The norm that does not allow associations of electors to submit lists of candidates for city council and large municipality council elections is compatible with the Satversme
On 5 February 2015 the Constitutional Court pronounced a judgement in Case No 2014-03-01 “On the Compliance of Section 15(1) of The City Council and Municipality Election Law, insofar it does not allow associations of electors to submit lists of candidates in municipalities where the number of residents exceeds 5,000 and in cities, with Article 91 and Article 101 of the Satversme of the Republic of Latvia”.
The entitlement of a person to stand for election in small municipalities as an electors association candidate should be recognised as an exception to the general procedure
The Contested Norm
Section 15(1) of the City Council and Municipality Election Law:
„(1) In municipalities where the number of residents exceeds 5,000 on the day of announcement of the election, as well as in cities, the following shall be eligible to submit lists of candidates for city councils and municipality councils:
1) a registered political party;
2) a registered association of registered political parties;
3) two or more registered political parties, which have not joined in a registered association of political parties.”
The applicants contest the mentioned norm insofar it does not allow the associations of electors to submit lists of candidates in municipalities with the number of residents not exceeding 5,000 and in cities of republican significance.
The Norms of Higher Legal Force
Taking into account the specification of the claim made by the applicants, the Constitutional Court assessed the compliance of the contested norm with the first sentence of Article 91 and the first sentence of Article 101 of the Satversme. [12]
The first sentence of Article 91 of the Satversme: “All human beings in Latvia shall be equal before the law and courts.”
The first sentence of 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”.
The Facts
The case was initiated having regard to a constitutional complaint by Rihards Pētersons, Jana Simanovska, Uldis Kronblūms, and Kārlis Vilciņš. The applicants were proposed by the electors association Jūrmalnieki as candidates for Jūrmala City Council election in 2013. However, the Election Commission of Jūrmala City refused to accept the list submitted by the mentioned association of electors, founding the refusal upon Section 15(1) of the City Council and Municipality Election Law.
The applicants, inter alia, expressed the opinion that the contested norm envisaged a differential treatment as regards the implementation of rights established in Article 101 of the Satversme. The feature uniting the applicants and other persons is their wish to participate in the work of a local government by running for election in the municipality of their residence. However, a differential treatment of these persons is allowed, depending on what municipality they live in. Such treatment allegedly has no objective and reasonable grounds and is disproportionate.
The Court Findings and Ruling
On the scope of the first sentence of Article 101 of the Satversme
The Constitutional Court indicated that the State was obliged not only to guarantee every citizen a formal right to participate in the work of the State and of local governments, but also to create prerequisites for the exercise of this right.
In ensuring that the rights enshrined in the first sentence of Article 101 of the Satversme can be exercised, the legislator has broad discretion to regulate procedures for electing local governments. However, the legislator has no obligation to establish such legal regulation that would allow every citizen to choose his/her own procedure of exercising his/her right to be elected, outside of the procedures already prescribed by law. [14]
The first sentence of Article 101 of the Satversme implies that the State has an obligation to establish in a particular form – by law – a procedure by which every citizen may exercise his/her passive electoral right (the right to be elected), such procedure being compatible with the norms and principles of the Satversme. [14]
The fact that the legislator, using its discretion, determines the procedure by which a citizen may exercise his/her passive electoral right, does not mean that the legislator’s actions as such put restrictions upon the persons’ fundamental rights enshrined in Article 101 of the Satversme. However, should the procedure established by the legislator fail to comply with a norm or a principle of the Satversme, the procedure should also be regarded as incompatible with Article 101 of the Satversme. [16]
On compliance with the principle of equality
The Constitutional Court, taking into account, inter alia, the applicant’s claim, recognised that it was of crucial significance for the present case whether the legislator, when determining the procedure by which every citizen might exercise his/her passive electoral rights, had observed the principle of equality. [16]
In assessing whether the contested norm complies with Article 91 of the Satversme, the Constitutional Court examines:
- whether and which persons (groups of persons) are in circumstances that are similar and comparable according to definite criteria;
- whether the contested norm envisages equal or differential treatment of these persons;
- whether such (differential) treatment has objective and reasonable grounds, i.e., whether it has a legitimate aim and whether the principle of proportionality has been complied with. [17]
On the differential treatment
The Constitutional Court concluded that two groups of persons could be compared within the case: citizens that wish to run for election in a city or a large municipality (with the number of residents exceeding 5,000), on the one hand, and citizens that wish to run for election in a small municipality (with the number of residents under 5,000), on the other hand. [18] Both groups are in similar and comparable circumstances, [18] yet the treatment of these groups is differential. [19]
What the Constitutional Court was assessing within the present case was not whether the distinction drawn by the legislator between cities and large municipalities, on the one hand, and small municipalities, on the other hand, was justified, but whether the differences between the procedures for exercising passive electoral rights per se complied with the principle of equality. [19]
On the legitimate aim of the differential treatment
The Constitutional Court concluded that the legitimate aim of the differential treatment was to protect the democratic state order, i. e., the contested norm strengthened the system of political parties, while simultaneously ensuring that a local government council as a representative institution was formed also in smaller municipalities. [20.2]
Thus, the entitlement of a person to stand for election in small municipalities as an electors’ association candidate should be recognised as an exception to the general procedure. [20.2]
On compliance with the principle of proportionality
The Constitutional Court recognised that the differential treatment established by the legislator was appropriate for reaching its legitimate aim. The norm encourages the persons who wish to use their passive electoral rights to get involved in the activity of political parties. Moreover, the legal regulation ensures that a local government council as a representative institution is formed also in smaller municipalities. [22]
The Constitutional Court also indicated that currently there were no other measures that would allow reaching the legitimate aim at least at the same quality level as the regulation included in the contested norm. Endowing every citizen with a right to stand as a candidate on electors association’s list at local council elections in any municipality might possibly ensure that the interests of residents are more broadly represented in the local government council. However, as long as there are marked differences between the legal framework regulating the activity of political parties and that regulating the activity of electors’ associations, such measure would not contribute to the strengthening of political party system on the national scale on the same quality level as it is done by the differential treatment envisaged by the contested norm. [23]
The Constitutional Court recognised that the legislator’s actions, when establishing the differential treatment, had been proportionate, i.e., adequate. The respective differential treatment secures the achievement of its legitimate aim, while not depriving any citizen of the possibility to exercise his/her passive electoral right as provided for by law. Moreover, the society gains a benefit in the form of a better organised and understandable political process, for the legal framework established to regulate political parties and associations thereof promotes openness in the activity of political parties. The Constitutional Court also indicated that the legislator has the right at any moment, using its discretion, to decide in favour of amending the City Council and Municipality Election Law in order to grant every citizen broader possibilities of exercising passive electoral rights. [24]
Thus, the legislator, when establishing a differential treatment in the procedures for exercising passive electoral rights of citizens, has complied with the principle of proportionality and has not violated the principle of equality. [24]
Hence, the Constitutional Court recognised that the contested norm was compatible with the first sentence of Article 91 and the first sentence of Article 101 of the Satversme.
The Judgement by the Constitutional Court is final and not subject to appeal, it has entered into force.
Linked case: 2014-03-01