President of the Constitutional Court participates in the international conference dedicated to the 25th anniversary of the Constitutional Court of Bulgaria “The Protection of Fundamental Citizens’ Rights and National Security in the Modern World. The Role of Constitutional Courts” in Sofia, Bulgaria
Aldis Laviņš
President of the Constitutional Court of the Republic of Latvia
Sophia, 20 September 2016
Protection of Fundamental Citizens’ Rights and National Security: Latvian Experience
Are questions of state security justiciable?
The state has a relatively large discretion in deciding upon the matters of national security.[1] Nevertheless, any decision, either political or legal, is limited by the Constitution[2], which establishes the scope of each body’s discretion.
In Latvia the matters of national security are regulated in the National Security Law which prescribes the national security system and its tasks. It is interesting that the mentioned law determines the competence of the Parliament (Saeima), of the Cabinet of Ministers, and of the President of the State, as well as provides for the competence of particular ministries and self-governments.[3] It does not mention the competence of the judicial power and of the Constitutional Court. But this does not mean that the Constitutional Court has not competence in the sphere of national security.
The Constitutional Court has repeatedly indicated, no legal norm and no action by the executive power may avoid control on the part of the judicial power if such a norm or action is infringing on the interests of a person.[4] The judicial power in general and the Constitutional Court as its constituent part must guarantee the control over the other two branches of power. In its turn, the Constitutional Court, in evaluating the compliance of laws with the Constitution, implements the principle of the supremacy of the Constitution, thus securing the constitutional fairness. Therefore, the Constitutional Court is competent to review constitutionality of decisions taken by other branches of power, also in cases when such decisions are connected with national security.
What is methodology to deal with issues related to state security?
National security and human rights collide when a restriction upon fundamental rights is introduced for the benefit of national security. The task of the Constitutional Court in such cases is to secure balance between the protection of fundamental rights, on the one hand, and the national (state) security, on the other hand. Namely, the court evaluates constitutionality of those restrictions on fundamental rights that are established to protect national security. Fundamental rights could be restricted if there is a legitimate aim for such restriction.[5]
In several articles of the European Convention on Human Rights, national security is mentioned as a legitimate aim, for the attainment of which it is permissible to restrict certain rights.[6] In Latvia, only the protection of constitutional values enshrined in Article 116 of the Constitution may be the legitimate aim of restricting fundamental rights. [Article 116 of the Constitution provides that the rights of persons set out in the Constitution may be subject to restrictions in circumstances provided for by law in order to: firstly – protect the rights of other people, secondly – protect the democratic structure of the State, and thirdly – protect public safety, welfare and morals].[7]
The Constitution does not expresis verbis provide national or state security as a legitimate aim of placing restrictions on fundamental rights. But if we look at the practice of the Constitutional Court, the Court has found out the protection of state security in such legitimate aims specified in Article 116 as the protection of the democratic structure of the State and the protection of public safety (security).
The CC has indicated: in order to use public safety as a legitimate aim of a legal regulation, the legislator would need to substantiate an objectively existing or a potential connection between the adoption of a particular legal regulation and the strengthening of public safety, elimination or reduction of security threat.[8] Thus, the CC has taken a clear position, having precluded the possibility for the legislator to somehow “hide” behind groundless references to state security.
As I have already mentioned, the protection of state and national security is discerned in one more of the aims mentioned in Article 116 as the legitimate aims of restrictions on human rights, namely, in the “protection of democratic structure of the state”. The principle of self-protecting democracy demands that the democratic structure of the state must be protected from attempts to liquidate it or to hinder its ability to function.[9] Human rights must not be used against democracy as such.[10]
So, if there is a legitimate aim for restriction of fundamental rights, then Constitutional Court should fulfil its special task to weigh up, on the one hand, the particular restricted right and, on the other hand – the national security.
Now I refer to one of our cases where the Court, having found the restriction disproportionate and the contested norm – unconstitutional, pointed out to the legislator that reference to the interests of state security was ungrounded.
The particular case was connected with the theme of migration, which is of great current interest. The norm contested in the Constitutional Court was part of the Immigration Law and envisaged that the decisions by the Minister for Foreign Affairs and the Minister for the Interior on the inclusion of a person in the list of persons for whom entry in the Republic of Latvia is prohibited was not subject to appeal. The legislator had restricted the person’s right to a fair court, indicating that the aim of the norm was to protect the state and public security, as well as to create quick and effective means for situations when state and public security was endangered. Besides, as the legislator had specified, it was necessary not only to protect state and public security, but also to ensure that restricted access information would not be disclosed.
Referring to the ECHR practice, the CC confirmed that it was within the state’s competence to prescribe the procedure for controlling the entry and residence of foreigners, and especially – for regulating the expulsion of foreigners that have been found guilty for committing a criminal offence.[11]
The Constitutional Court, when evaluating within the case whether a balance had been assured between the interests of national security protection and the impact on the applicant’s rights to appeal to court,[12] not only marked the boundaries of the legislator’s discretion, but also made several significant points (findings and conclusions):
First, the court indicated that a democratic society had a right to national security.[13]
Secondly, the court indicated that the internal security services should be authorised to effect their legitimate aim – to guard the state security, – but they must not be given an uncontrolled possibility of violating fundamental rights and freedoms. The court also recognised the necessity of procedural restrictions for the prevention of information leakage detrimental to national security, as well as the need for relatively wide margins where evaluation of the executive power in the matters of national security was concerned.[14]
Thirdly, the court recognised that the boundaries of enforcing the rights enshrined in Article 92 of the Constitution (i.e., the right to a fair court) might be narrowed down in cases that are connected with state security. However, a complete exclusion of legal remedies could not be justified, and the authorities could not be exempted from an effective control on the part of the judiciary whenever they claimed that the matter was connected with national security and terrorism.[15]
Fourthly, the Constitutional Court, observing the boundaries of its jurisdiction and respecting the fact that only the legislator is competent to adopt legal regulations in the state, pointed not only to the possibilities of achieving the aim using means that would restrict the fundamental rights in a lesser degree, but, in a way, “advised” the legislator on the way to achieve the balance between the right to a fair court and the interests of national security.[16] Normally the Constitutional Court avoids formulating legal provisions in its judgements or determining the way the legislator should formulate them; however, in the given judgement, the court[17]: pointed out that the protection of interests of national security does not prohibit the state from determining a procedure under which the judicial bodies in certain cases and under a definite procedure might acquaint themselves with the materials connected with state security, in other words, the Court indicated indirectly what should be included in the legal regulation; and as well the Court referred to the Canadian experience, namely, to the effective control mechanism that was in place in Canada, securing the protection of legitimate security interests as regards intelligence information and its sources, while at the same time guaranteeing the individual a substantial measure of procedural justice.
In conclusion
I would like to emphasize that national security is a precondition enabling the state to protect and maintain its values. National security is a prerequisite for people to enjoy their rights. In balancing these two interests, both get restricted, but at the same time when the fundamental human rights and national security are balanced, both get protected. Thus, the role of the Constitutional Court is to protect both the human rights and the national security.
[1] Standards established by the ECHR: Malone v. the United Kingdom; Kruslin v. France; Huvig v. France; Kopp v. Switzerland; Amann v. Switzerland [GC]
In regard of various rights also: Chahal v. the United Kingdom [GC]; Van Mechelen v. the Netherlands; Incal v. Turkey; Grigoriades v. Greece; VDSÖ and Gübi v. Austria; Lustig-Prean and Beckett v. the United Kingdom, Smith and Grady v. the United Kingdom, Konstantin Markin; Hadjianastassiou v. Greece; Klass and Others v. Germany; Bucur and Toma v. Romania
[2] Constitutional Court of the Republic of Latvia, judgment in Case No 2009-111-01, 22.06.2010., Para 14.
[3] Section 2 of the National Security Law
[4] The principle of the separation of powers, as one of the fundamental principles of a democratic state enshrined in Article 1 of the Constitution, includes control over the legislative power and the executive power on the part of the judiciary.
Constitutional Court of the Republic of Latvia, judgment in Case No 04-03(99), 9.07.1999., Para 1.
[5] Section 1(1) of the National Security Law
[6] National security is mentioned in paragraph 2 of Articles 8, 10 and 11 of the European Convention on Human Rights (ECHR) as the first of the “legitimate aims” making it necessary to restrict these rights.
[7] Legitimate aims of restricting fundamental rights are enshrined in Article 116 of the Satversme (Constitution)
[8] Constitutional Court of the Republic of Latvia, judgment in Case No 2004-14-01, 6.12.2004., Para 9.2., Constitutional Court of the Republic of Latvia, judgment in Case No 2005-07-01, 17.10.2005., Para 7.2.
Besides, the Constitutional Court practice in these matters closely resonates with the ECHR practice (in substantiating the legitimate aim, the Constitutional Court refers to the ECHR practice and analyses the ECHR cases).
[9] Constitutional Court of the Republic of Latvia, dissenting opinion in Case No 2000-03-01, 30.08.2000., Para 8.
[10] Constitutional Court of the Republic of Latvia, judgment in Case No 2000-03-01, 30.08.2000., Para 6.
[11] Constitutional Court of the Republic of Latvia, judgment in Case No 2004-14-01, 6.12.2004., Para 15.
[12] Ibid., Para 9.2.
[13]Ibid., Para 9.3.
[14] Ibid., Paras 9.3., 14.
[15] Ibid., Paras 10., 14.
[16] The making of regulatory legal acts is solely within the competence of the legislator; nevertheless, the Constitutional Court judgements have a substantial influence on the legal reality in the state and contribute to the improvement of the quality of regulations.
[17] Constitutional Court of the Republic of Latvia, judgment in Case No 2004-14-01, 6.12.2004., Para 15.