The Significance of the European Convention for the Protection of Human Rights and Fundamental Freedoms in the Case-Law of the Constitutional Court of the Republic of Latvia
Prof. Ph.D. Ineta Ziemele
President of the Constitutional Court of the Republic of Latvia
Paper presented at the bilateral meeting of the Constitutional Courts of Latvia and Slovenia
Ljubljana, 2 October 2017
Dear President ot the Counstitutional court, judges and colleagues,
Latvia’s legal system is an open legal system, since provisions of international law that are binding upon Latvian and principles of international law are applied directly. Such an approach which has been chosen by Latvia essentially complies better with the understanding of international and national legal systems as elements of a united universal system of law. In the hierarchy of legal norms of Latvia, norms of international law that are of the same legal level take priority over national legal norms of the same level. Norms of international law, depending upon their content and degree of legitimation, may position themselves on various hierarchical levels of the legal system.
Article 89 of the Satversme [Constitution] of the Republic of Latvia (hereinafter – the Satversme) provides: “The State shall recognise and protect fundamental human rights in accordance with this Constitution, laws and international agreements binding upon Latvia”. This norm comprises the principle of interpretation of Chapter VIII of the Satversme, which contains the catalogue of fundamental rights, in compliance with norms of international law.
Adhering to the understanding of international and national law as elements of a united universal or global legal system and in view of Latvia’s openness to such an approach, the issue of relationship between the Satversme and international law is of particular interest. It has been recognised both in the case-law of the Constitutional Court of the Republic of Latvia [hereinafter – the Constitutional Court] and in the Latvian legal science that the Satversme comprises such norms that characterise the constitutional and, thus, also the international identity of the state of Latvia. Change of this identity is inadmissible within the framework of the Satversme that is in force. Therefore, norms of international law are applied in compliance with or directly together with the Satversme and insofar as this does not affect the core of the constitutional identity of the Latvian state.
The place of the European Convention for the Protection of Human Rights and Fundamental Freedoms within the legal system of Latvia
The European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter – the Convention) is an international treaty that provides for human rights. Thus, the Convention, as to its subject, is one of the agreements referred to in Article 89 of the Satversme. As an international treaty that has been ratified by the Saeima [the Parliament], in Latvia’s formal hierarchy of legal norms the Convention is placed below the Satversme, and yet Chapter VIII of the Satversme itself, essentially, is interpreted in compliance with norms of the Convention and the case law of the European Court of Human Rights (hereinafter also – ECHR). Of course, the formal language of Article 89 of the Satversme follows the approach established in the 19th century to the national law and international law as two isolated legal systems, or, as Hans Kelsen called it, the position of legal pluralism.
Interpretation of the Satversme or application of the Convention?
Pursuant to the second and the third paragraph of Section 16 of the Constitutional Court Law, the Constitutional Court examines cases with regard to:
“[..] 2) conformity of international agreements signed or entered into by Latvia (also until the confirmation of the relevant agreements in the Saeima) with the Constitution;
3) conformity of other laws and regulations or parts thereof with the norms (acts) of higher legal force [..]”.
Furthermore, pursuant to the sixth paragraph of this section it examines “conformity of Latvian national legal norms with those international agreements entered into by Latvia that are not in conflict with the Constitution”.
Thus, this competence of the Constitutional Court has been established in conformity with the understanding of the role of international law held by legal positivists, which was of particular influence in the second half of the 19th century. Hence the Satversme, as the foundation of the national legal system prevails over international agreements. The Constitutional Court in accordance with the formal text of the Constitutional Court Law has the jurisdiction to review conformity of international agreements with the Satversme. It is true that the understanding of the Satversme, too, has evolved in Latvia and the Constitutional Court in its practice also controls the compatibility of legal norms with general principles of law. Such delimitation of the Court’s jurisdiction is also required if the theory of the core of the Satversme is followed. The principle of openness to international law, on the other hand, perhaps would demand a more nuanced approach to how the jurisdiction of the Constitutional Court is delineated.
The Court’s jurisdiction to examine compliance of a legal norm of lower legal standing with a legal norm of higher legal standing comprises also the right to assess the compliance of a national legal norm with the norm of an international agreement. As noted before, norms of international agreements concluded in the area of human rights are hierarchically superior to the norms of national legal enactments. This is the principle that has crystallised in the case-law of the Constitutional Court and the doctrine and it better conforms to the principle of openness.
In addition to this, it must be taken into consideration that section 13 of the law “On International Treaties of the Republic of Latvia” provides: “If an international treaty ratified by the Saeima contains different provisions than legal acts of the Republic of Latvia, the provisions of the international treaty shall apply.” Thus, the legislator has provided that the party applying the norms, in a situation of collision, even within the framework of the same level of legal hierarchy ought to follow the norm deriving from the international source of law.
The sixth paragraph of Section 16 of the Constitutional Court Law abides by the principled position taken by the legislator that international law prevails, insofar it is not contrary to the Satversme. This part has been worded in a rather open manner, without specifying whether it pertains to norms of the same level or also to norms of a higher and a lower level. In view of the fact that within Latvia’s legal system norms of international law are of primary nature, as mentioned before, such situations, which do not follow stricto sensu from the de jure hierarchical relationships of norms, which is the principal competence of the Court, could be “read” into the Constitutional Court’s jurisdiction with respect to international treaties. At the same time, Section 13 of the law “On International Treaties of the Republic of Latvia” is a norm that resolves a conflict of norms, and courts of general jurisdiction, in applying norms, should primarily abide by it.
And yet, it is absolutely clear that the Constitutional Court interprets and applies international treaties, inter alia, the Convention, which does have its own authoritative body to interpret it – the European Court of Human Rights. In practice this competence of the Constitutional Court has never been used in a revolutionary way, by applying the Convention in a way to substantiate, let’s say, something that is not envisaged in the Convention. In practice, the Constitutional Court applies the Satversme in accordance with the case-law of the ECHR and explains the content and scope of articles of the Constitution that regulate human rights in accordance with the case-law of the ECHR. Of course, in some matters related to fundamental rights, the Constitutional Court, possibly succumbing to the dictate of local constitutional circumstances, has elaborated its own understanding of the content and scope of the relevant articles of the Satversme. The European practice shows that these are exactly the situations when interesting processes take place, when the national may influence the common European understanding of the content of law.
Case-law of the Constitutional Court in applying the Convention
In the case no. 2010-20-0106 the applicants contested the compliance of Para 1 of the Transitional Provisions of the law “On State Pensions” with Article 14 of the Convention in conjunction with Article 1 of the Protocol no. 1 to the Convention, and Article 91 of the Satversme (the right to an equal treatment). In this case it had to be reviewed whether Latvia’s obligation to include in calculation of pension the years that during the USSR period the respective person had worked outside Latvia followed from the relevant articles of the Convention and the Satversme. The Court’s answer, which crystallised following an in-depth analysis of ECHR case-law, was that the impugned norm was compatible with the Convention and the Protocol thereto, as well as with the Satversme.
In the case no. 2010-55-0106 the applicants the contested compliance of the fifth part of Section 7 of the “Operational Activities Law” with Article 96 of the Satversme and Article 13 of the Convention, as well as the compliance of another provision of the “Operational Activities Law” with Article 92 of the Satversme. In this case the Constitutional Court had to expand the limits of the claim, since it relied upon the principles of Article 8 of the Convention, although the applicants had not made a reference to this Article. In fact, the Constitutional Court did not analyse the nature of Article 13 of the Convention and the available case-law pertaining to it at all, and yet, it reached the conclusion that the contested regulation complied with Article 13 of the Convention.
In the case no. 2012-02-0106 an answer had to be found to the question whether words included in the fifth and seventh part of Section 33 of the law “On Excise Duties” – “and a fine in accordance with the Law On Taxes and Fees” – complied with ne bis in idem principle, included in Article 92 of the Satversme and Article 4 of the 7th Protocol to the Convention. The facts of the case were as follows: the claimant had illegally brought goods into Latvia and had been given an administrative fine for it, and at the same time the State Revenue Service had conducted a tax audit and identified problems in paying taxes, which was followed by a sanction and the requirement to pay the tax. The Constitutional Court, applying the principles of ECHR case “Zolotukhin v. Russia” and ne bis in idem test, established that sanctions had been applied with regard to different facts, and, hence, also concluded that the contested norm complied both with the Satversme and the 7th Protocol to the Convention.
Interpretation of the Satversme
The majority of cases initiated at the Constitutional Court pertain to issues covered by Chapter VIII of the Satversme on fundamental rights. To reveal the content of fundamental rights, the Court uses the case-law of ECHR, as well as other international documents, and the case-law of other international courts. There is a generally known dictum of the Constitutional Court: “In establishing the content of fundamental rights enshrined in the Satversme, Latvia’s international commitments in the field of human rights must be taken into account. International norms of human rights and the practice of application thereof … serve as a means of interpretation in establishing the content and scope of fundamental rights and the rule of law principle, to the extent this does not lead to decreasing or restricting fundamental rights included in the Satversme”. Thus, even in cases that do not comprise complaints regarding incompatibility with the Convention, international human rights law is used for two main purposes: 1) to reinforce the legitimacy of the reasoning proposed by the Constitutional Court; 2) to establish whether the particular situation falls within the scope of the particular human right.
Certainly, situations where the Court can substantiate its opinion by referring to an authoritative foreign source, which in a similar contexts has stated the same, are the simplest. In this regard the case referred to above, the case no. 2012-02-0106, can serve as an example. It is harder when the opinion of the Constitutional Court might differ from the one held by the ECHR or from the practice of other countries. To put it differently, those cases, where national particularities manifest themselves and where it must be established to what extent such particularities comply with the generally recognised margin of discretion of states and where the limits of this discretion are more complicated.
Relatively recently the Constitutional Court adjudicated the case no. 2014-34-01 regarding the compliance of words included in paragraph 1 of the second part of section 36, section 42 and the third part of section 177 of the Criminal Law – “with confiscation of property or without confiscation of property” – with the second and the third sentence of Article 105 of the Satversme (the right to property). The crux of the matter, in fact, was the following: is punishment – confiscation of property – permissible in contemporary democratic state governed by the rule of law? This relates to property, which, in principle, has been legally acquired but in Latvia, in connection with some criminal offences the judge still has the possibility to order the confiscation of property as an ancillary penalty. For the time being, the Constitutional Court accepted the permissibility of this type of punishment, noting that the legislator enjoyed broad discretion in matters of penal policy, and substantiated this finding also by the most important of the recent judgements in the field of penal policy – the ECHR judgement “Vinter v. the United Kingdom”, although it pertained to life imprisonment and, thus, was related to issues of Article 3 of the Convention. The available case from the perspective of Article 1 of Protocol no. 1 to the Convention was not quite helpful, because it pertained, first of all, to situations that involved illegally obtained property, or, secondly, highly specific facts. In any case, the case-law of the ECHR showed to the Constitutional Court the area where it needed to find the right bearings in reviewing the limits of the state’s discretion. In connection with this case, an opinion also could be expressed that the punishment – confiscation of property – is not proportionate, unless the property in question has been illegally acquired. And yet, taking into consideration at least the current possibilities of the Latvian police and prosecutor’s office, it is clear that this type of penalty cannot be abolished yet.
In the case no. 2010-20-0106, in turn, the issue was raised whether the ECHR’ s position in the case “Andrejeva v. Latvia” was to be considered as being absolute and applicable to all Latvia’s permanently resident non-citizens, irrespectively of the factual circumstances. The Constitutional Court found that the case-law of the ECHR had been rather casuistic, and this finding provided the basis for maintaining Latvia’s principled position that Latvia was not the successor to the obligations of the USSR, and that such rights that may have been acquired during the times of the USSR could not be binding upon Latvia in calculating pensions. In this case, one might say, the Constitutional Court adopted a stance that was different from the one held by the ECHR.
And yet, this is not the case, because the Satversme, unlike the Convention, comprises also such principle, important for Latvia, as the principle of state continuity, which constitutes the core of the Satversme. Thus, cases that are similar to Andrejeva’s belong to that category of cases in which international law collides with the principle of the core of the Satversme. In these cases the Constitutional Court has a special role. One might ask whether the theory of the Satversme’s core conflicts with the principle of openness of Latvia’s legal system? The author is of the opinion that a conflict does not occur, because one of the basic functions of international law, from the perspective of theory of a united legal system, is to recognise the basic norm of the national law and to delimit the area of its functioning in relations with other national legal systems. Since the core of the constitution follows from the basic norm, it could be demonstrated on reasonable grounds that the purpose of international law is not to destroy the constitutional core of states. Raison d’être of international law is to ensure continuity of states.
Thus, in the “post-Andrejeva” case the Constitutional Court validly underscored that Latvia was not the successor of the rights and obligations of the USSR and defined the scope of Article 105 of the Satversme in accordance with this principle.
Admittedly, also the ECHR in interpreting the Convention should take into account a broader context of international law, because the Convention is an international treaty and the methods of its interpretation are defined by the Vienna Convention on the Law of Treaties. However, it is not always that simple.
It is equally important to examine the question of the extent to which the Constitutional Court borrows from the ECHR the methodology for adjudicating cases. A large portion of the cases examined by the Constitutional Court pertain to the right to property. In these cases the Constitutional Court has incorporated the test of proportionality of a restriction upon rights. The criteria for assessing proportionality are not identical to the ones used in the practice of the ECHR; however, they do comprise examination of legality and legitimacy. The Constitutional Court also usually assesses whether alternatives or other measures, less restrictive upon rights, exist. This criterion differs from the steps in the ECHR’s methodology. To a certain extent this difference is determined by Article 116 of the Satversme, which allows restriction of rights in particular cases, if it is envisaged by law and if it complies with the legitimate aim defined in the said Article.
Finally, the fact that the Constitutional Court includes in almost every case at least one reference to a ruling by the ECHR and a finding expressed in it deserves a comment. Case-law of the ECHR is the trigger of thought in the practice of the Constitutional Court. The quoted finding of the ECHR may not even be important for the adjudication of the case; however, this clearly pronounced need to refer to the ECHR proves that the Constitutional Court in its work recognises the authority of the ECHR. The lack of resources is a problem. If it were possible to identify and research the case-law of ECHR more comprehensively, its impact upon both the selection of methodology in examining a case and the reasoning of the Constitutional Court would be greater. Comparison of cases examined by the Constitutional Court allows to conclude that certain unevenness can be seen in its practice, depending upon how substantial has been the contribution of the case-law of the ECHR.
Dialogue between the ECHR and the Constitutional Court
The Constitutional Court and the ECHR engage in a dialogue by judicial cross-referencing. Judicial dialogue has an added value only if the participants of the dialogue do not hold identical opinions on the matter to be discussed; otherwise, instead of a dialogue taking place a monologue is performed in two voices. During the two decades since the Convention has been in force in Latvia, the Constitutional Court has succeeded in becoming involved in such a meaningful dialogue with ECHR a number of times.
One example of the dialogue, as the result of which the Constitutional Court and the ECHR seemingly have not yet reached a common denominator, pertains to the so-called “non-citizens’ pension” cases, referred to above. Already in 2001 the Constitutional Court for the first time turned to this issue, making a judgement in case No. 2001-02-0106, recognising that the legal norm that envisaged a different procedure for calculating old age pension to persons who were not Latvian citizens, complied both with the principle of equality, enshrined in the Satversme (Article 91 of the Satversme), and the right to social security established in Article 109 of the Satversme, and also with Article 14 of the Convention and Article 1 of the Protocol no. 1.
This finding was not shared by the Grand Chamber of ECHR, which by the judgement of 18 February 2009 in the case “Andrejeva v. Latvia” recognised that such a legal regulation violated Article 1 of the Protocol no. 1 in conjunction with Article 14 of the Convention.
In its judgement in the case no. 2010-20-0106 the Constitutional Court offered its own vision on the findings made by ECHR in the Andrejeva case. A special emphasis was placed upon the doctrine of the continuity of the Latvian State and the fact that followed from it – that the Republic of Latvia was not to be considered as the successor in rights and obligations of the former USSR, which allowed the Constitutional Court to recognise that the differential treatment in calculating old-age pension to citizens and non-citizens of the Republic of Latvia had objective and reasonable grounds. In this case also the facts differed from those examined in the Andrejeva case.
Currently ECHR is preparing its answer, it has requested the Representative of the Latvia’s Government to provide comments in case “Soročinskis v. Latvia”, in which the alleged infringement of the applicant’s human rights follows from another legal norm and in still different circumstances.
On 23 April 2003, the Constitutional Court adopted a judgement in the case no. 2002-20-0103, which had been initiated with respect to Andris Ternovskis’ constitutional complaint. In this case the Constitutional Court recognised legal norms that denied person access to court in matters related to refusal to grant clearance for work with state secrets as being compliant with the right to a fair trial enshrined in Article 92 of the Satversme.
Almost a decade later – on 29 April 2014 – the ECHR passed a judgement in case “Ternovskis v. Latvia”, recognising that in civil procedure with regard to a labour dispute, which was linked to the annulment of clearance to access state secrets the applicant’s right to a fair trial, enshrined in Article 6 of the Convention, had been infringed. Pursuant to the judgement by the ECHR, the infringement did not follow directly from the norms that previously had been contested at the Constitutional Court, but from the way these norms had been applied by a court of general jurisdiction. Subsequently, on 18 November 2014 the ECHR adopted a decision on inadmissibility in cases “Spūlis and Vaškevičs v. Latvia”, in which it recognised that Article 6 of the Convention was not applicable to resolving disputes regarding access to state secrets.
On 10 February 2017 the Constitutional Court passed a judgement in the case no. 2016-06-01, in which it reviewed exactly the compliance of the procedure for appealing against annulment of the clearance to access state secrets with the right to a fair trial established in Article 92 of the Satversme and recognised that the contested norms did not conform with this right.
This dialogue proves that, as the outcome of cooperation between the ECHR and the Constitutional Court, the Constitutional Court takes seriously the thesis that the Convention in Europe guarantees only the minimum level of human rights protection. Although the ECHR has recognised a national mechanism as being compatible with requirements of the Convention, the Constitutional Court is the one that verifies its compliance with the higher level of human rights protection guaranteed by the Satversme.
It is possible to assert that the case-law of the ECHR has been particularly significant in revealing the content and scope of fundamental rights established in the Satversme. One of the most vivid examples is the case no. 2010-44-01, in which the Constitutional Court recognised that the words and the number – “with a wall, the height of which does not exceed 1.2 metres” – in paragraph 1 of the fifth part of Section 7 of the law “On Procedures for Holding Detained Persons” was incompatible with Article 95 of the Satversme which prohibits torture and inhumane treatment. The Constitutional Court was looking for such examples in the case-law of the ECHR where the height of walls partitioning off toilet facilities in police detention cells or prisons had been specifically assessed. Such examples were found, and the Constitutional Court gained an insight into a very concrete issue – partitioning that separates toilet facilities as an element of the private life.
Thus, the case-law of the ECHR provides to the Constitutional Court information about concrete minimum standards of human rights protection, from which no derogations are permissible. It helps the Constitutional Court to conceptualise its position and provides the necessary offer for selecting methodologies. Finally, the case-law of the ECHR has had a legitimising importance with respect to the positions chosen by the Constitutional Court. At the same time, it is clear the Satversme comprises a full catalogue of human rights and that this catalogue operates within the framework of a concrete model of democracy and division of functions among the branches of power. The Constitutional Court must interpret the Satversme systemically and pursuant to its aims that are defined in articles of Chapter I of the Satversme and the new Preamble to it. Therefore, it will not be always possible or necessary to transform the case-law of the ECHR in an identical way into the case-law of the Constitutional Court. This is the moment which opens an opportunity for a dialogue between the two courts which possibly could enrich also the content of the European public order.
 See: D. Rezevska, I. Ziemele, “15. pants. Ārējo normatīvo aktu, vispārējo tiesību principu un starptautisko tiesību normu piemērošana” [Article 15. The application of external normative acts, general principles of law and provisions of international law]. In: Administratīvā procesa likuma komentāri [Commentary to the Administrative Procedure Law]. Edited by Jautrīte Briedeā. – Rīga: Tiesu namu aģentūra, 2013, pp. 223-224.
 Ibid., pp. 232-233.
 See: J. Rudevskis, “89. Valsts atzīst un aizsargā cilvēka pamattiesības saskaņā ar šo satversmi, likumiem un Latvijai saistošiem starptautiskajiem līgumiem.” [Article 89. The State shall recognise and protect fundamental human rights in accordance with this Constitution, laws and international agreements binding upon Latvia] In: Latvijas Republikas Satversmes komentāri. VIII nodaļa. Cilvēka pamattiesības. [Commentary to the Satversme of the Republic of Latvia. Chapter VIII. Fundamental human rights]. Edited by Ringolds Balodis. – Rīga: Latvijas Vēstnesis, 2011, pp. 27-28.
 Compare with para. 14 of the judgment of the Constitutional Court of 7 April 2009 in the case no. 2008-35-01. Valsts prezidenta Konstitucionālo tiesību komisijas 2012. gada 17. septembra viedoklis “Par Latvijas valsts konstitucionālajiem pamatiem un neaizskaramo Satversmes kodolu”. [Opinion of 17 September 2012 by the Constitutional Law Commission under the Auspices of the President of the State “On the Constitutional Foundations of the State of Latvia and the Inviolable Core of the Satversme”.]
 Para. 18.8. of the judgment of the Constitutional Court of 7 April 2009 in the case no. 2008-35-01.
 The Constitutional Court has exercised this jurisdiction for instance in the case no. 2007-10-0102 when it assessed the constitutionality of the border treaty between the Republic of Latvia and the Russian Federation.
 D. Rezevska, I. Ziemele, op.cit., pp. 248-249.
 The outcome of the Von Hannover cases at the European Court of Human Rights should be mentioned as one example of such nature.
 Judgment of 17 February 2011.
 Judgment of 11 May 2011.
 Judgment of 18 October 2012.
 Sergey Zolotukhin v. Russia, [GC] no. 14939/03, judgment of 10 February 2009.
 See, for instance, the judgment of 13 May 2005 in the case no. 2004-18-0106 and the judgment if 18 October 2007 in the case no. 2007-03-01.
 Judgment of 8 April 2015.
 Vinter v. the United Kingdom, [GC] nos. 66069/09, 130/10 and 3896/10, judgment of 9 July 2013.
 Judgment of 17 February 2011.
 Andrejeva v. Latvia, [GC] no. 55707/00, judgment of 18 February 2009.
 See paragraphs 31 and 64.2 of the judgment of the Constitutional Court of 29 November 2007 in the case no. 2007-10-0102.
 See I. Ziemele, State Continuity and Nationality: The Baltic States and Russia: Past, Present and Future as Defined by International Law, Leiden: M. Nijhoff Publishers, 2005.
 Judgment of 26 June 2001.
 Andrejeva v. Latvia, [GC] no. 55707/00, judgment of 18 February 2009.
 Judgement of 17 February 2011
 See also para. 12 of the judgment of the Constitutional Court of 7 March 2005 in the case no. 2004-15-01-06.
 Application no. 33637/02.
 Applications no. 2631/10 and 12253/10.
 See also paragraph 29.2 of the judgment of the Constitutional Court of 10 February 2017 in the case no. 2016-06-01.
 Judgment of 20 December 2010.