The principle of legal certainty within the Jurisdiction of the Republic of Latvia Constitutional Court
Aivars Endzins
President of the Constitutional Court of the Republic of Latvia
X Yerevan International conference
“The legal principles and political reality in exercise of constitutional court”
2005, October 5-7
Honourable ladies and gentlemen!
During the almost nine years of its activities the Republic of Latvia Constitutional Court has reached 80 judgments. Almost every fourth of them expressis verbis mentions the principle of legal certainty. The above figure testifies that the principle of legal certainty has played an important role in the jurisdiction of the Constitutional Court.
At the same time it should be stressed that “in the background” the principle of legal certainty is being enlarged upon in every Constitutional Court judgment, in which the Constitutional Court declares the impugned norm as unconformable with the legal norms of higher legal force. Namely, this principle is of conclusive importance when taking the decision on the moment of the legal norms losing their validity.
Thus the principle of legal certainty is a really important instrument in the activities of the Constitutional Court.
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I have addressed the listeners from this same platform, stating that the Republic of Latvia Constitutional Court has been the very first Latvian court, which has made use of general legal principles as the source for their judgments. Initially it caused failure to understand and even indignation of several Latvian lawyers; however, at the present moment nobody doubts that the general legal principle are significant legal sources.
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One has to admit that the essence of the principle of legal certainty has been gradually disclosed and interpreted by the Constitutional Court as much as it was necessary to substantiate the decision in any concrete matter. At the beginning it was done with circumspection, later – more extensively and profoundly.
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For the very first time the Constitutional Court interpreted the essence of the principle of legal certainty in its June 10, 1998 judgment[1]. The matter was dedicated to the right of the politically repressed persons of receiving compensations. It was declared that the impugned Regulations by the Cabinet of Ministers were unconformable with the law and Article 59 of the Republic of Latvia Satversme (Constitution).
The Constitutional Court stressed: “Any law-based state acknowledges the principle of trust in law. The principle determines that state institutions shall be consistent in their activities as regards normative acts passed by them, they shall take into account trust in law, which could arise on the basis of a specific normative act”.
The Constitutional Court concluded that “The politically repressed persons trusted the procedure established already in 1988 by which property was restituted or its value compensated. These persons planned their future, being aware of the rights, endowed by certain normative acts, the fundamental statements of which up to April 23, 1996 were as follows:
1) the application shall be submitted not later than 3 years after the Resolution to consider deportation as unfounded was adopted;
2) the application shall be reviewed even after that time, if the time limit has been exceeded because of justified reasons;
3) buildings and other property shall be restituted, but if it is not possible -their value shall be compensated in cash.
Because of Resolutions No.148 and 367, passed by the Cabinet of Ministers, part of the politically repressed persons were denied the right of retrieving illegally confiscated property or receiving compensation for it as anticipated by law. Thus, the principles of justice and legal certainty have been violated”.
Almost a year after that a new judgment followed the above one, in which the Constitutional Court had to protect the rights of the politically repressed persons, when reviewing the conformity of the Cabinet of Ministers Regulations with the legal norms of higher legal force.
The Constitutional Court stressed that the norms of the law shall be interpreted systemically, taking into consideration the fact that “Article 1 of the Satversme (Constitution) of the Republic of Latvia, determines, that Latvia is an independent, democratic Republic”. And the following general legal principles: the principle of a law-based state, the principle of justice and trust in law result from the Article. In compliance with the general legal principles, the politically repressed persons believed in stability of the Law “On the Determination of the Status of Politically Repressed Persons Suffered During the Communist and Nazi Regimes”, especially in stability of the legal norm envisaged by Article 9 of the Law. They trusted that no special date for being granted the status of a politically repressed person should be fixed. They trusted that offence and injustice will be compensated in accordance with the law.”
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As concerns social security the Constitutional Court for the first time interpreted the principle of legal certainty in its March 19, 2002 Judgment[2] . At the Court session, reviewing this matter, the Saeima (Parliament) representative inter alia stressed that “the principle of legitimate trust cannot be completely absolute”.
The Constitutional Court referred to the viewpoint expressed in former judgments and additionally pointed out:
“In his/her turn, in compliance with the above principle, the individual may rely on the constancy and invariability of a legitimately passed legal norm. He/she may plan his/her future taking into consideration the rights the norm has endowed.
The functioning of the principle of legal certainty depends on the fact whether the person’s trust in the legal norm is legitimate, well-grounded and reasonable, in its turn, the legal regulation on its essence should be reasonably definite and constant, so that one could trust in it.
Old age pensions belong to the sector of state social policy, which is to be long-termed and stable. Social policy is connected with the certain state support and protection for persons, who need it, therefore the trust in law in this sector shall be protected”.
The Constitutional Court stressed that “The Saeima, deviating from the initially guaranteed rights without evaluating the conformity of the challenged norm with the principle of legal certainty, has created the feeling of insecurity in the society.
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In its March 25, 2003 Judgment the Constitutional Court expressed its viewpoint on the bounds of the activity of the legal certainty principle[3] . The Constitutional Court concluded:
“Neither Article 1 nor Article 105 of the Satversme anticipates prohibition of incorporating such amendments into legal regulation, which comply with the Satversme. However, in a democratic state the principle of legal certainty requires envisaging a considerate transition to a new regulation when adopting the above amendments. Reasonable terms shall be established or due compensation for the incurred losses shall be envisaged, i.e. – if the former land owners or their heirs have started the process of regaining the property before the challenged norm taking effect and if they have invested certain resources in it.
When passing the challenged norm the legislator has not envisaged such a regulation. However that does not forbid the court of general jurisdiction, when reviewing concrete cases, to apply the legal principles, following from the Satversme”.
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In its March 9, 2004 Judgment[4] the Constitutional Court had to solve an interesting problem: The Jurmala city Dome (Municipality), when protecting its rights, referred to the principle of legal certainty. Only later the Dome specified that the principle of legal certainty shall be applied to private persons and not the municipality of Jurmala. In its Judgment the Constitutional Court concluded that the main function of the above principle is to protect a private person from ungrounded use of public power and it shall be applied only as far as the specifics of public law subjects permit it. The submitter reasonably points out that the principle of legal certainty as concerns the legal relations of the above dispute protects the individuals, who – trusting in the lawfulness of the terminated Dome Regulations – have performed certain activities.
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In October of 2004 -on the basis of several claims by different courts, which reviewed concrete matters on the issues of pensions – the Constitutional Court reached the Judgment[5] which touches upon the principle of legal certainty. Two different norms were contested in the matter.
In its Judgment the Court referred to several Judgments of the European Court of Justice (case C-63/93 “Duff and Others v. Minister for Agriculture and Food, Ireland, and the Attorney General”[1996], ECR 1-0569, Item 20; case C-22/94 “Irish Farmers Association and others v. Minister for Agriculture and Food, Ireland and the Attorney General” [1997], ECR 1-01809, Item 19 and case C-177/90 “Ralf-Herbert Kahn v Landwirtschaftskammer Weser-Ems”[1992], ECR 1-00035, Item 14) and stressed that “It is necessary to establish whether the legislator has anticipated such a right, as the individual may refer to the principle of legitimate trust only in case if the legal regulation, earlier determined by the legislator, has created basis for legitimate expectation”.
As concerns one of the contested norms the Constitutional Court concluded that “Taking into consideration the fact that the former legal regulations have not determined the right to granting pensions anew to persons, the Amendments, made by the legislator in the fifth Part of Article 30, are not at variance with the principle of protection of legitimate expectations, as this principle may protect only such rights, which have been once determined to a person”.
In its turn the second of the impugned norms was declared as unconformable with the principle of legal certainty. The Constitutional Court referred also to the Republic of Lithuania July 12, 2001 Judgment in which the Court of the neighboring State had stressed: “the principle of legal security (legitimate trust) anticipates that legal regulation may be amended only in pursuance with an earlier established procedure and without violating the principles and norms of the Constitution as well as observing the legal interest of the person and his/her legitimate expectations”[6] .
Simultaneously the Constitutional Court pointed out that “the principle of legitimate trust among other things determines also the fact that the rights, once acquired by an individual, cannot exist for an unlimited time. Namely, this principle does not serve as the basis for expectation that the once determined legal situation will never change. Essential is the fact that the principle of legitimate trust secures for the individual the legal protection only for the transitional period, determined by the legislator. The principle of legitimate trust does not guarantee for the individual a continual status quo, i.e. it does not bestow upon the individual the right to a constant exceptional situation in the new legal regulation”.
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I would like to mention that a funny case took place a, concern, the principle of legal certainty In a matter, which was on the issues of remuneration of the expenses of the Saeima deputies, the Saeima representative, making reference to the principle of legal certainty, stressed that the elected representatives of the people were in a specific situation and should be trusted”[7] . Naturally, such an interpretation of the principle of legal certainty was not upheld by the Constitutional Court.
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As I have already mentioned the principle of legal certainty is of importance also in another aspect. The Constitutional Court assesses the concrete situation in every judgment, which declare, that an impugned norm is unconformable with the legal norms, of higher legal force.
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The law establishes that in cases if the Constitutional Court declares a norm as unconformable with a norm of higher legal force, the Constitutional Court shall declare it as invalid. However, the Constitutional Court Law envisages freedom of action as concerns the issue of declaring the term of the norm becoming invalid. The third Part of Article 32 of the Constitutional Court Law envisages: “(3) Any legal norm (act), which the Constitutional Court has determined as incompatible with the legal norm of higher force shall be considered invalid as of the date of publishing the judgment of the Constitutional Court unless the Constitutional Court has ruled otherwise”.
The Constitutional Court has ruled “OTHERWISE” almost in every second of its judgments. In many cases “OTHERWISE” has meant that the impugned norms lose their validity from the moment of their issuance. But there have been also cases when it has been ruled “OTHERWISE” referring to some moment in the future.
When making the decision on unconformity of the impugned norm (act) with the legal norm of higher force and taking the decision on the moment from which the contested norm shall lose validity, any concrete situation is discussed also from the viewpoint of legal certainty.
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For the first time the Constitutional Court in the above connection referred to the principle of legal certainty already in its fourth judgment[8] . Joint Interpretation by the Ministry of Finance and by the Ministry of Economic Reforms, which these Ministries had issued by exceeding their authority, was declared as unconformable with the legal norms of higher force. The submitter of the claim – the Council of the State Control – requested to declare it as invalid as of the moment of its issuance. In its turn the Constitutional Court decided to declare the impugned norm as invalid from the moment of the announcement of the Judgment. In its judgment the Constitutional Court stressed:
“While discussing about the date from which the debated normative acts could be declared null and void, the Constitutional Court considered the following principles: the principle of justice, the principle of legality, the principle of separation of power and the principle of legal certainty. When comparing significance of the above principles, of really essential importance are the following elements of legal certainty: influence of retrospective force of the verdict on public and private interests; longevity of legal relations, established on the basis of the Joint Interpretation; possible changes in the legal status of the subjects to be privatized who trusted in legality of the Joint Interpretation, the Interpretation of December 28, 1993 and others”.
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One of the most interesting matters, which created the Constitutional Court court-law in the very first years of its activities was the case[9] on the compliance of the Law” Amendments to the Law “On Maternity and Sickness Benefits”” with the second Part of Article 66 of the Republic of Latvia Satversme (Constitution). Article 66 of the Satversme stipulates that if the Saeima passes a resolution involving expenditure not foreseen in the Budget, it should specify in this resolution the sources of revenue with which to meet such expenditure. The submitter of the claim – the Cabinet of Ministers – held that the legislator has violated Article 66 of the Satversme as it has enlarged the scope of persons entitled to receive maternity benefit, not envisaging funding for it.
The Constitutional Court concluded that there was a violation of the requirements of the second part of Article 66 of the Satversme. Simultaneously the Constitutional Court stressed: “When making a decision on the time from which the disputable legal norm shall be declared null and void, it should be taken into consideration that in accordance with Article 89 of the Satversme, the State acknowledges and protects the basic right of a person to social insurance (security). Besides, in compliance with the principle of trust in law, the socially not insured persons trusted in legality and stability of the disputable legal norm.”
The Constitutional Court declared the contested law as not being in compliance with Article 66 of the Satversme and null and void from the moment of the law “On the State Budget for 1999” taking effect, if the State Budget for 1999 does not envisage resources for covering the payment of maternity benefits to the persons indicated in the second part of Article 4 of the Law “On Maternity and Sickness Insurance”, even though the submitter of the claim requested declaring the impugned norm as null and void from the moment of its issuance.
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Approach established in the above matters is still topical in the Constitutional Court judgments; however in the text of more recent judgments it is less noticeable expressis verbis. During the practice of the last few years the Constitutional Court is guided by the approach that the decision of the Constitutional Court as concerns the moment from which the impugned norm loses validity shall be substantiated only in special cases. However, in all cases the Constitutional Court, when taking the decision, takes the principle of legal certainty into consideration.
[1] Judgment of the Constitutional Court in the case No.04-03 (98) “On Conformity of the Cabinet of Ministers 23. April, 1996 Resolution No.148 “On the Procedure by which the Property is Restituted or its Value is Compensated to the Persons, whose Administration Deportation from the Territory of the Latvian SSR or from the Part of the Territory of the Latvian SSR that Has Been Incorporated into the RSFSR is Recognized Unfounded” and the Cabinet of Ministers 4. November, 1997 Resolution No. 367 “Amendments to Regulations No. 148 of April 23, 1996” with the Law “On the Determination of the Status of Politically Repressed Persons Suffered during the Communist and Nazi Regimes”, June 10, 1998.
[2] Judgment of the Constitutional Court in case No. 2001-12-01 “On Compliance of Paragraph 26 of the State Pension Law Transitional Provisions with Articles 91 and 109 of the Satversme (Constitution), March 19, 2002.
[3] Judgment of the Constitutional Court in case No. 2002-12-01 “On the Compliance of the Article 12 (Item 3 of the first Part) of the Law “On Land Reform in the Republic of Latvia Cities” with Articles 1 and 105 of the Republic of Latvia Satversme”, March 25, 2003.
[4] Judgment of the Constitutional Court in Case No. 2003-16-05 “On the Compliance of the Minister of Regional Development and Municipal Affairs May 27, 2003 Order No. 2-02/57 on Suspension of the Enforcement of the Jurmala City Dome October 24, 2001 Binding Regulations No. 17 “On the Jurmala Detailed Land Use Plan for the Territory Between the Bulduri Prospect, Rotas Street and 23-25 Avenues”; the Minister of Regional Development and Municipal Affairs June 2, 2003 Order No. 2-02/60 on Suspension of the Enforcement of the Jurmala City Dome October 9, 2002 Binding Regulations No. 10 “On the Confirmation of the Detailed Land Use Plan for the Public Center “Vaivari” as well as the Minister of Regional Development and Municipal Affairs Order No. 2-02/62 on Suspension of the Enforcement of the Jurmala City Dome November 7, 2001 Binding Regulations No. 18 “On the Confirmation of the Detailed Land Use Plan for the Plot Bulduri 1001, Jurmala” with Article 1 of the Republic of Latvia Satversme””; March 9, 2004.
[5] Judgment of the Constitutional Court in Case No. 2004-03-01 “On the Compliance of Article 30 (Parts five and six) of the Law “On State Pensions” with Articles 1 and 91 of the Republic of Latvia Satversme (Constitution)””; October 25, 2004.
[6] See Rulings and Decisions of the Republic of Lithuania Constitutional Court No. 17; AIVARS ENDZINS Vilnius: Constitutional Court of the Republic of Lithuania, 2002, pp. 33-34.
[7] Judgment of the Constitutional Court in Case No. 2001-06-03 “On Compliance of Items 4, 5, 6, 7, 8 and the First Sentence of Item 9 of the Saeima Presidium February 28, 2000 Regulations “On the Procedure of Compensating Expenses Occurred to the Deputies while Exercising their Authority” with Article 91 of the Republic of Latvia Satversme””, February 22, 2002.
[8] Judgment of the Constitutional Court in Case No. 04-05 (97) “On Conformity of the Joint Interpretation by the Ministry of Finance (No. 047/475 Certified on April 30, 1993) and by the Ministry of Economic Reforms (No. 34-1.1-187; Certified on May 4, 1993) “On Revaluation of Fixed Assets by Enterprise and Entrepreneur Company Accountancy”” and Interpretation by the Ministry of Economy No. 3-31.1-231 of December 28, 1993 “On the Procedure of Application of the Joint Interpretation by the Ministry of Finance ant the Ministry of Economic Reforms “On Revaluation of Fixed Assets by Enterprise and Entrepreneur Company Accountancy”” with the Law “On the Procedure of Privatization of Objects (Enterprises) of the State and Municipal Property” as well as Other Laws””; March 11, 1998.
[9] Judgment of the Constitutional Court in Case No.01-05 (98) “On Conformity of the Norm established by the Second Part of Article 4 of the Law “On Maternity and Sickness Benefits”- that on June 19, 1998 Was expressed in a New Wording in Article 8 of the Saeima Law “Amendments to the Law “On Maternity and Sickness Benefits”” with Article 66 of the Republic of Latvia Satversme (Constitution); November 27, 1998.