The Norms of the Binding Riga City Council Regulations that Restrict Making Noise are Incompatible with the Satversme
On 12 December 2014 the Constitutional Court passed a judgement in Case No. 2013-21-03 ““On Compliance of Para 4.1 and Para 15 of the Binding Regulations of 19 June 2007 of the Riga City Council “Public Order Regulations in Riga” with the first and the third sentence of Article 105 of the Satversme”.
In adopting the norms of the binding Riga City Council Regulations that restrict making noise within the administrative territory of Riga and envisage liability for it the authority granted by the legislator has been exceeded
The Contested Norms:
“4. Within the administrative territory of Riga it is prohibited to:
4.1. make noise, if it disturbs the peace of persons in the vicinity, the normal functioning of offices and organisations, but is not connected with traffic or events, which have been approved by the executive director of the Riga City, and the noise is not permanent by nature. The person, guilty by his or her actions or failure to act for creating permanent noise, which exceeds the norms or cut-off values of noise, shall be made liable in accordance with the procedure set out by law; [..]
15. For disregarding the requirements set out in Para 4.1, if the violation has been committed in the period from 7.00 to 23.00, natural persons shall be imposed a monetary fine up to one hundred lats, but legal persons – up to five hundred lats. If the violation has been committed in the period from 23.00 to 7.00, natural persons shall be imposed a monetary fine from twenty lats up to one hundred and fifty lats, but legal persons – from two hundred lats up to six hundred lats. If this violation has been committed repeatedly within a year from the moment the decision on imposing the fine has been adopted, irrespectively of the time when the violation has been committed, natural persons shall be imposed a fine from one hundred to two hundred fifty lats, but legal persons – from five hundred up to one thousand lats.”
The Norm of Higher Legal Force
The first and the third sentence of Article 105 of the Satversme: “Everyone has the right to own property. Property rights may be restricted only in accordance with law.“
The Facts
The case has been initiated having regard to the constitutional complaint submitted by the limited liability company “IRIDEJA3”. It is noted in the constitutional complaint that the applicant, in order to engage in commercial activity, has opened a bar, which during daytime functions as a restaurant, but in the evening – as a bar and a club, where music is often played and people dance. On the basis of the contested norms, the applicant has been administratively punished twice for allowing noise, which is not of permanent nature, by playing music and, thus, disturbing the peace of persons in the vicinity. The applicant underscored that playing of music, which inevitably causes noise, is directly linked to the commercial activities of the bar owner and, hence, also with the right to own property. The applicant held that the Riga City Council, in adopting the contested norms, had exceeded the authorisation granted to it by law, and thus the restriction on the fundamental rights defined in Article 105 of the Satversme had not been established in accordance with law.
Court Findings and Ruling
The Constitutional Court concludes that the interests, which are linked with engaging in commercial activity, fall within the scope of the right to own property [10.1] and that the contested norms restrict the right to own property established in the first sentence of Article 105 of the Satversme [10.2].
The Constitutional Court, assessing the compliance of the restriction upon the right to own property with norms of higher legal force, noted: the law “On Local Governments” envisages that the Council of a local government has the right to adopt binding regulations on issues related to public order, envisaging administrative liability for violations thereof, if it is not prescribed in laws [11.1].
The Constitutional Court found that the administrative liability for activities that cause noise of a certain level is envisaged in Section1671 of the Administrative Violations Code. Whereas administrative liability for disturbing public order, manifested as disrespect towards society or impudent actions, ignoring generally accepted norms of behaviour and disrupting peace for people, functioning of institutions, companies (commercial companies) or organisations (petty hooliganism), is envisaged in Section 167 of Latvian Administrative Violations Law. Thus, issues regarding all kinds of activities that cause noise and disturbs public peace (thus, also peace of persons in the vicinity, normal functioning of institutions and organisations) have already been regulated by the legislator. In adopting the contested norms, the authorisation granted in Section 43 of the law “On Local Governments” has been exceeded, and the Riga City Council has acted ultra vires. Hence, the restriction to fundamental rights set out in the contested norms has not been established by law [12.6.].
Therefore the contested norms are incompatible with the first and the third sentence of Article 105 of the Satversme [12.6] and are to be recognised as invalid as of the moment of adoption [13].
The Judgement by the Constitutional Court is final and not subject to appeal. The Judgement has entered into force.
Linked case: 2013-21-03