Riga, November 2, 2006

1. On August 8, 2006 the Cabinet of Ministers passed Regulations No.644 ”Regulations on the Amount and Procedure of Granting and Payment as well as Revision of Childcare Allowance and Additional Payment to the Childcare Benefit for Twins or Several Children Born in one Confinement” (hereinafter – Regulations No. 644), Item 2 of which determines that ”the amount of the allowance shall be as follows:

2.1. to a person, who cares for the child until one year of age, if this person is not employed (is not considered to be an employee or self-employed person in accordance with the ”Law on State Social Insurance”) on the day of granting the benefit – 50 lats per month;

2.2. to a person, who cares for the child until one year of age, if this person is employed ( is considered to be an employee or a self- employed person in accordance with the ”Law on State Social Insurance”) on the day of granting the benefit and is on parental leave – in the amount of 70 percent from the average insurance contribution salary, but not less than 56 lats a month and not more than 392 lats per month;

2.3. to a person, who cares for the child until one year of age, if this person is employed (is considered to be an employee or self-employed person in accordance with the ”Law on State Social Insurance”) on the day, when the allowance is granted, is employed during child care, but is not on parental leave – 50 percent from the allowance specified for a person in Sub-item 2.2., but not less than 56 lats a month”.

2. On March 28, 2006 twenty deputies of the 8^th. Saeima (hereinafter – the submitter of the claim) submitted a claim to the Constitutional Court, contesting conformity of the parts of Section 1 of the ”Amendments to the State Social Allowances Law” by which in the Law has been introduced a new Item 3 to Section 7, Paragraph one and Section 2, which envisages supplementing of Section 15 of the State Social Allowances Law with a new sixth Paragraph (hereinafter – the impugned norms) with Sections 91, 106 and 110 of the Satversme. It is requested in the claim to declare the impugned norms null and void as of the day of their adopting.

Panel 4 of the Constitutional Court initiated a matter only on the compliance of the impugned norms with Section 110 of the Satversme.

The submitter of the claim holds that the restriction, following from the impugned norms which establish that a person, who cares for the child until one year of age and works full-time or part-time job (is considered to be an employee or self-employed person in accordance with the ”Law on State Social Insurance”) receives the childcare allowance in the same amount as the person would receive if not working, does not comply with the Satversme. To their mind such a restriction shall be regarded as disproportional restriction of the rights, determined in Section 110 of the Satversme.

The submitter of the claim stresses that the primary interests of the child first of all are normal food, medical care and clothing, therefore the family needs additional income and not an uninterrupted presence of the mother. The will of the legislator to ensure worthy childcare in the first year of its life and the measures, chosen for it, do not comply with the economical situation of Latvia, therefore it disproportionately restricts the family rights and does not reach its legitimate aim. Childcare allowance does not compensate even the minimum salary and does not ensure the subsistence minimum. Besides, payment of the allowance in its full amount - taking into consideration the income level of the allowance receivers - would not noticeably enlarge the expenses of the total State budget.

It is noted in the claim that the above restriction of receiving the childcare allowance is evidently inelastic and disproportionately restricts the rights of the women in the maternity period.

From the claim simultaneously follows the viewpoint that the Saeima has groundlessly permitted equal attitude to persons, who work a normal working day and the young mothers, who are able to unite childcare and breast-feeding of the child in its first year of life with part-time work, without harming the interests of the child. The submitter of the claim stresses that the legislator has not taken into consideration the particular possibilities for women in the maternity period to work part-time work, as well as making use of the breaks for breast-feeding or work at home, making use of the possibilities of up-to-date technology, which are specified in the Labour Law.

3. The Saeima – not agreeing with the statements, expressed in the claim - in its written reply protects the viewpoint that the contested norms comply with Section 110 of the Satversme and requests to declare the claim as ungrounded.

The Saeima stresses that increasing of the amount of childcare benefit and the new procedure for calculation of it are directed to favouring birth rate in the State and introducing socially fairest and economically most efficient system of childcare allowance. Simultaneously to their mind the impugned norms are directed to the protection of interests of children in the best possible way.

In its written reply, referring to the Constitutional Court November 4, 2005 Judgment, it is pointed out that the impugned norm has an aim, which the Constitutional Court in the above Judgment has declared as legitimate, namely, protection of the rights of children, ensuring complete care to the child until the age of one year, which is rendered by the parents.

Besides in the written reply is cited the fragment from the Constitutional Court Judgment in which the Constitutional Court – assessing whether it is able to reach the legitimate aim with measures, less restricting the rights of the person – mentions the possibility that the person might work part-time work and receive allowance of minimum amount or the allowance, which is smaller than the person would receive if she did not work.

The Saeima stresses that the impugned norms have been adopted to find an optimal solution for realization of the above Constitutional Court Judgment. If the Constitutional Court would have wanted to have no restrictions to employment or non - employment of the person caring for the child during the period of childcare, it would not have postponed the time of the norm becoming null and void till March 1, 2006.

In the written reply is expressed the viewpoint that the impugned norms envisage noticeably less restriction in comparison with the restriction, which was valid till March 1, 2006.

The Saeima holds that the submitter of the claim perceives the childcare allowance in a simplified way – only as an additional source of income, namely – the more the State pays, the better for the family. The Saeima points out that alongside with one vital aim of the allowance – to help the family cover expenses or a part of the expenses, which arise in connection with childcare and compensate those gainings, which have not been earned by work – there is another and not less important aim – to motivate the parents, whenever it is possible, not to work or to devote less time for working and ensure complete childcare themselves.

It is stressed in the written reply that the limitation of the allowance to be paid, which is incorporated into the impugned norms – 50 lats - allows to reach the legitimate aim in more than one ways and observe the rights of other persons, besides it allows the parents to keep up the needed professional qualification and at the same time to care for the child.

The Saeima maintains that the impugned norms envisage the restriction of the amount of childcare allowance, but it has been determined by law and it has a legitimate aim. To their mind the restriction is proportionate and not at variance with the duty of the State to support family and children.

The concluding part

4. After the Constitutional Court November 4, 2005 Judgment Section 110 of the Satversme – by the Saeima December 15, 2005 Law ”An Amendment to the Republic of Latvia Satversme” was expressed in a new wording (sk. šī sprieduma 1. punktu // see Item 1 of this Judgment). As follows from the substantiation given by the Saeima Legal Affairs Committee about the necessity of the above amendment, its aim is to incorporate into Section 110 of the Satversme definition of marriage (sk. anotāciju, kas pievienota Saeimas Juridiskā komisijas 2005. gada 13. oktobra vēstulei par alternatīva likumprojekta iesniegšanu; see annotation, which has been attached to the Saeima Legal Affairs Committee October 13, 2005 letter about the submission of an alternative draft law// www.saeima.lv). Thus, on its essence, this amendment does not introduce any changes in that part of the Satversme norm, which has been already interpreted in the above Constitutional Court Judgment.

The Constitutional Court has concluded that ”from Section 110 of the Satversme and international liabilities of Latvia inter alia follows the positive duty of the State to create and maintain the system with a view to social and economic protection of a family” (Satversmes tiesas spriedums lietā Nr. 2005-09-01, 8.2. punkts // The Constitutional Court Judgment in case No. 2005-09-01, Item 8.2).

5. The legislator, when implementing the positive duty of creating and maintaining the system of family social and economic system, has specified the right of a family to specific protection by determining several protection mechanisms (benefits, allowances etc.) and these rights have become the rights of an individual. A person may require realization of these rights from the State, as well as defend the above rights in a court (sk. Satversmes tiesas sprieduma lietā No. 2005-09-01 9.3. punktu // see Item 9.3 of the Constitutional Court Judgment in case No. 2005-09-01). From the above Judgment, in which the Constitutional Court has inter alia analysed the whole system of social and economical protection in Latvia, follows that the childcare allowance is an integral part of the above system.

However, in difference from the impugned norm, analysed in the Constitutional Court November 4, 2005 Judgment, the impugned norms of the matter to be reviewed do not forbid the person, who works and cares for a child, to receive childcare allowance as such, namely, it does not forbid the person to receive an allowance of a certain minimum amount or an allowance in the amount of 50 percent from the allowance determined for a person, who is on parental leave.

In the framework of the concrete matter the submitter of the claim does not require the Constitutional Court to assess also the fact whether the concrete amount of the childcare allowance - inter alia also the minimum amount, which at the moment of the submission of the claim was regulated by Regulations No. 1003 but at the time of reviewing and adjudication of the matter is regulated by Regulations No. 644, that is, legal acts, which have not been contested in the concrete case - complies with Section 110 of the Satversme. In the claim it is requested to assess only whether the norms, which divide the receivers of the allowance into groups on the criterion of employment and envisage for one group of the receivers the allowance in lesser amount, comply with the Satversme.

6. Two mutually connected but different norms are contested in the claim. Section 1 of the Law ”Amendments to the State Social Allowances Law” expresses Section 7, Paragraph 1 of the State Social Allowances Law in a new wording but Section 2 supplements Section 15 of the Law with a new – the sixth Paragraph. Conformity with the Satversme of both the impugned norms shall be separately assessed.
7. Section 7 (Items 1-3 of the first Paragraph) of the State Social Allowances Law determines what persons shall receive childcare allowance until the time when the child is one year old but Item 4 refers to the care of the child from one until two years of age.

1. The impugned norm has been determined by Law promulgated and adopted under a certain procedure. In the claim is criticized adoption of this Law in a hurry, however, it was not pointed out that the legislator had violated the procedure, determined in the Rules of the Procedure of the Saeima. Thus there is no doubt about the fact that Law has determined the differentiated attitude.
2. In the Summary to the draft Law ” Amendments to the State Social Allowances Law” it has been pointed out that ”the aim of the draft Law is introducing of a more adequate to family needs system of the childcare allowance. […] childcare allowance is granted both to persons, who are not employed and to persons, who are employed and are on parental leave or are working, i.e. granting of the childcare allowance is not further connected with the person being on parental leave or the fact of working (lietas materiālu 1. sēj., 198.lpp. // materials in the matter, Vol.I, p. 198).

In the Summary the necessity of limiting the amount of the allowance as concerns persons, who are working, is also substantiated. The Cabinet of Ministers stresses that ”the childcare allowance is meant for caring for the child – it is granted to the person, who takes care of the child. When determining the childcare allowance in the amount of 50 percent for the person, who takes care of the child until one year of age and is working, the interests of both – the child and the parents are equivalently ensured. Implementation of such a norm stimulates parents to choose not working during the first year of age of the child thus rendering adequate care to their children. When receiving adequate care and support from the parents the child grows and develops into a full-fledged member of the society, and that – in its turn – ensures qualitative public growth in future (lietas materiālu 1. sēj., 198-199 lpp. // Vol.I, pp. 198-199 of the materials in the matter).

Side by side with the vital aim of the allowance – to help the family cover expenses or a part of them, which have arisen in connection with childcare and compensate income, which has not been received in work, the Saeima in its written reply names the second – not less important – aim to motivate the parents, if it only is possible not to work or devote less time to working and ensure adequate childcare themselves.

The Constitutional Court has repeatedly stressed that ”in legal relationships, concerning the child, in all the activities the rights and interests of the child shall prevail. It means that not only the courts and other institutions shall adopt their decisions on the basis of the interests of the child, but the legislator has also to observe it, so that the adopted or amended normative acts would protect the interests of the child in the best possible way (Satversmes tiesas 2004.gada 11. oktobra sprieduma lietā Nr. 2004-02-0106 11. punkts // the Constitutional Court October 11, 2004 Judgment in case No. 2004-02-0106, Item 11).

The Constitutional Court has also concluded that the State, guided by the above principle, has wished to protect the rights of the child, in order to ensure adequate care for the child in his/her first year of life, which shall be taken by one of the parents. Thus the impugned norm has a legitimate aim – protection of the rights of the child, ensuring adequate care, taken by the parents – for the child to the age of one year (sk. Satversmes tiesas 2005. gada 4. novembra sprieduma lietā Nr. 2005-09-01 13.3. punktu // see the Constitutional Court November 4, 2005 Judgment in case No. 2005-09-01, Item 13.3).

The differentiated attitude, which is expressed in determining the childcare allowance in a limited amount, has just the same legitimate aim – protection of the rights of a child, ensuring adequate childcare to children up to one year of age, taken by the parents.

3. To assess whether the impugned norm reaches this aim, one shall establish whether the measures, chosen by the legislator, are appropriate for reaching the legitimate aim.

The Latvian constitutional legislator has determined several social rights in the Satversme. Thus the legislator has determined that Latvia is a socially responsible State, namely, such a State, which is trying to potentially extensively realize social justice in legislature, administration and court adjudgment. The aim of a socially responsible state is to level the most vital social public difference and to ensure for every group of residents adequate living standard.

Measures, chosen by the legislator may be regarded as proportionate for reaching the legitimate aim only if they are in compliance with the principle of the socially responsible state.

18.1. The impugned norms reach their aim in a full and financially well-off family, where one of the parents during the period of the childcare takes the greatest part of charge of material and financial security, but the loss of income of the other parent, connected with childcare, is fully or partly compensated by the childcare allowance. In this case the impugned norm additionally stimulates one of the parents to care for the child himself/herself and not to work for some time or work part-time work, most of all just not to lose professional qualification. Usually it is the mother, if she breast-feeds her child. As regards such a family, well grounded is the viewpoint, expressed in the written reply, that the impugned norm stimulates the person caring for the child to work as less as possible, so as to personally devote more time to childcare. Similarly – by decreasing the allowance for 50 percent to persons, who are working – this issue has been solved in the richest states, for example, in Sweden.

If the other parent is not able to ensure the financial position of the family for meeting the requirements of the child and person, caring for the child, in the needed level, besides, the childcare allowance is not received in the amount, which would ensure realization of the needs of the family; then working of the person – caring for the child – is first of all the precondition of the protection of child’s interests.

Child’s interests include not only the necessity of uninterrupted presence of the parent and mother’s milk, but also the necessity of receiving good quality mother’s milk (which first of all depends on mother’s food and health), food, clothing, shelter etc. Thus – not only the need for the presence of the parents but also needs of financial nature, like a certain financial guarantee for the mother, are included in the interests of the child.

In August of 2006 the state family allowance at an average 7,05 lats and the childcare allowance, the medium amount of which was 68,5 lats (see www.vsaa.gov.lv), did not guarantee subsistence wage even for one person, which in accordance with the data of the Statistics Board was 117,64 lats (see www.csb.lv).

If the person, who takes care for the child, is compelled to work in order to satisfy the primary financial needs of the family, besides, receives only half of the allowance, then the result, which is reached by the impugned norm is contrary to the result, which the legislator has wanted to reach. Namely, the parents of the child has even less possibility to be together with the child.

As has been stressed in Item 17 of this Judgment, the primary obligation of the State is to protect the interests of the child, and in this case the above aim is not reached.

18.2. The sixth Paragraph of the impugned Section 15 connects the amount of the allowance only with the income of the person, who takes care of the child. It does not envisage the possibility to connect the decrease of the amount of childcare allowance with the total level of family income. As the result – two contradicting tendencies arise.

Families, the financial position of which is relatively better, may afford devoting more attention to the child and receive the childcare allowance in its full amount. As regards the above families, the amount of the allowance is an equalizing factor. For example, if both – the mother and father before the birth of the child have received income of approximately 500 lats a month (before paying the taxes) each (the sum from which the Cabinet of Ministers has calculated the maximum amount of the allowance) and the income of the father after the birth of the child remains the same, but the mother receives childcare allowance in its maximum amount, then the total income of the family exceeds 700 lats.

If before the birth of the child the income of the father of the family has been 500 lats a month but the mother has received the minimum amount of the salary and the income of the father remains the same, but the mother receives the childcare allowance in its minimum amount (56 lats) then the total income of the family exceeds 400 lats.

In their turn the families, the financial position of which is already not satisfactory, receive childcare allowance in a decreased amount, as the parent, who takes care of the child is compelled also to work. For example, if before the birth of the child the father of the family received the minimum wages, but the mother – a small salary, then their income allowed the two-member family to satisfy their needs in the minimum extent. If – after the birth of the child – the income of the father remains the same, but the mother receives childcare allowance, which substitutes her previous income, then the income of the family is not satisfactory to ensure adequate care also for the child. If the mother chooses to work and care for the child, the State pays her only part of the allowance.

Similar situation arises also in incomplete families, where father’s support taken together with childcare allowance cannot ensure satisfying of the minimum needs of the child and the mother.

Thus the families, who because of the financial position the person, who cares for the child, may afford not working, receive a greater State support; in their turn the most needy families are compelled to receive the childcare allowance in a limited amount. Such specification of the rights envisaged in Section 110 of the Satversme is at variance with the principle of socially responsible state, which obliges the State – within the framework of its possibilities – to see to equalization of social differences, that is, to see that a reasonable State support is rendered to all children, who need it.

The aim of childcare allowance is to satisfy the interests both of a child and the parents; still the interests of the child shall prevail. All the born children (as far as they do not need a special care or special aid) are in equal and comparable circumstances. From the principle of universal equality follows that the child shall receive the needed care minimum, regardless of the fact whether he/she grows up in a full, financially provided for family, in which one parent works, but the other – either does not work or works and is on parental leave, or in the family in which one parent is not able of securing adequate subsistence. The legislator- when adopting the impugned norm has not assessed this aspect of limitation and has not left for the Cabinet of Ministers the possibility to determine a differentiated allowance in cases, when the total amount of family income does not secure the interests of the child.

18.3. The Constitutional Court reached its November 4, 2005 Judgment in the matter, which was initiated on the constitutional claim. As concerns this matter the Constitutional Court concluded ” a person could be allowed to work part-time and receive the minimum amount of the allowance, or such an allowance, which would be smaller than in the case, if the person would not work. Thus, it would encourage the parents to choose not working during the first year of life of the child; however, the possibility to work part-time would be maintained for those parents, for whom it would be necessary” (Satversmes tiesas 2005. gada 4. novembra sprieduma lietā Nr. 2005-09-01 14.3. punkts // Item 14.3 of the Constitutional Court November 4, 2005 Judgment in case No. 2005-09-01). Concrete submitters of the claim were compelled to work mainly to maintain their professional qualification and protect long term family interests.

Ungrounded is the viewpoint following from the written reply that the Constitutional Court by ”the minimum amount” has in all cases meant the minimum allowance regulated in the Cabinet of Ministers Regulations. The notion ” minimum amount” in every concrete case has to be connected with the minimum interests of the child, which shall be ensured for every child by the State and the parents.

18.4. The impugned norms are not fair to separate persons, because the amount of the income, which one of the parents receives by working part-time, is not connected with that part of the allowance, that he/she loses. If a person [for the reasons of qualification publishes papers or delivers several lectures as well as works in an elected institution, for example, like the deputy in the local authority Dome (Council) etc.] receives a small income from part-time work, she/he loses, possibly, half of the maximum allowance. Thus this person is compelled to work more and dedicate even less attention to the child, and such an outcome is at variance with the result, which the legislator has wanted to achieve.

Thus, the sixth Paragraph of Section 15 is not suitable for reaching the legitimate aim with regard to a certain range of families; thereby it is not proportionate to this aim.

4. The impugned norms envisage equal attitude to persons, who work part time work and persons, who work full time. However, the above persons are not in equal and comparable circumstances as regards the possibility of ensuring childcare.

Well grounded is the viewpoint of the submitters of the matter that the legislator has not taken into consideration the different situation in which the young mothers, who have the possibility of combining childcare and breast-feeding of the child in its first year of life with employment, i.e. – by working part-time and not harming the interests of the child, find themselves. The legislator has not taken into consideration the specific possibilities of women to work part-time work in the period after birth as well as using the breaks for breast-feeding or working at home, making use of the possibilities of the up-to-date technology, which are determined in the Labour Law.

The legislator has determined equal relationship to both – persons, who take care of the child and work full time and those persons, who care for the child and work part-time; and thus has permitted equal attitude to persons, who are in essentially different circumstances. Such relationship has no reasonable and objective basis.

Thus, the contested sixth Paragraph of Section 15 is at variance with Section 91 of the Satversme.

5. When determining the moment from which the impugned norm shall lose validity, the Court takes into consideration the fact, that immediate rescission of the norm, while no other regulation has not taken effect, in separate cases may create violation of the rights of a child. Therefore the legislator needs a certain time for improving the normative regulation of the childcare allowance.