Peculiarities of functioning and problems of improvement of capability of institution of an individual complaint in the Republic of Latvia
Aija Branta
Justice of the Constitutional Court of Latvia
XV Yerevan International Conference
“Safegarding and protection of human constitutional rights in the practice of constitutional justice,
taking into account the legal positions of the Europena Court of Human Rights”
Yerevan, Armenia on 21-23 October. 2010
Honourable President of the Constitutional Court of the Republic of Armenia, Honourable Presidents of the Constitutional Courts, Honourable President of the Venice Commission, dear Colleagues!
The right to file a constitutional complaint to the Constitutional Court of the Republic of Latvia was introduced in 2001. Simultaneously I would like to stress that our legislator has not followed the so-called model of “full constitutional complaint as it exists in Germany, for example, but has chosen a model which focuses solely on the legal provisions.
Currently the Law on the Constitutional Court states that any person who considers that his or her fundamental rights, as they are in the Constitution (Satversme), have been infringed by a legal provision, which is not compatible with a provision of a higher legal rank, may submit a constitutional complaint.
Consequently, one of the requirements for submitting a constitutional complaint is existence of an infringement of fundamental rights. The Constitutional Court of the Republic of Latvia has concluded that this requirement has been introduced to separate a constitutional complaint from an application in collective interests, namely, actio popularis. It is undeniable that constitutional complaints enhance general observance of the Constitution, as the judgments of the Constitutional Court of the Republic of Latvia are legally binding to all and the result of the proceedings will likewise influence rights of other persons. However, the primary purpose of the constitutional complaint is to serve as a measure of protection of fundamental rights of the applicant.
A constitutional complaint can be filed only after the ordinary legal remedies have been exhausted, for example, the person has submitted a complaint to a higher governmental institution, he or she has initiated the proceedings in a court of general jurisdiction etc. However, the Constitutional Court of the Republic of Latvia can declare an application admissible even without requiring these remedies to be exhausted in two situations. First, when it concludes that no ordinary remedies exist in the particular case and, second, when the regular remedies would not be efficient as the detriment of the applicant could not be averted.
When the ordinary legal remedies have been exhausted and the decision of the last institution has become effective the person has 6 months to submit a constitutional complaint.
The Constitutional Court of the Republic of Latvia was called to adjudicate on the constitutionality of the latter requirement. The applicant was of the opinion that the requirement to submit the complaint within the 6 months period was incompatible with the principle of proportionality and did not ensure the guarantees of legal stability, because the time limit of 6 month was too short.
When examining this case, the Court concluded that the necessity of the time limit flows from the very essence of the constitutional complaint, as it is only a subsidiary mechanism for the protection of person’s rights after all of the ordinary legal remedies have failed. The Court also stated that the time limit not only helps in achieving legal stability but also eliminates uncertainty the state institutions and other involved persons would have, if the outcome of the case would be postponed for an extended period. And on the other hand, the time limit is sufficient for a person to decide whether to submit a complaint. This constitutional complaint was, accordingly, rejected[1] .
For the constitutional complaint not to be used as an unjustified measure to delay execution of rulings of other courts, the Law on the Constitutional Court states that initiation of a case within the Constitutional Court does not suspend execution of a ruling of other court, unless the Constitutional Court has ruled otherwise. When deciding on this matter, the Constitutional Court of the Republic of Latvia takes into account whether the execution of the said ruling could have any legal consequences on the implementation of the judgment of the Constitutional Court, as well as the potential detriment the applicant could suffer if the ruling of the court of general jurisdiction was executed. In the practice of the Constitutional Court of the Republic of Latvia the decisions on suspension of the execution have been taken in exceptional circumstances only.
As to the procedure it can be mentioned that the decision on admissibility is taken by a Panel of three justices of the Constitutional Court of the Republic of Latvia. However, according to recent amendments to the Law on the Constitutional Court, in the situations where opinions within the Panel are divided, the justice insisting on the admissibility can request the matter to be decided by all justices of the Constitutional Court of the Republic of Latvia. The decision on admissibility or inadmissibility is not subject to appeal in any of the cases.
When reviewing a constitutional complaint, the Court may refuse to initiate a case if the legal reasoning of the application is manifestly insufficient to satisfy the claim. In practice, this is the most frequently invoked ground to declare the application inadmissible.
The Law on the Constitutional Court states that a person may submit a constitutional complaint, if he or she considers that an unlawful legal provision infringes his or her fundamental rights. Accordingly, the person has to express his or her subjective attitude towards infringement of fundamental rights. Namely, the applicant has to substantiate how, according to him or her, the contested provision has infringed his or her fundamental rights. At this stage, the applicant does not have the duty to prove that the contested provision is indeed incompatible with a legal provision of a higher legal rank.
The fundamental rights’ infringement, however, should be direct and individual. Therefore, the applicant has to demonstrate that the infringement of fundamental rights, caused by the contested legal provision, directly concerns him or her. In the application, the person should clearly indicate that the challenged provision has been applied to him or her or that it can otherwise infringe his or her rights.
In the case law of the Constitutional Court of the Republic of Latvia three situations can be distinguished where the infringement of fundamental rights has been considered to be sufficiently established for the case to be initiated. I will use the terms existing, expected and potential infringement to describe those situations. Further in my speech I will elaborate more closely upon each of them.
The first situation is straightforward – when the contested legal provision has been applied to the particular person, the infringement of the fundamental rights is regarded as existent. In these situations the application will be held admissible, provided it satisfies all the other requirements.
The second situation is where the Constitutional Court of the Republic of Latvia has initiated and adjudicated cases that were based on an infringement that was expected to occur in future.
In these situations facts of the cases suggested that the contested provision would have been applied to the applicant, if it remained in force.
I would like to provide an example here. In 2009, the Constitutional Court of the Republic of Latvia examined a case where the applicant had contested a legal provision which required managers of apartment houses to possess a certificate of a specific type of vocational education. The applicant, who had already acquired a university degree, considered this requirement A to be disproportionate.
At the time the application was lodged, the contested provision had not entered into legal force yet. Moreover, the requirement to possess the named certificate would have applied to the applicant only starting from 2012. Nevertheless, the contested provision would have affected him much sooner. The required certificate could have been obtained within 2 – 3 years only. Besides at the time the constitutional complaint was submitted the applicant was already fulfilling the duties of an apartment house manager. Accordingly, the contested provision required him to perform certain activities even before it had came into legal effect and was applied to him, if he was willing to continue working in the chosen profession.
The Court decided that under these circumstances the infringement was to be expected and, therefore, it was not necessary to wait until the contested provision will come into legal force[2].
The purpose of initiating a case on the basis of an expected infringement is either to prevent the infringement from occurring or to eliminate it at the earliest stage possible. The principle of reasonability prohibits the Court to wait until the inevitable detriment will be caused by the contested legal provision.
The third situation is when the constitutional complaint is based on a potential infringement.
The Constitutional Court of the Republic of Latvia has indicated that a constitutional complaint is admissible if there is a grounded possibility that the contested legal provision would infringe the rights of the applicant. Consequently, in the case of a potential infringement it is merely feasible that the contested legal provision will be applied and that the applicant’s fundamental rights will be infringed.
For instance, a litigant contested a provision of the Civil Procedure Law that permitted access to cassation proceedings within the Supreme Court only through a mediation of a lawyer who was member of the Bar. The Constitutional Court of the Republic of Latvia initiated the case before the infringement of the applicant’s fundamental rights had actually occurred. Namely, at the time of the submission of the constitutional complaint, the case was still being examined at the appellate instance. In these circumstances it could not have been excluded that the applicant would have no reason to submit a cassation complaint. However, the Court considered the possibility that the contested provision will be applied to the applicant to be sufficiently grounded[3].
The expected and potential infringement differs as to their degree of certainty. In the cases of the expected infringement it appears that person’s rights will be restricted when the contested provision will be applied. Whereas, the potential infringement can be established in the situations where it is clear that the rights will be restricted, if the contested provision will be applied. Nevertheless, also in the situations of a potential infringement the probability that the provision will be applied should be rather high for the case to be incited. Otherwise there would be the risk for the complaints to extend to actio popularis.
The cases of a potential infringement should be distinguished from the situations where the infringement is caused by the mere existence of a legal provision.
That kind of infringement can occur, if, for example, a legal provision provides a criminal liability for performance of activities, which are part of person’s fundamental rights.
In the practice of the Constitutional Court of the Republic of Latvia, there has been a case wherein an editor of a newspaper contested a provision of the Criminal Law as restricting her freedom of speech. The named provision set down criminal liability to journalists and editors for defamation of public officials in relation to fulfilment of their duties. A deprivation of liberty up to the period of two years was the envisaged punishment.
The contested legal provision had not been applied to the applicant. Neither were there any circumstances that would have suggested that the application of this provision was expected or potential.
Nevertheless, the contested provision caused an infringement of the applicant’s rights by its mere existence. Namely, the fact that the applicant could, potentially, be held criminally liable for the above mentioned activities in itself restricted her freedom of speech and professional activities. Accordingly the infringement was existent even without the contested provision being applied, as it would be incompatible with the very purpose of the constitutional complaint to require the applicant to provoke a situation where the provision could be applied to her[4].
Similarly the European Court of Human Rights has established that the infringement of the fundamental rights of a homosexual person is already caused by the mere existence of a legal norm that establishes criminal liability for sexual relations between two homosexual persons[5].
Thus it can be concluded that in the case law of the Constitutional Court of the Republic of Latvia the term “infringement” has not been understood solely as an infringement that has already occurred. When interpreting and applying this term, the Court has included therein also the cases of expected and potential infringement. And in some limited circumstances, the infringement can be caused also by the mere existence of a legal provision.
According to the Law on Constitutional Court the judgment of the Constitutional Court and the interpretation of the relevant legal provisions provided therein shall be binding on all state and local government institutions, as well as courts. Any legal provision the Court has declared incompatible with a provision of a higher legal rank shall be regarded void. In their turn, the Civil, Criminal and Administrative Procedure Laws state that a judgment of the Constitutional Court on the unconstitutionality of the provision that has been applied in the proceedings is a ground for reopening the case.
[1] Constitutional Court of the Republic of Latvia judgment, in the case Nr.2002-09-01, November 26, 2002.
[2] Constitutional Court of the Republic of Latvia, judgment, in the case, Nr.2009-74-01, February 18, 2010.
[3] Constitutional Court of the Republic of Latvia judgment, in case Nr.2003-04-01, June 27, 2003. 109.
[4] Constitutional Court of the Republic of Latvia, judgment in the case Nr.2003-05-01, October 29, 2003.
[5] ECHR judgment in the case of Dudgeon v. the United Kingdom (application Nr.7525/76) October 22, A 1981; ECHR judgment in the case of Norris v. Ireland (application Nr.10581) October 26, 1988.