The joining of the Varakļāni Region to the Rēzekne Region is incompatible with the Satversme but the inclusion of the rural municipality of Inčukalns into the Sigulda Region and the inclusion of the rural municipality of Garkalne and the town of Vangaži into the Ropaži Region comply with the Satversme
On 28 May 2021, the Constitutional Court delivered the judgement in case No. 2020-43-0106 “On Compliance of Sub-para 31.15., 31.29., 31.30., 32.1., 32.4. and 36.2. of “Annex to the Law on Administrative Territories and Populated Areas “Administrative Territories, Administrative Centres thereof and the Units of Territorial Division”” with Article 1 and Article 101 of the Satversme of the Republic of Latvia and the Third and the Sixth Part of Article 4, s as well as Article 5 of the European Charter of Local Self-Government”.
Contested norms
- Sub-para 31.15., 31.29. and 31.30. of “Annex to the Law on Administrative Territories and Populated Areas “Administrative Territories, Administrative Centres thereof and the Units of Territorial Division”” (hereafter – the Law on Administrative Territories” provide that the rural municipality of Murmastiene, the rural municipality of Varakļāni and the town of Varakļāni are part of the Rēzekne Region. Sub-para 32.1. of the Law on Administrative Territories provides that the rural municipality of Garkalne is part of the Ropaži Region. Whereas in compliance with Sub-para 4. and 36.2. of this annex, the town of Vangaži is part of the Ropaži Region and the rural municipality of Inčukalns – in the Sigulda Region.
Norms of Higher Legal Force
- Article 1 of the Satversme of the Republic of Latvia (hereafter – the Satversme):
“Latvia is an independent democratic republic.”
- Article 101 of 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.”
- The third part of Article 4 of the European Charter of Local Self-Government (hereafter – the Charter) “Scope of Local Self-Government”:
“Public responsibilities shall generally be exercised, in preference, by those authorities which are closest to the citizen. Allocation of responsibility to another authority should weigh up the extent and nature of the task and requirements of efficiency and economy.”
- The sixth part of Article 4 of the Charter “Scope of Local Self-Government”:
“Local authorities shall be consulted, insofar as possible, in due time and in an appropriate way in the planning and decision-making processes for all matters which concern them directly.”
- Article 5 of 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
Three cases, initiated on the basis of applications by the Varakļāni Regional Council, the Garkalne Regional Council and the Inčukalns Regional Council, are joined in the case. On 10 June 2020, the Saeima adopted the Law on Administrative Territories. Its Annex defines administrative territories, their administrative centres and the units of territorial division. Pursuant to Sub-para 31.15., 31.29. and 31.30. of this Annex, the rural municipality of Murmastiena, the rural municipality of Varakļāni and the town of Varakļāni are part of the Rēzekne Region. Sub-para 32.1. of the Law on Administrative Territories provides that the rural municipality of Garkalne is part of the Ropaži Region. In compliance with Sub-para 32.4. and 36.2. of this Annex, in turn, the town of Vangaži is part of the Ropaži Region and the rural municipality of Inčukalns – of the Sigulda Region (hereinafter jointly – the contested norms).
The Varakļāni Regional Council holds that the contested norms infringe upon its rights because these norms join rural municipality of Murmastiene, the rural municipality of Varakļāni and the town of Varakļāni to the Rēzekne Region without duly assessing the possibility of including these rural municipalities and the town in the Madona Region or retain as an independent local government. Allegedly, the Saeima, in adopting the contested norms, has acted contrary to the aims of the reform and the criteria it is based on, as well as violated the principle of good governance and the principle of local self-government. Likewise, the subsidiarity principle had not been complied with in the drafting of these norms, and due consultations with the inhabitants of the region and its Council had not been conducted. The Applicant is of the opinion that the contested norms are incompatible with Article 1 and Article 101 of the Satversme, the third and the sixth part of Article 4, as well as Article 5 of the Charter.
The Garkalne Regional Council holds that the present administrative territory of the region is being joined to the newly established Ropaži Region as the rural municipality of Garkalne, without duly assessing the possibility of retaining the Garkalne Region as an independent region or joining it to the Ādaži Region or the Inčukalns Region. The Garkalne Regional Council is of the opinion that the contested norm violates the principle of local self-government, the principle of separation of powers and the principle of good legislation that follow from Article 1 and Article 101 of the Satversme. Likewise, in the course of drafting the contested norm, consultations, envisaged in the sixth part of Article 4 and Article 5 of the Charter, with the Garkalne regional self-government on changing the boundaries of administrative territory had not been held.
The Inčukalns Regional Council is of the opinion that the Saeima, by adopting the contested norms and dividing the administrative territory of the local government of the Inčukalns Region, as the result of which the town of Vangaži is included in the Ropaži Region and the rural municipality of Inčukalns into the Sigulda Region, has violated the principle of good legislation and the principle of local self-government. Likewise, in the course of drafting the contested norms, due consultations with the local government of the Inčukalns Region had not been held. The Council is of the opinion that the contested norms are incompatible with Article 1 and the first sentence in the second part of Article 101 of the Satversme, as well as the sixth part of Article 4 and Article 5 of the Charter.
The Court’s Findings
On the subsidiarity principle
The Constitutional Court found that the legal norms contested in the present case did not envisage re-allocation of functions between the local self-government and the central power and, thus, did not affect the subsidiarity principle. Hence, the Constitutional Court terminated legal proceedings in the part regarding the compliance of the contested norms with the third part of Article 4 of the Charter, which included the subsidiarity principle. [6.]
On the methodology for reviewing the constitutionality of the contested norms
To assess the compatibility of the contested norms, the Constitutional Court had to establish whether the contested norms had been drafted and adopted in due procedure, reviewing the compliance of these norms with Article 1 and Article 101 of the Satversme , as well as with the sixth part of Article 4 and Article 5 of the Charter in their conjunction. In assessing the compliance of these norms with Article 1 and Article 101 of the Satversme, the Constitutional Court also had to clarify whether the legislator had not acted arbitrarily. [7.]
On whether the contested norms have been drafted and adopted in due procedure
In assessing the procedure for drafting and adopting the contested norms, the Constitutional Court had to verify, firstly, whether, during the drafting and examination of these norms, consultations with the respective local governments were held in compliance with legal norms and, secondly, whether the Saeima examined and adopted the contested norms in compliance with legal norms. [8.]
On whether, during the drafting and adoption of the contested norms, the respective local governments were consulted with in compliance with legal norms
To assess whether, during the drafting and reviewing of the contested norms, the respective local governments were consulted with in accordance with legal norms, the Constitutional Court ascertained: 1) whether the local government Councils had the possibility, also by finding out the opinion of the inhabitants residing in the respective administrative territory, to prepare its opinion and submit their proposals and objections with respect to the planned reform to the public authorities; 2) whether the time allocated for it was reasonable; 3) whether the local governments’ proposals and objections were examined. [8.]
The Constitutional Court concluded that the inhabitants and Councils of the Varakļāni Region, the Garkalne Regions and the Inčukalns Region had the possibility to prepare, within a reasonable term, their opinion on the planned solution to the administrative territorial division and to submit proposals and objections to the public authorities. During the process of consultations, the proposals and objections made by the local governments of the Varakļāni Region, the Garkalne Region and the Inčukalns Region were examined. Hence, the contested norms were recognised as being compatible with the sixth part of Article 4 and Article 7 of the Charter [9.–12.]
On whether the Saeima examined and adopted the contested norms in compliance with legal norms
By referring to the findings included in the Constitutional Court’s judgement of 12 March 2021 in case No. 2020‑37‑0106 (hereafter – judgement in case No. 2020‑37‑0106), the Constitutional Court concluded that the Saeima had examined and adopted the contested norms in compliance with legal norms. [12.]
On whether the legislator acted arbitrarily
The Constitutional Court concluded already in the judgement in case No. 2020-37-0106 that the purpose of the territorial reform was defined as the common public good. It envisages establishing by 2021 administrative territories with potential for economic development and with local governments, which are able to ensure performance their autonomous functions, defined in laws, in comparable quality and accessibility, providing qualitative services to inhabitants for reasonable costs. The Constitutional Court also recognised in the aforementioned judgement that the criteria, on which the administrative territorial reform was based, were aimed at reaching the purpose set for the reform. Hence, in the present case, the Constitutional Court did not re-examine the matters related to the purpose of the reform and the criteria on which it was based. [13.]
To provide the final assessment on the compliance of the contested norms with Article 1 and Article 101 of the Satversme and, thus, conclude whether the legislator had not acted arbitrarily, the Constitutional Court had to establish: 1) whether, in adopting the contested norms, the legislator had abided by the purpose set for the reform and the criteria for attaining it; 2) whether the legislator had considered the interests of the local community, i.e., the advantages and disadvantages of the particular solution to the administrative territorial division, inter alia, whether the legislator, in adopting the contested norms, had respected the local community’s right to democratic participation. [13.]
On whether, in adopting the contested norms, the legislator had abided by the purpose set for the reform and the criteria for attaining it
On the norms contested by the Varakļāni Regional Council
The Constitutional Court, first of all, concluded that the legislator had not abided by the purpose and criteria of the reform because it included the Varakļāni Region in the newly established Rēzekne Region, which lacks a centre of development of regional or national importance, defined in the national development planning documents. The Transitional Provisions of the Law on Administrative Territories envisage the duty to cooperate for the Rēzekne Region and the State city of Rēzekne only in some areas. Moreover, for the local government of the State cities it can create certain advantages. The legislator has not justified reasonably that such duty to cooperate would create such changes in the existing cooperation between local governments that would allow concluding that the deficiencies, prior identified in the administrative territorial division, would be eliminated, strong local governments with the capacity for development would be created and the local governments would become capable of performing independently the functions assigned to them. [14.1., 14.3.]
Secondly, the Court established that the decision to include this region into the newly established Rēzekne Region, substantially, was adopted only during the third reading of the draft law at the Saeima’s sitting. This decision was based on the deputies’ conviction that this territory, looking at it from the cultural historical perspective, belonged to Latgale. The Court underscored that the administrative territorial reform should not be based only on socioeconomic considerations, it could be implemented by taking into account also the geographical and cultural historical aspects of local governments. However, it is important to define such considerations as clear criteria, which are equally applied to all local governments. In the particular case, the legislator had provided that the administrative territorial reform was not to be subject to the requirement to preserve cultural historical environment and belonging to the historical Latvian lands because the affiliation of towns and rural municipalities with the historical Latvian lands would be regulated by a special law. This approach was, indeed, consistently applied in drafting the law, dismissing proposals based on cultural historical considerations, for example, to establish the Alsunga Region and the Sēlija Region. Thus, by justifying the inclusion of the Varakļāni Region into the Rēzekne Region by considerations regarding its cultural historical affiliation with Latgale, the legislator had used as justification such considerations that could not be recognised as the criteria for implementing the reform and had not made this approach equally applicable to all newly established regions. Hence, the Constitutional Court concluded that the legislator, in adopting Sub-para 31.15., 31.29. and 31.30. of the Annex to the Law on Administrative Territories had acted arbitrarily. [14.2., 14.3.]
In addition, the Constitutional Court pointed out that the sense of belonging and common identity of the local government residents could be important in the implementation of the reform. When deciding on joining a local government to another local government, its special circumstances should be taken into account, including the fact that the residents of the local government feel that they belong to a particular region. Thus, if, taking into account the purpose of the reform and the criteria it is based on, it is possible to join a local government to several regions, it is possible to establish, in addition, to which of these regions residents of the local government wish to be joined. Outcomes of the survey conducted among the residents of the Varakļāni Region proved that the residents of the region supported joining of its territory to the newly established Madona Region. Hence, the joining of this region to the newly established Rēzekne Region cannot be justified by the sense of belonging and common identity of the residents of the Varakļāni Region. [14.3.]
On the norm contested by the Garkalne Region
The Constitutional Court concluded that the decision on including the Garkalne Region into the Ropaži Region or Ādaži Region, if in both cases the criteria that the reform was based on were met and in the absence of an opinion among considerable part of residents on the one or the other solution to the administrative territorial division, depended on a political choice, which the Constitutional Court did not review. Whereas retaining the Garkalne Region as a separate administrative territory would not comply with the general aims set for the reform and the criteria defined for establishing regions, inter alia, that there were no less than 15 000 permanent residents in the Pierīga Region. Hence, the Constitutional Court concluded that the legislator, in deciding on including the current Garkalne Region into the newly established Ropaži Region, had abided by the purpose and criteria of the reform. [15.]
On the norms contested by the Inčukalns Region
The Constitutional Court concluded that the decision on reforming the Inčukalns Region, by including the rural municipality Inčukalns into the Sigulda Region and the town of Vangaži – into the Ropaži Region, complied with the aims of the reform and the criteria it was based on. To justify dividing the Inčukalns Region, by including the rural municipality of Inčukalns into the Sigulda Region and the town of Vangaži into the Ropaži Region, the different courses of historical development of these territorial units were pointed out, as well as the structure of inhabitants and their employment; likewise, the push-pull migration of the town of Vangaži towards Rīga and the submitted proposals were taken into account. Retaining of the Inčukalns Region as a separate administrative territory would not comply with the general aims set for the reform and the criteria for establishing regions. Namely, the Inčukalns Region lacks a development centre of regional or national importance, whereas, as a potential Pierīga Region, it does not border directly with Rīga, its population does not comply with the criteria set, and also forecasts do not point to sufficient increase in the number of inhabitants in the next few years. Thus, the Constitutional Court concluded that the legislator, in deciding on including the rural municipality of Inčukalns into the Sigulda Region and the town of Vangaži into the Ropaži Region, had abided by the aim and the criteria set for the reform. [16.]
On whether the legislator has considered the interests of the local community, i.e., the advantages and disadvantages of the particular solution to the administrative territorial division, inter alia, on whether, in adopting the respective norms, the legislator has respected the local community’s right to democratic participation
The Constitutional Court noted that active participation of local residents in local self-government was important in a democratic state governed by the rule of law. A reform may not be based only on economic considerations and financial gains. The Constitutional Court had to assess whether the legislator, in implementing the reform regarding the inclusion of the Garkalne regional local government into the Ropaži Region and reforming the Inčukalns Region, including the rural municipality of Inčukalns into the Sigulda Region and the town of Vangaži into the Ropaži Region, had considered the interests of the local community and the advantages and disadvantages of the particular solution to the administrative territorial division and had respected the local residents’ right to democratic participation. [17.]
The Constitutional Court concluded that, in adopting Sub-para 32.1., 32.4. and 36.2. of the Annex to the Law on Administrative Territories, the legislator had not acted arbitrarily. At this point, when the reform has not been completed yet, with respect to the local communities of the Garkalne Region and the Inčukalns Region, the Constitutional Court has not grounds to conclude that the legislator had acted arbitrarily and, in the process of developing the reform, had not considered the interests of these communities. [17.2.]
On the date, as of which the norms contested by the Varakļāni Regional Council are to be recognised as being void
The Varakļāni Regional Council has requested recognising the contested norms as being void as of the moment of their adoption. On the date on which this judgement enters into force the legal consequences, envisaged in these norms, have not set in yet. Therefore the Constitutional Court concluded: it is not necessary to recognise the norms contested by the Varakļāni Regional Council as being void from the date on which they were adopted. [18.]
The Constitutional Court held:
- To terminate legal proceedings in the case in the part with regard to the compliance of Sub-para 15., 31.29. and 31.30. “Annex to the Law on Administrative Territories and Populated Areas “Administrative Territories, Administrative Centres thereof and the Units of Territorial Division”” with the third part of Article 4 of the European Charter of Local Self-Government.
- To recognise Sub-para 15., 31.29. and 31.30. of “Annex to the Law on Administrative Territories and Populated Areas “Administrative Territories, Administrative Centres thereof and the Units of Territorial Division”” as being compatible with the sixth part of Article 4 and Article 5 of the European Charter of Local Self-Government.
- To recognise Sub-para 15., 31.29. and 31.30. of “Annex to the Law on Administrative Territories and Populated Areas “Administrative Territories, Administrative Centres thereof and the Units of Territorial Division”” as being incompatible with Article 1 and Article 101 of the Satversme of the Republic of Latvia.
- To recognise Sub-para 1., 32.4. and 36.2. of “Annex to the Law on Administrative Territories and Populated Areas “Administrative Territories, Administrative Centres thereof and the Units of Territorial Division””as being compatible with Article 1 and Article 101 of the Satversme of the Republic of Latvia, as well as with the sixth part of Article 4 and Article 5 of the European Charter of Local Self-Government.
The judgement by the Constitutional Court is final and not subject to appeal, it enters into force on the day of its publication.
The text of the judgement is available on the Constitutional Court’s homepage.
Updated information on the cases initiated by the Constitutional Court with respect to the administrative territorial reform is available here.
Linked case: 2020-43-0106