The provisions in the Binding Regulation of Riga City Council, which define the owners obligation to take care of the territory adjacent to his or her property, insofar the legal regulation does not envisage the municipality’s participation in the fulfilment of these duties, are incompatible with the Satversme
On 6 November 2014 the Constitutional Court passed the judgement in Case No. 2013-20-03 “On the Compliance of Para 4.3 and Para 4.4 of the Binding Regulations of 8 July 2008 of the Riga City Council No. 125 “On Taking Care of Riga City Territory and Maintenance of Buildings” with Article 105 of the Satversme of the Republic of Latvia.”
A local government may not fully impose fulfilment of its autonomous function upon owners
Contested norms (in italics)
Commercial companies in accordance with the concluded agreement, associations of apartment owners, owners, holders, authorised managers, users-leaseholders of housing property, land plots and other territories, shall ensure: [..]
4.3. taking care of the adjacent territory (mowing lawns, cleaning of pavements, waste collection and removal);
4.4. cleaning the pavements, which exist within the immoveable property and the adjacent territory, except the stops of public transport, of snow and ice, up to the surface of the pavement, strewing of anti-slip materials, as well as cleaning of yard paths and strewing every day before 8.00, and, if necessary, for the whole day, formation of snowbanks is admissible, it these do not hinder the movements of pedestrians and if the requirements of Para 13.2 of these binding regulations are complied with.
Norm with Higher Legal Force
Article 105 of the Satversme: “Everyone has the right to own property. Property shall not be used contrary to the interests of the public. Property rights may be restricted only in accordance with law. Expropriation of property for public purposes shall be allowed only in exceptional cases on the basis of a specific law and in return for fair compensation.“
The Constitutional Court examined the compliance of the contested norms with the first and the third sentence of Article 105 of the Satversme. [8.1.]
The Facts
The case was initiated on the basis of a constitutional complaint submitted by Uldis Kaldovkis. Uldis Kaldovskis owns real estate in Riga. In compliance with the contested norms he has to ensure taking care of and cleaning of the territory adjacent to his property. The applicant expressed the opinion that the obligation defined in the contested norms was disproportional, since it applied to the adjacent territory without any restrictions, i.e., to any area. Since the territory adjacent to the applicant’s property is almost as big as the area of property he owns, the obligation defined in the contested norms allegedly was particularly disproportional. Moreover, the contested norms do not envisage any exemptions to persons, who, due to objective reasons, are unable to take care of the adjacent territories.
Court’s Findings and Ruling
On the infringement of fundamental rights
The Constitutional Court recognised that the contested norms restricted the applicant’s right to own property. The fundamental rights defined in Article 105 of the Satversme can be restricted not only by narrowing the scope of a person’s right to own property, but also by imposing upon a person certain property-linked obligations [8.3.]
The Constitutional Court noted that the restriction to the fundamental rights defined in the contested norms had a legitimate aim – to protect society’s right to live in a well-kept urban environment and facilitate road traffic safety. [10] The contested norms allow achieving a situation, where every owner takes due care of and cleans the territory adjacent to his or her property. [11] Moreover, there are no other measures that would allow reaching the legitimate aim of the restriction to the fundamental right in the same quality. [12.2.] However, the Constitutional Court recognised that the restriction upon the applicant’s rights was disproportional. I.e., the law “On Local Governments” defines the obligation of local governments to take care of the amenities and cleanliness of territory. The local government has the right to impose duties upon owners regarding taking care of cleaning the territories adjacent to their properties. [9.2.] However, the right to delegate established by the legislator cannot be interpreted to mean that the local government were allowed to impose the fulfilment of its autonomous function totally upon owners. If the local government has chosen to impose the fulfilment of this function upon owners, it must take part in fulfilling it. Moreover, the local government is responsible for due fulfilment of the local government’s autonomous function. [13.2.]
The Constitutional Court recognised: Riga City Council has not introduced a mechanism for its participation to decrease the burden that the obligation defined in the contested norm creates for the owners. Since the owners are not provided support in taking care of and cleaning the adjacent territories, the requirements of the contested norms are not proportional to the public benefit. [13.3.]
Thus, the Constitutional Court recognised the contested norms, insofar the legal regulation does not envisage the municipality’s participation in the taking care of and cleaning the territories adjacent to immoveable properties that are in public use, as being incompatible with Article 105 of the Satversme.
On the validity of the contested norms
The Constitutional Court took into consideration that Riga City Council needed time to eliminate the deficiencies in the legal regulation. Therefore the Constitutional Court recognised the contested norms as being invalid as of 1 May 2015. Until the moment when a new legal regulation comes into force all owners have the obligation to fulfil the requirements of the contested norms.
The Constitutional Court took into consideration that the applicant had been imposed a number of administrative sanctions for not abiding by the contested norms, and in some of the administrative violation cases the legal proceedings were still on-going. Thus, the Constitutional Court recognised the contested norms, insofar the legal regulation does not envisage the municipality’s participation in the taking care of and cleaning the territories adjacent to immoveable properties that are in public use, with regard to the applicant as being invalid as of the date of their adoption, in order for him to have the possibility to require repeated assessment of the proportionality of applied sanctions. However, the applicant, similar to other owners, is obliged to abide by the requirements of the contested norms until the new legal regulation comes into force.
The Judgement by the Constitutional Court is final and not subject to appeal, it enters into force on the day it is officially published.
Linked case: 2013-20-03