The obligation to place the national flag of Latvia on the residential buildings owned by natural persons complies with the Satversme, punishment for not fulfilling this obligation is incompatible with the Satversme
On 2 July 2015 the Constitutional Court passed the judgement in Case No. 2015-01-01 “On the Compliance of the first and the second part of Section 7 of Law on the National Flag of Latvia and Section 20143 of Latvian Administrative Violations Code with Article 100 of the Satversme of the Republic of Latvia.”
The obligation to place the national flag of Latvia on residential buildings strengthens the awareness of statehood. Establishing a sanction to ensure that obligations of civic nature are met is to be recognised as proportional only in exceptional cases.
The Contested Norms
The first and the second part of Section 7 of Law on the National Flag of Latvia provide:
“(1) The national flag of Latvia shall be placed on public buildings, buildings of legal persons governed by private law and associations of persons, as well as on residential buildings, on 1 May, 4 May, 21 August, 11 November and 18 November.
(2) The national flag of Latvia in mourning presentation shall be placed on public buildings, buildings of legal persons governed by private law and associations of persons, as well as on residential buildings, on 25 March, 14 June, 17 June, 4 July and on the first Sunday of December.”
Whereas Section 20143 of the Latvian Administrative Violations Code provides:
“A warning shall be issued for failing to raise the national flag or other state flags on dates and occasions specified by the Saeima, the Cabinet of Ministers, councils of republican cities or regional councils, as well as in the case of violation of the method or procedures for raising the Latvian national flag.
A warning shall be issued or a monetary fine in an amount up to forty euros shall be imposed for the same actions if such are committed repeatedly within a year after an administrative sanction had been imposed.”
The Norm of Higher Legal Force
Article 100 of the Satversme: “Everyone has the right to freedom of expression, which includes the right to freely receive, keep and distribute information and to express his or her views. Censorship is prohibited.”
The Limits of the Claim
The Constitutional Court, in accordance with the limits of the applicant’s claim, examined the compliance of the contested norms with the first sentence in Article 100 of the Satversme. [10]
The Constitutional Court examined the contested norms in interconnection, insofar they impose an obligation upon natural persons to place the national flag of Latvia on the residential buildings that they own on certain dates specified in law and provide for an administrative sanction for failing to perform this obligation. [10.2]
The Facts
The case has been initiated with regard to the constitutional complaint submitted by Solvita Olsena. The submitter of the complaint was imposed an administrative sanction, since she had not raised the national flag of Latvia in mourning presentation on the residential building that she owns on 14 June 2013. The submitter of the complaint notes that she had celebrated a family festivity, but the flag in mourning presentation would have hindered the celebrations.
The submitter of the constitutional complaint holds that the contested norms violate her right to the freedom of speech. The use of flag as a mandatory obligation allegedly does not ensure a person’s right to choose, whether to express his or her views, as well as the way and time for doing so.
The Court Findings and Ruling
On the scope of the right to freedom of speech
The right to freedom of speech established in Article 100 of the Satversme is a right that protects a person, envisaging that the State does not interfere in the field of an individual’s freedom of speech. The Satversme distinguishes between two aspects in the freedom of speech:
- the positive or the right to freely obtain and distribute information and express one’s opinion,
- the negative or the right to retain information, to adhere to one’s opinion and not express it. [11.3]
The Constitutional Court recognised that placing the national flag on a residential building owned by a natural person is one form of the manifestation of the freedom of speech, i.e., the freedom of speech alongside, for example, giving speeches, participation in demonstrations, etc. comprises also other combined manifestations of the freedom of speech, inter alia, the use of symbols. [11.4]
The Court also noted that an individual could express his opinion by demonstrating a certain attitude or by behaviour. The demonstration of attitude may manifest itself also as not expressing one’s opinion. [11.3]
Thus, the placing of the national flag of Latvia or refraining from placing a flag on a residential building owned by a natural person is also one among the manifestations of the freedom of speech. [11.4]
On the restriction upon the freedom of speech
The Constitutional Court recognised that the contested norms restricted the applicant’s freedom of speech [12] and noted that an individual’s rights might be restricted, if the restriction was justifiable, i.e., was necessary for the benefit of public interests[13].
In examining, whether the restriction upon rights is justifiable, the Constitutional Court verified, whether:
- the restriction had been established by law adopted in due procedure;
- the restriction had a legitimate aim;
- the restriction was proportional to its legitimate aim; i.e., whether the restrictive measures applied are appropriate for reaching the legitimate aim, whether the aim could be reached by other measures, less restrictive upon an individual’s rights, and whether the benefit that the society gained from this restriction exceeded the damage caused to an individual. [13, 16]
The restriction has been established by law
The Constitutional Court recognised that the restriction upon rights had been established by law, since the case contained no dispute on whether the contested norms had been established by law adopted in due procedure, had been promulgated, were accessible and were clearly worded. [14]
On the legitimate aim of the restriction
The Constitutional Court noted that placing the national flag of Latvia on residential buildings promoted the protection of a democratic sate order. [15.1] The Constitutional Court paid special attention to the fact that the national flag of Latvia was a symbol of the state, enshrined in the Satversme, i.e., Article 4 of the Satversme belongs to the totality of those articles of the Satversme that form the constitutionally legal foundations of the State of Latvia. [15.2]
The national flag as the symbol of the state is of great importance in creating and consolidating the awareness of statehood. The obligation to place the national flag of Latvia on residential buildings consolidates the awareness of statehood and, thus, also – the democratic Republic of Latvia. [15.2]
Thus, the Constitutional Court recognised that the restriction had a legitimate aim– protection of Latvia’s democratic state order. [15.2]
On the proportionality of the restriction
The Constitutional Court recognised: the placement of the flag on residential buildings ensured not only that the residents of the particular building participated in the commemoration of historic events, but also that in this way a large part of society was informed, reminding of historic events significant for the state of Latvia. Thus, the Constitutional Court concluded that the restriction upon the freedom of speech established in the contested norms was appropriate for reaching the legitimate aim. [16.1]
The Constitutional Court concluded that there were no more lenient measures for reaching the legitimate aim as effectively. Even though the participants of the case pointed to other measures, for example, the possibility to organise educational and informative events, the Constitutional Court recognised that the visual demonstration of the national symbols qualitatively differed from other measures, in particular, the numerical size of the audience that could be reached immediately and simultaneously, therefore these measures could not be recognised as being substitutable as to their quality and were not equally effective. [16.2]
In assessing, whether the adverse consequences that an individual experiences as the result of restriction upon fundamental rights exceed the benefit that the society gains from this restriction, the Constitutional Court noted that the civic duty to place the national flag of Latvia on residential buildings gives significant benefit to the whole of society. The Constitutional Court noted that the benefit to society from this obligation in a state, where the need for measures to consolidate awareness of statehood was still recognised, exceeded the damage inflicted upon an individual’s rights. [16.4]
Thus, the Constitutional Court recognised that the obligation to place the national flag of Latvia on the residential buildings owned by natural person was proportional. [16.4]
However, the Constitutional Court drew attention to the fact that a sanction for not placing the flag on buildings owned by natural persons changed the legal nature of the restriction upon fundamental rights.
Well-founded possibility exists that the national flag is placed only because of the sanction that has been established, not in remembrance of historical events that are important for the state of Latvia. [16.5]
The Constitutional Court noted that the awareness of statehood should be developed in compliance with principles of a democratic state. Establishment of a sanction to ensure that obligations of civic nature are met should be recognised as being proportional only in exceptional cases. [16.6]
If the legislator establishes an administrative punishment linked to a restriction upon the freedom of speech in its negative aspect (refraining from expressing one’s opinion), then such actions should be sufficiently substantiated. The Constitutional Court noted that the case materials did not form certainty that the Saeima had provided sufficient substantiation regarding the necessity for such exception in a democratic society at present. The Constitutional Court noted that envisaging a sanction for not expressing one’s opinion was inadmissible in a democratic society. [16.8]
Thus, the Constitutional Court recognised that the restriction included in the norm of Latvian Administrative Violations Code, insofar it provided for a sanction for not placing the national flag of Latvia on residential buildings owned by natural persons was not proportional and was incompatible with Article 100 of the Satversme.
The Constitutional Court recognised the first and the second part of Section 7 of Law on the National Flag of Latvia as being compatible with Article 100 of the Satversme.
The Constitutional Court recognised Section 20143 of Latvian Administrative Violations Code, insofar it envisaged punishment for not placing the national flag of Latvia on buildings owned by natural persons as being incompatible with Article 100 of the Satversme.
The judgement by the Constitutional Court is final and not subject to appeal, it shall enter into force on the day it is officially published.
Linked case: 2015-01-01