Speech by the Judge Daiga Rezevska at the 9th Meeting of the CoE-FRA-ENNHRI-EQUINET Collaborative Platform on Social and Economic Rights
Prof. Dr.iur. Daiga Rezevska
Judge of the Constitutional court of Republic of Latvia
Strasbourg 28 November 2019
Concretisation and implementation of social and economic rights by the Constitutional Court of Latvia – challenges and solutions for advancing social and economic rights at national level
Protection of social and economic rights by the Constitution of the Republic of Latvia – Satversme. Concretizations of these rights by the Constitutional Court
The Constitution expressis verbis provides for social and economic rights in the several Articles of Chapter 8 “Fundamental Human Rights”. For example, the right to freely choose employment and workplace in Art. 106, the right to receive, for work done, commensurate remuneration, the right to weekly holidays and a paid annual vacation in Art. 107, the right to a collective labour agreement, and the right to strike in Art. 108, the right to social security in old age, for work disability, for unemployment and in other cases as provided by law in Art. 109, right to protection and support for family in Art. 110, the right to protection of human health. However, fundamental rights are interconnected and overlapping so also other Articles of the Constitution and even the preamble come into the play protecting social and economic rights (for example, principle of human dignity, principle of socially responsible state and principle of sustainable development included in the preamble of the Constitution, Art. 1 – Latvia is an independent democratic republic, Art. 115 – right to live in a benevolent environment).
The text of the Constitution gives only the guidelines of the human rights while the real content is found by the Constitutional Court in a way of concretization. Some of the contents of the social and economic rights as concretised by the Constitutional Court:
On availability of resources, margin of discretion of the legislator and limits of judicial control
The implementation of social rights depends first of all on the economic situation and the available resources of the state. However, if the legislator, making use of its authority in the creation and implementation of the social policy as well as in the determination of the scope of social rights, has incorporated social rights into the Satversme and has specified the contents of these rights in laws, then they have become individual rights. A person may request the implementation of these rights from the state as well as protect his/her rights in court.[1]
In the field of the implementation of social rights the demands put on the legislator may not be as strict as those with regard to the non-interference with the exercise of civil and political rights. However, the fact that economic, social and cultural rights are guaranteed in the Satversme sets certain limits to the margin of discretion of the legislator also in this field. First, the legislator may not refrain from an effective implementation of social rights – they have been incorporated in the Satversme and the legislator must observe and respect them. Second, social rights, even though they depend on the financial capabilities of the state, have to be secured at least at a minimum level. Third, in implementation of social rights the general principles of law must be observed; these principles create the basis for legal relationship between a person and the state. The support granted by the state does not need to be as large as the persons affected might possibly wish it to be; however, the legislator, when setting the amount of the allowance is not released from the obligation to abide by the previously mentioned principles of law.[2]
The particular character of social rights also establishes the limits of the judicial control in this field. When implementing social rights, the legislator enjoys a broad margin of discretion insofar as it is reasonably related to the economic situation of the state; however, this margin of discretion is not unlimited. Whereas the judicial power has the duty of assessing whether the legislator has observed the limits of this margin of discretion. This means that the court must investigate, insofar as is possible, whether: 1) the legislator has taken measures to ensure a possibility for persons to implement their social rights; 2) these measures have been undertaken adequately, namely, whether persons are provided with a possibility to implement their social rights to at least a minimum extent; 3) the general principles of law are observed.[3]
On content of the right to social security
Article 109 of the Satversme guarantees the right to a stable and predictable, as well as effective, fair and sustainable system of social protection that ensures a proportional social security. The right to social security in Latvia has a constitutional value.[4]
The aim of the right to social security is to the fullest extent possible to ensure a life worthy of a human being.[5]
The state has an obligation to create a system of social security that would cover all the significant social risks.[6]
The system of social protection is aimed at eliminating the consequences of various circumstances, the so-called social risks. Article 109 of the Satversme lists three social risks: old age, the loss of ability to work, and unemployment. However, this is not an exhaustive list. Article 109 of the Satversme obliges the legislator to also include other social risks into the social protection system. Some of the risks that must be included into this system follow from fundamental rights and the related obligations of the state enshrined in other articles of the Satversme, for instance, health protection, provision of care to disabled persons, the rights of the child, family support. Yet other social risks must be included into the social security system because on the essence of the social rights, as well as the international obligations of Latvia.[7]
The state has an obligation to implement the right to social security at least at the minimum level.[8]
Provisions of the Satversme in principle do not guarantee the right to a specific amount of social security.[9]
In the field of social rights the Satversme neither establishes specific sums to be disbursed, nor lays down the conditions for such disbursements. For instance, Article 109 of the Satversme establishes the right to a pension; however, it does not guarantee the right to receive a pension of a specific amount.[10]
The volume of social security guaranteed to a person is affected by the economic situation of the state and the available resources. … However, if the legislator has decided to guarantee a certain volume of social security by law, a person acquires a subjective right to it.[11]
On the content of principle of socially responsible state
First sentence of the fourth paragraph of the Preamble of the Satversme says: “Latvia as democratic, socially responsible and national state is based on the rule of law and on respect for human dignity and freedom; it recognises and protects fundamental human rights..”
The Constitutional Court has concretized:
It follows from the principle of a socially responsible state that the state has a duty to formulate a sustainable and balanced policy for the welfare of society. The state must balance its economic capabilities not only with the social rights of the individual, but also with the need to ensure the well-being of the whole society and to create a legal framework aimed at the sustainable development of the state.[12]
The State has a wide discretion in the implementation of its tax policy. Thus, the legislator is also entitled to choose solutions to ensure the state basic budget revenue, which is necessary for financing the increasing needs of the population for social protection and reduction of inequality. However, when implementing tax policy, the actions of the legislator must comply with the general principles of law and the norms of the Satversme. It follows from the basic norm and the principle of a democratic socially responsible state included in the preamble to the Satversme. Similarly, the legislator must observe the principles of effectiveness, fairness, solidarity and timeliness in the exercise of its discretion in tax matters.[13]
A case study
The judgement in the case I would like to present was delivered by the Constitutional Court on 2 May 2019, in case “On Compliance of Para 1 of Section 14 (71) of the law “Remuneration of Officials of State and Local Government Authorities” with the First Sentence of Article 91 of the Satversme of the Republic of Latvia”.[14] The Court declared the norm that regulates remuneration for overtime work for the officials with special service ranks as incompatible with the equality principle included in the Satversme.
The case was initiated on the basis of an application by the Administrative District Court. The Administrative District Court had a pending case, in the framework of which a the Prison Administration’s official with a special service rank requests imposing an obligation on the Prison Administration to compensate for the losses caused by the undisbursed additional payment for overtime work when the official had been prohibited from leaving, during the lunch break, the place where he performed his service duties.
The Administrative District Court holds that the contested norm is incompatible with the first sentence of Article 91 of the Satversme because, in general, regulatory enactments provide that the additional payment for overtime work is in the amount of 100 per cent of the salary determined for the person. Whereas, pursuant to the contested norm, the overtime work, which particular officials perform at the time, when it was impossible to grant rest time to them, must be paid for as for the regular working time, i.e., without this additional payment.
It follows from the materials of drafting of the Contested Norm that the Ministry of the Interior is of the opinion that the performance of official duties above a certain time of service, when particular official cannot be granted a break, does not amount to overtime as he/she can have a meal. However, in such cases the official should be prepared to perform his/her duties at any time. Therefore, the Applicant is of the opinion that there is no reason to treat such work during breaks differently from other overtime work. It is irrelevant that an official has the opportunity to rest or have a meal during this time in office.
The Constitutional Court analysed Revised European Social Charter (the Charter) and noted that the legislator’s obligation to ensure such remuneration to an employee for overtime work that is higher than the remuneration for work set for him followed from Para 2 Article 4 of the Charter. Moreover, in accordance with the principle of equality, the legislator must ensure that those employees, who are in similar and in accordance with certain criteria comparable circumstances, would receive equal remuneration for the overtime work. Work performed by an employee in excess of his or her normal working hours requires additional work for which he or she is compensated. That is to say, in such cases, the worker must, in accordance with Article 4 (2) of the Charter, be remunerated not only for the work he has done but also for the additional workload he has been given. Therefore, the remuneration for overtime must in general be higher than the remuneration for normal working hours. Overtime work may also be compensated by rest periods, but in that case the rest must be longer than the overtime hours [see Decision of the European Committee of Social Rights of 17 October 2011 in the case of European Council of Police Trade Unions (CESP) v. Portugal, Application No. 60/2010, §§ 19 and 20]. Article 4 (2) of the Charter, which provides for a higher rate of overtime pay, may exceptionally not apply to certain public officials, as well as to small groups of employees in senior positions or whose working hours are freely organized and therefore cannot be counted [see Decision of the European Committee of Social Rights of 23 June 2010 in the case Confédération française de l’Encadrement CFE-CGC v. France, Application No. 56/2009, § 75, and the Decision of 2 December 2013 in Union Syndicale des Magistrats Administratifs (USMA) v. France, Application No. 84/2012, §§ 57-70].
The contested norm is applicable only to those officials with the special service ranks, who have worked overtime at a time when it had not been possible to give them a break. However, to those officials with special service ranks, who have worked overtime at any other time, a norm that envisages granting the double amount of remuneration for the respective overtime work is applicable.
Further the Court analysed the situation in accordance with the European Union law. In accordance with the judicature of the Court of Justice of the European Union, “working time” and “resting time” are mutually exclusive concepts and an intermediate category between them is impossible. The decisive factor for classifying the working time is exactly the obligation of the employed person to be at the place determined by the employer, so that, if necessary, he could perform his professional duties immediately. Since in such a case the employee cannot freely choose his location then any time period like this must be considered as being working time. The classification of such working time cannot be influenced by the intensity, productivity and the amount of work performed during the respective time period, or the fact that the employer has ensured to the employee the possibility to use a resting room at the time when his services are not required. Hence, “the active time on duty”, when the employee stays at the location indicated by the employer, is to be considered as being overtime work.
Thus, the Constitutional Court found that the officials with special service ranks, who perform overtime work during a break, and the officials with special service ranks, who perform overtime work at other time, are in similar and according to certain criteria comparable circumstances. However the contested norm establishes differential treatment of persons, who are in similar and according to certain criteria comparable circumstances.
The Constitutional Court found that the differential treatment had been established by law. Next, The Constitutional Court looked for the legitimate aim of the restriction. The Constitutional Court found that, by establishing such remuneration for the overtime work performed by the officials with the special service ranks during a break that is equal to the regular hourly rate of remunerations set for them instead of the double amount of remuneration for overtime work that they are entitled to for the overtime work performed at other time, savings of the state budget resources are ensured. The Constitutional Court noted that the need to save the state budget resources could justify the State’s refusal to grant resources for the performance of its less important functions or for introducing general austerity measures in conditions of economic recession. However, saving the state budget resources cannot serve as a legitimate aim of the differential treatment of groups of persons, who are in similar and according to certain criteria comparable circumstances. In the particular case, no legitimate aim can be discerned for setting for the same group of officials for the overtime work performed at certain time lower remuneration than the overtime work performed at other time. Hence, the Constitutional Court found that the contested norm was incompatible with the first sentence of Article 91 of the Satversme.
The Constitutional Court recognised the contested norm as being void as of the moment when a person’s fundamental rights were infringed upon with respect to all persons, who, to defend their rights, had turned to a court in the procedure established in the Administrative Procedure Law and with respect to which the administrative proceedings in the court had not been completed yet, as well as to such persons, who, to defend their rights had turned to the court in the procedure established in the Administrative Procedure Law and with respect to which the administrative proceedings already had been completed.
III. On Ombudsman’s recent activities
Three cases have been initiated by the Constitutional Court recently based on the Ombudsman’s applications:
1) On 19 November 2019 – on amount of state social benefit as incompatible with Article 1, the Second Sentence of Article 91 and Article 109 of the Satversme of the Republic of Latvia.
The Ombudsman holds that the amount of state social security benefit is insufficient for providing for the basic needs of its recipients – healthy food, clothes, housing, health care, and compulsory education. Although the national economy has developed, the amount of the state social security benefit has not been reviewed for a long time. Therefore, the State has not duly performed its positive obligation to ensure to persons social assistance, which follows from Article 1 and Article 109 of the Satversme. The amount of the state social security benefit causes social exclusion of its recipients and does not ensure to them equal opportunities, compared to economically active persons. Hence, the contested norm is said to be incompatible also with the principle of prohibition of discrimination, included in the second sentence of Article 91 of the Satversme.
2) On 13 November 2019 – on the minimum income level set by the Cabinet of Ministers for recognising a family (a person) as needy as incompatible with Article 1 and Article 109 of the Satversme.
The Ombudsman holds that the minimum income level for recognising a family (a person) as needy is incompatible with the principle of a socially responsible state, does not ensure protection of human dignity and does not fulfil the positive obligation of the State that follows from Article 109 of the Satversme to provide to a person the social assistance he or she needs. The minimum income level that complies with the status of a needy family (person) has not been reviewed since 2011. Thus, the State has not fulfilled the obligation to re-examine the level of social protection regularly, striving to increase inhabitant’s quality of live with the maximum available resources. Allegedly, much larger number of Latvia’s inhabitants needs social support measures than the contested norm currently allows.
3) On 21st October 2019 – on the guaranteed minimum income level determined by the Cabinet of Ministers with Article 1 and Article 109 of the Satversme.
The Ombudsman holds that the guaranteed minimum income level is incompatible with the principle of a socially responsible state, does not ensure protection of human dignity and does not fulfil the positive obligation of the State, which follows from Article 109 of the Satversme, to provide to a person the necessary social assistance. The Government, for a long time, has not increased the guaranteed minimum income level to make it compatible with the Satversme. The State must orient its policy towards equalisation of social and financial status, instead of reinforcing and expanding social and financial differences. Currently, the guaranteed minimum income level is said to be insufficient to provide for a person’s basic needs, thus, it cannot ensure a standard of living compatible with human dignity.
[1] Judgment of 19 March 2002 in the case no. 2001-12-01, para. 2 of the motives part.
[2] Judgment of 8 November 2006 in the case no. 2006-04-01, para. 16.
[3] Judgment of 19 December 2007 in the case no. 2007-13-03, para. 8.4.
[4] Judgment of 19 December 2011 in the case no. 2011-03-01, para. 15.2.
[5] Judgment of 21 December 2009 in the case no. 2009-43-01, para. 31.2.
[6] Judgment of 15 February 2018 in the case no. 2017-09-01, para. 14.1.
[7] Judgment of 29 October 2010 in the case no. 2010-17-01, para. 7.
[8] Judgment of 21 June 2012 in the case no. 2011-20-01, para. 14.
[9] Judgment of 21 December 2009 in the case no. 2009-43-01, para. 24.
[10] Judgment of 29 October 2010 in the case no. 2010-17-01, para. 10.1.2.
[11] Judgment of 26 November 2009 in the case no. 2009-08-01, para. 15.
[12] Judgment of 15 March 2010 in the case no. 2009-44-01, para 22.
[13] Judgement of 19 October 2017 in the case no. 2016-14-01, para 26.
[14] Judgement of 2 May 2019 in the case no. 2018-14-01.