Report by President of the Constitutional Court Aldis Laviņš on the development of the constitutional law in Latvia in 2023
Esteemed Mr President,
Esteemed President of the Court of Justice of the European Union,
Excellences,
Ladies and gentlemen,
Dear participants on-site and those following us remotely,
This is the sixth time when the new judicial year of the Constitutional Court is opened at a solemn hearing, at which the Constitutional Court reports to every person in Latvia on the achievements of the previous year and the work to be done this year.
A year of productive work has passed, during which we have reviewed cases that are important for the Latvian society, as well as implemented a dynamic dialogue within the Latvian and international legal space. Drawing inspiration from the brilliant vision of the Song and Dance Celebration that was held last year, we have moved “together upwards”, to increase the standard of protection for every person’s fundamental rights, as well as to reinforce the sense of security, satisfaction, affiliation, and social peace.
This year’s report on the development of constitutional law in Latvia continues the recently launched series of events, dedicated to the twentieth anniversary since Latvia became a Member State of the community of values and rights – the European Union.
Visionaries and founders of the European Union, among others, Robert Schuman and Alcide De Gasperi, set their hopes upon such future Court of Justice of the European Union, which would, on the global and continental scale, serve as a beacon of justice, consolidating the foundations of legally united and prosperous Europe. How has the Constitutional Court fit into this concept, already realised, since 2004 and what kind of dynamic changes has it experienced over the years?
Just less than seven years ago the Constitutional Court adopted its first decision on referring a question to the Court of Justice of the European Union, requesting a preliminary ruling in a case regarding inheriting farmers’ retirement support, but now the application of the European Union law and referring questions for a preliminary ruling to the Court of Justice of the European Union has become the daily routine for the Constitutional Court. Currently, we are expecting preliminary rulings on questions asked in three cases related to the regulation on confiscation of illegally obtained assets.
Membership in the European Union means unity in diversity. Thus, the national constitutional identities and the shared European values supplement each other rather than divide and allow reaching a balance in applying both the national law and the European Union, as well as international law to protect democracy and the rule of law. Responding to the Constitutional Court’s request for a preliminary ruling in a case regarding restrictions imposed upon private institutions of higher education with respect to implementing study programmes in foreign languages, the Court of Justice of the European Union concluded that that protection of the official language was an aim that could justify restrictions on the freedom to conduct a business and the freedom of establishment.
Consequently, the Constitutional Court recognised that society’s benefit from the restriction on a merchant’s fundamental rights outweighed the adverse consequences caused to the private institutions of higher education because their right to engage in commercial activity, i.e., implement study programmes in foreign languages that were not the official languages of the European Union, was being restricted. Protection of democracy and other constitutional values that constitute the inviolable core of the Constitution guarantees the existence of the nation and, thus, also shapes the constitutional identity of this state. The aforementioned cases of the Constitutional Court can be seen as a clear example showing that the constitutional identity of a state may coexist in harmony with the requirements following from the legal regulation of the European Union.
I can say that the Court of Justice of the European Union is like a beacon or one of the reference points in our multilateral dialogue and has facilitated, to a great extent, our participation, with the cases that we review, in shaping the legal thought of entire Europe.
Last year, Judges of the Constitutional Court had several meetings with Judges of the Court of Justice of the European Union to discuss both relevant case-lawand problems in the effective application of the European Union law, as well as the organisation of the courts’ work and research methods. Exactly within a month, here in Latvia, together with our colleagues from the Court of Justice of the European Union and the European Court of Human Rights, we shall discuss the alignment of the constitutional identities of the Member States with the common European values, as well as the European consensus, forming the European public order.
At international conferences, the Constitutional Court has proposed criteria for recognising a particular national value as being a part of the state’s constitutional identity. We feel satisfied that Rīga was the place where the cycle of conferences “United in Diversity”, organised by the Court of Justice of the European Union and national courts, which already has become customary, began. Also the second conference, which was held in the Netherlands, informally was called Rīga Two.
Colleagues, new ideas for development, reinforcement of the rule of law, European unity and cohesion are born only in cooperation. I would like to thank everyone who developed this path of dialogue and let us wish to our successors the courage and enthusiasm not to stop, to define new ambitions and move forward, to make our common home – Europe – even better.
This is the purpose for the participation in this solemn hearing on the occasion of opening the judicial year of our guest of honour and close partner of cooperation – Mr Koen Lenaerts.
Distinguished guests,
To continue, I shall focus on the quantitative results of the work done in 2023 in legal proceedings, as well as the findings expressed in the Constitutional Court’s rulings.
In 2023, the Court reviewed 22 cases. Judgements were delivered in 17 cases, whereas decisions on terminating legal proceedings were adopted in five cases. The constitutionality of 49 legal provisions was examined in the judgements. 23 legal provisions were recognised as being compatible with the Constitution and 26 legal provisions were deemed to be unconstitutional. Most often, the contested provisions were recognised as being incompatible with Article 1 and Article 92 of the Constitution.
In 2023, 47 cases in total were initiated at the Constitutional Court. The majority of them, 40, were initiated on the basis of constitutional complaints, submitted by private persons. Six cases were initiated on the basis of applications coming from courts – five on the basis of applications by administrative courts and one – on the basis of an application by a court of general jurisdiction. Similarly to 2022, the trend that the majority of applications, submitted to the Court, and the initiated cases pertain to various issues of criminal procedure continued in 2023. Likewise, numerous cases have been initiated with respect to the constitutionality of the provision in the Education Law, which determines the acquisition of general education in the official language.
As regards some aspects of the content of the Court’s work, in 2023, the Constitutional Court, in its case law, has defined several valuable findings that reinforce the rule of law and are to be taken into account in the development of law. I would like to highlight some of them.
Firstly, every human being is a value for Latvia, and we have underscored it also in the previous year, establishing that every needy person still has no access to such support that would satisfy their basic needs and that the procedure for defining the threshold of minimum income, alongside the measures of the social security system, does not ensure to everyone the possibility to live a life that is worthy of human dignity. It is the legislator’s duty to introduce and constantly improve such a system of social support that ensures provision of transparent, effective and targeted support. I shall emphasise that the existence of socially excluded persons, who do not feel the state’s support and, thus, do not feel affiliated to this state or even lose this sense of belonging, may even cause national security risks.
Secondly, in these complicated times, we have to safeguard democracy each and every day, therefore, I see as significant those findings, which the Constitutional Court has reached in the case regarding restrictions, which prohibited a deputy, who was not vaccinated against Covid-19, from participating fully in the parliamentary work. The Court highlighted the special role of the people’s representative – a member of the Saeima – in Latvia as a parliamentary democracy. Exercise of every deputy’s rights facilitates effective functioning of democracy – legitimacy of the legislator and pluralism of opinion in the composition of the parliament, in accordance with the will, expressed by the people. Also such an opinion, which is expressed by only one or few deputies, is essential in the Saeima’s work, because it is important to adopt carefully considered decisions, which can be achieved only if every deputy has the right to express their opinion. A deputy can represent the people in full only if they are ensured the possibility to exercise those rights that are of decisive importance in the parliamentary work.
Thirdly, I consider as being important the judgement with respect to the regulation, pursuant to which the lower wage rate of a pre-school education teacher differed from the rates set for teachers employed on the level of primary and secondary education. This was the first case, in which the Constitutional Court specified the principle of equal remuneration for work of equal value. The Court recognised that the said principle was applicable not only to identical or similar work but also to work of equal value. Having assessed the skills that the teachers’ work required, the personal contribution and responsibility, as well as the conditions of work, the Court concluded that these teachers were doing equivalent work. The Constitutional Court concluded that the differential treatment, established vis-à-vis pre-school education teachers lacked a legitimate aim because the stability of the state and municipal budgets per se could not be used to justify differential treatment.
Fourthly, in the case regarding reform to the management of Rīga and Ventspils ports, the Constitutional Court recognised that the development aims, set for the major Latvian ports, were subordinated to the general benefit of the state and that the legislator enjoyed discretion in choosing the most effective model for port management. The fact that, as the result of agreements, concluded by the municipality, a situation has developed historically that constructions owned by the municipality and private persons are located on the land within the territory of the port, does not impact the aims for which the territory of the port is established. Namely, only such property that is necessary for performing the statutory functions of a port should be transferred into the possession of the port authority.
Fifth, issues related both to the right to the freedom of movement and the right to live in a benevolent environment are important for every inhabitant of Latvia. Interests clash if a person wants, using a vehicle that causes harm to environment, enter a territory, which has been granted a special status with the purpose of environment protection. The Constitutional Court recognised: even if the legislator has authorised local governments to establish a zone of special regime within their territory and, accordingly, also an entrance fee, the rate of the respective fee should be aligned with the society’s ability to pay this fee. Otherwise, only a small, prosperous part of society would have access to the zone of special regime.
Sixth, in the case regarding the calculation of the term for depriving of citizenship where a person had acted in bad faith to acquire citizenship, the Constitutional Court expanded its case law with respect to the institution of citizenship. The Constitutional Court examined loyalty and integrity, following from it, as one of the main elements of citizenship, as well as the state’s discretion to decide on depriving a person of citizenship due to them acting in bad faith at the moment of acquiring or restoring citizenship.
Seventh, regretfully, Russia’s aggression in Ukraine continued also in 2023. In such conditions, constitutional courts also safeguard national security by the force of law. Currently, the geopolitical context has gained not only political but also legal significance, inter alia, in cases heard by the Constitutional Court. For example, in the case regarding provisions that imposed the obligation on municipalities to dismantle objects that glorified the Soviet regime, the Constitutional Court specified the principle of the continuity of the Latvian State and its importance in restoring historical justice and the statehood of the Republic of Latvia, established in 1918. In this case, the Constitutional Court recognised that the reason for adopting the contested provisions had been increasingly more active use of the objects that glorified the Soviet regime for propaganda purposes and increasingly more serious threat to Latvia’s statehood that had to be eliminated. The Constitutional Court underscored that the elimination of the consequences of occupation and fostering of societal cohesion required cooperation between all levels of the state power, aimed at reaching one aim and solidarity, which would comprise both the central power and local governments.
Likewise, also in the case regarding the prohibition for a soldier in professional military service to be a member of a political party, the Constitutional Court underscored that, in the current geopolitical context, the need for politically neutral National Armed Forces was particularly pronounced. Political neutrality of the National Armed Forces facilitates effective performance of the national defence functions and, thus, protection of the democratic state order and public security is ensured.
I would like to underscore that, in performing the main task of the Constitutional Court – to administer justice, in the court hearings, held with the participation of the parties in the cases that were important for the Latvian society, an unprecedent number of working days have been spent, meticulously questioning participants in the case and the summoned persons. As the result, also including the aim to explain the delivered rulings, the dialogue with society has acquired new outlines because the Constitutional Court held press conferences more frequently, both following cases that were reviewed in public proceedings and such rulings that had been adopted in written procedure.
Challenges of the coming year
The cases that were initiated in 2023 also point to the trends in the development of constitutional law and the relevant issues in judicature that we might encounter this year. Several matters, in which some fundamental rights and lawful interests clash, will be examined by the Constitutional Court. For example:
1. The case regarding the provisions that envisage expiration of the term of permanent residence permits, issued to citizens of the Russian Federation, and pre-conditions for obtaining a repeated permit.
2. In cases regarding the transition to studies in the official language both in private and state institutions of education, the protection of the national constitutional identity, on the one hand, and, on the other hand, the rights of ethnic minorities in the process of education will be examined.
3. In the case regarding decreasing the diameter of the final felling, which allows to fell some species of trees sooner, as well as in the case regarding the prohibition of breeding fur animals for the sole purpose of obtaining fur, the interests of commercial activities and economic development will compete with the interests of environment protection and a person’s right to live in a benevolent environment.
4. Issues pertaining to the development of the urban environment will be examined in the cases regarding the restrictions on the provision of gambling services within the administrative territory of Rīga.
5. An interesting matter will be examined in the case regarding the application of the personal income tax to the winnings in lotteries and gambling, understanding as the winning the entire amount that is disbursed to the winner by the organiser of gambling and lottery, without taking into account the gambler’s initial payments, made in order to participate in the particular game.
6. The case regarding the procedure that envisages that six-year-old children may be enrolled in the municipal schools of Riga only if vacancies are available will be of interest to parents with pre-school age children.
7. An obvious household matter might be important for every person in Latvia, i.e., an apartment owner’s obligation to pay the difference in water consumption if the information on the water reading has not been submitted.
Aivars Endziņš, a man of great importance for the Constitutional Court, the first President of the Court who passed away last year, had a dream – a dream of a court that would serve the man and society in a state governed by the rule of law. In view of the Constitutional Court’s contribution to the development of the Latvian legal system and protection of every person’s fundamental rights, just described, we can be sure that this dream was attained during his lifetime – the Constitutional Court, where we work now, is just like that.
Mr Endziņš’ words “One in the field is not a warrior” aptly describe the values and work ethic of our Court because the aims of the Constitutional Court, in protecting the values of a democratic state governed by the rule of law, can be attained only by working in a united team. I would like to thank from the bottom of my heart the Judges of the Constitutional Court, the strong and united team of the staff members for the achievements of the last year both in legal proceedings and administrative management of the Court, as well as in inter-institutional and international cooperation. Thank you!
On the Constitutional Court’s international cooperation
Last year, the Constitutional Court implemented dynamic international cooperation since, in ensuring protection for the rule of law and security in the conditions of current geopolitical challenges, unity and maintaining supra-national dialogue is of particular importance. There is a number of such legal issues, the solution of which in isolation, within the framework of the national legal system is complicated. From the perspective of the development of the Latvian constitutional law, it is very important for the Constitutional Court’s Judges to be constantly in the centre of development of legal thought and to participate actively in shaping its agenda.
We have to use the possibility to identify proactively various risks related to the threats to democracy and the rule of law, which have materialised in the experience of other states. Let us recall Robert Schuman’s words that Europe of the future will not be built immediately and according to a united plan. It will be shaped by concrete, successive achievements. We can ensure more uniform and effective protection for fundamental rights only if we constantly share our ideas with colleagues from the countries that belong to the circle of Western law and if we learn from each other. This is the only way to build the future of Europe.
The Constitutional Court is a supporter and promoter of cooperation and international dialogue. In 2023, bilateral meetings with the Dutch, Finnish and Lithuanian colleagues were organised. Likewise, the trilateral dialogue and cooperation between the constitutional courts of the Baltic States is invariably important as an essential pre-conditions for reinforcing the sustainability of democracy and the rule of law, as well as for the protection of fundamental rights and human dignity in the region.
The international conference “The Role of the Judiciary in Execution of Judgements of the European Court of Human Rights”, organised by the Constitutional Court and the Supreme Court, dedicated to Latvia’s presidency in the Committee of Ministers of the Council of Europe, was one of the most significant events of the previous year. By this conference, we facilitated the protection of those values, upon which, for more than 70 years now, the European Convention for the Protection of Human Rights and Fundamental Freedoms and the application thereof have been based.
Reinforcing democracy and the rule of law in Ukraine is also a safeguard for the security and the rule of law in entire Europe and Latvia. Last week, the Council of Europe launched the project “Support to the Development of Constitutional Justice in Ukraine”. We feel honoured and satisfied that the Constitutional Court has been chosen as the main partner of cooperation in this project. This credit of trust proves belief in those values that we adhere to in our activities because the support to integrate the Ukrainian legal system into the united European legal space is one of the main priorities in our cooperation.
The Constitutional Court has attested to the importance of the security aspect by its active cooperation in the World Conference on Constitutional Justice, which is a forum of strategic importance for maintaining the legal order and promoting a dialogue between the constitutional courts of the world. For many years now, experts of international law have been drawing attention to the fact that, in determining the order of things, the sheer force of military means starts prevailing in the world, rather than the power and authority of international law. Therefore, in representing the interests of all European constitutional courts, the Constitutional Court submitted to the executive body of this institution a draft resolution, highlighting the need to restore the international legal order.
I believe that the family of the constitutional courts of the world, through its stance, can reinforce the understanding of the international community of the fundamental principles that would foster restoration of the international legal order and would ensure comprehensive, just and enduring peace, as well as would allow making the persons who are responsible for the crimes, committed by the aggressor state, liable.
The harsh reality is that this is the 709th day of the war, thus, almost two years have passed by but the international legal order still has not been restored. Constitutional Courts have immense resources, which could be invested in ensuring peace and supremacy of law in the entire world, however, there are still many national courts that are putting obstacles to it. The protracted war proves that local indifference causes global consequences. It is in our power to achieve that the order of things is determined by law and not by arms.
Our contribution to reinforcing the rule of law in Latvia, looking beyond the legal proceedings before the Constitutional Court
Ladies and gentlemen,
In our dialogue with the main constitutional bodies of the state power, we underscored that all of use – each in its own branch of the state power – served one shared overarching aim – the rule of law – and targeted cooperation, directed at the development of democracy, was in the interests of all constitutional bodies of Latvia.
I express genuine satisfaction regarding the active dialogue between the Constitutional Court and public institutions because this dialogue helps to reinforce the values of a state governed by the rule of law and society’s trust in the state power. Dialogue is essential for the cooperation between state institutions to ensure that the fundamental rights of Latvia’s inhabitants are protected, concretisation of the principle of good legislation, effective course of the legal proceedings before the Constitutional Court and enforcement of its rulings. The dialogue between the Constitutional Court and institutions of judicial power is also a tool for reinforcing the united legal system, as part of it, last year, we met Judges from all Latvian regional courts, as well as from other courts.
Throughout the year, Judges and employees of the Constitutional Court worked on draft amendments to the Constitutional Court Law, to improve the effectiveness of legal proceedings. Likewise, to ensure as high as possible standard for protecting the rights of every member of the Latvian society, the Constitutional Court has drawn attention to the fact that Latvia has not ratified Protocol 16 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, therefore, the Constitutional Court still lacks procedural measures that would allow it, if necessary, to turn to the European Court of Huma Rights in order to receive interpretation of a legal provision, applicable in a complex legal situation. I am of the opinion that review and ratification of this Protocol by the Saeima should become a priority for the state, as it would ensure broader possibilities for protecting the human rights of each inhabitant of Latvia.
I shall focus on the next aspect. Out of 40 instances where, in 2023, cases have been initiated by the Constitutional Court on the basis of constitutional complaints, in the absolute majority of cases, the applications had been signed by representatives – sworn advocates, lawyers or members of executive institutions. Legal aid, paid for by the state, in accordance with the State Ensured Legal Aid Law, had been granted only in one case, to prepare an application requesting initiation of a case. Therefore, it is not a surprise that the public discussionslast year, foregrounded the issue that access to the legal proceedings before the Constitutional Court was costly and this was far from being a proof of proper possibilities to protect the rights of every person in Latvia. To facilitate the access to the legal proceedings before the Constitutional Court for every inhabitant of Latvia and ensure protection of the fundamental rights of more disadvantaged people, we have called upon responsible authorities to review the legal regulation on state ensured legal aid in the legal proceedings before the Constitutional Court, inter alia, revoking a person’s obligation to turn to the Constitutional Court themselves, prior to requesting the aid, as well as granting to the Court Administration the competence to assess, whether a legal provision, which might be incompatible with a superior legal provision, could have infringed upon a person’s rights, defined in the Constitution, and whether legal aid should be ensured to the person in the legal proceedings before the Constitutional Court.
Raising awareness of fundamental rights and the instruments for the protection thereof through explanations regarding the scope and application of the articles of the Constitution, provided by the Court, is the reason why we gradually collect findings with respect to all articles of Chapter VIII of the Constitution. Last year saw the publication of the third edition in the series, launched by the Constitutional Court, i.e., a bookazine on Article 105 of the Constitution. This kind of work also increases every person’s possibilities to defend their fundamental rights.
The Constitutional Court takes as broad a look as possible also to the general development of the national legal system. Currently, the Judicial Council is engaged in discussions on improving the effectiveness of the judicial system. Our proposals regarding more effective court echo the need, highlighted at the Plenary Session of the Supreme Court, to improve the Senate’s competence, as well as to find new possibilities for cooperating with lower-instance courts.
Last year, the Constitutional Court continued also the dialogue with the Latvian society, addressing the most diverse societal groups. During the Museum Night, the Constitutional Court for the second time opened its door to all people of Latvia. I am genuinely glad that the visitors’ assessment, after they had acquainted themselves with the Constitutional Court, was “this is a court of all of us”, that it was seen as being open and ready to hear everybody and was not avoiding conversations. It inspired us, in our annual Conversations about Latvia with representatives from different fields, to take up the issue of how to decrease the gap or “darkness” between the state power and society. Likewise, in supporting disadvantaged children and adolescents, the Constitutional Court’s team participated in the charity marathon “High five!”.
Dear participants,
Looking back at the achievements of such a fulfilling year, we gain affirmation that democracy and the protection of national security is our shared priority. Militant democracy is not a situation but rather an incessant process, which must be constantly monitored and improved, informing about its significance also the future generations, and not solely the generations of lawyers. I wish everyone to appreciate the fact that not weapons and undemocratic means of influence but the Constitution and the power of law define our life.
Let us be vigilant and jointly safeguard the human dignity and fundamental rights of every person, democracy, the rule of law, and our free Latvia!
Thank you.