Legitimacy to request reinstatement against sentences without citation of the municipal attorney general.
The Organic Law of Municipal Public Power (LOPPM, 2010) has provided for an auxiliary body called the Municipal Union (not a union as in labor matters) to which it is attributed at the local level, the defense of the rights and interests of the Municipality, existing one for each municipality; municipal councils usually approve ordinances that regulate the organization of this agency. It is chaired by an official called the Municipal Attorney General.
The ruling issued by the Political-Administrative Chamber No. 0079 of the Highest Court dated January 21, 2009 should not be forgotten, where it interprets aspects related to the location within the municipal organization, its personnel regime, among others.
In the same way, the LOPPM establishes the special citation norms of the municipal entity in the head of the Procurator Trustee, under pain of absolute nullity of all the actions and cause of reinstatement to the state of fully complying with such regulations.
In the same conditions, it must be handled when notifications of any final or interlocutory sentence have to be made; The requirement is also made that must be notified to the Mayor or other officials of the Entity, such as the President of the Municipal Council or the Municipal Comptroller, according to their cases, having to clearly differentiate what it implies to impose on the Procurator Trustee, which is binding and obligatory as judicial representative of the Municipality, while the rest is merely informative.
It is worth reading the Sentence of the Political-Administrative Chamber No. 01404 dated November 5, 2008 (Case: Municipality of Chacao)
In fact, it is disputed whether they are only applicable to contentious-administrative matters. The jurisprudence has been outlining criteria that shape the legal task, both in an active and passive sense.
It should be understood that the existence of privileges and prerogatives is a limitation to the general principle of equality before the law and that of effective judicial protection, as conceived by the ruling mentioned in the preceding paragraphs. That is why they have not been made extensive, as established in a decision of the Political-Administrative Chamber No. 00768 of May 22, 2007 (Case: Iribarren Municipality of Lara State)
Regarding those of a procedural nature, the Municipality enjoys those referred to the summons when it is sued; Here we must make a note since the jurisprudence has been outlining that, in those trials where there is no answer to the claim, as in administrative litigation, for example, it does not apply. In fact, the Second Administrative Court in a ruling dated 02-28-2008 (Case: Pinto Salinas Municipality of the State of Mérida), in an appeal on a civil servant complaint, ruled that it was not applicable, even ordering the publication of said ruling on the main billboard of the Collegiate Court and on the website.
Now, it could happen that a judicial case is initiated in which the call of the Municipal Attorney General has not been made - in the cases in which it is appropriate as indicated - or it was not carried out correctly, continuing the process, therefore that incidents or formal final sentences would be given, depending on the status of the trial.
The jurisprudence - especially that of the Highest Court - has indicated that there is a defect that cannot be validated or corrected, that is, of procedural public order, for which the damage caused by the violation must be repaired.
In this sense, it has been taken as a similar event when it happens to the Attorney General of the Republic, who is his peer at the national level, so that the one legitimized for the exercise of reinstatement and nullity is the Municipal Attorney General.
It should be remembered that for the appointment of proxies of the municipal entity, it must have the intervention of the Municipal Attorney General, in accordance with the provisions of the LOPPM.
