Origin or not if municipal autonomous institutes enjoy the same prerogatives as nationals
When action has been taken against the State, it must be taken into account that it enjoys privileges and prerogatives before the State; they are born on the occasion of the interests that it manages in all its aspects.
This has been the subject of discussion by the doctrine regarding its granting for territorial legal persons, since there is the opinion that constitutional rights and principles are distorted, citing equality before the law, for example. The opposite current indicates that the public task demands its assignment for the sake of the protected interest.
Without the intention of taking sides between one side or the other, since what is sought is to initiate cycles of study and reflection, the truth is that they are present in the Venezuelan legal system and their validity dates back many years.
The jurisprudence has been outlining various aspects related to this issue.
Autonomous institutes - following Juan Garrido Rovira in his work "Topics on decentralized administration in Venezuela", Administrative Studies Collection No. 3, Editorial Jurídica Venezolana, Caracas, 1984 - can be conceptualized as state public entities created by law (ordinance in the in the case of municipalities) with autonomous legal personality and their own patrimony, different and independent from the Treasury, which are in charge, within a regime of specific rules and procedures of Public Law, to carry out the administrative activity necessary to achieve certain purposes state.
The Organic Law of Public Administration (LOAP, 2008) has established them within the entities, which are nothing more than any functionally decentralized administrative organization with its own legal personality, subject to the control, evaluation and monitoring of its actions by its bodies rectors of assignment and the Central Planning Commission.
It is important to note that the Central Planning Commission is national in nature and is governed by a law that creates it called Decree with the rank, value and force of the Organic Law of Creation of the Central Planning Commission (2011).
For its part, the Organic Law of Municipal Public Power (LOPPM, 2010), indicates that they will be created by ordinance approved by the municipal council, which must set competences; guardianship control; among others, taking into account the general principles established by the LOAP and the Organic Law of the Financial Administration of the Public Sector. They are part of the so-called management means, which is nothing other than the possibility of actively exercising the matters within their competence, which is linked to their autonomy.
Regarding the procedural prerogatives, the municipality - in accordance with the provisions of the LOPPM - can avail itself of the Non-Confession Ficta, Non-seizure of assets, Non-Indexability in official matters, Administrative Contracts, Summons and Special Notification, Substitution of the mandate with authorization Prior, express and in writing, Need for prior, express and written authorization to agree, compromise, compromise, and desist. Free actions before public entities, Notification to the Municipal Attorney General of any sentence, measure, claim that indirectly affects the property interests of the municipality,Special Norms for the Execution of Sentences when it turns out to be losing, the judicial authority having to apply them keeping the due proportions since we must not forget that the local power handles other people's interests. It is due to the community it serves.
A frequent scenario is when the public entity loses, raising doubts as to whether the plaintiff will be able to compensate his costs during the trial.
For example, the Republic enjoys the so-called mandatory consultation; Its purpose is to submit to the study and review by the higher instance, in cases in which judicial remedies against the sentence were not exercised in a timely manner. In this regard, I suggest reading the Organic Law of the Attorney General's Office (LOPGR, 2008).
Regarding constitutional protection, mandatory consultation of sentences was foreseen, but the Constitutional Chamber of the Highest Court modified this situation.
This implies that execution cannot be blocked until it is resolved by the appeal body.
Whether or not it is applicable to municipalities is discussed.
The Organic Law of Municipal Public Power (LOPPM, 2010) does not include it within the range of prerogatives, finding decisions that deny it.
When the municipality attends to a judicial controversy, the rules of the LOPPM in matters of summons must be followed, since it must be practiced in the head of the Municipal Procurator Trustee, as well as notify the executive, legislative or comptroller authority, as appropriate; It has been discussed whether the local level can have the same privileges and prerogatives enjoyed by the states and the national level. The jurisprudence has relied on a restrictive interpretation, given the fact that they constitute an exception to the principle of equality and others typical of Administrative Law.
Regarding the obligatory nature of the appeal to the Municipal Procurator Trustee in cases of actions against local autonomous institutes, it has been outlined that - due to its autonomous nature - there would be no need; however, the case law has outlined the complete opposite.
It should be noted that the municipal autonomous institutes receive budgetary allocations from the assignment body, which implies a patrimonial interest of the municipality in the results of the trial. Precisely, because there is a controversy of a patrimonial type, the Municipal Procurator Trustee must intervene, since he is in charge of knowing the patrimonial content matters of the entity.
The cost penalty is another procedural type, because for individuals a situation of this type could originate large sums due to a maximum of thirty percent of the value of the disputed. In this regard, the Civil Cassation Chamber of the Highest Court has already outlined the scope of what is discussed here. While, for the Municipality, the norm contained by the LOPPM establishes a maximum of ten percent on the value of the claim, after declaring it in the judgment of full expiration.
It should be noted that it has a mandatory or ex officio delay, in accordance with the Law of Lawyers (1967). As a reference, it is suggested to consult a sentence of the Constitutional Chamber of the Supreme Court of Justice, dated 02/18/2004, where it was a question of an interpretation resource on articles 21 and 26 of the Basic Text; guidelines were issued there when facing a procedural subject, such as the Republic, where there is no conviction.
The remaining regulatory framework on this issue is found - without indicating order of priority or ranking - in the LOPPM, Organic Law of National Public Finance (2009), Organic Law of Financial Administration of the public sector (2011), Organic Law of Contentious-Administrative Jurisdiction (2010), Organic Law of the Supreme Court of Justice (2010), Organic Tax Code (2001), Code of Civil Procedure (1990), Organic Law of Labor Procedure (2002).
