Constitutional Status of the Constitutional Court of the Republic of Latvia
Dr.iur., Docent Rodiņa Anita
Vice-dean of the Faculty of Law, University of Latvia
Mg.iur. Spale Alla
Assistant to the President of the Constitutional Court of the Republic of Latvia
Published in “Конституционное правосудие” 4(58)’12
The constitutional status of the Constitutional Court in Latvia is defined in one Article of the Satversme of the Republic of Latvia (hereinafter – the Satversme) or the Constitution, i.e., Article 85. It provides that “[i]n Latvia, there shall be a Constitutional Court, which, within its jurisdiction as provided for by law, shall review cases concerning the compliance of laws with the Constitution, as well as other matters regarding which jurisdiction is conferred upon it by law. The Constitutional Court shall have the right to declare laws or other enactments or parts thereof invalid. The Saeima shall confirm the appointment of judges to the Constitutional Court for the term provided for by law, by secret ballot with a majority of the votes of not less than fifty-one members of the Saeima.”[1]
Article 85 of the Satversme is the source for the legitimacy of the Constitutional Court which substantiates and justifies the existence of the Constitutional Court among other constitutional institutions. The legal status of the Constitutional Court (including its mandate) excludes the possibility of establishing such an institution by adopting an ordinary law, as that would cause collision with other articles and principles of the Satversme. Likewise, the provision of the legal status of the Constitutional Court in the Constitution is the foundation for its continuous (uninterrupted) functioning, which is ensured and safeguarded by the complex procedure for amending constitutional provisions.[2]
Article 85 of the Satversme consists of three sentences, which contain the basic rules for the functioning of the Constitutional Court. This article is very brief and complies with the laconic style typical of the Satversme in general. However, at the same time one can support the view that Article 85 of the Satversme has created “a solid and sufficiently constitutional basis for the functioning of the Constitutional Court”.[3]
This article aims to analyse the constitutional level regulation of the Constitutional Court, outlining and highlighting the case law of the Constitutional Court to explain relevant aspects.
1. Enshrining the Legal Status of the Constitutional Court in the Satversme
The constitutional regulation of Latvian state is still governed by the Satversme of the Republic of Latvia of 15 February 1922.[4] Following the restoration of Latvia’s statehood on 4 May 1990[5], the Constitution was reinstated in full and came into force on 6 July 1993, when the 5th Saeima [Parliament] convened for its first sitting. Latvia’s constitution is among the oldest of those in force in Europe, which, even though adopted 90 years ago, can be considered to be one of the most democratic and deepest as to its contents.
Till 5 June 1996 Article 85 of the Satversme was expressed in the following wording: “Juries exist in Latvia on the basis of a special law.” However, juries were not established in Latvia. Thus, Article 85 of the Satversme and the legal provisions it contained could be seen as static legal provisions, which were never (until exclusion from the Satversme) implemented.
In Latvia, starting with the foundation of the sate on 18 November 1918 till the very 17 June 1940, similarly to the majority of European states, the idea of constitutional control was not recognised, thus a special institution of constitutional control was not established in Latvia during this period. Czechoslovakia and Austria, having established special constitutional courts, was an exception.[6] At the Constitutional Assembly (an institution established on 1 May 1920 for drafting the Satversme), when the text of the Satversme was debated, the idea (concept) that in general an institution could “stand above” the parliament was not acceptable to the majority. In accordance with the dogma of parliamentary supremacy, dominant at the time, the parliament was granted the role of the dominant institution of state power, the issue of establishing a special institution for constitutional control was not proposed at the Constitutional Assembly. The view prevailed that the law, which was in force, “shall be enforced without hesitation and doubt by all public institutions and officials, also all citizens to whom it applies; neither private persons, nor public institutions shall have any legal right to doubt or contest the power of law [..]”.[7] And yet, the legal community of the time did not fully forget the idea of constitutional control. For example, Member of the Saeima P.Šīmanis in the 1930s spoke of the need to establish a special institution for safeguarding the Satversme.[8] Another attempt to establish a special institution of constitutional control followed in 1934, when on 27 February the Saeima Public Law Committee discussed the proposal submitted by Member of the parliament H.Štegmans on adding Article 861 to the Satversme, envisaging that “a state court shall exist, which, functioning on the basis of a separate law, shall decide on the compliance of laws with the Constitution, as well as the compliance of the regulations and orders of the Cabinet of Ministers with the Satversme.”[9] This proposal did not gain support, as only one of twelve members of the parliament voted for it.
The political and legal processes at the end of the 1980s and the beginning of the 1990s opened the possibility to initiate discussions in Latvia about the establishing an institution of constitutional control. The first legal act of constitutional level, envisaging the establishment of a constitutional court is the declaration adopted by the Supreme Council of the LSSR on 4 May 1990 “On the Restoration of the Independence of the Republic of Latvia”. The second sentence in its Para 6 provided that in cases of “[d]isputes over the issues regarding the application of a legal act shall be resolved by the Constitutional Court of the Republic of Latvia.”[10] Later, though, the law of 15 December 1992 “On Judicial Power” envisaged entrusting the Supreme Court with the function of constitutional supervision.[11] Quite soon the political and legal thought gave up the idea of entrusting the right of constitutional supervision to the Supreme Court, starting to develop a concept of a special – Constitutional Court. In 1994 the draft law on the Constitutional Court was elaborated at the Ministry of Justice and submitted to the Saeima.
Prior to adopting a special law on the Constitutional Court, amendments had to be introduced to Satversme and the special status of the Constitutional Court had to be enshrined in the constitution of the state, which was called by A.Endziņš, the first President of the Constitutional Court, a “peculiar experiment” and a “risky step”, because the Constitutional Court had to fit or squeeze into the system of institutions already executing the state power.[12]
Upon starting discussing the wording of Article 85 of the Satversme at the Saeima, A. Endziņš, Member of the parliamentary deputy and rapporteur, drew the attention of those present to the necessity of including this provision in the Satversme, explaining in detail the need to introduce such amendments and why such a judicial institution could not exist without including the corresponding legal provisions in the Satversme, “ [..] in order for the Constitutional Court to work and for its rulings to be legitimate also from the constitutional perspective, it must be clearly said in the Satversme of the Republic of Latvia, that Constitutional Court exists in Latvia, and that it, within the competence set in the law, examines the compatibility of law with the Satversme, as well as other cases placed in its jurisdiction with the Law on the Constitutional Court, – and, namely, that the Constitutional Court has the right to declare a law, other enactments or their parts invalid, being incompatible with the Satversme, and also that the Saeima appoints the Justices of the Constitutional Court for a definite term. To avoid contradiction with another article of the Satversme, which stipulates that judges are cannot be removed from office, i.e., that they act in tenure. To avoid contradiction here, such amendment would be necessary.”[13]
While drafting the wording of Article 85 of the Satversne two issues were discussed predominantly: the mandate of the Constitutional Court and the procedure for appointing the justices.
Rejecting the proposal “[..] that the Constitutional Court shall not declare a law or its part as invalid, if these are incompatible with the Satversme, but shall have the right suspend fully or partially the functioning of the law [..]”[14], because, allegedly it was “[..] dangerous in our current, politicised situation to set up in this country a third structure of power, which might hinder our political, social and economic reforms [..]”[15]; European states were referred to as models and it was stated that “nevertheless, there should be an institution for resolving a dispute: whether incompatibility with the Satversme exists or not. Otherwise, if we don’t do it, then, apparently, there is no need for such an institution as the Constitutional Court, and we should stop breaking lances over this altogether.”[16] The discussions allow concluding tha in principle an important decision was made to develop the European model of constitutional control. Likewise, the proposal that “[..] the Justices of the Constitutional Court shall be appointed with the majority of two thirds at sittings, attended at least by two thirds of the Saeima members, i.e., in the same way as we can amend the Constitution itself”[17] was not supported.
Following the debates in the Saeima on 5 June 1996 the law “Amendments to the Satversme of the Republic of Latvia” was adopted, which amended Article 85 of the Satversme, and the Constitutional Court Law.[18] Since 5 June 1996 Article 85 of the Satversme has not been amended.
By establishing a special judicial institution – the Constitutional Court, Latvia chose to create an institution of constitutional control in compliance with the European model, which contrasts as to some aspect in evolvement (origins) and to the contents with the first historical model – the American. However, notwithstanding the differences of the American and European models of constitutional control[19], in both of them the respective judicial institutions are entrusted with relevant and even delicate task “to decide political issues in legal terms.”[20] The Constitutional Court has the features typical of the European model of constitutional control: centralisation, implementation of abstract constitutional control, as well as the possibility of preventive (a priori) control alongside the repressive (a posteriori) control, erga omnes power of its judgements.
2. The Constitutional Court as a Constitutional Institution
The Constitutional Court is an institution of judicial power, endowed with an exclusive function – to safeguard the constitution, by ensuring the rule (priority) of the constitutional law – the Satversme – and constitutional justice.[21] The exclusiveness of the function precludes the right of any other constitutional institutional control to exercise special constitutional control in the scope and with the rights that have been granted to the Constitutional Court by the Satversme. This, however, does not mean that constitutional institutions lose the right to exercise general right of constitutional control, as everybody, in fulfilling the entrusted functions, has the duty to abide by and safeguard the constitution.
The wording “shall be”, included in the first sentence of Article 85 of the Constitution, allows concluding that the Constitutional Court exists (functions) and hears cases continuously. The continuous functioning of the Constitutional Court is safeguard to continuous and regular administration of justice. Simultaneously, ensuring continuous functioning of the Constitutional Court includes the obligation of the persons involved in creating the corps of the Constitutional Court justices, to organise and ensure timely appointment of the Constitutional Court justices.[22] Similarly, the existence of the Constitutional Court imposes the duty upon the state to ensure the functioning of the Court (provide premises, funding, etc.).
The Constitutional Court is a constitutional institution, which exercises state power. The Constitutional Court exists alongside other constitutional institutions – the totality of Latvia’s citizens, the Saeima, the President of the State, the Cabinet of Ministers, the State Audit, courts –, fulfilling its functions set out in the Constitution.
Exercising of state power in Latvia is based upon “incontestable constitutional principle, which has to be respected as such”[23] – the principle of the division of power. It manifests itself “as the division of the state power into legislative, executive and judicial power, exercised by independent and autonomous institutions. This principle guarantees a balance and reciprocal control among the institutions and facilitates moderation of power.”[24] Complying with the principle of division of power, the Constitutional Court is an institution of judicial power, which exercises judicial power. Even though the Satversme does not directly provide that the Constitutional Court exercises judicial power and is a judicial institution, this conclusion follows from the very name of the institution, which contains the concept “court” (Constitutional Court), as well as from the structure of the Satversme, since the provisions on the Constitutional Court are included in Chapter VI “Courts”. The third part of Section 1 of the law “On Judicial Power”, in its turn, stipulates that “[j]udicial power in the Republic of Latvia is vested in district (city) courts, regional courts, the Supreme Court and the Constitutional Court, but during a state of emergency or war– also in military courts.”[25] The first part of Section 1 of the Constitutional Court Law similarly provides that “The Constitutional Court shall be an independent judicial authority [..]”.[26]
The Constitutional Court as an institution of judicial power exercises its functions by administering justice, thus ensuring control over the two other branches of power.[27]At the Constitutional Court justice is administered according to a procedural order, with the participation of at least two parties to the case with opposite interests, the justice is administered by justices and the result of the court proceedings may be a court ruling with binding power.[28] In difference to courts of general court system, the essence of administering justice at the Constitutional Court is to solve special or specific disputes regarding the compatibility of legal provisions with the provisions of higher legal force.[29] In the proceedings before the Constitutional Court the dispute is solved both if the contested legal provision is declared incompatible or compatible with the provisions of a higher legal force.[30]
The principle of functional division between the courts of the general court system and the Constitutional Court essentially follows from the Satversme Article 82[31] and 85. The functional distinction of judicial institutions is absolute, since no judicial institution has the right to assume the authorisation granted to another. The functional division of judicial institutions was explained also in one of the first cases heard by the Constitutional Court. “The courts belonging to Latvian system of general jurisdiction courts have the right to hear civil law disputes, criminal cases, as well as cases that follow from administrative legal relationships. However, in accordance with the law they have no right to declare invalid acts of regulatory nature. For this purpose in Latvia in 1996 a constitutional court, not belonging to the system of general jurisdiction courts was established – the Constitutional Court, which, as stipulated by Article 85 of the Satversme, has the right to examine the compatibility of laws and other enactments with the Satversme and other laws.”[32]
For the Constitutional Court, in fulfilling its functions and hearing cases, it is important to separate those issues (cases), the adjudication of which falls within its jurisdiction, from political issues, the settling of which is not the task of the Constitutional Court.[33] To differentiate between law and politics, considering the fact that all laws have political dimension, is a complex task. In explaining the limits of its competence, the Constitutional Court has admitted that the Constitutional Court Law “does not grant to the Constitutional Court the right to assess the political usefulness of actions taken by other state institutions of constitutional power”.[34] Likewise, it has indicated that the Constitutional Court has the right to examine cases “to the extent it is possible to apply law (legal) argument to it, separating these from legal policy arguments. With regard to issues, which cannot be adjudicated by applying strict legal standards, but the conclusions to be made in them predominantly depend upon political usefulness, decisions should be taken by political bodies of the sate, democratically legitimised, first of all – the legislator”.[35]
3. Adjudication of Cases: Procedural Principles
The Constitutional Court examines the cases falling within its jurisdiction according to its jurisdiction defined by the law, i.e., according to a definite procedure. Disputes arising regarding the constitutionality of legal provisions require a special procedural form for solving them.[36] Therefore a special type of court proceedings has been established for hearing cases at the Constitutional Court – the Constitutional Court proceedings, which differs from hearing cases at the general system of courts.[37] It is characterised by procedural principles, parties to the proceedings and procedural stages. The Constitutional Court proceedings have several consecutive stages: initiating the case, preparing the case, adjudicating the case, making of the ruling and enforcement of the ruling. The Constitutional Court proceedings are basically regulated by the Constitutional Court Law and the Regulations of the Constitutional Court.[38] The Constitutional Court proceedings can possibly interact with other procedure – the civil procedure – only in two cases, when the Civil Law provisions are applied, i.e., to calculate the procedural terms and to enforce fiscal penalty (procedural sanction). Other procedural issues, regulated neither by the Constitutional Court Law, nor the Regulations of the Constitutional Court, are not decided by other legal acts, but by the Constitutional Court itself.
In compliance with the essence of an institution of judicial power – settling a dispute – the court proceedings may be based upon a received application. The decision on initiating Constitutional Court proceedings is taken by the Constitutional Court Panel. Thus, a precondition for initiating Constitutional Court proceedings will always be an application submitted to the Constitutional Court by a subject of the constitutional control, meeting all requirements set out in the Constitutional Court Law. The Constitutional Court has no right to initiate proceedings on its own initiative, excluding its ex officio right. The Constitutional Court proceedings are based upon the jurisdiction voluntaria principle.
The fact that the Satversme does not define the range of subjects entitled to submit an application to the Constitutional Court is a special feature of the constitutional regulation on the Constitutional Court. The subjects, who have the right to submit an application to the Constitutional Court, are indicated in Section 17 of the Constitutional Court Law. Other subjects, except those mentioned expressis verbis in Section 17 of the Constitutional Court Law, have no right to submit an application to the Constitutional Court. This does not preclude establishing by interpretation the conceptual content of the subject of constitutional court included in the Constitutional Court Law. For example, in establishing, which persons have the right to submit a constitutional complaint, the theory of fundamental human rights and the content of human rights enshrined in the Satversme must be taken into consideration.[39]
Even though the legislator has the right to define the persons, who have the right to submit an application to the Constitutional Court, simultaneously other constitutional provisions and principles, as well as the general jurisdiction of the Constitutional Court must be taken into consideration. The range of subjects, who have the right to submit an application to the Constitutional Court, has been constantly expanding, by the legislator amending the Constitutional Court Law (section 17), making the Constitutional Court accessible to a broad circle of subjects. In Latvia, in view of the fundamental principles of the state structure, three groups of subjects may apply to the Constitutional Court: public law subjects, courts and persons. Each subject of constitutional control, when exercising its rights to initiative, has to consider the form of constitutional control and the procedural restrictions set for the concrete subject.
Since the Constitutional Court has been created according to the European models of constitutional control, it follows from Article 85 of the Satversme, that the Constitutional Court can exercise abstract constitutional control, which in principle is excluded from the American model. The form of constitutional control, the exercise of which is not connected with a specific dispute or court proceedings, is to be considered abstract control. Abstract control means that abstract compliance of the legal provision with the constitution is verified, as its enforcement is not linked with safeguarding the subjective rights of a concrete person. This is the reason why the local government councils, who can submit an application to the Constitutional Court to protect their rights in case of infringement, cannot be regarded as the subjects of abstract constitutional control. The subjects of abstract constitutional control (in the meaning of the Constitutional Court Law these are the President of the Saeima, the Saeima as a collegiate institution, at least 20 members of the Saeima, the Cabinet of Ministers, the Prosecutor General, the Council of the State Audit Office, as well as two subjects, who have to abide by specific procedural restrictions, – the Judicial Council [40] and the Ombudsman[41]) submit an application to the Constitutional Court to safeguard conjectural or public interests.[42] The application by subjects of abstract constitutional control is “to be regarded as an important tool for the protection of the state and public interests”.[43]
The subjects of concrete control, which in the countries with the European model of constitutional control, are courts (in Latvia – also the judges of the Land Registry Offices), have the right to contest the compliance of a law with the Satversme, if during adjudication of a concrete case doubts arise about the compatibility of the applied provision (in administrative procedure) or the provision that should be applied [44] with the Satversme. Thus, the application submitted by a court can be only concrete – related to the adjudication of a concrete case and if the constitutionality of a legal provision is a precondition for adjudicating a concrete case.[45] At the same time application regarding concrete control may not be “a preliminary question on the interpretation of the legal provision to be applied”.[46]
Individual persons also have the right to submit to the Constitutional Court a special type of application – the constitutional complaint. In difference to other subjects, a person may not contest at the Constitutional Court the compliance of a law to any of the Satversme provisions, but only with the fundamental human rights enshrined in the Satversme.[47] Actio popularis is not allowed in Latvia, therefore the applicant (of the constitutional complaint) has to abide by various restrictions (has to prove the infringement, abide by the subsidiarity principle, terms), the content of which is specified in the Constitutional Court Law.
4. Jurisdiction of the Constitutional Court Provided by the Constitution
The constitutional legislator has included in Article 85 of the Satversme and has defined only one aspect in the competence of the Constitutional Court or the cases to be adjudicated by it – to control the compatibility of laws with the Satversme. I.e., the Satversme specifically defines one object of constitutional control (what can be contested at the Constitutional Court) – the law. The discussions on the wording of Article 85 in the Saeima allows concluding that the distinguishing of this one aspect in the competence of the Constitutional Court and its inclusion in the Satversme had the purpose of pointing to the rights of the Constitutional Court to assess the compatibility of the laws adopted by the parliament itself – the Saeima – with the Satversme. Thus, this aspect in the jurisdiction of the Constitutional Court or the category of cases to be adjudicated by it was specified also in the Satversme to exclude any doubts concerning violations of the principle of parliamentary sovereignty and the right of the Constitutional Court to declare a law adopted by “the parliament itself” invalid.
The jurisdiction of the Constitutional Court – to control the compatibility of law (also other legal acts) with the Satversme – is based upon the principle of vertical constitutional control. According to it the Constitutional Court has the right to verify only the compatibility of a lower legal act or its part with a legal provision of a higher legal force. Control of horizontal level or the control of legal acts and their provisions of one hierarchic level should be excluded from the Constitutional Court procedure. The principle of vertical constitutional control may be considered to be principle established by the Satversme. It is reflected in the first sentence of Article 85 of the Satversme, in which the legislator has indicated that the Constitutional Court shall control the compatibility of a lower law with a higher, i.e., the Satversme.
a) The Concept of the “Law”
Only such a law, which is compatible with the Satversme, may be in force. In the state ruled by the law a situation, when laws, which collide with the national constitution, exist, is inadmissible. If the legislator has exceeded its discretion defined in the Satversme and has adopted an anti-constitutional law, then it is the task of the Constitutional Court to exclude such a law from the legal system.
According to Article 64 of the Satversme two subjects in Latvia are endowed with the legislative right: the people and the Saeima. The Constitutional Court, explain the meaning of the concept “law”, has pointed out that “a law is a legal act adopted according to the procedure set out in the Satversme.”[48] This means that all laws that are adopted according to the procedure set out in the Satversme and in the hierarchy of legal acts are below the Satversme or have lesser legal force than the Satversme (the principle of vertical constitutional control) may be subject to the control by the Constitutional Court. Thus far only the compatibility of laws adopted by the Saeima with the Satversme have been contested at the Constitutional Court, however, the right of the Constitutional Court to exercise control cannot be excluded with regard to laws adopted via referendum.[49] Following K.Dišlers’ statement, it can be concluded that the laws adopted “in the ordinary legislative procedure” [50] may be contested at the Constitutional Court. To guarantee comprehensive priority of the constitutional provisions and to ensure to persons the possibilities to protect their fundamental rights enshrined in the Satversme, as well as to ensure control over the legislator “the definition of law includes both the substantial and formal concept of it.”[51]
Any law can be subject to the control by Constitutional Court (as to its content). Inter alia, the Constitutional Court has the competence to assess the constitutionality of laws adopted by the other branches of power also in those cases when they affect the judicial power and the Constitutional Court itself.[52] Since „[n]either the Satversme, nor the Constitutional Court Law grant the right to the Constitutional Court to refuse to assess the compatibility of a law or other legal provision with the Satversme, likewise, no one has been granted the right to prohibit the law to exercise its function or to restrict the court in exercising its functions.”[53] The Satversme safeguards the competence of the Constitutional Court defined in the Satversme – to control the compatibility of any law with the Satversme, prohibit the legislator to restrict arbitrarily this aspect in the jurisdiction of the Constitutional Court, for example, defining, which specific laws may not be reviewed by the Constitutional Court.
In accordance with the Satversme “law” is also amendments to the Satversme, which may be adopted by the Saeima (Article 76. of the Satversme[54]), or through a referendum (first part of Article 79 of the Satversme[55]), exercising “constitutional legislation”[56] or “constitutional power”.[57] The laws, which amend the Satversme, have constitutional power, i.e., these are constitutional laws.[58] “The laws, with which the Saeima or the totality of Latvian citizens amend the Satversme, are of constitutional rank, if they have been adopted in compliance with the requirements set in the Satversme.”[59] Considering the principle of vertical constitutional control, one may conclude that the Constitutional Court may not assess the compatibility of law, by which the Satversme is amended (or constitutional law), with the Satversme.[60] “Constitutional provisions are provisions belonging to the same hierarchical level, thus the assessment of the mutual compatibility of these provisions does not fall with the competence of the Constitutional Court”.[61] At the same time, the Panel of the Constitutional Court has indicated that, in view of the aims of the Constitutional Court, the conclusion that the Constitutional Court may not review the constitutional compatibility of such laws, which envisage amendments to the Satversme, but have not been adopted in a procedure set out in the Satversme, might be contradictory to the Satversme. Or, the Panel of the Constitutional Court has recognised the competence of the court to rule, whether the law, by which the Satversme is amended, has been adopted in procedure set out in the Satversme, i.e., to examine the procedural aspects of the adoption of the law amending the Satversme.[62] The Constitutional Court has used similar arguments to substantiate the right of the Constitutional Court to assess also the compatibility of the procedure for adopting laws, which have been adopted according to the procedure set out in the second sentence of the second part in Article 68 of the Satversme, i.e., the procedure, which the Satversme has envisaged for concluding international agreements, when Latvia, with the purpose of strengthening democracy, delegates part of the competence of the state institutions to international institutions.[63]
The wording of Article 85 of the Satversme allows concluding that the Satversme envisages the so-called repressive (a posteriori) constitutional control or the control of such laws that have been adopted in a certain procedural (legislative) process. Sometimes the repressive constitutional control is understood as the control of laws that are in force. However, the fact that the law is in force, could not be the decisive factor in all cases for the issue to be examined by the Constitutional Court.
Article 114 of the Saeima Rules of Procedure provides that “[a] draft law shall be deemed adopted and shall become a law if it has been considered in three readings or, in the cases mentioned in paragraph 2 of this Article, in two readings, and, if having been put to a vote in its entirety, it has received an absolute majority of votes of the Members present.”[64] This legal provision might lead to the conclusion that the law has been adopted in the Saeima, and thus, the draft law has become a law, which might be contested at the Constitutional Court. At the same time it must be taken into consideration that the Satversme also grants important right to the President of the State in the legislative procedure, following the adoption of the law by the Saeima the President may exercise the suppressive veto right (Article 71 of the Satversme), as well as the right to suspend the publication of the law for two months (Article 72 of the Satversme), complying with the restrictions envisaged in the Satversme. Thus, it is possible to extend the stage of adopting the law.[65] Consequently the compatibility of the law with the Satversme could be contested at the Constitutional Court after its promulgation, i.e., when it is clear that the legislative process (in the concrete case) has been completed. Thus, for example, the President of the State V. Zatlers contested at the Constitutional Court the provisions of the law “Amendments to the Public Procurement Law”, which was adopted by the Saeima on 16 July 2009, promulgated on 30 July 2009, but came into force on 13 August 2009.[66] In this case the President of the State submitted his application to the Constitutional Court on 3 August 2009 – before the law had come into force.[67]
A law, which exists, can be identified in the legal space, may be contested at the Constitutional Court. It follows that the Constitutional Court may review the compatibility of an existing legal provision with the Satversme, but cannot review a non-existent legal provision. “In accordance with Section 1 of the Constitutional Court Law, the Constitutional Court examines cases on the compatibility of laws and other legal acts with the Satversme. This means that the Constitutional Court may review only legal provisions defined in legal acts and may not assess the compatibility of a non-existent legal provision with a provision of higher legal force.”[68] At the same time, the Constitutional Court, similarly to other constitutional courts,[69] has recognised the possibility to assess the so-called “legal lacunae”.[70] It means that a legal provision that would regulate certain (preferable) legal relationships is absent, and therefore (in the opinion of the applicant and the Constitutional Court) incompatibility with the Satversme sets in. I.e., in contesting the compatibility of a (another) legal provision with the Satversme, the deficiency of the law is examined. For example, in case No. 2011-16-01 the compatibility of provisions of the first part of Section 62 of the Insolvency Law and the second part of Section 3632 of the Civil Procedure Law, to the extent they do not envisage the right to release a person from the payment of deposit, with Article 92 of the Satversme was examined, because the applicant considered that the right, not included in the provision, of the court to release a person from making the so-called deposit payment, obstructed access to court.[71] However, the non-existent legal regulation will not always be examined by the Constitutional Court, since the Constitutional Court also has to distance itself from deciding upon issues of legal policy, which falls within the legislator’s competence.[72] However, in those cases, when “the Satversme envisages a positive duty of the legislator to implement certain measures to safeguard or to ensure fundamental rights”[73] and the means chosen by the legislator are not appropriate for reaching the aim, then the examination of the so-called “legal lacunae” should not be incompatible with Article 85 of the Satversme.
To contest the compatibility of a law with the Satversme, the law may not have lost its legal force at the moment of submitting the application.[74] The Constitutional Court may not engage in dispute settlement, if such is absent, i.e., the object of dispute – the legal provision – is non-existent.[75]
b) Content of the “Constitution”
The Constitutional Court in its case law has repeatedly emphasized that the aim of the legislator, in establishing the Constitutional Court, was to create an effective mechanism for safeguarding the priority of constitutional provisions.[76] The fundamental principle in the existence of democracy and judicial state is the recognition of the constitutional supremacy, which, in its turn, is the basis for the concept of constitutional control (institution). This aspect is reflected in Section 85 of the Constitutional Court Law, which sets out that the compatibility of a law with the Satversme is subject to control. Therefore this aspect (compatibility with the Satversme) reflects not only one category of cases to be reviewed by the Constitutional Court, but also the fundamental idea (essence) of the Constitutional Court, i.e., constitutional control – to ensure the rule of the Satversme.
The concept “Satversme” first of all covers those written legal provisions, which have been adopted by the constitutional legislator, have the highest legal force and are collected in a written document, i.e., in a legal act called the Satversme of the Republic of Latvia (adopted on 15 February 1922). The Satversme covers (contains) also those laws, by which the Satversme has been amended, since “the laws adopted in accordance with the procedure of Article 76 – 79 of the Satversme, which amend the Satversme, have higher legal force than ordinary laws.”[77]
General principles of law are an indispensable part of the Satversme, since the constitution as legal reality covers various rules, constitutional provisions and principles, which are directly enshrined in constitutional provisions or are derived from them.[78] The Constitutional Court in its practice has recognised general principles of law as the source of law, using Article 1 of the Satversme, since the Constitutional Court holds the opinion that “[f]rom article 1 of the Satversme, which provides that Latvia is an independent democratic republic, a number of principles of a judicial state follow, including the principle of the division of power and the principle of legitimacy.”[79] It is indubitable that the general principles of law are an integral part of the constitution, their task being “to ensure that other legal provisions, also those included in the Satversme, are applied correctly, and that their application and the result of such application would fully comply with the requirements of a judicial state.”[80]
The concept “Satversme” defined in Article 85 of the Satversme covers Latvia’s constitutional regulation, which may be set out not only in the Satversme, in the narrow understanding of it. When deciding on initiating proceedings in the so called Case of Latvian-Russian Border Agreement, the Constitutional Court Panel concluded that “it is within the jurisdiction of the Constitutional Court to examine cases not only regarding the compatibility of a law with the Satversme in the narrow understanding of it – the concrete document “Satversme of the Republic of Latvia”, but also cases concerning the compatibility of a law with the Satversme in a broader understanding of it, i.e., cases concerning the compliance of a law to all provisions of constitutional character (rank level). Moreover, irrespectively of the place of this provision of constitutional character in the hierarchy of legal acts vis-à-vis the Satversme in the narrow understanding of it.”[81] Thus, the concept “Satversme” in the broader understanding of it, included in Article 85 of the Satversme, covers all those provisions that determine the constitutional regulation in the state.
Even though divergent opinions on the understanding of the Satversme are found in the legal doctrine[82], the Constitutional Court has defined that “the constitutional regulation of the state of Latvia is basically collected in the Satversme, however, the legal provisions of 27 May 1920 Declaration on the State of Latvia[83], the Declaration of Independence[84] and the Constitutional Law[85] still retain their legal force, to the extent these have not been replaced by the Satversme provisions.”[86] An opinion can be found in the science of law that the Act of the National Council of 18 November 1918 on the Proclamation of the Republic of Latvia is an act of constitutional rank that is in force alongside the Satversme.[87] Thus, the constitutional regulation of the state of Latvia is included in several legal acts of constitutional rank, and they all form Latvia’s written constitution. Relying upon this “broader” understanding of the Satversme, the Constitutional Court has examined cases, in which the compatibility of legal provisions with the Preamble of the Declaration “On the Restoring the Independence of the Republic of Latvia[88], as well as Paragraph 9 of it[89] were contested.
Alongside the aforementioned, the Constitutional Court has deemed as acts or provisions of constitutional rank also such that have been adopted in cases set out in the Satversme (Article 68[90]), i.e., delegating the competences to international institutions. “With the amendments to Article 68 of the Satversme from 8 May 2003 another type of constitutional rank acts is envisaged. The Saeima can ratify international agreements, in which, with the purpose of strengthening democracy, part of the competence of state institutions is delegated to international institutions, in sittings, requiring the presence of at least two thirds of the Members of the Saeima, and the majority vote of the two thirds of those present is needed to ratify them.”[91] Similarly, it has been confirmed in the theory of law that any delegation of the competence of the state to international institutions is possible only with a provision of such legal force, which can be equalled to constitutional provisions.[92]
c) The Jurisdiction Provided by the Law
The constitutional legislator has envisaged in Article 85 of the Satversme that alongside one category of cases defined in Article 85 of the Satversme, other cases to be examined by the Constitutional Court are defined in the law (“cases [..] conferred to it by the law”). Article 85 of the Satversme does not specify what kind of law it is that defines the jurisdiction of the Constitutional Court, however, one may assume that currently the only law, which may define the jurisdiction of the Constitutional Court, could be the Constitutional Court Law. While amendments to Article 85 of the Satversme were drafted, Member of the Saeima, rapporteur A. Endziņš, while explaining the content of this article, inter alia, said that the Constitutional Court shall examine cases regarding “the compatibility of laws with the Satversme, as well as other cases conferred into its jurisdiction by the Constitutional Court Law [authors’ highlight] [..]”.[93] In the course of drafting the Constitutional Court Law a proposal was discussed that the functioning of the Constitutional Court could be regulated not only by the Constitutional Court Law, but also by other laws. A. Endziņš, commenting upon this proposal, pointed out that “the Legal Affairs Committee did not support this proposal, since the amendment to the Satversme also envisages that there is this, well, special provision, that the functioning of the Constitutional Court is regulated by a special law. If we write in this provision, that also in accordance with other laws, it will mean that significant changes can be introduced by other laws. That’s why the Legal Affairs Committee did not support it.”[94] The aforementioned confirms that the scope of the concept “by law” included in Article 85 of the Satversme should be understood narrowly, i.e., as only one law, which in this concrete case is the Constitutional Court Law, which may define cases to be examined by the Constitutional Court. The Constitutional Court pointed out in its ruling that “in general the jurisdiction of the Constitutional Court is set out in Article 85 of the Satversme and Section 1 of the Constitutional Court Law, but an exhaustive list of cases to be examined by the Constitutional Court is included in Section 16 of the Constitutional Court Law.”[95] However, this conclusion does not mean that procedural issues cannot be specified in other laws, alongside the Constitutional Court Law, but these can never define or create a new category of cases to be reviewed by the Constitutional Court and regulate the jurisdiction of the Constitutional Court. Thus, for example, Section 49 of the law “On Local Governments” contains provisions, which are the basis for submitting an application of local government council to the Constitutional Court.[96]
“Other cases”, which the constitutional legislator has intended to include into the jurisdiction of the Constitutional Court, have been left at the discretion of the legislator. This choice of the constitutional legislator (untypical – compared to other countries) regarding such an essential delegation should be linked with the brevity of the Satversme. At the same time the so-called open principle of the Constitutional Court competence has also an advantage, as there is no need to amend the Satversme for specifying the jurisdiction of the Constitutional Court. This is confirmed by amendments introduced to Section 16 of the Constitutional Court Law, i.e., the section defining the jurisdiction of the Constitutional Court.[97] However, “other cases” thus far have been the cases, in which the Constitutional Court had to examine the compatibility of legal acts and their provisions with the legal provision of higher legal force. The Constitutional Court Law (Section 16) besides jurisdiction provided by the Constitution, states, that the Constitutional Court shall adjudicate also cases regarding compliance of international agreements signed by or entered into by Latvia (also until the ratification of the relevant agreements in the Saeima) with the Constitution; compliance of other regulatory enactments or parts thereof with the norms (acts) of a higher legal force; compliance of other acts of the Saeima, the Cabinet, the President, the Speaker of the Saeima and the Prime Minster, except for administrative acts, with law; compliance with law of such an order with which a Minister authorised by the Cabinet has suspended a decision taken by a local government council; compliance of Latvian national legal norms with those international agreements entered into by Latvia that is not in conflict with the Constitution.
Even though prima facie one might conclude that determining “other cases” is an exclusive and unlimited competence of the legislator, however, in determining the jurisdiction of the Constitutional Court alongside the one mentioned in the Satversme, the legislator is bound by the principles and provisions found in the Satversme. Likewise, when determining the “other cases” to be examined at the Constitutional Court, the aspects of jurisdiction typical of constitutional courts should be taken into consideration[98]. It would be inadmissible to include in the jurisdiction of the Constitutional Court such aspects of jurisdiction, which would collide with the status, essence and competence of the Constitutional Court as a judicial institution or would be incompatible with other constitutional provisions, inter alia, distorting the functions of institutions implementing state power. For example, the Constitutional Court could not be involved in the legislative process as an advisory institution. Likewise, the theoretically feasible a priori constitutional control not only with regard to the assessment of the constitutionality of international agreements, but other legal acts, would be controversial.
5. The Competence to Declare Legal Acts Invalid
The second sentence of Article 85 of the Satversme grants to the Constitutional Court exclusive competence to declare invalid “laws and other enactments and of parts thereof”. Essentially these all are legal acts or parts thereof, over which the Constitutional Court has the right to exercise the constitutional control, i.e., any object of constitutional control. Upon identifying a collision between the contested provision (act) and a legal provision of higher legal force, the Constitutional Court simultaneously declares the provision (act) invalid..
The Constitutional Court exercises its right to “declare invalid” laws and other enactments or parts thereof only in one procedural form, i.e., by adopting judgements. A Constitutional Court judgement differs from a judgement of a court belonging to the general court system as to its character. The judgement of a court belonging to the general court system pertains only to the legal relations of concrete persons within a concrete case (inter partes) and are not directly applicable in adjudicating other cases. The task of the Constitutional Court judgement, however, is to verify the constitutionality of legal acts conferred for the Constitutional Court control. The Constitutional Court in its judgement decides, whether the contested provision (act) will lose its force, being incompatible with a legal provision of a higher legal force, or it is compatible with the Satversme and therefore valid. Thus, a Constitutional Court judgement is applicable not only to the concrete legal relationship, but its scope is the same as the scope of the contested provisions (acts). Several requirements as to the form and content of the Constitutional Court judgement follow from Article 85 of the Satversme as a whole and from its second sentence. This is defined by the aim and objectives of constitutional control. Thus, on the one hand, the judgement is a legal document presented as procedural document, adjudicating the case as to its merits, but, on the other hand, the Constitutional Court, in adopting a decision, decides whether to retain the legal provision(act) in the legal system or to exclude it.
The legal nature of a Constitutional Court judgement is characterised by the following features: 1) universally binding force (erga omnes); 2) final (cannot be appealed); 3) public; 4) directly applicable; 5) unsurpassable.
The second part of Section 32 of the Constitutional Court provides that a Constitutional Court judgement and the interpretation of a legal provision included in it is mandatory to all state and local government institutions (including courts) and officials, as well as to natural and legal persons. Thus, a Constitutional Court judgement is mandatory to all subjects within the whole territory of the state. It has erga omnes force, i.e., it is generally binding. Essentially, the generally binding force of the Constitutional Court judgement can be equalled to the force of law.[99] However, this should be understood not as equality with law, but as the general binding force of the judgement as of a law. A Constitutional Court judgement has the impact of a law, but not its form.[100]
The first sentence of the first part in Section 32 of the Constitutional Court Law provides that a Constitutional Court judgement is final. It means that a Constitutional Court judgement cannot be appealed against and it cannot be re-examined by any state or international institution. Likewise, the Constitutional Court itself has no right to re-examine its own judgement. However, a judgement made in a concrete case cannot cover the changes that might happen after it has come into force. If the circumstances of the case change significantly, the claim cannot be considered to be adjudicated. This is proven by the Constitutional Court practice, repeatedly examining the compatibility of Para 5 and 6 of Section 5 of the Law on the Saeima Election with the Satversme.[101] Thus, in some cases, assessing the actual circumstances of the case, the conclusions (findings) made in the previous judgment, as well as changes in the legal system and establishing the existence of essentially new circumstances, the Constitutional Court may adjudicate an already adjudicated claim. The finality of the judgement cannot be attributed to the findings expressed in the Constitutional Court judgements. Under certain conditions the Constitutional Court may develop, expand and even change its findings expressed in judgements. Thus, none of the Constitutional Court judgements provides an exhaustive interpretation of the respective constitutional provision. The findings of the Constitutional Court as regards the interpretation of a concrete constitutional provision evolve and are improved, at the same time, do not reveal the full content of a constitutional provision.
The Constitutional Court judgements come into force on the date of their promulgation or publication. They are published in the official journal within five days following the date of their adoption. The publication ensures the public character of the Constitutional Court judgements.
The Constitutional Court judgements are directly applicable legal acts. No special “embodiment mechanism” or act on applying the law are needed to enforce a Constitutional Court judgement. The declaration of a provision invalid means that on the date of publication or a date specifically set in the judgement the contested provision automatically loses its force. Latvia’s legal regulation does not require the legislator to revoke the provision by introducing amendments to the legal act. In practice the party applying the legal provision, by checking the information system on legal acts (www.likumi.lv), maintained by the Ministry of Justice (the administrator of official journal), will find on the site of the specific provision a reference that it has become invalid as of a certain date. The only exception to this practice applies to international agreements. The fourth part of Section 32 of the Constitutional Court Law stipulates that in cases, when a Constitutional Court finds an international agreement, signed or concluded by Latvia, incompatible with the Satversme, the Cabinet of Ministers is obliged to act immediately to introduce amendments to this agreement, denounce it, suspend its functioning or recall accession to it. The subjects of legal relationships may directly refer to the Constitutional Court judgement. Sometimes the Constitutional Court judgement contains also temporary provisions that must be abided by until the legislator has improved the lawful regulation, bringing it in compliance with the Satversme.[102]
The Constitutional Court judgement is unsurpassable. If the Constitutional Court has declared legal provisions incompatible with the Satversme, the institution that has adopted the provision may not repeatedly adopt identical provisions (act). This characteristic follows from the principle of the division of power, otherwise it would be impossible to execute the function of constitutional control.[103] Simultaneously it must be noted that the instructions included in the Constitutional Court judgement regarding amendments to the legal regulation may not restrict the legislator’s freedom to select the most appropriate solutions[104]. It is possible to adopt an identical provision, but only in the following cases: 1) if the legislator had infringed procedural provisions and, in adopting the new provision, has fully complied with the procedure and the instructions expressed in the Constitutional Court judgement; 2) amendments have been introduced to the legal regulation and the repeated adoption of the contested provision no longer creates incompatibility with a legal provision of higher legal force or 3) to eliminate the incompatibility amendments have been introduced to a legal provision of higher legal force, inter alia, to the Satversme.
Article 85 of the Satversme does not define the moment when the legal provision (act) becomes invalid, but at the same time it sets out that the Constitutional Court shall examine the cases “within its jurisdiction as provided by the law.” In accordance with the third part of Section 32 of the Constitutional Court Law a legal provision (act), which has been declared by the Constitutional Court as non-compliant with a norm of a higher legal force, shall be regarded as not in effect from the day of publication of the Constitutional Court judgement, unless the Constitutional Court has determined otherwise. Thus a legal provision (act) can become invalid both according to general and special procedure. In the general procedure the legal provision becomes invalid from the day of publication of the Constitutional Court judgement. The special procedure is determined by the Constitutional Court. Thus, Article 85 of the Satversme authorises the legislator to set the procedure for hearing cases at the Constitutional Court, inter alia, the procedure in which the contested provision (act) becomes invalid. However, the legislator, in determining this procedure, has granted to the Constitutional Court the discretion to decide the moment when the contested provision, which has been declared incompatible with a legal provision of a higher legal force, becomes invalid. The Constitutional Court, however, has to substantiate its opinion if the contested provision is declared to be invalid from another day, not from the date of publication of the judgement. The duty to substantiate its opinion follows from the principle of legality, which is binding to the Constitutional Court itself.[105] The contested provisions become invalid: 1) on the day of publication of the judgement (general rule, which follows from the Constitutional Court Law; 2) from the day it was adopted (ex tunc); 3) on a date determined by the Court, which coincides neither with the day of adopting the provision, nor the day of publication of the judgement: a) the date may be retroactive (ex tunc), b) the date may set in the future (ex nunc).
The general procedure for a provision to become invalid, i.e., from the day of publication of the judgement is the most frequently used tool in the Constitutional Court practice. The declaration of a provision to be invalid as of the day of its adoption can be applied only in few cases. Retroactive judgement should be regarded as an exception.[106] In such cases special attention should be paid to legal relationships pertaining to the anti-constitutional provision. Declaration of retroactive force is typical of such cases, when the contested provision has been adopted ultra vires[107] or significant procedural violations have been committed.[108] Thus, the principle that “an anti-constitutional law is not a law”[109] should be applied to such cases, it has never existed, having been adopted in unlawful procedure. Consequently, it could not create legal relationships. However, there could be also other cases, when justice would demand declaring the contested provision invalid from the day of its adoption. The Constitutional Court, having established such a situation, has to provide substantiation for this necessity.
The retroactive force of the judgement is of special importance within the institution of constitutional complaint, since this might be the only possibility to safeguard a persons’ fundamental rights[110]. Therefore the Constitutional Court quite frequently, upon declaring a contested provision incompatible with the Satversme and invalid, sets a special condition that with regard to the applicant the provision becomes invalid as of the day of its adoption [111], in some cases the retroactive force is applied also to other persons (groups of persons), which are under similar actual and legal conditions as the applicant[112]. Similar practice is applied to legal provisions, which have been subject to the Constitutional Court following an application by the court. In such cases the retroactive force is applicable to those persons, for the protection of whose fundamental rights the court has turned to the Constitutional Court, i.e., the parties of the respective civil, criminal or administrative case. The range of the aforementioned persons may be expanded, if the persons are under similar or comparable conditions as the parties of the case, which is adjudicated by a general jurisdiction court[113].
The retroactive force defined in the Constitutional Court judgement may not coincide with the moment of adopting the provision. Usually the court selects such date as the date when the fundamental rights of the applicant or the party to the case adjudicated by a general jurisdiction court were infringed.[114] However, if it is impossible to identify a concrete date of the infringement, then the court declares this provision to be invalid vis-à-vis these persons as of the date of its adoption.
The setting of the date, when an anti-constitutional legal provision becomes invalid, is usually linked with specific considerations. The Constitutional Court already in one of its first judgements analysed and noted some principles it had used as guidelines, deciding upon the date, from which the contested legal provisions become invalid. Comparison of the principles of justice, legality, division of power and legal certainty (trust in courts) lead to the conclusion that some elements of the legal certainty principle are significant, for example, the impact of a retroactive force of a judgement upon private and public interests, the permanence of legal relationships, changes of the legal status of persons, who relied upon the legality of the contested act.[115] However, there are cases in court practice, when the Court has to consider ways, when protecting a person’s infringed rights, not to undermine the legal stability, i.e., the judgement has to be proportional with the aim it wanted to achieve. Therefore, the Constitutional Court in some cases has initiated practice, when the contested provision is declared to be invalid in the future[116] or if a certain event (condition) fails to occur. For example, if a law is not amended[117], appropriate procedure in connected laws is not introduced[118], infringement of persons’ fundamental rights is not eliminated [119].
Declaration of a legal provision incompatible with the Satversme, simultaneously envisaging that the provision will lose effect at a postponed date (ex nunc), usually occurs when amendments to the legal regulation is needed. I.e., the Constitutional Court gives the legislator time to align legal regulation and to rectify the errors made. Different periods are set for improving the regulation: from three months up to a year. The Constitutional Court, in setting this term, in each specific case considers the scope of needed amendments and whether the legislator will be able to adopt the amendments to the legal act within this period. Exclusion of the contested provision from the legal regulation may have various consequences. It may improve the legal regulation, but might also lead to a situation, which is even worse that the previous regulation (contested provision), as any kind of regulation becomes non-existent. Therefore the Constitutional Court in its judgements very meticulously assesses the possible consequences of revoking the provision.[120] The Constitutional Court has concluded on a number of occasions that an immediate revoking of the contested provision would be even more incompatible with the Satversme compared to leaving the contested provision in force, a postponed date for enforcing the judgement can be set.[121]
6. Confirmation of the Justices
The constitutional legislator in Article 85 of the Satversme has set out a different procedure for establishing the corps of the Constitutional Court Justices compared to appointment to the office of the judges within the general court system (Article 84 of the Satversme).
Without denying the importance of other judicial institutions, the Constitutional Court has been granted a very essential and influential competence – to review laws and declare them laws. Considering the place, role and significance of the Constitutional Court in the state the procedure for confirming the Constitutional Court Justices to the office may differ. It follows from the scope of the Court’s competence and its rights that the parties implementing all functions of state power should be party to the development of such an important judicial institution: including not only the legislative and the executive, but also the judicial power. In the process of setting up the Constitutional Court unfoundedly large impact of the implementer of one state function should be balanced (as much as possible).
Article 85 of the Satversme does not give a precise number of the Constitutional Court Justices. Usually the number of justices at a constitutional court depends upon several objective factors: the population, form of state order, jurisdiction of court, the range of subjects entitled to submit applications. Section 3 of the Constitutional Court Law sets out that the Constitutional Court shall have 7 Justices. The smallest number of justices in a constitutional court – six justices – is at the Constitutional Court of the Moldova Republic.[122] The number of justices in other European constitutional courts fluctuates from 9 to 16 (for example, Lithuania – 9, Spain – 12, Portugal and Slovakia -13, Italy, Poland -15, Germany -16).[123]
The requirements set to the candidates for the office of the Constitutional Court Justice are included in the Constitutional Court Law (Section 4), which, consequently, gives the legislator the right to change the requirements set to the Constitutional Court Justices, based upon impartial considerations. In view of the competence of the Constitutional Court, “[..] it is essential to appoint only persons with the highest possible qualification as the Constitutional Court Justices.”[124] However, such possible amendments should not decrease or lower the requirements set for the Constitutional Court Justice. It is accepted that persons, who are recognised and highly esteemed among the professionals and in society, become constitutional court justices.
The requirements set for the candidates to the office of the Constitutional Court Justice are similar to the ones set for constitutional court justices in other countries and to the Supreme Court Judges. A general requirement, which applies to the judicial system and to Constitutional Court Justices, is that in Latvia only a citizen of Latvia with impeccable reputation may become a judge. In order to administer justice every judge “shall have the necessary knowledge of law and legal work experience”.[125] The candidates for the office of the Constitutional Court Justice must have appropriate education in the science of law, its scope is specified in the Constitutional Court Law.[126] Latvia’s experience in appointing the Constitutional Court Justices in office shows that persons with experience in academic work are appointed to this responsible job.[127] The experience of various countries shows that the requirements regarding the minimum length of service (experience) set for the constitutional court judge is 10 years in Latvia [128] (also Lithuania and the Czech Republic[129]) up to 15 years (Slovakia[130]) and 20 years (Hungary[131]). Since only a person with appraisable professional achievements can become a Constitutional Court Justice, since “the office of the Constitutional Court Justice should enjoy respect; a person with very high professional level and previous experience should occupy this office; and it is like this in the majority of European states”[132], a person who has reached the age of 40 can become a Constitutional Court Justice – the same age requirement is set for the President of the State in the Satversme.[133]
Latvian institutions of judicial power are developed in accordance with the principle that all judges, including the Constitutional Court Justices, are appointed to the office by the Saeima. The decision of the Saeima is one the main criteria for ensuring the independence of judges.[134] This means that the corps of the Constitutional Court justices is created on the basis of the so-called ballot system, in which the final word belongs to the parliament.
Even though the final decision on confirming a Constitutional Court Justice is taken by the Saeima, three constitutional institutions have the right to propose candidates to the office: three candidates to the office of the Constitutional Court justice can be proposed by at least ten Members of the Saeima; two – by the Cabinet of Ministers; two – representatives of the judicial power – by the Plenary Session of the Supreme Court, which may select candidates from among the judges of the Republic of Latvia. The participation of all institutions that exercise power in the creation of the Constitutional Court not only underlines the importance of the Constitutional Court, but also reduces political influence in this.
When proposing candidates for the office of the Constitutional Court Justice, their compatibility with all requirements set in the law (i.e. the Constitutional Court Law) should be ensured. Likewise, a person, who cannot be a candidate for the judge’s office, cannot be proposed as candidate for the office of the Constitutional Court Justice.[135] The candidates are evaluated by the Judicial Council, which provides opinion on them.[136]
A judge of the general court system is appointed to the office by general ballot of the Saeima, i.e., on the basis of Article 24 of the Satversme, decision being adopted by the majority vote of Members present, but at least 51 Members of the Saeima have to vote for the Constitutional Court Justice candidate, as for the President of the State. The voting regarding candidates to the office of Constitutional Court Justices is secret, but judges of general court system – open. It must be noted that there are only two occasions when the Satversme envisages secret ballot – appointment of the Constitutional Court Judge and electing the President of the State.[137] The similarity of these both procedural regulations is not a coincidence, as this obviously points to the role and importance of the Constitutional Court within the state. Moreover, one cannot disagree with the opinion that the requirement for the candidate to the office of a Constitutional Court Justice to obtain 51 votes facilitates coming into this office of persons, who have authority in society and are trusted by politicians and the public, which would in the future mean respect for and enforcement of the Constitutional Court judgements.[138]
The Constitutional Court Justice assumes his duties or comes into office only after giving the oath (solemn promise), as stipulated in the law “On Judicial Power”, to the President of the State. The persons, who already previously been in judges office and have given the judge’s oath (solemn promise), are exempt from it. These persons do not repeat the oath (solemn promise), since the need to repeat the oath (solemn promise) is to be excluded.
The Constitutional Court Justices are appointed to the office for “the term stipulated in the law”. Thus, the Satversme envisages that first of all, in difference to the judges of the general court system, who are appointed for unlimited term (Article 84), the Constitutional Court Justices are appointed for a concrete term. The appointment of the Constitutional Court Justices for a concrete term in office is to be linked with the special status, rights and authority of the Constitutional Court, i.e., the necessity to exclude the concentration of such essential rights in the hand of one corps of justices for an unlimited period of time. It has been noted that a definite period, for which a constitutional court judge is appointed to office, excludes the possibility that an uncontrollable group of lawyers, most often – academics, would have the right to decide upon essential issues.[139] Likewise, the renewal of the corps of judges is important in implementing constitutional control, ensuring influx of new ideas into this judicial institution. Secondly, the Satversme delegates the setting of this term to the legislator. The term in office of the constitutional court judges varies, from 9 years (Poland, Lithuania[140]) even up to 12 years (Slovakia, Hungary [141]). It seems that the judges of the Moldova Constitutional Court have the shortest term in office – 6 years.[142] The Constitutional Court Law provides that the term in office for the Constitutional Court Justices is 10 years. This period is counted from the moment when the Justice has assumed the official duties: either from the moment of giving the oath (solemn promise) or being appointed to the office for persons who have been judges prior to being appointed as the Constitutional Court Justices.
During his term of office the Constitutional Court Justice cannot be removed from office. A Constitutional Court Justice can feel secure that he will be executing the duties of the Justice throughout the period of appointment, without fear that in case of taking a decision, disliked by someone, he would lose his position as a Justice. However, there might be situations of objective and substantiated need for the Justice to be removed from office.
The safeguards regarding irremovability from office for the judges of the general court system and the Constitutional Court Justices differ significantly as to the subject, who has the right to decide upon restrictions to the irremovability safeguards of the Constitutional Court Justices. Considering the differences in the court systems and the rules on appointing a Constitutional Court Justice, the term of office, as well as the competence, a principle is enshrined in the Constitutional Court Law that all issues linked with losing the office of a Constitutional Court Justice is decided by the Constitutional Court itself, not by the Saeima.[143] By entrusting this competence to the Constitutional Court, any impact (in a negative sense) of the legislator or the executive power upon the Constitutional Court is excluded, which means enhancing the independence of the Constitutional Court. L. Solyom, one of the Venice Commission for Democracy through Law experts, commenting upon the legal provision, which was initially included in the Constitutional Court Law and envisaged that the Saeima might dismiss a Constitutional Court Justice from office, following a decision take by the Constitutional Court, pointed out that “… a constitutional court judge should be appointed by the Saeima. With and through this act the justice acquires his mandate and legitimacy. However, once this has been confirmed, there is no need for the very same institution, which appointed the justice, to dismiss the justice from office pre-term. On the contrary – it seems to me that the provisions of the Constitutional Court Law are incompatible with the independence of the Constitutional Court.[..]”[144] The judge also added “I believe that the decision on the removal or dismissal of a justice should be entirely in the discretion of the Constitutional Court.”[145]
The Constitutional Court Law provides an exhaustive definition of various ways for losing the office of the Constitutional Court Justice (dismissal, removal, losing the office, resignation). The Constitutional Court Law envisages also the suspension of a Justice’s mandate, if such circumstances have set in that demand additional clarification or investigation, but at the same are so serious that are incompatible with the office of Justice.[146] In addition to that Para 3 of the Section 34 of the Constitutional Court Law envisages that the Constitutional Court may suspend the Constitutional Court term of office of such Justice, who is fulfilling official duties in an international court or is representing the Republic of Latvia, fulfilling official duties in an international institution, for the time period when the judge holds the relevant office, but not longer than for three years.
The Constitutional Court Justice, during the term of office, has immunity guarantees, since the law protects the Justice against restrictions to his freedom. Guarantees to the immunity of a Constitutional Court Justice is an objective necessity, these have been defined to protect judges against any undue external influence. Similarly as regards the issue on the irremovability of the Constitutional Court Justice from the office, and also in difference to the immunity guarantees of the judges belonging to the general court system, the decision on restricting the immunity of a Constitutional Court justice is taken by the Constitutional Court and not by the Saeima.[147] Section 35 of the Constitutional Court Law envisages that criminal prosecution may be commenced against a Constitutional Court judge, his detention, forcible conveyance and subjection to search may take place only with the consent of the Constitutional Court. The Satversme allows concluding that the legal status of a Constitutional Court Justice and of the judge of the general court system differ, the subject, which decides on the institution of the independence of judges as such may also differ. It must be also noted that Article 85 of the Satversme contains an accurate definition of the functional interaction between the Constitutional Court and the Saeima, since the Constitutional Court adjudicates cases regarding the compatibility of laws with the Satversme and has the right to declare them invalid. Therefore the Saeima’s influence upon the Constitutional Court would be inadmissible. “After a justice has been confirmed in the office, any authorisation of the Saeima vis-à-vis the justices would be incompatible with the independence of the Constitutional Court.”[148] Strengthening the rights of the Constitutional Court to decide on restrictions to the immunity guarantees to the judges, concretely – the right to allow commencement of criminal prosecution against a judge – the Constitutional Court noted in its decision of 10 October 2011 that “[..] the Constitutional Court Law envisages special procedure for deciding the question regarding allowing commencing criminal prosecution against a judge. This is decided only by the Constitutional Court, in full sitting, with absolute majority of vote.”[149] The rights of the Constitutional Court were also confirmed by the Saeima, in the decision adopted on 3 November 2011 that the issue on starting criminal prosecution against a Constitutional Court judge can be solely decided by the Constitutional Court.[150]
The “set term”, defined in Article 85 of the Satversme, indicates that after the 10 years’ term in office has expired, the person has to resign from the office. The Constitutional Court Justice’s term in office has to be examined in interrelation with the concept included in Article 85 of the Satversme “there shall be a Constitutional Court”, in accordance with it, in exceptional case, the mandate of the Constitutional Court Justice can be extended to ensure the functioning of the Constitutional Court. The Constitutional Court Law (the third and fourth part of Section 11) contains two[151] exceptions allowing to extend the mandate of a Constitutional Court Justice, which is significant not only for ensuring the functioning of the Constitutional Court, but also has preventive meaning. The aim of the aforementioned legal provision is, inter alia, to point out to the persons involved in establishing the corps of the Constitutional Court judges their duties in this regard.
The third part of Section 7 of the Constitutional Court Law provides that one and the same person may not occupy the office a Constitutional Court judge “longer than ten successive years [..]”. This provision of the Satversme, in contrast to, for example, the regulation on the Lithuanian Constitutional Court[152], does not clearly state that one and the same person may not repeatedly become a Constitutional Court Justice after some time, or whether the person may become a Constitutional Court Justice only once in his lifetime.[153]At the time when the Constitutional Court Law was adopted, the proposal was discussed concerning possibility that a formed Constitutional Court Justice could be re-appointed to the office only after 10 years, Member of the Saeima A.Endziņš, commenting upon the negative opinion of the Legal Affairs Committee, stated that “the Legal Affairs Committee did not support this proposal, believing that one and the same person may not be in the office of the Constitutional Court Justice for longer than 10 successive years. However, if there is a vacancy and some time has passed, when this person was… and if he has done a decent job, and if the same institution which proposed him proposes him, then he could be re-elected after a certain short period, because, anyway, this issue is decided by the Saeima.”[154]
The Council of Europe Venice Commission for Democracy through Law in one of its studies indicates that the judges of constitutional courts should be appointed to office for a relatively long term, without envisaging re-appointment, or it should be set out that a judge can be re-appointed only once.[155] When commenting the new provisions of the Hungarian Constitution, envisaging extending the term of office for the Hungarian Constitutional Court judges from 9 to 12 years, the same Venice Commission has pointed out in its opinion that the judge’s term in office should not be renewed – excluding the possibilities for re-appointment.[156] It is indicated in literature that there can be nothing worse than “short and renewable” term of appointment for a constitutional court judge.[157] A system, which precludes the possibility for a person to become repeatedly a constitutional court judge, should be considered as the most appropriate for promoting and ensuring judges’ independence. Only a judge, who has no need to think about being re-appointed to the office, will not be afraid to pass such rulings that affect the legislator and the executive power, inter alia, having a dissenting opinion from the majority of court members. Even though at the time when the Constitutional Court Law was drafted a different opinion was expressed and the following conclusion does not derive from the Satversme, considering the competence of the Constitutional Court, as well as the need to ensure the independence of the court and the justices, renewal of the court, political independence, a person should become a Constitutional Court judge only once in his or her lifetime.
[1] The Constitution of the Republic of Latvia. http://www.saeima.lv/en/legislation/constitution/
[2] Constitution (articles 76 and 77) provides, that the Saeima may amend the Constitution in sittings at which at least two-thirds of the members of the Saeima participate. The amendments shall be passed in three readings by a majority of not less than two-thirds of the members present. If the Saeima has amended the first, second, third, fourth, sixth or seventy-seventh Article of the Constitution, such amendments, in order to come into force as law, shall be submitted to a national referendum. The Constitution of the Republic of Latvia. http://www.saeima.lv/en/legislation/constitution/
[3] Endziņš A. Latvijas Republikas Satversmes tiesas loma Latvijas Republikas Satversmē noteikto vērtību aizsardzībai. Grām.: Konstitucionālās tiesas loma valsts konstitūcijā nostiprināto vērtību aizsardzībā. Rīga: TNA, 2007, 8. lpp.
[4] Latvijas Republikas Satversme. Likumu un Valdības rīkojumu krājums. 1922, 12. Burtnīca, Nr.113.
[5] Par Latvijas Republikas neatkarības atjaunošanu: LPSR Augstākās padomes deklarācija. Ziņotājs, Nr. 20, 17.05.1990.
[6] Kudej B. Legal History of Czechoslovakia: from its Creation in 1918 to its peaceful separation in 1992. International Journal of Legal Information, 1996, Vol. 24, p. 75.; The Constitution of Czechoslovakia. The Constitution Review, 1920, Vol. 4, p. 245-249.; Cappelletti M. Judicial Review in the Contemporary World. USA: The Bobbs-Merrill Company, Inc., 1971, p. 72.
[7] Dišlers K. Ievads administratīvo tiesību zinātnē. Rīga: TNA, 2002, 223.lpp.
[8] Endziņš A. Tiesu sistēmas un politikas saskarsme un dinamika. Jurista vārds Nr. 9 (242), 07.05.2002.
[9] Akmentiņš R. Latvijas Satversmes reforma. Jurists, 1934, Nr. 5 (57)135.sleja.
[10] Par Latvijas Republikas neatkarības atjaunošanu: LPSR Augstākās padomes deklarācija. Ziņotājs, Nr. 20, 17.05.1990.
[11] Par tiesu varu: LR likums. Ziņotājs, nr. 1, 14.01.1993.; Muižnieks J. Par Satversmes tiesu kā Satversmes garantu. Latvijas Vēstnesis, pielikums Jurista vārds, 1996. 31. oktobris, nr. 24 (38); Levits E. Starp tiesību normu un tiesisko realitāti. Diena, 1996. 10.oktobris; Apsītis R. Individuālo pieteikumu iespējamais ceļš. Latvijas Vēstnesis, 1997. 8. jūlijs, nr.175/177 (890/892).
[12] Endziņš A. Latvijas Republikas Satversmes tiesas loma Latvijas Republikas Satversmē noteikto vērtību aizsardzībai. Grām.: Konstitucionālās tiesas loma valsts konstitūcijā nostiprināto vērtību aizsardzībā. Rīga: TNA, 2007, 7. lpp.
[13] Latvijas Republikas 6. Saeimas ziemas sesijas sestā sēde 1996. gada 8. februārī. http://www.saeima.lv/steno/st_96/st0802.html
[14] Latvijas Republikas 6.Saeimas ārkārtas sesijas sēde 1996.gada 11.aprīlī. http://www.saeima.lv/steno/st_96/st1104.html
[15] Latvijas Republikas 6.Saeimas ārkārtas sesijas sēde 1996.gada 11.aprīlī. http://www.saeima.lv/steno/st_96/st1104.html
[16] Latvijas Republikas 6.Saeimas ārkārtas sesijas sēde 1996.gada 11.aprīlī. http://www.saeima.lv/steno/st_96/st1104.html
[17] Latvijas Republikas 6.Saeimas ārkārtas sesijas sēde 1996.gada 11.aprīlī. http://www.saeima.lv/steno/st_96/st1104.html
[18] Grozījums Latvijas Republikas Satversmē: LR likums. Latvijas Vēstnesis Nr. 100/101 (585/586), 12.06.1996.; Satversmes tiesas likums: LR likums. Latvijas Vēstnesis Nr. 103 (588), 14.06.1996.
[19] Literature sources point to other existing models, for example, the French, the British model, the mixed model, combining various aspects of the two basic models. Haruryunyan G., Mavčič A. Constitutional review and its development in the modern world (a comparative constitutional analysis). Yerevan-Ljubljana, 1999, p. 29.-34.
[20] Jackson V.C., Tushnet M. Comparative Constitutional Law. New York, Foundation Press, 1999, p. 462.
[21] The Constitutional Court. 2009-11-01. 18.01.2010. Para 5.
[22] For example, from the establishment of the Constitutional Court on 9 December, 1996 (when the first justices confirmed in the office gave the oath) till 8 June, 2000 (when the seventh Constitutional Court Justice gave the oath) the Constitutional Court did not work in full membership, i.e., there were only six justices. For more than three years it was impossible to find and appoint to the office the most appropriate candidate. Endziņš A. Latvijas Republikas Satversmes tiesas loma Latvijas Republikas Satversmē noteikto vērtību aizsardzībai. Grām.: Konstitucionālās tiesas loma valsts konstitūcijā nostiprināto vērtību aizsardzībā. Rīga: TNA, 2007, 10. lpp.
[23] On terminating court proceedings in case No. 2001-18-01: Ruling of the Constitutional Court of RL 08.06.2012., concluding part, Para 17.2.
[24] The Constitutional Court. 03-05 (99). 01.10.1999. Para 1.
[25] Par tiesu varu: LR likums. Ziņotājs, nr. 1, 14.01.1993.
[26] Satversmes tiesas likums: LR likums. Latvijas Vēstnesis Nr. 103 (588), 14.06.1996.
[27] The Constitutional Court. 2001-06-03.22.03.2002. Para 1.2.
[28] The Constitutional Court. 2006-12-01. 20.12.2006. Para 9.2.
[29] The Constitutional Court. 2011-11-0103.02.2011. Para 11.1.; The Constitutional Court. 2006-12-01. 20.12.2006. Para 9.2.
[30] The Constitutional Court. 2011-11-01. 03.02.2012. Para 11.1.
[31] 82. In Latvia, court cases shall be heard by district (city) courts, regional courts and the Supreme Court, but in the event of war or a state of emergency, also by military courts. The Constitution of the Republic of Latvia. http://www.saeima.lv/en/legislation/constitution/
[32] The Constitutional Court. 04-03(99). 09.07.1999. Para 1.
[33] The Constitutional Court. 2005-08-01. 11.11.2005. 9.
[34] The Constitutional Court. 2011-11-01. 03.02.2012. 11.2.
[35] The Constitutional Court. 2011-11-01. 03.02.2012. 11.2.
[36] Н.В.Витрук. Конституционное правосудие. Судебное конституционное право и процесс. Мocквa.: ЮНИТИ, 1998, C. 202.
[37] Endziņš A. Satversmes tiesas process un prakse. Administratīvā un kriminālā justīcija, 1997, Nr. 1(1), 3.-8.lpp.
[38] Satversmes tiesas reglaments. Latvijas Vēstnesis Nr. 20 (2407), 06.02.2001.
[39] The Constitutional Court. 2000-07-0409. 03.04.2001. Para 1; The Constitutional Court. 2011-21-01. 06.06.2012. Para 9.
[40] The Judicial Council can submit an application in the frameworks of jurisdiction established by law, that is in those questions, which are in the competence of the Judicial Council.
[41] The Ombudsman can submit an application if the authority or official, who has issued the disputed act, has not rectified the established deficiencies within the time period specified by the Ombudsman.
[42] The Constitutional Court. . 2010-51-01. 14.03.2011. Para 10.2.
[43] Par tiesvedības izbeigšanu lietā Nr. 2011-18-01: LR Satversmes tiesas 2012. gada 8. jūnija lēmums, 16.2.p. https://www.satv.tiesa.gov.lv/upload/2011-18-01_lemums%20par%20tiesvedibas%20izbeigsanu.pdf
[44] The wording “should be applied” is in the subjunctive mod not only to indicate that the provision should be applied, if it were compatible with a legal provision of a higher legal force, but also indicates that this provision should be applied and that, obviously, is necessary for adjudicating cases.
Par atteikšanos ierosināt lietu: Satversmes tiesas 1. Kolēģijas 2011. Gada 24. Februāra lēmums, 3. punkts. Unpublished. Available from the Constitutional Court.
[45] In the decision on refusal to initiate a case, the Panel of the Constitutional Court has indicated that “the application by a court to the Constitutional Court may not be abstract [..]. and the court should substantiate, why the respective provision would be needed for adjudicating the case.” Par lietas ierosināšanu: LR Satversmes tiesas 2007. gada 31. oktobra lēmums, 6. punkts. https://www.satv.tiesa.gov.lv/upload/ierosin_nodokli_nodevas.htm
[46] Par tiesvedības izbeigšanu lietā Nr. 2010-09-01: Satversmes tiesas 2010. gada 13. oktobra lēmums, 12. punkts. https://www.satv.tiesa.gov.lv/upload/lem_izb_2010-09-01.htm
[47] See more: Rodiņa A. Konstitucionālās sūdzības teorija un prakse Latvijā. Rīga: Latvijas Vēstnesis, 2009, 20.-25.lpp.
[48] The Constitutional Court. . 2011-11-01. 03.02.2012. Para 11.1.
[49] Article 79 (part 2) of the Constitution provides, that a draft law, decision regarding membership of Latvia in the European Union or substantial changes in the terms regarding such membership submitted for national referendum shall be deemed adopted if the number of voters is at least half of the number of electors as participated in the previous Saeima election and if the majority has voted in favour of the draft law, membership of Latvia in the European Union or substantial changes in the terms regarding such membership. The Constitution of the Republic of Latvia. http://www.saeima.lv/en/legislation/constitution/
[50] Dišlers K. Latvijas Republikas Satversmes grozīšanas kārtība. Tieslietu Ministrijas Vēstnesis, 1929, Nr. 7/8, 227. lpp.
[51] The understanding of law was specified by the Constitutional Court in a case, in which the compatibility of a state budget sub-program with the Satversme was examined, when the Constitutional Court simultaneously found the answer to the question – whether it had the right to review the compatibility of part of the state budget expenditure plan (sub-program) with the Satversme. I.e., the Constitutional Court first of all had to answer the question, whether a state budget sub-program could be considered to be law. The Constitutional Court. 2011-11-01. 03.02.2012. Para 10, 11.
[52] The Constitutional Court. 2010-06-01. 25.11.2010. Para 9.
[53] The Constitutional Court. 2009-11-01. 18.01.2010. Para 5..
[54] 76. The Saeima may amend the Constitution in sittings at which at least two-thirds of the members of the Saeima participate. The amendments shall be passed in three readings by a majority of not less than two-thirds of the members present. The Constitution of the Republic of Latvia. http://www.saeima.lv/en/legislation/constitution/
[55] 79. An amendment to the Constitution submitted for national referendum shall be deemed adopted if at least half of the electorate has voted in favour. The Constitution of the Republic of Latvia. http://www.saeima.lv/en/legislation/constitution/
[56] Dišlers K. Latvijas Republikas Satversmes grozīšanas kārtība. Tieslietu Ministrijas Vēstnesis, 1929, Nr. 7/8, 227. lpp.
[57] The Constitutional Court. 2007-10-0102. 29.11.2007 . Para 56.2.
[58] Jelāgins J. Tiesību pamatavoti. Grām.: Mūsdienu tiesību teorijas atziņas. Rīga: TNA, 1999, 70.lpp.
[59] The Constitutional Court. 2007-10-0102. 29.11.2007. Para 56.3.
[60] Considering the development trends of the constitutional law and understanding of the Constitution in Latvia in 2012, evolving the doctrine of the core of the Satversme, the possibility that the insights of the Constitutional Court as regards its right to control the mutual compatibility of constitutional provisions might be amended cannot be excluded.
[61] Par atteikšanos ierosināt lietu: LR Satversmes tiesas 2. kolēģijas 2009. gada 6. oktobra lēmums,4.p. Unpublished, available from the Constitutional Court.
[62] Par atteikšanos ierosināt lietu: LR Satversmes tiesas 4. kolēģijas 2003. gada 11. novembra lēmums, 1.1.p. Unpublished, available from the Constitutional Court.
[63] The Constitutional Court. 2008-35-01. 07.04.2009. Para 10.4.
[64] Saeimas kārtības rullis: LR Likums. Latvijas Vēstnesis Nr. 96 (227), 18.08.1994.
[65] Dišlers K. Latvijas valsts varas orgāni un viņu funkcijas. Rīga: TNA, 2004, 96.-97.lpp.
[66] Par lietas ierosināšanu: LR Satversmes 2. tiesas kolēģijas 2009. gada 26. augusta lēmums. https://www.satv.tiesa.gov.lv/upload/lem_ierosin_2009_77.htm
[67] Pieteikums Nr. 358/2009. Unpublished, available from the Constitutional Court.
[68] Satversmes tiesa. 2001– 02– 0106. 26.06. 2001. Para 5; compare to Par tiesvedības izbeigšanu lietā Nr. 2001-18-01: LR Satversmes tiesas 08.06.2012. lēmums, secinājumu daļas 18. punkts; Par atteikšanos ierosināt lietu: LR Satversmes tiesas 4. kolēģijas 2011. gada 23. maija lēmums, 7.p. Unpublished, available from the Constitutional Court; Par atteikšanos ierosināt lietu: LR Satversmes tiesas 1. kolēģijas 2010. gada 28. decembra lēmums, 7.p. Nepublicēts, pieejams Satversmes tiesā.
[69] Kūtris G. Likumu robi un Eiropas konstitucionālās tiesas. Jurista Vārds Nr. 24 (529), 01.07.2008.
[70] See, for example, The Constitutional Court. 2001-13-0103. 05.12.2001 ; The Constitutional Court. 2003-10-01. 06.11.2003.
[71] The Constitutional Court. 2011-16-01. 20.04.2012.
[72] See, for example, The Constitutional Court. 2004-06-01. 11.10.2004. Para 22.
[73] Par atteikšanos ierosināt lietu: LR Satversmes tiesas 3. kolēģijas 2011. gada 16. jūnija lēmums, 5.2. p. Unpublished, available from the Constitutional Court.
[74]If the case has been initiated at the Constitutional Court and during the court proceedings the contested legal provision has become invalid, then the provision of the second part of Section 29 of the Constitutional Court Law is to be applied, which provides that court proceedings in case can be terminated before pronouncing the judgement with the decision of the Constitutional Court, if the contested legal provision or act has become invalid. In accordance with the case-law of the Constitutional Court, the fact the contested provision has become invalid per se will not always serve as grounds for terminating the court proceedings in the case. The law envisages that the Constitutional Court has the possibility to terminate proceedings, but is not obliged to do so. The Constitutional Court must assess ex officio the presence of any considerations pointing to the necessity to continue the court proceedings in the case. See: Par tiesvedības izbeigšanu lietā Nr. 2011-18-01: Satversmes tiesas 2012. gada 8. jūnija lēmums, 16. punkts.; Satversmes tiesa. 2011-11-01. 03.02.1012. 9. punkts.
[75] The Constitutional Court. 2007-15-01. 12.02.2008. Para 4.
[76] The Constitutional Court. 2008-35-01. 07.04.2009. Para 10.4; The Constitutional Court. 2011-11-01. 03.02.2012. Para 11.1.
[77] The Constitutional Court. . 2007-10-0102. 29.11.2007. Para 56.2.
[78] On the Compliance of Article 11 (wording of 4 May 2004) and paragraph 2(wording of 4 May 2004) of Article 2 of the Republic of Lithuania Law on Presidential Elections with the Constitution of the Republic of Lithuania. Ruling of the Constitutional Court of the Republic of Lithuania on 25 May 2004. Para 4. http://www.lrkt.lt/dokumentai/2004/r040525.htm
[79] The Constitutional Court. 2001-09-01. 21.01.2002.Compare: D. Iljanova. Vispārējo tiesību principu nozīme un piemērošana. Rīga: Ratio iuris, 2005, 60. lpp.
[80] The Constitutional Court. 2005-12-0103. 16.12.2005. Para 24.
[81] Par lietas ierosināšanu: LR Satversmes tiesas 17.07.2007. 2. Kolēģijas lēmums, 3.punkts. https://www.satv.tiesa.gov.lv/upload/lem_ierosin_2007_14.htm
[82] V. Eglītis, researcher of constitutions, states that “the Satversme, undoubtedly, currently is codified, it consists of one law.” Eglītis V. Ievads konstitūcijas teorijā. Rīga: Latvijas Vēstnesis, 2006, 91.lpp.
[83] Deklarācija par Latvijas valsti [Declaration of the State of Latvia]: Latvijas Satversmes Sapulces 1920. gada 27. maija deklarācija. Likumu un valdības rīkojumu krājums, 1920, Nr. 4, Nr. 182.
[84] Par Latvijas Republikas neatkarības atjaunošanu [On the restoration of the independence]: Latvijas PSR Augstākās padomes 1990. gada 4. maija deklarācija. Ziņotājs, Nr. 20, 17.05.1990.
[85] Par Latvijas Republikas valstisko status [Law On the Statehood of the Republic of Latvia]: 1991. Gada 21. Augusta Latvijas Republikas Konstitucionālais likums. Ziņotājs Nr. 42, 24.10.1991.
[86] LR Satversmes tiesas 29.11.2007. spriedums lietā Nr. 2007-10-0102, secinājumu daļas 62. punkts.
[87] Latvijas pilsoņiem! Likumu un rīkojumu krājums, 1919, 15. Jūlijs, Nr.1.; LR Satversmes tiesas 29.11.2007. spriedums lietā Nr. 2007-10-0102, secinājumu daļas 62. Punkts.; Pleps J. Robežlīgums ar Krievijas Federāciju: Satversme un Satversmes tiesa. Grām. Robežlīgums: Spriedums. Materiāli. Komentāri. Rīga: Latvijas Vēstnesis, 2009, 603. lpp.
[88] Par lietas ierosināšanu: LR Satversmes tiesas 1. Kolēģijas 23.09.2009. lēmums. https://www.satv.tiesa.gov.lv/upload/lem_ierosin_2009_94.htm; LR Satversmes tiesas 13.05.2009. spriedums lietā Nr. 2010-22-01; LR Satversmes tiesas 29.11.2007. spriedums lietā Nr. 2007-10-0102.
[89] The Constitutional Court. 2007-10-0102. 29.11.2007.
[90] 68. All international agreements, which settle matters that may be decided by the legislative process, shall require ratification by the Saeima. Upon entering into international agreements, Latvia, with the purpose of strengthening democracy, may delegate a part of its State institution competencies to international institutions. The Saeima may ratify international agreements in which a part of State institution competencies are delegated to international institutions in sittings in which at least two-thirds of the members of the Saeima participate, and a two-thirds majority vote of the members present is necessary for ratification. Membership of Latvia in the European Union shall be decided by a national referendum, which is proposed by the Saeima. Substantial changes in the terms regarding the membership of Latvia in the European Union shall be decided by a national referendum if such referendum is requested by at least one-half of the members of the Saeima. The Constitution of the Republic of Latvia. http://www.saeima.lv/en/legislation/constitution/
[91] The Constitutional Court. 2007-10-0102. 29.11.2007. Para 56.3.
[92] Pleps J. Robežlīgums ar Krievijas Federāciju: Satversme un Satversmes tiesa. Grām. Robežlīgums: Spriedums. Materiāli. Komentāri. Rīga: Latvijas Vēstnesis, 2009, 608.lpp.
[93] Latvijas Republikas 6. Saeimas ziemas sesijas sestā sēde 1996. gada 8. Februārī. http://saeima.lv/steno/st_96/st0802.html
[94] Latvijas Republikas 6.Saeimas ārkārtas sesijas sēde 1996.gada 11.aprīlī. http://saeima.lv/steno/st_96/st1104.html
[95] The Constitutional Court. 2009-113-0106. 06.12.2010. Para 21.
[96]Par pašvaldībām: LR likums. Latvijas Vēstnesis Nr. 61 (192), 24.05.1994.
[97] Grozījumi Satversmes tiesas likumā: LR likums. Latvijas Vēstnesis Nr. 242/245 (957/960), 24.09.1997.; Grozījumi Satversmes tiesas likumā: LR likums. Latvijas Vēstnesis Nr. 460/464 (2371/2375), 20.12.2000.
[98] Steinberger H. Models of constitutional jurisdiction. Strasbourg: Council of Europe, 1993.
[99] Paparinskis M. Satversmes tiesas spriedums kā normatīvs akts. Likums un Tiesības, 2003, 5. sēj. Nr. 5 (45), 146. lpp.
[100] Pleps J., Pastars E., Plakane I. Konstitucionālās tiesības. Rīga: Latvijas Vēstnesis, 2004, 195. lpp.
[101] The Constitutional Court. 2005-13-0106 15.06.2006. Para 10.3.
[102] The Constitutional Court. 2009-43-01. 21.12.2009. Para 35.3.
[103] Kommers D.P. The Constitutional Jurisprudence of the Federal Republic of Germany. 2nd ed. Durham and London: Duke University Press, 1997, p.54-55.
[104] Котоков А. Обязательность решений Конституционного суда. Grām.: Актуальные вопросы конституционного правосудия. 2011, Москва: Волтерс Клувер, c. 503.
[105] The Constitutional Court. 2009-11-01. 18.01.2010. Para 29.
[106] Rodiņa A. Konstitucionālās teorijas teorija un prakse Latvijā. Rīga: Latvijas Vēstnesis, 2009, 146.lpp.
[107] The Constitutional Court. 2007-04-03. 09.10.2007. Para 25.
[108] The Constitutional Court. 2007-11-03. 17.01.2008. Para 29.
[109] Field O. P. Effect of an Unconstitutional Statute. Indiana Law Journal: 1926, Vol. 1: Iss. 1, Article 1. Accessible: http://www.repository.law.indiana.edu/ilj/vol1/iss1/1
[110] Rodiņa A. Konstitucionālās teorijas teorija un prakse Latvijā. Rīga: Latvijas Vēstnesis, 2009, 147. lpp.
[111] The Constitutional Court. 2005-12-0103. 16.12.2005.
[112] The Constitutional Court. 2009-43-01. 21.12.2009.
[113] The Constitutional Court. 2011-02-01. 28.11.2011. Para 16.
[114] The Constitutional Court. 2003-10-0103. 06.11.2003. Para 11.
[115] The Constitutional Court. 04-05(97). 11.03.1998. Para 5
[116] See, for example, The Constitutional Court. 2006-28-01.
[117] See, for example, The Constitutional Court. 2003-05-01. 29.10.2003.
[118] See , for example, The Constitutional Court. 2003-03-01. 27.06.2003.
[119] See, for example, The Constitutional Court. 2009-76-01. 31.03.2010.
[120] See more: Кутрис Г., Спале А. Правовые последствия решений Конституционного суда в укреплении конституционного порядка: практика Конституционного суда Латвийской Республики. In: Almanac: Constitutional Justice in the New Millenium, Yerevan, NJHAR, 2011, C. 99-104.
[121] The Constitutional Court. 2008-02-01. 21.10.2008. Para 12.
[122] Law N° 317-XIII on the Constitutional Court. Section 6
http://www.codices.coe.int/NXT/gateway.dll?f=templates&fn=default.htm
[123] Law on the Constitutional Court of the Republic of Lithuania. Article 4. http://www.lrkt.lt/Documents3_e.html; Law on the Federal Constitutional Court. Article 2. http://www.iuscomp.org/gla/statutes/BVerfGG.htm; The Constitutional Tribunal Act. Article 5. http://www.trybunal.gov.pl/eng/index.htm; Constitution of the Slovak Republic. Article 134. http://www.concourt.sk/sudca.do?id_submenu=a&sudca=&lang=a&aktualny=1; Organic Law 2/1979 on the Constitutional Court of 3 October 1979. Article 5. http://www.codices.coe.int/NXT/gateway.dll?f=templates&fn=default.htm; Law on the Constitutional Court. Article 12. http://www.codices.coe.int/NXT/gateway.dll?f=templates&fn=default.htm; Law No. 87 of 11 March 1953. The composition and procedures of the Constitutional Court. Section 1. http://www.codices.coe.int/NXT/gateway.dll?f=templates&fn=default.htm
[124] The Constitutional Court. 2007-03-01. 18.10.2007. Para 24.1.
[125] The Constitutional Court. 2007-03-01. 18.10.2007. Para 22.3.
[126] Para 4 of the second part of Section 4 in the Constitutional Court Law provides that a person who has acquired a higher professional or academic education (except the first level professional education) in legal science and also a master’s degree (including a higher legal education, which in regard to rights is equal to a master’s degree) or a doctorate may be confirmed as the Constitutional Court Justice.
[127] At the time when the Constitutional Court Law was adopted, Member of the Saeima A. Endziņš, discussing the requirements set for the Constitutional Court Justice, pointed out that “ [..] over there [i.e., at the constitutional courts of other countries – author’s note], unfortunately, there are no young people like that at all, without years of service, without practical experience, and, especially without academic experience. [..] These are faculty members, readers, professors and Supreme Court judges, thus, with significant legal work and research experience. The function of Constitutional or Satversme Court it, in fact, not to adjudicate cases according to political criteria, but to conduct a very serious legal and sometimes even academic legal analysis, to substantiate one’s attitude regarding the incompatibility of one or another legal act with a legal act of higher legal force.”
Latvijas Republikas 6.Saeimas ārkārtas sesijas sēde 1996.gada 11.aprīlī. http://saeima.lv/steno/st_96/st1104.html
[128] A person, who has at least 10 years of service in a legal speciality of scientific pedagogical work in the speciality of law at a research institution or an institution of higher education, following the acquisition of higher legal professional or academic education (except first level professional education) may become a Constitutional Court Justice. The 10 years period of service is counted only after acquisition of appropriate education.
[129] Law on the Constitutional Court of the Republic of Lithuania Article 103. http://www.lrkt.lt/Documents3_e.html; Constitution of the Czech Republic. Article 84. http://www.usoud.cz/view/czech_constitution
[130] Constitution of the Slovak Republic. Article 134. http://www.concourt.sk/sudca.do?id_submenu=a&sudca=&lang=a&aktualny=1
[131] Act CLI of 2011 on the Constitutional Court. Section 6. http://www.codices.coe.int/NXT/gateway.dll?f=templates&fn=default.htm
[132] Latvijas Republikas Saeimas 2009.gada 1.oktobra kārtējā sēde. http://titania.saeima.lv/LIVS/SaeimaLIVS.nsf/0/570A1AACC7DB6839C2257647002EA6E1?OpenDocument
[133] The age restrictions set for the Constitutional Court Justice was included in the Constitutional Court Law with the amendments at the end of 2009, which came into fore on 1 January 2010. Grozījumi Satversmes tiesas likumā: LR likums. Latvijas Vēstnesis, 2009, 30.decembris, Nr. 205 (4191).
[134] The Constitutional Court. 2004-04-01. 5.11.2004. Para 10.
[135] Section 55 of the law “On Judicial Power” defines the persons, who may not become a judge of any Latvian court. Par tiesu varu: LR likums. Ziņotājs, Nr. 1, 14.01.1993.
[136] The rapporteur of the responsible parliamentary committee provided the following explanation of the concept “provides opinion” in the legislative procedure: “[i]f the opinion of the Judicial Council is requested, then it is a vision on how this problem should be solved. And thus, the final institution, which takes the respective decision – be it the Parliament or the Minister for Justice, – just examines this opinion, but since that is an opinion of a very collegiate institution, it is either taken into consideration or not, and the decision is adopted.” Latvijas Republikas 9.Saeimas pavasara sesijas devītā sēde 2010.gada 3.jūnijā. http://www.saeima.lv/steno/Saeima9/100603/st100603.htm#LP1657_336
[137] When comments to the Satversme wee elaborated (i.e., in the middle of 20120), the Saeima was discussing whether the procedure for confirming the Constitutional Court Justices into office, envisaging open ballot, to be more precise – to envisage that all judges in Latvia would be appointed to the office in a procedure of open ballot. Likumprojekts „Grozījumi Latvijas Republikas Satversmē”, Likumprojekta „Grozījumi Latvijas Republikas Satversmē” anotācija.
http://titania.saeima.lv/LIVS11/SaeimaLIVS11.nsf/0/E4B2B1BAECBBFB6DC22579C9004A914D?OpenDocument
[138] Endziņš A. Latvijas Republikas Satversmes tiesas loma Latvijas Republikas Satversmē noteikto vērtību aizsardzībai. Grām.: Konstitucionālās tiesas loma valsts konstitūcijā nostiprināto vērtību aizsardzībā. Rīga: TNA, 2007, 15.lpp.
[139] Schwartz H. The Struggle fo Constitutional Justice in Post-Communist Europe. Chicago and London: University of Chicago Press, 2000, p. 42.
[140] The Constitutional Tribunal Act. Article 5. http://www.trybunal.gov.pl/eng/index.htm; Law on the Constitutional Court of the Republic of Lithuania. Article 4. http://www.lrkt.lt/Documents3_e.html
[141] Constitution of the Slovak Republic. Article 134. http://www.concourt.sk/sudca.do?id_submenu=a&sudca=&lang=a&aktualny=1; Act CLI of 2011 on the Constitutional Court. Section 6. http://www.codices.coe.int/NXT/gateway.dll?f=templates&fn=default.htm
[142] Law N° 317-XIII on the Constitutional Court. Section 6
http://www.codices.coe.int/NXT/gateway.dll?f=templates&fn=default.htm
[143] The initial wording of the Constitutional Court Law (I.e. prior to 1 January 2001) envisaged that the Saeima shall decide on resignation (on the basis of a ruling by the Constitutional Court) and dismissal of a justice. LR Likums: Grozījumi Satversmes tiesas likumā. Latvijas Vēstnesis, 2000, 20. Decembris, Nr. 460/464 (2371/2375).
[144] Draft Amendments to the Law on the Constitutional Court of the Republic of Latvia. Comments by Mr László Sólyom (Member, Hungary) CDL (99) 71. p.4. http://www.venice.coe.int/docs/1999/CDL%281999%29071-e.pdf
[145] Draft Amendments to the Law on the Constitutional Court of the Republic of Latvia. Comments by Mr László Sólyom (Member, Hungary) CDL (99) 71. p.4. http://www.venice.coe.int/docs/1999/CDL%281999%29071-e.pdf
[146] Rodiņa A. Satversmes tiesas un tiesneša neatkarība: aktuālākie jautājumi. Inovāciju juridiskais nodrošinājums. Latvijas Universitātes 70. Konferences rakstu krājums. Rīga: LU Akadēmiskais apgāds, 2012, 203.-205.lpp.
[147] It must be specified that prior to 1 January 2001 the first part of Section 35 of the Constitutional Court Law envisaged that commencing criminal prosecution against a Constitutional Court Justice, as well as taking him into custody without the consent of the Saeima was inadmissible. Grozījumi Satversmes tiesas likumā: LR Likums. Latvijas Vēstnesis, Nr. 460/464 (2371/2375), 20.12.2000
[148] Draft Amendments to the Law on the Constitutional Court of the Republic of Latvia. Comments by Mr László Sólyom (Member, Hungary) CDL (99) 71. p. 12. http://www.venice.coe.int/docs/1999/CDL%281999%29071-e.pdf
[149] Par piekrišanu kriminālvajāšanas uzsākšanai pret Satversmes tiesas tiesnesi Vinetu Muižnieci: LR Satversmes tiesas 2011. gada 10. oktobra lēmums. Unpublished. Available from the Constitutional Court.
[150] The statement made by S.Āboltiņa, the Speaker of the Saeima, is as follows: “I make it known that the Saeima during the sitting of 3 November of this year, having examined the proposal submitted by Ilze Gailīte, prosecutor of the Unit for Investigating Particularly Severe Crimes, Criminal Law Department of the Prosecutor’s General office to discuss the issue of commencing criminal prosecution against Vineta Muižniece, the Constitutional Court Justice of the Constitutional Court of the Republic of Latvia, in accordance with Article 135 of the Saeima Rules of Procedure, decides: to declare that the particular case as to its merits cannot be discussed at the Saeima.” Par to, ka lieta par piekrišanas došanu kriminālvajāšanas uzsākšanai pret Satversmes tiesas tiesnesi Vinetu Muižnieci pēc būtības nav apspriežama Saeimā. Latvijas Vēstnesis Nr. 178 (4576), 10.11.2011.; Latvijas Republikas 11. Saeimas rudens sesijas sestā sēde 2011. gada 3. novembrī. http://www.saeima.lv/lv/transcripts/view/88#LM0036_0101.
[151] First, the justices’ mandate is extended for the Justice, whose term in office ends because the term has expired or he or she has reached a certain age, but the Saeima has not yet confirmed another justice to replace him. In such cases the justice’s mandate is extended till the moment, when the Saeima has confirmed another justice to replace him and this justice has given the oath (solemn promise). To ensure continuous and high-quality functioning of the Constitutional Court, the Constitutional Court Law contains a mechanism for attaining this aim. Secondly, if the justice’s term of office has expired or he has reached a certain age, the mandate is extended till the moment, when the judgement is pronounced in those cases, the hearing of which have been started with his participation.
[152]Law on the Constitutional Court of the Republic of Lithuania. Article 4. http://www.lrkt.lt/Documents3_e.html
[153] The fact that the wording of the third part of Section 7 of the Constitutional Court Law in this regard was not entirely precise, was pointed out by G.Harutyunyan, expert of the Venice Commission. European Commission for Democracy through Law. Comments on the draft amendments to the law on the constitutional court of Latvia by Mr G. Harutyunyan (Member, Armenia). Opinion No. 537 / 2009. http://www.venice.coe.int/docs/2009/CDL(2009)145-e.asp
[154] Latvijas Republikas 6.Saeimas ārkārtas sesijas sēde 1996.gada 11.aprīlī. http://saeima.lv/steno/st_96/st1104.html; Compare: Tiesa ir neatkarīga un nav politiski ietekmējama. Satversmes tiesas pirmie desmit gadi. Dr.iur A.Endziņš, Satversmes tiesas priekšsēdētājs, intervijā’”Jurista vārda” galvenajai redaktorei Dinai Gailītei. Jurista vārds Nr. 49 (452), 12.12.2006.
[155]European Commission for Democracy through Law. Revised Report on the composition of Constitutional Courts. P. 14. http://www.venice.coe.int/docs/1997/CDL-JU(1997)010rev-e.pdf
[156]European Commission for Democracy through Law. Opinion on the new Constitution of Hungary. CDL-AD(2011)016. P. 20. http://www.venice.coe.int/docs/2011/CDL-AD%282011%29016-e.pdf
[157] Schwartz H. The Struggle fo Constitutional Justice in Post-Communist Europe. Chicago and London: University of Chicago Press, 2000, p. 42.