Address by President of the Constitutional Court Irēna Kucina at the international conference “The Role of Constitutional Courts in Ensuring the Resilience of Common European Values in Face of Contemporary Challenges”
Esteemed Madam Minister for Justice,
Honourable Acting President of the Constitutional Court of Ukraine,
Dear colleagues, judges, professors, implementors and participants of the project of the European Union and the Council of Europe “Support to Development of the Constitutional Justice in Ukraine,
I warmly welcome you at the international conference “The Role of Constitutional Courts in Ensuring the Resilience of Common European Values in Face of Contemporary Challenges”.
A day of mourning has been declared in Kyiv today, commemorating the civilian victims of yet another deadly strike by the Russian occupants. Our thoughts are with the immediate families of those killed and injured and our Ukrainian colleagues. Let us commemorate the victims with a moment of silence.
I
Dear colleagues,
The multilateral dialogue perfectly reveals the legal issues that currently are on our agenda. The range of challenges is impressive.
Democracy is the main European common value, with the rule of law as its backbone. Today, perhaps the optimism with which the societies of our States view is not diminishing day by day but it is certainly fading. One might say – there is the feeling that democracy has lost its future. We all have serious concerns about our countries, society’s resilience and the prospects of democracy. The history of collapse of democracy in the majority of European states during the inter-war period teaches us that democracy cannot be considered as being self-evident, it is fragile. History and the actual facts of today prove that each generation must reinforce those values on which democracy is grounded, this includes courts.
II
- Today we are witnessing attacks on democracy both from the outside and the inside. At this very moment, democratic Ukraine is resisting the military attack by autocratic, imperialistic Russia. The majority of democratic states continue supporting Ukraine. Unfortunately, not all of them, thus casting doubts on the fundamental values of democracy and legitimising the waging of aggressive war in a sovereign state.
- However, undemocratic regimes seek not merely a military victory – they want also an intellectual and moral victory. They want the world to believe that democracy is weak, that autocracy prevails. Various instruments, alongside populism, undermining the State’s authority and facilitating distrust in its institutions, are used as weapons in the hybrid war targeting democratic countries. Reinforcement of the narrative about the weakness of democracy and the rule of law or their inability to defend themselves must not be permitted.
- Likewise, the use of new information technologies to manipulate public opinion is a new but vicious threat to democracy, turning not into an atypical case but into our reality. The enemies of democracy have found the most vulnerable part of democracy. It is the public forum – the place where the public opinion forms.
New infrastructures are created – platforms that subject the formation of the political opinion of citizens and, thus, also that of states, to a significant risk of targeted and even covert manipulations. This facilitates swift spread of disinformation, creating “fake realities” with emotionally charged content to increase user retention, undermining the democratic discourse.
III
Until now, states governed by the rule of law have created legal mechanisms to protect democracy – national, supranational and international courts, the Venice Commission, and others. Currently, they are expanding the use of legal remedies, responding to new threats to democracy. The consequences of international political events demand from the courts the ability to understand and find their bearings in the political environment, assessing the impact of particular political processes upon the existence of democratic values. The constitutional courts are able to resolve legally any political issue.
Dear all,
The dynamic development of democracy pertains also to the principle of self-defending democracy, which has functioned well until now. National constitutional courts and the European Court of Human Rights recognise this principle and fill it with content. In view of the new threats to democracy, this principle of self-defending democracy must be constantly re-examined and developed further.
Thus, for example, in the case law of the Latvian Constitutional Court, the judgement, delivered this year, in the case regarding paid pre-election campaigns only in the official language must be highlighted. To defend its democratic order and guarantee the stability of its democratic system, the State may take special self-defence measures. It is essential that during the period of paid pre-election campaign the possibility to spread messages that support Russia’s aggressive politics are restricted, and they have negative impact upon those inhabitants who would want to see Latvia’s political development towards Russia.
A similar approach was taken in the case of the previous year regarding the requirement set for the citizens of Russia to be proficient in the official language in order to receive repeatedly the residence permit in Latvia. In this case, the Constitutional Court underscored that, currently, the citizenship of Russia was a factor that was linked to a threat to the national security of Latvia and, thus, individual screening of Russian citizens, residing in Latvia, had to be conducted as soon as possible. Guaranteeing the national security is one of the State’s basic obligations, in particular, today when Russia is waging war in Ukraine.
The Court takes into account that Russia, with its provocative and aggressive military and hybrid activities, has had lasting impact on the geopolitical situation in the Baltic Sea Region. National security is threatened by the operations seeking informative impact actively launched by Russia, using also propaganda and disinformation.
These and many other examples from case law, which we are going to discuss today, specify, with increasing comprehensiveness, the content of the principle of self-defending democracy.
IV
The international conference of today serves as the proof that it is international cooperation and values-based solidarity that strengthen the ability to take a common stand against threats. The conference is an important forum where the constitutional courts assess the self-defence measures taken by the states to defend their democratic order in circumstances of geopolitical tension, maintaining also the balance with human rights.
A person’s rights and freedoms are most effectively exercised in conditions of democracy. However, it may not be turned against the independence of the State and the principles of a State governed by the rule of law. Essentially, these findings apply to safeguarding the values that are significant for the existence of the State because the courts do not only protect a person’s rights, lawful interests and fundamental freedoms, currently we also have an important role in stabilising the democratic order and the national security situation in the long-term.
Undoubtedly, often emergency situations call for stricter limitations of human rights. Namely, the stronger the threat to democracy the more far-reaching the measures for protecting it may be. However, where is the limit that may not be crossed, even in situations like this? How to control effectively, whether the restrictions on fundamental rights, introduced to deal with an emergency situation, are still necessary? Namely, how to prevent the turning of such emergency measures into the normal when they are no longer necessary? Whether, in reviewing the constitutionality of a restriction on fundamental rights, the geopolitical context should be taken into account even when the existence of the nation is not yet under threat?
V
Colleagues, in conclusion, I would like to note:
Latvia is a stable democracy. We appreciate very highly our independence and the rule of law. Our society was aware of the new threat in due time because part of our people had been for a long time subject to Russia’s influence, which was obvious in our daily life, creating certain immunity and resistance. As I mentioned, also the Constitutional Court has developed effective approaches to the protection of Latvia’s democracy.
Particularly now, during these harsh times, we all must defend and strengthen our democracy, our way of life in freedom and responsibility. The constitutions of European states protect statehood and our common values, but not on their own – we all can do it and we are doing it because together we are stronger than apart!