uses, since it harms the individual status councilors, as well as the principle of proportionality as justified on the constitutional principles identified. For while it is true that municipal agreements, which establish the weighted vote, possibly this could be achieved proportionality It would be only the functional aspect of the adoption of agreements by the committees, but not its structure or composition.
SS.TT.SS. of November 30, 1995.
"
LEGAL FIRST. The original ruling has nullified the municipal agreements relating to the Standing Advisory Committees, as a complementary body of the City of Villajoyosa, under Article 20 c) of Law 7 / 1985 dated April 2, have been endowed with a composition which is set in such agreements as a single Councillor or, where appropriate, a deputy from each political party who has obtained council at City Hall, but giving each Councillor a weighted vote, which represents the total number of Councillors obtained by his party. SECOND
. The arguments put forward by the city of Villajoyosa, which lacks the Municipal Organic Regulations do not allow to alter the approach taken by the Board of Valencia on the only question which brings this appeal, which is limited only to the admissibility of a composition the Advisory Committees that tries to respect the proportionality through the use of weighted voting mechanism. Article 125 b) of the Rules of Organization and Functioning Legal System of Local Government, approved by Royal Decree 2568/1986 of 28 November (ROFRJEL) provides que cada Comisión Informativa estará integrada de forma que su composición se acomode a la proporcionalidad existente entre los distintos grupos políticos representados en la Corporación. El Tribunal Constitucional ha declarado (sentencias 30/1993, de 25 de enero, y 32/1985, de 6 de marzo) que no es admisible constitucionalmente una composición no proporcional de las Comisiones Informativas ya que, al ser divisiones internas del Pleno, deben reproducir en cuanto sea posible la estructura política de éste, para evitar que se elimine la participación de los Concejales de la minoría en la fase de estudio y elaboración de propuestas, que es de trascendental importancia, y para evitar que se hurte a la minoría la opportunity to participate fully effective in the final study of the decision.
THREE. After discussing the agreements challenged in the end the same as those discussed in the appeal and the various allegations and reports that support them, consider this room that they go beyond the power of self-organization of City Hall appellant, by harming the individual status Councillors and be contrary to the essential objective pursued by Article 125 of ROFRJEL. The above provision contains, in effect, a mandate of proportionality as justified by the constitutional principles that are expressed and affect the composition of the Advisory Committees. It is true that the City Council Agreements Villajoyosa that proportionality could be achieved, but only in the functional aspect of the adoption of resolutions by the Committees and not the structure or, as the wording of Article 125 b) of the Rules of Organization, "its composition." Just remember that according to Article 123.1 of the Advisory Committees are ROFRJEL organs without adjudicative functions essentially have the function of the study, report or query issues that are to be submitted to the decision of the Plenary and the Committee on Government when it acts with powers delegated by Parliament, to conclude that the weighted voting system adopted does not serve to respect the mandate of proportionality in some organs of study, report and consultation as the Advisory Committees in which proportionality is essentially structural or functional composition and not or deliberative. That conclusion also properly respects the individual status of Aldermen and the principle of the personal vote to be delegated from Article 99.5 in conjunction with Article 138 of ROFRGEL, without, in short, the claim is meritorious that the City Council the agreed is no alternative to the operating performance of the above Advisory Committees.
Therefore the indication should be revoked weighted voting members of the respective Councillors Advisory Committees, and shall have such a parity basis with respect to the House in its composition, but not transferable, and non-weighted vote based on the number of Councillors attending these sessions.
B. INVALIDITY OF SECTION 4 ª. LIMITATION ON MOTIONS IN NUMBER, ANY OTHER QUESTIONS TO ASK FOR COUNCIL MEMBERS OUTSIDE THE MUNICIPAL GOVERNMENT GROUP
Article 32 of the Regulation limits the number of motions to three per session and by political group in the Regular Full Article 33 of that limits the number of petitions to be submitted by the members of the Political Groups of three also, like article 34 limited to three the number of questions to ask. Such a restriction, if it is not preceded by a legislative amendment that covers it, is a measure of restriction of fundamental rights provided for and protected by Article 23 of the English Constitution, more so if the number of motions, questions and / or requests approved is a number so small as the one at hand.
This is reflected, inter alia, the resolution stated below:
SS.TT.SS.JJ. Canary February 23, 2005.
"The starting point is the motion control of the team's performance municipal government, and as such, a function opposition groups, so that any interpretation of the law should be a constitutional interpretation, that is, in order to promote the right of political participation.
Thus, reducing the number of motions to present to the full discussion or take, depending on the subject, to the full commission, could not be understood as a reductive modification of the fundamental right provided that a legal reserve or a legal basis for the decision narrowly.
accommodate precisely on the legality of municipal regulation later reduced to three the number of motions to be submitted by political group there is a contentious-administrative process that continues to the First Section of the Court, as both parties recognize
.- However, in the present case, what matters is that the exclusion of floor debate two motions filed by the appellant, in his capacity councilman and spokesman for a political opposition group, had no reserve requirements on the date on which presented and celebrated the full, both as neither was in effect the Organic Rules of the House and the Committees of the Full Council (as we have noted in previous Fundamentals), nor was it possible to justify such a referral to the committee with full support in the Explanatory Memorandum of Law 57/2003 on Measures for Modernization of Local Government, as the Preamble, preambles and introductions in general, any legal body no direct legal force, notwithstanding their undeniable interpretive value, and for heralding the explanatory memorandum of law is the novelty of the introduction of full fees, which are referred to in Article 122.4 of the LBRL (in the new version) which states that will correspond to those functions delegated to them by full accordance with the law, This is a possible delegation under the law, which is recognized in the abstract - but not here stating that it had conducted on the date of the motions the development of general provision to establish the framework of the delegation or that there was any coverage that enables the delegation regarding the motions presented by the political groups or Councillors for discussion at the full "...
(...) In short, Article 129.1 of the Act land was in force, and part of that blqoue autonomic regulation intended to regulate in detail the organization and functioning of the state bases of local government and therefore served as a framework for the submission of motions, so it can be concluded that under this framework, there was no limitation, no legal justification for the exclusion of the debate in the plenary those presented by Councilwoman for the reasons that were excluded, so it can be concluded that it violated their right to political participation and that the action, the extent to which aims, must be upheld ....
For these reasons, you
REQUEST OF: What of this application has the filing of the opposition to adoption of the rules as set out above, shall proceed with the introduction of amendments thereto, are expressed by annulling those provisions cited as being contrary to right contained in Article 23 of the English Constitution.
SANXENXO, September 3, 2009.
SRA. MAYOR PRESIDENT OF THE City Council of Sanxenxo.
0 comments:
Post a Comment