Address by the Vice President of the Constitutional Court Dr.iur., asoc.prof. Irēna Kucina to the representatives of foreign missions in Latvia
Irēna Kucina
Vice President of the Constitutional Court
Address to the representatives of foreign missions in Latvia
Riga, 27 May 2022
Excellences, ladies and gentlemen!
I am delighted to meet you at this event. I have chosen to highlight the legal thoughts, ideas and values which the Constitutional Court has developed last year and which I consider to be significant enough to be worthy of your attention.
The Constitutional Court has held that the values of society are based on consensus, which is an expression of the thinking traditions and ethical principles of that society. Different world-views and value systems can co-exist within the same society. However, a set of unifying, universally accepted and consolidating basic ideas, on which rights and all public life within a nation, state or society can be based, is a necessity. The greater the pluralism, the greater the need for tolerance between different opinions and agreement on universally shared values, and failure to respect these values precludes tolerant attitudes. The Constitutional Court thus also recognised that in a democratic state governed by the rule of law, where pluralism of thoughts and ideas prevails, it is possible that the local and central authorities may have different views on the most appropriate and sustainable model for the overall development of the country.
A local self-government is a local authority established by the citizens living in a given area, or in some countries – by the inhabitants of that area. According to the European Charter of Local Self-Government, local self-government denotes the right and the ability of local authorities, within the limits of the law, to regulate and manage a substantial share of public affairs under their own responsibility and in the interests of the local population. The principle of local government, which comprises the minimum set of requirements for the organisation of local self-government in a democratic state governed by the rule of law, derives from the first sentence of Article 101 of the Constitution in conjunction with Article 1 of the Constitution of the Republic of Latvia.
Article 101 of the Constitution establishes a legal basis for the institutional existence and functioning of local self-governments. According to it, the institution of local government is a special form of public administration or public affairs management – self-government – whose supreme organ – the council – is directly and democratically legitimated, i.e. elected by the residents of that municipality. The scope of this Article must be specified in conjunction with the European Charter of Local Self-Government. Also according to Article 3 of the Charter, local self-government means the right and ability of a local authority, within the limits of the law, to regulate and manage a substantial share of public affairs under its own responsibility and in the interests of the local population.
When assessing the legality of the administrative-territorial reform, the Constitutional Court emphasised that, taking into account the doctrine of relevance and the principles of parliamentary democracy, the legislator has the discretion to decide on issues related to the administrative-territorial division. When adopting decisions related to the administrative-territorial reform, the legislator must ensure balance between the different interests of specific local governments and the common interests of society, but it is not obliged to assess the conformity of these decisions with the principle of proportionality in the sense that it does when imposing restrictions on fundamental rights. However, a reform cannot be based solely on economic considerations and financial gain. It is in this way that the Constitutional Court decides which of the relatively competing values – the local interests of specific local governments or the common national interests of the Latvian society as a whole – should be given priority. The criteria that allowed the Court to decide between multiple competing values were the rationality of the Parliament’s decision and the reasonably foreseeable economic justification for the reform.
The Constitutional Court also emphasised that, in accordance with the principle of good governance, the State is obliged to constantly examine and, if necessary, improve the State administration and the administrative system in order to ensure that it operated as efficiently as possible. The goal of the administrative-territorial reform, which is aimed at eliminating the identified shortcomings, is commensurate with the common interests of the Latvian society as a whole. The administrative-territorial reform is thus aimed towards the common good of society.
The involvement of experts from different sectors in the preparation of the reform is positive. This allows for a more comprehensive assessment of the likely impact of the reform and provides the legislator with a better understanding of the nature of the decisions to be taken. However, when deciding on administrative-territorial division, the legislator must balance the individual interests of the local governments with the common interests of society, and it must ensure the development of a sustainable legal framework. It is the responsibility of the legislator to decide in the political process which considerations should take precedence. While expert opinions should be heeded in the process of drafting a reform, they cannot replace the right of the Parliament to choose the most appropriate solution, as long as it is based on rational considerations. At the same time, the Constitutional Court held that in a democratic state governed by the rule of law, the principle of the rule of law also implied the requirement that the legislator apply the criteria underlying the reform equally to all local governments, while rationally justifying any exception thereto.
The Constitutional Court has previously recognised in its case-law that it follows from the fundamental norm of Latvia as an independent, democratic State under the rule of law that human dignity is a constitutional value of the State. At the same time, the freedom of self-determination is a prerequisite for a dignified human life, for a person can achieve their full potential only if the State respects the freedom of that person. In recent years, the Constitutional Court has paid particular attention in its rulings to the development of the concept of human dignity and the closely related concept of the individual’s freedom of self-determination. The aim of my presentation is to acquaint you with just a few of the cases examined by the Constitutional Court last year, in the framework of which the Court specified the scope of these constitutional values.
First of all, I would like to mention the case on the constitutionality of the Istanbul Convention. It should be pointed out that in this case the Constitutional Court did not assess whether Latvia had to ratify the Istanbul Convention, as this was a matter for the legislator to decide. The Constitutional Court addressed the issue of whether the provisions of the Istanbul Convention on the implementation of special measures to protect women from violence were compatible with the Constitution. A democratic state governed by the rule of law, with the protection of human dignity as a constitutional value at its core, is incompatible with the notion that violence against any group in society should be accepted.
In the case on the constitutionality of the Istanbul Convention, the Constitutional Court for the first time explicated the content of the State’s obligation to protect persons against violence. When specifying Articles 93, 95 and 111 of the Constitution, the Court emphasised that the scope of these provisions includes the obligation of the State to protect all persons from violence that may endanger the life or physical and mental health of the person, as well as expose a person to the risk of torture and cruel or degrading treatment. This obligation applies to all persons under the jurisdiction of the State – men and women alike. At the same time, the Constitutional Court found that gender-based violence still persisted in Latvia and most often affected women. Thus, there are conditions present in Latvia that allow for the establishment of differential treatment of women in order to prevent gender-based violence and ensure de facto gender equality.
The Constitutional Court noted that the obligation of the State to ensure, in a non-discriminatory manner, the disappearance of prejudices, customs, traditions and other practices based on the idea of women’s inferiority did not in itself affect the obligation of the State to protect the family. Referring, inter alia, to the principle of human dignity, the Constitutional Court reiterated what it had already stated in its case-law, namely, that the legislator must ensure the protection of every family as a collective social unit. However, the obligations contained in the Istanbul Convention are generally aimed at protecting individuals – women – from violence and do not impose the adoption or implementation of any particular form of marriage or family.
In the case on the constitutionality of the Istanbul Convention, the Court also recognised that the right of a person to hold on to their views on social roles, behaviour, activities and characteristics which, in their opinion, correspond to women or men, falls within the scope of Article 99 of the Constitution. At the same time, the Court noted that the State is obliged to take broad and comprehensive measures aimed at reducing public tolerance of violence and explaining the consequences of violence to all persons. In particular, the State has a duty to offer information to a reasonable and educated individual about violence and the factors that contribute thereto, so as to prevent such violence. The mere fact that such information is offered to individuals does not mean that they are obliged to hold certain beliefs.
The principle of human dignity was also highlighted in the case regarding the prohibition for a person who has been convicted of a criminal offence related to violence or threat of violence to be a guardian of a child for life, regardless of individual circumstances. When specifying the content of the State’s obligations in the care of a child left without parental care, the Constitutional Court pointed to the obligation to ensure, without delay, to every child left without family care, alternative care in accordance with the best interests of the child, ensuring to the extent possible that the child remains in a family environment. The Court stressed that it is the responsibility of the State to ensure that alternative care is in the best interests of the child throughout the entire period thereof, promoting respect for the human dignity of every child left without parental care.
In the present case, by establishing a life-long prohibition for a person convicted of a criminal offence related to violence from becoming a guardian, the legislator had not taken into account the need to ensure, to the extent possible, that the child remains in a family or familiar environment. The legislator had also failed to consider how the prohibition set out in the contested provisions affects the protection of de facto families formed as a result of the implementation of out-of-family care of a child. The Constitutional Court emphasised the need to carry out an individual, case-by-case assessment, ascertaining the opinion of the child as far as possible and thus contributing to the respect of human dignity of every child left without parental care.
Finally, I would like to turn to the case on restrictions on gambling in the context of the Covid-19 pandemic, in which the Court specified the scope of the individual’s freedom of self-determination and the rights and obligations of the State that follow therefrom. The case concerned a restriction on the right to property of gambling operators resulting from the legislator’s prohibition of both on-site and interactive gambling during the emergency situation related to the spread of Covid-19.
When assessing the restriction of on-site gambling, the Constitutional Court recognised that a prerequisite for the functioning of a democratic state governed by the rule of law was the ability of each individual to self-limit his or her egoistic freedom and to act responsibly. In the emergency situation related to the spread of a virus, people would be expected to assess the need to visit certain entertainment venues and to socialise. However, if a person is prone to, or has developed a gambling addiction, they are no longer able to objectively evaluate their desire to visit a gambling hall and the consequences of this desire. Taking into account the extent and danger of the spread of Covid-19, as well as the manner of spread of the virus established at the time of adoption of the contested provisions, the Court concluded that the restriction on on-site gambling was necessary, proportionate and, therefore, compatible with the Constitution.
As regards the restriction of interactive gambling, the Court noted that it was important to take into account the time at which the contested provisions were adopted. In particular, the changes in the daily life of the population linked to the state of emergency, which had both psychological and material effects, may have encouraged individuals to turn to gambling or to gamble at higher levels than before. The legislator may therefore have had a legitimate wish to impose restrictions based on the precautionary principle in order to prevent potential harm to the public or a section of the public. However, the Court stressed that in a democratic state governed by the rule of law, the individual’s freedom of self-determination has the highest value. This freedom extends to any human choice, as long as it does not undermine the rights of others, the constitutional order, or other interests essential to society. The legislator must respect the freedom of choice of individuals and trust in their ability to appreciate the consequences of the exercise of such freedom, as long as they affect the individual only. The Court found that there were no circumstances in the case at hand which required the State to intervene in relation to interactive gambling. The Court also stressed that the Parliament had not assessed alternatives to the restriction on interactive gambling at all. This restriction was thus found to be disproportionate and unconstitutional.
Excellences, ladies and gentlemen!
I am grateful for the opportunity to present legal thoughts, ideas and values of the Constitutional Court to you.
Thank you for your attention!