Address by the judge of the Constitutional Court Daiga Rezevska to the representatives of the diplomatic missions in Latvia
Professor, Dr. iur. Daiga Rezevska
Judge of the Constitutional Court of the Republic of Latvia
Riga 8 May 2019
The President just gave you an insight on what are the aims and missions of our institution. My task is to show you the Court in action. You are a learned audience; and this is why I dare to borrow your valuable attention to discover what lies behind the text of a judgment.
We all agree that any judgment should speak on its own. Therefore, my wish is merely to show you the methodology and the path which takes our Court to come to its judgments. For this purpose, I shall address three different topics, which, I believe, show the variety and complexity of the cases we hear.
First, I will address the question of how we deal with our past in a case of an individual bared from her rights to be elected because of her political activities during the time when the independence was being restored; then I will develop on a present day challenge: how to integrate the EU law in our national bill of fundamental rights provided in the Constitution, and finally – future – I wish to show you how the Court guarantees that also such fundamental rights as rights to health and benevolent environment are not just theoretical, but practical and effective.
I Dealing with the past – Ždanoka case
It is only natural that I start with a case reflecting the State of Latvian democracy today. Every coin has two sides. What should be the guarantees for an individual in case of a provision of law precluding her to be elected? Where should the Court stop the legislator, when it enacts a popular will restricting someone’s political rights?
The individual in question was an activist in the Latvian Communist party. She didn’t and couldn’t give orders to shoot civilians or to commit other crimes against the civilian population, rather she would organise people to demonstrations, press and election campaigns etc. –her activities were political. Therefore, the question was whether the legislator could restrict in a significant way the political activity of a person due to her political opinions and activities. Let’s note that her political activities are not and may not be completely restricted – she retains her rights to free speech, and peaceful meetings, street processions, and pickets. The restriction in this case concerns only the right to be elected.
For the applicant the Latvian law seemed to be on her side. Indeed, according to the Parliament Election Law: “Any citizen of Latvia, who enjoys full rights of citizenship and, who is more than twenty one years of age on the first day of elections may be elected to the Parliament.” Our Constitution ads in this respect: “All human beings in Latvia shall be equal before the law and the courts. Human rights shall be realised without discrimination of any kind.”
Therefore, the applicant challenged the legal provision according to which Persons who were active in the Communist Party of the Soviet Union after 13 January 1991 are not eligible to be listed for the election to Parliament.
Before submitting this application, the applicant, more than decade ago, had already turned to our Court and later to the European Court of Human Rights against this same provision. The Strasbourg Court finally judged in favour of Latvia, however under certain conditions which were verified in this case.
In order to reach a decision, the Court first acknowledged that the rule in question is a restriction of the fundamental right to be elected. Further it made an appreciation whether this restriction may be justified. To carry out this appreciation the Court followed its methodology and verified whether the restriction 1) was established by virtue of law, 2) did it pursue a legitimate aim, and 3) was it proportionate to it.
I wish to elaborate more specifically on the legitimate aim and proportionality in this case.
The notion of self-defending (militant) democracy was the argued legitimate aim behind the contested rule. In other words, the aim of this rule – preventing persons active in the Communist party from being elected – was to protect the democratic state, national security and territorial unity. It is directed against the persons who by their activities have tried to undermine the democratic Rule of Law based state. Besides this rule is not of a punitive character.
The self-defending democracy is a general principle of law, it does not textually appear in the constitution. The court therefore had to determine the scope of this principle.
The Court found the principle of self-defending democracy being compatible with the European Convention on Human Rights, namely with the justifications such as the state independence, democratic rule and national security. However, the Court, as in the first case, indicated to the Parliament that this restrictive rule may not remain in force forever. Its’ validity should be reviewed periodically. Therefore, the Court verified whether the circumstances justifying its adoption more than 20 years ago, in the first years of the restored independence, were still pertinent in the year 2018.
In the eyes of the Court the actual state of development of the democracy in Latvia is to be seen as a transition process from the totalitarian regime and the occupation. The transition has not yet come to end in Latvia, as in other comparable countries it can take a long time. Especially in a country where the democratic traditions are not yet entirely strong, it may be necessary to prevent such persons as the applicant to carry out their activities against the independence of Latvia and the principles of its democratic Rule of Law based state; even when these activities do not amount to such a level of threat that they should be qualified under the Criminal law as crimes against the state.
Consequently, the Court agreed that this restriction should be maintained in force “for some more time”, however it should be reviewed periodically whether it is necessary and justified to maintain it. Which brings us to the question of proportionality.
The rule is proportionate if it is suited to reach the legitimate aim and if there are no less restrictive measures to attain the same result. And the Court observed that the Legislator had acted within its discretionary power in the matter of organizing elections, when it decided that a restriction of this kind was necessary.
Before reaching its conclusion, the Court gave three reservations of interpretation. First, the rule in question should not be interpreted against the pluralism of thought in Latvia or against a specific person’s political opinions, rather it is aimed to counter activities that are still threatening independence of Latvia and the principles of democratic Rule of Law based state.
Second, the election authority has to verify not only, whether a person’s active involvement in the organisations referred to in the contested norm had been established by a court’s judgement, but also, whether the person with his activities continue to pose a threat to the independence of Latvia and the principles of a democratic state governed by the Rule of Law (so called – interpretation of the contested norm in its contemporary meaning). The decision of the election authority may be further challenged in a court of law.
Third, the legislator has the obligation to review the restriction included in the contested norm and to decide on amendments to the Parliament Election Law if established that the political situation is changing and the foreign policy threats are decreasing.
II EU law in the Constitutional court – a present day challenge
In the second part I wish to address the question of the EU law as an entire part of the Latvian law. The Constitutional court is not an exception, where appropriate, it has to guarantee that the protections offered in the EU law are not theoretical, but effective.
It is no secret, that the Constitutional court only reviews the constitutionality of the rules in a dispute, in other words it reviews whether a lower legal force rule is not contrary to a higher legal force rule, e.g. the fundamental rights of a person. When deciding a case with an EU element, the Court will look whether it is possible to read the rules of constitutional importance in such a way that they include the protections offered in the EU law. Since the law of the European Union is binding upon Latvia, it serves as indirect norm of reference to establish the scope of the fundamental rights provided in the Latvian bill of rights (Chapter 8 of the Constitution).
This approach has many advantages. First of all, it allows to disseminate the European Union law and the European Convention on Human Rights in the Latvian legal order. Second, the force of the res judicata pertaining to Constitutional court judgments confers a high protection against the legislator. Since the annulment implies invalidity ex tunc and erga omnes, it means that the annulled disposition may no longer be applied without a need for a formal abrogation of the rule by the Parliament.
The case where the Constitutional Court had to decide whether establishing a different rate of real estate tax in Riga for foreigners was compatible with the principle of equality as it is provided both in the Constitution and EU Treaty [Treaty on the Functioning of the European Union] is a good illustration of the abovementioned.
The Court interpreted the Constitution in compliance with the obligations that Latvia had assumed by becoming a Member State of the European Union. Namely that there should not be any discrimination on the basis of nationality. Indeed, the European Union law allows a differential treatment because of citizenship only if it is justified by objective considerations unrelated to the citizenship of persons. This is how the Constitutional Court for the first time recognised that citizenship was one of the criteria included also in the scope of the principle of equality enshrined in the Constitution.
A similar reasoning was followed in a case concerning refund of VAT – the only tax which for now falls exclusively under the EU competencies. The Constitutional court ruled that the Rights to property enshrined in the Constitution require that a tax payer receiving a belated refund of tax is entitled to receive a just interest payment from the State. In order to reach this solution, the Court took into account the principle of VAT neutrality developed in the case law of the Court of Justice of the European Union. As we can easily see in these two situations the rules of Constitutional rank where interpreted in a way that they include the protections offered in the EU law.
III Looking into the future: the rights to health and the rights to live in a benevolent environment as a part of Human dignity
Finally, I will shortly expose on the implications for the decision makers arising from such fundamental rights as the rights to health and benevolent environment.
The case concerned the neighbours living in a vicinity of a moto racing tracks complaining about the noise; the levels of noise in question where set by Government regulations.
In the first time, the racing tracks were closed since the noise caused by them exceeded the levels allowed. But approximately a year later the ministers simply decided to rise the allowed noise thresholds despite the contrary recommendations issued by the World Health Organisation.
Following to that the applicants put forward their right to live in a benevolent environment and the fact that the noise from the racing is leaving negative consequences on their health. Indeed, if the noise should be assessed as a kind of pollution, which might have harmful influence upon human health, the State, allegedly, has the obligation to ensure that the level of noise does not exceed the threshold above which it could become harmful.
Court’s decision in this case is far reaching, I believe. The Court did not only recognise that the situation in this case enters under the scope of the rights to health and benevolent environment, and the State’s duty to ensure that any person enjoys them, it went as far as to decide that in a democratic state governed by the Rule of Law any legal norm has to be consistent with the human dignity.
It means that everyone has the right to live in an environment, where he or she can function and develop in full, in conformity with human dignity. Whereas in accordance with the precautionary principle, the State has the obligation to do everything possible to prevent effectively harm to human health or, to the extent possible, decrease it before it has occurred.
The Constitutional Court thus found that the noise levels allowed by the contested regulations was not only preventing the applicants to enjoy their rights to health and benevolent environment but also these rights have to be seen as an expression of human dignity. In other words, a clear notice was given to any attempt to lower the environmental standards in the future.
I’m grateful for your gentle attention.