Address by the President of the Constitutional Court Ineta Ziemele at the Latvian Embassy to the representatives of the diplomatic missions in Austria
Professor, PhD Ineta Ziemele
President of the Constitutional Court of the Republic of Latvia
Vienna 3 July 2019
Excellences, Ladies and Gentlemen!
Contextual significance of the meeting day
This year we celebrated 99 years since the Constitutional Assembly, the first Parliament of Latvia was elected by its citizens, convened for its first session with a purpose to draft the Constitution.
Latvian Constitution was adopted in 1922 and regained its full applicability upon the restoration of independence of Latvia in 1990-1991. It is one of the oldest Constitutions in Europe. The Constitution has not changed fundamentally in terms of the constitutional order of the state. The only notable addition was the establishment of the Constitutional Court in 1996. Latvia is a parliamentary republic in which the state power is exercised by 7 constitutional organs, i.e., the people, the Parliament, the President, the Government, the Constitutional Court, the judiciary with the Supreme Court at the top, and the State Audit. It is in fact a horizontal and plural constitutional order.
On 4th of May, we celebrated the Restoration of Independence which was 29 years ago. This year we also marked the 15-year anniversary since joining the European Union and NATO.
For Latvia independence and peace are particularly important values. It is therefore that the Constitutional Court with its mandate to ensure the supremacy of Constitutional values such as freedom, human dignity, equality, rule of law is particularly pleased to have this meeting in this wonderful city of diplomacy – Vienna.
Excellences! Today, I am delighted to see so many countries being represented here. We all might have slightly different perception of modern challenges. The nuances are introduced by unique experiences of our nations. Nevertheless, today we all agree that democratic values cannot be taken for granted. They need to be constantly cherished and ensured by all the available mechanisms within constitutional orders and within the international legal order.
As we know one of the fundamental aspects of the rule of law is the independence of the judiciary. In my speech I will exemplify the understanding of the independence of the judiciary as explained by the Latvian Constitutional Court in its judgments and will compare that we recent case law of the Court of Justice.
Rule of law as a common value of the EU
Article 2 of the Treaty on European Union sets out values of the Union, where one of the values is the respect for the rule of law. The same value derives from the Latvian Constitution which stipulates that Latvia is a democratic state based on the rule of law, and that we are a country that recognises only a democratic state order.
Today we hear much criticism towards some Member States, or even parts of Europe regarding the crisis of the rule of law. At the same time a larger question of ways to proceed with further European integration begs for answers which seem to belong to both political and legal domains. I believe that ensuring that common European standard of rule of law persists in practice is an important element in dealing with a bigger challenges to further European integration.
However, one thing is clear recent challenges to common European values not only need to be addressed at the European level but they need to be dealt with primarily at the national levels.
Latvian Constitutional Court in its judgments has emphasised that independent judicial power is one of the fundamental elements of a democratic state. Only an independent judiciary is able to ensure a fair result of the court proceedings, which is the foundation for the rule of law. The requirement that the judges must be protected against any kind of unfounded interference into the administration of justice and the fulfilment of the judges’ duties, is not only justified and reasonable, but is essential for safeguarding the rule of law.
The ECJ in its recent judgment regarding the European arrest warrant issued against LM has stipulated similarly that judicial independence forms part of the essence of the fundamental right to a fair trial, a right which is of cardinal importance as a guarantee that all the rights which individuals derive from EU law will be protected and that the values common to the Member States set out in Article 2 TEU, in particular the value of the rule of law, will be safeguarded.
The ECJ has set a list of criteria to determine the concept of independence, “in particular, that the body concerned exercises its judicial functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, and that it is thus protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions [..]”.
Those guarantees of independence and impartiality require rules, particularly as regards the composition of the body and the appointment, length of service and grounds for abstention, rejection and dismissal of its members, in order to dispel any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it. In order to consider the condition regarding the independence of the body concerned as met, the case-law requires, inter alia, that dismissals of its members should be determined by express legislative provisions [..].
The requirement of independence also means that the disciplinary regime governing those who have the task of adjudicating in a dispute must display the necessary guarantees in order to prevent any risk of its being used as a system of political control of the content of judicial decisions.
Latvian Constitutional Court through its judgments has shaped the independence of judiciary in Latvia. Article 83 of the Constitution provides: “Judges shall be independent and subject only to the law.” The independence of the judges and the court defined by this provision is one of the fundamental principles of a state, which is democratic and governed by the rule of law – said the Court.
The Court when adjudicating on the independence of judiciary in Latvia has taken note of legal scholarship which has pointed out that “the understanding of general values, including the independence of judiciary and democracy, depend upon the history and the traditions of a state. In those states, in which quite recently a single partly ruled, it might be difficult to accept the understanding that the independence of the judiciary demands its separation from the political power. (See: The Cambridge Yearbook of European Legal Studies, Volume 4, 2001, p. 54).
The Court has underlined that “only in such a state, in which the principle of the division of power guarantees the balance between the branches of state power and reciprocal control, preventing the tendencies of any branch to dominate, by promoting the moderation of power and thus ensuring a truly independent judiciary, the independence of judges can be ensured. The aim of the division of power is to maintain the guarantees of person’s freedom, preclude the replacement of the model of state governed by the rule of law with an authoritarian regime or an autocracy of a single person. In a state governed by the rule of law the principle of the division of power guarantees the balance and reciprocal control between the branches of state power. This exactly gives the judges the possibility to fulfil their duties in a proper way. Thus the requirement of the judges’ independence is closely linked with the independence of the judiciary and thus, also, with the implementation of the principle of the division of power.
Anyone with regard to whom justice is administered is interested in ensuring the independence of judges. Thus, the independence of judges guarantees the safeguarding of the rule of law in the interests of the society and the state.
It has adjudicated already fifteen years ago that the provisions enabling Minister of Justice to decide on the substitution of district judges with the lay judges “may cause suspicion on the potential dependence of the appointed judge from the executive power as well as create doubt on the legitimacy of the decisions, adopted by him/her.”
The Court reiterated that one of the main criteria, ensuring independence of a judge is the Parliamentary decision on his/her appointment (confirmation) to office. In a democratic society formation of the court shall be left in the hands of the legislator so as to avert influence of the executive power on it. Thus the Court declared that the procedure, in accordance with which the Minister of Justice could assign a lay judge to the office of a judge, did not comply with the concept of independent court, and run contrary to the Constitution.
The Constitutional Court indicated that it is impossible to ensure the necessary independence of the judge, unless the judiciary itself as a whole is free from unjustified influence or the political pressure exerted by the executive power or the legislator. In a country with a totalitarian past the separation of the judiciary from the executive was of paramount importance and because of our past we are particularly sensitive to ensure that the election of the judges has the most legitimacy possible, i.e., that they are elected by the body that represents the sovereign directly. However, there might be a situation when the democratic majority affects the independence of the judiciary. This is not a theoretical situation. Democratic majority may go against democratic values. Let us take as a parallel example the abolition of death penalty. There might be some democratic majorities which might want to revert to death penalty. In other words, the agreement on our common European values may not be taken for granted for all times. If that is the case, as just said, there should be measures and methods in place to constantly remind us of our principles.
Just to recall that the independence of judges is connected with a number of important guarantees: guaranteed tenure of the judge (the procedure for appointing or approving judges, the 20 qualification necessary for the appointment, guarantees of irremovability, conditions for promotion and transfer to another position, conditions for suspending and terminating the mandate), the immunity of the judge, financial security (social and material guarantees), the institutional (administrative) independence of a judge and the actual independence of the judiciary from the political influence of the executive power or the legislator. All these guarantees are closely interlinked, and, if even one of them is disproportionally restricted, then the principle of the independence of judges is breached and thus the fulfilment of the basic court functions and ensuring human rights and freedoms come under threat. Normally, there must be a strong self-governing body of the judiciary. But our constitutional traditions are such that, for example, the budget and legal guarantees for the judiciary are decided by the Parliament. There is no way that the judiciary alone can ensure its independence. It requires all constitutional organs to make sure that the judiciary functions so that the rule of law is respected and that means, among others, ensuring the independence of the judiciary.
Legislator is bound to respect the rule of law in EU
In a recent case, the ECJ has also reiterated that the legislator under the EU law is obliged to ensure effective justice which means that such justice can only be ensured by an independent judiciary. The ECJ approaches this principle through the perspective of the protection of individual rights. The principle of the effective judicial protection of individuals’ rights under EU law, referred to in the second subparagraph of Article 19(1) TEU, is a general principle of EU law stemming from the constitutional traditions common to the Member States [..].
As this was stated by the ECJ in the case of ASJP, Article 19 TEU entrusts the responsibility for ensuring judicial review in the EU legal order not only to the Court of Justice but also to national courts and tribunals. National courts and tribunals, in collaboration with the Court of Justice, fulfil a duty entrusted to them jointly of ensuring that in the interpretation and application of the Treaties the law is observed. The Member States are therefore obliged to ensure, in their respective territories, the application of and respect for EU law, [..] and to provide remedies sufficient to ensure effective judicial protection for individual parties in the fields covered by EU law. It is, therefore, for the Member States to establish a system of legal remedies and procedures ensuring effective judicial review in those fields.
The principles of rule of law and separation of powers remain the basic structural principles of the constitutional order of Latvia and of other EU Member States. Proper respect for these principles need to be strengthened all the time. We in the Court have realized that in our modern digital era relationships in the society change and that requires a more concerted and proactive effort on the part of democratic institutions to ensure that the society keeps face in, and understanding of, our common values, including rule of law.
Moreover, each society evolves every day. It is a living species and therefore we test the scope and the application of underlying constitutional principles of our societies as we evolve. We also continue to fine-tune the arrangements for a better separation of powers within our constitutional orders.
Latvian Constitutional Court has been one of the major contributors to the transformation of the Latvian legal system and culture. Through its activity, the Court has positively impacted the public discourse on democracy and rule of law. The Court has been very open to European and international law. However, as said, our societies evolve and times change and we need to continue to adopt our working methods and messages in these changing times. As a result, we also see the role of the Court in promoting the dialogue between the society and the State. We are not a self-centred Court. The Court has put in place active communication strategy. For example, the adoption of each judgment is accompanied not only by the statement to the press but also by a video which explains the judgment. In cases where the Court holds public hearings, the pronouncement of the judgment is accompanied by a press conference. The Court engages in a debate with various segments of the Latvian society and has become a reliable partner in European judicial dialogue through the formal procedure of preliminary requests to the ECJ and the visits like the one we are having these days with the Austrian CC.
 Article 2 TEU reads as follows: ‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.’
 Satversmes tiesas 2014. gada 12. februāra spriedums lietā Nr. 2013-05-01, para 15. un Satversmes tiesas 2010. gada 18. janvāra spriedums lietā Nr. 2009-11-01, para 7.2.
 Satversmes tiesas 2004. gada 5. novembra spriedums lietā Nr. 2004-04-01, para 8.2.
 Constitutions tiesas 2010. gada 18. janvāra spriedums lietā Nr. 2009-11-01, para 7.2.
 Case C-216/18 PPU LM, para 48.
 Case C-64/16, para 44 and the case-law cited.
 Case C-216/18 PPU LM, para 66 and the case-law cited.
 Case C-216/18 PPU LM, para 67.
 Satversmes tiesas 2010. gada 18. janvāra spriedums lietā Nr. 2009-11-01, para 7.
 Satversmes tiesas 2010. gada 18. janvāra spriedums lietā Nr. 2009-11-01
 Satversmes tiesas 2010. gada 18. janvāra spriedums lietā Nr. 2009-11-01, para 7.3.
 Satversmes tiesas 2010. gada 18. janvāra spriedums lietā Nr. 2009-11-01, para 7.2.
 Satversmes tiesas 2004. gada 5. novembra spriedums lietā Nr. 2004-04-01, para 10.
 Satversmes tiesas 2004. gada 5. novembra spriedums lietā Nr. 2004-04-01, para 10.1.
 Satversmes tiesas 2004. gada 5. novembra spriedums lietā Nr. 2004-04-01
 Satversmes tiesas 2010. gada 18. janvāra spriedums lietā Nr. 2009-11-01, para 8.
 Satversmes tiesas 2010. gada 18. janvāra spriedums lietā Nr. 2009-11-01, para 8.2.
 Case C-64/16, para 35 and the case-law cited.
 Article 19(1) and (2) TEU provides: ‘1. The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties the law is observed.
Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.
 Case C-64/16, para 32 and the case-law cited.
 Case C-64/16, para 33 and the case-law cited.
 Case C-64/16, para 34 and the case-law cited.