Presentation of the recent case law of the Constitutional Court of the Republic of Latvia by judge Artūrs Kučs
Justice of the Constitutional Court
Assoc. Prof., Dr. iur.
Presentation at the meeting of the judges of the Constitutional Court of the Republic of Latvia
and representatives of foreign diplomatic missions in Latvia
Riga 19 November 2020
THE FEW AGAINST MANY: PROTECTION OF MINORITIES IN THE CONSTITUTIONAL COURT
Excellences, Ladies and Gentlemen!
The President just gave you an insight into the current situation in the Constitutional court, it’s aims, missions and future aspirations. I will complete this outlook by presenting you some of the Courts cases, which I believe will have a deeper impact in our society.
I will focus on the relationship between majority and minorities in a democratic state. Curiously this year this Court was confronted with several situations concerning minority rights. I am using the term ‘’minority rights’’ in a broad sense, including: political minority, social minority, linguistic minority and, sexual minority.
Ladies and Gentleman, allow me to illustrate how our institution gives not a theoretical or illusory but an effective and proportionate protection for each of these four groups.
First, speaking about the protection of political minorities, indeed, it is not a structural minority, as due to political process political forces constituting governing coalition and opposition might change over time.
And indeed the constitutional complaint in the case I would examine was brought before the Court by the MP, whose party currently is not in opposition. His complaint concerned the Rules of procedure of the Parliament, according to which, where Parliament agrees that a prosecution against an MP may be initiated, the respective MP loses, among others, the rights to participate in the sittings and meetings of Parliament and its committees or to be elected or appointed to any position within the Parliament until the very end of criminal proceedings. Criminal investigation and subsequent proceedings in court to determine person’s guilt or innocence in fact may last longer than term of current Parliament.
As the consequence of the waiver of parliamentary immunity de facto results in the impossibility of MP to carry on the popular mandate entrusted by the voters to him.
This dispute illustrates two colliding interests – the trust given by the popular mandate to MP, and the need to preserve the credibility of the Parliament in the eyes of the public; especially, to remove all doubts that any of its Members could have the slightest connection with any kind of unlawful acts.
Accordingly, the Constitutional court had to specify what legal rights, in the sense of the Constitution, arise from a mandate of MP.
The Latvian Parliament, as it is provided in the Constitution, consists of one hundred representatives of the people. The Court stressed that the very notion “representative” suggests that in order to carry out their functions, MPs enjoy a range of rights and prerogatives. The prerogative to sit in the meetings of the Parliament, to debate, to submit amendments and propositions, and finally to vote is at the core of the rights conferred to any Member of Parliament. To some degree, the activity of MP in the exercise of these rights determine whether the electors will grant another mandate to him. By denying these rights, the concerned MP may no longer exercise the function which was entrusted to him by people.
These findings determined the Courts decision that denying the rights to MP of sitting and holding any appointed position during the criminal investigations are excessively restrictive for the exercise of the MP’s mandate. Even though the Parliament enjoys wide discretion to determine freely the rules how it functions, any such restrictions, as in the present case, should be proportionate even where the stated aim is to preserve the credibility of the institution in the eyes of the public.
I believe that the consequences of this judgment may be far-reaching. The immediate effect of the judgment was restitution of the rights to the concerned MP. More importantly, though, this judgment marks a turning point in the protection of individual MPs. It is no longer possible to deny to any MP, whose immunity has been waived due to criminal proceedings, to fully participate in the parliamentary work.
Second, another group of minorities whose rights I want to discuss refers to groups inside the society. Because of a shared and stable characteristics, these groups tend to be structural, they do not change or dissolve easily. Moreover, they share a certain degree of vulnerability compared to the rest of the society:
Examples are people with disabilities, persons who need social assistance, unemployed, the list is long. These groups may be large in number and are in economically and socially disadvantaged position compare to the rest of society.
I would stress that our Constitution and Court seeks to protect not only civil and political rights – but also economic and social rights aimed at diminishing equality and poverty within society.
As an example, I will elaborate on a recent case where the Court recalled obligations of the State to ensure decent living conditions for the most economically vulnerable.
The case was initiated following the application form Ombudsman. It was submitted that the current level of Guaranteed Minimum Income (GMI) (which is 64 euros per month) is inconsistent with the principles of a socially responsible state. Ombudsman indicated that the actual amount of this benefit does not ensure a life consistent with human dignity and does not fulfil the obligation to ensure the possibility to exercise the social rights at least in their minimal scope.
The Court agreed to review the constitutionality of the contested legal norms, and examined for this purpose, the scope of the legislator’s obligation to create a social assistance system which is consistent with human dignity.
In order to do so, the Court took a number of steps:
First, the Court verified whether the legislator had introduced measures, which ensure that any person has the possibility to exercise their social rights;
second, whether these measures had been duly implemented, i.e., whether persons had been ensured the possibility to exercise their social rights at least at the minimum level;
third, whether the general principles of law for instance non-discrimination had been complied with.
First, The Court took the view, that the legislator had adopted measures to establish social assistance system.
However, when assessing the second element of test – whether persons had been ensured the possibility to exercise their social rights at least at the minimum level, the court emphasized that human dignity is a fundamental right of every human being.
Accordingly, the principle of a socially responsible State based on human dignity implies the duty for the State to take care of a just social order by levelling out the most acute social differences in society, promoting social inclusion and ensuring that each group of society can live in dignity. In the long run, the Court observed, social inequality can significantly reduce people’s economic potential and opportunities for growth.
Human dignity is the basis for a duty imposed upon the legislator to establish social assistance aimed, first, to protect the same human dignity, second, to diminish social inequalities and, third, to ensure the sustainable development of the State.
The text of the Constitution provides in detail the right to receive stable and predictable, as well as effective, fair and sustainable social assistance. In more practical terms the social assistance provided should meet the basic needs of a person, includes food, clothing, housing, health care and compulsory education. However, in addition, it should guarantee the opportunity to participate in social, political and cultural life.
The Court indicated that Legislator is free to choose the methods and the criteria according to which the minimum social assistance is allocated. The choice of the most appropriate method is a matter of deliberation. (BUT there should be a method to calculate GMI and define its purpose, and it cannot be dependent on the availability of resources in the current state budget)
Furthermore, irrespective of the economic situation, the State remains responsible to ensure set of basic obligations from which it may not derogate. The Constitution establishes a positive duty on the State to ensure the social assistance allowing to live one’s life in dignity.
Additionally, there is a duty to review on a periodic basis the adequacy of the amount of social benefits in to check that they correspond to the social reality and that the receiving persons are provided with the necessary assistance.
It is following these findings that the Court inevitably came to a conclusion, that the current amount of Guaranteed Minimum Income benefit is not set according to a method that is aimed to ensure human dignity, to level out social inequalities and to ensure sustainability of the State. As a consequence, the contested norm was declared null as from 1 January 2021.
The third case concerned the minority rights in the narrow sense, as they appear in the international human rights documents, namely rights of ethnic and linguistic minorities, referring to a cultural particularism compared to the majority of the society.
The Court had to decide on what are the conditions to use another language, which is not state official language, in pre-school education facilities.
The claimants were representatives of Russian speaking minority and parents of children attending pre-school education facilities. They submitted a constitutional complaint contesting several government regulations providing, inter alia that for children of 5 years and older the main language of communication in the education facilities shall be Latvian, exception made for activities with the aim to teach minority language and culture.
In the opinion of applicants, the legal rules in question were against their fundamental rights to receive education, against the minority rights and in breach of the principle of equality.
The Constitutional court examined in detail each of these complaints. Regarding the right to education, the Court made a clear distinction between the quality of the education received and the language in which it is provided. Indeed, it is not questionable that there is a right to receive education which meets certain demands of quality, however the Court indicated that the right to education does not provide for a right to receive it in any language of choice of the claimant.
The Court specified the criteria to analyse whether the education meets the quality demands. In this respect it should be verified whether for a person it is possible to receive education, whether it is accessible and adaptable to the needs of the person. The Court found nothing in the contested norm that would suggest any obstacle for the pre-school education facilities to meet these criteria of quality.
Finally, the Court examined the complaint regarding the breach of minority rights, as they are protected under the Constitution of Latvia and the binding international documents. The Court indicated that, the minority rights in this case demand not only the abstract possibility to preserve and develop the minority language, but also to take into account the special historical circumstances which characterize the Russian speaking minority in Latvia. The Court concluded that, the contested norms do not preclude the use of Russian, or any other minority language in pre-school education. On the contrary, the use of Russian or other minority languages, under this regulation, is provided expressis verbis. As a consequence, the Court found the contested legal norm is in conformity with the Constitution.
The final case I would like to address concerned sexual minorities. (CASE DECIDED ONLY LAST WEEK) The contested legal norm provides for the right to paternity leave – 10 day paid leave at the birth of a child, which under the current labour regulation is granted to the father of the child. The claimant – a woman who is the partner of the child’s mother disputed the legality of this rule on paternity leave under which it is only the child’s father who is eligible to receive the privilege of the leave.
The claimant argued that the legislator has a duty to ensure the social and economic protection for all families, including same-sex families. To fulfil this duty, the legislator has the obligation, in her opinion, to provide for rules on the personal and property relations in the same-sex families.
The Court declared the case admissible and accepted to review the contested labour law provision as far, as it does not provide for protection and assistance to a partner of a new-born’s mother.
In this case it is essential for me to tell that Article 110 of the Constitution states, I quote: The State shall protect and support marriage – a union between a man and a woman, the family, the rights of parents and rights of the child. As the Court observed, marriage is a form of relationship which has developed historically. Any changes in this definition would require to modify the constitution.
Nevertheless, this same article, along with the definition of the marriage, provides for a duty to protect the family as such and not only a family created by means of marriage. As the Court indicated, family is a social institution, it is rooted in the close personal ties based on mutual respect and understanding.
Court stated that even without a biological link or legally recognised child-parent relationships between a child and the person effectively taking care of him, there may exist a family relationship where it is enjoyed in a stable and substantive manner, and where exist adult-child relationship. Accordingly, the Constitution establishes a duty upon the State to protect all families, including de facto families.
More fundamentally it is the principle of human dignity which requires the observance of fundamental rights for any person or a group of persons. The Court stressed that stereotypes prevailing in a society at a given time may not serve as a constitutional justification to deny fundamental rights to a person or a group of persons in a democracy governed by the rule of law.
While it is true that it is up to the legislator to determine the regulation providing for measures of social and economic protection for families, this margin of appreciation is not without borders. The choices of the legislator are limited by the Constitutional rules, and the general principles of law, for instance the duty to take into account the child’s best interests.
The Court concluded that the contested labour law rule does not provide for economic and social protection that includes the same-sex partner families. Therefore, the legislator has not fulfilled its constitutionally required duty to provide such protection. The contested legal norm as long as it does not provide for such protection was declared null as from 1 June 2022 to give the time necessary for the legislative deliberation.
In a conclusion of my speech I would like to say that cases which come in front of our court require us to examine issues which are sensitive in our society and include conflicting views. But in a state governed by the rule of law it is our task to consider such cases and make a decision not based on views of majority or minority but based only on our Constitution and general principles of law.
I’m grateful excellences, ladies and gentlemen for your attention.