Annual Report 2015 – 2017
Development of the Case Law of the Constitutional Court of the Republic of Latvia from 1 June 2015 to 30 June 2017
Introduction
This report will outline relevant issues in constitutional legal proceedings in Latvia, examining findings included in rulings by the Constitutional Court of the Republic of Latvia [hereinafter – the Constitutional Court] in the period from 1 June 2015 to 30 June 2017. Within this period the Constitutional Court has made 25 judgements, as well as decided to terminate legal proceedings in ten cases. The most important development trends in the constitutional doctrine will be characterised in the report.
First of all, it must be noted that the composition of the Constitutional Court changed in this period. In October 2015 Justice of the Constitutional Court Kristīne Krūma requested to be released from serving in the office of a Justice. On 31 March 2017, in turn, the term in office of Justices Uldis Ķinis and Kaspars Balodis expired. The Justices of the Constitutional Court referred to above, while being in office, have participated in creating almost 250 rulings by the Constitutional Court on constitutional issues that are important for Latvia and, thus, have contributed significantly to development of the legal system. Since the term in office of Justices of the Constitutional Court had expired, the Saeima [the Parliament] has appointed three new Justices of the Constitutional Court.[1]
In this report we shall first of all examine findings expressed in judgements by the Constitutional Court on the right to a fair trial, the right to property, the right to freedom of speech, the right to inviolability of private life, as well as the principle of legal equality. The case law of the Constitutional Court with respect to the right to freely choose vocation and workplace according to one’s abilities and qualification, as well as the findings of the Constitutional Court with respect to principles for the functioning of pension system have been systematised. In addition to this, an overview of the impact of the European Union law upon rulings by the Constitutional Court is provided, and findings by the Constitutional Court with respect to issuing external regulatory enactments are summarised. Finally, conclusions are drawn regarding trends in the development of the Constitutional Court’s case law.
The right to a fair trial
Within the reporting period judgements dealing with issues related to the right to a fair trial prevail in the case law of the Constitutional Court. The Constitutional Court has noted previously that the concept of “a fair trial” comprises two aspects, i.e., “ a fair trial” as an independent institution of the judicial power that reviews the case, and “a fair trial” as a due procedure compatible with a state governed by the rule of law, in which the case is examined. Article 92 of the Satversme [Constitution] of the Republic of Latvia (hereinafter – the Satversme) provides that the State has an obligation both to establish an appropriate system of judicial institution and to adopt such procedural provisions, in accordance with which a court would examine cases in a procedure ensuring fair and unbiased adjudication of these cases.[2]
In case No. 2016-01-01 the Constitutional Court added to the existing case law regarding the right to a fair trial findings on the composition of court that reviews the case. In this case the Constitutional Court concluded that in the framework of Article 92 of the Satversme a person’s right to a fair trial was ensured also in the case, of the court examined the case in the composition of one judge.[3] If a case is examined in court by a judge, who has been appointed or confirmed into office in the procedure established by the Satversme and the law “On Judicial Power”, it must be presumed that the judge will be independent and unbiased in examining the case and will be able to ensure fairness of legal proceedings and of the rulings that are adopted.
New findings on the right to a fair trail included in Article 92 of the Satversme were expressed in case No. 2015-25-01. In this case the Constitutional Court provided extensive explanation of the interaction between the presumption of innocence and legal presumption of a fact. Although pursuant with the essence of presumption of innocence the accused himself does not have the obligation to prove his innocence, but the prosecutor has the obligation to provide sufficient evidence on a person’s fault in the particular offence, this, however, does not mean that it would be inadmissible to include in law a rebuttable presumption of the actual circumstances pointing to fault or liability of a person or a group of persons. Undeniably, presumption of innocence carries particular significance; however, an assumption that it is absolute would collide with the principle of unity of the Satversme and other fundamental rights included in the Satversme, as well as other constitutional norms. Hence, the presumption of innocence does not prohibit from imposing restrictions upon a person, if such are necessary for attaining a particular legal aim and proportionality is complied with.[4] Additionally, the Constitutional Court proposed criteria for establishing, whether in the particular instance a regulation that was based upon the legal presumption of a fact was admissible. To examine, whether the legal presumption of a fact was permissible in the particular circumstances, it must be established, whether
1) legal presumption of a fact has been established in law in due procedure and is unequivocally attributed to specific situations that are clearly defined. I.e., it must be established, whether law provides for such presumption expressis verbis and whether it is envisaged to apply it to a limited range of situations;
2) legal presumption of a fact has been established for attaining a legitimate aim. I.e., it must be verified, whether such presumption has been established to protect significant interests of the State, society or private persons;
3) person’s interests are balanced. I.e., whether a person, to whom the legal presumption of a fact is applied, is at the same time ensured the possibility to rebut this presumption by evidence that is at his disposal or is easily obtained and, thus, prove his innocence.[5]
In case No. 2015-19-01 and case No. 2016-06-01 the Constitutional Court examined such aspects of the right to a fair trial with respect to which judgements had been pronounced previously. The Constitutional Court has the duty to abide by the findings expressed in its rulings due to requirements of stability and continuity of legal system, fairness and equality. However, constitutionality of a legal norm may be re-examined, if, for example, the norm no longer complies with the actual social reality or is incompatible with regal relations that have become prevalent in the course of societal development. Therefore conclusions made in previous judgements must be taken into account insofar the social reality and the context of legal relations has not changed.[6]
In case No. 2015-19-01 the Constitutional Court examined, whether the procedure for reinstating criminal proceedings due to newly disclosed circumstances was compatible with the first sentence of Article 92 of the Satversme. The Constitutional Court already examined compatibility of a regulation similar to the norms that were contested in case No. 2015-19-01 with the first sentence of Article 92 of the Satversme in case No. 2001-10-01. Therefore, first of all it had to be established, whether the claim should not be considered as being already adjudicated.[7] The Constitutional Court found that it had to be taken into consideration that following judgement in case No. 2001-10-01 changes had occurred in the legal system and amendments had been introduced to the legal regulation on criminal procedure. Hence, the claim regarding compatibility of the contested norms with the first sentence of Article 92 of the Satversme was not recognised as being already adjudicated.[8] In case No. 2015-19-01 the Constitutional Court concluded that cases were possible, where, to ensure the right to a fair trial legal proceedings had to be reinstated in a case, in which the final ruling had been adopted. After a ruling in a criminal case has entered into force, new circumstances may be discovered that were not taken into account in examining the criminal case, because they were not known or could not have been known previously. In such cases the possibility to rectify unfairness by reinstating criminal proceedings must be envisaged to ensure a fair trial and an element thereof – a fair judgement, in order to take into consideration the newly discovered circumstances in examining the criminal case. However, in those cases, where no grounds can be identified for reinstating criminal proceedings due to newly discovered circumstances, a possibility to refuse reinstating criminal proceedings must be envisaged to ensure the right to a fair trial, thus respecting a court’s ruling that has already entered into force and abiding by the principle of res judicata.[9] The aim of the legal institution – reinstating criminal proceedings due to newly discovered circumstances – is to ensure balance, if two elements of the content of the right to a fair trial collide – the principle of res judicata and a fair judgement.[10] The Constitutional Court also underscored that the legislator had broad discretion in choosing those measures that would ensure a balance, if the principle of res judicata and a fair judgement collided.[11]
Pursuant to norms contested in case No. 2015-19-01, it is the prosecutor who has the jurisdiction to examine a person’s application regarding newly discovered circumstances. However, this regulation may cause a situation, where the application regarding newly discovered circumstances is examined by the same prosecutor, who in the particular criminal proceedings performed investigative activities, supervision of investigation, criminal prosecution and brought public charges. Guarantee of a court’s impartiality or neutrality is one of the elements in the first sentence of Article 92 of the Satversme. The findings made in the case law of the Constitutional Court with respect to impartiality and neutrality of a court are equally applicable to the prosecutor’s office as an institution of judicial power. In view of the fact that the contested norms do not always allow eliminating doubts regarding neutrality of those prosecutors, who decide on reinstating criminal proceedings due to newly discovered circumstances, the Constitutional Court recognised the contested norms as being incompatible with the first sentence of Article 92 of the Satversme.
In case No. 2016-06-01 and case No. 2002-20-0103 the Constitutional Court examined some norms that determined the procedure for annulling special permit for accessing official secrets. In the judgement in case No. 2002-20-0103 the Constitutional Court recognised the contested norms as being compatible with Article 92 of the Satversme. The judgement’s part on findings comprises a condition that the contested norm is compatible with the Satversme only if it is interpreted in accordance with the Satversme. Since the judgement in case No. 2002-20-0103 was passed, the legal system has changed significantly; however, legal regulation, notwithstanding these changes, as well as findings included in the said judgement, had remained unchanged. Hence, the Constitutional Court had to re-examine constitutionality of legal norms that established the procedure for annulling a special permit for accessing official secrets. In case No. 2016-06-01 the Constitutional Court reiterated the finding that access to official secrets was not a part of any person’s rights and that the state enjoyed broad discretion in choosing measures for protection of official secrets. However, this does not mean that persons’ subjective rights and legal interests established in Article 92 of the Satversme were not restricted in the procedure of protecting official secrets.[12] In legal reality, the annulment of a special permit may restrict a person’s fundamental rights. For example, a person is denied the right that follows from Article 106 of the Satversme to retain one’s current workplace, because without a special permit the person no longer meets one of the qualification requirements and cannot perform his obligations. The Constitutional Court holds that in the case, where a person’s fundamental rights that are defined in the first sentence of Article 106 of the Satversme are restricted, the person should have the possibility to defend his interests in a way that complies with the first sentence of Article 92 of the Satversme.[13]
In case No. 2016-06-01 the Constitutional Court concludes that in the procedure of annulling special permits, by referring to the national security interests, a person’s procedural rights are significantly restricted; moreover, a part of this procedure is not regulated by such generally binding regulatory enactments that are publicly accessible. I.e., a person is unable to familiarise himself with the regulation that defines his rights and restrictions thereupon, because part of this regulation has been granted the status of classified information.[14] If a person’s procedural rights have not been enshrined in regulatory enactments, then ensuring of these rights is left at the discretion of the party applying legal provisions and depends upon his understanding of procedural fairness. Therefore, the procedural rights defined in the first sentence of Article 92 of the Satversme are not ensured to a person. Hence, the Constitutional Court recognised the contested norms as being incompatible with the Satversme.
The Constitutional Court already had underscored that objective neutrality of a court meant that all reasonable doubts of the parties to the case or of society regarding impartiality of a court should be excluded.[15] In case No. 2016-12-01 the Constitutional Court applied this finding also to an institution, which on an institutional level reviewed a decision on reinforcing the regime for serving a sentence.[16] In this case the Constitutional Court examined, whether a legal norm that prohibited from appealing against a decision by a prison administration on reinforcing the regime for serving a sentence was compatible with the right to a fair trial. If a sentenced person’s regime for serving a sentence is reinforced, such rights of the person, for the protection of which access to court must be ensured, are affected. To ensure protection of a sentenced person’s affected rights, he should be ensured at least the minimum right to turn to court; i.e., the right to have the case examined in at least one court instance. [17]
Also in case No. 2016-13-01 the Constitutional Court had to deal with the issue, whether regulation in criminal proceedings regarding criminally acquired property could ensure independence and impartiality of the person in charge of proceedings. It is characteristic of proceedings regarding criminally acquired property that in these proceedings a person’s fault is not established, but a decision is adopted regarding criminal origins or links to a criminal offence of property.[18] The Criminal Procedure Law provided that in proceedings regarding criminally acquired property the materials of the case were investigative secret and that only the person in charge of proceedings, the prosecutor or the court that was adjudicating this case had the right to familiarize themselves with the materials. In this case the Constitutional Court found: “since the decision of permission to familiarise oneself with case materials of proceedings regarding criminally acquired property affects a person’s fundamental rights, any risks linked to the validity of this decision and any doubt regarding independence and impartiality of the person that adopts the final decision must be eliminated.”[19] Thus, a prosecutor may not be regarded as being an independent institution of judicial power that would comply with the designation “court”, if he at the same time is also one of the parties to the case and the person who adopts the final decision on the scope, in which a person is ensured the right to familiarise himself with case materials in proceedings regarding criminally acquired property. The Constitutional Court ruled that the norm contested in case No. 2016-13-01, insofar a court could not re-examine the legality and validity of a decision adopted by the person in charge of proceedings regarding a person’s right to familiarise himself with case materials in proceedings regarding criminally acquired property, was incompatible with the first sentence of Article 92 of the Satversme.
The right to property
Within the reporting period the Constitutional Court examined compatibility of regulation with the right to property included in Article 105 of the Satversme[20] in four cases.
Article 105 of the Satversme provides for both enjoying the right to property without interference, as well as the right of the State to restrict exercise of this right in public interests. Whereas the fourth part of Article 105 of the Satversme provides for the rights of the State to deprive of the right to property de jure in certain cases. These provisions envisage different criteria for assessing the legality of a restriction, therefore the Constitutional Court must determine on case-by-case basis, which of the sentences in Article 105 of the Satversme is applicable to the contested norm. If the fourth sentence of Article 105 of the Satversme applies, then the Satversme defines special requirements. I.e., property may be expropriated only on the basis of such specific law, which the legislator has adopted in exceptional cases by setting a fair compensation[21], to provide for public needs.
In case No. 2016-08-01 the Constitutional Court examined compatibility of the law on expropriation of parts of immoveable property “Kaktiņi” for public needs with the Satversme. Abiding by the procedure for expropriating immoveable property is one of the pre-requisites for protecting a person’s right to property.[22] In this case the Constitutional Court concluded that in the particular case the requirement, included in the fourth sentence of Article 105 of the Satversme, that expropriation of property was admissible only on the basis of “a specific law”, was met. The Constitutional Court also noted that the legislator’s obligation to ensure a person’s right to be heard before adopting a legal act followed from the requirements set in the fourth sentence of Article 105 of the Satversme to adopt a specific law.[23] The decision on expropriation of immoveable property for public needs must include substantiation, proving that the property is, indeed, expropriated for public needs. In case No. 2016-08-01 it was established that expropriation of parts of immoveable property “Kaktiņi” complied with public needs, because this property was needed for the development of transport infrastructure.[24] The Constitutional Court noted that in verifying, whether the requirement that property could be expropriated only in exceptional case had been met, it also had to be established, whether the property had been expropriated in return for fair compensation. Although the fourth sentence of Article 105 of the Satversme ensures to a person the right to fair compensation if immoveable property is expropriated, it does not guarantee the possibility to receive this compensation in the way that a person prefers. The fourth sentence of Article 105 of the Satversme does not impose an obligation upon an institution to offer as fair compensation to the owner of immoveable property another immoveable property of equal value. Neither does the institution have the obligation to fulfil any request made by the owner of expropriated immoveable property with respect to the type of compensation.[25] It was concluded in case No. 2016-08-01 that the procedure for expropriation property had proceeded legally and that the contested law was compatible with the Satversme.
In case No. 2014-36-01 the Constitutional Court examined, whether the legal norm on suspending payment of interest from a commercial company, which experienced financial difficulties and received state aid, was compatible with Article 105 of the Satversme. The Constitutional Court found that the contested norm envisaged restrictions upon using property for the period as of the moment when support for commercial activities was granted, until the end of support. Thus, the contested norm did not essentially deprive of the right to property, but only temporarily restricted the rights of submitters of a constitutional complaint to receive interest payments.[26] The Constitutional Court noted that the contested norm was to be considered as measure, by which the State could achieve that the invested resources, to the extent possible, are used to ensure public interests, and also that subjects of subordinate liabilities, who had undertaken risk of commercial activity themselves, would not gain unfounded benefit from the support provided by the State.[27] Hence, the Constitutional Court recognised the contested norm as being compatible with Article 105 of the Satversme.
In case No. 2015-07-03 the Constitutional Court analysed, where Article 105 of the Satversme comprised the right to have contractual commitments met in the scope that had been defined in regulatory enactments at the time, when the contract was concluded. Legal regulation that was in force at the time, when a contract was concluded, envisaged that operators that provided passenger transport services (providers of public transport services) would be compensated for all losses incurred in connection with provision of services. Amendments to legal regulation limited the amount of compensation, and, thus, in case No. 2015-07-03 the principle of legal expectations had to be examined in interconnection with a restriction upon the right of property, as one of the criteria characterising legality of this restriction. The Constitutional Court concluded that state aid was provided for public transport services to ensure services that were accessible to society, were of high quality and cost-effective, but not to support unprofitable commercial activities. Merchants may not base their activities only upon state aid.[28] The contested norm, which restricts the amount of compensation for losses, facilitates economically responsible actions by providers of public transport services and is an incentive for increasing effectiveness of their work. This allows saving state budget resources.[29] Thus, the public benefit outweighs the losses incurred by submitters of the constitutional complaint and the contested norm is compatible with Article 105 of the Satversme.
In case No. 2015-13-03 the Constitutional Court found that a person’s right to have part of infrastructure fee refunded, if a construction project was not implemented, fell within the scope of Article 105 of the Satversme. If an owner cannot use his property freely, gaining all possible benefits from it, his right to property is restricted.[30] Article 105 of the Satversme provides that the right to property may be restricted, but only in accordance with law. The word “law” comprises not only laws adopted by the Saeima, but also other external regulatory enactments, insofar these have been adopted on the basis of law, have been published in a certain procedure, have been worded with sufficient clarity, and also comply with the principles of a state governed by the rule of law.[31] The contested norm was included in a regulation issued by the Riga City Council, which provided a more detailed regulation on applying fees to construction projects. It, inter alia, provided that the fee for the receipt of a building permit was not refunded in cases, when the building permit was not used. However, regulatory enactments of higher legal force do not provide that the infrastructure part of the fee should not be refunded if the construction project is not implemented. Thus, the Constitutional Court recognised that the Riga City Council, in issuing the contested norm, had not complied with authorisation granted to it. Therefore it was recognised that the restriction upon fundamental right defined by the contested norm had not been established by law and the contested norm was incompatible with Article 105 of the Satversme.[32]
Whereas in case No. 2016-07-01 the Constitutional Court examined, whether it was admissible to deviate from the public credibility principle of the Land Register in criminal proceedings and give preference to protecting the right of a person who has become a victim of criminal offence. The Court recognised that the principle of public credibility existed in a democratic state governed by the rule of law, from which the principle of protecting a bona fide acquirer was derived and which in Latvia was implemented, inter alia, with the help of the Land Register. Although entering immoveable property into the Land Register and corroboration of the right to property is mandatory and the appropriate entries ensure public credibility vis-à-vis third persons, such entries, which are made into the Land Register after a criminal offence, cannot be recognised as being legal. The Constitutional Court found that an exception to the principle of protecting a bona fide acquirer was admissible, if legal relations were based upon a criminal offence. To attain the aims and objectives of criminal proceedings and to protect the victim’s rights, an exception to the principle of protecting a bona fide acquirer is admissible in a democratic state governed by the rule of law. A person, who has lost immoveable property as the result of criminal offence, should have measures available for recovering this property.[33]
Case No. 2016-07-01, inter alia, includes findings with regard to such issues related to immoveable property as protection of a bona fide acquirer and the principle of public credibility. In this case the Constitutional Court noted that the principle of public credibility existed in a democratic state governed by the rule of law, from which also the principle of protecting a bona fide acquirer derived and which in Latvia is implemented, inter alia, with the help of the Land Register. The principle of public credibility, on the one hand, protects the person, who has been entered into the Land Register as the owner, and at the same time creates certainty in third persons, thus ensuring stability of civil turnover.[34] In case No. 2016-07-01 the Constitutional Court examined compatibility of regulation that envisaged recognising immoveable property as being criminally acquired and returning it to the person, who had lost it as the result of a criminal offence, with the Satversme. The Constitutional Court underscored that by returning property, which had been recognised as being criminally acquired, to the person, who had lost it as the result of a criminal offence, justice was restored and protection of the victim’s rights was ensured.[35] Thus, the principle of public credibility, inter alia, the principle of protecting a bona fide acquirer, is applicable only in case, if the actions by parties are not based upon illegal acts. A situation, were property that has left civil law possession due to a criminal offence returns to civil turnover may not exist. If the criminally acquired property was legally owned by someone before this offence, the criminal offence may not be justification for losing the title to this property.[36]
The right to freedom of speech
Article 100 of the Satversme provides: “Everyone has the right to freedom of expression, which includes the right to freely receive, keep and distribute information and to express his or her views. Censorship is prohibited.” The Constitutional Court has examined compatibility of legal norms with Article 100 of the Satversme in two cases[37].
The Constitutional Court has underscored previously that the initial historical task – to protect a person from ungrounded interference by the State in the area of his freedom – could be discerned in the content of the right to freedom of speech.[38] In case No. 2015-01-01 and case No. 2015-06-01 the Constitutional Court specified the content of the rights established in Article 100 of the Satversme.
In case No. 2015-01-01 the Constitutional Court examined, whether the norm of the law “On National Flag of Latvia”, setting the obligation to place the national flag of Latvia on buildings of public persons, buildings of legal persons and associations of persons of private law, as well as on residential buildings on ten days per year, five of which – in mourning presentation, complied with Article 100 of the Satversme. The Administrative Violations Code envisaged an administrative penalty for failure to perform this obligation.
The Constitutional Court found that using the flag in a symbolic meaning had to be considered as manifestation of the freedom of expression. Therefore placing the national flag of Latvia on a building owned by a natural person also is one manifestation of this freedom of expression.[39] The Constitutional Court also noted that placing a flag on a residential building owned by a natural person or the choice not to do so also fell within the scope of the first sentence of Article 100 of the Satversme.[40] Thus, two aspects of the freedom of speech must be differentiated between: the positive one (an individual’s right to freely obtain and disseminate information, to express his opinion publicly orally, in writing, visually, with the help of artistic means of expression, and in other legal ways) and the negative one (the right to retain information, to adhere to one’s opinion and not express it).[41] In this case the Constitutional Court for the first time characterised the negative aspect of the freedom of speech.
In addition to that, in case No. 2015-01-01 the Constitutional Court described the importance of the national flag of Latvia. The national flag of Latvia marks historical events, which are of particular importance in the foundation and existence of the State of Latvia. Thus, the national flag of Latvia as the symbol of the State is an indispensable element of the constitutional and international identity of the Latvian State. The national flag as the symbol of the State has an important role in creating and reinforcing awareness of statehood in all stages of the national history.[42] In case No. 2015-01-01 the Constitutional Court for the first time made a reference to the Preamble of the Satversme, which provided and extensive explanation of the history of founding the State of Latvia, its values and aims.
The obligation to place the national flag of Latvia on residential buildings has been established with the aim of strengthening the democratic order of the State, immediately and simultaneously informing society about historical events that are significant for existence of the Latvian State. Thus, awareness of statehood is reinforced in democratic circumstances. Therefore the Constitutional Court concluded that the civic duty to place the national flag of Latvia on residential building brought significant benefit to society as a whole. The fact that a penalty is envisaged for failure to place the national flag of Latvia on residential buildings owned by natural persons on the days established by the Saeima changes the nature of the restriction imposed upon an individual’s fundamental rights. I.e., there is a valid possibility that the national flag of Latvia is placed on residential buildings because of the punishment rather than to commemorate historical events, which are significant for the State of Latvia. The Constitutional Court underscored that in democratic state alongside imperative measures also pre-conditions of general nature for voluntary performance of civic duties should be created that were primarily based not upon fear of punishment, but on the awareness of statehood and found appropriate manifestation in an individual’s actions and conduct. If the legal order existing within a state ensures that an individual is not punished for legally expressing his opinion or not expressing it, then optimum legal environment for an individual’s self-expression is ensured.[43] Thus, the Constitutional Court recognised that the obligation established by the law “On National Flag of Latvia” was proportionate and complied with Article 100 of the Satversme. However, the punishment for not placing the national flag of Latvia on buildings owned by natural persons was recognised by the Constitutional Court as being disproportionate and incompatible with Article 100 of the Satversme.
Article 100 of the Satversme defines not only the right to express one’s opinions freely and to disseminate information, but also to freely obtain information.[44] In Case No. 2015-06-01 the Constitutional Court examined, whether restrictions could exist regarding acquisition information about initiation of a disciplinary case against a judge and access to materials of a disciplinary case. In this case the Constitutional Court underscored that persons did not have comprehensive right to access information at the disposal of state institutions.[45] However, restrictions upon the freedom of speech must be interpreted narrowly, and the legislator should provide appropriate and sufficient substantiation for the need of a restriction like that.[46]
Information about functioning of the judicial power is to be recognised as being information in the public interests. Information about functioning of the judicial power should, first and foremost, be understood as the institutional structure of the judicial system, courts and jurisdiction thereof, cases adjudicated in courts, principles and procedure for reviewing cases, as well as final rulings in these cases, judges, the procedure for appointing or confirming them.[47] In view of the importance of the judicial power in a democratic society and the functions that have been entrusted to the judicial power, everyone should be ensured the right to obtain information freely about functioning of the judicial power. Moreover, this right and the procedure for exercising it must be established in regulatory enactments.[48]
The regulation included in law prohibits a person from obtaining from a decision on initiation of a disciplinary case or from materials of a disciplinary case fully unverified information about a particular judge or a possible violation committed by him. If information about the judge is not available before the final decision is adopted in a disciplinary case, then this fully unverified information cannot be used, inter alia, to request recusal of a judge in particular legal proceedings. Thus, a possibility is prevented that acquisition of fully unverified information linked to a possible disciplinary violation committed by a judge, would have a negative impact upon a judge in legal proceedings and would diminish authority of the judicial power.[49] The final decision adopted in a disciplinary case, rather than a decision on initiating this case or materials of the case, should ensure certainty that any judge, who has committed a disciplinary violation, would be made liable in accordance with law. Therefore it is the final decision that should be accessible to everyone.
Until the final decision is adopted in a disciplinary case, however, increased protection should be ensured to a judge’s independence and authority of the judicial power, because usually a judge continues performing his duties of office and is not recused while his disciplinary case is being reviewed.[50] In case No. 2015-06-01 the Constitutional Court noted that maintaining authority of the judicial power was in public interests. The benefit gained buy society by retaining authority of the judicial power, while a disciplinary case was being reviewed, outweighed the damage inflicted upon an individual by restricting his right to obtain information that had not been fully verified on a possible disciplinary violation committed by a judge. Thus, the Constitutional Court recognised the norm that was contested in case No. 2015-06-01 as being compatible with the first sentence of Article 100 of the Satversme.
It must be noted that in this category of cases the Constitutional Court has expanded the construction of a legitimate aim, by pointing out that the aim of a restriction upon the fundamental right to freedom of speech is to be recognised as being legitimate only if complies not only with the aims defined in Article 116 of the Satversme, but also those referred to in Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter – the Convention), for the purpose of which the freedom of speech may be restricted.[51]
The right to inviolability of private life
A finding has been consolidated in the case law of the Constitutional Court that the right to inviolability of private life enshrined in Article 96 of the Satversme protects the physical and mental integrity of an individual, honour and dignity, name and identity, as well as personal data.[52]
In case No. 2015-14-0103 the Constitutional Court examined, whether collection of biological material for inclusion in the National DNA Database was compatible with Article 96 of the Satversme. It must be noted that the Constitutional Court examined the particular legal provisions insofar these applied to suspects. The Constitutional Court concluded that acquiring and storing of persona data fell within the scope of the right to inviolability of private life.[53] Thus, both the biological material of an identified person and new units of information created in the process of examining it, as well as the result of DNA genetic examination (a DNA profile), saved in a particular form (computer readable) were to be recognised as being personal data in the meaning of Article 96 of the Satversme. At the same time a DNA profile is also to be considered as being sensitive personal data. In this judgement the Constitutional Court explained the meaning and aim of establishing a DNA profile, as well described the methods used to obtain a DNA profile. The legislator should create such mechanism for protecting personal data that would ensure full compliance of the rules for data storage with the envisaged aim of data processing. The Constitutional Court found that with respect to rules on storing and deleting the biological material and DNA profile of a suspect the legislator had failed to perform its duty[54]. I.e., the legislator has not ensured all necessary safeguards with respect to deletion of sensitive data to a person, who had been a suspect in criminal proceedings, after this status had been revoked. Thus, the Constitutional Court recognised that the norms contested case No. 2015-14-0103 were partially compatible with the Satversme and set a transitional period to allow the legislator to adopt a new regulation that would ensure protection of suspects’ sensitive data.
In case No. 2015-18-01 the Constitutional Court examined publication of personal data on an Internet webpage. The Maintenance Guarantee Fund has been established in Latvia. This fund disburses maintenance payments to a child, if parents are not paying these from their own resources. The law provides that the administration of the Maintenance Guarantee Fund publishes information about debtors (name, surname, the second part of the personal identity code, and the year of birth) on its website. Publication of this information might reveal to third persons that a child’s parents had had a dispute with respect to child maintenance and that one of them is refusing to fulfil a court’s decision voluntarily and that maintenance is paid instead of him by the State from the Maintenance Guarantee Fund. The legislator held that information about a debtor was published with the aim of protecting the rights of a child and to promote performance of parental duty – paying maintenance, as well as responsible and honest meeting of commitments. In this case the Constitutional Court noted that in attempting to find a balance between the rights of a child and the rights of a person, who was not performing his duty, a child’s fundamental rights should prevail.[55] Therefore the restriction was to be recognised as proportionate with respect to the debtor. However, the contested norm places a disproportionate restriction upon children’s right to private life, because by identifying a debtor’s child, information accessible to third persons may point to some aspects in the relations between the child and the parent, as well as other aspects of family life. If information like this comes at the disposal of third persons, it can create adverse consequences for the child, for example, subject him to the risk of emotional abuse, create feelings of discomfort, and facilitate social isolation. Thus, the Constitutional Court arrived at the conclusion that protection of the fundamental rights granted to a debtor’s child by Article 96 of the Satversme could be ensured only by recognising the whole regulation, which was included in the contested norm, as being incompatible with the Satversme.
The right to freely choose one’s vocation and workplace in accordance with one’s abilities and qualification
Within the reporting period the Constitutional Court reviewed compatibility of regulation with Article 106 of the Satversme[56] in two cases.
In case No. 2016-06-01 a constitutional complaint was submitted by a person, whose special permit to access official secrets had been annulled, and therefore the submitter of the constitutional complaint had to leave his position as the Director of Security Department of a state stock company. Therefore the Constitutional Court had to examine, whether the refusal to issue a special permit restricted a person’s right to choose or to retain a workplace, as defined in Article 106 of the Satversme.
The Constitutional Court has repeatedly recognised that the Satversme does not guarantee directly the right to work, but rather the right to choose freely one’s vocation and workplace, inter alia, also the right to retain the current vocation and workplace. Thus, the right to choose freely one’s vocation comprises such an essential element as the right to retain one’s current vocation, which, in turn, includes the right to continue working in this vocation also in the future.[57] After annulment of a special permit a person no longer meets one of the qualification requirements, but compliance with it is mandatory for a person to continue performing his current job; i.e., a person no longer has access to official secrets and cannot perform his duties of office. Whereas the prohibition to apply repeatedly for a special permit restricts a persons right to choose freely his workplace in the future. The right to “freely choose”, included in Article 106 of the Satversme requires ensuring to a person the possibility to choose, however; it does require ensuring to everybody the possibility to work, moreover, to do exactly the job that he wants to. The concept “choose” in this Article is to be interpreted as a person’s conscious and purposeful action, not just an internal decision.[58] In case No. 2016-06-01 the Constitutional Court concluded that the legitimate aim of prohibiting a person from retaining his current workplace, as well as freely choose workplace in the future when a special permit is annulled was linked to the need of protecting public security. I.e., the legislator’s aim was to prevent the possibility that official secrets were accessed by a person, who might jeopardize national security interests. It is noted in the judgement in case No. 2016-06-01 that the restriction by which a person, in case his special permit was annulled, had to be immediately transferred to a job that was not linked to official secrets was appropriate for reaching the legitimate aim, moreover, no measures that would be less restrictive upon a person’s rights and would attain the legitimate aim in the same quality were available.[59]
The issues related to the content and scope of Article 106 of the Satversme gained relevance in constitutional legal proceedings because the legislator had introduced amendments to a law, envisaging that as of 1 January 2016 administrators of insolvency proceedings in their official capacity would be equalled to public officials. A number of advocates, who combine their work as advocates with duties of an administrator of insolvency proceedings, turned to the Constitutional Court contesting constitutionality of this regulation. Submitters of the constitutional complaint held that the status of a public official prohibited them for acting both as administrators of insolvency proceedings and advocates in the future. They alleged that this restricted their right, established in Article 106 of the Satversme, to choose freely vocation and workplace, and was incompatible with the principle of legal expectations. In this case the Constitutional Court concluded that the first sentence of Article 106 of the Satversme did not prohibit the State from setting requirements that had to be met to engage in a certain vocation. The right to choose freely one’s vocation, inter alia, the right to retain one’s current vocation, may be restricted; however, the respective restriction must comply with one of the legitimate aims defined in Article 116 of the Satversme and must be proportionate. In assessing, whether such regulation restricted fundamental rights of submitters of the constitutional complaint, the Constitutional Court verified, what the new restrictions, prohibitions and obligations created by the status of a public official were and whether these did not collide with the principles of advocates’ independence and confidentiality.
The Constitutional Court found that submitters of the constitutional complaint as public officials in their professional activities had to perform such obligations and comply with restrictions that jeopardised the right they had acquired to act both as administrators of insolvency proceedings and advocates.[60] For example, a situation might arise, where the principle of confidentiality binding upon an advocate prohibits requesting information not only about the content of legal assistance provided by him, but also about particular persons, to whom this assistance has been provided. The obligation set for a public official to include in his declaration information about agreements that have been concluded and about parties to these agreements, as well as income and sources thereof may collide with the principle that an advocate’s work is confidential, because this would disclose information that the advocate had provided legal assistance to a particular person.[61] Therefore the Constitutional Court found that the applicants’ right defined in the first sentence of Article 106 of the Satversme to retain their current vocation was restricted by the contested norms. The Constitutional Court noted that the legislator, in amending regulation on supervising activities of administrators of insolvency proceedings, had to choose such measures for attaining the legitimate aim that would ensure that fundamental rights of also such administrators, who were also advocates, were protected. The Constitutional Court noted that in the case under review more lenient measures could be, for example, envisaging exemptions with respect to such prohibitions set for a public official, which were incompatible with guarantees for professional activities of an advocate. Likewise, adverse consequences with respect to submitters of the constitutional complaint could be mitigated by envisaging differential regulation with respect to submitting a public official’s declaration.[62] Thus, in case No. 2015-03-01 it was concluded that measures existed that concurrently with equalling administrators to public officials could ensure to those persons, who were not only administrators of insolvency proceedings, but also advocates, safeguards to their professional activities for retaining the chosen vocation. Thus, the Constitutional Court recognised that the norms contested in case No. 2015-03-01 were incompatible with the principle of proportionality, insofar they did not ensure to administrators, who at the same time were also advocates, safeguards to their professional activities for retaining the chosen vocation.
It must be pointed out that in case No. 2015-03-01 also important issues of legal proceedings before the Constitutional Court were dealt with. Namely, the Constitutional Court examined the request made by submitters of the constitutional complaint to apply a temporary measure until the judgement by Constitutional Court came into force – to suspend the contested legal norms. In this case the Constitutional Court found that the request to suspend the contested norms was not an unregulated procedural issue, because the legislator had not envisaged any other temporary legal remedies than suspending enforcement of a court’s ruling.
A constitutional complaint regarding the regulation that envisaged equalling administrators of insolvency proceedings to public officials was submitted to the Constitutional Court also by a number of administrators of insolvency proceedings, who combined the office of an administrator with work in other fields, inter alia, providing legal advice and performing duties of a sworn auditor. Submitters of the constitutional complaint requested examining, whether the contested norms envisaged differential treatment of administrators of insolvency proceedings depending upon their affiliation with the profession of an advocate and whether this did not cause a violation of the principle of equality enshrined in the first sentence of Article 91 of the Satversme. In examining the contested norms in interconnection with the findings expressed in judgement by the Constitutional Court in case No. 2015-03-01 and interpreting systemically the principle of equality defined in the Satversme, the Constitutional Court found that administrators of insolvency proceedings, who were also advocates, and administrators of insolvency proceedings, who combined their professional activity with other vocations of the private sector, inter alia, qualified lawyers and sworn auditors, were in different and incomparable circumstances. Since the obligation to envisage equal treatment of persons, who are in different and incomparable circumstances, does not follow from the equality principle, legal proceedings in this case could not be continued.[63]
The Constitutional Court examined various restrictions that followed from the regulation on preventing conflict of interest in activities of public officials also in case No. 2015-10-01 and case No. 2015-22-01.
In case No. 2015-10-01 and in case No. 2015-22-01 the Constitutional Court noted that the status of a public official was characterised by a special relationship of trustworthiness and loyalty with the State. The requirement regarding special trustworthiness and loyalty is the basis for restrictions linked to the status of a public official, which per se cannot be regarded as being disproportionate from the perspective of equality principle. However, in some cases insufficient differentiation of groups of persons, who are in different actual situations, may cause a violation of the principle of equal treatment.
The principle of legal equality
Within the reporting period the Constitutional Court examined compatibility of a legal norm with the principle of legal equality enshrined in the first sentence[64] of Article 91 of the Satversme in seven cases.
In case No. 2015-10-01 and case No. 2015-22-01 the Constitutional Court examined a legal norm that prohibited a judge, as a public official, to be an assistant to his disabled family member, including also a disabled child. The law “On Preventing Conflict of Interest in Activities of Public Officials” defines offices and types of occupation, which may be combined with the office of a public official (also – a judge’s office). This law prohibits a judge from providing services of an assitant to his family members or a disabled child, because it is not allowed to combine provision of these services with a judge’s office. In case No. 2015-10-01 and case No. 2015-22-01 the Constitutional Court had to examine, whether all persons, who provided an assistant’s services to their family members or a disabled child, should have equal rights to provide an assistant’s services and to receive for it payment established by the State. The Constitutional Court found that a legal norm applied equally to all officials, judges including, without recognising any differences. Thus, the legal norm per se is neutral towards all judges. However, it places a judge in a different situation, if he needs to provide assistant’s services to his family members or a disabled child. The Constitutional Court recognised that also a neutral regulation or criterion may cause differential treatment of a group of individuals, which can be identified by a certain characteristics. The principle of equality defined in the first sentence of Article 91 of the Satversme applied also to such cases. Therefore the Constitutional Court developed the understanding of the equality principle in the case of neutral legal regulation. In case No. 2015-10-01 and in case No. 2015-22-01 the Constitutional Court found that the contested norm had a legitimate aim; i.e., by restricting the fields of a judge’s activities, the norm ensured transparency of a judge’s activities as a public official and accountability to society, as well as independence of the judicial power in a democratic state. Thus, the norm protects rights of other persons and democratic structure of the State. However, in a situation, where the norm prohibits a judge from providing assistant’s services to his family members or a disabled child, the contested norm is not appropriate for reaching the legitimate aim.
In case No. 2015-11-03 the Constitutional Court found that members of the same market were in similar and according to certain criteria comparable circumstances. In this case the Constitutional Court had to establish, inter alia whether capital companies engaged in buying and selling of foreign currency cash, and credit institutions, providing services of buying and selling cash as one type of financial services, were in similar and in accordance with certain criteria comparable circumstances. The Constitutional Court found that the subjects belonging to the two groups were capital companies engaged in the same field, i.e., in the market of services of buying and selling cash, and their services were mutually substitutable, and they were to be considered as being competitors. Thus, the Constitutional Court had to examine, whether the norms contested in case No. 2015-11-01 envisaged differential treatment of groups of persons, who were in similar and according to certain criteria comparable circumstances.[65]
Issuing external regulatory enactments
Pursuant to Article 64 of the Satversme the right to legislate, i.e., to regulate a matter by law is vested in the Saeima, as well as the people, in the procedure and scope defined by the Satversme. The legislator in the process of legislating decides on those matters, which it considers to be most important, and authorises the Cabinet of Ministers or other state institution to issue legal norms that are necessary to enforce laws. Therefore the Constitutional Court often must assess, whether the legislator has authorised in due procedure a subject of executive power to issue external regulatory enactments. Within the reporting period the Constitutional Court examined the rights of the Cabinet of Ministers, the Bank of Latvia and of local governments to issue external regulatory enactments.
Ultra vires doctrine is applicable to compliance of regulatory enactments issued by an institution authorised by the legislator with norms of higher legal force – inter alia, to cases, where the right to issue external regulatory enactments (binding regulations) by the legislator’s authorisation has been granted to the Cabinet of Ministers, the Bank of Latvia or local governments. If the legislator has authorised an institution of executive power to issue external regulatory enactments, then the Constitutional Court must establish the purpose and content of the authorising norm and of the contested norms, and also, whether the executive power has not exceed the scope of authorisation granted to it.
In Case No. 2015-05-03 the Constitutional Court noted that authorisation granted by the legislator meant that the executive power, in exercising it, had to act within the framework of the legal system. Therefore the executive power, in adopting the contested norm, must take into account the specifics of the particular field that it has been tasked by the legislator to regulate within the framework of a number of laws[66]. Thus, the Constitutional Court expanded the definition of authorisation, indicating that authorisation could follow from a number of regulatory enactments.
In case No. 2015-11-03 the Constitutional Court examined compliance with the Satversme of a norm in a regulation by the Bank of Latvia with respect to buying and selling foreign currency cash. In this case the Constitutional Court noted that in accordance with the principle of separation of powers adoption of laws with respect to any issue of national politics fell within the jurisdiction of the legislator. However, to make the process of legislation more effective, also institutions of public administration, inter alia, autonomous institutions in certain cases have the right to adopt external regulatory enactments. The Bank of Latvia has the right to issue external regulatory enactments in accordance with authorisation granted by the Saeima only in its field of competence granted to it by law with respect to a concrete range of subjects.[67] The law provides exhaustive regulation on those cases, where credit institutions and capital companies engaged in buying and selling cash must identify their clients. The Bank of Latvia, however, had adopted norms that defined a new case for identifying a client. Therefore the Bank of Latvia had exceeded the authorisation granted to it by the legislator.[68]
In case No. 205-13-03 the Constitutional Court noted that the legislator could transfer deciding on some matters into the jurisdiction of local authorities. Thus, also a council of a local government, within the limits of authorisation, has the right to issue generally binding (external) regulatory enactments. However, a local government council does not enjoy the legislator’s discretion and it has the right to issue external regulatory enactments only in the cases and in the scope defined in laws.[69] Establishing restrictions upon fundamental rights without clear authorisation by the legislator is inadmissible. In exercising authorisation, restrictions upon a person’s fundamental rights must be avoided, unless the authorising norm does not directly point to the need for restrictions.[70] Whereas in case No. 2016-13-01 the Constitutional Court underscored that legal norms that regulated a local government’s discretion in performing its autonomous functions had to comply with the Satversme.[71] In this case the Constitutional Court examined, whether the Cabinet of Ministers, in adopting norms that restricted the discretion of a local government in performing its autonomous functions, had abided by authorisation granted by the legislator and had not acted ultra vires.
It has been consistently recognised in the case law of the Constitutional Court that legal norms that have been adopted ultra vires are to be recognised as being unlawful and invalid as of the moment of adoption. With respect to such cases it must be presumed that the anti-constitutional legal norm has never been in force, because it has not been adopted in due procedure and therefore cannot cause legal consequences.[72]
Dimension of the European Union law
The Constitutional Court has emphasized that the Latvian legal acts must be interpreted in a way that would not lead to collision with Latvia’s commitments vis-à-vis the European Union (hereinafter – the EU), unless it does not affect the basic principles included in the Satversme.[73] In the majority of cases courts of general jurisdiction, which are using the system of preliminary ruling rather actively, deal with the issues of applying and interpreting norms of the EU law. Thus, quite often, the matter of EU law has been resolved before the case reaches the Constitutional Court.[74]
Rulings by the Constitutional Court are not subject to appeal, therefore if the outcome of a case depends upon interpretation of an EU legal act, the Constitutional Court must verify, whether the particular matter has not already been explained by the Court of Justice of the European Union (hereinafter – CJEU), whether the provisions established by the respective legal acts are sufficiently clear not to cause any reasonable doubt, and decide, whether a preliminary ruling by CJEU is required.[75]
The Constitutional Court has received a request to turn to CJEU a couple of times.[76] Previously the Constitutional Court rejected the request to turn to CJEU, because it held that a decision on the particular matter was not necessary for the Constitutional Court to adopt its ruling.[77] For example, in case No. 2014-36-01 the Constitutional Court had to be establish, what the content of EU norms on granting state aid to commercial companies experiencing financial difficulties was, as well as to analyse a decision by the European Commission on state aid. Thus, the Constitutional Court had to consider, whether it was necessary to request a preliminary ruling by CJEU on interpretation of the EU legal norms. The Constitutional Court noted that the State, upon providing financial assistance to a commercial company experiencing financial difficulties, had to take into account the requirements set in the Satversme and the EU legal norms, inter alia, in the decisions by the European Commission on state aid, and it should also control the way in which in the invested financial resources were used and recovered.[78] The Constitutional Court held that there was no doubt regarding correct interpretation and application of the EU legal norms in case No. 2014-36-01, and, thus, it was not necessary to request a preliminary ruling.
Whereas in case No. 2016-04-03 the Constitutional Court established that there were doubts regarding interpretation of the Council Regulation (EC) No. 1257/1999 of 17 May 1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) and amending and repealing certain Regulations (the norms prohibited member states to include in their regulatory enactments the institution of inheriting early retirement support). Therefore the Constitutional Court adopted a decision on requesting a preliminary ruling from CJEU.
After 2004, when Latvia became a Member State of the European Union, no amendments were introduced to the Constitutional Court Law in connection with Latvia’s accession to the EU. Thus, neither the Constitutional Court Law, nor the Rules of Procedure of the Constitutional Court envisage expressis verbis regulation for a case, where the Constitutional Court finds that a decision on requesting a preliminary ruling from the CJEU is required. Thus, the Constitutional Court had to decide on an unregulated procedural matter and establish a procedure for adopting a decision on requesting a preliminary ruling from CJEU. The Constitutional Court found that this decision could be adopted by the majority of Justices in the panel. The Constitutional Court also concluded that legal proceedings in the case under review had to be suspended until the ruling by CJEU entered into force.
The principles of functioning of the pension system
The Constitutional Court has developed case law on assessing compliance of pension system rules with legal norms of higher legal force. I.e., in examining rules of functioning set for the pension system and calculation of pensions, the Constitutional Court has concluded that in the field of social rights Article 109 of the Satversme[79] ensures to a person a greater scope of rights’ protection compared to Article 105 of the Satversme[80]. Therefore the finding has been enshrined in practice that there is no need to assess separately compliance of a legal norm issued in the field of social rights with Article 105 of the Satversme, if it complies with Article 109 of the Satversme.[81] Thus, if a legal norm issued in the field of social rights falls within the scope of both Article 105 and Article 109 of the Satversme, then its compliance with Article 109 of the Satversme must be examined. Quite often submitters of constitutional complaints request assessing compliance with rules of the pension system and procedure for calculating pension with the principle of equality included in the first sentence of Article 91 of the Satversme.
Within the reporting period the Constitutional Court had to examine in case No. 2015-21-01, whether by allowing to apply to the updating of pension capital such salary ration of insurance contributions that was smaller than “1” and by envisaging that such pensions would be updated depending upon the state budget possibilities the first sentence of Article 91, Article 105 and Article 109 of the Satversme had not been violated. It followed from the case materials that in those cases, where pension was calculated for those years, when the annual salary ratio of insurance contributions, used for updating pension capital, was larger than “1”, i.e., to persons who had retired in 2009 or before, the pension capital was not decreased. However, in 2009, 2010 and 2011 the index was smaller than “1”, therefore to persons who retired in 2010 or later the pension capital was decreased. The applicants held that this regulation envisaged differential treatment of persons, depending upon the time when they retired. Thus, in case No. 2015-21-01 it had to establish, first and foremost, if the Satversme provided for a person’s right to have his pension capital updated by applying a ratio and whether decreasing of pension capital in this procedure was admissible.
In case No. 2015-21-01 the Constitutional Court noted that this contested regulation did not define the concrete annual ratio, but allowed application of different annual ratios, insofar these had been calculated in the procedure established by the Cabinet of Ministers and were not incompatible with other provisions of the law “On State Pensions”. Thus, the regulation contested in case No. 2015-21-01 did not “envisage”, but “allowed” using in updating pension capital a ratio that was smaller than “1”.[82] The Constitutional Court held that contributions made to the state social insurance system was the feature that united all participants of the state pension system and gave them the right to expect that they would receive pension in the procedure established in regulatory enactments. Although the length of period of work and the amount of social contributions made could be similar, it is, nevertheless, calculated for each person individually. Thus, to a certain extent, each participant of the state pension system is unique. The fact alone that groups of persons that are comparable according to some criteria have made contributions to the state social insurance system does not mean that all these persons are in similar and comparable circumstances. These groups of persons may have also significant different features that prohibit from comparing these groups. Therefore the principle of equality does not always require the State to ensure to all persons identical procedure for calculating pension.[83]
In case No. 2015-21-01 the Constitutional Court also underscored that Article 109 of the Satversme did not specify rules of pension system. Therefore Article 109 of the Satversme does not impose upon the legislator an obligation to organise the pension system in a particular way, inter alia, providing that the ratio used to update pension capital may not be smaller than “1”. The law “On State Pensions” together with legal acts subordinated to it constitute the state social insurance system, in the framework of which each person may receive an old-age pension that corresponds to the contributions made by him. The procedure for indexing pension capital defined in law does not restrict a person’s access to the social insurance system established by the State. Thus, the legislator has taken measures to ensure to persons the possibility to exercise their social rights. Moreover, the regulation on calculating pensions that is currently in force ensures that each person has guaranteed rights to social security in at least the minimum amount.[84]
It must be noted that in case No. 2015-21-01 the Constitutional Court also defined the criteria for cases, when it should be considered that in the context of state pensions and benefits the right to property was restricted. I.e., a restriction upon the right to property would exist only if:
1) disbursement to a person of an already granted state pension or benefit would be totally discontinued;
2) the disbursement to a person of an already granted state pension or benefit would be discontinued for a definite or indefinite period or the amount of an already granted state pension or benefit would be decreased;
3) legal norms were amended and as the result the amount of a state pension or benefit that had not yet been established, but which the person had grounds to expect, would be decreased.[85]
In addition to that the Constitutional Court emphasized in case No2015-21-01 that per se Article 105 of the Satversme did not create the State’s obligation to ensure a concrete state pension or benefit, nor did it set the amount of pensions and benefits.
Whereas in case No. 2015-23-01 the Constitutional Court examined, whether regulation that provided that the old-age pension to be granted instead of service pension could be granted in the amount that is smaller than the service pension received until the moment of granting the old-age pension envisaged differential treatment of persons, depending upon the time, when the service pension was granted. in this case the Constitutional Court adopted a decison to terminate legal proceedings, because the contested norm had become innvalid, i.e., the legislator introduced amendments to the law and added to the law provisions on granting an old-age pension to a person instead of the previously granted service pensions regulation with new content.
The Constitutional Court terminated legal proceedings in case No. 2016-03-01 on recalculating pension, when a person had been granted a pension by another state. On the basis of the provisions contested in case No. 2016-03-01 the State Social Insurance Agency re-calculated pensions to be disbursed, by decreasing the amount of old-age pension or totally discontinuing disbursement thereof to former military personnel of the USSR. Submitters of the constitutional complaint requested recognising this regulation as being incompatible with Article 1, Article 91, Article 105 and Article 109 of the Satversme, insofar the contested norm was applicable to re-calculation of pensions in cases, where the old-age pension of Latvia and the pension of another state had been granted before the norm contested in case No. 2016-03-01 had entered into force. Materials of case No. 2016-03-01 proved that drafting and adoption of the contested norm was closely linked to pensions granted by the Republic of Latvia and the Russian Federation for the same social insurance period or a period equalled to it. Therefore the Constitutional Court examined compliance of the contested norm with the Satversme in interconnection with commitments of states, defined in the international agreement approved on 24 November 1994 “Agreement between the Government of the Republic of Latvia and the Government of the Russian Federation on the Social Security of Military Pensioners of the Russian Federation and their Family Members Residing in the Territory of Latvia”. I.e., the Russian Federation has assumed responsibility for social security of the former military personnel in accordance with legal acts in force in the Russian Federation. To ensure that everyone within the territory of Latvia could exercise his right to social security, the Republic of Latvia has concluded an agreement with the Russian Federation. In analysing this international agreement, the Constitutional Court found that persons had never had subjective right to receive pensions granted by a number of states for the same social insurance period or a period equalled to it. Such right does not follow from conditions of international agreement, and neither is it protected by Article 109 of the Satversme. Thus, also exclusion of double social insurance periods from a peron’s period of social insurance and following re-calculation of pension does not cause a restriction upon a person’s fundamental rights established in Article 109 of the Satversme. Also in this case the Constitutional Court advanced the thesis: if a violation of fundamental righs enshrined in Article 109 of the Satversme cannot be established, then there are no grounds to consider that the contested norm would restrict also the right to property enshrined in Article 105 of the Satversme. In addition to this, the Constitutional Court found that the principle of equality did not require ensuring to a group of persons the right to receive two pensions for the same social insurance period. It must be also noted that in case No. 2016-03-01 the Constitutional Court specified a source of the general principles of law, by noting that general principles of law that were derived from the basic norm of a democratic state governed by the rule of law fell within the scope of Article 1 of the Satversme.
Also in case No. 2016-11-01 the Constitutional Court had to deal with a matter regarding application of acts issued by the USSR, in granting the right to early retirement. In the framework of this case a person requsted to be granted old-age pension five years before reaching the retirement age defined in law, because she had cared for a disable child for more than eight years. The legal norm set the requirement to establish that the child’s disability status had been recognised according to the criteria for recognising disability at the time when care was taken of him. It must be noted that the respective legal norm comprised a reference to the legal regulation of the USSR, which obviously lagged behind general processes in protecting the rights of disabled children and members of their families. In this case the Constitutional Court underscored that legal regulation of another state, i.e., the USSR, on recognising the disability status of children considerably differed from the principles of protecting the rights of disabled children and members of their families enshrined in international law, as well as the regulation of a democratic state governed by the rule of law, i.e., that of Latvia. Such criteria defined by a totalitarian state may not be the grounds for depriving a person from rights that are ensured to a person, who is in similar and comparable circumstances.[86] Thus, the Constitutional Court recognised this regulation as being incompatible with the Satversme.
Summary
1. The reporting period proves that numerous relevant issues of constitutional law are dealt with in judgements by the Constitutional Court. I.e., the Constitutional Court has passed judgements on issues that pertain to constitutional identity and European integration, as well as issues that pertain to possibility of developing a modern legislative process.
2. The issues that are dealt with in constitutional legal proceedings always reflect the level of respecting the rule of law and human rights in the respective state. The rulings made in the reporting period prove that the Constitutional Court has ensured a high standard of human rights protection.
3. An important issue in the field of constitutional law was analysed in case No. 2015-11-03. In this case the Constitutional Court examined, whether institutions of public administration, inter alia, autonomous institutions, in certain cases had the right to issue external regulatory enactments. The theses proposed in case No. 2015-13-03, in turn, expand understanding of authorisation granted by the legislator to a local government council to issue external regulatory enactments. The right of the Cabinet of Ministers to issue external regulatory enactments was analysed in case No. 2015-05-03.
4. In a number of cases the Constitutional Court established that clarification of the content of norms of the European Union law and application thereof had an important role in examining a case. Thus, in the framework of constitutional legal proceedings, by using the procedure of preliminary ruling, a dialogue with the Court of Justice of the European Union needs to be developed.
5. The Constitutional Court has significantly expanded the findings on inviolability of private life, in particular, personal data protection. A method for ensuring a balance between a person’s right to privacy and public interests can be found in the judgements by the Constitutional Court.
6. New theses on the content of Article 91 of the Satversme are included in judgement in case No. 2015-10-01; i.e., the Constitutional Court developed understanding of the equality principle in the case of neutral legal regulation. New findings regarding negative freedom of expression were expressed in case No. 2015-01-01.
7. In case No. 2015-03-01 and case No. 2015-15-01 significant issues of legal proceedings before the Constitutional Court were dealt with. I.e., the Constitutional examined a request by submitters of a constitutional court on applying a temporary legal remedy – suspending legal norms – until the judgement by the Constitutional Court entered into force. The Constitutional Court found in both cases that the request to suspend legal regulation was not an unregulated procedural matter, because the legislator had not envisaged other temporary legal remedies apart from suspending the enforcement of a court’s ruling.
8. It is characteristic of the reporting period that the Constitutional Court has developed interpretation of norms of the Satversme provided in its previous rulings. For example, the Constitutional Court has specified the scope of the right to property included in Article 105 of the Satversme and has elaborated findings on the right to a fair trial. Whereas in case No. 2015-01-01 and case No. 2015-06-01 the Constitutional Court specified the content of rights defined in Article 100 of the Satversme.
9. The Constitutional Court, in examining rules on the functioning of pension system and procedure for calculating pension, has developed a method that allows reaching a balance between the right to social security and public interests.
[1] On 15 October 2015 the Saeima confirmed Daiga Rezevska as the Justice of the Constitutional Court. Daiga Rezevksa commenced performing her official duties on 26 April 2016. On 22 December 2016 Jānis Neimanis and Artūrs Kučs were confirmed as Justices of the Constitutional Court. Jānis Neimanis entered in office on 3 April 2017, whereas Artūrs Kučs – on 21 April 2017.
[2] Judgment of 5 March 2002 by the Constitutional Court in Case No. 2001-10-01, Para 2 of the Findings
[3] Judgement of 28 September 2016 by the Constitutional Court in Case No. 2016-01-01, Para 10.3.
[4] Judgement of 15 November 2016 by the Constitutional Court in Case No. 2015-25-01, Para 19
[5] Judgement of 15 November 2016 by the Constitutional Court in Case No. 2015-25-01, Para 19
[6] Judgement of 10 February 2017 by the Constitutional Court in Case No. 2016-06-01, Para 17.2
[7] Para 4 of Section 20 (5) of the Constitutional Court Law provides that the Constitutional Court may refuse to initiate a case, if an application has been submitted regarding a claim that already has been adjudicated. Hence, the Constitutional Court must examine, whether the application to be reviewed has not been submitted regarding a claim that already has been adjudicated. In its rulings thus far the Constitutional Court has interpreted and applied Para 4 of Section 20 (5) of the Constitutional Court Law in those cases, where the Constitutional Court was requested to examine constitutionality of such legal norm, the compliance of which with the Satversme already had been examined in a previous judgement. In deciding, whether the respective issue is “an already adjudicated claim”, both the substantive part of the respective judgement and the findings made in the judgement must be taken into account.
[8]Judgement of 29 April 2016 by the Constitutional Court in Case No. 2015-19-01, Para 10.3
[9] Judgement of 29 April 2016 by the Constitutional Court in Case No. 2015-19-01, Para 12.4.
[10] Judgement of 29 April 2016 by the Constitutional Court in Case No. 2015-19-01, Para 12.4.
[11] Judgement of 29 April 2016 by the Constitutional Court in Case No. 2015-19-01, Para 13.
[12] Judgement of 10 February 2017 by the Constitutional Court in Case No. 2016-06-01, Para 28
[13] Judgement of 10 February 2017 by the Constitutional Court in Case No. 2016-06-01, Para 30
[14] Judgement of 10 February 2017 by the Constitutional Court in Case No. 2016-06-01, Para 33.6
[15] Judgement of 14 May 2013 by the Constitutional Court in Case No. 2012-13-01, Para 13.2
[16] Judgment of 18 May 2017 by the Constitutional Court in Case No. 2016-12-01, Para 14.1
[17] Judgement of 18 May 2017 by the Constitutional Court in Case No. 2016-12-01, Para 14.6
[18] Judgement of 23 May 2017 by the Constitutional Court in Case No. 2016-13-01, Para 10
[19] Judgement of 23 May 2017 by the Constitutional Court in Case No. 2016-13-01, Para 13
[20] Article 105 of the Satversme provides: “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.”
[21] Judgement of 13 October 2015 by the Constitutional Court in Case No. 2014-36-01, Para 15.1
[22] Judgement of 9 December 2016 by the Constitutional Court in Case No. 2016-08-01, Para 12.2
[23] Judgement of 9 December 2016 by the Constitutional Court in Case No. 2016-08-01, Para 14.2
[24] Judgement of 9 December 2016 by the Constitutional Court in Case No. 2016-08-01, Para 15
[25] Judgement of 9 December 2016 by the Constitutional Court in Case No. 2016-08-01, Para 16.5
[26] Judgement of 13 October 2015 by the Constitutional Court in Case No. 2014-36-01, Para 15.2
[27] Judgement of 13 October 2015 by the Constitutional Court in Case No. 2014-36-01, Para 22
[28] Judgement of 8 December 2015 by the Constitutional Court in Case No. 2015-07-03, Para 19
[29] Judgement of 8 December 2015 by the Constitutional Court in Case No. 2015-07-03, Para 17
[30] Judgement of 12 February 2016 by the Constitutional Court in Case No. 2015-13-03, Para 13
[31] Judgement of 12 February 2016 by the Constitutional Court in Case No. 2015-13-03, Para 14
[32] Judgement of 12 February 2016 by the Constitutional Court in Case No. 2015-13-03, Para 15.3
[33] Judgement of 8 March 2017 by the Constitutional Court in Case No. 2016-07-01, Para 25
[34] Judgement of 8 March 2017 by the Constitutional Court in Case No. 2016-07-01, Para 25.1
[35] Judgement of 8 March 2017 by the Constitutional Court in Case No. 2016-07-01, Para 20
[36] Judgement of 8 March 2017 by the Constitutional Court in Case No. 2016-07-01, Para 25.2
[37] Judgement of 2 July 2015 by the Constitutional Court in Case No. 2015-01-01 and Judgement of 12 November 2015 in Case No. 2015-06-01
[38] For example, Judgement of 2 July 2015 by the Constitutional Court in Case No. 2015-01-01, Para 11.2
[39] Judgement of 2 July 2015 by the Constitutional Court in Case No. 2015-01-01, Para 11.4
[40] Judgement of 2 July 2015 by the Constitutional Court in Case No. 2015-01-01, Para 11.4
[41] Judgement of 2 July 2015 by the Constitutional Court in Case No. 2015-01-01, Para 11. 3
[42] Judgement of 2 July 2015 by the Constitutional Court in Case No. 2015-01-01, Para 15.2
[43] Judgement of 2 July 2015 by the Constitutional Court in Case No. 2015-01-01, Para 16.6
[44] Judgement of 12 November 2015 by the Constitutional Court in Case No. 2015-06-01, Para 10
[45] Judgement of 12 November 2015 by the Constitutional Court in Case No. 2015-06-01, Para 11.1
[46] Judgement of 2 July 2015 by the Constitutional Court in Case No. 2015-01-01, Para 13
[47] Judgement of 12 November 2015 by the Constitutional Court in Case No. 2015-06-01, Para 11.1
[48] Judgement of 12 November 2015 by the Constitutional Court in Case No. 2015-06-01, Para 11.1
[49] Judgement of 12 November 2015 by the Constitutional Court in Case No. 2015-06-01, Para 18
[50] Judgement of 12 November 2015 by the Constitutional Court in Case No. 2015-06-01, Para 20
[51] Judgement of 12 November 2015 by the Constitutional Court in Case No. 2015-06-01, Para 16 and Judgement of 2 July 2015 by the Constitutional Court in Case No. 2015-01-0, Para 15
[52] Judgement of 14 March 201 by the Constitutional Court in Case No. 2010-51-01, Para 13
[53] Judgement of 12 May 2016 by the Constitutional Court in Case No. 2015-14-0103, Para 15.1
[54] Judgement of 12 May 2016 by the Constitutional Court in Case No. 2015-14-0103, Para 23.3
[55] Judgement of 16 June 2016 by the Constitutional Court in Case No. 2015-18-01, Para 18.3
[56] The first sentence of Article 106 of the Satversme provides: “Everyone has the right to freely choose their employment and workplace according to their abilities and qualifications.”
[57] Judgement of 23 April 2003 by the Constitutional Court in Case No. 2002-20-0103, Para 3 of the Findings
[58] Judgement of 10 February 2017 by the Constitutional Court in Case No. 2016-06-01, Para 21
[59] Judgement of 10 February 2017 by the Constitutional Court in Case No. 2016-06-01, Para 25
[60] Judgement of 21 December 2015 by the Constitutional Court in Case No. 2015-03-01, Para 21.4
[61] Judgement of 21 December 2015 by the Constitutional Court in Case No. 2015-03-01, Para 21.2.2
[62] Judgement of 21 December 2015 by the Constitutional Court in Case No. 2015-03-01, Para 27. 2
[63] Decision of 6 April 2017 by the Constitutional Court on Terminating Legal Proceedings in Case No. 2016-10-01, Para 16
[64] The first sentence of Article 91 of the Satversme provides that “All human beings in Latvia shall be equal before the law and the courts”.
[65] Judgement of 2 March 2016 by the Constitutional Court in Case No. 2015-11-03, Para 19
[66] Judgement of 4 October 2015 by the Constitutional Court in Case No. 2015-05-03, Para 13.3
[67]Judgement of 2 March 2016 by the Constitutional Court in Case No. 2015-11-03, Para 21
[68] Judgement of 2 March 2016 by the Constitutional Court in Case No. 2015-11-03, Para 23.4
[69] Judgement of 12 February 2016 by the Constitutional Court in Case No. 2015-13-03, Para 14.1
[70] Judgement of 12 February 2016 by the Constitutional Court in Case No. 2015-13-03, Para 15.2
[71] Judgement of 29 June 2017 by the Constitutional Court in Case No. 2016-23-03, Para 15.1
[72] Judgement of 12 February 2016 by the Constitutional Court in Case No. 2015-13-03, Para 18
[73] Judgement of 17 January 2008 by the Constitutional Court in Case No. 2007-11-03, Para 25.4
[74] Laviņš A., Tamužs K. Satversmes tiesas pieredze saistībā ar prejudiciālajiem jautājumiem. Jurista Vārds, 06.12.2016., Nr. 49 (952), 32.-35.lpp.
[75] Judgement of 13 October 2015 by the Constitutional Court in Case No. 2014-36-01, Para 14
[76] Judgement of 28 May 2009 by the Constitutional Court in Case No. 2008-47-01, Judgement of 19 October 2011 in Case No. 2010-71-01 and Judgement of 13 October 2015 in Case No. 2014-36-01
[77] Judgement of 28 May 2009 by the Constitutional Court in Case No. 2008-47-01, Para 15.2, and Judgement of 19 October 2011 in Case No. 2010-71-01, Para 24
[78] Judgement of 13 October 2015 by the Constitutional Court in Case No. 2014-36-01, Para 22
[79] Article 109 of the Satversme provides that everyone has the right to social security in old age, for work disability, for unemployment and in other cases as provided by law.
[80] Article 105 of the Satversme provides: “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.”
[81] Judgement of 21 December 2009 by the Constitutional Court in Case No. 2009-43-01, Para 20
[82] Judgement of 21 April 2016 by the Constitutional Court in Case No. 2015-21-01, Para 9.1
[83] Judgement of 21 April 2016 by the Constitutional Court in Case No. 2015-21-01, Para 14.2
[84] Judgement of 21 April 2016 by the Constitutional Court in Case No. 2015-21-01, Para 12.2.
[85] Judgement of 21 April 2016 by the Constitutional Court in Case No. 2015-21-01, Para 11.3.
[86] Judgement of 15 June 2017 by the Constitutional Court in Case No. 2016-11-01, Para 21.3