A case has been initiated based on the application of the State President
The Second Panel of the Constitutional Court has initiated a case “On Compliance of Section 83.2 and Para 12 of the Transitional Provisions of the Public Procurement Law with Article 1 and Article 92 of the Satversme (Constitution) of the Republic of Latvia”.
Article 1 of the Satversme provides that Latvia is an independent democratic republic, whilst Article 91 states, among the rest, that everyone has the right to defend his or her rights and lawful interests in a fair court.
The contested norms provide for the duty to pay security in certain cases when submitting an application to the Procurement Monitoring Bureau [Iepirkumu uzraudzības birojs] (IUB). The amount of the security, as well as the procedures for its payments, reimbursement and relieve from it shall be established by the Cabinet of Ministers. The norm will come into force on September 1 of this year.
The applicant – the President of Latvia Valdis Zatlers – indicates that the contested norms restrict the right of persons to demand examining lawfulness of the use of public and municipal resources, as well as they infringe the principle of separation of powers. The benefit that the State would obtain by establishing payment for examination of applications by the IUB might turn out considerably lesser than the increase of the resources spent. Moreover, prevention of submitting grounded applications regarding breaches committed in a tender procedure would deteriorate business environment, undermine fair competition and trust in lawfulness of functioning of institution.
It has been indicated in the application that the authorization to the Cabinet of Ministers to establish the amount of application security and the procedures for its payment and waiver for the payment have been formulated so broadly that this confers the Cabinet of Ministers an unrestricted freedom of action when deciding on restriction of the fundamental rights of a person. Each substantial restriction of the fundamental rights of a person requires, however, a decision to be made by the Saeima (Parliament) as a legislature elected by the people.
The Saeima was asked to provide, before 28 September 2009, a reply regarding factual circumstances of the case and legal justification thereof. The term of preparation of the case is 26 November 2009.
Linked case: 2009-77-01