Report of the President of the Constitutional Court Aldis Laviņš on the development of constitutional law in Latvia in 2022

03.02.2023.

Aldis Laviņš
President of the Constitutional Court

Report of the President of the Constitutional Court Aldis Laviņš on the development of constitutional law in Latvia in 2022

Riga, 3 February 2023

Excellencies!

Ladies and Gentlemen!

Dear audience!

For the fifth time, the new working year of the Constitutional Court is opened with a solemn session of the Court, where the Constitutional Court reports to everyone in Latvia on the work done in the previous year and the work to be done in the current year. The opening session of the Court’s annual work is important because, in a democratic state governed by the rule of law, such an annual and widely accessible report on the work of the Constitutional Court establishes a direct link with the sovereign – the people of Latvia – and thus also strengthens the legitimacy of the Court’s work. It is the people of Latvia, through a democratically elected Parliament, who have established the Constitutional Court to ensure the protection of the constitutional order and the fundamental rights of every person. It is significant that today, for the first time, a solemn session is taking place as the Latvian state takes its first steps in the second century of our founding law – the Constitution.

Reporting on the development of constitutional law in Latvia in 2022, I would like to emphasise that a considerable amount of work has been accomplished last year: we have worked intensively on pending cases, celebrated the Constitution on its centenary, strengthened the Court’s dialogue with society, Latvian and international institutions, as well as ensured the continuity of the Court’s work in energy-saving conditions and provided constant support to the colleagues of the Constitutional Court of Ukraine at a time when the Ukrainian people are fighting for freedom.

I would like to express my sincere gratitude to the judges of the Constitutional Court, their assistants, the Legal Department, the Court’s administration, structural units, all my advisers and every employee of the Court for the work they have done in the past year, both in the judicial block and in the Court’s administrative management, inter-institutional and international cooperation! Thank you!

The Constitutional Court has certain duties and responsibilities towards society. One of them is to bring the rule of law closer to everyone through dialogue. I will turn next to the question: how does the Constitutional Court fulfil this obligation? I will start with the quantitative results of the Court’s work in litigation in 2022 and the most valuable lessons that are of particular importance for justice.

Statistics in brief: 44 cases were initiated before the Constitutional Court in 2022. As in previous years, the largest number of cases was initiated on the basis of constitutional complaints from private individuals – 33 cases. Three cases were brought by courts, all on applications from administrative courts. Five cases were initiated on the basis of applications by local government councils and three cases – on the basis of applications by no less than twenty members of the Saeima.

An interesting trend is that a large proportion of the applications and cases brought before the Court relate to various criminal procedural issues. The provisions of the Criminal Procedure Law are challenged in one of every four applications brought before the court. These cases mainly concern proceedings related to the proceeds of crime. In connection with these cases, it should be noted that the Constitutional Court recently adopted two decisions on referring questions to the Court of Justice of the European Union for a preliminary ruling on access to case materials and on appeals against a court decision.

Last year, 42 legal provisions were assessed for compliance with the Constitution. 16 legal provisions were declared compatible with the Constitution, and 26 legal provisions were deemed incompatible with the Constitution. The contested provisions have most often been found to be incompatible with Article 105 of the Constitution, which guarantees the right to property, and the first sentence of Article 92 of the Constitution, which establishes the right to a fair trial.

As regards the substantive aspects of the Court’s work, the Constitutional Court has reached a number of valuable conclusions in its jurisprudence in 2022, which strengthen the rule of law and are important for the process of law-making. I would like to highlight some of them:

In the area of taxation, the Constitutional Court emphasised that a fair tax policy encourages taxpayers to be more inclined to pay taxes voluntarily. The Court recognised that the Law on Personal Income Tax is based on the taxpayer’s ability to pay the tax, whereas the contested provisions allow for a situation where the tax is payable even if no income has actually been earned. This is contrary to the principles of fairness and legal equality.
The case before the Constitutional Court on the requirements for efficiency of energy production and efficient use of heat energy for biogas power plants under the mandatory purchase of electricity was important for the sustainability of the Latvian environment. The Court recognised that the ability of the present and future generations to live in a favourable environment depends on the willingness of countries to pursue sustainable development by protecting the Earth’s climate system, preventing or counteracting the causes of climate change and mitigating its harmful effects. Energy efficiency, which includes the efficient use of heat, is one of the tools for achieving climate goals.
Last year, Latvian society slowly recovered from the difficulties caused by the COVID‑19 pandemic. Last year, cases concerning restrictions on the spread of infection were heard in all our country’s judicial institutions – including the Constitutional Court. In the so-called “COVID-19 shopping centre case”, the Court has specified the precautionary principle, explaining that, where there is uncertainty and immediate action is needed, public authorities do not have to wait until real harm has already been caused. The legislator may, in case of reasonable doubt, choose among several possible regulatory alternatives the one which is more likely to ensure the protection of the rights and interests of persons or of society. This does not mean that the legislator is exempt from the obligation to identify and assess these alternatives.
In the so-called “distance learning case”, the Constitutional Court did not allow a narrow and formalistic view of the unprecedented circumstances of a pandemic: the mere fact that a state of emergency has not been declared in a country does not mean that urgent state action is not necessary to prevent threats to the health and well-being of individuals. On the one hand, the state must ensure that it fulfils its duty to protect people’s health. On the other hand, the right to education imposes obligations on the State, which must also be fulfilled in the face of contagion. In all cases, the fundamental rights standard is met by a proportionality assessment based on the seriousness of the crisis. In such circumstances, the opinions and expertise of experts have become even more important for the State in determining restrictions on fundamental rights.
In its case-law, the Constitutional Court has particularly emphasised the essential importance of the state language as an element of the constitutional identity of the State. The Court of Justice of the European Union, in its answer to the preliminary questions raised by the Constitutional Court in the case on the provisions of the Law on Higher Education Institutions relating to study programmes of private higher education institutions, also emphasised that a legal regulation of a Member State of the European Union which, in principle, obliges higher education institutions to implement study programmes exclusively in the official language of that Member State is not unlawful, provided that such a legal regulation is justified on grounds relating to the protection of the national identity of that Member State, namely, it is necessary to protect a legitimate aim and is proportionate thereto.

This means that restrictions may be imposed to ensure the protection of the national language, but in any event the national courts must assess their proportionality to the legitimate aim.

In the case in which the legal provisions regulating the confiscation of criminally acquired property were assessed, the Constitutional Court emphasised that the confiscation of criminally acquired property was implemented with the aim of guaranteeing compliance with the principle that a criminal offence does not bear fruit.

The cases brought in 2022 also give rise to reflections on what developments in constitutional law and case-law we can expect this year. I would like to inform the Latvian public that the Constitutional Court will consider the following issues:

the level of the thresholds for a guaranteed minimum income and the period for reviewing them;
education only in the national language in private education institutions;
the obligation of a Member of the European Parliament to be vaccinated against COVID-19 infection;
changes to the port governance model;
the local government’s obligation to dismantle objects that glorify the Soviet regime at its own expense;
the amount of pre-school teachers’ pay;
land use rights and the fees for exercising such rights;
provisions that reduce the diameter of the main cut, allowing certain tree species to be felled more quickly;
the prohibition on gambling provided for in the local government’s binding regulations;
the local government’s binding regulations on the use and development of Riga’s territory, as well as many other things.

Dear audience!

One of the tasks of the Constitutional Court is to identify and understand the problems of concern to the people of Latvia and, within its competence, to address them through law, while also drawing the attention of the legislative and executive powers to them so that every person can protect his or her rights and live a dignified life. This year, we will also face new challenges in assessing the level of the national minimum income thresholds and the review period. Recent Constitutional Court rulings on the guaranteed minimum income in 2020 emphasised the State’s obligation to periodically review the amount of social assistance. Now we have to face the fact that since these rulings, the world has changed significantly, people’s needs have become dependent on unprecedented factors, energy, basic goods and services have become more expensive, which has particularly affected the socially vulnerable. The Latvian state must not create socially marginalised groups that do not feel supported by the state and thus do not have a sense of belonging to the state, or even worse – they disappear.

There are different social groups that receive information about the possibilities and mechanisms for protecting their rights in a specific way – through municipal social services and non-governmental organisations supporting socially vulnerable people. People in every region of Latvia, including through local authorities, should be aware, for example, that state-funded legal aid is provided in the Constitutional Court proceedings to those who need it most. So far, socially vulnerable persons have exercised their right to apply to the Constitutional Court so rarely within the framework of state-funded legal aid that there are grounds to question whether the tool established for the protection of fundamental rights of vulnerable persons is sufficiently effective.

Similarly to what the Constitutional Court recognised in the so-called distance learning case, also in the matter of access to information, in order to protect one’s rights, the State is obliged to consider the risks related to access to internet resources, technical equipment and a suitable environment, since inadequate provision of these risks discrimination between different inhabitants of the State. The result can be that the court ends up further away from the citizens, which would be unacceptable. We will raise these issues in dialogue with the other constitutional organs of the country later this year.

Dear people of Latvia!

In the current context of geopolitical challenges, the need to safeguard democracy has become particularly important. I just had the opportunity to attend the official opening session of the European Court of Human Rights. During the discussions, Council of Europe colleagues expressed serious concerns about the ongoing threats to democracy in Europe.

Today, the concept of democracy is no longer defined solely by majority rule. The protection of fundamental rights, the rule of law and an independent judiciary are also an integral part of democracy. Democracy is impossible in a country that is not governed by the rule of law, which is why safeguarding the rule of law has almost become the main task in 2022 and will remain so for an unpredictable period of time. A democratic state governed by the rule of law is obliged to safeguard its existence and prevent the threat of its destruction by all legal means. This is a difficult task because threats to democracy can only be addressed in a democratic and legitimate way, whereas attacks against democracy are often carried out precisely through the means of a democratic state governed by the rule of law.

In times of geopolitical turmoil, the focus is primarily on the urgent and crucial matters at the time. This can create a favourable environment for seemingly “innocent”, minor amendments to laws and regulations that reduce political competition and restrict freedom of expression and the press to undermine the foundations of a democratic state governed by the rule of law. Equally important are those cases where the independence of the judiciary is undermined. At this point, I would just remind you that without a professional and independent judiciary, the sustainable functioning of democracy is virtually impossible. Therefore, any initiative aimed at undermining the independence of the judiciary, for example, an initiative on the procedure for appointing members of the Judicial Council or similar bodies, shortening the terms of office of judges, bringing judges to disciplinary liability, etc., should be assessed with great attention. In this way, without the public even noticing, a process of deconstruction of democracy can be initiated. If you don’t stop it at the start, it may be too late.

At the same time, when thinking about the independence of the judiciary, we must not move towards a status of a branch of the judiciary that is closed and concentrates power in such a way that the sovereign would no longer have a say in deciding how to improve the functioning of the courts. Such manifestations can also damage democracy.

We should be pleased that the threats to democracy mentioned in the Latvian political environment, apart from the idea of abolishing the Constitutional Court expressed in the heat of the pre-election debates, have not gained currency. We can each give our own assessment of the reasons why the efforts to make the judiciary more independent and, consequently, less democratic have not taken place in Latvia. Can we conclude that the political culture and understanding of the implementation of the principle of separation of powers in Latvia is becoming more intelligent? I sincerely wish this for our Latvia. But the concerns raised by some European countries that I mentioned earlier show that it can be different. That is why I stress the value of the international dialogue, where the judges of the Constitutional Court directly exchange information, inter alia, on the various risks to the functioning of a democratic state governed by the rule of law. It is important to be aware that the situation in our country can improve or deteriorate due to various factors, which is why we need to regularly consider the possible risks to democracy and remain vigilant in ensuring both the guarantees of an independent judiciary and the protection of fundamental rights and freedoms.

In 2022, the Constitutional Court has also emphasised the importance of dialogue and the promotion of a culture of cooperation with all potential participants in dialogue. The format of the opening session of the Constitutional Court, together with the annual multilateral discussions, strengthens the dialogue between Latvia’s constitutional institutions, which plays an important role in strengthening the rule of law in Latvia.

Dialogue is also needed at the international level to keep Latvian legal thought at the centre of legal change in Europe and the world. In recent years, our institution has paid special attention to international cooperation, which is why, alongside representatives of foreign diplomatic corps and Latvian ambassadors abroad, our closest international partners – representatives of the Constitutional Court of the Republic of Lithuania and the President of the Court, Mrs Danute Jočienė – are also taking part in the opening ceremony of our working year.

I would like to draw attention to the fact that the Constitutional Court is working more and more actively on its international recognition and reputation. Over the years, the Court has carefully and continuously cultivated a tradition of international cooperation, convinced that it makes a significant contribution to the development of the rule of law in Latvia and the world. In 2022, significant developments have taken place in the international cooperation of the Constitutional Court. In October, at the Fifth Congress of the World Conference on Constitutional Justice, the Constitutional Court was approved as the executive body of an international organisation of the world’s constitutional courts. For the next three years, the Latvian Constitutional Court will represent the interests of all European constitutional courts at a global level. Such a mandate given to the Constitutional Court confirms confidence in the values that the Court upholds in its work.

International dialogue was particularly important in a year when Russia launched a full-scale war on Ukrainian territory. To be blunt, at the congress which I mentioned and which was dedicated to justice and peace, the constitutional courts of many countries remained passive about the presence of the Constitutional Court of the Russian Federation in the global family of constitutional justice, despite the annexation of the occupied territories of Ukraine that it had approved. Thus we have seen yet another attempt to compromise with the defence of democracy. At the same time, however, we have seen that Russia’s invasion of an independent country has changed the attitude of many of our European colleagues – that we can no longer be tolerant of threats to democracy. Contrary to what judicial representatives on other continents have said, this is no longer a political issue in which the judiciary should not even be involved. It is a struggle for freedom, for a democratic state order. The Constitutional Court of the Russian Federation, by approving the annexation of the territories of Ukraine conquered by force of arms to the Russian Federation, has turned into a political institution to legitimise the ambitions of an autocratic regime. Such a court is no longer a court within the meaning of the Statute of the World Conference on Constitutional Justice.

Back in February 2022, it might have seemed unusual to some that the flag of another country was flying outside the judiciary of the state and that the courts of the Baltic States, which deal with constitutional law issues on a daily basis, were demanding that Russia and Belarus be excluded from the global family of constitutional courts. However, already in October, together with our colleagues from the Baltic States and several other European countries, we convincingly secured the withdrawal of the Russian Constitutional Court from the World Conference on Constitutional Justice, while the Ukrainian flag has been flying at our courthouse since the first day of the war.

Looking at the challenges to the defence of democracy highlighted earlier in the report in the light of the international situation, I would stress our responsibility to continue to support our Ukrainian counterparts in their struggle for freedom and democracy, because the challenges will continue even after the war is won. Managing democracy in a devastated country is particularly difficult given the huge amount of other needs that go alongside it. In this respect, historical experience provides examples of how war can also lead to authoritarian regimes in some countries. That is why we need to work together now, as a preventive measure, with our partners in Ukraine and in other countries that are determined to become members of a single European judicial space, to prevent democratic weakening and to strengthen the independence of the judiciary and its integration into the architecture of democratic governance.

Year 2023 will be marked by active work on the agenda of the Office of the World Conference on Constitutional Justice and discussions in multilateral formats with constitutional courts across Europe on the effective representation of the interests of our continent’s courts at the global level. Latvia will also take over the Presidency of the Committee of Ministers of the Council of Europe for the second time from mid-May to mid-November 2023. These responsibilities are characterised by an intense schedule of international events. I am honoured that the Constitutional Court will also be an active participant in these events. In cooperation with the Supreme Court of the Republic of Latvia (Senate), we will organise an international conference in Riga in September on “The Role of the Courts in Enforcing Judgements of the European Court of Human Rights”.

Finally, I would like to emphasise perhaps the most important element of the dialogue, namely the implementation of the Constitutional Court’s openness to the Latvian society by addressing the most diverse groups of society through a variety of activities and modern communication mechanisms.

Informing the public about fundamental rights and the instruments for their protection through the Court’s interpretation and application of the scope of the articles of the Constitution is the reason why we are gradually compiling our findings on each article of Chapter VIII of the Constitution. The second publication in the series initiated by the Constitutional Court is a book magazine on the principle of legal equality.

Many judges and court employees contributed to strengthening the dialogue between the Court and society by becoming ambassadors of the Constitution in the educational campaign for schoolchildren “Me, You and the Constitution” and participating in the opening of the exhibition “Constitution 100 plus” at the Latvian National History Museum. More than a thousand people visited the Constitutional Court on Museum Night and, inspired by this, the Court launched a virtual tour of its history room last year. It is particularly important for us that everyone feels listened to with dignity at the Constitutional Court.

Dialogue with society continues to include children and young people. The competition of students’ drawings and essays has become a tradition, while this year, for the first time, the plein-air workshop “Story of the Constitution” was held by the Constitutional Court and the Art Academy of Latvia. The works produced as part of these events inspire confidence that, despite the current difficulties, the future of our country and democracy lies in the hands of an educated, determined and free people.

Throughout the year, we have continued to develop and regularly supplement the Constitutional Court’s broadcast programme Tversme, which saw the light of day more than a year ago, increasing knowledge about the values of a democratic state governed by the rule of law, the application of the Constitution and the work of the Constitutional Court in a way that is convenient for a large part of Latvian society. At the same time, bringing the rule of law closer to everyone does not mean making information about the Constitutional Court more primitive or presenting it in the simplest possible way. It is a work where rapprochement goes hand in hand with an interest in learning, working on oneself, learning about more complex legal issues, making people more aware of their fundamental rights and obligations towards society.

I am convinced that the various forms of dialogue – both with the sovereign itself and with the institutions representing all branches of state power, as well as with international cooperation partners – ensure the protection of the rights and interests of the sovereign, including when it does not participate directly in one of the stages of the dialogue, because the work of any state institution must first and foremost be carried out for the benefit of the Latvian people.

Being a guardian of the Constitution means serving your people. Respect, humility before the rule of law and each person’s individual situation is not a preference, it is our duty. It is a message that the state authorities still do not always manage to convey to the same people to give them a sense of security, satisfaction, belonging and social peace. The exercise of this duty is the most important mission of the judiciary, and in fact it is stated very simply in our fundamental law: The legal composition of the first sentence of Article 92 of the Constitution consists of only one word – “everyone” – and without it the Constitutional Court would not be able to properly guarantee the protection of fundamental rights guaranteed by the Constitution. Everyone has the right to defend his or her rights and lawful interests in a fair court. This is the foundation, the starting point, for the fact that we can gather here at all for the solemn session, because the Constitutional Court has been established with a single fundamental purpose – to work for the benefit of the people of Latvia and every individual by adjudicating within its specific competence. That is why any dialogue with the Constitutional Court begins in a very elementary way – anyone can participate.

Everyone is valuable! We are open to everyone! We will defend everyone’s rights!