Legal effects of a judgment of the Constitutional Court
Assoc. Prof. Dr. iur. Jānis Neimanis
Justice of the Constitutional Court
Brussels 11 June 2019
1. Rulings in the Constitutional Court’s judgments
Article 31(10) of the Constitutional Court Law stipulates that in the resolutive part of its judgment the Constitutional Court shall answer the main question of the case, that is, whether the contested legal provision (act) complies with the provision of a higher legal force. Article 85 of the Constitution of Latviaentitles the Constitutional Court to declare laws or parts thereof invalid. Given that a legal provision which contradicts a provision of a higher legal force is invalid,[1] there is no need to cancel it specifically by means of a separate legal act, for example, a judgment; therefore, the Constitutional Court does not deliver judgments cancelling a legal provision or act. In its judgment, the Court finds them to be invalid; therefore, we may conclude that the Constitutional Court’s judgment is of an indicative nature.
Unlike a general jurisdiction court in civil cases or an administrative court, the Constitutional Court does not adopt judgments “upholding” or “dismissing” the claim. Subjectively, of course, the applicant may view the court’s judgment as uphold of their claim if the court has agreed with the applicant’s opinion on non-compliance of the contested provision or act with legal provisions of a higher legal force.
The Constitutional Court may find non-compliant with a provision of a higher legal force not just one individual provision, but also the whole legal act. This is possible if the legal act has been adopted ultra vires, or, alternatively, if the non-compliant item constitutes such a large part of the legal act that the respective act would be rendered meaningless without it.
The Court may hold that only a part of the contested legal provision is incompatible with the provision of a higher legal force, even if a broader part or the whole provision has been contested.[2] For a particular part of a legal provision to be recognised as non-compliant, there has to be a possibility to clearly separate (single out) it from the rest of the provision, so that the judgment would be understandable and executable, and the legal provision itself would still be applicable after such “surgical intervention”. A part of a legal provision can be singled out by using various criteria. The text of the provision is, of course, the clearest criterion. Everyone can see a part of a legal provision such as a separate sentence, a subsection or a subparagraph, or individual words in a sentence, singled out by the court.
In case no. 2011-04-01, the Court, among other things, held the words “from 1 January 2017” of the first sentence, the words “from 1 January 2017” of the second sentence and the words “from 1 January 2012” of the third sentence of para. 7 of the Transitional Provisions of the Insolvency Law to be non-compliant with Article 1 of the Constitution and null and void as from 1 March 2012.[3]
However, the Court may also characterise the part of a legal provision by using other criteria of interpretation of legal provisions, for example, the system and the aim, as the content of a legal provision may be wider than its literal text. It is important that the Court itself, in drafting the resolutive part, should observe the principles of legal clarity and certainty.
A provision contested in the Constitutional Court stipulated that convicts had the right to keep items and foodstuffs in range and quantities determined by the administration in accordance with the “List of items and foodstuffs that may be kept by the convicts” approved by the Cabinet of Ministers. The list included products purchased in the institution’s shop. In considering the case, the Constitutional Court concluded that what was contested was the prohibition of receiving food parcels and deliveries. Although it was not stated directly in the contested provision, it could be deduced from the system of the regulation as a whole. The Court held this prohibition to be invalid.[4]
By expanding the claim the Court may hold that a wider regulation is incompatible with a provision of a higher legal force, even if only a part of this regulation is contested in the application. This is based on the necessity to ensure, by means of the Constitutional Court judgment, effective protection of the individual’s rights and effective execution of the ruling. Such expansion is achievable by including other, uncontested, legal provisions if they are closely linked with the contested ones and can be evaluated by referring to the provided legal arguments, or if the evaluation thereof is necessary for adjudicating the particular case.[5]
The Supreme Court contested a provision of the law “On Taxes and Fees”, which had been applied in an administrative case and which restricted the tax administration’s right to reduce the imposed penalty, providing that this could be done not more often than once every three years. The Constitutional Court found that the amended provision valid at the time of examining the case restricted the right of the tax administration to reduce the imposed penalty to not more often than once a year, and that this provision was based on the same considerations of the legislator as had been voiced with regard to the contested provision. Therefore, also the provision valid at the time of the examination of the case was held by the Court to be non-compliant with a provision of a higher legal force.[6]
The Prosecutor General contested provisions of the Cabinet of Ministers which provided for financially supportable quotas for the production of biological diesel fuel by specific economic operators. The Court found that the Cabinet had not been entitled to set any specific quotas also for other economic operators, and, for the sake of efficiency (procedural economy), extended the application of judgment to all economic operators.[7]
If the non-compliance with the provision of a higher legal force is created by the absence of legal regulation, whereas the state is obliged to establish such a regulation, the Court adopts a judgment finding the existing regulation, insofar as it is deficient, incompatible with the provision of a higher legal force. Such rulings are, in fact, of a summoning nature, a means for the Court to direct the legislator’s attention to the necessity, as arising from the Constitution, to introduce the regulation.
A provision contested in the Constitutional Court stipulated that the convicts’ correspondence with the UN institutions, the Human Rights and Public Affairs Committee of the Parliament, the Ombudsman, the Prosecutor’s Office, courts, as well as the correspondence of a convicted foreign citizen with the diplomatic or consular representation of his or her state or the state authorised to represent his or her interests, shall be paid for by the institution of deprivation of liberty. The applicant indicated that the provision did not comply with Article 92 of the Constitution because it did not include other institutions, for example, the Ministry of Justice, the Prisons Administration, the Legal Aid Administration. The Constitutional Court held that the regulation which does not provide for covering from the state funds the mailing of applications to contest administrative acts or de facto actions of state authorities and requests for legal assistance for indigent convicts is a failure of the state fulfil its obligation deriving from Article 92 of the Constitution, and obligated the legislator to improve the regulation.[8]
A provision contested in the Constitutional Court stipulated that detainees have the right to a one-hour long meeting at least once a month with their relatives or other individuals in the presence of a representative of the administration of the investigative prison. The Court held the words “one-hour long”, insofar as they specified the maximum time of a short visit, and the words “in the presence of a representative of the administration of the investigative prison”, insofar as they did not provide for an individual assessment of a particular case, to be non-compliant with Article 96 of the Constitution.[9]
The Court may also find the contested provision to be compatible with a provision of a higher legal force. Considering that Article 32(2) of the Constitutional Court Law recognises that also the motives part of the judgment is of a binding nature, the Court may use this to modify the traditional model of the resolutive part of the judgment. This comes useful in cases when the Court adopts a judgment holding the contested provision to be compatible with a provision of a higher legal force, while simultaneously providing, in the motives part, an interpretation of the contested provision’s content which ensures its compatibility with the provision of a higher legal force.[10] The recognition of the contested provision as invalid is thus prevented.
In case no 2004-16-01 the Court concluded that the Administrative Court was misinterpreting the contested provision and provided its own view of its content and held its own interpretation to be compatible with the Constitution.
The Court may also provide for an interpretation of a provision in the resolutive part of the judgment.
In case no. 2005-17-01 the Court ruled that the term “letters” contained in Article 74(1) of the Sentence Enforcement Code of Latvia shall be interpreted in a narrow sense – as “letters to private individuals”.[11]
The interpretation of a provision provided by the Court may not result in the existence of a regulation which was not at all intended by the institution that adopted the contested provision or which contradicts other legal provisions (the system).
In case no 2017-25-01 the Court concluded that at that moment the contested provision should be interpreted as prohibiting to stand for parliamentary elections an individual who, by being active after 13 January 1991 in organisations mentioned in the contested provision, imperilled and continues to imperil the national independence of Latvia and the principles of a democratic state governed by the rule of law, and found this provision to be compatible with the Constitution, even though this contradicts the clear text of the provision and the system of legal provisions of which the contested provision formed a part.[12]
In case no 2017-33-03, the Court did not take into account that, as a result of the interpretation it provided, the respective provision grants the right to a certain compensation if the individual files a claim under administrative procedure, whereas if the individual files a claim under civil procedure, the individual’s subjective right to claim is not at all recognised. This reveals the incompatibility of the interpretation of this provision with the legal system.
Moreover, a new interpretation raises questions as to how it will influence the discussion of legal relationships that had emerged, were modified or terminated before the Court has provided its interpretation. If the Constitutional Court provides an interpretation different from the one previously accepted by society and the implementers of the law,[13] the impact of the legal effects of the respective judgment on the already established legal relationships becomes problematic and ought to be regulated in the judgment itself.
The Court may also adopt a judgment in which it holds the contested provision to be compatible with a provision of a higher legal force, while simultaneously, in the motives part, pointing out the need for the legislator to review the contested provision in the future and to consider whether it continues to be necessary in the ever-changing circumstances of social life,[14] or recommending a new regulation. By doing so, the Court takes into account the process in which the legislator makes political decisions, but also cautions about the consequences of future development and the possibility that in other circumstances the Court might recognise the contested provision as non-compliant.
The above applies also to judgments settling disputes between the constitutional bodies of state power (or parts thereof). In these cases, too, the Constitutional Court adheres to the same style of judgments, that is, the Court only states whether the adopted act complies with the Constitution and the laws, and, if it does not, indicates the moment from which the contested act is recognised as invalid. The Court does not cancel the act and does not impose an obligation to issue any act or to take any action. This, however, does not mean that the constitutional bodies of state power (parts thereof) do not have to take the necessary steps following from the findings of the Constitutional Court. According to the principle of a state governed by the rule of law, the finding of the Constitutional Court that an act is incompatible with a legal provisions of a higher legal force demands that the participants of the case ipso iure take measures to repair the consequences of its unlawfulness.
2. The ex tunc impact of a judgment of the Court and its modification
Article 31(11) of the Constitutional Court Law stipulates that if the Constitutional Court has ruled that a provision (act) is incompatible with a provision of a higher legal force, the Court must indicate in the judgment the moment from which the contested legal provision (act) shall cease to be in force.
In general, the recognition of a legal provision as invalid means that this provision has never, from the very beginning (ex tunc), existed legally, and has, in fact, been in force only declaratively. A legal provision is invalid from the earliest moment when it has created a contradiction with a provision of a higher legal force. If the contested provision of a lower legal force was adopted while the provision of a higher legal force was already effective, this contested provision has never been legally valid. If the provision of a higher legal force entered into effect later than the provision of a lower legal force which was already effective at the moment, the contested provision of a lower legal force is invalid from the moment of coming into effect of the provision of a higher legal force.
The invalidation of a legal provision negates the legal effects caused by this provision during its declarative validity. Thus, the logical consequences of this interdependence are that the legal acts adopted during this period on the basis of the invalid legal provision should be cancelled, their legal effects revised, and the effects of de facto actions of state authorities eliminated. Laws do not restrict the possibility to review the compliance with a provision of a higher legal force of a legal provision that has been valid for a long time; therefore, the invalidation of a legal provision produces a very substantial impact on the whole legal system and the life of society. Declaring a legal provision invalid as of a moment in the past may create new constitutional and legal problems. It is mostly impossible to make past events unhappen, one can only try to compensate for the consequences or change the course of future events. For this reason, Article 32(3) of the Constitutional Court Law transfers the impact of the ex tunc legal effects of a judgment to a later moment – that of the publishing of the Constitutional Court’s judgment. In most cases, this is also the choice of the Constitutional Court – to declare the legal provision as incompatible with the Constitution from the moment of pronouncement of its judgment, provided that there are no special considerations.[15]
At the same time, Article 32(3) of the Constitutional Court Law allows the Constitutional Court itself to determine the impact of the legal effects of its judgment in order to balance the need for justice with the interests of legal security and certainty, considering the circumstances of each particular case. Still, in balancing the need for justice with the interests of legal security and certainty in each particular case, the Constitutional Court mostly prioritises the interests of legal security and certainty; the practice, however, is not uniform and is not subject to stable criteria. It has also been pointed out that, according to the principle of equality, the Court in determining the impact of the legal effects of its judgment should still follow its case-law in other similar cases.[16]
The Court may declare a contested legal provision invalid from a certain point in future, that is, after the pronouncement of the judgment, if it finds that the legislator should be given time for adopting a better regulation or finding a better balance between legal interests.[17] Such cases are usually related to legal solutions requiring that the legislator make a political choice, prepare appropriately for the financial consequences of its decision, or make more extensive changes to a certain part of the legal system, which justifies an anti-constitutional provision’s remaining in force for some time.
In cases initiated on the basis of an individual constitutional complaint it is important that the fundamental rights of the individual would be effectively protected as a result of the case; therefore, in these situations the Constitutional Court declares the legal provision non-compliant and invalid from the moment when the infringement of the petitioner’s fundamental rights occurred.[18]
In cases initiated based on an application from a court, the Constitutional Court mostly recognises the legal provision as non-compliant and invalid from the moment of the infringement of fundamental rights or from the moment of adoption of the provision:
- with regard to an individual who would be affected by the application of this legal provision in the corresponding civil, administrative or criminal case[19] or
- with regard to individuals in similar civil, administrative or criminal cases where the proceedings have not yet been completed.[20] Here, too, the moment of the legal provision ceasing to be in force is determined so as to protect the rights of the individuals who have turned to a general jurisdiction court or an administrative court.
Regardless of the type of constitutional review, the Constitutional Court is not prevented from adopting a judgment with a retroactive effect. These are mostly cases where the Court finds that the contested legal provision has been issued in obvious violation of the authorisation granted by the law, that is, ultra vires, and only if there are no special considerations why the legal certainty and stability created by the contested provision should still be protected for a certain time.[21] With regard to legal provisions recognised by the Court as having been adopted in violation of the author’s competence or with substantial procedural violations, the Court has been using three different approaches, that is, recognising the provision as invalid: from the moment of adoption, from the moment of the publication of the Court’s judgment, from a certain moment in future.[22]
The conclusion that a legal provision has been adoptedultra vires does not automatically mean that the Constitutional Court must recognise it as invalid as of the moment of its adoption. The Constitutional Court has on several occasions declared provisions that have been adopted ultra viresto be invalid from a certain moment in future. The Court has used various arguments to substantiate its conclusions. For example, the Court has found it important that the contested legal provisions as a whole were aimed at protecting the fundamental rights and security of individuals, and that the situation that would arise if there were no act whatsoever to regulate the respective sphere would be even less compatible with the Constitution.[23] In another case, the Court concluded that if the regulation non-compliant with the authorisation granted to the legislator were declared to be invalid from the moment of its adoption, the individuals would be placed in a less favourable situation, and that time should be allowed for the development and adoption of regulation compliant with legal provisions of a higher legal force.[24] The Court has also taken into account that a declaring the contested regulation to be invalid retroactively would create a substantial administrative and financial burden.[25] The Court itself has indicated that in deciding to declare a legal provision invalid it must, insofar as is possible, ensure that the situation that would arise after the contested provision has ceased to be in force:
- will not interfere with the fundamental rights guaranteed to individuals by the Constitution;[26]
- will not threaten legal stability and certainty;[27]
- will not excessively burden the state or municipal budget and along with that also interfere with the rights and interests of the general public.[28]
For these reasons the Constitutional Court has never recognised a legal provision as invalid ex tunc if the provision has regulated private legal relationships, except for cases initiated on the basis of an individual constitutional complaint and with the sole aim to protect the interests of the particular applicant or cases in which the proceedings have not yet been completed.[29] However, in a very recent case initiated on the basis on an individual constitutional complaint the Court declared the contested provision to be invalid ex tunc, even though the provision pertained also to private legal relationships which had also been terminated in the past.[30]
The request of a participant of the case regarding the legal effects of the judgment of the Court should not be binding on the Constitutional Court. However, the practice of the Constitutional Court indicates that even the petitioner’s silence on this matter, who had turned to the Court to protect his fundamental rights, resulted in consequences negative for him, that is, the Constitutional Court’s judgment did not eliminate the actual infringement of the applicant’s fundamental rights. In the Court’s opinion, the applicant himself should have asked the Court to declare the legal provision invalid as of the moment of the interference with his fundamental rights.[31] Likewise, in a case based on an application from a court, the Constitutional Court did not take into account that the aim of the respective application had been to protect the rights of a particular applicant in an administrative case. Thus, even though the Constitutional Court recognised the applicable provision as non-compliant, it only declared it invalid from a certain moment in future; in the judgment, in its judgment the Court did not at all consider the question of how it would contribute to the protection of the individual’s rights in the respective administrative case.[32] Such practice of the Constitutional Court should not be maintained, as it renders null the Court’s role in the protection of fundamental rights.
The recognition of the contested provision as incompatible with a provision of a higher legal force and invalid does not reinstate the effect of the previously effective legal provisions which had been replaced by the contested provision. However, since the Constitutional Court is entitled to decide on the legal effects of its judgment, the Court may also decide on the regulation that will apply while the contested provision is not in force. As one of such solutions, supported by reference to the practice of constitutional courts of other states, the Constitutional Court has accepted that its right to include other rulings in the judgment entitles it to rule that the legal provisions that were amended by the contested act recognised by the Constitutional Court as being incompatible with provisions of a higher legal force should be reinstated or remain applicable. The Court has justified this approach by the consideration that the recognition of a contested provision as invalid must not result in an absence of legal regulation, which, in turn, may lead to new infringements of the constitutionally guaranteed fundamental rights of individuals.[33] Such decision remains in force until the legislator has regulated the respective matter.[34]
3. The binding nature of the Court’s judgment
A judgment of the Constitutional Court has a multifaceted impact. First of all, just like any court decision, it has a procedural legal effect – the judgment of the Constitutional Court has the force of law and it is not subject to appeal. The procedural legal effects of the judgment are a prerequisite for its substantive legal effects.
The substantive legal effect of the judgment is that proceedings regarding the same matter already covered by a judgment of the Court are impermissible. Finally, the principles of legal equality and legal security demand that also the Constitutional Court follow its previous judgments.
Article 32(2) of the Constitutional Court Law stipulates that the Constitutional Court’s judgement and the interpretation of the relevant legal provision provided therein shall be obligatory for all the state and municipal authorities (also courts) and officials, as well as natural and legal persons. Thus, the judgment of the Constitutional Court exceeds the boundaries of the individual case in which it is delivered and in future on has an impact not only on the participants of the particular case, but on the largest scale – on the legislator, the state administration, each and every implementer of the law, as well as the entire society. Judgments of the Constitutional Court differ from other courts’ judgments substantially in that their content has the most extensive impact on both the legal order and the implementation of the law.
The universally binding (erga omnes) character of judgments of the Constitutional Court is based on the consideration that the Court’s finding regarding the compatibility of a provision with a provision of a higher legal force is of an objective nature, that is, independent from the arguments of the participants of a particular case, and applies also to those participants who did not take part and did not voice their arguments in the respective proceedings of the Constitutional Court. The Court’s judgment is, thus, binding not only subjectively, that is, for those who have participated in the case, but also objectively – for the entire society and for public institutions.
The interpretation of legal provisions given in decisions adopted by preparatory meetings of the Constitutional Court, by panels of the Constitutional Court and individual judges is not of a universally binding nature. The opinion of a panel of the Court on a legal matter provided in a decision by which the panel refuses to initiate a case is not an obstacle for submitting a new application regarding the same matter. A different panel of the Court may come to a different opinion on points of law. In this case the panel would have to refer the application for consideration in a preparatory meeting. At the same time, decisions adopted in preparatory meetings and by panels of the Court form the Court’s case-law both with respect to resolving unregulated procedural issues and in specifying the admissibility criteria of applications.
3.1. The subject of the judgment’s binding nature
The term “judgment” in Article 32(2) of the Constitutional Court Law primarily denotes the resolutive part of a judgment of the Court. The binding nature of judgments of the Court means that the resolutive part of this judgment has a binding force of a law.[35] However, the wording of Article 32(2) of the Constitutional Court Law recognises as binding not only the resolutive part, but also the motives part, which contains interpretation of legal provisions. The reason for this requirement is that the motives part of the judgment substantiates its resolutive part.
The motives part of the Court’s judgment consists of different kinds of arguments and lines of reasoning at different depth levels. Those are not easily differentiable, even though the Court tries to separate, by means of style, the main arguments of the judgment (ratio decidendi) from the accompanying arguments that have no decisive meaning (obiter dicta). The Court usually presents such accompanying arguments towards the end of the judgment, before its considerations regarding the effects of the resolutive part. Development of generalised criteria is complicated; each judgment of the Court should be viewed individually.
Although the wording of Article 32(2) of the Constitutional Court Law is broader, the obiter dicta arguments cannot be considered as compulsorily binding. This is due to their being only subordinate to the resolutive part of the judgment.
3.2. The addressees of the binding nature of the judgment
According to Article 32(2) of the Constitutional Court Law judgments of the Court and the interpretation of the relevant legal provision provided therein shall be obligatory for all state and municipal authorities (also courts) and officials, as well as natural and legal persons.
The main addressee of the Court’s judgments is the legislator.
General jurisdiction courts and administrative courts are also among the addressees of judgments of the Court. First and foremost, the conclusions provided in judgments of the Constitutional Court are an authoritative subsidiary source for the courts to base their reasoning on in future.
A judgment of the Constitutional Court judgment by which the contested provision is held to be incompatible with a provision of a higher legal force may be important in legal proceedings in courts of general jurisdiction court and administrative courts, as well as in administrative proceedings in an institution. First, in court proceedings that have already been initiated or administrative proceedings in an institution, a judgment may instantaneously change the content of procedural rights. Second, the judgment may affect the examination of a claim on the merits, for example, claims requesting a favourable administrative act or prompting a de facto action, as well as on the qualification of an act as a crime. However, most questions occur with regard to the effect of judgments of the Constitutional Court on disputes that have already been legally settled. A judgment of the Constitutional Court may serve as grounds for re-examining a case in connection with newly discovered circumstances. Not every judgment of the Constitutional Court will result in re-examination due to newly discovered circumstances, but only ones to which a retroactive effect has been given and only if the retroactive effect has been addressed to the particular individual, an identifiable scope of individuals, or to everyone.[36]
As an illustrative example, one could mention the Constitutional Court case no. 2014-06-03 on the compensation limits of compulsory civil liability insurance, which combined several cases concerning the same provision of a regulation of the Cabinet of Ministers. One of the cases that were later combined had been initiated on the basis of a constitutional complaint, while the other ones – on the basis of applications by the Supreme Court. After similar problems were found in several provisions of the contested regulation, retroactive force was only applied to the submitter of the constitutional complaint who was the only one to be able to use the ruling as a newly discovered circumstance which would be grounds for re-opening the proceedings, whereas with regard to other persons the retroactive effect of certain provisions was restricted to court proceedings that had already been initiated (cases not yet adjudicated), and with regard to yet other persons and other provisions of the respective Cabinet regulation no legal grounds for revising the legal relationships was provided, however controversial this may seem to some.
The procedure by which, after a judgment has been adopted by the Constitutional Court, it is possible to use legal remedies against the administrative acts and rulings of general jurisdiction courts or administrative courts that have entered into legal effect in the past depends on the relevant procedural regulation.
A judgment of the Constitutional Court has no direct impact on court rulings and administrative acts that have become legally effective in the past. To protect their rights, individuals must submit an application in accordance with an established procedure.
In civil cases Article 479(5) of the Civil Procedure Law recognises it as newly discovered circumstances and grounds for submitting an application for re-examination of a case in court if the legal provision applied in the adjudication of the civil case has been held incompatible with a provision of a higher legal force. However, for it to be possible to renew the examination of a civil case it is crucial that the legal provision that had been applied in the adjudication of the civil case has been held not only incompatible with a provision of a higher legal force, but also invalid at the time when the provision was applied by the general jurisdiction court’s judgment in a civil case. If the provision is not declared invalid at the time it was applied in the civil case, the respective judgment of the Constitutional Court will not serve as a newly discovered circumstance and a ground for re-examining the civil case. The legal provision which has been declared invalid needs to have been applied in a court decision, that is, there need to be legal consequences based on it directly or indirectly. The moment of applying a legal provision is the moment of pronouncing the court decision.
Like in civil cases, Article 353(5) of the Administrative Procedure Law also recognises it as a newly discovered circumstance and as a ground for considering an application for re-examination of an administrative case in court if the legal provision applied in the adjudication of the administrative case has been held to be incompatible with a provision of a higher legal force. If the provision that has been held incompatible with a provision of a higher legal force was not applied in the adjudication of the case, this non-compliance cannot be recognised as a newly discovered circumstance.[37]
Article 655(2)(4) of the Criminal Procedure Law recognises it as a newly discovered circumstance and a ground for renewal of criminal proceedings if the Constitutional Court has adopted a judgment in which it finds the contested provision applied in the criminal proceedings to be incompatible with the provision of a higher legal force (inter alia, the Constitution) or provides an interpretation of the contested provision which is different from the one used as the basis for the decision in the criminal proceedings that has come into effect.
Article 28923(6) of the Administrative Violations Code of Latvia recognises it as a newly discovered circumstance and a ground for considering an application for re-examination of an administrative violation case in court if a provision applied in the adjudication of an administrative violation case has been held to be incompatible with a provision of a higher legal force. Although the paragraph uses the term “adjudication”, which indicates that the law allows for a renewed examination, in connection with newly discovered circumstances, of an administrative violation case that has been adjudicated in court, it can be concluded from the aim and the system of other provisions[38] that the same regulation applies to administrative violation cases decided by an institution.
Having no direct impact on court rulings and administrative acts, a judgment of the Constitutional Court certainly has even less direct impact on the enforcement of such rulings. To terminate the enforcement of a ruling, the individual first needs to secure the cancellation of such an enforceable ruling.[39]
Another addressee of judgments of the Court is the state administration. An institution can review administrative acts that are not open to challenge where and as provided for by Articles 87–88 of the Administrative Procedure Law.
After the Constitutional Court has adopted a judgment holding the contested provision to be incompatible with a provision of a higher legal force and invalid, an institution is not obliged to review all the administrative acts issued on the basis of the contested provision. According to Article 87 of the Administrative Procedure Law, if an administrative act is no longer open to challenge, the administrative proceedings in an institution can be initiated de novo on the basis of an application. A judgment of the Constitutional Court finding the contested provision to be incompatible with a provision of a higher legal force can serve as an element of change in legal circumstances, as a result of which the institution may either issue the administrative act requested by a private individual, or issue a more favourable administrative act, or recognise as unlawful and cancel a previously issued administrative act.
According to Article 88(1) of the Administrative Procedure Law an institution is only obliged to initiate administrative proceedings de novo in the same case if it is necessary for the execution of a judgment of the Constitutional Court adopted with reference to this case and holding the applicable legal provision to be incompatible with a provision of a higher legal force.
As concerns challengeable administrative acts, a private individual can contest them by filing a respective application.
The society, legal entities and private individuals are also addressees of judgments of the Court.
3.3. Duration of the judgment’s binding nature
Article 32(2) of the Constitutional Court Lawdoes not limit the duration of the binding nature of the interpretation of a legal provision provided in the motives part of the Court’s judgment; this, however, may create a risk of stagnation of the understanding of the legal system and law. Therefore, it is necessary to single out several situations in which the legislator or the implementer of law no longer has to follow the interpretation provided by the Constitutional Court.
First, if the Constitutional Court in its latest judgments has changed its case-law and its opinion on the content of a legal provision. The Constitutional Court is entitled to step back from its previous conclusions if it has arrived at a new one, which is better and more compatible with the legal system. The case-law of the Constitutional Court is not set in stone: it is developing, and it is open to modifications. If the Court modifies its case-law, the Court ought to directly point it out in the judgment.
Second, a judgment of the Constitutional Court does not prohibit the legislator to adopt new laws or to amend the existing ones, thus making the necessary improvements to the whole legal system. The right of the Constitutional Court to invalidate laws does not in any way reduce the democratically legitimised legislator’s competence to issue laws. If a legal provision has been declared to be incompatible with a provision of a higher legal force because of substantial violations of the legislative procedure, the legislator is not prohibited to adopt such a provision anew, taking into account the judgment of the Court. What the legislator cannot do is to adopt anew a legal provision with the same content as has been recently declared by the Constitutional Court to be incompatible with the legal system, since that would be nothing else than failure to execute the Constitutional Court’s judgment and a challenge to the Court’s authority.[40] However, if the legislator has amended the legal provision interpreted in the Court’s judgment or the part of the legal system containing this provision, and the interpretation previously provided by the Court is no longer compatible with such amendments, then stepping back from the respective interpretation is a logical necessity.
Thirdly, over a long period of time, structural and fundamental changes may take place in society’s perception of social relations, values or rights, which may require a different view on a previously provided interpretation of the content of a legal provision (even if it has not been amended). Because of the changes in social relations, a legal provision that used to be compatible with the Constitution may cease to be so, and vice versa – a provision that was once incompatible with the Constitution may nevertheless be justified (although such cases are rarer).
It is often that the Constitutional Court itself that points to the necessity of revising the content of a legal provision or to the fact that the content of a legal provision may after some time come into conflict with the Constitution.
In case no 2011-17-03, the Court held that Articles 3 and 4 of the Cabinet Regulation no. 312 of 10 May 2005 “Regulations regarding the amount of levy on blank media and the equipment used for reproduction, and the procedures for collection, repayment, distribution and payment thereof” did not comply with Article 113 of the Constitution and would become invalid as from 1 November 2012 if the Cabinet of Ministers would fail to revise the list of blank media and equipment based on the changes related to technological development and in accordance with the authorization established in Article 34 of the Copyright Law.[41]
Stepping back from the interpretation of a provision provided in a judgment of the Court cannot happen in an arbitrary manner, but only in accordance with the established procedure, that is, when the Court is given a possibility to express its new opinion in connection with a new application. In reviewing the compliance of a legal provision, the Court must always check the provision not only against its own previous conclusions, but also against provisions of a higher legal force, including the Constitution. The Court’s previous conclusions can be used only as an auxiliary source of law allowing to reinforce the persuasiveness and stability of its arguments.
[1] Neimanis J. Ievads tiesībās [An Introduction to Law]. Rīga: Aut.izd., 2004, p. 61, para. 160
[2] See, e.g., the judgment of the Constitutional Court of 24 November 2010 in case no 2010-08-01.
[3] Judgment of the Constitutional Court of 22 November 2011 in case no. 2011-04-01, resolutive part, para. 1.
[4] Judgment of the Constitutional Court of 12 June 2002 in case no. 2001-15-03, the motives part, para. 1.
[5] See also book section Dispozitivitātes princips [Principle that the parties delimit the subject-matter of the proceedings]
[6] Judgment of the Constitutional Court of 3 April 2008 in case no. 2007-23-01.
[7] Judgment of the Constitutional Court judgment of 23 September 2008 in case no. 2008–01–03.
[8] Judgment of the Constitutional Court of 9 May 2008 in case no. 2007-24-01.
[9] Judgment of the Constitutional Court of 23 April 2009 in case no. 2008-42-01.
[10] See, for example, the judgment of the Constitutional Court of 4 January 2005 in case no. 2004-16-01 or the judgment of 29 June 2018 in case no. 2017-25-01.
[11] Judgment of the Constitutional Court of 6 February 2006 in case no. 2005-17-01, resolutive part, para. 2.
[12] Judgment of the Constitutional Court of 29 June 2018 in case no. 2017-25-01 and the separate opinion of the judge of the Constitutional Court J. Neimanis of 12 July 2018 in case no. 2017-25-01.
[13] See, for example, the decision of the Constitutional Court on terminating the proceedings of 13 December 2011 in case no. 2011-15-01.
[14] Judgment of the Constitutional Court of 10 May 2013 in case no. 2012-16-01, para. 31.5 and the case-law mentioned therein.
[15] See, for example, the judgment of the Constitutional Court of 26 April 2018 in case no. 2017-18-01, the judgment of 27 June 2016 in case no. 2015-22-01.
[16] See the separate opinion of the judge of the Constitutional Court A. Laviņš of 15 March 2016 in case no. 2015-11-03.
[17] See, for example, the following judgments of the Constitutional Court: of 12 April 2018 in case no. 2017-17-01, of 15 May 2018 in case no. 2017-15-01, of 24 November 2017 in case no. 2017-07-01, of 26 October 2017 in case no. 2016-31-01, of 10 February 2017 in case no. 2016-06-01, of 29 April 2016 in case no. 2015-19-01, of 16 June 2016 in case no. 2015-18-01, of 12 May 2016 in case no. 2015-14-0103.
[18] See, for example, the judgment of the Constitutional Court of 23 May 2017 in case no. 2016-13-01, para. 16.
[19] See, for example, the judgment of the Constitutional Court of 19 December 2017 in case no. 2017-02-03, para. 22, or the judgment of 18 May 2017 in case no. 2016-12-01, para. 15.3.
[20] See, for example, the judgment of the Constitutional Court of 11 April 2018 in case no. 2017-12-01, para. 23, or the judgment of 15 June 2017 in case no. 2016-11-01, para. 22.
[21] See, for example, the following judgments of the Constitutional Court: of 6 March 2019 in case no. 2018-11-01, para. 19, of 21 February 2018 in case no. 2017-11-03, para. 18, of 29 June 2017 in case no. 2016-23-03, para. 18, of 12 February 2016 in case no. 2015-13-03, para. 17.
[22] Branta A. Ultra vires principa izpratne un tā piemērošana Latvijas Republikas Satversmes tiesas spriedumos [Understanding of the ultra vires principle and its application in the judgments of the Constitutional Court of the Republic of Latvia]. In: Ultra vires doktrīna konstitucionālo tiesu praksē. Lietas ierosināšana Satversmes tiesā. Satversmes tiesas 2007.gada konferences materiālu krājums [The ultra vires doctrine in the practice of constitutional courts. Initiating a case in the Constitutional Court of Latvia. A collection of materials of the 2007 conference held by the Constitutional Court of Latvia]. Rīga: Tiesu namu aģentūra, 2008, pp. 81–83.
[23] Judgment of the Constitutional Court of 22 October 2002 in case no. 2002-04-03, the motives, para. 3.
[24] Judgment of the Constitutional Court of 23 September 2008 in case no. 2008-01-03, para. 20; judgment of 27 June 2013 in case no. 2012-22-0103, para. 19.
[25] Judgment of the Constitutional Court of 5 May 2011 in case no. 2010-57-03, para. 16.
[26] See the judgment of the Constitutional Court of 16 April 2015 in case no. 2014-13-01, para. 22, the judgment of 29 April 2016 in case no. 2015-19-01, para. 17 and the case-law cited therein.
[27] See the judgment of the Constitutional Court of 19 December 2017 in case no. 2017-02-03, para. 22 and the case-law cited therein.
[28] See, for example, the judgment of the Constitutional Court of 5 March 2019 in case no. 2018-08-03, para. 15.
[29] See, for example, the judgment of the Constitutional Court of 16 April 2015 in case no 2014-13-01, para. 23, and the judgment of 29 December 2014 in case no. 2014-06-03, para. 25.
[30] Judgment of the Constitutional Court of 6 June 2018 in case no. 2017-21-01, para. 20.2.
[31] Judgment of the Constitutional Court of 24 November 2017 in case no. 2017-07-01, para. 20.
[32] Judgment of the Constitutional Court of 6 December 2012 in case no. 2012-01-01, para. 18.
[33] Judgment of the Constitutional Court of 16 December 2005 in case no. 2005-12-0103, para. 25; judgment of 4 January 2007 in case no. 2006-13-0103, para. 13; judgment of 6 July 2009 in case no. 2008-38-03, para. 15; judgment of 30 March 2010 in case no 2009-85-01, para. 22.
[34] Pastars E. Satversmes tiesas sprieduma nolēmumu daļas izpratne un piemērošanas problēmas [Understanding and the application problems of the resolutive part of a judgment of the Constitutional]. Jurista vārds, 16 February 2016, no. 7.
[35] Cf. Section 16(4) of the law On the Judiciary [Par tiesu varu].
[36] E. Pastars mentions case no. 2014-06-03 in which the Constitutional Court delivered a very nuanced resolutive part concerning the temporal effect of the invalidity of the contested legal provision and its effect with regard to individuals. See Pastars E. Satversmes tiesas sprieduma nolēmumu daļas izpratne un piemērošanas problēmas [Understanding and application problems of the resolutive part of a judgment of the Constitutional Cour]. Jurista vārds, 16 February 2016, no. 7, as well as the judgment of the Constitutional Court of 29 December 2014 in case no. 2014-06-03, para. 25.
[37] Decision of the Department of Administrative Cases of the Supreme Court of 19 July 2005 in case no. SJA-10 // Jurista vārds, 6 December 2005, no. 46.
[38] See cf. Article 28924(1)(1) of the Administrative Violations Code pf Latvia [Latvijas Administratīvo pārkāpumu kodekss].
[39] See Article 563(1)(5) of the Civil Procedure Law [Civilprocesa likums].
[40] Cf. also Pastars E. Satversmes tiesas sprieduma nolēmumu daļas izpratne un piemērošanas problēmas [Understanding and application problems of the resolutive part of the Constitutional Court judgment]. Jurista vārds, 16 February 2016, no. 7
[41] Judgment of the Constitutional Court of 2 May 2012 in case no. 2011-17-03.