Characteristics of Work Of the Constitutional Court of the Republic of Latvia: Case-law of the Court in Social Security Matters
Mr. Gunars Kutris
Chairman of the Constitutional Court of the Republic of Latvia
Ms Laila Jurcena
Adviser to the President, Constitutional Court of Latvia
Experience of constitutional courts keeps growing. Courts start examining more complicated matters; therefore they should develop as fast as the society does interests of which they represent. Topics of urgent problems change, though the role of courts in solving them does not.
The Constitutional Court was founded in 1996, and during the last 15 years it has taken an active part in improving the Latvian legal system.
I Characteristics of Functioning of the Constitutional Court
Regulatory Framework on Functioning of the Constitutional Court
Constitutional basis of work of the Constitutional Court is Article 85 of the Constitution of the republic of Latvia (Latvijas Republikas Satversme[1]) providing the following: “In Latvia, there shall be a Constitutional Court, which, within its jurisdiction as provided for by law, shall review cases concerning the compliance of laws with the Constitution, as well as other matters regarding which jurisdiction is conferred upon it by law. The Constitutional Court shall have the right to declare laws or other enactments or parts thereof invalid. The Saeima[2] shall confirm the appointment of judges to the Constitutional Court for the term provided for by law, by secret ballot with a majority of the votes of not less than fifty-one members of the Saeima”. The above-mentioned legal norm characterizes the laconic style of the Constitution. Consequently, the duty to regulate the work of the Constitutional Court in detail is left to the discretion of the legislator.
Insofar as the work of the Constitutional Court is regulated by the Constitution, the Constitutional Court Law is considered of the greatest importance. Although the Constitutional Court Law has been amended tenfold, the most important changes in the work of the Constitutional Court were unequivocally introduced by 30 November 2000 amendments. Constitutional complaint, court hearing in writing, as well as several other material changes in the Constitutional Court proceedings were introduced. Likewise, the right of general jurisdiction courts to lodge an application before the Constitutional Court was established.
It is rather likely that, if the Constitutional Court Law would be re-elaborated taking into account the experience of the previous 15 years and topical conclusions made in respect to jurisdiction and legal proceedings of the Constitutional Court, the structure of the Law and certain wordings thereof would differ. However, at present, there is no such necessity. Quite on contrary, success of the Constitutional Court Law is related, at large extent, to the development of its interpretation and improvement in practice.
Amendments to the Constitutional Court Law have usually been introduced taking into account conclusions made by the Constitutional Court.
In this particular context, it is necessary to note that the Constitutional Court has adjudicated two matters on constitutionality of certain norms of the Constitutional Court Law. As a result, one of the norms was recognized as constitutional, whilst the other was not.
When reacting to reality of everyday life, namely, to the increase in number of matters and that of judgements, the legislator has extended the term of case review at the Constitutional Court. Initially, the Constitutional Court Law provided that this would be the Constitutional Court establishing the term for submitting a reply, the case should be prepared within three months after initiation of the matter, whilst this term could be increased by two months in case of particularly difficult matters. As the workload of the Court increased and constitutional legal problems became even more complex, these terms could no more ensure high quality preparation of cases. The wording of the Constitutional Court Law effective from 1 January 2010 provides that the term for submitting a reply shall be not less than two months, whilst the case shall be prepared for review within five months. In case of particularly complex matters, the term can be extended by two months. Based on the above-mentioned terms, even in an urgent case the Constitutional Court is not able to adjudicate a case on accelerated basis.
Without denying that the terms established in the Constitutional Court Law are reasonable to fulfil everyday necessities, it would still be necessary to consider a possibility to stipulate a special accelerated form of legal proceedings in respect to urgent cases or temporary interim measures suspending apparently unconstitutional acts in extraordinary situations.
Three Stages of History of the Functioning of the Constitutional Court
History of the functioning of the Constitutional Court can be conditionally divided into three stages.
In the first stage, neither an individual nor the courts had a right to submit an application before the Constitutional Court. Therefore the number of applications and matters initiated was insignificant. In average, six cases were initiated and five judgements were announced on annual basis. The majority of cases reviewed by the Constitutional Court were related to acts issued by the Cabinet of Ministers and its subordinate institutions rather than to constitutionality of laws. All cases were reviewed in the framework of oral hearings. Review of administrative acts of the Cabinet of Ministers also fell within the jurisdiction of the Constitutional Court, which was later transferred to administrative courts.
In the second stage, an absolute majority of cases were initiated based on constitutional complaints. Applications were now submitted also by courts. As the number of cases increased and the Republic experienced economic growth, the Constitutional Court gradually developed doctrines in respect to several norms of the Constitution and issues of constitutional proceedings. Absolute majority of cases were examined in writing. In the framework of this stage, the Constitutional Court initiated 21 – 48 cases and adopted 13 – 17 judgments each year.
In the third stage, the number of applications and matters to be reviewed considerably increased. In 2009, a record number of cases were initiated (117 cases), whilst, in 2010 the greatest number of judgments were adopted (34 judgments). The Constitutional Court finished 2011 by having adopted 27 judgments.
The Constitutional Court continuously assesses its case law by improving and developing it in the context of overcoming consequences of the economic crisis. Workload of the Court has changed on qualitative and quantitative basis. Prospect of claims included in applications to be satisfied are considered in conjunction with the already existent extensive case law of the Constitutional Court. As a result, this makes one reasonably conclude that even an exhaustive claim can be evidently insufficient for satisfaction thereof, which leads to the adoption of a negative decision regarding initiation of a case. Nowadays, in this stage, high standards are applied to quality of applications and argumentation of the Court since problems under consideration have become more complex.
Fundamental Rights Infringed Most Often
Cases reviewed by the Constitutional Court differ as to the extent of the claim. It is often the case that the claim of a matter is reviewed in respect to compliance of a contested norm with only one article of the Constitution; however, frequently compliance of a contested norm with several norms of a legal act of a higher legal force or even several legal acts is assessed. Therefore it is not possible to identify each judgment by applying one subject matter.
Moreover, findings of a judgment do not always reflect the claim referred to in the title of the case. This can be explained by the following: First, in the case if the Constitutional Court establishes that a contested norm does not comply with one particular legal norm of a higher legal force, it shall be regarded as null and void and therefore the compliance with other legal norms indicated is not assessed. Second, during the examination it is often concluded that the matter should be terminated in respect to a certain part thereof. Third, the Constitutional Court can either broaden or limit boundaries of a claim.
If one considers rulings of judgments of the previous 15 years, it was more often, namely, in 47 cases, that the Constitutional Court recognized compliance of contested norms with Article 91 of the Constitution (the principle of equality and that of prohibition of discrimination), in 43 matters the Constitutional Court found contested norms compliant with Article 1 of the Constitution (an independent and democratic republic), in 34 judgments the Court assessed compliance of contested norms with Article 92 of the Constitution (the right to a fair court), in 31 cases – with Article 105 of the Constitution (the right to own property), in 14 cases – with Article 109 of the Constitution (the right to social security). Rarely the compliance of contested legal norms with other articles of the Constitution was assessed.
As to international treaties, compliance of contested norms with the European Convention for the Protection of Human Rights and Fundamental Freedoms was assessed, the particular convention having been expressis verbis mentioned in the findings of nine judgments. However, it should be taken into account that the doctrine stating that, when establishing content of the fundamental rights guaranteed in the Constitution, it is necessary to take into account international liabilities of Latvia in the field of human rights, has been developed in the case law of the Constitutional Court. Therefore, the Constitutional Court usually assesses compliance of contested norms with certain fundamental rights guaranteed in the Constitution in conjunction with particular norms with international documents on human rights, especially the European Convention for the Protection of Human Rights and Fundamental Freedoms. Consequently, although the ruling of a judgment includes only a conclusion on compliance of a contested norm or not with a norm of the Constitution, in fact a matter is being assessed in respect to its compliance or not with the Convention.
II The right to social security in the judgements of the Constitutional Court[3]
The Constitutional Court plays an important role in defining the content of the right to social security.
To describe the role of the Constitutional Court in this part of report the following information is going to be provided: (1) contribution of the Constitutional Court in defining the principle of a socially responsible state and, respectively, influence of the particular principle on the right to social security, (2) the special status of social rights, the right to social security included, (3) the role of the political dimension when adopting decisions on the application of the right to social security, (4) the margin of appreciation enjoyed by the legislator and the limits of control over the judicial power in the field of social rights, as well as (5) methodology applied by the Constitutional Court when assessing assurance of the right to social security.
The principle of a socially responsible state
Many constitutions of the European states include the principle of the social state. Some constitutions define the state as a social state[4], some define it as a democratic and social state[5], some – as a social state governed by the rule of law[6], and some constitutions include also social objectives or social goals[7].
There is no article in the Constitution, which defines the Republic as a social state. Furthermore there is no principle of the social state mentioned in the text of the Constitution. The Constitution does not declare any principles of law. All the principles, including principle of the socially responsible state, are derived from Article 1 of the Constitution, which provides that Latvia is an independent democratic republic. Latvia ensures this principle of a social state also through the establishment of social fundamental rights and through the prohibition of unequal treatment on any conditions, inter alia, on the basis of economic or social conditions. Social fundamental rights included in the Chapter VIII ‘Fundamental Human Rights’ of the Constitution of the Republic of Latvia serve as a guideline for the interpretation of principle of a social state, and they, in some way, frame this principle.
The Constitutional Court mentioned the principle of a socially responsible state for the first time in its judgment from 2006[8]. In this judgment the Court revealed the contest and aim of a socially responsible state establishing that such state strives to implement social justice in legislature, administration and court adjudication as extensively as possible, within its limits of financial resources and provides a reasonable state support to those in need with a view to diminish the most strident social difference and to ensure for each sheet of society an adequate standard of living.
The content of the principle of a socially responsible state is considerably broader than that of any particular social right. The Constitutional Court has indicated that the right to social security is one of the characteristic features of the principle of a socially responsible state, therefore when interpreting legal norms in the field of social security the Constitutional Court always observes the principle of a social state.
Compliance with the principle of a socially responsible state shall be applied as a benchmark when examining whether measures chosen by the legislator can be regarded as proportional for achieving the legitimate aim[9]. The Constitutional Court has also indicated in its case law that the duty of the state to create a sustainable and balanced policy to ensure welfare of the society follows from the principle of a socially responsible state[10].
The nature of social rights
Social rights that also embrace the right to social security are of great importance, though meanwhile social rights are special and different human rights since the exercise of these rights depends on the economic situation of each state and the resources available. Therefore in international legal acts social rights are established as a general duty of a state, granting the states a wide discretionary power when implementing these rights.
Consequently, their relation, commensurability and dependence on the economic situation of the state establish the special status of social rights. The Constitutional Court has reiterated in its judgments that the social and economic protection system (kinds and amounts of allowances), as well as maintenance thereof is decided by the state. The system depends on the economic situation of the state and the resources available[11].
Without denying the close connection of implementation of social rights with the possibilities of each state, it is necessary to take into account the following conclusions on human rights, included in case-law of the Constitutional Court – if any social right is included into the basic law, the state cannot abandon it. This right does not only have a declarative nature[12].
In its recent case law, the Constitutional Court has also indicated that the state does not only have a right but it has a duty to commensurate its liabilities in the field of social rights with its economic possibilities. Otherwise, fulfilment of other duties of the state might be hampered, implementation of other social rights included. For instance, in judgments on annulment of pension indexation the Constitutional Court has indicated that the state is committed to ensure sustainability of the pension system by guaranteeing that the right to social security is ensured in the following generations as well. The duty to develop a sustainable social security system lays in the basis of the right to social security and also follows from the principle of a socially responsible state[13].
Taking into account the above-mentioned duty of the State (commensuration of liabilities in the field of social rights with economic possibilities of the state), the Constitutional Court has substantiated the right of the state to restrict and to reduce social payments. Namely, the security amount of social rights guaranteed by the state may change depending on the amount of resources available to the state; likewise, the state can restrict social disbursements if this is in the interests of the society and protects the rights of other persons to state guaranteed financial aid[14].
Consequently, the special status of social rights and their relation with the economic situation of the state not only permits the state to ensure social rights based on the amount of resources available, but also commits the state to commensurate its liabilities in the field of social rights with its economic possibilities, which also permits reduction of the amount of social security in certain circumstances and with a view to protect interests of the society.
Political dimension of the social rights
Decisions of the state and the legislator regarding implementation of the social rights usually have a substantial political dimension, namely, decisions in this field are usually adopted on political rather than legal considerations, provided that the first depend on the view of the legislator on principles of providing state social services, economic situation of the state and the need of the society or a part of it for the state aid or support[15]. Moreover, it should be taken into account that, in the field of social rights, the borderline between legal and political considerations is difficult to ascertain, and the Constitutional Court has to refrain from assessing political issues because they primarily fall within the competence of a democratically legitimized legislator[16].
Consequently, in the field of implementation of social rights, the legislator can be subjected to equally strict requirements as those applied to its duty not to interfere within the implementation of the civil and political rights of an individual[17]. However, political decisions are also restricted by the Constitution; therefore the margin of appreciation of the legislator when adopting decisions in the field of social rights should comply with norms and principles of the Constitution[18].
Margin of appreciation of the legislator and limits of the judicial control in the field of social rights
The Constitutional Court has reiterated that, in the field of social rights (for instance, when the state selects methods and mechanisms for the implementation of the social rights), the state enjoys a relatively broad margin of appreciation[19]. However, the fact that the social rights are guaranteed in the Constitution means that the margin of appreciation of the legislator is limited to some extent.
The Constitutional Court has defined these limits by establishing three important requirements to the legislator.
First, the legislator cannot refuse to ensure effective implementation of the social rights – they are entrenched in the Constitution, and the legislator has to observe and respect them.
Second, social rights, though being dependant on the financial possibilities of state, must be ensured at least at a minimum level.
Third, when implementing the social rights, it is necessary to observe the general principles of law, which form the basis of legal relations between the individual and the state. Level of the state aid should not be as high as the interested persons would want it to be; however, when establishing the amount of an allowance, the legislator is committed to observe the above-mentioned principles of law[20].
The special nature of the social rights establishes also the limits of judicial control in this field. According to the Constitutional Court, when implementing the social rights, the legislator enjoys a broad margin of appreciation insofar as it is reasonably related with the economic situation of the state. However, the margin of appreciation is not unlimited. The judicial control is committed to assess whether the legislator has observed the limits of its margin of appreciation[21].
The Constitutional Court has concluded that the special nature of the social rights establishes the limits of judicial control in this respect. In order to ascertain whether the legislator has observed its margin of appreciation the Court shall investigate the following within the limits of its jurisdiction:
- Whether the legislator has implemented measures to ensure that an individual is able to exercise his social rights;
- Whether these measures have been properly implemented, namely, whether the individual has a possibility to exercise his social rights at least at the minimum level;
- Whether the general principles of law have been observed[22].
However, when assessing compliance of a legal norm with the principles following from the basic constitutional values entrenched in Article 1 of the Constitution (“Latvia is an independent democratic republic”), it is necessary to take into account the fact that manifestation of these principles may differ in different fields of law[23].
Consequently, the margin of appreciation of the legislator in the field of social rights has a direct impact on the limits of judicial control.
How the Constitutional Court assesses compliance of a contested legal norm with the right to social security
When assessing compliance of a legal provision with the right to social security, the Constitutional Court applies methodology (criteria) that depend on the following: (1) whether a particular norm restricts the rights conferred to the individual, and (2) whether it ensures fulfilment of the positive duty of the state[24].
(1) In cases when a contested norm restricts social rights, the Constitutional Court examines whether the restriction:
1) Is established by a law or is based on a law;
2) Has a legitimate aim;
3) Complies with the principle of proportionality[25].
(2) However, when assessing whether the state has fulfilled its duties that follow from the social rights, the Constitutional Court investigates whether:
1) the legislator has applied measures to ensure persons the possibility to exercise their social rights,
2) Whether these measures have been properly implemented, namely, whether the individuals have a possibility to exercise their social rights at least at the minimum level;
3) Whether the general principles of law have been observed[26].
In the context of each basic right (the right to social security included), the state has a triple duty: to respect, to protect and to ensure the rights of individuals. For the state to act in accordance with the human rights, it has to implement a range of criteria – passive, like non-interference with the rights of persons, and active, like ensuring that individual needs of persons are met[27].
In the field of social rights, a particular importance is attached to the fact whether, by undertaking positive actions, the state can ensure that those individual needs of persons are met, which follow from a particular fundamental right. It should also be taken into consideration that norms of the Constitution do not guarantee the right of persons to a particular amount of social security, and the state should refrain from overdue interference with financial relations of the citizens[28].
The Constitutional Court has indicated that the cases when a contested provision applies to the core of the right to social security have to be assessed differently. The Court has concluded that, disregarding economic situation of the state and even under circumstances of a rapid economic recession the state has to fulfil certain basic duties, which it is not entitled to reject. One of such basic duties is to guarantee the right to social security at least at the minimum level, and the aim of this right is to ensure, as far as possible, a dignified existence of persons[29].
Under the circumstances of economic recession while assessing compliance of a contested provision with the Constitution and the general principles of law, the Constitutional Court has introduced “socially responsible solution”[30] as a criterion. Namely, the Constitutional Court assesses whether the solution selected by the legislator is socially responsible. According to the Constitutional Court, a socially responsible solution is such a solution that results in balancing legal interests of certain individuals with the interests of entire society. Therefore measures selected by the legislator to ensure a lenient transitional period are assessed in conjunction with the necessity to ensure a balance between economic capability of the state and welfare of the entire society. A socially responsible solution under the current conditions can be based not only on establishment of a lenient transitional period to a new legal regulatory framework but also on the fact that, along with amendments to normative acts, a person is ensured with a possibility to exercise those rights which the State has already granted on basis of the financial possibilities of the state.
III Recent case-law on the right to social security
Since 2009, the Constitutional Court has reviewed the following cases, wherein the right to social security has been assessed:
- Case on the refusal to index pensions in 2009 (2009-08-01);
- Case on the cut of pensions (2009-43-01);
- Case on the disbursement of allowances at the amount of 50 per cent of the estimated amount of the allowance to employed parents (2009-44-01);
- Case on the cut of long-service pensions of employees of the Ministry of the Interior system (2009-76-01);
- Case on the cut of long-service pensions of public prosecutors (2009-86-01);
- Case on the cut of long-service pension by 10 per cent to military personal members who have reached the retirement age (2009-88-01);
- Case on the provisions for disbursement of unemployment benefit (2010-17-01);
- Case on the differences in provisions for calculating pensions of citizens and non-citizens (2010-20-0106);
- Case on the amendments to the State Funded Pensions Law (2010-21-01);
- Case on the reduction of early pensions (2010-29-01);
- Case on the taxation of income gained form private pension funds (2010-59-01).
Almost all of these cases are related with the cut of pensions by applying different methods. Therefore, here are some conclusions on the pension system came to in the judgments of the Constitutional Court.
All of the above mentioned cases are regarded as “crisis cases”. Therefore, in the conclusion of this chapter the most important conclusions of the Court that play an important role in respect to the right to social security in the context of the economic crisis are going to be presented.
Judgments of the Constitutional Court on the pension system
Conclusions of the Constitutional Court in respect to the pension system should be considered taking into account the fact that the Constitutional Court assessed cuts of different kinds of pensions that constitute certain changes in the pension system.
The right to pension pertains to the fundamental right to social security entrenched in Article 109 of the Constitution. The Constitutional Court has reiterated that the main task of the pension system is to ensure its sustainability. Pensions are an issue of social policy of the state having a long-term character, and it needs stability[31]. The pension system is aimed not only on the present beneficiaries. It is formed in a way to ensure pension to the following generations, too. In this context, the pension system is related with the necessity to assure welfare of the society[32].
According to the Constitutional Court, sustainability of the pension system is determined by the following three principles: adequacy, financial sustainability, and ability to adapt to changes[33].
The established pension system should be functioning in the interests of persons; therefore any such measures that facilitate administration of the pension system, though finally restricting the rights of pensioners, are inadmissible[34].
The Constitutional Court has concluded that Article 109 of the Constitution does not guarantee the right to pension at a certain amount[35].
Long-service pensions
In several cases, the Constitutional Court assessed the long-service pension system of the state as a constituent part of the national social security system[36]. The Constitutional Court has indicated that, in the light of ensuring and protecting the fundamental rights entrenched in Article 109 of the Constitution, a difference between old-age pensions and long-service pensions exists. The above-mentioned difference is not abstract, and it should be assessed, taking into account the type of long-service pension and circumstances of a particular case[37].
Article 109 of the Constitution does not guarantee to the individual a right to particular kind of pension, long-service pension included, since it is being calculated on the basis of certain criteria or at a particular amount. However, if the state has stipulated a certain kind of pension, Article 109 of the Constitution requires that the state ensures that it complies with the principles of a state governed by the rule of law, including the principle of legitimate expectations and that of proportionality[38].
Amendments to the pension system
When assessing admissible changes of the pension system, the Constitutional Court has indicated that the legislator not only elaborates legal regulatory framework for the pension system, but also decides on conditions, in which amendments can be introduced to it. The social protection system cannot be applied as an instrument for reaching short-term goals. The legislator has to consider the impact of each decision on the sustainability of pension system and make timely measures to assess all economic and demographic risks. By failing to timely prevent risks, the pension system may become destabilized to the extent that the restoration of its functioning in a normal order would require much time and even more resources.
The Constitutional Court has recognized that the state-guaranteed amount of social rights can change on the basis of the amount of financial means at the disposal of the state[39]. Disbursement of pensions can also be restricted, and such a restriction may have a legitimate aim, i.e. it can solve financial problems of the state budget or balance income or expenses of the special pension budget. The necessity to avoid deficit in the state special pension budget and the necessity to ensure disbursement of pensions in the future is of great importance[40].
Impact of the economic crisis when assessing the right to social security
As from 2009, all cases on the right to social security are related with the economic crisis, namely, the norms adopted under circumstances of economic crisis have been contested since. Consequently, the Constitutional Court assessed actions taken by the state under circumstances when income into the state budget was reducing and it was necessary to cut expenses from the basic budget and the social budget, provided that actions taken by the legislator are urgent, co-ordinated and successful.
The Constitutional Court recognized that the minimum amount of social security guaranteed to a person is being influenced by the economic situation of the state and the resources available[41]. The Court has also indicated that disregarding the economic situation of the state the legislator is bound by the fundamental rights of persons enshrined in the Constitution [42]. In certain cases, economic crisis may reach an extent, when the legislator has to be granted a margin of appreciation to introduce changes even if the measures apply to the fundamental rights established in the Constitution. Under the conditions of limited financial resources, the state has a right to amend provisions regarding disbursement of pensions with the purpose to ensure a fair social security system.[43]
The Constitutional Court has concluded that, as the economic situation deteriorates, there may occur a situation when the state is no more able to guarantee the same amount of social security as it was in the period of economic growth of the state. Otherwise, the ability of the state to implement the right to social security and guarantee sustainability of the social system would be jeopardized[44]. However, the economic situation of the state or the necessity to reduce budget deficit in absence of other legitimate aims cannot serve as a general justification for the state to abandon the rights of persons previously granted[45].
The Constitutional Court has concluded that the measures for overcoming crisis should be performed on the basis of a proper assessment thereof and by observing the principles of a state governed by the rule of law[46].
In several “crisis judgments” social solidarity under circumstances of economic crisis is mentioned, which means that every citizen should undertake proportional responsibility to eliminate consequences of the crisis[47].
As to the possibility to reduce pensions during crisis, the Constitutional Court has indicated that it is directly related to the necessity of balancing the state budget on urgent basis, as well as to ensure sustainability of the pension system[48]. Consequently, it is permitted to cut pensions. Nonetheless, the Constitutional Court indicates that, under the circumstances of a rapid economic recession, the state can temporarily reduce the amount of pensions disbursed, though the extent of fundamental rights, which the state does not have a right to abandon, should still be preserved. Namely, the rights cannot be restricted in such a way that the right of persons to social security as such is infringed[49].
In the case on cut of pensions, the Constitutional Court established that the cut of pensions could be stipulated only in the case if a legal regulatory framework on compensation of the withdrawn amounts would also be adopted. Namely, as the legislator announces a temporary cut of pensions, it has the duty to later ensure their fair disbursement thereof. Moreover, accordingly to the general interests of the state, the state has to determine groups of persons to whom such reduction of pensions cannot be applied and to whom a different amount of the reduced proportion should be established[50].
In the framework of its jurisdiction the Constitutional Court assures effective protection and restoration of the fundamental rights of individuals as far as it is possible. Consequently, in the case on cut of pensions the Constitutional Court:
- Recognized the cut of pensions as anti‑constitutional and declared it as null and void as from the date of adopting it;
- Established the date, on which the cut of pensions should be ceased (the government was given a term of three months);
- Decided that the legislator should establish, within a term of three months, a procedure according to which withdrawn sums are going to be compensated;
- Ruled that, after assessing the economic situation of the state and the possibilities of the state budget, the undisbursed part of the pensions shall be paid to pensioners no later than until 1 July 2015 (within five and a half years).
Conclusion
In many of its judgments, the Constitutional Court has interpreted the content of the above-mentioned provision of the Constitution. The Constitutional Court has indicated that, by establishing the right of a person to social security as a fundamental human right, the State is committed to assure its implementation thereof[51]. The State has a duty not only to create an effective, fair and sustainable social security system[52], but also to form an effective mechanism for the implementation of the right to social security, as well as to assure the exercise of this right, namely, to make sure that state institutions apply all resources at their disposal[53].
The Constitutional Court has established the meaning of “an effective mechanism for implementation of the rights”. It means that in order to implement the respective right (the right to social security), the State must elaborate such a regulatory mechanism that ensures the achievement of this aim by applying the most efficient and less hampering measures to persons[54].
Moreover, the State is committed to ensure social rights by implementing not only legislative but also administrative, judicial, economic, social and educational measures[55].
The Constitutional Court has indicated that Article 109 of the Constitution guarantees the right of the individuals to a stable and predictable as well as an effective, fair and sustainable system of social protection[56]. Meanwhile, Article 109 of the Constitution does not prohibit the legislator to change the current system or to select other mechanisms to solve certain social problems[57].
[1] The official title of the Constitution of the Republic of Latvia.
[2] The official short title of the parliament of the Republic of Latvia.
[3] All judgements and decisions of the Constitutional Court can be accessed at the Courts’ web page https://www.satv.tiesa.gov.lv
[4] Article 7 of the Constitution of the Russian Federation provides that “the Russian Federation shall be a social state, the policy of which is aimed at the creation of conditions providing a decent life and the free development of an individual”.
[5]Article1 of the Constitution of the Republic of Croatia provides that “the Republic of Croatia is a unitary and indivisible democratic and social state”.
Article 20 (1) of the Basic law for the Federal Republic of Germany provides that “the Federal Republic of Germany shall be a democratic and social federal state”.
[6]Article 1 of the Constitution of Spain provides that “Spain is hereby established as a social and democratic State, subject to the rule of law, and advocating as higher values of its, legal order, liberty, justice, equality and political pluralism”.
Article 1 of the Constitution of the Republic of Armenia provides that “the Republic of Armenia is a sovereign, democratic, social state governed by rule of law”.
[7]Article 2 of the Constitution of the Portuguese Republic provides that “the Portuguese Republic is a democratic State that is based upon the rule of law, the sovereignty of the people, the pluralism of democratic expression and democratic political organisation, and respect and effective guarantees for fundamental rights and freedoms and the separation and inter-dependence of powers, and that has as its aims the achievement of economic, social and cultural democracy and the deepening of participatory democracy.”
Federal Constitution of the Swiss Confederation, Title 2, Chapter 3 enshrines social goals.
[8] 2006-07-01
[9] 2006-07-01 para 18
[10] 2009-44-01 para 22
[11] 2009-43-01 para 24
[12] 2000-08-0109 para 4
[13] 2009-08-01 para 22.3
[14] 2009-86-01 para 12; 2009-43-01 para 24; 2009-44-01 para 16
[15] 2006-04-01 para 16
[16] 2005-02-0106 para 18
[17] 2006-04-01 para 16
[18] 2010-21-01 para 13.2
[19] 2009-08-01 para 15
[20] 2006-04-01 para 16
[21] 2009-86-01 para 9
[22] 2007-13-03 para 8.4
[23] 2009-76-01 para 6.1
[24] 2009-86-01 para 9
[25] 2004-21-01 para 10; 2009-43-01 para 26
[26] 2006-10-03 para 16.1
[27] 2007-23-01 para 7
[28] 2009-43-01 para 24
[29] 2009-43-01 para 31, 31.2
[30] 2009-44-01 para 22
[31] 2009-08-01 para 24
[32] 2009-43-01 para 27.2
[33] 2009-43-01 para 27.2
[34] 2004-01-01 para 9.3.2
[35] 2009-76-01 para 6.1
[36] 2009-86-01
[37] 2009-88-01 para 9
[38] 2009-86-01 para 10
[39] 2009-43-01 para 24
[40] 2009-43-01 para 27.2
[41] 2009-08-01 para 15
[42] 2009-43-01 para 24
[43] 2009-43-01 para 29.2
[44] 2009-08-01 para 22.3
[45] 2009-44-01 para 21
[46] 2009-86-01 para 10
[47] 2009-11-01 para 10.3
[48] 2009-43-01 para 29.2
[49] 2009-43-01 para 31
[50] 2009-43-01 para 32
[51] 2000-08-0109
[52] 2009-08-01 para 15
[53] 2004-21-01 para 6
[54] 2004-21-01 para 9.3
[55] 2004-21-01 para 6
[56] 2009-88-01 para 8
[57] 2009-86-01 para 10