Role of the Constitutional Courts in Upholding and Applying the Constitutional Principles: the Case of Latvia
Prof. Ph.D. Ineta Ziemele
President of the Constitutional Court of the Republic of Latvia
Paper presented at the XVIIth Congress of the Conference of European Constitutional Courts
Batumi, 29 June 2017
Dear colleagues, ladies and gentlemen,
Let me begin by stating that general principles of law are a source of law in every democratic legal system. The Latvian Constitutional Court recognizes general principles of law as a source of law; in cases in front of it, it interprets and applies general principles like any other legal norm. Post-independence legal theory and practice in Latvia has evolved gradually. For example, in the 1990s it was argued that “general principles of law, which explain, deepen and add to the text of the written constitution, can be designated as the principles of constitutional law. Quite often the principles of constitutional law are found within the text of the constitution, in a specific article, however, they may be also revealed by the entire text of the constitution and the systemic structure of the written constitution.” Since that time the scholarly debate has evolved and the practice, including that of the courts, along with that. The prevalent theory today in Latvia is that general principles of law are derived from the basic norm (Grundnorm) and instruct the content of, inter alia, Article 1 of the Constitution, which provides that Latvia is a democratic independent republic. Case-law of the Constitutional Court shows that general principles of law may instruct the scope and content of all constitutional provisions.
In my presentation, I will focus on the techniques used by the Constitutional Court when it applies general principles of law. Before I engage with examples, let me recall certain features of the Latvian constitutional setting.
The 1922 Satversme among the oldest European constitutions
The Satversme was adopted on 15 February 1922 after several years of work by the Constitutional Assembly (Satversmes sapulce). It emanates from the Grundnorm which provides that the Latvian nation on its land has established an independent, democratic nation State. The basic norm was spelled out in the 18 November 1918 Act on the Proclamation of the State. The subsequent interim constitutional documents have been adopted and the legal system has been formed on the basis of this basic norm. Since 1922, the Satversme is in force in the territory of Latvia. It emanates from the basic norm. This norm can only be changed through a revolution or revolt but not through amendments to the Satversme.
The Constitutional Court has noted that “the Constitution, essentially, is a short, laconic, yet complex document”. This was a deliberate decision by the Constitutional Assembly of Latvia. Since then we have learned that the brevity and the open-ended texture of the constitutional provisions allows for an interpretation in accordance with the modern-day conditions. This feature of the Constitution came in very handy many decades later. During the years of the illegal Soviet occupation of Latvia, the Satversme remained dormant, since, firstly, it was never repealed through proper constitutional procedure. Secondly, the Soviet annexation of Latvia along with the other Baltic States remained a contested situation in international law until 1990 when all three Baltic States declared their independence from the Soviet Union. In the 1990 Restoration of Independence Declaration the legislative body elected in partially free elections declared that the Satversme is in force but ought to be suspended except for those Articles which can only be suspended by the way of a popular referendum. In other words, the point of departure was clear – at that moment Latvia had a constitution derived from the Grundnorm. It was necessary to see whether it was possible to adapt the constitution to the changed circumstances. After an analysis and following free elections in 1993 the Satversme was re-effected fully.
The 1922 Satversme is an example of a constitution based on values of liberal democracy. It can be recalled that Latvia was one of the first countries in Europe to allow for universal suffrage which was already provided for by the 1918 Political Platform, the first interim Constitution of Latvia. The principle of equal rights was very important at the early stages of State-building in Latvia in the 1920s.
Upon the restoration of independence almost 30 years ago, the question emerged what were the limits of transitional and subsequently fully reestablished independent public authorities in Latvia. The answer to this question early on was, among others, provided by the Constitutional Court which explained that the boundaries of the State’s conduct after the restoration of independence are established not only by fundamental rights, but also by general principles of law, inter alia the principle of justice. “When restoring the legal system of independent Latvia, the legislator, by observing the principle of the rule of law, had to take measures so that as far as possible minimize the losses caused by the previous regime and restore justice”. Certainly, in its early case-law the Court indicated general principles of law such as justice and rule of law as important aims to be achieved.
After the restoration of independence and during the early stages of the transformation from the Soviet legal system to the democratic legal system based on rule of law, Latvia had to master many new concepts of law, including that of general principles of law, and ensure their effective application. The Constitutional Court in performing its function has expedited the transformation of the Latvian legal system from Soviet law which recognized some general principles which were based in Soviet ideology rather than the basic norm and the rule of law. It is always useful to keep in mind that unlike the States of Central Europe, Latvia during its transition from the totalitarian regime to democracy was confronted with a double task, namely, the restoration of independence of the State and of the democratic pluralist State regime. Besides, the USSR’s colonizing policies had hit Latvia especially hard.
Currently Latvia’s scholarly writings, albeit still limited in volume, and practice is characterised by an extensive recognition of various sources of law which include general principles, case-law, judge-made law, and by application of general principles of law as genuine legal norms. The contribution by the Constitutional Court in applying and explaining general principles of law has been invaluable.
Constitutional Court and General Principles of Law
The Constitutional Court in its practice has recognised general legal principles as a source of law, by using Article 1 of the Constitution and noting that a number of principles of a state governed by the rule of law have been derived from Grundnorm and fall within the scope of Article 1 of the Constitution, which provides that Latvia is a democratic independent republic.
It is accepted in Latvia by now that a constitution consists not only of the written text, i.e., positive legal norms, but also of general principles of law. The Constitution can be fully comprehended in practice only together with the general principles of law (which is one type of legal norms). The Constitutional Court in its practice has gradually integrated the content of general legal principles into the norms of the Constitution, thus ensuring harmonisation between general principles of law and written norms of the Constitution. Looking at the case-law of the Court, it can be noticed that early on in its practice the following general principles have been invoked by the complainants: the principle of legal certainty, the principle of legitimate expectations, the principle of justice and the principle of the rule of law. Gradually other principles were invoked by the complainants and the Court, for instance the principle of good governance, but it remained unclear for some time whether the Court would be prepared to refer in the resolutive part of the judgment to the principles directly or only as a part of an article of the Constitution. In several cases until 2009 the Court declared legal norms to be compatible or incompatible with Article 1 of the Satversme, even though the case had not been initiated on the basis of this article. The Court appears to have chosen to base its decision on Article 1 because it has examined in the judgment some general principles of law and then has decided that Article 1 is the best suited written provision in this context to come to the decision. Finally, in the case No. 2009-43-01 the Court decided to introduce a more clear and foreseeable approach to general principles of law. The Court, first, determined that general principles of law are part of Article 1 which spells out constitutional values of Latvia. Second, the Court decided that it would examine the compatibility of legal norms with the general principles of law. This indicated that general principles of law have a higher legal force than written legal norms except for the constitutional norms. The Court also noted that there are different principles and their effect may be different depending on the nature of the issue. The Court decided that at least for some time Article 1 would remain the best-suited written norm that the Court would operate with when applying general principles of law. Since this period the Court has examined general principles in conjunction with different articles of the Constitution often establishing the compliance with general principles as one of the tests of constitutionality. Such is the case when the Court analyses the compliance with Article 91 of the Satversme on equal rights and non-discrimination.
Moreover, time and again the Court has reminded the legislator that it cannot narrow down the general principles of law that function in a democratic state governed by the rule of law. It is true that for the time being in terms of the hierarchy of legal norms the Constitutional Court has insisted on the Constitution being the legal act of the highest legal force. It has not declared expressis verbis that general principles of law prevail over the written Constitution. But the Court’s approach in reading the Constitution through the eyes of the general principles of law and in view of the harmonization of the two sources of law suggests that the Court is aware of the role and character of the general principles of law in a democratic system based on the rule of law. It can be concluded that the methodological approach chosen by the Constitutional Court means that the essence of the general principles of law both instruct and prevail over the written provisions of the Constitution. A number of recent judgments show a tendency towards the recognition that the general principles of law are above the Constitution.
It should be recognized that the Constitutional Court is a privileged stake-holder in a democratic State because it has the final say in identifying general principles of law by deducing them from the basic norm. In this respect, it is important to recognize that the Court is subject to control by the people since it should maintain the authority and credibility through its decisions in the eyes of the people.
To sum it up, the Constitutional Court’s role in applying general principles of law was the following: the Court deducts principles from the basic norm and shows the other staek-holders in Latvia of their existence, content and practical effect. The Court is guided by the practice of other democratic European States and the European Court of Human Rights.
As for the Court’s role in upholding the principles it must be emphasized that it has succeeded in preserving the application of law by taking into account general principles of law during one of the worst economic crisis in Latvia’s recent history.
Examples of General Principles of Law Specific to the Latvian Legal System
One of the general principles of importance for Latvia and one that delimits Latvia’s modern constitutional identity is the principle of State continuity. This principle derives from the Grundnorm in the circumstances when Latvian people could reclaim independence of their State in face of a long unlawful occupation. It is intertwined with important rules of international law that begun to emerge between two world wars. The principle instructs the content of Article 2 of the Satversme as well as the 4 May 1990 Declaration on the Restoration of Independence. The principle of State continuity also requires all Latvian constitutional organs and executive bodies to comply with this principle in carrying out their public authority. This principle instructs Latvia’s foreign policy and is the basis for the formulation of various international claims, such as on restoration of property abroad, of currency reserves in foreign banks and others. Latvia insisted that it is not a new State successor to the former USSR. Instead it continues its proper legal personality and the associated rights and obligations.
The principle has come up in several cases in the Constitutional Court. The Court had to identify both the scope of the principle and its practical consequences. One could attempt to provide a typology of cases where the principle of State continuity has instructed the application of the Constitution. First, there are cases which are about the restoration of the identical Republic of Latvia following the long illegal occupation. In other words, these are the cases where the Court had to explore the content and limits of the sameness of the State after 1990 following several decades of only de iure existence and very limited de facto exercise of State power. Second, these are the cases about the changes that have been inflicted in Latvia during the illegal occupation and their constitutionality.
In the so-called Double Citizenship Case the Constitutional Court concluded that “the doctrine of state continuity comprises also the principle of continuity of citizenship. If the state chooses to be based upon its continuity, then regulation on citizenship should comply with this principle.”
The principle of continuity of citizenship envisages an obligation of the State, to the extent possible, to restore the rights appertaining to citizens who were citizens prior to the illegal occupation of the State. However, the Court decided that even in the context of the principle of continuity, the State does not have the obligation to register as citizens all persons who were citizens of this State before the loss of its independence and their descendants. The Court insisted that the persons concerned had to voice their interest in that their citizenship rights are re-effected. In other words, the Court upheld the presumption of citizenship but considered that it was a rebuttable presumption in case of a failure to act.
The other leading case concerned the border delimitation between Latvia and the Russian Federation in which the Court was asked to assess the constitutionality of the draft Border Agreement between Latvia and the Russian Federation. The Court referred in detail to the notion of state continuity in situations where the independence of a State is deprived in violation of international law. As for the Baltic States, the Court noted that many other states did not recognize that Estonia, Latvia and Lithuania had become a part of the USSR. It means that the unlawfully oppressed state de iure continued to exist and there consequently also existed a legal possibility to restore the state’s authority de facto in accordance with the rules of international law. The Court determined that if in such circumstances state’s powers are de facto restored, it does not form a new state but continues its de facto interrupted statehood. This is the essence of the doctrine of state continuity in international law that follows from the use of force or threat of the use of force. In this case, however, the Court decided that Article 3 of the Satversme which sets forth the state boundaries provides for a core of a territory which cannot be lost if the state identity is to be preserved, on the one hand, and, on the other hand, there are acquired territories that do not form part of the core. The territory disputed with Russia was situated on the margins of Article 3. In the Court’s opinion if the state decided to give this territory up it would not violate the core of Article 3.
The Court determined that in view of the principle of state continuity, it is not necessary for the state to restore its independence in the exactly same territory with the same citizens and the same constitutional order, as it was before the illegal termination of the independence of the state. It is necessary to accept that, in the course of time, the body of residents of a state will have changed, and the territory and constitutional order may also change. The doctrine of continuity accepts that such change may take place. But in such circumstances in restoring independence the state must act in accordance with the doctrine of continuity and accept changes not in accordance with tabula rasa principle but on the basis of the previous constitutional regulation. In this passage, it should be seen that the Court was more guided by the theory of state continuity in international law which indeed accepts that territory, people and even government may change but it does not necessarily affect the state as the same legal person in international law. In terms of constitutional law, it is important to add that the constitutional identity has to be maintained to claim the same state. The constitutional identity is a stricter test and may require the restoration of the same borders or the principles of citizenship. The Court has not yet fully explored the scope of the interaction between the principle of State continuity as part of basic norm and the essential elements or core of the constitutional identity. It has recognized the two principles, i.e., of State continuity and the core of the constitutional identity but has been rather more careful in using the stricter constitutionality test.
The Court identified the principle of the core of the constitutional identity in the so-called Lisbon Treaty Case. By ratification of the Treaty of Latvia’s Accession to the European Union, the European Union law has become an integral part of the Latvian law. Thus, to prevent possible contradictions between the Latvian and the EU law, in applying national legal acts, the EU legal acts and their interpretation consolidated in the case-law of the Court of Justice of the European Union must be taken into consideration. At the same time, the Constitutional Court has also noted that the EU legal acts should be taken into consideration both in applying and interpreting national legal acts and in preventing possible contradictions between the Latvian and the EU law, to the extent this does not affect fundamental principles of the Satversme. The Constitutional Court noted that Member States have an obligation to ensure exact transposition of requirements set for in the EU directives, i.e., to transpose all the commitments of the Member State that follow from provisions of a directive into the national legal system, moreover, to do it clearly and precisely, so that persons would be able to understand their obligations and rights. Requirements of the EU directives that Latvia has transposed are considered also in reviewing the content of national legal norms. In the Lisbon Treaty Case the Court defined the core constitutional values that should not be affected by integration into the European Union. The Court held: “Consequently, delegation of competencies cannot violate the basis of an independent, sovereign and democratic republic based in human rights and rule of law. Likewise, it cannot affect the right of citizens to decide upon the issues that are essential in a democratic state.” For the moment, this is a rather broad definition of the content of the core of constitution. The Court will most likely be faced with cases in which it will have to work on detail.
Within the second type the following cases should be mentioned: calculation of old-age pensions for citizens and non-citizens where they have both worked outside the territory of Latvia and contributed to the budgets of the Soviet republics other than Latvia. Also, two recent cases should be mentioned. One concerned Soviet military pensioners who desired to receive both the Russian military pension and the Latvian old-age pension and the use of the Soviet normative acts in determining early retirement of the parents taking care of their children with disability when Soviet acts had provided for the recognition of disabilities on a very limited scale.
The Court determined that the principle of state continuity means that Latvia was not the successor to the rights and obligations of the former USSR and that Latvia did not have to undertake the commitments of another state to ensure old-age pensions to non-citizens for the period they had worked and contributed outside the territory of Latvia. The Court identified that the Constitution does not recognize the right to have pensions from two different countries as part of the scope of the right to social assistance. Finally, the Court determined that even where the scope of the Soviet normative regulation has to be applied it has to be applied in compliance with the developing international human rights law without any discrimination. This reflects the thinking of the International Court of Justice in the Advisory Opinion in the so-called Namibia case. By all means these are complex cases because, on the one hand, Latvia did no inherit responsibility for changes in its territory during Soviet occupation and, on the other hand, it has declared that the principle of state continuity ought to be applied in harmony with the principle of respect for human rights.
Another principle that is both very important and characterizes modern Latvian legal system is the principle on direct effect and application of binding international law in Latvian legal system. Pursuant to the doctrine of monism, international legal provisions that are binding upon the Republic of Latvia are applied directly in Latvia. In the legal hierarchy, international norms will prevail over hierachically the same national legal norms. Depending on content and degree of legitimacy attributed to the international legal norm, these norms can take different place within the national legal hierarchy. As for EU legal norms, since they may be directly applicable and take priority by virtue of the nature of EU law, the issue of their hierarchy is not relevant. It is therefore that the question on the relationship between the written Constitution and international and EU law becomes interesting. The Constitutional Court has provided a detailed assessment of international agreements, particularly in the two previously mentioned complicated cases – the Latvian–Russian Border Agreement Case and the Lisbon Treaty Case.
In the judgment of 30 August 2000 in the so-called KGB Case, the Constitutional Court defined its approach to interpretation of the Satversme in connection with the norms of international human rights law and to the use of the case-law of the European Court of Human Rights in interpreting the norms of the Satversme. The Court held that Article 89 of the Satversme shows that the legislator did not have the aim to contrast the provisions on human rights included in the Satversme against the international norms of human rights, but quite to the contrary – to attain harmony between them. International law and the practice of its application may serve as a means for establishing the content of legal norms and principles comprised in the Satversme. The Constitutional Court has noted that in cases, where doubts arise with regards to the content of human rights included in the Satversme, these should be interpreted, to the extent possible, in accordance with interpretation used in the practice of applying international human rights. This obligation follows both from Article 89 of the Satversme and the principle of the openness of the Satversme. The Constitutional Court has underscored that a state may not contrast its national law with its international commitments (law).
In view of the above, the case-law of the Constitutional Court and the legal science in Latvia recognize that the Satversme contains the core values which underlie constitutional and international identity of Latvia. There are no legal avenues to change this identity. Therefore international and EU law is applied in harmony with and as far as they do not conflict with the core of the Satversme.
We have seen that the two principles of state continuity and direct application of international law both characterize the constitutional identity of the Republic Latvia but these principles are different in their nature. State continuity explains an aspect of the basic norm, i.e., that Latvia is an independent state which has never ceased to exist. The principle of direct application of international law characterizes the legal system of Latvia that emanates from the basic norm. It is a legal system that is very open to European and international best practices. At the same time, there is a limit to the latter principle because the openness cannot undermine the core of constitutional identity of Latvia. An example of such a core constitutional value will be Latvian language as the only State language. It is therefore that a certain hierarchy of principles emerges. The general principles which reflect core constitutional values of Latvia will prevail over other general principles of law.
The experience of Latvia is particularly instructive as concerns the learning process with regards to the notion of general principles of law, their content and practical application by the Constitutional Court as well as legal scholars and the courts of general jurisdiction. The Latvian case also shows that the basic norm is specific to each legal system that it forms and this is situated within the specific historical context and the general principles of law carry with them the constitutional particularities as well. Finally, it is also true that coming out of normativist tradition it is difficult to avoid the desire to include general principles of law into positive or written rules. Latvia has clearly gone through that stage of development as well, both in the practice of the Constitutional Court and the practice of the legislator, which from time to time spells out general principles of law in a piece of legislation. At the same time, it can be safely said that today legal practice in Latvia has learned how to apply general principles of law directly without them being written in a form of a legal provision.
 Juris Jelāgins. Latvijas rakstītā konstitūcija. Latvijas Vēstnesis, 1997, Nr 119, 14.04.1997.
 Decision of 21 October 2016 by the Constitutional Court of the Republic of Latvia in Case No. 2016-03-01, Para. 10 and judgement of 21 January 2002 by the Constitutional Court of the Republic of Latvia in Case No. 2001-09-01.
 The Satversme is the Constitution of the Republic of Latvia.
 Ringolds Balodis & Jānis Lazdiņš, “Satversmes vēsturiskā attīstība”, grām. Latvijas Republikas Satversmes komentāri. Ievads. I nodaļa. (Rīga: 2014) pp. 52 – 57 (on the first and second interim constitutional documents of 1920).
 Daiga Rezevska, Vispārējo tiesību principu nozīme un piemērošana. 2. izd. Rīga, 2015, (atsauce uz Kelsena pamatnormas definīciju), p. 42.
 Par Latvijas Republikas neatkarības atjaunošanu: LPSR Augstākās padomes deklarācija. Ziņotājs, Nr. 20, 17.05.1990 (The declaration of 4 May 1990 by the Supreme Soviet of the Latvian SSR “On Restoration of the Independence of the Republic of Latvia”)
 Ineta Ziemele, State Continuity and Nationality: The Baltic States and Russia. Past, Present and Future as Defined by International Law. Martinus NIjhoff Publishers, 2005, p.32 et seq.
 Nils Muižnieks, “Cilvēktiesību vēsturiskā attīstība Latvijā no 1918. līdz 2000. gadam”. Grām. Inetas Ziemeles red. – Cilvēktiesības pasaulē un Latvijā. – Izglītības soļi – Rīga, 2000.
 Judgment of 25 March, 2003 by the Constitutional Court of the Republic of Latvia in Case No. 2002-12-01, Para. 1 of the Concluding Part.
 Judgment of 26 March, 2004 by the Constitutional Court of the Republic of Latvia in Case No. 2003-22-01.
 E.g., judgment of 4 January, 2007 by the Constitutional Court of the Republic of Latvia in Case No. 2006-13-0103.
 E.g., judgment of 15 June, 2017 by the Constitutional Court of the Republic of Latvia in Case No. 2016-11-01.
 Judgment of 15 June, 2017 by the Constitutional Court of the Republic of Latvia in Case No. 2016-11-01.
 LR Augstākās tiesas Senāta Administratīvo lietu departaments Lieta Nr. A42455205, 2009. gada 25. augustā.
 In this case the norm of the Citizenship Law, adopted in 1994, that envisaged that citizens of Latvia and their descendants who in the period from 17 June 1940 to 4 May 1990, escaping from the terror of the occupation regimes of the USSR and Germany, had left Latvia as refugees or had been deported, and due to these reasons had not been able to return to Latvia and who in this period had become naturalised abroad, retained the right to register in the Population Register as citizens of Latvia, and following registration to enjoy the rights and duties of citizens in full, if the registration occurred prior to 1 July 1995. If these persons registered after 1 July 1995, they had to renounce the citizenship of any other state.
The applicant – the Department of Administrative Cases of the Senate of the Supreme Court held that prohibition of dual citizenship could be equaled to deprivation of citizenship. See Constitutional Court of the Republic of Latvia, Judgement in Case No. 2009-94-01, 13.05.2010. On the principle that in situations of State continuity, there is a presumption of continuity of the citizenship, see Ineta Ziemele, Pilsonības nepārtrauktības princips valsts nepārtrauktības situācijā. Jurista Vārds, 2012.gada 3.aprīlis, Nr. 14/15.
 Ineta Ziemele. Acceptance of a Claim for State Continuity: A Question of International Law and its Consequences. Juridiskā zinātne / Law, No. 9, 2016, pp. 39-47.
 The judgment was considered as very controversial and received criticism. See also Separate Opinion of Judge Kristīne Krūma in Case No. 2007-10-0102, 29.11.2007..
 Ineta Ziemele, State Continuity and Nationality: The Baltic States and Russia. Past, Present and Future as Defined by International Law. Martinus NIjhoff Publishers, 2005, pp.124-133.
 Par Latvijas valsts konstitucionālajiem pamatiem un neaizskaramo Satversmes kodolu. Konstitucionālo tiesību komisijas viedoklis un materiāli, 2012.
 Judgment of 7 April, 2009 by the Constitutional Court of the Republic of Latvia in Case No. 2008-35-01.
 Judgment of 17 February, 2011 by the Constitutional Court of the Republic of Latvia in Case No. 2010-20-0106.
 Judgment of 15 June, 2017 by the Constitutional Court of the Republic of Latvia in Case No. 2016-11-01.
 Para 1 of Transitional Provisions in the law “On State Pensions” lists periods of work and periods equaled to them accrued in the territory of the USSR, which are held as equivalent to the period of insurance and, thus, influence calculation of the old-age pension. Compared to citizens of Latvia, for non-citizens this circle of periods is narrower, i.e., only the period of studies and political repressions is equaled to the period of insurance. The applicants noted that the different rules regarding calculation of insurance periods for citizens and non-citizens were discriminatory. See Constitutional Court of the Republic of Latvia, Judgment in Case No 2010-20-0106, 17.02.2011.
 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), ICJ Reports 1971.
 Daiga Rezevska, Ineta Ziemele, “15. pants. Ārējo normatīvo aktu, vispārējo tiesību principu un starptautisko tiesību normu piemērošana”. Grām.: Administratīvā procesa likuma komentāri. Jautrītes Briedes redakcijā. – Rīga: Tiesu namu aģentūra, 2013, pp. 223. – 224.
 Ibid., pp. 232. – 233.
 Ibid., pp. 236. – 239.
 Judgment of 7 April, 2009 by the Constitutional Court of the Republic of Latvia in Case No. 2008-35-01, Para 14.; See Par Latvijas valsts konstitucionālajiem pamatiem un neaizskaramo Satversmes kodolu. Konstitucionālo tiesību komisijas viedoklis un materiāli, 2012.