Judgement
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 Gunârs Kûtris, Justices Kaspars Balodis, Aija Branta, Juris Jelâgins,
Kristîne Krûma 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 191 and 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”.
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 “Turîba” Dr. iur.
Aivars Endziòð – 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. Endziòð 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.
Ainârs 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.
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: Diðlers
K. Ievads Latvijas valststiesîbu zinâtnç. Rîga: A. Gulbis, 1930, 77. –
78. lpp.[Diðlers 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 valdîbas rîkojumu
krâjums, 19. burtnîca, 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 valdîbas rîkojumu krâjums, 15. burtnîca,
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 valdîbas rîkojumu krâjums, 13. burtnîca,
1920. gada 22. decembris, 1. – 13. lpp.; 12. burtnîca,
1921. gada 30. jûnijs, 192. – 195. lpp. un
21. burtnîca, 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 vçsture. 1914 – 1920. Stokholma: Apgâds 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. Pavalstniecîbas jautâjums Latvijâ (1919. – 1940.). Latvijas
Vçsture, 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: Dçliòð E. Ar skatu
no Austrâlijas: Latvijas ârlietu dienests 4. maija Deklarâcijas
priekðvakarâ // 4. maijs. Rakstu, atmiòu un dokumentu krâjums par
Neatkarîbas deklarâciju. Rîga: Fonds Latvijas Vçsture, 2000, 50. lpp. [Dçliòð E. From Australian Perspective:
Latvian Foreign Service on the Eve of the 4th of May.] and
Lerhis A. Latvijas Republikas ârlietu
dienests. 1918 – 1941. Rîga: Latvijas vçstures institûta apgâds, 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 Kârlis Zariòð to represent Latvia’s interests
abroad. (see: Dunsdorfs E. Kârïa Ulmaòa dzîve. Ceïinieks. Politiíis.
Diktators. Moceklis. Rîga: Zinâtne, 1992, 366. – 369. lpp. [Dunsdorfs E.
The Life of Kârlis 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, atmiòu un dokumentu krâjums par Neatkarîbas
deklarâciju. Rîga: Fonds Latvijas Vçsture, 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 vçsture. 1920 – 1940. Ârpolitika.
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.Zariòð and his eventual successor in rights Alfrçds
Bîlmanis 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). Oïìerts 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.
Zariòð, 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 atzîðanu, neatkarîbas
atjaunoðanu un diplomâtiskajiem sakariem, 160. – 161. lpp. [Documents
concerning the International Recognition of the State of Latvia, Restoration of
Independence and International Relations.]; Pagâtne nâkotnç: 1940. gada notikumu izvçrtçjums. Þ. Ozoliòa.
(red.). Rîga: 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 ârzemju pasçm [The
Instruction under the Law on Travelling Passports of 28 May, 1936] // Valdîbas Vçstnesis, Nr. 132, 1936. gada
15. jûnijs, and 1936. gada 10. septembra Konsulârâ dienesta
instrukciju [The Consular Service Instruction of 10 September 1936]//
Valdîbas Vçstnesis, 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 Çriks Þilinksis, the
Secretary of the Office of the Embassy in London of April 6, 1979 to the Âdolfs Ðilde, 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. Zariòð, 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 latvieði // 4. maijs. Rakstu, atmiòu un
dokumentu krâjums par Neatkarîbas deklarâciju. Rîga: Fonds Latvijas Vçsture,
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. Vçsturiski politiskâ
situâcija laikâ, kad tapa 4.maija Deklarâcija (1990.g. marts – maijs)[Jundzis
T. The Historical Political Situation at the Time when the 4th of
May Declaration was Created]; Latvijas Republikas pilsoòu kongresa
1990. gada 1. maija rezolûcija „Par LPSR Augstâko padomi”//
4. maijs. Rakstu, atmiòu un dokumentu krâjums par Neatkarîbas deklarâciju.
Rîga: Fonds Latvijas Vçsture, 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 Âvikso, 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 tiesîbu vçsture (1914
– 2000). Rîga: Fonds Latvijas Vçsture, 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. Endziòð’ opinion in case
materials, Vol. 7,
p. 12. and Egils Levits’ letter
to Gunârs 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 atjaunoðanas koncepcijas attîstîba
(personiskas piezîmes) // [Levits E. The Development of the Concept of State
Restoration] 4. maijs. Rakstu, atmiòu un dokumentu krâjums par Neatkarîbas
deklarâciju. Rîga: Latvijas Universitâtes þurnâla „Latvijas Vçsture” 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
latvieðu apvienîbas paziòojumu sakarâ ar 5. Saeimas vçlçðanâm,[The Announcement
the American Latvian Association in connection with the 5th Saeima Elections]
Diena, 1993. gada 4. jûnijs, 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. Kûris 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; Kûris 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. Âvikso’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: Kûris 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;; Kûris 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. Kûtris