Venice Commission report on Pre-trial detention of mayors
www.venice.coe.int
This information was gathered by the Secretariat of the Venice Commission on the basis of replies to the questionnaire by the members of the Venice Commission.
Every effort was made to accuratly reflect the replies.
Question 1
Under which circumstance(s) can the pre-trial detention of a mayor lead to their permanent/temporary suspension? What kind of guarantees exist?
En Algérie, la suspension d’un maire (président d’assemblée populaire communale – APC) en cas de détention provisoire est prévue par la législation, notamment par le Code communal (loi n°11-10 du 22 juin 2011 relative à la commune).
La législation andorrane ne prévoit pas de suspension définitive ou temporaire lorsqu’un/e maire (cònsol major) est en détention provisoire. Conformément au code pénal andorran, il faut qu’une peine de suspension ou d’inéligibilité soit prononcée pour qu’un/e élu(e) soit cessé(e) temporairement ou définitivement dans ses fonctions publiques. De plus, l'article 17 de la Loi qualifiée 44/2022, du 12 décembre, sur le régime électoral et le référendum énumère les causes d'inéligibilité et le paragraphe 4 indique que sont également inéligibles les personnes condamnées par une sentence définitive à une peine privative de libertés, pendant la durée de celle-ci.
According to Article 117 para. 2 of the Federal Austrian Constitutional Law (Bundes-Verfassungsgesetz), mayors are elected by the Gemeinderat, the representative body on local level, elected by the voters. Article117 para. 2 Bundesverfassungs-Gesetz entitles the Länder to deviate from this and provide the direct election of mayors by vote of the electorat by way of a constitutional law (Länderverfassungsrecht). Six out of nine Länder made use of the authorisation until now.
En Belgique, les trois régions sont compétentes pour le statut des bourgmestres. Il en résulte qu'il existe trois réglementations en la matière : une de la Région flamande, une de la Région wallonne et une de la Région de Bruxelles-Capitale.
Canada is a federal country. Municipalities are under the jurisdiction of the provinces, and provinces may delegate by-law making authority to municipalities. As a consequence, laws governing municipal matters vary significantly across the country. Moreover, the power to make substantive criminal law in Canada lies with the federal order of government. The rules governing pre-trial detention are set out in the Criminal Code, which is a federal statute. To answer the above questions, then, it is necessary to understand how federal, provincial and municipal laws interact.
Paragraph 141 of the Code of Criminal Procedure stipulates:
The relevant provisions depend on whether it is the mayor or chief executive.
Compte tenu des règles applicables en France, il convient de répondre globalement aux deux questions.
Regulation on the status of mayors in German law
Under the Local Government Code now in force in Greece (: Law 3463/2006 as amended), there are no special rules regulating the pre-trial detention of mayors. If committed to trial for felony, Article 146 of that Code provides that mayors are suspended (τίθενται σε αργία) by the head of competent Region, whether they are detained or not. The suspension lasts until the Court of Appeals, acting as a First Instance Court, issues its verdict. If the accused mayor is acquitted, the suspension is considered as never imposed.
Mayors do not have immunity. In case of a pre-trial detention, the safeguards of rule of law according to Art. B) (1) of the Fundamental Law of Hungary and of constitutional law and of substantive and procedural criminal law apply.
Icelandic law contains no explicit provision requiring the suspension of a mayor (sveitarstjóri/bæjarstjóri) if they are placed in pre-trial detention. However, under Article 54 of the Local Government Act No. 138/2011 (Sveitarstjórnarlög nr. 138/2011), the municipal council (sveitarstjórn) is the mayor’s employer and determines the terms of their employment.
Irish law has limited provision for pretrial detention. It can arise for very short-term investigative purposes and further a person charged with a serious offence might be denied bail for reasons including the prevention of a serious offence by that person.
I. The legal provisions adopted by the Knesset
Article 11 of Legislative Decree No. 235 of 2012 provides for the automatic suspension of mayors against whom the judicial authorities have imposed the coercive measure of pre-trial detention, as set out in Article 285 of the Code of Criminal Procedure.
According to the Law of the Kyrgyz Republic of October 27, 2021 No. 125 "On the state civil service and municipal service", the mayor is a political municipal position, to which, among other things, this Law applies. That is, it is important to take into account that, unlike many countries, the mayor is an appointed, not an elected person.
Article 124(1)2 of the Korean Local Autonomy Act provides:
Temporary suspension:
According to the Latvian Local Government Law (available in English translation: https://likumi.lv/ta/en/en/id/336956-local-government-law) pre-trial detention of a mayor would not automatically lead to their suspension. The only direct reference to criminal proceedings can be found in Article 16 of the Local Government Law which concerns a situation when a security measure has been applied within the context of criminal proceedings prohibiting specific employment (Article 243(1)(3) of the Criminal Procedure Law, available in English translation: https://likumi.lv/ta/en/en/id/107820-criminal-procedure-law). If a person has been prohibited to serve as a mayor as a pre-trial security measure, they cannot be nominated for the position of a mayor or to continue to serve in such a position if the security measure has been applied after their election. Otherwise the suspension from the position of mayor is possible only if the mayor “fails to comply with or violates external legal acts or fails to enforce court judgements” (Article 69(1) of the Local Government Law).
There are no specific rules regarding a permanent or temporary suspensions of mayors under certain circumstances. The law does not allow for the dismissal or suspension of an arrested mayor.
In responding to this question, it should first be noted that in Lithuania the constitutional right to local self-government is exercised through municipal councils and municipal mayors (see Constitution, Article 119(1), as amended by Law No. XIV-1028 of 21 April 2022, Register of Legal Acts, 21-04-2022). Municipal mayors are elected for a four-year term by citizens of the Republic of Lithuania and other permanent residents of the relevant administrative units, on the basis of universal, equal and direct suffrage by secret ballot (see Constitution, Article 119(2), as amended by Law No. XIV-1028 of 21 April 2022, Register of Legal Acts, 21-04-2022).
The Law on Local Self-Government (Official Gazette of the Republic of Macedonia, No. 5/2002; Official Gazette of the Republic of North Macedonia, No. 202/2024) does not employ the term “suspension,” but rather the terms “impediment” and “absence.” Article 52, paragraph (5) of the Law provides that the mayor shall designate a council member to substitute for him/her in cases of impediment or absence, in accordance with the procedure determined by the statute. The situation of pre-trial detention falls within this provision, as a case of impediment or absence of the mayor. However, the Law does not specify who is responsible for determining whether the mayor is impeded from performing his/her duties or is absent.
Under Article 12 of the Local Government Act 1993 (CHAPTER 363 LOCAL GOVERNMENT ACT To make provision for the setting up of Local Councils).
There is no specific provision related to pre-trial detention.
The Law No. 436/2006 on local public administration outlines the specific conditions under which a mayor may be suspended from office. Article 33 of this law states the following:
Aucune disposition légale ne prévoit que le maire soit tenu de démissionner en cas de poursuite ou de détention provisoire. En cas de condamnation définitive, le peine d’inéligibilité peut être prononcée.
Legal basis:
El inciso 3) del art. 25 de la Ley 27972, Ley Orgánica de Municipalidades, regula que, por acuerdo de Consejo puede suspenderse en el ejercicio de cargo a un alcalde en lo siguiente:
Pre-trial detention is treated in the Act on Municipal Self-Government as a temporary impediment to performing official duties, not as an automatic termination of the mandate or a permanent suspension. Article 28g of the Act specifically lists pre-trial detention as one of the circumstances constituting a “temporary impediment”; in such cases the duties and powers of the mayor are assumed by the deputy mayor (where there are several deputy mayors, by the first deputy). If no deputy has been appointed, those duties are assumed by a person designated by the Prime Minister (Arts. 28g and 28h of the Act on Municipal Self-Government).
In the Portuguese criminal procedure system, pre-trial detention (article 202, paragraph 1 and subparagraphs, of the Code of Criminal Procedure - CPP) does not constitute the appropriate preventive measure to determine the suspension of functions; the suspension of functions can constitute, in itself, a coercive measure, applicable under the terms and conditions set out in article 199, paragraph 1, subparagraph a), of the CPP - suspension of the exercise of a profession, function or activity, public or private.
According to the Constitution (art. 23) and Criminal Procedure Code (art. 202), in the Romanian legal order, any form of pre-trial detention is regulated only for criminal matters.
Within the European context, the Republic of San Marino has a unique legal system due to its small size and population, which inevitably also influence the structure of its local public institutions. With an area of approximately 61 km² and a total population of less than 35,000, the local administrative organisation is divided into nine extremely small municipalities (the number of voters is also small), called "Castelli" (Townships), each with its own Township Council and led by a "Capitano di Castello" (Head of the Township Council).
Local governance is primarily regulated in the Municipalities Act no. 369/1990. However, neither that nor any other law addresses this issue.
The general rule is that the pre-trial detention of mayors does not imply their permanent or temporary suspension. Suspension can only occur when a final judgement is issued in criminal proceedings, provided that criminal law establishes suspension or dismissal as a possible penalty, the proportionality of which must be established on a case-by-case basis.
To begin with, Sweden does not have “mayors” who have general competence in law to lead the work of a local authority in all its areas of competence. The closest position is “kommunalråd”, a member of the elected local assembly (council) who is chosen (by the political majority) to lead the work of the local authority, either generally, in one or more areas.
D’après mes recherches, il n’existe que très peu de textes légaux qui répondent approximativement aux questions soulevées. Pour ce qui est de la première question, les dispositions – pour le petit nombre de textes que j’ai trouvés – ne formulent que ce qui se passe lorsqu’un maire n’est plus en mesure de remplir ses tâches pour des raisons de démission ou de décès. Je n’ai trouvé aucune disposition qui touche le cas d’une détention provisoire. Dans une législation, il est prévu qu’il faut une condamnation à une peine privative de liberté ou à une amende pour des délits qui sont incompatibles avec la dignité de la fonction en question.
The Republic of Türkiye is a unitary state. In addition, the principle of local administration has been adopted and maintained together with the unitary state form since the establishment. Pursuant to Article 123 of the Constitution, titled "Integrity of the administration and public legal personality"; “The administration is a whole with its formation and functions, and shall be regulated by law.
In Ukraine, there are no special legislative acts on local self-governance regulating permanent/temporary suspension of a mayor: neither the Law “On local self-governance in Ukraine” (No. 280/97 as of 21 May 1997), nor the Law “On the status of the local councils’ deputies” (No. 93-IV as of 11 July 2002) contain the provisions on this issue.
Algeria
Voici les points essentiels :
1. Suspension temporaire
- Lorsqu’un maire (ou tout membre de l’assemblée populaire communale) est placé en détention provisoire dans le cadre d’une poursuite judiciaire, il est suspendu de plein droit de ses fonctions, le temps de la détention.
- Cette suspension n’entraîne pas automatiquement la perte définitive du mandat. Elle est provisoire, en attente de l’issue de la procédure judiciaire.
- Durant cette période, un intérim est assuré par un vice-président de l’APC ou par un membre désigné selon la réglementation.
2. Cessation ou suspension définitive
La suspension devient définitive et équivaut à une déchéance du mandat si :
- le maire est condamné par une décision judiciaire devenue définitive (c’est-à-dire non susceptible d’appel ou après épuisement des recours) pour un crime ou un délit portant atteinte à l’honneur, à la probité, ou à l’ordre public ;
- le wali (préfet), après constat, propose sa radiation de l’assemblée au ministre de l’Intérieur, et la décision est entérinée par décret.
3. Garanties prévues
- Principe de présomption d’innocence : la suspension pendant la détention est provisoire et ne préjuge pas de la culpabilité.
- Droit de recours : le maire ou ses représentants peuvent exercer des voies de recours contre la décision judiciaire ; la suspension suit l’évolution de la procédure.
- Réintégration : si le maire est libéré sans condamnation définitive (non-lieu, acquittement, relaxe ou abandon des poursuites), il est réhabilité et réintégré automatiquement dans ses fonctions.
- Contrôle administratif et juridictionnel : les décisions du wali ou du ministre peuvent être contestées devant la justice administrative (Conseil d’État).
Andorra
Austria
Permanent/temporary suspension of a mayor has to be determined by law. The same is true for the permanent/temporary suspension of the mandate in the Gemeinderat which can be relevant if the mayor is member of the Gemeinderat at the same time. In Austria, as a federal state, the respective competence lies with the Länder. They have to establish the legal framework for the election of the mayor and the end of his/her mandate respecting the relevant provisions of the Bundes-Verfassungsgesetz.
According to the Bundes-Verfassungsgesetz, mayors as heads of the municipalities have two different types of duties and responsibilities. Firstly, they perform in their function as local self-government without being part of the hierarchical structure of the administration of Bund and Länder. Secondly, they are the lowest part of the public administration and thereby forming a part of the hierarchical structure of the administration of Bund and Länder.
Acting in the second function (part of the public administration) mayors can lose their office if they intendedly or carelessly violate the law in fulfilling their duties and responsibilities (Article 119 para. 4 of the Bundes-Verfassungsgesetz). The decision to remove a mayor from office is taken by the Landeshauptmann or the Landesregierung and can be challenged with the Landesverwaltungsgericht (regional administrative court) and subsequently the Constitutional Court by the mayor. This procedure is not dependent on a possible pre-trial detention. Acting in the first function (local self-government) the respective laws in the Länder of Kärnten, Salzburg and Vorarlberg provide for an analogue loss of office of a mayor.
Furthermore, according to the respective provisions of the Länder mayors can be removed from their office due to
- incompatibility with other functions enumerated in the law,
- early recall according to the respective procedures in the law. Where a recall is established by law, it is designed as a vote of non-confidence and accordingly a political vote not dependent on a pre-trial detention,
- end of the mandate in the Gemeinderat (if it is precondition for the office of a mayor).
In some Länder, a mayor is removed from office if he/she has lost the eligibility to the office of the mayor or to the Gemeinderat (if it is precondition for the office of a mayor). Pre-trial detention is not a reason for losing the eligibility. Only a criminal conviction (by a tribunal) may in specific cases include the temporary loss of the eligibility which subsequently may result in the removal of office.
In the Land of Kärnten, the respective law provides for a loss of office of a mayor if he/she is finally convicted of a crime that can be sentenced with an imprisonment of more than a year.
To summarise, there is no provision that allows to suspend a mayor permanently or temporarily due to his/her pre-trial detention.
Belgium
Aucun de ces règlements ne contient de disposition explicite pour le cas où le bourgmestre serait placé en détention.
Il existe toutefois des dispositions concernant, d'une part, l'absence du bourgmestre et, d'autre part, la suspension et la destitution du bourgmestre pour faute disciplinaire grave.
Le texte de ces dispositions est reproduit ci-dessous.
Région flamande : décret 22 décembre 2017 sur l’administration locale
Art. 62.
Dans les cas suivants, un nouveau bourgmestre est nommé conformément aux articles 58 et 59 : 1° si le candidat bourgmestre n’accepte pas le mandat de bourgmestre ; 2° si le bourgmestre : a) est déclaré déchu de son mandat ; b) est considéré comme empêché ; c) est révoqué ou suspendu ; d) a démissionné ou est décédé
Dans les cas où le bourgmestre est déclaré déchu de son mandat, est considéré comme empêché, est révoqué ou suspendu, a été licencié pour cause d’incompatibilité ou est décédé, le mandat de bourgmestre est assuré conformément aux troisième et quatrième alinéas jusqu’à la nomination suivante
Sans préjudice de l’application de la condition de nationalité, visée à l’article 14 de la Nouvelle Loi communale, le bourgmestre qui, pour des motifs autres que ceux visés au deuxième alinéa, est temporairement absent, est remplacé par un des échevins dans l’ordre de leur rang, à moins que le bourgmestre n’ait confié sa compétence à un autre échevin.
…
Le bourgmestre qui est considéré comme empêché, qui est suspendu ou qui est temporairement absent n’est remplacé que pendant la durée de son empêchement, de sa suspension ou de son absence temporaire.
Art. 156.
Sans préjudice de l’application de l’article 6, § 1er, VIII, premier alinéa, 5°, de la Loi spéciale du 8août 1980 de réformes institutionnelles, et de l’article 22 de la loi organique du 8 juillet 1976 relative aux centres publics d’aide sociale, le Gouvernement flamand peut suspendre ou révoquer le bourgmestre, l’échevin, le président du conseil communal, le président du bureau permanent, le membre du bureau permanent ou le président du comité spécial du service social en raison d’une inconduite notoire ou d’une négligence grave.
La personne concernée est entendue préalablement.
Le Gouvernement flamand fixe les modalités de procédure à cet effet.
Le bourgmestre, l’échevin, le président du bureau permanent, le membre du bureau permanent ou le président du comité spécial du service social ainsi révoqués ne peuvent être désignés à nouveau à une fonction de bourgmestre, d’échevin, de président du bureau permanent, de membre du bureau permanent ou de président du comité spécial du service social qu’à l’issue d’une période de deux ans.
Région Wallonne : Code de la démocratie locale et de la décentralisation” CDLD.pdf
Art. L1123-5.
En cas d'absence ou d'empêchement du bourgmestre, ses fonctions sont remplies par l'échevin de nationalité belge délégué par le bourgmestre. À défaut, il est remplacé par l'échevin de nationalité belge, le premier en rang.
Art. L1123-6.
Le Gouvernement ou son délégué peut, pour inconduite notoire ou négligence grave, suspendre ou révoquer le bourgmestre, qui sera préalablement entendu. La suspension ne peut excéder trois mois. Le bourgmestre révoqué ne peut être réélu au cours de la même législature.
Région de Bruxelles-Capitale : Nouvelle loi communale
Art. 13, al. 2
Si le bourgmestre décède, s’il renonce à son mandat de bourgmestre, s’il perd la qualité de conseiller communal ou s’il est révoqué, un nouveau candidat est présenté par écrit par au moins la majorité des élus de la liste sur laquelle il s’est présenté et la majorité des élus du conseil dans les deux mois qui suivent la vacance du mandat
Art. 14, al 1
En cas d’absence ou d’empêchement du bourgmestre, ses fonctions sont remplies par l’échevin de nationalité belge, le premier dans l’ordre des scrutins, à moins que le bourgmestre n’ait délégué un autre échevin de nationalité belge
Art. 82.
Le Gouvernement peut suspendre ou révoquer le bourgmestre ou les échevins pour inconduite notoire ou négligence grave. Le Gouvernement de la Région de Bruxelles Capitale propose un modèle commun à l’établissement d’un code de déontologie et d’éthique à l’attention des conseils communaux.
La personne concernée est entendue préalablement. La suspension ne peut excéder une durée de trois mois. Le Gouvernement fixe les modalités de procédure à cet effet. La procédure garantit les droits de la défense de la personne concernée. Le bourgmestre ou l’échevin révoqué ne peut plus être désigné bourgmestre ou élu échevin avant l’expiration d’un délai de deux ans au cours de la même législature communale.
Canada
In my responses, I will focus on the legal regime in the province of British Columbia. That province’s Community Charter governs the situation of a mayor who has been charged with an offence under the Criminal Code or an indictable offence under the Controlled Drugs and Substances Act (Canada) (See s. 109.2 of the Community Charter [SBC 2003] c. 26, available at: https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/03026_04#section109.3).
According to section 109.3 of the Community Charter, any member of a municipal council (including a mayor) who has been charged with either of these kinds of offenses, will be placed on a mandatory leave of absence “for a period that
(a)begins on the date of the charge, and
(b)ends, as applicable,
(i)if the member is acquitted of the offence, on the day after the date of the acquittal,
(ii)if the member is convicted of the offence, on the date of the conviction,
(iii)if the member is discharged of the offence, on the day after the date of the discharge,
(iv)if all proceedings in relation to the charge are stayed, on the day after the date of the stay, or
(v)if the charge is withdrawn, on the day after the date of the withdrawal.”
In British Columbia, then, the mandatory leave is not permanent, a point clarified by section 109.3(3) of the Community Charter. That section provides: “For certainty, a person who is on a leave of absence under this section and who is otherwise qualified to hold office is not disqualified from being nominated for, being elected to or holding office
(a)on a local government,
(b)on the council of the City of Vancouver or on the Park Board established under section 485 of the Vancouver Charter, or (c)as a trustee under the Islands Trust Act.”
As noted above, the regime governing pre-trial detentions is set out in the Criminal Code. Section 515(1) of the Criminal Code provides that, with the exception of some specific offences, when an accused who is charged with an offence under the Criminal Code “is taken before a justice , the justice shall, unless a plea of guilty by the accused is accepted, make a release order in respect of that offence, without conditions, unless the prosecutor, having been given a reasonable opportunity to do so, shows cause, in respect of that offence, why the detention of the accused in custody is justified or why an order under any other provision of this section should be made.” In other words, the default rule in Canada is that when an accused appears before a justice, the justice will make an order releasing the accused, without conditions. The Criminal Code contains further rules governing pre-trial detention, which have been interpreted by the Supreme Court of Canada (see e.g., R. Myers [2019] 2 S.C.R. 105). The Criminal Code and the jurisprudence specify the relevant procedural guarantees. Question 1 above seems to presuppose that any procedural guarantees relating to pre-trial detentions will necessarily apply to a mayor who has been placed on mandatory leave, or suspended. However, the above mandatory leave provisions in the Community Charter apply whether or not a mayor or any municipal councilor has been placed in pre-trial detention. Moreover, the Community Charter (at s. 109.2(2)) requires a council member who has been charged to give written notice to the relevant municipal council “indicating
(a) the offence with which the member is charged, and
(b) the date of the charge.”
It seems that once this information has been provided to council, the applicable mandatory leave provisions in 109.3 operate automatically. Therefore, it would only be in the exceptional case when pre-trial detention has been ordered that the procedural guarantees in the Criminal Code and the jurisprudence would apply to the situation of a mayor accused of the specified offences.
Estonia
㤠141. Suspending the suspect or accused from an official position
(1) The suspect or accused is suspended from their official position on an application of the Prosecutor’s Office by order of the pre-trial investigation judge, or by court order, if:
1) they may commit further criminal offences, should they continue to work in their position;
2) their continuing to work in their position may harm criminal proceedings in the case.
(2) A copy of an order suspending the suspect or accused from their official position is handed to the suspect or accused and to the Head of the institution that employs them.
(3) If the grounds for suspension cease to be present before the statement of charges is sent to court following the rules provided by subsection 3 of § 226 of this Code, the pre-trial investigation judge or the Prosecutor’s Office revokes the suspension by a corresponding order.“
Article 1412 of the Code provides:
§ 1412. Verification of continued justification of suspension from an official position or of imposition of a temporary restraining order
[RT I, 23.02.2011, 1 - entry into force 01.09.2011]
(1) The suspect, accused or their defence counsel may, when four months have elapsed following suspension from an official position or imposition of a temporary restraining order, file an application or motion with the pre-trial investigation judge or with the court to verify whether such suspension or imposition continues to be justified, /…/. A new application or motion may be filed when four months have elapsed from consideration of the previous one.
(2) The pre-trial investigation judge or the court considers the application or motion within five days following its receipt. The prosecutor, suspect or accused and, on an application or motion of the suspect or accused, their defence counsel, are summoned before the pre-trial investigation judge or the court. /…/
(21) When disposing of the application or motion, the pre-trial investigation judge or the court may arrange participation of persons mentioned in subsection 2 of this section by means of a technical solution which complies with the requirements mentioned in clause 1 of subsection 2 of § 69 of this Code.
(3) The application or motion is disposed of by a court order. The order is not subject to contestation, /…/.“
These provisions may be applied also to the mayors. The Supreme Court has stated in judgement No 3-4-1-30-15 related to the case on constitutionality of the referred law related to the suspension from office of the mayor of Tallinn that “as the position of city or rural municipality mayor is a political office and that person carries out the political will of the majority of the council while in office, their suspension from the office of city or rural municipality mayor also constitutes interference with political choices. Suspension of a city or rural municipality mayor may significantly hamper opportunities to carry out the programmatic positions of the political force that received the people’s mandate (see Supreme Court Administrative Law Chamber judgment of 6 November 2003 in case No 3-3-1-72-03, para. 18).“
Such suspension is only temporary, lasting no longer than the criminal proceedings, and is only possible if the person (mayor) may harm the concrete criminal proceedings if he/she continues to act as a mayor (e.g. may destroy evidence or influence witnesses), or if he/she may commit further criminal offences when continuing as a mayor. As the court in the referred case explained, “ in the event of suspension from office an incumbent city or rural municipality mayor who is subject to criminal proceedings is not removed from office but their powers in that position are merely suspended until the grounds for applying the criminal procedural measure cease to exist. Thus, a city or rural municipality mayor who has been suspended from office is still the bearer of that office even though they lack the power to exercise their competence as mayor while suspended from office“ (paragraph 25); „Suspension from office of a city or rural municipality mayor is decided by an independent court and the ruling is appealable both to the Court of Appeal and the Supreme Court. Following from the principles of a democratic state governed by rule of law and the unitary state, the legal framework of judicial proceedings in respect of city and rural municipality mayors should apply uniformly. The conduct of criminal proceedings cannot depend on the discretion of a local authority in granting authorisation for suspension from office of a city or rural municipality mayor“ (paragraph 29).
Finland
Insofar as pre-trial detention of a mayor is concerned, the relevant provisions are sections 85 and 86 of the Municipalities Act which provide as follows:
"Section 85 (1484/2016) Wrongful acts in a position of trust
Elected officials shall be subject to liability for acts in public office and are governed by the provisions of the Criminal Code (39/1889) concerning offences in public office.
If there is cause to suspect that an elected official has, in a position of trust, committed an offence in public office or otherwise acted contrary to the elected official’s obligations, the municipal executive shall demand an explanation from the party in question and, if necessary, notify the municipal council of the matter If an offence in public office has manifestly been committed, the offence shall be reported without delay.
The municipal council may suspend an elected official for the duration of the investigation or court proceedings unless the person has resigned from the position of trust. Before the municipal council meets, the council’s chairperson may make an interim decision concerning suspension. A suspension decision may be put into effect immediately.
The municipal council shall suspend an elected official from the position of trust for the duration of the investigation or court proceedings concerning a suspected offence in public office if this is necessary to safeguard the credibility and reliability of municipal decision making taking into consideration the seriousness and possible repeated nature of the suspected offence as well as other factors. A suspension decision may be put into effect immediately.
When preparing a decision in accordance with subsection 3 or 4, the municipal authority shall have the right to receive the notice of the initiation of the criminal investigation referred to in chapter 3, section 6 of the Criminal Investigation Act (805/2011) relating to an offence in public office suspected to have been committed by an elected official.
Section 86 Criminal acts outside a position of trust
If an elected official is charged with a crime where the nature of the crime or the way in which it was perpetrated suggest that the official cannot attend to the position of trust in the required manner, the municipal council may suspend the elected official for the duration of the court proceedings. A suspension decision may be put into effect immediately.
If an elected official is sentenced to imprisonment for at least six months under a final judgment after being elected, the municipal council may remove the elected official from the position of trust. The decision shall take effect immediately."
The following publication prepared by the lawyers of the Association of Finnish Local and Regional Authorities provides detailed information on key points that should be taken into account when preparing and deciding on detention/suspension. Unfortunately, this publication is only available in Finnish (at file:///Users/tuojanen/Downloads/1932-lhvirheellinenmenettelypdf-2018-2.pdf) and Swedish (at file:///Users/tuojanen/Downloads/1935-lhvirheellinenmenettelysv-2018.pdf)
Insofar as chief executives are concerned, the relevant provisions are provided by the Act on public officials in municipalities and wellbeing services counties (Laki kunnan ja hyvinvointialueen viranhaltijasta) . Section 47 of the Act provides on suspension of a public official while section 48 includes provisions on the suspension procedure. More information is available (unfortunately only in Finnish) at: https://www.lapinliitto.fi/wp-content/uploads/2023/10/Kunnallisen-esimiehen-virkasuhdeopas.pdf
France
Le droit français attache une importance particulière au respect des choix des électeurs et à la stabilité des mandats confiés à leurs représentants, au plan national comme au plan local. A ce respect s’ajoute celui de la présomption d’innocence et, pour ce double motif, la détention provisoire d’un élu local tel qu’un maire ne peut pas entraîner, de son seul fait, la suspension, même provisoire de ses fonctions.
Un maire poursuivi en justice et placé en détention continue en principe à exercer son mandat, en exerçant la plénitude de ses fonctions, sauf dans l’hypothèse bien sûr où il est conduit à démissionner, par une décision personnelle ou sous la pression politique de son conseil municipal.
Cette pression politique ne peut d’ailleurs pas suffire, un maire ne pouvant pas être destitué par le conseil municipal. Si le conseil municipal souhaite le départ du maire, il doit user de voies détournées, comme bloquer les projets que le maire soumet au conseil municipal ou démissionner en bloc de façon à imposer une nouvelle élection municipale.
Dans la pratique, il arrive néanmoins qu’un maire placé en détention provisoire choisisse de se mettre en retrait le temps de l’enquête judiciaire. Il peut, dans ce cas, déléguer ses fonctions à des adjoints, sur le fondement de dispositions générales du code général des collectivités territoriales.
Ce code prévoit d’ailleurs le remplacement provisoire du maire en cas d’empêchement (article L2122-17 : « En cas d'absence, de suspension, de révocation ou de tout autre empêchement, le maire est provisoirement remplacé, dans la plénitude de ses fonctions, par un adjoint, dans l'ordre des nominations et, à défaut d'adjoint, par un conseiller municipal désigné par le conseil ou, à défaut, pris dans l'ordre du tableau »).
Le code général des collectivités territoriales prévoit toutefois une disposition permettant au Gouvernement français de suspendre un maire : c’est l’article L.2122-16 qui dispose que « Le maire et les adjoints, après avoir été entendus ou invités à fournir des explications écrites sur les faits qui leur sont reprochés, peuvent être suspendus par arrêté ministériel motivé pour une durée qui n'excède pas un mois ». Le Conseil constitutionnel a jugé que ces dispositions ont « pour objet de réprimer les manquements graves et répétés aux obligations qui s'attachent aux fonctions de maire et de mettre ainsi fin à des comportements dont la particulière gravité est avérée »(décision n° 2011-210 QPC du 13 janvier 2012). Cela ne concerne donc que des cas graves de violation par le maire de ses obligations légales, comme par exemple le fait de refuser des actes que la loi lui impose ou d’entraver par son action le fonctionnement des pouvoirs publics. Dans les cas les plus graves, le même article du code dispose qu’un maire peut être révoqué par un décret adopté en conseil des ministres.
Le seul fait pour un maire d’être placé en détention provisoire ne peut pas, en principe, entrer dans ce cadre juridique (ni suspension, ni révocation). Il ne pourrait en être autrement que si cette mise en détention avait pour conséquence de priver le maire de l’autorité morale nécessaire à l’exercice de ses fonctions. Le principe de la présomption d’innocence conduit à ce que la jurisprudence n’admet une telle perte de l’autorité morale que dans des cas de condamnation judiciaire.
Dans de rares circonstances, la jurisprudence admet qu’une sanction de révocation ou de suspension soit prononcée contre un maire mis en cause devant la justice mais non encore condamné ; cela ne concerne que des cas dans lesquels les faits incriminés sont graves et établis avant même le terme de la procédure pénale (voir, par exemple, une décision du Conseil d’Etat n°348771 du 7 novembre 2012).
Le fait d’être placé en détention provisoire n’étant pas à lui seul un motif d’empêchement du maire, il arrive qu’un maire continue, au moins temporairement, à administrer sa commune depuis sa cellule. Une telle situation est cependant très inconfortable et se termine, habituellement, soit par le remplacement provisoire du maire sur le fondement de l’article L2122-17 du code général des collectivités territoriales (voir supra), soit par la démission du maire.
Germany
The status quo of mayors is regulated in different legal acts.
The most important constitutional regulation is to be found in Article 28 of the Grundgesetz. The relevant part reads:
(1) The constitutional order in the Länder must conform to the principles of a republican, democratic and social state governed by the rule of law within the meaning of this Basic Law. In each Land, county and municipality the people shall be represented by a body chosen in general, direct, free, equal and secret elections. …
(2) Municipalities must be guaranteed the right to regulate all local affairs on their own responsibility within the limits prescribed by the laws. Within the limits of their functions designated by a law, associations of municipalities shall also have the right of self-government in accordance with the laws.
…
(3) The Federation shall guarantee that the constitutional order of the Länder conforms to the basic rights and to the provisions of paragraphs (1) and (2) of this Article.
On this basis, most of the relevant regulations are contained in the municipal codes of the Länder; they are similar but differ in many details. Furthermore, there are specific laws on municipal election officials. At the same time, there are federal regulations such as the Code of criminal procedure and the Civil Service Status Act. Complementary regulations on the status of civil servants are contained in the respective civil service legislation of the Länder.
All in all, the regulation is very complex due to the federal structure of Germany and the specific guarantee of local self-government.
Definition of the legal status of mayors
According to German law mayors have ths legal status of communal election officials („kommunale Wahlbeamte“) and at the same time „temporary civil servants“ („Beamte auf Zeit“) for the duration of their mandate. Therefore, civil service and disciplinary laws apply to them; the regulations vary from Land to Land. Consequently, there are different disciplinary autorities („Disziplinarbehörden“) responsible for them.
Temporary suspension of mayors on the basis of pre-trial detention
As a consequence of pre-trial detention (based on § 112 Criminal Procedural Code), mayors may be subject to disciplinary measures. One possible consequence for civil servants is provisional suspension from duty („vorläufige Dienstenthebung“), which corresponds to a temporary suspension. Precondition for provisional suspension from duty is serious misconduct on the part of the civil servant. The severity of the misconduct is assessed on the basis of the foreseeable consequences. Accordingly, it must be expected that disciplinary proceedings will result in dismissal from civil service or forfeiture of pension rights. Alternatively, a provisional suspension from duty may be based on the fact that remaining in service would significantly hinder the operation of the service or the course of the investigation, and that the suspension is not disproportionate given the gravity of the matter and the expected disciplinary action.
An action for annulment (Anfechtungsklage) may be brought against this suspension from duty to an adminstrative court (§ 42 I Alt. 1 VwGO).
No Land grants mayors immunity rights similar to those enjoyed by members of parliament; mayors are subject to criminal prosecution in the same way as ‘ordinary citizens’ and other civil servants. Nevertheless, the basic hurdles and requirements for criminal proceedings apply. Pre-trial detention requires urgent suspicion ( § 112 I 1 StPO) and a reason for detention ( § 112 I 1 StPO). The reasons for detention are set out in §§ 112 II, III, 112a StPO (flight, risk of flight, risk of collusion, serious crime, risk of repetition). A limitation for minor offences is provided for in § 113 StPO. The arrest warrant is furthermore issued by a judge, not by the prosecuting authority (§ 114 I StPO).
Pre-trial detention is limited by the principle of proportionality, both in terms of its ordering ( § 112 I 2 StPO), duration ( § 120 StPO) and enforcement ( § 116 StPO). The accused's right to liberty under Art. 2 II 2 GG must always be taken into account and weighed up as a corrective measure. In addition, according to No. 54 I RiStBV, the public prosecutor's office must always examine whether the conditions for pre-trial detention are met.
The accused has the right to appeal for a review of their detention in accordance with § 117 StPO, which must be carried out by the detention judge responsible for the case (§ 126 StPO). If successful, the arrest warrant is revoked or the pre-trial detention is suspended in accordance with § 116 StPO.
Furthermore, an appeal against detention is possible under § 304 StPO. This must be lodged with the court that issued the contested decision. The court may grant relief, otherwise the court of first instance must immediately submit the appeal to the appeal court. It is therefore both a legal remedy and an appeal against pre-trial detention.
Specific guarantees due to election
The Federal Constitutional Court has elaborated the following guiding principles on the question of whether local elected civil servants (in this specific case, a mayor) should enjoy special status under civil service law due to the democratic legitimacy of their position based on election:
„Neither the principle of democracy nor the traditional principles of the professional civil service require that local elected officials be exempt from legal review on the basis of the disciplinary law applicable to all civil servants and that it be left solely to the voters to decide on their previous performance in office by voting them out or re-electing them. The legal possibility of temporarily suspending local election officials from office is therefore not objectionable under constitutional law."
„In view of the purpose of disciplinary law—to ensure efficient administration—its application to local elected officials is not objectionable. (…).“
Local elected civil servants are therefore also subject to disciplinary law under civil service law and, in the opinion of the Federal Constitutional Court, are not especially protected („keine besondere Suspendierungsschranke“).
Permanent suspension
In some Länder, e.g. North Rhine-Westphalia and in Rhineland-Palatinate, it is possible to vote the mayor out of office.
In other Länder, the highest legal supervisory authority (oberste Rechtsaufsichtsbehörde) decides on the premature termination of the mayor's term of office (vorzeitige Beendigung der Amtszeit). In Baden-Württemberg, pursuant to § 128 GO BW, it can investigate whether ‘the mayor is not fulfilling the requirements of his office and whether this is causing such significant administrative problems that it is not in the public interest for him to continue in office’. Pursuant to § 128 II GO BW, the administrative court decides on the existence of these conditions in the context of a declaratory action (Feststellungsklage).
In principle, due to the mayor's legal position, it is possible to remove him or her from civil service under state civil service laws. Only the disciplinary court is competent for removal from office; the application must be filed by the highest civil service authority (Oberste Dienstbehörde).
Furthermore, loss of eligibility for public office may be incurred under § 45 of the German Criminal Code (StGB). According to this provision, anyone sentenced to at least one year's imprisonment for a crime loses the right to hold public office or be conferred rights in public elections for a period of five years. The loss of rights and legal status under paragraphs 3 and 4 is permanent. This means that these rights and statuses will not be reinstated after the period of loss has expired or following any early reinstatement of capacity under Section 45b. However, this does not affect the possibility of regaining lost positions in accordance with general civil service and electoral law provisions.
Section 45 of the German Criminal Code (StGB) is a secondary criminal consequence that automatically applies in the event of a conviction for a crime punishable by imprisonment of at least one year. However, this also represents the legal hurdle that must be overcome before a criminal sanction can result in the loss of office. A court ruling is required. Pre-trial detention under § 112 StPO alone cannot justify such a loss of eligibility for office or permanent removal from service.
Greece
No special guarantees exist in favor of mayors under pre-trial detention. The general rules, that is the rules provided for by the Code of Criminal Procedure, apply.
Hungary
Section 69 of the Act CLXXXIX of 2011 on Local Governments in Hungary states the circumstances under which the office of the mayor terminates:
a) with the election of the new mayor;
b) if the mayor in office is no longer eligible to stand for election of local government representatives and mayors;
c) with the declaration of the mayor’s incompatibility;
d) with the finding of the mayor’s indignity;
e) by establishing legal liability for continuous illegal activities or omissions of the mayor in office in a final court judgment, on the date the judgment becomes final;
f) by resigning;
g) with the election of a new mayor following the dissolution of the council;
h) with the resolution of the National Assembly declaring the dissolution of the local government's representative body;
i) by the death of the mayor in office.
Section 70 subsection (1) of the Act CLXXXIX of 2011 on Local Governments in Hungary regulates the administrative court procedure that may be initiated by the municipal council against the mayor for the establishment of legal liability for the mayor’s serial illegal activities and omissions, to terminate the office of the mayor in question. The second subsection, Section 70 subsection (2) of the Act CLXXXIX of 2011 on Local Governments in Hungary regulates the court application in such court procedures, enabling the mayor's suspension from office if requested by the municipal council, applying administrative procedural law norms for immediate legal protection in the court procedure.
Section 61 of Act C of 2012 on the Criminal Code regulates deprivation of Civil Rights. According to Subsection (1) of Section 61 of Act C of 2012 on the Criminal Code, “Any person who is sentenced to executable imprisonment for an intentional criminal offense, and is deemed unworthy of the right to participate in public affairs, shall be deprived of these rights”. Point c) of the same subsection clarifies that Persons deprived of civil rights “may not serve in bodies or committees of popular representation, and may not participate in their work”. Section 62 of Act C of 2012 on the Criminal Code describes the beginning of the sanction in question, stating that “the duration of the deprivation of civil rights shall begin when the sentence becomes enforceable”.
Constitutional, administrative and criminal law guarantees apply through all of these procedures.
Iceland
If the mayor is in pre-trial detention and therefore unable to perform their duties, the municipal council has the authority under Articles 7 and 54 of Act No. 138/2011 to ensure the functioning of the municipality, which may include suspending or terminating the employment contract and appointing a temporary substitute to carry out the mayor’s functions.
Guarantees exist at two levels:
Judicial safeguards
Article 67 of the Constitution of the Republic of Iceland (Stjórnarskrá lýðveldisins Íslands nr. 33/1944) provides that no one may be deprived of their liberty except as provided by law, and only on the basis of a judicial decision.
Article 5 of the European Convention on Human Rights (ECHR), incorporated into Icelandic law by Act No. 62/1994 on the European Convention on Human Rights (Lög nr. 62/1994 um Mannréttindasáttmála Evrópu), guarantees the right to liberty and security, including that pre-trial detention must be based on reasonable suspicion, justified by specific risk factors under law, and subject to prompt and regular judicial review.
The use of pre-trial detention is strictly regulated by the Code of Criminal Procedure No. 88/2008 (Lög um meðferð sakamála). Articles 95–99 require judicial authorization, set time limits, and allow for appeal and review.
Article 95 requires that detention may only be ordered by a court if it is necessary, proportionate, and based on specific legal grounds.
Article 96 provides that detention is subject to strict time limits.
Article 97 requires that the detainee be brought before a judge without delay.
Articles 98–99 provide for appeals and judicial review of detention orders.
Administrative safeguards
If the municipal council decides to suspend or terminate the mayor’s contract due to detention, such a decision is an administrative act (stjórnsýsluákvörðun). It is therefore subject to the guarantees of the Administrative Procedures Act No. 37/1993 (stjórnsýslulög nr. 37/1993), in particular:
Article 13 ensures the right of the individual to be heard (andmælaréttur).
Article 22 requires that decisions be reasoned (rökstuðningur).
General principles of impartiality (hæfisreglur, Articles 3–6) also apply.
Together, these provisions guarantee that both the detention itself and any employment-related consequences for the mayor are subject to judicial and administrative safeguards.
Ireland
The Irish system does not have an applicable concept of suspension of a mayoral position though there are approximate concepts of an absence under S. 18(4) and S19A of the Local Government Act of 2001 and S. 14 of the Mayor of Limerick Act 2024.
However, the former provisions of the 2001 Act apply to the person occupying the position of mayor only in their capacity as an ordinary member, there is no provision to remove a Mayor based on their absence alone.
The Mayor must be removed by resolution of the relevant local authority, creating a casual vacancy thereby allowing the Deputy Mayor to assume the office of Mayor until the next election to the position of one of their members.
If there is no resolution removing the Mayor from office, then the Deputy Mayor acts as necessary in the name of the Mayor, but does not officially hold the office until the annual election of a mayor takes place and a new Mayor can be elected.
S14 of the Mayor of Limerick Act 2024 allows the temporary absence of the Mayor for a good faith absence, which may in certain circumstances cover pre-trial detention, and allow the Mayor’s functions to be performed by the Príomh Chomhairleoir (Chief Councillor) during the Mayor’s detention.
The guarantees offered by both the temporary and excused absences provisions of members offer considerable protections to the Mayors in their positions as ordinary members.
Further the high threshold required to pass a resolution removing a Mayor, both under the 2001 Act (S. 34) and even more so under the Mayor of Limerick Act 2024 (Part 7) offer substantial protections as they require two thirds majorities to pass the resolution to remove a Mayor, and the latter provision requires the approval of the both Houses of Parliament to remove the Mayor of Limerick.
Introduction to Irish Mayoral/ Positions as Heads of Local Authorities
Under Irish legislation, there are a variety of titles that correspond to the title of Mayor, the most common title used across County, Municipal, and City Councils are Cathaoirleach (Chairperson) and Leas-Chathaoirleach (Deputy-Chairperson), these positions are chosen from elected members of the local authority which has responsibility for the area in respect of which they were elected. The key piece of legislation is the Local Government Act 2001 as amended (the 2001 Act). However certain cities and towns use different titles for this position, these cognate titles such as Mayor are to be read as the context requires to be a reference to the position of Cathaoirleach (Chairperson) and Leas-Chathaoirleach (Deputy-Chairperson) as set out in legislation, these include the title of Lord Mayor, and Mayor including such deputy roles. Cork and Dublin city councils use the title Lord Mayor, and Galway uses Mayor, but they and their deputy positions simply refer to the offices of Cathaoirleach or Leas-Chathaoirleach respectively for the purposes of Irish legislation. Additionally other towns such as Limerick, Waterford, and Kilkenny may also use the title of Mayor for this position, and other towns over the population of 20,000 may also use the title of Mayor should their Council choose to do so (eg Letterkenny). The Cathaoirleach/Mayor is generally elected by the members of the local authority from among their own Council’s members and holds office until the next annual meeting, the method of election of a Cathaoirleach is prescribed in legislation. However, uniquely, the Mayor of Limerick is directly elected by their local constituents, being the only one to be chosen in such a manner as established under its own Act, Local Government (Mayor of Limerick) and Miscellaneous Provisions Act 2024 (Mayor of Limerick Act 2024), and it is the first Mayor in Ireland to possess executive powers.
Summary of the Law Governing Pretrial Detention in Ireland
It is perhaps useful to set out broadly the two instances in which pre-trial detention may be ordered in Ireland, to understand the potential severity of the detention in Irish context. The first kind of detention, that for the purposes of investigation tends to be relatively short and is measured in hours. Detention to prevent the commission of a serious offence is potentially a severe deprivation of a person’s liberty and in Ireland can only arise when a person is charged with a serious offence and denied bail on grounds which include the prevention of the commission of serious offences by that person. That type of detention could cause the greatest difficulty to a head of a local authority as their absence may lead to the authority deeming it to be a casual vacancy by virtue of S. 18(4) and 19(1)(b) of the 2001 Act and therefore leading to their permanent forfeiture of their position.
In certain circumstances, an accused may be detained for a length of time should police deem it necessary, on reasonable grounds, in order to investigate the offence in question. Such provisions are present in certain criminal legislation, such as S. 4 Criminal Justice Act 1984, S. 42 Criminal Justice Act 1999, S. 30 Offences Against the State Act 1939, S. 2 Criminal Justice (Drug Trafficking) Act 1996, and S. 50 Criminal Justice Act 2007. Each have varied lengths of detention and the number of extensions of the detention time for the purposes of investigating the offence, the shortest under S. 4 Criminal Justice Act 1984, the initial period of detention is up to six hours with two further extensions of 6 and 12 hours respectively up to a max of 24 hours. In contrast the longest period allows for up to 168 hours (7 days) across two police sanctioned extensions, and two District Court sanctioned extensions under S. 2 Criminal Justice (Drug Trafficking) Act 1996 and S. 50 Criminal Justice 2007. These times can be paused for medical treatment, or periods of rest as set out under S. 4 Criminal Justice Act, 1984 or S. 42 of Criminal Justice Act, 1999.
A court may refuse bail where a person is charged with a serious offence, and the court considers it necessary to remand them in pre-trial detention to prevent the commission of a serious offence by that person. Factors to be considered in the weighing of this decision are the seriousness of the charge against the accused and the likely sentence, the strength of the evidence, and any previous convictions or pending charges, as well as other potentially relevant circumstances.
Absence of the Mayor/ Cathaoirleach
The absence of a member is dealt with under S18(4) and S19A of the 2001 Act, however it does not relate to the position of Mayor/Cathaoirleach, merely to an ordinary member of the local authority. Therefore, the sections do not directly equate to the suspension from their position as Mayor/Cathaoirleach but can allow the member to retain their position as a member of the local authority, even if they do not retain the office of Mayor/Cathaoirleach or its equivalent position. There is no provision allowing the temporary absence of the member holding the office of Mayor/Cathaoirleach, merely that where necessary the Leas-Chathaoirleach/Deputy Mayor can act as the Mayor/Cathaoirleach. However, unless the local authority remove the member as Mayor/Cathaoirleach thereby creating a casual vacancy for the Leas-Chathaoirleach/Deputy Mayor to assume the responsibility of the Mayor/Cathaoirleach’s office pending the election of a new Mayor/Cathaoirleach, the absent member will remain officially in the position of Mayor/Cathaoirleach. As such, unless the removal of a Mayor/ Cathaoirleach is brought about by resolution, there is no provision to remove them from office by their absence alone if their absence as an ordinary member of the local authority is excused as in good faith.
In the case of a short pre-trial detention, likely section 18(4) would be the applicable section, which deals with the resignation of a member from the local authority. Provided the Mayor does not hand in their resignations as a result of their confinement, a person absent (not in attendance) at any meeting of the authority for a continuous period of 6 months is deemed to have resigned. However this time period can be extended by resolution if it is deemed to be an absence in good faith and it can be extended for up to 18 months after which period a casual vacancy is deemed to arise. Under these provisions however there is no allowance made for the appointment of a temporary substitute, for a temporary replacement to be made for the absent member the applicable section is S.19A of the 2001 Act (as amended). As such, the period specified under S.18 2001 Act can be considered as a safeguarding mechanism for the member though it must be noted that the safeguards are temporary due to their expiry after 18 months in total. However, it does not ensure a Mayor/ Cathaoirleach is replaced by a substitute in their position as a member of the local authority, and the outgoing member will not have the ability to recommend a replacement as is the case under a temporary absence. In their office as Mayor/ Cathaoirleach, the absent member will automatically be replaced in regards to their responsibilities under legislation by the Deputy Mayor/Leas-Chathaoirleach should the Mayor/ Cathaoirleach be unavailable, though the Deputy will not officially assume the office of Mayor. It must be noted, that the absence of the Mayor/ Cathaoirleach caused by their detention must be judged to be in good faith by the local authority and a resolution passed to allow the member to remain in their capacity as an ordinary member of the local authority for up to 18 months. As stated previously, this is not applicable to the office of Mayor itself, merely to the detained members position as an ordinary member of the local authority.
Under S. 19A of the Local Government Act 2001 (inserted by the Local Government (Maternity Protection and Other Measures for Members of Local Authorities) Act 2022 (52/2022), S. 2(b)) a temporary absence occurs where it is not a casual vacancy and it is “in good faith” for a reason other than illness and the absence/proposed absence is accepted by the local authority by resolution, with the member notifying the administrator of the meeting that they wish to have a temporary substitute. To fill this absence there are procedures set out for the local authority to fill the temporary vacancy by co-option, co-option being made at the next meeting of the local authority 14 days after the temporary absence occurred, or as soon as possible after the 14 days. The person co-opted to fill the temporary vacancy is to be a member of the local authority until the absent member returns to office or the term of office of the member causing the temporary absence expires. This substitute is only to fill their role as an ordinary member of the local authority, in their role as Mayor/Cathaoirleach, the substitute will not take up their responsibilities tied to that office, instead these will be filled by the Deputy Mayor/Leas-Chathaoirleach of the local authority as necessary.
In summary, if the local authority considers the absence to be in good faith and adopts a resolution to allow the detained member’s absence to be considered temporary then they are offered a guarantee of their position as an ordinary member of the local authority and have their position as a member of the local authority filled temporarily, potentially for the duration of their detention, or the duration of their time in office. This does not explicitly apply to their position as Mayor, merely as a member of the local authority, regarding their office as mayor, their Deputy will act in the Mayor’s place as required, unless and until the absent member is removed from the office of Mayor.
Temporary Absence in relation to the Mayor of Limerick
The provisions regarding temporary absence is broadly replicated in relation to the Mayor of Limerick, which replicates again that the Mayor’s absence in good faith for a reason other than pregnancy or illness may be performed by the Príomh Chomhairleoir (the Chief Councillor of the city and county Council of Limerick). Though it should be noted that the provisions regarding the Mayor of Limerick do not replicate the need for a resolution accepting this good faith reason, therefore it is unclear when the absence may be rejected or accepted as the case may be regarding the Mayor’s absence if caused by pre-trial detention. Though the question of whether this reason is in good faith may be answered based on the facts in each case, as the Council of Limerick City and County must be notified of the temporary absence, and then they may decide to table a resolution for their removal should they consider it not to be a good faith absence.
Israel
In Israeli law the pertinent rules are to be found in the Local Authorities Law (Election and Tenure of Head and Deputy Heads), 5735-1975 (hereafter – “the Law”). A “local authority” was defined as meaning a municipality and a local council, but not a regional council.
Originally this Law provided only for removal following a conviction of a criminal offence involving moral turpitude, as follows:
s. 20 (as amended in 2000) – Termination of office and suspension because of moral turpitude
(a) Where the head of an authority is convicted of a criminal offence, whether the offence had been committed or the conviction decided during his term of office as head of the local authority, or before he became head of the local authority, the court will determine in its sentence if the offence involves moral turpitude; The court’s decision regarding moral turpitude shall be appealable as if it were part of the sentence. the Attorney-General or his representative filed before sentence is passed, that the offence involves moral turpitude, the court shall remove the head of the authority from office.
(b) If the court did not decide as provided in subs. (a), or if the head of the local authority started his term between the date the sentence was given and the date that the verdict became final, the Attorney-General or his representative may, as long as the verdict had not become final, apply to the court requesting the court to determine if the offence involves moral turpitude; the application will be submitted to the court that gave the sentence and, if an appeal has been submitted, to the appellate court.
(c) The court secretariat will deliver a copy of the verdict, or the court decision, as the case may be, to the secretary of the local authority and to the Minister of the Interior.
(d) If the court decided, according to this provision, that the offence with respect to which the head of the local authority was convicted, involves moral turpitude, the head of the local authority will be suspended until a final judgment is given in his case.
(e) The term of office of the head of the local authority will expire from the date that the verdict, determining that the offence involves moral turpitude, has become final.
(f) ...
(g) (1) If the term of the head of the local council has expired according to this section, the provisions included in s. 27, concerning his substitute until the special elections, will apply;
(2) If the head of the local council has been suspended according to sub-ss, (d) or (f), the following provisions shall apply: (a) in the first six months following the beginning of the suspension, the office will be filled by the deputy head of the local authority and, in the absence of a deputy, or if the deputy is unable to act, the local authority council will elect a substitute according to s. 26;
(3) If the head of the local authority has been acquitted on appeal, or if the court of appeal determines that the offence does not involve moral turpitude, he will return to office as head of the local council.
(h) The provisions of this section will apply also to the deputy head of the local authority; however, if the deputy head of the local authority has been suspended according to this section, the council will elect a substitute for the deputy according to s. 26.
This provision seemed to cover the subject matter, in the sense that detention of mayors was contingent upon conviction of an offence that, according to the court, involved moral turpitude.
However, in 2013 a petition was brought by two NGOs, acting as public petitioners, before the Israel Supreme Court sitting as a High Court of Justice,2 seeking to terminate the tenure of two mayors, following their indictment, and also forbid their running for another term. The first was the mayor of Nazareth Illit [Nof HaGalil], against whom proceedings were brought in 2013 for bribery allegedly committed in 2008, when – in the course of the negotiations for establishing a coalition the mayor recommended to a member of the Council, elected on behalf of another party, that he should join the coalition or else his divorcée, who had been employed by a company owned by the municipality may be dismissed. Eventually, that member did not join the coalition, his divorcée was dismissed, and later on – when he wanted to join the coalition in return for the cancellation of her dismissal, his offer was rejected. Against the second mayor, of Ramat HaSharon, criminal proceedings were initiated for deception and [in fact, or] breach of trust (a vague and undefined offence in the Israeli Penal Law), concerning acts allegedly committed between 2003 – 2007, when the mayor received as expenses against receipts, from the Local Authority Employee Training Fund, of which he had been the Director General and Chair of the Board of Directors, sums that he had spent on private matters, unrelated to his activities as a mayor.
The Supreme Court decided by a majority of 6 to 1 that, even though the specific provision of the Law did not allow for the termination of their tenure, the councils of the pertinent local authorities were obliged to remove them from office under another provision of that Law, namely s. 22.3
s. 22 – Removal from office for reasons of conduct, provides:
(a) Where the council [of the local authority] is satisfied that the head of the authority conducts himself in a manner unbecoming of the status of the head of an authority and it considers that he is therefore unworthy of his office, it may remove him from office after giving him an opportunity to be heard.
(b) The decision to remove the head of the authority from office shall be reasoned and shall be passed at a closed special meeting of the council by a three-quarters majority of its members. It shall require the approval of the Minister [of the Interior].
(c) If the head of the authority does not call a special meeting as aforesaid within fourteen days from the day on which a majority of the members of the council requests him to do so, such a majority may call a meeting as aforesaid and, if it does so, shall determine the chairman thereof.
In fact, prior to the submission of the petitions, the councils of the authorities had met and decided not to remove the mayors from office. However, the six justices of the Court held that, in the circumstances, it was extremely unreasonable for the councils not to apply their discretion to remove the mayors from office. The justices added that, even though, under the Law they could not make an order preventing these mayors from running for another term, nonetheless following the forthcoming elections, the councils would be obliged to once again remove them from office. In his dissenting opinion, Justice Grunis pointed out that, even though he, too, did not find it appropriate for the mayors to continue acting as mayors with such indictments, he does not consider the court competent to remove them from office. Furthermore, since elections were pending, if these persons were to be re-elected by the public, the Court’s judgment would effectively mean that the public itself, being aware of the indictments, was acting extremely unreasonably in re-electing them. Such a conclusion seemed to him far-reaching from the point of view of the tenets of constitutional law.
Following that decision, the Knesset (the Israeli parliament) amended the Law, inserting s. 19A (in effect since 22 December 2013), reading as follows (translation by myself, in the absence of an authorized translation):
s. 19A. – Suspension due to indictment and the suspension review committee
(a) A committee will be appointed to review the suspension of heads of authorities due to indictment (in this section – the suspension review committee), the members of which are:
(1) A judge of the District Court4 (ret.), appointed by the Minister [of the Interior] and the Minister of Justice, who will be the chair of the committee;
(2) A jurist competent to serve as a judge of the District Court, appointed by the Minister [of the Interior];
(3) A former head of a local authority, appointed by the Minister [of the Interior].
(b) A person who had been politically active in the two years preceding the appointment will not be appointed under s. (a), sub-ss. (1) and (2). Persons appointed under the same sub-sections will not be politically active during their service on the committee. Membership of a political party, that does not involve activity in its institutions, does not count as political activity.
(c) The committee members will be appointed for one 7-year term.
(d) (1) The Minister [of the Interior] may provide further rules regarding the competence of the members of the suspension review committee.
(2) The Minister will determine the procedure of the suspension review committee, and insofar as such a determination has not been made, the committee will itself determine its procedure.
(e) (1) After submission of an indictment against a head of a local authority during his term of office, or if an indictment, submitted prior to the beginning of his term of office, is pending against a head of a local authority, whether the offence had been committed while he was serving as head of a local authority or before he started serving as head of a local authority, the suspension review committee may, upon the application of the Attorney General and after giving the head of the local authority an opportunity to plead his case, to suspend the head of the local authority, if it considered that, due to the seriousness of the charges against him in the indictment he is not worthy of serving as the head of the authority.
(2) If the suspension review committee decided to suspend a head of authority according to sub-s. (1), it will give its opinion concerning the functions he may serve during the period of suspension, and it may determine limits to the performance of such functions.
(3) the decision of the committee will be adopted within 30 days following the day on which the Attorney General submitted his application.
(f) In taking its decision according to sub-s. (e), the committee will consider, among others, all of the following:
(1) The offences attributed to the head of the local authority in the indictment;
(2) the number of cases attributed to the head of the local authority;
(3) the relation between the offences attributed to the head of the local authority in the indictment and his powers and functions as head of the authority;
(4) the time that had elapsed since the offences attributed in the indictment to the head of the local council had been committed.
(g) If the suspension review committee decides to suspend a head of a local authority according to sub-s. (e), the suspension shall be in effect for a period determined by the committee that will not exceed one year (in this s. – the period of suspension); However, the suspension review committee may, upon the application of the Attorney-General, extend the period of suspension for additional periods that will not exceed one year each, and in this matter, it will consider, among others, the length of the proceedings conducted against the head of the local authority and the circumstances as a result of which the proceedings have not yet ended.
(h) The provision of sub-s. (g) notwithstanding, the suspension term will end in any of the following cases:
(1) The criminal proceedings against the head of the local authority were discontinued, or ended without conviction, or the court convicted the head of the local authority but determined that the offence does not involve moral turpitude;
(2) the head of the local authority has been suspended according to sub-s. 20(d).
(i) If the head of the local authority has been suspended according to sub-s. (e), the following provisions will apply:
(1) The council will elect a substitute to the head of the council, from among its members, according to s. 26, and he will serve until the earlier between the end of the suspension period, or the election of a head of the local authority in elections carried out according to this Law, and during the suspension period he will be considered as fulfilling the function of the head of the local authority for all matters and purposes;
(2) The suspended head of the local authority is entitled to receive, during the first six months of suspension, half of the salary to which he would have been entitled according to s. 15A1 had he not been suspended, and from the end of that period until the end of the suspension period he will receive seventy (70) percent of that salary; If he is acquitted, in a final judgment, from all charges brought against him, he will receive the relative part of his salary that had not been paid to him during the suspension period, after deducting his income from any other occupation during the suspension period.
(3) The head of a local authority who has been suspended is entitled, during the suspension period, to the service terms to which he is entitled under s. 15A1, or their value, all or in part, as the Minister [of the Interior] will instruct, provided that those will not exceed the rates referred to in provision (2) of the service terms to which he would have been entitled had he not been suspended;
(4) The provisions of sub-s. 15B(b)-(f) will apply, mutatis mutandis, to a head of a local authority who receives a salary and service terms according to sub-s. (2) and (3) during the suspension term.
(j) If a head of a local authority has been suspended according to sub-s. (e), and during the suspension period elections took place, in which he was re-elected as head of the local authority, his suspension will continue until the end of the suspension period.
(k) If a head of a local authority, who had been suspended from office in elections that had taken place according to s. 3, sub-s. i(1) will not apply; and the substitute head of the local authority will be the candidate whose name followed that of the suspended head of local authority in the list of candidates to the council of the local authority, provided that he was elected a member of the council, and during the suspension period he will be considered as fulfilling the role of the head of the local authority, for all matters and purposes; if such a candidate has not been elected as a member of the council, sub-s. i(1) will apply.
(l) The provisions of this section will apply, mutatis mutandis, also to a person elected as head of the local authority against whom an indictment has been initiated after his election, or an indictment submitted against him before his election is pending, and he has not yet started serving as the head of the local authority.
(m) The decisions of the suspension review committee, as well as its interim decisions, will be published on the website of the Ministry of Interior Affairs.
In addition, in 2013 s. 20 was amended as well, with the addition of sub-s. (g)(2a): (2a) The provisions of sub-s. (2) notwithstanding, if the suspension mentioned in that provision was preceded by a suspension according to s. 19A, the person who acts as the substitute according to s. 19A(i) or (k).
In the Explanatory Note to the Draft Bill (published in the Official Journal) introducing s. 19A, it has been emphasized that the proposed amendment was intended to establish a suspension review committee that will be competent to suspend the head of the local authority, rather than have him removed from office, as decided by the High Court of Justice in the above case. The suspension means a temporary removal from office, that may be terminated if justified by the circumstances. The Knesset considered this arrangement as reflecting a proper balance between protecting the integrity of the public service and the retention of the ability to have the head of the local council return to office if the change of circumstances justifies that, in this way protecting the basic right of citizens in a democratic society to elect and be elected.
II. The case law following the adoption of s. 19A and its effect in practice
The case of the mayor of Hadera is instructive. In October 2021 an indictment was brought against him concerning, among others, the offence of deception and breach of trust. The acts referred to in the indictment took place in 2013 and in 2018.
The Attorney General applied to the suspension review committee to have him suspended and determine the functions that he may continue to fulfil as a member of the city council during the period of suspension.
In the committee’s first decision, given on 16 January 2022, the committee decided that the mayor will be suspended for a period of six months, but did not make any determination regarding his role as city council member. The committee noted that there was no inherent connection between the mayor and another person mentioned in the indictment. The committee noted that, although the mayor was arrested in June 2018, the prosecution did not seek his further removal (beyond an initial period of 60 days) from the municipality or from any of its committees, and he continued to act as the mayor for the next three years until the indictment. The committee evaluated the seriousness of the offences referred to in the indictment, as well as the whole of the mayor’s record. Eventually, it suspended the mayor, limiting the suspension period to six months.
After six months the Attorney General applied for an extension of the suspension period. Following a hearing at the committee, with all parties presenting their arguments, it was agreed to extend the suspension until a final decision by the committee. On 15 August the committee decided to dismiss the application of the Attorney General. In its decision it pointed out the criteria mentioned in s. 19A(f). It noted that the court had not yet begun the hearing of the case, and that the hearings were planned between 9 February 2023 and 16 March 2023. Furthermore, the committee learned that the proceedings against all other persons implicated in that indictment had been closed with minor punishment, if any. Finally, the committee noted that elections were going to take place in 2023, and it considered that the mayor should be allowed to run for another term, thus also protecting the right of the public that may be interested in voting for him.
The Attorney General petitioned the High Court of Justice seeking the revocation of the committee’s decision. The Supreme Court first gave an interim decision suspending the operation of the committee’s decision until a final decision in the petition. On 6 February 2023 the Supreme Court set aside the committee’s decision (HCJ 5954/22). According to the HCJ, s. 19A was enacted to reflect the knesset’s purpose that it is unacceptable that mayors would stay in office while an indictment for serious offences is pending against them. It is only if the committee finds that there has been such a change of circumstances that justifies a deviation from the original decision taken to suspend the mayor. The fact that the initial period had been set at 6 months since the committee did not consider the offences to be very serious and that the proceedings were moving ahead very slowly did not suffice. The court extended the suspension until a new decision is taken on the basis of another application to the committee will be made by the Attorney General.
The third hearing at the suspension review committee took place on 18 May 2023. The committee learned that, following the HCJ decision, the State amended the indictment on 30 January 2023, adding 27 witnesses. It also learned that the evidence that the prosecution had presented as the “gold evidence” had been abandoned by the prosecution, after having been exposed as worthless, that the case was expected to extend over a much longer period, and be resumed only in October 2023. Even though, as the committee noted, it need not be held to its initial decision forever, nonetheless due to the HCJ decision, the Committee extended the suspension period until 26 June 2024. The mayor could therefore not run for another term in 2023.
It is noteworthy that, at the time of writing this report, the hearing of the witnesses has not yet begun. I have been told that the mayor has given up hope of running for another term.
Another case, that deserves mention since it was the originator of the HCJ’s decision, prior to the insertion of s. 19A, is that of the mayor of Ramat HaSharon. As noted above, the offences were committed between 2003 and 2007, in November 2007 the police recommended that an indictment should be initiated against him. The indictment was brought in May 2013. As mentioned above, the HCJ ordered his removal from office, but allowed him to run for another term. In the elections he was elected mayor for the third time, but that term was suspended pending the end of the criminal proceedings. On 28 December 2014 he was convicted, and on 31 May 2015 sentenced to six months of service for the public (community sentence). Towards the elections of 2018 he wanted to run for another term, but on 8 October 2018, 22 days before the elections, a court decision was given that, due the verdict in his case made it clear that his acts involve moral turpitude. His appeal to the District Court was rejected. In 2024 he ran for another term and was elected by 43.2%, way ahead of all other candidates. Currently, he serves as the mayor of Ramat HaSharon.
III. Critical comments
A.
Court decisions regarding moral turpitude
The Law requires the court to decide whether the offences committed by the mayors are such that involve moral turpitude. Moral turpitude is not a legal term. Consequently, it is submitted with respect that this matter should have been left to the public to decide. Israeli voters have proven sensitive to moral turpitude, and they do not generally vote for candidates whom they consider corrupt.
B.
Duration of proceedings
Criminal cases in Israel last years. Whereas in all other countries following the common law adversarial system there is a jury trial, which of necessity sets an upper limit to the duration of criminal cases, Israel does not have a jury trial, and cases may drag on for years.
A further problem is due to the fact that there is often a very substantial lapse of time between the police investigation and the initiation of the proceedings. Thus, in this case, the offences were committed – according to the indictment – in 2013 and in 2018, the mayor was arrested in 2018, and yet the indictment was only initiated in 2021. As noted, even at the time of writing, the court has so far only been occupied with initial applications, regarding the propriety of the investigation methods applied by the enforcement authorities (those included illegal use of spyware that turned the smartphone of the mayor’s spouse into a video and audio camera), the (non-)delivery of all investigation materials to the defense lawyers, etc.
When the Knesset added s. 19A, its intention was to provide the independent suspension review committee, chaired by a former District Court judge, with the discretion to take decisions regarding the suspension, rather than the removal, of mayors. In the Explanatory Note to the Draft Bill amending the Law, published in the Official Journal, it was emphasized that, whereas the Supreme Court, acting as a High Court of Justice, practically removed the mayors from office, the Knesset wanted only to have them suspended, by decisions that could be changed over time. So far, however, the Supreme Court has limited the committee’s discretion in a manner that overturns the Knesset’s object and purpose in amending the Law.
The impact of these two critical points on local democratic governance is substantial.
Italy
Guarantees are procedural. Italian criminal procedure provides a set of appellate remedies, including the re-examination of orders directing coercive measures (Article 309 of the Code of Criminal Procedure, c.p.p.), an appeal (Article 310 of the c.p.p.) and an appeal to the Court of Cassation (Article 311; pursuant to Article 111 of the Italian Constitution, “Appeals to the Court of Cassation shall always be allowed in cases of violations of the law against sentences and measures concerning personal freedom pronounced by permanent judges and special courts”).
The Italian criminal procedure also provides for disqualifying measures that can be applied instead of coercive measures. Pursuant to Article 289 of the Code of Criminal Procedure (c.p.p.), the court shall, by means of the decision ordering the suspension from public duty or service, temporarily disqualify the accused, in whole or in part, from carrying out public duty or service activities.
Kyrgyzstan
In accordance with paragraph 1 of Article 47 of the Law of the Kyrgyz Republic dated October 20, 2021 No. 123 "On Local State Administration and Local Self-Government Bodies", Mayors of cities of district significance are appointed by the akim. Mayors of the cities of Bishkek, Osh and regional significance are appointed by the President.
City mayors are appointed from among persons in the personnel reserve, in the manner determined by the President.
Article 27 of the Law “On the State Civil Service and Municipal Service” provides for cases and guarantees for temporary suspension from office:
1. An employee shall be temporarily suspended from the position held in cases where a prosecutor, investigator or court issues a ruling on suspension from the position in accordance with the law until a final decision is made on the case:
3. In cases of temporary suspension of an employee from a position in accordance with Part 2 of this article, the employee’s salary shall be retained.
4. Compensation for damage caused by the illegal prosecution of an employee shall be carried out in accordance with the law.
In accordance with paragraph 3 of Article 47 of the Law of the Kyrgyz Republic "On Local State Administration and Local Self-Government Bodies", the Mayor of a city of district significance may be dismissed from his post by the akim, and the mayors of the cities of Bishkek, Osh and regional significance - by the President:
1) on the basis of a personal application;
2) for failure to comply or improper compliance with laws, regulatory legal acts of the President and the Cabinet of Ministers;
3) on the basis of a court judgment of conviction that has entered into force;
4) if the court declares him incompetent;
5) in the event of the entry into force of a court decision declaring him deceased, missing, or dead;
6) in case of departure for permanent residence outside the Kyrgyz Republic;
7) in case of renunciation of citizenship of the Kyrgyz Republic or acceptance of citizenship of a foreign state;
8) in the event of inability to perform one’s official duties as a result of permanent incapacity;
9) in the event of an expression of no confidence by two-thirds of the total number of city council deputies;
10) in the event of inconsistency between their activities and the decisions taken and the policies pursued by the political leadership;
11) loss of trust;
12) due to circumstances beyond the control of the parties.
Thus, if the pre-trial detention is accompanied by one of the grounds indicated above, then there are legal grounds for permanent removal from office.
Republic of Korea
“Where the head of a local government is detained after indictment, the Vice Governor, Vice Mayor, or deputy head of a Si/Gun/Gu shall exercise authority in place of the head of the local government.”
Under the former Local Autonomy Act enacted on 4 July 1949, the only system in place was that the deputy head acted for the head of a local government “when an accident (absence/incapacity) occurred” (Article 114). By the amendment of 31 August 1999, however, the Act stipulated that where the head of a local government is detained after indictment, the deputy head shall act on the head’s behalf (former Article 101-2(1) and (2)).
Subsequently, the amendment of 25 March 2002 established detention after indictment as an independent ground for acting on behalf of the head (former Article 101-2(1)2). Following the full revision of 11 May 2007, Article 101-2 was renumbered as Article 111, and after the full revision of 12 January 2021, Article 111 was renumbered again as Article 124.
In a constitutional complaint challenging the constitutionality of this provision, the Constitutional Court explained the legislative purpose as follows (Constitutional Court, 28 April 2011, 2010Hun-Ma474):
“Examining the legislative background of the statutory provision, after the first popularly elected local government heads were chosen in 1995, many heads of metropolitan and basic local governments were detained during investigation or trial on suspicion of violations of election-related laws, etc. Nevertheless, most did not resign and continued to issue so-called ‘approvals from prison.’ This phenomenon remained even after the second set of popularly elected heads took office on 4 June 1999; about thirty heads were detained during investigation or trial. It was therefore recognized that the detention of a head resulted in an administrative vacuum and that ‘approvals from prison’ undermined residents’ trust and dignity. The statutory provision was proposed to prohibit this practice as a general rule.
The work of a local government head—who formulates and decides numerous projects and policies for the promotion of residents’ welfare and executes budgets—requires collecting residents’ opinions through various channels, engaging in substantial discussions with relevant bodies on important matters, and taking swift decisions in urgent cases. Even after a policy is implemented, continuous review and oversight are needed to ensure that local administration serves residents’ welfare. When the head is in detention, it becomes markedly difficult to gather diverse opinions, deliberate sufficiently with relevant bodies, handle urgent duties, or maintain effective oversight.
Thus, the statutory provision suspends the duties of a local government head who is detained after indictment and mandates that the deputy head act on the head’s behalf to prevent expected risks to the smooth conduct of official duties and residents’ welfare. In other words, by excluding from duty a head who is detained after indictment, thereby ensuring the normal and continuous performance of the office, the legislative purpose is to secure smooth and efficient local administration and to promote residents’ welfare.”
The Constitutional Court held the provision constitutional, on the following grounds:
“A. (1) The legislative aim is to prevent risks to residents’ welfare and to the smooth and efficient operation of local administration. When the head is detained after indictment, there is no meaningful alternative to excluding the head from duty to guarantee continuity and flexibility in administration and to pursue effective policy execution. The necessity of suspension does not vary by the nature or gravity of the alleged offense, and there is no need to require an opportunity to be heard before applying the temporary suspension.
Moreover, the suspension lasts only during detention following indictment, which minimizes any infringement. Given the significant public interest sought by the provision and the fact that the head suffers only a temporary suspension of duties (not loss of office), the disadvantage to the head cannot be considered excessive. The provision therefore does not violate the principle of proportionality.
(2) The provision does not impose social blame for being indicted and detained, nor does it presume guilt. Rather, due to the effects of detention—the head’s physical absence—it is clear that risks arise to the smooth and continuous operation of local administration; the suspension is imposed to prevent those risks. Hence, it is not a disadvantage arising from criminal guilt or moral censure and therefore does not violate the presumption of innocence.
B. (1) Prime Ministers and Ministers may be replaced by their appointing authority, and Members of the National Assembly, as members of a collective body, are affected differently by detention in regard to the smooth operation of their duties. Therefore, imposing suspension only on local government heads under this provision is not arbitrary discrimination.
(2) Unlike detention, a head who is hospitalized triggers acting authority only when hospitalization continues for 60 days or more (former Article 111(1)4 of the Local Autonomy Act). This differentiation is reasonable because hospitalization—unlike detention, where visits and meetings are strictly restricted—permits comparatively freer entry and exit, offers some predictability of discharge, and allows limited performance of duties.”
Kosovo
A mayor (or, for that matter, any person elected to a local government body) can be temporarily suspended if the mayor is under investigation for a grounded suspicion that he or she has committed a specified type of criminal offence and there is reason to believe that, in exercising his/her functions, the mayor is likely to hinder the investigation. Such a decision on suspension can only be ordered by a reasoned court decision and upon the request of a state prosecutor. The offences that can trigger suspension are laid down in Article 539 of the Criminal Procedure Code, which references the Criminal Code provisions that set out those offences. The relevant Article 539 of the Criminal Procedure Code provides as follows:
1. The court shall suspend the defendant, who is an official person in the meaning of Article 113 paragraph 2 of the Criminal Code, from his duty, if:
1.1. there is a grounded suspicion that the defendant has committed a criminal offense under Chapters XIV, XVI, XX, XXIV, XXXIII, Articles 164, 165, 248, 302, 311 or 323 of the Criminal Code; and
1.2. there is a reason to believe that, if he remains in office, the official person will destroy, conceal, alter or falsify the evidence of the criminal offense, or when specific circumstances indicate that he will obstruct the course of the criminal proceedings by influencing witnesses, the injured party or in the accomplices.
An official person, referenced to in paragraph 1 of Article 539, is as per the Criminal Code, “a person who performs official work in a state body,” “a person elected or appointed to a State Body, to a local government body or a person who permanently or temporarily carries out duties or official functions in those bodies,” or “a person in an institution … entrusted with the performance of public authorizations that decides on the rights, obligations or interests of natural or legal persons or for the public interest.” A municipal mayor is clear covered by the notion of an official person, as defined in the Criminal Code.
As to offences, those contained in Article 539 of the Criminal Procedure Code refer to offences against constitutional order or security of the country ; against life and body ; against sexual integrity ; organized crime ; corruption and offences against official duty ; or smuggling of migrants and trafficking ; domestic violence ; money laundering ; smuggling of goods ; and fraud.
As for the procedural steps related to this measure, decisions are made by the pre-trial judge upon the request of the state prosecutor before the indictment is filed, and by the presiding trial judge after the indictment has been filed.
It ought to be noted that the contents and place of this Criminal Code Procedure provision, prior to its introduction in the 2022 Code, have been reviewed and shaped by a Venice Commission Opinion. Along with the draft provision concerning trial in absentia, the draft provision concerning suspension of officials from office has been reviewed prior to adoption by the legislature in the Venice Commission Opinion No. 985/2020 on Certain Provisions of the Criminal Procedure Code, adopted in June 2020. From a careful comparative assessment, one can observe that the Commission’s comments and specific recommendations have been clearly embraced and reflected in Article 539 (formerly draft Article 177) of the Criminal Procedure Code (e.g., some of the Venice Commission recommendations provided for the insertion of an explicit reference to Art. 113 of the Criminal Code containing a definition of official persons, which has been subsequently inserted; to clearly stipulate the responsibility of the prosecutor—employing a harmonized approach—as being competent for submitting all requests for suspension of officials; providing for a specialized single judge or chamber to take the decision for suspension, likewise implemented; or either removing draft Article 177 from the Criminal Procedure Code and placing it into the context of administrative legal provisions or moving the draft provision to the end of Criminal Procedure Code, indicating its non-coercive but administrative function – as a result of which recommendation, the provision has been moved to the very end of the Criminal Procedure Code, only before transitional and final provisions; introducing a right to appeal, which has been introduced; or introducing the payment of salary during the period of suspension and the rights in the event of acquittal, which have been done) .
In line with the Venice Commission’s recommendations, the relevant provisions of Articles 539 and 540 of the Criminal Procedure Code introduce corresponding legal guarantees. In its Opinion, the Venice Commission had specifically recommended “strengthening the safeguards of [former] draft Art. 177 by introducing a general proportionality test into the provision. Furthermore, the provision would benefit from including a right to appeal.” The Commission also observes that “the draft provision does not contain regulations for the payment of salary during the period of suspension and the rights of the suspended official in the event of an acquittal.” Given this Opinion of the Venice Commission, the new provision of the Criminal Procedure Code provided that “the principle of proportionality shall apply,” same as “the ordering, duration, extension, termination and applicable appeals procedures of the measure under this Article [i.e., suspension of official person from duty],” as set out in the Code. When it comes to the payment of salary, Article 540 stipulates that “During the entire period of the suspension from duty based on Article 539 of this Code, the official person is entitled to receive fifty percent (50 %) of his basic salary.” And as far as the rights of the suspended official in the event of acquittal are concerned, paragraph 3 of Article 540 provides that, in such a case, “the period of suspension under Article 539 of this Code shall be treated as serving on duty for all purposes and the official person shall receive the full pay and other applicable allowances, which would have been paid if the suspension from service had not been imposed.”
Although temporary by nature, depending on the complexity of the case and the speed of proceedings, this procedure can also lead to, or result in, longer-term suspension.
Kosovo’s legislation also provides for another situation of temporary suspension, which, however, is not directly linked to pre-trial detention. For instance, the Law on Self-Government provides that the Government may suspend a municipal mayor “if it considers that the Mayor has violated the Constitution and the applicable laws.” The procedure is initiated by the ministry responsible for local government, which recommends the suspension of such mayor to the Government if it considers that “the conditions for the suspension of the Municipal Mayor are met.” The Government can suspend a mayor for a maximum of thirty (30) days. If confirmed by the Constitutional Court, the mayor’s term is terminated. However, the main guarantee in such a scenario is precisely the Constitutional Court. Article 64.3 of the Law on Local Self-Government provides that “If the Constitutional Court upholds the decision, the Government shall remove the Mayor from the office.” If, however, the Constitutional Court does not uphold the Government’s decision, the suspension will end, and the mayor will return to office.
Permanent suspension / Removal when convicted
Apart from suspension by the Government for a period of up to thirty (30) days, which may result in removal from office if confirmed by the Constitutional Court, the Law on Self-Government provides for two other explicit situations that lead to the termination of a mayor’s term of office, namely
(1) if the mayor is convicted of a criminal offence with an order of imprisonment for six (6) months or more ; and
(2) if there is a final court decision that deprives the mayor of legal capacity to act (i.e., legal incapacitation).
Latvia
Liechtenstein
Mayors are according to the rules of the act on municipalities elected direct by the voters. There are no possibilities to remove them from office in the case of detention.
Lithuania
It should also be emphasized that these constitutional amendments, which expressly established the constitutional status of the municipal mayor, were adopted by the legislature in response to the ruling of the Constitutional Court of 19 April 2021 (No. KT59-N5/2021). The full text of the ruling is available at: https://lrkt.lt/en/court-acts/search/170/ta2484/content. In that ruling, the Constitutional Court held unconstitutional, inter alia, the legal regulation under which the mayor was simultaneously a directly elected member of the municipal council who performed the functions of the chairperson of the municipal council. The Constitutional Court found that such regulation was incompatible with the Constitution, as it infringed the constitutional principle of the equal mandate (status) of members of the municipal council and violated the constitutional requirement prohibiting the conferral of executive powers upon the representative institutions of local self-government – namely, member of the municipal council.
According to the Lithuanian legal framework, municipal mayors do not enjoy immunity from arrest or detention. They may be detained under the same general rules and on the same legal grounds as any other person in the Republic of Lithuania, as laid down in the Code of Criminal Procedure of the Republic of Lithuania (CCP) (see Arts 122 and 144 of the CCP).
The question of when a mayor may be temporarily suspended from office during criminal proceedings, including pre-trial detention, is addressed in ordinary legislation. The central provision in this regard is Article 157 of the CCP, which regulates the imposition of coercive measures such as temporary removal from office.
The article reads as follows.
“Article 157. Temporary removal from office or temporary suspension of the right to engage in a certain activity
1. In the course of an investigation of criminal acts, upon the request of the prosecutor, a pretrial judge shall have the right, by adopting an order, to temporarily remove the suspected person from office or to temporarily suspend his/her right to engage in a certain activity if this is necessary for the speedier and more impartial investigation of the criminal act or for preventing the possibility for the suspected person to commit new criminal acts. The order on the temporary removal of the suspected person from office shall be sent to the employer for enforcement.
2. Temporary removal from office or the temporary suspension of the right to engage in a certain activity may not exceed six months. Where necessary, the application of this measure may be extended for up to three additional months. The number of extensions shall be unlimited.
3. An order on the temporary removal of the suspected person from office or on the temporary suspension of his/her right to engage in a certain activity, as well as an order on extending the term of the application of the said measure, may be appealed against to a higher court by the suspected person or his/her defence counsel within seven days of the day of the announcement of the order to the suspected person. A ruling adopted by the said court shall be final and not subject to appeal.
4. After the case is referred to a court, a decision regarding temporary removal from office or the temporary suspension of the right to engage in a certain activity shall be adopted by the court before which the case has been brought.
5. In the course of a pretrial investigation, the prosecutor or, after the case is referred to a court, the court must revoke the imposed temporary removal from office or the temporary suspension of the right to engage in a certain activity once this measure becomes no longer necessary.”
It should be noted that the Parliament of the Republic of Lithuania petitioned the Constitutional Court, requesting an assessment of the constitutionality of Article 157 of the CCP. As a result, the Constitutional Court examined whether Article 157, insofar as it does not establish a prohibition on the temporary removal of directly elected municipal politicians from the offices of mayor or deputy mayor, nor imposes any additional criteria limiting the duration of such removal, is compatible with the Constitution.
After considering the matter, the Constitutional Court delivered its ruling (No. KT7-N4/2016 of 17 February 2016), holding that the contested provision of the CCP is consistent with the Constitution of the Republic of Lithuania. The full text of the ruling is available at: https://lrkt.lt/en/court-acts/search/170/ta1602/content.
According to the Constitutional Court, the legal regulation of temporary removal from office, as laid down in Article 157 of the CCP, among other things:
– specifies the subjects authorised to adopt a decision on applying the procedural coercive measure in question and on extending its application: only a pretrial judge or a court (after the case is referred to it) may, by adopting an order, temporarily remove the suspected (accused) person from office and extend the application of the imposed measure;
– sets out the aims underlying the application of temporary removal from office: to investigate a criminal act in the speedier and more impartial manner or to prevent the suspected person from the possibility of committing new crimes;
– sets the criterion of necessity, which must be taken into account in deciding on the application (extension of the application) of this procedural coercive measure: temporary removal from office may be applied only where this measure is necessary; at the same time, the obligation is established for the prosecutor (in the course of the pretrial investigation) and the court (after the case is referred to it) to revoke the imposed temporary removal from office once this measure becomes no longer necessary;
– sets the requirements for the duration of the application of this procedural coercive measure: normally, temporary removal from office may not exceed six months; it is provided that, where necessary, the application of this measure may be extended for up to three additional months; the number of extensions is not limited;
– provides for the possibility of lodging a complaint before a higher court against an order on temporary removal from office or an order on the extension of the application of this measure.
As a result, the Constitutional Court has held that there are grounds for stating that the CCP consolidates the sufficient guarantees to ensure that the rights of a person, who is subject to the procedural coercive measure of temporary removal from office, including the right to freely choose a job, would not be limited in a disproportionate manner.
In the ruling, it was also noted that the subjects who have the powers to decide as to the application of temporary removal from office (including a judge in pre-trial investigation, or a court) have the duty to ensure that the rights of a person subject to this procedural coercive measure are not violated. These subjects must ensure that this measure is applied only in cases where it is necessary to reach the objectives established in the law (to enable the speedy disclosure and thorough investigation of criminal acts, or to prevent new criminal acts), as well as that the application of this measure does not restrict the rights or freedoms of the person more than necessary to reach the specified objectives. A decision to apply temporary removal from office must be founded on reasonable arguments, which would prove the existence of the objectives and grounds specified under the law for this measure to be applied in a concrete situation; a decision to prolong the application of this measure to a concrete person must be based on additional substantial arguments, which would prove the necessity to extend the period of its application. A decision to apply this procedural coercive measure to a municipal council member holding the office of mayor or deputy mayor must be based, among other things, on the evaluation of the nature of the office held by the person and the nature of the crime he/she is suspected (charged) to have committed, since the nature of the office held and the nature of the crime may determine the grounds and expediency of the application of temporary removal from office; this must be taken into account both in cases where it is necessary to substantiate the need to apply the measure in question for the first time and in cases where it is necessary to provide reasoning for the need to prolong the application of this measure.
In this context, it needs to be mentioned that, in the rulings of the Supreme Court of Lithuania, which develops the uniform case law of the courts of general jurisdiction, it has been interpreted that the grounds for the application and appropriateness of the procedural coercive measure of temporary removal from office as laid down in Article 157 of the CCP are determined by the nature of the duties held by the suspect (the person accused or standing trial) and the nature of a crime of which he/she is suspected (accused): where the possibly committed criminal act is related to the use of the official authority exercised by the suspected (accused) person, this circumstance may imply the need to remove this person from office (see e.g. the rulings of 13 November 2015 and 18 December 2015 of the Supreme Court of Lithuania in civil cases no 3K-3-572-969/2015 and no e3K-3-670-378/2015).
The case-law of Lithuanian courts confirms that when applying Article 157 of the CCP, courts provide detailed reasoning for their decisions to impose such measures on individuals holding the office of mayor. In doing so, they take into account the nature and circumstances of the alleged offences, their connection with the duties of office, and other relevant factors. Illustrative examples include the ruling of the Panevėžys Regional Court of 27 November 2015 in criminal case No. 1S-581-768/2015, as well as the ruling of the Court of Appeal of Lithuania of 26 May 2015 in criminal case No. 1N-102-197/2015.
As regards the question of permanent removal from the office of mayor, particular relevance has the so-called quasi-impeachment procedure. This procedure is regulated by Article 13 of the Law on Local Self-Government.
This article reads as follows.
“Article 13. Termination of the Mandate of a Municipal Council Member or Mayor by Decision of the Municipal Council
1. The municipal council shall apply the procedure for terminating the mandate of a municipal council member or mayor by its decision where, in the course of holding office, the member or mayor has engaged in actions contrary to the Constitution and/or laws, with the aim of addressing their responsibility.
2. A motion to initiate the procedure for terminating the mandate of a municipal council member or mayor may be submitted by a group comprising no less than one-third of all municipal council members.
3. A motion to initiate the procedure for terminating the mandate of a municipal council member or mayor may be submitted on at least one of the following grounds:
(1) breach of oath;
(2) failure to fulfil the powers established for them in this or other laws.
4. The motion to initiate the procedure for terminating the mandate of a municipal council member or mayor must be set out in writing with reasoning and signed by all members constituting at least one-third of the municipal council. The motion must be submitted to the municipal council no later than one month from the date on which at least one of the grounds specified in paragraph 3 of this Article became known.
5. The motion to initiate the procedure for terminating the mandate of a municipal council member or mayor shall indicate the specific person concerned, specify at least one of the grounds provided for in paragraph 3 of this Article, and set out the supporting arguments, evidence, and their sources.
6. Upon receiving a motion to initiate the procedure for terminating the mandate of a municipal council member or mayor, the municipal council, at its next meeting but no later than one month from the date of receipt of the motion, shall adopt a decision to establish a commission to investigate the submitted facts and set a deadline by which the commission must present its findings. The commission shall be composed of representatives of all council factions, groups, and members unaffiliated with any faction or group, in accordance with the principle of proportionality.
7. After considering the findings of the commission, the municipal council shall adopt one of the following decisions:
(1) to apply to the Supreme Administrative Court of Lithuania for an opinion as to whether the municipal council member or mayor has breached the oath and/or failed to fulfil the powers established for them in this or other laws (as specified in the application);
(2) that there are no grounds to apply the procedure for terminating the mandate of a municipal council member or mayor.
8. If the municipal council decides to apply to the Supreme Administrative Court of Lithuania, the application shall be submitted no later than six months from the date on which at least one of the grounds specified in paragraph 3 of this Article became known, and the municipal council shall appoint one or more council members to represent it before the Court.
9. If the Supreme Administrative Court of Lithuania issues an opinion that the municipal council member or mayor has not breached the oath and/or has properly exercised the powers established for them in this and other laws, the procedure for terminating the mandate shall be discontinued.
10. If the Supreme Administrative Court of Lithuania issues an opinion that the municipal council member or mayor has breached the oath and/or failed to exercise the powers established for them in this and other laws, the municipal council shall, by a three-fifths majority of all council members, adopt a decision declaring that the municipal council member or mayor has lost their mandate. If such a decision is not adopted in accordance with the procedure laid down in this Article, it shall be deemed that the municipal council has not approved the termination of the mandate, and the council member or mayor shall continue to exercise their powers.”
According to Article 176(4) of the Electoral Code of the Republic of Lithuania, the mandate of a mayor shall terminate before the expiry of the term when the municipal council adopts a decision on the termination of the mandate of a mayor in accordance with the procedure established by the Law on Local Self-Government of the Republic of Lithuania (point 11). Under Article 176(1) of the Electoral Code, in such case of premature termination of the mandate of a mayor, the Central Electoral Commission shall adopt a reasoned decision within no later than 15 days from the date on which the grounds arise, and shall publish this decision in the Register of Legal Acts.
It may be observed that removal from office under the quasi-impeachment procedure does not entail any direct legal consequences with respect to electoral rights. Municipal mayors removed in this manner remain fully eligible to stand in all elections in the Republic of Lithuania. Accordingly, a mayor removed from office for breach of oath or failure to perform statutory duties may, without restriction, participate again in subsequent mayoral elections.
Separately, it should be noticed that according to Article 176(4) of the Electoral Code the mandate of a mayor shall terminate before the expiry of the term also when a conviction of the court becomes final – on the basis of a final court judgment (point 4). Again, under Article 176(1) of the Electoral Code, in such case the Central Electoral Commission shall adopt a reasoned decision within no later than 15 days from the date on which the grounds arise, and shall publish this decision in the Register of Legal Acts.
Interpreting this provision, the Supreme Administrative Court of Lithuania, in its judgment of 13 June 2025 in administrative case No. eR-4-1188/2025, noted that the rule set out in Article 176(4)(4) of the Electoral Code must be understood as meaning that, upon the occurrence of the legal fact – the entry into force of any conviction of the court – the mandate of a municipal council member or mayor shall terminate. The Supreme Administrative Court also pointed out that the legislature has the discretionary power to determine which persons, failing to meet certain criteria of reputation, residence, or other requirements, lose the right to be members of a municipal council. The establishment of such criteria, by its purpose, does not constitute a restriction of the citizens’ right to vote or to be elected, but rather, for example, serves to deter municipal council members from conduct inappropriate to their status (see, e.g., the judgment of 13 June 2025 in administrative case No. eR-4-1188/2025, and the judgment of 27 November 2019 in administrative case No. eR-59-552/2019).
In this context, attention should also be drawn to Article 68 of the Criminal Code of the Republic of Lithuania, which provides for the court’s power to impose deprivation of public rights or the right to work in certain jobs or engage in certain activities.
The article reads as follows.
“Article 68. Deprivation of public rights or the right to work in certain jobs or engage in certain activities
Deprivation of public rights shall mean the removal of the right to be elected or the right to be appointed to elective or appointive positions in state or municipal institutions and agencies, enterprises, or non-governmental organisations. A person may be deprived of either one or both of these rights.
The court shall impose deprivation of public rights where the criminal act was committed by abusing such public rights.
The court shall impose deprivation of the right to work in a certain job or to engage in a certain activity where the criminal act was committed in the course of professional or occupational activity, or where, having regard to the nature of the committed offence, the court concludes that the person should not retain the right to perform such work or engage in such activity.
Public rights may be withdrawn, or the right to work in a certain job or engage in a certain activity may be withdrawn, for a period ranging from one to five years. For medium and serious crimes defined in Chapter XXXIII of this Code, such rights may be withdrawn for a period ranging from three to seven years. When imposing deprivation of public rights or deprivation of the right to work in a certain job or engage in a certain activity, the court shall specify which of the rights referred to in paragraphs 1 and 3 of this Article are withdrawn, as well as the duration of this penal sanction. The duration shall be calculated in years, months, and days.
Deprivation of public rights or of the right to work in a certain job or engage in a certain activity, when imposed together with imprisonment or arrest, shall apply throughout the entire term of imprisonment or arrest and for the additional period determined by the court after the execution of the sentence of imprisonment or arrest.”
It should be noted that, according to the consistent case-law of the Supreme Administrative Court of Lithuania, under Article 176(4)(4) of the Electoral Code, the mandate of a municipal council member and of a mayor is terminated before the expiry of the term once a conviction against them becomes final, regardless of whether the court imposed deprivation of public rights or the right to work in certain jobs or engage in certain activities under Article 68 of the Criminal Code (see, e.g. the judgment of 13 June 2025 in administrative case No. eR-4-1188/2025).
Macedonia
Article 54 of the Law regulates the circumstances under which the mandate of the mayor terminates. Pursuant to Article 54, paragraph (1), item 6, the mandate of the mayor shall cease in the event of unjustified absence for a period longer than six (6) months. The council shall decide on the justification of such absence under Article 54, paragraph (1), item 6, by a two-thirds majority of the total number of council members. In the event that a mayor is unable to perform his or her duties due to any of the circumstances referred to in Article 54, paragraph (1), a council member designated to substitute for the mayor is required to notify the Ministry of local self-government within fifteen (15) days of the occurrence of such circumstances. Upon receiving this notification, the Ministry must inform the Government of the Republic of North Macedonia within fifteen (15) days. The Government is then required, within one (1) month of receiving the notification, to establish whether one of the circumstances has indeed occurred and, if so, to initiate proceedings for the calling of new elections for mayor in accordance with the law.
Following the Government’s decision, the council is obliged, within thirty (30) days from the date of its publication, to elect one of its members to perform the duties of mayor until a new mayor is elected, using the same procedure by which the president of the council is elected. During the period in which a council member performs the duties of mayor, his or her mandate as a council member is suspended. However, new elections will not be conducted if less than six (6) months remain until the next electoral period.
According to the Law on Administrative Disputes (Official Gazette of the Republic of North Macedonia, No. 96/2019), in an administrative dispute, the Administrative Court shall adjudicate on the legality of final individual acts concerning the dismissal of holders of public office adopted by the bodies of the units of local self-government (Article 3, paragraph (1), item 6), as well as on the legality of individual acts of public authorities by which a right, obligation, or legal interest of the claimant has been violated, where the lodging of an ordinary legal remedy is not permitted and legal protection is not provided in another judicial proceeding (Article 3, paragraph (1), item 7).
Malta
as amended:
12. No person shall be qualified to stand for election as a member of a Council or to remain a member thereof if:
…….
(f) he is an undischarged bankrupt having been adjudged or otherwise declared bankrupt under any law in force in Malta;
…….
(h) he is serving a sentence of imprisonment (by whatever name called) exceeding twelve months imposed on him by any court in Malta;
Moreover, Article 19 states that:
(1) It shall be the duty of every councillor who has any pecuniary interest, direct or indirect, in any contract or proposed contract or other matter and is present at any meeting of the Council at which that contract, proposed contract or other matter is, or is to be, considered to disclose openly to the meeting and as soon as practicable after the commencement thereof the nature of his interest and –
(a) not to preside over or take any part in the consideration or discussion of, or to vote on any question with respect to, that contract, proposed contract or other matter; and
(b) unless the contract, proposed contract or other matter is under consideration by the Council merely as part of a report of a committee or sub-committee thereof and does not itself become the subject of separate debate, to withdraw from the meeting while that matter is being considered.
…..
(3) Any person who knowingly acts in contravention of subarticle (1) shall be guilty of an offence and shall be liable to imprisonment for a term not exceeding one year or to a fine (multa) not exceeding two thousand five hundred euro (€2,500) or fifty per centum of the contract, proposed contract or other matter, whichever is the greater or to both such fine and imprisonment, and any person found guilty of such an offence shall cease to be qualified to hold the office of councillor for a period of five years from such conviction.
And, furthermore:
108. (1) Any person who commits the offence of personation, treating, undue influence, or bribery or aids, abets, counsels, or procures the commission of the offence of personation, and any candidate who knowingly makes the declaration, as to election expenses required by regulation 101, falsely, shall be guilty of a corrupt practice and shall be liable, on conviction, in the discretion of the court, to a fine (multa) not exceeding two thousand and three hundred and twenty-five euro (€2,325), or to imprisonment for a term not exceeding six months, or to both such fine (multa) and imprisonment, and shall in consequence of such conviction become incapable, for a period of seven years from the date of his conviction of being registered as a voter or voting at an election under the Act, or of being elected a councillor, and if at that date he has been elected councillor, his election shall be vacated from the date of such conviction.
The law does not cater for the circumstance indicated in this question. Accusation of a criminal offence whether leading to pre-trial detention or not would be a political issue for any candidate elected on a Party ticket. In a recent case, as soon as the person was arrested and arraigned by the Police, the accused resigned from the Local Council and from membership of the Party in question. In another instance, when a Councillor was found out to have had a criminal conviction (of the type that does not automatically disqualify you legally) the Party disowned the Councillor who had henceforth to remain as an Independent. In Malta the legal presumption of innocence is a strong precept in criminal law.
The only case where the law contemplates suspension from office relates to the Executive Secretary of the Local Council. In Article 49, the law states that while suspended at the request of the Local Council for a substantive cause, an Executive Secretary shall be entitled to pay until a final decision is taken. The Executive Secretary is a civil servant and not an elected representative.
Montenegro
There is only a general provision (Article 63 of the Law on Local Government) according to which the Government may dismiss a mayor if the mayor, for a period longer than six months, does not perform the duties within his competence. A mayor is considered not to be performing the duties within his competence if he fails to ensure the implementation of laws, other regulations and general acts, and the implementation of the municipality’s strategic development plan and other development plans and programs, as well as strategic documents of state importance, thereby obstructing the exercise of citizens’ rights and obligations.
The Government must first issue a warning and set a deadline within which the mayor should ensure the performance of his duties. If he fails to do so, he will be requested to provide an explanation, after which the Government may dismiss him. Such a decision may be challenged before the Administrative Court, and the proceedings are of urgent nature.
In recent practice, a mayor of one municipality was in detention and was allowed to receive documents for signature through the High Court2. He was, therefore, in a certain way performing his duties, and the Government did not initiate dismissal proceedings. The law does not provide, under any circumstances, the temporary suspension of a mayor, including in cases of pre-trial detention.
NB: The Criminal Procedure Code and the Criminal Code contain no provisions related to this matter
Moldova
“(1) If a mayor is prosecuted for a criminal offence, they may be suspended from office until a final court decision is reached.' No new mayoral elections will be held during the suspension period.
(2) Such a suspension can only be ordered by a court of law in accordance with legal procedures.
(3) If the mayor is acquitted or the case is closed (excluding cases of amnesty), they are entitled to compensation for any damages suffered due to the suspension, as stipulated by law. In such cases, the mayor shall be reinstated for the remainder of their term.
(4) These provisions also apply to deputy mayors.”
Additionally, the Constitutional Court clarified that the procedural coercive measure of temporary suspension from office is not automatically applied to the mayor by the mere operation of law, but is instead subject to the court's discretion. The court must assess the grounds for suspension, justify its appropriateness, and explain its decision considering the specific circumstances of each case, rather than relying on general or abstract reasoning ((see, for example, Constitutional Court Decisions Nos. 96/2017 and 89/2017 on inadmissibility).
Furthermore, the Court emphasized that a mayor cannot be suspended from office unless there is a direct and substantive link between the alleged criminal offence and their position. The Court reaffirmed that such a suspension does not infringe the presumption of innocence (see Constitutional Court Judgment No. 6 of 3 March 2016, with necessary adaptations). Additionally, when deciding on the application of this procedural measure, the Court does not determine the mayor’s guilt or criminal liability.
The Court also noted that provisions permitting suspension from office may be justified when temporary circumstances arise that prevent the effective performance of official duties. Essentially, such a suspension may be necessary to protect the public institution from the risk of continued unlawful behaviour and prevent further harmful consequences resulting from the alleged criminal offence.
Monaco
Norway
In Norway, the suspension of elected members of political bodies on the local level (counties and municipalities) is regulated by Section 7-12 of the 2018 Act relating to municipalities and county authorities (The Local Government Act). Link to the official English translation: https://lovdata.no/dokument/NLE/lov/2018-06-22-83. Note that the English translation is up to date until 2022. Section 7-11 was amended in 2023 and renumbered as 7-12. The amendments concerned which provisions in the Penal Code that could lead to suspension.
The amended section 7-12 reads (in the official English translation, but with the new section number and the amendments in 2023 added by me):
Section 7-12. Suspension, etc.
If a charge is brought or an indictment is rendered against a popularly elected representative for such a criminal office as stated in section 151 to 154, 170 letter b, 171 to 175, 209 to 210, 351 to 352, chapter 27 or 30 of the Penal Code, and the charge or indictment relates to the discharge of office or service for the municipality or county authority, the municipal council or county council may itself decide to suspend the person concerned from office until the case has been finally decided. If it concerns an offence stated in section 151 to 154 of the Penal Code, the condition that the offence shall be related to discharge of office or service for the municipality or county authority does not apply.
If an indictment is rendered against the mayor for an offence that may be punishable by a term of imprisonment of more than three years, the municipal council or county authority may itself suspend the mayor from office until the case has been finally decided. The decision shall be made by no fewer than 2/3 of the votes cast.
A popularly elected representative who has been suspended is entitled to compensation for lost earnings, remuneration for work or remuneration through buy-out pursuant to the provisions of sections 8-3, 8-4 and 8-5 for up to one year. However, this only applies if the popularly elected representative has an office that represents at least a 20 per cent position.
The municipal council or the county council may itself decide to remove the mayor from office if by his or her conduct the mayor shows that he or she is unfit to hold the office. The decision shall be made with at least 90 per cent of the votes cast.
A decision to suspend a popularly elected representative or remove a popularly elected representative from the office of mayor is an individual decision pursuant to section 2 of the Public Administration Act.
Link to the English translation of the Penal Code: https://lovdata.no/dokument/NLE/lov/2005-05-20-28/*#*
It is important to note that the first paragraph of section 7-12 concern other local elected representatives and not the mayor. There are separate rules and safeguards for mayors in paragraphs 2 and 4. Mayors can be suspended from their office for criminal offences and for being unfit for office.
1. Indictment for a criminal offence punishable by at term of imprisonment of more than three years
a. Safeguards: Only the relevant elected body, either a county council or municipal council, can suspend the mayor, and only with a 2/3 majority. For other members of the county or municipal council, an ordinary majority is sufficient for suspension.
b. The reference to the Public Administration Act in the last paragraph means that the decision is an individual decision that must be reasoned.
2. For being unfit to hold the office.
a. Safeguards: At least 90% of the votes cast in the county council or municipal council.
b. The preparatory works (relevant legal source for the interpretation of the law) emphasises that the condition “unfit” is to be interpreted strictly and that the bar is set very high, meaning that mayor cannot fulfil his/her role as the first of the locally elected officials. In this assessment, issues not directly related to the conduct of the office can also be relevant.
c. The reference to the Public Administration Act in the last paragraph means that the decision is an individual decision that must be reasoned.
d. Whether the condition of “unfit” is met, can be reviewed by the Ministry as part of its legality control of decisions by local governments (Local Government Act, chapter 27). The Ministry can assess the procedure and the legal interpretation by the county or municipal council, but as a main rule not the assessment of whether the mayor meet the condition “unfit”. This assessment can only be overturned by the Ministry in case of clear evidence of the abuse of power.
e. The decision to suspend a mayor can also be reviewed by the courts, which can review the procedure and the understanding of the condition “unfit”.
Peru
Artículo 25.- Suspensión del cargo
El ejercicio del cargo de alcalde o regidor se suspende por acuerdo de concejo en los siguientes casos:
[…]
3. Por el tiempo que dure el mandato de detención;
[…]
La suspensión del cargo de un alcalde dependerá de la duración del mandato de detención. Al respecto, en el Perú, el plazo de prisión preventiva puede durar 9 meses en casos simples; 18 meses en casos complejos, 36 meses en casos de criminalidad organizada, conforme al art. 272 del Nuevo Código Procesal Penal.
Asimismo, el Tribunal Constitucional ha emitido doctrina jurisprudencial vinculante sobre la prisión preventiva en la Sentencia 03248-2019-PHC/TC (caso Yoshiyama Tanaka). En esta sentencia, se interpretó en clave constitucional el ordenamiento jurídico procesal penal a efectos de brindar pautas interpretativas sobre la prisión preventiva.
A. Que la prisión preventiva es una medida provisional y excepcional de carácter no punitivo.
B. El derecho a la presunción de inocencia y principio de legalidad como límites a la adopción de medidas de prisión preventiva.
C. El cumplimiento del deber de “debida motivación reforzada” de las medidas de prisión preventiva.
D. Pautas sobre la evaluación del peligro procesal para el dictado de la medida de prisión preventiva.
E. Pautas sobre la determinación de la duración de la prisión preventiva.
F. La necesidad de la revisión periódica de la permanencia de los presupuestos que sustentaron el dictado de una medida de prisión preventiva, de conformidad con el estándar de provisionalidad establecido por la Corte Interamericana de Derechos Humanos.
Contra la decisión del Consejo, se puede interponer una reconsideración para que órgano la resuelva. También puede interponerse recurso de apelación, para que JNE resuelva en última instancia.
Contra la decisión jurisdiccional que ordena la detención, se puede interponer recurso de apelación. También puede presentarse un habeas corpus la que en principio se tramitan en el Poder Judicial y en última instancia, ante el Tribunal Constitucional.
Por otro lado, el art. 25 de la Ley 27972, de la Ley Orgánica de Municipalidades en la parte pertinente señala que “[…] Concluido el mandato de detención a que se refiere el numeral 3, el alcalde o regidor reasume sus funciones en forma automática e inmediata, sin requerir pronunciamiento alguno del concejo municipal.
Poland
The commencement of the deputy’s performance of duties in the event of the mayor detention runs from the day of the detention until the day of the release (this point is expressly regulated in Art. 28g(6)(1) of the Act on Municipal Self-Government).
Pre-trial detention does not automatically cause the termination of the mandate or the loss of passive electoral rights; termination of the mandate occurs only upon the occurrence of specific statutory grounds (for example, a final conviction for certain offences).
The law sets out which documents and circumstances constitute formal proof of the impediment (for example: the employer’s notification referred to in Art. 261 §3 of the Code of Criminal Procedure, an order to commence serving a sentence, or a court/prosecutor’s decision). Such formal evidentiary requirements are relevant to the activation of the mechanism by which the deputy assumes duties.
If administrative acts follow (for example, the removal of a deputy by the voivode), those acts may
be subject to a judicial review: an administrative complaint to the administrative court and further
appellate remedies (within short statutory time-limits) are available. This provides a possibility of
judicial control over administrative actions concerning the staffing of municipal offices.
Portugal
However, if the situation involves a mayor, the issue lacks a clear solution - not regarding preventive detention, but rather the suspension of exercise. Before the 2007 revision of Article 199, paragraph 1, subparagraph a) of the Criminal Procedure Code, the Constitutional Court interpreted the (then) aforementioned (with another wording) provision as not covering political office holders, that is, not allowing the temporary suspension of mayors in criminal proceedings.
The change in 2007 of the wording of Article 199, paragraph 1,subparagraph a), of the CPP («if the crime is punishable by a maximum prison sentence of more than 2 years, the judge may impose on the indicted [...] the suspension of the exercise of a profession, function or activity, public or private, [...] whenever the prohibition of the respective exercise may be decreed as a result of the crime charged»), was intended to clarify the legal regime, but the law is still not clear enough to resolve doubts of interpretation, that continue to exist regarding the legality of the suspension of exercise of the political mandate of mayors as a coercive measure in criminal proceedings. In any case, the suspension of exercise would have to refer only to the exercise, and not with the capacity held by the indicted: in case, a political mandate of a mayor that subsists despite the suspension.
Romania
The pre-trial detention measures are regulated in extenso by the Criminal Procedure Code as preventive measures, such as:
a) detention (police custody)
This preventive measure may be ordered against a suspect or an accused/defendant by the criminal investigation body or by the prosecutor, only during the criminal investigation (pre-trial) phase.
b) house arrest
c) pre-trial detention (remand in custody)
These last two preventive measures may be ordered against the accused/defendant, as follows:
(i) during the criminal investigation, by the judge of rights and liberties;
(ii) during the preliminary chamber proceedings, by the preliminary chamber judge;
(iii) during the trial, by the trial court.
There are also two other preventive measures provided in criminal cases: judicial supervision and judicial supervision on bail, but they do not reflect any effective detention, which is a direct and pure limitation of personal freedom.
All these preventive measures which lead to detention or arrest may be ordered against any mayor, if the person exercising the office has been charged with a criminal offence which requires such measures.
Temporary suspension and termination of office cases for mayors
The administrative sanctions of temporary suspension and termination of office for mayors following a pre-trial detention measure are regulated by the Administrative Code (Emergency Ordinance no. 57/2019).
According to art. 159 of the Administrative Code, the mayor’s term of office is suspended by law in the following situations:
a) pre-trial detention (remand in custody)
b) house arrest
According to art. 160 of the Administrative Code, the mayor’s term of office shall cease by law in the following cases:
a) conviction by final judgment to a criminal sentence, regardless of the manner in which the sentence is to be served
In such a case, the office of mayor shall cease regardless of the way in which the execution of the sentence is individualized: either by imprisonment effectively served or the conditional suspension of the execution of the sentence (a suspended sentence).
b) loss of electoral rights (disenfranchisement)
The loss of electoral rights (e.g., right to be elected, right to elect, right to occupy a public office) is a complementary measure ordered only by the criminal court of law in a final judgment (art. 66 – 68 of the Criminal Code)
c) conviction by a final judgment for committing an electoral offence during the electoral process in which the mayor was elected, regardless of the penalty imposed and the manner of its execution.
Thus, temporary suspension from office is provided only for two pre-trial detention preventive measures (house arrest and remand in custody), and not for detention (police custody).
However, once a final criminal conviction is ordered by a court of law in a final judgment, the presumption of innocence is rebutted upon the court’s final judgment. Therefore, in such cases, the law provides for the termination of office. A mayor cannot exercise his/hers office following the final conviction by judgment of the criminal court.
Guarantees
Criminal proceedings guarantees
The criminal proceedings guarantees reflect the due process of law in criminal matters and they are regulated in details by the Criminal Procedure Code. These guarantees are regulated depending on the moment when the pre-trial detention measures are taken: during the criminal investigation, during the preliminary-chamber proceedings, during the trial.
During the criminal investigation and the preliminary-chamber proceedings, applications, motions, complaints, and challenges concerning preventive measures shall be adjudicated in chamber, by a reasoned order. During the trial, the court shall rule on preventive measures by means of a reasoned order [art. 203 (5) (6) Criminal Procedure Code].
All reasoned orders adjudicated in chamber or by trial court regarding preventive measures may be contested. Thus, in the Romanian criminal legal order, there are always two levels of jurisdiction in such cases.
There are many more procedural guarantees provided by the Criminal Procedure Code regarding the review of preventive measure during the appeal remedy (art. 204 – 205 Criminal Procedure Code). Moreover, the Criminal Procedure Code provides for many procedural guarantees for each specific pre-trial detention preventive measures, such as maximum duration of the preventive measure, communication, citations rules, right to be represented by council etc).
Procedural administrative guarantees
Temporary suspension
The Administrative Code regulates the procedure for temporary suspension of mayors following a pre-trial detention decision of the criminal court of law.
According to art. 159 (2) – (5) of the Administrative Code, the preventive measures of house arrest and pre-trial detention (remand in custody) shall be communicated without delay by the court of law to the prefect. The latter shall, by order issued within no more than 48 hours from such communication, order the suspension of the term of office.
The suspension order shall be communicated to the mayor within no more than 48 hours from its issuance. The suspension shall remain in effect until the cessation of the preventive measures.
Where, in respect of the mayor suspended from office, a case dismissal or a waiver of prosecution has been ordered, or the court has ordered an acquittal or the termination of the criminal proceedings, the mayor shall be entitled, in accordance with the law, to payment of the salary entitlements corresponding to the period during which he/she was suspended.
Although Article 159 does not expressly provide a challenge, the order is an administrative act reviewable under the general procedure provided by Law No. 554/2004 regarding the judicial review of administrative acts. A special procedure before the administrative court of law is provided by the Administrative Code only with regard to the prefect`s order providing for the termination of office – see point 1.2.2.2. bellow.
Termination of office
According to art. 160 (6) – (10) of the Administrative Cod, in cases of definitive criminal conviction, the mayor`s term of office cease only after the court judgment has become final.
In all cases of early termination of the mayor’s term of office (including definitive criminal conviction), the prefect shall issue an order ascertaining the termination of the mayor’s mandate.
This order shall be based on a report signed by the secretary general of the administrative-territorial unit/subdivision, together with the documents evidencing the legal ground for termination.
The report of the secretary general of the administrative-territorial unit/subdivision shall be transmitted to the prefect within 10 days from the date on which the situation giving rise to the termination by operation of law of the mayor’s mandate occurs.
The prefect’s order may be challenged by the mayor before the administrative court within 10 days from its communication. The administrative court shall rule within 30 days. As a special provision of the Administrative Code to assure expedition of the case, the application-regularisation procedure shall not apply. Also, the prior administrative complaint procedure shall not be carried out, and the judgment of the first-instance court shall be final.
San Marino
Indeed, the institutional role that can be considered equivalent to that of the mayor in terms of functions and representation is that of the Head of the Township Council, who presides over and represents the Township Council elected by the citizens. These bodies perform representative and administrative functions, ensuring that local institutions are rooted in society and encouraging citizens to participate in public life.
This institutional framework, while essential with regard to its configuration, is an expression of a model of proximity based on the principle of subsidiarity and directly linked to European and international sources of law, in particular the European Charter of Local Self-Government of the Congress of Local and Regional Authorities of the Council of Europe.
It should also be noted that, precisely in light of the limited size and population of San Marino, there are no precedents for the application of precautionary measures against the Heads or members of the Township Councils during their term of office. Consequently, the following observations are based exclusively on the current regulatory framework and cannot include any case law or specific examples.
The special law on Township Councils (Law no. 158 of 24 September 2020) regulates in detail the composition of the Township Councils, the election of their Heads and members, the grounds for removal and the procedures for replacement, as well as cases of complete renewal of the bodies. Particular attention is dedicated to the instruments for ensuring the continuity of the body: in the event of resignation, removal or death of the members, the unelected candidates from the same list take their place; in the event of termination of the mandate of the Head of the Township Council, his functions are taken over by the member of the Council with the most votes from the same list, with the Secretary of the Township Council acting as temporary substitute until a replacement is found. Finally, the law provides for the possibility of declaring the entire Council removed if it fails to fulfil its obligations or does not meet for a period exceeding three months, resulting in new elections being called.
However, this Law does not contain any provisions governing the temporary suspension and/or replacement of the Head of the Township Council in the event of application of personal precautionary measures. Nor does it provide for special forms of immunity for the Heads and members of the Township Councils.
It should also be noted that even in the broader and more general electoral law, which comprehensively regulates the rights to vote and to be elected and the related causes for exclusion or loss of rights, there are no specific provisions concerning the case of a Head of a Township Council subject to precautionary measures. Indeed, electoral regulations generally provide for exclusion from exercising electoral rights in the event of a final criminal conviction, particularly for intentional criminal offences or criminal offences against political rights, when the punishment imposed exceeds one year of imprisonment, or in cases where the additional punishment of disqualification from public offices is imposed. On the contrary, this Law lacks provisions governing the application of precautionary measures and their consequent effects on the elected person.
These provisions are also directly applicable to the right to be elected for candidates for the office of Head of the Township Council, as expressly provided for in Article 9 of the special law on Township Councils no. 158.
In the absence of specific regulations, it is therefore necessary to refer to the more general legislation governing precautionary and disqualification measures in the criminal field, which was recently reformed by Law no. 24 of 2 March 2022. Among personal measures, those of a custodial nature, such as pre-trial detention in prison or house arrest, are particularly significant. In such cases, the person concerned becomes physically unable to perform any public duties: a Head of a Township Council who is under pre-trial detention would, in practical terms, be unable to attend the meetings of the Township Council, chair the sittings or represent his/her Township, thus resulting in a situation of de facto suspension from office.
In addition to the above, the Law also provides for disqualification measures, which do not deprive individuals of their personal freedom but directly impact their ability to hold certain positions. These include suspension from public office or service and a temporary prohibition of exercising administrative and representative functions in entities. Although there are no relevant precedents, it is clear that these measures are also applicable to the Head of a Township Council, since he performs public representative functions. In this case, it is not just a matter of a de facto impediment, but of a real legal impossibility to exercise the office, determined by the judicial act.
With regard to guarantees, since, once again, there is no specific legislation, it is necessary to refer to those that are generally applicable. In the San Marino criminal justice system, custodial, coercive or disqualification precautionary measures are subject to a set of guarantees that limit their application only to cases of actual necessity. The rule is that personal freedom and the exercise of political rights should not be affected, and that any restrictions should only be justified when there are strict requirements. First of all, the judge has to establish that there is serious evidence of guilt, i.e. strong evidence and not just mere suspicion. Moreover, precautionary needs must be verified and must be concrete and current: risk of flight, risk of evidence tampering, or possibility of repetition of the offence. Once these conditions have been established, the principle of proportionality applies, requiring that the least invasive measure available be adopted. This applies both to custody in prison or house arrest and to disqualification measures, such as suspension from public office: the judge must always explain why that particular measure, and not a less severe one, is necessary. Each measure must be carefully justified in order to ensure the transparency and enforceability of the decision, and is always subject to review and appeal before a different judge. Finally, all measures are subject to strict time limits, beyond which they lose their effectiveness, with particular attention to disqualification measures, which can never last longer than a few months. This ensures that the restriction of fundamental rights is truly exceptional and proportionate, and that it remains subject to constant judicial control.
Slovakia
Each mayor appoints one or two vice-mayors, who must be members of the directly elected local assembly and who step in if the mayor is unable to exercise their mandate (§ 13b par. 1). Being detained as part of criminal proceedings against them would certainly be one such situation. The mayor determines the extent of the vice-mayor’s powers (§ 13b par. 3) and the latter may be recalled at any time by the mayor (§ 13b par. 1).
The only situation where the mayor loses their office in connection with criminal proceedings is their final conviction either for an intentional crime no matter the sentence or for any crime to a non-suspended prison sentence (§ 13a par. 1 lit. d). In that case, the vice-mayor steps in ex lege and with full powers until the next regular election (§ 13b par. 4).
Another possible course of action would be for the local assembly to initiative the mayor’s popular recall if the latter has been absent for over six months (§ 13a par. 3 lit. b).
Spain
The only exception is provided by Art. 384 bis of the Criminal Procedure Code (Ley de Enjuiciamiento Criminal). It states: “Once an indictment has become final and provisional detention has been ordered for a crime committed by a person who is a member of or associated with armed gangs or terrorist or rebel individuals, any person standing trial who holds public office or a public position shall be automatically suspended from the exercise of that office or position for the duration of their detention.”
In the Spanish legal system, an ‘indictment’ is a judicial decision that the investigating judge may issue once the investigation of a crime has been completed. This decision is only issued if there is sufficient evidence to formally charge a person with the alleged commission of a crime. The indictment ends the investigation phase of the criminal proceedings and leads to the next phase (trial), which is conducted by another judge or court.
Pre-trial detention (“prisión provisional) can only be imposed under specific circumstances and for a limited period. It may only be imposed when there is a risk of the defendant fleeing, destroying evidence or obstructing justice, or when there is serious concern that they may commit further offences.
Therefore, under Art. 384 bis, majors can be temporarily suspended when both of the following requirements are fulfilled: (i) they have been charged with terrorism and/or rebellion by an investigating judge, and (ii) they are provisionally imprisoned by judicial decision.
In terms of legal remedies, both the indictment and the provisional imprisonment decisions can be challenged in the same court that issued the decision, as well as in a higher court. Once all legal remedies have been exhausted, an amparo appeal may be lodged with the Constitutional Court, which will hear the case if it is of constitutional relevance and all legal remedies have been exhausted, and if it touches on constitutional rights protected by this kind of appeal.
As for the practice of provisionally suspending mayors in Spain, it is extremely rare and infrequent.
Sweden
Provisions on discharge, termination etc. of the mandate of a kommunalråd are set out in the Local Authorities Act (Kommunallag) (2017:725), hereafter, “the Act”.
The mandate of any elected local politician (including kommunalråd) may be terminated in the following situations:
- Upon re-election/new election,
- At his/her own request, or
- If the person is no longer eligible for election, for example if he/she moves to another municipality.
Under Chapter 4, Section 9 of the Act, the local council may revoke the mandate that the council has given if:
1. The local council has refused to discharge the kommunalråd from financial liability for expenditure during the close of the financial year (this step is only taken in cases of financial impropriety or gross mismanagement of the budget)
2. The person is convicted of a crime for which imprisonment for two years or more is prescribed in the penalty scale.
Under the Local Government Act, Chapter 4, Section 10 a, the council may revoke the mandate of a kommunalråd or anyone sitting on a local government steering committee:
1. When the political majority on the committee is no longer the same as on the council, or
2. In the event of changes in the committee organization (such as removing an entire branch of activity).
Remedies for misuse of office etc. are thus largely at the local level. There is no provision in the Act providing for central government to remove a kommunalråd from office.
Prosecutions of kommunalråd, and other local politicians, for criminal offences do occur. However, prosecutions brought by the Prosecution Authority for misuse of office by kommunalråd are nowadays unusual in Sweden. The more usual method of censoring a kommunalråd is to complain to the Ombudsman. Alternatively, an official decision taken by a local authority, or, within his/her area of competence, a kommunalråd, can usually be subject to judicial review before the administrative courts.
Switzerland
Néanmoins, il y a un élément constant qui ressort avec une grande régularité dans tous les textes légaux que j’ai consultés pour autant qu’elles contiennent des règles y relatifs : lorsqu’il y a une vacance, le remplacement se fait par la voie d’une élection des citoyens tel que c’était le cas pour l’élection originaire. C’est donc toujours le même organe qui est appelé à se prononcer pour l’élection du remplaçant du poste. Dans aucun cas il est prévu que le gouvernement cantonal ou fédéral aurait le pouvoir de combler le poste vacant par une nomination de son gré. Il me semble que c’est la garantie la plus complète que l’on puisse imaginer.
Certains textes prévoient que le poste reste vacant jusqu’aux prochaines élections si le laps de temps en question est relativement bref et que les membres de l’exécutif communal peuvent gérer la situation. Parfois, il y a un changement dans le mode du système électoral. Ceci est le cas lorsque l’élection de maire se fait selon le système proportionnel : le candidat au poste de maire doit donc d’abord avoir été élu en tant que membre du conseil communal comme tous les autres membres selon le système proportionnel; sinon, il ne peut pas postuler comme maire. Si son poste devient vacant, l’élection de replacement ne peut logiquement plus se faire selon le système proportionnel, mais sera fait selon le système majoritaire, puisque c’est son seul poste qui doit être repourvu qui est mis à l’élection.
La Suisse connaît 26 cantons et plus de 2’100 communes. Si les constitutions et lois cantonales concernant les droits politiques contiennent les grands principes sur l’organisation des communes et parfois les règles sur les élections ainsi que sur l’organisation de celles-ci, il revient aux communes de prévoir les détails tels que les conséquences d’une suspension d’un maire. Il ne m’était naturellement pas possible de vérifier tous les textes légaux; j’ai donc procédé par un choix de plusieurs communes en Suisse allemande, romande et italienne. Je peux livrer les détails de la recherche si cela est souhaité.
J’ai fait des recherches dans la presse et j’ai trouvé 2 cas: la première touche la commune de Bissone en 2004 où le maire a été mis en détention provisoire pour toute une série de délits (entre autre extorsion et chantage, calomnie), la deuxième la commune de Berneck en 2015, où le maire a été mis en détention provisoire pour pornographie. Dans les 2 cas, les maires ont tout de suite démissioné de leur poste.
Türkiye
The organization and functions of the administration are based on the principles of centralization and decentralization.”
In this context, there are local administrations whose foundation principles, duties and powers are determined by law, whose decision-making bodies are elected by the people through elections. This is stated in Article 127 of the Constitution titled “Local Administrations” as follows: “Local administrations are public corporate bodies established to meet the common local needs of the inhabitants of provinces, municipal districts and villages, whose principles of constitution and decision-making organs elected by the electorate are determined by law.
The formation, duties and powers of the local administrations shall be regulated by law in accordance with the principle of local administration.
The elections for local administrations shall be held every five years in accordance with the principles set forth in Article 67. Special administrative arrangements may be introduced by law for larger urban centres.
Loss of status and objections regarding the acquisition of the status of elected organs of local administrations shall be decided by judiciary. However, as a provisional measure until the final court judgment, the Minister of Internal Affairs may remove from Office those organs of local administration or their members against whom an investigation or prosecution has been initiated on grounds of offences related to their duties.
The central administration has the power of administrative tutelage over the local administrations in the framework of principles and procedures set forth by law with the objective of ensuring the functioning of local services in conformity with the principle of the integrity of the administration, securing uniform public service, safeguarding the public interest and meeting local needs properly.
The formation of local administrative bodies into a union with the permission of the President of the Republic for the purpose of performing specific public services; and the functions, powers, financial and security arrangements of these unions, and their reciprocal ties and relations with the central administration, shall be regulated by law. These administrative bodies shall be allocated financial resources in proportion to their functions.”
In addition, in accordance with Article 125 of the Constitution titled “Judicial review”; "Recourse to judicial review shall be available against all actions and acts of administration.(...)"
Also, under Article 47 of the Municipality Law No. 5393, “Municipal organs or members thereof in respect of which or whom an investigation or prosecution is initiated on account of an offence connected with their duties may be suspended from office by the Minister of Interior pending the final judgment.
The decision of suspension from office shall be reviewed every two months. If the continuation of suspension from office no longer serves the public interest, it shall be lifted.
The decision on suspension from office shall be lifted in the cases where no prosecution is initiated, or the public case is dismissed or ends in acquittal, or lapses due to general amnesty, or ends in a conviction for an offence which does not require removal from office.
A suspended mayor shall receive two thirds of his/her monthly allowance for the period of suspension from office and continue to enjoy his/her other social rights and benefits."
In accordance with Article 100 of the Criminal Procedure Code No. 5271, if there is concrete evidence showing the existence of strong suspicion of a crime and a reason for arrest, an arrest warrant may be issued by the judicial authorities for the suspect or the defendant. Suspension from duty is a decision that can be made by the Minister of Internal Affairs, in accordance with the constitutional and legal regulations mentioned above, regarding municipal organs or members of these organs against whom an investigation or prosecution has been initiated due to an offence related to their duties, until a final court judgment is made by the judicial authorities.
Pursuant to the relevant legal provisions, the decision of suspension from office shall be reviewed every two months, and if the continuation of suspension from office no longer serves the public interest, it shall be lifted. In addition, the decision on suspension from office shall be lifted in the cases where no prosecution is initiated, or the public case is dismissed or ends in acquittal, or lapses due to general amnesty, or ends in a conviction for an offence which does not require removal from office. Also, a suspended mayor shall receive two thirds of his/her monthly allowance for the period of suspension from office and continue to enjoy his/her other social rights and benefits.
Ukraine
Instead, the Law “On local self-governance in Ukraine” (No. 280/97 as of 21 May 1997), in Article 79 (§ 1), provides that the mayor may be removed from the office early in the following cases:
- if there is the court decision to hold someone accountable for an offense related to corruption, which is punishable by deprivation of the right to hold positions or engage in activities related to the performance of local self-government functions;
- if there is a final conviction;
- if there is the court decision to recognize assets or assets acquired on behalf of other persons as unjustified and their recovery as state revenue.
There are general provisions in Criminal Procedural Code of Ukraine (No. 4651-VI as of 13 April 2012) (CPC) that are relevant to the issue of “removal from the office” (or “suspension”) and these provisions apply to the general circle of officials. In particular, they are the following:
Article 131. Types of measures to ensure criminal proceedings
2. Measures to ensure criminal proceedings are:
<…>
4) removal from office;
Article 154. General provisions on removal from office
1. Removal from office may be carried out in relation to a person who is suspected or accused of committing a crime.
2. Removal from office shall be carried out on the basis of a decision of the investigating judge during the pre-trial investigation or the court during the trial proceedings for a period not exceeding two months. The term of removal from office may be extended in accordance with the requirements of Article 158 of this Code.
Article 155. Motion for removal from office
1. The prosecutor, the investigator in agreement with the prosecutor, has the right to apply to the investigating judge during the pre-trial investigation or to the court during the court proceedings with a motion for the removal of a person from office.
2. The motion shall specify:
1) a brief summary of the circumstances of the criminal offence in connection with which the motion is being filed;
2) the legal classification of the criminal offence, specifying the article (part of the article) of the law of Ukraine on criminal liability;
3) a statement of the circumstances giving grounds to suspect the person of committing a criminal offence, and references to the circumstances;
4) the position held by the person;
5) a statement of the circumstances giving grounds to believe that the suspect or the accused, while in office, contributed to the commission of the criminal offence;
6) a description of the circumstances giving grounds to believe that the suspect or accused, while in office, will destroy or falsify items and documents that are of
significant importance for the pre-trial investigation, will use illegal means to influence witnesses and other participants in the criminal proceedings, or will otherwise unlawfully obstruct the criminal proceedings;
7) a list of witnesses whom the investigator or prosecutor considers necessary to question during the consideration of the motion.
The following shall also be attached to the motion:
1) copies of the materials on which the investigator or prosecutor bases the arguments in the motion;
2) documents confirming that the suspect or accused has been provided with copies of the motion and the materials on which the motion is based.
Article 156. Consideration of a motion for removal from office
1. A motion for removal of a person from office shall be considered by an investigating judge or court no later than three days from the date of its receipt by the court, with the participation of the investigator and/or prosecutor and the suspect or accused person and his or her defence counsel.
2. If the investigating judge or court finds that the motion has been filed without complying with the requirements of Article 155 of this Code, it shall return it to the prosecutor and issue a ruling to that effect.
3. During the consideration of the motion, the investigating judge or court shall have the right, at the request of the parties to the criminal proceedings or on its own initiative, to hear any witness or examine any materials that are relevant to the decision on removal from office.
Article 157. Resolution of the issue of removal from office
1. The investigating judge or court shall refuse to satisfy a motion for removal from office if the investigator or prosecutor fails to prove that there are sufficient grounds to believe that such a measure is necessary to stop a criminal offence, to stop or prevent unlawful behaviour by the suspect or accused, who, while in office, may destroy or falsify items and documents that are relevant to the pre-trial investigation, illegally influence witnesses and other participants in the criminal proceedings, or otherwise unlawfully obstruct the criminal proceedings.
2. When deciding on removal from office, the investigating judge or court shall take into account the following circumstances:
1) the legal basis for removal from office;
2) the sufficiency of evidence indicating that the person has committed a criminal offence;
3) the consequences of removal from office for other persons.
3. Based on the results of the consideration of the motion, the investigating judge or court shall issue a ruling stating:
1) the reasons for granting or denying the motion for removal from office;
2) a list of documents certifying that the person holds the position and which are subject to return to the person or seizure for the duration of the removal from office;
3) the term of removal from office, which may not exceed two months;
4) the procedure for executing the ruling.
4. A copy of the ruling shall be sent to the person who submitted the relevant petition, the suspect or accused, and other interested parties no later than the day following the day of its issuance, and shall be subject to immediate execution in the manner prescribed for the execution of court decisions.
Article 158. Extension of the term of suspension from office and its cancellation
1. The prosecutor, and in relation to the Head of the National Agency for Corruption Prevention, his or her deputy - the Prosecutor General or Deputy Prosecutor General - the head of the Specialised Anti-Corruption Prosecutor’s Office, shall have the right to submit a request for the extension of the term of removal from office, which shall be considered in accordance with the procedure provided for in Article 156 of this Code.
2. The investigating judge or court shall refuse to extend the term of suspension from office if the prosecutor fails to prove that:
1) the circumstances that gave rise to the suspension from office continue to exist;
2) the prosecution was unable to achieve the objectives for which the suspension from office was carried out by other means during the period of validity of the previous ruling.
3. Removal from office may be cancelled by a ruling of the investigating judge during the pre-trial investigation or by the court during the trial proceedings at the request of the prosecutor or the suspect or accused who was removed from office, if there is no longer a need to apply this measure. The consideration of a motion to revoke removal from office shall be carried out in accordance with the rules for considering a motion to apply this measure.
Since the provisions of the CPC are general and apply to everyone, it can be assumed that such a measure to secure criminal proceedings may be applied to a mayor who is suspected or accused of committing a crime as removal from office by decision of an investigating judge during a pre-trial investigation or by decision of the court during court proceedings for a period not exceeding two months, which may be extended.
The Law “On Prevention of Corruption” (No. 1700-VII as of 14 October 2014) contains some provisions that are relevant to the subject. They are the following:
Article 65-1. Responsibility for corruption or corruption-related offences
<…>
5. A person who has been notified of suspicion of committing a criminal offence in the sphere of official activity shall be suspended from performing their duties in accordance with the procedure established by law (comment: this procedure is defined by the provisions of the CPC cited above).
A person against whom a report on an administrative offence related to corruption has been drawn up, unless otherwise provided by the Constitution and laws of Ukraine, may be suspended from performing their official duties by decision of the head of the body, institution, enterprise or organisation where they work, until the case has been considered by the court. [Commentary: if it goes about an administrative offence committed by a person, the suspension from office is carried out not by the court, but by the head of the office].
If proceedings in a case of an administrative offence related to corruption are closed due to the absence of an event or the elements of an administrative offence, the person suspended from performing their official duties shall be compensated for their average earnings for the period of forced absence from work related to such suspension.