Vice-president of the Constitutional Court Uldis Ķinis and Justice Sanita Osipova participate in the conference dedicated to the 20th anniversary of the Constitutional Court of Ukraine
Vice-President of the Constitutional Court of the Republic of Latvia
Uldis Ķinis
Kiev, 7 October 2016
The Constitutional Complaint: in the Case Law of the Constitutional Court of the Republic of Latvia
The constitutional complaint as an instrument of fundamental rights entered into force in the Constitutional Court Law on 1 July 2011. Pursuant to Section 17 of this Law, a person has the right to submit an application in the case of infringement upon his fundamental rights that have been established in the Satversme [Constitution] of the Republic of Latvia. A person may submit a constitutional complaint only if he can substantiate that the fundamental rights provided for in the Satversme have been infringed upon by a legal norm that is incompatible with a legal norm of higher legal force. Moreover, the person must substantiate the existence of the infringement, i.e., the infringement must be real. This means that the contested norm must have been actually applied, and the person must substantiate in what way, in his subjective opinion, the contested norm causes an infringement upon his fundamental rights.
In this stage the submitter of the constitutional complaint must not yet prove the infringement, but only must substantiate his own objective opinion on the existence of an infringement. The panels of the Constitutional Court have quite frequently debated, whether any complaint that complies with the formal criteria for initiating a case, are grounds for initiating constitutional legal proceedings. However, the established case law reveals the trend, rather clearly, that cases are initiated if the complaint complies with the formal criteria that have been set for such a complaint by the Constitutional Court Law: 1) the contested norm must have been actually applied; 2) all other legal remedies must be exhausted or the absence of such remedies must be substantiated; 3) a complaint may be submitted within six months after the final ruling has come into force or the contested norm has entered into force; 4) legal substantiation must be provided that the applicant’s fundamental rights have been violated; 5) documents necessary for establishing the facts of the case must be annexed.
To prove the effectiveness of this instrument, I shall refer to some numbers, spanning the period from 2010 to 2016. In 2010 75 cases were initiated, of these 64 cases on the basis of a constitutional complaint. In 2011, respectively, 21 cases initiated, of these 12 having regard to a constitutional complaint; in 2012 – 26 cases, 16 having regard to a constitutional complaint; in 2013, 21 and 13 on the basis of a constitutional complaint; in 2014, 36 and 31, respectively.
In 2015 Constitutional court initiated 24 cases among them 15 cases where initiated on basis of constitutional complaint. Whereas in 2015 as from 30 September court initiated
19 cases, of which 15 on the basis of constitutional complaint. In the recent years a clear trend can be observed that the quality of applications submitted to the Court constantly improves, since the number of applications, on the basis of which constitutional legal proceedings are initiated, is growing.
The dynamics in the development of constitutional complaint. During the first years the constitutional complaints predominantly were submitted with regard to such infringements that were linked to social security, the right to a fair trial, conditions at the institutions for deprivation of liberty and other issues of law, where the violation had to be reviewed through the classic scheme of restrictions upon fundamental rights. Basically, these were restrictions related to the right to a fair trial (Article 92 of the Satversme) and the right to own property (Article 105 of the Satversme).
Whereas the current practice shows that constitutional complaints are submitted with regard to issues of copyright, data protection, taxes, business activities, state support, the right of society to association, penal policy and other issues in the field of public law, where the legislator enjoys broad discretion et.c. The aforementioned proves that society in general is becoming better educated and trusts the Constitutional Court. Initially, after the constitutional complaint was introduced, it was predominantly submitted by specialised law offices and persons serving their sentences at penitentiary institutions; however, now one can say that the constitutional complaint as a mechanism for protecting one’s rights is extensively used both by individual natural persons and by legal persons, including public and political organisations.The limits of review in examining constitutional complaints. Two conditional categories could be singled out in this regard: 1) the classic cases of restrictions upon fundamental rights, where the review is carried out in accordance with the test of restrictions upon fundamental rights, and 2) cases that are related to rights, where the legislator enjoys broad discretion, for example, penal policy and taxation, etc. In the first
The limits of review in examining constitutional complaints. Two conditional categories could be singled out in this regard: 1) the classic cases of restrictions upon fundamental rights, where the review is carried out in accordance with the test of restrictions upon fundamental rights, and 2) cases that are related to rights, where the legislator enjoys broad discretion, for example, penal policy and taxation, etc. In the first case the Court examines, whether a restriction exists, whether it has been established by law, whether it has a legitimate aim and whether it is proportional, and I shall not dwell upon these issues.
Whereas in those cases that are linked to the field of public law and where the State enjoys much broader discretion, the Court, essentially, had to elaborate a new doctrine, basically founded upon the classic proportionality test, however, putting another content into this test.
Case law:
I would like to share more extensively with the participants of the conference those findings that the Constitutional Court has made in adjudicating such cases that are related
Collection and processing of genetic data, right of National Bank – Case 2015-11-03 to issue binding regulations, constitutionality of obligation for person to hang out Latvian flag , indiscriminate discrimination doctrine and finally cases related with status of insolvency administrators.
Case concerning, competence of the Latvian National Bank to issue binding enactments. Development of ultra vires doctrine- case- 2015-11-03. In this case court examined legitimacy of Bank to issue binding enactments. Actually judgment has considerable impact in accessing status of Bank. Whether Bank, has right to issue any binding enactments for capital companies, whose business related with cash transactions.
On 17 July 2008 the Saeima adopted the law On the Prevention of Money Laundering and Terrorism Financing (hereinafter Law on Prevention), which entered into force on 13 August 2008. This law regulates the rights of supervisory and control authorities. According to law The Bank of Latvia, pursuant to Section 47(3) of Law on Prevention, on 15 September 2014 issued Regulation No. 141 “Requirements Regarding Prevention of Money Laundering and Financing of Terrorism in Buying and Selling Foreign Currency Cash” para 19 states: 19. If the transaction is not unusual or suspicious and business relations are not initiated, but the sum of the transaction is equal to 2 000 – 7 999.99 euro, the capital company shall identify the client or the true beneficiary as follows: 19.1. shall make copies of the client’s identity documents; 19.2. shall verify, whether a client’s identity documents are authentic and valid; 19.3. shall immediately inform a competent law enforcement institution, if substantiated doubts arise regarding forgery of the submitted identity document.
The Applicant is Capital Company which as part of its business activities is engaged in buying and selling foreign currency cash. Allegedly, pursuant to the valid regulatory enactments, this service is provided only by capital companies, which have received a licence from the Bank of Latvia, and credit institutions as one kind of financial services.
However credit institutions- banks, whose part of business also is trading in cash, have obligation to identify a client in cases when of trading cash in the amount equal to 8 000 euro or more.
The application comprised a request to review compatibility of the contested norms with Article 1 and Article 64, as well as the first sentence of Article 91 of the Satversme. Article 1 of the Satversme: “Latvia is an independent democratic republic.” Article 64 of the Satversme the right to legislate is vested in the Saeima and also the people, in accordance with the procedures and to the extent provided for by the Satversme and the first sentence of Article 91 of the Satversme, in turn, provides that all human beings in Latvia are equal before the law and the courts.
At first court examine compatibility with Art 91 – sentence one. The Applicant holds that the feature, which points to the fact that both the aforementioned groups are in similar and according to concrete criteria comparable circumstances, should be linked to the operations of both groups in the same market, i.e., that of services of trading cash. Moreover, the subjects belonging to both groups are capital companies, which should be regarded as competitors. Court consider that both groups capital companies and credit institutions provide akin services, the market of services of trading cash, are to be considered as being competitors. Court also consider that contested norm impose upon capital company obligation to identify the client from 2000, but credit institutions from 8000. Court found that obligation upon capital companies was issued by Bank of Latvia. Applicant holds that Bank of Latvia does not have right to issue external regulatory enactment, but it even has such rights then contested norm exceeded the authorisation granted by law.
That’s why court in this case examine whether right of Bank of Latvia to issue external regulatory enactments follows from Satversme and whether it has sufficient democratic legitimization. Court find: Bank of Latvia is an autonomous institution of public administration. Further court examined principle of separation of powers derived from Art 1 of the Satversme. Pursue to Article 64 of the Satversme right to legislate, right to regulate an issue by law, is vested into the Saeima, as well people, in the procedure established by Saeima.
Pursuant to the principle of separation of powers, general passing of laws on any issues of state policy falls within the legislator’s competence. However to make legislative process more effective as well respond faster Saeima may authorise to issue bind regulation to the Cabinet of Ministers and other autonomous institutions of public administration, like Bank of Latvia. However Satversme allows for the right of autonomous institutions of public administration to issue external regulatory enactments in the framework of governance activities, if such institutions have received appropriate democratic legitimization- namely, specific authorisation from legislator. Finally court concludes that Bank of Latvia has right to issue binding external regulation, but within frame of authorisation given by Parliament.
In this case the Saeima has decided that credit institutions and capital companies, which are engaged in trading cash, have the obligation to identify the client or the true beneficiary in particular cases and this minimal threshold is 8000 eur.
According contested norms Latvian Bank without proper authorisation of legislator created new binding criteria for capital companies, namely- obligation to identify every cash trade operation equal to 2000 euros or more.
Finally court find that Bank of Latvia in adopting the contested norms, has acted contrary to the principle of separation of powers and has exceeded authorisation granted by the legislator and issued norms has been consider ultra vires are incompatible with Article 1 and 64 first sentence of Article 91 of Satversme.
The second case what I put in my presentation was so called “Flag case”. Findings of this case in my opinion is important, because court first time examines – negative aspect of right of freedom of expression and whether state has right to impose punishment for situation when person demonstrates his/her refusal to comply with the law.
Latvian flag case – 2015-01-01. Contested law. The second part of Section 7 of Law on the National Flag provide: (2) The national flag of Latvia in mourning presentation shall be placed on public buildings, buildings of legal persons governed by private law and associations of persons, as well as on residential buildings, on 25 March, 14 June[ day of commemoration of victims of communist genocide], 17 June, 4 July and on the first Sunday of December.” 2) Article 201 43 of the Latvian Administrative Violations Code (hereinafter – the contested LAVC norm) provides:
“A warning shall be issued for failing to raise the national flag or other state flags on dates and occasions specified by the Saeima, the Cabinet of Ministers, councils of republican cities or regional councils, as well as in the case of violation of the method or procedures for raising the Latvian national flag. A warning shall be issued or a monetary fine in an amount up to forty euros shall be imposed for the same actions if such are committed repeatedly within a year after an administrative sanction had been imposed.”
Applicant on 14 June 2013 in her property, which was also her place of residence, celebrated a family reunion. The Applicant had not placed on the residential building the Latvian national flag in mourning presentation because it would have hindered the celebrations. Administrative commission of Riga city issued decision and impose penalty warning upon the Applicant. Applicant appealed this decision however court leave this unmanned. Applicant submitted constitutional complaint arguing that contested law violates she’s right of freedom of expression – Article 100 of Satversme. The applicant underscores that the use of National flag as symbol of the state is a way, in which a person expresses his or her opinion in a non-verbal form. The freedom of speech should be applied both to persons, who use the national flag as a means of expression, and to persons, who choose not to use it.
Court concludes since the Applicant is a natural person, who owns a residential building; it should be held that the limits of the claim are defined by the possible infringement upon her rights – those of a natural person, owner of a residential building. It means that court will not consider admissibility for public buildings, buildings of legal persons governed by private law and associations of persons.
The Constitutional Court, in interpreting Article 100, finds that the freedom not to express one’s opinion falls with the scope of Article 100 of the Satversme. The Applicant exercised her right to the freedom of speech in its negative aspect and whereas the contested norm provides administrative penalty for failure to perform this obligation. That’s why contested norm restrict the applicant right freedom of expression in negative aspect.
To examine whether restriction upon fundamental rights has been appropriate, court examined that contested norm has legitimate aim- to protect the democratic structure of the State of Latvia and it also is proportional.
Court finds that restrictions upon fundamental right imposed by application of Art. 201 – 43 of the Latvian Administrative Violations Code shall be considered as an obligation. Contested norm forces Applicant to perform the obligation- – on the dates specified in law, to place the Latvian national flag on his residential building (primary impact), but also causes a negative impact upon the manifestations of the freedom of speech in society in general (secondary impact). The contested LAVC norm, leaves an impact upon an individual’s freedom of speech and therefore should be recognised as a disproportional restriction upon an individual’s rights, which is not necessary in a democratic society. Establishing a sanction for not expressing one’s opinion is inadmissible in a democratic society. Restriction is incompatible with article 100 of Satversme.
Case Nr. 2015-10-01 on indirect discrimination on neutral ground.
On Compliance of Section 7(3) of the Law “On Prevention of Conflict of Interest in Activities of Public Officials” with the first sentence of Article 91 and Article 110 of the Satversme of the Republic of Latvia.” The idea why I would like to put emphasis for this case is, because first time in court jurisprudence court examined question of indirect discrimination. Applicant was judge who according to contested norm has status of public official. Conflict of interest law states that judge may combine office of judge only with the work of teacher, scientist, professional athlete and creative work.
Applicant has disabled child, who requires special care. She considered the possibility of combining the office of a judge with performing the obligations of her child’s assistant. It is impossible to involve other members of the family in performing the assistant’s duties, because it is difficult for the child to establish a psychological contact with any other person, except her mother. However contested norm prohibits her as a judge to assume the duties of her child’s assistant and to receive remuneration for it. She holds that contested norm “imposes ungrounded and disproportional restrictions” and violates equality of rights and family rights of Article 110 of Satversme- 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. The State shall provide special support to disabled children, children left without parental care or who have suffered from violence.”
Court finds that there is doubt that Art 110 imposes upon the State the obligation to guarantee to families with children at least the minimum of internationally recognised rights, including care for disabled children. Court also found that state fulfil this positive obligation to establish and maintain system which ensures to disabled children access to education, vocational training, medical care, measures for restoring health is ensured to a child with disability, as well as to ensure as complete as possible socialisation of such child and facilitate the development of his personality, at the same time relieving the stress for his parents (para 13).
Court also concludes that that Article 110 of the Satversme does impose the obligation upon the State to support the family, but does not create subjective right to a person to receive concrete state support in a specific way (see, for example, Judgement of 2 November 2006 by the Constitutional Court in Case No. 2006-07-01, Para 13.1). For given reason contested norm have been considered as compatible with Article 110 of Satversme.
Applicant also holds that contested norms are incompatible with principle of equality (Art. 91) sentence one. Court examine compatibility with second sentence of article 91 of the Satversme, which provides that human rights shall be realised without discrimination of any kind, supplements the first sentence of the same Article (see para 15). Prohibition of discrimination is an auxiliary element included in the principle of equality, which in certain situations specifies this principle and helps to apply it in concrete situations. The aim of the prohibition of discrimination, is to eliminate unequal treatment. The catalogue of prohibited criteria reflects society’s choice of those differences between its members that are inadmissible as the grounds for differential treatment. Court also concluded that differential treatment, which is based on any of the prohibited criteria, creates the so-called direct discrimination. In some cases differential treatment may be based upon a neutral criterion, but in fact this treatment affects a certain group of people, to which this neutral criterion typically applies, causing the so-called indirect discrimination ( see para 15). Indirect discrimination may be established when an apparently neutral rule, criterion or practice places a group of persons, which can be identified by a certain feature, in a more disadvantageous state, unless this rule, criterion or practice cannot be justified by objective factors that do not follow from the prohibited criteria (see, for example, Judgement of 3 October 2006 by the Court of Justice of the European Union in Case C-17/05, Para 30 and Para 31).
Further court consider that the legislator has the obligation to draft such provisions that provide for differential treatment of persons, who are in different circumstances, unless there are reasonable and objective grounds for not doing so. Thus also a neutral legal regulation must comply with this understanding of the principle of equality.
All disabled children have the right to assistant’s services paid for by the State. (para 17.1.) Regulation No 942 defines requirements of assistant services. According to this Regulation any natural person, who has work related or personal experience in communicating with disabled persons, may be an assistant. Regulation does not provide any restrictions. However this is not allowed to those parents of disabled children, who are judges.
Court further considers that all parents, who need to provide assistant’s services to their disabled child themselves, are in similar and comparable circumstances. Aim of the contested norm is to ensure that all public officials act in the interests of society, preventing that the personal or material interests of a public official and public trust. The contested norm equally applies to all officials that are referred to, judges including, without recognising any differences. Thus, the contested norm as such is neutral towards all judges. However, it places a judge in a different situation, if he needs to provide assistant’s services to his disabled child. Finally court concluded inadmissibility of norm
With regards to judge who is not allowed to provide assistant’s services to his own disabled child, the legitimate aim of the restriction upon fundamental rights caused by the contested norm is not reached.
Insolvency administrator case – Nr. 2015-03-01 In beginning of analysis, I would like to admit that the most contested law recently is “Law on prevention of conflict of interest in the activities of public officials”. Main reason why it happened is aim of Government and legislator to improve insolvency administration process, increase responsibilities for administrators. In order to do so, legislator decided that administrators of insolvency proceedings in performing their activities of office shall be equal to public officials. I don’t know who has right to perform insolvency administrator functions in your countries, but in Latvia more than half from administrators staff are sworn advocates, who combine the activities of advocate with performing the duties of an administrator of insolvency proceedings.
The greatest concern what advocates hold in this case is obligation to submit public official income declaration to the State revenue service. As you can imagine this declaration oblige state officials to provide more detailed information not only about income, but also sources and beneficiaries. Applicants argued that contested norm infringed their rights to freely choose their employment and are incompatible with the principle of legal certainty that follows from Article 1 of the Satversme, because advocate has obligation not disclose data related with particular client, including royalties etc.
The CC already in it jurisprudence recognized that the concept “employment”, included in Article 106 of the Satversme, is to be understood as a type of work that requires appropriate qualification and is a source of human existence, as well as a profession, which is linked to the personality of each individual in general. It could be applicable to any occupation in both private and public sector, regulated or not regulated by contract. (para 14.1) It means that right established in the first sentence of Article 106 of the Satversme is applicable to both offices – that of an administrator and a sworn advocate. (para 14.1).
Court further examine term “right to choose” and conclude that this term includes equal rights for labour market to all persons and the State has obligation to abstain from creating other restricting criteria for persons than certain requirements regarding their abilities and qualifications, without which a person would be unable to perform the duties of office. The scope of the right to freely choose one’s employment covers also the right to choose several employments and to be practice them simultaneously.
In analysing Law on prevention of Conflicts, court consider that criteria pursue to which person can be considered as a state official are to applicable also to the persons who not holding any official position in public administration. For instance, if the State or local government has permanently or temporarily delegated to them any of the functions similar to public authority, e.g., executive officers, managing directors of state companies or state- private companies.
The Satversme does not prohibit the legislator to define, which persons are to be recognised as being public officials in the meaning of the Law on Prevention of Conflict of Interest. However, the legislator, in establishing restrictions, prohibitions and obligations that are binding upon public officials, must examine, whether a person’s fundamental rights, including the rights established by Article 106 of the Satversme, are not disproportionally restricted. It means that court concluded that generally persons who are working as an insolvency administrators can be attributed to status of public official.
Court also says that the fact that an administrator is a public official in the meaning of the Law on Prevention of Conflict of Interest, does not lead to a prohibition to combine this office with activities of an advocate.
As I previously mention that main concern for advocates duties imposed by status of public official relates with obligation to submit Declaration to the State Revenue service. In accordance with Section 24 of the Law on Prevention of Conflict of Interest, the declaration must include, inter alia, information about other offices that the public official holds in addition to the office of a public official, information on all kinds of income and transactions conducted, if the sum thereof exceeds 20 minimum monthly wages, indicating the amount and parties of these transactions. Declaration consist by confidential part available only for State Revenue service, Corruption prevention Bureau and prosecutor and investigatory of state security institutions and publically accessible part. The Applicants hold that the obligation to submit a declaration of public official, where information about their clients must be published, restricts their right to perform obligations of an advocate, since they do not protect an advocate’s independence and do not guarantee that in their relationships with clients’ confidentiality is observed.
Court considered that status of Advocate is special. The advocate is an independent and professional lawyer, who provides legal assistance in defending and representing the lawful interests of persons in court proceedings and pre-trial investigations, providing legal consultations, preparing legal documents and performing other legal activities. Principle that state obliges advocates – administrators to disclose above mentioned information may put under risk advocates in situation if they acted as defence counsel for accused persons, especially in situations when criminal delinquencies are initiated and processed by investigators of Corruption prevention Bureau, because Bureau has right to request and receive information and documents from relevant public official that are indicated in the relevant declaration. Bureau also has right, concerning Declarations, to impose administrative or criminal sanctions against public persons.
In court’s opinion such situation in cases where advocates fulfil duties of defence counsel may create some risk of independence and impartiality of defence councel. An advocate’s independence is necessary, inter alia, to ensure in criminal proceedings protection of the defendant’s rights and interests and procedural equality of parties. Therefore the advocate’s independence and confidentiality is an essential precondition for exercising a person’s right to fair trial. (see para 21.2.1.) The principle of an advocate’s confidentiality follows from Section 6 of the Advocacy Law, which prohibits to interfere in the professional activities of advocates.
Finally court concludes that contested norms restricted Advocates rights to retain their employment. Considering whether contested norms have been proportionate, court concludes: legitimate aim – protection of other person’s rights and public welfare, is possible to achieve with use of alternative means that would be restricted to a lesser extent ( para 27.) Court found evidence does not prove that the legislator, in adopting the contested norms, had duly considered the consequences caused by the application thereof to those administrators, who are simultaneously also advocates, and whether the restrictions, prohibitions and obligations that the contested norms impose upon administrators are not contrary to the principles of independence and confidentiality in an advocate’s activities. For given reason court decided contested norms, to the extent they do not ensure to administrators- advocates, guarantees for professional activities to retain the chosen employment, and are incompatible with the principle of proportionality and incompatible with the first sentence of Article 106 of Satversme.
Due to the time limits of my presentation I was not able to present you DNA case, which in my view will serve for coming data protection regulations, which state shall amend in order to harmonize legislation in compliance with EU New Data protection regulation and Police directive.
Currently there are a number of cases in the competence of the Constitutional Court that are linked to examining the legality of restricting state guaranteed support in different fields of business activities. Moreover, all of them have been initiated on the basis of constitutional complaints. Recently in last summer chamber receive more than 50 applications from physical and legal person where Law on Solidarity tax have been contested and initiate constitutional proceedings. Those cases are still in process. Thus, on the basis of these judgements, it can be said that the Constitutional Court of Latvia has marked out for itself the way for examining any kind of restrictions of the fundamental rights, irrespective of assumption whether legislator has broad margins of appreciations or limited one’s.
Concluding my presentation coming back to the title of my presentation we could say that
Constitutional complaint proves that it is essential instrument, which every person in Latvia can use for purpose to defend their fundamental rights and freedoms. People addressed their complaints not only for purpose to contest incompatibility of legislative norms to Constitution, but also municipal mandatory regulations and as you can understand from presentations also binding enactments issued by independent autonomous institutions.