FIFTH SECTION

DECISION

Application no. 62323/17 Aivars LEMBERGS against Latvia

The European Court of Human Rights (Fifth Section), sitting on 18 September as a Committee composed of:

André Potocki , President, Mārtiņš Mits , Lado Chanturia , judges, and Milan Blaško , Deputy Section Registrar ,

Having regard to the above application lodged on 22 August 2017,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Aivars Lembergs , is a Latvian national, who was born in 1953 and lives in Puzes pagasts . He was represented before the Court by Ms J. Kvjatkovska , a lawyer practising in Riga.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant is a politician and businessman. He is the leader of the political party “For Latvia and Ventspils ” ( “ Latvijai un Ventspilij ” ) and has been the chairperson of Ventspils City Council since 1988.

On 14 March 2007 the applicant was charged with bribery, money laundering, unlawful participation in property transactions and providing false information in his tax return.

On 13 August 2007 a prosecutor imposed a security measure on the applicant prohibiting him from holding office as the chairperson of Ventspils City Council. The applicant challenged this security measure which the Kurzeme Regional Court upheld by a final decision of 22 February 2008.

Subsequently, on 19 August 2010, 7 May 2012, 30 June 2014, 16 May 2016 and 11 January 2017 the applicant requested the Riga Regional Court to revoke the security measure imposed. All of these requests were dismissed.

Despite this prohibition, the applicant has been repeatedly elected to Ventspils City Council and chosen to be its chairperson. The most recent municipality election took place on 3 June 2017. The applicant ’ s party won by 62.13%, and Ventspils City Council elected him as the chairperson.

B. Relevant domestic law

1. The Constitution of Latvia

Article 64

“Legislative power lies with Saeima [Parliament] and with the people, in the conditions and to the extent provided for by this Constitution.”

2. The Law on Municipalities

According to section 3 of the Law on Municipalities ( “ Par pašvaldībām ” ), a local municipality is a local administration which, through a representation elected by citizens – a council – and the institutions and authorities created by it, ensures the performance of the functions prescribed by law, as well as – in accordance with this Law – the tasks assigned by the Cabinet of Ministers ( Ministru kabinets , hereinafter – the Cabinet) and the municipality ’ s voluntary initiatives, while bearing in mind the interests of the State and of the residents of the relevant administrative territory.

Section 5 provides that municipalities, within the limits of their competence and the law, act autonomously. While performing the functions and tasks assigned to them, municipalities represent the State and are under the authority of the Cabinet. It is responsibility of the State that the functions and tasks assigned to municipalities are performed lawfully and efficiently.

According to section 14 (3), the city or municipal council can adopt binding regulations to perform its functions only when these fall within its competence.

As regards the election of a chairperson, section 19 provides that the chairperson of a council is elected from among its members. Section 62 outlines the competencies of the chairperson. In particular, he or she is responsible for organising the work of the city or municipal council and representing it in relations with the State authorities and other municipalities.

COMPLAINT

The applicant complained under Article 3 of Protocol No. 1 about his inability to hold the position of chairperson of Ventspils City Council after being elected.

THE LAW

The applicant submits that the voters have shown their opinion by electing the applicant ’ s party in the city council and that polls show their desire to see the applicant as the chairperson of Ventspils City Council. However, the imposed security measure has prohibited him from holding the office after being elected, thus constituting a violation of Article 3 of Protocol No. 1 which provides as follows:

“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”

Article 3 of Protocol No. 1 guarantees individual rights, including the right to vote and the right to stand for election (see Mathieu- Mohin and Clerfayt v. Belgium , 2 March 1987 ,§ § 46 ‑ 51, Series A no. 113).

The Court reiterates that Article 3 of Protocol No. 1 applies only to the election of the “legislature”. The word “legislature” in Article 3 of Protocol No.1 does not necessarily mean the national parliament. It has to be interpreted in the light of the constitutional structure of the State in question.

On the other hand, the Convention organs have held that local authorities, such as the municipal councils in Belgium, the metropolitan county councils in the United Kingdom, municipal councils, district councils and regional assemblies in Poland and municipal councils in Russia, did not form part of the “legislature” within the meaning of Article 3 of Protocol No. 1 (see Clerfayt , Legros v. Belgium , no. 10650/83, Commission decision of 17 May 1985, Decisions and Reports 42, p. 212; Booth- Clibborn v. the United Kingdom , no. 11391/85, Commission decision of 5 July 1985, DR 43, p. 236; Mółka v. Poland ( dec .), no. 56550/00, ECHR 2006 ‑ IV; and Cherepkov v. Russia ( dec. ), no. 51501/99, ECHR 2000-I).

The power to make regulations and by-laws which is conferred on the local authorities in many countries is to be distinguished from legislative power, which is referred to in Article 3 of Protocol No. 1, even though legislative power may not be restricted to the national parliament alone (see Cherepkov , cited above).

In Latvia, as stated in Article 64 of the Constitution, legislative power is exercised by the Parliament ( Saeima ) and, in special circumstances, by the people. The Constitution does not vest such power in any other authority.

The power of city and municipal councils to make regulations is limited to the performance of the functions prescribed by law and assigned by the Cabinet. The legality and efficiency of the performance of the assigned functions and tasks is subject to the control exercised by the Cabinet. Furthermore, the tasks of the chairpersons of such councils are solely limited to the organisation of the council ’ s work and representation in relations with other authorities.

Therefore, the Court considers that in Latvia the city and municipal councils, as well as the chairpersons of such councils, do not exercise legislative power and do not form part of the “legislature” within the meaning of Article 3 of Protocol No. 1 (compare, Clerfayt and Others , cited above; Booth- Clibborn and Others , cited above; Cherepkov , cited above; Mółka , cited above ; and Uçar and others v. Turkey ( dec .), no. 4692/09 , §§ 28-32, 24 June 2014).

The Court concludes that Article 3 of Protocol No. 1 is not applicable in the present case. It follows that the application must be rejected as incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 §§ 3 (a) and 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 11 October 2018 .

Milan Blaško André Potocki Deputy Registrar President