Taking counsel

  • 2005-11-30
  • By Agnese Hartpenga [ LOZE, GRUNTE & CERS ]
Municipalities may be mistaken

Although people are often dissatisfied with administrative acts issued by local governments, usually they are not informed about their right to judicial review in respect to these acts and to obtain a legal judgement that conforms to a given situation. Pursuant to the law, all acts can be appealed in the administrative court 's or more precisely, within one month through the chairman of the local council and later in the court.

To find out how feasible and justified the possibility to alter decisions of the local governments with the help of the administrative court is, the Centre for Public Policy Providus is currently investigating decisions of the administrative courts on the quality of administrative acts issued by local governments and their institutions, as well as the legal basis for their activities. Court judgments on real estate tax administration issues, which constitute a significant part of local government competency, have also been separately investigated within this study. Thirty-six disputes out of 263 examined judgments dealt with real estate tax issues, chiefly the amount of tax calculated by the local government.

While administering real estate tax, local governments are entitled to prepare several administrative acts 's to calculate the tax, recalculate its amount, refuse its recalculation, extend the term of tax payment, etc. The study concluded that although the court of first instance, or the administrative district court, has mainly made judgments in favor of local governments (60 percent of cases), the court of appeal, or the administrative regional court, has admitted the violations of local governments in the majority of cases (70 percent of cases). The complexity of the tax laws is probably the cause why in 50 percent of cases the decisions of the lower instance courts are appealed to a higher court.

Although most often the court has evaluated local government decisions according to their content, in several cases a decision of a local government is revoked for procedural violations 's e.g., if the administrative act form provided by the law has not been followed. After evaluating the procedural mistakes detected in the court judgments, it should be admitted that a majority of mistakes made by the local governments are in the argument part of an administrative act 's there is either no substantiation at all, or it is incomplete.

The lack of substantiation in an administrative act is a significant violation, as this procedural requirement indirectly influences the contents of the decision on its merits. For example, a court has pointed out in a judgment that is negative to the local government that the substantiation of the decision is "an explanation on the issue and contents of administrative act." Although the decision contained reference to regulatory enactments, the court pointed out that the substantiation of a decision should contain all the considerations why the respective regulatory enactment should be applied in the way the local government applied it. Namely, by pointing to a specific legal norm, the local government is obliged to explain how and why the respective article of the law relates to the specific case.

When hearing the disputes, the court usually detects a local government's mistake in correct application of the law. For example, in one important judgment the administrative regional court had interpreted the law and pointed out that the law precisely identified the officer whose competency it is to examine the complaints regarding the real estate tax calculation issues 's the chairman of local council. However, in that particular case the decision was made by the deputy chairman of the local council. According to the court's judgment, "If the chairman of the local council is absent and a particular officer performs his duties, such a circumstance should be detectable by examining the respective administrative act." The decision of the local government was invalidated due to the fact that without a reference to a person on behalf of whom the decision had been made, the officer's powers were exceeded, and thus the decision should be declared illegitimate.

The appeal of acts in the Administrative Court provides not only the opportunity to achieve unbiased judgment 's by detecting mistakes the court simultaneously interprets and explains the regulatory enactments and thus ensures equal and legitimate application of the law when drafting an administrative act. Unfortunately, geographical considerations make the use of the administrative courts difficult 's they are located in Riga and accessible only to the inhabitants of the capital.