Speech by the President of the Constitutional Court Sanita Osipova at the opening of the Constitutional Court’s Judicial Year
Sanita Osipova
President of the Constitutional Court
Prof., Dr. iur.
Speech by the President of the Constitutional Court Sanita Osipova at the opening of the Constitutional Court’s Judicial Year
Riga 4 February 2022
Introduction
Honourable Prime Minister, Honourable President of the Supreme Court, Honourable Mr Īvāns, Honourable Judge Mits of the European Court of Human Rights, Honourable Former Presidents of the State, Honourable Former Presidents and Justices of the Constitutional Court, ladies and gentlemen!
I am honoured to open the new judicial year of the Constitutional Court with the fourth formal sitting of the Court, where the Court reports to the public on its achievements of the previous year. This is important because in a democracy, every constitutional body exercises popular power. This public accountability provides feedback to the sovereign and reinforces the legitimacy of our actions. At the same time, the formal sitting of the Court symbolises dialogue between the constitutional bodies representing the three branches of State power, aimed at strengthening the judicial cultural area of our State. Moreover, this solemn sitting also marks the 25th anniversary of the Court, as well as the upcoming centenary of the Constitution. And this is the last hearing in which I take part as a Justice of the Court, as I will lay down my mandate on 11 February.
We have achieved so much in this past year due to people who choose to defend their rights, which allows the Court to strengthen Latvia, a democratic state governed by the rule of law, with its judgments. The legal issues that come before the Court are the tip of the iceberg of the deficiencies in Latvia’s legal system. It is a mirror of our people’s perception of justice; a mirror that every branch of government should look into to understand the problems that the Latvian sovereign cares about and which have to be addressed through law, thus bringing ordering into people’s lives and making them easier.
Statistics
Last year, the number of applications submitted to the Constitutional Court increased, as did the complexity of the cases initiated. A total of 47 cases have been opened. Most cases were initiated on the basis of constitutional complaints by individuals (23 cases) and court applications (20 cases). Two cases were initiated on the basis of applications by local government councils, and one case each on the basis of an application by the Ombudsman and an application by members of the Saeima.
The largest number of cases challenged the compliance of legal provisions with the right to property enshrined in Article 105 of the Constitution (24 cases), the procedure for exercising the right to legislate enshrined in Article 64 of the Constitution (13 cases), as well as the principles of legal equality and prohibition of discrimination enshrined in Article 91 of the Constitution (11 cases).
In total, 27 cases were heard last year. They declared 66 legal provisions compatible and 34 provisions incompatible with the Constitution.
Given that this time was passed under the sign of the 25th anniversary of the Constitution, it is worth outlining the overall achievements of the Constitutional Court during this period. So far, the Court has delivered 379 judgments, taken 113 decisions on termination of proceedings, and dealt with more than 4,500 applications. The Court has given its opinion on issues important for the State and the community, gaining social trust – the Constitutional Court is the most trusted constitutional organ of State power.[1] This is a very high award, which gives us great satisfaction for the work we have done.
In these 25 years, the Constitutional Court has developed a tradition of adjudication, a methodology for interpreting constitutional provisions, and has strengthened the values of a democratic state governed by the rule of law. I express my gratitude to every justice and staff member of the Court for their selfless work in standing guard over the Constitution. Thank you!
Dialogue
To foster trust and develop a shared vision for the future of the State, the Constitutional Court actively engages in dialogue – first and foremost with the public. This year, we have made sustainability the central topic of this dialogue. Sustainability is one of the constitutional principles aimed at protecting and implementing the goals and values enshrined in the Constitution.[2]
In order to develop new forms of dialogue with the public, the Court has launched a podcast called Tversme.[3] With this podcast, we aim to generate interest and increase knowledge about the values of a democratic state governed by the rule of law, the application of the Constitution and the work of the Court. The episodes of Tversme are intended to highlight, among other things, the recognition that the Constitution is capable of ensuring the sustainability of Latvia’s statehood.
The Court’s dialogue with the public continues to include children and young people. Through its fifth annual drawing and essay competition, the Court works to encourage creativity in children and young people and increase their knowledge of values. In addition, the competition includes webinars on the values enshrined in the Constitution, giving young people the opportunity to discuss topics of interest to them. By fostering an exchange of ideas between generations on what matters most, we contribute to sustainability and strengthen our civic future.
The Constitutional Court regularly holds Conversations On Latvia in cooperation with the National Library of Latvia. These events bring together representatives from different sectors to discuss issues of importance to Latvia as a whole. Another way in which the Court draws attention to the importance of democratic values is the Lampa discussion festival, as is the Court’s tradition of organising a think-tank for constitutional law experts, which will be devoted to sustainability this year.
The Constitutional Court is entrusted with the great responsibility of ensuring the supremacy of the Constitution and enforcing the values of a democratic state governed by the rule of law. For this reason, at least once per year the Court meets with the heads of other constitutional institutions, as well as establishes cooperation with other institutions of the judiciary. This aspect of dialogue will also play an important role in Court’s activities planned for the year.
Last year, the Constitutional Court continued its dialogue with foreign constitutional courts, thereby strengthening the rule of law in Europe. A special highlight is the conference “EUnited in Diversity: Between Common Constitutional traditions and National Identities”. The conference took place in Riga in September 2021 and was organised by the Court together with the Court of Justice of the European Union. This was the first time in the history of the European Union that judges of the constitutional courts of the Member States and judges of the CJEU gathered to discuss EU’s common legal traditions and how to reconcile them with the constitutional traditions and national identities of the Member States. The issues discussed at the conference are high on the EU’s justice agenda.
Recent case-law of the Constitutional Court
Administration of justice is also a part of dialogue with the Court.
Last year, the Constitutional Court continued to receive applications and initiate cases on issues related to the Covid-19 pandemic.[4] The Court also heard its first-ever case concerning restrictions on the organisation of gambling during the emergency situation related to the spread of Covid-19 infection.[5] This case is significant for several reasons. First, it assessed for the first time the competencies of the Saeima and the Cabinet of Ministers during a state of emergency. The Court held that the legislator’s authorisation to the Cabinet of Ministers to adopt the legal provisions necessary to manage the emergency situation was established to remedy the emergency situation as quickly and efficiently as possible, taking into account its multi-layered nature and the wide range of persons affected, as well as the difficulty of foreseeing the development of that situation. The fact that the Cabinet of Ministers is empowered to take certain steps in an emergency, which would provisionally fall within the competence of the Saeima, is in line with the principle of separation of powers. At the same time, there are limitations on the executive in exercising this power, moreover, it does not alter the status of the parliament as a directly legitimised democratic legislator. Thus, if the Saeima concludes that it is able to remedy a particular emergency issue quickly and effectively on its own, it has the right to do so. However, the legislator must always respect general principles of law aimed at minimising harm to fundamental rights, democracy and the rule of law.
Secondly, the case under consideration emphasised the freedom of self-determination of the individual as the supreme value of a democratic state governed by the rule of law. Freedom of self-determination involves the right of a person to make their own choices on the basis of the information available to them without direct state interference, where those decisions affect exclusively them. This freedom extends to any human choice, as long as it does not undermine the rights of others, the constitutional order, or other interests essential to society. The legislator must respect this freedom and trust the individual’s ability to appraise the consequences of such an expression of freedom, even if it could be a self-injurious act, as long as it affects only that individual. In turn, the person must take responsibility for the consequences of exercising their freedom. Even in times of emergency, the legislator must not adopt rules that are unduly broad and restrict the rights of persons to whom the legitimate aim of the restriction does not even apply. With regard to the contested provision[6], the Court recognised that the legislator had no grounds to restrict the possibilities of all people to choose where they wanted to invest their financial resources and how to spend their free time, as such protection was not necessary for all. Taking such decisions for citizens is a disproportionate paternalistic interference with people’s right to freedom of choice and self-determination.
Last year, the Constitutional Court examined several cases related to the administrative-territorial reform[7] . A total of 19 cases were brought before the Court, which were consolidated into three cases with three judgments delivered.[8] The Court recognised that, taking into account the doctrine of relevance and the principles of parliamentary democracy, the legislator has the discretion to decide on issues related to the administrative-territorial division. The legislator must ensure balance between the different interests of specific local governments and the common interests of society, but it is not obliged to assess compliance of these decisions with the principle of proportionality in the sense that it does when imposing restrictions on fundamental rights. In line with the principle of good governance, the State has a duty to keep public administration and the administrative system under constant review and, where necessary, to improve it so that it operates as efficiently as possible. Thus the goal of the administrative-territorial reform, aimed at eliminating the identified shortcomings, is commensurate with the common interests of the Latvian society as a whole. At the same time, the Court pointed out that a reform cannot be based solely on economic considerations and financial gain. The Court stressed that, when deciding on the administrative-territorial division, the legislator is obliged to ensure that the legal framework developed is sustainable and to decide in a political procedure which considerations should prevail. Moreover, the legislator must respect the requirement arising from the principle of the rule of law that the criteria underlying the reform apply equally to all local governments, while any exception thereto must be rationally justified.
Last year, the Constitutional Court also examined a case on the compliance of several provisions of the Istanbul Convention[9] with the Constitution.[10] In this case, the Court answered major questions that have concerned society for quite some time. The Court held that all the obligations imposed on Member States by the Istanbul Convention relate exclusively to the elimination of violence against women and domestic violence. The concept of “gender” in the Convention is not intended to replace the concepts of “man” and “woman”. Moreover, the Convention does not impose the adoption or implementation of any particular form of marriage or family. In addition, the case is significant for other reasons. In this case, the Court described for the first time the constitutional identity of Latvia, concluding that it is, inter alia, formed by Christian values and the postulate that the family is the foundation of a cohesive society. Describing the preamble to the Constitution was also a first for the Court, where it stated that this was a set of legal provisions and values from which the State derives certain constitutional obligations. Finally, it should be noted that the case on the Istanbul Convention was the first case in the history of the Court that assessed the constitutionality of an international treaty before its approval by the Saeima.
In the summer of last year, answers were received from the CJEU to the questions that the Court had included in a request for a preliminary ruling in the case on the driver demerit points.[11] On the basis of the judgment of the CJEU, the Court recognised that the contested provision was not proportionate – it provided that information on the driver demerit points was generally accessible, although it should be restricted information.
Building on its previous case-law, the Constitutional Court adopted several judgments on the constitutionality of restrictions of fundamental rights of an absolute nature or absolute prohibitions.[12] For example, the court assessed whether the legal provision that prohibited a previously convicted person from running for the position of a board member or the council of a public-private capital company for life was constitutional. Another case assessed a legal provision that barred a person convicted of a violent criminal offence from being a guardian of a child for life. These cases are significant with the effect that the Court specified the principle of good lawmaking in cases where the legislator decides to include an absolute prohibition in a legal provision. Namely, the court held that the legislator must justify the necessity for the absolute prohibition, assess the nature and consequences of such a prohibition, as well as justify that the legitimate aim of the restriction of fundamental rights would not be achieved to an equivalent degree by providing for exceptions to the absolute prohibition. Almost all the cases in which restrictions of fundamental rights of an absolute nature have been assessed are permeated by the Court’s recognition that a person may change in the course of life and the fact of committing a criminal offence may not in itself affect the rest of a person’s life. When providing for a prohibition that restricts person’s fundamental rights one should not follow general presumptions, but promote the achievement of individual justice to the extent possible.
The Constitutional Court also examined issues of remuneration in two cases – in the case on the supplement for work on public holidays for officials with special service ranks in institutions of the Ministry of the Interior and the Prisons Administration system,[13] as well as in the case on financing for the increase in remuneration of medical practitioners.[14]
In the first case, the Constitutional Court described for the first time the meaning of holidays and rest periods. Official holidays sustain and strengthen shared historical memory, national consciousness and national identity. Official holidays must be paid days off, on which employees can both celebrate public holidays and rest. However, working on official holidays is allowed in special cases. To this end, the Constitution requires the establishment of a system of remuneration for work performed on official holidays that is both rewarding and compensatory.
In the second case, the Constitutional Court assessed the provisions of the State Budget Law, which provided for the financing of remuneration of medical practitioners. The Court noted that according to the Health Care Financing Law, increasing the remuneration of healthcare workers is a medium-term priority. When preparing the draft law on the state budget, the Cabinet of Ministers is granted discretion as to the extent to which the medium-term priority actions proposed by the various institutions should be financed, taking into account the balancing opportunities between these, the state of public finances, the urgency of the specific measures and the political priorities of the State. The Cabinet must also comply with the laws and regulations governing budget planning, which provide for ensuring a balanced and sustainable budget. The Court acknowledged that the Cabinet had considered the possibilities of providing a pay raise for doctors, but that these possibilities were balanced with other priorities and the State’s capability, thus avoiding financially risky decisions. The Court held that the existence of the State was based on the principle of sustainability, and the requirement for sustainability of the State also influenced the preparation of the budget. The principle of sustainability is embedded, inter alia, in medium-term budget planning. This ensures that the annual state budget is directed towards long-term objectives and does not have a negative impact on the financial stability of the State.
The Constitutional Court also supplemented its case-law in the area of tax law. For example, in the case regarding the proportionality of a tax penalty[15], the Court recognised that ensuring tax revenue is directly related to a person’s constitutional obligations towards the Latvian State. These obligations are aimed at the sustainable implementation of the sovereign will: to live in a democratic state governed by the rule of law, enshrined in the fundamental provision of the Latvian State. Whereas failure to fulfil such obligations undermines the existence of any democratic state governed by the rule of law. Namely, everyone must take care of themselves, their families and the common benefit of society by acting responsibly towards others, as well as future generations. This concern manifests, inter alia by the person fulfilling their the constitutional obligation to pay taxes contained in Article 66 of the Constitution and thus assuming responsibility for meeting the needs of society and maintaining the Latvian State. The Court also noted that the level of the shadow economy in Latvia was still high, while the understanding of the constitutional obligation of a person to pay taxes – insufficient. At the same time, the Court emphasised that the assessment of the nature of the offence and the individual circumstances of the taxpayer are of crucial importance for the application of penalties for tax offences. It is one of the tools that can give to the taxpayer assurance that the relevant tax incentives are fair. The existence of such an assessment would facilitate the taxpayer’s confidence in the tax administration and, consequently, voluntary fulfilment of tax obligations.
Sustainability
As is evident, the Constitutional Court mentioned sustainability in several cases it heard last year. Sustainability is undeniably one of the topics whose importance is growing.
When considering sustainability, we can single out sustainability of the Latvian nation, the Latvian state, the Latvian people, humanity and the whole world. Each of these aspects is encoded in the Preamble to the Constitution: the sustainability of our nation throughout history which has forced us to safeguard our identity and unity; the sustainability of the State without losing the conviction that Latvia will persevere even in occupation; the responsibility of each person for their own life and well-being, that of their family and that of society as a whole, now and in the future.
We have come to believe that the purpose of the State is to ensure prosperity. But the Constitution teaches that prosperity cannot exist in isolation from sustainability. For example, we are still fighting the Covid-19 pandemic to protect human life and health. We are working to overcome the impact of the pandemic and inflation on the economy to ensure a decent life for everyone. But our victories will be short-lived if we do not look around us and further ahead. Alongside our daily concerns, we must pay mind to sustainability of our nation, our country, our people, humanity and the world.
An ancient folk wisdom says, “we have not inherited this land from our parents, but have borrowed it from our children”. This wisdom encapsulates the idea of intergenerational solidarity, which is reflected, for example, in the 1987 report “Our Common Future” by the UN Commission on Environment and Development, chaired by Gro Harlem Brundtland[16]. Are we responsible to future generations in pursuit of our own well-being?
Albert Einstein founded the Bulletin of the Atomic Scientists with other scientists in 1945. The cover of the 1947 issue of the magazine featured a clock showing seven minutes to midnight. The illustration intended to show how close humanity has come to its doom. Since then, the editorial team, in collaboration with experts from various fields, has been regularly assessing the nuclear threat, climate change and disruptive technologies in order to move the clock forward or back. The clock is now the closest as it has ever been – 100 seconds to midnight.[17]
This metaphor is a reminder of just how important sustainability is. We often get caught up in our everyday needs and fail to see beyond them. We do not see what is happening in the oceans and the Baltic Sea, on other continents and in neighbouring countries. We do not wonder what will happen in 10 or 100 years. We live in the here and now. What we should be doing instead is live smarter – sustainably.
In its judgments to date, the Court has addressed issues such as spatial planning, use of natural resources, State budget, tax policy, social security, legislation and defensive democracy in the context of sustainability. I would like to stress that since last year, when the Court developed its Green Policy, sustainability has also entered the Court’s daily practice. Under the Green Policy, the Court is committed to reducing the amount of waste it produces and recycling it as far as possible. The Court is committed to saving resources and promoting other environmentally friendly practices. Every Justice and employee of the Constitutional Court is invited to weigh their current habits from the point of view of sustainability, and to act in such a way that minimises their negative impact on the environment. When we think about it in the context of conserving resources, it would seem that the Court’s commitment is practically nothing. But if we measure it in terms of highlighting the importance of sustainability, it means everything. We can embrace this conviction in all our ways.
Conclusion
The founding fathers of the Latvian State laid down in the Proclamation that Latvia is an independent, democratic republic. They also prescribed the principles for electing the Constitutional Assembly to draw up the Constitution. Thus, the ‘genetic code’ for the sustainability of the Latvian State is a democratic state governed by the rule of law, where supremacy of the Constitution is exercised.
The Constitution has always stood alongside Latvia’s statehood and ensured the existence of the Latvian State throughout the ages. The rise and decline of democracy, the severe consequences of authoritarianism and illegal occupation, as well as the story of restoring our independence and the Constitution have made us wise – they have taught us to think about future generations and our common responsibility to ensure that the Latvian State will exist forever. It is the unique experience of restoring independence and the Constitution that allows us to celebrate the continuity of statehood and to boast one of the oldest constitutions in force in Europe. A century of the Constitution confirms that responsibility is freedom.
The opportunity to reflect on the application of the Constitution, as well as to reflect on the restoration of the independence of the Republic of Latvia and the functioning of the Constitution, is a symbolic opportunity to celebrate that Latvia is a free, independent, democratic state governed by the rule of law.
Under the sign of sustainability of the Latvian State and the Constitution, we have invited Mr Dainis Īvāns, the symbol of the restoration of our freedom, to this formal sitting of the Constitutional Court. Mr Īvāns, I invite you to take the stage. Thank you!
[1] Public opinion survey “Views of the Latvian population on the Constitutional Court”. Press conference, 27.08.2020. Available at: satv.tiesa.gov.lv
[2] Judgment of the Constitutional Court of 6 October 2017 in Case No 2016-24-03, paragraph 11.
[3] The Constitutional Court launches the podcast Tversme. Available at: satv.tiesa.gov.lv/press-release/satversmes-tiesa-atklaj-raidierakstu-tversme
[4] Case No 2021-10-03 on the requirement to take the Covid-19 test before entry into Latvia, Case No 2021-24-03, Case No 2021-29-03 and Case No 2021-37-03 on restrictions on commercial activities in large shopping centres (all three cases merged into one), and Case No 2021-33-0103 on conduct of education in schools remotely after the end of the emergency situation.
[5] Case No 2020-26-0106. See also Case No 2020-62-01.
[6] The legal provision in question – Section 9 of the Law On Measures for the Prevention and Suppression of Threat to the State and Its Consequences Due to the Spread of Covid-19 – prohibited interactive gambling.
[7] This administrative-territorial reform was established by the Law on Administrative Territories and Populated Areas of 10 June 2020.
[8] Case No 2020-37-0106, Case No 2020-41-0106 and Case No 2020-43-0106.
[9] Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence.
[10] Case No 2020-39-02.
[11] Case No 2018-18-01. Last year, the CJEU issued a preliminary ruling in case No 2020-24-01 on the imposition of value added tax on the compulsory lease of land.
[12] Case No 2020-18-01, Case No 2020-29-01, Case No 2020-36-01 and Case No 2021-05-01.
[13] Case No 2021-07-01.
[14] Case No 2020-40-01.
[15] Case No 2020-31-01.
[16] Report of the World Commission on Environment and Development: Our Common Future. Available at: sustainabledevelopment.un.org/content/documents/5987our-common-future.pdf
[17] Mecklin J. At Doom’s Doorstep: It is 100 Seconds to Midnight: 2022 Doomsday Clock Statement. Bulletin of the Atomic Scientists, 20 January 2022. Available: thebulletin.org/doomsday-clock/current-time