Judgement

On Behalf of the Republic of Latvia

Riga, 13 May, 2010

In Case No. 2009-94-01

The Constitutional Court of the Republic of Latvia, composed of the Chairman of the Court hearing Gunārs Kūtris, Justices Kaspars Balodis, Aija Branta, Juris Jelāgins, Kristīne Krūma and Viktors Skudra,

Having regard to the application submitted by the Administrative Department of the Senate of the Supreme Court of the Republic of Latvia,

According to Article 85 of the Satversme [the Constitution] of the Republic of Latvia and Paragraph 1 of Section 16, Paragraph 9 of the first part of Section 17 and Sections 19and 281 of the Constitutional Court Law,

on 13 April, 2010 examined in written procedure the case

“The Conformity of the words in the first sentence of Paragraph 1 of the Transitional Provisions of the Citizenship Law “if the registration takes place by 1 July, 1995” and of the second sentence with Article 1 and 2 of the Satversme of the Republic of Latvia, as well as with the Preamble of 4 May 1990 Declaration of the Supreme Soviet of Latvian S.S.R. “On the Restoration of the Independence of the Republic of Latvia”.

The Constitutional Court has established:

1. The Saeima [the Parliament] of the Republic of Latvia (hereinafter – the Saeima) on 22 June, 1994 adopted the Law on Citizenship. Paragraph 1 of its Transitory Provisions provides: “Citizens of Latvia and their descendants who, during the period from 17 June 1940 to 4 May 1990, left Latvia as refugees, in order to escape the terror of the occupation regimes of the U.S.S.R. and Germany, were deported, or due to the aforesaid reasons have not been able to return to Latvia and have become naturalised during this time in a foreign state, retain their right to register in the Population Register as citizens of Latvia, and after registration shall, to the full extent, enjoy the rights of citizens and fulfil the obligations of citizens, if registration occurs by 1 July 1995. If such persons register after 1 July 1995, they shall renounce the citizenship (nationality) of the foreign state.” The respective provision has not been amended and is in force in its initial wording.

2. The Administrative Department of the Supreme Court of the Republic of Latvia (hereinafter – the Applicant) notes in the application that the doctrine of the Latvian state continuity follows from the Preamble of the Satversme [the Constitution] of the Republic of Latvia (hereinafter – the Satversme) and from May 4 1990 Declaration of the Supreme Soviet of the Latvian S.S.R. “On the Restoration of the Independence of the Republic of Latvia” (hereinafter – the Declaration of Independence). The Preamble of the Declaration of Independence is said to impose a duty upon the institutions of state power to abide by the aforementioned doctrine and not to deviate from it. The legislator, when deciding upon issues of citizenship, should also abide by this doctrine.

It follows from the doctrine of state continuity that, first, notwithstanding the occupation the state of Latvia continued to exist interruptedly. Secondly, that the provisions of the Law on Nationality of 23 August 1919 (hereinafter – the Nationality Law) and the Law on Travelling Passports of 20 February 1936 were in force till the moment when the regulation included in them was replaced by new legal provisions issued by representatives of a legitimate Latvian power. Thirdly, during the period of occupation Latvian citizenship continued to exist and to pass on to the following generations in accordance with jus sanguinis principle. Fourthly, during the period of occupation the embassies of Latvian state abroad continued to act on behalf of Latvia, to strengthen the state of Latvia, and the decisions issued and the activities performed by them are valid.

The citizenship or the connection between the person and the state is said to be one of human rights. It is included in Article 15 of the United Nations Universal Declaration of Human Rights (hereinafter – the Human Rights Declaration) and is protected also in Latvia on the basis of Article 89 of the Satversme. The states have the right to define the range of their citizens. Simultaneously states in this legal relationship have to take into consideration whether a person is a citizen of the respective state, but basically have to ignore, whether the person is also a citizen of another state (a person with dual citizenship). The citizenship of another state is said to be of importance only in exceptional cases.

Upon restoring the legal system of independent Latvia, the legislator, in accordance with the principles of a judicial state, had the obligation to take measures in order to compensate for the damages caused by the previous regime and to restore justice to the extent possible. The legislator is said to have neglected the fact that for the range of persons indicated in the first sentence of Paragraph one of the Transitional Provisions of the Citizenship Law the dual citizenship developed as the consequence of the occupation of Latvia and that during the period of Latvia’s occupation also these people abroad constituted one of the most essential elements of Latvian state – the nation. The legislator did not consider the legitimate aim of the second sentence of Paragraph one of the Transitional Provisions of the Citizenship Law, nor whether the restriction, which prohibits exercising the rights of a citizen of Latvia, is proportional.

Thus, the words of the first sentence of Paragraph one of the Transitional Provisions of the Citizenship Law “if registration occurs by 1 July 1995” and the second sentence are said to be in conflict with Article 2 of the Satversme and the Preamble of the Declaration of Independence.

The principle of legal certainty, in its turn, is said to envisage that a previously adopted legal regulation can be amended only by abiding by the constitutionally enshrined principles and by observing the legal rights of a person and legal certainty. The principle of legal certainty protects a person’s right to the already acquired rights, i.e., persons can rely that the rights that have been acquired in accordance with valid legal acts will be preserved in the defined period of time and will be actually implemented.

The Supreme Soviet of the Republic of Latvia (hereinafter – the Supreme Soviet) on 27 November 1991 adopted the decision “On Application of 15 October 1991 Decision of the Supreme Soviet of the Republic of Latvia “On the Restoration of the Rights of the Citizens of the Republic of Latvia and the Basic Principles of Naturalisation” to the Citizens of the Republic of Latvia Residing Abroad” (hereinafter – the Decision of 27 November 1991). This decision sets out that the provision included in Paragraph 2.2 of 15 October 1991 Decision of the Supreme Soviet “On the Restoration of the Rights of the Citizens of the Republic of Latvia and the Basic Principles of Naturalisation” (hereinafter – the Decision of 15 October 1991) on the presentation of the permit of expatriation and Paragraph 2.3 shall not apply to the citizens of the Republic of Latvia and their descendants, who, under the conditions of the occupation of Fatherland being outside Latvia have acquired the citizenship of another state in the period from 17 June 1940 to 21 August 1991.

In accordance with Paragraph 1 of the Decision of 27 November 1991 the aforementioned citizens of Latvia could rely that the foreign citizenship they had acquired would be recognised and that because of it they shall not be denied the rights of a Latvian citizen. However, the second sentence of Paragraph one in the Transitional Provisions of the Citizenship Law, which was adopted later, included a requirement to the citizens of Latvia, who because of occupation have moved abroad, to renounce dual citizenship.

Thus, the words of the first sentence of Paragraph one in the Transitional Provisions of the Citizenship Law “if registration occurs by 1 July 1995” (hereinafter – the contested provisions) are inconsistent with Article 1 of the Satversme and precisely – with the principle of legal certainty.

3. The institution that has passed the contested provisions, – the Saeima – does not agree to the Applicant’s arguments and asks the Constitutional Court to declare the Application unfounded and to reject it.

The Saeima holds the opinion that first of all the historical context for defining and restoring the body of citizens must be analysed and that only after that the conformity of the contested provisions with the legal provisions of a higher legal force can be assessed. On 23 August 1919 Latvian People’s Council passed the Nationality Law. Its aim was to identify the initial body of citizens. The initial body of Latvian citizens was defined in accordance with Section 1 of the Nationality Law and in conformity with several principles. First, a person who met the requirements of the Nationality Law had to express his or her own will to become a citizen of Latvia by registering at the state institutions. Secondly, this registration for the citizenship of Latvia had a fixed period, since the Nationality Law provided a period of six months, within which a person had to decide on taking Latvian citizenship. Thirdly, the procedure of registration was identical both for persons residing in the territory of Latvia and for persons, who were abroad.

After adopting the Declaration of Independence the state of Latvia once again decided the issue of citizenship. The legislator created the regulation on the basis of the continuity doctrine. In accordance with this doctrine the state of Latvia restored de facto the citizen’s rights to those persons, who had had them before Latvia’s occupation.

The Decision of 15 October 1991 of the Supreme Soviet and other acts adopted by it in the field of citizenship envisaged a repeated identification of Latvia’s body of citizens.

At the same time it must be taken into account that the Nationality Law was binding to the Supreme Soviet and that it had no right to amend this Law or to pass a new law on citizenship, significantly changing Latvia’s body of citizens. The Supreme Soviet had been authorised only to identify repeatedly Latvia’s body of citizens in accordance with the regulation of the Nationality Law. The repeated identification of Latvia’s body of citizens had been based upon the same principles that had been included in the Nationality Law for the identification of the initial body of citizens.

The Saeima agrees to the Applicant that in accordance with the doctrine of continuity the citizenship of Latvia continued to exist and to pass also to the next generations in accordance with jus sanguinis principle. However, the Saeima holds the opinion that the Application interprets the doctrine of state continuity inaccurately and inconsistently.

The Nationality Law includes as one of the obligations of a citizen the prohibition of a dual citizenship, which was rooted in Latvia’s historical experience. The duty of a Latvian citizen had been clearly defined and known to the citizens of Latvia. If a person acquired the citizenship or the nationality of another state, he automatically lost both the rights of a Latvian citizen and the rights to receive a Latvian travelling passport.

In accordance with the Nationality Law, the Law on Travelling Passports and the Instruction of the Consular Service of 1936, it had been impossible to issue a Latvian travelling passport to persons, who simultaneously were also citizens or nationals of another state. Even though the diplomatic missions had limited possibilities to establish, whether a Latvian citizen had obtained the citizenship or the nationality of another state, all persons had to fulfil the citizen’s rights in good faith. Namely, the person had the obligation to inform immediately the authorities about any changes that could influence his status as a citizen, as well as not to retain Latvian citizenship illegally, if he had obtained the citizenship or the nationality of another state.

An unlawful action of a person, acquiring the citizenship or the nationality of another state, does not create a right to retain the citizenship of Latvia. In such a case a person should no longer be considered a citizen of Latvia. Also during the period of occupation of the state all legal acts of the state of Latvia had been in force and the retaining of Latvian travelling passport after obtaining the citizenship or the nationality of another state had been an unlawful activity, to which a prescription period cannot be applied. The authorities of Latvian state, upon establishing that a person belongs to the body of citizens of another state, had the obligation to annul the Latvian travelling passport issued by it and to exclude this person for the registers of Latvian citizens.

The doctrine of state continuity does not create the right to those citizens of Latvia, who have obtained the citizenship or the nationality of another state, to retain it, by restoring the citizenship of Latvia. Moreover, the doctrine of state continuity rather creates the obligation to the legislator to define a procedure for excluding persons, who contrary to the provisions of Section 8 of the Nationality Law, have kept Latvian citizen’s passport, from the body of Latvian citizens.

Assessing the provisions of the Decision of 27 November 1991 the Saeima indicates that the respective regulation has been retained also in the Citizenship Law. I.e., the Citizenship Law does not allow a dual citizenship, if it has formed by way of naturalisation. The contested provisions, in their turn, set out a precise procedure, which must be abided by by those citizens of Latvia, who during the occupation period of Latvia obtained the citizenship or nationality of another state and wish to retain a dual citizenship.

The legislator’s decisions, included in the Citizenship Law, is said to be a deviation from the formal understanding of the doctrine of state continuity, which envisages a prohibition of the dual citizenship. The Saeima as the legislator elected in free elections had the right to amend the regulation, which was included in the Nationality Law, in the Citizenship Law. Since the occupation of Latvia had been the reason why many citizens of Latvia obtained the citizenship of other states, the legislator in those respective cases has allowed for the possibility of dual citizenship. This should be considered a special measure, aimed at the restoration of justice.

The Applicant’s argument that the contested provisions are inconsistent with the principles of legal certainty, which follows from the unlimited right of the Latvian citizens and their descendants to register the citizenship of Latvia and to retain the citizenship of other states, envisaged in the Decision of 27 November 1991 , is said to be ungrounded. Namely, the special status of the Supreme Soviet and especially the generally recognised restriction of jurisdiction with regard to the reform of the Satversme and citizenship issues, has led to the situation that the solutions with regards to the issue of citizenship were not binding to the Saeima, when drafting the Citizenship Law. The Saeima, in its turn, as a freely elected and legitimate representative of Latvian nation, had a wide discretion in drafting the Citizenship Law in conformity with the doctrine of state continuity.

In assessing, whether there were grounds for persons to rely upon the Decision of 15 October 1991 and the Decision 27 November 1991, the fact that these decisions did not possess the features of a final regulation, should be taken into account. I.e., in accordance with Paragraph 3.6 of the Decision of 15 October, 1991 naturalisation was started only after the law regulating citizenship issues was adopted. Thus the aforementioned decisions could not have created such a legal certainty in persons that their status would be defined contrary to the regulation of the Nationality Law. Only the Saeima could adopt a new citizenship law. Thus, the contested provisions are said not to be inconsistent with the principle of legal certainty.

The Saeima draws the attention of the Constitutional Court to the fact that the rights of the citizens of Latvia, who were citizens till 17 June 1940 and their descendants, to restore their legal connection with the state are unlimited. Also after the exhaustion of the term defined by the contested provisions, i.e., after 1 July 1995 these persons can register in the Population Register as citizens of Latvia. However, when registering after this date, the citizens of Latvia have to renounce the belonging to the body of the citizens of another state.

The obligation included in the contested provisions to renounce the citizenship or the nationality applies only to those persons, who obtained the citizenship or nationality of another state by way of naturalisation in the period from 17 June 1940 to May 4, 1990. The obligation included in the second sentence of Paragraph one of the Transitional Provisions of the Citizenship Law does not apply to those persons, who acquired the citizenship of another state in other way.

The Saeima, answering the questions of the Constitutional Court, indicates that the contested provisions should be regarded as a significant adjustment of the provisions of the Nationality Law, which had been used in attempting to solve the situation, which had arisen as the result of Latvia’s occupation, that many persons abroad had acquired the citizenship of other states. However, such a measure cannot be unlimited. I.e., legal exactitude demands a repeated identification of the body of Latvian citizens within a reasonable and fixed term, within which anybody would decide upon a preferable solution for himself.

The Saeima especially emphasizes that already initially the wording of the contested provisions included a fixed term, within which a person had to decide on retaining the dual citizenship. In the course of discussing the draft Citizenship Law, no proposal was expressed on defining a longer period or unlimited rights to register. Neither did the exile Latvians, who had been elected to the Saeima, submit such a proposal.

The definition “left Latvia as refugees”, used to denote the circle of persons in Paragraph one of the Transitional provisions of the Citizenship Law, is said to be rather descriptive, and the term “refugee” is used in an every-day meaning of it, including persons, who left Latvia because of the Soviet of German occupation regime.

After acquainting oneself with the materials of the case, the Saeima concludes that documents obtained by the Constitutional Court confirm what has been noted in its written answer and in the additional explanations. Firstly, these documents prove that the mandate of the Supreme Soviet, already during its term of activities, was recognised as limited, especially in the field of regulating the citizenship issue. Secondly, the fact of Latvia’s occupation must definitely be assessed as a condition, which could influence the application of the provisions of the Nationality Law in exile. The preservation of Latvian passports in exile, indeed, could be assessed as a patriotic act, and, when repeatedly identifying the body of Latvian citizens, these passports could be regarded as a proof of persons’ legal connection with the state of Latvia. However, that does not mean that the repeated identification of the body of Latvian citizens could be unlimited.

In view of the aforementioned, the Saeima requests the Constitutional Court to declare that the contested provisions are consistent with Article 1 and 2 of the Satversme and the Preamble of the Declaration of Independence.

4. The invited person – the Ombudsman of the Republic of Latvia (hereinafter – the Ombudsman) – notes that with regard to this Case can provide opinion concerning the question, whether the contested provisions infringe upon the rights to citizenship guaranteed to an individual and whether they do not violate the principle of equal treatment and non-discrimination.

The Citizenship issue is regulated by several international legal acts, for example, the Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws of 12 April 1930, the Council of Europe Convention on reduction of cases of multiple nationality and military obligations in cases of multiple nationality of 6 May 1963. It can be concluded from the aforementioned acts that several states allow the establishment of a dual citizenship and the approach taken by states or the change in this approach is a political issue.

The Citizenship Law does not allow the establishment of a dual citizenship and the assessment of the legal regulation of the citizenship issue allows concluding that Latvia does not violate its international commitments. The international treaties do not prohibit defining freely on the political level the legal regulation of the dual citizenship issue.

In assessing the conformity of Paragraph one of the Transitional provisions of the Citizenship Law with Article 89 of the Satversme, the Ombudsman concludes that this regulation does not violate the human rights guaranteed to an individual, i.e., the right to a citizenship. The belonging to the body of citizens of a state is a person’s free choice. If the legal regulation allows establishment of a dual citizenship, then the person enjoys the protection of two states. However, in case a state does not allow establishing dual citizenship, then the citizenship of at least one state must be guaranteed to a person. The Citizenship Law guarantees this right.

The Ombudsman indicates that from the perspective of restoring the historical justice the persons have the right to restore such a situation, which existed before the occupation. The contested provisions allow meeting this objective, irrespectively of the fact whether a person has registered for receiving the citizenship before 1 June 1995 or after this date.

It is difficult to assess the proportionality of the contested provisions by using legal arguments, since granting of citizenship is a political decision. However, the legislator’s right to pass political decisions is not unrestricted; otherwise the principle of the rule of law, which follows from Article 1 of the Satversme, would be violated.

In view of everything mentioned above, the Ombudsman is of the opinion that the contested provisions are not inconsistent with Article 1 of the Satversme.

5. The invited person – Professor of the School of Business Administration “Turība” Dr. iur. Aivars Endziņš – indicates that Case does not dispute and cannot dispute the doctrine of Latvian state continuity. It undoubtedly follows from both the Declaration of Independence and from the Constitutional Law of 21 August 1991 “Law on the Statehood of the Republic of Latvia”, as well as from the reinstatement of the Satversme. The Decision of 15 October 1991 provides that the body of the citizens of the Republic of Latvia in accordance with the Nationality Law continues to exist.

 The Applicant’s reference to the principle of legal certainty is ungrounded. I.e., this principle is not absolute; otherwise no amendments in the legal regulation would be possible at all. With the coming into force of the Citizenship Law, both the Decision of October 15 1991 and Decision of 27 November 1991 became invalid. Simultaneously Paragraph one of the Transitional Provisions of this Law gave the right to the citizens of Latvia and their descendants to register in the Population Register as the citizens of Latvia, if this registration occurs before 1 July, 199. In this way the legislator defined a sufficiently lenient, almost a year long transitional period. The inclusion of this term in the law is substantiated, inter alia, also by the fact that Paragraph 2.1 of the Decision of 15 October, 1991 set a term for registration, as well as by the fact that the identification of the body of Latvian citizens cannot not last forever.

Each state is entitled to determine itself, which persons are its citizens, and each state can also decide itself how to act in cases of dual citizenship. Initially the dominant attitude in European states was non-recognition of dual citizenship. However, currently the attitude of many European states towards this issue has changed.

A. Endziņš indicates that essentially this Case pertains to an issue that must be decided by the Saeima, not by the Constitutional Court. Namely, the free movement of persons within the European Union, especially the birth of Latvian citizens’ child abroad, where the child is automatically granted the citizenship of the respective state, makes the problems linked to the dual citizenship more topical. This is the reason why the Citizenship Law should be amended.

6. The invited person – the World Federation of Free Latvians (hereinafter – WFFL) – notes that the dual citizenship of the persons referred to in the first sentence of Paragraph one of the Transitional Provisions of the Citizenship Law developed as the result of occupation. During the period of occupation these persons formed one of the most essential elements of the Latvian state – the nation- abroad. The legislator had failed to consider both the legitimate purpose of the contested provisions and the proportionality of these provisions.

The Decision of 15 October 1991 and the Decision of 27 November had created a certainty that the retaining of the dual citizenship acquired abroad would be permitted. The contested provisions, in their turn, violate this certainty. I.e., the contested provisions define a deadline, within which a person had to choose – to register as a citizen of Latvia and to renounce the citizenship of another state or to retain only the citizenship of another state.

WFFL considers that the purpose of the Nationality Law and the Citizenship Law, as well as their place in the historical legal development should be considered. The purpose of the Nationality Law had been only the primary identification of the body of Latvian citizens. After 17 June 1940 occupation, annexation and war restricted the functioning of this Law, and these events should be assessed as force majeure conditions, outside the control of persons. The situation in 2009, in its turn, radically differs from the situation of both 1919 and 1994. Latvia has become a member state of the European Union and NATO. Therefore such threats to statehood, which existed in 1919, are no longer present. Thus the reference to the Nationality Law as the grounds for restricting the rights of Latvian citizens is inadmissible.

The events of 1940 and onwards have split the body of Latvian citizens into three parts – the majority stayed in Latvia, the second part was deported to Siberia, but the third, fearing the terror of occupation powers, became refugees. In accordance with Article 2 of the Satversme only all three parts of the nation together can realise the sovereign state power. The part of the nation, which following occupation stayed in Latvia, has no right to decide on the part of the nation, which perforce went abroad, inter alia, deny the Latvian citizenship to it.

Even though the Nationality Law did not allow dual citizenship, under the conditions of occupation it could not have been interpreted in a way that would harm the state. Therefore those persons, who during the occupation were forced to take the citizenship or nationality of another state, have not lost Latvian citizenship, because they have become “objective dual citizens”.

The Saeima, arguing that the contested provisions are constitutional, is interpreting the provisions of the Nationality Law only grammatically, without considering them in the context of the Declaration of Independence. A grammatical interpretation of this kind might ungroundedly lead to the conclusion that the persons living in exile had not been loyal to Latvia. On the contrary, the keeping, extending the validity and using of Latvian travelling passport – should be assessed as an expression of loyalty. Persons living in exile were thus expressing their belonging to independent Latvia, manifested the will of the Latvian nation and confirmed their belief in the restoration of state independence.

In view of all aforementioned, WFFL is of the opinion that the contested provisions are incompatible with Article 1 and 2 of the Satversme and the Preamble of the Declaration of Independence.

7. Professor of Riga Graduate School of Law Ph. d. Ineta Ziemele points out that the territory and the nation are the material elements of state. In a situation, when the existence of the state is threatened, the continued existence of its material elements can be of special significance in making conclusions related to the legal status of the state. In restoring Latvia’s independence legal arguments were necessary to substantiate state continuity. The functioning of the institution of Latvian citizenship outside the territory of Latvia was one of such arguments.

The fact that Latvian citizens in exile chose to maintain the validity of Latvian citizenship, moreover, under conditions when this citizenship did not guarantee any special protection, is a very important example of practice in arguing for state continuity.

One can agree to the statements of the Saeima that the occupation did not invalidate Latvian laws and de jure they were in force. However, de facto their functioning was limited. I.e., they could function only to the extent Latvia had retained its diplomatic missions and citizens.

In the course of time de jure existence of Latvian state became more seriously threatened, and under conditions of prolonged occupation it became clear that maintaining the elements of the state and the name of the state in international circulation was in the interests of Latvia. Thus, preference should be given not to the formal application of Latvian laws, but to the assessment of Latvia’s interests as to their merits and political realities.

Section 8 of the Nationality Law defined the prohibition of dual citizenship. However, for correct interpretation of this provision, the context, in which this Law was passed, should be recalled. Namely, a new state was established and for the first time in history Latvia’s citizenship was created by identifying the body of Latvian citizens. The prohibition of dual citizenship when identifying the body of citizens for the first time should be distinguished from the question how this prohibition should or should not be applied in a situation of an unlawful occupation of the state. The Nationality Law did not regulate such a situation. Thus, the validity of this Law, which follows from the doctrine of state continuity, is not a ground to consider that the citizenship of another state obtained during the period of occupation had been acquired contrary to the provisions of this Law. During the occupation period the interests of the state, above everything else, radically differ from the interests of the state before the occupation.

Even though the situation in Latvia and also in the world in 1990 - 1991 was complicated, both from historical and political perspective it was different than in 1919. I.e., in 1990 – 1991 the existence of the state at least de jure was not contested. One must differentiate between the situations, when persons are offered the choice to acquire or not to acquire Latvia’s citizenship at the time, when this citizenship had been non-existent before, and a completely different situation, when persons are forced to renounce this citizenship after it had been inherited and safeguarded.

The very genesis of the institution of citizenship shows that the year 1919 and 1990 - 1991 different significantly. I.e., in the first case the basic principle for acquiring citizenship was jus soli, but in the second case Latvia transferred to jus sanguinis principle for acquiring citizenship. The change of this basic principle was logical and consistent with the doctrine of state continuity.

After 1990 – 1991 actions of the state in the field of citizenship were declarative, not constitutional in their nature. I.e., since the body of citizens already existed, the state had to perform such actions as, for example, renewal or issuing of citizens’ passports. The Citizenship Law, in its essence, is a law on naturalisation. It is not a law forming Latvian citizenship, and it did not have to be such, since Latvian citizenship already existed. Section 9 of the Citizenship Law, which defines the state policy with regard to dual citizenship, provides that a person, which is “admitted to Latvian citizenship”, cannot become a dual citizen, and it allows a different interpretation. For example, with regard to the existing citizens and their descendants, it is difficult to declare that they are admitted to citizenship, because they are already citizens. In any case, in view of state continuity, the Saeima could not deprive Latvian citizens of citizenship with the new Citizenship Law.

The contested provisions, essentially, are opening the way for depriving of Latvian citizenship in a situation, when because of historical coincidence a part of Latvian citizens had to acquire citizenship of another state. Even though a prohibition to deprive a person, who has acquired another citizenship, of Latvian citizenship, does not follow from the continuity doctrine, it does, however, envisage certain conditions in case, if the choice is made in favour of depriving of citizenship in case of dual citizenship. Thus, for example, if during the occupation all dual citizens were deprived of their Latvian citizenship, it might lead to a situation, when the material element of the state – the nation – would disappear, and thus also the foundation for the existence of the state would disappear. The doctrine of state continuity prohibits such extreme formalism regarding the citizenship issue. Even if after the existence of the state is no longer threatened the choice is made in favour of not recognising dual citizenship, the doctrine of state continuity demands at least a proportional and flexible approach to each individual case. Latvian citizens in exile maintained the idea of statehood for several decades, therefore the proportionality of the one year long term set by the contested provisions is questionable.

However, it should be taken into consideration that the continuity doctrine has its limits and it cannot provide answers to all questions. In this case Article 2 of the Satversme should be applied; the term “Latvian nation” used in it includes all Latvian citizens who enjoy full rights, who have the right to participate in the implementation of the principle of the sovereignty of the nation. In Latvia the bearer of sovereign power first and foremost is that body of citizens, which was defined by the Nationality Law at the time when the state was established. Thus, any amendments to the body of citizens should be considered as amendments to Article 2 of the Satversme, but, in accordance with the Satversme the Saeima does not have the authority to change the initial body of citizens. If it is accepted that the criterion for depriving of Latvian citizenship set out in the contested provisions is acceptable and the Saeima could decide in this way, then any prohibition for the Saeima to dictate other conditions, which could be the grounds for depriving other particular groups of citizens of their citizenship, would disappear. The Saeima did not have the jurisdiction to adopt the contested provisions and to set a disproportional term for solving the dual citizenship situations. Thus these provisions are inconsistent with Article 2 of the Satversme.

The obligation of a Latvian citizen defined in the Law to renounce the citizenship of another state so that he could in the future enjoy his rights to Latvian citizenship should be considered arbitrariness. This could lead to the deprivation of citizenship, which could be inconsistent with the human right to citizenship.

8. The leading researcher of the Institute of Latvian History at the University of Latvia Dr. hist. Ainārs Lerhis informs the Constitutional Court that during the period of occupation Latvian diplomatic and consular missions lacked the support of a lawful government, therefore they, within the limits of their possibilities, realised the functions of state power. In their activities they were guided by the normative legal acts of Latvia. During the occupation there was neither an independent and lawful Latvian state parliament or government, nor an exile government, which could repeal these acts or adopt new ones to replace them. Consequently some of the legal provisions because of objective circumstances were impossible to implement.

The basic document, which Latvian missions followed on consular issues, was the Consular Regulations adopted on 7 December 1935. More detailed guidance with regard to consular activities was provided by the Consular Service Instructions of 10 September 1936. The issues connected with Latvian travelling passports, in their turn, were regulated by 26 February 1936 Law on Travelling Passports. The use of Latvian domestic passports abroad was recognised neither by Latvian missions, nor by residence (home) countries.

The consular representatives of the state in their work frequently had to be guided the purpose of the law, since due to the specific character of occupation and exile conditions situations unregulated by legal acts were occurring. When drafting and adopting the legal acts regulating consular practice under the conditions of an independent state it had been impossible to predict these extraordinary circumstances.

Documentary proof of the calculations how many travelling passports were issued to Latvian citizens during the period of occupation has not been found. However, it is possible to make an indirect conclusion that Latvian travelling passport was issued to persons often, because, when staying in the countries of residence and travelling, they needed a document proving their nationality, but for Latvian citizens a Latvian travelling passport could serve best of all as such a document.

The travelling passport of a Latvian citizen proved in practice that the legal connection between the state and its citizens continued. Latvian citizens abroad, who during the years of occupation continued using Latvian travelling passport and presented it as a travel document in Western states, in a way confirmed the de jure continuation of Latvia and its body of citizens. However, with the exile situation becoming protracted and with the disappearance of hope that the state independence would be soon restored, and also because of practical daily considerations gradually more and more exiles obtained the citizenship of the residence (home) countries.

In some cases these persons failed to inform Latvian missions that they had acquired the citizenship of another state, but also did not give up the travelling passports of a Latvian citizen, for example, did not return them to the mission. However, from the perspective of Latvian legal acts, such actions necessarily meant losing Latvian nationality. It is possible, that certain significance can be ascribed to the conditions, whether the legal acts of the country of residence (home) allowed dual citizenship.

9. The Office of Citizenship and Migration Affairs (hereinafter – OCMA) informs the Constitutional Court that, on the basis of the contested provisions, since 2005 one person has been registered in the Population Register after he had renounced the citizenship of another state.

OCMA, in its turn, since 2005 has taken decisions with regard to 34 persons, who should be recognised citizens of Latvia under the conditions that they renounce the citizenship of another state. If the respective persons want to be registered in the Population Register as the citizens of Latvia, they have to submit a document issued by the respective state on the renunciation of its citizenship.

In accordance with the Population Register data, till July, 1995 data on 2872 citizens of Latvia residing abroad, who have simultaneously retained also the citizenship of another state, have been entered in it. The Constitutional Court is asked to pay attention to the fact that these data are approximate. For example, not all descendants of Latvian citizens residing abroad have indicated the citizenship of another state in the primary registration form. Likewise, formerly it was possible to indicate only one nationality in the Population Register even in those cases, when it was known that this person was a citizen of another state. Therefore OCMA provides additional information that by 1 July 1995 data on 19 858 Latvian citizens living abroad had been included.

OCMA emphasizes especially that the words of the first sentence of Paragraph one of the Transitional Provisions of the Citizenship Law “have become naturalised in a foreign state” cover all forms of obtaining citizenship, not only naturalisation, and therefore should be interpreted broadly. Then the possibility to acquire Latvian citizenship would be granted also to those descendants of Latvian citizens, who acquired the citizenship of another state not by naturalisation, but in another way. Moreover, then the problems caused in connection with the Law of Russian Federation “On the Citizenship of Russian Federation” of 28 November 1991 would be eliminated. I.e., in accordance with this Law of the Russian Federation all persons, who at the moment of coming into force of this Law live in the territory of Russia, obtain Russian citizenship. In such a case Section 9 and the Transitional Provisions of the Citizenship Law, not its Section 2 should be applied to Latvian citizens.

10. The Central Election Commission (hereinafter – CEC) informs the Constitutional Court that the election of the 5th Saeima took place in accordance with the Law “On the Election of the 5th Saeima” adopted by the Supreme Soviet on October 20 1991 and the instructions issued by it. In accordance with Paragraph 11 of CEC Decision No. 18 of 18 March 1993 “On the Operation of District Election Commission Abroad” only those voters, who were able to present a passport of the Republic of Latvia, a U.S.S.R. passport with a mark of the registration of the citizen of the Republic of Latvia or a registration form issued by the Department of Citizenship and Migration to the citizens of the Republic of Latvia residing abroad, were allowed into the premises of the polling station. Other documents were not accepted. But in accordance with CEC Instruction “On the Procedure of Voting by Mail in Foreign Countries” approved on 1 April, 1993 the voter had to send to the voting commission a ballot envelope with a copy of his passport or the registration form issued by the Department of Citizenship and Migration.

The Constitutional Court has Established

11. The application allows concluding that the Applicant requests the Constitutional Court to examine the conformity of the contested provisions with the doctrine of state continuity. It also follows from the written answer of the Saeima that the most significant constitutional issues of the contested provisions concern exactly this aspect. Thus, in order to establish the content of the contested provisions and their conformity with the legal provisions of a higher legal force, they first of all must be assessed from the perspective of the continuity doctrine.

The Applicant holds the opinion that dual citizenship of the persons referred to in the first sentence of Paragraph one of the Transitional Provisions of the Citizenship Law formed as the consequence of the occupation of Latvia and that these persons as the citizens of Latvia during the occupation period in the foreign countries constituted one of the most essential elements of the state – the nation. Consequently, the prohibition of dual citizenship is equal to the deprivation of citizenship. The Saeima in its written answer, in its turn, indicates that the Application, assessing the conformity of the contested provisions with the Satversme and the Declaration of Independence, interprets state continuity imprecisely and inconsistently.

The Judgement of the Constitutional Court of 29 November 2007 in the Case No. 2007-10-0102 provides an elaborate analysis of the doctrine of Latvian state continuity. The Court declared that state continuity was characterised by the continuity of the state as a legal person or identity in international law. State continuity is based upon the claims connected with it, which have been advanced according to applicable provisions or procedures of international law, and the fact that these claims are accepted by the international community in a situation when doubts with regard to the identity of the state arise.

If a state, whose independence was unlawfully interrupted, restores its statehood, it can, on the basis of the continuity doctrine, declare itself the same state, which was unlawfully liquidated. In such a case the state itself must define its continuity and act in accordance with the requirements of the continuity doctrine both in international relations and in home policy, and also the international community must agree to this self-assessment of the state. The state can be regarded as “the same” state, if it exists continuously or after occupation is restored with actually “the same” constitutional features and if the international community accepts its claim to state continuity.

It is not necessary for the state to restore its independence in the same territory and with the same body of citizens and with the same constitutional order, which existed before the unlawful interruption of the state continuity de facto. In the course of time the body of citizens of the state, its territory and its constitutional order can change. The continuity doctrine recognises that such changes could have occurred also in the state, the independence of which is being restored. However, in such a case this state must act in accordance with the continuity doctrine, and the respective changes must be introduced not tabula rasa, but on the basis of the previous constitutional regulation. In other words, the changes must occur in the framework of the continuity doctrine, not outside it. (see: Judgement of 29 February, 2007 by the Constitutional Court in the Case Nr. 2007-10-0102, para 32.2. and 32.3. ).

The adoption of the Declaration of Independence and the reinstitution of Article 2 of the Satversme initiated the process of restoring Latvia’s independence, on the basis of the continuity doctrine. The reinstitution of 1 of the Satversme, in its turn, created certainty for the citizens of Latvia that the decisions would be taken in conformity with the basic postulates of the continuity doctrine and that the changes would be consistent with the basic principles of a democratic state.

The doctrine of state continuity includes also the principle of citizenship continuity. If a state chooses continuity as its foundation, then the citizenship regulation must be consistent with this principle. It means that a state, while preserving its essential elements, including nation, as far as possible, must see to it that the amendments in the legal regulation are introduced in conformity with the principles that follow from the continuity doctrine.

Consequently the Constitutional Court will first of all assess the conformity of the contested provisions with Article 2 of the Satversme and the Declaration of Independence.

12. To establish, whether the continuity doctrine has been abided by, the historical conditions when the institution of Latvian citizenship originated must be examined.

12.1. The People’ Council passed the Nationality Law on 23 August 1919. Its purpose was to identify the initial body of citizens. I.e., this Law defined the procedure for recognizing persons to be the citizens of the newly established Latvian State.

 

The initial body of Latvian citizens in accordance with Section 1 of the Nationality Law was defined according to belonging to the territory of Latvia, i.e., in accordance with jus soli principle. This provision envisaged that all nationals of the former Russian state, without differentiating as to their ethnicity and religion, who lived in the territory of Latvia, originated from the districts falling within Latvian border regions or on the basis of Russian law already before August 1914 belonged to these districts and by the day when this law was promulgate had not transferred to another nationality, should be considered a citizen of the state. Thus, a person’s link with the territory of Latvia could be actual (originating from the districts falling within Latvian borders), as well as legal (on the basis of the Russian law already before 1 August 1914 already belonged to these districts) (See: Dišlers K. Ievads Latvijas valststiesību zinātnē. Rīga: A. Gulbis, 1930, 77. – 78. lpp.[Dišlers K. Introduction to the Science of Latvian State Law]). Upon establishing the state, the body of Latvian citizens had to be defined, and Latvia selected jus soli principle as the point of departure.

On 7 October 1921 the Nationality Law was supplemented with Section 1.1, which envisaged that “everyone, without discriminating as to the ethnicity of religion, who on the day when Section 11 of this Law is promulgated, has not transferred into the citizenship of another state and a) who till 1 August 1914 had had permanent place of residence within the borders of Latvia for the last 20 years, b) or who has had permanent place of residence within the border of Latvia till 1881, or c) who is the descendant of persons referred to in paragraphs “a” and “b”, is recognised as a citizen of Latvia”. These provisions did not apply to those persons, who had evaded military service. Section 4 of the Law, in its turn, was supplemented with a note that those foreigners, who were serving or had served in the Latvian Army, could be admitted to Latvian citizenship with a Cabinet of Ministers decision, if they had resided in the territory of Latvia for five years (see: Likumu un valdības rīkojumu krājums, 19. burtnīca, 1921. gada 20. oktobris, 339. lpp. [Collection of Laws and Governmental Decrees]).

Section 2 of the Nationality Law envisaged that “the citizens, who temporarily reside outside the borders of Latvia and meet the requirements included in Section 1, shall not lose the right to Latvian nationality, if they within one year from the day when this Law is promulgated, return to Latvia or register as citizens of Latvia with any of Latvian diplomatic missions abroad or inform about their unwillingness to retain Latvian nationality to the Minister of Interior.”

12.2. Some exceptions to jus soli principle were envisaged, by concluding international treaties and including in the body of citizens persons, who had links with the territory of Latvia. Thus the identification of the body of citizens continued. For example, on 22 July, 1921 an Agreement between Latvia and Russia on the Procedure for the Optation of Citizenship, Repatriation, on the Exportation and Liquidation of the Property of the Citizens of the Parties to the Agreement was concluded. Article 1 of the Agreement set out the procedure in accordance with which the inhabitants of the newly acquired territories of Latvia could apply for Latvian citizenship. In accordance with Article 7 of this Agreement Latvia could not refuse to grant Latvian citizenship to these persons. (see: Likumu un valdības rīkojumu krājums, 15. burtnīca, 1921. gada 24. augusts, 251., 252. un 256. lpp.[Collection of Laws and Governmental Decrees]).

Similar agreements, containing the regulation of the citizenship issue, were concluded with the Republic of Estonia, the Ukrainian Soviet Socialist Republic and the Republic of Lithuania (see, for example: Likumu un valdības rīkojumu krājums, 13. burtnīca, 1920. gada 22. decembris, 1. – 13. lpp.; 12. burtnīca, 1921. gada 30. jūnijs, 192. – 195. lpp. un 21. burtnīca, 1921. gada 29. decembris, 353. – 360. lpp. [Collection of Laws and Governmental Decrees])). The aforementioned agreements allow concluding that the establishment of dual citizenship was not permitted.

12.3. The Nationality Law was adopted in difficult times, when Latvia was not yet recognised de jure. On 7 July 1919 the Provisional Government of Latvia arrived in Riga (see: Andersons E. Latvijas vēsture. 1914 – 1920. Stokholma: Apgāds Daugava, 1967, 506. lpp. [Andersons E. The History of Latvia]). The eastern districts of Latvia were occupied by the Soviet armed forces, but the German and Bermont army, which was also hostile to the existing Latvian state, was in Kurzeme. Nothing was clear about the situation in Russia [see: Straume A. Pavalstniecības jautājums Latvijā (1919. – 1940.). Latvijas Vēsture, 1992/2, 71. lpp. [Straume A. The Question of Nationality in Latvia].)

Consequently, one can agree to what was pointed out both by the Saeima and I. Ziemele, that when adopting the Nationality Law, it was a matter of principle to define a body of loyal citizens and to exclude the possibility that Latvian citizens could simultaneously be also citizens of another state.

One of the legal mechanisms that could be used to ensure that only persons loyal to Latvia become Latvian citizens was included in Section 8 of the Nationality Law. It provided that no one could simultaneously be a national of Latvia and of another state. Otherwise the person loses the rights of a Latvian citizen. In this way the Law set out the prohibition of dual citizenship, which, notwithstanding the numerous amendments to the Nationality Law, essentially remained unchanged. The opinions provided in the Case allow concluding that in those cases, when a person, while being in exile, had adopted the citizenship of another state, from the perspective of Latvian legal acts it unavoidable meant losing the citizenship of Latvia (see: A.Lerh’s opinion in the materials of the case. Vol. 6, p. 105).

The Nationality Law, which de jure was in force before the Citizenship Law was adopted, expressis verbis included the prohibition of dual citizenship.

13. Since the unlawful occupation de facto interrupted the functioning of Latvian citizenship, the Constitutional Court must establish, whether and in what way this citizenship continued de facto and de jure during the period of this violation of international right.

13.1. The continuing activities of the state missions and the recognitions of their jurisdiction is the most significant factor in the context of Latvian citizenship.

From 1940 to 1991,while there was no lawful government in Latvia and the annexation of the state continued, Latvia de jure in international relations was represented by the retained diplomatic and consular service. The actions of the employees of this service undeniably was one of the conditions, which made other states lean towards non-recognition of the unlawful occupation and annexation of Latvia (see: Dēliņš E. Ar skatu no Austrālijas: Latvijas ārlietu dienests 4. maija Deklarācijas priekšvakarā // ­4. maijs. Rakstu, atmiņu un dokumentu krājums par Neatkarības deklarāciju. Rīga: Fonds Latvijas Vēsture, 2000, 50. lpp. [Dēliņš E. From Australian Perspective: Latvian Foreign Service on the Eve of the 4th of May.] and Lerhis A. Latvijas Republikas ārlietu dienests. 1918 – 1941. Rīga: Latvijas vēstures institūta apgāds, 2005, 255. – 279. lpp. [Lerhis A. The Foreign Service of the Republic of Latvia.]). During the period of occupation the actions of Latvian diplomatic missions was the only manifestation of the legal capability of the Latvian State.

At the same time these missions no longer had the support of a lawful government. In such an extraordinary situation their actions were defined by the limited legal capability of the state. On the basis of the ambassadors’ statements, Latvian diplomatic and consular missions abroad continued their work up till the restoration of Latvia’s independence, not recognising Latvia’s annexation to the U.S.S.R. and representing Latvia’s interests. (see: Judgement of 29 November 2007 by the Constitutional Court in the case No. 2007-10-0102, para 33.1.).

The heads of the missions defined the guidelines of state foreign policy, appointed staff members of the missions, consuls and personal representatives (see: Lerhis A., 284. – 286. lpp.). The basis for the activities of Latvian diplomatic and consular service was the extraordinary powers granted on 17 May 1940 to the Ambassador of Latvia Kārlis Zariņš to represent Latvia’s interests abroad. (see: Dunsdorfs E. Kārļa Ulmaņa dzīve. Ceļinieks. Politiķis. Diktators. Moceklis. Rīga: Zinātne, 1992, 366. – 369. lpp. [Dunsdorfs E. The Life of Kārlis Ulmanis. Wanderer. Politician. Dictator. Martyr.]). Even though there were discussions in exile about who had the right to represent Latvia under conditions of unlawful occupation (see, for example: Senatoru atzinums // 4. maijs. Rakstu, atmiņu un dokumentu krājums par Neatkarības deklarāciju. Rīga: Fonds Latvijas Vēsture, 2000, 382. – 385. lpp. [The Senators ‘Opinion/ 4 May. A Collection of Articles, Memoirs and Documents about the Declaration of Independence]) ,however, these powers were recognised as legal and valid by the governments of the Western states, including the United Kingdom and the USA (see, for example: Lerhis A., 256. – 257. lpp.).

The content of the extraordinary powers was limited, for example, it did not envisage the possibility to establish a government in exile, however, their basic objective was clear – to safeguard Latvia’s interests with all one’s force (see: Ziemele I. State Continuity and Nationality: the Baltic States and Russia: Past, Present and Future as Defined by International Law. Leiden: Martinus Nijhoff Publishers, 2005, p. 22). Moreover, they were granted in belief that the potential occupation of Latvia would not be long (see: Andersons E. Latvijas vēsture. 1920 – 1940. Ārpolitika. E. Dunsdorfa red. II. - [B.v.]; Daugava, 1984, 412. – 415. lpp. [Andersons E. The History of Latvia]).

The agreement of Latvian ambassadors concluded on 26 May 1946 in Geneva allows concluding that the diplomats committed themselves to fight for the restoration of the independence of the state as intensely as possible. They agreed that the extraordinary powers granted on May 17 1940 to the Ambassador K.Zariņš and his eventual successor in rights Alfrēds Bīlmanis should be considered to be the continuation of the idea of a sovereign power and thus is the legal basis for the ambassadors’ activities. The ambassadors continued to represent the sovereign power of Latvia in those states and international institutions, with which they were accredited and where they were able to act. The ambassadors agreed to cooperate, to the extent the political circumstances allowed, with all Latvian patriotic organisations, which had the aim to restore the independence of Latvia (see: case materials, Vol. 6, p.129). Oļģerts Grosvalds, the Latvian Ambassador in Paris as late as 1951 signed a certificate that he recognised the extraordinary powers granted by the lawful government of Latvia on 17 May, 1940 and K. Zariņš, the Ambassador of the state in London, as the holder of these powers (see: case material, Vol. 6, p. 138).

Other states recognised the powers of the Baltic diplomatic representatives. Thus, for example, the USA allowed the Baltic diplomatic and consular institutions to act as the representatives of the respective states. Similarly, measures were taken to protect the Baltic properties in the USA. The same approach was adopted by the United Kingdom, as well as courts in Germany and Ireland [see: Hough W., The Annexation of the Baltic States and its Effect on the Development of Law Prohibiting Forcible Seizure of Territory, p. 392, footnote 397, p. 415, footnote 431, pp. 434 – 425; see also: The Republic of Latvia Case, 20 International Law Reports 180 (1953), 10 Int’L. Law Reports 91 (1949)]. Also the German Federative Republic, establishing diplomatic relations with the U.S.S.R., emphasized especially that it did not recognise the unlawful occupation and annexation of the Baltic States realized by the U.S.S.R., as well as the territorial changes, which in this connexion had occurred after the beginning of World War II. (see: the importance of the reservations made the German Federative Republic in case materials, Vol. 6, pp. 146. – 151. lpp.). Also Canada, Australia, France, Yugoslavia, Denmark, Belgium, Spain, Portugal, the Vatican, Malta, Greece, Italy, Luxemburg, Turkey, Norway, the Netherlands, Switzerland adhered to the non-recognition policy. Diplomatic relations were maintained with Uruguay, Brazil, Columbia, Ecuador, Chile, Guatemala, Paraguay, Venezuela, Costa Rica and other states (see: Hough W., pp. 444 – 445).

Thanks to the diplomats of the Baltic states the issue of the occupation of these three countries was debated at the UN Specialised Committee on Decolonisation in 1983 and at the Parliament of the European Union [see: 1982 – 1983 Eur.Parl. Doc. (No. 7.908), pp. 432 – 433 (1983)]. Several resolutions were also adopted by the Parliamentary Assembly of the Council of Europe [see: Dokumenti par Latvijas valsts starptautisko atzīšanu, neatkarības atjaunošanu un diplomātiskajiem sakariem, 160. – 161. lpp. [Documents concerning the International Recognition of the State of Latvia, Restoration of Independence and International Relations.]; Pagātne nākotnē: 1940. gada notikumu izvērtējums. Ž. Ozoliņa. (red.). Rīga: SKDS, 2005, 10. lpp. [The Past in the Future. The Assessment of the Events of 1940.] ]. Thus, Latvian diplomats abroad for fifty years maintained the claim for the state of Latvia, and this fact is essential in the context of the continuity doctrine.

In view of the fact that in 1990 Latvia’s independence was restored on the basis of the continuity doctrine, the actions of the highest state officials abroad during the period of state occupation are also binding to the legislator.

13.2. During the period of Latvia’s occupation the diplomatic and consular missions in the Western countries in their actions were guided by the pre-occupation legal acts. They were still in force also following the occupation of Latvia. Due to objective reasons the application of the Nationality Law, as well as other legal acts – The Consular Regulations of 7 December 1935, the Instruction of Consular Service of 10 September, 1936, the Law on Travelling Passports of February 1936, the Instructions under the Law on Travelling Passports of 28 May 1936. Often the consular representatives of Latvia had to act in the spirit of the respective state laws, however, adapting to such circumstances, which were impossible to predict at the time when the respective legal acts were drafted, i.e., before the occupation (see: The opinions of A. Lerhs and I. Ziemele in case materials, Vol. 6, p.104 and Vol. 7, p.38)

During the occupation period the missions abroad could not apply those legal provisions, which envisaged the subordination, connection and cooperation of the missions with the state institutions within the territory of Latvia – the Ministry of Foreign Affairs, the Ministry of Interior, as well regulated travel to and from the territory of Latvia (see: A. Lerhs opinion in case materials, Vol. 6, p.103). For example, Paragraph 2, 3, 4, 5, 6, 8, 21, 34, 39, 53, 54 and 70 of the Instruction under the Law on Travelling Passports, Section 13 of the Law on Travelling Passports, as well as Subparagraph 5.d of Paragraph 101 of the Consular Service Instructions could not be fully or partially applied. (see: 1936. gada 28. maija Instrukciju pie Likuma par ārzemju pasēm [The Instruction under the Law on Travelling Passports of 28 May, 1936] // Valdības Vēstnesis, Nr. 132, 1936. gada 15. jūnijs, and 1936. gada 10. septembra Konsulārā dienesta instrukciju [The Consular Service Instruction of 10 September 1936]// Valdības Vēstnesis, Nr. 208, 1936. gada 14. septembris).

Thus, those legal acts, which regulated issues of Latvian citizenship and registration of citizens de facto became invalid. The registers of diplomatic missions in those countries, where the missions of Latvian state were found or where the validity of Latvian travelling passports was extended, became the only registers, which continued registering Latvian citizens.

13.3. During the years of exile for the refugees – Latvian citizens, who had come to other states – it was important to obtain Latvian travelling passport from the diplomatic and consular missions of their state. When residing in their countries of residence and also in order to leave the refugee camps, a document proving the nationality was needed, and for Latvian citizens a citizen’s travelling passport could serve best of all as such a document (see: A. Lerhs’ opinion in case materials, Vol. 6, p.104). The archive materials confirm that the registration was very widespread among Latvians residing abroad, especially during the first years of exile. Great distances between the refugees’ places of residence and Latvian missions frequently made it difficult to receive the Latvian travelling passport; however, Latvian citizens tried to overcome these difficulties. The practice of forwarding the documents necessary for obtaining the passport to the missions by mail was also widespread.

Due to objective reasons it was difficult to verify the belonging of persons to the Latvian citizenship. During the war many persons had lost their domestic passport, therefore the following were recognised as documents proving citizenship – a birth certificate, for the widowers – the spouse’s death certificate, for the divorcees – a court judgement or equivalent documents certified by a notary in case the originals were not available (see:. A. Lerh’s opinion in case materials, Vol. 6, p.107). In separate cases the fact that a person had been a citizen of Latvia could be certified with, for example, testimonies provided by witnesses.

The documents held at the archive of the Ministry of Foreign Affairs show that the missions, acting under such extraordinary circumstances, made entries in their registers on issuing travelling passports, on extending their validity and on collecting the respective state duties. Likewise, the voluminous correspondence with some private persons allows concluding that prior to issuing the passport the provided data were verified. Thus, for example, it follows from the materials of the case, that missions registered the extension of the validity of the passport both in the cards of individual persons and in accordance with Paragraph 30 of the Instruction under the Law on Travelling Passports – special registers of issuing and extending the validity of passports (see: case materials, Vol. 6, pp. 124 – 126). The aforementioned is evidence that the issuing and extending the validity of travelling passports was one of the most important functions that the state realised during the period of occupation in Latvian missions abroad.

The travelling passports were issued in accordance with Latvian legal acts. For example, citizens filled out questionnaires intended for the persons who register with Latvian missions abroad. The questionnaires contain excerpts from both the Law on Travelling Passports and the Consular Regulations (see: case materials Vol.6, pp. 127 132 – 135 and 139 – 140). The citizens were informed about the necessity to extend the validity of the passport regularly. At the same time the missions sometimes refused to exclude persons from the body of citizens, if this question did not fall within their jurisdiction (see: case materials Vol. 6, p. 145).

Even though the missions tried to abide by Latvian legal acts, they had limited possibilities to verify, whether all information provided to them concerning the issuing or the extending the validity of travelling passports was true. For example, it is mentioned in a letter by Ēriks Žilinksis, the Secretary of the Office of the Embassy in London of April 6, 1979 to the Ādolfs Šilde, the representative of Latvian interests in the German Federative Republic, that all applicants had to submit a questionnaire for applying for a passport with a photo, as well as documents proving the belonging to Latvian citizenship. “We do not want to be pedants, however, in these times special effort must me made not to lose the trust of friendly foreign states into our consular activities.” Likewise, the letter points out: “We try to be as liberal as possible, but we would not want to see the Latvian passport becoming, as it were, flag of convenience” (A. Lerh's opinion in case materials, Vol. 6, p. 107).

The archive materials of the Ministry of Foreign Affairs allow concluding that many countries, including the USA, England, Australia, Denmark, France, the Netherlands, Norway, Spain, Finland, the German Federative Republic and Sweden recognised Latvian travelling passport as a valid travelling document (see: case materials Vol. 6, pp. 136, 137 and 156).

The fact that Latvia’s citizenship was retained during the period of unlawful occupation of Latvia was especially significant from the perspective of state continuity. In this way a real legal link with the state of the pre-occupation time was ensured (see: I. Ziemele’s opinion in case materials, Vol. 6, p.37).

13.4. To establish the way the institute of Latvian citizenship evolved, the Constitutional Court has to asses, whether during the period of the occupation of the state there were grounds to allow the formation of dual citizenship for Latvian citizens in exile.

With the unlawful occupation extending longer the de jure existence of Latvia became more threatened. With the vanishing of hope to restore the independence of Latvian state soon, as well as because of practical daily considerations, more and more exile Latvians acquired the citizenship of the country of their residence (see: A. Lerh’s opinion in case materials, Vol. 6, p.105).

For example, Latvia’s mission in Great Britain, headed by K. Zariņš, extended the validity of Latvian travelling passport even in those cases, when the person himself admitted that he had acquired the citizenship of another state. Thus, it is noted in a letter of the mission: “the Embassy received your letter of 10 October, this year, accompanied by your Latvian travelling passport No. 08939 LS and note that due to your admittance into the English citizenship this passport has become invalid. In this respect the Embassy finds it necessary to explain that the English law does not require this, on the contrary, it allows dual citizenship. Therefore we would like to ask, whether with the transfer into the English citizenship you intend to sever ties with the idea of the Latvian state, since we regard the Latvian passport first and foremost as the symbol of our national unity. We do not think that you intend to sever these ties because of the passport duty, which is, after all, only 2/- per month. Therefore we think that you will reconsider this issue and will continue to hold your Latvian passport” (case materials, Vol.6, p. 152). Also the letter of 28 May 1956 notes: „the Embassy is honoured to confirm the receipt of your letter of 27 May of this year and your Latvian travelling passport. In this respect we take the liberty to indicate that usually with the transfer into English nationality, compatriots do not sever their ties with the Latvian state, but continue to hold their Latvian passports. It is hard to predict the course of events in these difficult times, and it is always safer to stay with one’s own nation” (case materials, Vol. 6, p.154).

In those circumstances Latvian missions, indeed, had to act in a way so as to ensure the preservation of the state as much as possible, therefore formal implementation of the Nationality Law became impossible. The application of the pre-occupation legal acts had to be subordinated to the assessment of the interests of the sate as to their merits, considering the political and historical reality (see: I. Ziemele’s opinion in case materials, Vol.7, p.38). Thus, dual citizenship, which formed under the conditions of state occupation, cannot be regarded as unlawful.

The Constitutional Court recognises that the rules of Latvian legal acts, including the Nationality Law, had to be adjusted, in view of the situation of occupation and interests of the state. Formal interpretation and application of these legal provisions would have been inconsistent with the interests of the Latvian state during the period of unlawful occupation.

14. It is noted in the Application that the persons, who under the conditions of occupation were forced to leave Latvia and acquire the citizenship of another state, could rely upon the provisions of the Decision of 27 November 1991. Consequently the Constitutional Court will establish, under what conditions and with what mandate the Supreme Soviet could impact the body of Latvian citizens, which had developed in accordance with jus sanguinis principle during the occupation.

14.1. The Saeima indicates in its written answer, that the Supreme Soviet, in view of the procedure for its election, had the power only to identify the body of Latvian citizens in accordance with the regulation of the Nationality Law. Thus, essentially, the Decision of 27 November 1991 was adopted outside the framework of its jurisdiction, because contrary to the Nationality Law envisaged the introduction of the dual citizenship institution.

The Constitutional Court has recognised that the Supreme Soviet was elected in only partially free elections and did not have the jurisdiction to decide upon all issues. It expressed the political will of not only citizens of Latvia, but also that of other inhabitants of Latvian S.S.R. However, the Supreme Soviet chose the legal platform of Latvia of 18 November 1918. Considering the right of Latvian citizens envisaged in Article 2 of the Satversme to decide all most important issues of the state and on the basis of the continuity doctrine, the Supreme Soviet adopted the Declaration of Independence. With the moment of adopting this Declaration, the Supreme Soviet undertook to ensure the actual restoration of the state independence (see: Judgement of 29 November 2007 by the Constitutional Court in the case No. 2007-10-0102, para 61.2. and 61.3.).

            The Supreme Soviet, which was elected in 1990 on the basis of the laws of the occupation power, was only an institution of the transition period (see: Ziemele I., p. 35.). So a question can be advanced, whether it had the jurisdiction to decide on Latvia’s independence (see: Celle O. 4. maijs un trimdas latvieši // 4. maijs. Rakstu, atmiņu un dokumentu krājums par Neatkarības deklarāciju. Rīga: Fonds Latvijas Vēsture, 2000, 117. lpp.[Celle O. The 4th of May and Exile Latvians]). Neither did Latvian society hold a unified attitude towards the Supreme Soviet and its powers [see, for example: Jundzis T. Vēsturiski politiskā situācija laikā, kad tapa 4.maija Deklarācija (1990.g. marts – maijs)[Jundzis T. The Historical Political Situation at the Time when the 4th of May Declaration was Created]; Latvijas Republikas pilsoņu kongresa 1990. gada 1. maija rezolūcija „Par LPSR Augstāko padomi”// 4. maijs. Rakstu, atmiņu un dokumentu krājums par Neatkarības deklarāciju. Rīga: Fonds Latvijas Vēsture, 2000, 38. – 41. un 377. – 378. lpp.].

However, it cannot be denied that an objective necessity for an institution, which would restore the statehood of the Republic of Latvia, had appeared. The Supreme Soviet was such an institution. Even though its constitutional functions were limited, it, nevertheless, had the jurisdiction to ensure that the core of legitimate Latvian statehood was fully restored.

14.2. The Preamble of the Declaration of Independence concretises the doctrine of Latvian state continuity and sets the duty for the institutions of state power to abide by this doctrine and not to deviate from it. Likewise, the exposition of the historical facts and their legal assessment, which substantiates the continuity doctrine and is included in the Preamble, is binding to the institutions of state power (see: Judgement of 29 November 2007 by the Constitutional Court in the case No. 2007-10-0102, para 64.2.).

The Supreme Soviet had the task to do the necessary preparatory work to renew the functioning of Article 6 of the Satversme, i.e., to hold the Saeima elections. The preparation and holding of these elections should be recognised as the last stage in de facto restoration of Latvia’s independence. When adopting both the Decision of 15 October 1991 and the Decision of 27 November 1991 the Supreme Soviet had the duty to ensure the continuity of Latvian citizens’ rights. The Decision of 27 November 1991 was the basis, so that the persons residing abroad, who during the period of occupation had acquired a citizenship of another state, could register as citizens of Latvia and receive the personal identity number, to realize the sovereign power of the nation and to participate in the elections of the 5th Saeima.

Thus, one can agree with the Applicant that the principle of citizenship continuity envisages the legal duty of the state to the extent possible to reinstitute the rights of those citizens, who had them prior to the unlawful occupation of the state. At the same time it must be noted that in the context of the continuity doctrine the state does not have the duty to register as citizens all persons, who were the citizens of this state, before it de facto lost its independence, and the descendants of such persons. In this respect the claim of state continuity is essentially political in its nature (see: the opinion of Berita Āvikso, a lecturer at the Constitutional Law Department of Tartu University in case materials, Vol.7, p.30).

The transcripts of the Supreme Soviet meetings show that the citizenship was one of the most discussed issues. Latvia’s independence de facto was restored on 21 August 1991, however, the procedure for identifying the body of Latvian citizens was not defined at the same time. On 31 July 1991 the Supreme Soviet adopted Decision No. 129 “On Establishing a Working Group for Drafting the New Wording of the Satversme of the Republic of Latvia and the Conception of the Republic of Latvia Citizenship”.

The Supreme Soviet tried to put the procedure for defining the body of citizens into the draft law “On Citizenship”, however, the working group established for the drafting of this law could not reach a compromise on this issue. The possibility to adopt the Law “On Citizenship” was not supported by the Faction of the Popular Front at the Supreme Soviet, since there was an opinion that the Supreme Soviet by adopting a new citizenship law would derogate from the concept of renewing the Republic of Latvia of 1918. Some deputies even left the Popular Front faction, because they did not agree with the decision that the Supreme Soviet had the authority to pass the citizenship law [see: Latvijas tiesību vēsture (1914 – 2000). Rīga: Fonds Latvijas Vēsture, 2000, 461. un 462. lpp. [The History of Latvian Law].

Thus, the Constitutional Court concludes that the Supreme Soviet was aware of the limits to its jurisdiction, which were defined in the Declaration of Independence. It did not adopt a new citizenship law, but based itself upon decisions which abided by both the Nationality Law and the citizenship continuity principle.

            14.3. To assess whether no deviations from the authorisation by the Declaration of Independence occurred, the Constitutional Court has to verify, whether the definition of the body of citizens with the Decision of 27 November 1991 did not exceed the jurisdiction of the Supreme Soviet.

            Following the unlawful occupation and annexation of Latvia the Presidium of the Supreme Soviet of the U.S.S.R. on 7 September 1940 adopted the Decree “On the Procedure of Acquiring the Nationality of the U.S.S.R. for the citizens of the Lithuanian, Latvian and Estonian S.S.R.”. In accordance with Paragraph 1 of this Decree the citizens of Latvian S.S.R., among others, had to be regarded as the citizens of the U.S.S.R.. Thus, under the conditions of occupation, the register of Latvian citizens did not function and had to be renewed after the restoration of state independence. However, Latvian citizenship continued to exist and to transfer to next generations and pass to the next generations in accordance with jus sanguinis principle. It can be concluded from the aforementioned that all those persons, who were the citizens of the state prior to its occupation, did not lose Latvian citizen during this period.

An integral element of the continuity doctrine was not only the identification of those citizens who lived in Latvia, but also the application of jus sanguinis principle to those citizens, who as the result of both occupations had to leave Latvia. Moreover, in the process of restoring citizenship it was important to take into consideration the practice of Latvian consular missions that had lasted for years in applying the national legal norms, and also the fact that some groups of Latvian citizens had lost all ties with their homeland for the whole period of occupation. Thus, Latvia, to the extent possible, had to restore the rights of all its citizens.

In accordance with Paragraph 2.1. of the Decision of 15 October 1991 the persons, who belonged to the body of Latvian citizens and who had its citizenship on 17 June, 1940, as well the descendants of such persons, who at the moment when this Decision came into force, lived in Latvia, registered 1 July, 1992 and received the citizens’ passports in accordance with procedure set by the Council of Ministers of the Republic of Latvia. Paragraph 2.2 of the Decision, in its turn, provided that the persons, who belonged to the body of Latvian citizens and who had its citizenship on June, 1940, as well the descendants of such persons, who at the moment when this Decision came into force did not reside in Latvia or who were citizens of other states, could register at any time and, upon presenting the expatriation permit, receive the citizen’s passport in accordance with the procedure set by the Council of Ministers of the Republic of Latvia, but 2.3. provided that a Latvian citizen could not simultaneously be also a citizen or a national of another state.

Latvian citizens and Latvian organisations abroad castigated the adoption of the Decision of 15 October 1991, since this Decision laid down the prohibition of dual citizenship (see: A. Endziņš’ opinion in case materials, Vol. 7, p. 12. and Egils Levits’ letter to Gunārs Meriovics in case materials, Vol. 6, pp. 32-35). The persons living in exile objected both to the fact that a Latvian citizen’s passport could be received only upon presenting the expatriation permit, and also against the provision that a citizen of Latvia could not simultaneously be a citizen or a national of another state.

Consequently, the Supreme Soviet adopted the Decisions of November, 1991, providing that the provision of 2.2. of the Decision of 15 October 1991 on the presentation of expatriation permit and Paragraph 2.3. did not apply to Latvian citizens and their descendants, who, under the conditions of the occupation of their fatherland, while being outside Latvia, had acquired the citizenship of another state in the period from 17 June 1940 to 21 August 1991.

14.4. Both the Decision of October 15 1991 and the Decision of 27 November 1991 were aimed at setting up the Population Register and preparing the Saeima elections. I.e., after the occupation of Latvia is was impossible to apply the pre-occupation normative legal acts pertaining to the registration of citizens. The Ministry of Interior, which in this field was the supervisory and leading state institution, had also stopped functioning. Thus, considering also the task set in the Declaration of Independence, the registration of citizens was an objective necessity. The Population Register was created and later the registration of the voters for the Saeima elections was performed in conformity with the possibilities and requirements of the time, thus concluding the period, in which the transition to de facto restoration of the state independence occurred.

Formal abiding by the Nationality Law and disregarding the practice that had evolved during occupation would lead to the conclusion that those persons, who under the conditions of occupation had acquired the citizenship (nationality) of another state, had lost the rights of a Latvian national, including the right to elect the Saeima. The “exclusion” of the citizens in exile prom participation in the realisation of sovereign state power would weaken the legitimacy of the newly elected Saeima, and such an action would be inconsistent with the principle of the sovereignty of the nation.

The restriction to the jurisdiction of the Supreme Soviet with regard to expanding the body of citizens should rather be interpreted as a prohibition to grant citizenship to those persons, who had entered Latvia during occupation, not as a prohibition to decide about the persons, who already were Latvian citizens. It was indeed assessed from this aspect, indicating that Latvian citizenship in accordance with the Nationality Law had continued to exist uninterruptedly. The citizenship of the U.S.S.R. unlawfully imposed upon the citizens of Latvia is invalid, but the citizens of the U.S.S.R., who had entered Latvia, have not acquired Latvian citizenship (see: Levits E. Valsts atjaunošanas koncepcijas attīstība (personiskas piezīmes) // [Levits E. The Development of the Concept of State Restoration] 4. maijs. Rakstu, atmiņu un dokumentu krājums par Neatkarības deklarāciju. Rīga: Latvijas Universitātes žurnāla „Latvijas Vēsture” fonds, 2000, 267. lpp.). Thus, the restriction of the jurisdiction of the Supreme Soviet with regard to the citizenship issue was aimed mainly at not allowing the automatic granting of citizenship to those persons, who had entered the country during the unlawful occupation.

The Constitutional Court concludes that neither the Decision of 15 October 1991, nor the Decision of 27 November 1991 should be considered as such, which restrict the power of the legally established Saeima to decide the citizenship issue in the future. The Saeima has directly confirmed this by its actions, on 11 August 1994 adopting the Citizenship Law.

            Thus, the Decision of 27 November 1991 is consistent with the continuity doctrine, which follows from Article 2 of the Satversme and the Declaration of Independence.

15. To assess the consistency of the contested provisions with the principles of legal certainty and proportionality, the historical context, in which these provisions were adopted, and their content must be established, applying methods for interpreting legal provisions. The fact that the legislator had the duty to implement measures to compensate, to the extent possible, for the damages caused by the previous regime and to ensure justice, must be also taken into consideration (see: Judgement of 25 May 2003 by the Constitutional Court in the case No. 2002-12-01, para 1 of the Concluding Part).

15.1. The contested provisions were adopted by the 5th Saeima, which was elected on 5 and 6 June 1993. 23 lists of candidates were registered for the Saeima elections, including in total 879 candidates. 1 118 316 voters or 89.9 percent of the Latvian citizens with the right to vote participated in the elections The number of citizens, who voted abroad, was 18 413 (see: http://web.cvk.lv/pub/public/27483.html, accessed on 22 April, 2010). From among Latvian citizens, who had returned to Latvia after time spent in exile, 17 deputies were elected to the 5th Saeima, who belonged to different factions. The citizenship issue was topical both before the elections and afterwards – the commitment to draft and adopt the Citizenship Law was included in the report on the constitution of the Cabinet of Ministers and the declaration on the intended activities of the Cabinet.

The debates about the Citizenship Law started already during 23 September 1993 meeting of the 5th Saeima, when the decision was taken to submit the prepared draft law to the committees (see: http://www.saeima.lv/steno/st_93/st2309.html, accessed on 22 April, 2010). During the further readings of the Citizenship Law – on 25November 1993 and 9 and 21 July 1994 – again extended debates of various issues of the Citizenship Law took place.

The contested provisions as a proposal for the draft Citizenship Law were submitted by the deputies of the Latvian National Independence Movement faction for the third reading. The proposal was to express Section 10 of the draft law in the following wording:

“The citizens of the Latvian State and their descendants, who in the period from 17 June 1904 to 21 August 1991, escaping from the terror of the U.S.S.R. and German occupation regime, left Latvia as refugees, as well as were deported or because of these reasons have been unable to return to Latvia and during this time have become naturalised in foreign states, retain the right to register into the Population Register as the citizens of Latvia and following the registration enjoy the rights of a citizen and fulfil the citizen’s obligations in full, if the registration occurs before July 1995. If these persons register after July 195, they shall renounce the citizenship of another state.”

The Legal Affairs Committee rejected the proposal to add a new Section to the law and accordingly placed these provisions in the Transitional Provisions. The transcript of the Saeima meeting of 21 June 1994 allows concluding that the Legal Affairs Committee introduced also editorial amendments to the contested provisions. An essential correction was the replacement of the numbers and words “ August 1991” with the numbers and words “4 May 1990”. Likewise the Legal Affairs Committee rejected the proposal of the deputies from the Democratic Party faction to replace the words “if the registration occurs by 1 July, 1995” with the words “if the registration occurs by the day when this Law enters into force”, as well as the proposal of the same faction to express the last sentence in the following wording: “if the respective persons register after this Law has come into force, they shall renounce the citizenship of another state”. Since the factions did not maintain the demand to vote, a separate vote regarding the contested provisions was not held (see: the transcript of the 21 June 1994 meeting of the 5th Saeima http://www.saeima.lv/steno/st_94/st2106.html, accessed on 22 April, 2010).

The materials of the Case lead to the conclusion that the Citizenship Law was meticulously assessed, evaluating various alternatives of regulation, but the contested provisions did not cause disputes among the members of the Saeima and reflected the legislator’s will. Moreover, the Saeima, in adopting the contested provisions, had no possibility to influence the situation, when other states, the citizenship of which persons, who had left Latvia, had acquired during occupation, in their laws or in their practical application did not recognise the institute of dual citizenship.

15.2. Without questioning the actions of the legislator, the Constitutional Court must establish, whether the persons, who had the right to renew the Latvian citizen’s rights, were identified in conformity with the requirements of the continuity doctrine. To establish this, interpretation of the contested provisions must be performed.

15.2.1. In the interpretation of the contested provisions, the fact that Latvian citizens had been forced to and for a long time resided in other states, simultaneously retaining their identity with the Latvian statehood, must be taken in consideration. Thus, the contested provisions must be applied not only to those Latvian citizens, who went to other countries as refugees or were deported, but also to those, who later, during the occupation period, left Latvia because of other reasons. The opinion provided by OCMA also leads to the conclusion that the provision of Paragraph one of the Transitional Provisions of the Citizenship Law “and have become naturalised during this time in a foreign state” must be interpreted widely, providing the opportunity to renew Latvian citizen’s rights also to those citizens’ descendants, who acquired the citizenship of another state not by way of naturalisation (see: case materials, Vol. 6, pp. 3 and 4). Thus, formal approach in applying grammatical interpretation is inadmissible.

Moreover, it can be concluded form the materials of the case that the contested provisions were interpreted in such a way that by the specified date the persons living abroad had the obligation only to fill in the registration questionnaire. The inclusion of the person in the Population Register itself could occur also after the specified date, and such a case the respective person could retain dual citizenship.

The case law of administrative courts is also consistent with the approach established in the decisions of the Constitutional Court that the legal provisions that pertain to the acquisition of citizenship should not be applied formally. I.e., for an individual the acquisition of a citizenship is usually an important issue in life, and therefore a situation, when Latvian citizenship is denied because of formal considerations and circumstances that have not been clarified in full, should not occur (see: Judgement of 21 August, 2007 by the Constitutional Court to discontinue the proceedings in the case No. 2007-07-01,para 19). Thus, for example, administrative courts, examining concrete cases, verify, whether persons have not been intentionally mislead or because of some other reasons have not made mistakes in filling out the form of primary registration regarding the registration for citizenship before the term defined by the contested provisions (see: case materials, Vol. 6, pp. 63 -97).

15.2.2. The assessment of the contested provisions in relation with other provisions of the Citizenship Law, it can be concluded that they can be recognised as lex specialis with regard to Section 2 of the Citizenship Law.

The respective Section provides that a citizen of Latvia is anyone, who has been its citizen on 17 June 1940, as well as descendants of these persons, who have registered in accordance with the procedure set out by the law. Those persons, who have obtained the citizenship of another state after 4 May 1990, are an exception. Thus, both all those persons, who were Latvian citizens on 17 June 1940, and the descendants of such persons, are recognised as Latvian citizens without time limitations. Even though the Applicant does not contest the requirement to register per se, it is important to establish the significance of the fact of registration in the context of restoration of citizen’s rights.

The Constitutional Court already indicated that during the period of occupation it was impossible to apply those legal acts, which regulated the issues of registering Latvian citizens, and the identification of the body of citizens initially was entrusted to the Supreme Soviet.

Considering the situation that had evolved historically with regard to the issue of citizens’ registration, it would be reasonable to assume that in the process of restoring the citizen’s rights the person himself has a certain duty to participate. A situation, when a person would be automatically, perforce registered in the Population Register, would be inadmissible. Thus, in this case registration was an act “awakening” the citizens’ rights.

In the context of identifying the body of citizens, a person’s registration at a consular institution should be distinguished from registration in the Population Register, because the Consular Register and the Population Register have different legal status and different purposes of activities. During the period of occupation the basic function of the Consular Register was to provide valid travel documents to Latvian citizens and to maintain the idea of the Latvian State. Moreover, many Latvian citizens had no access to Latvian missions. The aim of the Population Register, in its turn, is to develop a unified and universally accessible system for recording inhabitants. Its main task is to ensure the recording of Latvian inhabitants, by including and updating information about them in accordance with the procedure set out by the law.

Persons’ voluntary registration with Latvian consular services in foreign countries with the aim of extending the validity of Latvian travelling passport cannot be equalled with the registration, which had to be performed with OCMA in accordance with the procedure set out by legal provisions. This was the procedure, which the legislator had set out to identify the body of citizens, and thus the expressed argument that a person enjoys in full all the citizen’s rights also without registering in the Population Register, is inconsistent with the legislator’s will.

Also the Administrative District Court and Administrative Regional Court in applying the contested provisions has recognised as ungrounded the Applicant’s argument that the registration at Latvian consular services abroad with the aim to extend the validity of the travelling passport can be equalled with the registration, which at that time was carried out by Latvian embassies abroad and by OCMA in Latvia as invalid (see: case materials, Vol. 2, pp. 27 and 151).

Registration cannot be viewed as a simple technical, administrative procedure, when the population register of a state is renewed after a 50 years’ long unlawful occupation. The legislator also had to take into consideration this actually very complicated situation. The documents of the case indicate that Latvian travelling passports were not always considered as completely valid personal identity documents. “In many of these passports the nationality column has not been filled out because the person at present cannot claim Latvian citizenship [...] the travelling passports of the Republic of Latvia issued in the post-war period cannot be regarded as documents directly proving the RL citizenship” (16 October 1992 letter of the Senior Expert of the Consular Department of the Ministry of Foreign Affairs to the Director of the Department of Citizenship and Migration, case materials, Vol. 6, pp. 160 -161).

Registration per se neither grants nor deprives a person of Latvian citizenship. Any person, who was a Latvian citizen in the pre-occupation period, independently of the place of residence, is considered to be a citizen of Latvia in conformity with the continuity doctrine and Section 2 of the Citizenship Law. However, the legislator had no right to recognise these persons arbitrarily and unilaterally as the citizens of the state, ignoring their legal relationships with other states. The manifestation of a personal will is essential in the case of restoring the citizen’s rights.

During the occupation and especially at the beginning of the 1990s the issuing of Latvian travelling passports was encumbered by legal uncertainty. For example, the materials of the Case allow concluding that the travelling passports were issued not only to persons, who had emigrated from Latvia, but also to permanent residents of Latvia, who, being in foreign countries, had lost the travel documents of the former U.S.S.R. or quire simply had expressed a wish to acquire such a passport. Moreover, it was not always possible to verify, whether the respective persons were indeed Latvian citizens or when they had entered Latvia for permanent residence. Even as late as in 1992 Latvian travelling passports were issued also to such persons, who could not claim Latvian citizenship (see: case materials, Vol. 6, p. 160).

Even though the general interest in registration was large, also such persons, who – on the contrary – wanted to renounce Latvian citizenship in order to acquire the citizenship of another state or to receive a confirmation that they were not Latvian citizens – approached Latvian embassies. Since the procedure of renouncing was not fully regulated, the persons, renouncing their citizenship, wanted to keep their travelling passports (see: case materials, Vol. 6, p. 179-180).

Thus, the introduction of the registration measure with the aim to reinstitute the rights of Latvian citizens was substantiated.

No citizen of Latvia, who received citizenship by birth, has been deprived of the right to register as the citizen of Latvia indefinitely. Thus, the Applicant’s argument about the infringement of the doctrine of state continuity is ungrounded.

16. The Applicant has noted that citizenship must be viewed as one of human rights and that the contested provisions are inconsistent with the principles of proportionality and legal certainty following from Article 1 of the Satversme.

16.1. The case law of the Constitutional Court recognises that from the concept of democratic republic included in Article 1 of the Satversme the obligation of the state to abide by a series of fundamental principles of a judicial state follows, including the principles of proportionality and legal certainty [see: Judgement of 10 June 1998 in the case No. 04-03(98), the Concluding Part and Judgement of 24 March 2000 in the Case No. un 2000. 04-07(9, para 3 of the Concluding Part).

Article 1 of the Satversme does not prohibit the legislator to introduce amendments to the existing legal regulation (see: Judgement of 16 December 2005 by the Constitutional Court in the case No. 2005-12-0103, para 24). However, when amending the legal regulation, the legislator has no right to infringe the fundamental rights of a person and in this concrete case – also the principle of citizenship continuity.

In assessing the conformity of a certain legal provision with the legal principles that follow from the constitutional fundamental values of the state defined in Article 1 of the Satversme, the fact that these principles may manifest themselves differently in different fields of law must be taken in consideration. Also the nature of the contested provision, its link with other constitutional provisions and place in the legal system necessarily influences the control realised by the Constitutional Court. The legislator’s discretion in regulating a concrete issue can be broader or narrower, and the Constitutional Court must asses, whether the scope of discretion exercised by the Saeima confirms with the one defined in the Satversme (see: Judgement of 8 November 2006 by the Constitutional Court in the case No. 2006-04-01, para 15.2. and 15.3.).

In the field of regulating citizenship the state has a wide discretion (see: Judgement of 21 August, 2007 by the Constitutional Court to discontinue the proceedings in the case No. 2007-07-01,para 8). However, this discretion cannot be declared unlimited. In the framework of the continuity doctrine the legislator has the obligation to ensure that no person, who retained Latvian citizenship during the time of occupation, would be excluded from the body of citizens, and also that the requirements set for the reinstitution of citizenship were proportional.

Thus, the Constitutional Court must assess, whether the certainty that persons’ developed with regard to the possibility of retaining dual citizenship due to the Decision of 27 November 1991 exceeded the legislator’s discretion in regulating citizenship. It means that the Constitutional Court has to verify, whether the contested provisions do not violate a person’s right to the citizenship of a concrete state.

16.2. The Application indicates that citizenship or a person’s link with the state is one of the human rights, since it is included in Article 15 of the Human Rights Declaration and consequently in Article 89 of the Satversme. The setting of such a term, after the expiry of which a person, by registering as a Latvian citizen has to renounce the citizenship of another state, is said to be equal to deprivation of citizenship or even deprivation of citizenship en mass or for a group of persons, which can be identified by a specific feature.

The Constitutional Court notes that the Human Rights Declaration is an authoritative source of human rights and that the content of its provisions has improved in time and has served as the basis for the development of the principles and customs of international law. However, in order to establish precisely the scope of Article 15 of the Human Rights Declaration, which is binding to the state in accordance with Article 89 of the Satversme, an additional assessment is needed.

Article 15 of the Human Rights Declaration provides that everyone has a right to citizenship. However, it does grant to a person a right to the citizenship of a concrete state. Even though the content of the Article has changed over time and the development of international law has influenced the discretion of states with regard to citizenship issues, its content is still limited.

Doctrine indicates that citizenship is not a natural or inalienable right, because it essentially follows from the existence of a sovereign state (see: Lauterpacht H., International Law and Human Rights, Archon Books, 1968, pp. 346 – 350).

            At present Article 15 of the Human Rights Declaration contains three main elements: the right to citizenship or avoidance of statelessness; the prohibition to deprive arbitrarily of citizenship (including deprivation en masse ) and a person’s rights to change his citizenship. Deprivation of citizenship because of political or other discriminatory considerations is considered to be arbitrary deprivation of citizenship [see: Ziemele I., Schram G. G., Article 15, Alfredsson G., Eide A. (eds.), The Universal Declaration of Human Rights. A Common Standard of Achievement, Martinus Nijhoff Publishers, 1999, pp. 297 – 324, at p. 303]. Also such deprivation of citizenship, which results in statelessness, is considered to be arbitrary (see: Chan M.M.J., The rights to a nationality as a human right/The current trend towards recognition, HRLJ, 28 February 1991, Vol.12, No. 1 – 2, p. 3). The prohibition of discrimination cannot be construed widely, for example, the language proficiency requirement is not considered discriminatory. In addition to this, consensus in two following fields can be traced: in the gender equality, which means the decreasing of statelessness in cases of marriage; and more pronouncedly – the obligation of a state to grant citizenship to every child, who has been born in its territory and otherwise would become a stateless person (see: Chan M.M.J., p.13).

16.3. The Constitutional Court has no grounds to conclude that the persons, to whom the contested provisions apply, would belong to any of the categories mentioned above and consequently would fall within the scope of Article 15 of the Human Rights Declaration.

The Decision of 15 October 1991 shows that the obligation to register was equally applied not only to persons living abroad, but also to those persons, whose place of residence was the territory of Latvia. A term was set at the very beginning also for the registration of Latvia’s inhabitants. In this way persons after fulfilling the obligation to register defined by legal acts could enjoy the citizen’s rights and fulfil the citizen’s duties. Moreover, de facto restoration of state independence could be implemented only with the identification of the body of citizens.

Also exile Latvians, in order to participate in the Saeima elections, had to register and acquire a personal identity number. The materials of the case show that the registration of Latvians living abroad was performed by embassies. If a person wanted to receive a personal identity number and a citizen’s passport of the Republic of Latvia, he had to fill out the registration form. After that, when a personal identity number had been already granted to the person, the respective embassy issued to him a document “Certification of the citizenship of the Republic of Latvia” (see: case materials, Vol. 6, p.170). This document was the grounds allowing a citizen to participate in the 5th Saeima elections. It also follows from the information provided by CEC that the documents, which gave the right to participate in the elections of the 5th Saeima were the Latvian passport, the U.S.S.R. passport with a Latvian citizen’s registration mark or a registration form issued by Citizenship and migration Department of the Republic of Latvia to Latvian citizens residing abroad. Other documents were not acceptable (see: case materials, Vol. 6, p.117). Thus, the statement that persons in foreign countries had been in some way pushed aside or excluded from the implementation of the sovereign power of the nation cannot be recognised as substantiated.

Every person, who in the period from 1991 to 1993 had received a personal identity number, could participate in the elections of the Saeima. Mass media disseminated calls to take part in the elections, placing a special emphasis upon the citizenship issue, the solution of which was equally expected both by those, who were in exile, and by those, who lived in Latvia and had supported Latvia’s independence (see: Amerikas latviešu apvienības paziņojumu sakarā ar 5. Saeimas vēlēšanām,[The Announcement the American Latvian Association in connection with the 5th Saeima Elections] Diena, 1993. gada 4. jūnijs, Nr. 111, 2. lpp.).

The Case materials include information both on the registration of Latvian citizens and issuing of passports (see: case materials, Vol. 6, pp. 157-169). In accordance with Paragraph 2 of the Instruction of 11 June 1993 “The Issuing of the Citizens’ Passports of the Republic of Latvia at the Diplomatic Missions and Consular Institutions of the Republic of Latvia Abroad” a citizen of Latvia, who wished to receive the passport, had to be registered in the Population Register. It was no longer possible to extend the validity of the travelling passports of the Republic of Latvia, because these were declared invalid starting with 1 January 1994 (see: case materials, Vol. 6, pp. 176 and 177).

The Ministry of Foreign Affairs, in its turn, in 1992 and 1993 forwarded to embassies information about the Decision No. 216 of June 1992, which approved the regulations on the passports of the citizens of the Republic of Latvia. The passport forms were sent to all embassies of Latvia, so that citizens’ passports could be issued to Latvian citizens in their countries of residence (see: case materials, Vol. 6, pp. 156 and 163).

Thus, it can be concluded that every person, who met the requirements defined in the Decision of 15 October 1991 and the Decision of 27 November 1991, was given the opportunity to register as a citizen of Latvia and to reinstate his citizen’s rights.

16.4. On March 1993 the Supreme Soviet adopted the decision “On “The Provisional Regulations on the Procedure according to which the Citizens of the Republic of Latvia, who Leave the Citizenship of the Republic of Latvia, Lose the Citizenship of the Republic of Latvia””. This decision approved the procedure, according to which the citizens of the Republic of Latvia, who leave Latvian citizenship, lose the citizenship of the Republic of Latvia. Paragraph 3 of the Provisional Regulations envisaged that the Presidium of the Supreme Soviet had no right to deny to a citizen of the Republic of Latvia the right to leave the citizenship, except for cases, when a citizen expressing such a wish has not fulfilled the obligations towards the state defined in legislation, is put to criminal trial or a court judgement has come into legal force and has to be enforced with regard to this citizen. Paragraph 4 of the Regulations, in its turn, envisaged that the applications concerning the citizens of the Republic of Latvia leaving the citizenship should be submitted to the Department of Citizenship and Migration. The citizens of the Republic of Latvia residing abroad could submit the application on leaving the citizenship to the diplomatic missions or consular institutions of the Republic of Latvia, which, in their turn, would forward it to the Department of Citizenship and Migration.

The Provisional Regulations mentioned above allow concluding that the issue of losing citizenship, when a person left Latvian citizenship, was solved on an individual, not collective basis. Thus, a concrete group of persons was not deprived of citizenship.

The Constitutional Court has no grounds to conclude that persons were deprived of citizenship, – especially in view of the previous conclusions about the rights unlimited in time to exercise one’s rights defined in Section 2 of the Citizenship Law. Moreover, the subjects of the contested provisions were not excluded from citizenship en masse. A special legal regulation was established with regard to them for retaining dual citizenship till a concrete date, while with regard to other citizens of the Republic of Latvia, who had acquired the citizenship of another state by way of naturalisation, dual citizenship was not permitted at all.

Consequently the contested provisions do not fall within the scope of Article 15 of the Human Rights Declaration, since their subjects are not stateless persons and they have not been arbitrarily deprived of citizenship, leading to a situation of statelessness.

16.5. In assessing, whether persons could develop certainty with regard to dual citizenship in the framework of the doctrine of state continuity, the evolvement of the dual citizenship institution and the practice of the countries in reinstating citizens’ rights must be considered.

Internationally dual citizenship like statelessness for a long time was regarded undesirable and its prohibition was accepted as a general practice. International treaties were concluded already since the beginning of the 20th century to fight against dual citizenship. Thus, for example, on 12 April 1930 the Hague Convention on Certain Questions Relating to the Conflicts of Nationality Laws was concluded. Its Preamble declared: the states parties to the convention are convinced that every person should be a citizen of only one state and recognise that the ideal to be attained is the elimination of not only statelessness, but also of dual citizenship (see: Convention on Certain Questions Relating to the Conflicts of Nationality Laws, The Hague, 12 April 1930, http://www.legislationline.org/legislation.php?tid=11&lid=5572, accessed on 22 April, 2010).

Dual citizenship was considered undesirable from the perspective of the legal policy [see: Institut de Droit International, Art. 5 of the Résolutions relatives aux conflits de lois en matiére de nationalité (naturalisation et expatriation), adopted in Venice (1896)]. Various agreements were concluded also in later years to regulate problems connected with dual citizenship. For example, the Council of Europe on 16 May, 1963 adopted the Convention on reduction of cases of multiple nationality and military obligations in cases of multiple nationality. Already in the 1970s it was concluded that the number of dual citizenship cases continued to grow for various reasons and that the states were unable to prevent these causes (see: Horváth E., Mandating Identity. Citizenship, Kinship Laws and Plural Nationality in the European Union, Kluwer: European Monographs 56, 2008, p. 219). For quite a long time the general attitude of the states and the doctrine of law towards dual citizenship remained negative (see: Weis P., Nationality and Statelessness in International Law, Sijthoff&Noordhoff,1979, p.199; Verzijl J.H.W., International Law in Historical Perspective, Part V, Sijthoff-Leiden, 1972, p. 48). Changes in the respective approaches have become apparent only recently, but the discretion of states is quite large.

Thus, a person has no subjective right to dual citizenship, but the Constitutional Court has to establish, whether such a right can arise, when the state reinstates citizens’ rights. Other international practice examples allow concluding that the de facto reinstitution of citizenship, the right of the state to regulate the terms for restoring this status and persons’ rights to renew this status are balance (see: Verzijl J.H.W., p. 45). In such cases a free choice is offered – to renew or to reject the possibility to regain the citizen rights, not renewing dual citizenship. The expression of a person’s will is significant, and it overrules the will of the legislator.

The doctrine indicates that the state has no right to impose with retroaction its citizenship upon its former citizens. An expression of a person’s will is necessary. Moreover, there is no difference between the state’s attempt to impose its citizenship on persons, who reside abroad and once were its citizens, and the attempt to grant its citizenship to persons, who reside abroad and have never been its citizens (see: Donner R., The Regulation of nationality in international law, 2nd ed., Transnational Publishers Inc., 1994, pp. 169 – 170).

The comparison with the practice of such states as Estonia and Lithuania, which regained their independence similarly to Latvia and have also strictly adhered to the continuity doctrine also leads to the conclusion that the issue of the permissibility of dual citizenship with regard to those persons, who had to leave the state during occupation, can be regulated in various ways (see: EUDO citizenship observatory. Country report: Lithuania. Kūris E., 2009, p. 2, http://eudo-citizenship.eu/docs/CountryReports/Lithuania.pdf, accessed on 26 April, 2010).

First of all it must be noted that dual citizenship in all three Baltic States prior to their occupation was prohibited, and when their independence was restored, this issue was extensively discussed. Likewise, the significance of exile in restoring independence and strengthening of continuity was emphasised in all Baltic States (see: Järve P. Estonian citizenship: Between ethnic preferences and democratic obligations. Citizenship Policies in the New Europe. – Amsterdam : Amsterdam University Press, 2007. – pp. 47, 48, 53; Kūris E., p.3).

However, the practice of the Baltic States with regard to the permissibility of dual citizenship differs even on constitutional level. Thus, for example, the third part of Article 8 of Estonian Constitution envisages that no one can be deprived of Estonian citizenship, which has been acquired by birth. Abiding by this constitutional principle and on the basis of the Resolution of the Supreme Soviet of the Republic of Estonia of 26 February 1992 the legal basis for dual citizenship was created. The second part of Article 1 of Estonian Citizenship Law provides that a citizen of Estonia cannot be a citizen of another state, but Article 22, 28 and 29 provide that a person, immediately upon accepting a citizenship of another state, ceases to be an Estonian citizen. It is also admitted that the respective provisions thus far have not been applied and that divergent opinions have been expressed as to their interpretation and application, including by the highest state officials (see: B. Āvikso’s opinion in case materials, Vol. 7, p. 29).

The third part of Article 12 of Lithuanian Constitution, in its turn, provides that except individual cases stipulated in the law, no one can be simultaneously the citizen of Lithuania and another state. The Citizenship Law of 1991 provided that the Lithuanian citizenship should be preserved for unlimited period of time for those who were Lithuanian citizens before 15 June 1940 and their descendants, but, when registering as Lithuanian citizens, they should renounce the citizenship of another state. Following the adoption of the Constitution Lithuanian Seims gradually expanded the circle of those persons, who had the right to retain dual citizenship when being in exile. The Constitutional Court of the Republic of Lithuania declared as incompatible the provisions, which allowed the formation of dual citizenship, since they no longer envisaged individual cases of granting dual citizenship. At present it is admitted that not all the issues pertaining to the citizenship of exile Lithuanians have been completely solved (see: Kūris E., p. 3). The current debates in Lithuania prove that it is possible to set out on the legislative level that the persons, who have acquired Lithuanian citizenship by birth, do not lose it upon acquiring a citizenship of another state.

Thus ,it can be concluded that a different legal regulation of citizenship, including also dual citizenship, exists in Lithuania and Estonia with regard to persons, who had to leave the country during occupation and acquired citizenship on the basis of jus sanguinis principle. The introduction of amendments in this field is seen as an issue falling within the legislator’s jurisdiction.

It follows both from the international acts and from the doctrine that the issue of dual citizenship is essentially a political one, not an issue to be solved on the basis of legal considerations (see: Para 96- 98 of the Explanatory Report to the European Convention on Nationality of 14 May 1997;; Kūris E., p. 4). In those cases when the court has the obligation to examine them, they should be examined, to the extent possible, without interfering with the jurisdiction of the legislator – who expresses the nation’s will.

The Constitutional Court concludes that also at present international law does not envisage a person’s right to dual citizenship and that the state has the right to define the procedure of registration in those cases, when persons renew their citizens’ rights.

16.6. Finally, the Constitutional Court has to assess the proportionality of the term of registration chosen by the legislator, considering the legislator’s discretion and the subjective interests of a person in retaining dual citizenship.

The Application indicates that the term included in the contested provisions, within which persons had the right to register as Latvian citizens, at the same time retaining the citizenship of another state, is not proportional. The Application does not provide a substantiation of this statement. The explanations provided by the Saeima do not reveal the considerations either, why exactly this term – 1 July 1995 – was defined by the contested provisions.

In assessing, whether the transition to the new legal regulation was not implemented arbitrarily, the concrete nature of legal relationships should be considered, as well as whether the amendments to the legal regulation envisaged a lenient transition to the new legal regulation. In this case the contested provisions with the term defined by them envisaged a moment by which the persons, who could be recognised as the citizens of the Republic of Latvia, could register and could also retain the citizenship of another state.

First of all the Constitutional Court indicates that the term included in the contested provisions cannot be assessed in isolation from the Decision of 27 November 1991. I.e., already on the basis of this Decision persons had the right to register as citizens of Latvia, simultaneously retaining also the citizenship of another state acquired under the conditions of occupation. Looking from this perspective, the term, during which a person was given the opportunity to retain the citizenship acquired abroad, was approximately three and a half years. There are no grounds to consider that persons, who really wanted to renew Latvian citizenship, during all this period had no possibility to settle the registration envisaged by the Decision of 27 November 1991 and later by the Citizenship Law.

The Saeima, in adopting the Citizenship Law, decided to abide by the historical principle of the prohibition of dual citizenship. The contested provisions set out a special legal regime for those persons, who had been forced to leave Latvia and had acquired a citizenship of another state during occupation. Thus, the Saeima envisaged a mechanism for ensuring a just transition, to the extent possible, decreasing the adverse consequences caused by the occupation regime.

Also the principle of citizenship continuity cannot be understood in the way that it would deny the legislator the right to set a term, after the expiry of which a person, in order to reinstate the rights of Latvian citizen, would have to renounce the citizenship acquired in another state. Moreover, the regulation included in the contested provisions was the most favourable to a private person out of all proposals that were discussed while the Citizenship Law was prepared. Thus, the Constitutional Court finds no substantiated reasons, why the term set by the contested provisions – 1 July 1995 – should be declared as having been set arbitrarily or would with obvious disproportionality deny to persons the right to retain dual citizenship.

The setting of the term was connected with the legislator’s will to identify the body of Latvian citizens within a concrete period in order to ensure a sustainable development of the state and to regulate essential issues in the existence of the state. Thus, for example, the legislator had to implement the land and property reform, had to set up the civil service and the armed forces, had to create the taxation policy, an also renew international cooperation, inter alia, in visa issues.

An individual, being aware of the discretion that the Saeima had with regard to the citizenship issue, could not develop a certainty that the regulation included in the Decision of 15 October 1991 or the Decision of 27 November 1991 would remain unchanged. Neither the contested provisions, nor Section 2 of the Citizenship Law impose disproportional obligations upon persons, who want to register as Latvian citizens. For example, the requirements of the Repatriation Law were not applied to this group of persons. In the current situation the only requirement is to choose Latvian citizenship by registering with OCMA and renouncing the citizenship of another state.

The contested provisions are consistent with Article 1 of the Satversme, since the legislator has taken into consideration the legal certainty of persons in setting a proportional transitional period for retaining dual citizenship, as well as has envisaged possibilities to register to reinstate one’s rights of a citizen without time limitations.

17. The Saeima has several times examined the issue of the regulation of dual citizenship institution at least with regard to the persons affected by the contested provisions.

Thus, for example, on 1 December 2005 several members of the Saeima submitted a draft law “Amendments to the Citizenship Law” (Reg. No.1456). The respective draft law, which was rejected and was not transferred to committees, envisaged a number of amendments to the Citizenship Law, inter alia, including to Section 1 of the Transitional Provisions, expressing it in the following wording:

“Citizens of Latvia and their descendants who, during the period from 17 June 1940 to 4 May 1990, left Latvia as refugees, in order to escape the terror of the occupation regimes of the U.S.S.R. and Germany, were deported, or due to the aforesaid reasons have not been able to return to Latvia and have become naturalised during this time in a foreign state, retain their right to register in the Population Register as citizens of Latvia, and after registration shall, to the full extent, enjoy the rights of citizens and fulfil the obligations of citizens.”

An identical provision was included in the draft Citizenship Law, which was submitted to the Saeima on 1 June 2006 (Reg. No. 1752) and the draft Citizenship Law, which was submitted to the Saeima on 21 September 2006 (Reg. No. 1882). These draft laws were also rejected and were not submitted for reviewing in committees.

Thus, it is clear that the legislator did not want to amend the institute of dual citizenship to include a broader circle of persons, who would have the right to dual citizenship.

The Constitutional Court points out that the attitude of European states and especially of the EU member states towards dual citizenship has changed to a certain extent, however, the basic approach with regard to it has always been regulated by the legislator. Moreover, a legislator, deciding to allow dual citizenship, also defines with regard to which persons and which cases dual citizenship is admissible, taking into consideration the interests of the state, political situation and the citizenship policy (see: http://eudo-citizenship.eu/country-profiles, accessed on 26 April 2010. The Council of Europe Convention on Nationality leaves the decision on dual citizenship in the discretion of the state (see: The Preamble and para 6-9 of the Explanatory Report to the Convention).

            The Constitutional Court recognises that the adoption of the legal regulation on the citizenship issue has a political aspect, which indirectly defines the limits of the control realised by the Constitutional Court. Citizenship issues, both before the occupation of Latvia and after the restoration of independence have always been on the agenda of political debates. All essential issues relating to the citizenship institution, first and foremost, fall within the jurisdiction of the legislator. Also with regard to some issues of citizenship, with regard to which it was impossible to reach political consensus in the Saeima, both in 1927 and in 1998 referenda were held.

 

The Substantive Part

On the basis of Sections 30 – 32 of the Constitutional Court Law, the Constitutional Court

holds:

to declare the words of the first sentence of Paragraph 1 of the Transitional Provisions of the Citizenship Law “if registration occurs by 1 July 1995”and the second sentence compatible with Article 1 and 2 of the Satversme of the Republic of Latvia and the Preamble of the Declaration of the Supreme Soviet of the Latvian S.S.R. of 4 May 1990 “On the Restoration of the Independence of the Republic of Latvia”.

The Judgement is final and not subject to appeal.

The Judgement comes into force on the day of its publication.

The Presiding Judge                                                    G. Kūtris