Address by the President of the Constitutional Court Ineta Ziemele to the representatives of the diplomatic missions in Latvia
Professor, PhD Ineta Ziemele
President of the Constitutional Court of the Republic of Latvia
Riga 8 May 2019
Excellences, Ladies and Gentlemen!
I am truly honoured to welcome you today at the Constitutional Court of Latvia which we in Latvian call – Satversmes tiesa!
The purpose of this initiative is to introduce to you the Constitutional Court and to ensure direct exchange between the diplomatic corps based in Latvia and the Court.
Contextual significance of the meeting day
I have to admit that the month of May is important both in Latvian and European history.
On 1st of May, we celebrated 99 years since the Constitutional Assembly, the first Parliament of the State of Latvia elected by its citizens, convened for its first session with a purpose to draft the Constitution.
Satversme – the Latvian Constitution was adopted in 1922 and regained its applicability upon the restoration of independence of Latvia in 1990-1991. On 4th of May, we celebrated the Restoration of Independence which was 29 years ago.
Even more, last week we also marked the 15-year anniversary since joining the European Union and NATO. And today we respectfully mark the Day of Remembrance for the Defeat of Nazi Germany, as well as a day of Remembrance for the Victims of WWII.
Tomorrow we will have Europe Day, which symbolises peace and unity in Europe and the beginning of the European Union, which as part of the European architecture has helped to ensure peace in Europe. For Latvia independence and peace are particularly important values. It is therefore that the Constitutional Court with its mandate to ensure the supremacy of Constitutional values such as freedom, human dignity, equality, rule of law is particularly pleased to have this meeting in May.
Excellences! Today, I am delighted to see so many countries being represented here. We all might have slightly different perception of modern challenges. The nuances are introduced by unique experiences of our nations. Nevertheless, we all agree today that democratic values cannot be taken for granted. They need to be constantly cherished and ensured by all the available mechanisms within constitutional orders and within the international legal order.
The Role of the Constitutional Court
The Constitutional Court of Latvia was created in 1996. It was not an idea without a controversy. Latvia considered that it continues the same statehood established in 1918 and it was thereby decided to re-effect the 1922 Constitution which no legitimate body had abolished. So, the Constitution along with the State were dormant for 50 years and were restored in force in 1990-1991. Unlike, for example, in Austria, the 1922 Constitution did not provide for the Constitutional Court and it is therefore that the question and the idea of the need for a new constitutional organ, the Constitutional Court, were debated actively in early 1990s. It was to be an important amendment of the Constitution. There is always a question how much you improve or amend the traditional constitutional structure. In some of your countries, there are constitutional bodies which have existed for several hundreds of years and it would be difficult to change something about it.
The Constitutional Court now exists for 22 years. Its competence is to assess the compliance of legal norms with the Constitution thereby ensuring the supremacy of the Constitution which is one of the key elements of the State based on rule of law. There are two main groups of complainants in front of the Court, i.e., constitutional organs and several independent institutions and an individual in case he/she considers that a legal norm applied in his/her case is contrary to the Constitution. In other words, if an alleged violation of fundamental rights stems from the legal norm and not from its application by administrative bodies or general jurisdiction courts, the person is entitled to turn to the Constitutional Court for the protection of fundamental rights. Incidentally, the European Court of Human Rights has determined that in such case scenario the Constitutional Court is an effective remedy for the purposes of exhaustion of domestic remedies which is a requirement to comply with for those turning to the European Court of Human Rights.
Every year the Court receives between 300-400 applications. Absolute majority of these applications come from the individuals. Among the initiated cases over 50/60% are constitutional complaints from individuals concerning fundamental rights. An average 20 decisions and judgments are delivered every year. Roughly half of the judgments declare the contested legal norm incompatible with Satversme.
In terms of statistics an important observation emerges. It is the people who have been moving the process of strengthening the rule of law in Latvia because the absolute majority of the cases that the Court had initiated over the years have been based on the constitutional complaints by the persons. The other important players are the Ombudsman, the courts (administrative and general jurisdiction), the 20 members of the Parliament which typically come from the opposition and the municipalities. As to the 20 members of the Parliament, it can be argued that the application to the Constitutional Court is a strategy with a political purpose. Be it as it may, it is a sign of a mature democracy where political disagreements in the Parliament are settled in a form of a decision rendered from the point of view of the Constitution by an independent Court.
It is here that I come to the point on the role of the Constitutional Court in strengthening the proper division of powers in Latvia. Our experience shows that one of the most difficult tasks in breaking out of undemocratic regime that had subjected Latvia for 50 years is to put in place proper separation of powers and establish independent judiciary. One which would play the role of checks and balances of the political power. If you reflect on the reality of the Soviet state where political power was exercised uncontrolled and corruption was a norm, it is evident why the independence of judiciary and supremacy of law was in fact the ultimate challenge for independent Latvia. The Constitutional Court has faced an incredible challenge to confront the absence of the rule of law culture in politics and in the society especially in the first decade of Court’s creation. Latvia has come a long way dealing with one of the most traumatic consequences of the Soviet legacy, i.e., the absence of the rule of law.
We have come a long way in recognizing that a proper separation of powers is a key to offering the best possible opportunities for human activity and creativity on equal basis. [1] Thus, from the point of view of the development of each person and society as a whole and the effective functioning of the state, it is essential that all branches of power properly perform their functions, so that none of them exceeds the limits of their competence and that everyone demonstrates due respect to the other branches of power and respects their legitimate scope of action. The Court makes sure that the State does not use legislative powers in such a manner that endangers freedom since free society is the main driving force for the overall development.
I believe I can say that today there is a clear understanding that a strong and independent Constitutional Court is an important element in a strong democracy and further practical steps will be taken to ensure that. Such a Constitutional Court, among other measures, is a guarantee for everyone that Latvia is set to ensure that such values as rule of law, good governance and transparency, human rights prevail.
Excellencies! We can say from our experience that changes in human mind and culture take time and that requires a lot measures in place, including democratic pluralist debate on values which ought to take place in schools and the society at large. Given Latvia’s history, we need to work in a more proactive way to encourage such a debate. However, given the challenges in Europe I would say that in general we can no longer take for granted that values of liberal democracy and European integration are accepted by definition. There are probably a number of initiatives that we have had in Latvia over the years that could be of interest to many in Europe.
We see the role of the Court in promoting the dialogue between the society and the State. We are not a self-centred Court. The Court has put in place active communication strategy. For example, the adoption of each judgment is accompanied not only by the statement to the press but also by a video which explains the judgment. In cases where the Court holds public hearings, the pronouncement of the judgment is accompanied by a press conference.
The Court actively engages in a dialogue with several target groups, such as school children, opinion leaders, professional groups, including other Latvian courts. The purpose of this dialogue is to promote the Constitution and the values contained in it.
The Court is active participant of the European judicial dialogue. We have bilateral cooperation with the colleagues in France, Germany, Belgium, Czech Republic, Lithuania, Slovenia, Austria and Italy. We will begin the training for the lawyers of the Moldovan Constitutional Court and we will be receiving the delegations from Armenia and Ukraine this year. Since we have by now a considerable practice in dealing with individual constitutional complaints, these courts would like to learn from our experience. Finally, the Latvian Constitutional Court has had active discussion with the Court of Justice of the EU on various issues that concern common European legal space and the joint decision has been made to call a conference in Riga in March 2020 on the challenges that the development of EU law faces.
Conclusions
The Constitutional Court ensures the proper equilibrium between the rights of a person on one hand and the rights and interests of the society on the other. At times, it also has to balance two conflicting rights of two individuals. Only with a balanced interaction of rights and responsibilities arbitered by an independent constitutional body, can we achieve a sustainable society and State.
By ensuring the rule of law, we are aware that our main task is to preserve and build public trust in the State of Latvia.
In its judgments regarding the publication of monthly income in public sector, as well as in the judgment on regulated land rent, the Court has strengthened the principle that the process by which law is adopted balancing and restricting fundamental rights of an individual, must be such that the society is convinced that the solution represents the best possible compromise in a democracy. Or in other words, laws must be lawful. It must build confidence in society that the need to limit the fundamental rights has been carefully assessed. Thus, the legislative process must not only comply with the formal requirements as concerns the procedure of adopting the law, but it must also promote the confidence of persons in the State and law.
Finally, I am sure you are all interested in our recent judgment in the case brought by 20 members of the Parliament with regard to the further education reform. As you know, the Court found that, all interests considered, the reform complied with the Constitution. The amendments to the Education Law and General Education Law provide that in public and municipal institutions of education, which provide minority education programmes, on the level of secondary education, the general rule on the acquisition of education in Latvian is applied, whereas in the institutions of education that provide minority education programmes on the level of basic education, the use of State language in the grades 7-9 is at least 80 per cent and at least 50 per cent in elementary school.
First, the Court had to address the definition of a minority in Latvia which is a complex issue because historical minorities have been mixed up with the Soviet period settlers. Nevertheless, the Latvian State has confirmed that permanent residents that would like to join their historical minorities in the exercise of minority rights, they can do so.
Second, as to the main principles of the Constitution relevant to the case. Among others, the principle of diversity in unity underlines the Latvian Constitution. Namely, Article 114 on national minorities embedded their right to preserve and develop their distinct language, culture and identity. Furthermore, Latvia is a democratic state and a democratic dialogue within the civil society takes place in the State language. One of the main tasks of the education system is to provide the children with such knowledge that enables them to develop as independent personalities and to become participants in democratic processes if they wish so. Common language for a common democratic discourse is at the heart of a modern European state. The Court had ample evidence that in Latvia the common democratic discourse has been lacking and partly this has not been solved during the previous stages of the education reform. It had to point out that the Constitution does not accept segregated society which is due to insufficient knowledge and use of the State language. Finally, the Court did not obtain any evidence that Russian community in particular would be endangered as concerns its identity. But it did point out that there is still a difficulty as concerns those new and old minorities which have suffered from russification and which need the support of the Latvian State so as to reacquire their identity, for example, Ukrainians, Belarusian and others.
Excellences, ladies and gentlemen! In the end, a comment on law in the XXI century. It’s nature changes along with the changes in the world such as globalization processes, consolidation of European and international law. Since the establishment, the Constitutional Court has embraced international law and European law and has developed a methodology that interprets the Constitution through the lenses of these other systems of law. As the Preamble of the Constitution states Latvia is an active member of European integration processes and the principles underlining our legal system as well as the methods of work in the Court attest to that principle.
Thank you very much for your attention!
[1] Ziemele I. Brīvība un zināšanas kā priekšnoteikums iedvesmošanai. Runa radošo industriju konferencē “Subject: Creativity” Cēsīs 2018. gada 2. novembrī. Pieejams: https://www.youtube.com/watch?v=Ci5aEPz6ZIk