Latvia: The State of Liberal Democracy
The I·CONnect-Clough Center 2017 Global Review of Constitutional Law
Report of Latvia – page 172
Alla Spale, Head of Legal Department, Constitutional Court of the Republic of Latvia; Laila Jurcēna, Adviser to the President of the Constitutional Court of the Republic of Latvia, and coordinated by Ineta Ziemele, Professor of Public International Law and Human Rights Law at the Riga Graduate School of Law, President of the Constitutional Court of the Republic of Latvia
I Introduction
There are two main avenues for the development of constitutional law in Latvia. First, the case law of the Constitutional Court [hereinafter also – CC, the Court]. Second, the legal scholarship.[1] At times there are important legislative developments which was not however the case in 2017.
The applications submitted to CC in 2017 point to legal issues of different level of complexity. A significant progress has been marked in the understanding of what a state governed by the rule of law should be like.
In 2017, the quality of legislative process gradually emerged as the key issue for the further development of a legal system. Not only a number of cases reviewed by CC in 2017 point to the relevance of the quality of legislative process,[2] but also other activities held in this year: discussions, conferences, the involvement of the President of the State in the legislative process by returning for re-examination laws adopted by the Saeima [the Parliament] (on six occasions in 2017).
The Constitutional Court is characterised by regular changes in its composition. Predictable and gradual replacement of the Justices of CC is essential for ensuring effective functioning of the Court. In 2017, the composition of CC was partially changed (two out of seven Justices), and the new leadership of the Court was elected – since 8 May 2017 CC is headed by the President, Prof., Ph.D. Ineta Ziemele, whereas Prof., Dr. iur. Sanita Osipova became the Vice-president of the Court.
II Liberal Democracy on the Rise or Decline?
In a democratic state, the level (degree) of liberalism is demonstrated by the regulatory enactments that are drafted and adopted and by the understanding of application thereof, compliance with legal principles, activities by constitutional institutions that exercise state power, relationships between them and the possibility for a person to exercise one’s rights.
In a state governed by the rule of law, all these processes proceed within the limits set in the Constitution and are subject to judicial review.
Hence, the content of liberal democracy is defined by the Constitution and it is revealed in political decisions and legal regulation. The extent, to which democracy is liberal in real life, in turn, is reflected in the case law of the CC, since CC, as the body that ensures supremacy of the constitution, by legal means within the limits of its jurisdiction deals with both issues of law and politics, thus becoming an important tool of democratisation in the state.
The report outlines the possible and the current state of the liberal democracy in Latvia, i.e., the extent to which the State intervenes in an individual’s liberties and the limits of the State’s discretion in this regard.
In such liberal democracy the values of liberalism – freedom, tolerance, privacy, constitutionalism and the rule of law – are ensured within the institutional framework existing in a democratic state governed by the rule of law[4].
Democracy provides the best conditions for the effective exercise of human rights and freedoms.[5] The close connection of liberal democracy to fundamental rights means that the state instead of restricting fundamental rights should “wherever possible, should guarantee them in the most extensive scope, accordingly using the available methods of interpretation in such a way as to ensure sufficiently broad application of the content of a legal norm”.[6]
CC has defined in some areas a higher level of human rights protections in the Satversme [the Constitution of the Republic of Latvia] compared to international documents, inter alia, the European Convention for the Protection of Human Rights and Fundamental Freedoms. For example, the guarantees in the Satversme with respect to the right to a fair trial are broader and more favourable to a private person than the guarantees of the Convention.[7] CC has found that the right to a healthy environment, similarly to other fundamental rights included in Chapter 8 of the Satversme, must be applied directly and immediately[8]. The principle of equality, included in a norm of the Satversme, is assessed as a right that functions directly.[9]
In cases in 2003 and 2005,[10] it was recognised that related person could be denied the right to access the court with regards to access to state secret. Whereas in 2017[11] it was found that the social reality and the context of legal relationships had changed and that a general prohibition of an independent review regarding matters pertaining to official secrets no longer complied with the procedural justice protected by the first sentence of Article 92 of the Satversme.
In the judgment regarding the obligation to fly the national flag on residential buildings, the Court examined the scope of negative freedom of expression, in particular the obligation of a State to refrain from an arbitrary interference with this freedom. In this case, the Court noted that a flag as the symbol of the state was an integral element of the constitutional and international identity of the State of Latvia and that flying the flag on residential buildings owned by natural persons facilitated the protection of the democratic state order. The Court recognised that the obligation to fly the national flag on residential buildings consolidated this notion and, thus, also the democratic Republic of Latvia, where fundamental rights could be effectively exercised; however, envisaging penalty to ensure that obligation of a civic nature was complied with should be recognised as proportionate only in exceptional cases. Sanctioning a person for holding an opinion was impermissible in a democratic society. The Court noted that in a democratic state preconditions should be created for a voluntary performance of civic obligations that is not based on a fear of punishment. If the existing legal order in the state ensures that an individual is not punished for expressing one’s opinion or for refraining to do so in a legal way, then the optimum legal environment for an individual’s self-expression is ensured.[12]
Over the years of constitutional development two principles have emerged that can be seen as outer limit of liberalism. First, the CC recognised that Latvia may need to resort to the notion of self-defensive democracy. Secondly, both the doctrine and the CC developed a concept of constitutional identity. This is why all elements that characterise liberalism must be examined in the framework of, first, a self-defensive democracy and, secondly, the principle of constitutional identity.
In view of the fact that full democracy is impossible outside a state, the existence of the state itself is one of the values in a democratic state. If the society has accepted the principle of liberal democracy then it cannot abolish it in a democratic way, i.e., through the means provided by liberal democracy. The liberal democracy is a self-defensive democracy, and it has the obligation to ensure, by all legal means, its own existence and prevent threats to its existence. Hence, the scope of liberal values is, first of all, influenced by the requirements of a self-defensive democracy.
Article 116 of the Satversme defines the clause on restricting fundamental rights envisaging protection of the democratic state order as one of the legitimate aims of restricting a person’s rights. In this framework, the CC has examined the restrictions of human rights set in a law for supporters and representatives of the totalitarian regime to act in democratic institutions[13], to be in the civil service[14], as well as the restrictions on election rights of the persons who have actively attempted to undermine the democratic state order.[15]
CC in its case law has adhered to the finding that the exercise of human rights may not be turned against the democracy as such.[16] In one of its most recent judgements, in which loyalty to the Republic of Latvia and its Satversme was examined, CC noted: “[a]lthough since the restoration of independence, democratic values and civil society have been consolidated in Latvia, the State, in view of the historical experience, must continue providing special care to protect the values of democracy and enshrine these in the field of education”.[17]
The second essential element, which influences the scope of liberal values, is the constitutional identity. Latvia’s constitutional identity is founded on the basic norm and the principles derived from it are included in the Satversme.
In the Latvian legal science, serious discussions about the concept of “constitutional identity” were initiated by the Constitutional Law Commission convened by the President of Latvia, which in 2012 elaborated the opinion “On the Constitutional Foundations and Inviolable Core of the State of Latvia”.[18]
Although many elements of the constitutional identity already have been enshrined in the Satversme since its adoption and others were introduced later (for example, Latvian as the only official language was defined in Article 4 of the Satversme in 1998), amendments to the Satversme of 2014, adding to it an elaborated text of the Preamble, are to be considered as contribution to clarifying the important constitutional identity. The text includes the turning points in the history of the Latvian nation, as well as most important constitutional values.
Before the Preamble to the Satversme was adopted, CC had been searching the constitutional values and principles in the norms of fundamental rights and Article 1 of the Satversme: “Latvia is an independent democratic republic.”
Thus far, the CC has not yet defined a clear concept of the constitutional identity but, by analysing various elements of the constitutional identity, has started applying the amended Preamble to the Satversme.
CC has defined elements of the constitutional identity. I.e., the State of Latvia is based on such fundamental values that comprise the fundamental rights and freedoms, democracy, the sovereignty of the state and the people, separation of powers and the rule of law.[19] CC examines liberal values and reviews restrictions on human rights within this framework defined by the constitutional identity.
The openness to international law, including international human rights standards must also be examined in view of the constitutional identity.
At the same time, this first principle has certain limits because openness may not undermine Latvia’s constitutional identity. An example of such a core constitutional value is the Latvian language as the only official language. CC has noted expressis verbis that “the Latvian language as the official language is an integral part of the constitutional identity of the State of Latvia”.[20]
The official language is an element of the constitutional identity that has been most often examined in the case law of CC, thus, protection of the Latvian language as a constitutional value is part of the concept of self-defensive democracy and it has influenced examination of the proportionality of the restrictions on various human rights: the inviolability of private life[21], equal treatment[22], the right of minorities to safeguard and develop their language, ethnic and cultural specificity[23], the right to the freedom of speech[24]. These belong to the content of liberal democracy.
CC has pointed out that the State is required to perform positive obligations and to intensify protection of the official language use.[25] The principle of the nation-state now part of amended Preamble not only imposes a negative obligation on the State to refrain from doing anything that could weaken the identity of Latvia but also, and, in particular, positive obligations to strengthen it in all possible ways. The State has the obligation to use all measures to ensure that the Latvian language would, indeed, fulfil its functions of the official language – the common language of communication for the society and the language of democratic participation.[26]
The CC has introduced a strict test with respect to absolute restrictions on human rights. This step can be considered as liberal in terms of protection of human rights.
CC recognised already in 2006[27] that inflexible restrictions on fundamental rights established in legal norms as absolute prohibitions could seldom be recognised as the most lenient measure since it was difficult for the party applying the legal norm to apply the respective norm in a reasonable way in the particular circumstances. In 2017, in turn, CC in a case, in which an absolute prohibition to work as a teacher to any person who had been punished for deliberately committing a serious or a particularly serious crime was examined, this prohibition of human right was recognised as being disproportionate and was found[28] that the legislator, in establishing an absolute prohibition, had the obligation to examine and to substantiate that the absolute prohibition was the only possible way for reaching the legitimate aim of the restriction on fundamental rights established in a legal norm.
The development of CC’s case law has been similar also with respect to issues of the right to a fair trial in cases related to the official secrets (see above).
III. Major Constitutional Developments
An overview of the whole case law of CC in 2017 can be found in the Report on CC’s work in 2017,[29] which, to a certain extent, can be considered as being “the barometer of the rule of law” in the state. In this report only some issues are examined.
Article 267 of the Treaty on the Functioning of the European Union envisages a dialogue between the Court of Justice of the European Union and the national courts within the framework of the procedure of preliminary ruling. In 2017, CC for the first time became involved in this formal dialogue by forwarding a question to the Court in Luxembourg. Whereas Protocol 16 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, which, regretfully, has not been ratified in Latvia yet, envisages a new mechanism of formal dialogue within the system of protection of human rights included in the Convention – the possibility for the national supreme courts to request an advisory opinion from the European Court of Human Rights. Currently the dialogue between CC and ECHR proceeds informally – as discussions within the frameworks of particular cases. A brief insight into the dialogue between CC and ECHR with respect to restrictions on voting rights is provided in the next section of the report.
In 2017, CC has dealt with issues pertaining to relationships between the constitutional institutions. CC reviewed already the fifth case before CC[30], in which the system of judges’ remuneration and the principles of its functioning were examined. In this case, CC consistently applied Article 83 of the Satversme, which provides: “Judges shall be independent and subject only to the law”, to define those principles that the judges’ remuneration system should comply with. In addition to that, the content of the principle of separation of power was explained, as well as the need for a proper dialogue between the constitutional institutions. It is important that the application in this case was submitted by the Council for the Judiciary, which exercised this right for the first time.
CC has often examined the issues of the state budget in conjunction with regulation on taxes because taxes predominantly fulfil a fiscal function, ensuring revenue of the state budget and the budgets of local governments.
CC has examined compliance of regulation on various taxes with the Satversme: establishing the obligation to pay a new tax,[31] as well as revoking previously established tax exemptions.[32]
CC has noted in its rulings that establishment of taxes is an exclusive competence of the legislator.[33] The Saeima, in defining and implementing its tax policy, enjoys broad discretion. It comprises the right to choose tax rates and categories of persons to whom these apply, as well as to define the details of the respective regulations. However, tax regulations should be substantiated by objective and reasonable considerations.[34]
It has been recognised in the case law of CC that the obligation to pay a tax always means restrictions on the property right and could be linked also to other restrictions established by law, which should be proportionate to the legitimate aim – protecting values of constitutional importance.[35] Thus, CC predominantly examined, whether the tax payment was not an incommensurate burden for the addressee and whether the legal regulation on taxes complied with the general legal principles.[36]
In 2017, CC in two cases[37] examined compliance of the tax regulation with the Satversme, i.e., the constitutionality of the solidarity tax (a special income tax for high income persons). The judgment in case No. 2016-14-01 comprises new approach in relation to the legislator’s constitutional obligation in the field of tax policy. CC, in defining the principles that the legislator must comply with in the field of tax policy, has underscored the importance of the concept of sustainable economy in a democratic state governed by the rule of law. CC has clearly defined that, in the field of tax law, the legislator must abide by the principles of effectiveness, justice, solidarity, and timeliness. The State’s obligation to implement fair, solidarity based, effective and timely taxation policy to ensure public welfare follows from the principle of a socially responsible state.
Also, the content of the solidarity principle is specified for the first time in this judgement. This judgment can be considered as being a turning point in CC’s case law in the field of tax law, since a tax rate was found to be incompatible with legal norms of higher legal force for the first time.
IV Looking Ahead to 2018
CC will have to examine, whether restrictions on passive election rights for the supporters and representatives of the totalitarian regime established in a law comply with the Satversme.[38] In fact, this case will continue the dialogue of ECHR and CC regarding proportionality of the restriction on passive election rights defined in the Saeima Election Law.
CC examined this restriction for the first time in 2000,[39] recognising this norm as being compatible with the Satversme and the Convention, substantiating this by the need to protect the democratic order, at the same time pointing out to the legislator that a term for such a restriction should be set. The European Court of Human Rights[40], however, decided that the Convention had been violated. ECHR did not discern a threat to the State of Latvia, its national security or the democratic state order. The Grand Chamber of ECHR, in turn, analysing, inter alia, CC’s judgement, decided[41] that the Convention had not been violated. CC repeatedly reviewed this norm in 2006[42] and again recognised this norm as being compatible with the Satversme and the Convention and underscored the need to review its necessity within as short term as possible.
In 2018, the Saeima must implement CC’s judgment in the case regarding judges’ remuneration by developing a new system of judges’ remuneration that would ensure a system of checks and balances between the branches of power and the principle of judges’ independence.
[1] The following should be mentioned as the most important contribution: Commentaries on Chapter III (The President of the State) and Chapter IV (The Cabinet of Ministers) of the Satversme: Ringolds Balodis (red), “Latvijas Republikas Satversmes komentāri. III nodaļa. Valsts prezidents. IV nodaļa. Ministru kabinets” (Rīga: Latvijas Vēstnesis 2017); monograph “Nepārtrauktības doktrīna Latvijas vēstures kontekstā” (Rīga: LZA Baltijas stratēģisko pētījumu centrs 2017), which is an edition jointly created by several historians, lawyers and political scientists, focusing on the state continuity as the legal basis for restoring Latvia. By using an interdisciplinary approach, the researchers have analysed facts and advanced arguments that provide detailed substantiation of the legal continuity of the State of Latvia also during its occupation.
[2] For example, the seminar organized by the Commission for Legal Environment Improvement, established by the President, on the possibilities for improving the process of legislation (10.09.2016) <https://www.president.lv/storage/items/PDF/20160912_VestuleSaeimai.pdf> accessed 10 February 2018
[3] Sharun W. Mukand, Dani Rodrik, “The Political Economy of Liberal Democracy” (2017) <file:///C:/Users/WinUser/Documents/Global_Review_of_Constitutional_Law_2017/SSRN-id2973082_labs_2.pdf> accessed 10 February 2018
[4] Liberal democracy in the broader meaning is understood as a democratic order, where an individual’s inalienable rights, which are enshrined in the national constitution, are respected and, thus, determines the relationship between the power structures and an individual.
[5] CCRL 02.07.2015, 2015-01-01 [15.1]
Note: Unless indicated otherwise, all Judgements and Decisions referred to in the footnotes are by the Constitutional Court of the Republic of Latvia (CCRL). The full texts in English are available here <https://www.satv.tiesa.gov.lv/en/cases/>
[6] Ineta Ziemele, Cilvēktiesību īstenošana Latvijā: tiesa un administratīvais process (Rīga: Latvijas Universitātes Cilvēktiesību institūts 1998)
[7] Article 92 of the Satversme imposes upon the State the obligation to ensure the right to a fair trial in all cases, where the dispute concerns a person’s individual rights that follow from external legal norms and lawful interests, including relationships that follow from performance of public administration s functions, as well as constitutional matters. Article 92 of the Satversme envisages a broader scope of the right to appeal compared to the Convention. Article 92 of the Satversme does not limit the right to legal proceedings only to definite fields or branches of law. It pertains not only to “criminal cases” and “civil cases” but to any “rights and lawful interests” of a person.
[8] CCRL 08.02.2007, 2006-09-03 [11]
[9] CCRL 22.02.2002, 2001-06-03 [3]
[10] CCRL 23.04.2003, 2002-20-0103; 17.10.2005, 2005-07-01
[11] CCRL 10.02.2017, 2016-06-01
[12] CCRL 02.07.2015, 2015-01-01
[13] CCRL 22.03.2005, 2004-13-0106 [13.1]
[14] CCRL 11.04.2006, 2005-24-01
[15] CCRL 30.08.2000, 2000-03-01; 15.06.2006, 2005-13-0106
[16] Ibid.
[17] CCRL 21.12.2017, 2017-03-01 [19.2]
[18] Konstitucionālo tiesību komisija viedoklis, “Par Latvijas valsts konstitucionālajiem pamatiem un neaizskaramo Satversmes kodolu” (17 September, 2012) <http://www.president.lv/images/modules/items/PDF/17092012_Viedoklis_2.pdf> accessed 10 February 2018]
[19] CCRL 07.04.2009, 2008-35-01 [17]
[20] CCRL 17.11.2017, 2017-01-01 [16]
[21] CCRL 21.12.2001, 2001-04-0103
[22] CCRL 14.09.2005, 2005-02-0106
[23] CCRL 13.05.2005, 2004-18-0106
[24] CCRL 05.06.2003, 2003-02-0106
[25] CCRL 14.09.2005, 2005-02-0106 [15.3]
[26] CCRL 17.11.2017, 2017-01-01 [16]
[27] CCRL 23.11.2006, 2006-03-0106
[28] CCRL 24.11.2017, 2017-07-01
[29] Annual Report 2017 is available here <https://www.satv.tiesa.gov.lv/en/2018/03/01/annual-report-2017/>
[30] CCRL 26.10.2017, 2016-31-01
[31] CCRL 03.07.2015, 2014-12-01
[32] CCRL 25.03.2015, 2014-11-0103; 13.12.2011, 2011-15-01
[33] CCRL 06.12.2010, 2010-25-01 [10]
[34] CCRL 20.05.2011, 2010-70-01 [9]
[35] CCRL 11.04.2007, 2006-28-01 [19.1]
[36] CCRL 08.06.2007, 2007-01-01 [24]
[37] CCRL 19.10.2017, 2016-14-01; 16.11.2017, 2016-16-01
[38] CCRL 2017-25-01
[39] CCRL 30.08.2000, 2000-03-01
[40] Ždanoka v Latvia App no 58278/00 (ECHR 17 June 2004)
[41] Ždanoka v Latvia App no 58278/00 (ECHR, 16 March 2006)
[42] CCRL 15.06.2006, 2005-13-0106