The order by the Minister for Environment Protection and Regional Development, suspending the regulation on the opinion poll of the inhabitants of Ikšķile Region, is incompatible with the Satversme
On 15 May 2020, the Constitutional Court delivered the judgement in case No. 2019-17-05 “On Compliance of the Order by the Minister for Environment Protection and Regional Development of 25 April 2019 No. 1‑2/59 “On Suspending the Regulation on the Opinion Poll of the Inhabitants of Ikšķile Region “Vote of Ikšķile Region”” with Article 1 and Article 101 of the Satversme of the Republic of Latvia and Article 5 of the European Charter of Local Self Government”.
The Contested Order
By the order of the Minister for Environment Protection and Regional Development (hereafter – the Minister) of 25 April 2019 No. 1‑2/59 “On Suspending the Regulation on the Opinion Poll of the Inhabitants of Ikšķile Region “Vote of Ikšķile Region”” (hereafter – the contested order), the Regulation on the Opinion Poll of the Inhabitants of Ikšķile Region “Vote of Ikšķile Region”, issued by the Ikšķile Regional Council on 15 April 2019 (hereafter – Regulation on the Opinion Poll), was suspended.
Article 1 of the Satversme: “Latvia is an independent democratic republic.”
Article 101of the Satversme: “Every citizen of Latvia has the right, as provided for by law, to participate in the work of the State and of local government, and to hold a position in the civil service.
Local governments shall be elected by Latvian citizens and citizens of the European Union who permanently reside in Latvia. Every citizen of the European Union who permanently resides in Latvia has the right, as provided by law, to participate in the work of local governments. The working language of local governments is the Latvian language.”
Article 5 of the European Charter of Local Self Government (hereinafter – the Charter):
“Protection of local authority boundaries”: “Changes in local authority boundaries shall not be made without prior consultation of the local communities concerned, possibly by means of a referendum where this is permitted by statute.”
The Facts
The case was initiated with respect to an application by the Ikšķile Regional Council (hereafter also – the Applicant). In the framework of the initiated administrative territorial reform, it was planned to merge the administrative territory of Ikšķile Region with other regions. The Applicant issued Regulation on the Opinion Poll to organise an opinion poll of inhabitants of Ikšķile Region regarding this region as an independent administrative territory. By the contested order, the Minister suspended the Regulation. The Ikšķile Regional Council turned to the Constitutional Court, noting that the contested order prohibited it from clarifying the inhabitants’ opinion, therefore it was said to be incompatible with Article 1 and Article 101 of the Satversme as well as Article 5 of the Charter.
The Court’s Findings
On the scope of the legal norms of higher legal force
The Constitutional Court found that Article 1 and Article 101 of the Satversme and Article 5 of the Charter comprised, inter alia, the right of the local government to hear the opinion of the inhabitants of the respective administrative territory regarding changes to the boundaries of the local government’s administrative territory. [13.3.]
On the legal nature of Regulation on the Opinion Poll
Regulation on the Opinion Poll is an internal normative act, issued by the local government, which the Minister, substantiating the unlawfulness of this act, had the right to suspend in accordance with Section 49 (1) of the law “On Local Governments”. [15.3.]
On the local government’s autonomous competence and clarifying the inhabitants’ opinion
The local government enjoys discretion in exercising its autonomous competence, taking into account the framework established in the Satversme and other external regulatory enactments and the lawful interests of inhabitants of the respective administrative territory. Since a local government has been established to provide for the interests of inhabitants, hearing the opinion of inhabitants is an element in the local government’s daily work, which it can use in various issues falling within its competence. [16.1.]
In the framework of a local government’s autonomous competence, the opinion of the inhabitants of the respective administrative territory can be clarified not only in the cases of public discussions envisaged in law but also in other procedures, for example, by organising various opinion polls, interviews, expression of opinions in free format. Inhabitants’ opinion obtained in this way does not cause legal consequences for the local government and other state institutions in the decision making process. Moreover, the local government, in clarifying the opinion of its inhabitants, always must act in accordance with the Satversme and must comply with the provisions of normative acts. [16.2.]
The administrative territorial reform, in the framework of which changes to the boundaries of the current administrative territories are planned, is directly linked to the rights and lawful interests of the inhabitants of the respective administrative territories and fulfilment of a local government’s autonomous functions. Hence, a local government has the right to clarify the opinion of its inhabitants to submit it timely to state institutions. Moreover, a local government may do it at any stage of the administrative territorial reform, inter alia, also in the beginning of the reform, immediately upon the receipt of information that the reform could affect the administrative territory of this local government. [16.3.]
The Constitutional Court found that the clarifying the opinion of the inhabitants of Ikšķile Region regarding this region as an independent administrative territory fell with the local government’s competence. [16.3.]
On whether the opinion poll of the inhabitants of Ikšķile Region could be deemed to be a referendum
The Constitutional Court recognised that the terminology used in Regulation on the Opinion Poll was rather characteristic of elections or a referendum. However, it is not indicated in any of the decisions by the Ikšķile Regional Council or Regulation on the Opinion Poll, or in information provided by the local government that the outcomes of the poll could be binding upon the local government or other state institutions, which adopt decisions with respect to the administrative territorial reform. The Applicant has consistently noted that the opinion poll was held only to clarify the inhabitants’ opinion on Ikšķile Region as an independent administrative territory. Hence, the terminology per se does not turn the opinion poll of inhabitants of Ikšķile Region into a referendum and, thus, does not make it unlawful. [17.]
Since clarification of the opinion of inhabitants of the respective administrative territory falls within the local government’s competence, in the particular situation, the terms used in Regulation on the Opinion Poll and the regulated procedure for organising the opinion fall are not the grounds for recognising Regulation on the Opinion Poll as being unlawful. The Constitutional Court found that the Ikšķile Regional Council had acted within the framework of its competence, in establishing the procedure for organising the opinion poll, regulated in Regulation on the Opinion Poll. [17.]
On the incompatibility of the Minister’s actions and the contested order with Article 1 of the Satversme
If the Minister saw the need to improve Regulation on the Opinion Poll, he had the possibility to use other control measures, less restrictive on the local government, envisaged in the law “On Local Governments”. [18.]
The Constitutional Court underscored that the relationship between the government and the local governments should be developed in the form of a dialogue, abiding by the principle of good faith and mutual respect to ensure effective public governance and use of resources. [18.]
The Minister did not have the right to suspend Regulation on the Opinion Poll, insofar it applied to organising an opinion poll of the inhabitants of Ikšķile Region. Hence, the contested order is incompatible with the rule of law principle included in Article 1 of the Satversme. [18.]
On the Ikšķile Regional Council’s actions
The Constitutional Court has repeatedly underscored that, in a democratic state governed by the rule of law, public administration should perform its functions honestly, effectively and fairly, its actions must respect the law and rights. Moreover, in a democratic state governed by the rule of law, in mutual relationships between state institutions, the principle of good faith and the principle of inter-institutional loyalty must be complied with. [20.]
The Constitutional Court drew the Applicant’s attention to the fact that it, by organising the opinion poll of the inhabitants of Ikšķile Region in accordance with Regulation on the Opinion Poll, which had been suspended by the Minister, had acted contrary to the order established in a democratic state governed by the law and had not abided by Section 49 (3) of the law “On Local Governments”. [20.]
The Constitutional Court held:
to recognise the Order by the Minister for Environment Protection and Regional Development of 25 April 2019 No. 1‑2/59 “On Suspending the Regulation on the Opinion Poll of the Inhabitants of Ikšķile Region “Vote of Ikšķile Region”” as being incompatible with Article 1 of the Satversme of the Republic of Latvia.
The judgment by the Constitutional Court is final and not subject to appeal, it enters into force on the date it is published. The text of the judgement in Latvian is available on the homepage of the Constitutional Court: https://www.satv.tiesa.gov.lv/web/viewer.html?file=/wp-content/uploads/2019/08/2019-17-05_Spriedums.pdf#search=
Open in PDF: 2019-17-05_PR_par spriedumu_ENG
Linked case: 2019-17-05