Speech by the President of the Constitutional Court of the Republic of Latvia Sanita Osipova at the meeting with representatives of foreign diplomatic missions in Latvia
Sanita Osipova
President of the Constitutional Court
Prof., Dr. iur.
Speech 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
Excellences, Ladies and Gentlemen!
I am truly honoured to welcome you today in our second meeting. Last year we started a new tradition on the eighth of May – a tradition of dialogue. Dialogue between the Constitutional Court of Latvia and the diplomatic representatives based in Latvia. Given the circumstances, we had to postpone the event from the initial date hoping that we might meet in person. Yes, this time we meet virtually. I am pleased that you have chosen to join us today.
As you have already noticed last month, our Emeritus President Prof. Ineta Ziemele has joined the European Court of Justice. Consequently, the Constitutional Court unanimously elected me as its new President, and Mr Aldis Laviņš as the new Vice-President of the Court.
For those that do not know me yet in my new capacity, it is my ninth year as a Judge at the Constitutional Court. More than three years I have been the Vice-President of the Court. I am also a professor at the University of Latvia, legal historian focusing on the general theory of a state, legal sociology and judicial ethics.
Reference to the last meeting and the overall scope of competence
As many of you remember, last year we discussed the competence of the Constitutional Court and some of the recent judgments.
Just to reiterate that the Constitutional Court of Latvia verifies the compliance of legal norms with the Constitution. This way the Court ensures the supremacy of the Constitution, which is one of the key elements of the State based on the rule of law. For example, if a supposed violation of fundamental rights stems from a legal norm, a person is entitled to turn to the Constitutional Court. The Court is not competent to verify draft legislation, nor we assess the judgments of courts of general jurisdiction.
Through our judgments, we discover and explain, as well as protect Latvia’s constitutional identity. Judgments of the Constitutional Court are a source of law. Constitutional Court in its judgments evaluates and answers a specific question of law, as well as discloses the content and values of general legal principles. We have clear and transparent methodology to come up to a decision. This methodology too is binding to the legislator. This way we ensure stability and predictability, which is normal in countries with a long tradition of democracy, but still quite unusual in Latvia, because we have lived in a continuous regime of reforms.
Further on, I would like to focus on the importance of the dialogue with society and other branches of power. Then I will discuss the way how the Court managed its functions in the time of the pandemic. After that, I will mention several overall observations that characterise the work of the Court since the last time we met.
Now I would like to talk about the importance of the dialogue.
In the age of technology, the judiciary has to actively address the public. It is important for us to develop and maintain a dialogue with the society and other branches of power. This way we can promote qualitative exchange of thoughts on modern challenges, safeguard values and principles of a democratic state governed by the rule of law. Thereby the immunity of the sate against the potential threats to democracy increases. Through dialogue the judiciary is seen, heard and better understood by society. Dialogue is an integral and meaningful part of a democratic legal culture, and we are glad we have this opportunity to have it with you too.
As regards the society, we target many groups. For three years we have organised drawing and essays competitions on the Constitution for young people. This year we had more than hundred schools throughout Latvia. We also organise traveling exhibitions called the “Constitution by the eyes of school children”. Through this competition, we promote the young generations’ interest and understanding of the Constitution and improve knowledge of the basic values of Latvia as a democratic state governed by the rule of law. This is also introducing them to the Constitutional Court and explain its role in a democratic society.
We organise regular discussions on constitutional issues among experts of constitutional law called “Constitutional Law think-tank”. In addition, twice a year we organise “Discussion on Latvia” to promote interdisciplinary discussion on the values in the Constitution.
Every judgment is accompanied not only by a statement to the mass media, but also by a video which explains the judgment. In cases where the Court holds public hearings, the pronouncement of the judgment is accompanied by a press conference. In addition, this year we have made public our online case-law database and opened the possibility for the general public to use our library.
However, it is not only the society in general that we target. We have a dialogue with other branches of power on the topical issues that the society is facing. At the same time, we pay great attention to ensuring respect of the independence of the judiciary. The Court clearly sees the tendencies and problems that the society is facing. Applications that the Court receives, singles out issues in the field of fundamental rights. Several hundreds of applications mirror the overall temperature in the respect of the protection of fundamental rights in Latvia. As a Court, we need to act proactively and preventively and send appropriate signals to the legislator.
This year we continued our bilateral meetings with the President of Latvia, Prime Minister, Speaker of the Parliament, Legal Committee of the Parliament and the Minister of Justice. This September was the first time we engaged ourselves in a bilateral working session with the Judges of the Supreme Court. It is important for us to share our experience and to hear the opinions of the judges of the Supreme Court from different areas of legal specialization. Dialogue helps the courts to look in the same direction when faced with complex legal issues. It also strengthens the stance of the judiciary in general.
Speaking about a dialog, I would like to emphasise the common statement by the constitutional organs, which is an example of dialogue between the branches of power. This statement followed the announcement of the state of emergency this March. For the first time in the history of Latvia the President of Latvia convened a joint meeting of all heads of the constitutional bodies of the state. The aim of the meeting was to discuss the basic principles of operation of the branches of the state power in the circumstances of the state of emergency. The joint meeting of the legislative, executive and judicial power was organised via electronic means. This is an example of how the principle of the separation of powers was strengthened and the dialogue between them developed. We agreed to get rid of the unnecessary red tape in our cooperation in order to mitigate the state of emergency and to ensure the checks and balances.
This year it was very interesting for us to discover the effects of the dialogue with the society.
For the first time, this year we ordered an independent research to assess the awareness of the society of the Constitution, Constitutional Court and many other elements. The good news is that fifty one percent of the respondents fully trust” or “rather trust” in the Constitutional Court.
Only seventeen percent of respondents believe that the opportunities to defend rights in the Constitutional Court are “completely sufficient” and “rather sufficient”. Fifty three percent considered that the opportunities are “rather insufficient” and “completely insufficient”, and thirty percent of respondents were “difficult to say”. Respondents, answering the question why people relatively rarely turn to the Constitutional Court, have indicated the most typical obstacles: insufficient knowledge, lack of information, too much complexity and financial aspects.
On the other hand, the research data show that only thirty percent of respondents “know well” or “generally know, but not in detail” about the content of the Constitution. In turn, a large part of fifty four percent of respondents have admitted that they have “heard, but do not know anything much about the Constitution. The same goes on the awareness of the rights arising from the Constitution, including the right to defend one’s rights in court. Hence, we have a lot of work to do to inform our society even more.
Now, your excellences, I would like to talk about the work of the Constitutional Court during the pandemic.
Situation of the pandemics is a serious test for the European common values. The State has to maintain ensuring peace and stability, while at the same time complying with the international human right standards. Uninterrupted access to the court is one of those standards.
During this time, we have not cancelled or postponed any of the Court proceedings. Otherwise, the unresolved cases would accumulate and would threaten the rule of law. In fact, the only court with a constitutional jurisdiction in the European Union that did not interrupt any of its proceedings or public hearings, was the Latvian Constitutional Court. We digitalised our internal and external workflow to ensure an uninterrupted continuity of the Court. We introduced public hearings of all the parties, including some of our Justices through the videoconferencing. General public can follow the live stream of the public hearings on YoutTube. Our Justices use secure video networks to deliberate on the case files in the closed sessions, while working remotely. Thus, we have set a standard in the Latvian judiciary.
We are constantly modernising the capacity of the Court. Instead of one, now we have two assistants per judge. We have also introduced a new position of Administrative Manager responsible for all administrative work of the Court which was previously performed by the President of the Court in addition to the work of a judge. This August new legislative amendments entered into force. These amendments will strengthen the independence of the Court, so that we become even stronger and more resilient.
This year our case load and output almost doubled compared to the last year. This can be explained by the increase of awareness of the society of the Constitutional Court. It can also be explained by the fact that the State has introduced state-aid to low-income persons to help them prepare their applications. Also, the Ombudsman – he is on the guard of fundamental rights, especially the social rights. If the issuer of norms does not respond to the Ombudsman’s reports and findings of problems, then the last opportunity of the Ombudsman is to apply to the Constitutional Court. Cases are becoming more complex. Most individuals turn to us in cases involving a violation of social rights or property rights.
We do not have many Covid-19 related cases for the moment. A considerable number of pending cases this year relate to the Administrative reforms. In these cases, we will assess, among other things, the principle of good law-making. This also applies to assessing the work of the legislator during the lock down in the electronic format called e-Saeima.
This year we had to decide on several politically sensitive matters, which were brought to us, because the legislator did not do its homework. Contemporary technological development and multi-cultural society constantly require new or updated legislation. This process expands the functions of the State. Legislator has to cover more and more political dimensions and decide on new solutions to enable the conformity with the Constitution.
The year of 2020, more than any other year, has marked the fact that there are many issues, the solutions of which have long been ignored by the politicians. And people end up in the only place where they can defend their rights – at the Constitutional Court.
One of the trademarks this year is the principle of human dignity. The Court applied the principle of human dignity in deciding whether the social security system corresponds to it, or whether the absence of certain rights of same-sex couples corresponds to it.
In relation to the social security system, the Court found that the legislator had an obligation to create social security system that is aimed at protecting the human dignity. For the first time, the Constitutional Court defined life that corresponds to human dignity. It’s not just food, clothes and accommodation. It includes also the concept that every person has a right to be included in the social, political and cultural life, thus, ensuring to any person the status of a full-fledged member of society. The Court concluded that at the moment there is no clear framework, system and transparent criteria, that supports the amount of the respective social benefits.
In the Court’s case regarding some of the father’s rights, if these rights can be attributed to a same sex partner of a homosexual mother, we observed that the legislator had ignored the issues of same sex partnerships and their rights for decades.
The Court concluded that it is against the principle of human dignity to think that dignity of one person is of a less value than dignity of another one. Principle of human dignity does not permit the State to refuse fundamental rights to a particular person or group of persons. Stereotypes existing in the society cannot serve as constitutionally justifiable basis for refusing or limiting the fundamental rights of a particular person or a group of persons in a democratic State governed by the rule of law. The Court concluded that the State has to protect dignity of every person, every family. The State has to equally respect also those members of society who, by their nature, have developed same-sex personal relationships that led to form a family.
In a conclusion – regarding the populism. Similarly, to what is happening in the rest of the Europe, Latvia is also facing the increase of the popularity of the populism. However, populism has not only political, but also legal consequences. For example, there are several laws that provide for a specific percentage of budgetary money to be attributed every year to a specific industry. But in reality, these legal norms are not fulfilled. This was also the case in our recent judgment on the higher education law and the State budget law that provided for certain percentage of GDP increase in the higher education sector, but was never fulfilled. The Court decided that such provision is contrary to the Constitution.
Your Excellences, there are many interesting cases to be discussed. However, I stop here. I am glad that despite the circumstances, we are together. I thank you for the opportunity to transmit the information to you and through you. Thank you very much for your attention!