SELECTED CASE-LAW OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LATVIA: 1996–2017 by Latvijas Republikas Satversmes tiesa

The Constitutional Court of the Republic of Latvia

SELECTED CASE-LAW OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LATVIA: 1996â&#x20AC;&#x201C;2017

2018

Selected Case-law of the Constitutional Court of the Republic of Latvia: 1996–2017. – Riga: The Constitutional Court of the Republic of Latvia, 2018, 736 pages.

ISBN 978-9934-8756-0-1

Introduction This compilation contains 23 judgments that the Constitutional Court of the Republic of Latvia has adopted within the first twenty years of its existence. The judgments have been selected due to their importance for the Latvian society and/or because they have pivoted on interesting legal questions. The compilation is introduced by a foreword by the President of the Constitutional Court Ineta Ziemele. The foreword addresses the role of the Constitutional Court in the Latvian society and four stages of the history of the Constitutional Court. The foreword is followed by a recapitulation of the most significant developments in the history of the Constitutional Court. Bulk of the compilation is occupied by the selected judgments. The judgments are presented in a chronological order. In order to give an introduction to the judgments, each of them has been given a title and added a brief description. The separate opinions of judges have also been included. For reasons of brevity some of the judgments omit certain parts reflecting the opinions of persons who have submitted to the Court their considerations about the cases.

CONTENTS

Foreword

The Most Significant Developments in the History of the Constitutional Court

Judgment in the case no. 2000-03-01

30 August 2000 Restrictions on election rights Separate opinion in the case no. 2000-03-01

Judgment in the case no. 2001-04-0103

21 December 2001 On reproducing personal names Judgment in the case no. 2002-06-01

20 May 2003 Age restrictions Judgment in the case no. 2004-15-0106

112

16 October 2006 Autonomous institutions of public administration

299

Judgment in the case no. 2007-11-03

316

17 January 2008 Spatial planning Separate opinion in the case no. 2007-11-03

352

Judgment in the case no. 2008-35-01

375

Separate opinion in the case no. 2008-35-01

416

Judgment in the case no. 2008-37-03

421

29 December 2008 Access to medicines

139

477

21 December 2009 Old age pension 514

13 May 2010 Dual citizenship Judgment in the case no. 2010-50-03

173

438

18 January 2010 Judges’ remuneration

Judgment in the case no. 2009-94-01

23 November 2006 Freedom of assembly Judgment in the case no. 2006-05-01

Separate opinion in the case no. 2007-10-0102

Judgment in the case no. 2009-43-01

8 March 2006 Ceiling of rental payments Judgment in the case no. 2006-03-0106

29 November 2007 Border Treaty

Judgment in the case no. 2009-11-01

7 March 2005 Non-citizens of Latvia Judgment in the case no. 2005-16-01

189

7 April 2009 Lisbon Treaty

4 February 2003 Decisions by the Plenary Session of the Supreme Court Judgment in the case no. 2002-21-01

Judgment in the case no. 2007-10-0102

543

18 March 2011 Expression of religious belief Judgment in the case no. 2013-05-01 12 February 2014 National referenda

552

Judgment in the case no. 2014-09-01

569

28 November 2014 Arbitration courts Judgment in the case no. 2014-11-0103

592

25 March 2015 Natural resources tax Judgment in the case no. 2015-01-01

611

2 July 2015 National flag Separate opinion in the case no. 2015-01-01

628

Judgment in the case no. 2015-11-03

635

2 March 2016 Regulation of the Bank of Latvia Separate opinion in the case no. 2015-11-03

657

Judgment in the case no. 2015-14-0103

661

12 May 2016 DNA database Separate opinions in the case no. 2015-14-0103

688

Judgment in the case no. 2016-06-01

705

10 February 2017 Official secrets

Foreword

1. The role of the Constitutional Court Ever since its establishment the Constitutional Court has proved to be the most important warden of constitutional law. Its decisions have touched upon important issues related to fundamental values of the Latvian legal system reflecting the development of constitutional law in Latvia. By implementing the supremacy of general principles of law and the Constitution (the Satversme), the Constitutional Court within the limits of its competence solves legal as well as legal policy issues, hence fostering the strengthening of democracy and the rule of law and also educating the society. Thus the Constitutional Court is an active participant of the democratic legal discourse that is of an importance to the Latvian society. Among all the constitutional organs, the Constitutional Court enjoys the highest level of trust.1 People rely on the Constitutional Court and accept its decisions. Even though the Constitutional Court has been on some occasions subject to criticism in mass media and by the public, it has maintained its authority due to its well-reasoned decisions. This authority is a prerequisite for an effective execution of the decisions of the Constitutional Court.2 Taking into account the relatively small size of the population of Latvia and hence also the small number of legal scholars, the case-law of the Constitutional Court as well as the message which the Court transmits as part of its dialogue with the other branches of state power shapes the doctrine of constitutional law and the legal culture in Latvia. Therefore the establishment of the Constitutional Court is to be considered as the most important development in constitutional law after Latvia regained its independence. The establishment of the Constitutional Court marked the beginning of development of a new legal thinking and culture.3 The Constitutional Court shapes the democratic constitutional culture of the state, which is then reflected in the quality of legal acts and a better application of legal norms and general principles of law, the quality of the institutions exercising the state power and the protection of human rights.

See, for example, Cilvēki visvairāk uzticas Satversmes tiesai, vismazāk – Saeimai [People trust the Constitutional Court the most and the Saeima the least]. Available: http://nra.lv/latvija/17436cilveki-visvairak-uzticas-satversmes-tiesai-vismazak-saeimai.htm See: Kūtris G. Authority of the Constitutional Court as the Preconditions of Execution of the Decisions. Available: http://www.venice.coe.int/webforms/documents/default.aspx?pdffile= CDL-JU(2008)028-e Balodis R., Kārkliņa A., Danovskis E. Latvijas konstitucionālo un administratīvo tiesību attīstība pēc neatkarības atjaunošanas [The development of the constitutional and administrative law of Latvia after the restoration of the independence]. Juridiskā Zinātne, Nr. 3, 2012, pp. 41–104.

FOREWORD

1.1. Quality of the legal system The restoration of the independence of Latvia brought about a change of the legal system. It was necessary to transform the legal system belonging to the Socialist legal tradition into a legal system belonging to the legal tradition of the continental Europe,

bringing in the principles and values of the democratic rule of law based Western states.4 The Constitutional Court has stated that its task is to assist the reform of the legal system.5 The Constitutional Court accelerated the transformation of the Latvian legal system from the Soviet system to the legal system based on the rule of law and democracy which protects human rights.6 For instance, such a transformation was promoted through the direct application of Article 1 of the Satversme.7 This article served as a tool for understanding and interpreting the other articles of the Satversme. Furthermore, the general principles of law were derived from the concept of a democratic republic enshrined in Article 1 of the Satversme. Hence Article 1 of the Satversme was applied with a view to achieving a result compatible with the principles of democracy and the rule of law.8 1.2. A European interpretation of the Satversme At the end of the nineties of the last century Latvia decided upon joining the European Union as its strategic goal. This aim further helped the transformation and consolidation of the legal system. Latvia ensured that its legislative acts became gradually more compatible with the law of the European Union. Even before Latvia became a member the European Union, the Constitutional Court was interpreting the fundamental rights enshrined in the Satversme in accordance with the common European legal values. It relied upon documents of the European Union, upon the requirements binding upon Latvia as a future member state of the European Union as well as upon the case-law of the Court of Justice of the European Union.9 Thus the Constitutional Court promoted a successful harmonisation of the Latvian legal system with the legal system of the European Union. Within the limits of its competence the Constitutional Court “supervises” the process of European integration. The Court has indicated that the provisions of the law of the European Union are compatible with the Constitution as long as there is no conflict with the principles of democracy and the rule of law.10

7 8

Levits E. Latvijas tiesību sistēmas attīstības iezīmes uz XXI gadsimta sliekšņa [The directions of the development of the Latvian legal system on the threshold of the 21st century]. Grām.: Lēbers A. (zin. red.) Latvijas tiesību vēsture (1914–2000) [History of Latvian law (1914-2000)]. Rīga: LU žurnāla “Latvijas Vēsture” fonds, 2000, pp. 485–488. The judgment of the Constitutional Court of 7 April 2009 in the case no. 2008-35-01, para. 11.2. The judgment of the Constitutional Court of 29 April 2016 in the case no. 2015-19-01, para. 10.6, and the judgment of 9 January 2014 in the case no. 2013-08-01, para. 18.2. This article provides that “Latvia is an independent democratic republic.” Levits E. Tiesību normu interpretācija un Satversmes 1. panta demokrātijas jēdziens [The interpretation of legal norms and the principle of democracy included in Article 1 of the Satversme]. Cilvēktiesību Žurnāls, 1997, Nr. 4, p. 65. The judgment of the Constitutional Court of 19 June 2010 in the case no. 2010-02-01, para. 9.4.2. The judgment of the Constitutional Court of 5 March 2003 in the case no. 2002-18-01, para. 6.

2. The stages of the history of the Constitutional Court

The history of the Constitutional Court may be divided into four stages: 1) 1996 to 2001; 2) 2001 to 2009; 3) 2009 to 2014; and 4) 2014 until today.11 Each of these stages is characterised by certain significant elements. 2.1. The first stage in the history of the Constitutional Court (1996–2001) The first stage of the history of the Constitutional Court covers the period from 1996 when the Constitutional Court was established until 2001 when significant amendments were made to the Constitutional Court Law and, inter alia, the possibility to submit an individual constitutional complaint was introduced.12 This was the time when the Constitutional Court was formed as an independent institution and when the first judges of the Constitutional Court entered into office. The selection and confirmation of the judges of the Constitutional Court was a complicated and lengthy process. The Saeima [the Parliament] took almost four years to confirm all seven judges. The difficulties in selecting appropriate candidates for the position of a judge of the Constitutional Court are illustrated already by the very first round of voting in the Saeima. The required number of votes was obtained only by two candidates nominated by the Cabinet of Ministers and one of the six candidates nominated by the members of the Saeima.13 After several rounds of voting, the Saeima confirmed six judges of the Constitutional Court: Aivars Endziņš, Romāns Apsītis, Ilma Čepāne, Andrejs Lepse, Ilze Skultāne and Anita Ušacka. The day when four of these confirmed judges who had previously not been judges of courts of general jurisdiction gave the oath of a judge – 9 December 1996 – is considered to be the birthday of the Constitutional Court.14 The Constitutional Court examined its first case15 on 28 April 1997. The case had been initiated pursuant to an application of 35 members of the Saeima. The examination of this case marked the beginning of a new type of legal proceedings in Latvia – the proceedings before the Constitutional Court. During the formative period of the Constitutional Court neither individuals nor courts were authorised to submit petitions to the Constitutional Court. The Constitutional Court Law was amended on 11 September 1997, slightly enlarging the list of persons entitled to petition the Constitutional Court. After these amendments petitions in the Constitutional Court could be submitted by the President of the State, the Saeima, at least 25 members of the Saeima, the Cabinet of Ministers, the plenary session of the Supreme Court, the Prosecutor General, the council of the State Audit

13 14

See Pededze Dz. Satversmes tiesai – 15 [15 years of the Constitutional Court]. Jurista Vārds, 20.12.2011., Nr. 51; Laviņš A. Introductory Speech at the Opening of the Conference. In: Judicial Activism of a Constitutional Court in a Democratic State. Proceedings of the 2016 Conference of the Constitutional Court of the Republic of Latvia. Riga: Constitutional Court of the Republic of Latvia, 2016, pp. 262–266. Pededze Dz. Satversmes tiesa, pirmie pieci gadi, un darbs [The Constitutional Court, the first five years and work]. Jurista Vārds, 11.12.2001., Nr. 39, p. 2. Ibid., p. 1. Satversmes tiesneši – demokrātijai, tiesiskumam, valstij [Judges of the Constitutional Court – for democracy, rule of law and the state]. Latvijas Vēstnesis, 10.12.1996., Nr. 213/214, p. 1. The judgment of the Constitutional Court of 7 May 1997 in the case no. 04-01(97).

FOREWORD

Office, the State Human Rights Bureau, municipal councils and a minister authorised by the Cabinet of Ministers.16 During this period the Constitutional Court adopted a number of judgments that demonstrated the ability of the Constitutional Court to both resolve constitutionally relevant disputes and decide politically sensitive cases. For instance, already in its first judgment in the case no. 04-01(97)17 concerning the purchase price of electrical energy the Constitutional Court invoked general principles of law.18 In the case no. 2000-03-0119 concerning restrictions of election rights the Constitutional Court formulated a position concerning the interpretation of the Satversme in conjunction with international human rights norms and the case-law of the European Court of Human Rights. The first judgments of the Constitutional Court and thus the Constitutional Court itself drew criticism of politicians. The independence of the Constitutional Court was at stake when attempts emerged to put pressure on the acting President of the Constitutional Court. At this decisive moment the general public and the media very actively supported the Constitutional Court.20 The Constitutional Court did not give in to the pressure then or afterwards and proved itself to be an independent institution of judicial power by adopting impartial and fair judgments. Ever since the beginning of its existence the Constitutional Court has actively collaborated with constitutional courts and supreme courts of various European countries and also with the European Commission for Democracy through Law (the Venice Commission). However, the most important event at this stage was the acceptance of the Constitutional Court as a full member of the European Conference of Constitutional Courts.21 At the same time during this time a thorough consideration was given to the expansion of the competence of the Constitutional Court and the introduction of concrete control of norms. Amendments to the Constitutional Court Law were drafted in collaboration with experts of the Venice Commission and these led to significant changes in the work of the Constitutional Court.

16 17 18

19 20

Law of 11 September 1997 “Amendments to the Constitutional Court Law”. The judgment of the Constitutional Court of 7 May 1997 in the case no. 04-01(97). For more information see Amoliņa D. Satversmes tiesas spriedums [Judgment of the Constitutional Court]. Jurista Vārds, 02.07.2016. Available: http://www.juristavards.lv/ eseja/268716-satversmes-tiesas-spriedums/ The judgment of the Constitutional Court of 30 August 2000 in the case no. 2000-03-01. For more information see Kārkliņa I., Bluķe D. Noliedz Satversmes tiesas ietekmēšanu [Pressuring the Constitutional Court is denied]. Neatkarīgā Rīta Avīze, 11.08.1999., Nr. 185, p. 3; Ozoliņš A. 85. panta pārkāpēji [The violators of Article 85]. Diena, 06.08.1999., Nr. 181, p. 2.; Avotiņš V. Satversmei vajag savu miesassargu [The Satversme needs its own bodyguard]. Neatkarīgā Rīta Avīze, 09.08.1999., Nr. 183, p. 2; Плесниеце Л.. Тенденции к установлению тоталитарного режима [Tendencies towards imposing a totalitarian rule]. Вести Сегодня, 11.08.1999, № 15, p. 3. See Belousova R. Mūsu Satversmes tiesa – Eiropas konstitucionālo tiesu apritē. Intervija ar Satversmes tiesas priekšsēdētāja pienākumu izpildītāju A. Endziņu [Our Constitutional Court in the European circulation. An interview with the acting President of the Constitutional Court A. Endziņš]. Latvijas Vēstnesis, 27.05.1999., Nr. 173, p. 1.

2.2. The second stage in the history of the Constitutional Court (2001–2009) The second stage if the history of the Constitutional Court covers the period from 2001 when substantial amendments were made to the Constitutional Court Law until 2009. The above-mentioned amendments specified the competence of the Constitutional Court, providing that the Constitutional Court examines cases concerning: 1) the conformity of laws with the Satversme; 2) the conformity of international agreements signed or entered into by Latvia (also until the confirmation of the relevant agreements in the Saeima) with the Satversme; 3) the conformity of other laws and regulations or parts thereof with the norms (acts) of a higher legal force; 4) the conformity of other acts of the Saeima, the Cabinet of Ministers, the President of the State, the Speaker of the Saeima and the Prime Minster, except for administrative acts, with law; 5) the conformity with law of such an order by which a minister authorised by the Cabinet of Ministers has suspended a decision taken by a municipal council; 6) the conformity of Latvian national legal norms with those international agreements entered into by Latvia that are not in conflict with the Satversme.22 Also the list of persons entitled to petition the Constitutional Court was significantly expanded, by providing the right of an individual constitutional complaint as well as the applications to the Constitutional Court by courts. The rules of procedure of the Constitutional Court were also subjected to changes. The idea to adopt a separate Law on Procedure of the Constitutional Court was rejected and the rules of the procedure were included in the Constitutional Court Law and the Rules of the Constitutional Court. The procedure of the Constitutional Court was amended by introducing the possibility to examine cases in written proceedings. The Constitutional Court adopted new Rules of the Constitutional Court. At the beginning of 2001 a new organisational unit of the Constitutional Court started functioning – a panel of the Constitutional Court, which was competent to examine the admissibility of applications. In the summer of 2001 the first case was initiated on the basis of an individual constitutional complaint.23 The Constitutional Court started to examine cases in written proceedings as well. During the second stage a vast majority of the cases were initiated pursuant to individual constitutional complaints. Courts also started to submit applications. Along with the increase in the number of cases, the Constitutional Court gradually developed the doctrine concerning the contents of several norms of the Satversme, thus giving, in particular, a significant contribution to the application of Chapter 8 of the Satversme – “Fundamental Human Rights”. When examining the constitutionality of restrictions of fundamental rights, the Constitutional Court introduced a methodology developed by the European Court of Human Rights. Attention was also given to significant procedural issues of proceedings before the Constitutional Court. Most of the cases were examined in written proceedings. During this period the Constitutional Court initiated 21 to 48 cases per year and adopted 15 judgments per year on average. Although the case-law of the Constitutional Court is dominated by judgments that address fundamental rights, the Court also deals with cases raising other

22 23

Law of 30 November 2000 “Amendments to the Constitutional Court Law”. The judgment of the Constitutional Court of 21 December 2001 in the case no. 2001-04-0103.

FOREWORD

issues of constitutionality. For instance, in the case no. 2001-04-010324 concerning the transcription of personal names the Constitutional Court pointed out the interconnection between the Latvian language and the existence and sustainability of the Latvian nation. It was established that a decrease in the use of the Latvian language as an official language of the state is to be considered also as a threat to the democratic system of the state. The second stage is also characterised by cases that marked the transformation of the Socialist legal system and the elimination of the consequences of the Soviet occupation of Latvia. Cases of this category are, for instance, the case no. 2002-060125 concerning the decisions of the plenary session of the Supreme Court, the case no. 2004-15-010626 regarding the “non-citizens” of Latvia and the case no. 2005-16-0127 which dealt with the question of the “ceiling” of rental payments. In the case no. 2002-06-01 the Court found that a judge who is examining a case may not be subjected to any kind of pressure. Therefore the obligation not to interfere with the adoption of judgments pertains not only to the legislator and the executive but also to court itself and the officials of the judiciary branch. In the case no. 2004-15-0106 the Constitutional Court found that the state did not have an obligation to grant citizenship to those persons and their successors who had never been Latvian citizens and who had arrived in Latvia during the Soviet occupation. After the adoption of the law “On the Status of those Former USSR Citizens who do not have Citizenship of Latvia or that of any Other State” a new category of persons, hitherto unknown in international law, was created – the non-citizens of Latvia. They can be regarded as neither citizens nor foreigners, nor stateless persons but as persons with a “special legal status”. In the case no. 2005-16-01 the Court found that the legislator has an obligation to find a just equilibrium between the interests of the owners of denationalised buildings with the interests of those tenants who have concluded rental agreements during the period of the Soviet occupation. Many significant findings concerning the interpretation and application of fundamental rights were developed during the second stage of the history of the Constitutional Court. In the case no. 2002-21-0128 concerning age restrictions of university academic personnel the Court found that in a democratic state based on the rule of law it is absolutely impermissible to impose restrictions on fundamental rights based on a general assumption that with age person’s mental abilities automatically deteriorate. In the case no. 2006-03-010629 on the freedom of assembly it was found that one of the fundamental aims of the freedom of assembly was to allow persons to publicly and collectively express their opinion to the general public, by drawing public attention to specific problems. This is one of the most important freedoms of a person and restrictions to the exercise of the freedom of assembly are to be imposed very carefully. This means

24 25 26 27 28 29

The judgment of the Constitutional Court of 21 December 2001 in the case no. 2001-04-0103.. The judgment of the Constitutional Court of 4 February 2003 in the case no. 2002-06-01. The judgment of the Constitutional Court of 7 March 2005 in the case no. 2004-15-0106. The judgment of the Constitutional Court of 8 March 2006 in the case no. 2005-16-01. The judgment of the Constitutional Court of 20 May 2003 in the case no. 2002-21-01. The judgment of the Constitutional Court of 23 November 2006 in the case no. 2006-03-0106.

that the state institutions ought to avoid, insofar as is possible, unnecessary restrictions of the freedom of assembly. In the case no. 2006-05-0130 on autonomous institutions of public administration the Court discerned an important principle concerning the democratic legitimation of such institutions. The Satversme permits the creation of institutions of public administration that exercise certain functions of the executive power without them being directly subordinated to the Cabinet of Ministers. However, in such a case the legislator has to set up another, no less effective, manner of democratic legitimation of such institutions. In the case no. 2007-10-010231 concerning the border treaty between Latvia and Russia the Constitutional Court disclosed in detail the principle of the continuity of the Latvian statehood which is the basis for the Declaration on the Restoration of the Independence of the Republic of Latvia and underscored its important place in the Latvian constitutional law with reference to Article 2 of the Satversme. The Court referred in detail to the notion of state continuity in situations where a state has been deprived of its independence in violation of international law. As for the Baltic States, the Court noted that many states did not recognize their annexation by the USSR. It means that the state de iure continued to exist in face of unlawful oppression and that there consequently exists a rule in international law on restoration of the state’s authority de facto. The Court held that if in such circumstances state’s powers are de facto restored, it does not form a new state but continues its de facto interrupted statehood. This is the essence of the doctrine of state continuity in international law that follows from the prohibition of use of force or threat of use of force. The Court also found that in view of the principle of state continuity it is not necessary for the state to restore its independence in exactly the same territory with the same citizens and the same constitutional order as it was before the illegal termination of the independence. It is necessary to accept that, in the course of time, the body of residents of a state will have changed, and the territory and constitutional order may also change. The doctrine of continuity accepts that such a change may take place. But in such circumstances in restoring the independence of the state the sovereign must act in accordance with the doctrine of continuity and accept the changes not in accordance with the tabula rasa principle but on the basis of the previous constitutional regulation. The Constitutional Court assessed the compatibility of the Lisbon Treaty with the Satversme in the case no. 2008-35-01.32 It found that further integration of Latvia in the European Union does not violate the principle of the sovereignty of the people. Delegation of certain competencies to the European Union is not to be regarded as a limitation of the sovereignty but rather as its strengthening in order to achieve the aims established by the EU Treaties that are compatible with the values and interests enshrined in the Satversme. However, delegation of competencies must not violate the foundation of an independent, sovereign and democratic republic based on human rights and the rule of law. Likewise, it must not affect the right of citizens to decide upon the issues that are essential in a democratic state.

30 31 32

The judgment of the Constitutional Court of 16 October 2006 in the case no. 2006-05-01. The judgment of the Constitutional Court of 29 November 2007 in the case no. 2007-10-0102. The judgment of the Constitutional Court of 7 April 2009 in the case no. 2008-35-01.

FOREWORD

In the case no. 2007-11-0333 concerning territorial planning it was found that after the ratification of the treaty on the accession of Latvia to the European Union the law of the European Union has become an integral part of the Latvian legal system. Hence the legal norms of the European Union and their interpretation by the Court of Justice of the European Union is to be taken into account when applying the national legislation. This period is also the time when a dialogue between the Constitutional Court and the European Court of Human Rights commenced. This dialogue became important in the work of both courts. 2.3. The third stage in the history of the Constitutional Court (2009–2014) The third stage in the history of the Constitutional Court commenced in the first half of 2009 and continued until the end of 2013. This stage was marked by qualitative and quantitative changes in the work of the Constitutional Court in the context of the economic crisis in Europe. In the so-called “crisis cases” the Constitutional Court assessed the constitutionality of rules that were directed towards addressing the rapid decline of the economic situation and overcoming the economic crisis. In assessing the constitutionality of restrictions of fundamental rights in the first and second stages of its history the Constitutional Court relied, inter alia, on the experience of other European states that had mainly developed under the conditions of a gradual economic improvement. However, there was no experience of other states available concerning changes in the field of social rights under the circumstances of a particularly rapid an economic decline experienced in Latvia in 2009.34 Therefore the Constitutional Court was forced to look for new solutions and to come to conclusions that would be applicable exactly with respect to the “crisis cases”. The case that resonated the most in the society was the case no. 2009-43-0135 concerning the decrease of old-age pensions. The Constitutional Court indicated that in circumstances of a significant economic decline the legislator should enjoy certain discretion in order to undertake preventive measures, even if such measures would affect the fundamental rights guaranteed by the Satversme. However, a reasonable balance ought to be achieved between the interests of the society and those of a person, which was not achieved in that case. The legislator was entitled to provide for a decrease of pensions only if a later compensation of the withheld payments were envisaged. Furthermore, the legislator had an obligation to establish groups of pensioners whose pensions may not be reduced or whose pensions ought to be decreased to a lesser extent. When examining cases related to the economic decline the Constitutional Court also reinforced its case-law with respect to the place of the judicial power within the system of separation of powers, as well as the principle of judicial independence.36

33 34

35 36

The judgment of the Constitutional Court of 17 January 2008 in the case no. 2007-11-03. Skudra V. Pārskats par Satversmes tiesas darbu 2009. gadā [Overview of the work of the Constitutional Court in 2009]. Available: http://www.satv.tiesa.gov.lv/articles/parskats-parsatversmes-tiesas-darbu-2009-gada/ The judgment of the Constitutional Court of 21 December 2009 in the case no. 2009-43-01. See the judgment of the Constitutional Court of 18 January 2010 in the case no. 2009-1101; the judgment of the Constitutional Court of 22 June 2010 in the case no. 2009-111-01; the decision of the Constitutional Court of 28 March 2012 to discontinue the proceedings in the case no. 2011-10-01; the judgment of the Constitutional Court of 25 November 2010 in the case no. 2010-06-01.

In the case no. 2009-11-0137 concerning judges’ salaries it is emphasised that the judicial independence is the means to ensure democracy, the rule of law and the right to a fair trial. One of the guarantees of judicial independence is the financial security of the judges. The legislator has an obligation to provide for judges’ remuneration that would correspond to the status, functions and responsibility of judges. Furthermore, the judges’ remuneration may be decreased only in the short-term, while the financial and economic situation of the state is particularly dire. Limited resources of the state were also examined with regard to a request to compensate expenses for purchasing medicines needed to treat a rare diseases. In the case no. 2008-37-0338 the Constitutional Court found that the obligation of the state to ensure the accessibility of medicines derives from the right to health. However, the state does not have an obligation to ensure the access of everyone to the necessary medicines free of charge – even if such a medicines are required to preserve a patient’s life. The state has to ensure that the resources are used efficiently and it has to attain a fair balance in the distribution of the financial resources set aside for health care, by taking into account the need of certain patients to receive expensive health care services and the general need to ensure the access to health care for the largest possible segment of the society. The case no. 2009-34-0139 concerning dual citizenship stands out among the cases examined by the Constitutional Court during the third stage of its history. This case dealt with the determination of the body of Latvian citizens after the restoration of the independence of the Republic of Latvia. The Constitutional Court held that the state has an obligation to comply with the principle of continuity of citizenship that derives from the doctrine of state continuity. The state ought to reinstate, insofar as is possible, the rights of those citizens who possessed them prior to the unlawful occupation of the state and their descendants. On the other hand, the question concerning the permissibility of dual citizenship may be regulated differently with respect to those persons who were forced to leave the state during the period of unlawful occupation. The issue of dual citizenship is primarily a political one and cannot be decided exclusively on the basis of legal considerations. The diversity of the cases examined by the Constitutional Court is illustrated by the case no. 2010-50-0340 concerning the expression of religious beliefs. The case pertained to the right of prisoners to keep religious items in cells, such as, for instance, prayer beads. The Court indicated that prisoners have a right to express their religious beliefs insofar as this is compatible with the prison regime. Hence the keeping of religious items in a place of deprivation of liberty may be restricted but the restrictions may not be arbitrary. The third stage in the history of the Constitutional Court brought a significant increase in the number of petitions received by the Court and the cases examined by it. The principal reason were the austerity measures adopted by the legislator to address the economic crisis which restricted the fundamental rights of everyone. The Constitutional Court had to absorb negative emotions of various groups of the society

37 38 39 40

The judgment of the Constitutional Court of 18 January 2010 in the case no. 2009-11-01. The judgment of the Constitutional Court of 29 December 2008 in the case no. 2008-37-03. The judgment of the Constitutional Court of 13 May 2010 in the case no. 2009-94-01. The judgment of the Constitutional Court of 18 March 2011 in the case no. 2010-50-03.

FOREWORD

during that period.41 Regardless of the tense environment, the Court managed to ensure a balance between the need to regulate the economic crisis and the protection of fundamental rights. 2.4. The fourth stage in the history of the Constitutional Court (since 2014) The beginning of 2014 can be considered as the fourth stage in the history of the Court. This stage is characterised by the more complicated nature of the issues examined by the Court and the future challenges in the new global context. Like the rest of the constitutional courts in Europe, the Constitutional Court continues to develop its case-law under the influence of globalisation and European integration. The work of the Constitutional Court has been substantially affected by the recent changes to the Satversme. On 19 June 2014 the preamble of the Satversme was amended, by providing a more extensive list of historical events, constitutional principles and values.42 This amendment of the Satversme is significant because it consolidates the constitutional theory and practice, including the theory and practice regarding the questions of the constitutional identity of Latvia. The constitutional identity is the core of the Satversme. The constitutional identity is what historically makes Latvia different from the other states. If the core of the Satversme is changed or otherwise affected, the identity of the state changes and it will be a different state both in terms of constitutional law and possibly of international law.43 The Constitutional Court first referred to the preamble of the Satversme in the case no. 2015-01-0144 concerning the national flag. It pointed out that the national flag of Latvia as a symbol of the state is an indispensable element of the constitutional and international identity of the state of Latvia. The national flag of Latvia symbolises the historical consolidation process of the Latvian nation as well as the struggle for an independent and democratic state of Latvia. Hence an obligation to display the national flag on residential buildings on state holidays and commemorative days strengthens the national awareness. One of the elements of the constitutional identity of Latvia is the principle of democracy. This principle is explained in the case no. 2013-05-01 concerning national referenda.45 The Constitutional Court emphasised that the Satversme recognises only a democratic system of the state. Therefore the state has to have a legal order that gives an opportunity to the people as the holder of the sovereign power to express its will.

44 45

See also Laviņš A. Introductory Speech in the Opening of the Conference. In: Judicial Activism of a Constitutional Court in a Democratic State. Proceedings of the 2016 Conference of the Constitutional Court of the Republic of Latvia. Riga: Constitutional Court of the Republic of Latvia, 2016, pp. 263–264. Law of 19 June 2014 “Amendments to the Satversme of the Republic of Latvia”. See also Balodis R. Satversmes ievada komentārs [Commentary to the preamble of the Satversme]. Grām.: Balodis R. (zin red.) Latvijas Republikas Satversmes komentāri. Ievads. I nodaļa. Vispārējie noteikumi. [Commentaries to the Satversme of the Republic of Latvia. Preamble. Chapter I. General rules] Rīga: Latvijas Vēstnesis, 2014, pp. 122–125. Further see Par Latvijas valsts konstitucionālajiem pamatiem un neaizskaramo Satversmes kodolu. Konstitucionālo tiesību komisijas viedoklis un materiāli [On the constitutional foundation of the state of Latvia and the unamendable core of the Satversme. The opinion and the materuals of the Constitutional Law Commission]. Rīga: Latvijas Vēstnesis, 2012, pp. 78–79 and 111. The judgment of the Constitutional Court of 2 July 2015 in the case no. 2015-01-01. The judgment of the Constitutional Court of 12 February 2014 in the case no. 2013-05-01.

Therefore the task of the legislator when regulating the procedure for implementing the popular right to legislative initiative is to ensure that this right may be exercised effectively. The case no. 2015-11-0346 concerning the right of autonomous institutions of public administration to issue regulations with generally binding legal force also revolved around the principle of democracy. In order to make the legislative process more effective the legislator may entrust issuing such regulations also to an institution of the executive power, inter alia, an autonomous institution of public administration. However, such an institution should have received a proper democratic legitimation. Due to the rapid development of modern technologies the Constitutional Court is more frequently called upon to deal with cases concerning the protection of personal data. An example is the case no. 2015-14-010347 in which the Court assessed the inclusion of the DNA profiles of criminally suspected persons in the national DNA database. Such a database is useful for investigating and preventing criminal offences, but the state may not disproportionally restrict the right to the protection of personal data. For instance, if a suspect is later acquitted, the DNA profile ought to be erased from the database. In the fourth stage the issues concerning the right to a fair trial remain relevant. The case no. 2016-06-0148 addressed the question whether there is a right to appeal against a decision of the Prosecutor General pursuant to which a person’s clearance for work with official secrets has been annulled. The Constitutional Court concluded that in such cases the right of access to a court may be restricted if a person has other procedural rights that are compatible with the right to a fair trial. One should also mention the case no. 2014-11-010349 concerning the natural resource tax. In this case the Court accepted that the legislator enjoys large discretion in the field of tax law. However, the obligation to pay a tax should not impose a disproportional burden on the taxpayer. Furthermore, provisions of tax law ought to have a reasonable explanation that is supported by objective and rational considerations. Modern challenges can no longer be dealt with only at a local level. Therefore the Constitutional Court has stressed the interaction between the domestic law and the international law. This interaction is illustrated by the case no. 2014-09-0150 concerning arbitral tribunals. On the basis of an analysis of international law and comparative law, the Constitutional Court concluded that the principle of competencecompetence of arbitral tribunals that derived from law did not exclude the possibility that the competence of an arbitral tribunal might be re-assessed by a court of general jurisdiction. Today constitutional courts work in a legal environment that is formed by the national, European and international law. Furthermore, within Europe a common legal space is gradually consolidating. This mutual interaction imposes a particular obligation on constitutional courts, including the Constitutional Court of the Republic of Latvia. In a globalised world, we encounter increasingly complex challenges. Issues related to the environment, security or economy know no boundaries, they cannot be

46 47 48 49 50

The judgment of the Constitutional Court of 2 March 2016 in the case no. 2015-11-03. The judgment of the Constitutional Court of 12 May 2016 in the case no. 2015-14-0103. The judgment of the Constitutional Court of 10 February 2017 in the case no. 2016-06-01. The judgment of the Constitutional Court of 25 March 2015 in the case no. 2014-11-0103. The judgment of the Constitutional Court of 28 November 2014 in the case no. 2014-09-01.

FOREWORD

resolved within the limits of one state. Modern day challenges may only be resolved through an effective and coordinated cooperation. At the same time, legal systems become more interlinked and interdependent, and the understanding of the unity of national and international law is developing. Hence today more than ever there is a need for an effective dialogue between constitutional courts of various states and international courts; such a dialogue must be based on the unity and the diversity, on cooperation and independent decision-making, on the balancing of national and European values as well as on the promotion of integration and strengthening of identities. All forms of dialogue among courts that have emerged over last 15 years are of crucial importance and more effort should go into making the dialogue genuine and all-embracing. European courts should also reflect on those instances which show that at times there is a limit to the principles of openness to international law, direct application, direct effect and priority and primacy and the name of that limit is the sovereignty paradox. The way forward is to re-conceptualize the discourse and to move away from competing legal authority claims towards accepting that all legal orders form a universal legal order. That also requires to accept the proper roles that each court has, be it constitutional or European.51

President of the Constitutional Court

Ineta Ziemele

Ziemele I. Constitutional Courts as Lock-Gates in the World of Tension between the International and the National. Speech at the Humboldt University of Berlin on 1 February 2018. Available: https://www.youtube.com/watch?v=P4EnBdVSjBo

The Most Significant Developments in the History of the Constitutional Court

1996 05.06.1996. Amendments to Article 85 of the Constitution of the Republic of Latvia adopted, providing that the Constitutional Court shall exist in Latvia (entered into force on 26.06.1996). The Constitutional Court Law adopted (entered into force on 28.06.1996.).

09.12.1996. Aivars Endziņš, Romāns Apsītis, Anita Ušacka and Ilma Čepāne give the Judge’s oath and enter into office.

11.12.1996. The Constitutional Court convenes for its first session, at which Aivars Endziņš is elected as the acting President of the Constitutional Court (on 08.06.2000 elected as the President, re-elected on 06.06.2003 and 06.06.2006, headed the Court until 31.01.2007).

Judges Andrejs Lepse and Ilze Skultāne enter into office. The day of establishing of the Constitutional Court.

1997 28.04.1997. The Constitutional Court hears its first case (no. 04-01 (97)).

1998 Amendments to the Constitution of the Republic of Latvia enter into force, supplementing it with Chapter VIII “Fundamental Human Rights”.

2000 08.06.2000. Juris Jelāgins gives the Judge’s oath and enters into office. Romāns Apsītis elected as the Vicepresident of the Constitutional Court (re-elected on 06.06.2003, served as the Vice-president until 06.06.2006).

30.08.2000. Judgment of the Constitutional Court in the case no. 2000-03-01 on restrictions upon voting rights. The Court refers to the principle of self-defending democracy. The first judgment of the Constitutional Court, to which a separate opinion of judges was appended.

The Most Significant Developments in the History of the Constitutional Court

06.11.1998.

2001

2006

01.01.2001.

08.03.2006.

Amendments to the Constitutional Court Law enter into force. The amendments clarify and significantly expand the circle of subjects of constitutional review – the constitutional complaint and an application by a court to the Constitutional Court are instituted. The written procedure is introduced.

Judgment of the Constitutional Court in the case no. 2005-16-01 on the right of the state to impose rent ceilings in denationalised residential buildings.

30.01.2001. New Rules of Procedure of the Constitutional Court are adopted and enter into force.

06.06.2006. Gunārs Kūtris elected as the Vicepresident of the Constitutional Court (served as the Vice-president until 31.01.2007, when he was elected as the President of the Constitutional Court).

16.10.2006.

18.07.2001. The first case on the basis of a constitutional complaint is initiated (case no. 2001-04-0103 on the transcription of persons’ names in personal documents).

21.12.2001. Judgment of the Constitutional Court in the case no. 2001-04-0103 on the spelling of personal names. The Court highlights the constitutional status of the official language.

Judgment of the Constitutional Court in the case no. 2006-05-01 on delegation of state power to an independent authority that supervises the public media.

2007

04.02.2003.

05.01.2007.

Judgment of the Constitutional Court in the case no. 2002-06-01 on the binding character of an interpretation of legal norms adopted by the plenary session of the Supreme Court.

20.05.2003.

Judge Uldis Ķinis enters into office.

Judgment of the Constitutional Court in the case no. 2002-21-01 on the right of the state to choose age as a criterion for granting the rights to hold positions in institutes of higher education.

Gunārs Kūtris elected as the President of the Constitutional Court (re-elected on 27.01.2010. and 23.01.2013, was the head of the Court until 19.02.2014.).

23.05.2007.

06.02.2004. Gunārs Kūtris gives the Judge’s oath and enters into office.

25.03.2004.

Kristīne Krūma gives the Judge’s oath and enters into office.

Judge Aija Branta enters into office.

2005

31.01.2007. Viktors Skudra and Kaspars Balodis give the Judge’s oath and enter into office.

2004

07.03.2005.

23.11.2006. Judgment of the Constitutional Court in the case no. 2006-03-0106 on the limits of the discretion of the state when imposing restrictions on the freedom of assembly.

2003

Judgment of the Constitutional Court in case No. 2004-15-0106 on the right of the state to provide for a status of a “non-citizen” and the right of “noncitizens” to protection by the state.

29.11.2007. Judgment of the Constitutional Court in the case no. 2007-10-0102 on the border treaty between Latvia and Russia. The Court consolidates the doctrine of the state continuity of the Republic of Latvia.

Uldis Ķinis elected as the Vice-president of the Constitutional Court (served as the Vice-president until 07.03.2008, when the Constitutional Court suspended his Judge’s mandate due to his participation in the International Tribunal for the Former Yugoslavia in reviewing the case “Prosecutor v. Ante Gotovina et al” in the capacity of an ad litem Judge).

The Most Significant Developments in the History of the Constitutional Court

2008

2011

17.01.2008.

03.06.2011.

Judgment of the Constitutional Court in the case no. 2007-11-03 on the spatial planning of Riga. The Court notes that, while interpreting the national legal acts, the interpretation provided by, inter alia, the Court of Justice of the European Communities (currently – the Court of Justice of the European Union) should be taken into consideration.

Aija Branta elected as the Vice-president of the Constitutional Court (served as the Vice-president until 28.02.2014, when she was elected as the President of the Constitutional Court).

07.03.2008. Juris Jelāgins elected as the Vicepresident of the Constitutional Court (served as the Vicepresident until 22.06.2010, when his term of office expired).

29.12.2008. Judgment of the Constitutional Court in the case no. 2008-37-03 on the right to health and the scope of the positive obligation of the state to compensate the expenses for obtaining medications to persons suffering from rare diseases.

2009 21.12.2009. Judgment of the Constitutional Court in the case no. 2009-43-01 on decreasing old-age pensions. The Court finds that the fundamental rights, and in particular social rights, are binding upon the legislator also in the circumstances of an economic recession.

28.06.2010.

Viktors Skudra elected as the Vicepresident of the Constitutional Court (served as the Vicepresident until 22.05.2011.).

2014 Judgment of the Constitutional Court in the case no. 2013-05-01 on the national referendum. The Court recognises that it is the obligation of the legislator to ensure that the people’s right to legislate is exercised in accordance with the principle of democracy.

13.05.2010. Judgment of the Constitutional Court in the case no. 2009-94-01 on dual citizenship. The Court finds that the doctrine of state continuity is also applicable in the field of citizenship and that a person does not have subjective right to dual citizenship.

19.02.2014. Gunārs Kusiņš gives the oath of a Judge and enters into office.

28.02.2014. Aija Branta elected as the President of the Constitutional Court (she was the head of the Court until 24.04.2014.).

05.03.2014.

06.05.2014.

18.01.2010.

Vineta Muižniece gives a solemn promise and enters into office of a Judge.

17.08.2011. Sanita Osipova gives the Judge’s oath and enters into office.

Uldis Ķinis elected as the Vicepresident of the Constitutional Court.

2010 Judgment of the Constitutional Court in the case no. 2009-11-01 on judges’ remuneration. The Court recognises the obligation of the constitutional institutions to cooperate in order to ensure the independence of courts and the financial security of judges.

18.03.2011. Judgment of the Constitutional Court in the case no. 2010-50-03 on the right of the person to possess religious items in a place of deprivation of liberty.

12.02.2014.

07.04.2009. Judgment of the Constitutional Court in the case no. 2008-35-01 on the Lisbon Treaty. The Court finds that Latvia has acceded to the European Union with the purpose of strengthening its democracy and that the membership of the European Union does not violate the principle of the sovereignty of the people.

25.04.2014. Judge Aldis Laviņš enters into office.

Aldis Laviņš elected as the President of the Constitutional Court.

28.11.2014. Judgment of the Constitutional Court in the case no. 2014-09-01 on the authority of courts of general jurisdiction to reassess the legality of an arbitration agreement.

The Most Significant Developments in the History of the Constitutional Court

2015

08.01.2015. Ineta Ziemele gives a solemn promise and enters the office of a Judge.

25.03.2015.

02.07.2015.

Judgment of the Constitutional Court in the case no. 2014-11-0103 on the limits of the discretion of the state in introducing a new environmental tax.

Judgment of the Constitutional Court in case No. 2015-01-01 on the national flag. The Court for the first time refers to the introduction of the Constitution. The Court finds that the national flag has the status of a symbol of the State and that the constitutional regulation on it, inter alia, constitutes the constitutional foundations of the State.

2016 02.03.2016. Judgment of the Constitutional Court in the case no. 2015-11-03 on the right of the Bank of Latvia as an autonomous state institution to issue binding external legislative acts.

26.04.2016. Daiga Rezevska gives the Judge’s oath and enters the office.

2017 10.02.2017. Judgment of the Constitutional Court in the case no. 2016-06-01 on the right to access to a court and the right to employment concerning questions that relate to official (state) secrets.

03.04.2017. Judge Jānis Neimanis enters into office

21.04.2017. Artūrs Kučs gives the oath of a Judge and enters into office.

JUDGMENT in the case no. 2000-03-01

12.05.2016. Judgment of the Constitutional Court in the case no. 2015-14-0103 on using a person’s DNA samples. The Court recognises that the DNA are personal data requiring special protection.

2000-03-01

Restrictions on election rights

The right of the state to restrict the right of staff members of organisations and institutions of the USSR to run for parliamentary elections Historical events in restoring the independence of the Republic of Latvia were described. The right to participate in the activities of the state was examined. This right serves as a safeguard for the existence of a democratic order and is aimed at ensuring the legitimacy of the democratic state order. “Democracy that is able to defend itself” is characterised. The impugned norms target persons who by their activities have attempted to undermine the democratic order of the state. Exercise of human rights cannot be directed against democracy as such. The democratic order of the state must be protected against persons who are not ethically qualified to become representatives of a democratic state on the political or administrative level and who by their actions have proven that they had not been loyal to the democratic order of the state, i.e., persons who worked in the apparatus of the direct oppression and direct repressions implemented by the occupation power and persons who following restoration of the independence of the Republic of Latvia attempted to restore the totalitarian nondemocratic regime and resisted the legitimate state power. It was found that the restrictions on the passive election right established in the contested norms could exist only for a certain period of time; therefore the legislator, by regularly examining the respective political situation in the state, as well as the need and the validity of the restrictions, should decide on setting the term for restrictions. The rule of interpreting the Satversme in harmony with international treaties was defined. The Satversme provides that the state recognises and protects fundamental human rights in compliance with the Satversme, the laws and international treaties binding upon Latvia. Therefore the aim of the legislator has not been to oppose norms of human rights included in the Satversme and the international ones. Quite to the contrary – the aim has been to achieve mutual harmony of these norms. Therefore, in those instances where doubts arise as to the content of human rights included in the Satversme, the interpretation of human rights should comply, to the extent possible, with the interpretation that is used in the practice of applying the norms of international human rights. The test for examining the validity of a restriction on human rights was established. It is used to verify whether the restriction has been established by a law adopted in due procedure, whether the restriction can be justified by a legitimate aim and whether the restriction is necessary in a democratic society. Later, the Court has modified this test that was adopted from the case-law of the European Court of Human Rights. A separate opinion of three judges was appended to the judgment. They examine the test of a restriction on fundamental rights, foregrounding some aspects of the test, inter alia, the need to abide by the values of a democratic state governed by the rule of law.

JUDGMENT in the case no. 2000-03-01

JUDGMENT in the name of the Republic of Latvia in the case no. 2000-03-01 Riga, 30 August 2000 The Constitutional Court of the Republic of Latvia in the following composition: the chairman of the hearing of the Court A. Endziņš, judges R. Apsītis, I. Čepāne, J. Jelāgins, A. Lepse, I. Skultāne and A. Ušacka, with the secretary of the hearing of the Court E. Rozenberga, in the presence of a sworn attorney A. Ogurcovs and a member of the Saeima [the Parliament] A. Bartaševičs – the authorized representative of the petitioner, i.e. 23 members of the 7th Saeima […] and the authorised representative of the institution which has adopted the impugned act – the head of the Legal Bureau of the Saeima G. Kusiņš, on the basis of Article 85 of the Satversme [the Constitution] as well Article 16(1) and (9), and Article 17(1) and (7), of the Constitutional Court Law in a public hearing in Riga, on 15 August 2000 reviewed the case “On the compliance of Article 5(5) and (6) of the Saeima Election Law and Article 9(5) and (6) of the Law on Elections of City Councils and Municipality Councils with Articles 89 and 101 of the Satversme, Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 25 of the International Covenant on Civil and Political Rights”. The Constitutional Court

establ ished:

1. On 4 May 1990 the Supreme Council of the Latvian SSR adopted the declaration “On the Renewal of the Independence of the Republic of Latvia”, resolving to declare the declaration of 21 July 1940 of the Saeima of Latvia “On the Republic of Latvia’s Joining the USSR” null and void from the moment of its adoption, renewing the authority of the Satversme of the Republic of Latvia (henceforth - the Satversme), adopted by the Constituent Assembly on 15 February 11922, in the entire territory of Latvia. At the same time it was decided to suspend the functioning of the Satversme, with an exception of the articles thereof which express the constitutional and legal foundation of the state of Latvia and which, according to Article 77 of the Satversme, can be amended only by the way of a referendum. Thus from 4 May 1990 to 6 July 1993 – the day when the functioning of the Satversme was resumed in its entirety – de facto only Articles 1, 2, 3 and 6 of the Satversme were effective. During this period legislative acts of the Latvian SSR could be applied only insofar as they did not contradict Articles 1, 2, 3 and 6 of the Satversme. On 21 August 1991 the Supreme Council of the Republic of Latvia (henceforth – the Supreme Council) adopted the constitutional law “On the Statehood of the Republic of Latvia”, declaring Latvia to be an independent, democratic republic in which the sovereign power of the State belongs to the people of Latvia and whose statehood is determined by the Satversme of the Republic of Latvia of 15 February 1922. On 23 August 1991 the Supreme Council adopted the resolution “On Anticonstitutional Activity of the Latvian Communist Party”, stating that the activity of the Latvian Communist party was anti-constitutional. It established the fact that “the Latvian Communist Party is responsible for genocide against the Latvian nation, which

has been realised under its leadership.” Besides, “in co-operating with different military groups, it acts more and more like an alternative institution of power and for more than half a year its activities have been dominated by terror, instigations and sabotage, which has caused loss of many lives and destruction of significant material values.” The resolution also stressed the fact that “the Central Committee of the Latvian Communist Party has become the centre which consolidates, leads and co-ordinates anti-democratic forces. Its aim is to destabilise the situation, to derange the process of independence and democracy, to overthrow the lawful power of Latvia and to renew the totalitarian regime.” On 24 August 1991 the Supreme Council adopted the decision “On Suspension of Activities of Some Public and Socio-Political Organisations”, suspending the activities of the Communist Party of Latvia, the Working People’s International Front of the Latvian SSR, the United Board of Working Bodies, Organisation of War and Labour Veterans and the Young Communist League of Latvia. It assigned the Minister or Justice of the Republic of Latvia with the task of checking the illegal activities of the above organisations and later submitting the proposal on the permissibility of the continuation of their activities to the Supreme Council. On 10 September 1991 the Supreme Council adopted the decision “On Discontinuation of Activities of Some Public and Socio-Political Organisations”. The decision stressed the fact that already in May of 1990 “the Communist Party of Latvia, the Working People’s International Front of the Latvian SSR, the United Board of Working Bodies and the Republican Council of the Organisation of War and Labour Veterans formed the Committee for Defence of the Rights of the Citizens and the Constitution of the USSR and the Latvian SSR. It was renamed the All-Latvia Salvation Committee on 25 November 1990. Contrary to Article 2 of the Constitution of the Latvian SSR, which establishes that the sovereign power of the republic shall belong to the people and no one except the soviets has the right to exercise the authority of the state, this Committee undertook the functions of the state power on 25 October 1990 and declared that it would send a delegation to sign the agreement of the [Soviet] Union. On 15 January 1991 the All-Latvia Salvation Committee proclaimed that all the state power belonged to it and announced the dismissal of the Supreme Council and the government. In August of 1991 the Central Committee of the Communist Party of Latvia, the Central Committee of the Young Communist League, the Working People’s International Front of the Latvian SSR, the United Board of the Working Bodies and the Republican Council of War and Labour Veterans supported the coup d’état. Besides, the Bureau of the Central Committee of the Communist Party together with the Riga City Communist Party Bureau adopted a decision not only supporting the USSR Emergency Situation Committee, but also forming an operative group to help the Committee.” The Supreme Council acted accordingly and decided “to discontinue the unconstitutional activities of the Latvian Communist Party, the Latvian (Lenin) Young Communist League, the Working People’s International Front of the Latvian SSR, the United Board of the Working Bodies, the Organisation of War and Labour Veterans as well as their coalition – the All-Latvia Salvation Committee and to confiscate the property of the above organisations without compensation”. It was also decided to “explain to the former members of the Latvian Communist Party, Latvian Young Communist League, the Working People’s International Front of the Latvian SSR, the United Board of the Working Bodies and the Organisation of War and Labour Veterans that they had the right to unite in parties and other public organisations, the aims and activities of which were not directed to violent actions and changing of the existing power and are otherwise not contradicting the Constitution and the laws of the Republic of Latvia”.

JUDGMENT in the case no. 2000-03-01

On 24 August 1991 the Supreme Council passed the decision ”On Discontinuation of the Activities of the USSR Security Service in the Territory of the Republic of Latvia”, declaring the activities of the USSR Security Service and its structural institutions, including the Latvian SSR State Security Committee, to be criminal and directed against the interests of the Latvian people. The Latvian SSR State Security Committee was liquidated. On 30 June 1992 the Supreme Soviet amended the law of 28 May 1990 “On the Status of a Member of the Supreme Soviet of the Republic of Latvia”. The amendments envisaged that the Supreme Council may decide on the annulment of the mandate of its member if the member has operated against the Satversme and other laws, the Supreme Council decisions, which ensure the existence of Latvia as an independent democratic state, if the fact of such operation has been established by a decision of a commission of the Supreme Council and has been confirmed at a plenary meeting of the Supreme Council. Paragraph 3 of the Supreme Council decision of 30 June 1992 “On the Time and Procedure by Which the Republic of Latvia Law “On Amendments to the Republic of Latvia Law “On the Status of a Member of the Supreme Soviet of the Republic of Latvia” Takes Effect”” established that the above amendments applied “to the activities carried out after the renewal of the Satversme of the Republic of Latvia on 4 May 1990, when other laws or Supreme Council decisions took effect.” On the basis of the conclusions of the Parliamentary Investigation Committee which was established on 22 August 1992 and taking into consideration the Law On the Status of a Member of the Supreme Soviet of the Republic of Latvia”, on 9 July 1992 the Supreme Soviet adopted a decision to annul the mandate of 15 of its members due to their activities against Latvia as an independent, democratic state. On 19 May 1994 the Saeima of the Republic of Latvia (henceforth – the Saeima) passed the law “On Maintenance and Use of Documents of the Former State Security Committee and on Establishing the Fact of Persons’ Collaboration with the State Security Committee”, which took effect on 3 June 1994. The law for a term of limitation for establishing the fact of collaboration – 10 years from the date of the law taking effect. 2. On 4 May 1990 the Supreme Council adopted the declaration ”On Accession of the Republic of Latvia to International Instruments Relating to Human Rights”, by the means of which [the Republic of Latvia] joined a range of international instruments, including the International Covenant on Civil and Political Rights (henceforth – the Covenant). In Latvia the Covenant took effect on 14 July 1992. Article 25 of the Covenant provides that: “Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country.” Article 2(1) of the Covenant in its turn envisages that: “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

On 10 December 1991 the Supreme Council adopted the Constitutional Law “The Rights and Obligations of a Citizen and a Person”. Article 44 of the Law establishes that necessary limitations of people’s rights and freedoms may be determined by law in order to protect the rights of others, honour, health and morals, as well as to guarantee state security, public order and peace. On 4 June 1997 the Saeima adopted the law “On the 4 November 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols No. 1, 2, 4, 7 and 11”, by which [the Republic of Latvia] acceded to the Convention and several of its Protocols. Besides, Article 4 of the law states that Latvia considers binding the jurisdiction of the European Court of Human Rights on all issues relating to the interpretation and application of the above Convention and its Protocols. In Latvia Convention for the Protection of Human Rights and Fundamental Freedoms (henceforth – the Convention) took effect on 27 June 1997. Article 14 of Convention establishes: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Article 3 of the Protocol no. 1 to the Convention provides: “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” On 15 October 1998 the Saeima supplemented the Satversme with Chapter VIII “Fundamental Human Rights”, which entered into force on 8 November 1998. Article 89, which is included in the above chapter, declares that “the State recognises and protects the fundamental rights of a person in accordance with this Constitution, the laws and international agreements binding on Latvia”. Article 101 envisages that “every fullfledged citizen of Latvia has the right, in the manner prescribed by law, to participate in the activity of the state and local governments as well as to perform state service.” 3. The 5th Saeima was elected in compliance with the law of 20 October 1992 Law “On Elections for the Fifth Saeima”. Its Article 21(1) provided that “any citizen of Latvia can be nominated as a candidate, even one not residing within the electoral region in which he does not reside, if he has signed a statement, according to the procedure stipulated by the Central Election Commission, which states that he has not been or is not presently a regular staff or contractual employee of the USSR or the Latvian SSR State Security Committee, of the USSR Defence Ministry, of state security services or army intelligence or counter-intelligence of Russia (USSR’s legal successor) and other states, or an agent or resident of these establishments or a holder of a secret apartment. This statement must be attached to the candidate list.” Article 21(2) provided that “citizens of the Republic of Latvia to whom conditions of the statement mentioned in the first part of this article apply, as well as those whose rights to work in state authority and administration institutions are restricted by other legislative acts may not be nominated as candidates.” On 25 May 1995 the Saeima adopted the Saeima Election Law, which came into force on 6 June 1995. Article 5(5) and (6) of the above Law established that: “Persons are not to be included in the candidate lists and are not eligible to be elected to the Saeima if they: … 5) belong or have belonged to the regular staff of the USSR, Latvian SSR or foreign state security, intelligence or counterintelligence services;

JUDGMENT in the case no. 2000-03-01

6) after January 13, 1991 have been active in the [Communist Party of the Soviet Union] (the [Communist Party] of Latvia), Working People’s International Front of the Latvian SSR, the United Board of Working Bodies; Organisation of War and Labour Veterans; All-Latvia Salvation Committee or its regional committees.” On 13 January 1994 the Saeima adopted the Law on Elections of City Councils and Municipality Councils. Article 9(4) of that law established that: “The following persons shall not be nominated as candidates for council elections and shall not be elected to councils: … 4) persons, who are or have been regular staff or contracted employees of the former USSR or Latvian SSR State Security Committee, the USSR Ministry of Defence, the Security Service, Army, the intelligence or counterintelligence services of Russia and other states, and the residents of these institutions or holders of secret apartments.” On 6 November 1996 the Saeima amended Article 9 of the above law, supplementing it with a new paragraph 5 and from that time on, as well as at the moment of initiating the [present] case, Article 9(5) and (6) of the Law on Elections of City Councils and Municipality Councils is worded as follows: “The following persons shall not be nominated as candidates for council elections and shall not be elected to the councils: … 5) persons who after 13 January 1991 have been active in the [Communist Party of the Soviet Union] (the [Communist Party] of Latvia), the Working People’s International Front of the Latvian SSR, the United Council of Working Collectives, the Organisation of War and Labour Veterans, the All-Latvian Salvation Committee or its regional committees; 6) persons who are or have been regular staff or contracted employees of the former USSR or the Latvian SSR KGB, the USSR Ministry of Defence, the Security Service of Russia and other countries, the reconnaissance or counterintelligence service, or the residents of the above institutions or the holders of secret apartments.” On 6 December 1996 the Saeima adopted a law, changing the title of the Law on Elections of City Councils and Municipality Councils. Henceforward, an also at the time of initiating the [present] case, the title of the law reads “Law on Elections of City Councils and Rural Councils”. On 4 April 2000 the Saeima adopted the law “Amendments to the Law on Elections of City Councils and Rural Councils”, which came into force effect on 4 May 2000. The amendments express the title of the law in a new wording – “Law on Elections of City Councils, Municipality Councils and Rural Councils” (henceforth – the Local Election Law). Article 9(6) was also changed and now reads as follows: “The following persons shall not be nominated as candidates for council elections and shall not be elected to councils: ... 6) persons who are or have been regular staff employees of state security services, intelligence or counterintelligence service the former USSR, the Latvian SSR or other countries.” The petitioner alleges that Article 5(5) and (6) of the Saeima Election Law and Article 9(5) and (6) of the Law on Elections of City Councils and Municipality Councils (henceforth – the impugned norms) contradict Articles 89 and 101 of the Satversme, Article 14 of the Convention and Article 25 of the Covenant and requests to void the impugned norms.

The petitioner expressed the view that the above-mentioned norms, which limit the scope of full-fledged Latvian citizens who have the right to participate in the work of the Saeima (including the right to be nominated as candidates for the Saeima and to be elected) and municipalities (including the right to be nominated as candidates for municipal councils and to be elected), contradict Article 101 of the Satversme, which does not envisage such a restriction of the scope of the citizens’ rights. The petitioner stresses that the impugned norms prevent the nomination and election of Latvian citizens as candidates for the Saeima or municipal councils exactly because of their political opinion, because from 13 January to 10 September 1991 none of the organisations mentioned in the impugned norms had been forbidden. The membership in these organisations at that period should be considered as public and political activities, which in themselves do not constitute the elements of a criminal offence. Thus it is alleged that the impugned norms contradict both Article 14 of the Convention, which determines that the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground (also on the grounds of political or other opinion), and Article 25 of the Covenant. Article 25 confers on citizens the right and opportunity to vote and to be elected at genuine periodic elections on general terms of equality and by secret ballot, which guarantee the free expression of the will of the electors without any discrimination mentioned in Article 2 of the Covenant and without groundless restrictions, therefore without any distinction on the grounds of political or other opinion. Concerning the argument of the Saeima in its written reply that Article 14 of the Convention pertains only to the implementation of rights and freedoms mentioned in the Convention, the petitioner supplemented the legal motivation, indicating that Article 3 of Protocol No. 1 to the European Convention for Protection of Human Rights and Fundamental Freedoms provides that the High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature. The petitioner holds that one cannot consider elections to be free if representatives of a whole group of citizens are denied the possibility of being elected to the Saeima and local authorities. To the mind of the petitioner it means that the possibility of the voters to freely express their will has been restricted because they consider the candidates against whom the restrictions to passive election rights have been applied to be the only ones who could represent them in the structures of power. Simultaneously, the petitioner has reached the conclusion that Article 5(5) and (6) of the Saeima Election Law restricts the rights of certain Latvian citizens to participate in the work of the Saeima of the Republic of Latvia only because of their political opinion and former occupation. According to the petitioner, such restrictions contradict both the Satversme and international agreements binding on Latvia. The representatives of the petitioner stressed that in accordance with Article 91 of the Satversme fundamental human rights should be implemented without any discrimination but the impugned norms permit discrimination because of political membership. Besides, without giving a legal motivation, it was pointed out that the impugned norms were also not in compliance with Articles 10 and 11 of the Convention. The representatives of the petitioner referred to the viewpoint, which has allegedly been expressed in the case-law of the European Court of Human Rights, namely, that “the phrase “under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature” in essence means not only the freedom of expression, which is protected by Article 10 of the Convention, but also the equality and the right to elect and to be elected of all the citizens” (see the judgment of the European

JUDGMENT in the case no. 2000-03-01

Court of Human Rights [of 2 March 1987] in the case “Mathieu-Mohin and Clerfayt [v. Belgium]”, [application no. 9267/81]). In addition, by referring to [the judgment] of the European Court of Human Rights [of 1 July 1997] in the case “Gitonas and Others v. Greece”, [application nos. 18747/97, 19376/92, and 19379/92], the petitioner expressed the viewpoint that “the state allows to a certain extent within its constitutional framework to create laws managing the status of parliamentarians; such laws may include the criteria of disqualification of parliamentarians. However, the criteria are different and depend on historical and political peculiarities of every state even though there exists a common interest to guarantee the independence of the members of the parliament and the freedom of choice of the electorate. The [large] number of situations envisaged in constitutions and electoral laws of many states of the Council of Europe gives the possibility of a choice between different criteria. However, none of the criteria may be considered as more reasonable than others, ensuring free expression of the will of the people through free, just and regular elections.” The petitioner stresses that, by determining restrictions in the electoral laws to protect the legal interests of the state, and in this case – the security of the state, the Saeima, contrary to the proclaimed objective, has violated much more important rights, namely, the right to free expression of the will. Besides, the application of the impugned restrictions to persons who after 13 January 1991 have been active in in the [Communist Party of the Soviet Union] (the [Communist Party] of Latvia), the Working People’s International Front of the Latvian SSR, the United Council of Working Collectives, the Organisation of War and Labour Veterans, the All-Latvian Salvation Committee or its regional committees, cannot, according to the petitioner, be motivated by the necessity of guaranteeing security of the state, as the restrictions have been applied only after the completion of the term of office of the 5th Saeima and the local authorities elected in 1994. Many of the persons who at the moment have been denied passive election rights, worked both in the 5th Saeima and the municipal councils without causing any threat to the security of the state. The petitioner also pointed out that the European Court of Human Rights had renewed the rights of the Socialist Party of Turkey, even though the programme of that party mentions proletarian dictatorship. The petitioner conceded that Article 3 of Protocol No. 1 to the Convention does not apply to municipal elections, but pointed out that the prohibition to be elected to local authorities violated the rights established in Articles 10 and 11 of the Convention in a discriminatory manner. The representative of the applicants maintains that traits of collective responsibility can be observed in the impugned norms, as they envisage restrictions in connection with membership in the indicated organisations and not with the nature of activities of every person. Besides under the Latvian legal practice the term ”membership” is interpreted in the way that it is quite enough to establish the fact of formal membership in an organisation to deny the person the possibility of becoming a candidate. The Saeima in its written reply maintains that the impugned norms do not contradict either Articles 89 and 101 of the Satversme, Article 14 of the Convention, Article 3 of Protocol no. 1, or Article 25 of the Covenant and requests to declare the applications of the members of the Saeima unfounded and to reject them. It is stressed in the written reply that the right to participate in the work of the state and local governments, envisaged in Article 101 of the Satversme, is not absolute as the Article includes the condition “in the manner prescribed by law”. Thus the Satversme allegedly envisages that enjoyment of the above right has to be determined by law. Both the Saeima Election Law and the Local Election Law are such laws and both provide

for a certain procedure to implement the right as well as limit the scope of persons who have the right of being elected. The Saeima expresses the view that any electoral system ought to be evaluated by taking into account the political development of the state. One should consider the circumstances under which the restrictions have been imposed. The impugned norms are not directed against pluralism of ideas in Latvia but against the group of persons who quite recently with their activities tried to hinder the formation of the democratic state of Latvia and the return of Latvia to the community of democratic states. The objective of the restrictions is to protect the national security of Latvia and the democratic system of the state. Taking into consideration the above as well as the fact that there still exists the necessity to strengthen the state security and the democratic system, the restrictions ought to be considered as proportionate to the need to achieve these objectives. In essence these restrictions of the passive election rights do not limit democracy and diversity of ideas but, on the contrary, strengthen the democracy and pluralism. As to the viewpoint, expressed in the applications, that the prohibition is directed against persons with different political opinion, the Saeima draws attention to the fact that the right to be a candidate has only been taken away from the persons who with their participation in the above organizations have confirmed that they oppose the renewal of the statehood of Latvia. The Saeima stresses that by ratifying Protocol no. 1 to the Convention, Latvia has undertaken to hold free elections at reasonable intervals by secret ballot, under conditions, which ensure free expression of the will of the people in the choice of the legislature. Article 6 of the Satversme supplements Article 3 of the Protocol no. 1 to the Convention and precisely determines the principles and the system of elections in Latvia. Article 9 of the Satversme establishes general criteria that are to be met by a person who wants to become a candidate. The Satversme leaves one of them – full rights of citizenship – to the area of responsibility of the legislator. The Saeima draws attention to the essence of the term ”discrimination” which is used in Article 14 of the Convention as well as to the fact that according to the case-law of the European Court of Human Rights not all the differences in the application of the rights guaranteed by the Convention are considered discrimination. The principle of equality would be violated if the differences could not be reasonably and objectively justified by taking into consideration the particular legitimate aim and proportionality. In the written reply it is pointed out that the right to be elected established in Article 25 of the Covenant is not absolute. Article 25 of the Covenant shall be implemented without discrimination mentioned in Article 2 of the Covenant and without unfounded restrictions. Thus the Covenant permits well-founded restrictions and one has to take into consideration that not all restrictions should be considered discriminatory. The conditions included in the impugned norms are directed to the protection of the territorial unity, national security and the democratic state system. They should be regarded as well-founded and being in conformity with Article 25 of the Covenant. Taking into account these arguments, the Saeima considers that the impugned norms are in compliance with Article 89 of the Satversme, which establishes that the State recognises and protects the fundamental rights of a person in accordance with the Satversme, the laws and international agreements binding on Latvia. At the hearing the representative of the Saeima expressed the opinion that the applications were unfounded and requested the Court to reject them. He declared that the impugned norms were in compliance with Articles 89 and 101 of the Satversme, Article 14 of the Convention, Article 3 of Protocol no. 1 and Article 25 of the Covenant.

JUDGMENT in the case no. 2000-03-01

The representative of the Saeima stressed that even in democratic countries the right to participate at elections is always restricted and that the body of voters is always smaller than the body of the citizens. It is important that the restrictions are well-founded. He concluded that theoretically all persons who have the right to vote might participate at the elections and that restrictions to this right are permissible only if they do not contradict the notion of democracy mentioned in Article 1 of the Satversme, the general essence of elections and other articles of the Satversme. Besides, one should take into consideration that limitations of the right to vote are a sensitive matter and – as exceptions from the [general] principle – they are to be interpreted narrowly. As concerns Article 3 of Protocol no. 1 to the Convention the representative of the Saeima supplemented the arguments expressed in the written response and indicated that the right to elections mentioned in this article may be restricted in accordance with the general method for restricting rights. Hence it is necessary to examine whether the restriction of the right has a legitimate aim and whether the restriction is necessary in a democratic society. The representative of the Saeima pointed to the so called principle of defensive democracy recognised in democratic states, according to which within the limits of proportionality, the democratic system of the state ought to be protected from people who threaten it or who are morally not qualified to become representatives of a democratic state on the political or administrative level. He expressed the opinion that in specific historically political circumstances many states have adopted certain conditions, not only to avert urgent threats to national security but also to ensure that the citizens are not obliged to accept as representatives of the state power persons who through their activities have proven to be disloyal to the democratic state system. Otherwise trust in the state power and legitimacy that is an absolute requirement of democracy would be shaken. The representative of the Saeima stressed that any election system should be assessed by taking into account the political development of the state. Historically political circumstances under which restrictions have been imposed should be considered as well. He expressed the viewpoint that the impugned restrictions are well-founded and therefore justifiable. Prohibition to become members of the Saeima for persons who have worked for security services of foreign countries and, first of all, of the former USSR occupational regime derives from the interests of national security and territorial unity of Latvia. It concerns not only the present but also the former staff of such institutions who have not publicly declared the fact and are therefore still vulnerable to blackmail. Besides the restriction is connected to the trust of the people in the political representatives of their state, which is necessary in a democratic state. The political representatives need to demonstrate a certain minimum of political loyalty and democratic political ethics. This cannot be said about persons who have worked to implement the power of the occupational regime – in the institution of direct persecution and direct repressions. In their turn, persons who after 13 January 1991 have been active in the [Communist Party of the Soviet Union] (the [Communist Party of Latvia]), the Working People’s International Front of the Latvian SSR, the United Board of Working Bodies; the Organisation of War and Labour Veterans; the All-Latvia Salvation Committee or its regional committees during the period of restoration of the independence [of Latvia] wished to retain the totalitarian, undemocratic regime in Latvia and struggled against the process of restoration of independence. In this case the primary legitimate interest is the one of the democratic society to demand from their political representatives a certain minimum of loyalty and political ethics. Persons who have actively participated in

the struggle against an independent and democratic Latvia are not able to demonstrate such a minimum of ethics and loyalty to the statehood and democracy. The representative of the Saeima alleged that the impugned restrictions were in compliance with the principle of proportionality and pointed out that the state of Latvia did not apply any criminal sanctions to the persons who at the critical moment with their participation in the activities of the organisations and institutions mentioned in the law had strengthened the position of those anti-state powers, who actively fought against this state and the democratic system. Thus the restriction to hold certain positions cannot be regarded as disproportionate. With regard to the restrictions applied to the persons who belong or have belonged to the regular staff of the USSR, Latvian SSR or foreign state security intelligence or counter-intelligence agencies, the representative of the Saeima pointed out that Article 17 of the Law “On Maintenance and Use of Documents of the Former State Security Committee and on Establishing the Fact of Persons’ Collaboration with the State Security Committee”, which provides that such restrictions are not of an indefinite duration. Besides, candidates are being struck from the list of candidates not as the result of administrative arbitrariness but it is done on the basis of an individual court decision. Thus such persons are guaranteed protection of a fair court and the right to use the services of an attorney. As concerns the restrictions imposed on the persons who after 13 January 1991 have been active in the [Communist Party of the Soviet Union] (the [Communist Party of Latvia]), the Working People’s International Front of the Latvian SSR, the United Board of Working Bodies, the Organisation of War and Labour Veterans, the All-Latvia Salvation Committee or its regional committees, the representative of the Saeima stressed that the restrictions envisage individual and not collective responsibility, i.e., the restrictions pertain only to the members of those organisations who have been active in these organisations after 13 January 1991. In this case striking the candidates out of the list is likewise not administrative arbitrariness but it is done on the basis of an individual court decision. The representative of the Saeima indicated that Latvia has been very liberal as regards criminal punishment of the representatives of the power of the former regime, whereas as regards establishing other restrictions it has been relatively consistent. He concluded that the principle of proportionality has been observed and that the benefit that the restrictions bring to the society of Latvia on the whole is much more important than the limitation of the rights of individual persons. The Constitutional Court

concluded:

1. According to Article 1 of the Satversme Latvia is an independent democratic republic. In its turn Article 101 contains a very important right serving as the guarantee to the existence of a democratic system and which is directed to ensuring the legitimacy of the democratic state system. It is the right of every citizen of Latvia to participate in the work of the state and local authorities. However this right is not absolute, as Article 101 of the Satversme includes the condition “in the manner prescribed by law”. Thus the Satversme determines that the way of exercising that right shall be established by law. According to the theory of constitutional law, the constitution may leave to the discretion of the legislator to set out the rules on the scope and limits of particular fundamental rights. “In such a case fundamental rights become effective in compliance with the “yardstick of the law”... and lastly everything depends on the ordinary legislator…

JUDGMENT in the case no. 2000-03-01

The regulating authority of the legislator may be positive or negative: positive as the right of determining the contents of the fundamental rights, negative – as the authority to limit fundamental rights” (see Deutches Staatsrecht. Dr.Theodor Maunz und Dr.Reinhold Zippelius. C.H.Beck’sche Verlagsbuchhandlung, München, 1991, S. 158-159). An assessment of the process of the adoption of Article 101 of the Satversme by the Saeima reveals that the amendments, introduced during the third reading, ought to be interpreted as the legislator’s will not only to subject the enjoyment of this right the criterion ”full-fledged citizen” (the first and second readings of the draft law) but even more – to leave to other laws the decision of the scope of Latvian citizens to whom Article 101 of the Satversme grants the right of participating in the work of the state and local authorities. By including the words “in the manner prescribed by the law”, the legislator has determined that in every specific case he words “every full-fledged citizen of Latvia” have to be interpreted by taking into consideration the restrictions imposed by laws. One should take into account also the viewpoint expressed by the representative of the Saeima that “the right to participate in the elections is always restricted also in democratic states.” As to the impugned norms of the Saeima Election Law, Article 101 of the Satversme is to be interpreted in conjunction with Article 9 of the Satversme. The way the right of a person to participate in the work of the Saeima is to be implemented in case if that person strives to become a member of the Saeima, should be in conformity with Article 9 of the Satversme: “any full-fledged Latvian citizen who is over twenty- one years of age on the first day of elections may be elected to the Saeima”. During the process of debating and adopting Article 9 of the Satversme the Constituent Assembly both in the second and third reading discussed the question of restrictions of election rights. The Assembly discussed the possibility of incorporating the restrictions in the Satversme. On 11 October 1921 the rapporteur Marģers Skujenieks at the Constituent Assembly pointed out that “there are certain categories of citizens who certainly cannot enjoy the election rights, such as feeble-minded persons, persons under guardianship, hardened criminals etc. In point of fact the majority of the commission prefers that these articles shall be included in one or the other law: either in the election law or here in the Satversme” (Verbatim record of the Constituent Assembly of the Republic of Latvia, booklet 14, p. 1575). Thus the viewpoint of the representative of the Saeima that Article 9 of the Satversme authorises the Saeima to specify the contents of the notion “a full-fledged citizen” in the Saeima Election Law is correct. Well-founded is also the opinion of the representative of the Saeima that restrictions of this right are permissible only if they do not contradict the notion of democracy, mentioned in Article 1 of the Satversme, the general essence of elections and other Articles of the Satversme. Besides, “limitations of the right to vote are a sensitive matter and – as exceptions from the [general] principle – they are to be interpreted narrowly”. Thus the legislator when adopting the impugned norms has not violated Article 101 of the Satversme but on the contrary – it has implemented the task delegated by this Article – that of passing the legal provision that us necessary to implement this fundamental right. 2. When adopting the Declaration “On Accession of the Republic of Latvia to International Instruments Relating to Human Rights” on 4 May 1990, the Supreme Council proclaimed that it acknowledged as binding several international instruments relating to human rights, among them the Covenant and the Universal Declaration of Human Rights, adopted in 1948.

The Covenant has been included in the UN Charter of Human Rights, which contains the most important global instruments in the sector of human rights adopted by the UN, including the Universal Declaration of Human Rights. Article 21(1) of the Universal Declaration of Human Rights provides that “everyone has the right to take part in the government of his country, directly or through freely chosen representatives”. According to paragraph 3 of the same article, “the will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.” At that time this article was included in the Universal Declaration, it was “a revolution within a revolution”, because it “established not only equal and inalienable rights of an individual as regards the state but also minimum demands as regards the structure and functioning of the state: the authority of its government must be based on the will of the people and there must be a system of democratic participation with equal political rights for every citizen.” (see The Universal Declaration of Human Rights: A Commentary. Scandinavian University Press, Oslo, 1992, p. 299). Article 21 of the Universal Declaration of Human Rights has to be interpreted in tight conjunction with the principle of equality deriving from Articles 1, 2, 4 and 7 of the same declaration as well as with Article 29, which provides that everyone has duties to the community and that, in the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. Moreover, these rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations, that is, impermissibility and prevention of threats to peace and security and respect for the principle of sovereignty and equality of states. The ideas of the Universal Declaration of Human Rights are specified in the Covenant, Article 25 of which provides the right for every citizen without any of the distinctions mentioned in Article 2 of the Covenant and without unreasonable restrictions to vote and be elected at genuine, periodic elections. According to how the Covenant is interpreted in practice, Article 25 thereof applies not only to the elections of the Saeima but also to the elections of municipal councils (See The Universal Declaration of Human Rights: A Commentary. Scandinavian University press, Oslo, 1992, p. 307). Article 25 of the Covenant, although it emphasises the impermissibility of discrimination with regard to the right guaranteed therein, also acknowledges the possibility of limiting this right, stressing that “every citizen shall have the right and the opportunity … without unreasonable restrictions”. Thus it is permissible to impose reasonable restrictions with regard to the right incorporated in Article 25 of the Covenant. On 10 November 1989 at its 37th session the UN Human Rights Committee accepted the comments of the UN High Commissioner on Human Rights concerning the essence of discrimination and acknowledged that not all types of differential treatment constitute discrimination. The implementation of reasonable and objective differences with an aim which is considered as legitimate within the meaning of the Covenant is not regarded as discrimination. Besides, the UN General Assembly when assessing the wording of Article 25 of the Covenant has stressed that the efforts of the international community to enhance the effectiveness of the principle of periodic and genuine elections should not call into question each State’s sovereign right freely to choose and develop its political, social, economic and cultural systems, whether or not they conform to the preferences of other States (see the UN General Assembly Resolution A/RES/44/146, 15 December 1989).

JUDGMENT in the case no. 2000-03-01

3. The implementation of the commitments envisaged in Article 3 of the First Protocol to the Convention is an essential prerequisite for any democratic state system, based on human rights. This article presupposes the existence of a representative legislature, elected at reasonable intervals, as the basis of a democratic society (see The Greek case, Comm. Report 05.11.69. para. 416, Yearbook 12, pp. 179-180) as according to the Preamble of the Convention it is best of all to maintain fundamental human rights and freedoms in a state with “an effective political democracy”. This article includes provisions on elections of the legislature, but does not contain provisions on municipal elections (see Frede Castberg. The European Convention on Human Rights. A. W. Sithoff – Leiden Oceana publications inc. –Dobbs Ferry, N.Y., 1974, p. 181). Thus Article 3 of the First Protocol to the Convention does not apply to the Local Election Law. As the European Court of Human Rights has declared in the case Mathieu-Mohin and Clerfayt, even though the states have “a wide margin of appreciation in this sphere”, any conditions or prerequisites that impose restrictions on the rights guaranteed by Article 3 of the First Protocol to the Convention have to be imposed in pursuit of a legitimate aim, and that the means employed may not be disproportionate with this aim; rights may be restricted only “to such an extent as [not] to impair their very essence and deprive them of their effectiveness”; the “the principle of equality of treatment of all citizens” is to be respected and arbitrary restrictions may not be used (see The Human Rights Act 1998: Enforcing The European Convention in the Domestic Courts. p. 390). Therefore the Court considers well-founded the opinion of the representative of the Saeima that the restrictions of the election rights guaranteed by Article 3 of the First Protocol to the Convention may be imposed by using the general procedure, namely, that it needs to be assessed whether the imposed restriction of the right has a legitimate aim and whether it is necessary in a democratic society. 4. There is no basis to the allegation of the applicants that the impugned norms, by forbidding the nomination and election of Latvian citizens to the Saeima or local authorities, discriminate against them because of their political allegiances, which is contrary to the prohibition of discrimination on the grounds of political conviction (opinion), mentioned in Article 2 of the Covenant and Article 14 of the Convention. The impugned norms do not envisage a difference in treatment because of the political conviction (opinion) of the person; they impose restrictions on the election right for activities directed against the renewed democratic system after 13 January 1991. The European Court of Human Rights considers that Article 14 of the Convention does not forbid every difference in treatment in the exercise of the rights and freedoms recognized by the Convention. The principle of equality of treatment is violated only if the distinction has no objective and reasonable justification and no legitimate aim. The existence of such a justification must be assessed in relation to the aim and effects of the measure under consideration, regard being had to the principles which normally prevail in democratic societies [see the judgments of the European Court of Human Rights: Belgian Linguistic case (1968) and Karlheinz Schmidt v. Germany (1994)]. One has to agree to the viewpoint expressed by the Saeima that also the Covenant allows justified restrictions of election rights and that not all restrictions are to be considered as discriminatory. The Constitutional Court, after having heard the opinions of the representatives of the petitioner and the representative of the Saeima, as well as having studied the practice of application of the impugned norms by courts of general jurisdiction and the Central

Election Committee, holds that it is necessary to clarify the actual meaning and content of the term “have been active”. In the course of the examination of the literal meaning of this phrase it became clear that “to be active” means to do something for a longer period, to take an active part, to act, to be engaged in (see Latviešu valodas vārdnīca. Rīga, Avots, 1998, p. 168). When examining the introduction of the term in the impugned norms, it was found that the member of the Saeima Māris Grīnblats, speaking in favour of the proposal of the Saeima faction “Tēvzemei un Brīvībai” to incorporate the impugned legal norm in Article 5(6) of the Saeima Election Law, during the Saeima session of 25 May 1995 refuted the objections of the Legal Commission and pointed out: if “the facts come to light that he has been, acted or found himself in one, another or the third [organisation], then these facts show that he has violated the law and given false information about himself”. At the session the member of the Saeima Māris Budovskis also interpreted the term “to be active” in its broader sense, i.e., he expressed the opinion that members of the respective anti-state organisations “should not get in the higher political sectors”. However, on 18 December 1997, when discussing the amendments to Article 5(6) of the Saeima Election Law, the proposal of the member of the Saeima Māris Grīnblats to substitute the phrase “have been active” with a phrase “are or have been members, participants or fellows of the above-mentioned organisations or boards” was turned down. For example, the member of the Saeima Ilmārs Bišers pointed out: “We are not ecstatic about the wording “have been active”, as we ourselves understand that this fact is difficult to prove, but it would be even more difficult and more dangerous to adopt the amendment of Mr. Grīnblats. Why? Because many members of the Communist Party did not formally end their membership in the party … There are many of them who just publicly tore up their membership cards. I know people who left this party, and, even if they have discontinued their membership in it, we cannot be sure that the Committees of the CP have reviewed [their applications]. Perhaps they have just put the[se applications] in one big heap and in the archives you would formally find that they have formally not been excluded from the party.” Thus the legislator has connected restrictions with the degree of individual responsibility of every person in realisation of the aims and programme of these organisations. The restriction to be elected to the Saeima or a local authority, which is included in the impugned norms, is connected with the activities of a specific person in the respective socio-political organisations. Formal membership in any of the above organisations by itself cannot serve as a reason to forbid a person to be included in the candidate list and to be elected to the Saeima. For example, in accordance with Article 5 of the resolution of the Supreme Council of 23 August 1991 “On the Anti-constitutional Activity of the Latvian Communist Party in the Republic of Latvia” “membership in the Latvian Communist Party is not a reason for limitation of human rights, discrimination and persecution”. The resolution of the Supreme Council of 10 September 1991 “On Discontinuation of the Activities of Some Public and Socio-Political Organisations” also primarily addresses the fact of the activities of the above organisations and their leaders against national independence of Latvia. Thus the impugned norms are directed only against those persons who with their activities after 13 January 1991 and in the presence of the occupational army attempt to renew the former regime. These norms are not applicable to persons with different political convictions (opinion). The tendency, characteristic to certain courts, to focus only on establishing the fact of formal membership and not evaluating the activity of

JUDGMENT in the case no. 2000-03-01

the persons does not comply with the aim which the legislator has tried to achieve when adopting the impugned legal norm. 5. Article 89 of the Satversme provides that the State shall recognize and protect fundamental human rights in accordance with the Satversme, laws and international agreements binding upon Latvia. From this article it can be seen that the aim of the legislator has not been to oppose norms of human rights included in the Satversme and the international ones. Quite to the contrary – the aim has been to achieve mutual harmony of these norms. In cases when there are doubts about the contents of the norms of human rights included in the Satversme, they should be interpreted, insofar as it is possible, in compliance with the interpretation used in the practice of the application of international norms of human rights. The case-law of the European Court of Human Rights, which in accordance with the obligations Latvia has undertaken (Article 4 of the law “On the 4 November 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols nos. 1, 2, 4, 7 and 11”) is mandatory when interpreting the norms of the Convention, shall also be used also when interpreting the corresponding norms of the Satversme. To establish whether the impugned restrictions comply with Articles 89 and 101 of the Satversme, are “reasonable” within the meaning of Article 25 of the Covenant and comply with Article 3 of the First Protocol to the Convention, it has to be assessed whether the restrictions included in the impugned norms: 1) are determined by law, which has been adopted under due procedure; 2) pursue a legitimate aim; 3) are necessary in a democratic society. Since there is no dispute in the case that the restrictions are determined by law, which has been adopted under due procedure, only the two last issues have to be assessed: whether the restrictions pursue a legitimate aim and whether they are necessary in a democratic society. Further, in order to establish whether the impugned norms comply with Articles 89 and 101 of the Satversme, Article 25 (in conjunction with Article 2) of the Covenant and Article 3 of the First Protocol to the Convention (in conjunction with Article 14 of the Convention), it has to be assessed whether the impugned norms limit the rights of persons in a discriminatory manner, namely, whether: 1) the restrictions pursue a legitimate aim; 2) the restrictions are proportional to this aim. 6. The functioning of Articles 1, 2, 3 and 6 of the Satversme was renewed pursuant to the declaration of 4 May 1990 “On the Renewal of the Independence of the Republic of Latvia”. At the same time only those norms of the Constitution of the Latvian SSR, which did not contradict Articles 1, 2, 3, and 6 of the Satversme, were effective. Although the democratic state was renewed, “the principle of parliamentarism was alien to the conservative leaders of the Latvian Communist Party. It was not going to give up its role as the “leading and ruling force of the society”. As it could not win in the elections of the Supreme Council of the Republic of Latvia, it started anti-state activities. With the efforts of the Latvian Communist Party and its satellite organisations: the Young Communist League of Latvia, the International Front, the United Board of Working Bodies, and the Organisation of War and Labour Veterans the All-Latvia Salvation Committee was established. In December of 1990 this organisation, which

did not represent the legitimate power of Latvia, addressed the President of the USSR M. Gorbachev with a request to introduce a direct presidential rule in Latvia” (V. Blūzma. Politisko partiju veidošanās Latvijā pirmsākumi. // V. Blūzma u.c. Latvijas valsts atjaunošana 1986 – 1993. Riga, 1998, pp. 268-269). On 13 January 1991 the 10th Plenum of the Central Committee of the Latvian Communist Party took place in Riga. The primary issue discussed there was seizing the power by any means, even allowing for bloodshed. Besides the demand for the government, the Supreme Council and local authorities to resign was expressed. The All-Latvia Salvation Committee was asked to take over the power in the state (see the findings of the commission confirmed by the decision of 9 July 1992 of the Supreme Council). On 20 August 1991 the socio-political organisations named in the impugned norms circulated an appeal, informing the inhabitants of the Republic of Latvia that state of emergency had been declared. All the inhabitants were asked to turn against everybody who did not obey the measures of the Committee of the State of Emergency. As the aims of the activities of these organisations were connected with destruction of the existing state power, their essence was anti-constitutional. Also the legislator declared them to be such, by adopting, on 24 August 1991, the resolutions “On Discontinuation of the Activities of Some Public and Socio-Political Organisations” and “On Discontinuation of the Activities of the Security Services of the USSR in the Republic of Latvia”. Activities of these organisations were directed against the independence and democracy of the Republic of Latvia. Thus the aim of the restrictions of the passive election rights is to protect the democratic state system, national security and the territorial unity of Latvia. The impugned norms are not directed against pluralism of ideas in Latvia or political opinion of any person but against persons who with their activities have tried to destroy the democratic state system and thus have turned against Article 1 of the Satversme. The use of human rights may not be turned against democracy as such. Also in the final document of the 1990 Copenhagen meeting of the OSCE conference on the human dimension it is declared the development of societies based on pluralistic democracy is a necessary prerequisite for setting up a lasting order of peace, security, justice and co-operation in Europe. The states that have acceded to that document, including Latvia, have recognised their responsibility to defend, in accordance with their laws and their international commitments, the democratic order of the state against the activities of persons, groups or organizations that engage in or refuse to renounce terrorism or violence aimed at the overthrow of that order or of that of another participating State. Even though a specific law on the so-called lustration has not been adopted in Latvia, the experience of post-socialist states, acquired during the period of overcoming the consequences of the old regime and transition to a democratic state, has been summed up in Resolution no. 1096 (1996) of the Parliamentary Assembly of the Council of Europe “On Measures to Dismantle the Heritage of Former Communist Totalitarian Systems”. On the one hand this Resolution, referring to the Guidelines No. 7568 of the Legal and Human Rights Committee of the Council of Europe to ensure that lustration laws and similar administrative measures comply with the requirements of a state based on the rule of law, stresses that “disqualification for office based on lustration should not be longer than five years, since the capacity for positive change in an individual’s attitude and habits should not be underestimated; lustration measures should preferably end no later than 31 December 1999, because the new democratic system should be consolidated by that time in all

JUDGMENT in the case no. 2000-03-01

former communist totalitarian countries”. However, the socio-political situation of every state should be assessed individually as, on the other hand, the Resolution also expresses a concern that the transition process, the aim of which is liquidation of the heritage of the former communist totalitarian system, may fail and the result may turn out to be renewal of a “velvet” totalitarian regime. Besides one should take into consideration that the resolutions of the Parliamentary Assembly are only a recommendations (see the Statute of the Council of Europe, to which the Republic of Latvia acceded in accordance with the law of 2 February 1995 “On the Statute of the Council of Europe”). The essence and efficiency of law lies also in its ethical character. To demand loyalty to democracy from its political representatives is in the legitimate interests of a democratic society. When imposing restrictions, the legally protected respect and honour of the candidates is not questioned. What is questioned is whether the respective persons deserve to represent the people in the Parliament or the respective local authority. These restrictions concern persons, who have been staff employees of the repression apparatus of the occupation regime or who, after 13 January 1991, have been active in the organisations mentioned in the impugned norms who fought against the renewed Satversme and the state of Latvia. A similar viewpoint was expressed also by the Federal Constitutional Court of the German Federal Republic: “He who has spied on and oppressed his own people, who has deceived, betrayed and cheated or who is responsible for it all, shall have no place in the Bundestag, even if one cannot deprive him of his mandate” (see the judgment of 21 May 1996 in case 2 BvE 1/95). Well-founded is the statement of the representative of the Saeima that a democratic state system has to be protected from persons who are ethically not qualified to become representatives of a democratic state on the political or administrative level and who through their activities have demonstrated that they are not loyal to the democratic state system. The state should be protected from persons who have worked in the apparatus of the occupational power which directly oppressed and repressed the people and persons who after the renewal of the independence of the Republic of Latvia tried to renew an antidemocratic totalitarian regime and resisted the legitimate state power. The values of the society are based on a consensus which expresses the traditional thinking and ethical principles of the society. Different world outlooks and different systems of values can exist in one and the same society. However, it is necessary to have unifying, universally recognised and consolidating basic conceptions on which to base both the law and the entire public life within the framework of people, state or society. The greater the pluralism, the more necessary becomes mutual tolerance of the different viewpoints and the agreement on generally recognised values, non-observance of which precludes a tolerant attitude (see N. Horns. Ievads tiesību zinātnē un tiesību filosofijā. // Likums un tiesības, vol. 2, no. 2, p. 41). Thus the statement of the petitioner that the impugned norms violate the principle demanding an equal treatment of citizens is unfounded as the rights are not violated to such an extent that the essence of these rights has been divested and their efficiency weakened. Law should be ethical. From the impugned norms it follows that restrictions of the passive election right does not refer to all members of the organisations mentioned therein but only to those who had been active in these organisations after 13 January 1991. Crossing out a person from the list of candidates if he had been active in the above-mentioned organisations is not an administrative arbitrariness, it is based on an individual court decision. In accordance with the law, the establishment of individual responsibility lies within the competence of courts of general jurisdiction. Both the Civil Procedure Code of Latvia

and the Law of Civil Procedure (currently in force) determine a specific procedure for reviewing cases on establishing restrictions of election rights. Thus the principle of equal treatment of all citizens has not been violated, protection by a court is guaranteed and the restrictions are not arbitrary. Consequently the aim of the restrictions is legitimate. 7. Unfounded is the allegation of the petitioner that the restriction of passive election rights were imposed on persons who had been active in the socio-political organisations mentioned in the impugned norms only after the 5th Saeima and the local authorities elected in 1994 had already completed the whole period of their office. The impugned norms were indeed adopted on 25 May 1995 (in the Saeima Election Law) and on 6 November 1996 (in the Local Election Law). However, already before that similar restrictions had been imposed or proposals to impose them had been expressed. On 22 August 1991 the Supreme Council adopted the decision “On Formation of a Parliamentary Investigation Commission to Hold an Inquiry into the Attempt of the Illegitimate Coup”. On 9 July 1992 the Supreme Council approved the report of the investigation commission. By the same decision and on the basis of Article 5(2)(5) of the law “On the Status of the People’s Deputy of the Republic of Latvia” the Supreme Council annulled the mandates of 15 members of the Supreme Council. This norm, which was adopted on 30 June 1992, provides that “the Supreme Council decides on the annulment of the mandate of a member of the Supreme Council if the member has acted contrary to the Satversme of the Republic of Latvia and other laws, Supreme Council decisions, which ensure the existence of Latvia as an independent democratic state, if such a fact has been established a report of a commission of the Supreme Council and has been approved by a plenary meeting of the Supreme Council”. When studying the process of the adoption of the law “On the Elections of the Fifth Saeima” (verbatim reports of the sessions, proposals by the members of the Supreme Council), one can see that already on 11 March 1993 the member of the Supreme Council Linards Muciņš submitted a proposal to impose restrictions of the passive election rights for a period of 10 years on city, district, regional secretaries of the Communist Party of the Soviet Union and the Communist Party of Latvia and on equivalent salaried party committee secretaries, members of the CPSU and the CPL who operated in the Communist Party after 13 January 1991, advisors to the President of the USSR, members of the All-Latvian Salvation Committee or its regional committees, members of the Working People’s International Front of the Latvian SSR, the United Board of Working Bodies of the Latvian SSR, the Organisation of War and Labour Veterans of the Latvian SSR. However, taking into consideration the fact that the members of the Supreme Council had been elected “not only by citizens of Latvia but also by citizens of the USSR residing in Latvia, among them a large number of soldiers of the occupational army” (E. Levits. 1990. gada 4. maija Deklarācija par neatkarības atjaunošanu. // V.Blūzma u.c. Latvijas valsts atjaunošana 1986-1993. Riga, 1998, p. 217) as well as taking into account that the restrictions were directed against all the members and candidate members of the Central committee of the CPSU and the CPL, and city, district, regional secretaries of the CPSU and the CPL and on equivalent salaried party committee secretaries, several of whom had become members of the Supreme Council and had given a significant contribution to the renewal of the independence of Latvia, this proposal was not adopted. Besides the members of the Supreme Council envisaged to impose restrictions to the right to occupy certain posts in other laws; such restrictions would also apply to the members of the Saeima. Article 21(2) of the law “On the Elections of the Fifth Saeima” provided that persons whose rights to occupy certain governmental posts are

JUDGMENT in the case no. 2000-03-01

restricted by other legislative acts may not be nominated as the candidates. However, no such laws were adopted before the elections of the Fifth Saeima. During the process of discussing the above-mentioned draft law, a viewpoint was expressed that the Fifth Saeima, after assessing the political situation would adopt a permanent election law and decide on the necessary restrictions of election rights. Any election system should be assessed by taking into consideration the political development of the state. As may be seen from the legislative practice after the renewal of the independence of the Republic of Latvia, the issue of adopting or amending election laws has been topical just before elections. Therefore it is understandable that the respective restrictions have been incorporated in the Local Election Law only in November 1996. Also after that date the legislator has assessed the historical and political conditions of the development of democracy in Latvia and has once again “opened” the election laws before every election. To determine whether the applied measure, i.e., the restrictions of the passive election right is proportional to the aims to protect, firstly, the democratic state system, which is ensured also by observing the universally approved ethical norms, secondly, the national security and the territorial integrity of Latvia, one has to assess the political situation in the state and the related additional conditions. As the legislator has repeatedly evaluated the political and historical conditions of the development of democracy in connection with issues of election rights, then, taking into consideration the abovementioned conclusions, the Court does not consider that at the present moment there exists a reason to doubt the proportionality of the applied measure to its aim. However, when periodically assessing the actual political situation in the state as well as the necessity and validity of the restrictions, the legislator should decide on applying a time-limit to the restrictions contained in the impugned norms, as such restrictions of passive election rights may last only for a certain period of time. On the basis of Articles 30-32 of the Constitutional Court Law the Constitutional Court decided: To declare that Article 5(5) and (6) of the Saeima Election Law and Article 9(5) and (6) of the Law on Elections of City Councils and Municipality Councils comply with Articles 89 and 101 of the Satversme, Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 3 of the First Protocol of this Convention as well as Article 25 of the International Covenant on Civil and Political Rights. The judgment takes effect at the moment of its announcement. The judgment is final and not subject to an appeal. The judgment was announced in Riga, on 30 August 2000.

The chairman of the hearing of the Court Judge of the Constitutional Court Judge of the Constitutional Court Judge of the Constitutional Court Judge of the Constitutional Court Judge of the Constitutional Court Judge of the Constitutional Court

A. Endziņš R. Apsītis I. Čepāne J. Jelāgins A. Lepse I. Skultāne A. Ušacka

Separate opinion of judges of the Constitutional Court Aivars Endziņš, Juris Jelāgins and Anita Ušacka in the case no. 2000-03-01 Riga, 4 September 2000

“On the compliance of Article 5(5) and (6) of the Saeima Election Law and Article 9(5) and (6) of the Law on Elections of City Councils and Municipality Councils with Articles 89 and 101 of the Satversme, Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 25 of the International Covenant on Civil and Political Rights”. 1. Pursuant to Article 1 of the Satversme Latvia is an independent democratic republic. When delivering a report on the draft of the Satversme in its first reading, the rapporteur Marģeris Skujenieks stressed that “this basic thesis determines the contents and spirit of the law and is the leading principle of the activity of the Constituent Assembly” (Verbatim record of the Constituent Assembly of Latvia, 1921, booklet 14, p. 1304). The Saeima has to observe Article 1 of the Satversme in all of its activities, also when specifying constitutional norms in laws, and it has to act in compliance with the principles of a democratic state. When clarifying the meaning of Article 1 of the Satversme, one should take into consideration the fundamental values of the state of Latvia, which have ensured the possibility of establishing the state and its vital capacity even under extremely critical conditions. The Act of Proclamation of the Republic of Latvia of 18 November 1918 states that “… all the citizens, without any national distinctions are asked to help, as the rights of all the ethnicities will be guaranteed in Latvia. It will be a democratic and a fair state, without any oppression and injustice…”. On 4 May 1990 the Supreme Council of the Republic of Latvia, when adopting the declaration “On the Accession of the Republic of Latvia to International Instruments Relating to Human Rights”, referred to the quoted conclusion of the act. Thus, the very first steps, both at the time of establishing the state of Latvia and the renewal of its independence, were unequivocally directed at the establishment of a truly democratic state system where human rights are respected and tolerance to diversity of opinion reigns. As can be ascertained from the resolution of the Supreme Council of the Republic of Latvia “On the Results of the Opinion Poll of 3 March 1991 of the Residents of the Republic of Latvia”, out of 1 902 802 inhabitants included in the opinion poll lists 1 666 128 persons (87,56%) took part in it. They had to give an answer to the question “Are you in favour of a democratic and independent state of Latvia?” 1 227 562 (73,68% of those taking part) voted in favour of the answer “yes”, thus confirming that the absolute majority of the inhabitants of the Latvia support a state system in which democracy and national independence are mutually and inseparably connected. When adopting Chapter 8 of the Satversme, the Saeima consequently and consistently developed the idea of a democratic state which had been enclosed in the foundation of the formation and renewal of the statehood of Latvia. When interpreting the norms incorporated in Chapter 8 of the Satversme, it is not permissible to juxtapose these norms and the fundamental democratic values enshrined in Article 1 of the Satversme. 2. It is correctly pointed out in the judgment that “the aim of the legislator has not been to oppose norms of human rights included in the Satversme and the international ones. … In cases when there are doubts about the contents of the norms

Separate opinion in the case no. 2000-03-01

of human rights included in the Satversme, they should be interpreted, insofar as it is possible, in compliance with the interpretation used in the practice of the application of international norms of human rights” and that the case-law of the European Court of Human Rights “shall also be used also when interpreting the corresponding norms of the Satversme”. However, the judgment uses this case-law incompletely and occasionally by not taking into account the context of the respective case of the European Court of Human Rights. The judgment fails to take into account the common trend of the case-law of the European Court of Human Rights that democracy means pluralism, tolerance and diversity of opinions (see the judgment of the European Court of Human Rights of 22 October 1981 in the case “Dudgeon v. the United Kingdom, application no. 7525/76). Democratic society cannot exist without pluralism, tolerance and diversity of opinions. It means that, inter alia, proportionality to the legitimate aim must be determined for every “formality”, “condition”, “restriction” or “punishment” which is applied (see the judgment of the European Court of Human Rights of 7 December 1976 in the case “Handyside v. the United Kingdom”, application no. 5493/72). Moreover, only restrictions that are necessary in a democratic society may be considered as proportional. The adjective “necessary” in this case is not a synonym to the word “binding”. Neither has it the “flexible” variation possibilities of such words as “permissible”, “reasonable” or “preferable”. The word rather means “a pressing social need” (see the judgment of the European Court of the Human Rights of 25 March 1985 in the case “Barthold v. Germany”, application no. 8734/79). The issue of whether the restrictions are necessary in a democratic society has not been analysed in detail in the judgment of the Constitutional Court; furthermore, the element of “social need” has not been assessed at all. In a democratic society only restrictions which comply with the principles of a state based on the rule of law may be regarded as answering to a social need. They have to be assessed by taking into consideration the particular historical and political system. However, imperfections in the development of democracy, pointed out by the representative of the Saeima at the hearing of the Court, cannot by themselves serve as the basis to deviate from the principles of a state based on the rule of law. New democracies, including Latvia, may not regard the present stage of development of democracy in the state as an absolute yardstick. They should guide themselves by the standards of democracy of the developed Western states. Ill-founded restrictions of human rights do not strengthen the democracy but weaken it. No state should consider the existing situation as self-sufficient; they have to take into consideration the experience of other Member States of the Council of Europe. The judgment has disregarded the fact that paragraphs 6 of the impugned articles pertain only to the activity of persons during the period from 13 January 1991 to 10 September 1991. Persons who have been active in the organisations mentioned in paragraphs 6 of the impugned articles after that time, are to be held liable pursuant to the procedure provided for by the law. If there is a court decision pursuant to which their activity is considered to be criminal, such persons lose their passive election rights in compliance with Article 5(2) or (3) of the Saeima Election Law or Article 9(1) or (3) of the Municipal Election Law. 3. It is correctly pointed out in the judgment that the very important right enshrined in Article 101 of the Satversme of every citizen to participate, in the manner prescribed by law, in the work of the state and local governments is not absolute.

However, what is also not absolute is the right of the Saeima to use the precondition “in the manner prescribed by law” to apply “the yardstick of laws” for implementation of the right guaranteed by Article 101 of the Satversme. The Saeima has the right to free choice only as far as Article 1 of the Satversme and other constitutional norms do not limit it. The fact that, when adopting Article 101 of the Satversme in the third reading, the Saeima replaced the criterion “full rights” with the condition “in the manner prescribed by law” does not indicate that, when interpreting Article 101 of the Satversme one should not take into account Article 1 of the Satversme and other constitutional norms, first of all Articles 2, 9, 89 and 91. Thus the manner of implementation of the rights incorporated in Article 101 of the Satversme which is determined by law should comply with the principles of a democratic state that derive from Article 1 of the Satversme, the international obligations undertaken by Latvia and Article 91 of the Satversme which provides: “human rights shall be implemented without any discrimination”. 4. Well-founded is also the opinion expressed in the judgment that, as concerns the impugned norms of the Saeima Election Law, Article 101 of the Satversme is to be interpreted in conjunction with Article 9 of the Satversme. However, it is not sufficient to interpret the meaning of the Article only as an authorisation for the Saeima to specify in the Saeima Election Law the contents of the phrase “a full-fledged citizen”. As can be seen from the debate at the session of the Constituent Assembly, the proposal to include restrictions in the text of Satversme was not related to the concern about the possibility that there might be too many full-fledged voters. Quite to the contrary, the Constituent Assembly has stressed the importance of the right enshrined in Article 9 for the functioning of the democracy. The Assembly even considered the need to define the notion “full-fledged” in the Satversme itself. The decision that this phrase ought to be defined in a law was adopted by an insignificant majority of votes and it was related to the belief that the representatives elected by the people would fully recognise the values of a democratic state and the object and purpose of Article 9 of the Satversme. On 11 October 1921 at a session of the Constituent Assembly the member of the Assembly Arveds Bergs remarked that “every full-fledged Latvian citizen has elections rights, which is a principle, from which there can only be a few restrictions. This cannot be the basis for some heavy restrictions of the election right in the sense that other restrictions would be introduced. It would be contrary to the spirit of the constitution and no Saeima would want to violate the spirit of the constitution” (Verbatim record of the Constituent Assembly of Latvia, Riga, 1921, booklet 17, p. 1576). The objective of Article 9 of the Satversme is to ensure as much as possible the right to elections to all the citizens of Latvia. The meaning of the phrase “full-fledged” in this article permits only “some restrictions”, which are in conformity with the “spirit of the constitution”. An analogous conclusion, by referring to the submission of the representative of the Saeima, has also been expressed in the judgment, where it is pointed out that restrictions of the right to vote are exceptions from the principle and should be interpreted narrowly. However, contrary to this conclusion, in fact disproportionately extensive restrictions have been found to be permissible. Besides, when interpreting the notion “full-fledged”, included in Article 9 of the Satversme, one should also take into consideration the Law on the Saeima Elections, adopted by the Constituent Assembly on 9 June 1922. It incorporated the norms, which had been drafted for the use in the Satversme but had not been included in it. This

Separate opinion in the case no. 2000-03-01

law provided that “the right to vote shall not be given to persons who, in the manner prescribed by law, have been declared feeble-minded as well as all other persons who are under guardianship”. Article 3 envisaged that the following persons “lose their election right: 1) if their election rights have been deprived or restricted on the basis of a final court decision, unless 10 years from serving a sentence have passed or if they have received back their rights by the way of amnesty or pardon; 2) if they are serving a sentence of imprisonment for crimes motivated in greed, unless 10 years from serving the sentence have passed; 3) if they are subject to trial or investigation for crimes mentioned in paragraphs 1 and 2; these persons lose their right to vote, but they may be elected; 4) if their right to vote has been deprived for disrupting the freedom of elections or a correct conduct of elections; 5) if they have been sentenced or are subject to trial or investigation for refusal to perform military service or for deserting”. When discussing the Saeima Election Law, the Latvian constitutional scholar Kārlis Dišlers has stressed that “the citizens lose their political rights on the basis of a court decision in four cases, envisaged in Article 3 of the Election Law. The general principle is that the rights are not forfeited forever, but only for a certain time” (Dišlers K. Ievads Latvijas valststiesību zinātnē. Riga, 1930, p. 94). Thus, in compliance with the understanding of the Constituent Assembly about Article 9 of the Satversme restrictions of the right to vote in cases which are not connected with a person being under guardianship are permissible only for a certain period. The judgment also states that restrictions of the passive election right may exist only for a certain period. However, the decision on the incompatibility of the impugned norms with the Satversme does not follow. One should also take into consideration the fact that the Constituent Assembly adopted the relevant norms of the Saeima Election Law only slightly more than three years after the proclamation of Latvia as an independent state. It was not only the period after the collapse of the Russian empire but also after civil war and a period of more than a year during which the government of the democratic Latvian state functioned alongside the government of the Latvian Socialist Soviet Republic. However, the Constituent Assembly did not consider it necessary to connect the right to vote with being in one or another position of the previous regime or during the fighting for freedom. Besides, the norms of the Constituent Assembly Election Law which in 1919 were adopted by the National Council were analogous. There is no reason to consider that under the present circumstances – ten years after the renewal of the independence of Latvia, at the time when Latvia is a fullfledged member of the UN, a member state of the Council of Europe and the OSCE, has started talks on joining the European Union and strives to join the NATO, the democratic system, national security and territorial unity of Latvia are more endangered than during the first years after the establishment of the state of Latvia or the renewal of the independence of the state of Latvia. 5. From the very first days of its foundation, the state of Latvia has upheld democratic values; besides, it has always connected the understanding of the notion “democracy” with the experience of other democratic states. In 1918 the newly formed Provisional Government declared that its objective with regard to the political and civic values “is to ensure welfare of the state by providing all rights of a democratic

state to the inhabitants of Latvia. With a persistent will the government will implement the rights which all democratic states are enjoying to its citizens”. (Latvijas Pagaidu Valdības mērķi // Latvijas valsts pasludināšana 1918. gada 18. novembrī, Riga, 1998, p. 153). The Provisional Government also declared that it “does not want to practise the policy of suppression but to observe the principles of a contemporary democratic state” (ibid, p. 154). The members of the Constituent Assembly, when drafting and discussing the Satversme have repeatedly referred to the experience of the democratic states of that time, thus confirming the generic link of the system to be set up in Latvia with other progressive states. The members of the Supreme Council of the Republic of Latvia made use of an identical approach when renewing the state of Latvia de facto and the authority of its Satversme. There is no reason to consider that the notion of democracy incorporated in Article 1 of the Satversme should be interpreted differently from the understanding of this concept in most democratic states. Quite to the contrary, it has to be interpreted in compliance with the contents ascertained by the experience of democratic states. When starting its talks about joining the European Union, Latvia has undertaken the obligation to observe the interpretation of legal norms acknowledged by democratic states, including the contents of the principles of a state based on the rule of law. To comply with Articles 69 and 70 of the Association Treaty of Latvia and the European Union of 12 June 1995, Latvia has to not only approximate the texts of its legislative acts with the texts of the legal norms of the European Union, but also to adopt the Western legal theory, namely, the legal thinking, because only then the legislation which has been approximated on the textual level will function in practice the same way as it does in the European Union. A unified legal understanding in line with the European traditional legal culture is one of the preconditions for the functioning of the European Union. (see Levits E. Latvijas un Eiropas Savienības tiesību sistēmu tuvināšana un tiesiskas valsts principu īstenošana // Latvija un Eiropas Savienība, 1997, no. 6, pp. 30-45). On 2 February 1995 by adopting the law “On the Statute of the Council of Europe” the Saeima accepted and confirmed this statute. Therefore the aim expressed in Article 1(a) of the Statute of the Council of Europe – to achieve greater unity between the members of the Council of Europe “for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic and social progress” – is binding on Latvia. Pursuant to Article 1(b) of the statute this aim shall be pursued “through the organs of the Council by discussion of questions of common concern and by agreements and common action in economic, social, cultural, scientific, legal and administrative matters and in the maintenance and further realisation of human rights and fundamental freedoms. According to Article 3 of the Statute of the Council of Europe Latvia has taken upon itself to accept the principles “of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms”, and to collaborate sincerely and effectively in the realisation of this aim. At the beginning of the nineties issues connected with overcoming the consequences of the totalitarian regime and transition to a democratic state have been dealt with in most post-socialist member states of the Council of Europe. The judgment correctly notes that the above experience has been summed up in Resolution no. 1096 (1996) of the Parliamentary Assembly of the Council of Europe “On Measures to Dismantle the Heritage of Former Communist Totalitarian Systems”.

Separate opinion in the case no. 2000-03-01

Although the viewpoint expressed in resolutions of the Parliamentary Assembly of the Council of Europe and the documents of its committees is only a recommendatory one and not directly binding on Latvia, the commitments undertaken by Latvia when it confirmed the Statute of the Council of Europe should be taken into consideration. Besides, the opinion expressed by the Parliamentary Assembly of the Council of Europe and its committees is based on extensive and analytical compilation of the experience of the member states. Thus, these documents may be used as a supplementary source of the rights, when interpreting the notion of democracy and legal principles resulting from it enshrined in Article 1 of the Satversme. Other constitutional courts also make use of these documents when interpreting the constitutions of their states (see the decision of the Polish Constitutional Tribunal of 10 November 1998 in the case no. K 39/97). 5.1. The content of the above-mentioned Resolution has been used in the judgment of the Constitutional Court, without revealing the whole viewpoint expressed in it. With regard to the impugned norms one should take into consideration not only the face that the Resolution supports the need to eliminate the heritage of the former regime and avert its “velvety” renewal but also the fact that a democratic state based on the rule of law “must, in dismantling the heritage of former communist totalitarian systems, apply the procedural means of such a state. It cannot apply any other means, since it would then be no better than the totalitarian regime which is to be dismantled”. Furthermore, the Parliamentary Assembly has stressed that “these restrictions comply with the principles of a democratic state if certain conditions are observed.” These conditions are formulated in a document of the Committee on Legal Affairs and Human Rights of the Council of Europe no. 7568 “Ensuring that Lustration Laws and Administrative Measures Comply with the Requirements of a State Based on the Rule of Law.” The judgment reflects on this document incompletely. It criticises the condition on the term of five years, without taking into consideration much more important and fundamental conditions: the impermissibility of applying lustration to elected institutions, the inadmissibility of a collective responsibility and the need of guaranteeing fair defence. 5.2. The above-mentioned document of the Committee on Legal Affairs and Human Rights of the Council of Europe stresses that “lustration shall not apply to elective offices, unless the candidate for election so requests — voters are entitled to elect whomever they wish (the right to vote may only be withdrawn from a sentenced criminal upon the decision of a court of law — this is not an administrative lustration, but a criminal law measure)”. This recommendation corresponds to the viewpoint of the founders of the State of Latvia and the authors of the Satversme, who under similar circumstances did not include in the Election Law of the Constituent Assembly and the Saeima Election Law any restrictions with regard to officials of the former regime or persons who had actively fought against the formation and existence of a democratic, independent Latvia. The case-law of the German Federal Constitutional Court has been referred to in the judgment without analysing the substance of the case by disregarding the context. The quote “he who has spied on and oppressed his own people, who has deceived, betrayed and cheated or who is responsible for it all, shall have no place in the Bundestag even if one cannot deprive him of his mandate” is not the opinion of the Court but just a fragment from the speech of the member of the Bundestag Wiefelspütz, which was included in the judgment to illustrate the objective of the respective norm – the self-purification of the Parliament. There does not exist a prohibition to elect to the

Bundestag of the German Federal Republic employees or agents of the former security institutions of the German Democratic Republic. The case of the Federal Constitutional Court of the GFR that is cited in the judgment of the Constitutional Court pertained only to the compliance with the Basic Law of the procedure determined by the Bundestag to establish whether a member of the Bundestag has co-operated with the respective institutions of the GDR and the fact that the Bundestag has adopted such a procedure. This procedure results neither in losing the mandate of a member of the Bundestag nor in a prohibition to be nominated as a candidate in the next elections. If it is established that the person had co-operated with the security institutions of the GDR, the member of the Bundestag himself on the basis of his conscience decides whether to continue his work at the Bundestag and the voters make the decision on the work of this member at the next convocation of the Bundestag. 5.3. The Committee on Legal Affairs and Human Rights of the Council of Europe has stressed that in a state based on the rule of law no person should be subjected to lustration just because of ties to or activity in an organisation, which was legitimate at the time (naturally, this does not apply to individuals who issued orders, the execution of which violated human rights). Besides, the principle of impermissibility of collective responsibility is also stressed. Paragraphs 6 of the impugned articles, however, impose restrictions on all the persons who had been engaged in the enumerated organisations, without evaluating if the activity of every particular person had been directed against the Republic of Latvia and how the detriment to the state materialised. It is correctly stressed in the judgment that only “formal membership in any of the above organisations by itself cannot serve as a reason to forbid a person to be included in the candidate list and to be elected to the Saeima.” However, the judgment comes to an incorrect conclusion that “the legislator has connected restrictions with the degree of individual responsibility of every person in realisation of the aims and programme of these organisations. The restriction to be elected to the Saeima or a local authority, which is included in the impugned norms, is connected with the activities of a specific person in the respective socio-political organisations.” There is reason to the opinion of the petitioner that traits of collective responsibility can be seen in paragraphs 6 of the impugned articles. Even if a fact is established by a court, it does not mean that the right of a person to a fair trial has been duly implemented. The person is not given the possibility to submit substantive explanations about their activities and the court does not have the possibility to assess the extenuating circumstances with respect to these activities. 5.4. The judgment quotes the recommendation of the Committee on Legal Affairs and Human Rights of the Council of Europe: “disqualification for office based on lustration should not be longer than five years, since the capacity for positive change in an individual’s attitude and habits should not be underestimated; lustration measures should preferably end no later than 31 December 1999, because the new democratic system should be consolidated by that time in all former communist totalitarian countries” In this connection it is pointed out in the judgment that the socio-political situation of every state should be assessed individually. However, no reasons are given as to why the democratic system in Latvia should be considered as so very unstable that it is endangered by persons who were against the independence of Latvia almost ten years ago. The judgment also contains no reasoning as to why it is exactly in Latvia that the legislator excludes the possibility of positive changes in the attitude and habits of the persons who are mentioned in the impugned norms.

Separate opinion in the case no. 2000-03-01

When assessing the compliance of the impugned norms with the Covenant, the fact that Article 25 of the Covenant shall be interpreted together with Article 26 has not been taken into consideration in the Judgment. Article 26 provides that “all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Pursuant to the comment of the UN High Commissioner for Human Rights, accepted at the 37th session of the UN Human Rights Committee on 10 November 1989, “the Committee believes that the term “discrimination” as used in the Covenant should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.” This aspect has been neither analysed nor assessed in the judgment and no reasons are given as to why the passive election rights of the persons mentioned in the impugned norms have to be restricted. When assessing the compliance of the impugned norms with the Convention, it has not been taken into account that even though Article 14 has a supplementary character, the practice of the European Court of Human Rights acknowledges also its autonomous meaning. The autonomous status of this article means that even if none of the substantive provisions of the Convention have been violated, the prohibition against discrimination might nevertheless be violated (see Law and Practice of the European Convention on Human Rights and the European Social Charter, Council of Europe Publishing, 1996, pp. 346-350). Even though Article 3 of Protocol no. 1 to the Convention does not directly apply to municipal elections, one should take into consideration that the procedure and criteria that apply to the elections of the legislator – the parliament – are mutually connected with the procedure of municipal elections. If the peculiarities of municipal elections do not require otherwise, the restrictions which are well-founded or impermissible with regard to the elections of the parliament, should be also considered as such with regard to municipal elections. Besides, in compliance with the law “On the European Charter of Local Self-Government of 15 October 1985” and Article 3(2) of the said Charter, Latvia has undertaken an obligation to ensure that the rights guaranteed by the Charter are “exercised by councils or assemblies composed of members freely elected by secret ballot on the basis of direct, equal, universal suffrage”. Thus, even though Article 3 of Protocol no. 1 to the Convention does not directly apply to municipal elections, the compliance of this law with Article 14 of the Convention is to be examined. The compliance of the Saeima Election Law with Article 14 of the Convention is to be assessed in conjunction with its compliance with Article 3 of Protocol no. 1 to the Convention. One should also take into account the logical development of the Convention, namely the transformation of the norms incorporated in Article 14 into Protocol no. 12 to the Convention, the draft of which has been accepted at the Committee of Ministers of the Council of Europe and will be signed in Rome in November of 2000. Article 1 of this protocol will envisage a general prohibition of discrimination, i.e. the prohibition of discrimination independently from rights and freedoms guaranteed by the Convention and its Protocols.

Article 116 of the Satversme enumerates aims which are legitimate in a democratic society when imposing restrictions to the fundamental rights: rights of other people, a democratic state system, public safety, welfare and morality. Paragraphs 2 of Articles 8 to 11 of the Convention envisage analogous aims. Namely, Article 8(2) of the Convention permits restrictions “in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 9(2) allows restrictions “in the interests of public safety, for the protection of public order, health or morals or for the protection of the rights and freedoms of others”. Article 10(2) authorises restrictions, which are necessary “in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” Article 11(2) in its turn permits restrictions which are necessary “in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of the others.” It is stated in the judgment that “the aim of the restrictions of the passive election rights is to protect the democratic state system, national security and the territorial unity of Latvia”. However, the content of these notions is not explained and it has not been proved that by electing the persons mentioned in the impugned norms to the Saeima or a municipal council, the invoked values would indeed be threatened. The protection of the democratic state system is one of the legitimate aims of restrictions of human rights mentioned in Article 116 of the Satversme, as human rights may not be used against the democratic state system as such. In compliance with the principle of self-defensive democracy, the democratic state system has to be protected from attempts to abolish it or to hinder its functionality. However, it has not been indicated during the hearing of the or in the judgment in what way the persons mentioned in the impugned norms, were they to be elected to the Saeima or to a municipal council, could endanger the democracy in the state. It was also not proved that these persons have any possibility of endangering democracy at this moment – ten years after the adoption of the declaration “On Renewal of the Independence of the Republic of Latvia” and nine years after de facto renewal of the state. Besides, the persons who had been active in the organisations mentioned in paragraph 6 of the impugned norms had the right to be elected to the Saeima. Many persons to whom the restrictions are applied now had been elected to the 5th Saeima, as the law “On the Elections to the 5th Saeima” did not include analogous restrictions. It does not matter whether a proposal to include analogous restrictions in the law “On the Elections to the 5th Saeima” had been expressed in the Supreme Council. The Constitutional Court should not review which members of the Supreme Council voted against those restrictions and why. For the purposes of the present case essential is only the fact that the restrictions were not included in the law. The Law on Elections of City Councils, Municipality Councils and Rural Councils as it was in force during the municipal elections of 1994 also did not contain analogous restrictions. Many of the persons who in compliance with paragraphs 6 of the impugned articles are currently denied the passive election rights were engaged in the activities of the 5th Saeima and the municipal councils elected in 1994 without causing threat to the state and public

Separate opinion in the case no. 2000-03-01

security. There are no references in the judgment to circumstances which have changed in such a way that the persons whose activity in the 5th Saeima or municipal councils did not threaten the state security would cause danger if they were to become members of the future Saeimas or municipal councils. The content of the legitimate aim “public safety” is extensive and includes also the territorial integrity of Latvia, which is mentioned in the judgment as one of the aims for imposing the restrictions. “Public safety” means safeguarding of the interests of the society. In a democratic state this notion means the protection of life, liberty, health, honour and property of a person. The text of the judgment does not state the means and ways of the potential threat to the public safety. At the hearing of the Court the representative of the Saeima only named public safety (interests of national security and territorial integrity of Latvia) as the main legitimate aim of the restrictions incorporated in the impugned norms. However, he did not explain the content of this aim. It is not enough to simply name a legitimate aim without explaining how and by what means the persons mentioned in the impugned norms might to threaten the public interests (human life, liberty, health, honour and property). The need to protect a democratic state system from “persons who are ethically not qualified to become representatives of a democratic state on the political or administrative level” has been named as an aim of the restrictions. The representative of the Saeima substantiated this aim by referring to two cases reviewed at the European Court of Human Rights. His reference is ill-founded, as both these cases had been connected with restrictions of rights of civil service officials – a teacher and a policeman (see the decisions of the European Court of Human Rights in the cases “Vogt v. Germany” and “Rekvenyi v. Hungary”). Restrictions imposed on officials – i.e. persons, who are appointed and not elected – established by the legislator in a democratic state may be more extensive than those that pertain to persons who are elected in direct elections. The judgment makes an ill-founded reference to the publication by N. Horn “Introduction to Legal Science and Philosophy of Law” and states that “law should be ethical”. The cited chapter of the publication discusses the role of religion in the society and problems related to it. Thus these ideas are not applicable to restrictions of human rights because of ethical aims. Very often standards of morals are much broader than the ones determined by legal norms. “By using legal norms the law can implement only a limited part of the norms of morality. A great part of these norms of morality have been left unregulated in the name of the freedom of an individual person” (see Horns N. Ievads tiesību zinātnē un tiesību filosofijā //Likums un Tiesības, 2000, vol. 2, no. 2, p. 47). While it can be accepted that the state and the society cannot exist without universally recognised norms of ethics (morality), it should be stressed that such norms may not be used to deprive the persons mentioned in the impugned norms of the passive election rights. It is difficult to incorporate new social and ethical norms into a legal normative form. If such a normative protection is exaggerated, it may become undemocratic. As concerns members of elected institutions, the voter is the one who should make a decision on whether the candidate meets the ethical requirements. Certainly, the voters should have enough information on the activities of the candidate in the organisations mentioned in the impugned norms. Besides, the Latvian electoral system gives voter the opportunity to express their individual attitude to every candidate of the list they are

voting for. Thus, the voters themselves may decide whether the candidate is ethically acceptable. In the Western democracy the notion “necessary in a democratic society” establishes the balance between the interests of an individual and those of the society. In a democratic society restrictions are necessary if they are socially needed and proportionate. The opinion expressed in the judgment that currently there is no question the proportionality of the applied measure with the aim has not been proved. It is not in conformity with the approach of a state based on the rule of law to the issue of restrictions of human rights. Both the legislator and the Constitutional Court had to assess whether proportionality had been observed and whether the restrictions were socially necessary in the democratic society. Besides it had to be proved that restrictions still complied to these criteria at the moment of pronouncing the judgment, more than ten years after the declaration “On the Renewal of the Independence of the Republic of Latvia” was adopted. Restrictions are proportionate only if they not only serve in achieving the aim but are also necessary for achieving it. The benefit gained by the society when imposing the restrictions on human rights should be greater than the harm done to interests of an individual. The judgment does not take into consideration that the passive election rights of the persons mentioned in the impugned norms have been restricted to such an extent that in fact the respective persons do not enjoy this right at all. Restrictions of fundamental rights are proportionate only if there are no other means which are as effective but would restrict fundamental rights to a lesser extent (see Handbuch des Verfassungsrechts der Bundesrepublik Deutschland, Berlin, 1995, S. 155). To achieve the benefit the society could gain from the restrictions included in the impugned norms, the legislator had the possibility of using other, “softer”, forms, e.g. to apply the restrictions of the passive election rights only to those persons who in due time had not declared their membership in the organisations mentioned in the impugned norms. Thus, the restrictions incorporated in the impugned norms do not comply with the principle of proportionality. In a democratic society restrictions of human rights correspond to a social need only if without such restrictions the interests of the society on the whole would be significantly affected. If voters are informed about the connection of the candidates to the organisations mentioned in the impugned norms, the interests of the society are not affected, as, on the one hand, the persons mentioned in the impugned norms have the right to be candidates for the Saeima and municipal councils but, on the other hand, the voter has the right to choose whether to trust these persons. The final choice is in the hands of the voter. In a democratic state any voter should be trusted to choose and assess the candidates. The judgment does not prove that there exists a social need to impose restrictions of the passive election rights on the persons mentioned in the impugned norms. In order for there to be a social need to impose human rights restrictions, the suspicions that a person might endanger the public safety, should be substantiated by facts. Thus, it is not proved in the judgment that the restrictions of human rights contained in the impugned norms are necessary in a democratic society. Taking into consideration the above, we, the judges of the Constitutional Court A. Endziņš, J. Jelāgins and A. Ušacka, disagree with the opinion expressed in the judgment that Article 5(5) and (6) of the Saeima Election Law and Article 9(5) and

Separate opinion in the case no. 2000-03-01

(6) of the Law on Elections of City Councils and Municipality Councils comply with Articles 89 and 101 of the Satversme, Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 3 of the First Protocol of this Convention as well as Article 25 of the International Covenant on Civil and Political Rights.

Judge of the Constitutional Court Judge of the Constitutional Court Judge of the Constitutional Court

A. Endziņš J. Jelāgins A. Ušacka

2001-04-0103

On reproducing personal names

Reproducing foreign personal names in Latvian in personal identity documents Personal names as an element of private life and reproducing of foreign personal names in Latvian as a restriction on private life were examined. Personal names are linked to a person’s sense of identity, as well as to his private and personal life. However, personal names are used not by only their owners but by the entire society, therefore personal names must be regulated to serve the needs of the society and the convenience of other persons. The role of the Latvian language in Latvia was analysed. During the 20th century, the number of Latvians decreased throughout the territory of the state, and in some larger cities Latvians remain a minority, and the Latvian language only recently regained the status of the official language. Moreover, Latvia is the only place in the world where the existence and development of the Latvian language and, thus, of the Latvian nation can be guaranteed. Since the writing of foreign personal names in the original spelling poses a genuine threat to the quality of the Latvian language and the function of the Latvian language in Latvia’s society, these names must be reproduced in Latvian.

JUDGMENT in the name of the Republic of Latvia in the case no. 2001-04-0103 Riga, 21 December 2001 The Constitutional Court of the Republic of Latvia in the following composition: the chairman of the hearing of the Court Aivars Endziņš, judges Ilma Čepāne, Romāns Apsītis, Juris Jelāgins, Andrejs Lepse, Ilze Skultāne, and Anita Ušacka, with the secretary of the hearing of the Court Egija Freimane in the presence of Jautrīte Briede – the representative of the petitioner Juta Mencena and the representatives of the institutions that have adopted the impugned acts, namely – the head of the Legal Bureau of the Saeima [the Parliament] Gunārs Kusiņš and the representative of the Cabinet of Ministers Solvita Harbaceviča – the deputy secretary of state of the Ministry of Justice, on the basis of Article 85 of the Satversme [the Constitution] as well as Article 16(1) and (3) and Article 17(1)(11) of the Constitutional Court Law, in a public hearing in Riga, on 21 December 2001 reviewed the case “On the compliance of Article 19 of the State Language Law and the Regulations of the Cabinet of Ministers of 22 August 2000 no. 295 “Regulations on Spelling and Identification of Names and Surnames” with Articles 96 and 116 of the Satversme of the Republic of Latvia”.

JUDGMENT in the case no. 2001-04-0103

The Constitutional Court

establ ished:

On 13 July 2001 Juta Mencena (henceforth – the petitioner) submitted a constitutional complaint to the Constitutional Court, because after concluding marriage with a citizen of the German Federative Republic Ferdinand Carl Friedrich Mentzen the Department of Citizenship and Migration Affairs issued her a passport, in which her surname was spelled Mencena. On page 14 of the passport it was indicated in English that the original form of this surname was Mentzen. Before that, on 3 December 1999, the petitioner, believing that the Latvian version of her surname noticeably differed from her husband’s surname, which could cause problems with proving her identity, addressed a claim on illegal activity of a state official official to the Riga City Centre District Court. On 23 March 2000 the Riga Centre District Court dismissed the claim because the petitioner’s passport had been drawn up in conformity with the requirements of the law. The original German surname “Mentzen” had been reproduced in the passport in compliance with the orthographic norms of the Latvian literary language as well as in conformity with the regulations on reproduction of German proper nouns as near as possible to the German pronunciation of the surname – Mencena. The Court additionally based its opinion on the report no. a-016447 of the State Language Advice Department of the Latvian Language Institute of the University of Latvia of 21 December 1999 on the Latvian spelling of the surname Mentzen. On 12 April 2000 the petitioner submitted an appeal to the Riga Regional Court. On 24 October 2000 the Riga Regional Court dismissed the petitioner’s claim about the illegal activity of the official of the Department of Citizenship and Migration, since it found that the court of the first instance had motivated its conclusions about the facts of the case and the application of the substantive provisions of the law in accordance with the requirements of the law. On 30 November 2000 an appeal on points of law with regard to the appellate court decision was submitted to the Civil Cases Department of the Senate of the Supreme Court. On 31 January 2001 the cassation court reached the decision that the appellate court had had a reason to consider that the private and family life of the petitioner had not been interfered with. As the appeal on points of law did not incorporate any substantially new arguments on the basis of which the appellate court’s decision could be altered, the appeal on points of law was dismissed. The petitioner in her complaint requests the Constitutional Court to declare Article 19 of the State Language Law (henceforth – the Language Law) and the Regulations of the Cabinet of Ministers of 22 August 2000 no. 295 “Regulations on Spelling and Identification of Names and Surnames” (henceforth – Regulations no. 295) contrary to Articles 96 and 116 of the Satversme of the Republic of Latvia. The petitioner considers that the Language Law and Regulations no. 295 on the basis of which the entry was made in her passport, violate the fundamental rights of an individual, established by Articles 96 and 116 of the Satversme. Article 96 of the Satversme provides for the right to the inviolability of the private life, yet the reproduction in Latvian of the surname the petitioner had acquired after marriage interfered with her private life. The petitioner has also referred to judgments of the European Court of Human Rights (cases Stjerna v. Finland and Burghartz v. Switzerland), which acknowledge that the name of the person forms part of private life.

In the application it is stressed that spelling of the surname which does not correspond to its original form interferes with the private life of the petitioner. For example, the German officials had not taken into consideration the entry on page 14 of the passport, therefore difficulties had arisen with her registration of residence. In the application it is pointed out that according to Article 116 of the Satversme the right to the inviolability of private life may be limited only in order to protect the rights of other people, the democratic state system, public safety, welfare and morals. The petitioner holds that the reproduction of a surname in Latvian does not achieve any of these aims, therefore this interference with the private life is not legitimate. Besides the petitioner states that the interference is not proportional, since the interference with her rights is more substantial the benefit the state gains from it. On 4 October 2001 the claim to the Constitutional Court was supplemented with a request to also declare incompatible with Articles 96 and 116 of the Satversme Article 6 of the Regulations of the Cabinet of Ministers of 24 October 995 no. 310 “Rules Concerning the Passports of Citizens of Latvia” (henceforth – Regulations no. 310), which regulates the spelling of names and surnames in passports. The Saeima in its written reply alleges that the Language Law complies with Articles 96 and 116 of the Satversme. The Saeima has pointed out that the impugned article of the law consists of three parts. The first part states that there exist traditions of reproducing personal names in Latvian and determines that personal names shall be spelled in accordance with the norms of the literary language norms in force. The existence of Latvian language traditions and literary norms cannot in itself contradict the Satversme. From Article 19(2) it allegedly follows that the original form of a foreign personal name may differ from the Latvian language norms. In this case, these names shall be spelled in accordance with the Latvian language norms in force. Besides, the above demand refers only to official personal identification documents, such the passport and the birth certificate, which are issued in Latvia. This ensures that personal names are reproduced in accordance with a unified system. The interest of the society to retain the system is well-founded, as the will of one person not to comply with the norms of spelling of personal names in force might serve as a reason for other persons to advance similar requests. Therefore the spelling of names is not the private affair of one person but concerns the interests of the whole society. Besides Article 19(2) offers a possibility of indicating in the above-mentioned documents the original form of the personal name “in addition to the person’s name and surname”. The Law does not indicate a specific way of how such an inscription is to be made. To regulate the spelling and usage of foreign personal names in Latvian, Article 19(3) delegates the Cabinet of Ministers to establish corresponding regulations. Such a delegation of authority may not in itself be regarded as being contrary to legal norms of a higher legal force. In its written response the Saeima states that Article 116 of the Satversme as well as Article 8(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms permit limitations of the inviolability of private life in order to protect the rights of others. The use of personal names concerns the interests of the entire society because a unified system of spelling and usage of personal names is needed. The possibility to recognize personal names and hence also persons also allegedly serves the interests of the society.

JUDGMENT in the case no. 2001-04-0103

The Saeima stresses that the interference in question ought to be considered as socially necessary and that the benefit gained by the society from retaining the existence of the current approach to the reproduction of personal names is more significant than the restriction of a person’s rights. The Cabinet of Ministers in its written reply points out that Regulations no. 295 have been adopted in accordance with the Language Law. These regulations provide the rules for one of the two possible in linguistics principles of reproduction of personal names of other languages, namely, transcription, which means that names are reproduced according to their pronunciation and not according to their spelling (transliteration). States usually choose one of these two principles to reproduce personal names. In the written reply it is admitted that difficulties may arise in using either of the two the principles. In this particular case the difficulties result from the section of the passport in which the original form of the personal name has been entered and not from the principle of reproduction. Regulations no. 295 envisage only the procedure for spelling and using a person’s name and surname in Latvian language as well as the way of reproducing and identifying them in documents. In its written reply the Cabinet of Ministers stresses that Regulations no. 295 restrict a person’s rights in order to protect the democratic state system and essential rights of other people. Taking into consideration the fact that the state language status of the Latvian language has been provided for in the Satversme, as well as the specific features of the historic development of Latvia, any restriction of the usage of the Latvian language in the territory of Latvia should be regarded as a restriction of the democratic system of the state. Regulations no. 295 are allegedly necessary to insure the right of the residents of Latvia to freely use Latvian in the whole territory of Latvia. The right of the society to use correct and cultivated Latvian language derives from Article 4 of the Satversme. This norm is the legal basis of using Latvian language in the documents issued by the Republic of Latvia. In the written reply of the Cabinet of Ministers it is pointed out that, when assessing the proportionality of the restrictions, one should take into consideration the way and the extent in which the impugned norms may create difficulties for a person. Since the impugned norms envisage the possibility of entering into the passport both the reproduced form of the personal name and the original form of the name and surname, it has been ensured that no misunderstandings are possible. Besides, the incompetence of individual civil servants and the baseless refusal to acknowledge the record entered on page 14 of a passport (which is a document of identification) is not a sufficient argument to find a violation of the principle of proportionality. The Cabinet of Ministers considers that paragraph 6 of Regulations no. 310, which provides that the personal name and surname in its original form shall be entered in the passport under the heading “special notes” is not contrary to the Satversme, since such an interference with the private life is proportional with the protected interests of the society and state. In the written reply it is pointed out that in accordance with the general practice the Cabinet of Ministers is competent to determine that the original form of the personal name is to be included in the passport under the heading “special notes”, therefore the Cabinet of Ministers has specified the guidelines established by the legislator. The reason for establishing such a norm is related to the International Convention on Civil Aviation (henceforth – the Convention), which the Supreme Council of the Republic

of Latvia ratified on 3 June 1992. In compliance with the Convention and taking into consideration the document “Machine readable travelling documents” (henceforth – Document 9303), which incorporates the requirements for travelling documents of the International Civil Aviation Organization – ICAO, the state undertakes to standardise the personal data entered into passports. Document 9303 provides that in the visual inspection zone of the passport the person’s name is to be recorded by using the spelling of the issuing state. Therefore the section of the passport with the heading “special notes” was chosen as the only possible place for entering the original spelling. By determining the place in the passport for entering the original form of the name and surname, the Cabinet of Ministers first of all wished to protect the right to private life, since all officials have to take into account all the data of the passport, including those which are indicated in the section for “special notes”, like the confirmation of the fact of the registration of a person’s marriage and the registration of their residence. Secondly, when establishing that the original form of a person’s name and surname ought to be entered in the section under the heading “special notes”, the Cabinet of Ministers has taken into consideration the international standards, the technical possibilities and the need to prevent misunderstandings. In the written reply it is stressed that the Republic of Latvia is neither materially nor technically able to enter the original form of all persons’ surnames into the personal data page of the passport. To their mind such a demand is not proportional, because the legal consequences of entering the original form on the personal data page or in the section under the heading “special notes” are the same. The Cabinet of Ministers considers that the only benefit for the person the original form of whose surname would be entered on the data page of the passport would be rather emotional than legal. Besides it is pointed out in the written reply that that new citizen passports have been designed and ordered. In those passports the original form of the person’s name and surname will be indicated on page 5, on the next page after the personal data page. Thus the emotional attitude of a person to the spelling of their name or surname as well as the placement of the corresponding record will be taken into consideration. […] After assessing the compliance of the impugned acts with the Satversme, the Constitutional Court concluded: 1. Article 96 of the Satversme guarantees the right of everyone to the inviolability of private life. A person’s name distinguishes them from other people. In its turn, the surname is a family name, which is inherited from generation to generation and indicates family links. The name and surname ensure the existence of a person as an independent part of the society. On the one hand, a person’s name and surname is closely linked with their sense of identity, and thus – with their private and family life. On the other hand, not only persons themselves use their names and surnames. A person’s name and surname have an important social function – they allow to identify the person. Therefore it is important for the society to ensure that neither the individual nor state institutions will arbitrarily change the obtained name and surname. The system of surnames has been introduced just for the convenience of the society. The European Court of Human Rights in its judgments has also acknowledged the connection between a person’s name and their private life and the fact that a name is a form of identifying a person which establishes the connection of a person with a family. To a certain extent it also concerns the right of developing relations with the others (see Stjerna v. Finland, Burghartz v. Switzerland).

JUDGMENT in the case no. 2001-04-0103

Because a person’s name and surname form a part of the private life of that person, they are protected by Article 96 of the Satversme. 2. The petitioner acquired the surname Mentzen in Germany, after her marriage to a German citizen. The state of Latvia when issuing a new passport to the petitioner – a citizen of Latvia – reproduced the surname she had acquired after her marriage as Mencena. The surname has been reproduced in compliance with the Language Law, which provides that “personal names shall be reproduced in accordance with the traditions of the Latvian language and shall be spelled in accordance with the norms of literary language currently in force”. As the spelling of the reproduced surname differs from the spelling of its original form, the surname entered into the passport of the petitioner differs from the spelling of her husband’s surname and the spelling of their shared surname entered in their marriage certificate. The Constitutional Court agrees to the petitioner’s statement that the reproduction of her surname concerns her. The fact that the spelling of the reproduced surname differs from that of her husband’s surname causes her psychological discomfort and creates social inconveniences. Complications in her everyday life are occurring as she has to give additional explanations concerning her ties with her spouse. Misunderstandings are averted but it takes some time. Getting married is one of the ways by which a person may acquire another surname. From the moment the newly acquired surname has been entered into the marriage certificate the person obtains both the right and the duty to use this surname to identify herself. One of the basic social functions of the name and surname is to guarantee the possibility to identify the person and to determine the ties of the bearer of the name with a family. Taking into account both – the petitioner’s psychological attitude to the reproduced surname and the everyday difficulties that occur, especially when abroad, for other persons with determining her ties with her family, as well as taking into consideration the fact that the stability of one’s surname concerns not only the private life of a person but also the interests of the society, the rule on reproduction of a foreign personal name (surname) in accordance with the traditions of the Latvian language and its spelling in accordance with the norms of Latvian language in passports issued by Latvia shall be considered as a restriction of private life. 3. Article 116 of the Satversme provides that the right to inviolability of private life may be restricted in cases prescribed by law in order to protect the rights of other people, a democratic structure of the state, and public safety, welfare and morals. 3.1. The requirement of the Language Law that “personal names shall be reproduced in accordance with the traditions of the Latvian language and shall be spelled in accordance with the norms of the Latvian language currently in force” is further specified in Regulations no. 295, which envisage that “names and surnames of foreign origin shall be reproduced in Latvian (i.e. spelled, using Latvian letters and sounds) as close as possible to their pronunciation and in accordance with the rules on reproduction of foreign proper nouns”. Thus the authorized Latvian institution when issuing the passport with the reproduced surname Mencena to the petitioner has acted in compliance with the Language Law and Regulations no. 295. Consequently the restriction of the petitioner’s private life has been provided by law and specified by Regulations of the Cabinet of Ministers.

3.2. The petitioner’s submission that the reproduction of her surname in Latvian does not achieve any of the legitimate aims is unfounded. Personal name forms a part of the language and the rules for their use impact the entire language system. From the case file it derives that the petitioner is in effect challenging the very principle of reproduction of foreign personal names that is characteristic to the Latvian language. Therefore, when assessing, whether the restriction of the private life has a legitimate aim, the role of the Latvian language in Latvia has to be taken into consideration. Article 4 of the Satversme, which determines that the state language of the Republic of Latvia is Latvian, grants its constitutional status. The constitutional status of the state language strengthens the legal justification of its use in documents issued by the Republic of Latvia. Taking into consideration the fact that a passport of a Latvian citizen is an official document, which not only identifies a person but also confirms continuous legal ties between the person and the state, a person’s name and surname has to be written in the state language. Article 4 of the Satversme is also the legal basis for the right of the Latvian inhabitants to use the Latvian language when communicating orally or in writing. The Constitutional Court agrees to the findings of the expert I. Druviete that a person’s surname is used not only by the person themselves but also by the society in general; therefore the surname ought to be regulated exactly for the convenience of the society and of other people. Taking into account the historical features and the fact that the number of Latvians living in the territory of the state has decreased during the 20th century, the fact that in certain of the biggest cities, including Riga, Latvians still form a minority (see The Statistical Yearbook of Latvia, 2001, Riga, CSP, 2001, p. 41) and that the Latvian language has only recently regained its status as the state language, the necessity of protecting the state language and strengthening its use is closely related to the democratic system of the Latvian state. Taking into consideration that the state language status of the Latvian derives from the Satversme and the fact that in the era of globalization Latvia is the only place in the world where the existence and development of the Latvian language and together with it the existence of the principal nation may be guaranteed, the decreased use of the Latvian language as the state language in the territory of the state is to be regarded as a threat to the democratic system. The Constitutional Court of Lithuania has also found that the state language maintains the identity of the nation, unites it and ensures the manifestation of the national sovereignty as well as the indivisibility of the state (see the judgment in the case no. 14/98 “On writing of names and family names in passports of citizens of the Republic of Lithuania” (1999)). Hence the private life of the petitioner is restricted in order to protect the right of other inhabitants of Latvia to freely use the Latvian language freely in the entire territory of Latvia and to protect the democratic state system. Therefore the restriction of the petitioner’s private life has legitimate aims. 4. In order to assess the necessity of the established restriction, it is necessary to verify whether the interference of the state with the petitioner’s private life is proportionate to the legitimate aims. 4.1. The inviolability of a person’s private life is one of the fundamental values of a democratic society. However, in a society there are limits also to the right to inviolability of private life. The Constitutional Court has no doubts that the spelling of personal names in documents has a direct influence on other sectors of the use of the language, because they

JUDGMENT in the case no. 2001-04-0103

are closely connected. If it were allowed to spell foreign personal names in documents by using only their original form, it would be logical that they would be further used in other areas, as personal names are used in different kinds of texts. It is not possible to isolate the spelling of foreign personal names in documents from other sectors of language. That would create a genuine threat to the quality of the Latvian language and consequently to the functions of the Latvian language in the society of Latvia. From the case-file it can be seen that the restriction of their private life has not prevented either the petitioner or the witness to use their other rights, such as crossing the borders of their state and other states, making use of their voting rights, receiving mail. The discomfort that an individual has experienced in the daily life because of the surname reproduced in the passport cannot be regarded as a sufficient reason not to apply the rules deriving from the Language Law also to such an individual. The Constitutional Court considers that the threat to the functioning of the Latvian language as a unified system that would be caused if the spelling of foreign personal names in the documents only in their original form was allowed, is much greater than the discomfort a person may experience when using a passport in which their surname is reproduced according to the traditions of the Latvian language. In such circumstances the functioning of the Latvian language as a unified system is a social necessity in Latvia and not an arbitrary caprice of the state power. In certain situations the reproduction of the surname may complicate the identification of a person or establishing the ties of the holder of the surname with their family (spouse). Nevertheless, the interests of protecting the status of the Latvian language as the state language, and consequently the interests of protecting the democratic state system, justify such complications. 4.2. The petitioner’s submission that the surname she acquired through marriage has been altered is ill-founded. Reproduction of a personal name is not its translation into Latvian (it is not a Latvianisation of a personal name) but only its adjustment to the specific features of the Latvian grammar. There is a significant number of widely used writing systems in the world. From the differences between these systems objectively derives the fact that the preservation of the original when transferring from one writing system to another one is not possible. Because of differences in alphabets it is impossible to achieve an absolute conformity to the original, even between languages that use the Roman alphabet. From the very beginnings of the existence of the written Latvian language, reproduction of foreign proper nouns into Latvian has traditionally been done in accordance with their original pronunciation and not in accordance with their original spelling. In Regulations no. 295 gives a legal shape to this principle that is characteristic to the Latvian language of reproducing foreign personal names in accordance with their transcription or, in other words, the reproduction of names in accordance with their pronunciation in the source language. Both the Language Law and Regulations no. 295 refer to the norms of literary language. In conformity with the conclusion of the experts, the grammatical foundation of the Latvian language is its declensible endings. The endings indicate the gender of common names and proper nouns, the singular or the plural as well as the function of the word in the sentence. The declensible ending that is added to a person’s name indicates the gender of the bearer of the name. In many Indo-European languages (like English, German, French) personal names either have no grammatical gender at all or else the surnames of women and men do not differ in form. Therefore in those languages it is possible to incorporate into a sentence a foreign personal name in its original form that

does not adversely affect the grammatical system of the language. Whereas in Latvian a foreign personal name may be included into a sentence and understood only if it is spelled according to its pronunciation and if an ending is added to it. Thus the traditions of reproduction of foreign personal names are based on the specific features of the grammar of the Latvian language. Therefore it is impossible to agree with the statement of the petitioner that the interference with her rights is greater than the gain of the state. By such a restriction of the private life of a person the state furthers the stability of the system of the Latvian language. Under the particular historical circumstances of the state the observance of norms that correspond to the system of the Latvian language, are traditional and codified, in any sector (including the documents) of use and spelling of personal names is an integral part of the implementation of the state language status. The transition to another principle of spelling of foreign personal names, namely, to their spelling only in accordance with their original form at a time when the Latvian language as the state language is just consolidating could negatively influence this process. 4.3. To diminish the inconvenience caused by the reproduction of the person’s name the Language Law determines that “there shall be set out in a passport … in addition to the name and surname of the person … the original form of the personal name in a different language, transliterated in the Roman alphabet, if the person … so wish[es] and can verify such by documents.” The meaning of the phrase “in addition to” has been specified in Regulations no. 310. Paragraph 6 of the Regulations provides: “… if the person wishes, the original form of their name and surname shall be entered in the section of the passport for “special notes” on the basis of documents verifying the original form. The documents verifying the original form shall be submitted by the persons themselves.” In assessing the constitutionality of paragraph 6, attention first of all has to be paid to the fact that Regulations no. 310 have not been amended after the Language Law took effect. Therefore the notion “the original form of [the] name and surname” used in it includes also the original form of a foreign personal name. Secondly, paragraph 6 determines the place of the passport where the original form is to be entered, i.e. the section for “special notes”. This section is used for entering information for, inter alia, information on the registration of marriage and divorce, the registration of residence and departure from it, the participation in elections or referenda (see paragraph 8 of Regulations no. 310). As the reproduction of foreign personal names is to be regarded as a restriction of private life which causes not only psychological discomfort but also occasionally – when traveling or concluding agreements etc. – creates complications and misunderstandings, the application of this restriction which is provided by law should be as careful as possible and respect the individuality of a person and their family ties. However, on 10 November 1994 the director of the Citizenship and Immigration Department of the Ministry of the Interior issued Instruction no. 52 “Confirming the Procedure of the Application of “The Rules on Passports of Citizens of the Republic of Latvia”” (henceforth – the Instruction). Section 3 of the Instruction provides that the original form of the foreign personal name is to be entered only on page 14 of the passport, that is – after the other above-mentioned data. Besides, contrary to the second part of Article 19 of the Language Law and Regulations no. 310, paragraph 3.8 of the Instruction provides that this original form “may be entered” in the passport pursuant to a request of a Latvian citizen, if “the form has significantly changed in comparison with the former documents of the person”.

JUDGMENT in the case no. 2001-04-0103

Thus, by not amending the Instruction after the previously mentioned legislative acts took effect, it is possible even to ignore the requirement of an individual to enter the original form of the personal name in the passport. One cannot agree with the argument of the Cabinet of Ministers that it is impossible to enter the original form of a foreign personal name or a note that the original form may be found on another page of the passport in the so-called visual inspection zone 06/07/11 of the current Latvian passports (page 3) and the new passports, which have already been “designed and ordered”. The Cabinet of Ministers has referred to paragraph 3.4.1 of Annex 9 to the Convention and Doc 9303, not taking into consideration that the Convention and its respective supplements do not prohibit entering the above note in the visual inspection zone but simply do not directly envisage such a possibility. For example, paragraph 9.3 of Annex 3 of Chapter 3 of Doc 9303 recommends not entering notes on granted and inherited titles, professional or academic education, honours and awards in the visual inspection zones of machine readable passports. However, if the state considers it necessary to enter such notes and it is determined by the law, the previously mentioned elements may be entered into the visual inspection zone of passports. […] Since the transcription of personal names in documents is governed by law only in one European state – Latvia (see the conclusion by the expert I. Druviete, p. 536 of the case materials), if the Cabinet of Ministers considered that Doc 9303 does not envisage entering a note on the original form of a foreign personal name in the visual inspection zone of a passport, it had the possibility of referring to Article 38 of the Convention, which provides for the margin of discretion of states in cases when it is difficult to observe all the aspects of international standards or procedure. In such cases the state in question has to immediately inform the International Civil Aviation Organization on differences between the practice of the state and the requirements of international standards. There is no basis for the concern of the Cabinet of Ministers that the original form of foreign personal names would need to be entered on the data page not only by using letters of the Roman alphabet but also letters of other alphabets and that therefore “the Republic of Latvia is not able to materially and technically ensure it to everyone in accordance with the principle of equality”. The second part of Article 19 of the Language Law clearly provides that the original form of a foreign personal name is to be written only in the Roman alphabetic transliteration. Besides, the roadmap on identification cards, which has been accepted by the Cabinet of Ministers (see http://www.pid.gov.lv) envisages that when the identification cards will be introduced, a significant part of Latvian inhabitants will no longer need passports. Taking into consideration the fact that the Cabinet of Ministers, when choosing the place in the passport for entering the original form of a foreign personal name has not done everything to ensure the minimum possible interference with a person’s rights, the norm of paragraph 6 of Regulations no. 310 on entering the original form of a foreign personal name and surname in the section of the passport under the title “special notes” restricts private life disproportionately and is incompatible with both Article 96 of the Satversme and the second part of Article 19 of the Language Law. 4.4. The Cabinet of Ministers Regulations no. 295 alongside with the reproduction of the original form of a foreign personal name also provide for the so-called approximation of a name and surname – the adjustment of the form of the name and surname to the currently effective forms of the Latvian language. Approximation is applied if the former usage of the name and/or surname in personal documents contradicts the current norms of the Latvian language.

On the basis of paragraph 6 of Regulations no. 295 approximation may be applied: first, if the documents are issued for the first time, for instance when issuing a birth certificate; second, if they are issued repeatedly, for instance, if a passport has been lost or if it has expired. On the other hand, paragraph 7 of Regulations no. 295 establishes that reproduction of the name or surname and approximation of its form may be accomplished by: 1) municipality civil status registry offices (if approximation has not been done when issuing the passport), when making an entry into the civil status registry as well as when repeatedly issuing a civil status registration certificate on the basis of a previous entry in the registry; 2) the Department of Citizenship and Migration, when issuing a new personal document (if approximation has not been done when issuing the civil status registration certificate); 3) diplomatic and consular offices of the Republic of Latvia abroad when issuing personal identification documents. 4) If the petitioner’s surname in her passport had been reproduced not as Mencena but, for instance, as Mentcena, then – in case if she had lost her passport – in accordance with the current procedure officials of the above institutions when issuing a new passport would have the right to approximate the surname and to exclude the letter ”t” from it. The case materials (see pp. 416-456 of the case materials) also demonstrate that such an approximation of names and surnames is a relatively widespread phenomenon and not only in connection with persons, who have married a citizen of another country or a foreigner. Besides Section II of the Cabinet of Ministers draft “Regulations on the Spelling and Usage of Foreign Personal Names in Latvian” (see pp. 246-280 of the case materials) also provides for the repeated approximation, which, when issuing new passports, might concern not only persons whose names have been reproduced after concluding marriage with a foreign citizen or a stateless person but also a significant portion of other inhabitants of Latvia. Precision and consistency is needed in the use and spelling of personal names. However, since the renewal of the independence of Latvia until this moment several regulations of the Cabinet of Ministers as well as different instructions have regulated use and spelling of personal names (see “On the Use and Spelling of Names and Surnames in the Latvian literary language.” The Republic of Latvia Language Centre, 1999; Regulations no. 295). If the state provides for a possibility of reproducing the original forms of foreign personal names in Latvian, it should simultaneously take care the stability of personal names and ensure this stability in the future. Even though Regulations no. 295 do not regard the approximation of a name or surname to the currently effective norms of the Latvian language as an alteration of a name or surname, the above procedure creates a certain precariousness, since individuals constantly have to encounter situations in which their identity and ties with their family are questioned. From the moment the reproduced personal name is entered into a passport of the Republic of Latvia, the person has the right not only to use it but also to protect it. Errors or inaccuracies of the officials of the previously mentioned institutions when applying the regulations on the spelling and use of foreign personal names in Latvian as well as new developments in the field of linguistics cannot serve as a reason to change the spelling of a personal name that has already been reproduced and recorded in a person’s documents.

JUDGMENT in the case no. 2001-04-0103

Therefore the approximation of personal names, if they have already been reproduced and if the approximation goes against the individual’s wishes, when compared with the legitimate aims for the interference with the person’s private life, is disproportional. 5. To ensure the identification of persons and to, insofar as is possible, to maintain the stability of personal names as well as not to disproportionally limit the fundamental rights of a person guaranteed by in Article 96 of the Satversme, the Constitutional Court draws the attention of the Cabinet of Ministers to the fact that it is necessary to assess not only the procedure of approximating personal names regulated in Regulations no. 295 but also the procedure envisaged by the draft “Regulations on Spelling and Use of Foreign Personal Names”. On the basis of Articles 30-32 of the Constitutional Court Law, the Constitutional Court decided: 1. To declare that Article 19 of the State Language Law is compatible with Articles 96 and 116 of the Satversme of the Republic of Latvia. 2. To declare that the Regulations no. 295 of the Cabinet of Ministers of 22 August 2000 in the part concerning the approximation of personal names that have been reproduced and entered into a passport of the Republic of Latvia, if the approximation is contrary to the person’s wishes, are incompatible with Articles 96 and 116 of the Satversme of the Republic of Latvia. 3. To declare that paragraph 6 of the Regulations no. 310 of the Cabinet of Ministers of 24 October 1995 and paragraph 3.8 of the instruction “Confirming the Procedure of the Application of “The Rules on Passports of Citizens of the Republic of Latvia””, confirmed by an order of 10 November 1994 of the Director of the Citizenship and Immigration Department of the Ministry of the Interior are incompatible with Articles 96 and 116 of the Satversme of the Republic of Latvia and void from 1 July 2002. The judgment takes effect on the moment of its pronouncement. The judgment is final with no possibility of appeal. The judgment has been pronounced in Riga on 21 December 2001.

The Chairman of the hearing of the Constitutional Court

2002-06-01

Decisions by the Plenary Session of the Supreme Court

Examination of the generally binding nature of an interpretation of a legal norm provided by the Plenary Session of the Supreme Court Differences in sources of law in the system of Soviet law and in the legal system of Latvia as a democratic state governed by the rule of law were examined. During the existence of the USSR, the existence of decisions by the plenary session of the Supreme Court followed from the political concept of the unity and inseparability of power. The Supreme Court ensured the State’s guidance for courts’ activities and implementation of legal policy established by the Communist Party, inter alia, “filtering” of the case-law and “correct” guidance. Decisions by the plenary session of the Supreme Court were mandatory for courts in deciding similar cases, as well as for other institutions and officials. Thus, the aforementioned decisions in practice were used not only as auxiliary sources of law but, quite frequently, alongside generally binding normative acts, had acquired the nature of an independent source of law. The principle of the independence of courts was examined. The obligation not to interfere with the making of a judgment applies not only to the legislator and the executive power but also to the court itself and to officials linked to the exercise of judicial power. If a judge, in order to find a fair solution in the case, must deviate from the findings of the previous case-law, then the judge has the right to do so, providing appropriate reasoning for his opinion. Alongside the principle of independence of courts also the principle of separation of powers was examined. It is impermissible if the plenary session of the Supreme Courts becomes similar to the legislator and defines generally binding (mandatory) injunctions that judges have no right to deviate from. Finally, the principle of justice was also analysed. Court rulings which have been adopted in compliance only with explanations of legal norms provided in decisions by the plenary session may turn out to be unjust, in particular if the diverse and constantly changing circumstances of life are not taken into consideration.

Aivars Endziņš

JUDGMENT in the name of the Republic of Latvia in the case no. 2002-06-01 Riga, 4 February 2003 The Constitutional Court of the Republic of Latvia, in the following composition: the chairman of the hearing of the Court Aivars Endziņš, judges Ilze Skultāne, Romāns Apsītis, Ilma Čepāne, Juris Jelāgins and Andrejs Lepse on the basis of Article 85 of the Satversme [Constitution] of the Republic of Latvia, Articles 16(1), 17 (1)(11) and 281 of the Constitutional Court Law, pursuant to a constitutional complaint submitted by Antons Zīle, in written proceedings reviewed the case

JUDGMENT in the case no. 2002-06-01

“On the compliance of Article 49(2) of the Law “On Judicial Power” with Articles 1 and 83 of the Satversme”.

The facts 1. On 15 December 1992 the Supreme Council of the Republic of Latvia adopted the Law “On Judicial Power” (henceforth – the Judicial Power Law). Article 49(2) of this law (henceforth – the impugned norm) provided: “The plenary session issues opinions concerning the application of laws which are binding on the courts”. At the present moment approximately 20 such opinions of the plenary session of the Supreme Court (henceforth – plenary session opinions) are in effect. 2. To ensure an accurate and uniform application of the Labour Code (henceforth – LC) as well as to approximate court practice in cases on restoration to the post or office in accordance with the law of 17 March 1992 “On Amendments and Supplements to the Labour Code of the Republic of Latvia”, on 28 December 1992 the plenary session of the Supreme Court adopted opinion no. 16 “On Court Practice in Cases on Restoration to the Post” (henceforth – plenary session opinion no. 16). In the first part of paragraph 2 of this opinion the plenary session of the Supreme Court pointed out that “in conformity with Article 217 of the LC employees may submit a claim on their dismissal to the court within one month as of the day of receiving their employment record”. Besides, in the second part of the same paragraph the plenary session explained that “a judge has no right to refuse to accept the claim just because the statutory timelimit has expired. If a court accepts the advanced reasons for missing the statutory time-limit, it shall extend the time-limit. If a court after examining the materials in the case-file establishes that the time-limit has been missed without any justifying reasons, it shall reject the claim”. On 27 December 1996 the plenary session of the Supreme Court amended the second part of paragraph 2 of the plenary session opinion no. 16, and interpreted Article 217 of the LC in the following way: “LC does not give courts the right to extend the statutory time-limit for submitting a claim on restoring to the post. Exceeding of the time-limit cannot serve as a reason for refusing to accept the claim, but it shall be the basis for rejecting the claim regardless of the reasons for exceeding the time-limit”. In connection with the adoption of the Labour Law on 11 March 2002 the plenary session of the Supreme Court Plenum declared the plenary session opinion no. 16 null and void. 3. On 3 December 2002 the Judicial Power Law was amended. After the amendments Article 49(2) of the law is expressed as follows: “The plenary session shall discuss topical issues of interpretation of legal norms”. 4. The submitter of the constitutional complaint Antons Zīle (henceforth – the petitioner) in his complaint challenges the compliance of Article 49(2) of the Judicial Power Law (in the wording that was in effect until 3 December 2002) with Articles 1 and 83 of the Satversme. He considers that opinions of the plenary session of the Supreme Court that have been adopted in accordance with the impugned norm violate the petitioner’s right to a fair trial, which is guaranteed by Article 92 of the Satversme. In his complaint the petitioner describes the factual circumstances of the case.

On 11 September 2000 he was dismissed from work. Because he considered that the dismissal had been unfounded, on 11 October 2000 he submitted a claim on restoration to the post to the Riga City Kurzeme District court. The petitioner attended the court hearing that was held on 4 January 2001. The Kurzeme District Court decided not to review the case on restoration to the post on the merits because it considered that the claim had been signed in the petitioner’s name by a person who was not authorized to do so by law. The court pointed out that in conformity with Article 85(1) of the Civil Procedure Law the authority form for representation of natural persons had to be certified by a notary. The court adopted the above decision without taking into consideration the fact that the petitioner himself attended the hearing and confirmed that he had given a trade union representative the authority to submit a claim on his restoration to the post. On 3 April 2001 the petitioner submitted a new claim on restoration to the post to the Kurzeme District Court. The court rejected the claim as the statutory time-limit of one month had been exceeded. The Kurzeme District Court motivated its decision by referring to paragraph 2 of the plenary session opinion no.16. The petitioner appealed against the Kurzeme District Court decision to the Riga Regional Court. On 12 November 2001 the Riga Regional Court rejected the appeal, basing its decision on Article 217 of the LC and paragraph 2 of the plenary session opinion no. 16: “According to the LC of Latvia the court does not have a right to extend the exceeded time-limit for submitting claims on restoration to post. The above is confirmed … by paragraph 2 of the plenary session opinion no. 16, thus exceeding the time-limit is the basis for rejecting the claim”. By a decision taken in a preparatory meeting on 27 December 2001 a collegium of senators of the Senate of the Supreme Court discontinued the cassation proceedings that had been initiated pursuant to the petitioner’s appeal on points of law against the decision of the Riga Regional Court. The petitioner considers that the impugned norm denies him access to court and hence the possibility of protecting his lawful interests. He points out that the principle of separation of powers follows from Article 1 of the Satversme. In compliance with this principle the legislative power in a democratic state belongs to the people and the legislator but not to the judicial power. The duty of a court is to review cases and it cannot undertake the functions of the legislator. If a court is permitted to carry out also the functions of the legislator, the right of an individual to an independent and fair trial is violated. At the moment the courts have to comply with the opinion of the plenary session of the Supreme Court on how to interpret laws, without taking into consideration the circumstances of the case and legal developments over time. The opinions of the plenary session of the Supreme Court are furthermore not subject to appeal. The petitioner is of the view that the opinions of the plenary session of the Supreme Court are binding because claims are rejected on the basis of these opinions. To his mind this is contrary to Article 83 of the Satversme which determines that judges shall be independent and subject only to the law and also contrary to the principle of independence of the judicial power. 5. The Saeima (the Parliament) in its written reply partially agrees with the opinion of the petitioner that the binding character of the opinions of the plenary session of the Supreme Court is contrary to the principle of separation of powers. It points out that opinions of the plenary session are not legislative acts and therefore they cannot be binding on courts; however, the plenary session of the Supreme Court cannot be

JUDGMENT in the case no. 2002-06-01

forbidden to express its viewpoint on certain issues of interpreting legal norms, which are topical in the court practice. […]

The motives

1. Article 92 of the Satversme provides that everyone has the right to defend their rights and lawful interests in a fair court. The right to a fair court includes several mutually interconnected aspects. As concerns the particular case, two of them are of importance: first, “a fair court” as an independent and impartial institution of the judicial power, which reviews a case. In this respect the concept of “a fair court” is to be interpreted both in conjunction with the principle of separation of powers and the principle of independence of judges (courts), protected by Article 83 of the Satversme; second, “a fair court” as an appropriate procedure in a state based on the rule of law for reviewing cases. In this respect the concept of “a fair court” is to be interpreted in conjunction with the principle of justice, which follows from Article 1 of the Satversme (see the judgment of the Constitutional Court of 5 March 2002 in the case no. 200110-01). 2. To establish whether the competence of the plenary session of the Supreme Court to adopt binding interpretations of legal norms is in conformity with the principles of separation of powers and the independence of judges, the legal force of the opinions of the plenary session of the Supreme Court has to be ascertained. 2.1. First of all, the meaning of the word “binding” as it is used in this and other laws needs to be established. In the Judicial Power Law the word “binding” is used not only in the impugned norm but also in the third part of Article 16: “A judgment in accordance with the procedures provided by law is binding on a court when adjudicating other matters which are related to such matter”. Third part of Article 96 of the Civil Procedure Law provides that “a court judgment in a criminal case which has taken legal effect is binding on the court that reviews the case on the civil liability of the person concerning whom the judgment in the criminal matter has been reached”. The first part of Article 476 of the same law establishes that “the interpretation of the law which is expressed in a judgment of a cassation court is binding on the court which reviews the case anew”. In its turn Article 359 of the Criminal Procedure Law provides that “the court judgment or decision which has taken legal effect is binding on all enterprises, institutions and organizations, officials and other persons”. These examples indicate that the word “binding” in legislative acts is used as a synonym to word “obligatory” – “something that is determined by legislative norms, laws and which has to be fulfilled; something which may not be freely chosen, which is dictated by rules, orders” (Svešvārdu vārdnīca, “Jumava”, 1999, p. 527). 2.2. The practice of Latvian courts confirms the obligatory nature of the binding interpretations included in the opinions of the plenary session of the Supreme Court. The courts in their judgments rather often apply the instructions contained in the opinions of the plenary session of the Supreme Court as generally binding legal norms. […] Occasionally the opinions of the plenary session of the Supreme Court contain instructions which cannot be regarded as a mere specification of generally binding legal

norms. For example, paragraph 4.7 of the previously mentioned opinion no. 7 provides: “If the accused person is hiding in another state and has been declared as wanted, then the running of the statute of limitations is suspended when an official request has been forwarded to the accused person”. However, Article 56 of the Criminal Law to which the above-mentioned interpretation contained in the opinion of the plenary session pertains does not envisage such grounds for suspending the running of the statutory limitation period. Thus in practice the opinions of the plenary session of the Supreme Court have been applied not only as a supplementary sources of law but they have also acquired the status of an independent legal source along with generally binding legislative acts. 2.3. Normative interpretation of laws by means of opinions of the plenary session of the Supreme Court was introduced during the years of the existence of the USSR and they are characteristic to the socialist legal system. The political conception of uniformity and indivisibility of power determined the existence of the opinions of the plenary session. “The Supreme Court undertook the task of administering the court activities and realization of legal policy set by the Communist Party, including the “filtering” and “correct” advancement of the practice of courts” (Meļķisis E. On Uniformity of the Court Practice. Creation of the Court Practice. Scientific Papers of the University of Latvia. Riga, Latvijas Universitāte, 2001, p. 8). The law of 12 June 1981 “On the Court System of the Latvian SSR” also provided that the leading interpretations of the plenary session of the Supreme Court shall be mandatory to courts when reviewing similar cases as well as to other institutions and officials who apply the law to which such interpretation refers. Thus the opinions of the plenary session served as instructions for judges when reviewing cases. Even though when adopting the Judicial Power Law in 1992, the members of the Supreme Council did not accept the initiatives to authorize the plenary session of the Supreme Court to also interpret the laws (see the Verbatim Record of the 30th meeting of the 5th Session the Supreme Council of the Republic of Latvia, held on 1 December 1992), the law retained the authority of the plenary session of the Supreme Court to adopt explanations of laws that are binding for courts. While it cannot be denied that a uniform court practice is significant for ensuring legal stability, it is nevertheless not permissible that the plenary session of the Supreme Court becomes similar to the legislator and sets down in advance generally binding (mandatory) instructions from which the judge who is reviewing a specific case is not allowed to deviate. 2.4. When adopting the declaration of 4 May 1990 “On the Accession of the Republic of Latvia to International Legal Instruments on Human Rights Issues”, Latvia acceded also to the Basic Principles of the Independence of the Judiciary, which have been elaborated by the United Nations Organization. According to these principles the independence of the judiciary shall be guaranteed by the state and enshrined in the Constitution or the law of the country. “The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason” (Basic Principles of the Independence of the Judiciary – Human Rights. Collection of International Agreements, vol. I. UN, New York, Geneva, 1994). In Latvia the principle of the independence of judges (courts) is incorporated into Article 83 of the Satversme: “Judges shall be independent and subject only to the law”. This constitutional principle means that the judge who reviews the case may

JUDGMENT in the case no. 2002-06-01

not be subjected to any influence. Therefore the duty not to interfere with the process of reaching the judgment refers not only to the legislator and executive power but also to the court itself and to officials who are connected with the realization of the judicial power. Taking into consideration the objective of the administration of justice, which is to find the right and just solution of the case the judge evaluates the specific circumstances of the case he is examining. When interpreting and applying the law he shall be guided only by the conviction held as a judge, which is based upon the professional knowledge and skills of the judge, his understanding of the legal and public processes, culture, mental outlook, civic consciousness and other factors (see Handbuch des Verfassungsrechts der Bundesrepublik Deutschland, 2. Auflage, Walter de Gruyter, Berlin, New York, 1995, S. 1618-1619). If, in order to achieve the above-mentioned objective it becomes necessary to deviate from the previous theses of the case-law, then the judge has a right to do so; however, in such a case the judge’s opinion has to be adequately motivated. On the other hand, the fact that the laws provide for the possibility to appeal against court decisions entails the judge’s duty to act in accordance with the law and to correctly interpret it and apply it in practice, and not to interpret the law arbitrarily according to his own free will. Therefore the impugned norm which authorized the plenary session of the Supreme Court to adopt opinions on the application of laws that were binding for courts was incompatible with the principle of separation of powers and restricted the independence of judges (courts). 3. “A fair court” as an appropriate procedure in a state based on the rule of law means a fair review of cases, namely, that in every specific case the court has to observe the principle of justice. In its turn, since the result of the work of the court is a court judgment, then the concept “a fair court” in most cases is understood as “a fair judgment”. The guarantee of a fair court is closely connected to well-reasoned decisions which comply with legal norms. Thus, for example, the third part of Article 189 of the Civil Procedure Law provides that a judgment has to be lawful and wellfounded. It is also specified in Article 190: “(1) When giving a judgment, the court shall take into account the norms of substantive and procedural law. (2) The court shall base the judgment on the circumstances which have been established by evidence in the case.” However, for adopting a fair judgment a grammatical understanding of legal norms is insufficient. To reach the fairest and the most appropriate aim by means of the applicable legal norm, the court ought to make use of different methods of interpretation of legal norms – not only the grammatical but also the historic, systemic and teleological methods. Court decisions which are reached by taking into account only the interpretations of legal norms presented in the opinions of the plenary session of the Supreme Court may turn out to be unjust, especially in cases when the varied and constantly changing living conditions are not taken into consideration or when the judge is not allowed to deviate from the opinions of the plenary session. Judgments of the courts of general jurisdiction in the case-file attest that the request of the petitioner to restore him to the post was rejected because the courts had established that the one-month time-limit provided for by Article 217 of the LC had been exceeded. The courts of the first and the second instances referred to paragraph 2 of opinion no. 16 of the plenary session, namely, that exceeding of the time-limit, regardless of reasons,

should serve as the basis for rejecting the claim. Therefore the courts did not even assess the reasons for exceeding of the time-limit, namely, that the petitioner had exceeded the time-limit because he had to submit a new claim to restore him to the post because his initially submitted claim, that is, the claim submitted within the one-month timelimit, was not reviewed on the merits. The decision of the Riga City Kurzeme District Court of 4 January 2001 declares that the claim had been signed in the applicant’s name by a person, the authority form of whom had not been certified by a notary as required by the first part of Article 85 of the Civil Procedure Law. The court reached the above decision irrespective of the fact that the petitioner participated in the court session and confirmed that he authorised a representative of a trade union to submit the claim on his restoration to post. Therefore court decisions which have been adopted by applying binding interpretations of the plenary session of the Supreme Court may come into collision with the principle of justice, which is incorporated into Article 1 of the Satversme.

4. Taking into consideration the fact that on 3 December 2002 the new wording of the second part of Article 49 of the Judicial Power Law took effect, the Constitutional Court does not have to take a decision on the moment from which the impugned norm becoming invalid. However, at the time when the impugned norm was in effect, courts took decisions on the claim of the petitioner to restore him to the post by strictly observing the requirements of the opinion no. 16 of the plenary session. Thus the impugned norm has interfered with the petitioner’s constitutional right to a fair court. To ensure the protection of his rights and to give him the possibility of initiating a case because of newly discovered circumstances, the impugned legal norm, insofar as it concerns the petitioner, shall be declared as void already at the time when the courts of general jurisdiction reviewed his case on restoration to the post.

The resolutive part On the basis of Articles 30-32 of the Constitutional Court Law the Constitutional Court decided: To declare Article 49(2) of the Law on Judicial Power (the wording which was in force until 3 December 2002) to be incompatible with Articles 1 and 83 of the Satversme of the Republic of Latvia and to be void insofar as it concerns the submitter of the constitutional complaint from 12 October 2000. The judgment is final and not subject to appeal. The judgment comes into force on the day of its publishing. The chairman of the hearing of the Court

A. Endziņš

JUDGMENT in the case no. 2002-06-01

2002-21-01

Age restrictions

Age as a criterion for the right to assume positions in institutions of higher education The principle of prohibition of discrimination was analysed. It was found that the public and legal thought regarding discrimination due to age has changed over time. In the middle of the last century the attitude towards elderly people became more discriminating. In many European countries, a prohibition to assume a certain positions upon the onset of certain age was introduced. However, with the ageing of society and the development of human rights, the aforementioned view has changed. In human rights, a general prohibition of discrimination due to a person’s age is envisaged but a prohibition to engage in a vocation due to age is permissible only in exceptional cases, if particularly important reasons exist. It was found that the main criteria allowing persons to compete for academic and administrative positions in institutions of higher education should be their abilities and qualification, not the age of these persons.

JUDGMENT in the name of the Republic of Latvia in the case no. 2002-21-01 Riga, 20 May 2003 The Constitutional Court of the Republic of Latvia in the following composition: the chairman of the hearing of the Court Aivars Endziņš, judges Ilma Čepāne, Romāns Apsītis, Juris Jelāgins, Andrejs Lepse, Ilze Skultāne and Anita Ušacka, with the secretary of the hearing of the Court Egija Freimane, in the presence of sworn attorney Jānis Rozenbergs – the representative of the submitters of the constitutional claim Aldis Baums, Zigurds Markovičs and Jānis Rozenbergs as well as sworn attorney Ilmārs Bišers – the representative of the submitter of the constitutional claim Edmunds Lukevics, and sworn attorney Lauris Liepa – the representative of the institution which has adopted the impugned acts – the Saeima [the Parliament], on the basis of Article 85 of the Satversme [Constitution] of the Republic of Latvia and Article 16(1) and Article 17(1)(11) of the Constitutional Court Law, on 22 April 2003 in a public hearing examined the case “On the compliance of Article 27(4) and the phrase “until the age of 65 years” in Article 28(2) of the Law on Institutions of Higher Education and Article 29(5) of the law “On Scientific Activity” with Articles 91 and 106 of the Satversme of the Republic of Latvia”.

The facts 1. 1.1. On 10 November 1992 the Supreme Council of the Republic of Latvia adopted the law “On Scientific Activity”. Article 29 of the law determined the system of academic positions in state scientific institutions. On 13 June 1996 the Saeima adopted a law, by which the wording of Article 29 of the law “On Scientific Activity” was amended. Article 29(5) provided that administrative positions and academic positions in state scientific institutions and organizations, as well as positions in elected collegial scientific institutions may be held by persons until reaching the age of 65 years, except in cases when the respective persons had received the permission from the Ministry of Education and Science and the Latvian Council of Science on suspending the age limit for a certain period. On 20 May 1998 the Saeima adopted a law by which Article 29 of the law “On Scientific Activity” was amended once again. Currently Article 29(5) of this law provides that “administrative positions (director, deputy director, manager of a scientific structural unit) in state scientific institutions and positions in elected collegiate scientific institutions may be held by persons until reaching the age of 65 years. Academic positions in state scientific institutions may be held by persons without a limitation of age if their scientific qualifications and work productivity comply with criteria determined by Latvian Council of Science”. 1.2. On 2 November 1995 the Saeima adopted the Law on Institutions of Higher Education. The first sentence of Article 27(4) of this law provides that “the elected positions of a professor, an associated professor, assistant professor and administrative positions (rector, prorector, dean) in institutions of higher education may be held until the age of 65 years”. Further, according to Article 28(2) of this law “professors shall be elected according to the provisions of Article 33 of this Law in an open competition for the period of six years, and the rector shall conclude with them an employment contract for the entire period for which they have been elected or for the time period until they reach the age of 65 years”. In compliance with this law similar norms are incorporated also in the by-laws of the institutes of higher education. 1.3. On 15 October 1998 the Satversme of the Republic of Latvia (henceforth – the Satversme) was supplemented with Chapter VIII “Human Rights” (Articles 89-116). Article 91 of the Satversme provides: “All human beings in Latvia shall be equal before the law and the courts. Human rights shall be realized without discrimination of any kind”. Article 106 of the Satversme states: “Everyone has the right to freely choose their employment and workplace according to their abilities and qualifications”. 2. 2.1. On 31 October 2002 Aldis Baums, Zigurds Markovičs and Jānis Rozenbergs submitted a constitutional complaint to the Constitutional Court, requesting it to declare Article 27(4) of the Law on Institutions of Higher Education with regard to elected positions of a professor, an associated professor and an assistant professor as well as the text in Article 28(2) “until the age of 65 years” (henceforth – the impugned norms of the Law on Institutions of Higher Education) to be incompatible with Articles 91, 106 and 116 of the Satversme. All three submitters of the complaint have reached the age of 65 years. To their mind the impugned norms are contrary to Article 106 of the Satversme in that they impose discriminating restrictions to their right to freely choose their employment and workplace. Their rights have been restricted not because of their abilities and

JUDGMENT in the case no. 2002-21-01

qualifications, which is permitted by Article 106, but because of their age. They have lost neither their qualification nor their abilities. Institutions of higher education have asked them to continue their former teaching work but have offered them lower salaries and employment on the basis of limited-term contracts. However, the institutions of higher education also have the possibility of proposing them professors’ positions, because “none of the positions that had been previously proposed to them has been liquidated as unnecessary or because of financial reasons”. 2.2. On 3 December 2002 Edmunds Lukevics submitted a constitutional complaint to the Constitutional Court, requesting to declare Article 29(5) of the law “On Scientific Activity” as well as the first sentence of Article 27(4) and the text in Article 28(2) “until the age of 65 years” of the Law on Institutions of Higher Education to be incompatible with Articles 82, 91 and 106 of the Satversme, Articles 7 and 31 of the International Covenant on Economic, Social and Cultural Rights and paragraph 1 of part I, paragraph 1 of part II and paragraph 20 of part III of the European Social Charter. In the constitutional complaint it is pointed out in that the age-related restrictions incorporated in Article 29(5) of the law “On Scientific Activity” (henceforth – the impugned norm of the law “On Scientific Activity) refer to the most responsible positions of the state scientific institutions. To carry out the duties of these positions one has to master comprehensive knowledge and to be able to pass such knowledge to the others. The petitioner stresses that he is the Director of the Institute of Organic Synthesis of Latvia, the head of the Laboratory of Metal-organic Chemistry of this Institute, the author of 1532 scientific publications, the most cited Latvian scientist in scientific journals in the world. He has delivered lectures in universities in France, Japan and Sweden. The petitioner considers that many well-known scientists of the world have contributed much to the advancement of science even after reaching considerable age. Even though all people become old and their work productivity gradually diminishes, this process differs from person to person and therefore equal restrictions for holding certain positions may not be applied to everybody. Because the petitioner has reached the age of 65, the impugned norm of the law “On Scientific Activity” prevents him from holding his former positions at the Institute of Organic Synthesis, but the impugned norms of the Law on Institutions of Higher Education do not allow him to run for the position of professor at the Faculty of Chemistry of the University of Latvia. 3. 3.1. The institution which has adopted the impugned norms – the Saeima in its written reply on the compliance of the impugned norms of the Law on Institutions of Higher Education with the Satversme points out that the duty of institutions of higher education is to train young scientists and to ensure the possibility of their becoming part of the academic processes of the world. Scientific and creative work constantly takes place at institutions of higher education in order to prepare both, well-educated, professional specialists in different sectors of science or art and new scientists. Hence the succession of performance of institutions of higher education is ensured. The objective of the impugned norms of the Law on Institutions of Higher Education is not to get rid of persons, who have reached the age of 65 years and who hold the positions mentioned in these norms. The objective of these norms is to ensure the development of institutions of higher education, science and art, as well as to “rejuvenate” the academic and administrative personnel. The law prevents the persons

who have reached 65 years of age from holding the positions mentioned in the impugned norms but it does not restrict their right to continue scientific research. Besides, according to Article 27(4) of the Law on Institutions of Higher Education the rector of any institution of higher education may conclude individual contracts with pensioned academic personnel, including contracts on carrying out scientific research. The payment is provided on the basis of the amount of work carried out, taking into consideration the qualifications of the employee. The Saeima stresses that in 1997 “491 professorial positions had been assigned to the Latvian institutions of higher education and at the end of 2002 295 professors had been elected”. The Saeima considers that “the personnel of the highest academic level is gradually becoming younger” and to their mind the abrogation of the impugned norms of the Law on Institutions of Higher Education will hinder this process. The benefit for the society and other persons in this case is greater than the restriction of the rights of certain individuals. Besides, one has to take into consideration also the fact that, for instance, Article 84 of the Satversme provides that “the age of retirement from office for judges may be determined by law”. 3.2. In its written reply concerning the compliance of the impugned norm of the law “On Scientific Activity” with the Satversme, the Saeima points out that an essential duty of any subject of scientific activity is to carry out scientific activities and activities related to the acquisition and furtherment of scientific qualifications. Activities of scientific institutions, the objective of which is to ensure the succession of specialists in scientific work is aimed at carrying out scientific research and also at the preparation of young scientists. The Saeima stresses that the restrictions established by the impugned norm of the law “On Scientific Activities” “refer only to persons, who determine the main directions of the scientific activities of state scientific institutions or who are managing the administration of the institutions, and do not restrict the right to carry out scientific activities”. The Saeima expresses the viewpoint that the aim of the age restrictions established by the impugned norm of the law “On Scientific Activity” is not to get rid of persons who have reached the age of 65 years and are engaged in scientific work but to ensure the development of science and “rejuvenation” of the administrative and leading personnel of state scientific institutions. The Saeima stresses that the common aim of the impugned norms is “a successful advancement of scientific sectors and the preclusion of the rapid aging of the teaching staff”. As the impugned norms restrict the rights of only a limited number of individuals in the interests of the society, such a restriction complies with the principle of proportionality. Besides, when looking at the practice of the Member States of the Council of Europe in the sphere of determining the age-limit for professors of institutions of higher education, one can see that in these states a mandatory retirement age, primarily between 61 and 70 years of age, has been determined. […] 5. When preparing the case for review it was established that Article 27(4) (the second and third sentence) of the Law on Institutions of Higher Education, challenged by A.Baums, Z. Markovičs and J. Rozenbergs in their constitutional claim, does not contain a restrictions of rights. Besides their constitutional claim does not include legal justification needed to declare the unconformity of the above norms of the Law on Institutions of Higher Education with the Satversme. I. Bišers – the representative of the submitter of the constitutional claim E. Lukevics sent the letter to the Constitutional Court, in which he explained that E. Lukevics does

JUDGMENT in the case no. 2002-21-01

not challenge the compliance of Article 29(5) (the second sentence) of the law ”On Scientific Activity” with the Satversme. Taking into consideration these circumstances, the Constitutional Court in a preparatory meeting terminated the proceedings on the compliance of Article 27(4) (the second and third sentences) of the law ”On Scientific Activity” and Article 29(5) (the second sentence) with Articles 91 and 106 of the Satversme. 6. At the Court session the representative of the submitters of the constitutional claim J. Rozenbergs argued that the impugned norms of the Law on Institutions of Higher Education deny the possibility of participating in public competitions for the academic positions of professor, associated professor and assistant professor to persons, who have reached 65 years of age. To his mind these norms in fact interdict persons of 59 or more years of age from serious scientific work. He stressed that the professors, who have not been elected, in accordance with the third part of Article 28 of the Law on Institutions of Higher Education are denied the possibility of carrying out research and perform educational job. There are no reasons, why administrative methods and not public competition shall be used when choosing the most adequate candidate for the position. The restrictions, incorporated into the impugned norms of the Law on Institutions of Higher Education to his mind are not useful as –when applying them – the higher schools are not able to ensure that all the academic staff units are filled. I. Bišers – the representative of the submitter of the constitutional claim E. Lukevics stressed that there was no basis for the opinion that persons who have reached 65 years of age cannot work as organizers of scientific activity. Article 116 of the Satversme permits restrictions to the fundamental rights in order to reach the legitimate aims listed in this norm. However I. Bišers denies “that professors and leaders of scientific institutions who are older than 65 years of age, will threaten safety of Latvia or morals of Latvian people”. He points out that Latvia has to observe international instruments, like the International Covenant on Economic, Social and Cultural rights, which prohibit discrimination because of old age. Besides I. Bišers asks to pay attention to Article 7 of the Labour Law which envisages that all persons without any age limit have equal rights to employment. Both – J. Rozenbergs and I. Bišers expressed a shared opinion that the abilities and qualification of persons have to be assessed objectively and that can be done only by Scientific Councils and Boards of Professors of the higher schools. Therefore – to their mind – there is no reason to deny the right of participating in the competition for vacant positions at higher schools and state scientific institutions to persons, who have reached 65 years of age. The representative of the Saeima Lauris Liepa argued that the restrictions, incorporated in the norms of the Law on Institutions of Higher Education and the law “On Scientific Activity” are an ingredient part of the science reform and are wellfounded. Restrictions have to be determined by law, directed to reaching a legitimate aim and are to be needed in the democratic society. In accordance with the practice of European Court of Human Rights the last criterion includes two elements: first, the restrictions must answer to a social need, and, second, they have to be proportionate. The legitimate aim of the restrictions included in all the impugned norms is “to ensure the development and modernization of the sector which is especially important in a democratic society – science”. It can be reached only by involving young scientists in the process. In such a way the democratic state system is being protected. Besides, to the mind of the representative of the Saeima, the impugned norms of the Law on Institutions of Higher Education encourage the academic personnel,

especially the teaching staff in advanced years to take care of preparing scientists who are able to substitute them and to continue their work. Article 27(4) of the Law on Institutions of Higher Education ensures the possibility of, first, elderly professors continuing their work at the higher schools and, second, the specialists of the younger generation filling the elected academic positions. Besides, if there is no possibility of filling all the academic vacancies with young employees, the Law on Institutions of Higher Education does not prohibit concluding individual contracts with elderly specialists. Age limits mentioned in the impugned norms to his mind shall be read together with age limits, which refer to other equally responsible positions like those of judges, procurators and officials of the civil service. If the impugned norms are repealed, the main problem – the lack of young specialists in the sector of higher education and science – will not be solved. […]

The motives

1. Article 106 of the Satversme guarantees the right of every person to freely choose their employment and workplace. As the Court has concluded before, Article 106 of the Satversme protects persons against discrimination in the labour market and guarantees the right of every individual to freely choose any profession; however, the realization of this right is inseparably connected with the abilities and qualifications of persons (see the judgment of the Constitutional Court in the case no. 2001-16-01, paragraph 2 of the motives part // Latvijas Vēstnesis, 05.06.2002 no. 84 (2659)). Thus, within the meaning of Article 106 of the Satversme, the right to freely choose employment and workplace first of all means equal access to labour market of every person and, secondly, the fact that the state is not allowed to impose any other restricting criteria apart from requirements for abilities and qualifications, which are indispensable for the person’s ability to carry out the duties of the position. The restrictions established by the impugned norms of the Law on Institutions of Higher Education refer to elected academic (professor, associated professor and assistant professor) and administrative (rector, pro-rector and dean) positions. In accordance with Article 27(4) of the law these above positions may not be held by persons who have reached 65 years of age. Article 28(2) of this law provides that the rector shall conclude with the professor an employment contract for the entire period for which he has been elected or for the time period until reaching the age of 65 years. The first sentence of the fifth part of Article 29 of the law “On Scientific Activity” imposes similar restrictions with respect to administration positions (director, deputy director, head of a scientific structural unit) of state scientific institutions as well as to positions in elected collegiate scientific institutions. Since in accordance with this norm of the law “On Scientific Institutions” persons who have reached 65 years of age may not hold the above-mentioned positions, legal labour relations with these persons are to be terminated and the employer ought to give a termination notice. Thus both the impugned norms of the Law on Institutions of Higher Education and the impugned norm of the law “On Scientific Activity” prevent persons who have reached 65 years of age the possibility of running for the above-mentioned positions on equal grounds and thus the equal access to labour market guaranteed by Article 106 of the Satversme is not ensured to these persons. The public and legal opinion on age discrimination has changed over time. In the middle of the last century the attitude towards people of the older generation became

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more discriminating if compared with the viewpoint which dominated at the beginning of the century. In many European states a prohibition of holding certain positions after reaching a certain age was imposed. The Saeima correctly points out that the compilation by the Council of Europe (see University Teachers in Europe. Career structures and status. Ed. by Suzanne Baudemont. Strasbourg: Council of Europe, 1995) attests that a large part of European states have determined a certain age-limit, after reaching of which certain officials and teachers of institutions of higher education have to leave their posts. For example, in the eighties of the last century there was a view that imposing an overly high age-limit would be wrong. This would encumber the work of the tertiary education sector with older teachers, most of whom no longer have a creative approach to their work. Furthermore, the high agre-limit would slow down the intake of younger teachers in the academic sector (see Reform and Development of Tertiary (Post-Secondary) Education in Southern Europe. Strasbourg: Council of Europe, 1980, p. 414). However, this viewpoint has changed, taking into consideration the process of aging of the population and the development of human rights. Namely, human rights envisage a general prohibition of discrimination for the reasons of the age of a person but the prohibition of employment on the basis of age is permissible only in rare and exceptional cases, if there are especially important reasons for it. Article 6 of the International Covenant for Economic, Social and Cultural Rights provides that the states parties to the Covenant recognize the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts. According to Article 2 of the Covenant state parties to it undertake to guarantee that these rights will be exercised without discrimination of any kind. Protocol No. 12 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, which has been signed also by the Republic of Latvia, provides that the enjoyment of any right set forth by law shall be secured without discrimination. In accordance with Article 21 of the Charter of Fundamental Rights of the European Union any discrimination based on the ground of age is prohibited. Besides, the European Council Directive 2000/78/EC of 27 November 2000, to comply with which the European Union Member States have to adopt the necessary provisions by 2 December 2003, establishes in its Article 2 prohibition of both direct and indirect discrimination. According to Article 6(1) of the directive differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives and if the means of achieving that aim are appropriate and necessary. Similar norms can be found also in other international documents (see the judgment of the Constitutional Court in the case no. 2001-12-01, paragraph 3.1.2 of the motives part // Latvijas Vēstnesis, 20.03.2002, No. 44 (2169)). Furthermore, recently adopted constitutions of European countries preclude discrimination on the grounds of age. Thus, Article 6(2) of the Constitution of the Republic of Finland provides that without a justifiable reason differences of treatment may not be applied on the grounds a person’s age. Article 8(2) of the Constitution of the Swiss Confederation also prohibits discrimination of persons on the grounds of age. In Latvia since 1 June 2002 Article 7 of the Labour Law provides that equal rights of everyone to employment, fair, secure and healthy working conditions as well as to a fair remuneration shall be guaranteed without any direct or indirect discrimination and not depending on the age of a person. Article 29 of the Labour Law provides that, when establishing legal employment relations and during the period of existence of

the legal employment relations, especially when promoting an employee, determining the labour conditions, payment or vocational training, as well as when terminating the employment contract, difference of treatment is prohibited, also on the grounds of age. There is no basis for the opinion of the Saeima that the limitations deriving from the impugned norms of the law “On Scientific Activity” may be compared to the limitations established by other legal norms, like those referring to judges, prosecutors, officials of the state civil service, police and border guards. These persons are either state civil servants or officials who belong to the judiciary; their legal employment relations are not based on employment contracts. On the other hand, the employees of institutions of higher education and state research institutions, who are mentioned in the impugned norms are in legal employment relations. In case state civil servants or officials who belong to the judiciary continue to be employed after reaching the age determined by law, the terms of their employment are not changed. But if a rector wishes to continue employing academic staff who have reached the age of 65 years, new contracts have to be concluded and, as the experience shows, the provisions of these (the pay, the duties, the working hours etc.) may be substantially different and may even be worse in comparison with the previous contracts (see vol. 1, pp. 41‑44 of the case materials). Furthermore, the provision of Article 27(4) of the Law on Institutions of Higher Education that “the rector … may conclude individual contracts” also means that, first, the rector alone takes the decision whether it is possible and necessary to employ a 65 years old person. Second, the status of a professor, an associated professor or an assistant professor, i.e., the status of an employed person may change, as there is a possibility of concluding not only an employment contract but also a contractor agreement and in that case the assistant professor, the associated professor or the professor are no longer regarded as employees within the meaning of labour law and they will be no longer protected by the norms of labour law. 2. The Constitutional Court has already previously held that the rights guaranteed by Article 106 of the Satversme may only be restricted in accordance with the procedure provided for by law in cases when it is necessary for the protection of vital public interests and by observing the principle of proportionality [see the judgment of the Constitutional Court in the case no. 2002-20-0103, paragraph 3 of the motives part // Latvijas Vēstnesis, 24.02.2003, no. 62 (2827)]. Article 116 of the Satversme provides that the rights set out in Article 106 “may be subject to restrictions in circumstances provided for by law in order to protect the rights of other people, the democratic structure of the State, and public safety, welfare and morals”. It means that the restrictions of the rights contained in Article 106 of the Satversme shall a) be determined law; b) be in compliance with the legitimate aim the state wishes to achieve by means of establishing the restriction; c) comply with the principle of proportionality. 3. 3.1. As the impugned norms which contain the restrictions of fundamental rights protected by Article 106 of the Satversme are contained in laws adopted by the Saeima, proclaimed under the procedure envisaged by law and are valid, the Court holds that there is no doubt about the fact the restrictions have been determined by law.

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3.2. The Saeima considers that the aim of the restrictions incorporated into the norms of the Law on Institutions of Higher Education is “to ensure the development of the work of institutions of higher education and various branches of science, as well as to “rejuvenate” the academic and administrative personnel”. The persons who hold the positions mentioned in the impugned norms, to a great extent determine the quality of the performance of the institution of higher education as well as the development of the particular branches of science and the institutions of higher education. Therefore, for instance, the professors ought to carry out research or creative work which complies with the requirements of the contemporary level and ought to ensure high quality of study courses in the particular subfield of science or art. In its turn, according to the Saeima, the restriction deriving from the impugned norm of the law “On Scientific Activity” has been imposed with the aim to encourage “the rejuvenation of administrative and principal personnel as well as the advancement of branches of science”. The restriction “is necessary to ensure the possibility for specialists of the younger generation to qualify for the principal elected and administrative positions of state scientific institutions, as the number of administrative and elected positions at the above institutions is limited”. The aims which the legislator has tried to reach by including the restrictions to the fundamental rights in the impugned norms, are important for the development of the higher education, science and art. However, the Saeima in its written replies has not connected the age-limits with any of the value categories mentioned in Article 116 of the Satversme. One cannot agree with the opinion expressed by the representative of the Saeima during the Court hearing that the legitimate aim of the restrictions is to ensure the advancement and modernisation of science in order to protect the democratic structure of the state. The protection of the democratic structure of the state against activities which are aimed towards the liquidation or disturbance of this structure is one of the legitimate aims mentioned in Article 116 of the Satversme and it is permissible to impose proportionate restrictions on fundamental rights, including those guaranteed by Article 106 of the Satversme, in order to achieve that aim. One cannot deny that the development of higher education and science is important to any society, any state structure and form, also to a democratic republic. Yet there is no reason to believe that persons who have reached 65 years of age and are holding the positions mentioned in the impugned norms could endanger the democratic structure of the state. Thus the legitimate aim of the restrictions to the fundamental rights included in the impugned norms of the Law on Institutions of Higher Education and the law “On Scientific Activity” is not and cannot be the protection of the democratic structure of the State. Besides, the restrictions of fundamental rights guaranteed by Article 106 of the Satversme that are included in the impugned norms are also not directed towards the protection of the rights of other people, public safety and morals, mentioned in Article 116 of the Satversme. As an appropriate level of education and science is an inalienable precondition of a successful state development, the Court holds that the aim of the restrictions contained in the impugned norms is to ensure public welfare. Even though the protection of public welfare mainly means the general material welfare of the society, it may be also attributed to non-tangible values, which are necessary for the most harmonious possible functioning of the society. However, “by including in the concept “public welfare” also non-tangible elements, one has to observe maximum discretion, as the public

consensus and harmony in a democratic system are only relative values” (see: Levits E. “Cilvēktiesību piemērošanas pamatjautājumi Latvijā” // “Cilvēktiesības Latvijā un pasaulē”, edited by I. Ziemele. Riga, 2000, pp. 286-287). 3.3. To check the proportionality of the restrictions contained in the impugned norms with the defined legitimate aim, namely, the protection of the public welfare, the restriction has to be assessed in relation to its necessity in a democratic society. In this case one has to consider the possibility of achieving the legitimate aim by the means used by the legislator; whether the aim may be achieved by other means which would restrict the rights and legal interests of an individual to a lesser extent and whether the benefit of the society will be greater than the loss incurred to the rights and lawful interests of an individual. If an assessment of a legal norm reveals that it does not comply with at least one of the above criteria, then it shall be considered as not being in conformity with the principle of proportionality and unlawful [see the judgment of the Constitutional Court in the case no. 2001-12-01, paragraph 3.2. of the motives part // Latvijas Vēstnesis, 20.03.2002, no. 44 (2619)]. The Constitutional Court agrees with the opinion of the Saeima that in order to further the development of higher education and science it is necessary to ensure that the specialists of the younger generation may qualify for the leading administrative and elected positions in state scientific institutions and institutions of higher education, and also for the previously mentioned academic positions. However, the main criterion for holding one of these positions ought to be the qualifications and the abilities of the applicant. In accordance with the first part of Article 28 of the Law on Institutions of Higher Education, a professor ought to be an internationally recognized specialist, who, correspondingly to the contemporary level, performs scientific research or artistic creative work and ensures high quality studies in the respective branch of science or art. The Regulations no. 391 of the Cabinet of Ministers of 9 September 2001 “The Procedure of Assessment of Scientific and Pedagogical Qualifications of the Applicants to a Position of a Professor and Associated Professor” envisages very high required qualification criteria. Adequacy of an applicant for the post of a professor or an associated professor is assessed by taking into consideration their scientific publications in the journals which are entered into the universally recognized list of reviewable scientific publications, confirmed by the Latvian Scientific Council, as well as their participation in international scientific conferences and internationally financed research projects and programmes. A mandatory precondition is a candidate’s contribution to the process of training young scientists – doctors. Besides, the scientific and pedagogical qualifications of an applicant to a position of a professor or an associated professor is assessed by a board of professors of the particular branch. In conformity with the law “On Scientific Activity” very high qualification criteria are envisaged for scientists as well. In accordance with Article 11 of this law a doctor’s and habilitated doctor’s scientific degree may be obtained by persons, who have independently carried out original research the results of which are recognized as an important contribution to the research of a scientific problem and the contents and methodology of which correspond to the common international standards of the particular branch of science. Independent international experts evaluate the compliance of the research with international standards. The research of the Higher Education Board affirms that the restrictions contained in the impugned norms have turned out to be inadequate for reaching the aim advanced by the Saeima. Namely, since 1995, when age limitations were

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established, aging of the higher academic personnel in Latvian institutions of higher education has continued: 31 percent of the professors are older than 60, three quarters are older than 50, but only 2 percent are younger than 40 (see Rivža B., Kondratovičs U. Latvijas universitātes jaunajai Eiropai // Latvijas Vēsture, 2003, no. 1 (49), p. 10). Further, at the end of 2002 only 295 professors were elected to the 491 positions of a professor required by the state (see the supplement to the written reply of the Saeima of 17 January 2003, no. 1-1/7, vol. 1 of the case materials, p. 152). Hence the number of professors is not sufficient to ensure the activity and rejuvenation of the higher education and science. It is not possible to achieve an appropriate development of the higher education and science if the determinant criterion for holding a certain academic or scientific position is only the age of the person and not their professional abilities. “Restrictions based on the assumption that a person’s mental abilities automatically deteriorate with age are absolutely impermissible. First of all, the mental development of persons with the passage of time is very diverse and the universal assumption on the decrease of mental abilities is too imprecise and precarious to accept general restrictions to fundamental rights on the basis of it. Second, such an assumption is to be regarded also as normatively impermissible, because it is at variance with the philosophical conception on human dignity. Third, the normative conception on the ideal of a human being (Menschenbild) does not permit making the scope of fundamental rights dependent on generally presumed abilities and intelligence (which greatly differ in all ages). [Levits E. Par tiesiskās vienlīdzības principu // Latvijas Vēstnesis, 08.05.2003, no. 68 (2833)]. Thus the age-limit established in the impugned norms by itself is insufficient for serving as a general criterion for a prohibition of employment in specific professions, positions and activities. One of the main preconditions for attracting to the field of higher education and science qualified specialists of the younger generation who in due time would be able to substitute the scientists of the older generation is guaranteeing the material- technical basis and appropriate salaries for the young specialists. Otherwise, considering that the salaries in the non-governmental sector are much higher and thus also the public prestige of scientists is low, it is difficult to provoke interest of the specialists of the younger generation to turn to science. During the Saeima plenary session of 6 June 1996, when the amendments to the law “On Scientific Activity” were discussed, the member of the Saeima Guntars Grīnblats warned about the possibility of such a situation, stating that because of the low salary “the youth has no interest in working” in the sector of science. The member of the Saeima foretold: “Very few of these scientific administrators and researchers who are habilitated doctors and able to supervise the doctor theses of the young scientists will remain in Latvia. Thus, we can say that we, so to say, chase away the elderly people but there is no possibility of substituting them by young people” (see vol. 1, p. 227 of the case materials). Even though the National Conception of the Development of Science in the Republic of Latvia, elaborated by the Latvian Council of Science in 1998, stipulated the need of ensuring state funding for scientific activity in the amount of 0,8% of the gross domestic product until 2001 and a further yearly increase of funding of 0,1% of the gross domestic product, this has not been achieved. In conformity with the state budget the funding for the program “Science” in 1998 and 1999 was 0,22% of the gross domestic product, in 2000 – 0,20% and in 2001 – 0,18% (see the letter of the Ministry of Education and Science of 13.02.2003 no. 1-17/253 to the Constitutional

Court, vol. 2, p. 111 of the case materials). At the present moment the state funding granted for science in Latvia is proportionally the lowest from all the candidate states of the European Union [see the opening statement of the president of the Latvian Academy of Sciences professor J. Stradiņš at the spring plenary meeting of the Latvian Academy of Sciences, held on 10 April 2003 // Latvijas Vēstnesis, 15.04.2003, no. 58 (2823)]. The experience of the University of Latvia, the Riga Technical University, the Latvian Academy of Arts and the Latvian Agriculture University attests that in the last few years there is no competition for the vacant academic positions. The number of the applicants usually does not exceed the number of vacancies, but in several cases there have even been fewer applicants than the published vacancies (see vol. 2, pp. 89 and 93, vol. 3, p. 33 of the case materials). In such circumstances it is impermissible to forbid persons to apply for the positions mentioned in the impugned norms without considering their abilities and qualification and only because they have reached 65 years of age. Therefore well-founded is the opinion of the Minister of Education Kārlis Šadurskis that the current procedure might lead to the situation when the shortage of professors would endanger the existence of certain institutions of higer education (see the letter of 22 April 2003 no. 1-17/364, vol. 3, p. 33 of the case materials). The achievement of the aim advanced by the state – the development of higher education and science – cannot be aided by imposing an age limit to the range of persons, who might apply to the positions mentioned in the impugned norms. The legislator may ensure the supply of young specialists for the fields of science and education by using other means, which would restrict the fundamental rights and dignity of persons to a lesser extent. It might be possible to elect persons who have reached a certain age to the positions mentioned in the impugned norms for a shorter period. In accordance with Article 28(2) of the law “On Scientific Activity” a state scientific institution is managed by a director who is elected by the scientists’ collegiate administrative institution (council, senate) and affirmed to the position by the Minister of Science and Education or another corresponding minister. In its turn, the fourth part of this article establishes that the director is discharged from the office pursuant to the procedure set down in the regulations of the state scientific institution. The copy of the by-laws of the Latvian Institute of Organic Synthesis (director E. Lukevics), submitted to the Court, states that the scientific board of the Institute is authorized to decide “on the structure, number and composition of the administrative leadership of the Institute” as well as to determine the rights and obligations of the director (see vol. 1, pp. 108-109 of the case materials). However, the by-laws envisage neither the requirements for the candidates of the post of the director nor the procedure of election, nor the time-limit for holding the post, nor the procedure of dismissing the director. The by-laws of other scientific institutions, on the other hand, contain much more specific criteria for holding administrative positions. For example, the by-laws of the Inorganic Chemistry Institute of the Riga Technical University provide that the director of the Institute shall be elected after holding a competition by secret ballot for the period of five years. Besides the scientific board has the right of taking the decision both on the elections for the position of the director before the end of the previous period and on changes of the administrative personnel. Therefore the Constitutional Court considers that legislative acts have to incorporate more

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precise qualification criteria for the applicants to administration positions of state scientific institutions, as well as for the applicants to the posts of professors and associated professors, as it will ensure transparency and advancement of unified requirements. Article 106 of the Satversme provides that the main criterion for applying for the academic and administrative positions mentioned in the impugned norms ought to be the abilities and qualification but not the age of the candidates. Thus, the prohibition incorporated into the impugned norms which limits the fundamental rights contained in Article 106 of the Satversme on the basis of age, is incompatible with the principle of proportionality. 4. When it has been established that the impugned norms of the Law on Institutions of Higher Education and the law “On Scientific Activity” are incompatible with even one article of the Satversme, these norms have to be declared unlawful and null and void. Hence there is no necessity to assess the compliance of these norms with Article 91 of the Satversme.

The resolutive part On the basis of Articles 30-32 of the Constitutional Court Law, the Constitutional Court decided: To declare the first sentence of Article 27(4) of the Law on Institutions of Higher Education and the phrase “or until the age of 65 years” in Article 28(2) of the Law on Institutions of Higher Education and the first sentence of Article 29(5) of the law “On Scientific Activity” to be incompatible with Article 106 of the Satversme of the Republic of Latvia and null and void as of the date of the announcement of the judgment. The judgment takes effect as of the moment of its announcement. The judgment is final and not subject to appeal. The judgment was pronounced in Riga on 20 May 2003.

The chairman of the hearing of the Court

Aivars Endziņš

2004-15-0106

Non-citizens of Latvia

The status of a non-citizen of Latvia and persons’ rights that follow from it The doctrine of the continuity of the state of Latvia was presented. From the perspective of international law, incorporation of the Republic of Latvia into the Soviet Union was not valid, therefore the Republic of Latvia as a subject of international law continued to exist. Thus, also the totality of the citizens of the Republic of Latvia continued to exist and, following the collapse of the USSR, was restored instead of being defined anew. The historical and political circumstances in which the status of a non-citizen of Latvia1 was defined are explained. Since the totality of the citizens of Latvia was restored, Latvia did not have the obligation to automatically grant citizenship to those individuals and their successors who had never been citizens of Latvia and who had moved to Latvia during the period of occupation. Thus, a new category of persons, hitherto unknown in international law, was created – the non-citizens of Latvia. They can be regarded as neither citizens nor foreigners, nor stateless persons but as persons with a “special legal status”. Latvia has created pre-conditions allowing non-citizens to acquire the citizenship of Latvia. However, to exercise this right or not is the free choice of each person. The legal consequences of introducing the status of non-citizens of Latvia were analysed. The status of a non-citizen cannot be regarded as a form of Latvia’s citizenship. However, the legal connection of non-citizens to Latvia is recognised to a certain degree, and mutual obligations and rights have developed on the basis of it. The right of a person to freely depart from and return to Latvia were examined, as well as the right to the protection of the state while being outside Latvia. These rights are applicable also to the non-citizens of Latvia. The principle of prohibition of expulsion and the prohibition to increase the number of stateless persons also were examined. It was found that in those cases where international documents of human rights provide for a different scope of rights, the broader scope of international human rights is binding upon Latvia.

Non-citizens are those citizens of the former USSR and their children who reside in the Republic of Latvia as well as who are in temporary absence, and who simultaneously comply with the following conditions: 1) on 1 July 1992 they were registered in the territory of Latvia regardless of the status of the living space indicated in the registration of residence, or until 1 July 1992 their last registered place of residence was in the Republic of Latvia, or it has been determined by a court judgment that they have resided in the territory of Latvia for 10 consecutive years until that date; 2) they are not citizens of Latvia; and 3) they are not and have not been citizens of another state.

JUDGMENT in the case no. 2004-15-0106

JUDGMENT in the name of the Republic of Latvia in the case no. 2004-15-0106 Riga, 7 March 2005 The Constitutional Court of the Republic of Latvia in the following composition: chairman of the hearing of the Court Aivars Endziņš, judges Aija Branta, Romāns Apsītis, Ilma Čepāne, Juris Jelāgins, Gunārs Kūtris and Andrejs Lepse pursuant to an application submitted by 20 members of the Saeima [the Parliament] of the Republic of Latvia […], on the basis of Article 85 of the Satversme [the Constitution] of the Republic of Latvia as well as Article 16(1) and (6), Article 17(1)(3) and Article 281 of the Constitutional Court Law, in written proceedings at a hearing held on 8 February 2005 examined the case “On the compliance of Article 1(3)(5), Article 2(2)(2) and Article 7(1)(2) of the law “On the Status of those Former USSR Citizens who do not have Citizenship of Latvia or that of any Other State” with Article 98 of the Satversme of the Republic of Latvia, Articles 2 and 3 of the Fourth Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 12 of the International Covenant on Civil and Political Rights and Article 8(1) of the 30 August 1961 Convention on the Reduction of Number of Stateless Persons”.

The facts 1. On 12 April 1995 the Saeima adopted the law “On the Status of those Former USSR Citizens, who do not have Citizenship of Latvia or that of any Other State” (henceforth – the Non-citizen law). In the context of the present case the compliance of the following norms of the Non-citizen law with the Satversme of the Republic of Latvia (henceforth – the Satversme) and international legal norms binding on Latvia is being assessed: 1) Article 1(3)(5) of the Non-citizen law which provides that the Non-citizen law does not apply to “persons who after 1 July 1992 have been registered at a place of residence in a member state of the Commonwealth of Independent States [henceforth – the CIS] without a time-limit restriction or who have received a permanent residence permit in a foreign state”. The phrase “or who have received a permanent residence permit in a foreign state” was incorporated in this norm by amendments to the law of 20 May 2004; 2) Article 2(2)(2) of the Non-citizen law which provides that a non-citizen has the right “to not be expelled from Latvia, except the case where the expulsion takes place in accordance with the procedures specified by law and the consent of a foreign state has been received to admit the expelled person; expulsion to a state in which such person is persecuted on the ground of his or her race, religion or ethnic origin, as well as collective expulsion is not permitted”; 3) Article 7(1)(3) of the Non-citizen law which provides that the noncitizen status of a person may be revoked if the person “belongs to any of the categories of persons referred to in Article 1(3) of this law. The noncitizen status of the persons referred to in Article 1(3)(5) of this law who have received a permanent residence permit in a foreign state shall be revoked if the permanent residence permit has been received after 1 June 2004.” The last

cited sentence was incorporated in the norm by amendments to the Non-citizen law of 20 May 2004. 2. The petitioner – members of the Saeima – ask the Court to assess the compliance of Article 1(3)(5), Article 2(2)(2) and Article 7(1)(2) of the Non-citizen law (henceforth – the impugned norms) with Article 98 of the Satversme, Articles 2 and 3 of the Fourth Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms (henceforth – the Human Rights Convention), Article 12 of the International Covenant on Civil and Political Rights (henceforth – the Covenant) and Article 8(1) of the 30 August 1961 Convention on the Reduction of Number of Stateless Persons (henceforth – the Statelessness Convention). 2.1. The petitioner points out that the objective of the Non-citizen law had been, first, to distinguish the non-citizens of Latvia from foreign citizens, second, to provide the specific status of these persons in Latvia, third, to issue to non-citizens a personal identification document – a non-citizen’s passport. At the time when the Non-citizen law was adopted, the potential Latvian noncitizens had the possibility of obtaining the citizenship of Russia or other places of the former Union of Soviet Socialist Republics (henceforth – the USSR) just by obtaining a permanent residence registration in the territory of these states. However, presently a permanent registration of residence in Russia and other CIS states no longer automatically establishes for the person the right to citizenship or some other definite status. At this moment, when ten years have passed since the adoption of the Non-citizen law, it is necessary to revise the status of non-citizens in Latvia, as the understanding that the non-citizens are Latvian nationals has become stronger. Besides, by adopting the amendments to the Non-citizen law on 20 May 2004 the Saeima has not strengthened the status of non-citizens but has worsened it by providing that a persons are to be deprived of the non-citizen’s status not only if they have permanently registered their place of residence in the CIS but also if they have obtained a permanent residence permit in a foreign country. 2.2. It is pointed out in the application that the impugned norms are do not comply with the Satversme and violate the liabilities Latvia has undertaken, when acceding to international agreements in the field of human rights, adopted within the framework of UN and the Council of Europe. The petitioner stresses that the impugned norms restrict the freedom of movement of a person. To their mind the restriction of this right has no legitimate aim and it is not proportionate. It is pointed out in the application that there is no reason and it is disproportionate to deprive a person of the status of a non-citizen only because such a person has received a permanent residence permit in a foreign country. A permanent residence permit in a foreign country does not guarantee the citizenship or a related status of the particular state. The aim of the legislator to decrease the number of non-citizens of Latvia by forced administrative methods is not sufficiently legitimate. Even if the aim of the legislator were to be acknowledged as legitimate, it may be reached by employing other measures which restrict the rights of a person to a lesser degree. The norms of the Non-citizen law which refer to the deprivation of the status of non-citizen might create a negative attitude of foreign states to nationals of Latvia, as the deprivation of the status of a non-citizen may make the non-citizens living in foreign

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countries stateless persons. The norm which refers to the expulsion of non-citizens may also make these persons stateless, as expulsion to another state does not create the right to citizenship of that state. The petitioner alleges that the non-citizens’ right to non-expulsion is restricted in the context of Article 3 of the Human Rights Convention, as this article would be applicable not only to citizens of Latvia but also to its nationals, namely, the noncitizens. 3. The institution, which has adopted the impugned norm – the Saeima of the Republic of Latvia (henceforth – the Saeima) does not agree with the arguments expressed in the application. 3.1. It is pointed out in the written reply of the Saeima that the necessity to adopt the Non-citizen law was based on the decision “On the Renewal of the Republic of Latvia Citizens’ Rights and Fundamental Principles of Naturalization”, adopted by the Supreme Council of the Latvian Soviet Socialist Republic (henceforth – the Supreme Council) on 15 October 1991, the objective of which was to take cognisance of the body of citizens of Latvia until the entry into force of the Citizenship Law. The same was required by the law “On Entry into and Residence in the Republic of Latvia of Aliens and Stateless Persons”, adopted by the Supreme Council on 9 June 1992; it was required also because the Citizenship Law, which was adopted on 22 July 1994, left open the issue of those aliens and stateless persons who before the entry into force of the law “On Entry into and Residence in the Republic of Latvia of Aliens and Stateless Persons” (namely, before 1 July 1992) had acquired permanent registration of residence in the Republic of Latvia and had been entered into the Population registry in accordance with the valid legislative acts. Thus in 1994 in Latvia there was a situation that persons who had entered the territory of Latvia from the USSR during the period of the occupation of Latvia, starting from 1940, and who after the collapse of the USSR had lost their Soviet citizenship remained in Latvia. 3.2. Taking into consideration the historical situation of Latvia, the Non-citizen law was necessary to bestow a particular status to the persons whose status did not correspond to that of an alien or a stateless person, as defined in international instruments. The Saeima reminds that already from the outset it was essential to determine to which internationally recognized category of persons ought to belong the citizens of the former USSR. The members of the Saeima have expressed different opinions, comparing these persons to aliens, stateless persons and permanent residents; there have also been proposals to bestow on them a different specific status. At the same time unmistakable has been the viewpoint of the member of the Saeima that the Non-citizen law ought to be applied only to those persons who have a long-lasting connection with the state of Latvia; and exactly this viewpoint was reflected in Article 1 of the Non-citizen law. When defining the range of persons to whom the impugned norms ought to refer, several requirements were determined, namely – the person has to be the citizen of the former USSR who before 1 July 1992 permanently resided in Latvia in whose passport a permanent residence registration in the territory of Latvia is entered and this person has to live in the Republic of Latvia. It was decided to grant to these persons the range of the rights enjoyed by every person in the state. The Saeima states that by assigning the status of a non-citizen to a specific group of persons Latvia has undertaken the duty of guaranteeing a particular status for these

persons and has granted them specific rights and duties, but with the provision that these persons ought to maintain a connection with the Republic of Latvia. On the other hand, these persons were given the possibility of obtaining the citizenship of Latvia through naturalisation in accordance with the provisions of the Citizenship Law. The Saeima stresses that the legislator has an absolute right to determine the range of subjects of the Latvian citizenship; in their turn persons may choose whether to obtain the Latvian citizenship and the guarantees connected with it or not. The Saeima points out that a non-citizen of Latvia is not be regarded as a Latvian national, because belonging to the State follows only from the institute of citizenship. This principle is affirmed in the first part of Article 1 of the Citizenship Law, which provides that the citizenship of Latvia is a person’s permanent legal connection with the state of Latvia. In the written reply it is pointed out that a non-citizen of Latvia is to be regarded as the permanent resident of Latvia – a long-term resident, as this status envisages a stable legal connection to the state of Latvia and is directed to a solution whereby such persons who are permanently residing in Latvia may obtain citizenship through naturalization. The Saeima especially stresses that since 1998 when the non-citizens’ limitations for naturalisation were abrogated, at any moment they have the right to naturalize, to obtain the Latvian citizenship and to enjoy the rights of a Latvian citizen. If a non-citizen wants to permanently live in a foreign country, but also to maintain a legal connection with Latvia, there are neither legal nor administrative obstacles for naturalization and enjoyment of the rights associated with the status of a Latvian citizen, including the right of residing outside the territory of the Republic of Latvia for an unlimited time. 3.3. It is pointed out in the written reply that the aim of the amendments of 20 May 2004 was to solve in a legally correct way the situation when non-citizens have obtained a permanent residence permit in a foreign state and in accordance with the 1954 Convention on the Status of a Stateless Person have received travel documents. When moving to live in another state the non-citizens lose their connection with Latvia. As an argument substantiating the loss of this connection the Saeima invokes the practice of the states, in accordance with which persons usually have to live in the state for several years before obtaining a permanent residence permit. The Saeima points out that in international practice persons who have left Latvia with a non-citizen passport and have received a permanent residence permit in a foreign state, are not regarded as non-citizens of Latvia within the meaning of the Non-citizen law but as stateless persons within the meaning of the 1954 Convention on the Status of a Stateless Person. Therefore the norms of the Convention on the status of a stateless person are applied to them, including that Article 27, which obliges the host countries to issue travel documents to persons, who legally reside in that country. The information accumulated by the Ministry for the Interior confirms this. The states, in which the Latvian non-citizens are lawfully residing on the basis of a permanent residence permit, issue them with travel documents for stateless persons. Besides, when requesting issuance of a new passport, the Latvian non-citizens living in a foreign state address the institutions for the interior of that state and not the Latvian institutions located in that state. Thus the persons confirm their choice to reside and be connected with this state as its nationals and not as non-citizens of Latvia. The objective of the Non-citizen law has not been to preserve the status of a noncitizen for everybody and for an unlimited time, but only for a certain period, so that the persona with such a status, if they so wish, might obtain the citizenship of Latvia or choose another state for long-term residence, hence attesting their connection with

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that state and not with Latvia. The objective of the law has been to determine the status of persons living in Latvia or outside it on a short-term basis and to regulate their rights and obligations until the moment these persons obtain the citizenship of Latvia or another state. The Saeima points out – if a Latvian non-citizen permanently resides in another state, he has no objective need to enjoy specific rights of a non-citizen, which are guaranteed to him only in the Republic of Latvia. It is argued in the written reply that the procedure for expulsion of non-citizens provided for by the Non-citizen law does not lack legitimacy. A person may be expelled only in accordance with the procedures specified by law and only if the consent of a foreign state to admit the expelled person has been received. Article 3 of the Fourth Protocol to the Human Rights Convention is not applicable to non-citizens of Latvia, as it is applicable only to citizens. The Saeima believes the Statelessness Convention does not apply to non-citizens of Latvia, as it only contains the prohibition to deprive a person of citizenship. […]

The motives

11. To assess the compatibility of the impugned norms with the Satversme and the international legal norms binding on Latvia, one has to analyse the historical and political circumstances of the creation of the status of a non-citizen as well as the legal consequences of the creation of the status of a non-citizen. To determine the international obligations of Latvia regarding non-citizens of Latvia, one has to assess the status of a non-citizen and the fact whether and to what extent the international community (foreign states and international organizations) has recognised it. 12. The adoption of the Non-citizen law in Latvia was predestined by the historical and political situation in Latvia after the collapse of the USSR. The former USSR republics chose different procedures for determining the aggregate body of citizens. It was determined both on the basis of territorial origin and permanent residence in a particular territory before regaining the independence. In several former USSR republics a registration of residence served as a sufficient basis for receiving the citizenship of the new state automatically. In other states a certain number of years of permanent residence was chosen as the main criterion (see: Ziemele I. Pilsonība un cilvēktiesības valstu pēctecības kontekstā. // Likums un Tiesības, 2002, no. 8, p. 234). In comparison with other former Soviet republics, the fundamental principles for determining the aggregate body of citizens in Latvia and Estonia were different. Regaining of the independence after the period of occupation of Latvia gave the legislator the possibility to determine the aggregate body of citizens of Latvia. Continuity of Latvia as a subject of international law created the legal basis for not automatically granting the status of the citizen to a certain group of persons. The legal basis of the continuity of Latvia is established in the declaration of the Supreme Council of 4 May 1990 on the Renewal of the Independence of the Republic of Latvia (henceforth – the Independence Declaration). It regulates both – the legal status of Latvia within the meaning of international law and fundamental issues of constitutional law. The preamble of the Declaration on Independence, which consists of a recital of historical facts and their legal assessment, provides, inter alia: “[…] according to

international law, the incorporation of the Republic of Latvia into the Soviet Union is invalid. Accordingly, the Republic of Latvia continues to exist de jure as a subject of international law and is recognized as such by more than 50 nations of the world”. Correct is the opinion expressed in the legal doctrine that it is exactly the consolidation of the doctrine of continuity of the state of Latvia in the Latvian legal system that is to be be regarded as the main function of the preamble of the Independence Declaration (see: Levits E. 4. maija deklarācija Latvijas tiesību sistēmā. // 4. maijs. Rakstu, atmiņu un dokumentu krājums par Neatkarības deklarāciju, Riga: Latvijas Universitātes žurnāla “Latvijas Vēsture” fonds, 2000, p. 57). 13. The aggregate body of citizens of the Republic of Latvia was determined by the decision of the Supreme Council of 15 October 1991 “On the Renewal of the Rights of the Citizens of the Republic of Latvia and the Fundamental Principles of Naturalisation”. The decision provides: although the Republic of Latvia was occupied on 17 June 1940 and the state lost its sovereign power, its aggregate body of citizens continues to exist in accordance with the “Law on Citizenship” of the Republic of Latvia of 23 August 1919. The decision envisaged both – the procedure for determination of the aggregate body of citizens of the Republic of Latvia and the fundamental principles of naturalisation. Taking into consideration the continuity of Latvia as a subject of international law, there was a reason for renewing the aggregate body of Latvia in the same way as it was determined by the 1919 “Law on Citizenship”. Thus, Latvia did not grant citizenship to persons who held it already before occupation of Latvia but renewed the rights of these persons de facto (see: Ziemele I. Starptautiskās tiesības un cilvēktiesības Latvijā: abstrakcija vai realitāte. Riga: Tiesu namu aģentūra, 2005, p. 103). It follows from both – the 1991 Supreme Council decision “On the Renewal of the Rights of Citizens of the Republic of Latvia and the Fundamental Principles of Naturalisation” and the Citizenship Law adopted in 1994 that the aggregate body of citizens was renewed and not determined anew. Thus, there is no basis for the opinion that Latvia has had the obligation to automatically grant citizenship to those individuals and their descendants who have never been citizens of Latvia and who have entered Latvia during the years of occupation. Besides, these persons were given the possibility to obtain the Latvian citizenship under the procedure of naturalization. 14. In its written reply the Saeima correctly points out that the need to adopt the Non-citizen law arose from both the 1991 Supreme Council decision “On the Renewal of the Rights of the Citizens of the Republic of Latvia and the Fundamental Principles of Naturalisation” and the law of 9 June 1992 “On the Entry into and Residence in the Republic of Latvia of Aliens and Stateless Persons”, as well as the Citizenship Law, which was adopted on 22 July 1994. In 1994 Citizenship Law left open the issue of those aliens and stateless persons who before the entry into force of the law “On Entry into and Residence in the Republic of Latvia of Aliens and Stateless Persons” (namely, before 1 July 1992) had acquired permanent registration of residence in the Republic of Latvia and had been entered into the Population registry in accordance with the valid legislative acts. Therefore it was necessary to provide a particular legal status for those persons who had entered the territory of Latvia during the years of occupation, and had lost the USSR citizenship after the collapse of the USSR without acquiring any other citizenship.

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Granting of the status of non-citizens to a certain group of persons was the result of a complicated political compromise. Besides, when adopting the Non-citizen law Latvia had to observe also the international human rights standards, which prohibit increasing the number of stateless persons in cases of state continuity. 15. After the Non-citizen law was adopted, there appeared a new category of persons – Latvian non-citizens, which was a category previously unknown to the international law. Latvian non-citizens cannot be compared to any other status of a physical person which has been provided for in international legal acts, as the scope of the rights granted to non-citizens does not fully correspond to any other such status. Latvian non-citizens cannot be regarded as citizens, aliens or stateless persons; they should be seen as persons with “a specific legal status”. Latvia has clearly indicated that non-citizens are not to be regarded as stateless persons, because Article 3(2) of the Law on Stateless Persons provides that persons who are the subjects of the law “On the Status of the Former USSR Citizens who are not Citizens of Latvia or any Other State” cannot be regarded as stateless persons. Latvian representatives at international institutions have also consistently defended the stand that the status of a non-citizen cannot be equalled with the status of a stateless person. Non-citizens cannot be regarded as aliens because in accordance with Article 1 of the Immigration Law an alien is a person who is not a Latvian citizen or a non-citizen of Latvia. Also the EU Network of Independent Experts on Fundamental Rights in its 2003 Report on the issues of fundamental rights in the European Union and its Member States points out that non-citizens, defined by the law “On the Status of Former USSR Citizens, who are not Citizens of Latvia or any Other State”, are not citizens, aliens or stateless persons. The expert group points out that the Latvian non-citizens belong to a category of persons previously unknown in public international law (Synthesis Report: Conclusions and Recommendations on the Situation of Fundamental Rights in the European Union and its Member States in 2003, 4 February 2004, p. 90). 16. The Saeima expresses the view that the objective of the Non-citizen law has not been to retain the status of a non-citizen for everybody for an unlimited time. The status was established as a temporary status, so that over time the person might obtain the citizenship of Latvia or choose another state with which to establish legal ties. However, such an objective of the legislator was not clearly expressed in the Noncitizen law which was adopted in 1995 but it is indirectly expressed through the procedure for the naturalisation process in force in Latvia, which bestows on non-citizens the right to acquire a certain status, namely, the citizenship of Latvia. It has to be stressed that since 1998 when the restrictions to naturalization of noncitizens were eliminated, they have the right to naturalise at any moment, to obtain the Latvian citizenship and to enjoy the rights of a Latvian citizen. Thus, Latvia has created preconditions for persons to whom the status of a non-citizen was bestowed by the Non-citizen law, to acquire Latvian citizenship. However, whether this right is used or not is a free choice of every person. 17. The status of a non-citizen is not and cannot be regarded as a type of Latvian citizenship. However, the rights of non-citizens and the international obligations that Latvia has assumes with respect to them indicate that the legal ties of non-citizens with

Latvia are to a certain extent recognized and mutual obligations and rights have been created on their basis. This follows from Article 98 of the Satversme which, inter alia, establishes that everyone having a Latvian passport shall be protected by the State and has the right to freely return to Latvia. The rights which Latvia has granted to its non-citizens may influence immigration policy of other states with regard to these persons because other states take into consideration the fact that Latvia undertakes certain liabilities with regard to them; for example, it guarantees diplomatic protection of the non-citizens abroad, as well as guarantees their right to return to Latvia. Thus, the Saeima, when amending the Non-citizen law, had to consider the potential international consequences of the amendments. Therefore it is necessary to analyse the compliance of the impugned norms with the rights deriving from Article 98 of the Satversme, namely – the right of everybody to freely depart from Latvia as well as the right of everyone having a Latvian passport to protection by the State when abroad and the right to freely return to Latvia. It also has to be assessed whether the impugned norms comply with the obligations of Latvia deriving from Articles 2 and 3 of the Fourth Protocol to the Human Rights Convention, Article 12 of the Covenant as well as Article 8(1) of the Convention on Stateless Persons. 18. It follows from the application that the compliance of the impugned norms has to be assessed only with the first two sentences of Article 98 of the Satversme, which provide: “Everyone has the right to freely depart from Latvia. Everyone having a Latvian passport shall be protected by the State when abroad and has the right to freely return to Latvia”. The Constitutional Court has already previously indicated that in cases when there are doubts about the contents of the human rights norms of the Satversme, they should be interpreted as close as possible to the interpretation used in the practice of international human rights norms (see: the judgment of the Constitutional Court of 30 August 2000 in the case no. 2000-03-01; paragraph 5 of the motives part). Besides, from Article 89 of the Satversme which establishes that “the State shall recognize and protect fundamental human rights in accordance with this Satversme, laws and international agreements binding upon Latvia” it follows that the aim of the legislator has been to attain mutual harmony of the legal norms of the Satversme and the international human rights norms (see, for example, the judgment of the Constitutional Court of 27 June 2003 in the case no. 2003-04-01, paragraph 1 of the motives part and the judgment of 17 January 2005 in the case no. 2004-10-01, paragraph 7.1.). Therefore it has to be determined to what extent the rights guaranteed by the Covenant and the Human Rights Convention and the practice of their implementation may be applied when interpreting the contents of the rights incorporated in Article 98 of the Satversme. The right to depart from the state, even from one’s own state, incorporated in Article 12(2) of the Covenant, applies to every person, not only the citizens of the particular state. Thus, the contents of this norm may be applied when assessing the conformity of the impugned norms with Article 98 of the Satversme. Article 12(4) of the Covenant provides for the right to return to one’s own the state. The Human Rights Committee has indicated that the rights included in this norm ought to be interpreted by taking into consideration the special connection of the person with the state. Application of this right is not limited to the state of citizenship in its formal meaning. The right to return to one’s own state refers also to the state with which the person has a special link [see: Joseph S., Schultz J., Castan M. (eds.) The International Covenant in Civil and Political Rights. Cases, materials and Commentary,

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2nd ed., Oxford University Press, 2004, p. 366]. Therefore also the content of the right incorporated in Article 12(4) of the Covenant is applicable when assessing the compliance of the impugned norms with Article 98 of the Satversme. Article 2(2) of the Fourth Protocol to the Human Rights Convention determines the right of everybody to depart from any state, including their own state. Up to now the European Court of Human Rights has not indicated that the rights guaranteed by above Article are to be applied only to the citizens of the particular state. Therefore this norm may be applied when interpreting the right of everyone guaranteed by Article 98 of the Satversme to depart from a state. Article 3(2) of the Fourth Protocol to the Human Rights Convention establishes that no one shall be deprived of the right to enter the territory of the state of which he is a national. The European Court of Human Rights has indicated that “the Convention does not guarantee for a person who is not a citizen of a state the right to enter and reside in that state; it also does not guarantee the right not to be expelled from this state. In accordance with the principle established in the international law, the Contracting States have the right to control the entry, residence and departure of persons, who are not their citizens (non-nationaux)” (decision of the European Court of Human Rights of 29 January 2004 in the case “Kolosovskiy v. Latvia”, application no. 50183/99). Therefore this norm of the Human Rights Convention applies only to the citizens of the particular state and may not be applied with regard to non-citizens of Latvia when interpreting the right to return to Latvia, guaranteed by Article 98 of the Satversme. It follows from the above that the scope of rights guaranteed by the Covenant and by the Convention is different but from the viewpoint of Latvian law the most extensive international standard of human rights is binding on Latvia. 19. Article 98 of the Satversme guarantees the right of everyone to freely depart from Latvia. This right includes several aspects. The right to depart from the territory of the state may not be restricted by asking for the reason why the person wants to depart from the state. In the same way this right may not be limited by determining the length of period that an individual may remain outside the state (see Joseph S., Schultz J., Castan M., p. 355). It includes also the right of the individual to freely depart to another state of his choice, if the particular state is ready to accept this person (see the judgment of the European Court of Human Rights of 13 February 2004 in the case “Napijalo v. Croatia”, § 68). Article 98 of the Satversme also guarantees the right of everyone having a Latvian passport to freely return to Latvia. The range of persons who have a constitutionally guaranteed right to freely return to Latvia is to be determined by a reference to the Law on Personal Identity Documents. Article 4 of this law defines the types of passports issued in Latvia. In conformity with this article a Latvian passport is issued not only to citizens, but also to non-citizens. Thus, the right to freely return to Latvia is applicable also to non-citizens of Latvia. Article 98 of the Satversme provides that everyone having a Latvian passport shall be protected by the State. It means that Latvia exercises diplomatic protection over persons who have a Latvian passport. Diplomatic protection is not a fundamental right but is to be be regarded as a mechanism of implementation of human rights and it may manifest itself, for example, so that access to consular institutions is ensured to a person. The state has discretion as to whether to exercise diplomatic protection over an individual or not. However, the state may have the duty to exercise diplomatic protection if ius cogens norms have been breached with respect to an individual.

There are different opinions on whether diplomatic protection may be exercised only with regard to persons who in the context of international law are considered to be nationals of that state within the meaning of the Nottebohm case [Nottebohm judgment (Liechtenstein v. Guatemala), Second Phase, [1955] ICJ Reports] or whether permanent residence in the particular state may be an equally important consideration [see the Report of the International Law Commission on the work of its fifty-second session, 1 May to 9 June and 10 July to 18 August 2000 (A/55/10, Chapter V; http:// www.un.org/law/ilc/reports/2000/English/chp5e.pdf ]. The wording of Article 98 of the Satversme indicates that Latvia exercises diplomatic protection also with regard to non-citizens of Latvia. 20. The content of the impugned norms is different, therefore it needs to be established whether their content is to be regarded as a restriction of the rights guaranteed by Article 98 of the Satversme. Article 1(3)(5) of the Non-citizen law determines the range of persons who cannot apply for the status of a non-citizen. This norm, especially if it is assessed in conjunction with Article 7(1)(2) of the same law, may affect the immigration policy of other states with regard to non-citizens of Latvia. Taking into consideration the fact that by the amendments of 20 May 2004 the scope of persons defined in Article 1(3) (5) of the Non-citizen law to whom the Non-citizen law does not apply was broadened, the contents of this norm shall be considered as a norm which may restrict the freedom of movement guaranteed by Article 98 of the Satversme as well as the state‑guaranteed protection, to which is entitled everyone having a Latvian passport. Article 2(2)(2) of the Non-citizen law sets down the procedure of expulsion of noncitizens. Compatibility of this norm with Article 98 of the Satversme cannot be assessed as this article does not concern expulsion at all. Article 7(1)(2) of the Non-citizen law envisages the possibility of depriving the status of a non-citizen and thus also the specific state protection of persons who have formed lengthy and stable ties with Latvia. Thus, the rights guaranteed by Article 98 of the Satversme may be restricted. The impugned norm may also influence the immigration policy of other states with regard to non-citizens of Latvia. Therefore Article 7(1)(2) of the Non-citizen law, which is to be assessed in conjunction with Article 1(3)(5) of the Non-citizen law is to be considered as a restriction of the rights guaranteed by Article 98 of the Satversme. 21. Most of the fundamental rights guaranteed by the Satversme are not absolute and the state may restrict then under certain conditions. In accordance with Article 116 of the Satversme the rights of persons set out in Article 98 of the Satversme may be subject to restrictions in circumstances provided for by law in order to protect the rights of other people, the democratic structure of the State and public safety, welfare and morals. Article 2(3) of the Fourth Protocol to the Human Rights Convention also provides that no restrictions shall be placed on the exercise of the right to be free to leave any country, including person’s own other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Article 12(3) of the Covenant establishes that the right of everybody to leave any country, including his own, shall not be subject to any restrictions except those which

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are provided for by the law, are necessary to protect national security, public order (ordre public), public health or morals, or the rights and freedoms of others, and are consistent with the other rights recognized in the Covenant. As concerns the right to enter own country, Article 12(4) of the Covenant provides that no one shall be arbitrarily deprived of this right. Thus, the rights guaranteed by Article 98 of the Satversme may be subject to restrictions, if the restrictions are provided for by law, pursue a legitimate aim and are necessary in a democratic society. 22. Restriction of the rights guaranteed by Article 98 of the Satversme is provided for by law, namely – Article 1(3)(5) and Article 7(1)(2) of the Non-citizen law. This law has been, first, promulgated in accordance with the procedure set out by law, is in effect and is publicly accessible. Second, the legal norm is sufficiently clear enabling an individual to anticipate the consequences of its application. Thus the restriction included in the impugned norms is provided for by law. 23. It is indicated in the annotation of the draft of the amendments to the Noncitizen law, submitted by the Cabinet of Ministers, that the amendments have been needed, first of all, for abrogation of privileges for those non-citizens who take up a permanent residence in states which are not CIS Member States and, secondly, to provide for a possibility for a person to disclaim the status of a non-citizen, if such a person permanently resides in another state and has received travel documents from it (see the annotation of the draft amendments to the Law “On the Status of those Former USSR Citizens who do not have Citizenship of Latvia or that of any Other State”, IEMAnot_190503; p. 49 of volume 1 of the case materials). When amending the Non-citizen law, the legislator has not indicated a different aim of the amendments. Also the President of the State, when forwarding the draft law for the second revision, has mentioned that there is no reason and it is disproportional to deprive a person of the status of a non-citizen just because the person has received a permanent residence permit in a foreign country, which guarantees for the person neither the citizenship of the particular foreign country nor a certain status connected with citizenship. The President has stressed that the legislator, when taking the decision to apply such a precondition for depriving the status of a non-citizen to persons who had received the permanent residence permit before the adoption of the 2004 amendments to the law, has violated the principle of the protection of legitimate expectations [see: Prasot otrreiz caurlūkot likumu “Grozījumi likumā “Par to bijušās PSRS pilsoņu statusu, kuriem nav Latvijas vai citas valsts pilsonības””. Latvijas Vēstnesis, 25 March 2004, no. 47 (2995)]. However, the legislator when reviewing the amendments to the Non-citizen law under the procedure of the second revision took into consideration the objections of the President of the State only partially and, when amending Article 7(1)(2), provided that the status of a non-citizen shall be deprived only for those persons who have received a permanent residence permit in a foreign country after 1 June 2004. Thus, the amendments maintained the approach that the deprivation of the status of a noncitizen may be related to the fact of receiving a permanent residence permit in a foreign country or registration of a place of residence in a CIS Member State without a timelimit. At the Saeima session before the adoption of the amendments under the procedure of the second revision neither the Saeima Committee of Legal Affairs nor members

of the Saeima indicated their legitimate aim. Thus, the legislator did not use the opportunity to amend the Non-citizen law in a way that would comply with the Satversme and international legal norms binding on Latvia. The legitimate aim of the amendments was also not indicated in the written reply of the Saeima. Taking into consideration the fact that the restrictions of the fundamental rights which follow from Article 1(3)(5) and Article 7(1)(2) of the Non-citizen law lack a legitimate aim, there is no need to examine whether the restrictions are necessary in a democratic society or whether they comply with the proportionality principle. 24. It follows from the application that the petitioner disputes the compliance of Article 2(2)(2) of the Non-citizen law with Article 3(1) of the Fourth Protocol to the Human Rights Convention, which provides that no one shall be expelled, by means either of an individual or of a collective measure, from the territory of the state of which he is a national. The European Court of Human Rights has pointed out that the above-mentioned article ensures the absolute and indisputable right not to be expelled only to those persons who can be regarded as nationals of the particular state. However, the contents of this notion shall be set out in the national laws (see the decision of the European Court of Human Rights of 23 January 2002 in the case “Slivenko and others v. Latvia”, application no. 48321/99; §77 and §78). The question whether Latvian non-citizens should be regarded as nationals within the meaning of international law is not only a legal but primarily a political issue, which is to be decided within the framework of the democratically political process of the state. However, when assessing the principle of prohibition of expulsion included in this article of the Convention with regard to Latvian non-citizens, it can be concluded that the procedure for expulsion that is provided for by the Non-citizen law does not contain a restriction of human rights. Article 2(2)(2) of the Non-citizen law provides that a non-citizen has the right to not be expelled from Latvia, except the case where the expulsion takes place in accordance with the procedures specified by law and the consent of a foreign state has been received to admit the expelled person. The expulsion of a non-citizen to a state in which such person is persecuted on the ground of his or her race, religion or ethnic origin, as well as collective expulsion is not permitted. Thus the procedure for expulsion set out in the Non-citizen law is strictly regulated and does not permit arbitrary violations of the principle of the prohibition of expulsion. When analysing the concept “in accordance with the procedures specified by law”, which is contained in the impugned norms, it has to be indicated that the expulsion of a person in Latvia may take place under the procedure provided for in the Immigration Law or the Criminal Law. The procedure for the expulsion of persons established by the Immigration Law does not pertain to non-citizens of Latvia. First, the purpose of the Immigration Law is to provide procedures for the entry, residence, transit, exit and detention of aliens, as well as the procedures by which aliens are held under guard in the Republic of Latvia and expelled from it in order to ensure the implementation of migration policy which complies with international law and the interests of the state of Latvia (Article 2 of the Immigration Law). Second, within the meaning of the Immigration Law an alien is a person who is not a Latvian citizen or a non-citizen of Latvia.

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The Criminal Law permits ordering the deportation from the Republic of Latvia as an additional sentence (Article 36 of the Criminal Law). Article 43 of the Criminal Law provides that a citizen of another state or a person who has a permanent residence permit of another state may be deported from the Republic of Latvia if a court finds that, considering the circumstances of the case and the personality of the guilty person, it is not permissible for him or her to remain in the Republic of Latvia. Hence this article may apply only to those non-citizens who have a permanent residence permit of another state. It is vital that the judge when ordering deportation as an additional sentence has an obligation to consider the circumstances in the particular case and the personality of the offender. Thus the judge in every particular case has to check whether deportation from Latvia as an additional sentence does not create an unreasonable restriction of human rights. Thus, it can be concluded that Article 2(2)(2) of the Non-citizen law complies with the principle of the prohibition of an expulsion of a person. 25. The petitioner states that it is also necessary to assess the compliance of the impugned norms with Article 8(1) of the Convention on Stateless Persons. Latvia acceded to the Convention on Stateless Persons pursuant to the declaration of 4 May 1990 “On the Accession of the Republic of Latvia to International Legal Instruments on Human Rights Issues”. This Convention is in effect in Latvia from 13 July 1992. Even though the Convention on Stateless Persons is binding on Latvia, its official translation into Latvian has not been published. Thus, in accordance with Article 33 of 1969 Vienna Convention on the Law of International Treaties the unofficial translation of the Convention into the Latvian language may be used only insofar as it is not contrary to the authentic text. The authentic texts of the Convention, namely – in English and French – specify that Article 8(1) of this Convention pertains to the prohibition of the deprivation of nationality (English) or nationalité (French). The issue on what the status of a noncitizen will be in the understanding of the Convention on Stateless Persons and that of the international law shall be resolved under the procedure established in paragraph 24 of this judgment. However, it should be taken into consideration that the Convention on the Stateless Persons incorporates a general principle of prohibition of increase of the number of stateless persons. This Convention is an international agreement, which has been adopted to implement the obligation of states to decrease the number of stateless persons. When assessing the contents of the impugned norms it can be concluded that Article 7(1)(2) of the Non-citizen law in its present wording potentially permits increasing of the number of stateless persons. This norm connects the deprivation of the status of a non-citizen with receiving a permanent residence permit in a foreign state or with permanent registration of the place of residence in a CIS Member State. As it has been previously pointed out in this judgment, neither receiving a permanent residence permit in a foreign state nor a permanent registration of a place of residence in a CIS Member State grants a person a status which would be provided by granting of citizenship (nationality). Thus Article 7(1)(2) of the Non-citizen law is to be regarded as incompatible with the principle of the prohibition of increasing the number of stateless persons.

26. Article 1(3)(5) and Article 7(1)(2) contain an unfounded restriction of human rights guaranteed by the Satversme and international legal norms binding on Latvia. If the impugned norms became void from the moment of the announcement of the judgement, as the petitioner requests, this would create a situation of the abolishment of all legal regulation of the specific relations. Therefore, when taking the decision on the moment from which the impugned norms will lose effect, the Constitutional Court takes into consideration that a certain period of time is needed to amend these norms in a way that will comply with the human rights standards set out in the Satversme and binding on Latvia.

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The resolutive part On the basis of Articles 30-32 of the Constitutional Court Law the Constitutional Court decided: 1. To declare Article 1(3)(5) of the law “On the Status of those Former USSR Citizens who do not have Citizenship of Latvia or that of any Other State” to be incompatible with Article 98 of the Satversme of the Republic of Latvia and null and void from 1 September 2005. 2. To declare Article 7(1)(2) of the law “On the Status of those Former USSR Citizens who do not have Citizenship of Latvia or that of any Other State” to be incompatible with Article 98 of the Satversme of the Republic of Latvia and null and void from 1 September 2005. 3. To declare Article 2(2)(2) of the law “On the Status of those Former USSR Citizens who do not have Citizenship of Latvia or that of any Other State” to be compatible with Article 3(1) of the Fourth Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms”. The judgment is final and not subject to appeal. The judgment takes effect on the day it is published.

The chairman of the hearing of the Court

A. Endziņš

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2005-16-01

Ceiling of rental payments

Determining the maximum amount of rental payment in denationalised housing properties Denationalisation of housing properties which was implemented following the restoration of the independence of the state of Latvia was examined as an element of the property reform. The state of Latvia is not responsible for human rights violations, including denationalisation of property, which have been committed by the occupation power in the period spanning half a century. However, the legislator has the obligation to take measures to compensate the damages inflicted by the previous regime and to restore justice, to the extent possible. As fair as possible a balance between the contradictory interests of various members of society should be reached. To protect the interests of tenants living in denationalised housing properties, the legislator, inter alia, defined the maximum level of rent and, thus, the owners’ right to property was restricted – they were denied the possibility to demand such a rental payment that would cover reasonable house maintenance costs and would ensure reasonable profit. It was found that short-term intervention into the legal rental relationships could be justified; however, in the longer term, the state should assume the responsibility for the risk of a social upheaval. Placing the financial hardships of tenants on the owners’ shoulders is not fair. The tenants’ legitimate expectations that the state would continue to protect their interests were examined – the tenants could not expect that they would be able to pay forever lower rental payments compared to other persons; however, they could expect that the state would take care of the protection of their rights and would find a reasonable solution to their problems. House owners’ legitimate expectations that restrictions on their rights would be terminated within a reasonable term were examined – in a democratic state governed by the rule of law the principle of legal expectations does not prohibit implementing extensive and significant reforms; however, “endless reforms” are contrary to this principle.

JUDGMENT in the name of the Republic of Latvia in the case no. 2005-16-01 Riga, 8 March 2006 The Constitutional Court of the Republic of Latvia in the following composition: the chairman of the hearing of the Court Aivars Endziņš and judges Romāns Apsītis, Aija Branta, Ilma Čepāne, Juris Jelāgins, Gunārs Kūtris and Andrejs Lepse with the secretary of the hearing of the Court Arnis Žugans

in the presence of the petitioner Anda Erneste, who represented also the petitioner Ilmārs Ernests, sworn attorney Egīls Radziņš – the representative of the petitioner Ingūna Erneste, sworn attorney Lauris Liepa – the representative of the petitioner Baiba Paulsone, and the representative of the petitioner Arnis Andersons – sworn attorney Pauls Klēbahs, as well as sworn attorney Juris Narkēvičs – the representative of the institution which has adopted the impugned act – the Saeima [the Parliament] on the basis of Article 85 of the Satversme [the Constitution], Article 16(1), Article 17(1)(11) and Article 192 of the Constitutional Court Law on 7 February 2006 in a public hearing in Riga reviewed the case “On the compatibility of Article 13 of the law of 20 December 2004 “Amendments to the Law “On Residential Tenancy”” with Articles 1, 91 and 105 of the Satversme of the Republic of Latvia”.

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The facts 1. In 1940 after the establishment of the Soviet occupational power nationalisation of private property began in Latvia. For its implementation on 28 October the Presidium of the Supreme Council of the Latvian SSR adopted a decree “On Nationalisation of Spacious Buildings”. In accordance with this decree the buildings, the “total useful space” of which exceeded 220 square metres in Riga and other bigger cities of Latvia and 170 square metres in smaller towns, were nationalised. Besides, all the buildings in which State institutions were located as well as the buildings whose owners did not reside in Latvia and buildings having a historical or artistic value were nationalised. In the next decades the Soviet power continued divesting properties. Properties in Riga at no. 57/59 Avotu street and no. 2 Strenču street were also nationalised. On 30 October 1991 the Supreme Council of the Republic of Latvia adopted the law “On the Denationalisation of Buildings in the Republic of Latvia”, by which the above decree and the legislative acts issued in accordance with it were declared null and void. On the same day the law “On the Return of Buildings to their Lawful Owners” was adopted. Article 1 of this law provides that “the previous owners or their heirs […] shall have their ownership rights restored to buildings which were confiscated without compensation during the 1940ies – 1980ies and transferred to the possession of state or legal entities, which realized a policy of ignoring of the rights of the owners and of administrative arbitrariness”. In the following years on the basis of the above laws buildings were denationalised and returned to their lawful owners. In many houses lived and are still living tenants who have concluded rental contracts before the restoration of ownership rights. The two above-mentioned properties in Riga were also denationalised. The property rights to the buildings on Avotu street were restored to I. Ernests and B. Paulsone and the property rights to the building on Strenču street – to A. Andersons. In 2000 I. Ernests bequeathed to each of his daughters Anda Erneste and Ingūna Erneste one third of his part of the property in the buildings on Avotu street (henceforth all of them will be referred to as the petitioners). There are 40 apartments in these buildings and many of them are occupied by tenants who have concluded rental contracts before the restoration of the property rights. In the case-file there are 18 such contracts, which have been concluded in the period between 1969 and 1992. None of them include a limit regarding the period of validity and all of them are the standard agreements of that time; reference to rent

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is approximately like this: the tenant undertakes the obligation to pay the rent and communal service payments in a timely manner. 2. Article 12 of the law “On the Denationalisation of Buildings in the Republic of Latvia” and Article 12 of the law “On the Return of Buildings to their Lawful Owners” initially provided that all the leases and rental agreements previously made by the former managers of the buildings were fully binding for the owners. In 1994 the wording of these articles was amended, providing that the term of validity of the rental agreements concluded by the previous managers are mandatory to the owner. Article 13 of the law “On the Denationalisation of Buildings in the Republic of Latvia” and Article 13 of the law “On the Return of Buildings to Their Lawful Owners” delegated the determination of the maximum permissible level of rental payments to the Cabinet of Ministers. Now these norms are in effect in the following wording: “Rent for those tenants who had signed the rental agreements with the previous managers of returned buildings may not exceed without consent of those tenants the level of rent set by the Cabinet of Ministers”. Article 11(1) of the law “On Residential Tenancy” adopted in February of 1992 (henceforth – the Tenancy Law) provided that “the rent shall be determined on the basis of an agreement between the parties; however, it shall not exceed the maximum rental payment established by the government”. In January of 1997 the Saeima amended this provision so that it provided: “the rent shall be determined on the basis of a written agreement between the parties, except in cases specified in the second, the third and fourth parts of this article”. Article 11(4) provided: ”In denationalised houses and houses, which have been returned under the procedure envisaged in the law “On the Return of Buildings to their Lawful Owners” the rent regarding the tenants who have rented apartments in such houses before the denationalisation (the return to the owners) shall be determined on the basis of a written agreement between the parties and in accordance with the regulations of the Cabinet of Ministers concerning the procedure for the calculation of the rent.” On 1 January 2002 amendments to the Tenancy Law took effect. These amendments included the regulation of the maximum rental rates in houses denationalised and returned to the lawful owners in the transitional provisions of the law. Paragraph 4 of the transitional provisions provided that in such houses, if a tenant has used an apartment before the restoration of the property rights, the rent shall be determined by the agreement between the parties. If no agreement can be reached then the rent shall be determined by the lessor; however, it shall not exceed 0.24 lats per one square metre per month in 2002, 0.36 lats in 2003 and 0.48 lats – in 2004. 3. On 20 December 2004 the Saeima adopted a law “Amendments to the Law “On Residential Tenancy””, which took effect on 1 January 2005. Article 13 of this law (henceforth – the impugned norm) includes the following five amendments to paragraph 4 of the transitional provisions of the Tenancy Law:

The former wording of the transitional provisions

The impugned norm

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To express paragraph 4 in the following wording: 4. If an apartment is located in a house that has been denationalised or returned to the lawful owner and the tenant has used the apartment before the restoration of the property rights, the residential tenancy payment shall be determined by a written agreement of the parties, including in the tenancy payment a portion of the residential house management expenses which is proportional to the area of the relevant rented-out space and a profit but if no agreement has been reached then the lessor determines the residential tenancy payment and it during the time period up to 31 December 2004 per one square metre of the rented area of an apartment may not be more than: 1) in 2002 – 0.24 lats; 2) in 2003 – 0.36 lats; 3) in 2004 – 0.48 lats.

“4. If an apartment is located in a house that has been denationalised or returned to the lawful owner and the tenant has used the apartment before the restoration of the property rights, the residential tenancy payment shall be determined, including therein a portion of the residential house management expenses, which is proportional to the area of the relevant rented-out residential space, and a profit. The amount of the rental payment shall be determined by a written agreement between the tenant and the lessor, but if no agreement has been reached, during the time period up to 31 December 2007 the rental payment per one square metre of the rented area of an apartment may not be more than: 1) in 2002 – 0.24 lats; 2) in 2003 – 0.36 lats; 3) in 2004 – 0.48 lats; 4) in 2005 – 0.60 lats; 5) in 2006 – 0.72 lats; 6) in 2007 – 0.84 lats.”; JUDGMENT in the case no. 2005-16-01

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7. In increasing the residential tenancy payment in the cases referred to in paragraphs 2, 3, 4, 5 and 6 of these transitional provisions, the lessor has the duty to notify the tenant regarding the increase of the rental payment in writing at least three months in advance.

8. If a residential tenancy agreement (except an agreement referred to in paragraphs 2, 3, 4, 5 and 6 of these transitional provisions) has been concluded before 31 December 2001,

the rental payment specified in it may be increased during the operation of the agreement in compliance with the provisions of Article 13(2) of the law.

5. To substitute the number “2004” used in paragraph 5 with the number “2007”

7. To supplement paragraph 7 with the following sentence: “With regard to the increase of a rental payment up to 0.60 lats per square metre of the rented area of an apartment in accordance with the provisions of paragraph 4, sub-paragraph 4 of these transitional provisions, the right of the lessor to notify the tenant arises from 1 January 2005.”; To express paragraph 8 in the following wording: “8. If a residential tenancy agreement (except an agreement referred to in paragraphs 2 and 3 of these transitional provisions) has been concluded before 31 December 2001, or, in case if the apartment is located in a denationalised house or a house that has been returned to a lawful owner and the tenant has been using the apartment before the restoration of the property rights, after 31 December 2007, the rental payment may be increased during the operation of the agreement, in compliance with the provisions of Article 13(2) of the law”;

To supplement the transitional provisions with paragraph 14 with the following wording: “14. The Cabinet of Ministers shall develop by 1 March 2005 and implement by 1 July 2005 a state and municipal support programme and compensation mechanisms for tenants who are renting residential premises in a residential house that has been denationalised or returned to the lawful owner and who have been using such premises before the restoration of the property rights to the previous owners or their heirs”. 4. The petitioners consider that the impugned norm violates their fundamental rights guaranteed by Articles 1, 91 and 105 of the Satversme and ask to declare it null and void from the moment of its adoption. 4.1. The constitutional complaint alleges that by adopting the impugned norm the principles of proportionality, [protection of] legitimate expectations as well as legal certainty, which follow from Article 1 of the Satversme of the Republic of Latvia (henceforth – the Satversme) have been violated. The petitioners point out that during the last 14 years the legislator has consistently applied measures for limiting the rental costs. Taking into consideration the duration of these above measures as well as the fact that by adopting the law of 20 July 2001 “Amendments to the Law “On Residential Tenancy”” the legislator set down the date of expiration of these measures, the owners of apartment houses had developed legitimate expectations that these measures were of a temporary nature. In their turn, the tenants had no reason to expect that the term of operation of the transitional provisions of the Tenancy Law would be prolonged. The principle of the protection of legitimate expectations has also been grossly violated by the fact that the impugned norm took effect already on the second day after its promulgation, as the owners had not managed to adapt to the sudden changes. 4.2. It is pointed out in the constitutional complaint that Article 105 of the Satversme simultaneously envisages both peaceful enjoyment of property rights and the right of the state to limit the use of property in order to protect the interests of the state and the public. The limitation of the fundamental rights of the petitioners guaranteed by Article 105 of the Satversme is provided by law and one can see its legitimate aim – the protection of the interests of tenants (especially the indigent tenants); however the established restriction in their mind is not proportional to its aim. The right of the owners to peacefully enjoy their property rights has been limited already from the time of restoration of the property, that is, for more than ten years; the rent established in accordance with the legislative acts has not been sufficient to cover the maintenance costs of the property. On the other hand, legislative acts impose a number of obligations on the owners of the apartment houses, including the maintenance of the houses in accordance with the legal requirements of construction and hygiene. Adequate economic substantiation of the impugned norm has never been provided.

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5. If a tenant who has been using an apartment in a house that has been denationalised or returned to the lawful owner before the restoration of the property rights to the house to the previous owner (or his heir), and the owner of the house has entered into a residential tenancy agreement before 31 December 2001, the tenant has a duty to pay the rental payment specified in the tenancy agreement. If the rental payment specified in such an agreement is lower than the rental payment specified in paragraph 4 of these transitional provisions, the lessor may set the rental payment up to the level provided for in paragraph 4 of these transitional provisions until 31 December 2004.

4.3. The constitutional complaint also points out a violation of Article 91 of the Satversme. The principle of equality that derives from this norm prohibits to simultaneously regulate by law the rent in private apartment houses and not to limit it in any way regarding the apartments, owned by the state and the municipalities. Even if the state and municipalities normally impose low-level rent, their losses are compensated from the budget. However, no such resources are available to the petitioners. 4.4. At the Court hearing the claims included in the complaint were upheld. At the Court hearing the representatives of the petitioners E. Radziņš and L. Liepa stressed that the property rights of a person may be limited only if the limitation is prescribed by law, has a legitimate aim and the principle of proportionality is complied with. The property rights of the petitioners are restricted because the state-imposed “rent ceilings” in certain cases cannot even cover the maintenance expenses of the buildings; however, the house-owners are required to take care of the property and to maintain it. This also prevents them to gain a reasonable profit from their property. L. Liepa pointed out that the aim advanced by the Saeima – to protect all the tenants of the denationalised buildings – was too extensive. When limiting property rights, the protection of a specific social group, the tenants belonging to which are not able to cover the rent because of financial circumstances, ought to be chosen as the aim. The representatives of the petitioners express the opinion that to reach the legitimate aim the state may choose different means of protection of the abovementioned group of tenants. In order to comply with the principle of proportionality, these means have to be suitable for reaching the legitimate aim and as non-restrictive as possible. However, the state, by protecting one group of residents – the tenants, substantially limits the rights of the other group – the house-owners. It would be possible to reach the legitimate aim by less restrictive means, for example, by introducing compensation mechanisms for the specific group of residents. The state has not attempted to solve this problem for a number years, completely transferring the realisation of its social functions to owners of the apartment houses. Thus the proportionality between the losses caused to the owners and the public benefit has not been observed. 5. The institution which has adopted the impugned norm – the Saeima – considers that this norm complies with Articles 1, 91 and 105 of the Satversme and asks to declare the constitutional claim as ill-founded. 5.1. In its written reply the Saeima stresses that the impugned norm has been adopted to observe in the issue to be regulated balance among the interests of the houseowners of the denationalised block, the State, the local government and the tenants of these houses. Referring to the judgment of the European Court of Human Rights in the case of Hutten-Czapska v. Poland ([2005] ECHR 119), the Saeima points out that the rentlevel control has a legitimate aim: to ensure the social protection of indigent tenants in circumstances when there is a long-standing shortage of residential premises and when there is a concern of excessively high level of rent being imposed. Besides, this legitimate aim ought to be interpreted in a broader context because the housing problem causes violations also of other human rights, for example, the right to social security and the rights of a child. In the written reply it is argued that in case if the impugned norm were not adopted there would exist the possibility of a large-scale termination of rent agreements and an eviction of tenants from many houses.

The Saeima stresses that the limitation of the rights guaranteed by Article 105 of the Satversme is proportional to the aim to be reached, as it has been imposed “in short term” for a transitional period. Even though the situation in the rental market has improved, there still exist the same objective circumstances which earlier required the introduction of the regulated rent level. At the same time the Cabinet of Ministers, on the basis of paragraph 14 of the transitional provisions of the Tenancy Law, has implemented several measures for the support of the tenants: participation of the state in paying of the benefit for vacating residential premises, state warranty for acquisition and building of residences and granting state earmarked subsidies to municipalities. The Saeima considers that the petitioners exaggerate the disproportionality betwen the received rents and the real value of the service, as in more than half of the cases the tenants protected by the transitional regulation still pay a different sum namely, the market rate. On the other hand, the legislative acts do not impose on the houseowners such obligations, which they would not able to fulfil when receiving the legallylimited rent. It is alleged in the written reply that the regulation before the adoption of the impugned norm had not served as the basis for legitimate expectations, as no binding final deadline “for a complete unconditional liberalisation of the rental payments” was set. The restriction of the legitimate expectation of the house-owners is justified by the above-mentioned legitimate aim; therefore Article 1 of the Satversme has not been violated. The Saeima also rejects the allegation of the petitioners about the violation of Article 91 of the Satversme, as in fact in state and municipal buildings the rent level is much lower than the ceiling set in the impugned norm. Therefore the petitioners are not in a less favourable situation in comparison with the state and municipalities and the principle of equality has not been violated. 5.2. At the hearing J. Narkēvičs stressed that the impugned norm complies with Articles 1, 91 and 105 of the Satversme. The representative of the Saeima rejected the arguments of the petitioners that by adopting the impugned norm the principle of protection of legitimate expectations had been violated. Restrictions for the owners of the denationalised buildings would have remained in force even without the adoption of the impugned norm; therefore it cannot be alleged that if the impugned norm had not been adopted, all the restrictions would lose effect. When the owners of the denationalised buildings restored their property rights, they received the buildings in a condition in which they are, also with all the burdens; thus they could not expect that these burdens will disappear. The legitimate aim of the impugned norm is to envisage a security mechanism for that group of tenants who have not managed to enter into a voluntary civil relation, subject to the Civil Law. Thus the impugned norm restricts only the rights of those owners who have not been able to reach such an agreement. J. Narkēvičs pointed out that Saeima, when acceding to the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 and its Protocols nos. 1, 2, 4, 7 and 11, took the decision that the requirements of Article 1 of the Protocol no. 1 would not apply to the property reform. Such a reservation to his mind means that the claim to the Constitutional Court may not be substantiated by the European Convention for the Protection of Human Rights and Fundamental Freedoms (henceforth – the Convention). The impugned norm does not absolutely restrict the rights of owners, it does not forbid the owner to use his property commercially. The norm only interdicts

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the owners from setting higher rents for the rental apartments. One should not single out an existing limitation of property rights and consider it as an absolute restriction of property rights. The representative of the Saeima stressed that concerning the alleged violation of Article 91 of the Satversme it was difficult to establish what were the groups of persons who were discriminated against. The impugned norm was not adopted suddenly and in haste; the procedure of its adoption was in accordance with the requirements of legislative acts. The impugned norm ought to be seen as a state-determined compromise between the interests of different social groups. The representative of the Saeima admitted that prior to 1 January 2005 the state had not adopted any measures to avoid having to adopt the impugned norm. Only after adoption of the impugned norm was the development of certain activities for the solution of the existing problem commenced. […]

The motives 8. The denationalisation and the return of buildings to the lawful owners after the renewal of national independence of Latvia was realized within the context of the property reform. The laws regulating the reform also determined the legal relations between the owners of the houses and persons who before the restoration of the property rights used apartments in the buildings that were denationalised or returned to the lawful owners (henceforth – the pre-reform tenants). When analysing issues which are related to one component of property reform – the land reform – the Constitutional Court has concluded: “the state of Latvia is not responsible for violations of human rights, including the nationalisation of property, which was realized by the occupational government over half a century. The Republic of Latvia has no possibility and no duty to completely compensate all the losses, inflicted on persons as a result of the actions of the occupational government” (the judgment of the Constitutional Court of 25 March 2003 in the case no. 2002-12-01; paragraph 1 of the motives part). Simultaneously the Constitutional Court has stressed: “when renewing the legal system of the independent Latvia, the legislator, taking into account the principles governing a state based on the rule of law, had the duty of undertaking measures to, insofar as is possible, renew fairness and redress the losses inflicted by the previous regime. However, the legislator, when choosing the means for the land reform, had to reach a fair balance between the contradicting interests of various members of the society” (ibidem.). Also when realizing other components of the property reform, including when denationalising and returning buildings to the lawful owners, the legislator had to observe the principles of a state governed by the rule of law. When making a report in the name of the working group at the Supreme Council of the Republic of Latvia on draft laws, which envisaged the denationalisation of buildings this was stressed also by the member of the Supreme Council Andris Grūtups: “Fairness shall be the basis of the draft laws. What has once been illegally taken away has to be returned […] as the basis of the draft laws – as an extremely significant principle – we set social concordance, so that the legal norms of the above-mentioned draft laws would not violate reasonable interests of tenants and lessors” [Verbatim record of the session

of 6 June 1991 of the Supreme Council of the Republic of Latvia. Latvijas Vēstnesis, no. 175 (3333), 03.11.2005.]. The rapporteur stressed: “If it is my property, then you by an administrative decision may not turn against me as the owner in determining the rental payment […] however, we shall distinguish a normal civil-law situation from the reform. As concerns the reform we still have to reckon with such realities of property or tenure, which have been formed. At least as long as we are implementing the reform” (ibidem). In the wording adopted on 30 October 1991 wording the laws “On the Return of Buildings to Their Lawful Owners” and “On the Denationalisation of Buildings in the Republic of Latvia” provide that “the owners must honour all leases and rental agreements made by the previous building manager”. Thus, in the conditions of the property reform when adopting the abovementioned laws one of the aims of the legislator was to balance the interests of the lawful owners of the buildings and those of the pre-reform tenants. 9. There is no dispute in the case whether at the starting period of the property reform and until the adoption of the impugned norm the determination of the maximum rental payment for the pre-reform tenants complied with the legal norms of higher legal force and principles of law. The petitioners contest only the amendments to the law “On Residential Tenancy” which were adopted on 20 December 2004. Thus, the amendments were adopted more than 10 years after the expiry of the term for submitting applications for the return of buildings ended for the owners of the buildings; and one and a half terms of the Saeima after Chapter 8 of the Satversme “Fundamental Human Rights” was adopted and had taken effect. On 4 June 1997 the Saeima adopted the law “On the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 and its Protocols 1, 2, 4, 7 and 11”. Article 2 of this law includes the following reservation: “the provisions of Article 1 of the First Protocol shall not apply to the laws on property reform which regulate the restoration or compensation to the former owners or their legal heirs of property nationalised, confiscated, collectivised or otherwise unlawfully expropriated during the period of Soviet annexation; and privatisation of collectivised agricultural enterprises, collective fisheries and of State and local selfgovernment owned property.” From the statement of the representative of the Saeima at the hearing of the Court it follows that, taking into consideration the above-mentioned reservation, the reference of the petitioners to the Convention and Article 105 of the Satversme is unsubstantiated. The property reform is still ongoing, as the courts continue to review cases “which follow from renewing of independence” (see vol. 4, p. 4 of the case materials). In their turn the petitioners stressed that in 1998, when adopting Chapter 8 of the Satversme “Fundamental Human Rights”, the legislator had not made any reservations. The opinion of the representative of the Saeima is ill-founded. Even though the property reform is still continuing in certain sectors, for example, concerning the privatisation of state and municipal property, the term for utilisation of privatisation certificates, this could not influence the duty of the legislator to comply with Article 105 of the Satversme when adopting the impugned norm. 10. Article 105 of the Satversme provides: “Everyone has the right to own property. Property shall not be used contrary to the interests of the public. Property rights may be restricted only in accordance with law”. In accordance with Article 89 of the Satversme

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“the state shall recognize and protect fundamental human rights in accordance with this Satversme, laws and international agreements binding upon Latvia”. As has been repeatedly stated in judgments of the Constitutional Court, it can be seen from Article 89 that the aim of the legislator has not been to oppose the human rights norms included in the Satversme and the international norms of human rights (see the judgment of the Constitutional Court of 27 June 2003 in the case no. 2003-04-01, para. 1 of the motives part and the judgment of 17 January 2005 in the case no. 2004-10-01, para. 7.1). When interpreting the fundamental rights enshrined in Article 105 of the Satversme, one has to simultaneously take into consideration also the norms incorporated in international human rights instruments and the practice of their application. Article 1 of Protocol no. 1 to the Convention includes three separate norms: the first sentence of the article envisages the right to the peaceful enjoyment of possessions; the second sentence of the article contains a prohibition of arbitrary deprivation of the possessions and the conditions for deprivation of property and it is recognized in the second paragraph of the article that the state has the right to control the use of the property in accordance with the general interest. These three separate norms are mutually closely connected. Article 105 of the Satversme has a similar content. It provides for both unhindered implementation of property rights, and the right of the state to restrict the use of property in accordance with public interests. The property right incorporates also the right of gaining all the potential benefit from the property, i.e., income and interest (see the judgment of the Constitutional Court of 20 May 2002 in the case no. 2002-01-03). Also in conformity with the explanation by the European Court of Human Rights Article 1 of Protocol no. 1 to the Convention includes the right to use the property, as utilization “creates a traditional and fundamental aspect of property rights” (Marckx v. Belgium [1979] ECHR 2, para. 63). Thus the right to property includes also the right to gain benefit from one’s possessions, inter alia, also by renting them, which not only ensures the maintenance of the respective property but also brings profit to the owner. If the owner is not able to freely use his possession, inter alia by renting it, and to gaining the potential benefit from it, then his property rights are restricted. 11. In their claim the petitioners contest Article 13 of the law “Amendments to the law “On Residential Tenancy” adopted on 30 December 2004. The impugned article includes five different amendments to the transitional provisions of the Tenancy Law. 11.1. In the former wording paragraph 4 of the transitional provisions envisaged that after 1 January 2005 the rental payment for residential premises would be determined by a written agreement of the tenant and the lessor, including therein a portion of the residential house management expenses which is proportional to the area of the respective rented-out residential premises and a profit; but, if no agreement has been reached the rental payment would be determined by the lessor. However, the amendments which were made to paragraph 4 of the transitional provisions of the Tenancy Law in accordance with the impugned norm not only provide for the maximum rental payment in 2005, 2006 and 2007 but also provide that in cases when the rental payment has not determined by a written agreement of the parties, it is determined by the (by including therein a portion of the residential house management expenses which is proportional to the area of the respective rented-out residential premises, and a profit). 11.2. Article 13(2) of the Tenancy Law provides: “If an option to increase the rental payment for the residential premises during the operation of a residential tenancy

agreement is provided for in such an agreement, the lessor shall notify the tenant in writing regarding such increase at least six months in advance, unless the rental agreement states otherwise. The reason and the financial justification of the rental payment increase shall be specified in the notification.” In the previous wording paragraph 8 of the transitional provisions of the Tenancy Law provided: “If a residential tenancy agreement (except an agreement referred to in paragraphs 2, 3, 4, 5 and 6 of these transitional provisions) has been concluded before 31 December 2001, the rental payment specified in it may be increased during the operation of the agreement in compliance with the provisions of Article 13(2) of the law”. The impugned norm deleted the reference to paragraphs 4 to 6 and supplemented the paragraph with the following text: “in case if the apartment is located in a denationalised house or a house that has been returned to a lawful owner and the tenant has been using the apartment before the restoration of the property rights, after 31 December 2007 the rental payment may be increased during the operation of the agreement in compliance with the provisions of Article 13(2) of the law”. In his written opinion that was submitted to the Constitutional Court K. Torgāns points out that Article 13 of the Tenancy Law envisages written agreement between the tenant and the lessor and settlement of disputes by a court as the general procedure. If the term of the restriction contained in the transitional provisions had not been postponed from 31 December 2004 to 2007, the number of disputes to be reviewed by courts would have increased and the result of the review would depend on the assessment of the reasons and the financial justification of the rental payment increase (see vol. 1, p. 87 of the case materials). 11.3. At the hearing of the Court the petitioners alleged that in case if the legislator had not adopted the impugned norm, they would have been able to determine a reasonable rental payment; however, if no agreement with the tenant on the amount of the rental payment had been reached, the dispute would be reviewed by a court. 11.4 The petitioners allege in the claim that the maximum rental payment determined by the legislator is first of all insufficient for covering the actual maintenance expenses of the residential house. By calculating these above expenses in accordance with the Regulation no. 45 of the Cabinet of Ministers of 29 January 2002 “Methodology for Calculating Management Expenses Included in the Rental Payment for Residential Premises” the monthly rental payment per a square metre in their houses would respectively need to be 2,00 lats, 1,75 lats and 1,36 lats. It is not the duty of the Constitutional Court to verify whether the specific expenses regarding specific buildings are correct and reasonable. Such a verification is possible by reviewing a case at a court of general jurisdiction. At the same time the Constitutional Court takes into consideration that it is impossible to compare the average expenses at buildings managed by the state and municipalities with the expenses which are necessary for the maintenance of every specific building that has been denationalised or returned to the lawful owners. Because of the inadequately low rental payment determined in an administrative way during the Soviet times and the corresponding inability of the state to maintain the residential buildings in an appropriate order, a great number of residential houses were returned to the former owners or their heirs in a very bad technical condition. During the discussion of the draft laws “On the Denationalisation of Buildings in the Republic of Latvia” and “On the Return of Buildings to Their Lawful Owners” at the session of the Supreme Council it was stressed that “all the expropriated buildings with minute exceptions are in an extremely bad technical condition and many of them need emergency work”

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[Verbatim Record of the session of the Supreme Council of the Republic of Latvia of 6 June 1991. Latvijas Vēstnesis, no. 175 (3333), 03.11.2005]. The Deputy Chairman of the Riga City Vidzeme District Local Government J. Legzdiņš remarked: “The problem of the house-owners is much more essential. At the present moment to receive an uncared for building, full of tenants who are used to demanding normal living conditions for a symbolic rental payment, which in itself is, of course, nothing illogical, is a big burden both materially and morally. […] If at the present moment 7,7, million roubles are necessary for the subsidies for the housing departments of the Vidzeme District and we are in fact able to apportion only 3,3 million, then you can imagine what a burden a house-owners will have to undertake. Besides, one must take into consideration the fact that expenses of capital repairs are not included in the above sum” (ibidem). 11.5. As can be seen from the documents submitted by the Saeima about the discussions on the impugned norm in the Saeima, the concrete maximum rental payments were mainly discussed by taking into consideration the amount of the rental payment which the pre-reform tenants are able to pay. The Saeima has not submitted to the Constitutional Court any materials which confirm that during the discussion about the impugned norm the legislator had ascertained whether the amount of the rental payment to be determined is sufficient for covering the actual management expenses of residential houses. At the hearing of the Court the representative of the Saeima could not answer the question about the economic justification of the specific maximum rental payment and what expenses needed for the maintenance of buildings had been taken into consideration when calculating it. For example, during the second reading of the amendments at the Saeima session the proposal by the Ministry of Regional Development and Local Government Affairs which envisaged a higher maximum rental payment, namely, in 2005 – 0,70; 2006 – 0,82 but to July 1, 2007 – 1 lats per square metre was not supported (see vol. 2, p. 57 of the case materials). Besides, the maximum rental payment has been set at an equal level regardless of the geographical location of the building, its size and other qualities which could significantly affect the maintenance expenses. Neither has the legislator envisaged substantial state-financed mechanisms of compensation or the possibility for the houseowners, who might in a certain procedure substantiate that reasonable maintenance expenses of the houses exceed the income from the rental payments, to demand a greater rental payment. Even without verifying the reasonableness and correctness of the specific calculations one may conclude that the impugned norm prohibits part of the houseowners to demand from the pre-reform tenants rental payments which would cover reasonable maintenance expenses and would be substantiated by calculations, correctness and the reasonability of which the owner would be able to prove in a court. This means that these owners have to cover the necessary expenses by using other resources. Simultaneously the impugned norm forbids the owner to gain a reasonable profit from renting out of apartments. Thus the impugned norm by which amendments have been made to paragraphs 4 and 8 of the transitional provisions of the Tenancy Law restrict the rights guaranteed by Article 105 of the Satversme of the house-owners of houses that have been denationalised and returned to the lawful owners. 12. The Constitutional Court has repeatedly stressed that the right to property is not absolute. First, the property has to serve public interests. Second, the property

rights may be restricted if the restrictions are determined by law, have a legitimate aim and are proportionate (see the judgment of the Constitutional Court of 20 May 2002 in the case no. 2002-01-03). 12.1. Both in the Convention and in the constitutions of other states the right to property is connected with the state control over the use of the property and duties which the property imposes. For example, Article 32(2) of the Constitution of the Republic of Estonia provides: “Everyone has the right to freedom from interference in possessing or using his or her property or making dispositions regarding the same. Limitations of this right are provided by law. Property may not be used in a manner that contravenes the public interest.” Article 11(3) of the Charter of Fundamental Rights and Fundamental Freedoms of the Czech Republic provides: “Ownership entails obligations. It may not be misused to the detriment of the rights of others or in conflict with legally protected public interests. It may not be exercised so as to harm human health, nature, or the environment beyond the limits laid down by law.” Article 14(1) and (2) of the Basic Law of the German Federal Republic provides: “(1) Property and the right of inheritance shall be guaranteed. Their content and limits shall be defined by the laws. (2) Property entails obligations. Its use shall also serve the public good.” The German Federal Constitutional Court when reviewing issues connected with the restrictions of the level of rental payments has concluded that within the meaning of the second sentence of Article 14 (1) the legislator has an obligation to take into consideration both – the recognition of the constitutional property right and the requirement to use the property in a socially just manner, and such an obligation applied even in the field of civil law, in the specific case when adopting binding instructions regarding rental rights (see BVerfGE 37, 132, 140). The second paragraph of Article 1 of Protocol no. 1 to the Convention also envisages the right of the state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest. The European Court of Human Rights has concluded that states have “the right to enact such laws as they deem necessary to control the use of property in accordance with the general interest. Such laws are especially common in the field of housing, which in our modern societies is a central concern of social and economic policies. In order to implement such policies, the legislature must have a wide margin of appreciation both with regard to the existence of a problem of public concern warranting measures of control and as to the choice of the detailed rules for the implementation of such measures.” (Scollo v. Italy [1995] ECHR 34, para. 28; see also, for example, Mellacher et al v. Austria [1989] ECHR 25, para. 45). In the legal rental relations “there is a specific status of the house-owner, which has been created in publicly-legal interests by establishing specific boundaries of the property” (Sinaiskis V. Saimniecības tiesību lietiskās normas. Tieslietu Ministrijas Vēstnesis, 1935, no. 4, p. 699). Besides, the existence of such boundaries is well-known also in other places in Europe (see, for example, Wilhelmsson T. Varieties of Welfarism in European Contract Law. European Law Journal, vol. 10, no. 6, 2004, p. 722) as well as in Latvia in the past (see, for example, Dzelzīts K. Jauno dzīvokļu īres tiesību principi. Tieslietu Ministrijas Vēstnesis, 1925, nos. 7-9, pp. 849-874; Valters K. Dzīvokļu īres maksas noformēšana. Tieslietu Ministrijas Vēstnesis, 1920, no.1, pp. 24-29). Entrepreneurial activity in the sector of residential tenancy is, of course, characterised by the usual financial risks; however the owner should be aware that various more or less intensive restrictions of the property rights may be determined by law.

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12.2. The petitioners neither in their claim nor at the hearing of the Court denied the fact that property rights may be restricted. However, they consider that when these restrictions are assessed in accordance with the criteria established by the case-law of the Constitutional Court, it has to be recognized that they are not proportionate to the legitimate aim which the legislator has tried to achieve by imposing the restrictions. From the written reply of the Saeima it also follows that regarding the petitioners the impugned norm includes a restriction of the rights enshrined in Article 105 of the Satversme; and that this restriction has to be assessed according to the criteria established by the case-law of the Constitutional Court. However, it is stressed in the written reply that this restriction has been not only determined in pursuit of a legitimate aim but is also proportionate to it. 12.3. When answering to a question about the main preconditions for restricting fundamental rights of a person at the hearing of the Constitutional Court the representative of the Saeima expressed the opinion that in this case it “would be the criterion that the respective persons whose fundamental rights are being restricted represent a certain social layer, a social group. And the question arises whether unequivocally meeting the fair and reasonable to their mind requirements of this social group, category, the object of the aim, does it not influence, violate and still more violate the fundamental requirements of other social groups, respective layers.” Such an opinion of the representative of the Saeima is not substantiated by the caselaw of either the Constitutional Court or other constitutional courts or the findings of the judgments of the European Court of Human Rights or scientific literature. The balancing of the interests of social groups and layers is the political duty of the legislator. 12.4. In order to assess whether the impugned norm complies with Article 105 of the Satversme, the Constitutional Court must assess whether the restriction of the fundamental rights complies with the following requirements: a) it has been determined by law; b) it has been imposed in pursuit of a legitimate aim; c) it complies with the principle of proportionality. 13. The impugned norm has been determined by law, which was adopted and promulgated under the appropriate procedure. Thus there is no doubt that the restriction of the fundamental rights has been determined by law. 14. When restrictions are imposed on fundamental human rights, the duty of presenting and substantiating the legitimate aim of such a restrictions first of all lays on the institution which has adopted the impugned act; in this case – on the Saeima. During the debates at the Constitutional Court the representative of the Saeima expressed his opinion about the legitimate aim only as follows: “Thus there is the issue about the legitimate aim – whether it refers to everybody or it refers to those tenants to whom the financial situation denies. Thus the law envisages a security mechanism for that part, which has not been able to come to join in a voluntary mutual civil law relationship subject to the Civil Law.” After the petitioners replied that in such a case there was no legitimate aim, the representative of the Saeima repeated a similar opinion: “I consider that there is the legitimate aim and restrictions apply only to that part who have not been able to agree to a civil law contract which the impugned norm envisages for them. And the statistics show that such cases happen in a significant number, as the norm is being followed and the norm works.”

Such statements by the representative of the Saeima may not be assessed as a substantiation of the legitimate aim in accordance with which the fundamental rights enshrined in the Satversme might be restricted. 15. The Saeima in its written reply points out that restrictions to the rental payments have a legitimate aim – “to ensure the social protection of indigent tenants in circumstances when there is a long-standing shortage of residential premises and when there is a concern of excessively high level of rent being imposed […] this legitimate aim ought to be interpreted in a broader context because the housing problem causes violations also of other human rights, for example, the right to social security and the rights of a child” (vol. 1, p. 52 of the case materials). It follows from the written reply that the legitimate aim of the restriction has three aspects: first, the social protection of indigent tenants, second, long-term shortage of residential premises, and, third, concerns about imposition of unreasonably high rental payments. 15.1. Similar aims have been recognized as legitimate in the case-law of the European Court of Human Rights: “making accommodation more easily available at reasonable prices to less affluent members of the population”, especially if the offer of residential premises is not sufficient (Mellaher et al v. Austria, para. 47; see also, for example, Immobiliare Saffi v. Italy [1999] ECHR 65, para. 48; Hutten-Czapska v. Poland, para. 160), as well as “the social protection of tenants, [which] thus tends to promote the economic well-being of the country and the protection of the rights of others” (Velosa Barreto v. Portugal [1995] ECHR 49, para. 25). The petitioners also do not deny that the aim to socially protect the fundamental rights of the indigent tenants should be regarded as legitimate. It is pointed out in the constitutional claim that the petitioners “do not question the need to help the tenants who live in the denationalised houses or the buildings returned to the lawful owners” (vol. 1, p. 9 of the case materials). The representative of the petitioners L. Liepa stressed at the hearing of the Court: “We do see the legitimate aim, which substantiates this law […] first, it is the social aim, i.e., to secure the rights of certain people, which are related to […] the basic means of substinance which […] the state of Latvia in its Satversme has promised to these individuals (vol. 4, pp. 126‑127 of the case materials). 15.2. […] When assessing the legitimate aim of the impugned norm the shortage of affordable residential premises on the market is a noteworthy and acknowledgeable factor. There are problems related to ensuring of residential space especially for tenants with meagre means, to whom acquisition of an expensive residence is impossible. Therefore the aim of the restriction of the property rights is not to be connected with the general shortage of the residential premises but with the insufficiently available affordable apartments. […] As has been already concluded before, a court of general jurisdiction may assess the substantiation of each offered increase of rental payment. However, there is no basis for the opinion of the Saeima that the impugned norm is necessary to avert mass evictions of tenants. Even if the impugned norm had not been adopted, the respective norms of Article 13 of the Tenancy Law and those of the laws “On the Denationalisation of Buildings in the Republic of Latvia” and “On the Return of Buildings to Their Lawful Owners” as well as the Regulation no. 45 of the Cabinet of Ministers of 29 January 2002 “Methodology for Calculating Management Expenses Included in the Rental Payment for Residential Premises” would have been binding on the lessor. Even though there are attempts to impose unreasonably high rental payments, there is no basis for concern

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about the success of these attempts, as the lessor alone, without reaching an agreement with the tenant, is not able to determine the amount of the rent. Thus this aspect of the aim of the impugned norm advanced by the Saeima may not be justified. Thus, it follows from the written reply of the Saeima that the legitimate aim of the impugned norm is only the protection of the indigent pre-reform tenants in the circumstances when there exists a shortage of affordable flats. 15.4. In accordance with the data summarized in the bulletin “Private Rental Houses” prepared by the Central Statistics Board in September of 2004 more than half of the households living in the buildings that had been denationalised and returned to the lawful owners had difficulties to cover the rental payments or even already had debts (see vol. 1, p. 109 of the case materials). The Ministry of Regional Development and Municipal Affairs before adopting the impugned amendments has concluded that about 62 percent of households will not be able to pay rent if the monthly rental payment per square metre will reach 1 lat but 80 percent of households will not be able to pay 2 lats per square metre (see vol. 2, pp. 37-38 of the case materials). It indicates that at least for a part of the tenants the payments for shelter constitute a significant part of total expenses and substantially affects the consumption of other economic goods. As the expenses for the residential rent as regards income are comparatively inflexible, it has to be concluded that the demand in this market is comparatively inflexible against the fluctuations of prices. Thus an increase of the rental payment would comparatively significantly lessen the usefulness of the total household consumption (see: Škapars R. Mikroekonomika. // Latvijas Universitāte, 2004, pp. 132-136). The restriction to demand and to receive a higher rental payment diminishes the household expenses and thus protects the indigent pre-reform tenants in circumstances when there is a shortage of affordable residential space. Thus the impugned norm on the whole is appropriate for reaching the legitimate aim. 15.5 However, the impugned restrictions do not connect the maximum amount of rental payment with the financial situation of the tenants. The impugned norm establishes the possibility to pay a limited rental payment both for the indigent persons and the persons whose financial situation is possibly even better than that of the owner of the denationalised or returned house. […] Thus there is reason to the opinion expressed by the representatives of the petitioners at the hearing of the Court it is not possible to justify imposing a restriction of rental payment to all pre-reform tenants with this aim. 15.6. Besides the legitimate aim, especially when interpreting it in the broader context together with social rights and especially the protection of the rights of a child, as indicated by the Saeima, is only partly reached by means of the impugned norm. Namely, it protects from a high rental payment only those indigent tenants who are pre-reform tenants. This protection does not pertain to other indigent tenants, for example, young families with children who have created an independent household after the renewal of the independence of Latvia. To cover the expenses of the maintenance of a house and to gain at least a minimal profit, the finances which the law prohibits to the owner to receive from rental payments of the pre-reform tenants most likely are gained by demanding a higher rental payment from other tenants. For example, in accordance with the Central Statistics Board data 40% of tenants pay rent which exceeds 0,60 lats per square metre of the total space and on the whole the rent in the ”non-denationalised apartments” is 10% higher than in the ”denationalised apartments” (see http://www.csb.lv). Thus, exactly the indigent families with children may find it difficult to start renting an appropriate apartment.

15.7. The impugned norm does not reach its aim also regarding those indigent persons whose family size has decreased during the last 10 years. These persons are protected only for as long as they live in the former, sometimes even disproportionately spacious apartment. Thus the impugned norm has a legitimate aim with respect to indigent prereform tenants; however, this aim is reached only in part. 15.8. To establish whether the impugned norm in the part in which it has a legitimate aim complies with the proportionality, namely, whether the public benefit is greater than the restriction of the fundamental rights of the individual, it has to first of all be assessed whether there are no other measures for reaching this aim, which would restrict the rights of the petitioners to a lesser degree. As was pointed out by the petitioners the legislator had the possibility of adopting regulation which would be more considerate to the house-owners, at least by partly compensating their expenses which are related to the missed rental payments, for example, by envisaging a real-estate tax rebate for that part of the house where prereform tenants reside, other tax rebates or other types of compensations. Thus the legislator had the possibility to adopt a solution which would interfere with the fundamental rights of the petitioners to a lesser extent. As the European Court of Human Rights has recognized, the possible existence of alternative solutions does not in itself render the contested legislation unjustified. Provided that the legislature remains within the bounds of its margin of appreciation, it is not for the European Court of Human Rights to say whether the chosen solution was the best or whether other possibilities should have been sought (see Mellacher et al v. Austria, para. 53). The Constitutional Court likewise does not have to assess what alternative solutions would or would not have been appropriate for resolving the situation. However, from the debates on the impugned norm at the Saeima session it can be seen that the legislator has not assessed any alternative solutions which would balance the interests of the tenants and the owners; the legislator has mostly taken care of the protection of one party – the pre-reform tenants. The Constitutional Tribunal of Poland in its judgment on the determination of the maximum rental payment observes that the legislator has only changed the situation regarding rent but has not changed any other aspects of the legal status of the house owners, so as to compensate losses connected with it. In such circumstances the Constitutional Tribunal of Poland has concluded that the impugned norms include a disproportional restriction of the fundamental rights enshrined in Article 31(3) of the Constitution (see the judgment of the Constitutional Tribunal of Poland of 2 October2002 in the case no. K48/01). The Federal Constitutional Court of Germany when solving issues of restrictions of rental payments has pointed out that when determining binding directions on tenancy rights, the legislator should – in these directions – take into consideration both the interests of the tenant and also those of the lessor. It does not mean, however, that these interests are always and in each context equally significant. However, one-sided advantages or damages cannot be comply with the constitutionally legal representations about a “socially binding private property” (see BVerfGE 37, 132, 141). Besides the European Court of Human Rights has stated that the margin of appreciation of the state, “however considerable, is not unlimited, and that the exercise of the State’s discretion, even in the context of the most complex reform of the State, cannot entail consequences at variance with Convention standards” (Broniowski v. Poland [2004] ECHR 274, para. 182; Hutten- Czapska v. Poland, para. 185).

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Without questioning the duty of the state to take care of the welfare of its residents, the Constitutional Court cannot agree that this duty can be implemented only in one way, namely, through an onerous regulation of tenancy rights. Even though a shortterm interference with the legal rental relations may be justified, in the long-term the responsibility for the risk of social shock should be undertaken by the state. Similar conclusions on the regulation of the rental payment which was once adopted in relation with the transition from planned economy to market economy were made by the Constitutional Tribunal of Poland. It has pointed out that, first, the legislator has acted particularly irresponsibly by extending in the last days of 2004 the term of the transitional period regulation which had been set to terminate on 31 December. Second, the state has to ensure a fair balance between the interests of the tenants and the lessors; however, laying the financial hardships only on the shoulders of the lessors cannot be regarded as fair. If the state considers that social aid is necessary, it – in accordance with a correct understanding of the principle of social solidarity – shall be granted from the whole society, i.e., the finances of the state (see the judgment of 19 April 2005 in the case no. K 4/05;// www.trybunal.gov.pl). The Constitutional Court of the Czech Republic has recognized that “transferring” the social obligations of the state to house-owners, while safeguarding only the financial interests of tenants is impermissible (see the judgment of 23 September 2004 in the case no. IV. US 524/03, codices.coe.int). Thus, the restrictions with respect to the rights of the house-owners are not proportionate to the public benefit gained from these restrictions. Thus, the restrictions contained in the impugned norm with respect to the rental payment of pre-reform tenants which are not indigent cannot be justified by the legitimate aim stated in the written reply of the Saeima. As regards the amount of rental payment of indigent pre-reform tenants the restrictions can be justified by this aim; however, they are not compatible with the principle of proportionality. 16. Even though neither the representative of the Saeima at the hearing of the Court nor the Saeima in its written reply have mentioned any other legitimate aims, the Constitutional Court, taking into consideration the principles of the Constitutional Court procedure, on its own motion has to establish whether there are no other legitimate aims for the impugned restrictions. The representative of the petitioners L. Liepa at the hearing of the Court pointed out: “We do see a legitimate aim, which forms the basis of this law […] In fact there are two of them. […] The second one is the economical aim. […]here there were also debates about the development of the so-called rental house property market, which definitely is also one of the aims, why the norms are in the way as the legislator has formulated them” (see vol. 4, pp. 126-127 of the case materials). Also the law “On the Rent of Premises” that was adopted on 16 June 1924 contained restrictions to the rental payment. Article 37 of this law set boundaries which may not be exceeded by the rental payment for certain categories of premises if compared with the rental payment which was in force before 1 August 1914. Article 38 provided that in cases when “the house has been improved with facilities and conveniences which were not there before the war, the rental payment may be increased to a certain greater amount” (Likumu un Ministru kabineta noteikumu krājums, 1924, dok. no. 91). The State Human Rights Bureau, when expressing its opinion about the case to the Constitutional Court, noted that the European Court of Human Rights in the case “Mellacher et al v. Austria” has recognized that imposition of a rent ceiling in a state depending on the type of the residential space was proportionate to the aim to be reached.

In that case the European Court of Human Rights acknowledged the following aims: to reduce excessive and unjustified disparities between rents for equivalent apartments and to combat property speculation; making accommodation more easily available at reasonable prices to less affluent members of the population, while at the same time providing incentives for the improvement of substandard properties (see Mellacher et al v. Austria, para. 47). However, unlike from the impugned norm, which determines one and the same maximum rental payment to all apartments, without any differentiation, the Austrian Tenancy Law assessed by the European Court of Human Rights established how the basic and different additional rates of rent shall be determined; in what cases the restriction of the rental payment provided in the law is not binding (for example, if an architectural monument is being rented, if the premises are not habitable, if there had been great investments); the “ceiling” of the rent depending on the category of the apartment (living space, conveniences); in which cases rental payment may be increased (investments are urgently needed); accounts about the spent money; calculation of maintenance costs; if the rental agreement has been concluded before the law taking effect the rental payment shall be decreased to the “rent ceiling” if it is demanded by the tenant. In such cases the “ceiling” of the rent is increased byr50% of the rental payment determined by the law. If the lessor does not agree to decrease the rental payment then it is possible to address the administrative institution and afterwards the court (see Mellacher et al v. Austria, para. 32). If the legislator had wished to reach any of the above aims by adopting the impugned norm, this aim would have to be acknowledged as legitimate. However, the impugned norm is not appropriate for reaching these aims. First, unlike the respective Austrian law, it does not relate the rental payment with the category of the specific apartment. Thus the impugned norm does not decrease but in many cases increases the difference in rental payment for equivalent apartments which are rented by pre-reform tenants and other tenants, thus delaying the creation of a balanced apartment rental market. Second, the impugned norm does not stimulate an improvement of the housing standards, because the protection to the pre-reform tenants is guaranteed only as long as they live in the same residential premises which they occupied fifteen years ago, regardless of the fact that during this time the composition of the family and the needs have changed; inter alia also in cases when children have been born and the family would require a bigger apartment. Thus the impugned restrictions may not be justified by the aim pointed out by the petitioners and the State Human Rights Bureau – to develop the market of apartment rent, to decrease the excessive and ungrounded differences of rental payment for equivalent apartments and to stimulate an improvement of the housing standards. 17. The Saeima in its written reply inter alia points to the legal expectation of the tenants that the state will fulfil its obligations and will continue to protect their interests in a certain way. In the written reply it is mentioned: “Such a conclusion is also rooted in the circumstance that the tenants of the denationalised buildings could not privatise residential space. Therefore restriction of rental payments was one of the mechanisms which ensured a balance between the interests of the tenants and the lessors and reached a socially just aim. The fact that the state is trying to reach such an aim also at the present moment is attested by the above-mentioned legislative acts, which the Cabinet of Ministers has adopted or is still drafting” (vol. 1, p. 58 of the case materials).

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The protection of the rights and legal interests of other persons may serve as a legitimate aim for a restriction of the fundamental rights guaranteed by the Satversme. To establish that such an aim exists, one must first of all assess whether there exist the respective rights and legal interests of other persons for the protection of which the impugned restriction has been imposed. Simultaneously one has to take into consideration also the fact that the petitioners in their claim allege a violation of Article 1 of the Satversme only with respect to the owners of the buildings that had been denationalised and returned to the lawful owners. 17.1. “When assessing the compliance of the impugned law with Article 105 of the Satversme […] one has to take into consideration that this article of the Satversme may not be analysed in disjunction from Article 1 of the Satversme. The Satversme is a cohesive whole and the legal norms incorporated in it are mutually closely connected. In order to determine the contents of these norms as completely and objectively as possible, they must be interpreted in conjunction with other norms of the Satversme ( judgment of the Constitutional Court in the case no. 2005-12-0103, para. 21.1). ”The duty of the principles following from Article 1 of the Satversme – which shall be regarded as one of the cornerstones of the Republic of Latvia as a democratic and state governed by the rule of law – is to ensure that other legal norms, also those incorporated in the Satversme, would be correctly applied and that their application as well as the result of their application would comply with the requirements of a state based on the rule of law. For example, neither Article 1 of the Satversme, nor Article 105 denies the right of the legislator to make amendments which comply with the Satversme to the existing legal regulation. However, in a democratic state based on the rule of law the principle of legitimate expectations requires to makes such amendments by providing for a considerate transition to the new regulation (judgment of the Constitutional Court in the case no. 2005-12-0103, para. 24). When assessing whether the impugned norm complies with the principle of legitimate expectations, it needs to be established: 1) whether the pre-reform tenants and the petitioners had the right to expect that the legal regulation would not be changed; 2) whether such an expectation was reasonable and well-founded; 3) whether the legislator, when deviating from the previous legal regulation, had envisaged a considerate transition to the new regulation. 17.2. As has been already mentioned, the laws “On the Return of Buildings to their Lawful Owners” and “On the Denationalisation of Buildings in the Republic of Latvia” in the wording adopted on 30 October 1991 provided that ”the owners must honour all leases and rental agreements made by the previous building manager”. Rental agreements of pre-reform tenants had been concluded in circumstances when the rental payment was determined administratively and not as a result of an agreement reached between the tenant and the lessor. As can be seen from the rental agreements of the pre-reform tenants in the case materials (see vol. 1, pp. 111‑187 of the case materials), rental payment was not indicated in the standard rental agreements of residential premises. Article 11(1) of the Tenancy Law which took effect on 1 April 1993 pertained to all rental agreements, regardless of the owner of the building in which the apartment was located, and it provided that “a rental payment shall be determined on the basis of a written agreement between the parties; however, it shall not exceed the maximum rental payment determined by the government”.

In 1994 amendments were made to the laws “On the Return of Buildings to Their Lawful Owners” and “On the Denationalisation of Buildings in the Republic of Latvia”. These amendments provided that “the owners must honour all the terms of the leases and rental agreements concluded by the previous managers of denationalised buildings, subject to exceptions provided for in this law” and that the rental payment may not exceed without consent of the respective tenants the level of rental payments set by the Cabinet of Ministers. Thus, at the time when the process of the return of buildings was commenced equal restrictions had been determined regarding the amount of the rental payment which complied with the stage of the property reform of that period. 17.3. The wording of Article 11 of the Tenancy Law was amended only beginning with 1 January 1997. Initially it was done in accordance with the Regulations no. 306 of the Cabinet of Ministers of 6 August 1996 “Amendments to the Law “On Residential Tenancy”” which had been adopted pursuant to Article 81 of the Satversme. When discussing these regulations at the Saeima Article 11 was expressed in a different wording, providing that “a rental payment shall be determined on the basis of a written agreement between parties, except for the cases specified in paragraphs 2, 3 and 4 of this Article”. Article 11(4) provided that “in denationalised houses and buildings which have been returned under the procedure anticipated in the law “On the Return of Buildings to Their Lawful Owners” as regards the tenants who have rented residential space in the buildings before the denationalisation (return to the owners), the rental payment shall be determined on the basis of a written agreement between the parties and in accordance with the regulations of the Cabinet of Ministers on the procedure of calculation of the rental payment for an apartment”. When debating about this norm at the Saeima, the temporary nature of the solution was also stressed. The member of the Saeima Jānis Lagzdiņš – the chairman of the Saeima State Administration and Municipal Affairs Commission at the time – expressed the opinion that “private apartments should be divided into two parts: the not rented or free apartments and as regards these apartments the house-owners […] ought to be given a rather great freedom and have the right to freely determine the rental payment in each specific case, so that the house-owner could receive certain income for the maintenance and repairs of the house. Another question is what to do with apartments which are privately owned but are rented to third persons? […] To my mind as regards the denationalised buildings a week ago the parliament has taken the right decision by allowing the Cabinet of Ministers to determine in the whole state a “ceiling” of the rental payment in the socalled denationalised houses” [Verbatim report of the Saeima session of 28 November 1996, Latvijas Vēstnesis, no. 207/208 (692/693), 03.12.1996.]. Thus the legislator considered the determination of rent for the pre-reform tenants under an administrative procedure to be a temporary or transitional measure, which is characteristic of the conditions of a property reform. In these circumstances the state undertook the liabilities of regulating the relations between the house-owners and the pre-reform tenants by determining the maximum amount of rental payment. The duty of the State when determining this amount was to ensure a fair balance between the rights of the house-owners and the pre-reform tenants as well as to comply with the principles of a state governed by the rule of law and with the fundamental rights guaranteed by the Satversme. 17.4. At the beginning of the property reform the legislator had imposed a number of restrictions for the house-owners which follow from the liabilities which the former

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managers of the buildings had undertaken. At the same time the legal norms indicated that the restrictions would eventually be cancelled. In several spheres a gradual cancellation of the restrictions was indeed implemented. For example, initially the owners of the buildings that had been denationalised or returned to the legal owners were bound both by the rental agreements and also by lease agreements concluded by the previous managers, inter alia the agreements in accordance with which premises had been rented to state institutions. The law envisaged a seven-year period during which it was prohibited to evict the pre-reform tenants without providing another residential space. House-owners had the right to expect that the imposed administrative restrictions which were necessary at the beginning of the reform would be cancelled in due time and in a reasonable way. Taking these expectations into consideration, they made the choice of regaining the property or not doing it, as well as planned their future activities with regard to the property. However, the promises made at the beginning of the reform could not create an expectation that the house-owners would be able to completely freely and according to their wishes determine the amount of the rent to be paid by the pre-reform tenants. The owner had the right to expect only that the state would in due time provide for a reasonable solution to the forced rental relations. In a democratic state the principle of legitimate expectations does not forbid carrying out extensive and substantial reforms, however, “endless reforms” contradict this principle. By consequently realizing the reform, the state had the duty to bring it to a reasonable regulation, under which the rent determined under the administrative procedure would be substituted by a lasting solution adapted to the conditions of market economy, which would balance the interests of both – the pre-reform tenants and the house-owners. 17.5. With regard to the principle of legitimate expectations it is also significant whether the expectations a person has with respect to a legal norm are lawful, wellgrounded and reasonable, as well as whether the essence of the legal regulation is sufficiently definite and constant so that one could trust it (see the judgment of the Constitutional Court of 19 March 2002 in the case no. 2001-12-01, para. 3.2 of the motives part). Neither at the beginning of the reform, nor during it did the legal norms provide that after the end of the process of the reform the pre-reform tenants should have a specific status different from the other tenants. Initially they were guaranteed rental rights with the same rules as any other tenant. When the legislator resolved to liberalise the rent market regarding other tenants it was stated that the status of the pre-reform tenants as regards the rental payments was temporary. There is no basis for the opinion expressed in the written reply of the Saeima that such legitimate expectations of the tenants were connected with the fact that they – unlike the tenants of state and local government apartments – were not given the opportunity to privatise them. Return of the nationalised and illegally expropriated buildings to the former owners was a constituent part of the property reform, in the framework of which the historical justice was first of all rehabilitated. Tenants who lived in those houses were not in equal and comparable circumstances with persons who lived in state or local government houses. The privatisation of the state property was another part of the property reform, and the regulation in that framework could not create for the pre-reform tenants legitimate expectations that they would be able to privatise their apartments. In this process the pre-reform tenants were in equal and comparable circumstances with the persons, who – for example – during the period of

the commencement of the reform rented residential space in apartment houses which were the private property of citizens. These persons also had no right to privatise their residential space, even though they had the status of tenants. Issues which are related to the issue of whether the pre-reform tenants were ensured sufficient rights to participate in the process of privatization of the property of the state and local governments, cannot be reviewed in the framework of this case. These issues are to be solved within the framework of the process of privatisation of the state and local government property. The Supreme Court of the Republic of Estonia in a case concerning the constitutionality of amendments to the tenancy law has also concluded that “by imposing restrictions of rent the state has not promised to relate the cessation of these restrictions with an adoption of other norms which would improve the well-being of the tenants of the returned houses. Even though different solutions have been discussed during the parliamentary debates […], no such obligation of the state has arisen from the law. The principle of legitimate expectations may not be applied to require from the legislator measures of support which have been discussed in political debates” (para. 23 of the judgment of 2 December 2004 in the case no. 3-4-1-20-04, www.nc.ee). Thus during the property reform the pre-reform tenants had not right to expect that even after the completion of the reform they would have a specific status different from other tenants and that they would be able to forever live in the same apartment and pay a substantially lower rent residential space of equal quality than other persons who live in the respective buildings. 17.6. However, the pre-reform tenants had the right to expect that the state would take care of the protection of their rights and ensure, within reason, a considerate transition from the amount of rental payment that had been determined under an administrative procedure to contractual relationships of rent that would equally satisfy the interests of both – the pre-reform tenants and the house-owners. One should take into consideration that before 2005 no relevant measures supporting the tenants were implemented. At the hearing of the Court S. Šķesters acknowledged it. His answer to the question of the Court about what programme of support was realized until the end of 2004 was laconic: “There was simply no programme” (vol. 4, p. 73 of the case materials). When commenting on the inactivity of the state until 2005 S. Šķesters said: “as a matter of fact, no funds were allocated for the solution of this problem. […] actually the ceiling of rent was imposed at that period but other liabilities both by the politicians and perhaps by other parties were not realized” (vol. 4, p. 65 of the case materials). Not only the fact that no funds had been allocated for the implementation of the provisions of the transitional period attests that for many years the state was not interested in the normalisation of the relations of the tenants and the lessors of apartments in buildings that had been denationalised and returned to the lawful owners. The absence of information about the extent of the problem indicates such a lack of concern even more clearly. At the hearing of the Court S. Šķesters explained that in 2004 the responsible “Commission [of the Saeima] had no precise information about the number of tenants living in these buildings, as there was no information about it at the local governments, either” (vol. 4, p. 68 of the case materials). I. Oša also confirmed that there had been lack of information (see vol. 4, p. 82 of the case materials). She noted that by identifying the situation about the past activities in the territories of local governments when developing residential space, it has been established that funds at the disposal of local governments were scarce and that no funds were being allocated

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for the construction of new buildings. Thus the previously existing housing has mostly been privatised but new housing has not been created. If there is no housing then the local governments have not been able to solve the housing problems of the persons who are queuing up for apartments (ibidem.). The state had carried out only some activities in this sector. In the law “On the Privatization of the State and Local Governments Apartment Houses” the legislator provided that apartments regarding which there is no rental contract in force were to be offered the state or local government for privatisation in a public auction. As concerns these auctions, privileges were given to two groups of residents, including natural persons who were renting residential space in buildings that had been denationalised or returned to the lawful owners on the basis of a residential rental contract which had been concluded before these buildings had been denationalised or returned to the lawful owner, as well as to natural persons with respect to whom court cases are pending regarding the termination of the rental contract and to whom the owners have no duty deriving from the Tenancy Law of providing another equivalent residential space. Only in case if persons belonging to the two groups mentioned in this law did not apply could other persons obtain the right to participate in the auction. At the hearing of the Court I. Oša explained that tenants have been really inactive in using this possibility and in most cases the apartments had been immediately sold at auctions. Therefore in 2005 the law was amended, providing that the apartments which might be privatized should first of all be offered for rent (vol. 4, p. 84 of the case materials). It is not the duty of the Constitutional Court to assess in the framework of this case how effective the performance of the above-mentioned norms has been, however, from the discussion of the impugned norm at the Saeima session as well as from the viewpoints expressed by the invited persons at the hearing of the Court, it is evident that the measures undertaken before 1 January 2005 have been insufficient for the protection of the rights of the pre-reform tenants. It follows from the words of I. Oša at the hearing of the Court that the participation of the state in the payment of a benefit for vacating of a residential space, in issuing guarantees for purchasing or building residential space, and granting of earmarked subsidies to the local governments was commenced only after the adoption of the impugned norm. The legislative acts which regulate the support measures were drafted in 2005. The funds have been planned only for 2006; therefore, real activities of the state have taken place only for two months (see vol. 4, p. 88 of the case materials). Thus the state by its inactivity has violated the legitimate expectation of the prereform tenants that they will be able to solve in long-term the issues of their residential space, either by concluding a reasonable agreement with the owner of the building that had been denationalised or returned to the lawful owner, or by finding another durable solution. The member of the Saeima Kārlis Šadurskis also stressed this at the Saeima session, at which the impugned norm was discussed: “Instead of offering a concrete solution, a three-year-long plan for tormenting tenants and house-owners is offered: for the house-owners – further degradation of the building; for the tenants – a gradual increase of the rent ceiling, thus – a gradual torment. And after three years – again nothing!” [Verbatim Record of the Saeima session of 17 November 2004, Latvijas Vēstnesis, no. 187 (3135), 25.11.2004.). However, this inactivity could not create for the pre-reform tenants legitimate expectation or some specific rights, protection of which would be the legitimate aim

for restricting by the impugned norm the fundamental rights of the house-owners, enshrined in Article 105 of the Satversme. 17.7. A legitimate aim for restricting the fundamental rights of the house-owners is the protection of the legitimate expectations of the pre-reform tenants only as far as these expectations concern the right to anticipate a reasonable regulation by the legislator regarding the procedure under which the house-owner and the pre-reform tenant reach an agreement on appropriate payment in forced rental relations. However, as has been concluded earlier, the impugned norm does not contain such a regulation. Thus, the reference to the protection of the legitimate expectations of the pre-reform tenants cannot justify the impugned restrictions. Thus the impugned norm does not comply with Article 105 of the Satversme. 18. The Constitutional Court finds that the statement of the petitioners that the impugned act violates legitimate expectations of the house-owners has to be assessed. By paragraph 4 of the law of 5 July 2002 “Amendments to the Law “On Residential Tenancy” the legislator anticipated a gradual increase of the maximum rent for the prereform tenants as well as the moment after which the rent for this category of tenants would no longer be restricted by law. This law sufficiently clearly and precisely established the date – 1 January 2005 – from which the specific restrictions lose validity. The house-owners could expect that this norm would be implemented and thus plan their activities with regard to the property. The expectation of the house-owners to the fulfilment of the abovementioned promise shall be protected, as it has an economic value of a kind – the property with which it is possible at this moment, or will be possible in the future, to operate freely is comparatively more valuable. The Constitutional Court has stressed that Article 1 of the Satversme does not prohibition supplementing the existing legal regulation by amendments which comply with the constitutional principles enshrined in the Satversme. In a democratic state the principle of legitimate expectations requires the legislator to envisage a “considerate” transition to a new regulation when adopting such amendments. Reasonable time-limits must be applied or due compensation for the incurred losses must be anticipated (see the judgment of the Constitutional Court of 25 March 2003 in the case no. 2002-12-01, para. 2 of the motives part). However, the legislator amended the above-mentioned regulation by adopting the impugned norm in haste ten days before the envisaged cancellation of the restrictions. The law was promulgated two days before taking effect, regardless of the fact that it concerned a wide range of persons and substantially altered their position. Such an activity of the legislator in a democratic state based on the rule of law is impermissible. Thus the impugned norm also does not comply with Article 1 of the Satversme. 19. Since the impugned norm has been found to be incompatible with Articles 1 and 105 of the Satversme, there is no need to assess its compliance also with Article 91 of the Satversme. 20. When deciding the moment as of which the impugned norm loses validity, the Constitutional Court takes into consideration the fact that the legislator has substantially violated the interests of both – the owners of the buildings that have been

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denationalised and returned to their lawful owners and the pre-reform tenants. In order to remove the violations of fundamental rights established in the judgment, more extensive and far-reaching changes of regulation of legal rental relations are needed than it is possible to reach by declaring the impugned norm null and void. Besides, one has to take into consideration that the pre-reform tenants have relied upon the solution included in the impugned norm, therefore it immediate declaration as being invalid would create a substantial restriction of their rights. Besides, no mechanism has been created for protecting the tenants from arbitrary actions of the lessors. The situation which would arise if no legal act whatsoever regulated this field would comply with the Satversme even less than the currect situation. In this situation it is permissible (see the judgment of the Constitutional Court of 22 October 2002 in the case no. 2002-04-03, para. 3 of the motives part) to retain the norm which is incompatible with the Satversme in force for a while to give the legislator the possibility of finding a solution of the situation that would respect the rights of both the house-owners and the pre-reform tenants. Time is also needed to create a more effective mechanism for averting arbitrariness of those house-owners who are trying to achieve the vacation of the apartments or to reach agreements on greater rental payments by illegal activities. 21. The petitioners have contested Article 13 of the law “Amendments to the Law “On Residential Tenancy”” in its entirety. The impugned restrictions are contained in paragraphs 4 and 8 of the transitional provisions of the Tenancy Law. However, paragraphs 5 and 7 of the transitional provisions are inseparably connected with paragraph 4. When declaring paragraphs 4 and 8 to be incompatible with the Satversme and null and void, paragraphs 5 and 7 should also be declared as null and void. 22. On the other hand, the adding of paragraph 14 to the transitional provisions of the law “On Residential Tenancy” in substance has not been contested and this paragraph is not inseparably connected with the other impugned norms. This paragraph does not contain any restrictions of the rights of the petitioners. Thus, it complies with the Satversme and shall not be declared invalid. On the basis of Articles 30-32 of the Constitutional Court Law the Constitutional Court decided: To declare Article 13 of the law of 20 December 2004 “Amendments to the Law “On Residential Tenancy” with respect to the amendments to paragraphs 4, 5, 7 and 8 of the transitional provisions of the law “On Residential Tenancy” to be incompatible with Articles 1 and 105 of the Satversme of the Republic of Latvia and invalid from 1 January 2007. The judgment is final and not subject to appeal. The judgment takes effect on the moment of its announcement.

Chairman of the hearing of the Court

A. Endziņš

2006-03-0106

Freedom of assembly

139

The state has the obligation not to interfere with the exercise of the freedom of assembly and the obligation to provide protection for exercising this right The freedom of assembly as an essential element of democratic society which ensures the possibility to influence political processes for society was examined. Such forms of exercising the freedom of assembly as a meeting, a procession and a picket were discussed. The system of notification which requires persons to inform the local government about exercising the freedom of assembly prior to exercising it, as well as the system of permits which requires persons to receive a permit from the local government are analysed. Since the Satversme provides for the system of notification which is less restrictive on persons’ rights a system of permits should not be envisaged in law. Various restrictions on the freedom to assembly were reviewed; inter alia, the prohibition to assemble near buildings of state institutions. The state has the obligation to ensure that the freedom of speech and assembly are effective, i.e., that the organised event reaches its target audience. In a democratic society it is of particular importance to not isolate state institutions from the society and to ensure to the officials the possibility to find out the attitude of the population, in particular if this attitude is critical. It was concluded that the state had the obligation not only to not interfere with the exercise of the freedom of assembly but also to safeguard the exercise of this freedom. Moreover, the state in safeguarding the exercise of the freedom of assembly may not examine the particular events as to their content. The state’s protection for particular events may not be differentiated on the basis of the compliance of the ideas expressed at such events with the views of the state or of a certain part of society. It was noted that the freedom of assembly usually served for expression of the interests and opinions of the minority, therefore the state had the obligation to be tolerant and not to suppress, by using the mechanisms granted to it, the expression of ideas, insofar as such ideas could be considered as being permissible in a democratic society. The fact that the state safeguards the expression of this opinion does not mean demonstrating solidarity with those expressing this opinion or recognising this opinion as being correct.

JUDGMENT in the name of the Republic of Latvia in the case no. 2006-03-0106 Riga, 23 November 2006 The Constitutional Court of the Republic of Latvia in the following composition: the chairman of the hearing of the Court Aivars Endziņš, and judges Juris Jelāgins, Romāns Apsītis, Aija Branta, Gunārs Kūtris and Andrejs Lepse

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on the basis of Article 85 of the Satversme [the Constitution] of the Republic of Latvia, as well as Article 16(1) and (6), Article 17(1)(3) and Article 281 of the Constitutional Court Law on the basis of the claim of twenty members of the 8th Saeima [the Parliament] […] in written proceedings on 24 October 2006 at a Court hearing reviewed the case “On the compliance of the words “or other attributes” and “neither shall there be orally expressed outcries, slogans or addresses”, included in Article 1(4) of the law “On Meetings, Processions and Pickets”, Article 9(1), the words “keepers of the public order”, included in Article 12(3)(1), the words “movement of pedestrians or”, included in Article 13(2), the second sentence of Article 14(6), the words “not earlier than 10 days and”, included in Article 15(4) as well as Article 16 and Article 18(4) of the said law with Article 103 of the Satversme of the Republic of Latvia, Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms as well as with Article 21 of the International Covenant on Civil and Political Rights”.

The facts 1. On 16 January 1997 the Saeima adopted the law “On Meetings, Processions and Pickets” (hereinafter – the Assembly Law). On 10 April 2003, 18 March 2004 and 2 November 2005 several amendments were made to the law. Articles of the law in which the impugned legal norms are included at the present moment are in effect in the following wording: 1.1. Article 1(4) of the Assembly Law provides: “A picket is an activity during which one or more people express certain ideas or opinions by means of posters, slogans or streamers or other attributes in a public place, but there are no speeches held, neither shall there be orally expressed outcries, slogans or addresses.” 1.2. Article 9(1) establishes that “it is prohibited to organise meetings and pickets closer than 50 metres from the residence of the President of State, the Saeima, the Cabinet of Ministers, buildings of the councils of the local authorities, courts, public prosecutor’s offices, police, places of imprisonment as well as buildings of foreign diplomatic or consular offices. In order to hold meetings or pickets in the vicinity of these buildings, the relevant institutions, except diplomatic and consular offices, may designate special areas closer than 50 meters”. Article 12(3) of the law provides: “The following shall be attached to the application: 1) copies of the agreements which the organiser has concluded with keepers of public order, persons responsible for public order and security during the activity (presenting the originals as well); 2) written agreement of the owner or manager of the place where the activity takes place, if he is not the organiser of the activity and the activity takes place on a land plot which is his private property or on land plots privately used by him.” 1.4. Article 13(2) provides: “In any case, an application shall be submitted if the meeting, procession or picket disrupts the movement of pedestrians or traffic”. 1.5. Article 14(6) provides: ”If the number of participants of the planned activity exceeds one hundred, there must be not fewer than two keepers of public order per every hundred participants; if an information has been received from a competent institution that peaceful and organised course of the activity is endangered, the relevant local authority may require the organiser to ensure the presence of not fewer than four keepers of public order per every hundred participants.”

1.6. Article 15(4) of the Assembly Law provides: “After the local authority official has reviewed the application for organisation of a meeting, procession or picket, it not earlier than 10 days and not later than 48 hours before the beginning of the activity shall carry out one of the following actions: 1) issue the organiser a notice attesting that the local government has no objections against holding the activity; 2) issue the organiser a notice that the local government has no objections against holding the activity, but imposing restrictions on holding of the activity; 3) issue a substantiated refusal.” 1.7. In its turn Article 16 establishes: “An activity may not be held if the organiser has not received a notice attesting that the local government has no objections against the activity”. 1.8. Article 18(4) provides: “The organiser of the activity shall have on hand the notice issued by the local government official attesting that the local authority has no objections against holding the activity and he must present this notice at the request of a local government representative or a police officer.” 2. The petitioner – twenty members of the 8th Saeima – requests to declare as incompatible with norms of higher legal force the words “or other attributes”, and “neither shall there be orally expressed outcries, slogans or addresses” included in Article 1(4), Article 9(1), the words “keepers of public order”, incorporated in Article 12(3), the words “and pedestrians” used in Article 13(2), the second sentence of Article 14(6), the words “not earlier than 10 days” included in Article 15(4), Article 16 and Article 18(4) (hereinafter – the impugned norms). It is pointed out in the claim that freedom of assembly is not absolute and in certain circumstances, when the protection of especially important public interests demands it and if the principle of proportionality is being observed, the state has the right to restrict fundamental rights guaranteed by the Satversme. The right to freedom of assembly shall be considered as one of the foundations of democratic society and restrictions of this right must be interpreted narrowly. All the impugned norms restrict the right of a person to freedom of assembly, making realization of this right dependent on various circumstances and provisions. 2.1. The petitioner considers that the words “or other attributes” which are incorporated into Article 1(4) unreasonably enlarge the definition of a picket, including in its scope not only the activities during which posters, slogans or streamers are used, but also many other activities. To their mind it allows the local authorities or police to qualify as a picket almost any appearance of any person or a group of persons at a public place, for example, in case if the persons are dressed in one style; and thus these persons may be punished, if no application for organisation of such an activity has been submitted. It is pointed out in the claim that by this restriction none of the legitimate aims mentioned in Article 116 of the Satversme of the Republic of Latvia (hereinafter – the Satversme) can be achieved, as the use of different attributes at places of assembly in itself does not endanger rights of other people, the democratic structure of the state, public safety, welfare or morals. This restriction violates also the fundamental rights to freedom of expression guaranteed by Article 100 of the Satversme, because this right pertains not only to the contents of information and viewpoints, but also to the form of their dissemination and expression.

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2.2. It is pointed out in the claim that the words of Article 1(4) of the Assembly Law “neither shall there be orally expressed outcries, slogans or addresses” unreasonably limit the definition of a picket. If during an announced picket its participants orally express any outcries, slogans or addresses then this activity would be considered as a violation of the Assembly Law and – in accordance with Article 23 of the Assembly Law – the activity could be terminated. Besides, the organiser of the picket, when carrying out the duties, envisaged in Article 20(1) and Article 23(1) of the Assembly Law, may need to exclaim certain outcries, slogans or orders addressed to the participants of the picket. The petitioner considers that this restriction does not comply with any legitimate aims mentioned in Article 116 of the Satversme. 2.3. The petitioner considers that the prohibition to organise a meeting, picket or procession (hereinafter – the activity) closer than 50 meters from buildings of certain institutions which is included in Article 9(1) of the Assembly Law complies with the legitimate aim to protect the rights of other persons and public safety; however, it is not necessary in a democratic society and is not proportionate. The aim of activities is the expression of a viewpoint, very often – the expression of protest and therefore it is necessary that representatives of the state power hear it. This restriction means that organization of activities in the centre of the city of Riga, namely, in places where the representatives of state power would notice it is almost impossible. Besides the restriction applies also on holidays, when most of the institutions mentioned in Article 9(1) of the Assembly Law do not work. In the claim an opinion is expressed that this restriction is especially disproportionate with regard to processions, during which the potential endangerment of the rights of other persons and public safety which is connected with the distance from the buildings mentioned in Article 9(1) of the Assembly Law is of a very short duration. Besides, the aim of a procession is usually not connected with the expression of a viewpoint on the activities of a specific institution; therefore, the potential danger is not directed against the building of a specific institution. The potential danger might be averted by other measures without restricting the freedom of assembly. First, one could apply Article 9(2) of the Assembly Law which provides that during activities pedestrians and motorists must have unhindered access to state and local government institutions when a given activity is held nearby. Second, additional police force might be used for guarding such buildings. 2.4. In the claim an opinion is expressed that the obligation deriving from Article 12(3)(1) of the Assembly Law to attach to the application on organisation of an activity copies of those agreements which the organiser has concluded with keepers of public order, complies with the legitimate aim – protection of public safety, however, it is not necessary in a democratic society and is disproportionate. Public safety is guaranteed by other norms of the Assembly Law which allow controlling the identity of the keeper of order. The Assembly Law does not oblige an organiser of an activity to conclude a written agreement with every keeper of public order. Therefore in case when an agreement has been reached in another form it is impossible to attach to the application on organisation of an activity a copy of an agreement. The local government official may verify the identity of the keeper of public order, because in accordance with Article 14(9)(1) and (3) the names, surnames, personal identification codes and the places of residence of keepers of public order shall be indicated in the application. Besides, Article 14(5) of the Assembly Law envisages that the organiser is entitled to replace the keepers of public order even after the moment when the application for organisation

of an activity has been submitted; therefore it is possible that during the activity other persons take care of public order and not the persons, with whom a written agreement has been concluded. 2.5. The petitioner considers that Article 13(2) of the Assembly Law restricts the application of paragraph 1 of the same article, namely, if the activity disrupts the movement of traffic or pedestrians, an application shall be submitted also for such activities, for which – in other cases – an application does not need to be submitted. It is admitted in the claim that this restriction complies with a legitimate aim – protection of the rights of other persons; however, it is not necessary in a democratic society and is disproportionate. It is pointed out in the claim that Article 13(1)(2) of the Assembly Law, when providing that an application does not need to be submitted if a picket is not organised and publicly announced, allows to realise freedom of assembly in cases when the picket is spontaneous. Organisation of spontaneous pickets must be regarded as an important form of implementation of freedom of assembly by which persons react to a particular event. When applying Article 12(5) in conjunction with Article 13(2) it appears that it is only possible to organise a spontaneous picket if it does not disrupt the movement of the pedestrians. The petitioner stresses: because it is the Satversme and not the Assembly Law that guarantees the implementation of the freedom of assembly, preference should be given to the right to arrange spontaneous pickets without submitting applications and not to the right of the pedestrians to choose a desirable route. 2.6. It is pointed out in the claim that the second sentence of Article 14(6) of the Assembly Law which obliges the organiser of an activity to choose as many keepers of public order as are necessary to secure a peaceful and orderly activity complies with a legitimate aim – public safety and protection of the rights of others. However, it is not necessary in a democratic society and is disproportionate. This restriction assigns to the organiser of an activity much greater responsibility for the security of the activity in case if an information on endangerment has been received. Besides, if the organiser refuses to undertake additional responsibility, the local government may issue a denial (Article 15(6) and (7) of the Assembly Law). The petitioner expresses the viewpoint that, taking into consideration the fundamental nature of the freedom of assembly, this freedom may not be restricted even in cases when events which are connected with the respective activity but which cannot be controlled by the organiser may endanger public safety. Besides, the state has not only the negative duty of not interfering with the implementation of the freedom of assembly, but also a positive duty and responsibility of ensuring that the activity may be carried out undisturbed. In the case-law of the United States it is also recognized that the requirements with regard to an organisation of an activity may not depend on the contents of the activity as well as on the protests of the potential opponents. 2.7. The petitioner considers that the prohibition to issue a notice on agreement to the organisation of an activity or its denial earlier than 10 days before the beginning of the activity complies with a legitimate aim – protection of the rights of others, the democratic structure of the state, public safety, welfare and morals; because in case if the activity is approved earlier, circumstances may change substantially and a necessity may arise to revoke the issued administrative act and to adopt another administrative act. However, this restriction to their mind is not necessary in a democratic society and is disproportionate, as it noticeably worsens the situation for the person as compared with the previous legal regulation, in accordance with which the application regarding the organisation of an activity had to be reviewed by the local

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government official within three days. It is pointed out in the claim that the previous regulation allowed persons to plan their activities with regard to organising the activity in due time and ensured an effective possibility to appeal against an unfavourable administrative act; however, the regulation currently in effect does not allow it even in case if the application on organisation of an activity has been submitted several months before the specific date. Such a restriction negatively influences the possibility of implementing the freedom of assembly; besides, it increases the risk that security measures would not be adequately prepared. The petitioner expresses an opinion that the aim of this restriction might be reached by other means, namely, by using the possibility to revoke a legal administrative act in case if circumstances have changed which is envisaged in Article 85(2) of the Administrative Procedure Law. 2.8. It is pointed out in the claim that the obligation to receive a notice from the local authority which derives from Article 16 of the Assembly Law and the duty of the leader of the activity to present this notice at the request of a local government representative or a police officer which is included in Article 18(4) of the Law comply with a legitimate aim – the protection of the rights of others, the democratic structure of the state, public safety, welfare and morals; however, they are not necessary in a democratic society and are disproportionate. The petitioner expresses the viewpoint that from Article 103 of the Satversme, if the grammatical, historical, systemic and teleological methods are applied to it, follows only the fact that precondition for the implementation of freedom of assembly is informing about an activity (a prior announcement). As the petitioner points out, before the moment the amendments to the Assembly Law took effect, Article 12(1) of the Assembly Law provided that for organisation of activities which comply with the requirements of the law it is not necessary to secure the permission of state or local government institutions. However, the currently effective wording of Article 16 of the Assembly Law envisages positive action (granting permission to hold the activity) of the local authority, which is contrary to the Satversme. Article 116 of the Satversme may not substitute the regulation of legal relations included in the core of Article 103 of the Satversme (a prior announcement of an activity) with another kind of regulation (receiving of a permit). It is pointed out in the claim that the constitutions of several Member States of the European Union directly guarantee the right to a freedom of assembly without any need to receive permits. Legislative acts of other states usually provide that for the implementation of the freedom of assembly it is necessary to inform the local government or police before the activity. 3. The institution, which has adopted the impugned act – the Saeima – asks the Constitutional Court to declare the claim ill-founded and to find that the impugned norms comply with Article 103 of the Satversme, Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter – the Convention) and Article 21 of the International Covenant on Civil and Political Rights (hereinafter – the Covenant). A viewpoint is expressed in the written reply that the freedom of assembly mainly requires from the state non-interference in the implementation of this freedom. However, taking into consideration the fact that during the time of an assembly not only the participants of the activity but also other persons may be endangered and public order may be disturbed, the state is assigned with a positive obligation. Articles 103 and

116 of the Satversme require this and the basis for the realisation of this positive duty is the Assembly Law, the aim of which is to guarantee a reasonable balance between the interests of a person and the public interests as well as interests of order and security. When elaborating the Assembly Law the legislator was guided by considerations of suitability for reaching this aim. 3.1. The Saeima does not agree with the viewpoint of the petitioner that the words “or other attributes” which are included in Article 1(4) of the Assembly Law restrict the fundamental right enshrined in Article 103 of the Satversme. It is pointed out in the written reply that the description of the terms included in the Assembly Law is relative and its aim is to generally describe the means by which a person may implement the right incorporated in Article 103 of the Satversme but the state – the obligations assigned to it. The Saeima considers that the petitioner interprets Article 1(4) of the Assembly Law very narrowly and grammatically and, moreover, isolates it from Article 13(1)(2) which regulates arranging of unorganised or publicly unannounced pickets. There are no grounds for the concern of the petitioner that the explanation of the concept of picke, which is included in the Assembly Law might on the basis of Article 1743 of the Latvian Administrative Violations Code allow an ill-founded administrative punishment of a person. In the written reply an opinion is expressed that by incorporating the words “or other attributes” in Article 1(4) of the Assembly Law the inaccuracy was corrected which was included in the law at the time of the elaboration of the Assembly Law in 1996-1997. The Saeima considers that it would be illogical to understand by the term “a picket” only an activity where slogans, streamers or posters are used if the same result might also be reached by using other attributes. If an assembly is organised or publicly announced then there is no essential meaning to the fact in what way ideas or viewpoints are expressed during the assembly. Besides, if the amendments to Article 1(4) had not been made and an activity was announced as a picket, then it would be prohibited for the participants to use other ways for expressing their ideas and viewpoints than only slogans, streamers or posters. When elaborating the amendments the legislator offered an open explanation which much more complies with the aim of the Assembly Law and allows solving different situations of life. 3.2. As concerns the words “neither shall there be orally expressed outcries, slogans or addresses” included in Article 1(4) of the Assembly Law the Saeima points out that the petitioner insists that a picket is the only form in which a person may express ideas and viewpoints, but does not recognize or does not want to recognize the fact that there exists the right of organizing a meeting – an activity in which speeches are commonly made and different attributes may be used. In the written reply an opinion is expressed that explanations of a meeting, a procession and a picket are included in Article 1 of the Assembly Law just for the organisers of the activities to solve the following issues: is it necessary to submit an application to organise an activity, what the nature of the activity is going to be, what disturbances to the public order or traffic might be created etc. If a person wishes that speeches should be made, it announces a meeting, but if it wishes to express its attitude in another way – a picket or a procession may be organised. Just because a person has made a mistake and announced a picket, the norm of the law may not be regarded as incompatible with legal norms of a higher legal force. The Saeima points out that Article 1(4) of the Assembly Law “does not order the participants of a picket to keep silent”, as they may express their attitude in another form, not only in speeches or addresses. In every specific case it is assessed

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whether the picket has not developed into a meeting. The Saeima considers that the petitioner misunderstands the contents of this legal norm and concedes that it might be interpreted erroneously. However, this does not mean that the norm is incompatible with legal norms of a higher legal force. One also may not agree with the statement of the petitioner that this legal norm does not allow the organisers of a picket and keepers of public order to carry out their duties, namely, to ensure order during the picket. 3.3. The Saeima holds that the restriction incorporated in Article 9(1) of the Assembly Law, if it is applied correctly, complies with the principle of proportionality. The legitimate aim of this restriction is to guarantee an undisturbed activity of particularly important state institutions and prevent potential security risks. To establish whether the restriction is proportionate one has to ascertain whether this legal norm may be applied in a flexible way, namely, in such a way that if the need arises a more lenient measure may be accessible, not only a general prohibition to assemble closer than 50 metres from the respective institution. The Saeima points out that, for example, in the USA and Germany the choice of the place of an activity is restricted. Completely abandoning the principle of forbidden zones leads to envisaging a much more extensive margin of appreciation of the officials who might decide that it is allowed to arrange the activity not only 50 metres from certain buildings but at an even bigger and unreasonable distance. Thus in Latvia attempts were made “to find a certain balance in this sensitive issue”. The second sentence of Article 9(1) of the Assembly Law ensures this balance. The respective institution itself may determine the place of organization of a specific activity, but the law envisages the maximum distance which may be imposed. Thus according to the Saeima “the law envisages a considerate measure and a flexible solution so that by reaching the legitimate aim the rights of a person are not unreasonably restricted”. 3.4. The following opinion is expressed in the written reply: even if the legal norm incorporated in Article 12(3)(1) of the Assembly Law is incomplete, as it seems to the petitioner, it does not mean that it is incompatible with legal norms of a higher legal force. The object and purpose of this norm is to establish whether “the organiser of an activity is able to ensure the presence of the keepers of public order and whether he is convinced that the keeper of public order has indeed agreed to carry out the particular duties”. As Article 14(1)(9) of the Assembly Law allows to indicate keepers of public order in the application on organisation of an activity, with whom no separate written agreement has been concluded, the local governments, especially the Riga City Council, permit that keepers of public order – physical entities – may place a signature on the application on organisation of the activity to be submitted. If the keepers of public order are legal persons or groups of persons a written agreement of keeping order during the activity is required. The Saeima stresses that while performing “a teleological reduction of the inaccuracy of the respective law one has to acknowledge that the applicant has in fact been given a possibility of choice”. Such has been also the will of the legislator; even though it has not been precisely expressed in the text of the Assembly Law, “this inaccuracy may be eliminated in the process of application”. 3.5. The Saeima points out that Article 13(2) of the Assembly Law, if it is correctly interpreted and applied, is not contrary to legal norms of a higher legal force. The Saeima considers that this impugned norm does not restrict the freedom of spontaneous pickets; besides it is necessary for the protection of the rights of others. By

using reasons of logics and by modelling the practical application one may conclude that Article 13(2) of the Assembly Law does not apply to pickets which are not organised or publicly announced. It is pointed out in the written reply that before a spontaneous picket it is not possible to foresee either the number of its participants or the precise place, time and type of the activity. If such a picket takes place, the police are entitled to impose reasonable restrictions on it, so as to ensure the possibilities of peaceful gathering and public order, as well as to terminate the activity, if it does not have the features of a spontaneous picket and may endanger public order. Article 13(2) of the Assembly Law, however, “requires the presence of organizational element”, thus “Article 13(1) (2) and Article 13(2) cannot be applied cumulatively. These norms exclude one another and do not restrict one another”. The Saeima draws the attention also to the fact that the obligation included in this impugned norm does not in itself contain a restriction. The norm assigns the duty of submitting an application on organisation of an activity but does not forbid arranging activities of a certain type. The duty to submit an application on organisation of an activity arises only in cases when the movement of both pedestrians and traffic may be disrupted. Amendments to Article 13(2) of the Assembly Law have been made after specific instances when the participants of an activity had essentially endangered the security of the pedestrians and the participants of the traffic. 3.6. The Saeima does not agree with the viewpoint of the petitioner about the disproportionality of the requirement included in the second sentence of Article 14(6) of the Assembly Law to ensure that per every hundred participants there are at least four keepers of public order, if an information has been received from a competent institution about the endangerment of a peaceful and organised course of the activity. Such mass activities are announced comparatively rarely and the respective decision may be appealed against in court as a restriction imposed on the process of the activity. The organiser of the activity cannot ignore the necessity of guaranteeing security and irresponsibly leave it to police: the duty of participation is important. During the process of the elaboration of the impugned norm viewpoints have been expressed that the police may “secure protection from “the outside”, but the keepers of public order do it “from the inside” and that the keepers of public order might ensure “a link” with the police, whom the participants of the activity may “regard as a hostile force” and thus the preclusion of endangerment of security would be coordinated better. The Saeima does not contest the fact that the state has a positive duty of ensuring an uninterrupted process of an activity; however, it points out that the prohibition to organise an activity in case when it is not possible to preclude “undesirable side effects”; determining another time, place or duration for the activity because of reasons of safety is valid if the loss which might arise as the result of the activity would be greater than the benefit. One may not require from the state an unreasonable use of resources and force for guaranteeing security of the activity. The Saeima holds that one cannot agree with the petitioner who perceives the positive duty of the state as an end in itself, but not as a measure which ensures the protection of vital interests. 3.7. It is pointed out in the written reply that the words “not earlier than 10 days and” which are included in Article 15(4) of the Assembly Law comply with Article 103 of the Satversme. This restriction refers to the adoption of the decision and not to the review of the application for the organisation of an activity. To verify whether the activity would not endanger public safety or order, the local government addresses

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the Security Police and the information furnished by it is based on the results of operative measures. The Saeima points out that sometimes applications on organisation of activities to be held on certain dates are submitted a long time beforehand but in the meantime the situation as regards the endangerment of public safety and order may certainly change. If the impugned norm did not exist then the decision on coordination of the activity might be adopted without finding out the actual circumstances but that would be at variance with the aim of coordination – to assess the endangerment of public safety and order. Thus the time-limit determined in the impugned norm is proportionate to the obligations which the law assigns to the local government – by knowing the actual circumstances to qualitatively assess and preclude endangerment of public safety and order. This time-limit is not only useful for establishment of the endangerment but it also ensures effective and valuable process of reviewing the application on organisation of the activity and taking the decision on it. If in certain cases the local government uses the very last hours envisaged by the law for taking the decision, then it shall not be regarded as a flaw of the law, but an issue of application of the norm which is within the competence of the local government. The Saeima draws the attention to the following circumstance: if the mechanism offered by the petitioner – in cases of a change of actual circumstances to abrogate the administrative act on coordination of the activity – was adopted, then, on the basis of Article 85(3) of the Administrative Procedure Law, the local government would have to compensate the losses and personal harm, which would have arisen to the addressee of the administrative act as the result of the abrogation of this act. Thus the local government would be assigned with an unrealisable duty – already long before the activity to envisage the endangerment the activity might cause – and the financial responsibility. 3.8. The Saeima does not agree to the viewpoint of the petitioner that Article 16 of the Assembly Law does not comply with Article 103 of the Satversme. It is pointed out in the written reply that respective administratively legal relations may be regulated in three ways: freely, by announcing or by receiving a permit. The fact that Article 103 envisages “the system of announcement”, but Article 16 of the Assembly Law – “the system of permits” is just the presumption of the petitioner which has been deduced by grammatically interpreting words “previously announced” incorporated in Article 103 of the Satversme. To the mind of the Saeima the object and purpose of Article 103 of the Satversme is that the state does not have protect activities which are not peaceful and have not been previously announced. The Saeima considers that Article 103 does not include a specific type of administratively legal regulation – neither “the announcement system” nor “the system of permits”. Article 103 of the Satversme has been elaborated on the basis of the Assembly Law, also on the basis of the wording of Article 16, and the choice of the particular system has been left within the competence of the legislator. Article 11 of the Convention also allows subjecting freedom of assembly to a “system of permits”. The Saeima points out that Article 116 of the Satversme also permits restricting the rights mentioned in Article 103 of the Satversme and the petitioner does not contest the legitimate aim of such restrictions. The fact that coordination of the activity takes place in the form of a permit does not mean that the local government controls, censors or sanctions the contents of the activity, because “the permit shall be received not with regard to the viewpoints to be expressed but with regard to the specific place, type and time in which the viewpoints shall be voiced”. Thus the aim of the permit system in the context of the freedom of assembly is to balance different freedoms of a person

(freedom of expression, freedom to express one’s viewpoint in any form) and public interests (order, safety, rights of other persons). The Saeima considers: if the local authority might issue only a substantiated refusal and not a notice on organisation of an activity, then any control over the conformity of the process of activity with the requirements of the law would depend only on the abilities of the employees of the local governments and law enforcement institutions to react to different events during the activity. Thus the possibility that the local authority and the organiser of the activity might reach an agreement on changing the time, place and the route would be denied; thus every established shortcoming might be averted only during the time and at the place of the process of the activity; or – whenever this shortcoming would be established – the local authority should automatically forbid the organisation of the activity. […]

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The motives I 6. Article 103 of the Satversme provides: “the state shall protect the freedom of previously announced peaceful meetings, street processions, and pickets”. As the freedom of assembly is enshrined in this article, it means that this freedom is considered as one of the fundamental rights and values of a person in a democratic society. Freedom of assembly is an essential precondition for functioning of a state governed by the rule of law. Since the freedom of assembly is recognized as a constitutional value, the duty of the state power is to ensure the implementation of this freedom. 7. The freedom of assembly alongside with the freedom of association and the freedom of speech belong to the most important political rights of a person. Article 103 of the Satversme ensures the subjective right of a person to participate in peaceful processions, meetings and pickets and freely express their thoughts and viewpoints. The freedom of assembly furthers the expression of the political activity of a person in the state. The freedom of assembly is a vital element of a democratic society which ensures the public possibility to influence political processes, inter alia, also by criticizing the state power and protesting against the actions of the state. When implementing the rights guaranteed by Article 103 of the Satversme persons may together discuss significant problems, express their support to the policy implemented by the state or to censure it. The freedom of assembly ensures for persons the possibility of informing the wider society about their viewpoint or opinion. Foreign legal experts, when assessing the regulation of the Assembly Law, have recognized that the possibilities to effectively use the right to peaceful assembly, as has been envisaged by Article 103 of the Satversme, allow the members of the civil society to participate in the policy of the state and in public matters. Besides, this right together with other similar rights (for example, the freedom of speech, the freedom of press) becomes an instrument which people may use to express their dissatisfaction with the fact that other fundamental rights of a person enshrined in the Satversme are not observed (see the Report on the law “On Processions, Meetings and Pickets”, p. 2 // vol. 3, p. 96 of the case materials).

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8. The petitioner requests to assess the compliance of the impugned norms not only with Article 103 of the Satversme but also with international legal norms, binding on Latvia i.e. – Article 11 of the Convention and Article 21 of the Covenant. 8.1. Article 11 of the Convention provides: “1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the state.” Article 21 of the Covenant establishes that “the right to peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others”. 8.2. The Constitutional Court has repeatedly concluded that the aim of the legislator has not been to oppose the human rights norms included in the Satversme and the international norms of human rights. The obligation to make use of international norms for the interpretation of the fundamental rights enshrined in the Satversme follows from Article 89 of the Satversme which provides that the state shall recognize and protect fundamental human rights in accordance with Satversme, laws and international agreements binding on Latvia, i.e. international legal norms, binding on Latvia. It can be seen from this Article that when adopting Chapter VIII of the Satversme “Fundamental Human Rights” the legislator has tried to achieve harmony of the fundamental norms included in the Satversme with the international human rights norms but not to contrast them (see the judgment of the Constitutional Court of 30 January 2000 in the case no. 2000-03-01, para. 5 of the motives part and the judgment of the Constitutional Court of 17 January 2002 in the case no. 2001-0801, para. 3 of the motives part). The Convention and the Covenant, as well as the practice of application of both international human rights documents influence the interpretation of the fundamental rights included in the Satversme and that of the principle of a state governed by the rule of law. International human rights norms binding on Latvia and the practice of their application on the level of constitutional law serves as the means of interpretation for determining the contents and the scope of fundamental rights and the principle of a state governed by the rule of law in as long as it does not lead to decrease or restriction of the fundamental rights enshrined in the Satversme (see the judgment of the Constitutional Court of 13 May 2005 in the case no. 2004-18-0106, para. 5 of the motives part). Thus the conformity of the impugned norms with Article 11 of the Convention and Article 21 of the Covenant shall be analysed in conjunction with Article 103 of the Satversme. 9. The state may determine the procedure of implementation as well as restrictions to the fundamental rights, including the freedom of assembly. Thus the state protects

the implementation of the respective fundamental right as well as protects the rights of other persons and other constitutional values. However, arbitrary restrictions of fundamental rights are not permissible. They may be restricted only in cases determined in the Satversme – if the protection of significant public interests requires it and the principle of proportionality has been observed (see the judgment of the Constitutional Court of 11 April 2006 in the case no. 2005-24-01, para. 8). Regardless of the particular importance of the freedom of assembly, it is not absolute. Article 116 of the Satversme expressis verbis provides that the rights of persons set out in Article 103 of the Satversme may be subject to restrictions in circumstances provided for by law in order to protect the rights of other people, the democratic structure of the state and public safety, welfare and morals. Thus, the freedom of assembly may be restricted if the restrictions have been provided for by laws adopted under the correct procedure in order to achieve important interests, i.e. to ensure reaching of a legitimate aim and if they are proportionate with this aim. It means that state institutions should as far as possible avoid introducing unneeded restrictions to the freedom of assembly. This conclusion has been formulated also in the case-law of administrative courts: “One of the main aims of the freedom of assembly is to freely allow persons publicly and jointly express their viewpoint to the society, drawing its attention to specific problems. This is one of the most important freedoms of a person and restrictions to the implementation of the freedom of assembly must be imposed very carefully” ( judgment of the Administrative Regional Court of 23 August 2004 in the case no. 143/ AA751-04/4, para. 16 // the Constitutional Court case materials in the case no. 200518-01, p. 98). 10. The impugned norms have been incorporated in the Assembly Law. The Assembly Law of 16 January 1997 as well the amendments to the Assembly law of 10 April 2003, 18 March 2004 and 2 November 2005 which pertain to the impugned norms have been adopted and promulgated under the correct procedure. Therefore, when assessing each individual impugned norm it is not necessary to every time verify whether the restriction of fundamental rights included in the norm has been provided for by law adopted under the correct procedure. II 11. The legislator has incorporated the legal definitions of the notions “a meeting”, “a procession” and “a picket” in Article 1 of the Assembly Law. They clarify the notions used in Article 103 of the Satversme. However, as has been pointed out in the written reply of the Saeima, these definitions are also relative (see vol. 1, p. 44 of the case materials). Therefore a precise understanding of the notions “a meeting”, “a procession” and “a picket” may develop only in the practice of application of legal norms, especially in the practice of administrative courts. Usually the notions included in the Satversme are clarified in the form of legal definitions with the aim of normative interpretation of these abstract notions so as to lighten the work of the appliers of the law. However, in certain cases it is possible that the legislator, by clarifying a notion included in the Satversme in a legislative way incorporates in the definition such

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provisions the essence of which restricts the fundamental rights incorporated in the Satversme. 12. Article 1(4) of the Assembly Law provides that “a picket is an activity during which one or more people express certain ideas or opinions by means of posters, slogans or streamers or other attributes in a public place, but there are no speeches held, neither shall there be orally expressed outcries, slogans or addresses”. The words “or other attributes” of this norm are challenged. These words were included in the legal definition by the amendments to the Assembly Law of 2 November 2005. 12.1. The minutes of the Saeima Legal Affairs Commission indicate that initially it was planned to define the notion “a picket” in the following way: “A picket – an activity during which people standing in a public place express their viewpoint, protest or demands by means of posters, slogans or streamers, but during which no speeches are made” (12 March 1996 minutes no. 39 of the meeting of the Legal Affairs Committee of the 6th Saeima of the Republic of Latvia // vol. 2, p. 10 of the case materials). Already when debating the wording of the Assembly Law of 16 January 1997 at the Saeima Legal Affairs Committee objections to the too narrow definition of a picket were expressed. Deputy Prime Minister Ziedonis Čevers submitted a motion to rectify the definition by deleting from Article 1(4) of the Assembly Law the words “standing in a public place” and “protest or demands by means of posters, slogans or streamers, but during which no speeches are made” (vol. 2, p. 52 of the case materials). When substantiating this motion at the meeting of the Legal Affairs Committee the advisor to the Deputy Prime Minister Linards Muciņš pointed out that the notion “a picket” in the draft law has been defined too narrowly, namely, the definition “does not include the cases, when propagation of viewpoints during the picket is not expressed by means of posters, slogans or streamers, but by other means, for example, by dressing in a specific way, taping shut one’s mouth etc. (29 May 1996 minutes no. 75 of the meeting of the Legal Affairs Committee of the 6th Saeima of the Republic of Latvia // vol. 2, p. 28 of the case materials). However, this motion was rejected. 12.2. As a result of such a decision of the Committee until 2 November 2005, when the amendments to Article 1(4) of the Assembly Law were adopted, all the attributes, which might be used during the picket were exhaustively mentioned, namely – posters, slogans and streamers. Taking into consideration the fact that for using other attributes there existed a theoretical possibility to punish the participants of the picket for violations of the Assembly Law, the Saeima by its amendments to the Assembly Law of 2 November 2005 extended the definition of a picket, declining from an exhaustive explanation. Instead an “open” explanation of the notion has been included in the norm (see vol. 1, p. 65 of the case materials). […] Thus the words “or other attributes” which are included in Article 1(4) of the Assembly Law comply with Article 103 of the Satversme. 13. The petitioner has contested also the words “neither shall there be orally expressed outcries, slogans or addresses” which are included in Article 1(4) of the Assembly Law. 13.1. When the legislator amended the Assembly Law on 2 November 2005 by incorporating in Article 1(4) of the Assembly Law the prohibition to voice outcries,

slogans, addresses and speeches during a picket, the legislator narrowed the notion of a picket as well as has restricted the rights of persons during a picket. As in this case by defining the notion “a picket” used in Article 103 of the Satversme a restriction of the right to assembly has been imposed, it is necessary to assess whether such a restriction has a legitimate aim and whether the restriction itself is proportionate. 13.2. The draft of the 2005 amendments to the Assembly Law indicates that the words “neither shall there be orally expressed outcries, slogans or addresses” have been included in Article 1(4) on the basis of the motion by the member of the Saeima Mihails Pietkevičs, which was upheld by the responsible Committee after rectifying the initial text (see vol. 3, p. 65 of the case materials). When substantiating his motion, the member of the Saeima stressed at the meeting of the Defence and Internal Affairs Committee that the essence of a picket does not lie in speaking, because then it is not a picket (see the 26 October 2005 minutes no. 252 of the meeting of the Defence and Internal Affairs Committee of the Saeima; vol. 3, p. 35 of the case materials). The written reply of the Saeima also indicates the purpose of amending Article 1(4) of the Assembly Law, namely, to clearly dissociate a picket from another form of realization of the freedom of assembly – a meeting, during which speeches are made. Dissociation of the forms of implementation of the freedom of assembly is connected with the need to explain to the local government officials the nature of the announced activity, as well as the fact whether during the activity sound amplification equipment will be used and what disturbances of transport movement and public safety might arise (see vol. 1, p. 45 of the case materials). For a restriction of a fundamental right to be justifiable, it shall serve a legitimate aim – to protect other values of a constitutional rank (see the judgment of the Constitutional Court of 22 December 2005 in the case no. 2005-19-01, para. 9). Restrictions to the implementation of the freedom of assembly, inter alia also to the freedom of pickets may be imposed in order to protect the rights of other people, the democratic structure of the state, public safety, welfare and morals. Both – the aim of the legislator when adopting the impugned amendments to Article 1(4) of the Assembly Law and the opinion expressed in the written reply of the Saeima indicate that by adopting these amendments the legislator has tried to precisely dissociate a picket from other forms of realization of the freedom of assembly, especially from a meeting. 13.3. The first sentence of Article 1(2) of the Assembly Law provides that “a meeting is organised for the purpose of assembling with people and expressing certain ideas or opinions”. On the other hand, Article 1(4) of the Assembly Law employs four notions – “outcries”, “slogans”, ”addresses” and ”speeches” to indicate those forms of oral communication which are prohibited during pickets. It can be concluded that a picket differs from a meeting by the fact of whether or not it is planned to make speeches during the activity. The formulation “expressing certain ideas and opinions”, used in the definition of a meeting cannot be analysed separately from another aim of a meeting, namely, “for the purpose of assembling with people”. A meeting is a form of implementation of the freedom of assembly in which people meet to mutually exchange viewpoints and ideas. The purpose of a meeting lies in the internal communication of its participants. In its turn the aim of a picket is to draw the attention of other persons, including state officials, to the idea or opinion expressed by the participants. A group of participants may draw the attention of persons who do not belong to that group to their ideas both – by using posters, slogans, streamers or other attributes and by verbally voicing specific

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information. However, oral information is externally directed, it is addressed to other persons. The prohibition to use outcries, slogans or addresses during a picket is to be assessed separately with regard to each form of verbal communication. 13.4. Outcries and slogans are a spontaneous reaction to events, a spontaneous expression of the freedom of speech, differing from speeches and addresses which are prepared before. In the same way by a short and terse outcry or slogan the participants of a picket may draw the attention of the surrounding people to a specific social problem or express condemnation of developments. Thus the prohibition to use isolated verbally expressed outcries or slogans makes the right incorporated into the Satversme ineffective and illusory. Therefore there is reason to the proposal of the SHRB to dissociate the prohibition to express outcries and slogans from the prohibition to make speeches (see vol. 1, p. 46 of the case materials). In the written reply of the Saeima it is also pointed out that that the participants of a picket shall not keep absolute silence, the participants of a picket may also verbally express their attitude (see vol. 1, p. 46 of the case materials). The Constitutional Court considers that exactly slogans and outcries are these permissible forms of implementation of the freedom of speech when verbal communication is directed to drawing the attention of other persons, but not to an internal communication of the group when debating and discussing a topical problem. One may agree with the viewpoint expressed by the petitioner that the prohibition to verbally express outcries or slogans during a picket does not ensure the protection of any other constitutional values. Verbal expressing of outcries and slogans by itself does not endanger the democratic structure of the state, the rights of other persons, public safety, welfare and morals (see vol. 1, p. 3 of the case materials). Consequently, this restriction has no legitimate aim. Thus the words “neither shall there be orally expressed outcries, slogans” incorporated in Article 1(4) of the Assembly Law do not comply with Article 103 of the Satversme. 14. In the Latvian literary language each of the notions “a slogan”, “an outcry” and “an address” has its own definite content. “A slogan” is “an appeal, summons, in which an idea, an opinion, also a task, a political demand is expressed in a nutshell” (Latviešu valodas vārdnīca. Riga: Avots, 2006, p. 607). “An outcry” is “an appeal, summons; shortly expressed main opinion, idea” (ibid., p. 971). “An address” is “a short speech, introductory words by which (somebody) addresses the listeners” (ibid., p. 1134). 14.1. In Latvia the freedom of assembly as a cohesive whole is not constitutionally protected, unlike in most democratic states (see, for instance, Article 47(1) of the Constitution of the Republic of Estonia, Article 36 of the Constitution of the Republic of Lithuania, Article 57 of the Constitution of the Republic of Poland, Article 8 of the Basic Law of the Federative Republic of Germany, Article 17 of the Constitution of the Republic of Italy, etc.). Article 97 of the draft of part II of the Satversme also envisaged that the citizens shall have the right to assembly (see the verbatim record of the 2nd meeting of the fifth session of the Latvian Constitutional Assembly, 18 January 1922). However, Article 103 of the Satversme provides for the protection of specific forms of the freedom of assembly – meetings, processions and pickets. Therefore it is permissible that a separate legal regulation is developed for each form of implementation of the freedom of assembly, by taking into consideration its specifics.

14.2. As the making of speeches, namely, the inner communication of the assembled persons, is a feature of a meeting, the legislator has reasonably provided that in case of a picket such inner communication is not permissible. If persons want to communicate among themselves and discuss a topical issue, they must announce a meeting and not a picket. A picket as a form of implementation of the freedom of assembly has its own aims, for reaching of which the making of speeches is not necessary. Unlike “slogans” and “outcries”, the meaning of “addresses” as means of verbal communication is unclear and it cannot be clearly and precisely dissociated from “speeches”. Addresses to a great extent are a variety of speech (“a short speech”) and they are not directed to drawing of attention of the passers-by but they are more suitable for a mutual exchange of viewpoints of the assembled persons. Thus, from the logic of the second sentence of Article 1(2) of the Assembly Law it follows that making addresses, as well as making speeches already at this moment is a feature of a meeting as a form of implementation of the freedom of assembly. Therefore the legislator has reasonably prohibited expressing addresses during a picket. Consequently, the words “or addresses”, of Article 1(4) of the Assembly Law comply with Article 103 of the Satversme.

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III 15. Article 16 of the Assembly Law provides that “An activity may not be held if the organiser has not received a notice attesting that the local government has no objections against the activity”. Article 18(4) of the Assembly Law states: “The organiser of the activity shall have on hand the notice issued by the local government official attesting that the local authority has no objections against holding the activity and he must present this notice at the request of a local government representative or a police officer”. The petitioner contests compliance of the obligation determined in these norms to receive “a notice attesting that the local government has no objections against the activity” with Article 103 of the Satversme. 16. For a person to be able to carry out certain activities, inter alia, also to realize the fundamental rights guaranteed by a constitution, the state may impose both – a duty of a previous announcement as well as the duty of receiving a permit from a competent institution for carrying out this or that activity (see Paine F. J. Vācijas vispārīgās administratīvās tiesības. Vācijas Administratīvā procesa likums. Riga: Tiesu Namu Aģentūra, 2002, p. 143). Both – the duty of announcing beforehand about carrying out of an activity (the system of announcing) and the duty to receive a permit (system of permits) are restrictions of fundamental rights. Therefore one cannot agree with the conclusion expressed in the case‑law of administrative courts that “by a duty to announce an activity to be held in open air the right to assemble is not restricted” ( judgment of the Administrative Regional Court of 2004 in the case no. 143/AA858-04/3, para. 13 // vol. 1, p. 145 of the case materials). 17. To assess whether the impugned norms comply with Article 103 of the Satversme, it is necessary to establish what system of implementation of the freedom of assembly is envisaged in Article 103 of the Satversme and what system is ;provided for by the Assembly Law.

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18. Article 103 of the Satversme provides that “the state shall protect the freedom of previously announced peaceful meetings, street processions and pickets,” i.e. it is possible to realize the freedom of assembly by previously announcing the respective activity. In the Latvian literary language the notion “to announce” means the duty of “officially declaring, making known (for example, the beginning of a certain activity)” (Latviešu valodas vārdnīca. Riga: Avots 2006, p. 847). The duty to previously receive a permit for implementing one’s fundamental rights is not included in this notion. Thus one could conclude that the Satversme envisages a system of announcing for the implementation of the freedom of assembly. However, the grammatical method of interpretation is just the very first of the methods of interpretation and it is not correct to be guided only by the textual meaning of a legal norm (see the decision on the termination of the proceedings of the Constitutional Court of 22 April 2005 in the case no. 2004-25-03, para. 6). Therefore it is necessary to establish the contents of the notion “previously announced” by using other methods of interpretation as well. 19. The provision that the freedom of assembly may be implemented after a prior announcement was included in the Latvian constitutional law already before the adoption of Chapter 8 of the Satversme in 1998. 19.1. Already in 1922 the Constitutional Assembly had planned to establish the guarantees of the freedom of assembly on the constitutional level. Article 97 of the draft of part II of the Satversme provided: “The citizens shall have the right to organise meetings indoors or outdoors and peacefully assemble without weapons if they previously announce about it to the competent institution”. When debating on the norm at the Constitutional Assembly discussion arose about the words “previously announce”. Member of the Constitutional Assembly Fēlikss Cielēns proposed to delete these and “introduce in Latvia such practice, such a way of convening meetings which exists in England. In England there are provisions on meetings, namely, they may be held without any previous announcement or informing the police or any other state institution (verbatim record of the 2nd meeting of the fifth session of the Latvian Constitutional Assembly, 18 January 1922). Jānis Purgals spoke against this motion of F. Cielēns in the name of the Satversme Drafting Commission by, inter alia, explaining the notion “previously announce”. J. Purgals stressed that the Satversme Drafting Commission had considered the motion of F. Cielēns and has rejected it as “at least for the sake of order one should know what kind of a meeting is going to take place, so that it would not disturb traffic and there would be the necessary guarantee that peace and order will be ensured” (verbatim record of the 2nd meeting of the fifth session of the Latvian Constitutional Assembly, 18 January 1922). Thus, it can be concluded that it was envisaged to create the system of previous announcing and not the system of permits for the implementation of the freedom of assembly. 19.2. Because the Constitutional Assembly did not adopt Part II of the Satversme, the Saeima in 1923, wishing to ensure the protection of the freedom of assembly, adopted a law which regulates the procedure of implementation of this freedom (the Law on Meetings // Valdības Vēstnesis, 18 July 1923, no. 153). The Law on Meetings envisaged a system of announcement but, in specific cases, a system of permits. For denoting the system of announcing the notion “previous

announcing” was used in the text of the law, while the notion “permit” which was used in certain norms indicates the existence of the system of permits. According to a remark to Article 1 of the Law on Meetings a permit was needed for meetings and processions organised by foreigners. A permit was also needed for “meetings in open air held within a quarter of a kilometre from the place of the sessions of the Saeima during sessions (Article 4 of the Law) and for “processions along the streets and squares” (Article 17 of the Law). In other cases the organised activity had to be previously announced, if only the law did not provide the opposite, namely, that previous announcing or a permit are not needed (Articles 3 and 19 of the Law). 19.3. Also after the renewal of the state independence the legislator in constitutional acts and their drafts has used the notion “previously announced”. The first sentence of Article 46(1) of the 1991 Republic of Latvia draft Fundamental Law for the Transitional Period provided: “The state shall guarantee the freedom of peaceful meetings, rallies, processions and demonstrations”. In order to avoid doubts about the content of the notion “previously announced”, in the second sentence of Article 46(1) of the draft it was particularly stressed: “For organization of these activities it is not necessary to secure the permission of state institutions” (the Republic of Latvia Fundamental Law for the Transitional Period // 12 July 1991 Supplement to the Newspaper “Diena” no. 26 “Laws, Decisions and Official Documents”). A similar understanding of the freedom of assembly is also indicated in the Constitutional law of 10 December 1991 “The Rights and Obligations of a Person and a Citizen” (see the Constitutional Law “The Rights and Obligations of a Person and a Citizen” // Latvijas Republikas Augstākās Padomes un Valdības Ziņotājs, 30 January 1992, no. 4). When the draft of the Constitutional law was submitted to the Supreme Council its Article 32(1) provided: “The state shall guarantee the freedom of previously announced peaceful meetings, rallies, processions and demonstrations. No authorisation of state institutions is required to organise them”. On the motion of the rapporteur during the second reading the second sentence of Article 32(1) was deleted. The rapporteur Kārlis Liepiņš motivated his motion in the following way: “It is stated in the first sentence that the state guarantees, and then everything is alright. And even during the hard times several years ago no such a prohibition or in effect a permit has been demanded” (verbatim record of the 21 November 1991 session of the Supreme Council of the Republic of Latvia). The members of the Supreme Council accepted the above-mentioned motion, and the previously cited second sentence of Article 32(1) was not adopted. However, this norm was rejected not because the members of the Supreme Council accepted the permit system but just for the opposite reason – the members of the Supreme Council considered that the words “previously announced” clearly indicated that any system of permits is completely excluded. Thus in the context of the freedom of assembly the notion “previously announced” in the Latvian constitutional law has long-standing traditions and a clear content. 20. In the international norms of human rights binding on Latvia, no choice in favour of the system of announcing or that of permits has been made. Neither Article 11 of the Convention nor Article 21 of the Covenant expressis verbis decide this issue, namely, the choice of the procedure for implementation of the freedom of assembly is left to the discretion of the member states. The European Committee of Human Rights when interpreting Article 11 of the Convention has concluded that imposition of a permit system in itself does not

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mean a violation of this article if this system is justifiable [see appl. no. 8191/78, Rassemblement Jurassien Unité v. Switzerland, 17 DR 93 (1979)]. However, in the practice of application of the Covenant the conclusion has crystallized that the requirement of a prior permit does not comply with Article 21 of the Covenant. The United Nations Human Rights Committee in its final conclusions has repeatedly pointed out to several states that the permit system unfavourably affects the implementation of the freedom of assembly and has advised to make improvements in this area [see, for example, the final conclusions of the United Nations Human Rights Committee on the reports of the Republic of Korea (A/47/40 (1992) 113, §§ 517‑518), Tanzania (A/48/40, vol. I (1993) 35, §§ 185, 188) and Belarus (A/53/40, vol. I (1998) 26 §§ 145, 154) on the implementation of the Covenant obligations]. The international legal norms binding on Latvia and the practice of their application do not signal a mandatory duty of the state to abandon the system of permits in the implementation of the freedom of assembly. However, in Article 103 of the Satversme a choice has been made in favour of the system of announcing (see para. 19 of this judgment). The system of permits for implementation of the freedom of assembly may be introduced only by amending Article 103 of the Satversme. The system of announcing ensures more extensive possibilities of implementing the respective fundamental right than the system of permits. In this case it can be deduced that the Satversme guarantees a more extensive protection of the fundamental right. 21. In the Assembly Law the obligation of a person to receive a permit for implementing the freedom of assembly is not established expressis verbis. The conclusion that a permit is necessary follows from the notion “a notice attesting that the local government has no objections against the activity” which is included in Article 16 of the Assembly Law, as the existence of such a notice is a precondition for the implementation of the freedom of assembly. The norms of Chapter III of the Assembly Law “Submission of Applications” also attest that the system of permits is a precondition for the implementation of the freedom of assembly. 21.1. The fact that the Assembly Law envisages the system of permits follows also from the debates of the members of the Saeima. Thus, for example, the member of the Saeima Pēteris Simsons when debating on the authorisation to impose an administrative penalty on the member of the Saeima Arvīds Ulme stressed: “Article 103 of the Satversme clearly and unmistakably tells: “The state protects the freedom of previously announced peaceful meetings, street processions and pickets”. Did Arvīds announce this procession, this activity? Yes, he announced it only when it turned out that the court had cancelled the prohibition to organise a procession of the gays. Thus he missed the time-limit. Here arises a discrepancy between the Satversme and the law. It turns out that the law requires him to receive a permit from the local government” (verbatim record of the 2nd meeting of the fall session of the 8th Saeima of the Republic of Latvia, 15 September 2005). Also when discussing the amendments to the Assembly Law of 2 November 2005 several members of the Saeima pointed out that the system of permits is envisaged in the Assembly Law and that this does not comply with Article 103 of the Satversme (see the verbatim record of the 7th meeting of the fall session of the 8th Saeima of the Republic of Latvia, 13 October 2005).

21.2. One has to receive a notice attesting that the local government has no objections against the organization of the activity. Receiving this notice is a mandatory precondition for organising an activity. It means that to organise an activity one has to receive the permit. Even though the legislator has not used the notion “a permit”, the essence and legal consequences of “a notice attesting that the local government has no objections against the activity” point out that such a notice must be regarded as a permit. In the written reply of the Saeima it is also recognized that the system of permits has been incorporated into the Assembly Law (see vol. 1, p. 54 of the case materials). Such a conclusion follows also from the amendments to the Assembly Law of 2 November 2005 when the legislator deleted Article 12(1) which provided: “if meetings, processions and pickets comply with the requirements of this law, it is not necessary to secure a permission of the state or local government institutions to organise these activities”. Thus, there is no doubt that the system of permits is incorporated into the Assembly Law. 22. The Assembly Law envisages the system of permits for implementation of the freedom of assembly. However, Article 103 of the Satversme provides that the freedom of assembly must be realized by previously announcing it, i.e., it provides for the system of announcing. Both the system of announcing and the system of permits are restrictions to the freedom of assembly. These restrictions are mutually preclusive, namely, they can neither exist side by side nor regulate the implementation of a fundamental right. Usually the constitution leaves it for the legislator to determine the contents and limits of specific fundamental rights. In this case the fundamental rights are in effect “according to the yardstick of the law” and the specification of the contents of the fundamental right or its restriction depends on the will of the legislator (see the judgment of the Constitutional Court of 11 April 2006 Judgment in the case no. 2005-24-01, para. 8). However, specific restrictions of fundamental rights may be determined in the constitution. If such a direct restriction has been incorporated in the constitution, then the officials applying the Satversme may not take the decision on additional or other restriction of the fundamental right by means of an ordinary law [see Plakane I. Pamattiesību ierobežošana Satversmē; Jurista Vārds, 8 April 2003, no. 14 (272)]. Such a direct restriction of fundamental rights that has been incorporated in the constitution is the system of announcing established in Article 103 of the Satversme that pertains to the implementation of the freedom of assembly. If in Article 103 of the Satversme out of the two possible options (the system of announcing or the system of permits) the system of announcing has been chosen as a restriction to the freedom of assembly, then the legislator may not ignore this constitutional restriction and impose different restrictions. In this case the legislator has the duty to specify the constitutional restriction in a law. Thus, the system of permits provided for in the Assembly Law does not comply with Article 103 of the Satversme. 23. The system of permits is contained not only in the impugned norms challenged by the petitioner – Articles 16 and 18(4) of the Assembly Law. Articles 15 and 17 of the Assembly Law are also closely connected to the system of permits.

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As the system of permits does not comply with Article 103 of the Satversme then all the norms of the Assembly Law which form a unified regulation of this system must be declared as to be incompatible with Article 103 of the Satversme. 23.1. Article 103 of the Satversme charges the legislator with the duty of adopting such norms of the Assembly Law which introduce the system of announcing. The aim of this system is to impose on persons who want to implement the freedom of assembly the duty of previously announcing this wish to the responsible institutions, so that they would be able to carry out the action programme to ensure the process of the activity and to protect the safety of persons. One shall take into consideration: the system of announcing does not mean that it is prohibited for the local authorities or other state institutions to interfere with the implementation of the freedom of assembly. The legislator has to provide a reasonable mechanism of the system of announcing which in certain cases allows to prohibit the announced activity or to discontinue it. When elaborating this mechanism one must observe the presumption recommended in the draft guidelines of the Organization for Security and Cooperation in Europe (hereinafter – OSCE, that in all cases preference should be given to organisation of the activity (see the Draft OSCE/ODIHR Guidelines for Drafting Laws Pertaining to the Freedom of Assembly // http://www.osce/documents/odihr/2004/10/3776_en.pdf, p. 9). 23.2. Additionally, one should take into consideration the fact that the duty of previous announcing refers only to processions and meetings. Article 103 of the Satversme has been construed in such a way that the conjunction “and” separates the freedom of pickets from the freedom of meetings and processions. The draft of Article 103 of the Satversme in its initial wording provided: “The state shall protect the freedom of previously announced peaceful meetings, rallies and demonstrations”. The responsible Committee of the Saeima when reviewing this draft decided to substitute the words of Article 103 of the Satversme “rallies and demonstrations” by the words “processions and pickets”. The member of the Saeima Antons Seiksts afterwards proposed to separate pickets from the other forms of the implementation of the freedom of assembly by using the conjunction “and”, “so that one would not understand that every picket must be announced” (22 September 1997 minutes no. 17 of the meeting of the Drafting Committee of the Second Part of the Satversme “On Human Rights”; vol. 3, p. 35 of the case materials). Thus it can be deduced that Article 103 of the Satversme does not envisage the duty of previously announcing every picket. This must be taken into consideration when incorporating the system of announcing in the Assembly Law. IV 24.Article 15(4) of the Assembly Law provides that “after the local authority official has reviewed the application for organisation of a meeting, procession or picket, it not earlier than 10 days and not later than 48 hours before the beginning of the activity shall carry out one of the following actions: 1) issue the organiser a notice attesting that the local government has no objections against holding the activity; 2) issue the organiser a notice that the local government has no objections against holding the activity, but imposing restrictions on holding of the activity; 3) issue a substantiated refusal.”

24.1. The petitioner has challenged the words “not earlier than 10 days and” which are incorporated in Article 15(4) of the Assembly Law. However, from the claim it follows that the aim of appealing against the above term is to achieve the possibility of an effective court control in case of a refusal; and in case of a favourable court decision – to organise the planned activity in the planned time and place. For a full consideration of this argument of the petitioner it is necessary to make a complex assessment of the time-limit provided in Article 15(4) of the Assembly Law for the local government official to take the decision. The rights of persons are restricted by the entire time-limit, as the provision that the must be adopted not later than 48 hours before the planned activity does not ensure effective court protection, either. Extensive margin of discretion of the local government official concerning the time-limit for adopting the decision substantially inconveniences the implementation of the freedom of assembly. In case of an ill-founded denial the planned activity may not take place as the time-limits set by Article 15(4) of the Assembly Law makes it hard to ensure a court control in due time. 24.2. Article 17(2) of the Assembly Law provides that the Administrative District Court shall review claims on the decisions of local government officials mentioned in Article 15(4) of the Assembly Law within three days from the day of the submission of the claim. Article 17(4) of the Assembly Law provides that the judgment of the Administrative District Court must be enforced immediately. In the case law of administrative courts it has been correctly concluded that the law provides a shortened term for review of the above claims so as to ensure a timely court control, namely, so that after the court decision the person would still have the possibility of organizing a meeting, procession or picket in their preferred time (see the Administrative District Court judgment of 20 January 2006 in the case no. A42231605 (A669-06/6), para. 6 // vol. 1, p. 161 of the case materials). In the draft OSCE Guidelines it is also particularly stressed that just to ensure court control by allowing a person to appeal against the restrictions of its freedom of assembly is not sufficient. It is necessary to ensure that the court control is prompt, namely, the case should be heard and the court ruling announced before the planned time of the meeting, procession or picket and the persons would retain the possibility to implement the freedom of assembly in the desired scope if the court has found the imposed restrictions to be unlawful (see the draft OSCE/ODIHR Guidelines for Drafting Laws Pertaining to the Freedom of Assembly // http://www.osce.org/ documents/odihr/2004/10/3776_en.pdf, p. 11). Thus the compatibility of the time-limits provided for in Article 15(4) of the Assembly Law with Article 103 of the Satversme must be assessed in conjunction with the first sentence of Article 92 of the Satversme which contains the right of a person to fair trial. 24.3. From the Saeima written reply it follows that the restriction has been imposed with the aim of ensuring public safety and order. The Saeima considers that such a time-limit is necessary for the local government official to be able to obtain information on whether the organisation of an activity in the planned place and at the planned time would not endanger public order or safety. If the local government official would take the decision before the time-limit mentioned in Article 15(4) of the Assembly Law, then there might be risk that before the beginning of the activity the risk to public safety or order would change and these changes might serve as the reason for not issuing the permit (see vol. 1, p. 52 of the case materials).

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24.4. In the written reply of the Saeima it has been particularly stressed that the time-limit provided by Article 15(4) of the Assembly Law ensures efficient and complete process of reviewing of applications and taking decisions (see vol. 1, p. 52 of the case materials). For court control to be effective, the court judgment envisaged in Article 17(4) of the Assembly Law must be taken at least 24 hours before the beginning of the planned activity. The court must review the claim within three days after receiving the claim. Additionally, some time is needed for the petitioner to get acquainted with the unfavourable decision of the local government official and to draw up the claim to the court, as well as – when necessary – to consult with lawyers. It is possible to establish that the time-limit provided for in Article 15(4) of the Assembly Law has been constructed in such a way that the right of a private person to address a court is inconvenienced. This to a great extent makes illusory the right to an efficient protection by the court which is included in the Satversme. Taking into consideration the time that is necessary for the petitioner to draw up and submit a claim, in order to assure an effective implementation of Article 17 of the Assembly Law, the decision of the local government official must be taken not later than four days before the beginning of the activity. 24.5. A legal norm cannot be understood without regard for its functioning which takes place in contact of the aspirational rights with reality (see the judgment of the Constitutional Court of 6 October 2003 in the case no. 2003-08-01, para. 4 of the motives part). Thus it is necessary to assess the practice of application of Article 15(4). Several decisions of the Managing Director of the Riga City Council have been attached to the case materials. These decisions reflect the practice of application of the norm. This practice indicates that local government officials occasionally take decisions in such a way that the person has no time for submitting a claim to a court (see vol. 1, pp. 98‑126 of the case materials). For example, on 7 March 2006 a person submitted an application to organise a procession on 16 March 2006. On 14 March 2006 the Managing Director of the Riga City Council adopted a decision refusing approval of this activity (see vol. 1, p. 98 of the case materials). The Administrative District Court, in line with the time-limits provided in the Assembly Law for reviewing the claim, took the decision on 22 March 2006, i.e., several days after the day when the person had planned to organise the procession (see vol. 4, p. 1 of the case materials). 24.6. When analysing the time-limited provided for by Article 15(4) of the Assembly Law, it is possible to conclude that it allows a local government official to prohibit a person to organise an activity in the planned time not only by means of a substantiated refusal (Article 15(4)(3) of the Assembly Law), but also by an illfounded denial. As the system of compensations for violations of fundamental rights of a person does not yet efficiently function in Latvia, the impugned norm allows the local governments to avoid permitting unwanted activities. It is not possible to find that the time-limit provided for by Article 15(4) of the Assembly Law has a legitimate aim. Delaying the court control and the adoption of decisions that do not comply with the principle of good governance is neither in the interests of public order nor in the interests of public safety. The impugned norm has been formulated in such a way that it does not ensure timely and efficient court control. Thus, the words “not earlier than 10 days and not later than 48 hours before the beginning of the activity” which are included in Article 15(4) of the Assembly

Law do not comply with Article 103 of the Satversme in conjunction with Article 92 of the Satversme.

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V 25. Article 9(1) of the Assembly Law provides: “It is prohibited to organise meetings, pickets and processions closer than 50 metres from the residence of the President of State, the Saeima, the Cabinet of Ministers, buildings of the councils of the local authorities, courts, public prosecutor’s offices, police, places of imprisonment as well as buildings of foreign diplomatic or consular offices. In order to hold meetings or pickets in the vicinity of these buildings, the relevant institutions, except diplomatic and consular offices, may designate special areas closer than 50 meters”. The petitioner has contested the entire regulation included in Article 9(1) of the Assembly Law. 26. One may agree to the opinion, expressed in the written reply of the Saeima that the aim of the restrictions imposed by Article 9(1) of the Assembly Law is to guarantee undisturbed work of particularly significant state institutions as well as to prevent potential safety endangerment (see vol. 1, p. 47 of the case materials). As ensuring undisturbed work of the offices and institutions mentioned in Article 9(1) of the Assembly Law complies also with interests of other persons as well, the restrictions imposed by this norm allow simultaneous reaching of two legitimate aims, namely, to protect both – the rights of other people and public safety. 27. The principle of proportionality requires observing a reasonable balance between public interests and interests of a person if the public power restricts the rights and legitimate interests of a person. To ascertain whether the principle of proportionality has been observed, one has to establish whether the measures chosen by the legislator are appropriate for reaching the legitimate aim, whether there are no less restrictive means for reaching this aim and whether the actions of the legislator are appropriate or proportionate. If, when assessing a legal norm, it is found that it does not comply even with one of the above criteria, it does not comply also with the principle of proportionality and is illegitimate (see the judgment of the Constitutional Court of 19 March 2002 in the case no. 2001-12-02, para. 3.1. of the motives part). 28. The 50-metre prohibition zone has been determined around the state and local government buildings, as well as around the buildings of foreign diplomatic or consular offices. Because a prohibition to organise meetings, processions and pickets closer than 50 meters from foreign diplomatic and consular offices might be related to the implementation of the international obligations of the state of Latvia, it is necessary to establish the contents of the obligation of the state of Latvia to protect foreign diplomatic and consular offices. 28.1. Article 22(2) of the 1961 Vienna Convention on International Diplomatic Relations provides that the “host state has a specific duty to undertake all the adequate measures to protect premises of the mission from any kind of breaking in or incurring losses and to avert any disturbance of peace of the mission or violation of its respect”. A similar obligation of the host state also derives from the 1963 Vienna Convention on International Consular Relations; namely, Article 31(3) of this Convention provides

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that “the host state has a specific duty to undertake all the adequate measures to protect the premises of the consular office from any kind of breaking in or incurring losses and to avert any disturbance of peace of the consular office or violation of its respect”. Latvia has ratified both Vienna Conventions. Therefore they are binding on Latvia as legal norms of international treaties. 28.2. Specific obligations of the State to undertake all the necessary measures to protect the premises of foreign diplomatic and consular missions are established in both Vienna Conventions. In the commentaries to the Draft Articles on Diplomatic Intercourse of the International Law Commission it has been pointed out that a state, in order to realise the above-mentioned obligation of protection shall carry out specific activities which require a more extensive action than the general duty of ensuring order in the state [see Draft Articles on Diplomatic Intercourse and Immunities, With Commentaries, (1958) // Yearbook of the International Law Commission, 1958, Vol. II, p. 95, Article 20, Commentary 3]. An identical text has been included also in the commentaries to the Draft Articles on Consular Relations [Draft Articles on Consular Relations, with Commentaries (1961) // Yearbook of the International Law Commission, 1961, Vol. II, p. 109, Article 30, Commentary 3]. Reference to the “specific” duty of protection was included in the Vienna Convention on the basis of a proposal of a judge of the International Court of Justice and the European Court of Human Rights Sir Gerald Fitzmaurice, in order to separate the special duty of states to protect foreign diplomatic missions from the general duty to protect foreign citizens and their property (see Yearbook of the International Law Commission, 1957, p. 63). In legal science it is recognized that the duty “to undertake all the adequate measures ” is not an absolute obligation (see Denza E. Diplomatic Law. 2nd ed. Oxford: Clarendon Press, 1998, p. 139). The practice of the United States of America, the United Kingdom, Australia, Netherlands and Germany attests that these states have been able to balance to a great extent the freedom of speech and assembly of persons with the obligation of the state to protect embassies. Discussion in the International Law Commission does not indicate the will to include in the Vienna Conventions an absolute obligation of diplomatic mission protection, either. The duty to protect the embassy does not mean isolating it from the expression of the public opinion (see ibid., pp. 140-145). However, it does not mean that in specific cases the protection of diplomatic and consular missions does not assign the state with the duty of restricting the freedom of assembly of persons. The host state may restrict organization of pickets by persons near foreign diplomatic and consular missions if they are too noisy or their content is too insulting (see ibid., p. 145). Such a decision must be taken by applying a legal norm. 28.3. The circumstance that an absolute obligation of protecting embassies has not been imposed by the norms of international treaties does not mean that it does not exist. An international legal duty may also arise from a norm of the customary international law (see the judgment of the Constitutional Court of 26 March 2004 in the case no. 2003-22-01, para. 11 and the judgment of the Constitutional Court of 13 May 2005 in the case no. 2004-18-0106, paras. 8.1‑8.2). One cannot exclude the possibility that there exists a norm of customary international law with a similar content as a norm of an international treaty but with a wider scope.

However, it is possible to conclude that no norm has crystallised in customary international law that would oblige a state to fully isolate foreign diplomatic and consular missions from potential processions, meetings or pickets. First, the International Court of Justice has pointed out that both Vienna Conventions codify norms of customary international law [see United States Diplomatic and Consular Staff in Tehran (United States v. Iran), Judgment // I.C.J. Reports 1980, pp. 30-31, para. 62]. Second, the legal science and the practice of states indicates that the obligations of the states are developing in the opposite direction, namely, in the name of human rights the embassies have to come into contact with the opinions expressed by individuals. With an exception of individual cases, states have not consistently protested against processions, meetings or pickets in the vicinity of their diplomatic and consular missions (see Denza E. Diplomatic Law. 2nd ed. Oxford: Clarendon Press, 1998, pp. 139‑145). 28.4. Thus, in international law there is no obligation of states to guarantee the protection of foreign diplomatic and consular missions to the extent which has been established in Article 9(1) of the Assembly Law. Even more – an analysis of international legal norms indicates that persons are guarantee rather extensive rights to assemble close to foreign diplomatic and consular missions and express their opinions. Certain restrictions may be imposed; however, this may not be done by including inflexible restrictions in a legal norm. Conclusion by foreign legal experts gives an example of how it is being done in other states: “In practice places for holding pickets or meetings are restricted by providing that the activity shall take place at a certain distance from a building so as to avert an attack on it. For example, numerous medium-sized and extensive demonstrations have taken place near the US consulates, in which protests were voiced against the US policy in the South-East Asia. In such cases the police decided to restrict the place of the demonstration, imposing a certain distance from the US consulate, as it represented the policy against which the demonstration was directed. Such a restriction was lawful, as danger to public safety existed […] On the other hand, if such a picket would take place near the Hungarian consulate, it would not endanger this diplomatic mission and therefore a restriction of the place would not be necessary” (pp. 17‑18 of the Report on the Law “On Meetings, Processions and Pickets” // vol. 3, p. 104 of the case materials). 29. The restrictions imposed by Article 9(1) of the Assembly Law are appropriate for reaching the legitimate aim. Determining zones around the buildings of state or local government institutions as well as around the buildings of foreign diplomatic and consular missions in which it is prohibited to hold meetings, processions and pickets, it is possible to ensure an undisturbed work of these institutions as well as to preventively avert potential endangerments of public safety. However, it is necessary to establish whether the legislator has chosen the least restrictive means for reaching the legitimate aim. Any restriction determined by the law is proportionate only if there are no other means which would be as effective and by choosing which the fundamental rights would be restricted to a lesser degree (see the judgment of the Constitutional Court of 13 May 2005 in the case no. 2004-18-0106, para. 19 of the motives part). 29.1. Inflexible restrictions which are imposed in legal norms as absolute prohibitions very rarely may be regarded as the least restrictive means. It is hard for

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a person who applies the legal norms to reasonably apply the respective norm under specific factual circumstances. The petitioner quite reasonably points out that the prohibition ignores the geographical configuration in Riga of the buildings of the institutions mentioned in Article 9(1) of the Assembly Law. Such extensive prohibitions in the very centre of the city substantially encumber the right of persons to hold meetings, processions and pickets (see vol. 1, p. 3 of the case materials). One must agree that it is impossible to conceive of a justification for the application of the 50-metre distance not only with regard to meetings and pickets but also to processions. During processions the potential risk to the rights of other people and public security is very brief; also, the purpose of a procession is not expressing the opinion about the work of a particular institution; hence, the potential threat is not directed against a particular institution (see the case materials, vol. 1, p. 3). 29.2. The need to impose such an extensive prohibition in Article 9(1) of the Assembly Law is questionable, since less restrictive means for reaching the legitimate aim of the prohibition are already contained in the very same law. For example, Article 9(2) of the Assembly Law provides that during meetings, processions and pickets pedestrians and motorists must have unhindered access to the state and local government institutions near which the respective activity is held. Besides, it is possible to oblige the persons who organise a meeting, picket or a procession to see to it that the participants of the activity are not too noisy and do not disturb the work of the institutions. The experience of the European states indicates that it is necessary to abandon the determination of the prohibited zones by law. Such practice is ineffective. Specifically targeted legal measures and discretionary power of the police allow to take care of public safety in a much more flexible way and simultaneously to interfere with the organised activity to a lesser degree (see p. 18 of the Report on the Law “On Meetings, Processions and Pickets” // vol. 3, p. 104 of the case materials). 29.3. Analysis of international legal norms indicates that the state does not have the obligation to provide for prohibited zones around foreign diplomatic and consular missions. States may not prohibit holding meetings, processions and pickets near foreign missions, if these activities are not be too noisy and aggressive. However, even in these cases, as has been concluded earlier, this issue may be solved at the level of application of the legal norms. If the duty of protection of foreign missions does not require such an extensive protection which is substantially more extensive than the general duty of the state to guarantee security, then it is even more evident that the state may not determine as extensive a protection to institutions of its own. The state has the duty not only to ensure that a meeting, picket or a procession takes place but also to see to it that the freedom of speech and assembly is effective, namely – that the organised activity shall reach the target audience. In a democratic society it is especially important not to isolate the state and local government institutions from the society, so that the officials would have the possibility of finding out and feeling the attitude of the people, especially if the attitude is critical (see vol. 1, pp. 66‑67 of the case materials). Thus it can be concluded that the least restrictive means for achieving the legitimate aim have not been chosen in Article 9(1) of the Assembly Law. Therefore this norm is incompatible with the principle of proportionality and Article 103 of the Satversme.

VI 30. Article 13(2) of the Assembly Law provides: “In any case, an application shall be submitted if the meeting, procession or picket disrupts the movement of pedestrians or traffic”. 30.1. The petitioner contests the words “movement of pedestrians or”, which are incorporated into this norm, because allegedly such a restriction disproportionately restricts the freedom of spontaneous assembly, namely, the right of persons to assemble without a previous announcement in special circumstances in order to express their opinion (see vol. 1, p. 4 of the case materials). The petitioner substantiates this allegation by the fact that Article 13(2) restricts paragraph 1 of the same article that enumerates the activities that may take place without previous announcement. One may agree with the viewpoint expressed in the written reply of the Saeima that Article 13 of the Assembly Law does not regulate the implementation of the freedom of spontaneous assembly (see vol. 1, p. 51 of the case materials). 30.2. Under normal circumstances the Satversme requires previous announcement of the planned activity for the implementation of the freedom of assembly. However, there may be also be situations when the need to announce an activity delays and effective and public expression of opinion. In such cases persons may not be prohibited to spontaneously assemble and express their opinion. The Federal Constitutional Court of the Federative Republic of Germany has also concluded that the duty of announcement does not refer to spontaneous assembly, which may take place in a second because of some urgent reason. Article 8 of the Basic Law of the Federative Republic of Germany, namely, the constitutional norm which guarantees freedom of assembly protects spontaneous assemblies. Normative regulation which is applied to previously announced activities may not be attributed to spontaneous assemblies unless the aim of the spontaneous activity can be reached on the basis of the same rules (see BverfGE 69, 315). 30.3. The regulation of the Assembly Law refers to the freedom of assembly which is based on the system of permits. It has been already established that this system does not comply with Article 103 of the Satversme and it is necessary to incorporate the system of announcing into the law. The legislator, when making amendments to the law, will need to normatively regulate the conditions for spontaneous assembly and to elaborate a specific procedure for the implementation of this freedom. 31. In context of both – the system of announcing and the system of permits – the words “movement of pedestrians or” of Article 13(2) have a legitimate aim. As the activities connected to the freedom of assembly may disrupt the movement of other persons and endanger traffic, the state has the right to provide that in such cases there should be a prior announcement of the potential disturbances. Imposing such and obligation of prior announcing allows the local government officials to receive information about the planned activity in due time and, if necessary, to use the measures necessary for averting the potential endangerment. Thus it is easier for the state to realise its obligation with respect to the freedom of assembly, as the state must ensure that the persons who wish to assemble have an access to the main streets or other public places and therefore in certain cases traffic must be diverted to alternative routes (see pp. 17-18 of the Report on the Law “On Meetings, Processions and Pickets” // vol. 3, p. 99 of the case materials). However, for the state to cope with this obligation it is first of all necessary that the officials responsible for security are informed in due time.

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Thus, the impugned norm allows to protect the rights of other people and public safety. 32. When assessing the conformity of the restriction included in Article 13(2) of the Assembly Law with the principle of proportionality one may conclude that it is suitable for reaching the legitimate aim. Previous announcement about potential disturbance of the movement of traffic and the pedestrians allows the local government to prepare for it and, if necessary, to carry out specific actions to guarantee both, the safety of the pedestrians and the possibility of undisturbed movement and the process of the announced activity. The need to previously announce such an activity ought to be regarded as a considerate and proportional measure, because the persons must announce the respective activity only in case if the disturbance of the movement of the pedestrians is foreseen. One may agree with the opinion expressed in the written reply of the Saeima that in this case the legislator has not referred to the necessity of previous announcing of such activities, which might disturb the movement of the pedestrians only hypothetically or insubstantially. The Saeima reasonably points out that the duty of announcement arises only in cases when the participants of the activity are planning to completely block the pavements or stand across them in such a way that the possibility of the pedestrians to move along them is substantially affected or they are endangered as the participants of the traffic (see vol. 1, p. 51 of the case materials). Even in such a case the law does not provide that the announced activity may not take place because it disturbs the movement of the pedestrians. The fact that the persons have to announce the planned activity does not mean that because of the same reason the local government officials will be able to prohibit the announced activity. The local government must assess the furnished information and take reasonable measures to ensure an undisturbed freedom of assembly as well as the safety of pedestrians and participants of the traffic. In the case-law of Germany it is recognized that the institutions of power must put up with any disturbance of the traffic, which it is not possible to avoid when implementing the freedom of assembly. If protesting is envisaged to take place in the city centre, then it is not possible to force the procession move through outskirts, so that it would not disrupt the movement of traffic. The protection of the freedom of assembly is not to be given preference only in cases when the aim of the assembly is to disrupt traffic and not to express ideas. However, it does not exclude the possibility of symbolical blocking of the traffic for some minutes so as to, for example, protest against the pollution caused by the transport (see pp. 17‑18 of the Report on the Law “On Meetings, Processions and Pickets” /// vol. 3, p. 104 of the case materials). In Latvia the above conclusions should be taken into consideration only in cases when the planned activity might disrupt both – the movement of traffic and of the pedestrians. The words “movement of pedestrians or” included in Article 13(2) of the Assembly Law comply with the principle of proportionality. Thus, the words “movement of pedestrians or” which are incorporated into Article 13(2) of the Assembly Law comply with Article 103 of the Satversme. VII 33. Article 12(3)(1) of the Assembly Law provides that copies of the agreements which the organiser has concluded with keepers of public order, persons responsible for

public order and security during the activity (presenting the originals) must be attached to the application. The petitioner contests the obligation deriving from this norm of attaching copies of agreements with keepers of public order to the application. 33.1. One may agree with the viewpoint expressed by the petitioner that public safety might be the legitimate aim of the norm; namely, that on the basis of the impugned norm the local government official may preventively ascertain the fact that order would be ensured at the activity. However, in this case it is necessary to take into consideration also other norms of the Assembly Law, which are directed towards reaching of the very same aim. Article 14(1)(9) of the Assembly Law provides that keepers of public order must be indicated in the application. In accordance with Article 14(2) of the Assembly Law information of certain contents – the name, the surname, the personal identification code and the place of residence – about the keepers of order must be indicated in the application. Thus, the requirements of Article 14(1)(9) allow to reach the same aim for reaching of which Article 12(3)(1) has been adopted. 33.2. When establishing restrictions of fundamental rights of a person in order to protect other constitutional values, the legislator has to choose just one – the most suitable and effective – restriction. In this case the legislator has envisaged two different restrictions for reaching one and the same legitimate aim – the duty to indicate the keepers of public order in the application and the duty to attach copies of written agreements to the application. As the duty of indicating the keepers of public order in the application already ensures reaching of the legitimate aim, then the additional requirement to conclude written agreements with the keepers of public order and to submit their copies to the local government official has no legitimate aim. 33.3. One has to particularly take into consideration that the impugned norm does not allow concluding oral agreements with the keepers of public order. If the system of permits is in effect then an incomplete application to which all the required documents are not attached may serve as a basis for a refusal of coordinating the activity and implementing the freedom of assembly. Therefore such an additional duty, which duplicates a similar duty of a person already provided for in the Assembly Law is to be seen a formalistic hindrance, the real aim of which is to prevent the announcement of the activity and to give the local government official the possibility to refuse the organisation of the activity because of formal reasons, namely, just because the submitted application does not comply with the requirements of the law. Thus, the words “keepers of public order”, which are included in Article 12(3) (9) of the Assembly Law do not comply with Article 103 of the Satversme. VIII 34. The second sentence of Article 14(6) of the Assembly Law provides: “if an information has been received from a competent institution that peaceful and organised course of the activity is endangered, the relevant local authority may require the organiser to ensure the presence of not fewer than four keepers of public order per every hundred participants”. 34.1. The precondition of the additional duty which the state may assign to the organiser, determined in the norm is the information from the competent institution that peaceful and orderly process of the activity is endangered. Such a formulation of the norm enables the local government to require additional keepers of public order

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both in cases when the participants of the activity themselves endanger a peaceful and orderly process of the activity and also in cases when the activity is endangered by third persons turning against its participants. 34.2. One may agree with the fact, mentioned in the written reply of the Saeima, that the duty of keepers of public order to a great extent is confined to maintaining order “from the inside” (see vol. 1, p. 50 of the case materials). However, the impugned norm refers also to those cases when a peaceful and undisturbed process of the activity is endangered from the outside. Thus, it is possible that after receiving the conclusion of the competent institutions the local government on the basis of this above norm does not ensure extra protection and does not inform the police as well as other security services but requires the organiser to appoint more keepers of public order and to avert endangerment of undisturbed process of the activity. Such an unclear formulation of a norm that is prone to misunderstanding not only does not allow to achieve the legitimate aim but also potentially creates a situation when the safety of other persons and the society may not be protected but be endangered even more. The impugned norm assigns the organiser of the activity with the duty of ensuring undisturbed process of the activity even in cases when it is endangered by third persons which turn against the participants of the activity and the ideas expressed by them. The unclear formulation of the norm may cause substantial endangerment of public safety, as it allows the state to put the duty of guaranteeing security of the activity on the organiser by requiring that he invite additional keepers of public order. 34.3. The notion “protect” used in Article 103 of the Satversme requires not only non-interference by the state in the implementation of this right but also the protection of the implementation of this right. It means that the state has the duty to ensure that public buildings, streets and squares are accessible to persons who want to organise meetings, processions or pickets as well as to ensure that persons who participate in such activities are protected. From Article 103 of the Satversme derive the subjective rights of a person to require that a meeting, picket or procession which has been announced under the procedure established by law would take place and be protected also from the opponents of the respective activity. Thus, one may agree with the viewpoint expressed by LHRC that a democratic state is responsible for an effective implementation of the constitutionally guaranteed freedom of assembly (see vol. 1, p. 68 of the case materials). When protecting the freedom of assembly the state may not assess individual activities on their contents. State protection to individual activities may not be differentiated on the basis of conformity of the ideas expressed in the activities with the viewpoint of the state or a certain part of the society. The great importance of the freedom of assembly in a democratic society is related to the circumstance that the freedom of assembly is an effective instrument which the minority may use for expressing its opinion. Because the freedom of assembly usually serves for a public expression of the interests and opinions of the minority, the obligation of the state in this case is to be tolerant and not to suppress the expression of this opinion by the mechanisms at its disposal as long as it may be regarded as permissible in a democratic society. The fact that the state protects the expression of an opinion does not mean that the state sides with the ones expressing this opinion or recognizes the correctness of this opinion; it merely means that the state protects the right of its residents to publicly express their opinion and to draw the attention of the society to a specific issue.

34.4. For the protection of the freedom of assembly the state is entitled to require that the persons who want to make use of this freedom participate in the protection of the organised activity. However, the obligation of the collaboration must be imposed in a reasonable manner. If too great a responsibility before the activity, during it or after the activity is laid on the organiser of the activity and the keepers of public order, then at another time these persons will abstain from using their rights, fearing from the potential penalties and additional responsibilities (see pp. 17‑18 of the Report on the Law “On Meetings, Processions and Pickets” /// Vol. 3, p. 102 of the case materials). The requirement to appoint additional keepers of public order in all cases when a peaceful process of the activity is endangered exceeds the extent of a permissible collaboration duty of a person. As such a requirement does not guarantee public safety but, quite to the contrary, provokes conflicts and potential disorder among the persons voicing different opinions, it must be concluded that the norm has no legitimate aim, for reaching of which the respective restriction has been imposed. Thus, the second sentence of Article 14(6) of the Assembly Law does not comply with Article 103 of the Satversme. IX 35. In accordance with Article 32(3) of the Constitutional Court Law legal norms which the Constitutional Court has declared as incompatible with the legal norms of a higher force must be regarded as null and void as of the day of publishing the judgment of the Constitutional Court, unless the Constitutional Court has ruled otherwise. 35.1. As the system of permits established by the Assembly Law does not comply with Article 103 of the Satversme and as the law does not regulate the procedure of realization of the freedom of spontaneous assembly, the Constitutional Court holds that for elimination of the above defects a term until 1 June 2007 shall be determined. 35.2. In order not to restrict the fundamental rights enshrined in the Satversme by the application of the norms of the Assembly Law until 1 June 2007, the institutions of state administration and courts during this time must apply these norms in accordance with Article 103 of the Satversme and the international legal norms binding on Latvia. Articles 16 and 18 of the Assembly Law become null and void at the time of the announcement of the judgment of the Constitutional Court. However, other norms of Chapter III of the Assembly Law which envisage the system of permits until 1 June 2007 shall be applied by the institutions of the state administration and the courts by observing the provisions of Article 103 of the Satversme.

The resolutive part On the basis of Articles 30‑32 of the Constitutional Court Law the Constitutional Court decided: 1. To declare words “or other attributes” and “or addresses” of Article 1(4) of the law “On Meetings, Processions and Pickets” as well as the words “movement of pedestrians or” included in Article 13(2) to be compatible with Article 103 of the Satversme of the Republic of Latvia, Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and Article 21 of the International Covenant on Civil and Political Rights.

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2. To declare the words “neither shall there be orally expressed outcries, slogans” which are included in Article 1(4), Article 9(1); the words “keepers of public order” which are included in Article 12(3)(1); the second sentence of Article 14(6) and Article 18(4) of the law “On Meetings, Processions and Pickets” to be incompatible with Article 103 of the Satversme of the Republic of Latvia, Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms as well as with Article 21 of the International Covenant on Civil and Political Rights and null and void as of the moment of publishing of the judgment. 3. To declare the words “not earlier than 10 days and not later than 48 hours before the beginning of the activity” which are incorporated in Article 15(4) of the law “On Meetings, Processions and Pickets” to be incompatible with Article 103 of the Satversme of the Republic of Latvia in conjunction with Article 92 of the Satversme of the Republic of Latvia and null and void from the moment of publishing of the judgment. 4. To declare Articles 15 and 17 of the law “On Meetings, Processions and Pickets” to be incompatible with Article 103 of the Satversme of the Republic of Latvia, Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms as well as with Article 21 of the International Covenant on Civil and Political Rights and null and void as of 1 June 2007. 5. To establish that until 1 June 2007 the norms of Chapter III of the law ”On Meetings, Processions and Pickets” shall be applied in accordance with Article 103 of the Satversme of the Republic of Latvia. The judgment is final and not subject to appeal. The judgment takes effect on the day of its publication.

The Chairman of the hearing of the Court

A. Endziņš

2006-05-01

Autonomous institutions of public administration

173

Delegating the state power to an autonomous institution of public administration which supervises public media Subordination of institutions of public administration to the Cabinet of Ministers as one of the expressions of the principle of separation of power was characterised. The Cabinet of Ministers together with the institutions of public administration perform the function of the executive power. For it to be able to assume political responsibility for the performance of the aforementioned function, institutions of public administration must be subordinated to the Cabinet. The Cabinet should have at its disposal such legal mechanisms that would ensure due functioning of institutions of public administration. Derogations from the formal implementation of the principle of separation of powers were examined. Such derogations are permissible if they make the performance of the functions of state power more effective, reinforce the independence of a state institution from another branch of power or ensure the functioning of the system of checks and balances between the three branches of the state power. An exception to the subordination of institutions of public administration to the Cabinet is one of such derogations. In a contemporary democratic state governed by the rule of law, transferring all the functions of the executive power to the Cabinet and institutions subordinated to it is impossible. Therefore, a certain area of public administration can be taken out of the Cabinet’s competence and transferred to an independent or autonomous institution of public administration. Requirements that should be met in establishing autonomous institutions of state power were defined. First, such institutions should be established only in special cases when in a democratic state governed by the rule of law it is otherwise impossible to ensure due administration in the field of functioning of the executive power. Second, the democratic legitimisation of an autonomous institution of public administration and its responsibility for its actions must be envisaged, as well as effective mechanisms for supervising operations of the institution. Third, it is not permissible to establish such autonomous institutions of public administration if the functions granted to it could be as effectively performed by an institution subordinated to the Cabinet. Fourth, such institutions cannot be established in areas where the parliamentary control is of principal importance. The legal status of the National Radio and TV Council was examined. The Council is a derived legal person of public law, which is not subordinated to the Cabinet. Its main task is to balance competition in the field of mass communications where the power of information has a direct influence upon processes of election and state powers. If the Council were subordinated to the Cabinet, inter alia, an equal course of elections might be hindered, because the Council could be used in the interests of the ruling political parties, as well as for restricting the possibilities of political campaigning by the opposition political parties. The use of administrative resources in a pre-election campaign is a characteristic feature of new democracies.

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JUDGMENT in the name of the Republic of Latvia in the case no. 2006-05-01 Riga, 16 October 2006 The Constitutional Court of the Republic of Latvia in the following composition: the chairman of the hearing of the Court Aivars Endziņš and judges Andrejs Lepse, Romāns Apsītis, Aija Branta, Juris Jelāgins and Gunārs Kūtris On the basis of a claim by twenty members of the 8th Saeima [Parliament] […] on the basis of Article 85 of the Satversme [Constitution] of the Republic of Latvia as well as Article 16(1), Article 17(1)(3) and Article 281 of the Constitutional Court Law in written proceedings on 26 September 2006 reviewed the case “On the compliance of Article 46(6), (7), (8) and (9) of the Radio and Television Law with Articles 58 and 91 of the Satversme of the Republic of Latvia”.

The facts 1. On 24 August 1995 the Saeima of the Republic of Latvia adopted the Radio and Television Law, which determines the procedure of formation, registering, operation and supervision of electronic mass media, which are in the Republic of Latvia jurisdiction. By this law was created a new state institution – the National Radio and TV Council (hereinafter – the Council). In accordance with Article 41(1) of the Radio and Television Law the Council represents the interests of the society in the Article of electronic mass media and shall follow that the Satversme of the Republic of Latvia, the Radio and Television Law and other laws be observed and freedom of expression and information be guaranteed. 2. In Article 46(6), (7), (8) and (9) (hereinafter – the impugned norms) the competence of the Council has been determined. Article 46(6) of the Radio and Television Law determines that “the Council shall issue broadcasting and re-broadcasting specific licenses (following competition or upon request) as well as cable TV and cable radio registering certificates”. Article 46(7) of the Radio and Television Law establishes that “the Council shall: 1) file a register of broadcasters on the basis of the issued broadcasting and rebroadcasting specific licenses, cable TV, cable registration radio registration certificates; 2) collect, compile and analyse the information about electronic mass media and their activities and development in Latvia and abroad; 3) contact institutions specializing in electronic mass media operation and development in other states; 4) order audience research and other research campaigns on problems of electronic mass media activities and development to ensure the functions (competent decisions) of the Council; 5) collect and analyse proposals and complaints of the audience and other information on electronic mass media operation; 6) require copies of recorded programs in cases of complaints, save the copies till the end of the final reviewing of the complaint”. Article 46(8) of the Radio and Television Law establishes that “the Council shall control the observing of this Law by:

1) taking account of the complaints of the audience; 2) controlling the recording of the programs of broadcasters; 3) making selective inspections of program contents and quality”. In its turn in Article 46(9) it is determined that ”the Council shall review the material on infringements in the field of electronic mass media, and depending on the gravity, recurrence and degree of potential danger shall decide to: 1) warn the broadcaster; 2) draw up an administrative protocol and submit it to a court; 3) cancel the broadcasting or re-broadcasting license, cable TV, cable radio registration certificate or cease the operation; 4) submit a claim to court on termination of broadcasting operation; 5) send the material to law enforcement institutions to decide on initiation of the criminal case”. 3. The petitioner – twenty members of the Saeima – request to declare the impugned norms as unconformable with Articles 58 and 91 of the Satversme. The petitioner stresses that first of all one has to establish the contents of Article 58 of the Satversme. They hold that in accordance with the notion of Article 58 of the Satversme all the state administrative institutions, which experience the right of passing external individual legal (also administrative) acts against unlimited range of persons, shall be under the authority of the Cabinet of Ministers. Autonomous establishments, which create their relations with persons on the basis of use (rendering services) of the establishment, may be out of the Cabinet authority. To their mind Article 58 of the Satversme shall be interpreted as an instrument, which allows the Cabinet of Ministers – directly or with the mediation of the respective ministry – to realize the institutional power over the institutions of state administration. The petitioner especially stresses that Article 58 of the Satversme refers to the subordination of administrative institutions. In its turn subordination of all state institutions, inter alia also the local governments and other juridical persons of derived public law (derived public persons), to the Cabinet of Ministers has been determined in Article 1 of the Satversme as interpreted in conjunction with Article 58 of the Satversme. Functional subordination, following from Article 1 of the Satversme includes the whole state administration in its wider sense and the Cabinet of Ministers realizes the above subordination with the help of other instruments (not those of subordination and supervision relations), for example with the normative acts, which the Cabinet of Ministers passes under the procedure of management. When analysing the status and functions of the Council, it is established in the claim that the Council is an autonomous competent institution and a derived public person. Side by side with the functions, which the law has endowed the Council with and which cannot be regarded as the functions of power, administrative power functions of the State management have clearly been envisaged to the Council in the impugned norms. The petitioner concludes that in a democratic society are needed both – public broadcasting organizations and independent from the state power (especially from the Parliament, politicians, government and officials) autonomous structure of those broadcasting organizations, realized by the public itself. Objectively, such and institution shall be to the maximum independent from the Cabinet of Ministers. The state may appoint derived public persons in order to ensure realization of the above functions independently to the maximum from the political influence, but only

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the use (rendering of services) and functions, connected with it, shall be anticipated for such institutions, thus ensuring moderation of the authority. The authority, envisaged in the impugned norms, cannot be vested to a competent autonomous institution. If an institution is granted the certain functions determined in the impugned norms, then – in accordance with Article 58 of the Satversme – such an institution shall be under the subordination of the Cabinet of Ministers. The petitioner expresses the viewpoint that in order of its status to be in compliance with Article 58 of the Satversme the Council shall be prohibited to realize state administration as regards commercial broadcasters. To the mind of the submitter these functions shall be assigned to a state administration institution, which is subordinated to the Cabinet of Ministers. Only those functions, which ensure to the society services to be rendered by public radio and public television, shall be left to the Council so that the society is able to use public radio and public television. As regards unconformity of the impugned norms with Article 91 of the Satversme the petitioner points out that in accordance with Article 4 of the Radio and Television Law electronic mass media are divided into public (Latvian Radio and Television) and commercial (created by physical or juridical entities) broadcasters. In the advertisement market the public broadcasters compete with commercial broadcasters and under this competition, regardless of the objectives of their creation, all broadcasters are in equal and comparable circumstances. The Council, when realizing authority, envisaged in the impugned norms, is engaged in state administration regarding commercial broadcasters, but at the same time it is not subjected to the hierarchic control of the state administrative power and realizes different attitude to the commercial broadcasters if compared to that to the public broadcasters. To the mind of the petitioner the activities in practice of the Council confirm the above different attitude. The Council, being the administrator of the State capital share in public broadcasting organizations, is the initiator of the greatest number of amendments to the Radio and Television Law. Even though in compliance with Article 45(2) of the Radio and Television Law the duty of the Council has to support equal grounds of existence and harmonic development for all electronic mass media, the Council has used its influence to the advantage of the public broadcasters and to disadvantage for the commercial broadcasters. 4. The institution, which has adopted the impugned act – the Saeima – in its written reply points out that the impugned norms are in conformity with Articles 58 and 91 of the Satversme and requests the Constitutional Court to declare the claim as ungrounded and reject it. The Saeima recognizes that the Council is a derived juridical entity of public law, which – by balancing different interests, represents public interests in the sector of electronic mass media. It is indicated in the written reply that one cannot agree with the offered by the petitioner division of the state administrative institutions into institutions, which realize the functions of administrative power and autonomous institutions, which render services to its users. The Saeima stresses that such a division of institutions is abstract and not well grounded in all cases. The state administration may realize its functions in several ways, namely, by realizing administrative power, rendering public services or performing public business. The Saeima points out that every norm of the Satversme shall be directly applied and no other norm of a lower legal force shall be at variance with it. Every norm of

a lower legal force shall be interpreted and applied in such a way that it is not at variance with the legal norm of higher legal force. The Saeima stresses that Sector 41 of the Radio and Television Law, which determines the legal status of the Council, shall not be contrasted with Article 58 of the Satversme. As the Council is a derived public person, to it refers Article 8(1) of the State Administrative Structure Law. Besides, neither in the impugned norms nor in other norms of the Radio and Television Law also the opposite has been determined, namely, that the Council is not subordinated to the Cabinet of Ministers. The Saeima holds that the Radio and Television Law does not prevent the Cabinet of Ministers in the framework of the law to realize supervision of the activities of the Council. To the mind of the Saeima, the Cabinet of Ministers does realize supervision of the Council, for example, in accordance with the mediation of the subordination mechanism, determined in the norms of the Law on Budget and Financial Administration. On its status the Council, regardless of the fact what determined in the law functions it performs, is under the supervision of the Cabinet of Ministers. Thus the Saeima holds that the impugned norms, notwithstanding what competence they envisage for the Council, are not at variance with Article 58 of the Satversme. It is pointed out in the written reply that one cannot understand from the claim in what a way the authority of the Council determined in the impugned norms would violate Article 91 of the Satversme. Activity of public broadcasters is not of business nature and they are not in a more privileged and even equal position with the commercial broadcasters. As the commercial broadcasters have been created and are engaged as commercial companies, the main objective of its activities is profit. In their turn gaining profit is prohibited to public broadcasters. Thus the competition and different interests of public and commercial broadcasters may refer to the program concepts but not to gaining profit. In case when the commercial broadcaster has any doubts about the legality and usefulness of the Council activities, it may appeal against the Council decision or require compensation for the losses arising as the result of the activities of the Council. […]

The motives 9. The petitioner has contested the compliance of only some of the functions of the Council with Article 58 of the Satversme. However, to find out whether Article 58 of the Satversme permits granting the competencies, determined in the impugned norms, to the Council, first of all the conformity of the status of the Council itself with Article 58 of the Satversme shall be established. 10. Article 58 of the Satversme determines that “the administrative institutions of the state shall be under the authority of the Cabinet”. This is one of the norms, which ensure realization of the principle of separation of the state power. 10.1. The principle of the separation of the state power manifests itself in the division of the state power into legislative, executive and judicial power, which are being realised by independent and autonomous institutions. This principle guarantees balance and mutual control among them to avert tendencies of usurpation of power and favour moderation of power [see the judgment of the Constitutional Court of 1 October 1999 in the case no. 03-05 (99), para. 1 of the motives part].

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In a democratic state governed by the rule of law power is divided so as to reach the aims of the separation of power. In its turn the necessity of reaching the aims of separation of power allows deviations from the formal realization of the principle of separation of power. In constitutional practice particular deviations from the principle of separation of power may be regarded as admissible, if it makes the realization of functions of the state power more efficient, strengthens independence of a certain institution from another power or secures functioning of mutual balance and counterbalance system of the three powers (see the judgment of the Constitutional Court of 21 November 2005 in the case no. 2005-03-0306, para. 7). 10.2.In accordance with the principle of separation of power the state power is functionally divided into activities of legislation, court adjudication and executive power. In legal theory and court practice the legislative and court adjudication activities are usually defined. In its turn, the executive power is that activity of the state, namely, realization of the state power, which is neither legislation nor court adjudication. Legislature is passing of laws, i.e., the right to regulate some issue by law (see the judgment of the Constitutional Court of 16 December 2005 in the case no. 2005-120103, para. 12). In its turn adjudication means solution of the dispute in a contradistinction process between two or more parties on the basis of legal norms (see the judgment of the Constitutional Court of 14 March 2006 in the case no. 2005-18-01, para. 16.1). Thus realization of all the other state competence shall be regarded as the function of the executive power. 10.3. However, such division of realization of state functions does by no means imply that the state shall form only three constitutional institutions, so that each of them completely realizes one of the three state functions. For the division of power to reach its objective, separate functions of power shall be passed over to different constitutional institutions. In the Satversme the Latvian state competence is divided among the institutions of constitutional state power mentioned in the Satversme – the body of Latvian citizens, the Saeima, the State President, the Cabinet of Ministers, the State Audit Office, the courts and the Constitutional Court. 10.4. In the Satversme the state competence is thoroughly divided between the constitutional institutions of the state power. Thus there can exist no state competence, which has not been vested to this or that constitutional institution of the state power, in its turn the competency aggregate of constitutional institutions of the state power creates the collective competence of the state [see Levits E. Valsts un valsts pārvaldes juridiskā struktūra; Jaunā pārvalde, 2002, no. 1 (31]. The Satversme has delegated the executive power to the competence of the Cabinet of Ministers, even though to ensure separation of power separate executive power activities have been delegated also to other constitutional institutions. Therefore it is possible to conclude that those activities of the executive power, which have not been delegated to other constitutional institutions, are within the competence of the Cabinet of Ministers and it is responsible for realization of them. 11. Realization of the executive power functions is the main duty of the Cabinet of Ministers; besides, it is such a huge duty that the Cabinet of Ministers is not able to do it. Therefore the Satversme envisages that the Cabinet of Ministers may form administrative institutions and delegate to them part of their competence, by the help of mechanism of subordination controlling their activities, at the same time still having

the responsibility for the implementation of the delegated duties [see Levits E. Valsts un valst pārvaldes juridiskā struktūra; Jaunā pārvalde, 2002, no. 1 (31)]. The state administration institutions realize the administrative (state administration) functions of the executive power, which together with the political functions of the executive power, realized by the Cabinet of Ministers, create the competence in the sector of the executive power, assigned to the Cabinet of Ministers by the Satversme. For the Cabinet of Ministers to undertake the political responsibility over realization of the whole competence in the sector of executive power assigned to it, subordination of the state administration to the Cabinet of Ministers is a necessity, namely, the Cabinet of Ministers shall have at its disposal such legal mechanisms, which ensure adequate activity of the state administration. Subordination, as it in accordance with Article 57 of the Satversme is determined in the State Administration Structure Law is realized in the form of subordination or supervision. In accordance with Article 7(4) of the State Administration Structure Law subordination or control means the rights of higher institutions or officials to issue orders to lower institutions or officials, as well as to revoke decisions of lower institutions or officials. In its turn supervision, as it is determined in Article 7(5), means the rights of higher institutions or officials to examine the lawfulness of decisions taken by lower institutions or officials and to revoke unlawful decisions, as well as to issue an order to take a decision in case of unlawful failure to act. 12. As the state administration structure shall be subordinated to the Cabinet of Ministers, the State Administration Structure Law envisages the principle of unity of the State administration structure. In accordance with Article 6 of the State Administration Structure Law “the state administration is organized in a united hierarchic system. No institution or official of the administration shall exist out of this system”. In the legal science it is also recognized that all the state administration institutions, regardless of the fact whether the institution realizes functions of power or renders services to the users – shall be subordinated to the Cabinet of Ministers. “Article 58 of the Satversme determines that the administrative institutions of the State shall be under the authority of the Cabinet – concisely, strictly and clearly. No exceptions are envisaged” [Bišers I. Vēlreiz par valsts pārvaldes institucionālajam reformām; Jurista Vārds, 13 January 2000, no. 1 (154)]. 13. There is no dispute in the matter about the fact that the Council realizes a function of a local government, namely, it neither adjudicates nor passes laws. Thus it is necessary to establish whether the Council is subordinated to the Cabinet of Ministers. 13.1. In accordance with Article 41 of the Radio and Television Law the Council is a public entity of law (a derived public person). Neither the petitioner nor the Saeima question the status of the Council. Only the State Chancellery points out that the status of the Council partly does not comply with the features of the derived public person, incorporated in the State Administration Structure Law (see vol. 2, p. 168 of the case materials). Article 1(2) of the State Administration Structure Law determines that “a derived public person is a local government or other public person established by law or on the basis of law. Such public person has been conferred its own autonomous competence by law, which includes also establishing and approval of its own budget. Such a person may have its own property”. One may agree with the conclusion of the State Chancellery that the Council does not comply with the features determined in the above norm,

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because – in accordance with Article 50(1) of the Radio and Television Law the Council is financed from the funds of the state budget. As the state budget is confirmed by the Saeima, the Council has not been conferred the competence to form and confirm its budget (see vol. 2, p. 168 of the case materials). To establish the status of the Council, vital is the will of the legislator at the time of passing the Radio and Television Law. Article 41 of the Radio and Television Law expressis verbis determines that the Council is a competent autonomous institution and a legal entity. The Saeima correctly stresses that the Satversme does not prohibit forming of a derived public person in the state, which shall be financed from the state budget (see vol. 2, p. 188 of the case materials). Such a situation may be explained with the Republic of Latvia being in a certain transition period, when arrangement of the state administration system in accordance with the requirements of the Satversme and a democratic, state governed by the rule of law is necessary (see vol. 2, pp. 193-194 of the case materials). Thus it can be concluded that the Council is a derived legal entity of the public law. 13.2. The Saeima expresses the viewpoint that the Council is subordinated to the Cabinet of Ministers. The Saeima substantiates the above conclusion with the fact that the Council is a derived public person, but the Radio and Television Law does not determine a concrete form and content of subordination. Thus the Saeima holds that the second sentence of Article 8(1) of the State Administration Structure Law “Unless otherwise prescribed by the law, the relevant derived public person shall be under the supervision of the Cabinet” shall be applied (see vol. 1, p. 199 of the case materials). When acquainting oneself with the materials elaborated for the State Administration Structure Law, one cannot agree with the above viewpoint of the Saeima. Article 8 of the State Administration Structure Law refers to those legal entities of derived public law, the status of which in the state administrative system the legislator had intended to put in order with this law. The conception of the State Administration Structure Law testifies that the law does not determine the legal status of separate legal entities of the public law, inter alia also the status of the Council (see Valsts pārvaldes iekārtas koncepcija // Latvijas Vēstnesis, 26 June 2002, no. 95). The legislator had envisaged a specific regulation for the solution of the problems of the Council as well as other independent institutions. It is impermissible that Article 8 of the State Administration Structure Law would be attributed to those issues, which the legislator – when adopting this law – has not envisaged to regulate. 13.3. In addition to the above the Saeima points out that the Radio and Television Law does not prohibit the Cabinet of Ministers to supervise the activities of the Council and as the matter of fact the Cabinet of Ministers does it. To the mind of the Saeima subordination of the Council to the Cabinet of Ministers is ensured by the fact that in accordance with the Law on the Management of Budget and Finances the budget of the Council is claimed under the general procedure and the Council shall submit to the Cabinet of Ministers an annual account for the use of the budget as well as a report on other issues, which are connected with the budget management (see vol. 1 pp. 199200 of the case materials). The petitioner has reasonably indicated that the procedure of formation of the Council budget is not a well-enough mechanism to ensure subordination of the Council to the Cabinet of Ministers (see vol. 2, p. 194 of the case materials). The State Administration Structure Law determines that the minimum form of subordination over the institution of the state administration is being of this institution

under the supervision of the Cabinet of Ministers, namely, the higher institution shall have the right of post factum controlling and revoking or amending the decision of the lower institution, if it is unlawful. The control over the activities of a state administration institution is ensured by the mechanism of supervision (see Valsts iekārtas likuma koncepcija // Latvijas Vēstnesis, 26 June 2002, no. 95). As the Radio and Television Law does not envisage such rights to the Cabinet of Ministers, one cannot hold that the Council is under the supervision of the Cabinet of Ministers. 13.4. It is pointed out in the written reply that no norms, which forbid the Cabinet of Ministers to realize supervision over the activities of the Council, have been incorporated in the Radio and Television Law. The Saeima holds that Article 58 of the Satversme envisages that the Council shall be under the supervision of the Cabinet of Ministers and the constitutional norm has to be applied directly (sk. lietas materiālu 1. sējuma 199.lpp.// see Vol. I, p. 199 of the case materials). One cannot agree with the viewpoint that the Radio and Television Law envisages the right of the Cabinet of Ministers to supervise the activities of the Council. Quite to the contrary – the Radio and Television Law separates the Council from the state administration, dissociates from the influence of the Cabinet of Ministers (see vol. 2, p. 170 of the case materials).When discussing the amendments to the Radio and Television Law, Linards Muciņš – the head of the 7th Saeima Legal Affairs Committee – has clearly expressed the viewpoint of the legislator on the issue of subordination of the Council to the Cabinet of Ministers: “The Latvian National Radio and Television Council is a very specific institution. It is not under the supervision of the Cabinet of Ministers” (Verbatim record of the 5th meeting of the fall session of the 7th Saeima of the Republic of Latvia of 5 October 2002). Thus it can be concluded that the Council is not subordinated to the Cabinet of Ministers. 14. Taking into consideration the fact that the Council as a state administration institution is not subordinated to the Cabinet of Ministers it is necessary to establish whether such a status of the Council is not at variance with the Satversme. When analysing verbatim reports of the Constitutional Assembly, 1925 Law on the Structure of the Cabinet of Ministers and 1928 Law on the Structure of Ministries the Constitutional Court has concluded that the will of the legislator, when adopting Article 58 of the Satversme has been as follows: to unite the whole administrative system, not dividing its institutions into degrees or levels of subordination [see the judgment of the Constitutional Court of 9 July 1999 in the case no. 04-03(99), para. 2 of the motives part]. Even though the structure of the state administration institutional system has noticeably changed since 1922, the sense of Article 58 of the Satversme has remained unchanged – to unite all the state institutions, performing functions of public power, into one common system under the authority of the Cabinet of Ministers [see the judgment of the Constitutional Court of 9 July 1999 in the case no. 04-03 (99), para. 2 of the motives part]. 15. However, subordination of the state administration institutions to the Cabinet of Ministers is not an end in itself of Article 58 of the Satversme. Determination of the unity of state administration historically was not the duty of Article 58 of the Satversme.

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15.1. Article 58 of the Satversme alongside with Article 53 (the second sentence) of the Satversme precludes dualism of the executive power, namely, these norms of the Satversme exclude the possibility of the politically not responsible State President giving orders to state administration institutions and managing their activities without the consent of the Cabinet of Ministers which is accountable to the Saeima. The member of the Constitutional Assembly Kārlis Dzelzītis, when discussing the possibility of passing over the state armed forces to the subordination of the State President, specially stressed – “under the parliamentary procedure the whole system of the executive power is subordinated to the Cabinet of Ministers, which – in its turn – is accountable to the Cabinet” (Verbatim record of the 15th meeting of the fourth session of the Constitutional Assembly of 26 October 1921). The member of the Constitutional Assembly Andrejs Petrevics in the debate also protected implementation of the Parliamentary principle in the organization of executive power – “We cannot mix up two principles: the principle of the so-called pure Parliamentary system with the principle of dualistic Parliamentary system, which exists in Sweden and America. […] In America the President is the person to who belongs the whole executive power and who is responsible about the whole executive power. As concerns executive issues the Parliament is of no importance and the government is not accountable to the Parliament. The ministers are accountable only to the President and they have to do everything, which the elected by the people President requires them to do.[…] Whereas we are on the side of the pure Parliamentary principle and not on the principle of dualism” (Verbatim record of the 13th meeting of the fifh session of the Constitutional Assembly of 14 February 1922). 15.2. The Parliamentary principle in the organization of the executive power is expressed in such a way that “the Cabinet of Ministers, which is accountable to the Parliament is the only active higher institution of the executive power, through which the unity of the executive power in the State is established” [Dišlers K. Dažas piezīmes pie Latvijas Republikas Satversmes projekta (tieša likumdošana un valsts presidents) // Tieslietu Ministrijas Vēstnesis, 1921, no. 4/6, p. 147]. The provision of Article 58 of the Satversme that the state administration institutions shall be subordinated to the Cabinet of Ministers first of all means that they are not and may not be subordinated to the State President. 15.3. The Cabinet of Ministers is the holder of the constitutional executive power in the Republic of Latvia and confidence of the Saeima is the only constitutional basis for its activities (see the judgment of the Constitutional Court of 13 July 1998 in the case no. 03-04(98), para. 2 of the motives part). The Satversme confers separate functions of the executive power to the State President, who does not have political responsibility; however, for realization of these functions the agreement of a Cabinet member is needed (the second sentence of Article 53 of the Satversme). In accordance with Article 58 of the Satversme executive power is completely deputed to the Cabinet of Ministers; in its turn the functions of the executive power to be expressis verbis entrusted to the State President shall be subordinated to the will of the Cabinet of Ministers with the mediation of the co-signature institute. 15.4. Subordination of the state administration institutions to the Cabinet of Ministers first of all constitutionally excluded passing any State administration institution to the subordination of the State President. However, Article 58 of the Satversme does not automatically require mandatory subordination of all state administration institutions to the Cabinet of Ministers. The practice of the period between the wars testifies that not all the state administration institutions were subordinated to the Cabinet of Ministers. The

Constitutional Assembly not only adopted the Satversme but by several laws also formed the Central Election Commission and the Central Land Surveying Commission. Both the above state administration institutions were not subordinated to the Cabinet of Ministers. Objections against the existence of such institutions were raised neither by the Parliament nor by the legal science. 16. The conclusion that Article 58 of the Satversme requires subordination of all the state administration institutions to the Cabinet of Ministers, not conceding any exceptions and without assessing the constitutionally legal aim of the above subordination is based on isolated interpretation of Article 58 of the Satversme. The Satversme is a cohesive whole and the legal norms incorporated into it are mutually closely connected. Every norm of the Satversme has its definite place in the Satversme system and no greater significance shall be accorded to any Satversme norm than has been envisaged by the will of the “fathers” or the text of the Satversme. To more completely and objectively establish the content of separate Satversme norms, they shall be interpreted as read together with other norms of the Satversme (see the judgment of the Constitutional Court of 16 December 2005 in the case no. 2005-12-0103, para. 13). The principle of wholeness of the Satversme prohibits interpretation of separate norms of the Satversme as isolated from the other Satversme norms, because the Satversme as a document, which is a cohesive whole, influences the contents and sense of the norm. 16.1. Article 57 of the Satversme determines that “the number of ministries and the scope of their responsibilities, as well as the relations between state institutions, shall be as provided for by law”. By this norm of the Satversme regulation of mutual relations of the state administration structure and separate state institutions has been delegated to the competence of the legislator. As regards regulation of the state administration structure only those fundamental principles are determined, which are necessary to ensure maintenance of Parliamentary system, namely, to prohibit the legislator to extend the authority of the State President in the executive power sector without amending the Satversme. Article 57 of the Satversme allows creation of such independent state institutions, which realize separate executive power activities without being subordinated to the Cabinet of Ministers. However in this case the notion of Article 58 of the Satversme shall be observed. Article 58 of the Satversme not only prohibits the State President to become the holder of the constitutional executive power, but also determines the mechanism, by which democratic legitimisation and responsibility for realization of the competence of the state administration institution is being ensured. If, when making use of the rights to determine mutual relations of the state institutions, which are envisaged in Article 57 of the Satversme, the legislator releases a certain state institution from the subordination to the Cabinet of Ministers, it has to envisage another, but not less effective democratic legitimisation of this institution and responsibility for its activities. The legislator, when realizing the rights conferred by Article 57 of the Satversme to release a state institution from the subordination the Cabinet of Ministers, does not enjoy a complete freedom of action. As basically the state institution shall be subordinated to the Cabinet of Ministers, the Saeima may form an autonomous state institution only in such cases, when realization of other constitutional norms requires it. Autonomous state institutions are exceptions from the principle of unity of the state administration and as such they shall be formed only in specific cases, when adequate administration in a certain article of the executive power activities cannot be ensured in a different way.

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By the adoption of such law the Saeima discharges the Cabinet of Ministers from political responsibility for the authority, passed to the autonomous state institution, thus narrowing the competence of the Cabinet of Ministers in the sector of the state administration, envisaged by the Satversme. The managers of these institutions shall be responsible for realization of the competence, passed to the autonomous state institutions, as well as the Saeima itself, which – when forming such an institutions shall incorporate into the law the precise model of securing legality of the activities of the institution, the above shall maintain its independence in realization of the functions endowed to it. 16.2. In interpreting separate norms of the Satversme one shall take into consideration also Article 1 of the Satversme, from which follow several principles of the democratic state governed by the rule of law. Already at the time of elaboration of the Satversme it was recognized that the part of the Satversme which determines organizational issues of the state structure is only concretisation of the principles, enshrined in Articles 1 and 2 of the Satversme. “We may expect that these principles will not only be placed at the forepart of the Constitution but shall be also – as consequently as possible – included in the further main provisions of the Constitution” [Dišlers K. Dažas piezīmes pie Latvijas Republikas Satversmes projekta (tieša likumdošana un valsts presidents) // Tieslietu Ministrijas Vēstnesis, 1921, no. 4/6, p. 139]. L. Muciņš has also quite reasonably pointed out that there was the necessity to interpret Article 58 of the Satversme as read in conjunction with Article 1 of the Satversme – “our Satversme has Article 1, which stresses that Latvia is an independent democratic republic. Therefore it would not be correct to interpret all problems by Article 58 of the Satversme, but the above problem shall be referred to and analysed by Article 1 of the Satversme as well” (Verbatim record of the 11th meeting of the fall session of the 7th Saeima of the Republic of Latvia of 15 November 2002). 16.3. In our contemporary democratic state governed by the rule of law passing all the functions of the executive power to the Cabinet of Ministers and the state administration institutions is impossible. A separate article of the state administration may be taken out of the competence of the Cabinet of Ministers and passed over to an autonomous state institution, if it has been established that a state institution subordinated to the Cabinet of Ministers will not be able to ensure adequate management. When analysing this development aspect of democracy L. Muciņš has concluded: “And life has proved, and the development of Europe has proved that after the World War II quite a lot of institutions have been formed; concretely they are called the autonomous institutions, which are not under the supervision of the government; but at the same time respective laws have been passed about them and they realize a respective public task. And at the same time- so as to be independent from the government – they have been given quite peculiar and extensive authority” (Verbatim record of the 3rd meeting of the fall session of the 7th Saeima of the Republic of Latvia of 19 September 2002). Thus just Article 1 of the Satversme is that constitutional norm, which authorizes Saeima in certain cases when there is no other way of ensuring adequate management to form autonomous state institutions. In a democratic state governed by the rule of law releasing separate state administration institutions from subordination to the Cabinet of Ministers ensures due management in such administration Articles, which are connected with the control of the activities of other state institutions, ensures stability of prices as well as protection of certain freedoms and approximation of interests (see the Cabinet of Ministers Conception on the regulation of the status of “independent” or autonomous institutions, confirmed on 17 May 2005, vol. 1, p. 167 of the case materials).

However, Article 1 of the Satversme determines also strict “borders”. Formation of such autonomous state institutions, the delegated functions of which it is possible to realize as efficiently also by the institution subordinated to the Cabinet of Ministers, shall be inadmissible. This constitutional norm determines also the sectors in which it is not allowed to form autonomous state institutions. In a democratic republic parliamentary control, which is realized with the mediation of the responsible government, over the Armed Forces and State Security institutions is vitally important. Article 1 of the Satversme assigns the Saeima with the duty to ensure adequate democratic legitimisation of the above institution as well as to incorporate in the laws efficient mechanisms for supervision of their activities when forming an autonomous State institution. 16.4. Such a conclusion of interpreting of the Satversme has been made also in the drafts of the new normative legal acts. For example Article 2 of the draft of the Structure of Cabinet Law, elaborated by the State Chancellery, determines: “1) The Cabinet of Ministers is a collegial institution, which - by the mediation of the state administration subordinated to it - realizes executive power in the name of the Republic of Latvia. 2) The Saeima by a separate law may pass concrete functions or duties, included in the sector of realization of the executive power to institutions, which are not subordinated to the Cabinet of Ministers” (Draft Law on the Structure of the Cabinet // http://www. mk.gov.lv/doc/2005/Mklik_MK.doc.). In the research papers of the legal scientist it is also recognized that the Satversme allows release of several state administration institutions from subordination to the Cabinet of Ministers. “In case when the literal formulation of a legal norm is narrower than the logical sense of the norm or the content of the norm, extended interpretation shall be used. […] Such specific state administration institutions as the National Radio and Television Council, the Bank of Latvia are not subordinated to the Cabinet of Ministers. Thus the practice of the Latvian legislator makes one deduce that the Satversme norm on the subordination of state administration institutions shall be interpreted in a wider sense, as its literal formulation, which is included in Article 58 of the Satversme, is narrower” (Eglītis V. Ievads konstitūcijas teorijā. // Riga, Latvijas Vēstnesis, 2006, p. 168). Article 58 of the Satversme permits interpretation, which ensures adequate and conformable with a contemporary democratic state governed by the rule of law administration in separate sectors of management. It does not exclude the possibility of the legislator to consider whether amendments to the Satversme are necessary to expressis verbis include interpretation of this Satversme norm in the text of the Satversme. 17. The Council has been formed to represent public interests in the sector of electronic mass media and supervise, how normative acts and freedom of speech and information are observed in their activities. The Council shall realize functions of two kinds- it supervises how the Latvian radio and Latvian television render their services to the residents of the Republic of Latvia and supervises private radio and television broadcasters (see the verbatim record of the 5th meeting of the fall session of the 7th Saeima of the Republic of Latvia of 9 October 2002). Existence of the Council, which is not subordinated to the Cabinet of Ministers, is conformable with the Satversme and admissible, because the main duty of the Council is to balance competition in the sector of mass media, in which the power of information has a direct influence on the processes of elections and those of the state power. As concerns

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this sector the Council shall carry out activities of control and de-monopolization as well as determine restrictions to participation in the market, so that the competition of offering ensures a proportional expression on diversity of public viewpoints (see the Cabinet of Ministers Conception on the regulation of the status of “independent” or autonomous institutions, confirmed on 17 May 2005, vol. 1, pp. 180181 of the case materials). Also recommendations of the Council of Europe and the practice of the European states testify that the regulator of the broadcasting sector – and the Council will be regarded as such –shall be ensured such independence, which protects it from any of political forces or economic interests (see vol. 2, p. 140 of the case materials). For example, the Committee of Ministers of the Council of Europe in the Preamble of its 20 December 2000 Recommendation Rec(2000)23 to Member States on the independence and function of the regulator of the broadcasting sector has stressed the duty of the Member States to ensure that a wide, independent and autonomous range of mass media, which allows reflecting diversity of ideas and viewpoints exists in the democratic society. Taking into consideration the importance of mass media in a contemporary and democratic society, the Committee of Ministers in the above Recommendation stresses the necessity to ensure for the Member States existence of a wide range of independent and autonomous mass media in the broadcasting sector. The Committee of Ministers suggests as one of the means for reaching this aim to control the regulators of the broadcasting sector in such a way that they are protected from any interference, especially that of the political forces or economic interests [see: Recommendation Rec(2000)23 of the Committee of Ministers to Member States on the Independence and Functions of Regulatory Authorities for the Broadcasting Sector //http://cm.coe.int/ta/rec/2000/2000r23.htm]. “Article 19” of the World Campaign for Freedom of Speech Memorandum about the proposal for the drafts of the Latvian Public Radio Organizations Law and the Radio and Television Law points out that the draft laws, which were being elaborated, subject public broadcasters and the regulator of the broadcasters to inadmissible control by the government (see vol. 2, p. 149 of the case materials). It is stressed in the Memorandum: subordination of the Council to the Cabinet of Ministers would mean that the members of the government are involved in supervision of its activities. In such a situation the regulator may not be regarded as independent from ”political interests” as subordination of the Council to the Cabinet of Ministers means interference of the executive power in the control of the broadcasting sector (see vol. 2, p. 155 of the case materials). If the Council were formed as a state administration institution subordinated to the Cabinet of Minister then there would exist such a risk, that it would not be possible to ensure realization of Article 100 of the Satversme in the activities of the electronic mass media. In the same way it would cause inconvenience to the process of equal elections, as the state administration institution subordinated to the Cabinet of Ministers might be used in the interests of the leading political parties as well as for limitation of the election campaign of the political parties of the opposition. Use of administrative resources in pre-election campaigns is a characteristic feature of the new democratic states. Therefore state management of the sector of broadcasting shall be carried out in such a way that it lessens the influence to the regulator of the sector of broadcasters as much as possible. Thus the status of the Council complies with the Satversme. The petitioner has pointed out that the authority, conferred upon the Council by the impugned norms, does not comply with Article 58 of the Satversme either.

The competence of the Council, determined in the impugned norms is not so much connected with supervision over it as to the fact that the Latvian Radio and Latvian Television render their services to the residents of the Republic of Latvia and with the supervision of all the activities of the broadcasters. The competence of the Council in the control of both – the public and the commercial broadcasters is expressed in the impugned norms. One may agree with the viewpoint expressed by the Saeima that there is no unified model of public and commercial broadcasters in Europe. The mechanism, which is in effect in Latvia, is rational, as the sector of broadcasting, which includes both – public and commercial broadcasters, is a unified sub-article, which - for the reasons of more efficient coordination – shall be supervised by one institution. The Saeima reasonably holds that in so small as state as Latvia it would not be useful to have two functionally similar institutions and use the state budget for them both (see vol. 1, pp. 201202 of the case materials). What functions of the executive power are granted to separate institutions – that is mainly the issue on adequate management and efficiency of the state administration in the respective sector. The state has the duty to organize management and administration as efficiently as possible as well as regularly control, and – when necessary – to improve the state administration system. Article 58 of the Satversme does not prohibit conferring definite functions of the executive power to autonomous state institutions, as well as controlling with the help of legislature the division of the functions, if it is necessary to ensure of adequate and efficient administration. Thus the impugned norms comply with Article 58 of the Satversme. 19. The petitioner holds that the impugned norms without an objective and reasonable basis establish a differentiated attitude to public broadcasters as compared with the commercial broadcasters. Therefore to his mind the impugned norms are at variance with the principle of legal equality. This principle is incorporated in the first sentence of Article 91 of the Satversme and it prohibits the state institutions to issue such legal norms, which without a reasonable basis allow a differentiated attitude to persons, who are in equal and under certain criteria comparable circumstances (see the judgment of the Constitutional Court of 5 December 2001 in the case no. 2001-07-0103, para. 3 of the motives part). To establish if the impugned norms comply with Article 91 of the Satversme one shall find out whether: • persons are in equal and comparable circumstances; • the impugned norms envisage a differentiated attitude; • the differentiated attitude has an objective and reasonable basis, namely – whether it has a legitimate aim and whether the principle of proportionality has been observed. 20. To establish whether and which persons or groups of persons are in equal and comparable by certain criteria circumstances it is necessary to find the unifying feature of the above group. The petitioner holds that all the broadcasting organizations are in equal and comparable circumstances. As a complete financing of the state budget is not ensured for the public broadcasting organizations but there is no political will of the legislator for

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introducing licence fee, public broadcasters compete with the commercial broadcasters in the advertisement market. As the Council is the holder of the state capital share in the public broadcasting organizations and carries out the duties of the general meeting of the above organizations, then the functions of supervision, determined for the Council, in the impugned norms permit partiality of the Council with regard to commercial broadcasters. One may quite agree with the viewpoint, expressed by the State Human Rights Bureau that both groups of broadcasters compete in the advertisement market, however their tasks are different. The activities of commercial broadcasters are directed to gaining of profit; in their turn the public broadcasters are realizing the public order (see vol. 2, p. 172 of the case materials). Gaining of profit is prohibited to public broadcasting organizations and they have a specific status, which draws them nearer to state institutions but not commercial companies. Thus the public broadcasters should not theoretically be interested in competition in the advertisement market and gaining of potentially greater profit (see vol. 1, pp. 201202 of the case materials). 21. However, it cannot be completely excluded that public and commercial broadcasters mutually compete in the advertisement market; therefore it is necessary to verify whether the impugned norms envisage a differentiated attitude to them. In is correctly established in the viewpoint of the State Human Rights Bureau: the impugned norms do not determine that the Council, when realizing the functions, determined in it, shall differently treat public broadcasters and commercial broadcasters (see vol. 2, p. 172 of the case materials). Thus, the impugned norms allow to ensure equal attitude. As the impugned norms do not envisage a differentiated attitude they are in conformity with Article 91 of the Satversme. 22. The examples, mentioned in the claim, when potential violations of Article 91 of the Satversme have been recognized in the activities of the Council during realization of the competence determined in the impugned norms, directly concern just the practice of application of the impugned norms. The circumstance when a state institution, realizing the competence assigned to it, in practice does not observe the principle of equality cannot serve as the basis for declaring the competence, assigned to it as unconformable with the Satversme.

The resolutive part On the basis of Articles 30-32 of the Constitutional Court Law the Constitutional Court decided: To declare Article 46(6), (7), (8) and (9) of the Radio and Television Law to be compatible with Articles 58 and 91 of the Satversme of the Republic of Latvia. The judgment is final and not subject to appeal. The judgment takes effect as of the day of its publication.

The chairman of the hearing of the Court

A. Endziņš

2007-10-0102

Border Treaty

189

The doctrine of state continuity, the indivisibility of territory and undertaking international obligations The establishment of the Republic of Latvia was described. The Republic of Latvia, as an independent and autonomous state, was proclaimed on 18 November 1918, by exercising the principle of self-determination of the people. The act of proclamation concluded the period of preparing the statehood of Latvia, which began already in the 19th century with the national awakening when Latvians became aware of themselves as a full-fledged European nation. The self-determination of the people of Latvia concluded on 27 May 1920, when the first elected parliament – the Constitutional Assembly of Latvia – adopted the Declaration on the State of Latvia. It was found that the Republic of Latvia had been established as a nationstate. The formation of such a state was linked to the obligation to unite within it all regions populated by Latvians. Thus, alongside the principle of an independent democratic republic, the principle of unity of all historic ethnographic regions populated by Latvians is one of the basic principles of Latvia’s statehood. Losing the independence of the Republic of Latvia was examined. In 1940, the USSR exerted aggression against the Republic of Latvia, which was followed by an unlawful occupation of the Republic of Latvia; the USSR unlawfully interfered into the domestic affairs of the Republic of Latvia, as well as unlawfully annexed the Republic of Latvia, ignoring both the international law provisions and the fundamental provisions of the Latvian national law. A national referendum was not held either on establishing the Soviet power or acceding the USSR. The principle of people’s sovereignty was analysed. In accordance with this principle, the people of Latvia are the sole subject of the state’s sovereign power – it has the right to decide on its own fate. Hence, the people of Latvia also have the exclusive right to revoke the constitution or to establish a new constitutional order. The doctrine of state continuity was presented. The international community does not recognise unlawful annexation of states or parts thereof to another state. A state which has been unlawfully destroyed continues to exist de iure, and, thus, there is a legal possibility that if such a state is de facto restored, it, instead of creating a new state, continues de facto the suspended statehood. It was noted that the doctrine of state continuity creates an obligation for the state of Latvia to deal with a number of issues. One of these is the issue of the territory and borders of the state of Latvia. This issue is of particular importance in connection with the state border between Latvia and Russia since the joining of Abrene region to Russia in 1944 was unlawful, from the perspective of the doctrine of state continuity. However, the doctrine of state continuity does not prohibit the state of Latvia from handling its territory. The state of Latvia has the right, in compliance with the procedure established in the Satversme, both to increase and decrease its territory. It was found that Abrene region, in establishing the nationstate of Latvia, is not conditio sine qua non, without which Latvia would not unite

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all regions populated by Latvians. This region is to be considered as a newly acquired territory, which Latvia annexed to its territory when the peace treaty concluded with Russia in 1920 entered into effect. Therefore the border treaty which was concluded with Russia in 2007 and in which Latvia waives its de iure right to Abrene region does not change the substance of the state of Latvia. Therefore the state border established in the border treaty is not to be submitted to a national referendum. The separate opinion of one judge was appended to the judgement. It comprises considerations regarding the doctrine of state continuity and the national referendum.

JUDGMENT in the name of the Republic of Latvia in the case no. 2007-10-0102 Riga, 29 November 2007 The Constitutional Court of the Republic of Latvia in the following composition: the chairman of the hearing of the Court Gunārs Kūtris, judges Kaspars Balodis, Aija Branta, Juris Jelāgins, Kristīne Krūma, Uldis Ķinis and Viktors Skudra, on the basis of the application of twenty-one members of the 9th Saeima [Parliament] of the Republic of Latvia […], on the basis of Article 85 of the Satversme [Constitution] of the Republic of Latvia and Article 16(1) and (2), Article 17(1)(3) and Article 281 of the Constitutional Court Law, at a hearing of the Court on 30 October 2007 examined the following case in written proceedings, “On the compliance of the law “On Authorisation to the Cabinet of Ministers to Sign the Draft Agreement between the Republic of Latvia and the Russian Federation on the State Border between Latvia and Russia Initialled on 7 August 1997” and the words “observing the principle of inviolability of borders adopted by the Organization of Security and Cooperation in Europe” of Article 1 of the law “On the Republic of Latvia and the Russian Federation Treaty on the State Border of Latvia and Russia” with the preamble and Article 9 of the Declaration of 4 May 1990 of the Supreme Council of the Republic of Latvia “On Restoration of Independence of the Republic of Latvia” and the compliance of the Treaty of 27 March 2007 of the Republic of Latvia and the Russian Federation on the State Border between Latvia and Russia with Article 3 of the Satversme of the Republic of Latvia”.

The facts 1. On 8 February 2007 the Saeima of the Republic of Latvia (hereinafter – the Saeima) adopted the law “On Authorisation to the Cabinet of Ministers to Sign the Draft Agreement between the Republic of Latvia and the Russian Federation on the State Border between Latvia and Russia Initialled on 7 August 1997” (hereinafter – the Law on Authorization).

The law provides: “According to the constitutional law of the Republic of Latvia “On the Statehood of the Republic of Latvia”, adopted by the Supreme Council of the Republic of Latvia on 21 August 1991, as well as taking into account the internationally recognized continuity of the Republic of Latvia, the Cabinet of Ministers shall be authorized to sign the draft treaty initialled on 7 August 1997 between the Republic of Latvia and the Russian Federation on the state border between Latvia and Russia”.

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2. On 19 March 2007, the Cabinet of Ministers adopted order no. 151 “On Signing of the Draft Agreement between the Republic of Latvia and the Russian Federation on the State Border between Latvia and Russia”. The order provides that under the Law on Authorization, “as well as respecting the principle of inviolability of frontiers adopted by the Organisation for Security and Co-operation in Europe, [..] the draft Agreement shall be signed on behalf of the Republic of Latvia by Prime Minister, Aigars Kalvītis”. 3. On 27 March 2007, The Prime Minister of the Republic of Latvia Aigars Kalvītis and the Chairman of the Government of the Russian Federation Mikhail Fradkov signed the Treaty of the Republic of Latvia and the Russian Federation on the State Border between Latvia and Russia (hereinafter – the Border Treaty). The Border Treaty was concluded “in mutual respect for the other state’s sovereignty and independence, equality and territorial integrity, confirming the adherence to the principles of the UN and the OSCE, recognising the beneficial effect of the treaty law statement of the State border between the Republic of Latvia and the Russian Federation for the further development of good neighbourly relations” and “on the basis of the good will of the parties”. 4. On 29 May 2007 the Saeima ratified the Border Treaty by adopting the law “On the Treaty between the Republic of Latvia and the Russian Federation on State Border between Latvia and Russia” (hereinafter – the Ratification Law). Article 1 of the Ratification Law provides that the Border Treaty “is accepted and approved observing the principle of inviolability of frontiers established by the Organization of Security and Cooperation in Europe”. 5. The Petitioner – twenty-one members of the Saeima – asks the Constitutional Court: 1) to declare the Law on Authorization and the words “observing the principle of inviolability of border established by the Organization of Security and Cooperation in Europe” of the Ratification Law as not being in compliance with the preamble and Article 9 of the Declaration of 4 May 1990 of the Supreme Council of the Latvian Soviet Social Republic “On Restoration of the Independence of the Republic of Latvia” (hereinafter – the Declaration of Independence); 2) to declare the Border Treaty and the Ratification Law as not being in compliance with Article 3 of the Satversme (hereinafter – the Satversme) of the Republic of Latvia. 5.1. It is stated in the application that the Declaration of Independence is a constitutional provision in substantive terms, because it establishes the scope of activity and mutual relations of two other constitutional foundational documents –

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the Satversme and the Constitution of the Latvian SSR. Since the provisions of the Declaration of Independence could be effective only in case if the provisions of the Declaration of Independence have at least the same force as the above-mentioned constitutional acts, in the hierarchy of legal norms, then the Declaration is of a constitutional rank, i.e. it is a norm of constitutional law also in formal terms. The Satversme, when becoming effective in full, did not “cover” the entire area of regulation of the Declaration of Independence. Therefore, in the Petitioner’s view, the provisions of the Declaration of Independence that are in force belong to the norms of Latvian constitutional provisions both in substantive and formal terms. However, the Declaration of Independence has a lower legal force than the Satversme. The Petitioner regards the preamble and Articles 1, 2, 8 and 9 of the Declaration of Independence as being in force. The norms of the Declaration of Independence together with the Satversme form the “written Constitution” in force of Latvia. 5.2. Two facts follow from the Declaration of Independence – that Latvia was occupied in 1940, and that its independence was restored in 1990, i.e. the preamble provides for continuity of the statehood of Latvia. Article 9 of the Declaration gives the authority to the government to settle Latvia’s relations with the USSR and provides the main directions of this authorization. This article of the Declaration of Independence also applies to the legal successor of the USSR – the Russian Federation. While Article 9 of the Declaration of Independence is not repealed, Latvia can form its treaty relations with Russia only in the manner that none of the newest treaties would conflict with the Peace Treaty of 11 August 1920 between Latvia and Russia (hereinafter – the Peace Treaty). 5.3. By means of the Law on Authorization, the Saeima authorizes the Cabinet of Ministers to sign the Border Treaty, but the Border Treaty is in conflict with the Peace Treaty because it amends the State border between Latvia and Russia established in the Peace Treaty. In the Petitioner’s view, by the Law on Authorization the Saeima has amended the authorization for formation of relationships with the Russian Federation that is established in Article 9 of the Declaration of Independence. Since the Law on Authorization has a lower legal force and Article 9 of the Declaration of Independence has not been amended, the Law on Authorization is in conflict with Article 9 of the Declaration of Independence. It is also indicated in the application that the Law on Authorization does not state the doctrine of State continuity in a sufficiently clear manner. Due to this reason the law is in conflict with the preamble of the Declaration of Independence. 5.4. Article 3 of the Satversme establishes the state territory of Latvia. In order to determine the procedure for changing the state territory of Latvia, it is necessary to use the preparatory materials of the Satversme. One should take into account the opinion of a member of the Constitutional Assembly of Latvia Fricis Menders that the Satversme cannot allow the possibility of giving a part of Latvia to a foreign power. The Petitioner also emphasizes the opinion of the Chairman of the Satversme Commission Marģers Skujenieks that Article 3 of the Satversme does not provide for a possibility to change the border of Latvia by way of international treaties. The Petitioner considers that the state border established in Article 3 of the Satversme can not be changed by international agreements after the entry into force of the Satversme. On the day of enactment of the Satversme Latvia had already concluded agreements with Estonia, Russia and Lithuania, which precisely determined the external border of Latvia. This border cannot be changed after the entry into force

of the Satversme. According to the Petitioner giving any territory of Latvia to other states would be in conflict with the objective of creation of the state of Latvia – to unite all the territories inhabited by Latvians into a unified state. The application questions whether Article 3 of the Satversme could have been adopted with the aim to prevent the possible separation of Latgale from Latvia. The historical decisions passed at the Latgale Congress (26-27 April 1917) regarding the unification with the rest of Latvia, as well as the programmes of the Latgalian political parties do not manifest any real claim for the separation of Latgale. 5.5. By means of the Peace Treaty Russia has waived for eternity its sovereign rights to the territory of Latvia, including the Pitalovo railway station and other territories of the Pskov province that were given to Latvia. Latgale, within the meaning of Article 3 of the Satversme, according to the Petitioner, consists of the districts of Daugavpils, Rēzekne, Ludza and Jaunlatgale (Abrene). The Border Treaty establishes the state border between Latvia and Russia by taking into account the changes that were made to the state territory in 1944 by the government of the Latvian SSR and that are not binding on the Republic of Latvia. Since Article 3 of the Satversme does not provide for a possibility to change the state border after the entry into force of the Satversme, the Border Treaty does not comply with Article 3 of the Satversme. 5.6. Since the Saeima confirmed the Border Treaty by adopting the Ratification Law, the constitutionality of the Border Treaty cannot be assessed separately from the compliance of the Ratification Law with Article 3 of the Satversme. Article 3 of the Satversme does not provide for a possibility to change the border of Latvia by international treaties. Since the Border Treaty does change the border, it is in conflict with the Satversme. The Ratification Law conflicts also with the Satversme, since thereby the Saeima has undertaken such international obligations that the Satversme prohibits it to undertake, namely, the Saeima has confirmed the change of the territory of the state which is prohibited by Article 3 of the Satversme. 5.7. By means of the words “observing the principle of inviolability of frontiers established by the Organization of Security and Cooperation in Europe” included in Article 1 of the Ratification Law, the Saeima has recognized the official Russian interpretation of the Helsinki Final Act and ignored the actual content of this Act. The principle of inviolability of borders does not preclude the once occupied Baltic States from renewing their independence and restoring their sovereignty within the borders as they existed in 1940. Reference to the OSCE principle of inviolability of frontiers according to the official Russian interpretation of this principle puts in doubt the reestablishment of the State of Latvia and is to be considered as an action conflicting with the doctrine of legal continuity of the State. Therefore, according to the Petitioner, the words “observing the principle of inviolability of frontiers established by the Organization of Security and Cooperation in Europe” included in Article 1 of the Ratification Law are in conflict with the preamble of the Declaration of Independence. The above-mentioned words of Article 1 of the Ratification Law are also in conflict with Article 9 of the Declaration of Independence, since by this reference the territorial changes of 1944 are recognized as being legal.

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6. The institution that adopted the Law on Authorization and the Ratification Law – the Saeima – states in its written reply that the Law on Authorization complies with the preamble and Article 9 of the Declaration of Independence, whereas the Ratification Law complies with the preamble and Article 9 of the Declaration of Independence, and with Article 3 of the Satversme. The Saeima states in its written reply that it has no doubt that the Declaration of Independence is in force and it is a document of a constitutional rank. 6.1. The preamble of the Declaration of Independence establish the basis of the doctrine of continuity of the state of Latvia. Any action of public institutions which would be in conflict with this doctrine is to be considered as a violation of the Declaration of Independence and hence as an illegal action. The Law on Authorization does not contradict the doctrine of state continuity; just to the contrary, it particularly emphasizes and develops it. The legislator has included an express reference to the continuity of Latvia in the text of the Law on Authorization. Similarly, when discussing the Law on Authorization in the Saeima debates, it was clearly stated that it complies with the acts of a constitutional rank adopted in 1990-1991 and develops the theses established therein. Neither the authorization of the Saeima to the Cabinet of Ministers to sign the Border Treaty, nor conclusion of the Border Treaty per se endanger the doctrine of continuity of the state of Latvia, since the Law on Authorization has not departed from the doctrine of continuity of the state but it has consistently and clearly confirmed it. 6.2. Article 9 of the Declaration of Independence does not contain a reference to Article 3 of the Peace Treaty that establishes the border between states, i.e. Latvia and Russia. The Saeima indicates that the text of Article 9 of the Declaration of Independence is related to Article 2 of the Peace Treaty and is harmonised with Article 5 of the Declaration. These three norms together have formed a common regulation on 4 May 1990: during the transitional period (that is provided for in Article 5 of the Declaration of Independence) the independence of the Republic of Latvia has to be de facto restored by settling the issue by means of negotiations with the USSR and on the basis of the refusal by Russia from Latvia for eternity, which is established in Article 2 of the Peace Treaty. When assessing Article 9 of the Declaration of Independence, one has to take into account the preamble of the Constitutional Law “On the Statehood of the Republic of Latvia” adopted on 21 August 1991 (hereinafter – the Constitutional Law). The Supreme Council declared in the preamble of the Constitutional Law that the constitutional legislative and executive institutions of the USSR have ceased to exist and it is not possible to implement Article 9 of the Declaration on the restoration of the independence of the Republic of Latvia by means of negotiations. Even though Article 2 of the Constitutional Law declares void only Article 5 of the Declaration of Independence, the preamble of this Law and the transcripts of the sessions of the Supreme Council clearly show the view of the Supreme Council that Article 9 of the Declaration of Independence only defines the mechanism of the enforcement of Article 5. 6.3. Article 9 of the Declaration of Independence does not make the Peace Treaty absolutely non-amendable and does not impose an obligation on Latvia not to depart from the norms of the Peace Treaty. The reference to the Peace Treaty in Article 9 of the Declaration of Independence is to be considered only as a normative framework of a thesis of the independence of Latvia.

Article 9 of the Declaration of Independence provides for the obligation to form relationships according to the Peace Treaty. This article does not require full observance of the norms of the Peace Treaty in each particular issue under consideration. The Declaration of Independence outlines the general strategy of negotiations, leaving broad discretion in certain cases. The Saeima draws attention to the fact that the Peace Treaty has already been renewed in 1994 by means of the adoption of the Latvian – Belarusian Border Treaty. The border described in this treaty in the area from the Daugava River to the point of border intersection of Latvia, Belarus and Russia complies with the border established in Article 3 of the Peace Treaty, which constitutes approximately 30 percent of LatvianRussian border established in 1920. Hence one can consider that Article 3 of the Peace Treaty has lost its force in the respective part. 6.4. When assessing the compliance of the Ratification Law with the legal norms of a higher legal force, the Saeima states: this law has been adopted in the wording which was submitted by the Cabinet of Ministers. A representative of the Ministry of Foreign Affairs, when informing members of the Saeima on the submitted draft law, had emphasized that the submitted draft Ratification Law has been prepared in accordance with the law “On International Agreements of the Republic of Latvia” and the requirements of the Satversme. The representative of the Prime Minister’s Office has stated that the compliance of the Border Treaty with Article 3 of the Satversme has been assessed and no contradiction has been found. The Cabinet of Ministers in the framework of the initiated case in the Constitutional Court has submitted a reply that exhaustively considers the content of Article 3 of the Satversme, the Declaration of Independence and the Helsinki Final Act. Since the Saeima based itself on the legal assessment of the Border Treaty by the Cabinet of Ministers when adopting the Ratification Law, it agrees with the views of the Cabinet of Ministers expressed in its written reply regarding the compliance of the Border Treaty with Article 3 of the Satversme. 7. The institution, the authorised representative of which signed the Border Treaty – the Cabinet of Ministers – in its written reply asks the Constitutional Court to recognize that the Law on Authorization complies with the preamble and Article 9 of the Declaration of Independence, whereas the Border Treaty complies with Article 3 of the Satversme. 7.1. The Declaration of Independence contains a description of the circumstances of the acquisition and loss of the Latvian independence, as well as the judicial assessment thereof. The doctrine of state continuity follows from that. The Law on Authorization is not in conflict with the historical facts mentioned in the preamble of the Declaration of Independence. Therefore, according to the Cabinet of Ministers, it has to be assessed, whether the Law on Authorization comes in conflict with the doctrine of continuity of Latvia. The doctrine of continuity of Latvia is again clearly and unequivocally repeated in the Law on Authorization, and this law consistently confirms the continuity of Latvia. Article 9 of the Declaration of Independence should be interpreted in connection with Article 5 of this Declaration. Since Article 5 of the Declaration has been annulled by means of the Constitutional Law, there is no longer any need to conduct negotiations with the USSR on restoration of the independence of Latvia. Hence the Constitutional Law also annuls Article 9 of the Declaration as the mechanism of execution of Article 5.

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Article 9 of the Declaration of Independence should not be interpreted as it has been done in the Application. Article 9 contains a reference only to Article 2 of the Peace Treaty, but not to Article 3 of this Treaty. Similarly, Article 9 does not provide for an absolute obligation to fully attain the restoration of the regulation provided by the Peace Treaty because an obligation to negotiate does not imply an obligation to reach an agreement. 7.2. The principle of inviolability of frontiers established in the Helsinki Final Act recognizes the status quo frontiers as inviolable. However, it is unanimously acknowledged that frontiers that have been established in violation of international law are not protected by the principle of inviolability of frontiers. The Cabinet of Ministers emphasizes in particular that, by referring to the principle of inviolability of frontiers, it has not agreed to the interpretation of this principle by the Russian Federation. The reference to the Helsinki Final Act also means a reference to the declarations of the Western States that were made along with the adoption of the Helsinki Final Act and that emphasized the rights of the Baltic States to restore their statehood. 7.3. Article 3 of the Satversme, according to the Cabinet of Ministers, comprises three elements: First, the realization of the then-existing political objectives, i.e. the creation of Latvia as a unified body of four ethnographic regions (inhabited by the Latvian nation). Second, the condition that none of the regions would have a special status. Third, the methodology for establishing the external borders of these regions, i.e. they should be established using the instruments of international law – treaties. The Cabinet of Ministers indicates that Article 3 of the Satversme was adopted in order to prevent (encumber) the possible separation of Latgale from Latvia. Article 3 of the Satversme does not include a constitutional prohibition for Latvia to change the borders of the state, since, according to international law, it is not possible to ensure the non-changeability of borders. The borders of the state of Latvia were also changed after the entry into force of the Satversme both during the interwar period and after the restoration of the independence. When elaborating the Satversme, the Constitutional Assembly had taken into account the possibility that during the adoption of the Satversme the issues regarding borders would not be fully solved with all the neighbouring countries, and therefore it provided for a possibility to conclude other international agreements in future to regulate the state border. Article 3 of the Satversme provides only for a general methodological principle for establishing borders by referring to the Satversme rules regarding concluding of international treaties (Article 68(1) and Article 73 of the Satversme). The Cabinet of Ministers recognises that Article 3 of the Satversme has to be interpreted dynamically, since the Constitutional Assembly could not predict the Second World War, the Cold Was and geo-political changes of the world map following from these events. In the 90s of the 20 th century, the main priority of Latvia was the restoration and strengthening of the independence of the state of Latvia, not the restoration of the previous borders. By joining the NATO and the European Union, Latvia had confirmed that it had no territorial claims against the neighbouring states. 7.4. The Border Treaty is not in conflict with Article 3 of the Satversme, since it does not create an interstate border that changes the borders established in Article 3 of the Satversme in 1922, but records, in the form of a written international treaty,

the border between Latvia and Russia according to the territories of both states that exist de iure at the moment of the conclusion of the treaty. In international law interstate borders and territorial changes follow not only from written treaties between states, but also from pronouncement of will expressed in other forms. Territorial changes of a state can be established also by oral agreements, longterm state practice and unilateral declarations of states. The Russian Federation since 1992 has consistently and clearly claimed that the Republic of Latvia must waive the claims of territorial sovereignty to the town of Abrene and the adjacent parishes. The Republic of Latvia from the beginning of 1996 until the end of 1997 has accepted, by its actions, this claim of the Russian Federation. This position was consistently confirmed by the Latvian highest officials in their public statements from 1997 to 2005. These statements caused the binding title of territorial sovereignty to Abrene and the adjacent parishes to be transferred to the Russian Federation. 8. When providing additional explanations regarding the written reply, the Cabinet of Ministers states that the negotiations with the Russian Federation lasted from 1992 to 1997, and during the negotiations period the mandate of negotiations given to the delegation of the Republic of Latvia had changed. At the beginning stage of the negotiations, Latvia had raised a clear claim regarding the restoration of interstate border of 16 June 1940. However, this mandate of negotiations did not follow from Article 9 of the Declaration of Independence and, taking into account the position of the Russian Federation, it was changed during the negotiations. The mandate given during the meeting of the Cabinet of Ministers of 17 December 1996 is considered to be the last mandate given to the delegation of the Republic of Latvia. It authorised the delegation to conduct negotiations, draft and agree upon (authenticate) a technical agreement regarding the present borderline between both states and, in case if it were not possible, not to include a reference in the agreement to the Peace Treaty, as well as not to allow the inclusion into the treaty of issues unrelated to the delimitation. The Cabinet of Ministers emphasises in its additional observations that the Law on Authorization had been adopted with a view to comply with the requirements of Articles 3, 4 and 7 of the law “On International Agreements of the Republic of Latvia”. The Law on Authorization also fulfils a particular political function – its adoption has confirmed the political support of the majority of the Saeima for the signing of the Border Treaty, as well as has ensured the doctrine of continuity of the state. The Cabinet of Ministers admits that the border between the two states described in Annex 1 of the Border Treaty is a permanent border. The Treaty does not include norms that would allow to consider this border as temporary, terminable or unilaterally changeable. Article 77 of the Satversme can be applied if Article 3 of the Satversme is amended either textually or substantively. Giving away Latvian territory to a foreign state, provided that this action does not affect any of the historical regions in toto or at least it does not concern a sufficiently large part of the region, due to which this region would cease existing de facto, should not be regarded as a fundamental change of the statehood of Latvia, regarding which a national referendum is to be organized. […]

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The motives I 17. On 18 November 1918 the Latvian People’s Council proclaimed the Republic of Latvia as an independent and autonomous state. The Latvian People’s Council in the Proclamation Act concluded the stage of preparation for the statehood of Latvia, which was initiated in the XIX century along with the national awakening when the Latvians became conscious of themselves as a full-fledged European nation. During this period, the claim of the Latvian people for broader rights developed into the idea of a national state. In the Proclamation Act, the Latvian People’s Council declared: “Latvia – united within the ethnographic borders (Kurzeme, Vidzeme and Latgale) – is an independent, democratically-republican state, the Satversme and the relations with the foreign States of which shall be established by the Constitutional Assembly in the immediate future that is to be summoned on the basis of general, direct, equal, secret and proportional ballot by both genders” (Latvijas pilsoņiem! // Pagaidu Valdības Vēstnesis, 14 December 1918, no. 1). A member of the Latvian People’s Council Atis Ķeniņš emphasized at the ceremonial session in honour of the proclamation of Latvia: “Nations occupy their ancient territories and establish states within their ethnographic borders on the basis of unification and self-determination. This permits the Latvians from Kurzeme, Vidzeme and the long-awaited Latgale to join hands in the middle of the united Latvia. Hence we receive our independence flag not from the power, but from the hands of the goddess of justice” (Transcript of the ceremonial Independence Proclamation Act of Latvia by the Latvian People’s Council, 18 November 1918). 18. The State of Latvia was proclaimed by implementing the principle of selfdetermination of the people. The idea of self-determination of the people appeared already during the independence fights of the colonies of Great Britain in the North America, as well as during the Great French Revolution. During the years of World War I this idea was widely recognised and, in the course of time, it became an important norm of international law (see Cassese A. Self-Determination of Peoples. A Legal Reappraisal. Cambridge: Cambridge University Press, 1995, pp. 11-66). 18.1. In the interwar period the principle of self-determination of the people was defined as a political claim, according to which inhabitants are to be conferred the rights to freely decide on the statehood of the territory that they inhabited (see Giese F. Der Verfassung des Deutschen Reiches. Berlin: Karl Henmanns Verlag, 1931, S. 43). The content of the principle of self-determination of the people comprises three elements: the right to self-decision, the right to self-organization and the right to selfgovernance. The right to self-decision of the people as an element of the principle of selfdetermination means the right of the people to freely and independently decide on their political status, joining another state on the basis of autonomy or separating from another state and founding an independent state according to norms of national law. The right to self-organization of people is the right to independently establish the state regime in a constitution that is adopted by a national referendum or a constitutional assembly. The right of the people to self-governance is the right to implement the state power according to the provisions of the constitution (Dišlers K. Tautu pašnoteikšanās principa tiesiskais saturs. Rīga: Latvijas Universitāte, 1932, pp. 134‑135).

But Professor Friedrich Giese considered that the claim of self-determination has not become a norm of public law or a principle of international law, but it has remained as a postulate of legal policy (see Giese F. Der Verfassung des Deutschen Reiches, S. 43). Some scientists defined the principle of self-determination as a claim of political justice that a state could voluntarily recognize as binding onto itself (see Anschütz G. Die Verfassung des Deutschen Reichs vom 11. August 1919. Berlin, Zürich: Verlag Gehlen Bad Homburg V. D. H., 1968, S. 46). However, other scientists were confident that the principle of self-determination of the people has become a legally binding principle: “The principle of self-determination of people is recognized and observed not only, so to say, from above, only from the part of the League of Nations. This fundamental principle of the modern political and legal life has an even stronger positive basis: it is recognized by the states themselves, and as a positive legal principle it is incorporated in the legal acts – resolutions, declarations and even constitutions – of the leaders of the states. The principle of self-determination of the people is to be included in the list of those general legal principles recognized by the civilized nations that are used by the Permanent Court of International Justice along with the positive rights and international conventions (Dišlers K. Tautu pašnoteikšanās principa tiesiskais saturs, pp. 102‑103). 18.2. The idea of self-determination of the people considerably developed during World War I. Until then states were created on the basis of the right of conquest, not on the basis of the principle of self-determination of the people. “The long acute problem of the right of the people to self-determination was brought forward and developed on the agenda of the day of global politics and it was declared as the objective of international right and justice. The World War acquired its own political and legal ideology – protection of the rights of the peoples. The idea of the right of the peoples to self-determination became one of the motives, by which both groups of warring states attempted to strengthen the will of the peoples to fight during the lengthy war (Seskis J. Latvijas valsts izcelšanās pasaules kara notikumu norisē. Atmiņas un apcerējumi (1914 – 1921). Riga: Balta, 1991, pp. 145‑146). The principle of self-determination of the peoples was particularly widely used by the Entente States in order to enfeeble the multi-national empires – the AustroHungarian Empire and Turkey. “The hopes and expectations [of the people incorporated in these empires] did not remain hidden from the leading politicians of the allied countries. Therefore they acted as defenders of the oppressed nations and publicly declared the principle of self-determination of the people that had two recognised tasks: first, to meet the justified claims for freedom and independency of the peoples, and, second, to diminish the threat of future wars by creating a more just political system” (Dišlers K. Tautu pašnoteikšanās principa tiesiskais saturs, p. 101). The viewpoint of the Entente States regarding the principle of self-determination of people was expressed most fully by the President of the US, Woodrow Wilson. W. Wilson did not mention expressis verbis the principle of self-determination of the people in the 14 Points regarding provisions of peace with the Triple Alliance and the formation of international relations formulated on 18 January 1918. However, it follows from points 9, 10, 13 and 14 which require the establishment of the borders of Italy according to its ethnographic borders, autonomy for the nations of the AustroHungarian Empire, restoration of the state of Poland and foundation of the League of Nations (see: Dišlers K. Tautu pašnoteikšanās principa tiesiskais saturs, pp. 101‑102). In a speech of 4 July 1918, W. Wilson emphasized even more clearly the significance of the principle of self-determination of the people in the post-war

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Europe: “The settlement of every question, whether of territory, of sovereignty, of economic arrangement, or of political relationship, upon the basis of the free acceptance of that settlement by the people immediately concerned, and not upon the basis of the material interest or advantage of any other nation or people which may desire a different settlement for the sake of its own exterior influence or mastery.” (Seskis J. Latvijas valsts izcelšanās pasaules kara notikumu norisē, p. 154). “The right to self-determination was also recognized during the peace negotiations of Brestlitovsk by Russia, Germany and the Austro-Hungarian Empire. […] The right to self-determination proclaimed by the professor Wilson was later approved by all the Entente States” (Šulcs L. Atskats uz Latvijas valstiskās idejas izveidošanos // Tieslietu Ministrijas Vēstnesis, 1926, No. 5/6, p. 213). According to this principle and addressing the Entente States, the nations of the Austro-Hungarian Empire and then also later those of the Russian Empire made their claims to nation-states. To a great extent self-determination of these peoples was facilitated by the results of World War I and revolutions, namely, the collapse of the Austro-Hungarian, German and Russian Empires. Prior to establishing the right to self-determination in the UN Charter in 1945, the question about the legal nature of the self-determination rights did not have a clear answer (see: Woolsey T. W. Self-Determination // American Journal of International Law, 1919, pp. 302‑305). Regarding Latvia, the opinion of the Committee of Rapporteurs of the League of Nations in the so-called Aland Case is relevant. The Committee recognized expressis verbis that Finland is a nation that would accordingly have had right to secede from the Russian Empire. (see Cassese A. Self-Determination of Peoples, pp. 27‑31). Mutatis mutandis, Latvia, too, was a subject of the right to selfdetermination having a right to secede from the Russian Empire. 18.3. Like most of European peoples, the Latvian people also started becoming self-aware during their first awakening in the second half of the 19th century. In the course of time, basing on the right of the people to self-determination, it started to claim more persistently its right to freely decide its destiny. In July of 1917 the board of the Vidzeme Provisional Land Council summoned a conference to discuss the issue of the autonomy of Latvia. 50 delegates from ten most important public organizations participated in the conference. They adopted a resolution that provided: “The Latvian people, just like all other nations, have a right to full self-determination” (Dišlers K. Ievads Latvijas valststiesību zinātnē. Rīga: A. Gulbis, 1930, pp. 56‑57). At the first session of the Latvian Provisional National on 16-19 December 1917 in Valka several acts regarding the future of Latvia were adopted. In a statement to foreign countries the Latvian Provisional National Council stated: “Considering the long-held aspirations of the Latvian people to political freedom and autonomous Latvia, which was particularly manifested during the freedom struggles of 1905, and on the basis of the principle of self-determination of the people, the Latvian Provisional National Council strongly protests against any division of Latvia and particularly against the annexation or any sort of joining of Kurzeme or the entire Latvia to Germany, and hence it declares that Latvia that consists of Vidzeme, Kurzeme and Latgale is an autonomous state entity, the status, the foreign relations, as well as the internal structure of which will be determined by its Constitutional Assembly and plebiscite of the nation (Dišlers K. Ievads Latvijas valststiesību zinātnē, p. 58). Latvian Provisional National Council also established the first diplomatic contacts when trying to achieve favour of other, especially the Entente States for its political efforts (see: Lerhis A. Latvijas

Republikas ārlietu dienests. 1918‑1941. Riga: Latvijas vēstures institūta apgāds, 2005, pp. 47‑60). During the second session of the Latvian Provisional National Council that took place in Petrograd on 15-18 January 1918 a decisive step was made towards the independence of Latvia. After many discussions a resolution was adopted, wherein the Latvian Provisional National Council, “founding itself on the right of the people to self-determination recognized and declared by all the democracies of the world”, recognized that “Latvia has to be an independent democratic republic that would comprise Kurzeme, Vidzeme and Latgale” (Šulcs L. Atskats uz Latvijas valstiskās idejas izveidošanos // Tieslietu Ministrijas Vēstnesis, 1926, Nr. 7/8, pp. 288‑291). On 23 October 1918 the Secretary of State for Foreign Affairs of Great Britain Arthur James Balfour, when meeting with the representative of the Latvian Provisional National Council, Zigfrīds Anna Meierovics, declared verbally that the government of Great Britain views with sympathy the efforts of the Latvian people to get rid of the German yoke and to declares the Latvian Provisional National Council as de facto independent institution until the moment when the Peace Conference will ultimately solve the issue regarding Latvia. On 11 November 1918 upon the request of Z. A. Meierovics A. J. Balfour drew up this declaration in a written form as well (see Andersons E. Latvijas vēsture. 1914‑1920. Stokholma: Apgāds Daugava, 1967, p. 324). The work of the Latvian Provisional National Council was continued by the Latvian People’s Council which was formed on 17 November 1918 and which proclaimed the Republic of Latvia already on 18 November of the same year. “Proclamation of the state of Latvia was undoubtedly a revolutionary act. For the first time in the history of Latvia the Latvian people joined into one state and became the masters in their own territory which had been in its possession since immemorial times and where it still formed the great majority among other inhabitants. The state was founded on the basis of the principle of self-determination of the people at the time when the high powers had left it for a short time to its own destiny. […] Estonia and Lithuania had already proclaimed their independence – like Finland, Poland, Belarus, Ukraine and the Caucasus States. Latvia was the last member in the long list of new states” (Andersons E. Latvijas vēsture, p. 355). 18.4. The principle of self-determination of the people was also recognized by the Soviet Russia. On 2 December 1917, equality of the peoples of Russia and rights of the peoples of Russia to free self-determination, including the right to separate and to find an independent state, were proclaimed in the Declaration of the Rights of the Nations of Russia by the Russian National Commissioners’ Council (see: Миллер В. О. Первое суверенное государство латышского народа. Рига: Авотс, 1988, c. 3‑6). On the basis of the right of the people to self-determination, in Article 2 of the Peace Treaty the Soviet Russia recognized the independence of Latvia: “Pursuant to the declaration by the Russian Socialist Federal Soviet Republic that all peoples shall have the right to free self-determination, not excluding even a complete secession from the state to which they presently belong, and observing the will for an independently existing state as firmly expressed by the Latvian state, Russia unconditionally recognizes the independence, freedom and sovereignty of the Latvian state and renounces for eternity all sovereign rights held by Russia in relation to the people and territory of Latvia on the basis of the previous state legal system as well as any international agreements all of which lose their force and effect for the future time

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as herein provided” (Miera līgums starp Latviju un Krieviju // Likumu un valdības rīkojumu krājums, 18 September 1920, no. 7). 19. The Latvian Provisional National Council was formed following an appeal of the members of the Russian State Duma Jānis Goldmanis and Jānis Zālītis. The Latvian Provisional National Council united for common work the most important self-government and public organizations of the time – the civil delegates of the Vidzeme Land Council, the Latgale Land Council and the Kurzeme Land Council, the Central Committee of the Latvian Refugees in Petrograd, the Committee of Catering for the Baltic Refugees in Riga, the Latgale Assistance Committee for War Victims in Petrograd and Rēzekne, the Riga Agriculture Central Society, the Latvian Farmers Association, the National Democratic Party, the Radical Democratic Party, the Democratic Party, the National Association of Latvian Soldiers and the Vidzeme Land Organizational Committee. The Social Democrats and the Bolshevik organizations (the Executive Committee of the Latvian Workers’, Soldiers’ and Landless Peasants’ Representatives’ Council, the Executive Committee of the Latvian Riflemen’s Representatives’ Council, the Moscow Cultural Bureau, the Landless Peasants’ Congress Executive Committee, the communist wings of the Vidzeme Land Council and the Kurzeme Refugee Congress) refused to work in the Latvian Provisional National Council (see Dunsdorfs E. Kārļa Ulmaņa dzīve. Ceļinieks. Politiķis. Diktators. Moceklis. Riga: Zinātne, 1992, p. 76). Along with the Latvian National Council, the Democratic Bloc was founded and led by the politicians who had remained in the German-occupied Riga, including the social democrats. The Democratic Bloc at the end of 1917 drafted a resolution addressed to the government of Germany, wherein they demanded a republican, neutralized and undivided Latvia in the form of an “interstate autonomy” (see Dunsdorfs E. Kārļa Ulmaņa dzīve, pp. 79‑81). The Latvian People’s Council was formed on the basis of the Latvian Provisional National Council and the Democratic Bloc by uniting the delegated representatives of Latvian political parties. In the Latvian People’s Council the participants were delegates from the Latvian Farmers’ Association, the Latvian Social Democratic Workers’ Party, the Latvian Democratic Party, the Latvian Radical Democratic Party, the Latvian Revolutionary Socialist Party, the National Democratic Party, the Republican Party and the Latvian Independence Party. A certain number of seats was reserved for delegates of minorities and the Latvian regions where no political parties existed at that time, namely Kurzeme and Latgale (Transcript of the Act of Proclamation of the Independence of Latvia, 18 November 1918 by the Latvian People’s Council). 19.1. Latvia, like other new states after World War I, was created in the circumstances of a revolution or a war. In such circumstances “it is impossible to carry out general elections or a formal referendum; therefore public trust organs of a simpler kind are created, committees or councils consisting of delegations of public organizations that, basing themselves on the general public sentiment, take the floor and act on behalf of the people” (Dišlers K. Tautu pašnoteikšanās principa tiesiskais saturs, pp. 128‑129). One of the most important and closest objectives of such temporary organs is “the creation of real nationally authorized organs in the form of an elected national assembly or constitutional assembly which then is entitled to take the final decision on the further political status of the people or to submit this issue to a referendum by the people themselves” (Dišlers K. Tautu pašnoteikšanās principa tiesiskais saturs, p. 129).

19.2. Both the Latvian Provisional National Council and the Latvian People’s Council declared, as one of their primary objectives, convening the Constitutional Assembly as soon as possible to decide on the destiny of Latvia. The Latvian People’s Council already recognized the necessity to summon the Constitutional Assembly which would adopt the Satversme and establish relations with foreign countries already in the Proclamation Act. In the first provisional constitution of the Republic of Latvia – the political platform of the Latvian People’s Council – attention was paid to the issue of the Constitutional Assembly, by indicating that “the Constitutional Assembly of Latvia shall be summoned as soon as possible” (Pagaidu Valdības Vēstnesis, 14 December 1918, no. 1). However, it became possible to elect the Constitutional Assembly of Latvia only on 17 and 18 April 1920 – after the battles of the Latvian war of independence had been fought. On 1 May 1920 the Constitutional Assembly of Latvia started its work. Self-determination of the people of Latvia took place in 1918-1920 in the form of a chain of subsequent events that was initiated by the proclamation of the Republic of Latvia on 18 November 1918 and was concluded by the adoption of the Declaration on the State of Latvia on 27 May 1920 by the Constitutional Assembly of Latvia. At this time the new state of Latvia received a wide support of the society and foreign States, as well as defended its rights to exist as a state in the Freedom battles. One can agree to assessment of a member of the Supreme Council, Rolands Rikards, that “selfdetermination of the Latvian people was carried out in a classical way: first the people of Latvia defended Latvia by armed force in 1919 and at the beginning of 1920. Then it was succeeded by a legal self-determination by means of the Constitutional Assembly. This legal self-determination was expressed in the Declaration of 27 May 1920 on the State of Latvia by the Constitutional Assembly” (Transcript of the evening plenary session of the Supreme Council of the Latvian SSR of 4 May 1990). The need to adopt the Declaration on the State of Latvia was justified by M. Skujenieks: “Still, sometimes groundless objections are made that those persons and parties that declared the independence of Latvia on 18 November 1918 were not authorized to do that. In order to settle any doubts, to make it clear what is the will of Latvian people, this decision must be taken, the representatives elected by the Latvian people must say what Latvia they want to see and construct, and only after making such a decision no one will be able to raise objections that the will of Latvia has not been expressed clearly enough” (Transcript of the 5th meeting of the first session of the Constitutional Assembly of Latvia, 27 May 1920). When adopting the Declaration on the State of Latvia, the Constitutional Assembly elected by the Latvian people accepted on behalf of the Latvian people the work done by the previous institutions regarding the creation of the state of Latvia. II 20. One of the main tasks of the new state was to establish borders with the neighbouring states. Latvia was created by merging into one state all the historically ethnographic regions that were inhabited by the Latvians. Due to this reason, at the moment of the creation of the state of Latvia it was possible to establish the desirable borders of the new state sufficiently clearly.

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20.1. The basis of the desirable borders of the state of Latvia was the external ethnographic borders of the territories inhabited by the Latvians, and they were known. In the official edition of the Latvian Provisional National Council, the following description of the desirable territory of the state of Latvia was given: “The indivisible territory Latvia that shall be unified is – Kurzeme, Vidzeme, Latgale and those border provinces of Kaunas and Pskov [provinces] that are inhabited by Latvians, as well as the Kuronian territory and the Kuronian Spit further than Southern Kurzeme that was given to Prussia” (Ziņas par Latviju. Rakstu krājums, June 1918, no. 4). Whereas a member of the Latvian Provisional National Council, Arvids Bergs, emphasized that “the land or territory of Latvia includes three separate parts – Kurzeme, Vidzeme, i.e. Riga, Valmiera, Cēsis un Valka districts, and Latgale, i.e. Daugavpils, Rēzekne and Ludza districts in the Vitebsk province that are also known as Inflantija” (see: Latvijas valsts pasludināšana 18. novembrī 1918. g. Rakstu vainags H. J. sakopots. Riga: apgādniecība “Astra”, 1918, p. 5). M. Skujenieks expressed a similar opinion: “The ethnographic borders of the Latvian people occasionally do not correspond to the borders of present administrative divisions, although one can state in general terms that Latvians inhabit Kurzeme, the Southern part of Vidzeme (four districts) and Latgale (three districts of the North-Western part of the Vitebsk province). Hence Latvians densely inhabit 17 districts […]. There are places in districts outside these borders where the density of the population of Latvians is high, and the territories of the neighbouring nations elsewhere exceed the borders of districts that fall within the territory of Latvia” (Skujenieks M. Latvija. Zeme un iedzīvotāji. Ar J. Bokaldera nodaļu par lauksaimniecību. Riga: 1920, pp. 1‑2). 20.2. Joining of the Baltic States to international relations was unimaginable without the decisions of the Paris Peace Conference. The authorized delegation of the Latvian Provisional government at the Paris Peace Conference first of all tried to explain the necessity of creation of an independent state of Latvia and to provide information on Latvia to the participants of the Paris Peace Conference. Hence the opinion of Latvia regarding the desirable state borders was most fully reflected in the memorandum composed at the Paris Peace Conference by the Latvian delegation. This Memorandum was submitted to the Baltic Commission of the Paris Peace Conference on 10 June 1919. In the declaration of the Latvian delegation that supplemented the Memorandum a request to recognize a sovereign, independent and indivisible Latvia was included, as well as the basic principle for dealing with the border issues: “The borders that separate Latvia from the neighbouring States – Estonia, Great Russia, Belarus and Lithuania – are to be established on the national-ethnographic basis, with some modifications, if required by economic considerations, to be made, on the basis of mutual compensation. One can state a priori, that the already partially solved border issue will be settled without any difficulties” (Latvijas delegācijas deklarācija, iesniegta Baltijas komisijai Parīzē // Valdības Vēstnesis, 2 August 1919, no. 2). The first part of the memorandum submitted to the Paris Peace Conference by the Latvian delegation is devoted to a description of the territories inhabited by the Latvians: “From ancient times, Latvians inhabit the coastline of the Baltic Sea, beginning from the Ainaži port, along with the seacoast of the Gulf of Riga up to Palanga, which is the furthermost border point between Prussia and Kurzeme.

The Latvians inhabit: In Kurzeme – 27023.3 sq. kilometres, in four districts of Vidzeme (Riga, Cēsis, Valmiera and Valka district) – 22570.9 sq. kilometres and in Latgale in the NorthWestern part of the Vitebsk province – 13704.8 sq. kilometres of territory, which consists of three districts – Daugavpils, Rēzekne and Ludza […]. In general the borders of Latvia coincide with the administrative borders of the provinces and districts of the former Russian state. To the West and partially to the North, the border is the Baltic Sea, particularly, the Gulf of Riga. 519 km of the entire 1777 km border is the maritime border. The Southern border coincides with the administrative borders of Kurzeme. The Eastern border is the administrative border of Ludza district, and in the North – the border of Valka and Valmiera districts, where they meet on Pärnu, Viljandi and Võru districts. In the North, Latvia has Estonia as its neighbour for 308 km; in the East, through the Pskov province Latvia touches Great Russia for 169 km; in the South-East, there is a 177 km border with the Belarus and in the West, there is a 605 km border with Lithuania. The ethnographic borders of Latvia exceed the administrative borders in the following parts: 1) to the North from Ainaži, along the coastline of the Baltic sea for a small territory; 2) to the North from Ope, along the railway Valka-Alūksne-Stukmaņi, where the Jaunroze district is inhabited by Latvians; 3) the Lucenieki parish in the Verova district to the East from Jaunroze is inhabited by Latvians; 4) Latvians inhabit a narrow spit of land in the Pskov province along with the border of Vidzeme, to the East from Baltinava, between the border of the Ludza district and the railway Petrograd-Warsaw, between the railway stations of Korsovka and Pitalovo; 5) Latvians inhabit the Kaunas province in the Aknīši district, that spreads into Kurzeme between the Ilūkste and Jaunjelgava districts; 6) Latvians inhabit the region to the South from Kurzeme, between Mēmele, the district of Jaunjelgava and the corner of the territory where Mūsa enters Kurzeme; 7) the Latvians also inhabit 4 – 9 km wide land strip in the Kaunas province, along the border of Kurzeme between Žagare and Piķele villages; 8) Latvians inhabit the Kuronian spit (Kurische Nehrung) in Prussia, the territory is 40 km long. The ethnographic territories of the neighbouring nations enter the territory of Latvia in the following locations: 1) Estonians inhabit the Northern part of the Valmiera district about 100 sq. kilometres to the North from Mõisaküla; 2) Estonians inhabit the region to the North-East from Valka, in the locality of Liellugaži estate; 3) in the Ilūskte district, the Lithuanians and the Belarussians inhabit the SouthEastern part of the district, the border between Latvians and Lithuanians stretches slightly South from the railway line Daugavpils-Panevežys; 4) Lithuanians inhabit the area of Palanga to the South-West from Kurzeme, although this district is inhabited also by a considerable number of Latvians. The above-mentioned districts cannot cause conflicts between Latvians and the neighbouring nations, since ethnographic borders everywhere are strictly

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drawn and the difference between the ethnographic and administrative borders is negligible. The districts with mixed populations are as follows: 1) Valka, the town located close to the Estonian border and naturally includes the inhabitants of Estonian nationality. However, Valka must belong to the territory of Latvia, because: a) the majority of inhabitants are Latvians; the last census (1897) showed that there were 4453 Latvians and 3594 Estonians in Valka; in 1917, Latvians had the majority of votes in the town elections, which proves the majority of Latvians in the town; b) Valka is the main town of a generally Latvian district (93,2 percent of the total number of the inhabitants); c) Valka is located in a district that has belonged to Latvia from time immemorial, and the adjacent territories are inhabited by Latvians; d) three out of five railways that meet in Valka cut across Latvian territory; e) in 1917, when the government of the Grand Duke Lvov divided the province between Estonians in the North and Latvians in the South, Valka was granted to Latvians, but Latvians and Estonians decided to settle the issue in a referendum when the conditions are more peaceful; 2) along the Eastern border on both sides of the administrative border, districts are inhabited by a mix of Latvians, Belarussians and Great Russians; 3) in the middle of Ilūkste district, there are civil parishes that are inhabited by Latvians and Lithuanians. The state of Latvia is declared within the Latvian ethnographic borders, but in some cases economic considerations and traffic convenience require modifications of some of the ethnographic and administrative borders. Taking it into account, Latvia requests adding to its territory: 1) the station Mažeikio (Murajevo) in the Kaunas province because at this station the Riga, Jelgava, Liepāja and Romni railway lines meet. This is the only railway line that connects Liepāja to the rest of Latvia. By joining to Latvia the Mažeikio station with the piece of the railway up to the border of Kurzeme in the direction of Liepāja and drawing the demarcation line along the neighbouring rivers, a district approximately 90 sq. kilometres large would be joined to Latvia, in which both Latvians and Lithuanians live, but in which Lithuanians are the majority. 2) Pitalovo in the Pskov province needs to be joined to Latvia. It is an area that is located nine kilometres from Latgale. It is an ancient Latvian land, although the majority of the inhabitants here are Russians. Adding of this station to Latvia is necessary because the Latvian railway lines Riga-Ramocki-Sita-Pitalovo and Daugavpils-Rēzekne-Pskov meet here, and if Pitalovo were attached to Russia, the traffic between Vidzeme and Latgale would be interrupted. 3) The railway line Stukmaņi-Alūksne-Valka stretches between Valka and Ope towards the border of Latvia and Estonia, and it is preferable to include this whole strip into the territory of Latvia in order to maintain direct traffic between the South Vidzeme and Valka. 4) The Ruhnu Island in the Riga Gulf has to be joined to Latvia. This island covers 9 sq. kilometres, it is inhabited by 250 Swedes. Since the island is located in the territorial waters of Latvia and the wireless telegraph station and the lighthouse must be at the disposition of the Riga shipping during

winter and spring, it has to be included in the territory of Latvia. This island is included in the Arensburg district. Earlier it was a part of the Riga district or it was attached to Kurzeme, from which it is not far.” (Memorandum on Latvia, presented to the Peace Conference by the Latvian delegation // Valdības Vēstnesis, 1-10 August, 1919, nos. 1-9). 20.3. The political documents produced during the period of creation of the Republic of Latvia and the studies carried out manifest that the founders of the state of Latvia had a clear idea of what territories must be included in the territory of Latvia. The documents of that time testify that the ethnographic borders of the territories inhabited by the Latvian people only in individual cases exceeded the borders of the administrative division of the Baltic districts of the times of the Russian Empire. In all cases the territories that were located outside the borders of the administrative divisions, but were demanded to be incorporated into Latvian territory, are clearly specified. Similarly, these documents also include justification for the fact why the respective territory is necessary for the state of Latvia. However, the neighbouring states, first of all Estonia, Lithuania and Poland, also had certain demands regarding their desirable borders. Therefore Latvia had to agree with these States as well as with the Soviet Russia regarding the state borders, and it had to conclude international treaties on this issue. Even though during the border negotiations all states based themselves on the ethnographic principle as the main grounds for establishing the borders, certain sections of borders were dictated by considerations of economic and historical nature (see: Andersons E. Latvijas vēsture, p. 601). 21. In the framework of this case, it is necessary to investigate the manner how the state border between Latvia and the Soviet Russia was established. The issue of the state border during negotiations was discussed simultaneously with the issue on cessation of war between Latvia and the Soviet Russia and the recognition of the independence of Latvia, as well as the return of refugees and the evacuated material values to Latvia and other important issues. 21.1. Latvia was the third Baltic State to conclude a peace treaty with the Soviet Russia, because the Peace Treaty of Estonia and the Soviet Russia was signed on 2 February 1920, but the Peace Treaty of Lithuania and the Soviet Russia – on 12 July 1920. “Latvia was the third Baltic State that the Soviet Russia recognized as a sovereign republic “for eternity”, and Latvia was the third country in the world that recognized the Soviet Russia” (Andersons E. Latvijas vēsture, p. 582). The border issue in these peace treaties between the Baltic States and the Soviet Russia was one of the most difficult to be dealt with, and it was determined by the historical, as well as international and military situation of the time. The Baltic States feared that the Soviet Russia could attack them, and therefore they tried to gain strategically advantageous defensive positions. A similar concern was felt also by the Soviet Russia. According to the characterization of the situation by a diplomat of the Soviet Russia, Adolf Joffe: “We cannot take into consideration solely the ethnographic principle and the self-determination of the people” […] We need strategic borders that would guarantee our security” (see Stranga A. Ceļā uz mieru. Krievijas – Latvijas 1920. gada 11. augusta miera līgums // Pretstatu cīņā. Latvija 1917. – 1950. Rīga: Avots, 1990, pp. 115‑116). 21.2. To gain an advantage in the negotiations with the Soviet Russia, Latvia carried out a broad military operation before initiation of the negotiations, in the result

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of which Latvia liberated Latgale and reached the ethnographic borders of Latvia. It was necessary for Latgale not to be under the control of the Soviet Russia during the peace negotiations, so that the Soviet Russia could not raise claims to Latgale, which would endanger the creation of a united Latvia (see the transcript of meeting 28 of the first session of the Latvian Constitutional Assembly, 2 September 1920). On 19 January 1920, the President of the Latvian People’s Council, Jānis Čakste, declared in the meeting of the National Council that “the integral part of Latvia, Latgale, has been liberated. This step has been a tremendous success due to our brave army” (Transcript of the first meeting of the seventh session of the Latvian People’s Council, 19 January 1920). The Latvian army during the Latgale deliberation operation captured also the Pitalovo railway station and other parts of the Pskov province. This circumstance during the peace negotiations was the basis for extensive discussions between the representative of the Soviet Russia, A. Joffe, and the representative of Latvia, A. Zēbergs, namely, discussions whether the Latvian army has not violated the declared ethnographic borders. Similarly, the results of this offensive served as the main grounds for the conclusions that certain parts of Pskov province had fallen within the ethnographic borders of Latvia (see: Latvijas atbrīvošanas kara vēsture. II. Rīga: Literatūra, 1938, p. 332). However, in view of the Constitutional Court, in the interpretation of this question one has to use the assessment by Pēteris Radziņš, the chief of staff of the Commanderin-Chief’s headquarters of the Latvian army of that time. General P. Radziņš wrote: “The aim of the operation – to capture and hold the entire territory, which we consider to be inhabited by Latvians. In order to conveniently control and protect the captured territory, the offensive has to be carried out beyond the ethnographic borders. An advantageous line of defence where to stop and consolidate the position is to be found beyond the ethnographic borders of Latvia. […] The defence, stopping line was to be found on the basis of only the military perspective. […] As an advantageous protection line could be considered the Sinyaya River and the adjacent marshes, this means that the centre, the target border is the Sinyaya River; […] Hence: the Osveja Lake, the Sinyaya River and the line of Grivi – Ovisče – Muravina – Kačanovo was determined as the final target of the operation; it was decided to stop at this line” (Radziņš P. Latvijas atbrīvošanas karš. II daļa. Rīga, 1922, pp. 134‑135). Such opinion of the chief of staff of the Commander-in-Chief’s Headquarters of the Latvian army of that time shows that the Latvian Army during the Latgale liberation operation deliberately exceeded the Latvian ethnographic borders. 21.3. Ethnographic, economic and military-strategic considerations formed the basis of the claims raised by Latvia regarding the state border. The headquarters of the Latvian army suggested “to try to achieve that the state border line is established on the nature-formed border line in order to obtain the advantageous conditions not only for the protection of the borders during the peacetime, but also in case of war” (Archive of the History of the State of Latvia, 1313. f. 2. apr. 36. l. p. 316). On the other hand, the instruction of the Latvian government required the delegation of peace negotiations to achieve that “Russia recognizes without reservations the independence, autonomy and sovereignty of the state of Latvia within its ethnographic borders that comprise Kurzeme, the Latvian part of Vidzeme and Latgale”. Similarly, the delegation was required to establish such a border with the Soviet Russia that the ethnographic border of Latgale would be reflected in natural borderlines as far as possible. (see Archive of the History of the State of Latvia, 1313. f. 2. apr. 35. l. p. 2).

During the peace negotiations, the chairman of the delegation, the Deputy Minister of Foreign Affairs, Aurēlijs Zēbergs, when announcing the claims of Latvia regarding the border issue, declared that Latvia had guided itself by ethnographic and economic considerations and consideration that the borders should be as natural and straight as possible (see Mieriņa A. Latvijas valsts robežas (1918–1940) // Latvijas zemju robežas 1000 gados. Rīga: Latvijas vēstures institūta apgāds, 1999, p. 186]. Together with the Daugavpils, Ludza and Rēzekne districts, Latvia also demanded from the Soviet Russia the territory of the Ostrovo (Ostrava) district of the Pskov province with the railway junction in Pitalovo, a small part of the Opočka and Sebeža districts up to the Zeplinka River in the middle part, as well as a small territory in the Drisa district up to the entry of the Sarjanka River in the Daugava River, in the Southern part (see: Mieriņa A. Latvijas valsts robežas, p. 186). The leader of the delegation of the Soviet Russia, A. Joffe, while declaring the rights of all people to self-determination and even complete separation from the State, in the territory of which they are included, still considered that the border line with Latvia has to be established along the administrative border of the Ludza, Rēzekne and Daugavpils districts. A. Joffe stated that the claim of Latvia for the parts of the Ostrovo, Opočka, Sebeža and Drisa district is determined not by ethnographic considerations, since Latvians are in the minority in these regions, but by aggressive and military-strategic objectives, since Latvia wants to establish the borders in its favour in order not to protect itself, but to be able to attack (see: Mieriņa A. Latvijas valsts robežas, p. 187). 21.4. The Cabinet of Ministers in the meeting of 14 May 1920 authorised the Latvian delegation to agree that the border with the Opočka and Sebeža districts would be established not along the Zeplinka River, but along the Ludza River up to the Pitela Lake, as the Soviet Russia wanted (see Mieriņa A. Latvijas valsts robežas, p. 187). On the other hand, the delegation of the Soviet Russia made concessions regarding the issue of the territories of the Ostrova district. As A. Joffe announced in the sixth meeting of the peace negotiations of 27 April 1920: “Russia has made concessions to the economic claims of Latvia regarding the so-called Pitalovo railway junction, which is a region predominantly inhabited by non-Latvians, just like the other disputed areas. Non-incorporation [of the above junction] would cause Latvia such consequences that the Latvian railways would be broken and the railway traffic between separate parts of Latvia would be impossible until the construction of new roads. Guiding by its consistent wish to support the natural needs of self-determined small people in various ways, the Russian government considers that it is possible to make an exception from the principle of self-determination and to concede this part of its territory” (see the Archive of the History of the State of Latvia, 1313. f. 2. apr. 35. l. p. 42). When justifying this position, A. Joffe also quoted the Memorandum of the Latvian delegation for the Paris Peace Conference, where the claim for the incorporation of the Pitalovo railway station into Latvia was related to economic considerations. A. Zēbergs did not object to such jusitification of A. Joffe for leaving a part of the Ostrovo district to Latvia (see the Archive of the History of the State of Latvia, 1313. f. 2. apr. 35. l. p. 42). The most extensive discussions during the peace negotiations were caused by the claims of Latvia to a part of the Drisa district. The final agreement regarding this issue was achieved only on 9 August 1920, namely, the smallest Western part of the district was joined to Latvia, while the largest part in the East was preserved by

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Russia. The Pokrovo parish of the Ostrovo district was given to Latvia as compensation for conceding the Drisa question (see Mieriņa A. Latvijas valsts robežas, p. 188). The Peace Treaty was signed in Riga on 11 August 1920. “The Latvian-Russian border that existed after […] the Peace Treaty was established not only according to the ethnographic principle, but also the economic factor was taken into consideration, and this was a relevant circumstance when Latvia separated itself from the previous single economic body of Russia” (Stranga A. Ceļā uz mieru, pp. 118‑119). 21.5. During the discussions on the ratification of the Peace Treaty in the Latvian Constitutional Assembly, the rapporteur F. Menders emphasized that: “In my opinion and according to a unanimous conclusion of the commission of foreign affairs, one could not conclude a more advantageous treaty on 11 August. […] Article 3 establishes borders that in general coincide with the ethnographic borders of Latvia and includes some other important railway junctions, for example, Pitalovo” (Transcript of the 28th meeting of the first session of the Latvian Constitutional Assembly, 2 September 1920). The Peace Treaty was similarly assessed by Fēlikss Cielēns regarding the state borders: “The state of Russia recognizes the principle of self-determination of the people in respect of Latvia. The recognition of this principle manifests itself through the recognition of Latvia de iure and the recognition of that territory of the state of Latvia which coincides with the national territory of the Latvian people. […] The Peace Treaty in this respect is very advantageous because it assigns to us even territories that are not inhabited mainly by Latvians, such as the Pitalovo district and the territory in the Vitebsk province, the Drisa district” (Transcript of the 28th meeting of the first session of the Latvian Constitutional Assembly, 2 September 1920). The National Commissar of Foreign Affairs of the Soviet Russia, Georgy Chicherin, in the meeting of the All-Russian Central Executive Committee on 17 June 1920, when reporting on the peace negotiations with Latvia, indicated that the Soviet Russia, under the ethnographic principle, held that the State border must coincide with the administrative borders of the Ludza, Rēzekne and Daugavpils districts. Taking into account the economic needs of Latvia regarding the railway traffic, the Soviet Russia agreed that the Pitalovo railway junction is to be incorporated into Latvia (see the opinion of K. Počs, the case materials, vol. 10, pp. 130‑131). One can conclude that Latvia in the negotiations with the Soviet Russia achieved a favourable demarcation of the state border by acquiring a part of the Ostrovo district of the Pskov province and a part of the Drisa district of the Vitebsk province in addition to the Ludza, Rēzekne and Daugavpils districts of the Vitebsk province. 21.6. When assessing the Peace Treaty, the issue of whether the borders established therein comprise all the territories inhabited by Latvians in the East was rather widely discussed. Professor Edgars Dunsdorfs held that the Latvian Eastern border in general coincided with the ethnographic border inhabited by Latvians (see: Dunsdorfs E. Vai Latvijas austrumu robeža bija pareizi noteikta? // Laika Mēnešraksts, 1955, Nr. 3, pp. 87‑89; Dunsdorfs E. Drauds Latgales vēsturei // Laika Mēnešraksts, 1956, Nr. 2, pp. 60‑61). Other authors expressed the view that the Latvian border had been drawn and that it had been necessary to establish it even further to the East (see: Stalšans K. Latvijas robeža austrumos // Latvju Žurnāls, 1952, Nr. 11, pp. 1‑2; Rupainis A. Patiesība nenoveco // Laika Mēnešraksts, 1955, Nr. 8, pp. 251‑253; Puisāns T. Latvijas austrumu robežas jautājums // Dzimtenes kalendārs 1986. gadam, pp. 92‑104). On the other hand, professor Edgars Andersons, when assessing the state border with the Soviet Russia, has concluded: “The established border included

some entirely Russian districts but a further border would have included even more territories inhabited by Russians. Castle mounds of the ancient Latvians could not make the inhabitants more Latvian. One had to take into consideration the real circumstances.” (Andersons E. Latvijas vēsture, pp. 582‑583). The Minister of Foreign Affairs of the Republic of Latvia, Z. A. Meierovics made the most apt comment about the objection that some more territories inhabited by Latvians had been left beyond the Eastern border without reason: “The ethnographic principle is fully observed” because “one could not insist that all colonists would be included, because then the colonists who live in Russia and Siberia would have to be included as well” (Transcript of the 28th meeting of the first session of the Latvian Constitutional Assembly, 2 September 1920). 21.7. With the Peace Treaty Latvia, in addition to the Ludza, Rēzekne and Daugavpils districts of the Vitebsk province, also acquired the Piedruja and Paustiņa (later – Robežnieku) parishes of Drisa district of the Vitebsk province, as well as three parishes of the Ostrovo district of the Pskov province – the Višgoroda, Tolkova and Porkova (later – Kačanova) parishes (see: Mieriņa A. Latvijas valsts robežas, p. 193). The Višgoroda, Tolkova and Pokrova parishes were incorporated into the Ludza district, whereas the Piedruja and Pustiņa parishes – into the Daugavpils district. The Tolkova, Višgoroda and Kacēnu (Kačanovas) parishes were divided in six parishes – the Linvava, Purvmala, Augšpils, Gauru, Kacēnu and Upmale parishes (see: Mieriņa A. Latvijas administratīvais iedalījums (1918 – 1940) // Latvijas zemju robežas 1000 gados. Rīga: Latvijas vēstures institūta apgāds, 1999, pp. 224‑225). By the Law on Territorial Division of Latvia into Districts of 26 June 1924, the Jaunlatgale (Pitalovo) district was established, and it included the Augšpils (Višgoroda), Gauri, Linava (Tolkova) and Kacēnu (Pokrova, later – Kačanova) parishes from the former Ostrova district of the Pskov province, and the Baltinava, Balvi, Domopole (Bērzpils), Kokareva (Tilža), Liepna, Rugāji and Viļaka parishes from the former Ludza district of the Vitebsk province (see: Mieriņa A. Latvijas administratīvais iedalījums, p. 217). Jaunlatgale on 9 June 1933 was conferred the rights of a town, whereas on 1 April 1938 it was renamed as Abrene (see: Mieriņa A. Latvijas administratīvais iedalījums, p. 229). III 22. On 23 August 1939 the Chairman of the USSR People’s Commissars’ Council and the People’s Commissar of Foreign Affairs, Vyacheslav Molotov, and the Minister of Foreign Affairs of Germany, Joachim von Ribbentrop, signed the Treaty of NonAggression Treaty between Germany and the USSR. A secret additional protocol was attached to the Non-Aggression Treaty. The text of the secret protocol shows that the authorized representatives of both states discussed the issues “of separating the spheres of interests of both parties” and “territorially political rearrangements” in the Eastern Europe. According to it, the territory of the state of Latvia was included in the sphere of interest of the USSR. 22.1. Germany recognized the Molotov-Ribbentrop Pact as void on 1 September 1989 (see: Loeber D. A. Legal Consequences of the Molotov – Ribbentrop Pact for the Baltic States on the Obligation “to Overcome the Problems Inherited from the Past” // Baltic Yearbook of International Law. Volume 1, 2001. The Hague / London / New York: Kluwer Law International, 2002, p. 131). On 24 December

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1989, the Second USSR People’s Representatives’ Congress passed a resolution “On the Political and Legal Assessment of the Treaty of Non-Aggression of Germany and USSR of 1939”. In this resolution, the Congress established that in the secret protocol of 23 August 1939 a separation of the “spheres of interests” between the USSR and Germany and other activities that, “from the legal point of view, were in conflict with sovereignty and independence of several third states” were established. The Congress noted that at that time “the relations of the USSR with Latvia, Lithuania and Estonia were regulated by a system of treaties. According to the peace treaties of 1920 and the non-aggression treaties concluded between 1926 and 1933 the parties undertook in all conditions to mutually respect the sovereignty and territorial integrity and inviolability of one another”. Taking this into account, the Congress disapproved of the fact that a “secret additional protocol” was signed with Germany, and recognized this protocol as legally unfounded and invalid as of the day of its signing. It was indicated in the resolution of the Congress that the “protocols did not create any new legal basis for the mutual relations of the Soviet Union with the third states, however Stalin and his confederates relied on them in order to present ultimatums to other states and to pressure them with force, hence violating the legal obligations it owed to them” (Второй съезд народных депутатов СССР. Стенографический отчет. Том IV. Москва, 1990. c. 612‑614). Alexander Yakovlev, the chairman of the commission that prepared the draft of the above-mentioned resolution of the People’s Representatives’ Congress indicated in his report to the Congress: for Joseph Stalin “[t]he main motivation [to conclude the Non-Aggression Treaty] was not the treaty itself, but the issue that became the subject of the secret protocol, namely, the possibility to bring armed forces into the Baltic States, Poland and Bessarabia, and potentially even into Finland. In other words, the main motivation drew from the imperial ambitions” (Второй съезд народных депутатов СССР, c. 269). The Commission lead by A. Yakovlev concluded it its resolution that J. Stalin used ultimatums and threats especially in relation to small neighbouring states (see Второй съезд народных депутатов СССР, c. 271). With this resolution the USSR recognized that in 1940 it had violated the treaties concluded between the USSR and these States. 22.2. The President of the Russian Federation Vladimir Putin has repeatedly explained that the question regarding the Molotov-Ribbentrop Pact has been considered in the resolution of the USSR People’s Representatives’ Congress. Russia considers this question as decided and does not intend to return to it (see, e.g., Кузьмин В. Саммит Россия – ЕС завершился // Российская газета, №3766 от 11 мая 2005 г.). V. Putin as the President of Russia ex officio expresses the viewpoint of Russia in matters of international law (see ILC 2006 Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating Legal Obligations, with Commentaries Thereto // Yearbook of the International Law Commission, 2006, vol. II, Part Two, http:// untreaty.un.org/ilc/texts/instruments/english/commentaries/9_9_2006.pd, p. 372, Principle 4). Moreover, the opinion expressed by the USSR People’s Representatives’ Congress regarding the unlawfulness of the consequences of the Molotov-Ribbentrop Pact is binding also on the Russian Federation as the successor of the USSR (see: Ziemele I. State Continuity and Nationality: the Baltic States and Russia: Past, Present and Future as Defined by International Law. Leiden: Martinus Nijhoff Publishers,

2005, pp. 45‑62, 66‑68, 69, 72‑75, 82‑84, 87, 90, 92‑94; Crawford J. Creation of States in International Law. 2nd ed. Oxford: Oxford University Press, 2006, p. 671). 22.3. A similar assessment regarding the Molotov-Ribbentrop Pact was given by the European Court of Human Rights: “On 23 August 1939 the foreign ministers of Germany and the Union of the Soviet Socialist Republics (“USSR”) signed a non-aggression treaty (the “Molotov-Ribbentrop Pact”). The treaty included a secret additional protocol, approved on 23 August 1939 and amended on 28 September 1939, whereby Germany and the Soviet Union agreed to settle the map of their “spheres of influence” in the event of a future “territorial and political rearrangement” on the territories of the then-independent countries of central and eastern Europe, including the three Baltic States of Lithuania, Latvia and Estonia. After Germany’s invasion of Poland on 1 September 1939 and the subsequent start of World War II, the Soviet Union began exerting considerable pressure on the governments of the Baltic States with a view to taking control of those countries pursuant to the Molotov-Ribbentrop Pact and its additional protocol. (Ždanoka v. Latvia [GC], no. 58278/00, para. 12, ECHR 2006). The European Court of Human Rights has made similar conclusion in other cases as well (see Kolk and Kislyiy v. Estonia, app. nos. 23052/04 and 24018/04, ECHR, decision, 17.01.2006; Penart v. Estonia, app. no. 14685/04, ECHR, decision, 24.01.2006). 23. Inclusion of the Baltic states into the “sphere of interests” of the USSR began by conclusion of mutual assistance pacts (see Strods H. Latvijas okupācijas pirmais posms (1939. gada 23. augusts – 1940. gada sākums) // Latvijas Vēsturnieku komisijas raksti. Vol 10. Okupācijas režīmi Latvijā 1940.–1959. gadā. Second edition. Rīga: Latvijas vēstures institūta apgāds, 2007, pp. 13‑87). 23.1. Latvia concluded such a pact (hereinafter – the Assistance Pact) on 5 October 1939. Under Article 3 of the Assistance Pact the Republic of Latvia agreed to the deployment of USSR army in its territory, namely: “The Republic of Latvia, with the view to ensure the security of the Soviet Union and to strengthen its own independence, gives the right to the USSR to establish military navy bases in Liepāja and Ventspils, as well as some airfields for aviation on lease for a price to be agreed upon. […] For the purpose of protection of the Irbe sea narrows, the USSR shall have the right to establish a military artillery base on the seashore between Ventspils and Pitrags on the same conditions. For the purpose of protection of the navy bases, airfields and the coastal artillery base, the USSR shall have the right to hold a strictly limited amount of Soviet armed land and air forces in the districts provided for these bases and airfields on its own expense.” 23.2. Negotiations on the deployment within Latvian territory of the USSR bases of armed forces began on 2 October 1939. On 28 September 1939 an agreement of a similar content had already been concluded with Estonia. During the negotiations on the conclusion of the Assistance Act, J. Stalin, when commenting upon the independence of Latvia recognized in the Peace Treaty, announced to the Minister of Foreign Affairs of Latvia, Vilhelms Munters: “What was established in 1920 cannot last forever. Already Peter the Great took care of an exit to the sea. Now we do not have the exit, and the situation as it is now cannot last” (Архив Внешней политики России, ф. 38д., оп. 1, c. 30‑31. Quoted from: Gore I., Stranga A. Latvija: neatkarības mijkrēslis. Okupācija. 1939. gada septembris – 1940. gada jūlijs. Rīga: izdevniecība „Izglītība”,

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1992, p. 19). Similarly, J. Stalin implicitly referred to the Molotov-Ribbentrop Pact, indicating that Germany would not object if the USSR occupies Latvia (Архив Внешней политики России, ф. 38-д., оп. 1, c. 30-31. Quoted from: Gore I., Stranga A. Latvija: neatkarības mijkrēslis, p. 19). At first the USSR People’s Commissar of Foreign Affairs, V. Molotov demanded consent to the fact that there would be 50 000 men located in the Soviet military bases in the territory of Latvia, i.e. twice as many men as in the whole army of Latvia of that time. The Latvian government was given 48 hours to give an answer, and it was informed that otherwise the USSR “shall make responsible steps” (Архив Внешней политики России, ф. 38-д., оп. 1, c. 30-31. Quoted from: Gore I., Stranga A. Latvija: neatkarības mijkrēslis, p. 19). It follows from the context of the negotiations that such steps would mean aggression against the state of Latvia (see Marek K. Identity and Continuity of States in Public International Law. Geneve: Librairie E. Droz, 1954, pp. 376-377). The Cabinet of Ministers of the Republic of Latvia agreed to the demands of the USSR government. The ambassador of Latvia in Brussels, Miķelis Valters in his letter of 20 January 1940 to K. Ulmanis wrote: “The act of 5 October cannot be regarded as a free treaty […] it is imposed, and hence immoral […] if we cannot say it, then we should at least keep silent and not praise it” (see: Gore I., Stranga A. Latvija: neatkarības mijkrēslis, 28, p. 261). 24. Existence of the state of Latvia de facto was stopped by the USSR in the summer of 1940. Simultaneously, the statehood of Estonia and Lithuania was also de facto stopped. Following very similar procedures, the Baltic States were unlawfully transformed into Soviet Socialist Republics and included in the USSR as united republics. Within the framework of this case, it is necessary to evaluate the compliance of these events with international law. First, it is necessary to identify the international obligations that the USSR had undertaken towards Latvia. Second, it is necessary to establish the development of the actual events. Third, it is necessary to consider the compliance of the acts of the USSR with its international obligations. In order to conclude that the USSR has acted in breach of its international obligations, it is necessary to prove that, first, the respective acts are attributable to the USSR and, second, that these acts are in breach of the international obligations of the USSR (see: Ago R. Le délit international // 68 Recueil des Cours de l’Académie de Droit International, 1939, pp. 450 et seq., ILC 2001 Articles on Responsibility of States for Internationally Wrongful Acts, Yearbook of the International Law Commission, 2001, vol. II, Part Two // http://untreaty.un.org/ilc/texts/instruments/ english/commentaries/9_6_2001.pdf, Article 2, pp. 68‑74). Since the respective acts were carried by organs of the USSR, they are to attributable to the USSR according to the International Law Commission’s 2001 Articles on State Responsibility, which reflect the content of customary international law both at the present moment and in 1940 (see: ILC 2001 Articles, Article 4, pp. 88‑92). Consequently, the Constitutional Court has to only consider the question regarding the content of the international obligations and the existence of breaches thereof. 24.1. When considering international obligations that existed between the USSR and Latvia in 1940, they must be divided into several groups.

By Article 2 of the Peace Treaty Russia recognized the independence, autonomy and sovereignty of the state of Latvia and it voluntarily and for eternity waived all sovereign rights to the territory of Latvia. By Kellogg-Brian Pact, the Non-Aggression Treaty and the London Convention, the USSR had undertaken an obligation not to exercise aggression against Latvia. The respective international agreements also provided for an analogous international obligation of Latvia. Prohibition of the use of force also existed in the pre-war customary international law (see: Brownlie I. International Law and the Use of Force by States. Oxford: Clarendon Press, 1963, pp. 108‑111). A similar obligation also followed from the Convention on Conciliation of 1932 that was binding on both parties. By Article 5 of the Assistance Pact the USSR had undertaken obligation not to interfere with the internal affairs of Latvia in connection with the fulfilment of this treaty. The relations of the USSR and Latvia were also governed by the Hague Convention of 18 October 1907, which, according to the Nuremberg Tribunal, at least from 1939 defined the norms of customary international law (see http://www.yale.edu/lawweb/ avalon/imt/proc/judlawre.htm). This view has also been accepted by the International Court of Justice in its advisory opinion on the Legality of Threat or Use of Nuclear Weapons (see Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, pp. 226, 258, para. 80). An obligation not annex states as a result of unlawful use of force also followed from the customary international law of the time (see: Crawford J. Creation of States, p. 689). 24.2. On 16 June 1940 V. Molotov submitted an announcement of the USSR government to the Latvian government to the ambassador of Latvia in the USSR, Fricis Kociņš. It said: „On the basis of the factual material available to the Soviet government and also on the basis of the exchange of opinions which has taken place lately in Moscow between the chairman of the USSR People’s Commissars’ Council, Molotov, and the Prime Minister of Lithuania, Merkis, the Soviet government considers it as a given that the Latvian government not only has not abolished the military alliance with Estonia that had been established before the signing of the Soviet-Latvian Mutual Assistance Pact and that is directed against the USSR, but has even extended it by involving Lithuania in this union, as well as by attempting to involve Finland. Until the conclusion of the Soviet-Latvian Mutual Assistance Pact in autumn of 1939, the Soviet government could close its eyes to the existence of such a military alliance, even though it was effectively in conflict with earlier Non-Aggression Pact concluded between the USSR and Latvia. But, after concluding the Soviet-Latvian Mutual Assistance Pact, the Soviet government considers the existence of a military alliance between Latvia, Lithuania and Estonia that is directed against the USSR not only as impermissible and insufferable, but also as deeply dangerous and threatening to the safety of the USSR borders. The Soviet government had assumed that after concluding the Soviet-Latvian Mutual Assistance Pact Latvia would withdraw from the military alliance with the other Baltic States and thus this military alliance would be eliminated. However, Latvia together with the other Baltic states has worked at reviving and expanding of the above-mentioned alliance, which is evidenced by such facts as convening of two secret conferences of the three Baltic States in December of 1939 and March of 1940 in order to formally establish an expanded military alliance with Estonia and Lithuania;

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an expansion in the contacts between the general headquarters of Latvia, Lithuania and Estonia, which is carried out in secret from the USSR; a formation of a special press organ of the Baltic Military Entente in February of 1940 – “Revue Baltique” that is published in Tallinn in the English, French and German languages, etc. All these facts manifest that the Latvian government has blatantly breached the Soviet-Latvian Mutual Assistance Pact that prohibits both parties “to enter into any alliances or participate in coalitions that are directed against one of the contracting parties” (Article 4 of the Pact). This blatant breach of the Soviet-Latvian Mutual Assistance Pact by Latvia takes place at the time when the Soviet Union has practised and continues practicing favourable, clearly pro-Latvian policy by scrupulously meeting all the requirements of the Soviet-Latvian Mutual Assistance Pact. The Soviet government holds that it cannot permit such a situation to continue. The USSR government considers the following things to be fully indispensable and urgent: 1) an immediate formation of such a government of Latvia that would be able and ready to ensure an honest implementation of the Soviet-Latvian Mutual Assistance Pact; 2) an immediate guarantee of free entrance of Soviet military forces into the territory of Latvia so that they could be located in the most important centres of Latvia in numbers sufficient to ensure the possibility for the implementation of the Soviet-Latvian Mutual Assistance Pact and prevent possible provocative acts against the Soviet garrison in Latvia. The Soviet government considers the fulfilment of these demands to be an elementary requirement, without which it is impossible to achieve an honest and loyal implementation of the Soviet-Latvian Mutual Assistance Pact. The Soviet government will wait for the response of the Latvian government until 16 June, 11:00 PM. The failure to send an answer until this deadline shall be considered as a refusal to meet the above-mentioned demands of the USSR” (Полпреды сообщают. Сборник документов об отношениях СССР с Латвией, Литвой и Эстонией, август 1939 г. – август 1940 г. Москва: Международные отношения, 1990, с. 386‑387. Quoted from: Latvijas okupācija un aneksija. 1939 – 1940. Dokumenti un materiāli. Sastādījuši I. Grava-Kreituse, I. Feldmanis, J. Goldmanis un A. Stranga. Rīga: Preses nams, 1995, pp. 340‑342). The statement of the USSR government is to be qualified as an ultimatum. Under international law an ultimatum is defined as a unilateral statement, by which one state makes demands to another state by unequivocally threatening with certain consequences in the event if the demands are not complied with in within the indicated deadline. In the announcement of the USSR government the possible consequences are not specifically indicated, however, the demand to allow the entry of armed forces suggests that in case of a refusal the troops would cross the Latvian border by force (see Lēbers D. A. Latvijas valsts bojāeja 1940. gadā. Starptautiski tiesiskie aspekti // Latvijas valsts atjaunošana. 1986–1993. Rīga: Fonds Latvijas Vēsture, 1998, p. 10). 24.3. The Cabinet of Ministers at its meeting of 16 June 1940 which started at 7:00 PM, heard the report of the Minister of Foreign Affairs of the Republic of Latvia V. Munters “on the ultimatum that the Chairman of the USSR Commissars’ Council submitted to the Ambassador of Latvia in Moscow on 16 June 1940, at 2:00 PM (1:00 PM Latvian time)”. After discussions, the Cabinet of Ministers decided “to accept

the demand of the Soviet Union’s government on allowing the deployment of additional armed contingent in Latvia” and “to notify the President of the State on the resignation of the Cabinet of Ministers and to consider this decision as having been immediately reported to the President of the State, Kārlis Ulmanis” (Latvijas Republikas Ministru kabineta sēžu protokoli: 1940. gada 16. jūnijs – 19. jūlijs. Sastādījuši un komentējuši I. Šneidere, A. Žvinklis. Rīga: Zinātne, 1991, p. 9). 24.4. On 16 June 1940 at 7:45 PM F. Kociņš informed V. Molotov about the consent of the Latvian government (see Gore I., Stranga A. Latvija: neatkarības mijkrēslis, pp. 115‑117). On 17 June 1940 at 5:00 AM the USSR troops began crossing the Latvian border. The troops reached the centre of Riga on 17 June at 1:30 PM. In the evening of 17 June the representative of the USSR government Andrey Vishinsky departed for Riga (see: Gore I., Stranga A. Latvija: neatkarības mijkrēslis, pp. 122‑134). 24.5. A new government acceptable to the USSR was formed on 21 June 1940 under the leadership of professor Augusts Kirhenšteins. On 19 June 1940 A. Vishinsky during a meeting with the President of the state K. Ulmanis presented to him a list of members of this government (see: Dunsdorfs E. Kārļa Ulmaņa dzīve, p. 326). A. Bergs included in the entry of 22 June 1940 in his diary an assessment of the process of formation of A. Kirhenšteins’s government: “The Sov. Russian official Vishinsky arrived in Riga together with the troops of the Sov. Russia. […] Hence the negotiations with Ulmanis regarding the formation of the new government were initiated. […] the new cabinet will be nothing but a toy in the hands of the communists. […] the intention is broadly clear: a constitution, certainly, with a communist flavour, elections, certainly, under the communist terror and then “lawful” decisions on joining the Sov. Russia and introducing communism. This then, is the new programme and the prospects it holds for us!” (Lasmanis U. Arveds Bergs. Politiskas apceres. Ceturtā grāmata. 1934–1941. Neizsūtīta trimdinieka piezīmes. Pēdējais vārds. Rīga: autora izdevums, 2000, p. 318). 25. Deployment of the USSR troops in the territory of Latvia on 17 June 1940 is to be considered as an aggression carried out by the USSR against the state of Latvia (see Šneidere I. The Occupation of Latvia in June 1940: A Few Aspects of the Technology of Soviet Aggression // Latvijas Vēsturnieku komisijas raksti. 14. sējums. The Hidden and Forbidden History of Latvia under Soviet and Nazi Occupations 1940‑1991. Second edition. Rīga: Latvijas vēstures institūta apgāds, 2007, pp. 43‑52). 25.1. The London Convention contains the most elaborate and detailed definition of aggression that is also binding on the USSR, and therefore the Constitutional Court will proceed on its basis (see Brownlie I. International Law and the Use of Force by States, p. 103). The London Convention was one of the international treaties that was part of the system of international law established after the First World War the aim of which was to prevent international armed conflicts. According to Article II(2) of the London Convention, the aggressor in an international conflict, with due considerations to the agreement existing between the parties involved in that conflict, will be considered the state which will be the first to commit invasion by armed forces, even without a declaration of war, of the territory of another state. Article III of the London Convention prohibited the use of any political, military, economic considerations or considerations of any other nature to justify aggression. In the Annex to the London Convention the States, when explaining Article III thereof, have enumerated the reasons

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that cannot justify aggression (see Convention Defining Aggression // American Journal of International Law Supplement, 1933, pp. 192‑194). Latvia and the USSR, by the Non-Aggression Treaty, had undertaken the obligations “to refrain from any act of aggression by one against the other, and also from any violent actions directed against the integrity or inviolability of the territory or against the political independence of the other contracting party, irrespective whether such an attack or action is undertaken separately or jointly with other powers, with or without declaring war (Law on the Association of Latvia and the USSR Treaty Concluded in Riga, on 5 February 1932 // Valdības Vēstnesis, 5 July 1932, no. 146). Under Article 1 of the Convention of Conciliation, the contracting parties undertook “to settle disputes by means of conciliation in the Court of Conciliation and Arbitration”, including disputes regarding the fulfilment of agreements. 25.2. In order to assess the deployment of the USSR troops in Latvia on 17 June 1940, it is necessary to assess the reasons indicated in the ultimatum of the USSR government for the deployment of additional military contingent in the territory of Latvia and the consent of the Latvian government to this act of the USSR. One also has to take into account the fact that the USSR did not declare war with Latvia, and that after the deployment of the USSR troops no armed conflict began. 25.3. The USSR ultimatum of 16 June 1940 states the reasons that make it necessary for the additional USSR military contingent to be deployed and a USSRfriendly government to be created, and the most important reason is this: Latvia has, far from not eliminating the military alliance with Estonia, actually extended it by attracting Lithuania and Finland. USSR considered such acts to be blatant breaches of Article 4 of the Assistance Pact. The norms of international law binding on Latvia and the USSR on 16 June 1940 – Article III of the London Convention and the Annex thereof – expressis verbis precluded justifying acts of aggression by reasons indicated in the ultimatum. Article III of the London Convention precludes the justification of aggression by considerations of political or military nature. The Annex of the London Convention states that aggression cannot be justified by conflicts in the sphere of economic, financial or other obligations. Even without considering the factual correctness of the matters mentioned in the ultimatum, the Constitutional Court concludes that the international obligations of the USSR expressis verbis excluded the possibility to use these arguments as a legal justification of the aggression. In the 1934 Budapest Articles of the International Law Association it was expressis verbis indicated that “the state that threatens to use armed force[,] is responsible for a breach of the” Kellogg‑Brian Pact. 25.4. The USSR army entered the territory of Latvia without a formal declaration of war. Under the norms of international law binding upon the USSR at the time, a declaration of war was no longer a mandatory requirement for finding a fact of aggression. Article II of the London Convention expressis verbis defined aggression as invasion of armed forces without a declaration of war. Similarly, Article 1 of the NonAggression Pact prohibited the states to attack one another with or without a declaration of war. The Constitutional Court concludes that a declaration of war in the particular conditions would have been a sufficient, but not a sine qua non element for concluding that there has been aggression.

25.5. The Latvian government on 16 June 1940 accepted the ultimatum of the USSR government and decided not to resist. When the USSR army entered Latvia, no direct military conflict took place and there were no large-scale armed clashes. However, when applying the rules of international law to the conduct of the USSR against the Baltic States, one has to take into account the general propositions regarding the content of international law rules during the Second World War expressed by the Nuremberg Tribunal, where also representatives of the USSR participated as prosecutors and judges (see the opinion of D. Žalimas in vol. 10 of the case materials, p. 223). The Constitutional Court considers it permissible to apply in this case the legal propositions enunciated by the Nuremberg Tribunal, even though the Tribunal dealt with individual criminal responsibility while the Constitutional Court analyses the state responsibility of USSR. The scope of aggression as an international crime committed by an individual is either identical to the scope of aggression as a wrongful act committed by a state or narrower than that, but it would be difficult to imagine the converse situation, namely, that an act that calls for individual responsibility in this sphere would be broader than the one that calls for state responsibility. For these reasons, the judgment of the Nuremberg Tribunal is mutatis mutandis or even a fortiori applicable to this situation. Considering the conduct of the USSR against the Baltic States, one has to consider the fact that in 1938 Germany annexed Austria and part of Czechoslovakia in a similar manner, achieving the subjugation of these states with threats but without an open military conflict. The Constitutional Court concludes that the Nuremberg Tribunal has recognised that at least since 1938 a rule of international law of such a content exists, because it assessed the conduct of Germany according to this rule. The Nuremberg Tribunal recognised that Germany had carried out acts of aggression against the above-mentioned States, even though no military conflicts took place between Germany and Austria and between Germany and Czechoslovakia. The Nuremberg Tribunal stated: “It was contended before the Tribunal that the annexation of Austria was justified by the strong desire expressed in many quarters for the union of Austria and Germany; that there were many matters in common between the two peoples that made this union desirable; and that in the result the object was achieved without bloodshed. These matters, even if true, are really immaterial for the facts plainly prove that the methods employed to achieve the object were those of an aggressor. The ultimate factor was the armed might of Germany ready to be used if any resistance was encountered.” (International Military Tribunal for the Trial of German Major War Criminals judgement of 1 October 1946 // American Journal of International Law, vol. 41, 1947, pp. 192‑194). Moreover, majority of the inhabitants of Latvia did not wish Latvia to be annexed by USSR (see: Note of K. Zarins, Latvian Envoy in London, Protesting against the Incorporation of Latvia into U.S.S.R. as being Unconstitutional and Illegal // Latvian – Russian Relations. Documents. Second printing. Lincoln: Augstums Printing Service, Inc., 1978, pp. 209‑210). The Tribunal in the case U.S. against Ernst von Weizsaëcker et al stated: “The evidence with respect to both Austria and Czechoslovakia indicates that the invasions were hostile and aggressive. […] It is not reasonable to assume that an act of war, in the nature of an invasion, whereby conquest and plunder are achieved without resistance, is to be given more favourable consideration than a similar invasion which may have met with some military resistance. The fact that the aggressor was here able to

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so overawe the invaded countries does not detract in the slightest from the enormity of the aggression, in reality perpetrated.” (Trials of War Criminals before the Nuremberg Military Tribunals. United States Government Printing Office, also Judgement, 11-13 April 1949, vol. XIV, p. 330). Taking into account this practice, it is possible to conclude that lack of resistance to the invasion of another state does not necessarily mean that no such invasion has taken place. In the case of Latvia, one should still take into account that armed clashes also took place. On 15 June 1940, in provocation of the Latvian government, the USSR border guards attacked the second and the third troop of the 3rd Abrene Battalion, which is known as the so-called Masļenki incident (see Feldmanis I. Molotova – Ribentropa pakts un Latvija // Latvijas Vēsturnieku komisijas raksti. 1. sējums. Latvija Otrajā pasaules karā. Otrais izdevums. Rīga: Latvijas vēstures institūta apgāds, 2007, pp. 29‑30). Latvian border guards and members of their family were killed while protecting the Latvian border. The USSR border guards took as hostages from Masļenki district 10 border guards and 27 private parsons (see: Gore I., Stranga A. Latvija: neatkarības mijkrēslis, pp. 112‑113). These conflicts clearly characterize the generally aggressive legal and factual context of the deployment of the USSR army. 25.6. On 16 June 1940 the Latvian government agreed to the deployment of USSR troops in the territory of Latvia. When considering the international legality of the events of 1940, the legal nature of this consent is the most important and decisive question. The presence of armed forces in the territory of another state is one of the many concepts of international law that are in principle unlawful but that can be consented to by states. A valid consent by one state to an act by another state precludes the wrongfulness of that act in relation to the former state to the extent that the act remains within the limits of that consent (see Yearbook of the International Law Commission, 2001, vol. II, Part Two // http://untreaty.un.org/ilc/texts/instruments/ english/commentaries/9_6_2001.pdf, pp. 173‑174). Deploying armed forces of one state in a territory of another state is a common practice often dealt with in international treaties in contemporary international law, created after ad hoc agreements of the parties or according to a UN mandate. If a State has not given consent or if the given consent is for some reason not valid under international law (invalidity of an international treaty, consent due to duress, consent given by de facto non-existent government), the deployment of armed forces in the territory of another state is a breach of rules of international law. Consent of one state to an act of another state must be such as to be regarded as valid. One has to take into consideration that the validity of consent is excluded by duress or other similar circumstances. To justify this thesis, the UN International Law Commission referred to the consent Austria gave to the Anschluss of 1938 that was considered by the Nuremberg Tribunal. In its judgment the Tribunal disagreed that Austria had given consent, and declared that even had such a consent been given, it would have been a result of a threat and would not justify the annexation (see Yearbook of the International Law Commission, 2001, vol. II, Part Two // http:// untreaty.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf, pp. 173‑174). In international legal doctrine, it is also recognized that the refusal of Czechoslovakia from its independence in 1939 had taken place as a result of duress and threats and it was not valid within the meaning of international law (see Guggenheim P. La validité et la nullité des actes juridiques internationaux // 74 Recueil des Cours de

l’Académie de Droit International, 1949, p. 209). Assessment that the international law has given to the actions of the Nazi Germany can be mutatis mutandis applied also when considering the actions of the USSR in summer of 1940. When considering the consent of the Latvian government to the deployment of the USSR troops, one has to take into account the historical context of giving this consent. Shortly before the ultimatum the USSR had used force against Poland and Finland. The USSR troops were simultaneously deployed in Lithuania without a consent of its President (see: Ziemele I. State Continuity and Nationality, pp. 20‑21). The USSR simultaneously demanded a change of the government and consequently breached its treaty obligations not to intervene in the internal affairs of Latvia. One also has to keep in mind the subsequent simultaneous annexations of the Baltic States in July and August of 1940, as well as the deportations as crimes against humanity in June of 1941. The conduct of the USSR against Lithuania is a particularly persuasive argument to support the view that the refusal to consent to the ultimatum of the USSR by the Latvian government would not have stopped the deployment of the USSR troops in Latvia. The President of Lithuania, Antanas Smetona, left the country without giving consent to the deployment of the USSR troops; however, this did not change in the least the course of the events regarding Lithuania (see vol. 11 of the case materials, p. 67). It is generally recognized in the doctrine that in June of 1940 an aggressive war (in breach of the concluded international treaties) against the Baltic States took place, the USSR army invading them and occupying them militarily (see Cassese A. Balancing the Prosecution of Crimes against Humanity and Non-Retroactivity of International Criminal Law // Journal of International Criminal Justice, 2006, pp. 410, 414; Marek K. Identity and Continuity of States, pp. 389‑391; Stern B. La succession d’États // 262 Recueil des Cours de l’Académie de Droit International, 1996, p. 45). The European Court of Human Rights also did not consider this consent to be valid within the meaning of international law (Ždanoka v. Latvia [GC], no. 58278/00, para. 13, ECHR 2006). Considering the factual and legal context in which the consent was given, the Constitutional Court agrees to the assessment of the European Court of Human Rights that the consent was given as a result of duress and as such it is invalid within the meaning of international law. Consequently the USSR unlawfully used force against Latvia, i.e. it committed aggression in breach of international treaty rules. 26. On 16 June 1940 the USSR government demanded in the ultimatum to Latvia to change the government in order to ensure “the fair fulfilment of the Assistance Pact in practice”. This demand is in breach of Article 5 of the Assistance Pact. Article 5 of the Assistance Pact provided that “the implementation of this pact cannot in any way affect the sovereign rights of the contracting parties, especially their state structure, economic and social system, and military activity”. Article 5 of the Assistance Pact provided for treaty rules in a narrower field that was later extended and became a rule of customary international law, namely, a prohibition to interfere in the internal affairs of other states. The ultimatum of the USSR with the demand to create a new USSR-friendly government was in breach of the sovereign right of Latvia to freely choose its government – it was a restriction of the possibility to choose the regime of the state which is one of the examples expressis verbis given in the Assistance Pact.

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Consent of Latvia to the demand of the USSR was given under duress and therefore it is to be regarded as not valid (see para. 25.6 of this judgment). The USSR intervened in the internal affairs of Latvia, in breach of international treaty rules. 27. The aggression of the USSR against Latvia was followed by the occupation of Latvia (see Feldmanis I. Latvijas okupācija: vēsturiskie un starptautiski tiesiskie aspekti // Latvijas Vēsturnieku komisijas raksti. Vol. 15. Totalitārie režīmi Baltijā: izpētes rezultāti un problēmas. Second edition. Rīga: Latvijas vēstures institūta apgāds, 2007, pp. 225‑235). The Constitutional Court has already established that in June of 1940 the USSR committed an act of unlawful aggression against the Republic of Latvia and unlawfully interfered in the internal affairs of Latvia. If the occupation of the USSR was created as a result of an unlawful use of force, this occupation per se is unlawful and in breach of rules of international law. A Judge of the International Court of Justice Phillip Kooijmans has expressed the view that unlawfulness of occupation follows from the unlawfulness of the use of force in terms of ius ad bellum, rather than from the existence of occupation itself, it effectively being a neutral ius in bello concept [see: Separate Opinion of Judge Kooijmans, Armed Activities on the Territory of Congo (Congo v Uganda) // http://www.icj-cij.org/docket/files/116/10463.pdf ]. This systemic aspect of international law has to be taken into account in the international state practice of Latvia. Consequently, it has to be concluded that the USSR aggression against Latvia was the main breach of international law, and the unlawfulness of the occupation by the USSR followed from it. Also the international law scholars in the case of the Baltic States closely relate the occupation by USSR with the circumstances of the use of force and threat of use of force: “They were occupied and annexed by the Soviet Union in 1940 in circumstances involving use of force and duress” (Crawford J. Creation of States, 2006, p. 393). Within the meaning of international law, the events of 1940 in Latvia are to be qualified as “the occupation of all or part of the territory of a State without the previous consent of the government, but also without causing the outbreak of an armed conflict with that state. Usually it is because the invader has made an implicit or explicit threat to use force, and military resistance against such an invasion appears hopeless and therefore does not take place. Such interventions have been quite common in the twentieth century and have occurred in a variety of circumstances” (Roberts A. What is a Military Occupation? // British Yearbook of International Law, 1984, p. 274). Consequently, the USSR carried out an unlawful occupation of the state of Latvia following from the unlawful aggression. 28. After the creation of the USSR-controlled government lead by Augusts Kirhenšteins on 21 June 1940, the next step towards the incorporation of Latvia into the USSR was elections of the Saeima, so that the people could seemingly express their “free” will to join with “the brotherly Soviet republics of the USSR”. Identical processes took place also in Estonia and Lithuania. 28.1. The dates of elections of the Saeima were coordinated with Moscow – the elections took place on 14 and 15 July 1940, on the same days when elections of the parliaments took place in both other similarly occupied Baltic States – Estonia and Lithuania (see: Gore I., Stranga A. Latvija: neatkarības mijkrēslis, p. 200).

On 4 July 1940 the Cabinet of Ministers adopted the Saeima Election Law (Valdības Vēstnesis, 5 July 1940, no. 149). One has to take into account that the procedure of the Saeima elections was established by the Saeima Election Law of 9 June 1922 (Valdības Vēstnesis, 20 June 1922, no. 141). Since this law had not been repealed, it was still effective and the Saeima elections should have been carried out under the provisions of this law. The procedure of the Saeima elections established by the new Saeima Election Law violated the requirements of the Satversme, particularly regarding the short term for submission of the lists of candidates and the very close election day. Under Article 14 of this law, voters had the right to submit lists of candidates until 10 July 1940, 8:00 PM. Since the law was promulgated on 5 July 1940, only a few days were left for this process. 28.2. The USSR plans did not include elections where voters would have any choice whatsoever. It was fully permissible that only one electoral list took part in the elections – the Working People’s Block. The Central Election Committee refused to register lists submitted by other voters’ unions (see: Latvijas okupācija un aneksija, pp. 436‑498). One of the leaders of the social democrats Klāvs Lorencs wrote: “[Nothing] could and did justify that arbitrarily unlawful, impermissible in any whatsoever lawful state and deeply undemocratic conduct that was carried out by the Central Election Committee and governmental institutions in respect to this, the so-called list of candidates of the Democratic Latvian Association. The submitted list of candidates was unlawfully rejected, all candidates to the last one were put under arrest and almost all of them forever disappeared in the Siberian tundra. […] When it became known that a second list would be submitted to the Committee and that the Committee was going to discuss the issue of its registration, […] A. Vishinsky intervened. [The chairman of the Central Election Committee, Ansis] Buševics was sternly reprimanded and was given a new task – to immediately prepare a “legally and legally well-justified” rejection of the second list of candidates” (Lorencs K. Kāda cilvēka dzīve. Klāva Lorenca atmiņas. Rīga: apgāds Zelta grauds, 2005, pp. 331‑332). On 11 July 1940, the Central Election Committee announced that “five lists of candidates comply with the requirements of the law – one list per each election district. The accepted list of candidates for all districts is the list of the Working People’s Block of Latvia” (Daugavas Vēstnesis, 11 July 1940). 28.3. On 14 and 15 July 1940, elections of the so-called People’s Saeima took place. Materials of the Central Election Committee show that the official results for the People’s Saeima elections were announced before the Commission received the election protocols and other election materials from the Kurzeme, Latgale and Vidzeme election districts (see Gore I., Stranga A. Latvija: neatkarības mijkrēslis, pp. 222‑223). Serious violations took place in the course of the elections and the counting of the votes. Instructions on the course of elections were changed during elections, and voters were subject to pressure. Appearance of voters at the polling places was in many places organized by the government of A. Kirhenšteins and supervised by officials of the Latvian Communist (Bolshevik) Party (see Gore I., Stranga A. Latvija: neatkarības mijkrēslis, pp. 218‑222). “The results of the elections were widely falsified; the residents were subject to moral pressure, which was turned very threatening due to the presence of the Soviet troops and their participation in the organisation of the elections. The results of the elections – according to the practice already accepted in the Soviet

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Union – were close to 100 percent for the only submitted list (in Kuldīga – 100 percent exactly!)” (Latvijas vēsture. 20. gadsimts. Second supplemented edition. Rīga: Jumava, 2005, p. 222). 28.4. The unlawfully elected People’s Saeima convened its first meeting on 21 June 1940 and adopted several significant documents, among them the Declaration on the State Power and the Declaration on Latvia’s Joining the Union of Soviet Socialist Republics. In the Declaration on the State Power the People’s Saeima declared: “By adopting this declaration by the Saeima, Latvia is declared to be a Soviet Socialist Republic. This decision of the Saeima becomes effective immediately.” The Declaration on Latvia’s Joining the USSR stated: “Having regard to the unanimously expressed will of the Latvian people, the Saeima decides: To ask the Supreme Council of the Union of Soviet Socialist Republics to admit the Latvian Soviet Socialist Republic to the Soviet Union as a united republic on the same conditions as the Ukrainian Soviet Socialist Republic, the Byelorussian and other United Soviet Socialist Republics are part of the Soviet Union.” No voting took place regarding these declarations of the People’s Saeima; it was declared that they had been adopted unanimously. When adopting these declarations the People’s Saeima exceeded the limits of its competence. The decision on the foundation of the Soviet Socialist Republic changes the requirement contained in Article 1 of the Satversme that Latvia is to be a democratic state based on the rule of law. The decision on joining the USSR changes the requirement of the same article of Latvia being an independent state. Under Article 77 of the Satversme such decisions can be adopted only by a national referendum. No referendum took place neither when deciding on the creation of the soviet regime, nor on joining the USSR. One also has to take into account that these decisions were adopted under the circumstances of Soviet occupation. The parliament that voted for the adoption of such decisions had been elected in breach of the democratic principles of elections, and the results of the elections had been blatantly falsified. The Saeima, when adopting the resolutions of 21 July 1949, did not express the sovereign will of the Latvian people, but the will of the USSR to annex the state of Latvia and to include it into the USSR. On 5 August 1940 the Supreme Council of the USSR adopted a decision to admit Latvia to the USSR. Simultaneously, a similar decision was taken in respect to admitting the Estonian SSR and the Lithuanian SSR to the USSR. 29. Taking into account the way how Latvia “joined” the USSR, as well as the almost identical procedures implemented in Lithuania and Estonia, one has to agree to the opinion that “the Baltic States of Estonia, Latvia and Lithuania were incorporated into the Soviet Union in 1940 as a result of procedures which had the superficial appearance of a voluntary union, but which in reality amounted to a forced absorption by the Soviet Union” [Jennings R., Watts A. (eds.) Oppenheim’s International Law. 9th ed. Vol. I. London: Longman, p. 193]. According to international law every state is free to renounce its independence. According to international law each state must also respect the independence of other countries, but it is not forbidden to agree to another state’s voluntarily renouncing its independence in its favour [see the opinion of the judge of the Permanent Court of International Justice, Dionisio Anzilloti, in the case “Customs Regime between

Germany and Austria”, P.C.I.J., Series A/B, No 41 // http://www.icj-cij.org/pcij/serie_ AB/AB_41/02_Regime_dou anier_Opinion_ Anzilotti.pdf ]. On the other hand, an act of a state when this state makes the other state to give up its independence and to join it, namely, acquiring the territory of the other state in a forcible way, is to be considered as annexation (see: Binschedler R.L. Annexation // Encyclopaedia of Public International Law. Amsterdam: Elsevier, 1922, Vol. 1, p. 168). In order to legally complete annexation, it is necessary for the annexed state and the international community to recognise this annexation. In case the annexed state and the international community object to the annexation that has taken place, indicating breaches of rules of international law, the annexation is to be considered as existing as a result of a de facto unlawful conduct and does not produce any legal consequences. 29.1. Annexation implies forceful incorporation of the territory of one state into another state. At the beginning of the 20th century international law did not restrict the right of states to use military force against other states and then to annex them. The international legal regime regarding the legality of the use of force changed during the period between the World Wars by limiting the right of states to use force by bilateral or multilateral treaties, as well as by customary international law (see Brownlie I. Principles of Public International Law. 6th edition. Oxford: Oxford University Press, 2003, pp. 697‑715; Brownlie I. International Law and the Use of Force by States, pp. 51‑111). According to the general principle of law ex iniuria ius non oritur (unlawful acts cannot produce rights), annexation carried out as a result of an unlawful use of force cannot enjoy international legality (see: Lauterpacht H. Recognition in International Law. Cambridge: Cambridge University Press, pp. 416‑421). Initially being developed in the form of the so-called Stimson doctrine, this principle along with its application was recognized also in other situations (Crawford J. Creation of States, pp. 689‑690). The State Secretary of the US, H. Stimson, when protesting against the occupation of Manchuria by Japan, indicated in his note that the US government cannot admit the legality of any situation de facto nor does it tend to recognise any treaty or agreement which may be brought about by means contrary to the Kellog-Brian Pact. By accepting the note of H. Stimson, the League of Nations on 11 March 1932 declared that infringements of the territorial integrity and the change of the political independence of any Member of the League of Nations brought about in disregard of Article 10 of the Statute of the League of Nations ought not to be recognised as valid (McNair A. The Stimson Doctrine of Non-Recognition // British Yearbook of International Law, 1933, Vol. 14, pp. 65 et seq.; Hough III W. J. H. The Annexation of the Baltic States and its Effect on the Development of Law Prohibiting Forcible Seizure of Territory // Journal of International and Comparative Law, 1985, Vol. 6, No. 2, pp. 327‑329). The Stimson doctrine was strengthened by the Rio de Janeiro Convention of 10 October 1933. Therein the States undertook not to recognize any territorial arrangements which are not obtained by peaceful means. By this convention, the member states proclaimed as invalid any occupation or acquisition of a territory brought about by armed force (see: Hough III W. J. H. The Annexation of the Baltic States, p. 330). The doctrine of non-recognition of illegally annexed territories was also supported by the USSR. Its Commissar of Foreign Affairs, Maksim Litvinov, when protesting against the conduct of Italy in Ethiopia declared at a meeting of the League of Nations:

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“Among the means for combating aggression and defending its Members which the League of Nations has at its disposal, the policy of non-recognition does, without a doubt, play a constructive part […] It must be clear that the League of Nations has no intention of changing its attitude against direct seizure and annexation of other people’s territory, or against those case where such annexations are camouflaged by the setting-up of puppet “national” governments, alleged to be independent, but in reality serving merely as a screen for, and an agency of, the foreign invader [League of Nations, O.J. 340 (1938). Quoted from: Bojārs J. Vai spēks rada tiesības // Literatūra un Māksla, 15 July 1989]. In the Constitutional Court’s view, it is hard to find another, clearer legal assessment of the rules applicable also to the conduct of the USSR in the Baltic States in 1940, especially taking into account that the opinion was expressed by the Commissar of Foreign Affairs of the USSR who ex officio represented the USSR. Moreover, in March of 1939, the USSR protested against the incorporation of Bohemia into the territory of Germany and indicated: “It is hard to accept that any nation could voluntarily agree to the destruction of its independence and to its incorporation into the territory of another State” (Lēbers D. A. Molotova – Ribentropa pakta juridiskās sekas Baltijas valstīs // Likums un Tiesības, vol. 4, 2002, no. 11, p. 337). One can agree to the assessment given in the doctrine that in the late 30s of the 20th century an international obligation of non-recognition of acquisition of a territory as a result of unlawful use of force had developed in international law from different international treaties and state practice (Brownlie I. International Law and the Use of Force by States, pp. 418‑419: Lauterpacht H. Recognition in International Law, pp. 416‑426). 29.2. The People’s Saeima acted as an agent or an instrument of the USSR by fulfilling the tasks of this state and operating in its interests. Even if one were to admit that the People’s Saeima operated as constitutional institution of the Latvian state power, it did not express the free will of the Latvian people (see: Lēbers D. A. Latvijas valsts bojāeja 1940. gadā, pp. 27‑29). It is recognized in international law that a request for annexation or intervention made by a puppet government is without international validity. The events that took place in the Baltic States in 1940 are to be considered from this perspective (Crawford J. Creation of States, p. 80). Changes to the territorial status after an unlawful aggression and unlawful intervention in the internal affairs of a state in favour of an aggressor state are internationally unlawful, whatever form and procedure the aggressor state has chosen. Consequently it is possible to conclude that the USSR in 1940 committed an act of aggression against the Republic of Latvia (and a subsequent unlawful occupation of the Republic of Latvia), unlawfully intervened in the internal affairs of the Republic of Latvia, as well as unlawfully annexed the Republic of Latvia, by ignoring the rules of international law and fundamental rules of the domestic law of Latvia. A similar opinion has also been expressed in the most recent studies by historians [see: Feldmanis I. Molotova – Ribentropa pakts un Latvija // Latvijas Vēsturnieku komisijas raksti. Vol. 1. Latvija Otrajā pasaules karā. Second edition. Riga: Latvijas vēstures institūta apgāds, 2007, p. 30; Stranga A. PSRS politika Baltijā (1938–1940) // Latvijas Vēsturnieku komisijas raksti. Vol. 1. Latvija Otrajā pasaules karā. Second edition. Riga: Latvijas vēstures institūta apgāds, 2007, p. 47]. 30. Just as unlawfully, the USSR deprived Latvia of a part of its territory by giving it over to the Russian SFSR in 1944. Already when discussing the Assistance Pact, J. Stalin introduced the idea to “deprive [Latvia] of the territory with the Russian

minority” (Архив Внешней политики России, ф. 38-д., оп. 1, с. 30‑31. Quoted from: Gore I., Stranga A. Latvija: neatkarības mijkrēslis, p. 20. See also: Feldmanis I. Molotova – Ribentropa pakts un Latvija // Latvijas Vēsturnieku komisijas raksti. Vol.1. Latvija Otrajā pasaules karā. Second edition. Riga: Latvijas vēstures institūta apgāds, 2007, p. 28). 30.1. On 23 August 1944 the Presidium of the USSR Supreme Council adopted a decree “On Formation of the Pskov District in the Territory of the RSFSR”. Together with parts of the territory of the RSFSR, parts of the territory of the Estonian SSR and the Latvian SSR were included in this district. The Višgoroda, Kačanovo and Tolkovo parishes from the territory of the Latvian SSR were included into Pskov district of the Russian SFSR. Such a decision was apparently made in response to repeated requests from the residents of these parishes and a resolution of the Presidium of the Latvian SSR Supreme Council [see Об образовании Псковской области в составе РСФСР // Сборник законов и указов Президиума Верховного Совета. 1938–1975. Vol. 1. Москва: 1975, с. 93‑94]. 30.2. Formally the Presidium of the Latvian SSR Supreme Council declared its request to separate the Višgoroda, Kačanovo and Tolkovo parishes on 22 August 1944. However, the actual existence of this request of the Presidium has been questioned, since it was not appropriately formatted, and the historical sources contain no evidence that on that day a meeting or a telephone survey of the Presidium of the Supreme Council had taken place (see the transcript of the morning and evening sessions of the Supreme Council of the Republic of Latvia of 22 January 1992; Pelkaus E. Latvijas robežas un 1920. gada miers // Latvijas Avīze, 15 February 2005). On 7 September 1944 the Presidium of the Supreme Council of the Latvian SSR, on the basis of a survey, adopted the decree “On Joining of the Višgoroda, Kačanovo and Tolkovo parishes to the Russian Soviet Federative Socialist Republic”. In this decree, by referring to requests from the inhabitants of the respective parishes, the Presidium of the Supreme Council decided to ask the Presidium of the Supreme Council to incorporate the Višgoroda, Kačanova and Tolkovo parishes of the Latvian SSR into the Russian SFSR (see the case materials, vol. 7, p. 33). At the third session of the Supreme Council of the Latvian SSR that took place on 6‑7 October 1944 in Daugavpils a decision was made regarding the confirmation of the decrees of the Presidium of the Supreme Council that had been adopted during the break between the second and the third session, among them the decree of 7 September 1944 (see the case materials, vol. 7, pp. 30‑31). 30.3. These acts of the presidiums of the Supreme Councils of the Latvian SSR and the USSR served as the basis for the incorporation of the town of Abrene and the six parishes – Kacēni, Upmale, Linava, Purvmala, Augšpils and Gauri (hereinafter – the Abrene area) – into the RSFSR. One also has to bear in mind that neither the Supreme Council of the Latvian SSR nor the Supreme Council of the USSR used the names of the administrative-territorial entities of that time. Instead they used the names of the administrative-territorial entities of the Russian Empire, under which they were incorporated into Latvia under the Peace Treaty. IV 31. Article 2 of the Satversme provides that the sovereign power of the state of Latvia is vested in the people of Latvia. This provision of the Satversme established the principle of sovereignty of the people (see the transcript of the meeting of the Latvian Constitutional Assembly, meeting 1 of Session IV, 20 September 1921).

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31.1. Under the principle of the sovereignty of the people, the Latvian people are the only subject of the sovereign power. Not the constitutional institutions of public power, but the Latvian people are the source of public power and the carrier of the sovereign power of the state. National sovereignty is the right of the people to decide their own fate, also by forming an independent state. Consequently, one of the most important rights of the Latvian people as the carrier of the sovereign power of the state of Latvia is the constitutional power conferred to it (see Dišlers K. Konstitūcija un satversmes vara // Tieslietu Ministrijas Vēstnesis, 1921, nos. 1‑3, pp. 1‑10). The Satversme divides the constitutional power among the body of Latvian citizens and the Saeima; however it guarantees the exclusive rights to deal with the fundamental norms of the Satversme to the people of Latvia, namely, to repeal the constitution or to establish a new constitutional order. Moreover, Article 76 of the Satversme delegates to the Saeima only the power to review the Satversme which differs from the constitutional power of the people of Latvia, since it is related to the constitutional fundamental principles. The Saeima is authorized to make constitutional amendments within the framework of the existing constitution, but the Saeima as a constitutional institution of the state power cannot be authorized to change the basis of the constitutional order or to give up the existence of the state, since only the people as the carrier of the constitutional power can decide this issue. A similar opinion has been expressed in the constitutional law doctrine (see: Cipeliuss R. Vispārējā mācība par valsti. Rīga: AGB, 1998, pp. 46‑47). 31.2. Article 2 of the Satversme by granting the sovereign power to the people of Latvia takes into account the fact that it is possible that the sovereign rights of the people of Latvia to decide on the fundamental principles of the constitutional order and existence of the State can be usurped, in the case of a coup d’état by individual persons or in the case of an invasion – by another state (see: Dišlers K. Latvijas pagaidu konstitūcija. Vispārīgas piezīmes // Tieslietu Ministrijas Vēstnesis, 1920, no. 2/3, p. 52). Article 77 of the Satversme, when providing for the body of the Latvian citizens to change the constitutional basis of the state of Latvia prohibits changing it any way other than by means of a free referendum. In case if these principles have been changed as a result of a coup d’état or an invasion by another state, the people of Latvia do not lose the right to decide on the existence of their state and its constitutional order. Article 2 of the Satversme not only confers rights to the people of Latvia and each citizen of Latvia, but also imposes obligations. First, the obligation not to recognize as effective such changes to the constitutional regime that have taken place by ignoring the procedure established by the Satversme. Each citizen also has a duty to resist those who try to destroy by the use of force the constitutional order, territorial integrity or independence of the state. The Satversme prohibits the destruction, in an anti-constitutional way, of the independence of the state of Latvia or of the democratic state based on the rule of law established by it. If the constitutional order of the state is changed in breach of the procedure established by the Satversme, Article 2 of the Satversme is one of those articles of the Satversme that de iure remain effective during the entire period of existence of the anti-constitutional regime, hence ensuring the rights of the body of the Latvian citizens to freely decide on their future. The people of Latvia have the right and the obligation to restore the state of Latvia in the manner required by the constitutional legal basis of the state of Latvia. This obligation is imposed also upon each member of the people of Latvia –

citizens of Latvia, irrespective of the fact whether he has been born before or after the establishment of the anti-constitutional regime. 31.3. Article 2 of the Satversme is closely related to Article 1 of the Satversme which establishes what the state of Latvia should be: a state in which the people of Latvia exercise their sovereign power, namely, Latvia has to be an independent democratic republic. Article 1 of the Satversme, by requiring Latvia to be an independent state, provides for the right of Latvia to participate in the international community. Already in the platform of the Latvian People’s Council a claim was made with respect to a united, autonomous and independent Latvia in the League of Nations. Latvia as a small country is aware of its relative prospects to restore its independence and the democratic regime of the state on its own if it were liquidated in an anti-constitutional manner, and that is why it sees the guarantees for its independence in a just international system. Guaranteeing of the independence of each state is one of the basic functions of international law (see Lēbers D. A. Molotova – Ribentropa pakta juridiskās sekas Baltijas valstīs // Likums un Tiesības, Vol. 4, 2002, No. 11, p. 334). Therefore the rights of the people of Latvia to restore their unlawfully interrupted statehood guaranteed by Article 2 of the Satversme are closely related to the regulation of international law in this field. 32. The state continuity doctrine is the result of the development of international law after the WWI. Until then it was generally accepted, regarding the issue of the way when and how states become sovereign, that “all questions with respect to the origin of states belong to the province of political philosophy, rather than that of international law” [se: Baker G.S., Ducquer M.N. (eds.) Halleck’s International Law. 4th ed. London: Kegan Paul, Trench, Truber &Co. Ltd., 1908, p. 80]. One could even assume that initially the international law did not regulate the creation and termination of a state, by emphasising that the existence of a state is a fact that cannot be legally substantiated (see: Dišlers K. Negotiorum gestio publisko tiesību novadā // Tieslietu Ministrijas Vēstnesis, 1935, No.1, pp. 8‑17). Later it was recognized that the sovereign personality of states in international law is determined by its relations with other states and by its capacity to act on its own behalf. The legal thought of the 19th century identified the main elements of statehood, namely, a territory, a permanent population, an effective government and the capacity to enter into international relations. These elements were included in the Convention on the Rights and Duties of States of 1933 (hereinafter – the Montevideo Convention) in order to develop the legal concept of statehood. They were recognized as a part of the customary law (see: Lauterpacht H. Oppenheim’s International Law. 5th ed. Vol. I London: Longman, Greens, 1937, p. 121). However, in practice, including during the interwar period, it was recognized that the interpretation and application of these principles was not determinative, because other circumstances in particular cases had to be taken into account, as well as the rules and processes in the framework of general international legal procedures. Consequently the principle ex facti ius oritur was no longer decisive (see: Crawford J. Creation of States, pp. 37‑95). As the principle of self-determination of the people as well as the prohibition of unlawful use of force or threat thereof developed, additional legal criteria crystallised in international law in accordance with the principle ex injuria ius non oritur. The effect of these rules could be different. Occasionally the principle ex injuria ius non oritur precluded the existence of a state in cases when, although the Montevideo criteria were met, other important rules of international law had been violated (e.g. in respect of non-

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observance of the rights of self-determination, racial discrimination and unlawful use of force) (see: Crawford J. Creation of States, pp. 131‑155). In other cases the principle ex injuria ius non oritur meant the existence or continued existence of a state when it did incompletely fulfil the Montevideo criteria (e.g. with respect to exercising the rights of self-determination or unlawful annexation) (see: Crawford J. Creation of States, pp. 689‑699). Consequently the claim to statehood and its recognition are important elements of the international legal process, and the question is about the rules and procedures regarding the claim and its recognition in different situations (see Ziemele I. State Continuity and Nationality, pp. 99‑101). 32.1. For the determination of the identity of the state, one has to take into account the claim to recognize that an illegal annexation of a State or a part thereof to the territory of another state creates no legal consequences. The principle ex injuria ius non oritur imposes an obligation on subjects of international law not to recognize unlawful situations, including unlawful annexation of territories to other states if the annexation has taken place in breach of the rules of international and domestic law or by force. The above-mentioned principle raises the obligation of the international community to at least react to the illegal annexation of a state or its part to the territory of another state and not to recognize such changes as legally complete (the so-called collective non-recognition duty) (see the opinion of D. Žalimas, the case materials, vol. 10, p. 228.; International Court of Justice Advisory Opinion of 9 July 2004 „Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory”, para. 159 // http://www.icj-cij.org/docket/files/131/1671.pdf ). This means that the international community has recognized: law regulates not only the mutual relations of states as existing subjects of international law, but also the creation and termination of states. It is particularly important in cases when a atate or its part is annexed to the territory of another state in breach of the rules of international and domestic law. Under the principle ex injuria ius non oritur, states and parts thereof can be annexed to the territory of other states only on a voluntary basis and by observing the procedures established in international and national law. The international community does not recognize illegal annexation of a state or a part thereof to the territory of other state as having been accomplished. It means that the unlawfully destroyed state de iure continues to exist and there consequently also exists a legal possibility to restore the respective state de facto in accordance with the rules of international law. If such a state is de facto restored, it does not form a new state but continues its de facto interrupted statehood. This is the essence of the doctrine of legal continuity in international law that follows from the use of force or threat of the use of force. 32.2. State continuity is characterised by the continuity or identity of a state as a legal person in international law. State continuity describes the continuity or identity of States as legal persons in international law. The basis of state continuity is the claims relevant to it made in accordance with the applicable rules or procedures of international law and the recognition of those claims by the international community when there are doubts about the identity of the state (see Ziemele I. State Continuity and Nationality, p. 118). Continuity is first of all a legal concept, rather than a historical fact or an arbitrary choice (see the Application for Revision of the Judgment of 11 July 1996 in the Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections 2003, paras. 70‑71). “Where a state retains substantially the same territory and the same structure or system of government over a period of time there is clearly no change of personality. There is an established principle that acquisition or loss of territory does not, by itself, affect

the state continuity. The presumption of state continuity is particularly strong where the constitutional system of the state prior to acquisition or loss continues its force.” (Crawford J. Creation of States, pp. 672‑673). Both Latvia with regard to the Latvia of 1940 and the Russian Federation with regard to the USSR are placed in the position of continuity. If a state, independence of which has been illegally terminated, restores its statehood, it can under the doctrine of continuity recognize itself as the same state which had been illegally terminated. In this case it is necessary that the state itself establishes its continuity and acts in accordance with the claims of this doctrine both in international relations and the domestic policy, and it is also necessary that such a self-assessment of the state is accepted by the international community. The continuity of the same state (a ling of the “new” state with the “old” one) seems to derive primarily from the rules or procedures of international law applied in a given factual context, having regard to the intangible but nonetheless real notion of the continued existence of a state (see Ziemele I. State Continuity and Nationality, p. 129). A state may be said to be the “same” state (with the consequence that the “same” legal rules, including the rules of international treaty law, continue to apply) where it is continuous or where after the oppression, an entity with substantially the “same” constituent features is re-established and its claim to continuity is accepted (see Crawford J. Creation of States, p. 671). Rights and duties of a state follow from its legal identity. One can agree to the opinion expressed already in 1924 that “the fact of personality of a state is the key to the answer [about its rights and obligations]” (Higgins P. Hall’s International Law. 8th ed. Oxford: Clarendon Press, 1924, p. 114). First it is necessary to identify the legal relationship of the state with earlier state formations and only then rights and duties will follow from the statehood. It is not necessary for the state to restore its independence in the same territory with the same citizens and the same constitutional order as it was before the illegal de facto termination of the independence of the state. It is necessary to take into account that, in the course of time, the body of residents of a state will change, and the territory and the constitutional order may also change. The doctrine of continuity accepts that such changes may have taken place in the state whose independence is being restored. Namely, the state when restoring its independence may, if necessary, change its constitutional order, territory and body of citizens. But in this case the state has to act in accordance with the doctrine of continuity and these changes are to be made not tabula rasa, but on the basis of the previous constitutional rules. International law does not require a restitution of the international rights and obligations of a state, but instead to carry out their re-evaluation on the basis of an a priori existence, through ad hoc agreements on the necessity to terminate, amend them or by concluding their invalidity as a result of the rebus sic standibus doctrine. In other words, changes have to take place within the framework of the doctrine of continuity, rather than outside it. As a result of such fundamental changes, not only the self-assessment of the state is important, but also the reaction of the international community; the international community is entitled not to recognize the position of a state with regard to its continuity. 32.3. The doctrine of state continuity directly influences action of the State not only in international law where it continues to fulfil the international obligations undertaken before the de facto termination of independence and it does not take over the international obligations of that state the part of which it had unlawfully been, but also in the internal affairs. The acts of the illegally established public authorities

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of the other state in the field of public law are not binding on the state that has reestablished its independence. The state that has restored its independence on the basis of the doctrine of continuity is entitled to independently decide on all the necessary issues regarding the existence of the state under its constitutional regime and legal rules. In certain cases, considering the claims of the fundamental personal rights, it has to respect the consequences of the actions of the illegal authority in the field private law, for instance, regarding family law. The boundaries to the state’s conduct after the restoration of independence are established not only by fundamental rights, but also by general legal principles, inter alia the principle of justice. “When restoring the legal system of independent Latvia, the legislator, by observing the principle of the rule of law, had to take measures in order to as far as possible diminish also the losses caused by the previous regime and to restore justice” (see the judgment of the Constitutional Court of 25 March 2003 in the case no. 2002-12-01, para. 1 of the motives part). 33. The presumption of state continuity is employed when there is both the will of the state concerned and general acceptance of the international community (Ziemele I. Is the Distinction between State Continuity and State Succession Reality or Fiction? The Russian Federation, the Federal Republic of Yugoslavia and Germany // Baltic Yearbook of International Law. Volume 1, 2001. The Hague / London / New York: Kluwer Law International, 2002, p. 220). 33.1. Latvia has never recognized the conduct of the USSR against Latvia in 1940 as lawful (see: Šilde Ā. Latvijas valsts // Šilde Ā. Trimdinieka raksti. 1944 – 1990. Minstere: apgāds Latvija, 1991, pp. 50 55). Ambassador of Latvia in London, Kārlis Zariņš, on 23 July 1940 submitted a memorandum to the Foreign Office of the Great Britain, wherein he indicated that he will continue representing interests of the Republic of Latvia and qualified the conduct of the USSR as illegal. K. Zariņš inter alia indicated that the People’s Saeima, when joining the USSR, had violated Article 1 of the Satversme that can be possibly amended only by a referendum. K. Zariņš also expressed his view that the decision to join the USSR cannot be regarded as an act of a free and independent government, moreover, in the elections of the People’s Saeima, the citizens of Latvia could not freely express their will. The ambassador based this opinion on facts. K. Zariņš wrote: “The Latvian people have struggled hard for their independence, also against the troops of the Soviet Russia. The spirit of the independence fights is still alive, and any disinterested observer would find it impossible that Latvians would freely sacrifice their independence that they have fought for so hard and cherished” (Note of K. Zarins, Latvian Envoy in London, Protesting against the Incorporation of Latvia into U.S.S.R. as being Unconstitutional and Illegal // Latvian – Russian Relations, pp. 209‑210). The Latvian ambassador in Washington, Alfrēds Bīlmanis, also protested against the annexation of Latvia to the USSR that took place in breach of Articles 1, 76 and 77 of the Satversme by means of brutal force (see The Latvian Minister in Washington does not Recognize Incorporation of Latvia into the Soviet Union // Latvian – Russian Relations, p. 211). In a letter of 27 July 1940 to the Foreign Office of Great Britain, K. Zariņš indicated that Latvia has become a victim of an unlawful aggression, the USSR has violated the obligations undertaken by the Assistance Pact, the elections of the People’s Saeima have been carried out under pressure, in the presence of foreign troops and under supervision of high-ranking foreign officials, whereas the decision of the People’s Saeima on joining the USSR is anti-constitutional (see: Lerhis A. Latvijas Republikas ārlietu dienests, p. 257).

The protests of these ambassadors of Latvia expressed the official viewpoint of Latvia, because the government of the Republic of Latvia terminated its work as a result of the aggression and occupation by the USSR. Having regard to these reports, Latvian diplomatic and consular agencies in foreign states continued their activities up to the restoration of the independence of the Republic of Latvia without recognizing the annexation of Latvia to the USSR and by representing interests of the Republic of Latvia as organs of this state (see: Lerhis A. Latvijas Republikas ārlietu dienests, pp. 224‑286). Latvian citizens in exile supported the necessity to cease the illegal conduct of the USSR and to restore the independence of the state of Latvia. In an article published in 1947, “For Commemoration of the 25th Anniversary of the Satversme of Latvia”, its author wrote: “The Satversme of Latvia has never been repealed. […] Our homeland has been and still is occupied, but this will never destroy Latvia and it still continues existing. […] Our embassies, consultants, the Red Cross and other institutions continue working under the laws adopted according to the procedures established by the Satversme” (Vonogsalīts A. Latvijas satversmes 25 godu atcerei // Latgola, 1947, No. 40, p. 3). On 13 March and 3 April 1948 exiled judges of the highest judicial institution of Latvia – senators of the Latvian Senate – Jānis Balodis, Rūdolfs Alksnis, Pēteris Stērste, Augusts Rumpeteris and Maksis Ratermanis submitted an opinion on the questions put by the acting deputy chairman of the Saeima of Latvia, bishop Jāzeps Rancāns regarding “whether the Satversme of 1922 is in force” and “what state institutions provided for in the Satversme still exist in law and in fact”. Senator Mintauts Čakste later joined this opinion. The opinion of the senators states: “Like there is no law that has annulled the Satversme of Latvia, there is also no international act (at least one that would have been recognized by the large Western democracies), by which the existence of the democratic republic of Latvia has been terminated from an international point of view. Of course, the resolution of 5 August 1940 of the Supreme Council of the USSR “On Soviet Latvia’s” joining to the USSR cannot be recognised as such if only because it is based only on a non-democratic and anti-constitutional decision of the pseudo-saeima that has no authorisation conferred by a referendum. Finally, as regards the very occupation of Latvia initiated on 17 June 1940, it is only an act of brute force by the Soviet Union, which was carried by unilaterally breaching the treaties concluded with the state of Latvia, among others the Peace Treaty of 11 August 1920 and the Non-Aggression Treaty of 5 February 1932, according to which the USSR had undertaken to observe the inviolability of the Latvian territory and the sovereignty of the state “for eternity”. This act of power, without an international approval, cannot terminate the existence of the democratic Republic of Latvia. It was confirmed by the US government in its declaration of 23 July 1940 and confirmations submitted to the ambassador of Latvia in Washington on 28 May 1947, wherein the US does not recognize the incorporation of Latvia into the USSR and emphasizes that the relations of the US and Latvia, as well as their concluded treaties are not affected by the conduct of the regime that has taken over the power in Latvia in 1940. Hence, when the territory of Latvia is occupied by an alien power and the citizens therein are subordinated to the occupant power, but there is no international act that would cease the existence of Latvia, its existence is manifested exactly by its legal structure. The latter is determined and characterized by the above-mentioned basic laws”, namely the declaration “On the State of Latvia” adopted on 27 May 1920 by the Latvian

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Constitutional Assembly and the Satversme (see Opinion of senators // May 4. Rakstu, atmiņu un dokumentu krājums par Neatkarības deklarāciju. Rīga: Fonds Latvijas Vēsture, 2000, p. 383). 33.2. The struggle of the citizens of Latvia for the restoration of the statehood of Latvia began soon after the occupation of Latvia. This struggle for their own state, as well as the conduct of the USSR regime in Latvia is reflected in the Declaration “On Latvia’s Occupation” adopted on 22 August 1996 by the Saeima of the Republic of Latvia: “The regime of occupation destroyed innocent people, repeatedly carried out mass deportations of residents and other repressions, cruelly punished those who by force or in any other manner supported the restoration of the independence of Latvia, illegally and without compensation expropriated the property of the residents of Latvia and suppressed the free expression of opinion. The USSR government purposefully relocated thousands of immigrants to Latvia and with their help attempted to destroy the identity of the Latvian people. In the result of this policy the proportion of the Latvians as the main nation decreased from 77 percent to 52 percent. Ten years after the end of World War II, armed resistance against the USSR occupation continued in Latvia. More than 30 000 national partisans and their supporters took part in the resistance movement. After its suppression, regardless of the repressions of the Soviet regime, resistance was carried on in other forms.” A similar assessment of events was included in the declaration adopted by the Saeima on 12 May 2005 “On Condemnation of the Totalitarian Communist Occupation Regime Implemented in Latvia by the Union of Soviet Socialist Republics”. The inhabitants of Latvia did not accept the imposition of the Soviet power. In the territory of Latvia, a large movement of national partisans was formed, and for more than ten years armed people fought for the restoration of the independence of Latvia. The USSR suppressed the national partisan movement by cruel repressions (see: Šilde Ā. Bez tiesībām un brīvības. Latvijas sovjetizācija 1944–1965. Kopenhāgena: Imanta, 1965, pp. 157‑179; Strods H. Resistance in Latvia 1944–1991 // Latvijas Vēsturnieku komisijas raksti. Volume 14. The Hidden and Forbidden History of Latvia under Soviet and Nazi Occupations 1940–1991. Second edition. Rīga: Latvijas vēstures institūta apgāds, 2007, pp. 286‑298). During the following years, the resistance against the USSR regime and the efforts to restore the statehood expanded, which finally turned in to the Third National Awakening. This movement involved almost all the residents of Latvia and was concluded by the adoption of the Declaration on Independence on 4 May 1990 and the adoption of the Constitutional Law on 21 August 1991. By exercising the rights of citizens of Latvia established in Article 2 of the Satversme to decide on the restoration of the independence of the state and on the basis of the doctrine of continuity recognised in international law, 138 members of the Supreme Council of the Latvia SSR voted in favour of the independence of Latvia. “Even though a part of them had earlier been members of the Communist Party, it no longer played any important role. Now they stood under the red-white-red flag and showed no doubt when voting for the independence of Latvia. […] When adopting this Declaration on 4 May 1990 Latvia fully politically decided to separate itself from the Soviet Union, it decided to restore the Republic of Latvia of 18 November” (Apsītis R. Neatkarības deklarācijas pieņemšanas gadadienā // Jurista Vārds, 3 May 2005, no. 16). The Declaration on Independence establishes the de facto renewal of the independence of the Republic of Latvia, confirming the doctrine of Latvian state

continuity. “The state continuity of Latvia […] is the backbone of the entire body of Latvian constitutional law” (Endziņš A. Latvijas konstitūcijas apskats, kas rada šaubas un jautājumus // Jurista Vārds, 1 March 2005, no. 8). The entire modern construct of the Latvian state is also based on the state continuity of Latvia (see Ziemele I. Piezīmes pie sagatavotā lēmuma projekta // Jurista Vārds, 30 January 2007, no. 5). The restored Republic of Latvia identifies itself with the pre-war Latvia. The constitutional institutions of Latvia justify their position with the fact that after the events of 1940 Latvia as a subject of international law had not lost its status. After the restoration of the independence Latvia continues its statehood (integratio ad integrum) (see: Lēbers D. A. Latvijas valsts bojāeja 1940. gadā, p. 30). 34. Continuity of Latvia has also been recognized by the international community. Initially this recognition manifested itself as non-recognition of the illegal incorporation of Latvia into the USSR, but after the restoration of the independence of Latvia it turned into recognition of the continuity of the state of Latvia, namely, the international community recognized the state restored on 4 May 1990 to be the same state, the independence of which had been unlawfully terminated in 1940. 34.1. The policy of non-recognition of the annexation of the Baltic States was started by the US. Sumner Welles, the US Undersecretary of State on 23 July 1940 in his note on the issue of the occupation of the three Baltic States precisely defined the American position regarding the Soviet occupation in the Baltic by condemning in strict terms the devious processes and methods that the USSR had used to annihilate the independence of the Baltic states, the processes that were rapidly moving to their conclusion (see the Statement of Undersecretary of State, the Hon. Sumner Welles // Latvian – Russian Relations, p. 209). This important document created the precedent for many other notices and declarations that the US, most states of the world and several international organizations (including the Council of Europe and the European Parliament) made regarding the Soviet annexation of the Baltic States. The unlawful annexation of the Baltic States to the USSR was not recognised, along with the US, by the FRG, France, Italy, Canada, Japan and more than 50 other states of the world (see Hough III W. J. H. The Annexation of the Baltic States, pp. 391‑446; Zunda A. Baltijas jautājums 20. gadsimta 60. gadu starptautiskajās attiecībās // Latvijas Vēsturnieku komisijas raksti. Vol. 20. Latvija un Austrumeiropa 20. gadsimta 60. – 80. gados. Rīga: Latvijas vēstures institūta apgāds, 2007, pp. 17‑29; Zunda A. Baltijas jautājums un Rietumvalstis: 40. gadu otrā puse – 50. gadu sākums // Latvijas Vēsturnieku komisijas raksti. Vol. 21. Latvijas vēsture 20. gadsimta 40. – 90. gados. Rīga: Latvijas vēstures institūta apgāds, 2007, pp. 271‑304). The US declaration was very important for the efforts of Latvia, Estonia and Lithuania to regain freedom and independence, as well as for the development of international law regarding non-recognition of territorial changes that had not taken place in accordance with the free will expressed by the inhabitants. The US applied the principles of the Stimson doctrine also to the Baltic States and the doctrine of the non-recognition of conquests – to the territorial acquisitions of the USSR, the same way as it had previously related it to the acquisitions of Japan, Germany and Italy. Such practice of the US only strengthened the position of the principle of nonrecognition of illegal conduct in international law, and it was very much necessary to the representatives of the Baltic States. This declaration determined the US policy with regard to the issue of the Baltic States for several decades and thus it ensured a continuation of the work of the diplomatic representations of the Baltic States in

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the US. Since the adoption of the declaration of 23 July 1940 the US did not recognize the annexation of the Baltic States to the USSR either de facto or de iure. On 9 August 1940 Great Britain formalised the continued official recognition of the Baltic diplomats. On 5 September 1940, the Prime Minister Winston Churchill officially declared during a session of the Parliament that Great Britain will not recognize any territorial changes carried out during the war in Europe and the question regarding their lawfulness is to be decided by means of international agreements. The government of Great Britain decided not to recognize any territorial changes carried out during the war without free consent and will of the inhabitants themselves until the post-war Peace Conference. The Parliamentary Assembly of the Council of Europe in the Resolution of 29 September 1960 no. 189 (1960) on the Situation in the Baltic States on the Twentieth Anniversary of their Forcible Incorporation into the Soviet Union recognised that “Independent existence of the Baltic States is still recognised de iure by a great majority of the governments of the nations of the free world”. In the Resolution of 13 January 1983 Regarding the Baltic States the European Parliament indicated that: “most European states and the USA, Canada, the United Kingdom, Australia and the Vatican still adhere to the concept of Baltic states” (see Hough III W. J. H. The Annexation of the Baltic States, pp. 438‑439). Consequently one can justifiably conclude that the international community did not recognize the occupation and annexation of Latvia, as well as confirmed the de facto restoration of the independence of Latvia. This position was expressed in both the practice of states and international organization, in respect to bilateral and multilateral agreements and financial and human rights obligations (see Ziemele I. State Continuity and Nationality, pp. 31‑36, 63‑94). Continuity of the Baltic States is also confirmed by international law scholars: “State practice in the period since 1930 has established, albwit not without initial uncertainty, the proposition that annexation of the territory of a state as a result of illegal use of force does not bring about the extinction of this state […] The proposition that illegal annexation does not effect extinction is reinforced if it is accepted that Estonia, Latvia and Lithuania (as admitted to the United Nations in 1991) were the same states as those annexed by the USSR in 1940. […] other States were generally content to accept the Baltic States’ self-assessment as continuators of the pre-1940 entities” (Crawford J. Creation of States, pp. 689‑690). 34.2. After 1990 when the Baltic States regained their independence most states that had never recognized their incorporation into the USSR declared the reestablishment of their diplomatic relations. When recognizing the de facto restoration of the independence of the Baltic States, Iceland, Belgium, Canada, Australia, Italia and the US referred to the non-recognition of their unlawful annexation. Estonia, Finland, Hungary, Rumania, Chile, Czechoslovakia and the Netherlands in their recognition notes referred to the restoration of the independence of Latvia. The European Communities, too, on behalf of themselves and their Member States, greeted the Baltic States with the restoration of the independence and the sovereignty lost in 1940. The most important international organizations recognized the continuity of the Baltic States (see Lēbers D. A. Molotova – Ribentropa pakta sekas mūsdienās: starptautiski tiesiskie aspekti // Latvijas Vēsturnieku komisijas raksti. Vol. 1. Latvija Otrajā pasaules karā. Second edition. Rīga: Latvijas vēstures institūta apgāds, 2007, pp. 69‑70). Admittance of the Baltic States to the UN took place according to the procedure provided for in the UN Charter (see Resolution of the UN General

Assembly of 17 September 1991 no. A/RES/46/5 on Admission of the Republic of Latvia to the membership in the United Nations // http://www.un.org/Depts/dhl/res/ resa46.htm). When the issue was put under consideration in the Security Council, its president referred to the regained independence of the Baltic States (see Ziemele I. State Continuity, Human Rights and Nationality in the Baltic States // The Baltic States at Historical Crossroads. 2nd edition. Rīga: Latvian Academy of Sciences, 2001, p. 231). The UN recognised in several resolutions that the military forces of the Russian Federation were located in the Baltic States illegally (see: Resolution of the UN General Assembly of 25 November 1992 no. A/RES/47/21 // http://www.un.org/documents/ga/ res/47/a47r021.htm and Resolution of 13 November 1993 no. A/RES/48/18 // http://www. un.org/documents/ga/res/48/a48r018.htm). The Council of Europe when examining the requests of the Baltic States on their admission to the organization confirmed that they have completely re-established their independence [see Parliamentary Assembly Opinion no. 183(1995) on the application by Latvia for membership of the Council of Europ // http://assembly.coe.int/Documents/ AdoptedText/TA95/Eopi183.htm]. The international society supported the claim of the Baltic States for their state continuity, which followed from the non-recognition of the occupation and annexation of these States. 34.3. Foreign states repeatedly expressed their certainty about the continuity of Latvia when reacting to the statement of the President of the State Vaira Vīķe-Freiberga, where the opinion of Latvia regarding the events of World War II was explained. In her speech on the Law on Authorisation at the Saeima debates, V. VīķeFreiberga stated: “The leaders of Europe and the world in their response notes speak of the Soviet occupation and the regained independence. They are: the President of Germany, the President of France, the President of the US, the President of Austria, the President of Portugal, the President of the Czech Republic, the President of Hungary, the President of Estonia, the Prime Minister of Great Britain, the Prime Minister of Canada, the Prime Minister of Denmark, the Prime Minister of the Netherlands, the Prime Minister of Ireland, the Prime Minister of Norway, the Prime Minister of Iceland, the Prime Minister of Sweden, the Prime Minister of Belgium, the President of Croatia, the Prime Minister of Japan. The European Court of Human rights in its judgment in the so-called Ždanoka case also refers to the forcible annexation of Latvia to the USSR as an incontestable historical fact. These leaders thus clearly express the official position of their states that the inclusion of Latvia into the Soviet Union was illegal and that the present Republic of Latvia is a restored, and not a new state. More than 30 states declared in 1991 that they recognise the restoration of the independence of the Republic of Latvia. We do not have to prove to anybody that we are not a new state” (see the transcript of the fourth meeting of the winter session of the 9th Saeima of the Republic of Latvia, 1 February 2007). V. Vīķe-Freiberga also correctly pointed out that the continuity of the state of Latvia does not depend on the will of the Russian Federation to recognize it or not (see the transcript of the fourth meeting of the winter session of the 9th Saeima of the Republic of Latvia, 1 February 2007). International law does not require that all other states unanimously recognize the state continuity. Taking into account the factual context of the unlawful annexation, almost always at least one state will consider the situation to be lawful, and it would be absurd to confer veto rights to this state or to these states that represent an absolute minority. The approval of a state continuity claim

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can be established when assessing the reaction of the international society as a whole. When assessing the practice of the states in 1940‑1990, it is possible to identify isolated opposite or contradictory opinions of states; however, it is necessary to consider these exceptions in their broader legal context. The scope and the content of the duty of collective non-recognition of unlawful situations has been controversial also in the later cases when it was assessed in the framework of the UN and in the International Court (see Crawford J. Creation of States, pp. 162‑173). Regarding Latvia and other Baltic States, the duty of non-recognition of the unlawful situation followed largely from customary international law and it was not concretised in the framework of international organizations; therefore the precise scope, content and the way of implementation of this duty de facto remained at the discretion of the particular states. Taking into account the decentralized model of collective non-recognition, the practice of the absolute majority of states, international organizations and courts has during 50 years consistently retained the position of non-recognition, at the legally essential moments confirming the non-recognition of the unlawful annexation and the continuation of the statehood of Latvia, that the European Court of Human Rights has also recognised in the form of a judgment. V 35. The doctrine of state continuity of Latvia imposes obligations on the state of Latvia to solve a range of issues that follow from this doctrine. One of them is the issue of the territory and borders of the Latvian State (see Lēbers D. A. Latvijas valsts bojāeja 1940. gadā, p. 30). This issue is particularly important regarding the Latvian and Russian state border, because the annexation of the Abrene district to Russia that took place in 1944 is illegal from the point of view of the state continuity doctrine (see Lēbers D. A. Krievijas un Latvijas teritoriālais strīds Abrenes jautājumā // Jurista Vārds, 24 May 2005, no. 19). From the point of view of international law, the situation of the Abrene district is identical to the situation of the Republic of Latvia, and according to the continuity doctrine, it is necessary to implement restitutio ad integrum into the legal borders of the Republic of Latvia of 1940. 35.1. The Declaration of Independence left the issue of Abrene legally open, because during its adoption this issue was not brought up (see: 4. maijs. Rakstu, atmiņu un dokumentu krājums par Neatkarības deklarāciju. Rīga: Fonds Latvijas Vēsture, 2000, p. 456). However, at the level of policy planning, the Supreme Council was looking for a solution to this question. “The Platform for Negotiations Regarding Restoration of National Independence of the Republic of Latvia”, considered during the meeting of 4 April 1990 by the Fraction of the Latvian People’s Front of the Supreme Council, provided: “The basis of the relations between the Republic of Latvia and the USSR must be the Peace Treaty of 11 August 1920 signed by the Republic of Latvia and the RSFSR. The Republic of Latvia is to be restored in the borders of 1940 (including the Abrene area)” (May 4, p. 399). In the resolution of the Council of Ministers of the Republic of Latvia “On the Activities to be Undertaken for the Restoration of the Land Border of the Republic of Latvia”, it was established that “until the time when the question of rejoining of Abrene and its surrounding territory to the Republic of Latvia will be discussed and solved in negotiations with the USSR and the RSFSR, the present border shall be staked in this place” (Resolution of the Council of Ministers no. 108 // Latvijas Republikas Augstākās Padomes un Valdības Ziņotājs, 1990, no. 43).

The law “On the Border of the Republic of Latvia” provided that “the border of the Republic of Latvia is established by interstate agreements signed and ratified by the Republic of Latvia before 16 June 1940 and bilateral agreements subsequently concluded with the neighbouring states regarding the restoration of borders” (Latvijas Republikas Augstākās Padomes un Valdības Ziņotājs, 1991, no. 9). In a decision specifically dedicated to the issues of the Abrene district, the Supreme Council recognized the acts adopted by the Latvian SSR and the USSR according to which Abrene district was passed to the Russian SFSR to be anticonstitutional, and instructed “the delegation of the Republic of Latvia to the interstate negotiations with the Russian Federation to resolve the Abrene issue, including the procedures for the determination of the amount of damages and the compensation for the damages caused to the property of the state of Latvia and of the citizens of the Republic of Latvia in the town of Abrene and the six parishes of the Abrene district” (Resolution of the Supreme Council “On the Non-recognition of the Annexation of the Town of Abrene and the Six Parishes of the Abrene District” // Latvijas Republikas Augstākās Padomes un Valdības Ziņotājs, 1992, no. 6/7). The Republic of Latvia, when initiating negotiations with the Russian Federation, demanded the restoration of the border of 16 June 1940 between both states (see the additional explanation of the Cabinet of Ministers, the case materials, vol. 10, p. 135). The Republic of Latvia even prepared a draft treaty on restoration of the state border between Latvia and Russia (see the case materials, vol. 10, pp. 150‑152). However, the Russian Federation refused to restore the State border that existed on 16 June 1940, since it considered that the Abrene area had been legally joined to Russia. 35.2. The Cabinet of Ministers of the Republic of Latvia, taking into account the persistence of the Russian Federation and constantly trying to achieve the conclusion of the Latvian‑Russian Border Treaty, amended the mandate of negotiations during the meeting of 17 December 1996. The delegation to negotiations with the Russian Federation was authorized to carry out negotiations, to draft and to authenticate (to initial) a technical treaty regarding the existent border line between the Republic of Latvia and the Russian Federation. The Cabinet of Ministers permitted the delegation not to include a reference to the Peace Treaty in the text of the treaty, should that be impossible, but also instructed it to avoid any references in the text of the treaty to any other issues not directly related to delimitation of the borders (see the case materials, vol. 10, pp. 161‑163). The Cabinet of Ministers, when commenting on the mandate provided for the delegation, states that the concept of a “technical treaty” means a treaty that does not deal with the political issues of interstate relations or other issues that are not directly related to the establishment of the interstate border (see the additional explanations of the Cabinet of Ministers, the case materials, vol. 10, p. 136). Within the limits of such mandate, the Border Treaty was prepared and it was authenticated on 7 August 1997. 35.3. The Border Treaty establishes the Latvian‑Russian state border on the basis of the actually existing border, which is the former administrative border of the Latvian SSR and the Russian SFSR, thus leaving the Abrene district to the Russian Federation. The Cabinet of Ministers completely correctly states that the Border Treaty establishes a permanent border. The Border Treaty includes no provisions that would allow considering this border as temporary, limited in time or changeable by unilateral means (see the additional explanations of the Cabinet of Ministers, the case materials, vol. 10, p. 140). The Russian Federation also interprets this Border Treaty as providing

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for a permanent border between both states (see Стенограмма 209-го заседания от 19 сентября 2007 г. Совета Федерации Российской Федерации). Consequently, by the Border Treaty the Republic of Latvia waives its de iure rights to the territory of the Abrene district and by means of the Border Treaty passes it to Russia. 36. In its written reply the Cabinet of Ministers has argued that the Border Treaty does not change the territory of Latvia because the Abrene district had already previously been given to the Russian Federation. The Border Treaty only states in a written form the Latvian – Russian border in accordance with the de iure existing territories of both states at the moment the treaty was concluded. Under international law, territorial changes can take place not only by concluding written international treaties, but also in other ways, e.g. by oral agreements, long-term state practice or unilateral declarations by states. The Cabinet of Ministers considers that the Republic of Latvia has given away its rights to the Abrene district from 1995 to 2005 by Latvian officials’ consistently refusal of any territorial claims against the Russian Federation regarding the Abrene district in unilateral declarations (see the written reply of the Cabinet of Ministers, the case materials, vol. 4 pp. 102‑112). One must disagree with this opinion of the Cabinet of Ministers due to several reasons. 36.1. The territory of Latvia can be changed in accordance with the procedure established in the Satversme. The Cabinet of Ministers also admits this point (see the written reply of the Cabinet of Ministers, the case materials, vol. 4, pp. 95‑100). Article 68(1) of the Satversme provides: “All international treaties which settle matters that may be decided by the legislative process shall require ratification by the Saeima.” This provision of the Satversme is specified in the law “On International Treaties of the Republic of Latvia”. Article 7 of this Law names treaties regarding state borders of the Republic of Latvia as one example of international treaties that have to be ratified by the Saeima. The aim of Article 7 of the law “On International Agreements of the Republic of Latvia” is “to classify, according to their subject, those treaties that are, in one way or another, related to national interests or issues particularly important to the state. At the same time, from the perspective of international law, these are the treaties that in the international practice are usually concluded in the general form of interstate treaties […] all these treaties are related to the existence of the state and issues that are important to the sovereignty of Latvia, e.g. border or territory issues […] Such issues are resolved only on behalf of the state, and therefore the involvement of the Saeima is undeniable, which is established in the following article – Article 8” (Ziemele I. Komentārs likumam „Par Latvijas Republikas starptautiskajiem līgumiem” // Juristu Žurnāls, 1995, no. 1, pp. 8‑9). Article 8 of this law provides that the treaties on the borders of the Republic of Latvia are confirmed by a law adopted by the Saeima. Consequently, there is reason to conclude that the domestic law of Latvia prohibit the senior officials of the state to give up a part of the Latvian territory by unilateral declrations. It can be done only by written international treaties that are confirmed ratified to the procedure established by the Satversme. The Constitutional Court agrees with the opinion expressed in the reply of the Cabinet of Ministers that, within the meaning of international law, it is possible to give up territory even if this waiver conflicts with the formal requirements of

the domestic law. However, in the particular case, a fundamental constitutional rule manifestly requires the settlement of the border issue by applying specific methods. Mutatis mutandis applying the rule provided in Article 46 of the Vienna Convention on the Law of Treaties of 23 May 1969 (hereinafter – the Vienna Convention), the Constitutional Court does not exclude the possibility that the requirement of the Satversme to resolve border issues by international treaties could provide grounds for contesting the validity of acts that would be in conflict with this rule (see ILC 2006 Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating Legal Obligations, with Commentaries Thereto // Yearbook of the International Law Commission, 2006, vol. II, Part Two, http://untreaty. un.org/ilc/texts/instruments/english/commentaries/9_9_2006.pdf, pp. 372‑374). 36.2. When considering the statements of the senior officials of the state of Latvia quoted by the Cabinet of Ministers, it is possible to conclude that they are not sufficiently clear to unambiguously to extrapolate the purpose and the legal consequences of these statements – a waiver of the de iure rights to the Abrene area. These are mainly declaratory statements that Latvia is ready to sign the Border Treaty with the Russian Federation and that is has no territorial objections against Russia. The statements of state officials cited by the Cabinet of Ministers can be interpreted in various ways; however, none of them is such that would reach the necessary standard to establish a direct waiver of rights. Declarations of presidents of states, prime ministers and ministers of foreign affairs are more likely to indicate the readiness of Latvia to ratify the Border Treaty rather than to unilaterally give up the territory of the Abrene region. The readiness to undertake international obligations does not per se mean a waiver of the right to the object that these obligations address. The declarations that the Cabinet of Ministers points to in fact support exactly the opposite position. They evidence the understanding of Latvia of the need to ratify the Border Treaty as soon as possible in order to solve the legal dispute regarding the Abrene area. If the legal status of the Abrene area had already been solved, Latvia would have no need to refer to it as one of the possible obstacles on the way to Latvia’s membership in the European Union and the NATO. 36.3. When considering these statements, one has to take into account that the Cabinet of Ministers has not indicated in its written reply some very important statements made in 2005 that considerably change the sequence of the seemingly unanimous statements by the senior officials of the state, as construed by the Cabinet of Ministers. Paragraph 2 of the declaration “On the Treaty of the Republic of Latvia and the Russian Federation on the State Border between Latvia and Russia” states that Latvia considers the line established in Article 1 of the Border Treaty as the de facto border line. Paragraph 3 of this declaration declares that the Border Treaty does not affect the elimination of the consequences of the occupation of Latvia, as well as the rights deriving from the Peace Treaty. The issue of state sovereignty of the Abrene area is closely related to both the elimination of the consequences of the occupation, as well as with Latvia’s rights to this territory guaranteed by the Peace Treaty. When commenting this declaration, the Minister of Foreign Affairs A. Pabriks wrote: “The declaration is a unilateral political document with constitutional implications; namely, it enables the state of Latvia to conclude the Border Treaty with Russia by taking note of the existing and real border between our states and simultaneously retaining our understanding that a) Latvia has been occupied and

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b) Abrene became the territory of Russia as a consequence of the occupation and in breach of the Peace Treaty of 1920 […] This declaration means that Latvia unilaterally reserves the right to speak about the consequences of the occupation when Russia will want to do it itself” (Pabriks A. Robežlīgums nedrīkst būt „beigta ēzeļa ausis” // Diena, 28 May 2005). It is not possible to consider that Latvia has lost its de iure right to the Abrene area due to unilateral declarations. 36.4. The Republic of Latvia has not unilaterally waived its right to the Abrene area. Similarly, the Russian Federation has not aquired this right by legal means, although the Abrene area is under the de facto control of Russia. The rights of Russia – the continuator state of the USSR – to the Abrene area are the same rights that that the USSR had towards Latvia in toto, namely, the lack of any rights whatsoever following from an unlawful annexation. However, in principle Latvia can waive its right to the Abrene area in favour of the continuator state of the state that committed the unlawful annexation. Still, the right to the Abrene area can only be given away by means of the Border Treaty. This means that Latvia will lose and Russia will gain the de iure rights to the Abrene area when the Border Treaty comes into force. Within the meaning of international law, the Border Treaty should be regarded as a treaty of cession, whereby one state passes a particular territory to another state (see Brownlie I. Principles of Public International Law, p. 128). The fact that the other state already is in fact in possession of the territory in question and the fact that the first state does not contest this possession does not mean that cession does not take place [see Affaire des réparations allemandes selon l’article 260 du Traité de Versailles (Allemagne contre Commission des Réparations) (3 September 1924) // Reports of International Arbitral Awards, Volume 1, pp. 429, 443‑444, http://untreaty. un.org/cod/riaa/cases/vol_I/429-528.pdf; Jennings R.Y. The Acquisition of Territory in International Law. Manchester: Manchester University Press, 1963, p. 14]. The limits of the competence of the Constitutional Court are established by the Constitutional Court Law, which does not confer the right to the Constitutional Court to assess the political expediency of activities by other constitutional institutions of public power (see the judgment of 11 November 2005 in the case no. 2005-08-01 by the Constitutional Court, para. 9 and the judgment of 10 May 2007 in the case no. 200710-0102, para. 10). The Constitutional Court is not entitled to assess the political expediency of ceding the Abrene area to the Russian Federation and it will not assess it within the framework of this case. The task of the Constitutional Court is to assess whether the requirements of the constitutional norms of Latvia have been observed during the process of ceding the Abrene area. Consequently, the Constitutional Court has to assess within the framework of this case whether the de iure cession of the Abrene area to the Russian Federation complies with the rules of the Satversme and the Declaration of Independence. VI 37. Article 3 of the Satversme provides: “The territory of the state of Latvia, within the borders established by international agreements, consists of Vidzeme, Latgale, Kurzeme and Zemgale”. Article 3 of the Satversme mentions Vidzeme, Latgale, Kurzeme and Zemgale as the historically ethnographic regions of Latvia that constitute the state territory of Latvia. Before the adoption of this article a claim was made for merging of Vidzeme, Latgale and Kurzeme into one state, where the term “Kurzeme” implied the Kurzeme

province of that time that consisted of the historically ethnographic regions of Kurzeme and Zemgale. The Petitioner and the Cabinet of Ministers, basing themselves on different sources and by using different methods of legal interpretation, reach contrary conclusions regarding the content of Article 3 of the Satversme. The Constitutional Court in its previous case-law has never interpreted Article 3 of the Satversme. In the framework of this case, one has to take stock of the sources that could persuasively explain the content of Article 3 of the Satversme, and to investigate the correctness of the arguments provided by the participants of the case. One can agree to the Petitioner who has emphasized: whatever interpretation of Article 3 of the Satversme is considered to be correct, it has to be logical, internally harmonious and justified by historical facts (see the case materials, vol. 1, p. 5). 38. At the beginning of the 20th century the historically inhabited ethnographic regions of the Latvian people – Vidzeme, Kurzeme and Latgale – still did not form a single administrative entity but were contained in three different provinces of Russia. The Kurzeme province included ten districts inhabited by Latvians, the Vidzeme province – four Latvian and five Estonian districts, the Vitebsk province – three Latvian and eight Belarussian and Russian districts (see Latvijas vēsture. 20. gadsimts, p. 45). Such a division of territories inhabited by Latvians into different provinces of the Russian Empire reflected historical struggles of the high powers about the territory inhabited by Latvians, and the order in which these territories were joined to the Russian Empire. The Russian Empire obtained the Vidzeme province from Sweden as a result of the North War, making an official note of it in the 1721 Peace Treaty. The Latgale territory was annexed to the Russian Empire during the division of the state of Poland in 1772. The Kurzeme province was created in the territory of Kurzeme and Zemgale dukedom that was incorporated into the territory of the Russian Empire in 1795. The claim to unite all territories inhabited by Latvians into one territorial entity emerged even earlier than the idea of a national state. 38.1. During the 1905 revolution for most Latvian public activists the idea of a national state was not yet an urgent one. However, even at this time some public activists defined an idea regarding the need to form their own independent state. For instance, M. Valters already in 1903 publicly expressed an opinion that Russia is to be divided into land organizations that would be formed according to pure principles of democracy and that would be conferred the rights of total self-organization and selfaction. M. Valters saw a possibility for preservation of the Latvian people exactly in the independence of Latvia from Russia (see Šilde Ā. Miķelis Valters kā tiesībnieks un valstsvīrs // Šilde Ā. Trimdinieka raksti. 1944–1990. Minstere: apgāds Latvija, 1991, pp. 270‑271). However, at the first congress of the Latvian Social Democrat Alliance at the end of 1905 only the issue of merging of the territories inhabited by the Latvians into one municipal region was discussed. In the resolution of this congress, it was concluded: “All the territories inhabited by Latvians – Kurzeme, Vidzeme, Inflantija (i.e. Latgale) merge into one municipal region of Latvia” (Apine I. 1905.–1907. gada revolūcija Latvijā un latviešu sociāldemokrāti. Rīga: Zelta grauds, 2005, p. 33). The member of the second State Council of Russia Dr. Andrievs Priedkalns on 12 March 1912 submitted a draft law on the Baltic Territory to the State Council. It was a radical draft of a Latvian local government (autonomy) that provided for the formation of a united Latvia, including Latgale (see: Apine I. 1905.–1907. gada revolūcija Latvijā, p. 48).

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In the work of M. Skujenieks “The National Issue in Latvia” that was published the following year its author demanded to form one administrative region of Latvia from all the regions inhabited by Latvians – Kurzeme, Vidzeme and Latgale – and that this region would be provided with more extensive self-government and the possibilities of free development of the national culture (see: Ģērmanis U. Ceļā uz Latviju. Raksti par mūsu vēsturi. Rīga: Memento Latvija, 1993, p. 11). Also in the Latvian-inhabited Ludza, Rēzekne and Daugavpils districts of the Vitebsk province in this period a claim emerged to joining Latgale to the other provinces inhabited by Latvians. Francis Trasuns wrote in 1916: “We all – the inhabitants of Kurzeme, Vidzeme and Vitebsk – are but one inseparable nation […]. Unification is necessary for us nationally, administratively and culturally” (Par latviešu apvienošanu tautiskā, administratīvā un kulturālā ziņā // Trasuns F. Dzīve un darbi. vol. 1. Rēzekne: Latgales kultūras centra izdevniecība, 1997, p. 120). Another Latgalian politician, Francis Kemps, later wrote regarding the discussions of that time: “Latgalians at that time were not some kind of a small nation somewhere in a dark corner of Russia, having no relatives or friends. Latgalians were a tribe and descendants of the great Latvian people with their own state and a king! […] During less than ten years, Latgalians became conscious of themselves that they are a living part of the Latvian people and that a better future can be achieved only by means of mutual collaboration and by friendly joining of hands above the chasm that has been created between the parts of the nation during centuries” (see Kemps F. Latgales likteņi. Rīga: Avots, 1991, pp. 133‑146). The claim to unification of all the historically ethnographic regions inhabited by Latvians was expressed not only in political declarations and projects of reorganization of the existent regime, but also in the Latvian culture. e.g. in the poem of Rainis of 1916, “Daugava” (see: Rainis. Daugava. Rīga: Zvaigzne ABC, p. 59). 38.2. The Russian Empire did not want to politically deal with the issue regarding the unification of the Latvian-inhabited territories into one administrative entity. As the Empire became weaker as a result of the First World War, the claim of Latvians to unity of the nation only became stronger. After the revolution of 1917 when the tsarist government was subverted in Petrograd, the Latvian politicians and intellectuals initiated the unification of the historically ethnographic regions inhabited by Latvians without yet raising the claim of independence. On 18 February 1917 “The Basic Principles of the Latvian Unity” were published. They inter alia provided that Latvia contains all the Latvian-inhabited regions, i.e. Kurzeme, Vidzeme and Latgale (Latvijas vienības pamata principi // Dzimtenes Atbalss, 18 February 1917, no. 14). On 4 March 1917 representatives of 48 different Latvian organizations assembled in Riga and founded the Riga Council of Public Organisations. This assembly also adopted a resolution regarding the issue of autonomy that included a claim that “Latvia has to be an undivided and autonomous province” (Resolutions of the Riga Council of Public Organizations // Dzimtenes Atbalss, 15 March 1917, no. 21). On 25 and 26 March 1917 the Vidzeme Territory Assembly was convened in Valmiera, where about 440 delegates from towns, parishes, congregations and the larger associations took part (see: Ģērmanis U. Ceļā uz Latviju, p. 34). This assembly established with regard to the autonomy of Latvia: “Latvia (Vidzeme, Kurzeme and Latgale) has to be an autonomous and indivisible province of Russia with an extensive right to self-determination” (Zemes sapulce Valmierā // Dzimtenes Atbalss, 22 March 1917, no. 23). On 25-26 April 1917 the Kurzeme Territory Assembly was convened in Tērbata where representatives of the refugees from Kurzeme took part. This Assembly

adopted a resolution on the autonomy of Latvia: “Latvia (Vidzeme, Kurzeme and Latgale) is an autonomous state within the Federation of the Russian States” (Blanks E. Kurzemes zemes sapulce // Dzimtenes Atbalss, 6 May 1917, no. 35). The Latgale Congress of 26 and 27 April 1917 was particularly important for the unification of Latvia (see Bukšs M. Latvijas apvīnōšonas kongresi kai satversmes pamatu licēji // Dzeive, 1967, no. 82, pp. 3‑11). The decision to convene the congress was made at a special conference on 6 and 7 April 1917. In this conference, the chairman F. Trasuns appealed to reunite the nation torn apart. He emphasized that in ancient times Latvians had been a single nation but foreigners had split it (see Trasuns F. Dzīve un darbi, p. 67). 232 representatives from all local governments of the Latvianinhabited districts of the Vitebsk province with voting rights and 118 guests participated in the Latgale Congress (see Trasuns F. Dzīve un darbi, p. 70). The Latgale Congress had to decide on three possible versions of the future of Latgale – “to remain a part of the Vitebsk province as before”, “to try to gain an autonomy of Latgale in Russia on its own” or to unite with the rest of Latvians into one administrative unit (see Trasuns F. Dzīve un darbi, p. 71). High-pitched debates regarding the future of Latgale took place, because a comparatively small group of delegates lead by F. Kemps demanded separation of Latgale both from Russia and Latvia. After the majority of the Congress supported the opinion that it was preferable to unite Latgale with Latvia, the 39 delegates that supported F. Kemps left the premises of the Congress. The remaining participants of the Congress unanimously voted for the submitted resolution “To Unite with the Latvians of Kurzeme and Vidzeme in a Single Political and Autonomous State of Russia” (see Kemps F. Latgales likteņi, pp. 150‑153). Nevertheless, such decisions of Latvian land councils were not accepted by the Russian Provisional government. On 22 June 1917 the Provisional government did not permit uniting Latgale with Vidzeme, and it remained a part of the Vitebsk province. It became clear that the Russian Provisional government will not implement unification (see: Ģērmanis U. Ceļā uz Latviju, p. 34). 38.3. At the end of 1917 provisional territorial councils, political parties and non-governmental organizations formed the Latvian Provisional People’s Council “for management and regulation of common affairs of the Latvian people” (Dišlers K. Ievads Latvijas valststiesību zinātnē, pp. 57‑59). During the first session of the Latvian Provisional People’s Council on 16‑19 December 1917 in Valka several acts regarding the future of Latvia were adopted. In a note to the foreign states the Council indicated: “Latvia that consists of Vidzeme, Kurzeme and Latgale, is an autonomous state entity” (Dišlers K. Ievads Latvijas valststiesību zinātnē, p. 58). During the second session of the Latvian Provisional People’s Council that took place on 15‑18 January 1918 in Petrograd a decisive step was made towards the independence of Latvia. After extensive discussions a resolution was passed, wherein the Latvian Provisional People’s Council concluded: “Latvia has to be an independent and democratic republic that would unite Kurzeme, Vidzeme and Latgale” (Šulcs L. Atskats uz Latvijas valstiskās idejas izveidošanos // Tieslietu Ministrijas Vēstnesis, 1926, no. 7/8, pp. 306‑309). The Latvian Provisional People’s Council developed the claim to unite the Latvianinhabited regions into one territorial entity to the idea of a national state. Creation of a national state was related to the obligation to unite into one state all the regions inhabited by Latvians. “The indivisibility of Latvia is one of the fundamental claims

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that is to be considered as the principal one when considering ensuring the existence of the Latvian people and their development in future. The power of the nation lies only in its unity and community and its existence is endangered if this unity is broken on the physical level” (Ziņas par Latviju. Rakstu krājums, no. 4, 1 June 1918, p. 1). 38.4. The task of creation of the state of Latvia was completed by the Latvian People’s Council. In the Act of Proclamation of the Republic of Latvia, the Latvian People’s Council established: “Latvia – united within its ethnographic borders (Kurzeme, Vidzeme and Latgale) – is an autonomous, independent, democraticallyrepublican state”. Unification of the nation was one of the main objectives of the Latvian Provisional Government also after the proclamation of the Republic of Latvia. “The Latvian Provisional Government strives to achieve the unification of all Latvian people into one state – Latvia. Until now, our nation has been divided according to their inhabited territories into different provinces: Vidzeme, Kurzeme and Latgale (the Vitebsk province) that were supervised by Russian governors. […] The end of the World War has brought to the nations new truths and freedoms, and Latvians also have to be united into a common entity – the state of Latvia” (Latvijas Pagaidu valdības mērķi. Rīga: Jūlija Pētersona tipogrāfija, 1918, pp. 3‑4). In this aspect the idea of the unity of Latvia is also embodied by the tree stars as the symbol of Latvia. “The tree stars […] symbolize the three historically administrative parts (the Kurzeme province, the Latvian districts of the Vidzeme province, the Latvian districts of the Vitebsk province) from which the Republic of Latvia was created in 1918” (Stradiņš J. Sēlijas problēma laikmetu skatījumā // Latvijas zemju robežas 1000 gados. Rīga: Latvijas vēstures institūta apgāds, 1999, p. 271). 39. The Cabinet of Ministers has argued that one of the objectives of Article 3 of the Satversme was to make more difficult the possible separation of Latgale from the rest of the territory of Latvia (see the case materials, vol. 4, pp. 87‑89). When considering the claim for the autonomy of Latgale as an expression of the Latgalian separatism, the Cabinet of Ministers concludes that by the adoption of Article 3 of the Satversme the Constitutional Assembly has precluded a possible separation of Latgale from the rest of the territory of Latvia. 39.1. One cannot deny that some Latgalian politicians wanted to achieve autonomy and independence of Latgale from Russia, as well as from Latvia. However, when deciding the future of Latgale, the opinion of these politicians was not decisive. The inhabitants of Latgale had repeatedly confirmed their wish to unite with other territories inhabited by Latvians into one territorial entity. Such decisions were made not only by the First Civil Latgale Congress of 26‑27 April 1917 but also repeated by the Second Latgale Congress of Workers, Soldiers and Farmers of 16‑17 December 1917, the convening of which was proposed by the Bolsheviks. Out of 345 delegates of this congress, 202 voted for joining Latvia, whereas only 74 delegates voted against (see Počs K. Latgales kongresa 90. gadadienu sagaidot // Conference “Identity of the Nations of Latgale, Yesterday and Today”, on 20 April 2006, in Rēzekne. Rēzekne: Latgales kultūras centra izdevniecība, 2006, pp. 3‑4). Voting for the unification of Latgale with the rest of Latvia that took place both at the beginning of 1917 in the conditions of civil democracy and in 1917‑1919 under the conditions of the Soviet power clearly confirmed the will of the inhabitants of Latgale to form their future together with the other regions of Latvia, rejecting the option of remaining a part of the Vitebsk province and Russia.

39.2. During the First Latgale Congress, when deciding on the unification of Latgale with Latvia, the rights of Latgale to decide upon its own local governments, language, school and church affairs were demanded. This claim in particular at the meetings of the Constitutional Assembly was included in the idea of autonomy of Latgale the inclusion of which in the Satversme the members of the Constitutional Assembly elected from Latgale tried to achieve (Bukšs M. Satversmes izstrōdōšona un Latgolas pōrstōvu uzskoti par tū // Dzeive, 1953, no. 13, pp. 25‑27). This claim of these representatives of Latgale was called separatism by other members of the Constitutional Assembly. The Cabinet of Ministers, when quoting the speeches of the members of the Constitutional Assembly “on Latgalian separatism”, inter alia indicated that that “separatism, it its turn, means a desire to separate a territory or a region from the State which rules over it” (see the case materials, vol. 4, p. 87). Taking into account the content of the idea of the Latgale autonomy, one cannot agree to such an opinion of the Cabinet of Ministers. The politician F. Trasuns submitted the justification of the claim to the Latgalian autonomy at the Constitutional Assembly: “What exactly do the Latgalians then demand? Not a state! They demand the decisive say on officials, administration and school affairs. […] The Latgalians support the unity of the state, the strengthening of the state, the order in the state and the welfare of the nation, everything that serves the interests of the nation; yet they will still protect their own individuality. Gentlemen, this is not separatism” (Transcript of the 2nd meeting of the fourth session of the Latvian Constitutional Assembly, 21 September 1921). F. Kemps, the most radical Latgalian politician of that time, also did not demand separation of Latgale from Latvia at the Constitutional Assembly: “I will ask you, gentlemen – who was the first to start speaking of the unification of the Latvian people? Was this an idea of the Baltic people or the Latgalians? If we recall our history from 1900 to 1907, we will see that the Latgalians were the first ones who started speaking of unification. […] The Latgalians wrote in the Baltic newspapers and propagated the idea of the unification. They were not afraid of political constraint which was faced by those who dared to propagate this idea. The Latgalians still hold on to this very idea” (Transcript of the 8th meeting of the fourth session of the Constitutional Assembly, 5 October 1921). One can agree to the Petitioner that the programmes of Latgalian political parties of the parliamentary Latvia contained no slogans that would manifest separatism or plans to separate Latgale from the rest of Latvia. Just to the contrary– it was characteristic for the Latgalian political parties to raise claims for strengthening the unity of Latvia. For instance, the programme of 1924 of the Latgale Democratic Party inter alia demanded to “facilitate the mutual understanding of the parts of the nation” (Latgaliešu politiķi un politiskās partijas neatkarīgajā Latvijā. Rīga: Jumava, 2006, p. 56.). The slogan of the programme of 1925 of the Latgale Latvian National Policy Party was “God and Independent Latvia” (Latgaliešu politiķi un politiskās partijas, p. 261). The programme of 1932 of the Progressive Farmers’ Party even included a claim to diminish social differences between the regions of Latvia (see: Latgaliešu politiķi un politiskās partijas, p. 289). 39.3. The preparatory materials of the Satversme show that the issue of the rights of the self-government of Latgale was discussed separately from Article 3 of the Satversme. First, during the second reading of Chapter I of the Satversme the Latgalian representatives proposed to regulate the issue in a separate article by including the following article in Chapter I of the Satversme: “Latgale enjoys the local government rights of a region that shall be established by a separate law”. This proposition did not

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gain the support of the majority of the representatives (Transcript of the 8th meeting of the fourth session of the Constitutional Assembly, 5 October 1921). During the third reading of Chapter I of the Satversme the Latgalian representatives suggested amending Article 3 of the Satversme with the following sentence regarding rights of the Latgale local government: “Latgale enjoys the local government rights that shall be established by a separate law”. When speaking on behalf of the Constitutional Commission, M. Skujenieks invited the members to decline this proposition, because “Article 3 of our Satversme does not speak of regions or individual entities of the territory as having particular local government rights but it provides for the parts that form the state of Latvia” (Transcript of the 8th meeting of the fourth session of the Constitutional Assembly, 8 February 1922). The Constitutional Assembly rejected the submitted proposition. A proposal regarding Latgalian local government was submitted for the third time when discussing Chapter II of the Satversme in the third reading: “Latgale enjoys broad local government rights of a region, the limits of which shall be established by a separate law”. This proposal was also rejected (see the transcript of the 33rd meeting of the fifth session of the Constitutional Assembly, 4 April 1922). One can conclude from the discussions that took place in the Constitutional Assembly that Article 3 of the Satversme does not regulate the issue of the local government or autonomy rights neither of Latgale, nor the other territorial entities. In order to confer such rights, the legislator is entitled to decide without having to amend Article 3 of the Satversme. Although the Constitutional Assembly rejected the claim of the Latgalians to the rights of a decentralized state administration and the local government rights of the Latgale region, this did not make the Latgalian politicians and the general public to review relations of Latgale with Latvia. “Disregarding the fact that the Latgalians in the Constitutional Assembly, so to say, were given a beating and that the Latgalians abstained from voting when adopting the Satversme of Latvia, thus protesting against the betrayal of their interests and leaving their hands free for the future, the Latgalians still have been and will always remain loyal to the state, as well as its constitution” [see: Bukšs M. Satversmes sapulce un Latvijas Satversme (Sakarā ar I tautas vālātō parlamenta 50 godim) // Dzeive, 1970, no. 100, p. 6]. 40. Article 3 of the Satversme implements the historical claim of the Latvian people for an undivided Latvia by uniting Vidzeme, Kurzeme and Latgale [see Vanags K. Latvijas valsts satversme. L. Rumaka apgāds Valkā (DP nometnē Vācijā), 1948, p. 15]. The claim included in this article that has emerged during the period of awakening of the Latvian people and during the 1905 revolution has been defined almost identically in all the subsequent most important decisions of representatives of the Latvian people. 40.1. The objective of Article 3 of the Satversme was to define not so much the territory of the state of Latvia but rather the principle of the unity of all ethnographic regions of Latvia inhabited by Latvians. As M. Skujenieks emphasized during the discussions of the Constitutional Assembly, “The aim of the Commission was to indicate that the state of Latvia consists of four ancient lands of Latvia: Vidzeme, Kurzeme, Latgale and Zemgale (Transcript of the 7th meeting of the fourth session of the Constitutional Assembly, 4 October 1921). Article 3 of the Satversme provides for self-determination of the Latvian people. This article defines the territory within which the Latvian people have self-determined themselves, namely, within all the historically ethnographic regions inhabited by

Latvians. Consequently the state of Latvia complies with the claim of self-determination of Latvians if its territory is constituted by Vidzeme, Latgale, Kurzeme and Zemgale. “According to Article 3 of the Satversme, the state of Latvia encircles all the land, the territory where the majority of the Latvian people live – Vidzeme, Latgale, Kurzeme and Zemgale, within the borders established by the international treaties” (Speech of J. Purgals, transcript of the first meeting of the fourth session of the Constitutional Assembly, 20 September 1921). 40.2. Articles 1 and 3 of the Satversme are closely related to Article 1 of the Proclamation Act of the Republic of Latvia. These two articles of the Satversme reformulate Article 1 of the Proclamation Act: ““Latvia – united within the ethnographic borders (Kurzeme, Vidzeme and Latgale) – is an independent, democratically-republican state”. Together with the principle of the independent democratic republic, the principle of the unity of all historically ethnographic regions inhabited by the Latvians is one of the fundamental principle of the statehood of Latvia. Article 1 of the Declaration on the State of Latvia of 27 May 1920 provides only that “Latvia is an independent republic with a democratic state system”. At that time, the Constitutional Assembly considered the idea of a united Latvia as a politically completed objective. “This objective had a character of a programme in the platform of the People’s Council, because it was necessary that Latvia, being torn apart at that time, to be united into one common inseparable body. Now it is self-evident and therefore the word “united” is not included in Article 1 of the Declaration” (Speech of M. Skujenieks, transcript of the fifth meeting of the first session of the Constitutional Assembly of Latvia, 27 May 1920). However, later the Constitutional Assembly again returned to the question of the need to establish in the text of the Satversme, along with the principles of state sovereignty and democratic republic, also the principle of the unity of all historically ethnographic regions inhabited by Latvians by providing for the same amendment procedure for these basic values of the statehood of Latvia – only by submitting amendments to a national referendum (Article 77 of the Satversme). 40.3. The state of Latvia was formed as a national state in the way of selfdetermination of the Latvian people within the territories inhabited by them – Vidzeme, Latgale, Kurzeme and Zemgale. A territorial question in a national state is a question about the essence of the state. The territory of such a state is not accidental but forms a logical entity (see: Römeris M. Lietuvos konstitucinės teisės paskaitos. I dalis. Kaunas: Vytauto Didžiojo Universiteto Teisių fakulteto leidinys, 1937, pp. 204‑206). A national state has to include the entire territory inhabited by the nation forming the state, and it cannot freely give away this territory to other states. Consequently, in national states territorial changes are subjected to certain burdens of a constitutional nature (see: Römeris M. Lietuvos konstitucinės teisės paskaitos, pp. 204‑206). The text of the Satversme provides for four historical ethnographic regions that together form the state of Latvia. Consequently Article 3 of the Satversme precludes a completely free establishment of the total territory of the state of Latvia by means of international treaties. These treaties have to be such as to include all four historical regions of Latvia (see: Levits E. Notes on Article 3 of the Satversme, the case materials, vol. 6, p. 199). 40.4. The Satversme does not establish the idea of a united Latvia as forever irrevocable. According to Article 77 of the Satversme Article 3 can be amended, namely, only the Saeima and the body of the Latvian citizens may decide, on the basis of a common decision, on refusal from the unity of regions inhabited by Latvians by

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separating one of the historically ethnographic regions from the territory of the state of Latvia. One can agree to the point of view expressed by the Cabinet of Ministers that Article 77 of the Satversme is to be applied in case if the changes to the territory of the state of Latvia affect any of the historical regions in their entirety or in such a considerable part thereof that the historical region itself de facto ceases to exist as an element of the united Latvia (see the case materials, vol. 10, p. 145). Territorial changes that affect the territory of the four historical regions inhabited by Latvians, within which the self-determination of the Latvian people has taken place, is to be considered according to the procedure established by Article 77 of the Satversme. Article 77 of the Satversme also does not prohibit considerably adding to the territory of the state of Latvia by adding regions inhabited by other nations. At the same time, this provision of the Satversme prohibits each region of Latvia to independently decide its fate. In the course of the unification of Latvia the inhabitants of each regions, through the agency of their representatives, independently decided their fate decided to join the other territories inhabited by Latvians. After the adoption of the Satversme the issue of abolishing this unification falls within the competence of all Latvian people, rather than that of the inhabitants of a particular historical region. 40.5. The Constitutional Assembly by Article 3 of the Satversme has provided for the unification of all the regions inhabited by Latvians into one common state and has maintained the historical division of the state of Latvia into Vidzeme, Latgale, Kurzeme and Zemgle. When deciding on State affairs, one has to take into account that the united state of Latvia was historically formed by the four regions inhabited by Latvians. 41. In order to implement the claim of uniting all Latvian regions into one state, Latvia should include the territories of all regions inhabited by Latvians – Vidzeme, Latgale, Kurzeme and Zemgale. Due to this reason, the Proclamation Act of the Republic of Latvia establishes as one of the basic principles that Latvia is a state united within its ethnographic borders. 41.1. These regions mentioned in the Proclamation Act and Article 3 of the Satversme are, first of all, territories inhabited for a long time by the Latvian people, the borders of which have changed in the course of history (see Levits E. Notes on Article 3 of the Satversme, the case materials, vol. 6, p. 199). Also during the negotiations with Russia on conclusion of the Peace Treaty, the leader of the Latvian delegation, A. Zēlbergs, emphasized that the ethnographic border is not strictly defined and it changes in the course of time (see the record of the peace negotiations between Latvia and Russia, 4th meeting, 20 April 1920, p. 6. Archive of the history of the Republic of Latvia, fund no. 1313, case no. 31, p. 27). However, at the same time the ethnographic borders of Latvia were clear enough. The Constitutional Court has already taken note of the interpretation of this notion during the period of the Provisional Latvian People’s Council and the Latvian People’s Council (see para. 20 of this judgment). The notion of the territory of Latvia was used in the legislative acts of Latvia even before the conclusion of border treaties with the neighbouring states. For instance, Article 1 of the Law on Citizenship of 23 August 1919 clearly provides that “Citizens of Latvia shall be considered to be each resident of the previous state of Russia, without distinguishing the nationality and religion, now residing within the borders of Latvia, who comes from the regions that are included in the borders of Latvia or was belonging to these regions already before 1 August 1914 according to the laws of Russia”. Section 5 of the Constitutional Assembly Law of 19 August 1919 provided for organizing the Constitutional Assembly elections in Riga, Vidzeme, Kurzeme, Zemgale and

Latagle. In addition to this, a note to Article 22 emphasized in particular that “election activities can be initiated only when the territory of Latgale is liberated”. 41.2. The border treaties concluded with the neighbouring states of Latvia also reflected to a great extent the ethnographic borders of Latvia, however at certain sections of the borders territorial concession had taken place in favour of the other state, or Latvia has acquired new territories that exceeded its ethnographic borders. Article 3 of the Satversme does not so much require uniting of Vidzeme, Latgale, Kurzeme and Zemgale into one state according to their ethnographic borders than takes note that these regions constitute the state of Latvia within the borders that were established in the international treaties with the neighbouring states. The reference to the borders established in the international treaties which is included in Article 3 of the Satversme takes note of the fact that the state of Latvia had not succeeded in fully uniting all the territories inhabited by Latvians, namely, in certain cases some insignificant parts of these territories have became parts of other states. Article 3 of the Satversme prohibits interpreting the borders of the Vidzeme, Latgale, Kurzeme and Zemgale regions wider that it is established by the international treaties. The international treaties normatively establish the external borders of the four regions inhabited by Latvians. M. Skujenieks indicated this aspect during the discussions of the Constitutional Assembly: “The commission recognized that, due to the foundation of the state of Latvia, some of the previous provinces have changed their borders. For instance, Vidzeme does not entirely belong to Latvia, and similarly the Constitution of Estonia could also provide for Vidzeme as a part of Estonia. It is established in the Constitution that the borders provided in the international treaties are acceptable” (Transcript of the 7th meeting of the fourth session of the Constitutional Assembly, 4 October 1921). However, in cases when during the border demarcation negotiations the Republic of Latvia had achieved the joining to Latvia of certain territories that did not belong within the ethnographic borders of Latvia, Article 3 of the Satversme prohibits including these territories into any of the regions inhabited by Latvians. Vidzeme, Latgale, Kurzeme and Zemgale have their own borders as historically ethnographic regions. The fact that Article 3 of the Satversme does not mention any territories that fall outside these four regions that constitute the state of Latvia, does not mean that there could be no such territories. Similarly, paragraph 2 of the Constitution of Germany of 11 August 1919 provided that the territory of Germany shall be formed by the territories of its lands. This did not prohibit considering that the territory of Germany could include a region that did not pertain to any of the German lands but was directly subordinated to the central government (see Anschütz G. Die Verfassung des Deutschen Reichs vom 11. August 1919, p. 43). 42. The Petitioner argues that Article 3 of the Satversme does not provide for a possibility to make any changes to the territory of the state of Latvia established by this article. The Petitioner justifies its opinion by making references to the opinions expressed during the drafting process of Article 3 of the Satversme (see the case materials, vol. 1, p. 6). 42.1. The statement of M. Skujenieks quoted by the Petitioner that Article 3 of the Satversme “is not intended for the international treaties to change the borders of the state of Latvia” (Transcript of the 7th meeting of the fourth session of the Constitutional Assembly of 4 October 1921) should be considered in the context of the debates that M. Skujenieks commented on when expressing these thoughts.

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The Constitutional Assembly was discussing the propositions put forward by A. Bergs and A. Buševics to make editorial amendments to the draft of Article 3 of the Satversme proposed by the Constitutional Commission because it followed from the wording submitted by the Commission (“The territory of the state of Latvia is composed of Vidzeme, Latgale, Kurzeme and Zemgale within the borders established in the international treaties”) that the international agreements would establish not only the external borders of Vidzeme, Latgale, Kurzeme and Zemgale, but also their internal borders, which are internal affairs of the state of Latvia. The members of the Constitutional Assembly of Latvia considered that the internal borders of the regions of Latvia are to be established by means of legislation, rather than by international treaties. A. Bergs when justifying his proposal indicated: “One cannot permit that international treaties could determine the borders of Vidzeme, Latgale, Kurzeme and Zemgale, since we cannot imagine that international treaties would interfere with our internal border relations. […] Our internal borders, separate regions of the state should be established by ourselves. […] Our internal laws will establish what our borders will be. In order to avoid any misunderstandings, I would then suggest to put the words “the laws of Latvia and” between the words “established in” and “the international treaties”. Then it would mean that the borders will be established in the laws of Latvia and the international treaties. One cannot permit that only international treaties establish our borders. Our internal laws have a parallel decisive power” (Transcript of 7th meeting of the fourth session of the Constitutional Assembly, 4 October 1921). At the same time, A. Buševics objected both to the wording suggested by the Constitutional Commission and the proposition of A. Bergs: “The suggestion of Mr. Bergs does not achieve what Mr. Bergs wants. The reproach that the borders of the regions of Latvia should be determined by local laws rather than international treaties is right. If we then accept the wording of Mr. Bergs that the borders shall be established in the laws of Latvia and the international treaties, then it appears that the international agreements also determine the internal borders of the regions of our state. No doubt that this is not the intention. Hence I suggest having the following wording of the article: The territory of the state of Latvia, according to the borders established by the international treaties, is composed of Vidzeme, Kurzeme, Latgale and Zemgale” (Transcript of the 7th meeting of the fourth session of the Constitutional Assembly, 4 October 1921). When commenting the suggestions of A. Bergs and A. Buševics submitted to the Constitutional Assembly regarding the wording of Article 3 of the Satversme, M. Skujenieks emphasized that the Constitutional Commission had not thought that it would be possible to change the borders of Latvia by international treaties. However, it clearly follows from the context of the discussions that M. Skujenieks meant changes that can be made to the internal borders of Latvia, which is an issue that falls within the competence of the legislator. J. Purgals, the second rapporteur on the draft of Part I of the Satversme made more precise remarks on this question: “For instance, one cannot raise a question whether international treaties could establish the borders between Vidzeme, Zemgale, Latgale and Kurzeme. This is an issue of legislation, but Article 3 can be amended only in a national referendum. I think that these amendments are unnecessary, they want to define that there is freedom to establish borders between these four regions by legislation, but the legislative authorities have not been deprived of these rights, and the internal borders can be established only by the sovereign power of the state of Latvia, and other states are not entitled to interfere” (Transcript of the 7th meeting of the fourth session of the Constitutional Assembly, 4 October 1921).

Hence the opinion that M. Skujenieks has declared on behalf of the Constitutional Commission that Article 3 of the Satversme prohibits changing the external borders of Latvia is unfounded. 42.2. The discussions of the Constitutional Commission regarding the wording of Article 3 of the Satversme are fragmentary and do not provide a full insight into the decisions made. A member of the Constitutional Commission F. Menders has made a proposal that one cannot “voluntarily” pass a part of Latvia to a foreign power, however the protocols of the Constitutional Commission do not reflect whether that proposal has been accepted (See the transcript of the meeting of the Constitutional Commission of 28 February 1921, Protocol no. 30). One can generally establish in a constitution of a state that the territory of a state is indivisible and inalienable; however, it has to be established expressis verbis by a clearly formulated rule. For example, Article 1 of Chapter II of the Constitution of France of 3 September 1791 provided that the territory of France is indivisible. A similar norm was included also in Article 1 of the Constitution of Ukraine of 29 April 1918. Article 2 of the Constitution of Lithuania of 11 February 1938 provided for a prohibition to separate those lands from Lithuania that under international treaties were included into the territory of Lithuania. If no prohibition to introduce changes to the state territory or its borders is included in the text of the constitution, it has to be assumed that the state borders can be changed. States have sovereign rights to change their borders; these rights follow from the principle of state sovereignty (see the written reply of the Cabinet of Ministers, the case materials, vol. 4, p. 90). During the discussions at the Constitutional Assembly, the rapporteur J. Purgals clearly admitted with respect to the draft of Part I of the Satversme that “the external borders of the state of Latvia can be changed only according to the order established in the constitution” (Transcript of the 7th meeting of the fourth session of the Constitutional Assembly, 4 October 1921). One can conclude that the Satversme does not prohibit changing the external state borders, but, on contrary, it provides for the procedure of changing the external borders. 42.3. The Cabinet of Ministers argues that the reference “within the borders established in the international treaties” of Article 3 of the Satversme defines the methodology for establishment of the borders of Latvia (see the case materials, vol. 4, p. 96). it is impossible to agree to the opinion expressed by the Cabinet of Ministers that Article 3 of the Satversme provides for the procedure of changing the state borders. Article 3 of the Satversme, just as Article 1 and 2 of the Satversme, provides for the basic principles of the Latvian state order. These basic principles are defined in a form of abstract and conceptual axioms, and the above-mentioned articles do not contain any references to the procedures of amendment or implementation thereof. Establishment of such procedures is the task of articles of other chapters of the Satversme. The reference in Article 3 of the Satversme to international treaties is used in order to normatively establish the borders provided for in the border treaties, but not to establish the mechanism for changing the state borders. If the claims of Latvia regarding its ethnographic borders had been fully satisfied during the negotiations for the establishment of the borders, then Article 3 of the Satversme would suffice to contain a statement that Latvia is composed of Vidzeme, Latgale, Kurzeme and Zemgale. Since during the border establishment negotiations Latvia repeatedly

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conceded to the claims by Lithuania and Estonia, by often significantly deviating from the ethnographic principle, the reference of Article 3 of the Satversme to the borders established in the international treaties was indispensable in order to avoid any suggestion regarding the need to revise the established state borders and to extend them up to the ethnographic borders. 43. The procedure for the change of state borders established by the Satversme can be established by taking into account the doctrine of constitutional law. 43.1. The principle of separation of powers manifests itself in the division of the state power into the legislative, executive and judicial power that is implemented by independent and autonomous institutions [see the judgment of the Constitutional Court of 1 October 1999 in the case no. 03-05(99), para. 1 of the motives part]. As this principle developed, the constitutional law started dealing with the issue regarding the order for concluding treaties with other states and making territorial changes. Under the theory of Charles Louis de Montesquieu the implementation of international relations was included into the competence of the executive power, and only in some cases the legislator would have the rights to decide on these issues (see Montesquieu Ch. L. The Spirit of Laws. Book 11 // http://www.constitution.org/cm/ sol_11.htm). The practice of states was directly influenced by precisely this theory of Ch. L. de Montesquieu, and conclusion of international treaties was considered to be a prerogative of the executive power, with the parliament not entitled to interfere with these matters. The Great French Revolution affected this separation of power between the legislative power and executive power. There existed a general assumption that the states communicate by the agency of state governments, and the parliaments should not be entitled to interfere with these relations. But in some cases the parliament was conferred rights to decide on ratification of international treaties. One of such cases was giving of a part of the state territory to another state. In this case, one needed consent of the representatives of the people (Констан Б. Принципы политики // Классический французский либерализм. Москва: Российская политическая энциклопедия, 2000, p. 132). The rights of the parliament to ratify such international treaties also obtained a theoretical justification. ““Alienation” of a part of the territory in constitutional states cannot be carried out otherwise than with the consent of representatives of the people, because alienation is directly related to the loss of validity of the laws of this state in the alienated territory”. Moreover, laws can only be repealed by consent of the parliament (see Кокошкин Ф. Ф. Лекции по общему государственному праву. Переиздание 1912 г. Москва: Зерцало, 2004, pp. 157‑159). 43.2. In the constitutions adopted after the First World War the right of the executive power to sign international treaties was preserved. At the same time, the parliament was conferred more extensive rights to decide on ratification of international treaties. One of the issues that the parliament had to mandatorily decide upon was related to changes of the territory of the state. For instance, under the Constitution of Germany of 11 August 1919, in order to make valid an international treaty that reduced the state territory of Germany, the consent of the legislator was required (see Anschütz G. Die Verfassung des Deutschen Reichs vom 11. August 1919, p. 422). Article 30 of the Constitution of Lithuania of 11 August 1922 provided that the Seimas has to ratify the treaties concluded by the government that affected such issues as acquisition of territory, its alienation and refusal from it.

A similar provision was also included in Article 49 of the Constitution of the Republic of Poland of 17 March 1921. 43.3. The Satversme, like other constitutions of its time, leaves the signing of international agreements to the competence of the Cabinet of Ministers – as the implementing authority of the executive power. However, Article 68 of the Satversme also provides for the competence of the Saeima, namely, “all international treaties which settle matters to be decided by the legislative process shall require ratification by the Saeima”. The requirement to ratify the international treaties by the Saeima is included in the Satversme with a view to avoid such international obligations, which would regulate issues to be decided in a legislative process without the consent of the Saeima (see the judgment of the Constitutional Court of 7 July 2004 in the case no. 2004-01-06, para. 6 of the motives part). One of the issues that are to be settled by means of legislative process and that requires the consent of the Saeima is changes of the state borders of Latvia. Such a conclusion is supported by the constitutional law theory of that time and the practice of other states, as well as by the parliamentary practice of Latvia. The Cabinet of Ministers rightly points to several cases when the international treaties concluded by the Cabinet of Ministers regarding change of the state borders were ratified by the Saeima (see the written reply of the Cabinet of Ministers, the case materials, vol. 10, pp. 101‑102). Under Articles 23 and 24 of the Satversme the Saeima can ratify international treaties that change the state border in a session where at least a half of the members of the Saeima participate, by making decision by an absolute majority of votes of the mmbers of the Saeima present. 43.4. However, one has to take into account that Article 3 of the Satversme provides for the principle of the unity of the historical ethnographic territories inhabited by Latvians. The Latvian people carried out its self-determination within the historically ethnographic regions inhabited by the Latvian people mentioned in Article 3 of the Satversme by forming their own state and providing themselves with the Satversme. The state of Latvia does not change its essence, as long as it consists of the territories within which the Latvian people have self-determined themselves, namely, all regions mentioned in Article 3 of the Satversme. In the cases when Latvia, by concluding international treaties, alienates any part of the state territory established in Article 3 of the Satversme, the respective territorial changes are to be considered in the order that is established in the Satversme for amending Article 3 of the Satversme. The question about amending the unity of Latvian historically ethnographic regions falls within the competence of the body of the citizens of Latvia, rather than that of the Cabinet of Ministers or the Saeima. 43.5. The Cabinet of Ministers has drawn attention to Article 73 of the Satversme that prohibits submission of treaties with other nations to a national referendum, and has argued that the body of the citizens of Latvia can never decide on territorial changes of the state (see the written reply of the Cabinet of Ministers, the case materials, vol. 4, p. 96). When assessing the content of Article 73 of the Satversme, one has to take into account the principle of the unity of the Satversme. The Satversme is a unified wgile and the legal norms included therein are mutually closely interlinked. Each norm of the Satversme has its own place in the system of the Satversme, and no norm of the Satversme can be attributed a greater significance than it is provided by the Satversme itself (see the judgment of the Constitutional Court of 16 October 2006, in the case no. 2006-05-01, para. 16).

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The principle of the unity of the Satversme prohibits interpreting Article 73 of the Satversme in isolation so as to conclude, based on its seemingly categorical wording, that the Satversme fully prohibits the submission of an international treaty to a national referendum. Article 73 of the Satversme is systemically included after Article 72 of the Satversme which provides for the right of the President of the State to suspend the publishing of a law so that one tenth of the voters might demand the organisation of a referendum regarding this law. The two articles following after Article 73 of the Satversme still relate to the institute provided for in Article 72 of the Satversme. One cannot interpret Article 73 of the Satversme in isolation from the system of Articles 72‑75 of the Satversme that form a single rule. […] Article 77 of the Satversme provides for another procedure, according to which it is possible to amend the constitutional legal basis of the state of Latvia, and the restrictions established by Article 73 of the Satversme do not pertain to this procedure. 43.6. Consequently, one can conclude that the Satversme establishes two procedures according to which territorial changes of the state are to be made, depending on whether the territory that Latvia alienates falls within the scope of Article 3 of the Satversme. Provisions of Articles 76 and 77 of the Satversme are to be applied only in cases when by concluding a treaty regarding a change of the state borders the principle of unity of the four historically ethnographic regions inhabited by Latvians, as provided for in Article 3 of the Satversme, is breached. In other cases the respective change of the territory of the state is to be carried out according to the procedure established in Article 68(1) of the Satversme. In order to decide according to which procedure the territorial change of Latvia is to be confirmed, it is necessary to determine whether the territory to be passed to another state falls within the scope of Article 3 of the Satversme. VII 44. The Petitioner has contested the compliance of the Border Treaty with Article 3 of the Satversme, since the Border Treaty reduces the territory of Latvia. Unlike Article 3 of the Peace Treaty which allocated the Abrene area to Latvia, the Border Treaty provides that the de facto border between Latvia and the Russian Federation existing at the moment of the conclusion of the Border Treaty is to be preserved. This means that by the Border Treaty the Abrene area is de iure given to the Russian Federation. The Petitioner considers that the Border Treaty violates Article 3 of the Satversme, since the territory of Latvia established by Article 3 of the Satversme also comprises the Abrene area, and the state borders of Latvia, after coming into force of the Satversme, cannot be changed by international treaties. 44.1. The Petitioner submitted an application on the compliance of the Border Treaty with Article 3 of the Satversme after the Border Treaty had been signed but had not yet been ratified by the Saeima. The Saeima adopted the Ratification Law pursuant to the procedure established in Article 68(1) of the Satversme at the time when the Constitutional Court was preparing for consideration the case on the compliance of the Border Treaty with Article 3 of the Satversme. Article 68(1) of the Satversme provides for the procedure by which the state of Latvia expresses its agreement to the binding character of a treaty signed by the executive power. Namely, by adopting a law on the ratification of an international treaty the Saeima agrees in the name of the state of Latvia to undertake the obligations

deriving from the international treaty and authorises the President of the State or the Cabinet of Ministers to undertake the actions necessary for the international treaty to enter into force. The ratification of an international treaty by the Saeima is a sui generis legislative act which is necessary for the international treaty to become effective and to be applicable in the legal system of Latvia. Having regard to the fact that the Saeima by adopting the Ratification Law has agreed to undertake the international obligations established therein, the Petitioner has also requested to consider the compliance of the Ratification Law with Article 3 of the Satversme. 44.2. The request to assess the compliance of the Ratification Law with Article 3 of the Satversme is closely related to the analogous request on the compliance of the Border Treaty with the Satversme. The Petitioner has provided a similar legal justification regarding the non-compliance of both of these legal acts with a legal norm of a higher legal power. The arguments of the Petitioner regarding the non-compliance of the Border Treaty with Article 3 of the Satversme also apply to the non-compliance of the Ratification Law with Article 3 of the Satversme. In this case as well the Petitioner considers that the Saeima was not entitled to ratify the Border Treaty, since the Abrene area is a part of the territory of Latvia established by Article 3 of the Satversme, and the Satversme prohibits making changes to the state borders by concluding an international treaty. Since the Ratification Law confirms the consent of the Saeima to the change of the state borders established in the Border Treaty, the compliance of the Border Treaty and the Ratification Law with Article 3 of the Satversme is to be considered in connection with each other. 45. The Petitioner considers that Article 3 of the Satversme does not provide for a possibility to change the state borders. If one accepts such argumentation of the Petitioner, one should conclude that both the Border Treaty and the Ratification Law do not comply with Article 3 the Satversme. However, the Constitutional Court has already concluded that Article 3 of the Satversme does not establish the state borders of Latvia as unchangeable (see para. 42 of this judgment). Since, unlike what has been argued by the Petitioner, the Satversme provides for the procedure of changing the borders, one can consider that the point of view of the Petitioner regarding the non-compliance of the Border Treaty and the Ratification Law with Article 3 of the Satversme because of this reason is unjustified. The Satversme provides for two procedures for changing the state borders depending on the fact whether the territory to be alienated to another state is or is not a part of the historically ethnographic regions of Latvia provided for in Article 3 of the Satversme. If the territory to be alienated is a part of these regions, such a change of the borders is to be made according to the procedure established in Articles 76‑79 of the Satversme. However, if the territory to alienate is not a part of any region mentioned in Article 3 of the Satversme, the change of the borders is to be confirmed according to the procedure established in Article 68(1) of the Satversme. Since the Border Treaty has been ratified pursuant to the procedure established in Article 68(1) of the Satversme, it is necessary to examine whether the Saeima has applied the correct procedure when changing the Latvian-Russian state border.

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46. Both the Petitioner and the institutions that have adopted the impugned acts a priori hold that the Abrene area is a part of the territory established by Article 3 of the Satversme, namely, that this area is a part of the Latgale historically ethnographic region. The Constitutional Court has concluded that Article 3 of the Satversme does not establish the entire territory of Latvia but it does provide as a mandatory requirement that the territory of the state of Latvia has to contain the four historically ethnographic regions – Vidzeme, Latgale, Kurzeme and Zemgale. Article 3 of the Satversme also recognises that certain parts of the territory of the state of Latvia may be established by means of legislation and leaves them beyond its own scope (see paras. 40‑41 of this judgment), since the objective of Article 3 of the Satversme is not to establish the entire territory of Latvia but to provide that the territory must indispensably include Vidzeme, Latgale, Kurzeme and Zemgale. Hence it is necessary to assess whether the Abrene area is a part of Latgale or of any other historically ethnographic region of Latvia. 47. The Abrene area has been a part of the Atzele (Adzele, Adele) land of ancient Latvians (See: Andersons E. Kā Narva, Pečori un Abrene tika iekļauta Krievijas Sociālistiskajā Federatīvajā Republikā // Latvijas Vēsture, 1991, no. 1, pp. 50‑59). However, the development of this region differed historically from that of Vidzeme, Latgale, Kurzeme and Zemgle. In 1431 the inhabitants of Pskov invaded the Kacēni and Augšpils areas and built there a well-fortified fortress which was named Vishgorod. In 1481 the united forces of Moscow, Pskov and Novgorod conquered the remainder of the Abrene area and made the local inhabitants abandon the Catholic religion and join the Orthodox church (see: Andersons E. Kā Narva, Pečori un Abrene tika iekļauta, p. 56). Since then the Abrene area was separated not only from Kurzeme and Vidzeme, but also from Latgale. Russians were assimilating the local inhabitants for a long time (see: Skujenieks M. Latvijas statistikas atlass. Rīga: Valsts statistikas pārvalde, 1938, p. 14). The ethnographer Augusts Bīnenšteins whose works were used for the determination of the state border between Latvia and the Soviet Russia based himself on the research carried out during the second half of the 19th century when he wrote that: “The Latvians from the Pskov province are often and without reasons considered to be Russians. Although they have the Greek Catholic faith, dress according to the Russian custom and have beards and speak Russian with foreigners, they clearly manifest their belonging to the Latvian people by the fact that they speak Latvian in their homes and families. […] they, because of the political and religious separation have long lost any links to their native language and traditions which is why they inevitably have to assimilate with their Eastern neighbour more and more by each generation” (Skujenieks M. Latvija. Zeme un iedzīvotāji. Ar J. Bokaldera nodaļu par lauksaimniecību. Third enlarged edition. Rīga: A. Gulbja apgādniecībā, 1927, p. 266). When commenting on this opinion, M. Skujenieks wrote that “the prophecy of Bīlenšteins has come true after 40 years, and now we have to consider the inhabitants of the Gauri – Vishgorod – Kachanovo parishes as Russians, even though they come from the Latvians” (Skujenieks M. Latvija. Zeme un iedzīvotāji, 1927, pp. 266‑267). At the beginning of the 20th century in the Abrene area that was a part of the Pskov province majority of the inhabitants were Orthodox and used the Russian language

in their everyday life. Even though in the Abrene area, certain locations (“islands”) inhabited by the Latvians had been preserved, this area was mainly inhabited by Orthodox Russians (see Skujenieks M. Latvijas statistikas atlass, p. 14). The statistical data show that in 1925 in the Kacēni parish, only 17% of the inhabitants were Latvians, in the Purvmala parish – 8%, in the Gauri parish – 4% but in the Augšpils and Linava parishes – 3%. 0.5% of Belarusians also lived in those parishes, but the others were Russians (see Latviešu konversācijas vārdnīca. 7th volume. Rīga: A. Gulbis, 1931–1932, entry 14185). In 1924 the state of Latvia merged the Abrene area and a part of the Ludza district of that time into the Jaunlatgale district. In the Eastern part of the Jaunlatgale district there were many Russians, whereas the Western territories with the Balvi, Rugāji, Bērzpils and Tilža parishes were fully contiguous to Vidzeme and Latgale both geographically and ethnographically (the Latvian element is dominating, in Liepna – Lutherans, in other territories – Catholics) (see: Skujenieks M. Latvija. Zeme un iedzīvotāji, 1920, p. 230). “The most Russian region in Latvia nowadays is the Eastern Part of the Jaunlatgale district, where 43.430 inhabitants live in the Augšpils, Linava, Kacēni, Gauri and Purvmala parishes, 39.653 of which are Russians, which constitutes 91.5% of all inhabitants” (Skujenieks M. Latvieši svešumā un citas tautas Latvijā. Citēts pēc: Krasnais V. Kas ierosināja Jaunlatgales latvisko atmodu // Ziemeļlatgales atmoda. Rīga: Latvju nacionālās jaunatnes savienības Latgales apgabala izdevums, 1935, p. 64). When uniting the areas inhabited by Latvians, the state of Latvia based itself on the nationality of the inhabitants at the moment of the establishment of the borders, rather than on the historically ethnographic borders of the previous centuries, Latvian place-names, Baltic castle mounds or other historical evidence. 48. The Constitutional Court when assessing the historical genesis of Article 3 of the Satversme has concluded that it is based on the claim for uniting all the regions inhabited by Latvians into a single territorial entity. 48.1. The First Latgale Congress that took place in April of 1917 was of particular importance for uniting the regions inhabited by Latvians. In this congress, the representatives of the Ludza, Rēzekne and Daugavpils districts took part, and the resolution of the Congress requested joining of only these three districts as the region of Latgale to the rest of Latvia. At the First Latgale Congress, no delegates from the Abrene area participated, and the claim of joining of the Abrene area as a part of Latgale to Latvia was not raised (see: Trasuns F. Dzīve un darbi, pp. 63‑73; Kemps F. Latgales likteņi, pp. 133‑160; the opinion of K. Počs, the case materials, vol. 10, p. 130). Similarly, during the meeting of local governments and public workers of Latgale that was convened on 29‑30 April 1918, the representatives of the Ludza, Rēzekne and Daugavpils districts of the Vitebsk province took part. The following resolution was adopted at the meeting: “Having regard to the resolutions of the Latgale congresses of 26 and 27 April and 3 December 1917 regarding joining of Latgale, i.e. former lands of the Order, to Vidzeme and Kurzeme, the local government meeting authorizes the Council and the Board of the local government to implement the above merging” (Jautājums par Latgales apvienošanos ar pārējo Latviju // Ziņas par Latviju. Issue of publications, no. 4, June 1918, p. 6). The Abrene area was not a part of the Vitebsk province, and there was no discussion about this area as being a part of Latvia during the period when joining of Latgale to the rest of Latvia was under consideration. One of the supporters of the idea of uniting Latvia, F. Trasuns, when raising claims on uniting of the Latvian people, talked only about uniting Kurzeme, Vidzeme

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and the Latvian districts of the Vitebsk province. “In the last article I provided a short description of the relations of the Latvians from Kurzeme, Vidzeme and the Vitebsk province during the last 25 – 30 years. […] Ethnographically we were a single nation, we had one common Latvian language, cultural property in the form of songs and traditions passed down by our ancestors, as well as a common historical past” (Vēl kāds vārds par mūsu tautas daļu apvienošanu // Trasuns F. Dzīve un darbi, p. 131). 48.2. According to the Latvians from Kurzeme and Vidzeme Latgale included only the districts of the Vitebsk province, Ludza, Rēzekne and Daugavpils. A. Bergs wrote in 1918: “The land or territory of Latvia consists of three separate parts: Kurzeme, Vidzeme, i.e. Riga, Valmiera, Cēsis and Valka districts and Latgale, i.e. Daugavpils, Rēzekne and Ludza districts in the Vitebsk province that are also known as Inflantija (Latvijas valsts pasludināšana, p. 5). In the claim included in the Proclamation Act of the Republic of Latvia of 18 November 1918 to unite Vidzeme, Kurzeme and Latgale into one state within their ethnographic borders, the notion of Latgale meant three districts of the Vitebsk province (see: Latvijas Pagaidu valdības mērķi, pp. 3‑4). Such an opinion, namely, that Latgale is formed by three North-Western districts of the Vitebsk province, was also expressed by M. Skujenieks at that time (see: Skujenieks M. Latvija. Zeme un iedzīvotāji, 1920, pp. 1‑2). Hence during the proclamation of the Republic of Latvia the notion of Latgale meant the Daugavpils, Rēzekne and Ludza districts of the Vitebsk province. Also during the peace negotiations with the Russian Federation there were extensive discussions regarding the borders of the Latvian-inhabited historically ethnographic regions of Latgale. The representative of the Soviet Russia, Ā. Joffe inter alia indicated: “As to the issue of Latgale, there are several statements of the Latvian government available regarding the fact that Latgale is ethnographically formed by the Ludza, Rēzekne and Daugavpils districts” (Archive of the History of the State of Latvia, 1313. f. 2. apr., file no. 35, p. 22). When commenting on this opinion of the Soviet Russia, A. Zēbergs admitted that the Latvian government, when mentioning Latgale as a part of Latvia in different acts, had meant the districts of Daugavpils, Rēzekne and Ludza, in order to clarify the territorial dimensions of Latgale. However, this does not imply that in certain cases, under the ethnographic principle, there would be no need for concretisation of the borders of the administrative-territorial entities of the tsarist Russia (see Archive of the History of the State of Latvia, 1313. f. 2. apr. file no. 35, p. 33). 49. The issue of the Abrene area became more urgent as the peace negotiations with Russia approached. By using military-strategic measures in the Latgale front and the political situation of that time when the Soviet Russia made war in several fronts, Latvia tried to achieve the most favourable peace conditions possible. It also concerned the issue of the state borders. 49.1. The claim for joining also some of the Latvian-inhabited territories of the Drisa district of the Vitebsk province and the Ostrovo district of the Pskov province was raised already in summer of 1918 (Ziņas par Latviju. Issue of publications, June 1918, no. 4). However, it can be surmised from the context of the claim that it was more related to correcting the existing administrative borders of the Russian Empire in favour of the ethnographic borders of the regions inhabited by Latvians, rather than to joining considerable territories. “In some locations Latvians densely inhabit regions that are situated beyond these borders, and in other places the territory of the neighbouring countries exceed the borders of the districts that Latvia includes” (Skujenieks M. Latvija. Zeme un iedzīvotāji, 1920, pp. 1‑2). Similarly this claim for the correction of the existing

administrative borders was interpreted by A. Zēbergs during the peace negotiations (see Archive of the History of the State of Latvia, 1313. f. 2. apr. File no. 35, p. 33). 49.2. Territorial interests of the state of Latvia are the most fully collected in the Memorandum of the Latvian delegation to the Paris Peace Conference (see para. 20.2 of this judgment). This document raises claim also about joining of the Abrene area to the territory of Latvia. It follows from this Memorandum that the Latvian ethnographic border in the East exceeded the administrative borders of the Ludza, Rēzekne and Daugavpils districts of the Vitebsk province of that time but did not include the entire territory that was joined to Latvia by the Peace Treaty (see the opinion of V. Blūzma, the case materials, vol. 11, p. 29). In the Memorandum to the Peace Conference the territory adjacent to the Pitalovo railway station is characterized as “an ancient Latvian land”, however “the majority of the inhabitants there are Russians” and “it is situated 9 kilometres from Latgale”. One can agree to the opinion of V. Blūzma that this conclusion confirms the fact that the Abrene area was not included in the Latgale region within the meaning of Article 3 of the Satversme (see the case materials, vol. 11, p. 29). Latvia requested joining of the Pitalovo railway station to its territory due to economic and military strategic considerations. As it was written in the Memorandum submitted to the Paris Peace Conference, “The State of Latvia is established within the Latvian ethnographic borders, but in certain cases economic conditions and traffic convenience require some amendments of the ethnographic and administrative borders”. As one of these necessary amendments, the Pitalovo railway station was mentioned, which was indispensable for Latvia as an important traffic junction to link the Riga – Sita – Pitalovo and Daugavpils – Rēzekne – Pskov railway lines. Justification regarding Pitalovo as an ancient Latvian land was also included but, as it was indicated by A. Stanga, the ethnographic argument was the weakest one (see the case materials, vol. 10, pp. 219‑220). 49.3. The Constitutional Court, when considering the process of the conclusion of the Peace Treaty, has already concluded that the Soviet Russia gave Abrene to Latvia by the Peace Treaty by referring to the economic needs of Latvia as a new state (see para. 21 of this judgment). When deciding on the ratification of the Peace Treaty at the Constitutional Assembly, its members emphasized several times the advantages of the established border. For example, F. Menders emphasized: “Article 3 establishes borders that mainly coincide with the ethnographic borders of Latvia and include several advantageous railway junctions, for instance, Pitalovo” (Transcript of the 28th meeting of the first session of the Constitutional Assembly, 2 September 1920). In the latest studies of historians when assessing the Peace Treaty it is written that: “Article 3 established borders between both states. This was a compromise that, taken as a whole, corresponded to the ethnographic principle, except for the small Pitalovo (Abrene) area, where Latvians had long been a minority but which Latvia wanted due to economic (railway junction) and strategic (straightening of borders) considerations” (Treijs R. Zigfrīds Meierovics. Rīga: Jumava, 2007, p. 51). In the Constitutional Assembly of Latvia the joining of the Abrene area to the territory of Latvia was also used as one of the arguments why Latgale could not be conferred the right of self-government. Since the Abrene area was administratively included into the Ludza district, M. Skujenieks could state: “The borders of Latgale are not finally drawn. For instance, the newly-acquired territory that was joined from the Ostrovo district is still an open question, so it would not be correct to state in our

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constitutional law that in any case these three Eastern districts have a particular selfgovernment” (Transcript of the 33rd meeting of the fifth session of the Constitutional Assembly of Latvia, 4 April 1922). Since in the submitted proposition the Latgalians requested to confer the right of self-government to Latgale, it follows from what M. Skujenieks said that Latgale is formed by “the three Eastern regions”, whereas the Abrene area is “the newly-acquired territory”. 50. The notion “the newly-acquired territory”, which referred to the Abrene area, was not unintentionally uttered in the speech of M. Skujenieks at the Latvian Constitutional Assembly. It reflects the view regarding the parts of the territory of Latvia that dominated after conclusion of the Peace Treaty. 50.1. It was written in the 1920 edition of the book of M. Skujenieks “Latvija. Zeme un iedzīvotāji” (“Latvia. The Land and the People”): “Latvians inhabit […] Latgale (the three North-Western districts of the Vitebsk province) […] In Latgale, the Latvian ethnographic border, except for the Russian colonies in the Latvian land, almost fully coincides with the administrative border of Latgale, except for the SouthEastern corner of the Ludza district, where Russians are in the majority. In accordance with the draft of the Latvian – Russian Peace Treaty the territory of Latvia is extended towards the East by transferring the border of the Ludza district 6‑15 kilometres to the East. […] The total area of Latvia, including the part that is covered by the large lakes (897.6 sq. km) constitutes 64,196.6 sq. km. When adding the parts of the Ostrovo and Drisa districts that were joined to Latvia after the conclusion of the Peace treaty with Russia, the total territory of Latvia exceeds 65,000 sq. km” (Skujenieks M. Latvija. Zeme un iedzīvotāji, 1920, pp. 1‑5). It is possible to conclude from the information provided by M. Skujenieks that the joining to Latvia of parts of the Ostrovo and Drisa districts did not affect the territory of Latgale as a historically ethnographic region. The parts of these joined territories were called the territory of Latvia rather than a part of Latgale, and they were included into the total territory of Latvia separately from the territory of the Latgale region. 50.2. The following information is included in the third edition of the book of M. Skijenieks “Latvija. Zeme un iedzīvotāji”: “Latvia includes the entire land inhabited by Latvians that consists of Vidzeme, Latgale, Kurzeme and Zemgale. […] Latvia consists of: 1) the entire Kurzeme except for 100 sq. km of the Palanga region; 2) 4 Southern districts of Vidzeme (Riga, Cēsis, Valmiera and Valka), except for some parts of Northern parishes […]; 3) 3 North-Western districts of the former Vitebsk province (Daugavpils, Rēzekne, Ludza) that are united under a single historical name – Latgale; 4) the Jaunroze district that was before a part of the Võru district in Estonia; 5) the Augšpils, Gauri, Linava, Purvmala and Kacēnu parishes of the Ostrovo region of the former Pskov province (earlier – the Vishgorod, Tolkovo and Kachanovo parishes) that are now joined to the Jaunlatgale district and constitute the Jaunlatgale area; 6) the Piedruja area (former Pridruiska and Pustina parishes in the Drisa district of the Vitebsk province); 7) the Aknīša (Oknīste) parish that previously was a part of the Kaunas province and stretched between the Jaunjelgava and Ilūkste districts in Zemgale in the form of a keel;

8) when establishing the border between Kurzeme and Lithuania, 194 sq. km were joined to the territory of Kurzeme from the former Kaunas province, especially towards the South from Bauska (148.5 sq. km)” (Skujenieks M. Latvija. Zeme un iedzīvotāji, 1927, pp. 1‑ 2). It is possible to conclude that M. Skujenieks did not include the territories acquired during the border negotiations with the neighbouring countries into the territories of the Vidzeme, Latgale, Kurzeme and Zemgale regions but indicated them separately as territories acquired by border treaties. M. Skujenieks called these territorial acquisitions newly-joined territories (see Latvijas Satversmes sapulces vēlēšanu rezultāti. Rīga: Valsts statistikas pārvalde, 1920, p. 4). 50.3. Taking into account such a division of the territory of Latvia, the Constitutional Court concludes that the historically ethnographic regions of Vidzeme, Latgale, Kurzeme and Zemgale that are mentioned in Article 3 of the Satversme do not include the “newly-joined” territory. Article 3 of the Satversme speaks of the territory that had to be part of the state of Latvia so that it would correspond to the claim of selfdetermination of the Latvian people. At the same time, the “newly-joined” territories were acquired during the negotiations on border treaties due to different reasons. Their joining is mainly related to the success of the border treaty negotiations rather than the historical claim of the Latvian people to unite all Latvian territories into a single administrative entity. V. Blūzma also indicates that the Abrene area can be described as a “newlyacquired territory”, which is shown by the first latvianized name of the Pitalovo station – Jaunlatgale [New Latgale] that was given to the station in 1925. The name of Jaunlatgale emphasises the situation that a new territory is joined to Latvia. These newly-acquired territories of the Ostrovo district, according to V. Blūzma, were mainly located outside the ethnographic borders of Latvia of the 20th century, because the proportion of Russians there ranged from 70% to more than 90% of the inhabitants of individual parishes (see the case materials, vol. 11, p. 30). 51. In the formation of the state of Latvia the elections of the Constitutional Assembly were of great importance. The inhabitants of Latvia legally self-determined in these elections, thus both marking the territory of the state of Latvia and authorizing the Constitutional Assembly to establish the constitution of the state. The inhabitants of Vidzeme, Latgale, Kurzeme and Zemgale self-determined as a united nation through the Constitutional Assembly. 51.1. Elections of the Constitutional Assembly were a very important political event. The members of the Latvian People’s Council supported the view that the elections of the Constitutional Assembly could take place only after the liberation of the entire Latvian ethnographic territory, so that Vidzeme, Latgale, Kurzeme and Zemgale could simultaneously self-determine in the Constitutional Assembly. This idea was expressis verbis included in the note of Article 22 of the Law on the Latvian Constitutional Assembly Elections which permitted organizing elections of the Constitutional Assembly only “when the territory of Latgale is liberated”. During the discussions regarding this draft law in the Latvian People’s Council, a representative of the Latgalian fraction, Valerija Seile, indicated: “We want the Constitutional Assembly that will be summoned to be in full composition. But it is not provided so in this draft law of the Constitutional Assembly. Mr. Valdmanis has just said that the Bolsheviks have been driven out of Latvia. But, gentlemen, we, the Latgalians, can state that the Bolsheviks have not been driven out because they

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still are in Latgale that is under the harsh Communist rule. […] I would like to say on behalf of the Latgalian fraction that that it should be established in the draft law of the Constitutional Assembly or its annex that the Constitutional Assembly cannot be convened until the entire Latvia is liberated from the Bolsheviks” (Transcript of the second meeting of the fourth session of the Latvian People’s Council of 13 August 1919). 51.2. Elections of the Constitutional Assembly took place on 17 and 18 April 1920. Since nobody objected to organizing the election on those dates, one can consider that the requirement of the note to Article 22 of the Law on the Latvian Constitutional Assembly Elections had been fulfilled. M. Skujenieks, when commenting on the process of the elections of the Constitutional Assembly of Latvia, writes: “The elections took place in the entire territory of Latvia, except for the regions that are occupied by Estonia and Lithuania. Thus, in the Valmiera district, the elections did not take place in the town of Ainaži and the Ainaži, Ipiķi, Platere and Mazsalaca parishes, in the Valka district – in the town of Valka, and the Laicēni, Lielie Lugaži, Omuli, Pedele, Valka and Zore parishes. In the Ilūkste district, only eight parishes participated, but 10 parishes could not take part in the elections because of them being occupied. At the same time, from the parishes newly joined to Latvia only the Oknīste parish which was previously a part of the Kaunas province participated in the elections” (Latvijas Satversmes sapulces vēlēšanu rezultāti, 1920, p. 4). 51.3. After the Latvian Constitutional Assembly was convened on 7 May 1920 a suggestion of several members of the Constitutional Assembly was submitted thereto: “To carry out additional elections in those parishes and towns of the North Latvia and Zemgale where they could not be organized because of the occupational rule immediately after the liberation of these parishes and towns. To give the task to work out a law on additional elections in the above parishes and towns to the legal commission” (Transcript of the 4th meeting of the first session of the Constitutional Assembly, 7 May 1920). On 29 June 1920, the Constitutional Assembly of Latvia ratified the Latvian – Estonian Border Convention. Already during the meeting of 7 July 1920, the Constitutional Assembly adopted a decision: “According to the decision of 7 May of this year, to carry out elections of the Constitutional Assembly in those districts of the North Latvia where no elections have so far taken place due to the circumstances of the occupation by Estonia on the earliest possible date and to require the legal commissions to immediately submit a respective law for adoption by the Constitutional Assembly” (Transcript of the 14th meeting of the first session of the Constitutional Assembly of Latvia, 7 July 1920). Such a law was adopted on 14 September 1920. When reporting on it, a member of the Constitutional Assembly of Latvia Vilis Holcmanis said: “The elections took place late. They had to be postponed because a part of Latvia was located outside its borders. The elections had to be postponed because initially the third part of Latvia, Latgale, was not yet united with the other two parts of Latvia. When Latgale was joined and we succeeded in liberation of the regions occupied by Russia with which we were still in the state of war, even then some parts of Latvia still could not take part in the elections: they were captured by states with which we were not at war but were in the state of peace. The Northern Latvia was under the occupational rule by Estonia, and some parts of Latvia are under occupation by Lithuania up to this day. Now, thanks to an

arbitral tribunal, a part of the Northern Latvia has been again joined to Latvia, and now the inhabitants of these districts must be enabled to fulfil their main, first civic duty – to send their representatives to the Constitutional Assembly of Latvia, to the sovereign power” (Transcript of the 34th meeting of the first session of the Constitutional Assembly of Latvia, 14 September 1920). At the meeting of 25 November 1920 of the Constitutional Assembly the results of the elections in the Northern Latvian districts were announced. When announcing them, the chairman of the election commission for the Northern Latvian districts Oto Nonācs emphasized: “From now on, this high house represents the entire territory of Latvia, including the part of the Northern Latvia that played an important role in foundation of the state of Latvia but that could not sent its representatives to the Constitutional Assembly up to now for certain reasons” (Transcript of the 2nd meeting of the second session of the Constitutional Assembly of Latvia, 25 November 1920). 51.4. The note to Article 22 of the Law on the Latvian Constitutional Assembly Elections prohibited organizing such elections before the liberation of Latgale. Pursuant to this legal norm the elections of the Constitutional Assembly of Latvia took place after the liberation of the entire Latgale. According to the materials on the results of the elections of the Constitutional Assembly, the elections of the Constitutional Assembly had taken place in the entire Latgale region (see: Latvijas Satversmes sapulces vēlēšanu rezultāti, pp. 80‑85). During the discussions on additional elections of the members of the Constitutional Assembly, it has also never been mentioned that any part of Latgale had not sent its representatives to the Constitutional Assembly. It is possible to conclude from this that the Abrene area was not regarded as a part of Latgale. When the issue regarding additional elections of representatives in the Northern Vidzeme was discussed, the Peace Treaty had already been ratified and the Abrene area had been legally joined to Latvia. However, also in these discussions, none of the members of the Constitutional Assembly appealed to organise elections in this territory. Members of the Constitutional Assembly were more concerned about the election of the representatives of the Northern Vidzeme and the Ilūkste district to the Constitutional Assembly. Elections of the Constitutional Assembly did not take place in the Abrene area (see Latvijas Satversmes sapulces vēlēšanu rezultāti, 4, pp. 80‑85). The process of the elections of the Constitutional Assembly indicates that the Abrene area was not regarded as a part of the Latgale region. 52. In an article published in exile in 1952, when commenting the annexation of the Abrene area to the Russian USSR in 1944, it was written: “The Russians have separated from Latvia and joined to the Soviet Republic of Russia a rather large and important part of the territory of Latvia, the six parishes and the town of Abrene. The Kacēni, Upmale, Linava, Purvmala, Augšpils and Gauri parishes were annexed to Russia. The entire Patseri district and the Aiznarva belt were similarly separated from Estonia. The apparent motive could be the fact that in these regions, the Russians are the majority. It seems that this issue has deeper roots. The above-mentioned six parishes of Latvia, the Petseri district and Aiznarva of Estonia were joined to the territory of Latvia and Estonia only after the end of liberation struggles. In the earlier centuries, they were not a part of the Baltic province or the ancient Livonia. It is clearly amazing that the present Russian statesmen who deny any historical traditions to other nations have demonstrated such an extraordinary historical memory. They have seen the joining of the above-mentioned regions to Latvia and Estonia as

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a violation of integrity of Russia and they have not forgotten it from 1920 up to these days. […] Let us have no doubt that after the defeat of the Soviet Union and the collapse of Bolshevism, the Russian nationalists, who, having emigrated, already manifest such impatience and raise such huge claims, will try to insist on this new border established by the Bolshevik rule” (Bračs J. Krievi atņem mūsu zemi // Daugavas Vanagi, 1952, no. 19, pp. 38‑40). 53. There is no doubt that the Abrene area historically was a territory inhabited by the ancient Latvians. It is similarly undeniable that Latvians lived in the Abrene area during the conclusion of the Peace Treaty, as well as in 1944. However, the idea of uniting the Latvian-inhabited regions that was formulated by the Latvian public figures at the beginning of the 20th century requested unification only of the Kurzeme provinces and the Latvian-inhabited Vidzeme and Vitebsk provinces. These territories, with some specification of borders, were regarded as the common territory of the four Latvian historically ethnographic regions (the nucleus of the territory of the state of Latvia). The principle that this territory has to be a part of the territory of the state of Latvia is included in Article 3 of the Satversme. Neither the political declarations of public figures, nor the provisional constitutional acts mentioned the Abrene are as an absolutely necessary part of the state of Latvia. In formation of the state of Latvia the Abrene area was not a conditio sine qua non without which Latvia could not unite all the regions inhabited by Latvians. Article 3 of the Satversme, recognizing that the Peace Treaty has given the Abrene area to Latvia, does not mention this territory, either. Similarly, the Constitutional Assembly did not permit the inhabitants of the Abrene area to self-determine themselves by electing their own representatives to the Constitutional Assembly of Latvia. Such an attitude towards the inhabitants of the Abrene area demonstrates that the Constitutional Assembly of Latvia regarded this area as a territory that was acquired during successful peace negotiations rather than a Latvian-inhabited territory. Legal science of that time recognized that the principle of self-determination of people cannot be applied to territories that states acquire as a result of a successful war by a peace treaty, and the inhabitants of such territories do not have to be asked regarding their desirable nationality (see: Anschütz G. Die Verfassung des Deutschen Reichs vom 11 August 1919, p. 47). The concept of Latgale in Article 3 of the Satversme describes the districts of Ludza, Rēzekne and Daugavpils of the Vitebsk province. On the other hand, the Abrene area is to be regarded as a newly-acquired territory that Latvia added to its territory after the coming into force of the Peace Treaty. Consequently, when concluding the Border Treaty, Article 3 of the Satversme has not been affected. 54. Since the state border established in the Border Treaty does not breach the territory of the State of Latvia established in Article 3 of the Satversme, the Border Treaty is to be ratified as an international treaty that settles matters that may be decided by the legislative process, namely, according to the procedure established in Article 68(1) of the Satversme. The state border established by the Border Treaty is not to be submitted to a national referendum under the provisions of Articles 3 and 77 of the Satversme. The Ratification Law in general has been adopted observing the requirements of Article 68(1) of the Satversme. The Constitutional Court does not establish any

such deviations from the rules of the Satversme and the Saeima Rules of Procedure, which might serve as the basis for finding that the Ratification Law is in conflict with the Satversme. The Ratification Law has been adopted without violating the procedure and the Saeima, according to the procedure established by the Satversme, has undertaken international obligations regarding the new Latvian‑Russian border that partly changes the border between the states established by the still effective Peace Treaty by transferring the Abrene area to the Russian Federation. The Border Treaty and the Ratification Law comply with Article 3 of the Satversme. VIII 55. The Petitioner requests to consider the compliance of the words of Article 1 of the Law on Authorization and the Ratification Law “observing the principle of inviolability of borders established by the Organization of Security and Cooperation in Europe” with the preamble and Article 9 of the Declaration of Independence. Article 16 of the Constitutional Court Law does not provide expressis verbis for the right of the Constitutional Court to evaluate the compliance of laws with the norms of the Declaration of Independence. The panels of the Constitutional Court, when deciding on institution of proceedings, have assessed the claims on the compliance of the impugned provisions with the norms of the Declaration of Independence in the context of Article 16(1) of the Constitutional Court Law (see the decision of the Third Panel of the Constitutional Court of 26 April 2007 on institution of proceedings and decision of the Second Panel of the Constitutional Court of 17 July 2007 on institution of proceedings). Article 16(1) of the Constitutional Court Law provides that the Constitutional Court shall review the cases regarding compliance of laws with the Satversme. When deciding on institution of proceedings on the basis of the application of the Petitioner, the panel of the Constitutional Court found: “Article 16(1) of the Constitutional Court Law, if interpreted together with the principles of a democratic state based on the rule of law, provides that it is the competence of the Constitutional Court not only to review cases regarding the compliance of laws with the Satversme in a narrow sense, namely, with the particular document “The Satversme of the Republic of Latvia”, but also cases on the compliance of laws with the Satversme in a broader sense, namely, cases regarding the compliance of laws with each norm of a constitutional nature (rank, level)” (decision of the Second Panel of the Constitutional Court of 17 July 2007 on institution of proceedings, para. 3). Moreover, the panel of the Constitutional Court indicated that since there were doubts regarding the validity of the Declaration of Independence and its place in the hierarchy of normative legal acts, this issue was to be finally resolved by a judgment of the Constitutional Court when the case was considered on its merits (see the decision of the Second Panel of the Constitutional Court of 17 July 2007 on institution of proceedings, para. 3). Hence it has to be established whether the Declaration of Independence is included in the wider sense of the concept of “the Satversme”, as used in Article 16(1) of the Constitutional Court Law. 56. The place of a legal norm in the hierarchy of legal acts is determined by the legal power of the legal norm. The legal power of a legal norm depends on the institution that has adopted the legal norm and the procedure that has been established for the adoption of the legal

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norm. The higher the level of the democratic legitimacy of the institution that has adopted the legal norm and the more qualified the procedure for the adoption of the legal norm, the higher legal power the relevant legal norm has. 56.1. Article 64 of the Satversme provides that “the Saeima, and also the people, have the right to legislate, in accordance with the procedures, and to the extent, provided for by this Satversme” Article 64 of the Satversme includes both the simple legislative rights and the constitutional separation of legislation between the Saeima and the body of the citizens of Latvia (see Dišlers K. Latvijas Republikas Satversmes grozīšanas kārtība // Tieslietu Ministrijas Vēstnesis, 1929, no. 7/8, pp. 227‑228). This implies that the Satversme separates the legislative power and the constitutional power, namely, the right to adopt and to amend the Satversme. 56.2. Under Articles 23 and 24 of the Satversme, the Saeima is entitled to adopt the ordinary laws by an absolute majority of the votes of the members present at the session if at least half of the members of the Saeima participate in the session. However, under Articles 74 and 79 of the Satversme the body of the citizens of Latvia is entitled to exercise its legislative rights if the number of voters participating in a national referendum is at least half of the number of voters that participated in the previous Saeima election. In this case the will of the body of the citizens of Latvia is determined by the majority of votes cast. For making amendments to the Satversme, i.e. for exercising of the constitutional power, the Satversme provides for stricter requirements. Article 76 of the Satversme provides that the Saeima may amend the Sessions in sessions at which at least twothirds of the members of the Saeima participate. The amendments are to be adopted in three readings by a majority of not less than two-thirds of the members present. However, under Article 79 of the Satversme, an amendment to the Satversme submitted for national referendum is deemed to have been adopted if at least half of all the voters entitled to vote have voted in favour. Hence the laws that are adopted according to the procedure established in Articles 76‑79 of the Satversme whereby the Satversme is amended, have a higher legal power than ordinary laws. 56.3. Laws by which the Saeima or the body of the citizens of Latvia amend the Satversme have a constitutional rank if they are adopted by observing the requirements of the procedures established in the Satversme. Article 24 of the Satversme provides that the Satversme exhaustively provides for the cases when the Saeima can make decisions by a qualified majority of votes. Consequently, one can conclude that the Saeima cannot adopt acts of a constitutional rank unless the procedure of the adoption of such an act is established in the Satversme. Such adoption of acts of a constitutional rank is provided by Articles 76 and 77 of the Satversme (for the body of the citizens of Latvia – respectively Articles 77 and 78 of the Satversme). After the amendments of 8 May 2003 Article 68 of the Satversme provides for one more type of acts of a constitutional rank. The Saeima may ratify international agreements, in which a part of state institution competencies are delegated to international institutions with the purpose of strengthening democracy, in sessions in which at least two-thirds of the members of the Saeima participate, and a two-thirds majority vote of the members present is necessary for ratification. Consequently, acts of a constitutional rank may be adopted only in cases established in the Satversme.

57. Before the entry into force of the Satversme, the so-called second provisional constitution of Latvia – the Declaration on the State of Latvia adopted by the Latvian Constitutional Assembly on 27 May 1920 and the Provisional Rules of the Latvia State Regime of 1 June 920 – was in force (see Dišlers K. Ievads Latvijas valststiesību zinātnē, p. 72). Before the validity of the Satversme was restored to its full extent after the restoration of independence of the Republic of Latvia, the Supreme Council had adopted two acts of a constitutional rank of a transitional period – the Declaration of Independence and the Constitutional Law. The Satversme does not provide for the procedure for adopting or amending of these acts of a constitutional rank. Taking into account the lack of clear regulation by the Satversme, an opinion has been expressed in the legal science that “after the Satversme became effective to the full extent on 7 July 1993, it is the only constitutional norm in Latvia. It follows from it that no other legal norms that would formally have a constitutional nature exist alongside it” (Answers to the Questions of the Members of the UN Human Rights Committee, Human Rights Journal, 1996, no. 2, p. 78). In order to review the correctness of such an opinion, it is necessary to study the practice of application of acts of a constitutional rank that were adopted before the entry into force of the Satversme.

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58. In conformity with general principles of law, a legal rule loses its force if the time-limit has expired or the condition that limits the rule’s force in time has taken place, if the rule is repealed or if another rule dealing with the very same issues and with the same or higher legal force of law comes into force [see the judgment of the Constitutional Court of 7 May 1997 in the case no. 04-01(97), para. 2 of the motives part]. Consequently, one has to assess whether the constitutional acts that were adopted before the entry into force of the Satversme are valid and how the entry into force of the Satversme has affected their validity. 59. The Satversme of the Republic of Latvia that was adopted on 15 February 1922 does not provide for any legal rules that would regulate the validity of the provisional constitution. Such legal norms were also not included in the law “On Enactment of the Satversme of the Republic of Latvia” Consequently, the Constitutional Assembly of Latvia did not expressis verbis repeal the rules of the second provisional constitution alongside with the entry into force of the Satversme. 59.1. After the convening of the Constitutional Assembly of Latvia there was a need to draft a provisional constitution before the adoption of the Satversme which would regulate the basic issues regarding the state regime. Drafting of the provisional constitution was the first task of the Constitutional Commission. At the meeting of the Constitutional Commission of the Constitutional Assembly of 26 May 1920 a decision was made to submit the draft law on the Form and the Sovereign Power of the State of Latvia to the Constitutional Assembly separately, i.e. independently of the draft law on the provisional constitution (see protocol no. 5 of the meeting of 26 May 1920 of the Constitutional Commission of the Constitutional Assembly). The draft law on the Form and the Sovereign Power of the State of Latvia was submitted to the Constitutional Assembly as the Declaration on the State of Latvia.

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When reporting in the Constitutional Assembly, on the content of this Declaration, the chairman of the Constitutional Commission M. Skujenieks admitted that “the Commission decided to separate the issue regarding the form and the sovereign power of the State of Latvia from the draft on the state regime because these conditions are fundamental. They, as it is expected, will not have a provisional character” (Transcript of the 5th meeting of the first session of the Constitutional Assembly of Latvia, 27 May 1920). Such interpretation was supported by the legal science of that time: “The Declaration on the State of Latvia does not have a provisional character. This is a basic law that is adopted for an indefinite length of time or, as it is sometimes put, “for all times”. Only a reactionary revolution within the state or an attack of a hostile power from the outside could destroy the democratic principles established in the Declaration. The principles established in the Declaration can be amended in a peaceful, legal way only by a national referendum” (Dišlers K. Latvijas pagaidu konstitūcija. Vispārīgas piezīmes // Tieslietu Ministrijas Vēstnesis, 1920, no. 2/3, p. 52). As the Satversme became effective, the Declaration on the State of Latvia did not lose its legal power. Such an opinion regarding the Satversme of the Republic of Latvia was expressed by the rapporteur of the Constitutional Commission J. Purgals: “This Declaration is to be considered as the basic law of the state of Latvia. It does not have a provisional character, it is a basic law that is passed for all times” (Transcript of the 1st meeting of the fourth session of the Constitutional Assembly of Latvia, 20 September 1921). The senators of Latvia have also regarded the Declaration on the State of Latvia as a valid constitutional norm that exists along with the Satversme. It is indicated in the opinion of 1948 by the senators of Latvia: “An indispensable element of every modern state but in particular of a democratic republic is its legal structure that is established by its constitutional i.e. fundamental laws and that characterises it as a respective legal subject in the international field. These constitutional laws that have been adopted by the freely elected Constitutional Assembly on the basis of which Latvia has existed as a sovereign and equal state in the international field during the entire period of independence, are the Declaration of 27 May 1920 on the State of Latvia and the Satversme of the Republic of Latvia of 15 February 1922” (Opinion of the Senators // May 4, p. 382). Consequently, the Declaration on the State of Latvia is a valid act of a constitutional rank. 59.2. The Provisional Rules of the Regime of the State of Latvia of 1 June 1920 included in themselves the condition for becoming invalid. According to the title of this act, these were “provisional rules” that would lose their legal force at the moment when the fundamental state law became effective and the Constitutional Assembly ceased its activities, as provided in Article 2 of the Rules. Such an opinion was expressed at the Constitutional Assembly of Latvia also by the rapporteur of the Constitutional Commission, J. Purgals: “the Provisional Rules of the Regime of the State of Latvia have a provisional character, i.e. they are effective up to the date when the constitution will have been drafted abd adopted, in the final form, by the Constitutional Assembly” (Transcript of the 1st meeting of the fourth session of the Constitutional Assembly of Latvia, 20 September 1921). However, the case-law of the Senate of Latvia shows that the Provisional Rules of the Regime of the State of Latvia did not became invalid automatically to a full extent, but only insofar as the norms of the provisional rules were substituted by the legal norms included in the Satversme.

Article 9 of the Provisional Rules of the Regime of the State of Latvia provided: “Inviolability of persons and lodging, freedom of press, speech, conscience, strike, meeting and association, inviolability of correspondence exist in Latvia and shall be ensured and established by respective laws”. The list of fundamental rights was not included in the Satversme on 7 November 1922 when it came into force. The Administrative Department of the Senate of Latvia, in the judgment no. 64 of 20 November 1929 that was made in a case on registration of a trade union, started the list of the valid legal norms by the norm of a constitutional rank – Article 9 of the Provision Rules of the Regime of the State of Latvia that provided for the freedom of association. The Administrative Department of the Senate also indicated that “the slogan of a deductive nature” included in Article 9 of the Provisional Rules “can only be interpreted in the sense that manifestation of this freedom cannot come in conflict with the existent laws” [Judgments of the Senate of Latvia (1918 – 1940). vol. 3, Judgments of the Administrative Department of the Senate (1926 – 1930). Rīga: Latvijas Republikas Augstākā tiesa, Senatora Augusta Lēbera fonds, 1997, p. 1200]. Consequently, the Provisional Rules on the Regime of the State of Latvia became invalid in the moment when the issues dealt with in these Rules were regulated in norms of another act of a constitutional rank. 60. The Constitutional Law and the decision of the Saeima of 6 July 1993 on full enactment of the Satversme does not regulate the issue of the validity of acts of the transitional period of a constitutional rank. Similarly, neither the Declaration of Independence, nor the Constitutional Law established a precise time-limitat or condition, after the fulfilment of which these acts would become invalid. Consequently, it has to be assessed to what extent the enactment of the Satversme has affected the validity of these acts of a constitutional rank of the transitional period. 60.1. The Supreme Council of the Latvian SSR adopted the Declaration of Independence as an act of a constitutional rank by observing the provisions of the Constitution of the Latvian SSR of 1978. The Declaration of Independence regulates the most essential fundamental issues of constitutional law, thus it is to be recognized as a norm of constitutional law in the substantive sense (see: Levits E. 4. maija Deklarācija Latvijas tiesību sistēmā // 4. maijs. Rakstu, atmiņu un dokumentu krājums par Neatkarības deklarāciju. Rīga: Fonds Latvijas Vēsture, 2000, p. 52). The Declaration of Independence since the moment of its adoption up to the full restoration of the validity of the Satversme dealt with the scope and mutual relations of two constitutional acts – the Satversme and the Constitution of the Latvian SSR. Such a regulation of applicability of two constitutional acts can be effective only if the Declaration of Independence has at least the same legal power as that of the Satversme and the Constitution of the Latvian SSR. Therefore the conclusion is justified that the norms of the Declaration of Independence are of a constitutional rank, i.e. these are norms of constitutional law also in the formal sense (see: Levits E. 4. maija Deklarācija Latvijas tiesību sistēmā, pp. 52‑53). The Saeima has also indicated in its written reply that the status of the Declaration of Independence as a valid constitutional document cannot be contested (see the case materials, vol. 1, p. 150). Since the Declaration of Independence has been passed as an act of a constitutional rank, it is necessary to deal with the issue of the validity of the norms of the Declaration after the full restoration of the validity of the Satversme.

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It is possible to establish in the framework of this case that in the legal science the preamble and Article 9 of the Declaration of Independence would have to be regarded as still valid legal norms of a constitutional rank. The Constitutional Court has several times referred to the legal norms included in the Declaration of Independence to support its judgments [see, e.g., the judgment of the Constitutional Court of 11 March 1998 in the case no. 04-05(97), para. 3 of the motives part, the judgment of the Constitutional Court of 20 April 1999 in the case no. 04-01(99), para 1.1. of the motives part, the judgment of the Constitutional Court of 26 June 2001 in the case no. 2001-02-0106, para. 1 of the motives part, the judgment of the Constitutional Court of 7 March 2005 in the case no. 2004-15-0106, para. 12, the judgment of the Constitutional Court of 13 May 2005 in the case no. 2004-18-0106, para. 5 of the motives part]. Consequently, the norms that are included in the Declaration of Independence are valid legal norms. 60.2. The Supreme Council of the Republic of Latvia adopted the Constitutional Law when reacting to the coup d’état of the USSR of 19 August 1991 and declared de facto restoration of the independence of the Republic of Latvia (see the transcript of the morning plenary session of 21 August 1991 of the Supreme Council of the Republic of Latvia). Article 2 of the Constitutional Law recognized Article 5 of the Declaration of Independence as valid. In order to make such amendments, it would be necessary for the Constitutional Law to have the same legal power as that of the Declaration of Independence. Since the Declaration of Independence is an act of a constitutional rank, the Constitutional Law has the same legal power as it expressis verbis follows also from its title. The preamble of the Constitutional Law is of great importance for strengthening the doctrine of continuity of the Republic of Latvia. “The Constitutional Law also confirmed the concept of State continuity to a full extent” (Apsītis R. Neatkarības deklarācijas pieņemšanas gadadienā // Jurista Vārds, 3 May 2005, no. 16). A reference to the Constitutional Law as a valid act of a constitutional rank is also included in the Law on Authorization that is contested by the Petitioner. It was also repeatedly emphasized during the Saeima discussions regarding the Law on Authorization that the Constitutional Law strengthens the doctrine of continuity and other states have recognized the restoration of independence of the state of Latvia precisely on the basis of this law (see the transcript of the fourth session of the winter session of the 9th Saeima of the Republic of Latvia, 1 February 2007). Consequently, the Constitutional Law is a valid act of a constitutional rank. 61. When considering the Declaration of Independence and the Constitutional Law, it is necessary to take into account the fact that both of these acts were adopted by an institution that was founded on basis of the Constitution of the Latvian SSR. 61.1. In a democratic state, elections are to be free, namely, they must ensure the expression of free will of the voters. Article 1 of the Satversme, as well as rules of international law – Article 25 of the UN International Covenant on Civil and Political Rights and Article 3 of the First Protocol to the European Convention of Human Rights – provide for the positive duty of the state to ensure free elections. Free elections include formation and expression of a free will of the electors by voting [see the opinion of the Ombudsman of the Republic of Latvia of 28 March 2007 regarding the draft law “Amendments to the Political Party Financing Law” // http://www.vcb.lv/index. php?open=viedoklis&this=280307.282].

In the elections of the Supreme Council, not only the citizens of the Republic of Latvia took place, but also the citizens of the USSR that lived in the territory of the Latvian SSR. The persons belonging to the occupational army also participated in the elections in the occupied territory. Furthermore, the procedure of nominating candidates was established so that it was possible to block the nomination of undesirable candidates, whereas the regulation of election campaigns, especially in the national television, did not ensure equality of all political powers [see: Levits E. Valsts atjaunošanas koncepcijas attīstība (personiskas piezīmes) // May 4. Rakstu, atmiņu un dokumentu krājums par Neatkarības deklarāciju. Rīga: Fonds Latvijas Vēsture, 2000, p. 275]. 61.2. The Supreme Council of the Latvian SSR was elected in partially free elections. It expressed the will not only of the citizens of Latvia, but also that of the other inhabitants of the Latvian SSR. As an organ of state power of the Latvian SSR, the Supreme Council formally was an institution of the unlawfully created Latvian SSR and could not adopt legislative acts binding upon the Republic of Latvia. However, it has to be taken into account that effectively the elections of the Supreme Council of the Latvian SSR of 18 March 1990 constituted one of the stages of the restoration of the independence of Latvia that was initiated by the dissident movement and continued by the Latvian National Independence Movement and the Latvian People’s Front. “The Latvian People’s Front based on its success in the elections of 1989 of the Congress of People’s Deputies of the USSR and local councils, was purposefully planning to follow the “parliamentary” route. This meant an active participation in the elections and acquisition of the majority of votes in the Supreme Council, preferably a 2/3 majority, and then using this institution of the supreme power of the Latvian SSR as an instrument for achieving the independence of the state” (Levits E. Valsts atjaunošanas koncepcijas attīstība, p. 276). The Latvian People’s Front formulated its claim to restoration of the independence of Latvia in its second programme: “Having regard to the rights of Latvia and the will of the people, the Latvian People’s Front sets an objective to restore the national independence of Latvia by forming a democratic parliamentary republic that would continue the democratic traditions of the Republic of Latvia” (Programme of the Latvian National Front // Atmoda, 4 November 1989). The Latvian People’s Front clearly defined in its election platform of the Supreme Council of the Latvian SSR that its representatives as members of the Supreme Council will vote for the independence of Latvia: “This is the moment of making the decision. In the elections on 18 March we will clearly express our will – to live in a free, independent and democratic Latvia! Indifference, idleness or coincidence cannot decide our faith. Our objective is an independent state of Latvia that would continue and develop the democratic and parliamentary traditions of the Republic of Latvia.” (Platform of the Latvian National Front for the Elections of the Supreme Council // Atmoda, 13 February 1990). The election of the Supreme Council was a vote for the independence of Latvia where, despite the imperfections of the voting system, the supporters of the independence of Latvia clearly prevailed. Having regard to the objectives set in the election platform of the Latvian People’s Front and the will of the majority of the inhabitants of Latvia, as clearly established by the process of the Third Awakening, to live in a free and independent State, members of the Supreme Council were authorized in the elections to decide upon the restoration of the independence of the state of Latvia. 61.3. When making the decision on restoration of independence of the Republic of Latvia, the Supreme Council based itself on the legal platform of the Republic of

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Latvia of 18 November 1918. From the moment of the adoption of the Declaration of Independence the Supreme Council as the supreme authority of the Latvian SSR declared the Proclamation Act of 18 November 1918 of the Republic of Latvia as binding upon itself and undertook the duty to carry out the factual restoration of the independence of the Republic of Latvia. The Supreme Council worked in the interests of the Republic of Latvia by restoring its sovereign and effective state power up to the moment when the institutions of the state power provided for in the Satversme to which the Supreme Council could pass its authority were elected in democratic elections (see: Levits E. Valsts atjaunošanas koncepcijas attīstība, p. 278). The policy of the restoration of the statehood of Latvia implemented by the Supreme Council received the support of the inhabitants of Latvia already on 3 March 1991 when the Latvian nationwide poll took place. As one of the leaders of the Latvian National Front, Dainis Īvāns, writes in his memoirs: “– Do you support a democratic and independent Latvia? – This was the question of the poll, and 73.6 percent of the members of the plebiscite of the 87.6 percent of the registered voters of Latvia answered affirmatively. Only 24.7 percent voted “against”, which we regarded as a fantastic manifestation of the loyalty of multinational society to the Republic of 4 May. Even in Daugavpils with its only 13 percent of Latvian inhabitants, 63.4 percent voted “yes”.” (Īvāns D. Gadījuma karakalps. Rīga: Vieda, 1995, p. 350). In the elections of the 5th Saeima on 5 and 6 June 1993 the earlier work of the Supreme Council was accepted as consistent with the interests of the Republic of Latvia and its people. In these elections that complied with the requirements of Article 6 of the Satversme and the standards of democratic elections the Latvian people did not question the necessity of the restoration of the independence of the Republic of Latvia and elected one hundred of its representatives, thus authorising them to continue the process of restoration of the state. Under the norms of the Satversme, the elected 5th Saeima took over the authority of the Supreme Council. By taking over the authority from the Supreme Council, the 5th Saeima, on behalf of the Latvian people, also accepted as legally binding the activities of the Supreme Council that is had carried out since the adoption of the Declaration of Independence in the interests of the Republic of Latvia. Consequently, one has to conclude that the Declaration of Independence and the Constitutional Law are legally binding, even though these acts were not adopted in accordance with the procedure established in the Satversme. 62. The constitutional regulation of the state of Latvia is primarily contained in the Satversme, however the Declaration on the State of Latvia of 27 May 1920, the Declaration of Independence and the norms of the Constitutional Law have preserved their legal force alongside it. Legal scholars suggest that the valid acts of a constitutional rank alongside the Satversme are the Proclamation Act of the Republic of Latvia of 18 November 1918, the Declaration on the State of Latvia of 27 May 1920, the Declaration of Independence and the Constitutional Law (see Kusiņš G. Kā pilnveidot mūsu valsts Satversmi // Satversmes reforma Latvijā: par un pret. Rīga: Institute of socio-economic researches „Latvija”, 1995, p. 39). Since the preamble and Article 9 of the Declaration of Independence are valid norms of a constitutional rank, the Constitutional Court is entitled to consider the compliance of the laws impugned in this case with the norms of the Declaration of Independence.

IX 63. In order to assess the compliance of the words of Article 1 of the Law on Authorization and the Ratification Law “observing the principle of inviolability of borders established by the Organization of Security and Cooperation in Europe” with the preamble and Article 9 of the Declaration of Independence, it is necessary to determine the content of these valid norms of the constitutional rank. 64. The Preamble of the Declaration of Independence consists of an extended description of historical facts and their legal assessment. Such a description of the historical facts was included in the preamble of the Declaration by its drafters to explain to the reader the political motivation of the Latvian people to restore the independence of their state and to draw attention to the facts, legal assessment of which leads to the conclusion that the Republic of Latvia that was founded on 18 November 1918 still exists, and that the Supreme Council restores the sovereign power of this State (see: Levits E. 4. maija Deklarācija Latvijas tiesību sistēmā, pp. 54‑55). 64.1. The first paragraph of the preamble of the Declaration of Independence describes the process of the creation of the Republic of Latvia by particularly emphasizing the Proclamation Act of the Republic of Latvia of 18 November 1918, the election of the Constitutional Assembly of Latvia and the adoption of the Satversme, as well as the international recognition of the Republic of Latvia and its admission as a member of the League of Nations. The second paragraph of the preamble of the Declaration of Independence is dedicated to the events of June of 1940. The preamble remarks that the note of ultimatum by the USSR government led to the change of the government of the Republic of Latvia. In this paragraph, the Supreme Council qualifies the ultimatum note by the USSR and the aggression of the USSR against the Republic of Latvia as an international crime as the result of which the sovereign state power of the Republic of Latvia was abolished. In the third paragraph of the preamble the Supreme Council assesses the People’s Saeima elections of 14 and 15 July 1940. The Supreme Council indicates that these elections took place in a state that was occupied by troops of another state under conditions of political terror, on the basis of rules of an anti-constitutional law on elections that had been illegally adopted. In addition to this, the Supreme Council also emphasized that only one list of candidates – “Working People’s Bloc” – was allowed to participate in the elections, and it also concluded that the results of the elections were falsified. The fourth paragraph of the preamble is devoted to the decision of the People’s Saeima to abolish the independence of the Republic of Latvia and to join the USSR. The Supreme Council indicates that the People’s Saeima was not expressing the will of the Latvian people and it did not have any constitutional rights to decide upon the issues regarding the change of the state regime and the abolishment of state sovereignty of Latvia. By indirectly referring to Article 77 of the Satversme, the Supreme Council emphasised that only the Latvian people were entitled to decide on these questions, but no national referendum was organized regarding the accession of Latvia to the USSR. On the basis of the historical facts established in the previous four paragraphs of the preamble, the Supreme Council concludes in the fifth paragraph of the preamble that the incorporation of the Republic of Latvia into the USSR is invalid from the point of

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view of the international law. The Supreme Council also emphasizes that the Republic of Latvia de iure exists as a subject of international law, and it has been recognized by more that 50 states of the world. 64.2. The Declaration of Independence particularises the doctrine of state continuity of Latvia, which is provided for by Article 2 of the Satversme in accordance with the rules of international law (see para. 31 of this judgment). This is the official opinion of the Republic of Latvia on the issue that the Republic of Latvia that was founded on 18 November 1918 has continued its uninterrupted existence despite the aggression and occupation by the USSR that took place in 1940 (see Levits E. 4. maija Deklarācija Latvijas tiesību sistēmā, p. 56). One can agree to the opinion of the Cabinet of Ministers that the request to assess the compliance of the impugned laws with the preamble of the Declaration of Independence means a request to assess cthe ompliance of these laws with the doctrine of continuity of the Republic of Latvia (see the case materials, vol. 4, p. 75). The preamble of the Declaration of Independence imposes an obligation on the authorities of the Republic of Latvia to observe the doctrine of continuity of the Republic of Latvia and not to derogate from it. In all legally important circumstances the state organs of the Republic of Latvia have to base their action on the doctrine of continuity formulated in the preamble. The organs of the Republic of Latvia are also bound by the description of the historical facts included in the preamble and its legal assessment that justifies the continuity doctrine is binding on (see: Levits E. 4. maija Deklarācija Latvijas tiesību sistēmā, pp. 56‑57). The preamble of the Declaration of Independence strengthens the continuity doctrine of the State of Latvia. 65. Article 9 of the Declaration of Independence provides: “To develop relations between Latvia and the USSR in accordance with the Peace Treaty between Latvia and Russia of 11 August 1920, which is still in force and which recognizes the independence of Latvia for eternity. To establish a Government Commission for conducting negotiations with the USSR.” The Saeima and the Cabinet of Ministers have expressed an opinion that Article 9 of the Declaration of Independence has lost its legal force. 65.1. The institutions that adopted the impugned acts justify their opinion by a reference to Article 9 of the Declaration of Independence as being closely related to Article 5 of the Declaration that provided for a transition period for the re-establishment of the de facto independence of the Republic of Latvia. Both of these norms form a single regulation: “During the transitional period, it is necessary to re-establish the de facto independence of the Republic of Latvia by dealing with the issue by means of negotiations with the USSR and based on the refusal of Russia from Latvia for eternity.” By means of Article 2 of the Constitutional Law, Article 5 of the Declaration of Independence was recognized as invalid, whereas Article 9, which is a rule closely linked to Article 5, is declared as invalid in the preamble of the Constitutional Law (see the case materials, vol. 1, pp. 151‑152 and vol. 4, pp. 78‑79). 65.2. Article 2 of the Constitutional Law declares Article 5 of the Declaration of Independence that provided for a transitional period for restoration of the de facto independence of Latvia to be invalid. However, the preamble of the law inter alia recognised: “On 19 August 1991, as a consequence of the coup, constitutional structures of state power and government of the USSR have ceased to exist, Article 9 of the Declaration of the Independence of the Republic of Latvia, adopted on 4 May

1990 on the restoration of the Republic of Latvia’s independent statehood by way of negotiations cannot be implemented.” Even though it could follow from the preamble of the Constitutional Law that Articles 5 and 9 of the Declaration of Independence form a uniform rule that becomes invalid by adoption of the Constitutional Law, one can agree to the opinion expressed by J. Neimanis that such an approach would be too simplistic. If the Constitutional Law had been intended to repeal also Article 9 of the Declaration of Independence, it would have been expressis verbis so indicated in Article 2 of the Constitutional Law. One has also take into account that Article 9 of the Declaration of Independence deals with several legal issues, only one of which is conducting of negotiations with the USSR (see: case materials, vol. 11, pp. 117‑118). Article 5 of the Declaration of Independence was a compromise norm that emerged in the final stage of the elaboration of the Declaration of Independence and did not really fit in the context of the Declaration. “The content of Article 5 of the Declaration is a foreign body in the document that one should get rid of in shortest time possible” (Apsītis R. Neatkarības deklarācijas pieņemšanas gadadienā // Jurista Vārds, 3 May 2005, no. 16). Preparatory materials of the Declaration of Independence evidence that its Article 5 was formulated only in the draft of 28 April 1990 (see May 4, p. 485). The reference to the transitional period was indirectly included in the “minimum” version of the Declaration of Independence that was prepared for examination at the meeting of 28 March 1990 of the fraction of deputies of the People’s Front of the Supreme Council of Latvia. The respective norm in this document was put as follows: “The Supreme Council shall continue negotiations with the USSR on restoration of the state independence of Latvia” (May 4, p. 468). The first sentence of Article 9 of the Declaration of Independence in the draft law of 24 March 1990 provides: “Relations with the USSR shall hereinafter be regulated by the Peace Treaty of 11 August 1920 between Latvia and Russia that provides for friendly relations and collaboration with the USSR” (May 4, p. 465). During the further process of the elaboration of the Declaration of Independence this norm underwent editorial changes and specification of its content, but still preserved its place in the text of the Declaration. One can conclude that Article 9 of the Declaration of Independence during the process of its elaboration had been formulated considerably earlier than Article 5. Consequently, Article 9 of the Declaration of Independence cannot be regarded only as a mechanism of implementation of Article 5. It has its own content and meaning within the system of the Declaration. 65.3. One has to take into account that Article 9 of the Declaration of Independence consists of two sentences. Since the draft law of 24 March 1990, the first sentence of Article 9 was an integral element of the Declaration. The wording of the second sentence of Article 9 of the Declaration of Independence regarding the negotiations with the USSR appears in the “minimum version” of the draft declaration on 28 March 28 1990 in the form of an idea of a transitional period (see: May 4, p. 468). At the same time, both sentences were merged into Article 9 only in the draft of 12 April 1990 (see May 4, p. 476). In the preamble of the Constitutional Law the Supreme Council established that it was impossible to restore the de facto independence of the Republic of Latvia by conducting negotiations with the USSR. One can conclude therefore that the second sentence of Article 9 of the Declaration of Independence could serve as an indirect

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reference to the fact that the independence of the Republic of Latvia is to be restored gradually, providing a unified regulation with Article 5 of the same Declaration. The second sentence of Article 9 of the Declaration of Independence provides for a gradual transition to the de facto restoration of the independence. Namely, Latvia as an independent state on the basis of mutually equal bases by means of negotiations will deal with all the issues related to the transitional period. At the same time, the first sentence of Article 9 of the Declaration of Independence has an independent meaning that is only partially related to the transitional period established in the rest of the text of the Declaration for the restoration of the independence. A similar opinion has been voiced in the legal science: “The Law of 21 August 1991 “On the Statehood of the Republic of Latvia” […] establishes that it is impossible to implement Article 9 of the Declaration “on the restoration of the independence of the Republic of Latvia by means of negotiation”. This part of the preamble of this Law is to be understood in the sense that it concerns only that part of Article 9 that speaks of the formation of the Government Commission for conducting negotiations with the USSR, and that the principled position regarding the Peace Treaty of 1920 has not been changed by the law of 21 August 1991” (opinion of 14 March 2005 by professor Ineta Ziemele to the Cabinet of Ministers regarding the signing and ratification of the Republic of Latvia and the Russian Federation Treaty on the State Border of Latvia and Russia, the case materials, vol. 6, p. 214). Consequently, Article 9 of the Declaration of Independence has not fully lost its legal validity. 66. The Petitioner, by referring to the opinion of E. Levits, holds that from the first part of Article 9 of the Declaration of Independence follows a specific treatment of the issue of the state border of Latvia and Russia with a norm of a constitutional rank (see the case materials, vol. 1, pp. 11‑12). E. Levits writes: “Article 9 of the Declaration provides that relations of Latvia with the USSR are to be formed on the basis of the Peace Treaty of 1920. This article, of course, is also related to the legal continuator of the USSR – Russia. This means – until this Article of the Declaration has been repealed, Latvia can form all treaty relations with Russia only in the manner that would ensure that the later treaties are not in conflict with the 1920 Peace Treaty. Article 9 is particularly important for solving the issue of Abrene.” (Levits E. 4. maija Deklarācija Latvijas tiesību sistēmā, p. 64). One can agree to the views expressed by the Cabinet of Ministers that such an explanation of Article 9 of the Declaration of Independence by E. Levits does not comply with the object and purpose of Article 9 of the Declaration (see the case materials, vol. 6, p. 78). 66.1. First, one has to take into account that E. Levits is the only scholar who, when commenting on the contents of the Declaration of Independence, has drawn attention to such a close relation of Article 9 of the Declaration of Independence to the issue of the state borders between Latvia and Russia and the issue of Abrene. For instance, R. Apsītis in his commentary to the Declaration of Independence interprets its Article 9 in a less far-reaching manner: “Article 9 of the Declaration provides that relations of Latvia with the USSR shall be formed in accordance to the 1920 Peace Treaty between Latvia and Russia. Nowadays, when the USSR no longer exists, the wording of Article 9 applies to the legal continuator of the USSR – Russia” (Apsītis R. Neatkarības deklarācijas pieņemšanas gadadienā // Jurista Vārds, 3 May 2005, no. 16). R. Apsītis does not expressis verbis relate the restoration of the state border between Latvia and Russia

according to the Peace Treaty and the issue of Abrene with Article 9 of the Declaration of Independence. Also in the first draft law of the Declaration that was elaborated in the form of theses on 20 March 1990, it was indicated: “The Abrene issue remains open in legal terms, but in the present situation it should not be politically activated” (May 4, p. 456). One also has to take into account that during the adoption of the Declaration of Independence a certain part of the residents contested the right of the Latvian people to be independent, and these people had still to be persuaded about the necessity to restore the independence of the state. The main objective of the Declaration of Independence was full restoration of the statehood of Latvia. Therefore the Declaration of Independence established only the main fundamental principles, ideas and directions of activities for the restoration of the independence of the state of Latvia. The Declaration of Independence generally sketched the most important aspects of the restoration of the statehood of Latvia. No detailed regulation for specific issues of restoration of the de facto independence was included in the Declaration of Independence. Specific treatment regarding the state border between Latvia and Russia would not correspond to the structure of the Declaration of Independence. 66.2. One should also consider the fact that E. Levits, in his commentary, quotes Article 9 of the Declaration of Independence close to the text that had been accepted in the versions of the Declaration of 24 March and 3 April 1990 (see May 4, p. 473). E. Levits points out in his memoirs regarding the adoption of the Declaration of Independence that “I participated in the working groups of the Declaration until my departure on 10 April” (Levits E. Valsts atjaunošanas koncepcijas attīstība, p. 293). However, the preparatory materials of the Declaration of Independence show that its Article 9 was considerably changed during the meeting of the fraction of members of the Latvian People’s Front of the Supreme Council on 12 April 1990. Article 9 of the draft declaration of 9 April 1990 prepared by the working group provided: “To develop the relations between the Republic of Latvia and the USSR in accordance with the still valid Peace Treaty of 11 August 1920 between Latvia and Russia”. After the meeting of the fraction, this sentence was supplemented by a subordinate clause “in which the independence of Latvia has been recognised for eternity”, and later was supplemented by the second sentence with the following wording: “To establish a Government Commission for conducting negotiations with the USSR” (May 4, p. 476). Consequently, it is possible to conclude that Article 9 of the Declaration of Independence was substantively amended by modifying the initial rules. 66.3. The reference to the Peace Treaty included in Article 9 of the Declaration of Independence by the supplement adopted on 12 April 1990 was narrowed down with respect to one particular issue, namely, the fact that Russia, in the Peace Treaty, had recognized the independence of Latvia for eternity. The regulation on recognition of Latvia for eternity is included in Article 2 of the Peace Treaty. Hence, taking into account the history of the elaboration of Article 9 of the Declaration of Independence, one cannot conclude that it is related to other norms of the Peace Treaty, inter alia, Article 3 that establishes the state border between Latvia and Russia. One should rather agree to the opinion expressed in the legal science that “the reference to the Peace Treaty is to be read in the context of the following subordinate clause that emphasizes that the Peace Treaty recognizes the independence of the state of Latvia. Consequently, the Peace Treaty, in this particular case, is to be regarded only as a normative framework for one thesis –

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regarding the independence of the state of Latvia” (Paparinskis M. Maisot tiesisko “spageti” bļodu: Robežlīgums, Satversme un starptautiskās tiesības // Jurista Vārds, 30 January 2007, no. 5). The first sentence of Article 9 of the Declaration of Independence together with its preamble are to be interpreted as a justification for the main question incorporated in the Declaration, namely, the restoration of the statehood of Latvia. Enumeration of historical facts and their legal assessment in the preamble of the Declaration of Independence, as well as the reference to the Peace Treaty in Article 9 are first of all included with the purpose of justifying the right of Latvia to an independent state. The first sentence of Article 9 of the Declaration of Independence particularly emphasizes the fact that the Soviet Russia has recognized independence of Latvia for eternity already in 1920. It is also emphasized that the independence of Latvia is restored by the Declaration of Independence, namely, no new state is founded. The first sentence of Article 9 of the Declaration of Independence gives particulars of the duty of the authorities of Latvias which is established in the preamble of the Declaration, to base themselves on the doctrine of continuity and never derogate from it in the Latvian relations with the USSR and Russia. 66.4. E. Levits has expressed a view that the treatment of the mutual relations of Latvia and Russia follows from Article 9 of the Declaration of Independence; while Article 9 of the Declaration has not been repealed, Latvia is entitled to form its treaty relations with Russia only by ensuring that the later treaties are not in conflict with the 1920 Peace Treaty (see: Levits E. 4. maija Deklarācija Latvijas tiesību sistēmā, p. 64). However, Article 59 of the Vienna Convention contains the general principle lex posterioris derogat legi priori, according to which a later treaty relating to the same subject matter replaces the earlier treaty. This general principle would not relate to international treaties only in those cases if they are in a hierarchical relationship, for instance, the earlier treaty is declaratory of rules of ius cogens or the priority of this treaty has been expressly provided for (see the 2006 Conclusions of the work of the Study Group on the Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law // http://untreaty.un.org/ilc/ texts/instrument s/english/draft%20articles/1_9_2006.pdf, paras. 31‑36). The Peace Treaty is an “ordinary” international treaty, and neither Latvia nor Russia have conferred it a particular legal force. Consequently, the parties to this Treaty in accordance with international law can conclude new bilateral treaties, which would fully or partially replace the Peace Treaty. The opinion regarding the effect of Article 9 of the Declaration of Independence on the force of the Peace Treaty vis à vis the later treaties between Latvia and Russia does not comply with Article 59 of the Vienna Convention. It could be permissible only in case if the constitutional norm would expressis verbis indicate a special status of the Peace Treaty. However, the Declaration of Independence does not expressis verbis provide for such restrictions to the right of the state of Latvia to conclude new international treaties with Russia regarding the issues dealt with in the Peace Treaty. 66.5. The Declaration of Independence is a carefully elaborated document that was discussed, improved and edited for a long time. In order to be able to consider that the objective of the Declaration of Independence is to regulate the state border of Latvia and Russia and to impose the obligation on Latvia to necessarily restore the border established in the Peace Treaty, one should need clear indications regarding

the existence of such a legislative purpose. The Constitutional Court has not been able to find such indications during the preparation of the case. Had the authors of the Declaration of Independence wanted to regulate the state border between Latvia and Russia in a particular way, they would have had to include a rule with a respective content in the text of the Declaration, just like it was done with the reference to Article 2 of the Peace Treaty in Article 9 of the Declaration of Independence. No such norm is included in the final wording of the Declaration of Independence. The process of the elaboration of the Declaration of Independence also does not indicate that the authors had wanted to include such norm therein. An indirect indication about the lack of such rules in the Declaration of Independence is also provided by the motives of the Supreme Council when adopting the resolution of 22 January 1992 “On the Non-recognition of the Annexation of the town of Abrene and the Six Parishes of the Abrene District”. When reporting on the draft resolution, a member of the Supreme Council Rolands Rikards inter alia indicated: “But in this draft resolution we insist on putting it in legal terms: “The border shall be established by Article 3 of the 1920 Peace Treaty”. We express our official opinion. The rest can be negotiated.” (Transcript of the morning plenary session of 22 January 1992 of the Supreme Council of Latvia). If such rules had already been enclosed in the Declaration of Independence, it would not be necessary on 22 January 1992 to establish them or the respective fact could be established by referring to Article 9 of the Declaration of Independence. One can conclude that Article 9 of the Declaration of Independence does not include any rules concerning the state border between Latvia and Russia. The first sentence of Article 9 of the Declaration of Independence imposes an obligation on the Republic of Latvia not to derogate from its continuity doctrine in the negotiations with the Russian Federation. The first sentence of Article 9 of the Declaration of Independence prohibits Latvia from derogating from the continuity doctrine of Latvia when concluding international treaties with Russia. X 67. The Petitioner has requested to assess the compliance of the Law on Authorization with the preamble and Article 9 of the Declaration of Independence. Having regard to the conclusions already made by the Constitutional Court, it is necessary to assess whether the Law on Authorization complies with the doctrine of state continuity. It means that it is necessary to determine whether the action of the Saeima, when adopting the Law on Authorization, was not in conflict with the state continuity doctrine. 67.1. In the Law on Authorization, the Saeima has authorized the Cabinet of Ministers to sign the Border Treaty. The Saeima provided this authorization “based on the Constitutional Law of 21 August 1991 of the Republic of Latvia adopted by the Supreme Council of Latvia “On the Statehood of the Republic of Latvia”, as well as having regard to the internationally recognized state continuity of the Republic of Latvia”. Article 68 of the Satversme provides for the right of the Saeima to ratify international agreements signed by the Cabinet of Ministers that deal with issues to be settled by means of legislation. The Satversme does not provide that the Saeima is to authorize the Cabinet of Ministers to sign international treaties; however, no prohibition of doing so is included in the Satversme.

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“In parliamentary States, the government is subordinated to the parliament and is responsible to it. Therefore, it is logical that the parliament not only controls the government, but also instructs it both regarding the general course of policy and establishing the activities of certain departments” (Dišlers K. Ievads Latvijas valststiesību zinātnē, p. 151). The Latvian Senate has also admitted that the Saeima is authorized to give instructions and binding orders to the Cabinet of Ministers [Judgments of the Latvian Senate (1918–1940). Vol. 3. Judgments of the Administrative Department of the Latvian Senate (1926–1930). Rīga: Latvijas Republikas Augstākā tiesa, Senatora Augusta Lēbera fonds, 1997, p. 922]. The Saeima is entitled to authorize the Cabinet of Ministers to perform certain activities in international law in order not only to sign but also to prepare a treaty with a foreign state that in the Saeima’s view is necessary for Latvia. Article 3 of the Law “On International Treaties of the Republic of Latvia” establishes such a right for the Saeima. It provides that the Saeima “is entitled to make the decision regarding the conclusion of any international treaty by nominating persons responsible for concluding the respective agreement and the extent and context of authorization of these persons in the decision”. Consequently, the Saeima has not exceeded its competence established by the Satversme when authorizing the Cabinet of Ministers. 67.2. In cases when the Cabinet of Ministers has planned to prepare and sign international agreements that affect issues that are significant for the state, a preliminary consent by the Saeima to such an action of the Cabinet of Ministers, by authorizing the Cabinet of Ministers to elaborate and sign such a treaty by means of a law, confers an additional legitimacy to the action of the Cabinet of Ministers and shows to the other contracting party that not only the Latvian government but also the parliament shall accept the signed treaty and shall not object against its entry into force. The text of the Satversme of Latvia was mainly elaborated on the basis of the Constitution of Germany of 11 August 1919. In commenting the rules of this constitution, it has been admitted in the German legal science: in cases when the executive power has planed to decrease the state territory by means of an international treaty, the parliament can manifest its consent not only by ratifying the already signed international treaty, but also by a preliminary authorisation of the President to sign such a treaty (see: Giese F. Der Verfassung des Deutschen Reiches, S. 200; Anschütz G. Die Verfassung des Deutschen Reichs vom 11. August 1919, p. 422). When adopting the Law on Authorization, the Saeima discussed in extensive debates the content of the Border Treaty and the political necessity for its signing. The will of the Saeima expressed by authorizing the Cabinet of Ministers to sign this treaty, suggests that the Saeima has accepted the signing of such an agreement and is ready to undertake the international obligations established therein (see the transcript of the fourth meeting of the winter session of the 9th Saeima of the Republic of Latvia, 1 February 2007 and the fifth meeting, 8 February 2007). 68. As the Cabinet of Ministers indicates, the drafting of the Law on Authorization had several objectives. First, the Law on Authorization was drafted by observing the requirement to confirm the authorization of the highest state officials to conclude important international treaties included in Article 3(2) of the Law “On the International Treaties of the Republic of Latvia”.

Second, the Law on Authorization fulfils a certain political function, namely, the Saeima, when adopting it, expresses its political support for the signing of the Border Treaty. Third, the Law on Authorization is adopted with the objective to ensure the continuity doctrine of the Republic of Latvia (see the additional explanations of the Cabinet of Ministers, the case materials, vol. 10, pp. 138‑140). 68.1. In addition to this, it is possible to agree to the Petitioner that the limits of the authorization are included in the Law on Authorization (see the case materials, vol. 1, p. 12). The Saeima has authorized the Cabinet of Ministers to conclude the Border Treaty by observing the Constitutional Law and by not affecting the state continuity doctrine by its actions. As the chairman of the Commission of Foreign Affairs of the Saeima, Andris Bērziņš, indicated during the debates at the Saeima: “The prepared draft law under consideration provides for limits of authorization to the government, which are precisely established by the Constitutional Law of the Republic of Latvia” (Transcript of the fifth meeting of the winter session of the 9th Saeima of the Republic of Latvia, 8 February 2007). Consequently, one can conclude that the Law on Authorization provides for the limits of the authorization of the Cabinet of Ministers. 68.2. When restricting the activities of the Cabinet of Ministers by the Law on Authorization, the legislator required it to observe the Constitutional Law and the continuity doctrine of the Republic of Latvia. As the parliamentary decates show, the objective of the legislator was not to confer rights to the Cabinet of Ministers by the Law on Authorization to act against the continuity doctrine of the Republic of Latvia or to denounce it. A. Bērziņš has emphasized in particular that the Law on Authorization does not affect the continuity doctrine of the Republic of Latvia and does not repeal any of the other earlier acts that establish the doctrine or expresses the viewpoint of Latvia regarding its illegal annexation to the USSR. “The construction of the draft law does not restrict any of the contracting parties regarding their interpretation of the history. It is clear that Latvia has and will have a different opinion regarding what and how happened with our independence during the previous century” (Transcript of the fourth meeting of the winter session of the 9th Saeima of the Republic of Latvia, 1 February 2007). In order to emphasize the continuity doctrine of the Republic of Latvia, the legislator included into the Law on Authorization not only a reference to it, but also drew the attention to the Constitutional Law. “The Constitutional Law is the most important legal document” that includes all the aspects necessary for ensuring the continuity doctrine of the Republic of Latvia, because it “sketched the history of the Republic of Latvia until 1940 and simultaneously fully restored the Republic of Latvia”, the Prime Minister A. Kalvītis stated in his speech (see the transcript of the fourth meeting of the winter session of the 9th Saeima of the Republic of Latvia, 1 February 2007). 68.3. The declaration of 4 May 1990 of the Supreme Council of the Latvian SSR “On the Renewal of the Independence of the Republic of Latvia” was adopted on the basis of the state continuity doctrine. The Constitutional Law is closely related to the restoration of the independence of the Republic of Latvia and fully confirms the continuity of the state of Latvia (see: Apsītis R. Neatkarības deklarācijas pieņemšanas gadadienā // Jurista Vārds, 3 May 2005, no. 16).

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The preamble of the Constitutional Law contains a reference to the Declaration of Independence, emphasising that this law has been adopted by observing the basic propositions of the Declaration. It particularly follows from Article 3 of the Constitutional Law, wherein the Supreme Council has emphasized the duty to abolish the occupation and annexation of the state of Latvia which plainly draws attention to the tate continuity doctrine as the basis for the regulation of the Constitutional Law. One can agree to the Saeima that the Law on Authorization complies with the preamble of the Declaration of Independence. The Law on Authorization contains no facts that would not correspond to the historical facts mentioned in the preamble of the Declaration of Independence, as well as their legal assessment. Similarly, the Law on Authorization is not in conflict with the continuity doctrine of the state of Latvia, but just on the contrary – the fact of the continuity of the state of Latvia is particularly emphasized in the Law on Authorization as the basis for authorisation to sign the Border Treaty (see the case materials, vol. 1, pp. 150‑151). 68.4. When commenting on the draft law of the Law on Authorization, professor Ineta Ziemele stated: “The draft decision prepared by the government is sufficiently considerate in the above-mentioned legal context with one basic precondition – that the government and the Saeima continue maintaining the position that has been expressed in different legal and political forms regarding the issue of the continuity of the state of Latvia and questions related thereto with all the consequences following from that” (Ziemele I. Piezīmes pie sagatavotā lēmuma projekta // Jurista Vārds, 30 January 2007, no. 5). According to the Constitutional Court, neither the Law on Authorization, nor the opinions of the highest state officials expressed during the debates at the Saeima regarding the adoption of the Law on Authorization show that Latvia waives its continuity doctrine by means of this law. The Law on Authorization established the scope of authority of the Cabinet of Ministers for signing the Border Treaty. The authorization included in the law gives the particulars of the requirements of Article 9 of the Declaration of Independence regarding the Border Treaty and it obliges the Cabinet of Ministers to ensure the observation of these requirements, namely, to ensure that the state of Latvia would not act contrary to the continuity doctrine when signing the Border Treaty and undertaking international obligations provided therein. The Cabinet of Ministers has signed the Border treaty without affecting the continuity doctrine of the ztate of Latvia, as well as without waiving it. Consequently, the Law on Authorization complies with the preamble of the Declaration of Independence. 69. The Petitioner has argued that the Law on Authorization does not comply with Article 9 of the Declaration of Independence because it provides for a contrary authorization. According to the Petitioner, Article 9 of the Declaration of Independence imposes an obligation to achieve the renewal of the state borders between Latvia and Russia as established in the Peace Treaty, while the Law on Authorization confers the right to the Cabinet of Ministers to sign the Border Treaty that changes the state border established in the Peace Treaty (see the case materials, vol. 1, pp. 11‑12). 69.1. The Constitutional Court has already established that Article 9 of the Declaration of Independence does not impose an obligation on the State of Latvia to restore the state border with Russia as established in the Peace Treaty. From Article 9

of the Declaration of Independence follows the obligation not to act contrary to the state continuity doctrine during the negotiations with Russia. The state continuity doctrine does not prohibit the state of Latvia to deal with its own territory. The state of Latvia is entitled, in compliance with the procedure established in the Satversme, both to enlarge and diminish its territory (see Ziemele I. Is the Distinction between State Continuity and State Succession, pp. 215‑216). In this case one has to take into account that the state of Latvia by means of the Border Treaty does not accept the position of the Russian Federation that incorporation of the Abrene area into the territory of Russia is lawful, but rather gives to Russia by the use a procedure accepted in international law the territory that de facto is under the control of the Russian Federation but de iure is a part of the territory of the state of Latvia. Scholars of other states have also expressed the view that the loss of the Abrene area does not affect the state continuity of Latvia (see Taube C. Constitutionalism in Estonia, Latvia and Lithuania. A Study in Comparative Constitutional Law. Uppsala: Iustus Förlag, 2001, pp. 33‑44). 69.2. When giving the Abrene area to Russia by means of the Border Treaty, Latvia has acted according to the procedure established in the Satversme. One also has to take into account that the Latvian government in the Border Treaty has dealt only with issues related to the state border but has not touched the issues of inter-state political relations, inter alia, the issue regarding the legal status of Latvia (see the additional explanations of the Cabinet of Ministers, the case materials, vol. 10, p. 136). The Constitutional Court has no doubts that the state of Latvia by means of the Border Treaty has not disclaimed its state continuity but just on the contrary – it has repeatedly expressed its opinion regarding this issue and the Cabinet of Ministers has signed the Border Treaty on the basis of the Law on Authorization that established a clear framework of action for it. Since the representative of the Russian Federation when signing the Border Treaty had to be aware of the content of the mandate of the Latvian representative and he did not object against the fact that the Prime Minister of the Republic of Latvia signed the Border Treaty by observing the state continuity doctrine of Latvia, one can consider that the state of Latvia has acted in accordance with the requirements of this doctrine. Moreover, as the Constitutional Court has already established, territorial changes made by means of the Border Treaty have been carried out according to the procedure established by the Satversme. The state continuity doctrine prohibits neither changing the state territory in accordance with the procedure established in the Satversme, nor the Saeima authorizing the Cabinet of Ministers to sign a respective treaty. The international law doctrine also expresses the view that a change to state borders does not affect the continuity of this state. Under the general international law a state as a legal person remains unaffected also in case if it changes its territory. State continuity is not affected by minor territorial changes or loss of some territories (see: Marek K. Identity and Continuity of States, pp. 15–126, 551–587; Kunz J. L. Identity of States under International Law // American Journal of International Law, Vol. 49, 1955, pp. 72-73; O’Connell D. P. The Law of State Succession. Cambridge: Cambridge University Press, 1956, p. 31). “Latvia is entitled to cede Abrene to Russia like France is entitled to cede Alsace to Germany, and neither Latvia, nor France would lose their state identity as a result” (Paparinskis M. Maisot tiesisko „spageti bļodu”: Robežlīgums, Satversme un starptautiskās tiesības // Jurista Vārds, 30 January 2007, no. 5). Consequently, the Law on Authorization complies with Article 9 of the Declaration of Independence.

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XI 70. Article 1 of the Ratification Law provides that the Border Treaty is adopted and ratified “observing the principle of inviolability of borders adopted by the Organization of Security and Cooperation in Europe”. The Petitioner considers that these words do not comply with the preamble and Article 9 of the Declaration of Independence. In order to verify this claim, it is first necessary to examine the content of the principle of inviolability of borders, as well as whether the Saeima has observed the requirements of the Satversme that follow from Article 68 when including these words into the Ratification Law. 71. The principle of inviolability of borders is defined in Article 3 of the Helsinki Final Act. It provides: “The participating states regard as inviolable all one another’s frontiers as well as the frontiers of all states in Europe and therefore they will refrain now and in the future from assaulting these frontiers. Accordingly, they will also refrain from any demand for, or act of, seizure and usurpation of part or all of the territory of any participating state.” 71.1. When assessing the principle of inviolability of borders, one has to take into account the fact that the Helsinki Final Act is not an international treaty within the meaning of the Vienna Convention. The Helsinki Final Act includes a clause that it is not eligible for registration under Article 102 of the UN Charter. Since all international agreements have to be registered according to this procedure, the a contrario argument would seem to sufficiently accurately reflect the objective of the authors of the act (see: Aust A. Modern Treaty Law and Practice. Cambridge: Cambridge University Press, 2000, pp. 26, 280). The Helsinki Final Act is not binding per se, but it can be used to determine the content of the principles of international law. The Republic of Latvia has recognized the OSCE principles are bindingto it, including, inter alia, Article 10 of the Helsinki Final Act that requires these principles to be equally applied. 71.2. Article 3 of the Helsinki Final Act consists of two sentences. When interpreting the text of these sentences it is necessary to point out that the first sentence apparently consists of two rules, namely, that the participating states regard as inviolable all one another’s frontiers and therefore will refrain now and in the future from assaulting these frontiers. Considering the structure of this sentence, it can be concluded that the first part of the sentence does not claim any independent normative character but only forms the framework for the second part and explains its rationale. The linking word “therefore” does not permit any other conclusion. Inviolability of borders per se does not cause any other legal consequences but those mentioned after the word “therefore”. The second part of the first sentence of the Article indicates the actions that the states undertake to refrain from. Description of these activities is very important, for these are the words that reveal the scope of the first sentence. The text of Article 3 of the Helsinki Final Act differs in its original languages (English, French, German, Russian, Italian and Spanish). In the text in English, French, German, Italian and Spain, the concepts with the meaning “to assault” are used (respectively “assaulting”, “attentat”, “Anschlag”, “dall’attaccare”, “atacar”), whereas in the Russian versions, a term used that can be understood in a wider sense as “to claim” (“посягательств”). In the five languages, the first sentence limits the consequences of the border inviolability to the impermissibility of an armed assault, whereas in the Russian

language it could also be related to claims of other nature. If one prefers the texts in English, French, Italian, Spanish and German, then the principle of inviolability of borders provided here is not at all different from the ius cogens rule established in Article 2(4) of the UN Charter regarding the prohibition of use of force. If one prefers the text in the Russian language, then wider and legally more ambiguous consequences could follow from it. 71.3. The second sentence of Article 3 of the Helsinki Final Act supports the interpretation of the English, French, Italian, Spanish and German texts. This sentence explains the content of the first sentence by one, apparently the most obvious example, starting with one and the same word in all versions – “accordingly”. In case if the text in the English, French, Italian, Spanish and German languages is correct, the second sentence should address armed conflicts. On the other hand, if the unclear and wider meaning that follows from the Russian version is correct, the meaning of the second sentence should exceed the use of armed force and should explain this meaning. The second sentence provides for abstention of parties from any actions that are directed towards “seizure or usurpation” of territory. The nature of these concepts is not completely clear, however it seems what is meant is armed seizure and annexation. The second sentence definitely does not correspond to the wider notion indirectly included in the first sentence of the Russian version. One can conclude that the textual scope of Article 3 of the Helsinki Final Act does not generally address anything more than a repeated prohibition of unlawful use of force. 72. When applying the principles included in the Helsinki Final Act, including the principle of inviolability of borders established in its Article 3, states have to take into account Article 10 of this Act, which inter alia provides: “All the principles set forth above are of primary significance and, accordingly, they will be equally and unreservedly applied, each of them being interpreted taking into account the others.” In the Border Treaty, both Latvia and Russia have undertaken to apply all the OSCE principles together. 72.1. By including such a reference into the preamble of the Border Treaty, the contracting parties make a reference not only to the principle of inviolability of borders, but also to other principles of the Helsinki Final Act. The principle of sovereign equality established in Article 1 of the Helsinki Final Act provides that the participating states may agree on changes of borders. This norm reaffirms that the principle of inviolability of borders is limited by the prohibition of unlawful use of force, without denying the right to change borders by other means and as a result of other rules of international law. The principle of refraining from use of force or threat of use of force that is established in Article 2 of the Helsinki Final Act provides that the participating states shall refrain from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations and with the Helsinki Final Act. The rules included in these documents are substantively identical to the obligations to refrain from aggression established in the London Convention and other treaties concluded by the USSR and binding upon it in 1940. Hence it follows from the Helsinki Final Act that the aggression of 1940 against the Baltic States is an impermissible violation of international law.

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The principle established in Article 6 of the Helsinki Final Act, namely, the principle of non-intervention in internal affairs of other states, provides that the participating states shall refrain from intervention in internal affairs of other states, similarly as it was provided in the Assistance Pact between Latvia and the USSR. Consequently, the Helsinki Final Act emphasizes that the conduct of the USSR – intervention in the internal affairs of Latvia and other Baltic States carried out in 1940 – is impermissible as a breach of international law. The principle of territorial integrity of states established in Article 4 of the Helsinki Final Act provides that the participating states shall refrain from making each other’s territory the object of military occupation and no annexation will be recognized as legal. The first part of this article (on carrying out annexations) is related to the future, whereas the second part (on non-recognition of annexations) does not limit the non-recognisable annexations to the potential annexations of the future and thus strengthens the principle of non-recognition of unlawful annexation whenever they have taken place. This principle consequently emphasizes the legal consequences for the breach of international law carried out by the USSR. (see: Russel H. S. The Helsinki Declaration: Brobdingnag or Lilliput? // American Journal of International Law, 1976, pp. 265‑266). 72.2. Such conclusions regarding the content of the Helsinki Final Act and its pertinence to the Baltic States are also confirmed by the historical interpretation. The leader of the US delegation to the negotiations of the Helsinki Final Act Harold Russell pointed out that: “The single issue in the [Helsinki] Declaration to attract the greatest amount of public attention has been the question of recognition of existing frontiers and thereby Soviet supremacy in its Eastern Empire, including the Baltic States. […] It is the author’s view, as well as that of all the Western negotiators, that the USSR failed in large part to achieve the kind of language [of the Act] it originally sought and that the document does not depart materially from previous international arrangements on frontiers and does nothing to recognize existing frontiers in Europe. A principal, if not in fact the main, objective of the USSR at the OSCE [negotiations] was to obtain general Western acceptance of existing frontiers in much the same terms as had been obtained in the treaties concluded by the FRG with the USSR and Poland concerning normalization of borders. The initial Soviet proposal for a principle on frontiers was a careful distillation of the essential elements of the Warsaw [FRG Poland] and Moscow [FRG - USSR] treaties – an independent principle not explicitly related to or derived from the principle of non-use of force; mention of the inviolability of “present” or “existing” frontiers; renunciation of territorial claims; and language implying immutability of the status quo. […] During the course of these negotiations the Soviet representatives grudgingly gave ground inch by inch until in the final analysis they were willing to accept language which departs substantially from their initial draft and omits all of its essential elements. […] Western negotiators generally were pleased with the result, which made it possible for them to interpret the principle as meaning no more and no less than prior statements of international law on frontiers […] To protect the balance between the inviolability principle and the formulation on peaceful changes of frontiers and to inhibit the Soviet proclivity to proclaim the inviolability principle as the most important achievement of the OSCE, Western delegations insisted on a statement that all the principles are of equal significance” (Russel H.S. The Helsinki Declaration, pp. 249‑253).

As to the principle of territorial integrity, “the second sentence [of the last paragraph] to the effect that no such occupation or acquisition will be recognized as legal can and should be read to refer not only to future occupations and acquisitions but also to those which may have taken place in the past. Accordingly, this paragraph may be read as supporting the U.S. position that the forceable incorporation of Latvia, Lithuania, and Estonia into the Soviet Union is not recognized as legal” (Russel H.S. The Helsinki Declaration, pp. 265‑266). 72.3. After signing the Helsinki Final Act, the Western States (the US, France, Great Britain, Belgium etc.), in order to emphasize in an even clearer manner that the Helsinki Final Act does not apply to the Baltic States, explained in several declarations that the Helsinki Final Act did not imply recognition of illegal annexation of the Baltic states, and that after signing of this act, the Western states would still continue the non-recognition policy (see Dokumenti par Latvijas valsts starptautisko atzīšanu, neatkarības atjaunošanu un diplomātiskajiem sakariem. 1918–1998. Rīga: Nordik, 1999, pp. 159‑160). The US President Gerald Ford announced that the US government had not recognized annexation of the Baltic States as legal before, and also with the Helsinki Final Act it does not modify this position. Similarly, the President of France, Valéry Giscard d’Estaing emphasized that the text of the Helsinki Final Act does not in any way affect the non-recognition of unlawful territorial changes. Whereas the Prime Minister of Great Britain, Margaret Thatcher, in the parliamentary discussions on the Helsinki Final Act pointed out that the Western States have never recognized annexation of the Baltic States and that the Helsinki Final Act does not make the present borders lawful (see: Mälksoo L. Illegal Annexation and State Continuity: The Case of the Incorporation of the Baltic States by the USSR. Leiden / Boston: Martinus Nijhoff Publishers, 2003, pp. 123‑125). 72.4. An opinion has been expressed in the legal practice of the Russian Federation and reflected in the legal writings that an approval of lawfulness of even unlawful annexations follows from the principle of inviolability of borders. Such an opinion is usually declared ipse dixit, based only on the title of Article 3 of the Helsinki Final Act and without entering into interpretation of this article (see Стенограмма заседания от 5 сентября 2007 г. Государственной Думы Федерального Собрания Российской Федерации). The Helsinki Final Act – with the condition that its norms are interpreted according to the requirements of its Article 10 and that the respective declarations of the Western States are taken into account – confirmed the unlawfulness of the USSR conduct of 1940 in the international law of 1975 and repeatedly pointed out the duty not to recognize earlier unlawful annexations. From the impermissibility of violations of law and the recognition of the consequences of such violations simply cannot follow the acceptance of the consequences of earlier violations. Even though the Russian Federation has used such a conclusion, the reference to the UN and OSCE principles included in the Border Treaty means a reference to the objective normative content of these principles, and thus structures and confirms the legal position and status of continuity of Latvia. The opinion of Russia regarding the content of the Helsinki Final Act does not affect its objective content. 72.5. It is possible to conclude that the principle of inviolability of borders does not provide for international legal protection of illegally established borders. One also has to take into account the fact that along with the principle of inviolability of borders, the Helsinki Final Act declares the principle of self-determination that was not observed

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when the Baltic States were unlawfully annexed to the USSR. In addition, one has to take into consideration that not only the text of the Helsinki Final Act but also the declarations of the Western States regarding this declaration have to be relied upon in identifying the content of the OSCE principles, and the opinion of these States on the issue of the Baltic States is clearly reflected in these declarations (see Paparinskis M. Maisot tiesisko “spageti” bļodu: Robežlīgums, Satversme un starptautiskās tiesības // Jurista Vārds, 30 January 2007, no. 5). The Cabinet of Ministers has also indicated in its written reply that the state of Latvia when referring to the principle of inviolability of borders has made a reference to the content of this principle that is established in the Helsinki Final Act by also taking into account all other OSCE principles and declarations of the Western States regarding the issue of the Baltic States, rather than to the content of this principle in the Russian interpretation (see the case materials, vol. 4, pp. 79‑81). Such an opinion was also expressed during the preparatory stages of the Ratification Law. The State Chancellery has indicated it its opinion: “The Helsinki Final Act (to which an indirect reference is made in the submitted […] draft) is not interpreted, in international law, as recognising the forcible changes of territory of the Baltic States carried out after World War II (the case materials, vol. 7, p. 103). Also the head of the Prime Minister’s Bureau (at present – the Minister of Foreign Affairs) Māris Riekstiņš expressed his view during the meeting of the Foreign Affairs Committee of the Saeima that “the indicated references to the principle of inviolability of borders established by the Organization of Security and Cooperation in Europe (OSCE) [in the draft Ratification Law] provide for inviolability of borders in a forcible way but theoretically permit changing borders by means of negotiations. Theoretically, if Latvia wants to conduct negotiations on the change of borders, this is permitted by this principle” (Protocol of the meeting of 20 April 2007 of the Foreign Affairs Commission of the Saeima, the case materials, vol. 6, p. 34). 72.6. The Republic of Lithuania in the border treaties with the Republic of Poland and the Republic of Belarus has referred to and based itself on the Helsinki Final Act, and this has not affected the state continuity of the Republic of Lithuania (see Žalimas D. Lietuvos Respublikos Nepriklausamybės atkūrimo 1990 m. kovo 11 d. tarptautiniai teisiniai pagrindai ir pasekmės. Vilnius: Demokratinės politikos institutas, 2005, pp. 302‑311). Similarly, the Republic of Latvia reached an agreement with the Republic of Belarus regarding the border between the two states by inter alia referring to “the objectives and principles of the UN Charter, the Final Act of the Conference on Security and Cooperation in Europe, and other documents of cooperation of European States” (Līgums par valsts robežas noteikšanu starp Latvijas Republiku un Baltkrievijas Republiku // Latvijas Vēstnesis, 12 November 1994, no. 133). In this case as well, the reference to the Helsinki Final Act with the principle of inviolability of borders included therein cannot affect the state continuity of Latvia. 73. The Saeima has extensively considered the interpretation of the principle of inviolability of borders during the discussions regarding the Border Treaty. 73.1. When the Saeima was deciding on the Law on Authorization, a suggestion was made to include the reference to the OSCE principles in the Law on Authorization, particularly to the principle of inviolability of borders. When justifying this suggestion, the MP Valērijs Buhvalovs mentioned that the Helsinki Final Act “inter alia provides for the immutability of the post-war borders and is of a particular importance for ensuring stability in Europe. We suggest making a reference in the draft law to exactly this

Article, which would mean a categorical waiver of any territorial claims against Russia” (Transcript of the fifth meeting of the winter session of the 9th Saeima of the Republic of Latvia, 8 February 2007). Majority of the Saeima rejected the proposition to include such a reference. A member of the Saeima Jānis Eglītis particularly emphasized: “The text of the draft law is clear and concise enough, and in the previous votes we have refrained from including any additional formulations. Hence I appeal not to support this proposition. Moreover! After having heard out the interpretation of the opponents regarding their understanding of it, this proposition is not acceptable” (Transcript of the fifth meeting of the winter session of the 9th Saeima of the Republic of Latvia, 8 February 2007). The chairman of the Foreign Affairs Commission of the Saeima A. Bērziņš stated that “the opinion of the Commission is as follows: a reference to the standards of the United Nations and the standards or fundamental principles of the OSCE is made in Article 1 of the Treaty, therefore it is not necessary here, in the law” (Transcript of the fifth meeting of the winter session of the 9th Saeima of the Republic of Latvia, 8 February 2007). When deciding on the Law on Authorization, the Foreign Affairs Commission of the Saeima held that the reference to the UN and OSCE principles is not necessary in the law, because such a reference was already incorporated in the text of the Border Treaty. The Saeima agreed to this opinion. In addition, one can conclude that the objective of those members of the Saeima who suggested including such a reference in the Law on Authorization was to achieve the recognition of the border of Latvia and Russia unlawfully established in 1944 as lawful, thus derogating from the state continuity doctrine of the Republic of Latvia. As the member of the Saeima Jakovs Pliners indicated: “There is a phrase in the text of the draft law that we offer to strike out (I quote): “Having regard to the rinternationally ecognized state continuity of the Republic of Latvia”” (transcript of the fifth meeting of the winter session of the 9th Saeima of the Republic of Latvia, 8 February 2007). 73.2. Although previously majority of the Saeima had rejected the need to make a reference to the principle of inviolability of borders, the Cabinet of Minister nevertheless included such reference in the draft of the Ratification Law. The chairman of the Foreign Affairs Committee of the Saeima, A. Bērziņš, indicated when justifying such reference: “Let us not be surprised that such references can be found in the ratification documents that are under consideration today. I want to say that the Helsinki agreement is a sort of a political framework – that political framework, with which Europe lives without wars for already 62 years, regardless of what we think about this agreement, including the principle of inviolability of borders established therein that most probably was the reason for the political decision of the Latvian government when signing the Latvian‑Russian Border Treaty” (Transcript of the fifth meeting of the winter session of the 9th Saeima of the Republic of Latvia, 8 February 2007). When deciding on the adoption of the Ratification Law, a suggestion was made to exclude the reference to the principle of inviolability of borders. This suggestion was justified by the member of the Saeima Māris Grīnblats: “In our view, the reference to the Organization of Security and Cooperation in Europe is ill-founded and unacceptable. […] Already in winter there were large discussions regarding the reference to the OSCE, when the government was authorized, by a majority vote of the members of the Saeima, to sign this treaty. At that time all the right-wing parties rejected the reference to the OSCE as being unacceptable, whereas the left-wing groups

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supported it. What has changed during these three or four months? We would like to hear these arguments. However, in our view, this reference is inappropriate because it is often precisely Russia that makes references to the OSCE in every case when they need to intervene in this way or another within the internal affairs of the Baltic States” (Transcript of the sixth meeting of the spring session of the 9th Saeima of the Republic of Latvia, 17 May 2007). 73.3. The Prime Minister A. Kalvītis and the Minister of Foreign Affairs A. Pabriks during the Saeima discussions have expressed their views regarding the content of the principle of inviolability of borders. The Prime Minister indicated: “Our allies are the participating states of the OSCE and have signed the 1975 Helsinki Final Act that clearly states that the borders in Europe shall not be revised. It also has to be noted that Latvia when becoming a Member State of the OSCE in 1991 joined also this principle of inviolability of borders – without reservations or objections. Moreover, Latvia has applied these principles also in Latvia because we have agreed on the application of these principles after the restoration of independence when signing the Border Treaty with Lithuania. Moreover – a direct reference to the principles of inviolability of borders declared by the OSCE is mentioned in the 1994 Border Treaty between Latvia and Belarus, where a part of the border concerns the 1920 Peace Treaty” (Transcript of the fourth meeting of the winter session of the 9th Saeima of the Republic of Latvia, 1 February 2007). Whereas A. Pabliks indicated: “In 1991, when becoming a Member State of the OSCE, Latvia agreed to all OSCE principles without reservations by inter alia joining the Helsinki Final Act that recognized the principle of inviolability of borders. This means that Latvia has agreed to the borders of Europe that were established after the Second World War. Of course, these borders were often established in an unjust manner, but this is already another issue” (Transcript of the fourth meeting of the winter session of the 9th Saeima of the Republic of Latvia, 1 February 2007). 73.4. An opposite opinion was expressed by the member of the Saeima Uldis Grava (during the Helsinki Conference – the chairman of the Baltic World Conference): “The invoked 1975 Helsinki document of the OSCE is totally out of place because it seemingly builds up an argument that we have an obligation to sign the Border Treaty. Because actually it confirms, in the Helsinki agreement, the interpretation that was initially put forwards by Leonid Brezhnev when he said that, look, the border has to be established for all times in the treaty, which means – the spoils of the Second World War have to be confirmed. […] In the course of time, after signing of the Helsinki agreement, almost all the participating states of the Helsinki agreement have confirmed in one way or another the fact that they do not recognize the occupation of the Baltic States. There were respective declarations of the governments and resolutions of the parliaments, as well as speeches of the ministers of foreign affairs. But the main issue is that it is necessary to again and again explain the Helsinki agreement. We cannot accept what is proposed by the party “Saskaņas Centrs” that the Helsinki agreement requires us to sign such a border treaty. The Helsinki agreement does not legitimize the spoils of Abrene. Just on the contrary – it draws attention to the fact that changes of borders are possible even after the end of Second World War. And why should we derogate from it?” (Transcript of the fifth meeting of the winter session of the 9th Saeima of the Republic of Latvia, 8 February 2007). “The original document includes the words: “No occupation or unlawful acquisition will be recognised as legal.” The borders frozen by Brezhnev melted as soon as 35 presidents of European and Northern American states signed the Helsinki

agreement in 1975!” (Transcript of the sixth meeting of the spring session of the 9th Saeima of the Republic of Latvia, 26 April 2007).

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74. The principle of inviolability of borders cannot be interpreted in the manner that the illegal annexation of the Baltic States to the USSR should be recognized as legal under this principle. As the lawyer and public figure of the Latvian exile Ādolfs Šilde once wrote: “We were preparing for the Helsinki Conference for two years. […] We were afraid that we could lose everything – including the legal grounds that still existed for the basis of the state of Latvia. Despite the diplomatic acrobatic of the Helsinki Conference and the massive efforts of Moscow, we have not lost everything. We have transformed from a subject of rights into an object of rights after the Helsinki Conference. […] The Baltic States even after the Helsinki Conference is like a bone stuck in the throat of the Soviet imperialism” (Šilde Ā. Helsinki un mēs // Latvija, 16 August 1975) Under Article 10 of the Helsinki Final Act all the principles of this act are to be applied as a singe regulation, and therefore the principles of the Helsinki Final Act cannot be interpreted as such that would recognize the incorporation of the Baltic States into the territory of the USSR in 1940 and would not permit the continuity doctrine of the Baltic States (see: Meissner B. The Right of Self-Determination after Helsinki and its Signification for the Baltic Nations // Journal of International Law, vol. 13, 1981, no. 2). Just to the contrary – these principles structure and confirm the opinion of Latvia regarding the impermissibility of violations of international law and the non-recognition of the consequences of unlawful annexation. Consequently, the principle of inviolability of borders together with other principles of the Helsinki Final Act is not in conflict with the continuity doctrine of the state of Latvia. 75. Article 68(1) of the Satversme provides that the Saeima has the right to ratify all international treaties that settle matters that may be decided by the legislative process, including the Border Treaty. Consequently, Article 68(1) of the Satversme provides for the procedure of undertaking international obligations. 75.1. The validity of rules of international law as well as the rights and duties of states that undertake international obligations are dealt with by international law itself, and in the first instance by the Vienna Convention and the rules of customary international law (see the judgment of the Constitutional Court of 13 May 2005 in the case no. 2004-18-0106, para. 8.1 of the motives part). Article 27 of the Vienna Convention provides that states may not invoke the provisions of the internal law as justification for their failure to perform a treaty. This means that the states in the international relations must primarily comply with the rules of international law but the rules of domestic law are to be applied only insofar as this is permitted by international law. Consequently, one has to conclude that Article 68(1) of the Satversme imposes an obligation on the authorities of the state of Latvia, including the Saeima, to observe in the international relations not only the requirements of the Satversme and other domestic legal rules, but also rules of international law. If the organs of the Ssate of Latvia when undertaking international obligations have not observed the rules of international law for the drafting, signature and ratification of international treaties, then Article 68(1) of the Satversme has also not been complied with.

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75.2. “Article 18 of the Vienna Convention provides that the State has a duty of abstaining from activities, which are directed against the object and purpose a treaty if the state has signed a treaty subject to ratification. […] From the moment of ratification the international treaty with all the rules included in it becomes binding and may be directly applied to legal relations within the state, providing that the state has not made reservations at the time of ratification” ( judgment of the Constitutional Court of 13 May 2005 in the case no. 2004-18-0106, para. 8.1 of the motives part). The Border Treaty also has provisions regarding its ratification. Hence, during the time between the signing of the Border Treaty and its ratification with which this Treaty will become effective the Article 68(1) of the Satversme requires that the Saeima observes the rules of customary international law and the Vienna Convention that are related to treaties of such nature. 75.3. The Constitutional Assembly of Latvia by incorporating Article 68(1) into the Satversme has not assumed that the state of Latvia could fail to perform its international obligations. The Constitutional Assembly has followed the presumption that international obligations “settle” issues and that they have to be complied with (see the judgment of the Constitutional Court of 7 July 2004 in the case no. 2004-01-06, para. 6 of the motives part). If the State President, the Prime Minister or the Minister of Foreign Affairs have expressed the will on behalf of Latvia to undertake international obligations, the obligation of the Saeima is to take into account the expectation of the international community and the other contracting party that Latvia will undertake these obligations. However, this does not mean that the Saeima always has to ratify those treaties that are signed by the State President, the Prime Minister or the Minister of Foreign Affairs. Article 68(1) of the Satversme provides for the right of the Saeima to decide on ratification of these treaties, namely, the right to assess the compliance of the respective treaties with the national interests of Latvia and the necessity of ratification of such treaties. The Saeima is entitled to refuse to ratify an international treaty or to ratify an international treaty by changing its content or applicability in Latvia. However, the limits of the freedom of action of the Saeima is such situations are determined by the rules of international law, namely, the Saeima has to make the decision by observing the rules of international law binding on Latvia that regulate this procedure. Such action of the Saeima that would be directed to non-fulfilment of international obligations or would change its scope contrary to the requirements of the rules of international law would be incompatible with Article 68(1) of the Satversme. 76. The Saeima has included the following words in Article 1 of the Ratification Law: “observing the principle of inviolability of borders established by the Organization of Security and Cooperation in Europe”. In order to assess whether these words comply with Article 68(1) of the Satversme, it is necessary to determine what the aim of the legislator was when supplementing the Ratification Law with these words. 76.1. In the preamble of the Border Treaty, Latvia and Russia, when agreeing on the state border, confirm their loyalty to the UN and OSCE principles. Preambles of international treaties are very important in the interpretation of international treaties. Under Article 31(1) of the Vienna Convention, a treaty shall be interpreted in good faith and in the light of its object and purpose. The objects and purposes of a treaty are usually reflected in its preamble.

Consequently, in cases when it is necessary to determine the content of the international obligations included in a treaty and the object and purpose of the parties concluding a treaty, the rules of the concluded treaty are to be interpreted by taking into account the entire text of the treaty, as well as its preamble (see Brownlie I. Principles of Public International Law, p. 605). The preamble of a treaty usually forms a separate part of the treaty and serves for the interpretative aims of its rules. Therefore recourse must be had to the statement of the object and purpose of the treaty in the preamble of the treaty in order to interpret a particular provision (see: ILC Draft Articles on the Law of Treaties with commentaries // Yearbook of the International Law Commission, 1966, vol. II, p. 221 // http://untreaty. un.org/ilc/texts/instruments/english/commentaries/1_1_1966.pdf ). 76.2. The reference to the UN and OSCE principles included in the preamble of the Border Treaty suggests that the respective treaty has been concluded by considering these principles. Hence the norms of the Border Treaty are to be applied in accordance with them. In case of a dispute regarding the scope of international obligations provided for in the Border Treaty, the rules of this treaty are to be interpreted by taking as the basis the wish of both parties to observe the UN and OSCE principles. The UN and OSCE principles can be regarded as the basic principles of modern international law, and their content is authoritatively stated in the UN Declaration of 1970 on the Principles of International Law and in the Helsinki Final Act. 77. In the Ratification Law, the Saeima when undertaking the international obligations established by the Border treaty has referred not to all the UN and OSCE principles but only to the OSCE principle of inviolability of borders as the grounds for ratification of this Treaty. This reference by the Saeima in Article 1 of the Ratification Law differs from the preamble of the Border Treaty. In the view of the Constitutional Court, this could manifest the purpose of the Saeima to create the possibility of a different interpretation of the rules of this Treaty. 77.1. A characteristic trait of the Satversme is its laconism, which also determines the use of the respective legal technique by formulating its articles as precisely and shortly as possible. A similar practice initiated already by the members of the Constitutional Assembly regarding the text of the law that ratifies the international treaty. In cases when the purpose of the legislator has not been to modify the imposed obligation in the field of international law, the text of the law has been precise, laconic and has contained no colourful declarations of a political nature. This approach corresponds to the particular stylistic requirements of legislative acts (see Krūmiņa V., Skujiņa V. Normatīvo aktu izstrādes rokasgrāmata. Rīga: Valsts kanceleja, 2002, p. 10). The ratification laws adopted today have the same laconic character. 77.2. International law does not prohibit states from making reservations when undertaking international obligations by amending specific rules of the treaty, as well as by attaching interpretative declarations or unilateral statements of a different nature. In accordance with Article 2(d) of the Vienna Convention, “reservation” means a unilateral statement, however phrased or named, made by a state, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that state. The UN International Law Commission has indicated that a reservation is formed by two components. The substantive element of a reservation is the will of the state

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to exclude or to modify the legal effect of certain provisions of the treaty. Whereas the formal element of a reservation is the procedure of making it, namely, a reservation is a unilateral statement given at the moment when the state expresses its consent to be bound by the treaty (see Yearbook of the International Law Commission, 1998, Volume 1, United Nations, A/CN.4/SER.A/1998, p. 162). International law permits that states attach interpretative declarations to the treaties. Interpretative declarations, according to the definition provided by the International Law Commission, are unilateral statements, however phrased or named, made by a state or by an international organization whereby that state or that organization purports to specify or clarify the meaning or scope attributed by the declarant to a treaty or to certain of its provisions (see Reservations to Treaties // Report of the International Law Commission on the work of its fifty-first session, 3 May-23 July 1999, Official Records of the General Assembly, fifty fourth session, supplement no. 10, p. 97 // http://untreaty.un.org/ilc/documentation/english/A_54_10. pdf ). Both reservations and interpretative declarations are instruments of international law by which a state can affect the international obligations that it itself undertakes in a favourable manner, provided that the respective amendments or explanations do not come into conflict with the object and purpose of the specific treaty. Furthermore, these instruments are to be used not in the way that the state itself wishes but by observing the rules of international law of treaties and customary law. 77.3. Any unilateral statement whereby a state indicates the manner in which it intends to implement the treaty as a whole should be viewed as a reservation. Any such statement would be subject to the reservations regime and must therefore be compatible with the object and purpose of the treaty (see Yearbook of the International Law Commission, 1998, Volume 1, United Nations, A/CN.4/SER.A/1998, pp. 203). The reference to the principle of inviolability of borders made in Article 1 of the Ratification Law narrows the preamble of the Border Treaty, which refers to the UN and OSCE principles. In the view of the Constitutional Court, such a reference in Article 1 of the Ratification Law could have the effect of a reservation. 78. Expression of such a separate position that does not coincide with the position of the other state established in the Ratification Act and is not coordinated with the text of the concluded Border Treaty can considerably affect the fulfilment of the obligations undertaken in the particular treaty and the international law opinion of the other party (see: Mälksoo L. Igaunijas un Krievijas robežlīgumi un debates par valstu pēctecību // Jurista Vārds, 4 March 2006, no. 11). 78.1. The reference to the UN and OSCE principles included in the preamble of the Border treaty is not specified by any indication that the parties have had their own understanding of them, different from the content of these principles as objective legal rules. The Latvian delegation during the Border Treaty negotiations was not authorised to deal with a broader range of issues than the question of concluding a technical agreement about the state border (see the additional explanation of the Cabinet of Ministers, case materials, vol. 10, p. 136). In addition to this, the Law on Authorization that serves as the basis for the rights of the Prime Minister to sign the Border Treaty imposed the obligation to observe the continuity of the Republic of Latvia when undertaking the obligations provided for in the Border Treaty.

The Saeima when ratifying the Border Treaty with a reference to the principle of inviolability of borders has created such an influence on the Border treaty that it might have not had according to the will of both parties. One also has to take into account the requirement established by Article 9 of the Declaration of Independence that the state of Latvia has to act in its relations with Russia so that the continuity of the Republic of Latvia would not be endangered. The Saeima discussions regarding the principle of inviolability of borders are contradictory, and it is possible to interpret them also so as if they had accepted the border changes of 1944 as lawful (see para. 73 of this judgment). Doubts regarding the real content of the principle of inviolability of borders could be used as a justification for the argument that Latvia by the reference to this principle in the Ratification Law has unilaterally expressed its will to recognize that the USSR had lawfully changed its borders in 1994. Since the reference included in the Article 1 of the Ratification Law could have the effect of a reservation, one should take into account: reservations can concern a specific provision or provisions, as well as the treaty as a whole by indicating the way how the state has intended to apply the treaty. International law recognises that there exist reservations that are not related to particular provisions of a treaty but to the treaty as a whole. By means of such reservations a atate can specify the circumstances under which it would or would not apply a treaty, or certain categories of persons who would not be affected by the ratification of the treaty (see Yearbook of the International Law Commission, 1998, volume 1, United Nations, A/CN.4/SER.A/1998, p. 200). Attachment of such unilateral reservations to international treaties has been criticized because they cause uncertainty in international law, namely, the other parties to the treaty would never know by what obligations the states formulating the reservations agree to be bound (see Yearbook of the International Law Commission, 1998, volume 1, United Nations, A/CN.4/SER.A/1998, p. 201). 78.2. International law does not permit formulating reservations to all international treaties. The Vienna Convention, as its preparatory materials show, deals with formulating reservations to multilateral international treaties (see Yearbook of the International Law Commission, 1999, Vol. II, p. 121 // http://untreaty.un.org/ilc/ documentation/english/A_54_10.pdf ). It is not possible to formulate reservations that affect the content or application of bilateral international treaties (see Reuter P. Introduction of the Law of Treaties. London / New York: Kegan Paul International, 1995, p. 78). If a state still decides to do it, this means that it does not agree to the concluded treaty and proposes to reopen the negotiations (see ILC Draft Articles on the Law of Treaties with commentaries // Yearbook of the International Law Commission, 1966, Vol. II, p. 203 // http://untreaty. un.org/ilc/texts/instruments/english/commentaries/1_1_1966.pdf ). International law raises even stricter requirements regarding some bilateral international treaties. The nature of some international treaties per se excludes the possibility that the concluding states could later unilaterally denounce them or withdraw from them, as well as disagree with the content of the obligations undertaken. These treaties are to be regarded as such treaties that are concluded for eternity and no unilateral action by the contracting states can be permitted in their respect (see Ziemele I. Komentārs likumam “Par Latvijas Republikas starptautiskajiem līgumiem” // Juristu Žurnāls, 1995, no. 1, p. 13). Treaties fixing a territorial boundary are examples of such treaties (ILC Draft Articles on the Law of Treaties with commentaries // Yearbook of the International Law Commission, 1966, Vol. II, p. 250 // http://untreaty.un.org/ilc/ texts/instruments/english/commentaries/1_1_1966.pdf ).

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78.3. The contested words included in Article 1 of the Ratification Law can affect the interpretation of the content and scope of the Border Treaty in future. Since the Russian Federation has ratified the Border Treaty in the scope that it was signed, one can conclude that the Saeima has performed a unilateral act that is in conflict with the Vienna Convention and the rules of customary international law. Consequently, the requirements of Article 68(1) of the Satversme have not been observed. Consequently, the words “observing the principle of inviolability of border established by the Organization of Security and Cooperation in Europe” included in Article 1 of the Ratification Law do not comply with Article 68(1) of the Satversme.

The resolutive part On the basis of Articles 30‑32 of the Constitutional Court Law, the Constitutional Court decided: 1. That the law “On Authorization to the Cabinet of Ministers to Sign the Draft Border Treaty between the Republic of Latvia and the Russian Federation on the State Border of Latvia and Russia Initialled on 7 August 1997” complies with the preamble and Article 9 of the Declaration of 4 May 1990 of the Supreme Council of the Latvian SSR “On the Renewal of the Independence of the Republic of Latvia”. 2. The Republic of Latvia and the Russian Federation Treaty on the State Border of Latvia and Russia complies with Article 3 of the Satversme of the Republic of Latvia. 3. The Law “On the Republic of Latvia and the Russian Federation Treaty on the State Border of Latvia and Russia” complies with Article 3 of the Satversme of the Republic of Latvia. 4. The words “observing the principle of inviolability of borders established by the Organization of Security and Cooperation in Europe” included in Article 1 of the law “On the Republic of Latvia and the Russian Federation Treaty on the State Border of Latvia and Russia” do not comply with Article 68(1) of the Satversme of the Republic of Latvia and are invalid from the day of publishing of the judgment. The judgment is final and not subject to appeal. The judgment takes effect on the day of its publication.

The chairman of the hearing of the Court

G. Kūtris

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“On the compliance of the law “On Authorisation to the Cabinet of Ministers to Sign the Draft Agreement between the Republic of Latvia and the Russian Federation on the State Border between Latvia and Russia Initialled on 7 August 1997” and the words “observing the principle of inviolability of borders adopted by the Organization of Security and Cooperation in Europe” of Article 1 of the law “On the Treaty between Republic of Latvia and the Russian Federation on the State Border of Latvia and Russia” with the preamble and Article 9 of the Declaration of the Supreme Council of the Republic of Latvia of 4 May 1990 “On Restoration of the Independence of the Republic of Latvia” and on the compliance of the Treaty of 27 March 2007 between the Republic of Latvia and the Russian Federation on the State Border between Latvia and Russia with Article 3 of the Satversme of the Republic of Latvia”. 1. The petitioner – twenty-one members of the Saeima [the Parliament] – asked: 1) to declare the Law on Authorization and the words “observing the principle of inviolability of border established by the Organization of Security and Cooperation in Europe” of the Ratification Law to be incompatible with the preamble and Article 9 of the declaration of the Supreme Council of the Latvian Soviet Social Republic of 4 May 1990 “On Restoration of Independence of the Republic of Latvia” (hereinafter – the Declaration of Independence); 2) to declare the Border Treaty and the Ratification Law to be incompatible with Article 3 of the Satversme of the Republic of Latvia. The Constitutional Court found in the judgment of 29 November 2007 in the case no. 2007-10-0102 (hereinafter – the Judgment) that: 1) The Law on Authorization complies with the preamble and Article 9 of the Declaration of Independence; 2) The Border Treaty complies with Article 3 of the Satversme; 3) The Ratification Law complies with Article 3 of the Satversme; 4) The words “observing the principle of inviolability of border established by the Organization of Security and Cooperation in Europe” of the Ratification Law do not comply with Article 68(1) of the Satversme. Unfortunately, I cannot agree with several arguments mentioned and conclusions made in the Judgment. 2. When assessing the Declaration of Independence, the Court has concluded that Article 9 of the Declaration of Independence does not concern the entire Peace Treaty of 11 August 1920 between Latvia and the Soviet Russia (hereinafter – the Peace Treaty), including Article 3 of this treaty (see para. 66 of the Judgment). According to the Constitutional Court Article 9 of the Declaration of Independence only confirms the doctrine of continuity of the Republic of Latvia. On the basis of such an interpretation of Article 9 of the Declaration of Independence, the Constitutional Court has indirectly indicated that the Ratification Law complies with Article 9 of the Declaration of Independence but the words “observing the principle

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of inviolability of border established by the Organization of Security and Cooperation in Europe” of Article 1 of the Ratification Law do not comply with Article 68 of the Satversme. I do not agree with the argumentation included in the Judgment that Article 9 of the Declaration of Independence does not concern the entire 1920 Peace Treaty. I hold that the reference to the 1920 Peace Treaty included in Article 9 of the Declaration of Independence is not directed only to the fact that Russia has recognized the independence of Latvia. For justification of such conclusion, I can provide three arguments. First, the interpretation by the Constitutional Court of Article 9 of the Declaration of Independence does not comply with the principle of state continuity. Second, the interpretation by the Court does not comply with the consistent practice that Latvia has been observing before the conclusion of the Border Treaty in the domestic law, as well as in international relations. Third, this interpretation does not comply with the previous practice and statements of Latvia regarding the Border Treaty. 3. Article 9 of the Declaration of Independence provides: “To develop relations between Latvia and the USSR in accordance with the Peace Treaty between Latvia and Russia of 11 August 1920, which is still in force and which recognizes the independence of Latvia in perpetuity. To establish a Government Commission for conducting negotiations with the USSR.” The preamble of the Declaration of Independence explicitly includes the doctrine of continuity of Latvia, as well as a reference to the international recognition of Latvia in 1920 and the military aggression by the USSR in 1940 and the subsequent occupation. It has been concluded in the preamble of the Declaration of Independence that “the incorporation of the Republic of Latvia into the USSR is invalid from the point of view of international law and the Republic of Latvia de jure exists as a subject of international law, which has been recognized by more than 50 states of the world” (see the judgment of the Constitutional Court of 7 March 2005 in the case no. 200415-0106, para. 12). 4. I agree to the conclusion of the Constitutional Court that, since the preamble and Article 9 of the Declaration of Independence are effective norms of constitutional rank, the Constitutional Court is entitled to assess the compliance of the impugned laws with the provisions of the Declaration of Independence (see para. 62 of the Judgment). I also agree to the conclusion of the Constitutional Court that the preamble of the Declaration of Independence strengthens the doctrine of continuity of Latvia (see para. 64 of the Judgment). I also agree to the conclusions of the colleagues that it is not necessary to assess in the Judgment the political expediency and compliance with the interests of Latvia of the Border Treaty and the agreements made therein with the Russian Federation (see para. 36.4 of the Judgment). Although the question whether the “signing and ratification of this Treaty comply with the interests of Latvia” is topical, this is and may not be the object of the Judgment and this separate opinion. The Satversme does not confer the jurisdiction to the Constitutional Court to assess the compliance of such decisions with the interests of the state. The Satversme only requires that each decision in the state of Latvia should be made in accordance with the Satversme. Therefore the Constitutional Court may only assess whether the Satversme has been observed in each specific case.

5. In order to find out the scope of Article 9 of the Declaration of Independence, the Constitutional Court extensively quotes and analyses the explanation provided by one of the authors of the Declaration of Independence, Egils Levits, on the content of Article 9 of the Declaration, namely: “Article 9 of the Declaration provides that relations of Latvia with the USSR are to be formed on the basis of the Peace Treaty of 11 August 1920. This article, of course, is also related to the legal successor of the USSR – Russia. This means that while this article of the Declaration has not been repealed, Latvia can form treaty relations with Russia only in a manner that would ensure that the later treaties are not in conflict with the 1920 Peace Treaty. Article 9 is particularly important for solving the issue of Abrene” (see Levits. E. 4. maija Deklarācija Latvijas tiesību sistēmā //4. maijs. Rakstu, atmiņu un dokumentu krājums par Neatkarības deklarāciju. Rīga: Fonds Latvijas Vēsture, 2000, p. 64). The majority of the judges of the Constitutional Court indicate in the Judgment that “one can agree to the views expressed by the Cabinet of Ministers that such an explanation of Article 9 of the Declaration of Independence by E. Levits does not comply with the object and purpose of Article 9 of the Declaration” (see para. 66 of the Judgment). I do not share this opinion of the Constitutional Court because of the arguments expressed by the Court itself and because of the fact that the interpretation of Article 9 of the Declaration of Independence provided by E. Levits reflects the doctrine of continuity and coincides with the consistent practice of Latvia in relation to the validity of the Peace Treaty. Taking into account the fact that the Constitutional Court has methodologically guided itself by the refutation of the arguments of the co-author of the Delcaration of Independence E. Levits, this separate opinion will also contain a reference to his interpretation. The Court ought to have paid more attention to the practice of Latvia, as well as to the opinions of other members of the Supreme Council of that time, rather than focusing so much on the opinion of one of the authors of the Declaration of Independence which, it has to be acknowledged, is confirmed by the practice of Latvia. 6. The Court indicates that “first of all, one has to take into account that E. Levits is the only scholar”, who has offered such an interpretation. However, Romāns Apsītis, who also is one of the co-authors of the Declaration of Independence, has not expressis verbis related the restoration of the State border of Latvia and Russia with the Peace Treaty (see para. 66.1 of the Judgment). The argument that one of the co-authors of the Declaration of Independence, namely, R. Apsītis, has not mentioned the Peace Treaty and the Abrene issue is evidently insufficient to state that the co-authors have conflicting opinions. The Court has not referred to other sources that are recognized as authoritative in the legal science and that would reject the interpretation of E. Levits. It is neither confirmed by the extract quoted by the Court from the draft Declaration of Independence which directly refers to the Abrene issue. Moreover, contrary to the opinion of the Constitutional Court, there are authors who agree with the opinion of E. Levits (see: Dokumenti par Latvijas valsts starptautisko atzīšanu, neatkarības atjaunošanu un diplomātiskajiem sakariem. 1918-1998. Rīga: Nordik, 1999, pp. 166-167, 198. Lēbers D. A. The Russian–Latvian Territorial Dispute over Abrene. A Legacy from the Times of Soviet Rule // The Parker School Journal of East European Law, 1995, vol. 2, no. 1, pp. 537-558, p. 542). 7. The Court indicates that “the main objective of the Declaration of Independence was an absolute restoration of the statehood of Latvia. Therefore the Declaration of Independence dealt only with the main fundamental principles, ideas and activities for

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restoration of the independence of the state of Latvia”. However, in its own Judgment the Court has convincingly proved the claim of Latvia for restoration of the state, continuity and the agreement of the international community to this claim during both the occupation period and the period of the restoration of the independence (see paras. 33-34 of the Judgment) and points to the validity of the Peace Treaty (see para. 54 of the Judgment). 7.1. The claim for restoration of the statehood per se means that the legal relations that were effective before the loss of independence are also restored. A state can be regarded as “the same” state if it is continued in a certain way or its claim for continuity is restored with the same constitutive features and its claim about the continuity of the statehood is accepted (see Crawford J. The Creation of States in International Law, 2nd ed. Oxford University Press, pp. 668-671). State identity is the identity that manifests itself in the international rights and obligations before and after the event that did harm to its identity (see: Marek K. Identity and Continuity of States in Public International Law. Geneve: Librairie E. Droz, 1954, p. 14). James Crawford indicates that the claim for state continuity means that the state preserves its legal relationships irrespective of the changes of the subject; moreover, it preserves them to a greater extent than in the case of state succession, which is often characterized by non-succession (Crawford J. Creation of States, p. 668). Hence, if the State claims for continuity and the international community generally recognizes this claim, the international treaties that the State has concluded when it existed de facto remain valid. 7.2. Latvia in its previous practice has strictly observed the principle of continuity of treaty obligations. On 5 January 1993, the Supreme Council adopted a decision “On Multilateral Treaties that the Republic of Latvia has Ratified or Adhered to before 1940”. The decision provided that “multilateral treaties that the Republic of Latvia has ratified and adhered to before 1940 and that are effective according to the principles of international law are binding on the Republic of Latvia” (Ziemele I. Latvijas Republikas starptautiski tiesiskais statuss // Latvija. Starptautiskās organizācijas. Starptautiskie līgumi. Rīga: Saeimas Kanceleja, 1995, p. 11). Latvia had concluded one hundred international agreements before 1940. Latvia established an identical approach regarding bilateral agreements. The Ministry of Foreign Affairs together with other institutions from 1991 to 1997 carried out a revision of bilateral agreements. Most of the agreements that were concluded between 1922 and 1940 did not reflect the modern-day bilateral relations, although most of the states hold, according to the international law, that pre-war agreements that were concluded with the Republic of Latvia are valid unless it has been decided otherwise (Jākobsone I. The Claim for Independence // Baltic Yearbook of International Law, Volume I, Kluwer Law International, 2002, pp. 233-261, p. 241). It was particularly indicated by the United States of America (Action Memorandum of the United States Department of State of 16 April 1992). Latvia has also concluded special agreements, for instance, with Norway (the agreement was concluded on 2 November 1994), Poland (the agreement was concluded on 10 February 1997), Czech Republic (exchange of memoranda took place in 1999) regarding the validity of international agreements of 1918-1940. In 2000 Latvia and Japan agreed that the treaties concluded between the USSR and Japan during the time period from 1940 to 1991 shall not be applied in the bilateral relations of Japan and the Republic of Latvia. The Minister of Foreign Affairs of the Islamic Republic of Iran also recognizes in a memorandum from 10 September 1991 the readiness to establish diplomatic relations with Latvia and support for the

independence of Latvia: “Like on 15 January 1929, when my state concluded a friendship agreement with the Republic of Latvia, now I also declare that my State is ready to establish diplomatic relations with the Republic of Latvia” (Documents on Recognition of Latvia, p. 311). Similarly, the Republic of Austria stated in the letter of its Minister of Foreign Affairs: “I relate this announcement with the hope for a continuation of friendly relationships that already exist between the Republic of Austria and the Republic of Latvia. When continuing these relationships Austria will rely on the principle of continuity in relation to the interstate agreements and expresses its readiness to apply it mainly in a pragmatic manner” (Documents on Recognition of Latvia, p. 250). Consequently, Latvia has consistently held to the position that agreements signed before 17 June 1940 are valid and shall be reviewed according to the modern requirements not only within the context of the relationships with Russia but also regarding other bilateral and multilateral relationships. An essential difference is that other states have agreed to such a legal position of Latvia, but Russia has consistently resisted it by indicating that the Peace Treaty is no longer valid (see Documents on Recognition of Latvia, p. 209). For instance, Russia has not fulfilled its liabilities that it has undertook in relation to the Baltic States when acceding to the Council of Europe (see Parliamentary Assembly Opinion no. 193 (1996); Recommendation no. 1392 (1998) of the Parliamentary Assembly of the Council of Europe). I would like to emphasize that the practice of Latvia and the international community, rather than the interpretation of the Declaration of Independence provided by E. Levits, confirms the fact that not only one part of the Peace Treaty, but the Treaty in toto is binding on the state of Latvia according to the doctrine of continuity. 8. Then the Constitutional Court justifies its opinion by the fact that “E. Levits in his commentary quotes Article 9 of the Declaration of Independence close to the text that had been accepted in the versions of the Declaration of 24 March and 3 April 1990” and indicates that E. Levits had participated in the working groups of the Declaration until his departure on 10 April (see para. 66.2 of the Judgment). The Court indicates Article 9 was considerably amended on 12 April 1990 when it was supplemented by a subordinate clause “in which the independence of Latvia has been recognised for eternity”. Moreover, it was also supplemented by the second sentence regarding the negotiations with the USSR (see para. 66.2 of the Judgment). 8.1. The argument that E. Levits did not participate in the meetings for discussing the draft Declaration of Independence after 10 April 1990 does not convince as regards the assumption that in his commentaries he has not taken into account the final version of the Declaration of Independence and has not understood what is written therein. I cannot agree with the arguments of the Court also because a reference to the Peace Treaty appeared already before the drafting of the Declaration of Independence. Such a point of view has been established in the 3 February 1990 platform of the Latvian People’s Front for the elections of the Supreme Council, wherein it was indicated: “By observing the interests of the Republic of Latvia and the Peace Treaty of 11 August 1920 between Latvia and Russia, the Supreme Council of Latvia must immediately initiate negotiations regarding de facto restoration of the Republic of Latvia”. I would like to draw particular attention to a document of that time that the Court has quoted in the Judgment but the position expressed therein was not assessed in relation to the content of Article 9 of the Declaration of Independence. “The Platform for Negotiations on Restoration of the Independence of the Republic of Latvia” that was reviewed at the 4 April 1990 meeting

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of the Latvian People’s Front faction of the Supreme Court provided: “The basis of relations between the Republic of Latvia and the USSR there must be the Peace Treaty of 11 August 1920 between the Republic of Latvia and the Russian Federal SSR. The Republic of Latvia is to be restored in the borders of 1940 (including the Abrene area).” (4. maijs. Rakstu, atmiņu un dokumentu krājums par Neatkarības deklarāciju. Rīga: Fonds Latvijas Vēsture, 2000, p. 399). Also the participants of the annual meeting of the staff of the diplomatic and consular service of the Republic of Latvia in the Western States formulated the following fundamental principle on 23-24 April 1990 in Washington: “The existence of the Republic of Latvia is still based on the Peace Treaty of 11 August 1920 between Latvia and Russia and on the Satversme of the Republic of Latvia of 15 February 1922” (see Documents on Recognition of Latvia, p. 168). The diplomatic service of Latvia is the only institution of the Republic of Latvia that has functioned without interruption since the founding of the State in 1918. The activities of this service are a real legal evidence of the continuation of the state of Latvia and it serves as an example of the continuity of its international recognition (see Lerhis A. Latvijas Republikas Ārlietu dienests. 1918-1941. Rīga: Latvijas vēstures institūta apgāds, 2005, pp. 284-285). In 1990 it was the only internationally recognized institution of the Republic of Latvia (see Ziemele I. State Continuity and Nationality: The Baltic States and Russia. Past, Present and Future as Defined by International Law. Leiden: Martinus Nijhoff Publishers, 2005, p. 33). Lastly, the Message to the people of the USSR and democratic movements that the Supreme Council adopted on 4 May 1990, declared that “the basis of the relationships between the USSR and the Republic of Latvia should be the Peace Treaty of 11 August 1920 between Latvia and the Soviet Russia”. I consider that such a position regarding the restoration of the state border between Russia and Latvia could not have been expressed if such a claim were not already included in the Declaration of Independence that was being drafted. Hence it cannot be considered that the opinion of the authors of the Declaration of Independence and the members of the Supreme Council has swiftly changed. 8.2. It must be indicated that the first sentence of Article 9 of the Declaration of Independence was, in essence, included in all of its drafts. The draft of 20 March 1990 provided that “the question of Abrene remains legally open but in the present situation it should not be politically activated” (4. maijs, p. 465). The next draft provided that “the relationships of the Republic of Latvia and the USSR shall hereinafter be regulated by the Peace Treaty of 11 August 1920 between Latvia and Russia” (4. maijs, p. 471). The draft of 3 April 1990 provided: “The relationships between the Republic of Latvia and the USSR shall be formed in accordance with the Peace Treaty of 11 August 1920 between Latvia and Russia”. Article 9 of the 9 April draft is expressed as follows: “The relationships of the Republic of Latvia with the USSR shall be formed in accordance with the still effective Peace Treaty of 11 August 1920 between Latvia and Russia” (4. maijs, p. 476). The draft of 17 April provides: “The relations of the Republic of Latvia with the USSR shall be formed in accordance with the still effective Peace Treaty of 11 August 1920 between Latvia and Russia, in which the independence of the state of Latvia has been recognised for eternity. A government commission shall be formed for conducting negotiations with the USSR.” (4. maijs, p. 479). Article 9 of the draft of 28 April provided: “The relations of the Republic of Latvia with the USSR shall be formed in accordance with the [the words “still effective” have been deleted] Peace Treaty of 11 August 1920 between Latvia and Russia that in which the independence of the state of Latvia has been recognised for eternity. A government commission shall

be formed for conducting negotiations with the USSR.” (4. maijs, p. 486). On 30 April 1990 the wording was changed again by providing: “The relationships of the Republic of Latvia with the USSR shall be formed in accordance with the [restored] still effective Peace Treaty of 11 August 1920 between Latvia and Russia. A government commission shall be formed for conducting negotiations with the USSR.” (4. maijs, p. 488). In the drafts of 2 and 3 May 1990 the wording of Article 9 of the Declaration remained unchanged (4. maijs, p. 497). The second sentence of Article 9 of the Declaration of Independence appeared only on 9 April 1990. The second sentence of Article 9 of the Declaration of Independence is coordinated with Article 5 that was formulated in the draft on 28 April 1990 by introducing a transition period and by providing for a gradual restoration of independence by means of negotiations (see Levits E. 4. maija Deklarācija Latvijas tiesību sistēmā, pp. 62-63). However, the first sentence of Article 9 of the Declaration of Independence forms a joint regulation together with the preamble and Article 1 of the Declaration. Therefore the claim for restoration of the territory of the Republic of Latvia within the borders of 1940 follows from the doctrine of continuity of the Republic of Latvia (see Levits E. 4. maija Deklarācija Latvijas tiesību sistēmā, p. 57). If the Republic of Latvia continues its statehood which was interrupted in 1940, then this continuity also encompasses the territory of Latvia and the body of citizens. The documents drafted before the adoption of the Declaration of Independence and the course of the approval of the Declaration of Independence shows that its authors did not intend to narrow the field of application of the Treaty. As to the Peace Treaty, it is indicated in Article 9 of the Declaration of Independence that the entire Peace Treaty is effective and not a part or certain articles of it. Such a wording can be observed almost in all the drafts of the Declaration. To my opinion, the words “which recognizes the independence of Latvia for eternity” of Article 9 of the Declaration denote only the essence of the Peace Treaty and they are included in the text of the Declaration of Independence in order to inform the reader on quintessence of such treaty, as well as to emphasize that Latvia is not a new state, but it is the same state that was recognized by the Soviet Russia already in 1920. This part of the first sentence of Article 9 of the Declaration of Independence must be read in conjunction with the preamble of the Declaration which specifies the claim of continuity with respect to Russia and expressis verbis “reproaches” the USSR for its unlawful action in 1940. 8.3. The Constitutional Court indicates that Article 9 of the declaration of Independence covers only Article 2 of the Peace Treaty. The Court agrees to one of the possibilities offered by Mārtiņš Paparinskis for grammatical interpretation of this Article in the manner that “the Peace Treaty, in this particular case, is to be regarded only as a normative framework for one thesis – regarding the independence of the state of Latvia” (see para. 66.3 of the Judgment). Further when interpreting Article 9 the Court indicates that its first sentence is devoted to the main issue – the restoration of the statehood of Latvia and its independence (see para. 66.3 of the Judgment). This statement is unclear from the point of view of the doctrine of state continuity because the doctrine also provides for continuous validity of international treaties, and this is established in Article 9 of the Declaration. Restoration of the independence of the state of Latvia cannot be separated from the validity of the Peace Treaty unless this treaty has been substituted by a more recent provision of treaty or an international legal norm of a higher legal force, or unless the object of the Treaty has been lost (see the opinion of 14 March 2005 of professor Ineta Ziemele to the Cabinet of Ministers regarding the singing and ratification of the Treaty between the Republic of Latvia and

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the Russian Federation on the state border of Latvia and Russia, the case materials, vol. 6, p. 215). It is not possible that Article 9 of the Declaration of Independence would by means of a subordinate clause narrow or rather reduce the 1920 Peace Treaty up to its Article 2. If it had been the intention of the authors of the Declaration of Independence, then it would have to be provided for expressis verbis. Based on the previously outlined drafting process of the Declaration of Independence, I cannot conclude that the authors of the Declaration of Independence had such an intention. I would also like to emphasize that the Constitutional Court did not use the opportunity to invite the authors of the draft of the Declaration of Independence themselves to express their opinion, by thus acquiring broad and authoritative information about both, the content of the project and its drafting history. 8.4. The consistent position of Latvia regarding the Abrene area is determined by the choice of Latvia and the other Baltic States to gain independence by means of the legal aspect of the existence of statehood. Existence of the Baltic states during the interwar period was a relevant argument to substantiate the necessity to continue the previous statehood that had been maintained for decades rather than to create new states (see Eglītis O. Par vispārcilvēciskajām vērtībām domājot. Baltijas valstu likumīgā pastāvēšana turpinās // Atmoda, 24 July 1989). It is also manifested by the subsequent legal practice of Latvia where the reference to the Peace Treaty and the Abrene area fully emerges. Article 9 of the Declaration of Independence remained valid also after the adoption of the constitutional law of the Republic of Latvia “On the Statehood of the Republic of Latvia” on 21 August 1991 (hereinafter – the Constitutional Law). The Constitutional Law establishes a transitional period until the status of Russia is determined in order to be able to define the relations of Latvia and Russia, namely, the interstate relations. The only matter that changes with respect to the Declaration of Independence is that it is unclear whether it will be possible to solve the issue by means of negotiations with the USSR, because in 1990 when the Declaration was adopted there was no knowing that Russia would be recognized as the successor of the USSR. It was confirmed by one of the authors of the Constitutional Law Andrejs Krastiņš, as well as the preamble of the Constitutional Law. A. Krastiņš indicated that “[I]t has become impossible to fulfil the requirements of our Declaration of Independence regarding restoration of independence by means of such negotiations. Therefore we must determine the status of our state and a plan for our actions in these conditions. Probably neither we nor anybody else can anticipate how the USSR will develop but we must determine the legal basis and policy of our activities already today. Therefore these conditions are included in the preamble of the draft law which serves as the basis for adoption of such a constitutional law. Article 1 of the law declares the legal status of the Republic of Latvia, which is based on the respective wording of the Satversme of 15 February 1922 and the Satversme” (see the transcript of the plenary session of the Supreme Council of the Republic of Latvia of 21 August 1991). Nobody states that it would be impossible to fulfil the requirements of the first sentence of Article 9 of the Declaration of Independence. The Constitutional Court agrees to this by referring to the opinion of professor Ineta Ziemele (see para. 64.3 of the Judgment), and it is indicated by a number of opinions of international organizations that confirm the continuity of Russia, and wherein Russia is obliged to solve the border disputes in accordance with international principles and effective treaties (see Parliamentary Assembly of the Council of Europe, Opinion No. 193 (1996) on Russia’s request for membership of the Council of Europe).

8.5. The reference to the unsettled border issue can be found is several other national legal acts. Section 2 of the law “On the Border of the Republic of Latvia” provided: “The state border of the Republic of Latvia shall be established by the interstate agreements of the Republic of Latvia concluded and ratified before 16 June 1940 and bilateral agreements on the restoration of the border concluded later with the neighbouring countries.” This means that until a new agreement is concluded, the state border between Latvia and Russia is established by Article 3 of the Peace Treaty. The decision of the Supreme Council of 4 November 1992 “On the Order of Entry into Force of the Law of the Republic of Latvia “On Privatization Certificates”” also provided: “[t]o establish that until the moment when the status of the town of Abrene and the Kacēni, Upmale, Linava, Purvmala, Augšpils un Gauri parishes, as well as the harm to the property and the order of compensation for the harm done to the properties of the citizens of the Republic of Latvia located in the town of Abrene and the above-mentioned parishes has been determined in interstate agreements, no privatization certificates shall be assigned to the persons with a permanent registration of residence in the abovementioned territory unless these persons are citizens of the Republic of Latvia.” A similar provision can be found also in the decision of the Supreme Council of 30 March 1993 “On the Order of Entry into Force of the Law of the Republic of Latvia “On Restoration of Property Rights to Enterprises and other Property Objects””. In order to express its opinion regarding the Abrene area, the Supreme Council on 22 January 1992 adopted a decision “On the Non-Recognition of Annexation of the Town of Abrene and Six Parishes of the Abrene Area” (hereinafter – the Abrene Declaration), wherein the Council indicated: “The basis of the interstate relations of Latvia and Russia is still determined by the still valid Peace Treaty between Latvia and Russia of 11 August 1920. Article 3 of this Treaty establishes the state border between Latvia and Russia. The interstate legal relations with the USSR were established by the treaty concluded between Latvia and the USSR in Riga on 5 February 1932. Both contracting parties declared that this Treaty is concluded on the basis of the Peace Treaty between Latvia and the Russian Socialist Federative Soviet Republic of 11 August 1920 that it is effective in the entire territory of the USSR, and that all of its provisions may not be amended and shall serve as the unshakeable foundation for the relations of both contracting parties for eternity. […] Taking into consideration the fact that by annexation of the town of Abrene and the six parishes of the Abrene area of the Republic of Latvia to the RSFSR the Peace Treaty between Latvia and Russia of 11 August 1920 and the Treaty between Latvia and the USSR concluded in Riga on 5 February 1932 are violated, as well as taking into consideration the fact that annexation of this territory was carried out during the period of occupation of Latvia, the Supreme Council of the Republic of Latvia decides: 1) To declare as unconstitutional the decree of 23 August 1944 of the Presidium of the Supreme Council of the USSR “On Formation of the Pleskava Area in the RSFSR” and to invalidate its provisions from the moment of their adoption in relation to the annexation of the territories of the town of Abrene of the Republic of Latvia, the Kacēni, Upmale, Linava, Purvmala, Augšpils and Gauri parishes of the Abrene area to the territory of the RSFSR. 2) To recognize as invalid the decision adopted by means of a questionnaire on 22 August 1944 by the Presidium of the Supreme Council of the Latvian SSR “On Annexation of the Višgorod, Kačanovo and Tolkovo Parishes to the Territory of the RSFSR” from the moment of its adoption.

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3) To recognize as invalid the decision of the Presidium of the Supreme Council of the Latvian SSR of 5 October 1946 “On Establishment of a Border between the Latvian SSR and the RSFSR” and the decree of the Presidium of the Supreme Council of the USSR of 19 October 1946 “On Confirmation of the Change of the Border between the Latvian SSR and the RSFSR”. 4) To approve that the State border of the Republic of Latvia and the Russian Federation shall still be established by Article 3 of the Peace Treaty between Latvia and Russia of 11 August 1920. 5) To instruct the delegation of the Republic of Latvia to the interstate negotiations with the Russian Federation to seek a solution to the Abrene issue, including the determination of the amount of the material harm done to the property of the state of Latvia and of the citizens of the Republic of Latvia located in the town of Abrene and the six parishes of the Abrene area and to establish the order of compensation for the harm.” The aforesaid is also confirmed by two more declarations adopted by the Saeima. The Declaration of 22 August 1996 “On the Occupation of Latvia” provided that “In 1944, a part of the Abrene area (about 2000 km 2) were unlawfully annexed to the territory of Russia. […] Russia has not recognized the occupation of Latvia carried out by the USSR and it does not want to rely on the Peace Treaty between Latvia and Russia of 11 August 1920 by which Russia has waived for eternity its claim to the territory of Latvia”. On 11 June 1998 a special statement of the Saeima was adopted in relation to spreading information about the Declaration “On the Occupation of Latvia”. According to this statement, the Cabinet of Ministers ensured that the diplomatic agencies introduced the respective states to the Declaration “On the Occupation of Latvia” and the documents that confirm its content. The Declaration was also distributed in the United Nations Organization. On 12 May 2005 the Saeima adopted a declaration “On Condemnation of the Totalitarian Communist Occupation Regime Implemented in Latvia by the Union of Soviet Socialist Republics”, wherein, by referring to the Peace Treaty concluded between the Republic of Latvia and the RSFSR, the Saeima of the Republic of Latvia called “to acknowledge the universally known fact of Latvia’s occupation by the USSR; to take into account the legal and political consequences arising from this fact and to honour the Peace Treaty concluded between Latvia and Russia on 11 August 1920, which, in conformity with international legal norms, is still in force and which states that Russia abandons its claims to Latvia for eternity”. 8.6. The content of Article 9 of the Declaration of Independence can also be found out by means of the systemic method – by finding outs its meaning in relation to other legal norms. Professor Vasilijs Sinaiskis, the founder of the systemic method of interpretation in Latvia has written: “Many disputes arise around one article of a law just because the interpretation of this article constitutes an end in itself. But when applied to the entire legal system […] an article of a law immediately acquires an adequate place and unarguable meaning” (Juridiskās metodes pamati. 11 soļi tiesību normu piemērošanā. Rīga: Ratio iuris, 2003, p. 117). To my mind, the Constitutional Court has not applied the method of systemic interpretation in the Judgment. For determination of the content of Article 9 of the Declaration of Independence the other normative acts adopted by the Supreme Council were not taken into consideration. If the Constitutional Court had taken into account these normative acts in interpretation of Article 9 of the Declaration of Independence, I consider that then it would have made a the same conclusion as reflected in this separate

opinion. Therefore I cannot agree to the opinion of the Constitutional Court that Article 9 of the Declaration of Independence narrows the binding force of the Peace Treaty or that it does not regulate the state border between Latvia and Russia. Hence a narrow interpretation of Article 9 of the Declaration of Independence does not comply with the consistent practice of Latvia in the domestic law that emphasizes the validity of the 1920 Peace Treaty to a full extent. 9. The Constitutional Court holds that, in fact, E. Levits has expressed the following opinion: the treatment of the mutual relations between Latvia and Russia follows from Article 9 of the Declaration of Independence; while Article 9 of the Declaration has not been repealed, Latvia is entitled to form its treaty relations with Russia only by ensuring that the later treaties are not in conflict with the 1920 Peace Treaty (see para. 66.4 of the Judgment). The Court points to the 1969 Vienna Convention on the Law of Treaties which permits the conclusion of new treaties and emphasizes that the Peace Treaty is “a simple treaty” and therefore it is possible to conclude a new treaty; it also concludes that Article 9 of the Declaration of Independence does not restrict Latvia in this context. According to the opinion of the Constitutional Court, clear indications about the aim of the legislator would be necessary to approve the opinion of E. Levits; the Court has been unable to find such indications (see para. 66.5 of the Judgment). 9.1. I cannot agree with the interpretation of the Constitutional Court. E. Levits does not express anything more in his comment on the Declaration of Independence than that what follows from the doctrine of state continuity, and he does not eliminate a possibility as such to conclude new treaties. Three conclusions follow from the comment of E. Levits: first, the 1920 Peace Treaty is valid to a full extent and it is as such included in Article 9 of the Declaration of Independence; second, when concluding new agreements with Russia, it is necessary to establish their compliance with the still valid 1920 Peace Treaty and, third, when concluding a new border treaty, it is necessary to make sure that both parties are concluding it in good faith as an amendment of Article 3 of the valid Peace Treaty. As to the first conclusion, the opinion of E. Levits and that of the Court differs only in relation to the scope of Article 9 of the Declaration of Independence, because in general the Court agrees to the validity of the Treaty (see para. 54 of the Judgment). The second conclusion of E. Levits indicates that Latvia is obliged to ensure a goodfaith fulfilment of its international obligations. Hence, before new treaty obligations are undertaken, it is necessary to take into account the already existing treaty obligations. This is a universally known mechanism for solving conflicts between international legal norms that can be applied to the law of international treaties that form also the content of Article 68 of the Satversme (see: Fragmentation of International Law. United Nations International Law Commission, Report on the work of its fifty-sixth session, 3 May to 4 June and 5 July to 6 August 2005, General Assembly Official Records, Fifty-ninth session, Supplement No. 10, A/59/10, p. 301). The third conclusion as to the difference of opinions is decisive, because exactly in this context the difference of opinions leads to different solutions. According to the opinion of E. Levits, it is necessary to ensure that all the subsequent treaties are not contrary with the 1920 Peace Treaty. States can eliminate possible conflicts if they mutually agree on the fact that amendments must be made to existent treaties. Hence Latvia, by observing present treaty commitments, had to agree with Russia on amendments to the Peace Treaty in relation to the status

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and ownership of Abrene and its adjacent parishes. This is an issue of international treaty law, but it becomes also an issue of state constitutional law in correlation with the Declaration of Independence of 4 May 990 and Article 68(1) of the Satversme which, according to the view of the Constitutional Court, also covers the norms of the 1969 Vienna Convention on the Law of Treaties. 9.2. Finally, the Constitutional Court, when referring to the statements of only one member of the Supreme Council, Rolands Rikards, during the discussions of 1992 on the Abrene Declaration, concludes that the Abrene issue was activated only in 1992 (see para. 66.5 of the Judgment). I cannot agree with this conclusion of the Constitutional Court. The adoption of the Declaration in 1992 shows a repeated statement of the position of the state rather that activation of the issue. The state that maintains its claim on continuity of statehood is obligated to do it consistently [Case concerning certain phosphate lands in Nauru (Nauru v. Australia), Preliminary objections, International Court of Justice 26 June 1992, paras. 31-38]. If the state neglects it or if it explicitly waives its claim of continuity of the statehood, then it forfeits its claims. It must be indicated in relation to the Abrene Declaration that it complies with Article 9 of the Declaration of Independence. The Abrene Declaration confirms that Latvia is still holding to its claim for its rights to the Abrene territory. Hence the Supreme Council, when adopting this Declaration, has confirmed that, although the independence has been restored, the claim of Latvia for de facto restoration of the territory at its full extent is still valid. The mandate included in Article 9 of the Declaration of Independence that covers the entire Peace Treaty and confirms continuity means that Latvia can introduce amendments to the borders established in the Peace Treaty without affecting continuity. Hence Latvia, if it passes the territory to Russia, must be sure that the other party, namely, Russia sees this legal situation identically, i.e. that by means of the Border Treaty Latvia passes and Russia accepts de iure the Abrene area, or else both parties have to clearly identify their different positions in the context of continuity of Latvia. 10. The Constitutional Court concludes that the Peace Treaty, apart from its Article 3, is still valid and according to the newly concluded Border Treaty Latvia has passed the Abrene territory and the adjacent parishes by coming into force of this Treaty (see para. 54 of the Judgment). 10.1. Taking into consideration the fact that the Declaration of Independence contains a reference to the Peace Treaty and its validity in relations with Russia, the Constitutional Court had to assess, in the context of the Border Treaty, whether the Saeima, when adopting the Law on Authorization and the Ratification Law, has ensured that the opinion regarding the validity of the Peace Treaty is preserved. This means that it had to determine whether Russia has agreed to the position of Latvia or Latvia has taken an adequate care that the different opinions of both parties remain valid. Hence the Constitutional Court, having concluded that the Ratification Law has been generally adopted in compliance with the requirements of Article 68(1) of the Satversme (see para. 54 of the Judgment), also had to assess compliance of the Ratification Law with Article 9 of the Declaration of Independence. Article 9 of the Declaration of Independence contains a constitutional norm which formulates the mandate included therein in an imperative manner and by means of a precise content. This is not a desirability or a political objective. If the state of Latvia cannot reach (fulfil) the objective set in Article 9 of the Declaration of Independence,

then a new constitutional norm must be adopted which would repeal or amend this norm. 10.2. It has been generally accepted as customary international law that territorial changes are related to the borders established in treaties, but otherwise the regime of treaties remains unchanged. Relinquishment is a voluntary abandonment of a territory, but cession is regarded as relinquishment with certain constraint (Encyclopedia of Public International Law, pp. 830-831). The Constitutional Court has chosen to speak of cession of the Abrene territory, rather than relinquishment. In the case of a bilateral treaty it is particularly important that both contracting parties agree on the object and purpose of the treaty, as well as on its future consequences. The right to take over a certain territory as a sovereign can be conferred by means of a treaty between the party that cedes the territory and the receiver, if the receiver agrees to take the territory over in accordance with the treaty and the treaty provides for a legal basis for sovereignty. Factual cession is not necessary if the receiver already governs the respective territory. However, the date of coming into force of the treaty is regarded as the date of cession (see Brownlie I. Principles of Public International Law. 6th edition. Oxford: Oxford University Press, 2003, p. 128). Cession can take place by providing for exchange of territories, compensation or voluntary cession of the territory without additional conditions. The choice of the type of cession, as far as it complies with constitutional norms, is an issue that should be assessed politically rather than legally. 10.3. The duty of Latvia to express its position follows from the claim of the continuity of statehood in international law, as well as from the Declaration of Independence that constitutionally strengthens the doctrine of continuity in relationships with Russia. Consequently, if a treaty related to the issue of continuity is being concluded, then the position of Latvia must be explicitly formulated in the respective treaty or during the ratification process. Such formulation of the position is not necessary in case if a treaty that is not related to the provisions of the Peace Treaty is being concluded. If follows from the case materials that the delegation of the Ministry of Foreign Affairs has observed the mandate of the Declaration of Independence and has initiated negotiations based on the Peace Treaty. The Constitutional Court must not assess negotiations that cannot be regulated by means of international law; however, the subsequent stages of conclusion of the treaty are subjected to the provisions of international law. When and whether the State will agree to be bound by a treaty – this is the issue decided by national institutions and the constitution (see Encyclopedia of Public International Law. Published under the auspices of the Max Planck Institute for Comparative Public Law and International Law, Rudolf Bernhardt ed. Volume 4, pp. 933-934). Assuming that the parties nevertheless retained different opinions regarding the continuity of Latvia, it was possible to conclude the Border Treaty by making an interpretative declaration. As it was indicated by E. Levits: “Assuming that the Treaty does not contain explicit and unambiguous provisions that would expressis verbis provide that Latvia relinquishes the territory that was separated from it, then it is open to (different) interpretation. […] It would be important from the point of view of Latvian constitutional law that it would interpreted in a way that would not affect Article 3 of the Satversme. In this case, first, there would be no necessity to submit the Ratification Law of this Treaty to a referendum, second, the Treaty would pragmatically allow to legally settle the border that has existed in fact for a long time and to politically settle the issue; however, third, the final regulation of the territorial issue would remain open until it would perhaps be possible to settle it in the context of a broader reconciliation” (see Levits E. Piezīmes par Satversmes 3. pantu, the case materials, vol. 6, p. 207).

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E. Levits holds that such an interpretation can be reached by means of an interpretative declaration made when signing or, at the latest, when ratifying the treaty. A similar opinion was expressed by I. Ziemele by particularly emphasizing the different positions of the parties regarding validity of the Peace Treaty: “Latvia holds that the Treaty is valid. Versions of the positions of Russia are as follows: (1) it rejects any involvement of the Peace Treaty in the process of concluding the Border Treaty, because the Border Treaty is of a technical nature. […] (2) It does not recognize the validity of the Peace Treaty because it holds that Latvia has voluntarily entered the USSR and it is concluding a treaty on the state border, which would establish the territorial sovereignty of both States and withdraw any territorial claims from the agenda” (profesores Inetas Ziemeles 2005. gada 14. marta atzinums Ministru kabinetam sakarā ar Latvijas Republikas un Krievijas Federācijas līguma par Latvijas un Krievijas valsts robežu parakstīšanu un ratifikāciju, the case materials, vol. 6, p. 215). Hence the conclusion of the Border Treaty, during which Latvia has not expressed its viewpoint regarding the object and purposes of this Treaty, could make Russia consider that Latvia is a new state (Paparinskis M. Maisot tiesisko “spageti bļodu” // Jurista Vārds, Nr. 5, 30.01.2007., p. 37). To my mind, this drawback is to a certain extent compensated by the Judgment. The Constitutional Court, as the highest institution of judicial power of Latvia, has assessed all the necessary facts and has justified the opinion of the state of Latvia regarding the events of 1940 and the continuity of the state of Latvia, as well as the fact that the continuity is not affected by the change of borders. The interpretation included in the Judgment of the Constitutional Court is binding on the state of Latvia (see Article 32 of the Constitutional Court Law). This interpretation prima facie is not obligatory for other states. But it must be taken into consideration that if the Constitutional Court has interpreted an international treaty or assessed its compliance with the Satversme, then the state of Latvia can apply and interpret this agreement only in the same manner as it has been done by the Constitutional Court. Hence the opinion of the Constitutional Court is legally binding and is regarded as the final opinion of the state of Latvia regarding the respective international treaty, and it confirms the validity of the Peace Treaty. Hence a judgment of the Constitutional Court that has been adopted by assessing the constitutionality of an international treaty expresses the understanding of the State of Latvia of this treaty, which is made known to the international community and other contracting parties, and hence the principles of concluding treaties in good faith have been complied with. 10.4. On 26 April 2005, Latvia annexed a unilateral interpretative declaration to the Border Treaty. Since Russia has rejected this declaration, the government was forwarding the Authorisation Law for adoption, which provides: “On the basis of the constitutional law of the Republic of Latvia “On the Status of the Republic of Latvia” adopted by the Supreme Council of the Republic of Latvia on 21 August 1991, as well as taking into account the internationally recognized state continuity of the Republic of Latvia, to authorize the Cabinet of Ministers to sign the draft treaty between the Republic of Latvia and the Russian Federation on the State border between Latvia and Russia initialled on 7 August 1997.” It is possible to agree with the viewpoint that the claim of continuity of Latvia is ensured by the reference to the constitutional law. It is confirmed by the statements of the State President and the Prime Minister during the Saeima discussions, as well as the international reaction. When commenting the Authorization Law, the Prime Minister Aigars Kalvītis said that Latvia, “by passing the law, changes the form, not the content” (see the broadcast on LTV, “Kas notiek Latvijā?” of 17 January 2007). The

Constitutional Court quotes the speech of the State President of 1 February 2007 (see para. 34.3 of the Judgment), wherein she draws attention to the repeated support of the international community to the continuity claim of the state of Latvia “Our continuity does not depend on the will of Russia to recognize it or not. Moreover, Russia has also recognized Latvia as an independent state that is based on the Constitutional Law, which, in its turn, is based on the principle of legal succession” (Latvijas Valsts prezidentes V. E. Vairas Vīķes-Freibergas runa Saeimas debatēs par Latvijas – Krievijas robežlīgumu 2007. gada 1. februārī Saeimas namā // Latvija –Krievija –X. Zinātniski pētnieciskie raksti, 2007, Nr. 1(12), 9-7.; p. 11). Hence it is possible to conclude: there is no basis for the arguments that Latvia has ever raised territorial claims to Russia. A state cannot raise territorial claims regarding territory that de iure is its constituting part. The Constitutional court quotes I. Ziemele who has indicated that “The draft decision to be discussed in the Saeima about the authorisation of the government to sign the prepared draft of the treaty between Latvia and Russia concerning the border is sufficiently acceptable both from the point of view of international law and the Satversme with one precondition – if the government and the Saeima continue maintaining the position that has so far been presented by Latvia with regard to all the questions directly or indirectly related to the border treaty” (see para. 68.4 of the Judgment). The same opinion was also expressed by M. Paparinskis: “Such a reference does not affect the possible collision with the Satversme and the Declaration of Independence; therefore it can function only by resuming the compliance of the Border Treaty with the Satversme” (Paparinskis M. Maisot tiesisko “spageti bļodu” // Jurista Vārds, Nr. 5, 30.01.2007., p. 31). However, the Constitutional Court does not assess whether the Saeima has not disclaimed its previous position. Consequently, the Constitutional Court had to assess whether the position of Latvia that has been expressed before the adoption of the Law on Authorization has been observed in the Ratification Law. 11. In order to assess the compliance of the impugned words of Article 1 of the Ratification Law and hence also the compliance of the Border Treaty with Article 9 of the Declaration of Independence, the Court had to assess whether these acts ensure the continuity claim. The Court does not analyse at all the compliance of the Border Treaty with Article 9 of the Declaration of Independence and the doctrine of continuity. The Border Treaty must be interpreted by taking into account the methods mentioned in Chapter 3 of the 1969 Vienna Convention on the Law of Treaties, i.e. that the treaty is to be interpreted in good faith according to the usual meaning of the terms in their respective context and taking into account the object and purpose of the treaty. Drafting materials of the treaty may serve as supplementary materials for interpretation thereof. If implementation of Article 9 of the Declaration of Independence does not explicitly follow from the Border Treaty, then it is necessary to analyse the Ratification Law or other statements of officials of Latvia in relation to the ratification of the Border Treaty. When applying the grammatical method, it is possible to conclude that the Border Treaty contains no reference to state continuity. It cannot be perceived from the text of the Treaty that the parties have come to an agreement on this issue. When applying the contextual method, it is possible to conclude that the Constitutional Court was not in possession of other bilateral or unilateral documents related to the Treaty that would confirm that the parties have come to such an agreement. On contrary, as it

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was concluded by the Constitutional Court, in the Saeima discussions and those of the Russian Federal Duma it is possible to find obvious references to the fact that the parties interpret the Border Treaty as legalisation of the 1944 border (see para. 73 of the Judgment). The Constitutional Court did not support such an interpretation (see para. 78 of the Judgment). The Constitutional Court when analysing the Ratification Law and the reference contained therein to the OSCE principle, draws attention to the duty of the state of Latvia to act in its relations with Russia in a manner that would not endanger the continuity of the Republic of Latvia (see para. 78.1 of the Judgment). However, the Court does not develop this argument further, by only confining itself to assessment of the compliance with Article 68(1) of the Satversme. I agree that conclusion of the Border Treaty as such does not affect the continuity claim of Latvia; however, Article 9 of the Declaration imposes additional responsibility to Latvia in relations with Russia. Therefore I consider that the Ratification Law without any reference to continuity of the state does not fulfil the mandate established in Article 9 of the Declaration of Independence. Hence the Constitutional Court ought to have recognised the impugned norm as being non-compliant with Article 9 of the Declaration. Taking into account the above-mentioned arguments, in order to avoid any conflict between the international obligations of Latvia and the Declaration of Independence, the state of Latvia had to indicate de lege ferenda in a norm of a constitutional rank that the relations of Latvia and Russia are regulated by the still valid Peace Treaty and the new Border Treaty. 12. Although I generally agree to the conclusion of the Constitutional Court regarding the interpretation of Article 3 of the Satversme, I would like to express my concern regarding the fact whether the Constitutional Court has fully used all the available sources and has eliminated all doubts about its content. At first, I would like to emphasize that in the Judgment of the Constitutional Court I did not find several substantial opinions regarding the scope of Article 3 of the Satversme. First of all, Balduins fon Disterlo wrote in the review of the Satversme published in 1923: “A referendum must take place […] when the Saeima amends Articles 1, 2, 3 or 6 of the Satversme, i.e. the basic provisions on the form of administration of Latvia and its sovereign power, the territory of the state and the principles for electing the Saeima” (Disterlo B. Juridiskas piezīmes pie Latvijas Republikas Satversmes // Tieslietu Ministrijas Vēstnesis, 1923, no. 7, p. 10). Second, Pauls Šīmans has written in the German language commentary on the Satversme published in 1930: “A referendum must be announced concerning such parliamentary laws that provide for amendments to Article 1, 2, 3 and 6 of the Satversme, i.e. change the state regime, the sovereignty of the people, borders or the rights of general, direct and equal elections” (Šīmans P. Latvijas Satversmes astoņi gadi // Šīmans P. Eiropas problēma. Rīga: Vaga, 1999, p. 41). Third, Kārlis Dišlers has written in the textbook of constitutional law published in 1930: “Already during adoption of the Satversme of the Republic of Latvia (15 February 1922) the borders of Latvia were legally established in international treaties and they were also already partially marked on the ground, which is why it was possible to write in Article 3 of the Satversme of the Republic of Latvia: “The territory of the state of Latvia, within the borders established by international agreements, consists of Vidzeme, Latgale, Kurzeme and Zemgale”. It is possible to introduce amendments to this article

of the Satversme only by means of a national referendum.” (Dišlers K. Ievads Latvijas valststiesību zinātnē. Rīga: A. Gulbis, 1930, p. 77). Hence Article 3 of the Satversme refers to the existent frontiers of the State of Latvia and specific international treaties, which in 1922 also included the Peace Treaty of 1920. The above-mentioned lawyers do not mention any “newly acquired territories” nor the fact that Article 3 of the Satversme does not establish the entire territory of the state of Latvia. The Constitutional Court has not mentioned these opinions in the Judgment, nor has it refuted them. This fact raises doubts as to whether the Court has succeeded in finding out the exact will of the members of the Constitutional Assembly regarding the scope of Article 3 of the Satversme.

Judge of the Constitutional Court

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Kristīne Krūma

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2007-11-03

Spatial planning

Application of environmental law in assessing the legality of a local government’s spatial plan The right to benevolent environment was examined. It comprises three procedural elements: the right to the accessibility of information on environment; the right to participate in the process of taking decisions on environmental issues; and the right to access to court for appealing decisions linked to the environment. The right of environmental protection organisations (locus standi) to submit an application to court to contest such actions by public institutions that jeopardise environment was examined. Spatial planning is an area linked to environment, where the society has extensive rights. If a person were prohibited to contest a spatial plan in court, inter alia, Latvia’s commitments that follow from the Aarhus Convention would not be met. The precautionary principle which is of particular importance in the implementation of environment policy was analysed. Environment protection is not limited to protection against an already existing threat and elimination of consequences that already have set in because, often, restitution of the previous environmental situation is no longer possible after the adverse consequences have set it. Thus, the aim of the precautionary principle is to decrease the possible negative future consequences. This principle requires assessing the possible risks and elimination thereof in as early stage of actions or decision taking as possible. It was found that with the ratification of the Treaty of Accession of the Republic of Latvia to the European Union, the European Union law had become an integral part of the Latvian legal system. Hence, legal acts of the European Union and the interpretation thereof consolidated in the-case law of the Court of Justice of the European Union must be taken into consideration in applying national legal acts. The separate opinion of two judges was appended to the judgment. The content and scope of the right to benevolent environment were examined in the opinion.

JUDGMENT in the name of the Republic of Latvia in the case no. 2007-11-03 Riga, 17 January 2008 The Constitutional Court of the Republic of Latvia in the following composition: the chairman of the hearing of the Court Gunārs Kūtris, judges Kaspars Balodis, Aija Branta, Juris Jelāgins, Kristīne Krūma, Uldis Ķinis and Viktors Skudra, with the secretary of the hearing of the Court, Arnis Žugans,

with participation of the representatives of the Petitioner – the association “Coalition for Nature and Cultural Heritage Protection” – Aiga Grišāne and Sandra Jakušonoka, with participation of the representatives of the institution that has adopted the impugned act – the Riga City Council – Agris Bitāns, Ginta Sniedzīte, Pēteris Strancis and Gvido Princis, on the basis of Article 85 of the Satversme [Constitution] of the Republic of Latvia and Article 16(3), Article 17(1)(11) and Article 192 of the Constitutional Court Law, in Riga, on 11 and 18 December 2007, in a public hearing examined the case “On the compliance of the part of Riga Land Use Plan 2006–2018 covering the territory of the Freeport of Riga with Article 115 of the Satversme of the Republic of Latvia”.

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The facts 1. The Riga Land Use Plan 2006–2018 (hereinafter also – the Land Use Plan) is regarded as a separate document in the framework of the documentation for the long-term territorial planning entitled “Riga City Development Plan 2006 – 2018” (hereinafter also – the Development Plan). The Development Plan consists of three interrelated documents, namely, Riga Long-Term Development Strategy until 2025, Riga Development Programme 2006–2012 and the Land Use Plan. 1.1. Drafting of the Land Use Plan was commenced on 4 June 2002, when the Riga City Council adopted the decision no. 1385 “On Commencement of Drafting of the Riga Development Plan 2006–2018”. On 1 November 2004, the Environmental Impact Assessment State Bureau adopted the decision no. 53-p to apply the procedure of strategic assessment of environmental impact to the Development Plan. After the adoption of the Decision, the Riga City Council and the Riga Centre for Sustainable Development “Agenda 21” initiated the strategic assessment of environmental impact (hereinafter – the Strategic Assessment) and drafted the Environmental Report for the Riga City Development Plan 2006-2018 (hereinafter – the Environmental Report). The Strategic Assessment was performed for the Riga Development Plan as a whole, without a separate assessment of the Land Use Plan. On 15 November 2005, the Riga City Council adopted the Decision no. 584 “On Adoption of the Final Version of the Riga Land Use Plan 2006-2018, Approval of the Riga Long-Term Development Strategy until 2025 and Approval of the Final Version of the Riga Development Programme 2006–2012”. On 23 November 2005, the Environmental Report was submitted to the Environmental Impact Assessment State Bureau (hereinafter – the Bureau), and on 16 December 2005, the Bureau adopted Resolution no. 24 “On the Environmental Report of the Riga City Development Plan 2006–2018” (hereinafter – the Resolution of the Bureau). On 19 December 2005, the Ministry of Regional Development and Local Government submitted an Opinion on the Draft Development Plan dated 15 November 2005 to the Riga City Council. In this Opinion, compliance of the Development Plan with the requirements of the law effective at the time of drafting was assessed. On 20 December 2005, the Riga City Council approved the Land Use Plan by adopting the Decision No. 749 “On Approval of the Riga Land Use Plan 2006-2018”. Under Paragraph 1 of the above Decision, the graphic part of the Land Use Plan and Riga City land use and building regulations were adopted as the Riga City Council

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Regulation No. 34 “Riga City Land Use and Building Rules” dated 20 December 2005. The Decision was published in the newspaper “Official Gazette” on 3 January 2006. 1.2. Article 2 of the Law on Ports provides that a port is a delimited part of Latvian onshore territory, including artificially created banks, and such part of inland waters, including inner and outer roadsteads and fairways in the port entrance, as is set up for the servicing of ships and passengers, for the conduct of freight, transport and expedition operations and other economic activities. Under Article 1 of the Law on Freeport of Riga, the territory of the freeport is a part of the territory of the Republic of Latvia, within the borders of the Freeport of Riga as determined by the Cabinet. Under Article 3 of the Law on Ports, the boundaries of a port, including territories which, taking into account their geographical situation, might be used for prospective development of the port, including state public-use territories of railway infrastructure right of way, are determined by the Cabinet upon a recommendation of the relevant local government, port authority and administrator of the state public-use railway infrastructure. During drafting and adoption of the Land Use Plan, the territory of the Freeport of Riga was determined by the Cabinet of Ministers Regulations no. 516 of 11 December 2001 “On Delimiting the Boundaries of the Freeport of Riga” (hereinafter – Regulations No. 516). After the Land Use Plan came into force, the boundaries of the Freeport of Riga were changed because the Cabinet of Ministers adopted Regulations No. 690 of 22 August 2006 “On Delimiting the Territory of the Freeport of Riga” (hereinafter – Regulations No. 690). According to Article 7(3)(1) of the Law on Ports, The port authority in its capacity of a body governed by private law shall formulate a draft programme for the development of the port in accordance with the approved development concept for the ports of Latvia and the development programme of the relevant city and the land use plan, and it shall ensure the implementation of the port development programme as approved by the Latvian Ports Council. As to the Freeport of Riga, the Freeport of Riga Development Programme 1996–2010, as amended on April 2007 to ensure its compliance with the Land Use Plan, is in force. On 10 August 2005 the Bureau adopted the decision no. 2 “On the Application of the Strategic Assessment Procedure to the Freeport of Riga Development Programme”. A draft of the Freeport of Riga Development Programme 2003–2015 was prepared but was not approved by the Latvian Ports Council. On 12 June 2007 the Freeport of Riga Council decided to draft a Port Development Programme for 2008–2018. 2. The association “Coalition for Nature and Cultural Heritage Protection” (hereinafter – the Petitioner) – claims that the part of the Land Use Plan regarding the territory of the Freeport of Riga (hereinafter – the Impugned Plan) is contrary to Article 115 of the Satversme of the Republic of Latvia (hereinafter – the Satversme). By referring to the case-law of the Constitutional Court of the Republic of Latvia, the Petitioner noted that, under Article 115 of the Satversme, the state shall protect the right of everyone to live in a benevolent environment by providing information about environmental conditions and by promoting the preservation and improvement of the environment. This provision, first, places an obligation on the state to establish and ensure a system for an effective protection of the environment. Second, it confers the right on private law persons to challenge the decisions of persons governed by

public law, according to the procedures established by law, that infringe the rights of persons in the field of exploitation and protection of environment. Land use planning is regarded as one of the branches of the environmental law. The Petitioner submits that, when drafting the Impugned Plan, a number of violations of procedural and substantial law were made, and in case the Impugned Plan remains in force, an irreversible harm might be inflicted on the environment. Moreover, there are activities carried out in the territory of the Freeport of Riga that are illegal until strategic assessment has not been performed for the respective territory according to the procedures established by law. 2.1. The Petitioner draws attention to several procedural violations, the most relevant of which is failure to perform a strategic assessment for the Impugned Plan according to the requirements of regulatory enactments. The Impugned Plan was not subjected to a sufficiently detailed strategic assessment and therefore it was not sufficiently assessed whether it is possible to designate production and industry as the main authorised (planned) use. Moreover, when drafting the Environmental Report for the Riga Land Use Plan, the impact of the planned zoning of the territory on the protected nature area of European significance (hereinafter – Natura 2000 territory) has not been assessed. The Petitioner drew attention to the fact that, if compared to the Riga Development Plan 1995‑2005 (hereinafter – 1995 Development Plan), such use as might cause unfavourable consequences for the environment, the society and particularly for persons living in the territory of the port and in its vicinity, is designated for a large part of the territory of the Freeport of Riga. For instance, the Krievu Island zoning has been changed from a green zone function to that of a production and industry territory. Moreover, physical transformation of the territory is permitted. Production is also designated as the planned use of the territory on the Žurku Island and in the Spilve area. Although no strategic assessment for the territory of the Freeport of Riga had been duly performed, in the territory of the Freeport of Riga, especially on the Krievu Island there are certain activities taking place on the basis of the Development Plan. The Petitioner submits that the Freeport of Riga Council misleads businesses by permitting economic activities in the territory of the Freeport of Riga before the required strategic assessment is performed according to the procedure provided for by law. When drafting and adopting the Impugned Plan the requirements of the law “On Specially Protected Nature Territories”, the law “On Environmental Impact Assessment”, as well as the Cabinet of Ministers Regulations no. 157 of 23 March 2004 “Procedures for Strategic Environmental Impact Assessment” (hereinafter – Regulations no. 157) have not been observed. Moreover, the strategic assessment of the Impugned Plan has been carried out contrary to the principles of environmental impact assessment. The Petitioner particularly emphasises that the precautionary principle has not been observed, namely, the strategic assessment has not been carried out at the earliest possible stage of the planned activity and decision making. The Impugned Plan is in conflict with the principle of sustainable development. Article 175 of the Treaty Establishing the European Community has not been observed. It provides that the Environmental policy of the Community must inter alia affect preservation, protection and improvement of the quality of the environment, protection of human health, as well as prudent and rational utilisation of natural resources, and the policy must be based on the precautionary principle. Likewise, the Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment

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(hereinafter – Directive 2001/42/EC), Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (hereinafter – Directive 79/409/EEC) and Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (hereinafter – Directive 92/43/EEC). Amending the final version of the Land Use Plan without submitting the updated version to public consultation procedure should be regarded as a substantial procedural violation. Such requirement follows from the Land Use Planning Law and Regulations no. 883 of 19 October 2004 by the Cabinet of Ministers “Procedure of Municipal Land Use Planning” (hereinafter – Regulations no. 883). The fact that the procedure set out in Regulations no. 883 regarding the procurement of opinions from the institutions mentioned in Article 13 of the Regulations has not been observed should also be regarded as a substantial procedural violation. The Petitioner emphasises in particular that no opinion regarding the final version of the Land Use Plan has been received from the Public Administration of Cultural Heritage. Moreover, taking into account the fact that after the approval of the final version of the Land Use Plan, on 15 November 2005 amendments were made to the Land Use Plan, not only a repeated public consultation, but also a repeated receipt of opinions from all institutions mentioned in the Cabinet Regulation and in the terms of reference was necessary. 2.2. The Petitioner submits that, when drafting and adopting the Impugned Plan, important provisions of substantial environmental law have also been disregarded. For instance, the requirements of the Protective Zone Law have not been observed. Moreover, establishment of an industrial zone in the protection area of a cultural heritage and in the vicinity of a protected monument is contrary to the requirements established by the Cabinet of Ministers Regulations no. 474 of 26 August 2003 “Rules on Registration, Protection, Use, Restoration of the Monuments of Culture, the Pre-emption Rights of the State and Granting of the Status of the Object Degrading the Environment”. The Petitioner draws attention to the fact that according to the Development Plan and according to the Riga City Land Use and Building Rules (hereinafter – Building Regulation), broad possibilities of territory transformation were opened – to alter the bank of the Daugava, fill coves and washes, and this could be done by simply receiving a permission to carry out repair works in the territory of the port. Transformation of a territory is also planned in the areas that are recognized as potential micro-reserves, namely, on the Krievu Island, the Žurku Island and in the Spilve area. There exists a possibility that valuable nesting ground of birds that currently is located outside the protected area will be destroyed which would be in conflict with the Directive 79/409/EEC. The Petitioner submits that Article 2.8 of the Building Regulation, which provide for a possibility to amend the above regulations without making amendments to the Land Use Plan, should be regarded as illegal since, according to Regulations no. 883, amendments to a land use plan can be made only within the framework of the process of land use planning, i.e., by drafting and adopting amendments to the Land Use Plan according to the procedure required by law. 2.3. The Petitioner submits that the inclusion of the residential area of Kundziņsala into the territory of the Freeport of Riga has taken place without any socio-economical justification and contrary to the results of the public consultation. The Petitioner emphasized that, when drafting the Land Use Plan, the United Nations Educational, Scientific and Cultural Organization’s Convention for the Safeguarding of the Intangible Cultural Heritage (hereinafter - Convention for the Safeguarding of the Intangible Cultural Heritage) has been disregarded. As a result

of an eventual implementation of the Land Use Plan, the living conditions would be worsened: for instance, access to Daugava in Daugavgrīva, Bolderāja and Mangaļsala would be restricted. Moreover, it is possible that the inhabitants of Kundziņsala will have to leave their places of residence when the Freeport of Riga takes over these territories. After introducing such considerable changes in the Development Plan, its compliance with the Convention for the Safeguarding of the Intangible Cultural Heritage has not been analysed, and there is a reason to consider that the Convention is being violated. 3. The institution that has adopted the Impugned act – the Riga City Council – indicates that the Impugned Plan was drafted in accordance with the applicable legislation and therefore complies with Article 115 of the Satversme. The Riga City Council recognises that Article 115 of the Satversme provides for the right to live in a benevolent environment; however, it does not guarantee the right to conservation of the environment. The right of a person to live in a benevolent environment is implemented according to the order and form established by and on the basis of law. The City Development Plan is one of the forms how the rights of persons to live in a benevolent environment are implemented. The Development Plan has been drafted by ensuring a sustainable and balanced development. The Riga City Council submits that, in general, the Freeport of Riga development scenario provides for the implementation of pre-conditions for protection of the historical heritage of the Riga City and improvement of welfare of the inhabitants of the City and its visitors, including amelioration of traffic organization and reduction of pollution by simultaneously not interrupting the economic activity of the Freeport of Riga. 3.1. The Riga City Council submits that the Impugned Plan was subject to an appropriate strategic assessment according to the procedures established by the law. The Environmental Report includes an assessment regarding the territory of the Freeport of Riga to the extent required by the Land Use Plan, namely, the Environmental Report covers only the most important aspects of activities and development of the Port. It is in conformity not only with the formulation of the Land Use Planning Law, but also with the Article 235(1) of the Law on Environmental Impact Assessment. An equally detailed strategic assessment for both the Land Use Plan and the Freeport of Riga Development Programme would be contrary to the considerations of usefulness. The situation would be absurd if a project planned in the territory of the Freeport of Riga were subject to two strategic assessments and furthermore to the environmental assessment. Hence the law permits and even requires a more detailed strategic assessment for the Freeport of Riga later, i.e. in the framework of the strategic assessment of the Freeport of Riga Development Programme. The main purpose of the Land Use Plan is to establish the limits of operations of the Port in the common scheme of the city infrastructure plan. The purpose of the Development Programme, however, is to specify the land exploitation options for the territory of the Port thus allowing businesses who are currently or potentially working in the port to plan their operations and development thereof in the territory of the port. Yet, the representative of the Riga City Council also explained that the Freeport of Riga Development Programme is a document of a ‘programmatic character’, rather than a ‘planning document’. When planning the development of the Freeport of Riga, it is important to take into account the historical development of the territory of the Port by thus ensuring observation of the principle of continuity and succession. The development of

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the Freeport of Riga since the 17th century must be considered, as well as the fact that construction on the Krievu Island was planned already in 1933. Natural changes of the Daugava riverbed should also be acknowledged. Concerns expressed in the resolution of the Bureau regarding the need to eliminate possible contradictions between the Land Use Plan and the Port Development Programme will be taken into account when the Freeport of Riga Development Programme for 2008‑2018 is drafted. In the Environmental Report on the Freeport of Riga Development Programme a repeated analysis will be made concerning impact of the development of the Port on highly protected natural areas in the context of particular services of the Port. The same applies to implementation of particular projects that will be subject to assessment of impact on the environment pursuant to the procedure provided for by law. It is impossible to implement any project in the territory of the Port unless the procedure of environmental impact assessment is duly applied, including the assessment of the impact of planned development on the Natura 2000 territories and involvement of the society in evaluation of project implementation risks. Hence there are no reasonable grounds to claim that the Development Plan provides legal basis for the development of the Port disregarding the rights and interests of the inhabitants, including their right to live in a benevolent environment. 3.2. The argument that the fundamental rights established in Article 115 of the Satversme are not observed is ungrounded, because, by applying the procedure of strategic assessment, the inhabitants had an opportunity to participate in the process of land use planning at all stages as required by the law. Moreover, the Riga City Council has been particularly supportive of public participation in the process of drafting of the Land Use Plan. The Development Plan, which also includes the Land Use Plan, probably is the most democratic document that has ever been drafted in the Republic of Latvia, since large-scale public consultation were ensured on the draft version of the Land Use Plan. However, the Riga City Council is aware that Land Use Plan is not perfect, and therefore the work on amendments to the Land Use Plan is currently taking place. 3.3. The Riga City Council notes that the territory of the Freeport of Riga is to be used for ensuring the services of a port, which is essentially an economic activity. Moreover, one of the main goals of the Development Plan regarding the territory of the Port is, “by means of territorial planning tools, to ensure that for the development of the Freeport of Riga a sufficiently large territory is available, as well as an adequate infrastructure and efficient access roads (highways and railroads) that would bypass the centre of the city and lead the cargo transport to the highways of the city”. The Riga City Council draws attention to the fact that the territory of the Port has been considerably reduced in the area of the Riga city historical centre. In addition, the reduction of the former territory of the Port is possible only in case simultaneous inclusion and exploration of so far economically unused territories (Spilve area, a part of Kundziņsala, Mangaļsala and Daugavgrīva) into the territory of the Port is ensured, as well as measures of amelioration of the infrastructure of the port are made, namely, deepening of the main navigation channel, amelioration of access roads and communications network. Taking into account the fact that the territory of the Freeport of Riga has been decreased in Andrejsala, it is understandable that, to compensate for this reduction, the Freeport of Riga is provided with additional territories for its economic activities. The Riga City Council further notes that, taking into account the positive impact of the reduction of the territory of the Port on protection of the environment, preservation of

the historical centre of the city and welfare of the people, the priorities of the development of the Port defined in the Transport Development Plan, as well as in Articles 2 and 3 of the Law on Ports, the entire territory of the Port, except for the highly protected natural sites, is marked in the Development Plan as territory for the production and industry. However, if industry is the authorised (planned) zoning of the territory, it does not mean that the respective territory will be used for such purposes. The authorised (planned) mode of use of the territory, as established in the Land Use Plan, should be regarded only as a vision or a potential possibility of use of the territory. There could as well be an oil terminal, navy quayside or a joinery company located in the territory of the Port. The representative of the Riga City Council strongly emphasized that the Council, when drafting the Land Use Plan, did not even go into details and did not attempt to envisage in what particular part of the territory of the Freeport of Riga oil or coal reloading terminal would be located. Development of the Freeport of Riga is ongoing, and, therefore, construction and development projects are being implemented in the territory of the Freeport of Riga. However, none of these projects concerns that part of the territory of the Freeport of Riga, where the zoning of the territory has been considerably changed in the Impugned Plan, if compared to the previous land use plan. Moreover, the projects that are currently being implemented are mostly of the kind that reduces risks to the environment, namely, reconstruction, repair and renovation of buildings. […]

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The motives I 10. Article 115 of the Satversme provides: “The state shall protect the right of everyone to live in a benevolent environment by providing information about environmental conditions and by promoting the preservation and improvement of the environment.” First, the above provision of the Satversme obliges the public authorities to form and to ensure effective system of environmental protection. Second, it provides for the rights of a person, according to the order established in law, to receive environmental information and to participate in the decision-making process related to exploration of the environment. Third, it establishes the rank of the fundamental right to live in a benevolent environment (see the judgment of the Constitutional Court of 14 February 2003 in the case no. 2002-14-04, para. 1 of the motives part; judgment of 8 February 2007 in the case no. 2006-09-03, para. 11 and judgment of 21 December 2007 in the case no. 2007-12-03, para. 13). The right to live in a benevolent environment, like other fundamental rights included in Chapter 8 of the Satversme, shall be applied directly (see, e.g., the judgment of the Constitutional Court of 5 December 2001 in the case no. 2001-07-0103, para. 1 of the motives part). Namely, on the basis of Article 115 of the Satversme an individual has the right to apply to the court about the action (inaction) of the public law subject, which infringes the rights and legitimate interests of the person. These individual rights are derived from the specific nature of environmental law (see the judgment of the Constitutional Court of 21 December 2007 in the case no. 2007-12-03, para. 13). 11. The objectives and tasks faced by the contemporary society may be achieved only by close collaboration between the state, the local authorities as well as non-

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governmental organizations and the private sector. Therefore, the term “the state”, used in Article 115 of the Satversme, shall not be interpreted narrowly. It shall also include local authorities and other derived public persons, whose duty, together with that of the public administration institutions, is to protect the right of everyone to live in a benevolent environment. This should be done by taking care for the preservation and improvement of the state of the environment (see the judgment of the Constitutional Court of 8 February 2007in the case no. 2006-09-03, para. 11). Moreover, the responsibility of public authorities to create and ensure an effective system and environmental protection implies responsibility to take into account the interests of environmental protection in cases when policy planning documents or legal acts are drafted or adopted, as well as in the cases if legal acts adopted are applied and the objectives of the policy are implemented (see the judgment of the Constitutional Court of 21 December 2007 in the case no. 2007-12-03, para. 13). Therefore, Article 115 of the Satversme does not only confer a person the right to live in a benevolent environment, but it also obliges the public authorities, including local governments, to ensure implementation of these rights. 12. The Constitutional Court has reiterated that the objective of the legislator was not to confront the norms established in the Satversme with the international legal norms (see the judgment of the Constitutional Court of 30 August 2000 in the case no. 2000-03-01, para. 5 of the motives part). A possibility and even a necessity to apply international norms for interpretation of the fundamental rights enshrined in the Satversme is derived inter alia from Article 89 of the Satversme, which provides that the state shall recognise and protect fundamental human rights in accordance with the Satversme, laws and international agreements binding upon Latvia. The wording of this article suggests that there was intention of the legislator to achieve harmony of the norms of human rights established in the Satversme with international legal norms (see the judgment of the Constitutional Court of 13 May 2005 in the case no. 2004-180106, para. 5 of the motives part). The right to live in a benevolent environment and the respective obligation of the state to take care for conservation of the environment, as established in Article 115 of the Satversme, is specified in laws and other acts, and these rights and obligations should be interpreted according to the international legal norms binding on the Republic of Latvia. For instance, the “Aarhus” Convention of 25 June 1998 on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (hereinafter – the Aarhus Convention), which was ratified by the Saeima [the Parliament] on 18 April 2002, grants the rights to the public to access environmental information, to participate in environmental decision-making process as well as to access to justice on environmental matters. Whilst the Law on Environmental Protection specifies the rights established in Article 115 of the Satversme, and even broadens the environmental rights of the society provided in the Aarhus Convention (see the judgment of the Constitutional Court of 21 December 2007 in the case no. 2007-12-03, para. 14). Article 9 of the Aarhus Convention provides the right of the public to access the court if the rights of the public to access information, public participation on decision-making process are limited or legal acts of the respective state regarding the environment are violated. Therefore, the rights to a benevolent environment include three procedural elements – first, the right of access to information on the environment, second, the right to participate in environmental decision-making, and third, the right of access to the courts in environmental matters (see Kramer L. EC Environmental Law.

London: Sweet & Maxwell, 2003, p. 137). These procedural elements form a part of the obligations of the state to ensure a benevolent environment for the next generations. Article 9(3) of the Aarhus Convention provides that “[…] each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.” Therefore, this Article of the Aarhus Convention provides that the state has to establish a transparent administrative or judicial review procedures, which would ensure the right to representatives of the public to challenge decisions that not only concern access to information and participation of the public, but also are in breach with other national provisions of environmental law (see Stec S., Casey- Lefkowitz S., Jendroska J. The Aarhus Convention: An Impementation Guide. New York and Geneva, United Nations, 2000, pp. 130‑131). Moreover, Article 9(4) of the Convention provides that the procedures referred to in paragraphs 1, 2 and 3 of that article shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. Therefore, the international obligations of Latvia require to ensure the public, including associations of natural and legal persons that comply with state-established criteria, access to administrative and judicial procedures to challenge decisions or acts of public institutions that limit both, the right of access to information and participation of the public, or are in breach with provisions of the environmental law. 12.1. After examining the procedures established in respective laws on the possibility to request review of decisions or actions of the state or a local government, it can be concluded that administrative acts or activities of the state or a local government that do not comply with the requirements of legal acts on environment and cause threats or harm to the environment can be challenged and submitted for review according to the procedure established in the Administrative Procedure Law (see Chapter II of the Law on Environmental Protection and the Administrative Procedure Law). Whereas, compliance of norms or a part thereof with a legal norm of a higher legal rank can be challenged only in the Constitutional Court. According to Article 45 of the Regulations No. 883 the council of a local government adopts land use plan as Regulation of Local government and publishes its graphical part, as well as land use and building regulations. Therefore, the land use plan of a local government is a normative act, and it is binding on each natural and legal person, and serves as a legal basis for making decisions regarding development. Therefore, it falls within the jurisdiction of the Constitutional Court to assess compliance of the Impugned Plan with the Satversme. 12.2. Not only in the context of the Aarhus Convention, but also under Article 3 of the Law on Environmental Protection, which provides the rights of the public in environmental matters, the term “the public” means any private law person, as well as association, organization and group of persons. Therefore, not only private law persons, but also legal persons under private law clearly have the rights regarding the environment. Moreover, national norms do not provide any additional criteria, compliance with which should be assessed in cases when legal persons under private law claim the right to live in a benevolent environment, as established in Article 115 of the Satversme. The Constitutional Court has recognized that nowadays land use planning is one of the instruments for reaching state environmental policy objectives and, therefore, the sector related to the environment in which public enjoys extensive rights according to

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Article 115 of the Satversme (see the judgment of the Constitutional Court of 8 February 2007 in the case no. 2006-09-03, para. 11). Jurisprudence of the Constitutional Court asserts the right of an individual to ask for the constitutional review by contesting compliance of a land use plan or a part thereof with the Satversme (see, e.g., the judgment of the Constitutional Court of 8 February 2007 in the case no. 2006-09-03, the judgment of 22 December 2007 in the case no. 2007-12-03). If a person, i.e., a private law person, a legal person governed by private law or an organization of these persons were denied the right to ask for review of compliance of a land use plan with Article 115 of the Satversme, the right of person to a fair trial that provided in Article 92 of the Satversme would be violated, and the obligations of Latvia under Article 9(3) of the Aarhus Convention would not be observed. The Constitutional Court has declared that legal persons under private law have the right to address the Constitutional Court, and the Court has acknowledged that the individual rights, freedoms and obligations, included in the Satversme are applicable to legal persons as far as they can be by their very nature applied to legal persons. Namely, as far as the nature of these rights, freedoms and obligations allows to enact them not only by an individual but also by legal person (see the judgment of the Constitutional Court of 3 April 2001 in the case no. 2000-07-0409, para. 1 of the motives part). Therefore, any individual, as well as association and group of persons is entitled to address the Constitutional Court in order to challenge compliance of a land use plan or a part thereof with Article 115 of the Satversme. 13. The fundamental rights established in the Satversme are not absolute, and they can be limited in certain cases in order to protect the rights of others, the democratic structure of the state and public security, welfare and morals (see the judgment of the Constitutional Court of 22 October 2002 in the case no. 2002-04-03, para. 2 of the motives part). The rights to live in a benevolent environment established in Article 115 of the Satversme are not absolute, and they can be restricted by weighing the rights of individuals and associations of persons with the interests of the society regarding balanced economic development and welfare. In the context of the case under consideration, it should be assessed whether the rights of the Petitioner had been infringed as the result of application of a particular legal act, and whether the Petitioner, before turning to the Constitutional Court, has explored other means established by law in order to avert this infringement. 13.1. In order to establish whether the contested legal act infringes the rights of the legal person to a benevolent environment, first of all the aims of activities of the legal person, which could be defined in its statutes, should be assessed. It is also indicated in Article 2 of the Aarhus Convention that “the public concerned” means the public affected or likely to be affected by, or having an interest in, the environmental decision-making. Consequently, such non-governmental organizations (legal persons under private law) the aim of activities of which is protection of the environment are to be regarded as the public concerned. Moreover, such a legal person should be established in accordance with all requirements of legal acts of the respective state. Therefore it should be established whether the Petitioner complies with the above mentioned requirements. According to the case materials, the Petitioner is registered in the Register of Associations and Foundations on 20 December 2004 according to the procedure established by law (see the case materials, vol. 1, pp. 132‑136) and hence should be regarded as the one founded according to the law. Under the statutes of the Petitioner, the objective of its activities is to promote preservation of the nature of

Latvia and its cultural heritage, as well as protection of the environment (see the case materials, vol. 1, p. 133). Therefore, the fundamental rights of the Petitioner established in Article 115 of the Satversme might be violated. Moreover, breach of the right to live in a benevolent environment established in Article 115 of the Satversme, are to be interpreted broadly by including ongoing activities that may cause imminent threats to human health or the environment, as well as the future, proposed activities (see Stec S., Casey-Lefkowitz S., Jendroska J. The Aarhus Convention: An Implementation Guide. New York and Geneva, United Nations, 2000, p. 132). 13.2. At the same time it should be acknowledged that decisions and rules that may breach the fundamental rights of a person derived from Article 115 of the Satversme are most often related to realization of substantial economic interests. Therefore, when assessing possible violations of Article 115 of the Satversme, the interest of the society to live in a benevolent environment on the one hand, and favouring of economic development, on the other, should be balanced. Moreover, economic interests of individuals, as well as those of the society as a whole often require transformation of the surrounding environment, inter alia, the cultural environment and the nature. Article 115 of the Satversme a priori does not provide for preservation of the existing environment and does not prohibit realization of projects related to economic interests. Article 115 of the Satversme, on contrary, requires a balanced and responsible amelioration of the surrounding environment, which includes guaranteeing suitable living conditions, as well as public well-being. However, Article 115 of the Satversme precludes realization of economic interests if the impact of economic changes on the environment is not assessed and consequently – the impact on each individual, as well as if society is not convinced about the necessity of changes. In order to balance the necessity for realization of substantial economic interests and the rights of a person to live in a benevolent environment, one has to inter alia verify whether a legal person under private law has participated in drafting and adoption of the impugned act, for instance, a land use plan, as far as legal acts provide for such possibility and it has been possible to implement it in practice. Moreover, the Constitutional Court Law includes a requirement that a person, before addressing the Constitutional Court, would have exhausted available remedies for the protection of rights, if such remedies exist. The constitutional complaint and case materials allow to conclude that the Petitioner has taken an active part in the process of adoption of the Impugned Plan (see the case materials, vol. 1, pp. 63‑131 and vol. 9, pp. 29‑43). Therefore, the Petitioner is entitled to submit a constitutional complaint in the Constitutional Court regarding compliance of the Impugned Plan with Article 115 of the Satversme. II 14. According to Article 1 of the Land Use Planning Law, a land use plan is a longterm land use planning document or a set of planning documents which has been drafted and has come into force according to procedures set out in law. According to the level and the mode of planning land use plan reflects the existing and provides for planned (authorised) zoning of the territory and for the limitations of the use of such territory both in writing and graphically. In the result of land use planning, the directions and requirements for sustainable development are set for both the state territory as well as part of it. Land use planning

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by drafting mutually coordinated land use plans, takes place at the national level, that of the planning region, regional government and local government level. Balancing of interests can be achieved by drafting a land use plan according to procedure prescribed by law. 15. The Constitutional Court has noted that law grants extensive discretionary power to the local government in relation to land use planning. However, this power is not unlimited. Still, there are certain limits for the use of the discretionary power. The principles of land use planning and general principles shall serve as the guiding lines for freedom of action in the sector of land use planning (see the judgment of the Constitutional Court of 9 March 2004 in the case no. 2003-16-05, para. 5 of the motives part and the judgment of 14 December 2005 in the case no. 2005-10-03, para. 11). One of the fundamental principles of land use planning is the principle of sustainable development, which is established in the Law on Environmental Protection, the Land Use Planning Law, as well as in the Regional Development Law. Sustainable development means integrated and balanced development of welfare of the society as well as its economic and the environmental development, which meets current social and economic needs of the society and ensures environmental protection avoiding dangers in order to satisfy the needs of next generations, as well as ensure preservation of biological diversity (Article 1 of the Law on Environmental Protection). Moreover, drafting of land use plan is not a formal procedure. It is regulated so that it is possible to identify and evaluate different interests and to establish, which should be given the priority. In this process, it is necessary to achieve balance of the interests of both concerned parties, protection of the vulnerable participants and ensuring the interests of the society as a whole (see the judgment of the Constitutional Court of 9 March 2004 in the case no. 2003-16-05, para. 5 of the motives part and the judgment of 14 December 2005 in the case no. 2005-10-03, para. 11). The objective of land use planning is not only to create favourable conditions for business development and investments, but also to envisage preconditions for quality of the environment, rational use of the territory and prevention of industrial and environmental risks, as well as to preserve the natural and cultural heritage, landscape diversity and biological diversity, and to improve the quality of the cultural landscape and populated areas (Article 4 of the Land Use Planning Law). A local government is obliged to determine further development of the territory and accommodate different, even opposite interests by means of a land use plan as an instrument of planning policy implementation. Therefore, the objective of a land use plan is to ensure economic development and implementation of social and cultural interests, as well as protection of the environment. Moreover, in the process of land use planning, “promoting only the economic growth of the city (profiting), disregarding the specific natural and cultural values, the end result achieved is unlawful” (see the judgment of the Constitutional Court of 9 March 2004 in the case no. 2003-16-05, para. 5 of the motives part). Such an interpretation of land use planning can also be derived from the European Union law, where it is established that in the field of particularly sensitive environmental protection, a sole reference to the economic welfare of the state is insufficient to compensate the rights of others [individuals] (see Articles 4 and 5 of the Directive 79/09/EEC, Article 9, Article 6(4) and Article 7 of the Directive 92/43/EEC, case C‑44/94 “Regina v. Secretary of State for the Environment” [1996] ECR I-03805 and

case C-3/96 “Commission v. the Netherlands” [1998] ECR I-3031). The European Court of Human Rights has noted that states, as well as local governments are required, before implementation of a project, to carry out an adequate and complete assessment thereof by considering alternative solutions, in order to find the best solution possible for implementation of the project and ensure balanced observation of different interests (see the Chamber judgment of 2 October 2001 in the case “Hatton and Others v. the United Kingdom”, para. 97). Balancing of interests is ensured when land use plan is drafted according to the requirements provided by law. Balancing of interests is particularity important when deciding on the planned (authorised) zoning of the territory. The contents of a land use plan should be determined by acknowledging limits of discretion of a local government and the objective of the land use plan to ensure a coordinated implementation of economic, environmental, social and cultural interests.

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16. In order to ensure lawfulness of a land use plan, first, should be properly drafted and adopted, and, second, should comply with law (see the judgment of the Constitutional Court of 9 March 2004 in the case no. 2003-16-05, para. 4 of the motives part). A land use plan or a part of it has not been adopted according to the established procedure if manifest procedural defects are made during the land use planning process. Several criteria determine manifest defect. First, a manifest defect of the land use planning process is in case when a decision made differs from the one which could have been made if the procedure would have been observed. Second, a manifest defect is made in cases when the rights of the public participation are considerably disregarded during the process of land use planning. Third, manifest defect is constituted also when other principles of land use planning are violated (see the judgment of the Constitutional Court of 26 April 2007 in the case no. 2006-38-03, para. 14). Therefore, when assessing compliance of the Impugned Plan with Article 115 of the Satversme, it is necessary to establish whether the procedure of drafting and adoption of land use plans provided by law is observed and whether the planned (authorised) zoning and restrictions are established according to the level of planning and mode regulated by law. 17. When assessing whether the Land Use Plan is drafted according to the procedure provided by law, the Constitutional Court should first establish whether the procedural requirements regarding drafting of the Land Use Plan are observed. Namely, whether and how the Strategic Assessment was made, whether public consultation in the Planning was ensured and whether all necessary opinions from the respective institutions were received. Only after assessment of lawfulness of adoption of the land use plan one can examine whether the requirements provided by law on substantive norms regarding environmental protection were also observed. 18. The Petitioner submits that, in this case, assessment must be made whether the Kundziņsala residential area has been correctly included in the territory of the Freeport of Riga. The Petitioner submits that inclusion of the Kundziņsala residential area into the territory of the Freeport of Riga took place without any socio-economic basis, moreover by violating the international obligations of Latvia that derive from the Convention for the Safeguarding of the Intangible Cultural Heritage. In turn, the Riga City Council submits that inclusion of Kundziņsala residential area into the territory of the Freeport of Riga is decisively a political decision. Moreover,

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the borders are established not by the Land Use Plan, but by Regulations no. 690. In addition to this, this decision is justified by the fact that it is necessary to promote development of degraded territories. In the context of this case it should be observed that Article 3 of the Law On Ports establishes right for a local government to recommend to the government boundaries of the territory needed for perspective development of the port. Therefore, the special delegation entails the right of a local government to propose and option for the Cabinet of Ministers to accept, by adopting regulation, a territory of a port that shall be developed exclusively for the needs of a port. Moreover, when establishing the border both, the local government and the Cabinet of Ministers are obliged to ascertain whether the new border of a port and the process of delimitation complies with the requirements of laws, inter alia, laws that regulate preservation (protection) of the environment, and whether these requirements are reconcilable with the needs of a port. During the Court hearing the representative of the State Chancellery explained that adoption of the Regulations no. 690 delimiting the boundaries of the Freeport of Riga according to expedient procedure was initiated according to the draft submitted by the Ministry of Transport. The boundaries of the Freeport of Riga are set by fully relying on recommendations of the Riga City Council, the joint-stock company “Latvijas dzelzceļš” and the Authority of the Freeport of Riga. During adoption of the Cabinet of Ministers Regulation delimiting the boundaries of the Freeport of Riga, the necessity to include the historic buildings of Kundziņsala into the territory of the Freeport of Riga was not considered. Moreover, the opinion of the Ministry of the Environment, which noted that inclusion of the residential area of Kundziņsala into the territory of the Freeport of Riga is ungrounded, was not taken into account. In turn, the representative of the Riga City Council informed that the Department of Culture of the Riga City Council since February 2006 is still in the process of assessing whether and what kind of cultural heritage is located in Kundziņsala. In the constitutional complaint it is noted that inclusion of the residential area of Kundziņsala into the territory of the Freeport of Riga was ungrounded. However, the complaint does not contain any request for review of the Regulation No. 690, which provides to include the residential area of Kundziņsala into the territory of the Freeport of Riga, as to their compliance with Article 115 of the Satversme. No proceedings were instituted in this respect. Moreover, the institution, which passed the act that establishes the boundaries of the Freeport of Riga – the Cabinet of Ministers – is not a party of this case and has not submitted its memorial. In specific cases the Constitutional Court may or even must go beyond the strict formulation of a claim in order to ensure effective protection of individual rights and enforcement of a judgment. However, assessment of compliance with the Satversme of such acts, which are not subject to review in the respective case, would be contrary to the procedural principles of the Constitutional Court (see the judgment of the Constitutional Court of 19 December 2007 in the case no. 2007-13-03, para. 6). Therefore, in the case under review, the Constitutional Court has no reason to assess whether inclusion of Kundziņsala or any other territory into the territory of the Freeport of Riga or exclusion thereof complies with Article 115 of the Satversme. Taking into account the limits of the claim that can be derived from the constitutional complaint, the Constitutional Court shall assess whether the process of drafting and adoption of the Impugned Plan, within the boundaries of the Freeport of Riga as determined by the Cabinet of Ministers, complies with Article 115 of the Satversme.

III 19. The parties of the case disagree whether the requirements provided by law on a strategic assessment were observed during drafting and adoption the Impugned Plan. There is no dispute whether the strategic assessment was carried out for the Land Use Plan as a whole (see the case materials, vol. 1, p. 163 – vol. 3, p. 29 and pp. 30‑56). In this case there is a dispute whether the strategic assessment of the Impugned Plan has been carried out to sufficiently detailed degree and whether it is permissible to make a more detailed strategic assessment in the framework of the Environmental Report of the development programme of the Freeport of Riga. Moreover, there is also a dispute whether such approach is allowed because of existence of the Natura 2000 territories in the Freeport of Riga and its adjacent territories. Therefore, the Constitutional Court has to establish whether, first, the strategic assessment of the Impugned Plan has been made in compliance with the requirements provided by law. Namely, whether the necessary and available information has been collected and assessed in order to envisage possible environmental impact when implementing the planning document and to be able to establish the planned (authorised) zoning of the territory of the Freeport of Riga. Second, whether the normative regulation permits to make a more detailed strategic assessment of the territory of the Freeport of Riga in the framework of drafting of the development programme for the Freeport of Riga. Third, whether such approach is permissible taking into consideration the presence of the Natura 2000 territory in the territory of the Freeport of Riga and its adjacent territories. 20. In accordance with Article 1 of the Law on Environmental Impact Assessment, following the procedure established by law a strategic assessment is to be performed for the planning document, implementation of which can have a substantial impact on the environment. A strategic assessment is a procedural instrument, by means of which one of the fundamental principles of the environmental policy – precautionary principle – is implemented during the process of adoption of planning documents related to the environment. 20.1. Article 15 of the UN 1992 Rio Conference Declaration on Environment and Development authoritatively interprets the precautionary principle by stating: “In order to protect the environment, the precautionary approach shall be widely applied by states according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation” (see http://www.unep.org/Documents. multilingual/Default.asp?DocumentID=78&ArticleID=1163). Moreover, in the Annotation of the Treaty of Accession of Latvia to the European Union it is indicated that “In general the transposition of legal acts of the European Union in the sphere of environment already has and will have a very positive impact on the Latvian environment, because in such way Latvia benefits from the long-term experience and developed legislative practice of other Member States of the European Union. By introducing an environmental impact assessment, it is ensured that the impact of the planned economic activities on the environment should be assessed already during the planning period, as well as participation of the society in developing of large environmentally-sensible projects is facilitated. As the result of this, additional guarantees for human health and biological diversity are provided” (see http://www.mfa. gov.lv/lv/eu/3883/3749/4004/4005/#II-4).

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The environmental policy of the European Community, which is directed towards achieving a high level of protection, is based on the precautionary principle and on the principle of preventive action. The Court of Justice of the European Communities has indicated in its case-law that Article 174(2) of the Treaty Establishing the European Community, the precautionary principle in particular is one of the foundations of the high level of protection pursued by Community policy on the environment. According to this principle, environmental impact assessment is to be carried out in case of doubt as to the implications of a plan or project for a specific site. The risk of adverse effects exists if it cannot be excluded on the basis of objective information that the plan or the project will have significant effects on the site concerned. Carrying out of such assessment ensures that plan or project which may adversely affect the integrity of the site is not authorised (see case C-127/02 “Landelijke Vereniging tot Behoud van de Waddenzee, Nederlandse Vereniging tot Bescherming van Vogels v. Staatssecretaris van Landbouw, Natuurbeheer en Visserij” [2004] ECR I-7405, para. 44 and Case C-180/96 “United Kingdom v. Commission” [1998] ECR I-2265, paras. 50, 105 and 107). The European Commission has confirmed that, taking into account the precautionary principle, the procedures of assessment of a plan should be as transparent as possible and involve all interested parties at the earliest possible stage. This will assist decision makers in taking legitimate measures which are likely to affect environmental protection (see the Communication from the Commission on the precautionary principle, Brussels, 02.02.2000, COM (2000) 1, p. 17). The precautionary principle is of a particular importance in implementation of the environmental policy. According to the precautionary principle, environmental protection is not limited to protection of the environment to prevent impairment or and damage occurring since restoration of the previous conditions of the site after adverse effects occurred is often impossible. Therefore, the objective of the precautionary principle is to minimize possible negative future effects. This requires that the potential risks are assessed and prevented at an early stage of activities or decision-making. Prevention of negative effects at the earliest stage possible also makes economic sense, since it is normally far costlier to remedy environmental impairment. Consequently, reference of the precautionary principle ensures that potential risks are prevented at an early stage and promotes sustainable development of the environment by securing availability of natural resources as long as possible (see Kramer L. EC Environmental Law. London: Sweet&Maxwell, 2003, pp. 21‑23 and Meseršmits K., Meiere S., Ūsiņa E. Eiropas vides tiesības. Rīga, Latvijas Universitāte, 2003, p. 65). Moreover, the precautionary principle should also be applied in cases of a potential risk management even when a risk cannot be fully assessed, or scientific uncertainty precludes a full assessment of the risk (see: Communication from the Commission on the precautionary principle, Brussels, 02.02.2000, COM (2000) 1, p.13). The precautionary principle has two aspects: first, an obligation to prove that the intended activity will not cause any negative consequences. This obligation is binding on the party that intends the respective activity. Second, the party that has intended to carry out a respective activity is obliged to carry out an assessment insofar as “it is possible in practice” and to use such technologies and methods that would reveal possible consequences of the intended activity [see the Communication from the Commission on the precautionary principle, Brussels, 02.02.2000, COM (2000) 1, pp. 21‑22]. 20.2. The precautionary principle is expressis verbis included in both, Article 3(3) (2) of the Environmental Protection Law as one of the environmental protection principles and in Article 3(5) of the Law on Environmental Impact Assessment as a principle of

environmental assessment, including strategic assessment, procedure. The legislator has clearly established that assessment of environmental problems should be initiated already at the moment when no full scientific data is available concerning possible impairment to the environment as a result of action planned. In case if there are reasonable doubts that the planned activity would have a negative impact on the environment, precautionary measures should be adopted and, if needed, the activity shall be prohibited. Exploration of precautionary measures in regard to the planning document means that strategic assessment shall be carried out before it is adopted. Article 4(3), (4) and (5) of the Law on Environmental Impact Assessment provide a list of those planning documents which do require strategic assessment. A strategic assessment includes drafting of environmental report, public involvement into deliberations on the environmental report and conducting of consultations, assessment of the environmental report and the results of deliberations when drafting the planning document and use during decision-making, as well as dissemination of information on the decision made. Environmental report determines, describes and assesses environmental impact of implementation of the respective planning document (as well as that of possible alternatives). According to the objective of the Law on Environmental Impact Assessment, the strategic assessment, which should be carried out before adoption of the final decision regarding approval of the planning document, should ensure that the information acquired during the assessment would facilitate the adoption of the planning document the implementation of which would prevent or diminish the negative impact on the environment. Therefore, first, the necessity to carry out a strategic assessment of planning documents is derived from the precautionary principle, which provides for assessment of negative impact before making the final decision. Second, strategic assessment is performed for planning document if it is provided by the legal acts on environmental impact assessment. Third, a strategic assessment shall be carried out taking into consideration the objective of drafting of the planning document. Non-performance or inadequate performance of a strategic assessment in cases when such assessment is an indispensable constituting part of the process of adoption of the planning document may qualify as manifest procedural defect. 21. Article 4(3) of the Law on Environmental Impact Assessment includes a requirement to carry out a strategic assessment for planning documents and amendments drafted by a local government related to use of the land, and for land use plans. Moreover, the Law emphasizes the necessity to carry out a strategic assessment for planning documents that can have a substantial impact on the Natura 2000 territory. According to Article 231(3) of the Law on Environmental Impact Assessment, the Cabinet of Ministers determines the planning documents that require a strategic assessment. Correspondingly, Article 2 of the Regulations No. 157 lists the planning documents of national, regional and local significance that require a strategic assessment. The requirement to carry out a strategic assessment applies to the following planning documents of regional or local level: first, development strategies, plans and programmes of regional or local significance; second, policy planning documents of regional or local significance that determine planning of the entire field; third, land use planning of cities and regions; fourth, planning documents related to development of ports. According to paragraph 6 of the transitional provisions of the Law on Environmental Impact Assessment, a strategic assessment is not required for planning documents, drafting of which has been started before 21 July 2004, if the drafter of a planning

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document has informed the competent institution, i.e. the State Environment Bureau, of such planning document. However, in case if the competent authority, after having been informed, has made a decision regarding necessity of a strategic assessment by taking into account the criteria mentioned in Article 232 regarding necessity of a strategic assessment and stage of elaboration of a planning document, the strategic assessment is to be performed for the respective planning document. Drafting of the Land Use Plan was started in 2002. Therefore, the regulation included in the transitional provisions of the Law on Environmental Impact Assessment was to be applied to performing of a strategic assessment for Territorial planning. However, taking into account the fact that the State Environment Bureau, after having assessed the submitted information, on 1 November 2004 adopted the Decision No. 53-p “On Application of the Procedure of the Strategic Environmental Assessment to the 2006‑2018 Development Plan of the City of Riga”, strategic assessment was to be carried out for the Land Use Plan in general, as well as for the Impugned Plan. The Constitutional Court should not re-consider the conclusions made by the State Environment Bureau regarding the necessity to carry out a strategic assessment for the land use plan. Taking into account the fact that in certain cases a strategic assessment is an indispensable part of land use planning, legitimacy of a land use plan can be endangered if a strategic assessment is carried out for a land use plan or a part thereof in non-conformity with the order provided by law. Article 24(3) of the Law on Environmental Impact Assessment establishes, namely, that the initiator shall be liable for the completeness and authenticity of submitted information, as well as for the preparation of a strategic assessment in accordance with the requirements of this law and other legal acts, is to be observed depending on the fact whether such liability follows directly form the Law or from the norms included in the transitional provisions. Consequently, a strategic assessment was to be performed for both, the Land Use Plan in general and the Impugned Plan in particular, according to the procedure established in law, despite that the drafting of the planning document commenced in 2002. 22. The basic provisions regarding the procedure of development, discussion and monitoring of a strategic assessment is regulated in Article 235 of the Law on Environment Impact Assessment. The fundamental provisions of strategic assessment established in this article should be interpreted in conjunction with the objective of the procedure of strategic assessment established in the law, namely, by observing the precautionary principle, to favour sustainable development, as well as ensuring the integration of environment issues into planning documents, prevention or minimization of the negative impact on the environment, ensuring of information to the society on the possible impact of implementation of the planning document and involvement the society in decisionmaking. The principal document that is drafted during the course of strategic assessment is an environmental report. It can be drafted as a part of the planning document, or as document, which establishes, describes and assesses impact on the environment when the planning document, as well as possible alternatives, are implemented by taking into account objectives and intended form of mode of use of the land. The information and the details which should be included in an environmental report are determined by Articles 234 and 235 of the Law on Environmental Impact Assessment. An environmental report should include information that could be provided

by the drafter of the report, taking into account the level of knowledge and methods of assessment, the contents of a planning document, place in the hierarchy of planning documents and stage of drafting and degree of detail, up to which it is useful to assess the environmental impact at the respective stage of planning in order to avoid duplication of assessment. If a planning document is hierarchically related to any other planning document and in order to avoid duplication of information, the only information to be included in the environmental report is the information which is necessary at the respective stage of planning, as well as information, which is acquired in the previous planning stages, is to be used. A more detailed regulation regarding the information that is to be included in an environmental report is established in Article 4 of Regulations no. 157 “Information to be Included in the Environmental Report”. Taking into account the fact that the drafter of a strategic assessment is responsible for carrying it out, it should be established whether the Riga City Council has worked on the Environmental Report according to the requirements of Articles 234 and 235 of the Law “On Environmental Impact Assessment”. 23. The State Environment Bureau is the institution authorised by the legislator to provide an opinion regarding an environmental report according to Article 235(6) of the Law on Environmental Impact Assessment. It should assess compliance of an environmental report with the requirements established by law, as well as provide for the justification of the chosen solution. The State Environment Bureau drafted the opinion regarding the Environmental Report (including the Impugned Plan) in general on 16 December 2005. The Bureau, when ex officio assessing compliance of the submitted Environmental Report with the requirements provided by law and reasoning of the solutions proposed, has established that the chapter “Impact of the Impugned Plan on Development of the Territory and the Environment” of the Environmental Report includes “a short scenario of development for the Freeport of Riga, and possible impact on the environment of their implementation is assessed, however the planning document under consideration defines only the territory occupied by the Freeport of Riga but it does not show its internal functional structure” (see the case materials, vol. 3, p. 42). It is concluded in the opinion of the Bureau that inter alia “the Environmental Report does not include thorough analysis of the possible impact on the city environment caused by the development activities and intensification of activities of the Freeport of Riga, including change of quality of air, solutions for amelioration of transport infrastructure to ensure functioning of the port, as well as possible environmental impact of implementation of these solutions, protection of and access to the cultural monument “Komētforts” and other issues related to development of the Port”. Having assessed possible impact of the Development Plan on specially protected territories and the territories included in the Natura 2000 network, the Bureau has also established that “several solutions included in the Development Plan may have an impact on ecologic functions of the Natura 2000 territories”. When assessing possible impact on specially protected territories, the Bureau has concluded that “implementation of certain solutions may considerably and negatively influence sites of specially protected breeds (see the case materials, vol. 3, pp. 50‑51). However, the Bureau also expresses the following opinion: “taking into account the fact that the State Environment Bureau has adopted a decision to apply of the procedure of strategic environmental impact assessment for the Development Plan [Programme] of the Freeport of Riga, these and other issues are to be dealt with in the Development

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Plan [Programme] of the Freeport of Riga and their impact on the environment is to be assessed in the process of strategic environmental impact assessment” (see the case materials, vol. 3, pp. 50‑51). The Bureau indicates that a strategic assessment is applied to the Programme of the Freeport of Riga, according to the State Environment Bureau decision No. 2 of 10 August 2004. Its task would be to assess of impact of internal solutions of development of the port on the environment and to develop measures diminishing negative impact on the environment Thus, the Bureau has acknowledged that the information included in the Environmental Report regarding possible impact of implementation of the Impugned Plan on the environment is incomplete. 23.1. If an environmental report does not comply with the requirements of law, and the preferred solution has a substantial impact on public health and the environment or it is not sufficiently substantiated, as well as in cases when the information to the society and public consultation is not ensured or the opinions and recommendations received have not been assessed, the State Environment Bureau is obliged, according to Article 235(7) of the Law On Environmental Impact Assessment, to send the environmental report back to the drafter for revision by indicating the defects to be eliminated or requesting to ensure information of the society and public consultation. The State Environment Bureau, disregarding violations established in the concluding part of its opinion, did not send the Environmental Report back to the drafter for revision and concluded that the Environmental Report in general is prepared in accordance with the requirements of Article 8 of the Regulations no. 157, and noted that a more detailed assessment must be performed in the framework of the Development Programme of the Freeport of Riga. In the recommendation part of the opinion it is noted that in order to avoid collision between the Land Use Plan and the Development Programme of the Freeport of Riga, the Bureau recommends to assess a range of issues when drafting an Environmental Report for the Development Programme of the Freeport of Riga. First, the Development Programme of the Freeport of Riga and the Environmental Report should include assessment of the impact of Port’s activities on territories of the Riga City adjacent to the Port, including the Natura 2000 territories. Second, the Development Programme of the Freeport of Riga, in addition to what is established in the Riga City Development Plan, should also include recommendations on construction of new transport main roads and other solutions that ensure compliance with the level or air quality, noise and vibration, as well as prevention or diminishing of risks of accidents in the territory of the Riga City as established by legal acts. Third, solutions for ensuring of protection and access to the cultural monument “Komētforts” should also be included in the Development Programme of the Freeport of Riga. Fourth, after drafting and adoption of the Development Programme of the Freeport of Riga, the necessity to make amendments to the Land Use plan of the Riga City shall be assessed (see the case materials, vol. 3, p. 55). The State Environment Bureau justifies its decision on considerations of reasonableness. Namely, since the 1995 Development Plan is drafted for the time period from 1995 until 2005, upon the expiration of the “validity” of this plan, a new land use plan is necessary. Taking into account that immediate prevention of all defects was impossible, the Bureau considered that it is more useful to deal with the defects established in the opinion within a reasonable time after the adoption of the Land Use Plan. The Constitutional Court recognizes that this argument has no legal grounds, because it is in conflict not only with the precautionary principle (see para. 20 of this judgment), but also with legal acts on the land use planning. According to Article

2 of the Regulations no. 883, the local government’s land use plan sets the planned (authorised) zoning and respective restrictions on the use within long-term perspective for 12 years. Article 44 of the Regulations no. 883 provides that land use plan is declared void with the decision on adoption of the new land use plan. The provision regarding the planning perspective for 12 years is related to the planning period, i.e., the period defined for implementation of the development perspective accepted by land use plan, at the end of which a local government has an obligation, by the principles of continuity and succession, to draft a new vision of development and to consolidate it in a new land use plan. Therefore, the basis for declaring the land use plan null and void is not the end of the planning period of 12 years, but a decision of the local council (board) of a local government on adoption of a new land use plan. This is also borne out by the Decision No. 749 of 20 December 2005 by the Riga City Council “Regarding Approval of the Riga Land Use Plan 2006‑2018”. In Paragraph 2 of the previously mentioned Decision the Decision No. 2819 of 12 December 1995 by the Riga City Council “On Approval of the Riga Development Plan 1995‑2005 and Approval of the Riga City Building Regulations” has been declared null and void. Therefore, the 1995 Riga City Land Use Plan, which was drafted for the period from 1995‑2005, has not become invalid on 31 December 2005, but on the date when the new Land Use Plan became effective. Moreover, the State Environment Bureau justifies its opinion on the argument that law provides a mandatory requirement to perform strategic assessment for the Development Programme of the Freeport of Riga. Therefore, it is not reasonable “to transfer the entire burden to hierarchically higher document”, i.e., to the Land Use Plan. The defects established during the process of strategic assessment in the Land Use Plan can be eliminated when working on a Development Programme for the Freeport of Riga. However, the representative of the State Environment Bureau noted that “it would be very sad” if any activities would be undertaken in the territory of the Freeport of Riga that, according to the previous plan, was not zoned as industry territory, before strategic assessment for the Development Programme of the Freeport of Riga is made. 23.2. The State Environment Bureau is the competent authority authorized to monitor the process of performing of a strategic assessment. When establishing noncompliance with the requirements of legal acts, the Bureau should act according to the procedures established by law. The Bureau, i.e. monitoring institution should not overstep its competence by referring to considerations of reasonable application of a law, the right to which have not been attributed to the Bureau by normative acts adopted neither by the legislator nor the executive. According to the rule of law principle, public administration is bound by law and justice. It acts within the limits of competence established by law. The public administration may use its powers only in accordance with objective and purpose of the authorization. Moreover, the act of a public administrative authority should ensure good governance and the most effective performance of its functions. Moreover, whether the defects of both the strategic assessment procedure and land use plan drafting procedure are eliminated in a timely manner, depends on how effectively and diligently public administration performs the functions entrusted to it by the law. The conclusions and recommendations in the opinion of the Bureau violate one of the fundamental principles of environmental impact assessment – the precautionary principle, which requires to perform the environmental impact assessment at the earliest possible stage of planning, sketch work and decision-making, rather than after the planning document has entered into force.

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Therefore, the State Environment Bureau violated Article 235(7) of the Law on Environmental Impact Assessment by identifying the defects to be eliminated while simultaneously deciding that the Environmental Report should not be given back for revision. 23.3. Recommendations included in the opinion of the State Environment Bureau are transposed into the Informative Report prepared by the Riga City Council on compliance with instructions for the Environmental Report of the Riga Development Plan 2006‑2018 (hereinafter – Informative Report) published on the internet home page of the Riga City Council (see http://www.rdpad.lv/uploads/rpap/RAP%20informativais %20pazinjoms.pdf ). According to Article 27 of the Regulations no. 157, the Informative Report should include information on how the Environmental Report and the respective opinion of the Bureau was observed in the planning document and how the assessment provided in Article 235(4) of the Law on Environmental Impact Assessment was performed when adopting the planning document. In the Informative Report the Riga City Council notes that “it was impossible to transpose all recommendations mentioned in the opinion of the Bureau into the Riga Development Plan 2006‑2018. However, the draft decision of the Riga City Council is prepared, which provides for an action plan for compliance with the recommendations of the State Environment Bureau during the process of implementation of the Riga Land Use Plan”. It is also proposed that the Authority of the Freeport of Riga should prepare a development programme of the Freeport of Riga with additional conditions. Namely, the Development Programme of the Freeport of Riga and Environmental Report should include assessment of the impact of Port activities on the adjacent territories in the Riga City, as well as on the Natura 2000 territories and, if needed, to develop and to reconcile compensating measures according to the procedures established by law. It is also suggested to include solutions for the protection and access to the cultural monument “Komētforts” into the Development Programme of the Freeport of Riga (see http://www.rdpad.lv/uploads/rpap/RAP%20informativais %20 pazinjoms.pdf ). Having assessed the contents of the Informative Report, it can be established that the Riga City Council has delegated the solution of several defects established in the Environmental Report and the opinion of the Bureau to the Authority of the Freeport of Riga, as well as provided the need to solve several essential issues related to protection of the environment and preservation of the cultural heritage only after the Development Plan has become effective. Therefore, the drafter of the planning document and respectively the drafter of Environmental Report, as well as the State Environment Bureau admits that the information included in the Environmental Report is incomplete, and the strategic assessment of the Impugned Plan has been insufficient and not detailed enough, but at the same time the institutions permit that a more detailed strategic assessment of the territory of the Freeport of Riga is to be performed and the established defects eliminated when drafting the strategic assessment of the Development Programme of the Freeport of Riga. Thus, the Constitutional Court should establish whether the information that is necessary at the relevant stage of planning is included in the Environmental Report and whether obtaining of additional information is permissible within another planning document, in this case – strategic assessment of the Development Programme of the Freeport of Riga. Namely, the Court should establish whether such approach is allowed by Articles 234 and 235 of the Law on Environmental Impact Assessment.

24. According to Articles 234 and 235 of the Law on Environmental Impact it must be assessed whether the Impugned Plan and the Development Programme of the Freeport of Riga are hierarchically related documents and what are the objects and purposes of the drafting of these documents, in order to establish the degree of detail up to which it is useful to perform a strategic assessment at the respective stage of planning, as well as admissibility of delegation. 24.1. Riga Land Use Plan is on the lowest level in the hierarchy of land use plans (see the Land Use Planning Law, Article 5), which, by balancing different interests, provides for the planned (authorised) zoning and restrictions of use of the territory and serves as a basis for further development of the City and economic activities carried out therein. Land use plan of a local government, being an act of general application, grants the right to obtain a building permit and to implement specific projects. A land use plan serves as a basis for any actions with land, including construction, because any building initiative is firstly assessed as to its compliance with the Land Use plan of the local government. According to Articles 3 and 11 of the Construction Law, a building is allowed if it complies with the land use plan. Article 11 of the Construction Law provides that a local government may prohibit building or suggest adjustments, substantiating the decision with the legal provisions that do not allow such construction, as well as taking into account the results of the public consultation on the land use plan (detailed plan) and construction. The Development Programme of the Freeport of Riga provides for the economic exploitation of the Port’s territory. According to the Law on Ports, the Development Programme of the Freeport of Riga as a planning document is hierarchically subordinated to the Land Use Plan. This means that the programme is drafted only after the land use plan is adopted, and it should comply with the land use plan. The Authority of the Freeport of Riga in its capacity of a private law person, drafts a development programme for the Freeport of Riga according to the Development Strategy for the Ports of Latvia, the Riga Development Programme and the Land Use Plan already approved (see the Law on Ports, Article 7(3)(1)). 24.2 The procedure for adoption of a Land Use plan and its contents are stipulated in detail by both, the Land Use Planning Law and the Regulations no. 883. Moreover, other laws set additional requirements that should be observed when working on a Land Use plan of a local government. For instance, the requirement to perform a strategic assessment is provided in the Law on Environmental Impact Assessment and the Regulations no. 157. In addition, the Law on Specially Protected Nature Territories includes requirements that should be observed when preparing a land use plan. Moreover, upon ratification of the Treaty on Accession of Latvia to the European Union, the European Union law has become integral part of the Latvian legal system. Therefore, legal acts of the European Union and interpretation provided by case-law of the European Court of Justice should be taken into account when applying national law. The same applies to laws on land use planning and protection of the environment. The process of adoption of a land use plan ensures both, transparency and public involvement. Although binding regulations of local governments differ form the laws or regulations of the Cabinet of Ministers, since they are binding only in the administrative territory of a respective local government, a land use plan is an act of general application and thus can be contested at the Constitutional Court (see the judgment of the Constitutional Court of 21 December 2007 in the case no. 200712-03, para. 26).

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In case of drafting of development programme for the port, law does not provide specific procedural and substantive requirements. The LawoOn Ports solely requires that a development programme of a port must be approved by the Latvian Port Council. The development programme of a port as a planning document is binding on its author. The development programme of a port is to be taken into account also when assessing the conclusion of an agreement and the receipt of a permit in the Freeport of Riga. The right to conclude an agreement and to receive permission is granted to an enterprise (business entity) that is already founded or will be founded (a candidate is the founder) in the territory of the Freeport of Riga. Moreover, the profile of activities of the enterprise (business entity) and development perspective should comply with the Development Programme of the Freeport of Riga. Accordingly, the Development Programme of the Freeport of Riga in force (1996–2010) provides that “the Development Programme is a guiding document for assessing whether plans of project Petitioners and capital investors comply with development plans of the Riga City and the Port. This could promote decision-making on the use and development of certain sectors of the Port in the future and serve as an informative material for potential foreign investors about the potential for future development and conditions of the Freeport of Riga” (see the case materials, vol. 8, p. 5). Therefore, if the Impugned Plan establishes the planned (authorised) zoning of the Freeport of Riga, it can be defined more precisely only in the Land Use Plan, but not in the Development Programme of the Freeport of Riga. 24.3. Land use planning is an autonomous function of a local government. According to Article 14 of the Law on Local Governments, following the procedure established by law, local governments are obliged to draft, a development programme and a land use plan of the territory of a local government, to ensure implementation of the development programme of the territory and administrative monitoring of land use planning. This obligation of a local government is derived also from the Article 7(6) of the Land Use Planning Law, which sets the functions of a local government during drafting of a land use plan. Neither in the Land Use Planning Law, nor in the Law on Ports, nor in any other law, there is authorization granted to a local government to delegate its competence of land use planning to the port’s authority. In accordance with the Land Use Planning Law, the planned (authorised) use of the territory provided in the land use plan of a local government may be specified only with a detailed plan, which is drafted according to the procedure established in the Regulations no. 883. Article 6(5) of the Land Use Planning Law provides that in case if a land use plan of local government insufficiently defines the conditions for land use and construction on a specific piece of land, they should be determined in the detailed plan. A detailed plan is a land use plan for a part of administrative territory of a local government, which is prepared for the territory designated by the decision of the municipal council and which is approved after the local government’s land use plan has become effective, by observing the planned (authorised) zoning already set in the land use plan of the local government. The wording of Article 7 of the Land Use Planning Law currently in force and Article 7 of the Regulations No. 883 provides that a detailed plan is prepared in accordance with land use plan of local government, observing (by detailing and in greater precision) the planned (authorised) use and its limitations of the specific part of the territory. By means of a detailed plan, the regulation of the use and construction on the specific piece of a land can be made more detailed and precise, instead of amending the land use plan of a local government (see the judgment of the Constitutional Court

of 21 December 2007 in the case no. 2007-12-03, para. 25). Amendments or alterations to the planned (authorised) use of the territory can be introduced only by drafting amendments in land use plan according to the procedure set in law. Therefore, according to the laws on land use planning, there is no planning document of a lower rank, which could establish the planned (authorised) use of the territory. Thus, there are no legal basis to analyse the most fundamental development approaches of the territory of the Freeport of Riga in the Environmental Report, which is drafted for the Land Use Plan, while a more detailed environmental report is left for the stage when preparing a development programme for the port. The strategic assessment for the development programme of the port is to be performed by taking into account the assignment for its drafting, which differs from the purpose and objective of drafting the land use plan. The development programme of the port is not equivalent to a land use planning document, and the local government is not entitled to delegate its function of land use planning to the port’s authority. Therefore, the Environmental Report on the Impugned Plan should include such amount of information that allows a comprehensive assessment of the impact of the planned (authorised) zoning of the Freeport of Riga on the environment, including the impact on the territories in vicinity of the Freeport of Riga and the Natura 2000 territories. 24.4. Moreover, when drafting a Land Use plan, the permitted (authorised) use of the territory and restrictions should be established according to the level and mode of planning. Such request expressis verbis is derived from the definition of a land use plan included in Article 1 of the Land Use Planning Law. Article 6(7) of the Land Use Planning Law also provides that, when working on a Land Use plan of a lower level, the Land Use plan of a higher level in force shall be observed. According to the Regulations no. 883, in the land use plan the municipality must regulate the following issues: zoning of the territory; terms and conditions for construction and other exploitation of land, including requirements for land units and construction activities, as well as for amelioration of each part of the territory (i.e., each part having a different zoning regime); the boundaries of the planned administrative territory, towns and villages; the development of population structure, as well as other matters. During the process of preparation of the Land Use Plan and the Environmental Report the Ministry of the Environment noted that the Development Plan reveals the occupied territory of the Freeport of Riga, but it does not reveal its internal functional structure, and delegates to solve those issues to the Development Programme of the Freeport of Riga. Therefore, the performance of a strategic assessment of the Land Use Plan has become burdensome. The Constitutional Court agrees with the position of the Ministry of the Environment that the Impugned Plan does not specify internal functional structure of the territory of the Freeport of Riga, and thus work on an adequate strategic assessment corresponding to the requirements of the law is cumbersome. The Constitutional Court has already recognized that in the field of land use planning normative acts confer to a local government the considerable discretion. However, it is not unlimited. When planning the zoning, namely, how diverse the authorised use of the respective territory should be set, the discretionary power of a local government is restricted by both, the objectives of land use planning – to promote sustainable and balanced development, as well as the principles of land use planning – inter alia, the principle of diversity. According to that, the diversity of the nature, the cultural environment, human and material resources and economical activities should be taken

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into account when drafting the land use plan. This inter alia means that the authorised use must be adjusted so that the development potential of this territory is revealed in the best possible way by observing the diversity existing in the territory, as well as its peculiarities and specificity. The Constitutional Court has already recognized that the principle of rule of law, which is one of the fundamental principles of a state governed by the rule of law, inter alia provides that laws should be predictable and clear as well as sufficiently stable and constant. Therefore, legal regulation should be sufficiently stable so that an individual could make not only short-term decisions, but also develop long-term plans for the future as provided in law (see the judgment of the Constitutional Court of 25 October 2004 in the case no. 2004-03-01, para. 9.2). Thus, not only the drafting process of a Land Use Plan, but also its result – a Land Use plan, should be clear and understandable. The planned (authorised) use of the territory should be set in the Land Use Plan so that everyone could make longterm plans, including economic, for future, when knowing pre-determined and clearly predictable objective of the use of any territory of a local government. Moreover, the land use plan should define the planned (authorised) use of the territory in a manner which would allow to perform comprehensive strategic assessment of the land use plan. The Constitutional Court draws the attention of the Riga City Council to the fact that planning practice according to which a territory where there are different circumstances is designated for only one planned (authorised) zoning, while allowing for many modes of its use by thus considerably reducing predictability of use of the territory may come into conflict with both, the principles of land use planning as well as general principles of law. 24.5. The Constitutional Court emphasises that, in order to avoid duplication of information at a later stage, when an environmental report for the Development Programme of the Freeport of Riga is being prepared, it is admissible that the information which is acquired according to the procedure set by law when drafting a planning document of another level, in this case – the information that is collected when preparing the Environmental Report for the Land Use Plan – is used. Namely, in the context of the strategic assessment of the Development Plan of the Freeport of Riga, the relevant information obtained in the context of the strategic assessment of the Land Use Plan can be used. This procedure is also confirmed by Article 5 of the Directive 2001/42/EC, which provides that relevant information available on environmental effects of the plans and programmes and obtained at other levels of decision-making or through other Community legislation may be used for providing the information referred to in Annex I. The preliminary information that is to be summarised on basis of this article and is referred to in Annex I, includes inter alia the information regarding the current environmental situation and its possible development, assessment of the environment of respective territories if the environment of these territories can be substantially affected, objectives of environmental protection established at the international, Community or Member State level, as well as the information on possible significant impact on the environment taking into consideration such aspects as biological diversity, fauna, flora, cultural heritage and so forth, information on the measures intended for prevention, mitigation and compensation to the maximum extent possible of any substantially adverse impact on the environment of implementation of plan or programme, justification of the consideration of reasonable alternatives, description of preparation of assessment by recording all difficulties.

24.6. Therefore, by providing for performance of a more detailed strategic assessment for the Development Programme of the Freeport of Riga, neither the Riga City Council as the author of the Land Use Plan and the Environmental Report, nor the Bureau as the monitoring institution have taken into account the different objectives, content and rank in the hierarchy of planning documents of the Impugned Plan and the Development Programme of the Freeport of Riga. Moreover, they did not observe the fact that the Law does not confer the rights to a local government to delegate its competence of land use planning to the Freeport of Riga Administration. Since the information necessary for the respective planning level is not established, described and assessed in the Environmental Plan, the strategic assessment of the Impugned Plan has not been prepared according to the requirements of the Law on Environmental Impact Assessment. Therefore, the Strategic Assessment of the Impugned Plan is vitiated by a manifest procedural defect. IV 25. The Constitutional Court holds that performance of a comprehensive and detailed strategic assessment for the Impugned Plan is of a particular importance taking into account the fact that almost the entire territory of the Freeport of Riga is determined as a production territory (see the case materials, vol. 7). 25.1. In the territory of the Freeport of Riga, there are two specially protected nature territories – the Krēmeri Nature Reserve and the Mīlestības Island that belongs to the Piejūra Nature Park. The territory of the Freeport of Riga is adjacent to the Nature Reserve “Vecdaugava” and the Piejūra Nature Park, which includes the Daugavgrīva Nature Reserve and Mangaļsala. According to Article 5 of the Law on Specially Protected Nature Territories, nature parks are territories that represent the natural, cultural and historical values of a particular area, and that are suitable for recreation, education and the instruction of society. Organisation of recreation and economic activities in nature parks shall be carried out by ensuring the preservation of the natural, cultural and historical values located in such parks. Moreover, the Piejūra Nature Park located in both, the territory of the Freeport of Riga and the territories adjacent to it, is included in the Annex of the Law on Specially Protected Nature Territories and hence recognized as the Nature 2000 territory. In accordance with the Article 43(4) of the Law on Specially Protected Territories, for any activity envisaged or planning document (both, in the Natura 2000 territory and outside it), which may significantly affect the Natura 2000 territory an environmental impact assessment shall be performed. Therefore, any activity planned in the territory of the Freeport of Riga, which may significantly affect the Natura 2000 territory – the Piejūra Nature Park and the Vecdaugava Nature Reserve, requires performance of an environmental impact assessment according to the law. When performing a strategic assessment for the Land Use Plan, the possible adverse impact of the planned activities on the ecologic functions of the Natura 2000 territories, their integrity, as well as objective of formation of these territories had to be assessed. Therefore, in case when implementation of a planning document may significantly affect the Natura 2000 territory, the legislator has established a requirement to perform a strategic assessment irrespective of the rank of the planning document in the hierarchy of planning documents.

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25.2. The opinion of the State Environment Bureau, inter alia, evaluates the information collected in the Environmental Report and the possible impact of the planning document on the Natura 2000 territories. It is established in the opinion that “the objective of use of the entire territory of the Freeport of Riga is a production territory, which is in conflict with the restrictions established by law, because the territory of the Freeport of Riga includes a part of the Piejūra Nature Park, which is the Natura 2000 territory, the cultural monument “Komētforts” and several territories of residential area” (see the case materials, vol. 3, p. 43). The Bureau notes in the Concluding Part that “several solutions included in the Development plan may affect ecological functions of the Natura 2000 territories”, and that “implementation of several measures may have a substantive adverse impact on specially protected fields of breeds, including formation of a construction area in the Spilve area” (see the case materials, vol. 3, p. 51). The Bureau concludes that the Environmental Report insufficiently assesses possible impact of implementation of several initiatives included in the planning document on the Natura 2000 territories – the Piejūra Nature Park, the Vecdaugava Nature Reserve, and does not address the necessity to introduce compensatory measures according to the procedure set by law (see the case materials, vol. 3, p. 50). The Recommendations Part of the opinion indicates that: “The State Environment Bureau holds that before adoption of the planning documents, the Riga City Council has to assess the recommendations included in the Environmental Report [and] […] this opinion by taking into account the precautionary principle defined in the Law On Environmental Impact Assessment, which provides that solutions for environmental problems shall be identified prior to obtaining scientific data on anticipated adverse effects on the environment and in cases when there are reasonable doubts that the activity planned is likely to have adverse effects on the environment precautionary measures shall be taken or the planned activity should be prohibited. The Council shall also take into account provisions of the Law On Specially Protected Nature Territories which require that activity planned shall be allowed or planning document implemented only if it will not have adverse effects on the ecological functions, integrity of a nature protection areas of European significance (Natura 2000) and is not in conflict with the objectives of its designation and protection. In case if the planned activity or implementation of the planning document is likely to have negative implications on a nature protection area of European significance (Natura 2000), it can be implemented only in cases when it is the only solution and is necessary for meeting imperative reasons of overriding public interest, including those of a social or economic nature. When allowing implementation, all compensatory measures should be taken for the network of nature protection areas of European significance (Natura 2000)” (see the case materials, vol. 3, p. 53). 25.3. The fact that a Natura 2000 territory is located in the territory of the port or in its vicinity does not endanger the Natura 2000 territory in case if environmental and nature protection law is observed, including the requirements related to performance of a strategic assessment and an environmental impact report. As it is noted by the Ministry of Environment, in the territories of ports of other Member States of the European Union (the Netherlands, Germany), the Natura 2000 territories are also located and the requirements of the environmental and nature protection are successfully balanced with the activities of ports. The Freeport of Riga is not the only port in Latvia where the Natura 2000 territories are located. Natura 2000 territories are also located in the ports of Mērsrags and Salacgrīva (see the case materials, vol. 10. p. 6).

The Constitutional Court holds that, when drafting and adopting the Impugned Plan, the Riga City Council had to observe the requirements of the Law on Specially Protected Nature Territories which are prescribed in compliance with the regulation of the Directive 79/409/EEC and the Directive 92/43/EEC. According to the law and observing the precautionary principle, the Riga City Council had to assess whether implementation of the Land Use Plan may adversely affect ecologic functions and integrity of the Natura 2000 territories prior to approval of the plan, as well as the fact whether there would be any conflicts with the objectives of designation of these territories. Whereas, if such planned (authorised) zoning had to be established for a respective area irrespective its possible adverse impact on the Natura 2000 territories, it had to be assessed whether implementation of the planning document in the respective case is allowed by exceptions established by law and whether the procedure established is observed. 25.4. Taking into account the fact that Natura 2000 is designation of a site established by the European Union law and taken over in Latvia, Latvian law must be interpreted so as to avoid any conflicts with the obligations of Latvia towards the European Union, unless the fundamental principles incorporated in the Satversme are affected. Thus, also regarding the Natura 2000 territories the requirements of the directives transposed by Latvia and interpretation of the directives established in the case law of the European Court of Justice should be observed. According to the European Union law the obligations of Latvia regarding conservation of the environment are a part of common responsibility of the Member States, because the nature of Latvia is a part of common heritage of the entire European Community. Latvia has no legal basis to make alterations to these territories, because this would hinder reaching of the objectives established in the directives of the European Union (see case C-6/04 “Commission v United Kingdom” [2005] ECR I-9017, para. 25; case C-371/98 “The Queen v Secretary of State for the Environment, Transport and the Regions, ex parte First Corporate Shipping Ltd.” [2000] ECR I-9235, para. 23 and case C-67/99 “Commission v Ireland” [2001] ECR I-5757, para. 35). Moreover, the he Court of Justice of the European Communities, when interpreting Article 6 of the Directive 92/43/EEC, has stated in its case-law that land use plans before adoption should be subject to appropriate assessment of possible implications for the environment of the respective site in order to reduce any potential damage (see case C-6/04 “Commission v United Kingdom”, para. 54 and case C‑98/03 „Commission v. Germany” [2006] ECR I-53, paras. 39‑40). This assessment is to be performed for the plans that affect the Nature 2000 territories, as well as to land use plans that are adjacent to the Natura 2000 territories, that are located in a protected site or in its vicinity. If it is established that the plan may adversely affect these territories but alternative solutions are absent and the plan must be carried out for imperative reasons of overriding public interest, including those of economic nature, the Member State shall take compensatory measures necessary to ensure protection of the Natura 2000 territory and inform the Commission on compensatory measures taken (see Managing Natura 2000 Sites. The Provisions of Article 6 of the ‘Habitats’ Directive 92/43/EEC, Luxembourg: Office for Official publication of the European Communities, 2000, pp. 41‑50). The national court called on to ascertain the lawfulness of the plan shall determine the limits on the discretion of the competent national authorities. Limits on the discretion mean that competent national authorities may authorise a plan in case if they have appropriately assessed that it will not adversely affect the respective site

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(see case C-127/02 “Landelijke Vereniging tot Behoud van de Waddenzee, Nederlandse Vereniging tot Bescherming van Vogels v. Staatssecretaris van Landbouw, Natuurbeheer en Visserij” [2004] ECR I-745, para. 70). The Riga City Council has exceeded the limits of its discretion because, when adopting the Impugned Plan, has not assessed its effects on the Natura 2000 territories, and has not taken into account the fact that, when drafting the Development Programme for the Freeport of Riga, it will no longer be possible to carry out an appropriate assessment and take compensatory measures. Therefore, manifest procedural defect has taken place by granting authorisation to the Impugned Plan before the effects of its implementation on the Natura 2000 sites located in the respective territory and in its vicinity has been assessed. V 26. The Petitioner submits that as manifest procedural defect qualifies the fact that the Riga City Council when adopting the decision on the final version of the Land Use Plan on 5 December 2006 has amended the Land Use Plan without conducting public consultation on the new version of the Land Use Plan (see the case materials, vol. 1, p. 3). Thus the society has been deprived of its right to participate in the process of drafting of the Land Use Plan. The Riga City Council disagrees with the opinion of the Petitioner and submits that it has not only ensured participation of the society, but even facilitated public involvement in discussing different drafts of the Land Use Plan. 26.1. The principle of balancing of interests requires that during drafting of a Land Use plan, the interests of the state, planning regions and natural persons are balanced. As the Constitutional Court has already held, on basis of Article 115 of the Satversme and the provisions specifying its contents, the public has the right to obtain information regarding the environment and to participate in public consultations aiming at conservation of the quality of the environment. In turn, subjects of public law are obliged not only to promote and ensure public participation in the decision-making process related to protection of the environment, but also to assess views expressed during the public consultation process. During this process, the public administration must inform people about their rights and the possibilities to receive environmental information, as well as to participate in the decision-making procedures. The public consultation must serve two main objectives: first, to obtain information which facilitates the adoption of a motivated and just decision; second, to convince the public that the opinions expressed are being considered (see the judgment of the Constitutional Court of 14 February 2003 in the case no. 2002-14-04, para 3 of the motives part). Effective public participation in decision-making provides a possibility for the society to express and for the decision-maker to take into account the opinions and concerns related to drafting of a land use plan. Therefore, the public consultation ensures legitimacy of the plan and transparency of a planning process by facilitating awareness of the public on the environmental issues. In turn, opinions of the parties expressed during public consultation on a land use plan, as well as opinions submitted by public authorities, allow the local government as promoter of a planning process to opt for the most appropriate development strategy for a particular site. A local government, when ensuring public consulting in the land use planning process (Article 7(6) of the Land Use Planning Law), is obliged to act as an objective

and neutral institution, the task of which is to admit and to justly assess the views of all interested parties regarding the most appropriate and adequate way of development for a certain site, as well as to observe the requirements of laws on land use planning. The public participation in the preparation of a land use plan of a local government is set in detail in the Regulations no. 883. Public consultations on a land use plan of a local government and its amendments shall be organised in at least two stages. The first stage is organised upon commencing the preparation of a land use plan of local government. The second stage is organised after the first draft of the land use plan of local government is prepared (Article 3 of the Regulations no. 883). In accordance with the provisions of Article 411 of the Regulations no. 883, after adoption of the final version of the land use plan of the local government no amendments can be made to the planned zoning and its restrictions. If, however, the land use plan of local government is amended, the local government should ensure, according to Article 43 of these Regulations, that public and the institutions that have submitted their opinions regarding the final version of the land use plan, have a possibility to be informed about the final version of the plan. However, the decision-maker should not always follow the proposals or objections expressed by public. The public proposals should be carefully assessed, according to considerations of reasonableness. Appropriateness of recommendations, their necessity and conformity with the objectives of the specific plan shall be assessed. On the one hand, a local government is entitled to reject the opinion of an institution, individual or the public concerned by choosing another, a more appropriate result, which generally corresponds better to the original planning objective. However, on the other hand the rejection shall be sufficiently justified. Namely, when rejecting public proposals, the local government shall provide reasons for rejection (see the judgment of the Constitutional Court of 9 March 2004 in the case no. 2003-16-05, para. 5 of the motives part). 26.2. The Ministry of Regional Development and Local Government on 17 March 2006 when repeatedly submitting an opinion on Land Use Plan, already approved, emphasised that, when examining the Land Use Plan, it established several violations of the law during drafting procedure and contents of the Plan. The Ministry, in its opinion, emphasised in particular the need to ensure that repeated public consultation on the final version of the Land Use Plan (see the case materials, vol. 9, pp. 62‑63). However, the Constitutional Court did not find any proof, either in the case materials or in the submissions by the parties during the hearing and information provided by the invited persons that substantive amendments were made to the Impugned Plan after the adoption of the final version of the Land Use Plan on 15 November 2005 and that were not submitted to public consultation. Therefore, no manifest procedural defect is established in relation to the public consultation concerning the Impugned Plan. VI 27. The Petitioner submits that manifest defect is that no opinion on the final version of the Development Plan was received from the Public Administration of Cultural Heritage. In the opinion of the Administration on the second draft it has been noted that delimited boundaries of the sites of cultural heritage established in the draft Development Plan do not entirely correspond to the requirements of law. Moreover, the territory of the sites Komētforts and the Mangaļsala that are part of the state cultural monument No. 8538 “The complex of fortification buildings of the banks of Daugava entry” is decreased (see the case materials, vol. 1, pp. 14‑15).

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According to Article 3(2) of the Land Use Planning Law, during preparation of land use plan the principle of balancing of interests shall be observed. The principle is further defined in Article 13 of the Regulations no. 883, namely, a local government is under an obligation to request a statement of the conditions and opinions which are necessary for drafting a land use plan and its amendments from the authorities included in the article mentioned and in the terms of reference. The list of institutions is not exhaustive, but it includes the Regional Environment Administration, the Public Administration of Cultural Heritage, Administration of Specially Protected Nature Territories (if there is one) and a regional department of the State Land Service. If necessary, conditions and opinions from other institutions that are not mentioned in Article 13 of the Regulations no. 883 may be requested. Since it is impossible for a local government to have detailed knowledge in all fields of competence of the institutions mentioned in Article 13 of the Regulations no. 883, it is obliged to require conditions and opinions from the respective institutions. Therefore, the respective institutions shall be involved at least twice during drafting of a land use plan. Each of these institutions, according to its competence, collects the requirements that should be observed by the drafters of a land use plan of respective territory when working on plan or its amendments according to law of the respective sphere. The conditions received shall serve as the basis when working on the first draft of a land use plan or its amendments, and this version, on the basis of a decision of a local government, is submitted to the same institutions for an opinion. Although the opinions delivered by the institutions on drafting of the land use plan are not binding to the local government, they, according to Articles 41 and 69 of the Regulations no. 883, can serve as the basis for redrafting or rejecting of the draft of a Land Use plan, as well as for drafting of a new version according to the new terms of reference. Since opinions may affect the decision to be made, local government is obliged to receive conditions and opinions, at the same time all institutions mentioned in the terms of reference is under duty to provide such opinions. If this prescription is not observed, the full observance of principles of sustainable development and diversity established in the Land Use Planning Law cannot be ensured. 27.1. Monitoring of activities of local governments falls within the competence of the Cabinet of Ministers that does it via institutions of public administration. In the field of land use planning, monitoring of local governments is generally performed by the Ministry of Regional Development and Local Government (see the judgment of the Constitutional Court of 21 December 2007 in the case no. 2007-12-03, para. 26). The fact whether the Riga City Council has observed the principle of balancing of interests and obtained the conditions and opinions from the institutions indicated in Article 13 of the Regulations no. 883, was already assessed by the Ministry of Regional Development and Local Government that, according to Article 7(3)(1) of the Land Use Planning Law, methodologically leads, monitors and coordinates drafting of land use plans. On basis of Article 7(3)(1) of the Land Use Planning Law and Article 80.3 of the Regulations no. 883, the Ministry gave its opinion on compliance of the Development Plan with legal norms in force at the time of drafting. In its opinion, the Ministry included also assessment of the procedure and contents of the Land Use Plan (see the case materials, vol. 9, pp. 44‑59). The Ministry noted that, when examining the Land Use Plan, it was established that, according to the report on of drafting of the Land Use Plan, there were 11 opinions received from 25 state and local government institutions on its first draft, but 17 opinions – on the second draft. The opinions of several institutions noted the need to

make the Land Use Plan more precise or to amend it. For instance, the Lielrīga Regional Environment Administration in the Opinion no. 5-10/6483 of 10 November 2005 stated that the conditions are not observed. The Public Administration of Historical Heritage noted in its Opinion no. 2782 of 21 October 2005 that it is necessary to eliminate the defects detected in the Plan and to submit it repeatedly for an opinion. The Ministry, when noting that the above objections are addressed to some extent, stresses that no repeated opinion has been received from the Public Administration of Historical Heritage. The Ministry also notes that the documentation of the Land Use Plan does not contain attachments of the opinions from the Regional Administration of the Rural Support Service and the joint-stock company “Latvijas valsts meži” on the final version of the Plan. There is also not complete list of attachments of the documents recording the procedure of drafting of the Plan (see the case materials, vol. 9, p. 44). On basis of Article 7(3)(3) of the Land Use Planning Law and Article 46.1 of the Regulations no. 883, on 17 March 2006 the Ministry delivered opinion on the Land Use Plan already adopted. The Ministry noted that recommendations included in the opinion of 19 December 2005 were only partially accepted. The Ministry emphasised that an opinion of the Public Administration of Historical Heritage on the final draft of the Land Use Plan was not attached to the documentation of the Land Use Plan. Taking into account other deficiencies mentioned in the opinion, the Ministry, on basis of Article 7(3)(3) of the Land Use Planning Law, requested to repeal the Regulations no. 34, and to eliminate deficiencies established in the opinion and to ensure a repeated public consultation on the final version of the Land Use Plan, as well as to inform the institutions mentioned in Article 13 of the Regulations no. 883 on the possibility to get information on the final version of the Land Use Plan and to ensure them with a possibility to submit their repeated opinions and comments (see the case materials, vol. 9, pp. 62‑63). On 27 March 2006, the Ministry amended its opinion of 17 March 2006 emphasising the obligation to observe the requirements of the laws regulating Land Use planning. Simultaneously the Ministry, on basis on the significance of the Land Use Plan for development of the Riga City, did not require to recognise the Plan null and void, but noted that immediately the measures shall be taken to eliminate deficiencies of the Land Use Plan, as well as asked the Riga City Council to provide its opinion and proposals regarding legal solution of the situation as soon as possible (see the case materials, vol. 9, p. 63). During the hearing of the Court the Ministry could not indicate particular reasons why it had changed its opinion. 27.2. In the letter submitted to the Constitutional Court the Public Administration of Cultural Heritage holds that it has provided its opinion on the second version of the Land Use Plan. The final version of the Land Use Plan has not been submitted to the Administration for an opinion (see the case materials, vol. 9, p. 65). During hearing the representative of the Administration explained that the Administration has not provided its opinion because the Riga City Council has not submitted the materials needed for the assessment. The Constitutional Court emphasises that a local government, when working on a land use plan, should take into account the opinions provided by the respective competent authorities that include instructions on issues which should be considered during the process of drafting. It is also necessary to acknowledge that the objectives of public administration, including objectives of environmental protection, can be achieved most efficiently when institutions of public administration co-operate. Inter alia Chapter

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VII of the Public Administration Law also provides for cooperation as a process that assists the public administration institutions to perform their functions and tasks more efficiently. Defects of the procedure of drafting of the Land Use Plan can be recognized as manifest if the competent institutions could not provide their opinions because of action or omission of the drafter of a planning document. In case, if an opinion has not been provided because of the omission of the respective institution, it should be investigated whether the respective institution has acted against the principles of public administration. One of the most important assignments of a local government during the process of drafting of a land use plan is to ensure the accommodation of different interests by balancing different interests. Therefore, the fact whether the defects made during the process of territorial planning will be eliminated as soon as possible depends on cooperation between of the local government and institutions of the state administration as well as on effective and diligent performance of the functions entrusted to them by the law. When working on the Impugned Plan, the procedure of obtaining and evaluation of opinions requested by the Regulations no. 883 was not observed. In the case under examination, the opinion of the Public Administration of Cultural Heritage was important for the drafting and adoption of the Land Use Plan because, if this opinion would be observed another version of the final Land Use Plan would have been adopted. Moreover, the Administration was not able to provide its opinion due to omission of the Riga City Council. Due to the above-mentioned considerations, the procedural defect is manifest. VII 28. According to Article 31(11) of the Constitutional Court Law, the Court shall establish the date on which the disputed legal norm (act), in the case – the Impugned Plan, is declared null and void. Article 32(3) of the Constitutional Court Law provides that any legal norm (act) which the Constitutional Court has declared as incompatible with the legal norm of higher rank shall be considered invalid as of the date of publication of the judgment of the Constitutional Court, unless the Constitutional Court has ruled otherwise. In the respective case, the Petitioner claimed to invalidate the Impugned Plan as of the date of 4 January 2006 when the Plan became effective. When establishing the date when the Impugned Plan becomes invalid, the totality of the manifest procedural defects should be taken into account and the fact that procedural violations opposite to material violations are of such nature that concern the whole of the Impugned Plan, not part of it. One of the principles established by the Land Use Planning Law, namely, the principle of succession that allows to annul a local government land use plan only by providing that another land use plan is effective in the respective territory, should be observed (see the judgment of the Constitutional Court of 26 April 2007 in the case no. 2006-38-03, para. 14.1). When deciding on the date when the Impugned Plan becomes invalid, the Constitutional Court takes into account the fact that its task is to eliminate defects made during the process of drafting of the Plan as much as possible. Under the circumstances, it is possible only by declaring this Plan invalid as from the date it became effective. The Constitutional Court is authorised to regulate issues, which are vital so that new violations of the fundamental rights do not appear after declaring of

the Impugned Plan null and void and “withdrawing of particular norms from application” does not cause disorder in the legal regulation of the Freeport of Riga. Therefore, if it is possible and necessary, the Constitutional Court in the operative part of the Judgment may declare that previous planning is regaining its force, which have been replaced with the impugned act, which the Constitutional Court has recognised as incompatible with the legal norms of higher legal rank (see the judgment of the Constitutional Court of 16 December 2006 in the case no. 2005-12-0103, para. 25). Moreover, declaring the Impugned Plan as invalid from the date of its coming into force is necessary, taking into account the particular nature of a Land Use plan as a legal act, as well as for nonlegalization of possible unjustified activities of the local government performed on basis on this Plan. Insofar as reliance on a particular legal regulation of persons is concerned, the Constitutional Court has already established that the functioning of the principle of legitimate expectations depends on the fact whether the person’s reliance on the legal norm is legitimate, well-grounded and reasonable, in its turn, the legal regulation on its essence should be reasonably definite and constant, so that one could rely on it (see the judgment of the Constitutional Court of 19 March 2002 in the case no. 200112-01, para. 3.2 of the motives part and the judgment of 25 October 2004 in the case no. 2004-03-01, para. 9.2). In the respective case it has to be observed that the institution monitoring the process of land use planning, i.e., the Ministry of Regional Development and Local Government, has acknowledged non-compliance of the process of drafting and approval of the Impugned Plan with the requirements of law after it became effective. Therefore, the decisions made during the process of construction (e.g., terms of reference for planning and architecture, adoption of the construction plan and building permit) that are based on the Impugned Plan, are effective insofar as they comply with the previous Land Use plan, i.e. the 1995 Development Plan, in the part of the territory of the Freeport of Riga.

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The resolutive part On the basis of Articles 30‑32 of the Constitutional Court Law, the Constitutional Court decided: 1. To find that the part of the Riga City Land Use Plan 2006‑2018 related to the territory of the Freeport of Riga is incompatible with Article 115 of the Satversme of the Republic of Latvia and is invalid as from the date of its entry into force, i.e. 4 January 2006. 2. To declare that the Riga City Development Plan 1995‑2005 and the respective Riga City building regulations are valid within the boundaries of the Freeport of Riga, as established by the Regulations No. 690 of 22 August 2006 of the Cabinet of Ministers “Regulations on Delimiting the Boundaries of the Freeport of Riga”. The judgment is final and not subject to appeal. The judgment was announced in Riga on 17 January 2008.

The chairman of the hearing of the Court

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Separate opinion of judges of the Constitutional Court Kaspars Balodis and Viktors Skudra in the case no. 2007-11-03 Riga, 23 January 2008 “On the compliance of the part of Riga Land Use Plan 2006‑2018 covering the territory of the Freeport of Riga with Article 115 of the Satversme of the Republic of Latvia ”. On 17 January 2008 the Constitutional Court announced the judgment in the case no. 2007-11-03 “On the compliance of the Part of Riga Land Use Plan 2006‑2018 covering the territory of the Freeport of Riga with Article 115 of the Satversme of the Republic of Latvia” (hereinafter – the Judgment). The case had been initiated on the basis of the constitutional claim of the association “Coalition for Nature and Cultural Heritage Protection”. The Constitutional Court decided to declare the part of the Riga Land Use Plan 2006-2018 covering the territory of the Freeport of Riga to be incompatible with Article 115 of the Satversme of the Republic of Latvia and invalid as from its date of coming into force, i.e. 4 January 2006, as well as established that the Riga City Development Plan 1995-2005 and the respective Riga City building regulations established by the Regulation no. 690 of 22 August 2006 of the Cabinet of Ministers “Regulations on Delimiting the Boundaries of the Freeport of Riga” are valid within the boundaries of the Freeport of Riga. Unfortunately, we cannot agree with the resolutive part of the Judgment, as well as with many of the conclusions made in the Judgment, including concerning the interpretation of Article 115 of the Satversme and also of the Constitutional Court Law. We consider that in the Judgment the Constitutional Court has not carried out a sufficiently in-depth analysis of the actual essence of the rights enshrined by Article 115 of the Satversme; it has not sufficiently taken into account the principle of the unity of the Satversme and other values established by other articles of the Satversme; it has not sufficiently examined the factual circumstances of the case, as well as it has exceeded its jurisdiction when examining the case which in fact did not fall within its jurisdiction and when deciding on issues that are beyond the competence of the Constitutional Court. We hold that the part of the Riga Land Use Plan 2006–2018 covering the territory of the Freeport of Riga complies with Article 115 of the Satversme of the Republic of Latvia. In this separate opinion we will express our point of view only regarding the most important issues included in the Judgment that have lead to an erroneous decision. In this opinion we will use the same abbreviations as were used in the Judgment. 1. In the Judgment sufficient constitutional legal analysis of Article 115 of the Satversme has not been carried out. Namely, the limits of the fundamental rights enshrined in this article have not been staked and their place in the entire body of the Satversme has not been indicated. Legal norms of sub-constitutional level have been raised to the level of fundamental rights without sufficient reasoning by thus disrupting the equilibrium of the Satversme as a united document. 1.1. The case no. 2007-11-03 is the first case in the case-law of the Constitutional Court initiated on the basis of a constitutional claim in which the full composition of

the Court had to assess the compliance of impugned norm only with Article 115 of the Satversme (the case no. 2002-14-04 was initiated on the basis of an application of members of the Saeima regarding the compliance of a regulation of the Cabinet of Ministers with Article 111 and Article 115 of the Satversme, whilst the cases no. 200609-03 and no. 2007-12-03, though having been initiated on the basis constitutional claims, were examined by the Court composed of three judges). Consequently, the Constitutional Court had to provide an extended and thorough analysis of the content of Article 115 of the Satversme. Unfortunately, the Constitutional Court did not carry out such a detailed analysis, by confining itself in paragraph 10 of the Judgment to references to the above-mentioned cases, which concerned different legal aspects of the rights guaranteed by Article 115 of the Satversme. The Constitutional Court had concluded in these cases that “In Latvia, as in many other states the right to live in a benevolent environment has been declared to be a fundamental human right. In accordance with Article 115 of the Satversme the state shall protect this right by providing information about environmental conditions and by promoting the preservation and improvement of the environment. This norm of the Satversme first of all obliges the state to create and ensure an effective system of environmental protection. Secondly, it endows the individual with the right of obtaining information on the environment and co-operating in the process of adoption of decisions on environmental issues. The law “On Environmental Protection” specifies the right of a person to a qualitative living environment and the duty of the state institutions to guarantee it” ( judgment of the Constitutional Court of 14 February 2003 in the case no. 2002-14-04, para. 1 of the motives part). Both the abovementioned judgment of the Constitutional Court, as well as para. 10 of the Judgment use the notion that complies with Article 115 of the Satversme “the right to live in a benevolent environment”. Unfortunately, para. 12 of the Judgment and several other paragraphs sidestep this notion that is compatible with the Satversme by substituting it with the notions “the rights to a benevolent environment” (para. 11 of the Judgment) and finally “the right of a legal person to a benevolent environment” (para. 13.1 of the Judgment). It has been indicated in para. 11 of the Judgment: “Moreover, the responsibility of public authorities to create and ensure an effective system and environmental protection implies responsibility to take into account the interests of environmental protection in cases when policy planning documents or legal acts are drafted or adopted, as well as in the cases if legal acts adopted are applied and the objectives of the policy are implemented (see the judgment of the Constitutional Court of 21 December 2007 in the case no. 2007-12-03, para. 13). Therefore, Article 115 of the Satversme does not only confer a person the right to live in a benevolent environment, but it also obliges the public authorities, including local governments, to ensure implementation of these rights” (para. 11 of the Judgment). From this conclusion it remains unclear whether the right to a benevolent environment mentioned therein is the same right to live in a benevolent environment mentioned in para. 10 and the beginning of para. 11 of the Judgment or are these different rights. 1.2. The Satversme is a laconic document. “The Satversme Commission agreed on the fact that certain ideas shall be stated in the Satversme in a very particular way. If we do not find an article that provides what is the Saeima etc, then we still know how it is formed and we are aware of the rights of the Saeima from separate articles” (the transcripts of the Constitutional Assembly of Latvia, issue 14, p. 1309). Also when

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drafting Chapter 8 of the Satversme, the legislator has tried to preserve this style of the Satversme and has stated certain ideas in individual articles in a particular way. The word “to live” has not been included in Article 115 of the Satversme by accident. By including this word into the text of the Satversme, an important and precise opinion is expressed which should be taken into consideration and accentuated when interpreting this article. The word “to live” reflects a connection of the rights enshrined in Article 115 of the Satversme with other important basic rights, first of all with the right of a natural person to life. 1.3. Article 115 of the Satversme is constructed by including therein a participial clause. This participial clause is not verbosity of the legislator, either but it is included into the provision of the Satversme on purpose. Article 115 of the Satversme, like Article 92 of the Satversme, contains a restriction already in its text. As to Article 92 of the Satversme, the Constitutional Court has already concluded: “However, it does not mean that the person is guaranteed the right of adjudicating any issue important to it in a court. Article 92 of the Satversme guarantees that the person has the right of protecting only its “rights and lawful interests” in a fair court. Therefore, to ascertain whether the challenged norms are compatible with this article of the Satversme, one has first of all to establish whether the impugned norms relate to a persons’ rights and lawful interests” ( judgment of the Constitutional Court of 20 April 2003 in the case no. 2002-20-0103, para. 1 of the motives part). The constitutional legislator, at the level of fundamental rights, has established not all possible rights of a person and duties of the state that could be related with the right of a person to live in a benevolent environment, but the rights of a person and the duties of the state to a certain extent and with a certain structure. Namely, Article 115 of the Satversme protects the right of a person to live in a benevolent environment: 1) by providing information about environment conditions. 2) by ensuring the preservation of the environment, 3) by promoting improvement of the environment. The duty to provide information about the condition of the environment provided for in Article 115 of the Satversme is related to the right established in Article 100 of the Satversme to freely receive information. Unfortunately, in the Judgment the mutual relation and extent of these two fundamental rights established in the Satversme has not been examined. Such an examination would be important, particularly as to the aspect that the right established in Article 100 of the Satversme can be restricted according to the procedure established in Article 116 of the Satversme, whereas Article 115 is not mentioned in Article 116 of the Satversme. Positive duties of the State follow from Article 115, like from Article 110 and several other articles of the Satversme. First, the duty not only to ensure access of a person to information available to the state, but also to implement measures in order to provide persons, in certain cases, with information about the conditions of the environment, especially in the cases when life or health of persons is endangered. Second, the duty to carry out certain measures for preservation and improvement of the environment. The constitutional legal status was not applied to the above-mentioned duties of the State per se but it was applied insofar as they serve the rights of a person to live in a benevolent environment. However, when establishing what shall be regarded as “a benevolent environment”, “environment to be preserved” and “amelioration of the environment” in each particular situation, as well as when determining how intense and thorough this care should be, the state enjoys a wide margin of appreciation. It has been correctly indicated in the

Judgment that Article 115 of the Satversme does not provide for the right of a person to an unchanging environment. In order to fulfil the positive duties of the State included in Article 115 of the Satversme, the state needs to form and maintain an efficient environment protection system. However, norms issued in the framework of this system do not per se acquire a constitutionally legal status. Beginning with the judgment in the case no. 2002-14-04 a thesis has appeared in the case-law of the Constitutional Court that legislative acts give a more specific content to Article 115 of the Satversme and that the compliance of the impugned act with Article 115 of the Satversme was assessed by assessing its compliance with certain laws and regulations of the Cabinet of Ministers in the field of environment. Initially it was concluded that “The law “On the Environmental Protection” specifies the right of a person to a qualitative environment and the duty of the state institutions to ensure it ( judgment of the Constitutional Court of 14 February 2003 in the case no. 2002-14-04, para. 1 of the motives part). It was acknowledged in the Judgment that “the right to live in a benevolent environment and the respective obligation of the State to take care for conservation of the environment, as established in Article 115 of the Satversme, is specified in laws and other acts […]” (para. 12 of the Judgment). However, the case no. 2002-14-04 concerned “the Compliance of the decree of the Cabinet of Ministers of 8 August 2001 no. 401 “On the Location of the Hazardous Waste Incineration Facility in Olaine” with Articles 111 and 115 of the Satversme of the Republic of Latvia, Articles 5 and 6(1) to (3) of the Waste Management Law, Articles 3 and 11 of the Law “On the Environmental Impact Assessment”, Articles 14 and 17(1) of the Law on Pollution as well as Article 11 of the law “On Environmental Protection”. The “assessment test” created in this case may not be applied in the case of a constitutional claim. 1.4. Beginning with the judgment of the Constitutional Court of 30 August 2000, the Constitutional Court has constantly indicated that the objective of the legislator was not to oppose the norms included in the Satversme with the norms of international law; therefore they ought to be interpreted in accordance with the norms of international law binding for Latvia. The Constitutional Court has established expressis verbis in the above-mentioned judgment: “In case there is a doubt about the contents of the norms of human rights included in the Satversme, they should be as far as possible interpreted in compliance with the practice of the application of international norms of human rights. According to the obligations that Latvia has undertaken (Article 4 of the law “On the European Convention for Protection of Human Rights and Fundamental Freedoms of 4 November 1950 and its Protocols 1, 2, 4, 7 and 11”) the case-law of the European Court of Human Rights is mandatory when interpreting the norms of the Convention. This case-law should be used also when interpreting the respective norms of the Satversme” (see the judgment of the Constitutional Court of 30 August 2000 in the case no. 2000-03-01, para. 5 of the motives part). Namely, the Constitutional Court inter alia emphasized that the respective international obligations already existed at the moment of the adoption of Chapter 8 of the Satversme, therefore the Constitutional Court could presume that the constitutional legislator has taken them into account in the norms of Chapter 8 of the Satversme. However, the international liabilities that Latvia has undertaken by the Aarhus Convention did not exist at the moment of the adoption of Chapter 8 of the Satversme. Moreover, Chapter 8 of the Satversme was drafted before the adoption of the Aarhus Convention. Namely, the Saeima adopted Chapter 8 in the first reading already on 21

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May 1998, whereas the Aarhus Convention was adopted on 25 June 1998. Consequently, the “reading” of the liabilities that follow from the Aarhus Convention into Article 115 of the Satversme must be done with caution and only insofar as the letter and the spirit of this Article in fact demands and permits it. In addition, during the adoption of Chapter 8 of the Satversme in the Latvian legal doctrine there existed an opinion that “the right to a benevolent environment is not yet recognised as belonging to the “canon” of human rights, although there are many discussions about it. The problem is the unpredictable consequences of these rights, because individuals could block many economic projects. On the other hand, if such avant-garde rights would function in Latvia, this could later serve as an example for other countries” (Levits E. Piezīmes par Satversmes 8. nodaļu Cilvēka pamattiesības, Cilvēktiesību žurnāls, 1999, no. 9‑12, p. 37). 1.5. The preamble of the Aarhus Convention contains a reference to many important international documents which enshrine essential rights in the field of the environment and particular obligations of states in this field are provided. It follows from the structure of the preamble of the Aarhus Convention that it recognizes the participation of the society as an efficient tool for guaranteeing the rights to live in a benevolent environment. Scientists consider that paragraph 7 of the preamble is one of the most important ones; it unequivocally recognizes that: “every person has the right to live in an environment adequate to his or her health and well-being, and the duty, both individually and in association with others, to protect and improve the environment for the benefit of present and future generations.” One of the measures that implements this right and observes the duty to protect the environment is the specific rights guaranteed in the Convention (see: Stec S., Casey- Lefkowitz S., Jendroska J. The Aarhus Convention: An Implementation Guide. New York and Geneva, United Nations, 2000, p. 11). Namely, the Aarhus Convention indicates that the right to live in a benevolent environment is an already existing, pre-established right recognized by the states. Article 1 of the Aarhus Convention establishes its objective: “In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention”. Consequently, the rights established in the Aarhus Convention are not an objective in itself, but they only serve as means for implementation of the right to live in a benevolent environment. The rights established in the Aarhus Convention form a procedural framework for the abovementioned basic rights. However, they do not substitute the essence of the right to live in a benevolent environment, including the duty of the State to take care of the protection and improvement of the environment, and they should not be considered separately from the objective for which they were established. Article 115 of the Satversme does not protect these rights per se, bet only insofar as they are directed towards the protection of the values established in Article 115 of the Satversme. 1.6. “The Satversme is a cohesive whole and the legal norms incorporated into it are mutually closely connected. Each norm of the Satversme has its own specific place in the constitutional system The Constitutional Court has already indicated earlier that to establish the contents of specific norms more completely and more impartially, the norms ought to be interpreted in conjunction with other norms of the Satversme” (see the judgment of the Constitutional Court of 16 December 2005 in the case no. 2005-12-0103, para. 13). “The principle of the unity of the Satversme

forbids interpreting a certain constitutional norm in disjunction with other norms of the Satversme, because the Satversme as an undivided document influences the scope and contents of every specific norm. Therefore, the less discretion the Satversme leaves to the legislator, the stricter the Constitutional Court should control the exercise of this discretion, and vice versa: the more extensive the discretion of the legislator, the less the Constitutional Court should interfere in the exercise of this discretion” (see the judgment of the Constitutional Court of 8 November 2006 in the case no. 2006-04-01, para. 15.3). Article 115 of the Satversme leaves the legislator a broad discretion in the creation of an environment protection system. Intervention of the Constitutional Court in the exercise of this discretion is permissible only if the environment protection system would manifestly fail to comply with the obligations of the state that follow from Article 115 of the Satversme. Simultaneously, the Constitutional Court should also examine whether this system complies with the principle of the unity of the Satversme. Namely, whether other rights established in the Satversme have not been impermissibly restricted when creating this system. 1.7. It follows from the Judgment that in the case-law of the Constitutional Court one can already find clear criteria for assessing the compliance of a land use plan with Article 115 of the Satversme. This opinion is based on the conclusions made in the case-law of the Constitutional Court by quoting them separately from the context of the respective judgments. 1.7.1. The Judgment contains the following reference to the case-law of the Constitutional Court: “In order for a land use plan to be lawful, first, it should be drafted and adopted in compliance with the appropriate procedure, and, second, it should comply with the law (see the judgment of 9 March 2004 of the Constitutional Court in the case no. 2003-16-05, para. 4 of the motives part). A land use plan or a part of it has not been adopted according to the appropriate procedure if substantial violations have been committed during the land use planning process” (see para. 16 of the Judgment). The reference to this case as case-law of the Constitutional Court regarding the criteria for assessing land use plans in the context of Article 115 of the Satversme is not correct, because in the cited judgment the Constitutional Court was not assessing the compliance of a land use plan with Article 115 of the Satversme, but the decrees of the Minister of Regional Development and Local Government regarding several binding regulations of the Council of Jūrmala on detailed plans of certain territories. 1.7.2. The Judgment also contains the following reference to the previous caselaw of the Constitutional Court: “Several criteria indicate a substantial violation. First, a substantial violation of the land use planning process is a violation which results in a decision that differs from the one which would have been made if the procedure had been observed. Second, a substantial violation occurs in cases when the rights of the public participation are considerably disregarded during the process of land use planning. Third, a substantial violation should be found also as a result of violation of other principles of land use planning (see the judgment of the Constitutional Court of 26 April 2007 in the case no. 2006-38-03, para. 14)” (para. 16 of the judgment). When referring to this judgment, it has not been taken into consideration that the case no. 2006-38-03 was not initiated regarding a limitation of the fundamental rights enshrined in Article 115 of the Satversme but regarding a limitation of the fundamental rights guaranteed by Article 105 of the Satversme. The Constitutional Court in this case found that the petitioner’s right to property had been limited as a result of the

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impugned land use plan. In order to assess the compliance of the limitation of the property rights with certain criteria, it was assessed whether the limitation has been applied by a properly adopted law. The Constitutional Court found that, in order to comply with this criterion, a land use plan of a local government has to be elaborated according with the procedure established in the Spatial Planning Law and other external legislative acts, as well as it should be adopted and promulgated in accordance with the requirements of the law “On Local Governments” and the Spatial Planning Law. In this judgment, the Constitutional Court characterised the substantial violation as one of the elements to verify whether the rights guaranteed by Article 105 (not Article 115) of the Satversme have been limited. Consequently, the verification criteria established in the Judgment for assessing the compliance of the Impugned Plan with Article 115 of the Satversme lack a sufficient link with the essence of the rights enshrined in Article 115 of the Satversme. It can be concluded form the Judgment that the most important component of the fundamental rights guaranteed by Article 115 of the Satversme is unlimited rights of everyone to a land use plan adopted without substantial procedural violations. However, this conclusion that follows from the Judgment is manifestly contrary to the actual content of Article 115 of the Satversme. 2. In the case-law of the Constitutional Court there is no indication that in each judgment such procedural issues that are related with the limits of the claim or the rights of a petitioner to submit a claim must be assessed. This assessment is included in a judgment only if during the initiation, preparation or adjudication of the case doubts arise regarding the procedural aspects of the case. Though we fully agree to the fact that in the case under review it was necessary to assess the rights of the Petitioner to submit a constitutional claim to the Constitutional Court by, we do not agree to, according to our mind, the very incomplete and occasionally erroneous assessment of the procedural rights of the Petitioner that is contained in paras. 11 and 12 of the Judgment. 2.1. It follows from the Judgment that the right of a person to address the Constitutional Court in the field of the environment are indirectly established by the Aarhus Convention. We cannot agree to this point of view. The first sentence of Article 85 of the Satversme provides that “In Latvia, there shall be a Constitutional Court, which, within its jurisdiction as provided for by law, shall review cases concerning the compliance of laws with the Constitution, as well as other matters regarding which jurisdiction is conferred upon it by law.” The jurisdiction of the Constitutional Court, according to this article, can be established by the Constitutional Court Law or any other law of Latvia; however, it cannot be established by an international treaty. Not denying that the Aarhus Convention could be used as a subsidiary instrument for interpretation of certain norms of law, the situation in which this international document would substitute the norms of the Constitutional Court Law and would cancel the restrictions provided therein would not comply with Article 85 of the Satversme. Moreover, unlike, for instance, the European Convention on Human Rights, the text of which is formulated as the rights or specific persons, the text of the Aarhus Convention is formulated as duties of the parties, for example, “each party shall ensure that...”. Legal experts, too, consider that the Aarhus Convention, primarily establishes the obligations of the contracting parties (Member States of the Aarhus Convention)

and public institutions (government institutions and persons or institutions). Along with national government institutions, “public institution” may refer to regional economic integration organizations, such as the European Community; however this term cannot be distinctly related to the institutions that act in the capacity of a court or a legislator (see Stec S., Casey-Lefkowitz S., Jendroska J. The Aarhus Convention: An Implementation Guide. New York and Geneva, United Nations, 2000, p.5). Consequently, by ratifying the Aarhus Convention Latvia has undertaken to guarantee the rights of natural and legal persons, as well as of organizations that are mentioned in the Convention to address courts or other institutions provided for in the Convention; however, if no respective amendments have been made to legislative acts, the Aarhus Convention does not per se guarantee the right of a particular person to address a particular court, for instance, the Constitutional Court. Moreover, Article 9(2) of the Aarhus Convention provides that “Each Party shall, within the framework of its national legislation, ensure that members of the public concerned […] have access to a review procedure before a court of law and/or another independent and impartial body established by law, to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of Article 6 and, where so provided for under national law […]”. Consequently, the procedural issues regarding the fact whether and to what extent the specific case initiated on the basis of the constitutional claim of the Petitioner must be examined at the Constitutional Court must be decided in accordance with the requirements of the Constitutional Court Law. 2.2. The following opinion is expressed in the Judgment: “In order to establish whether the impugned legal act infringes the rights of a legal person to a benevolent environment, first of all the aims of activities of the legal person, which could be defined in its statutes, should be assessed. It is also indicated in Article 2 of the Aarhus Convention that “the public concerned” means the public affected or likely to be affected by, or having an interest in, the environmental decision-making. Consequently, such non-governmental organizations (legal persons under private law) the aim of activities of which is protection of the environment are to be regarded as the public concerned” (para. 13.1 of the Judgment). Such a scope of the assessment of the procedural rights of the Petitioner correlates with the judgment of the Constitutional Court of Slovenia of 21 December 1995 in the Case no. U-I-30/95, which is often mentioned in the legal science when analysing the rights of a person to address a constitutional court. In this judgment the Constitutional Court of Slovenia recognized the interest of the Slovenian Ecologist Society by referring to the Environment Protection Law. In the above-mentioned case, the compliance of a regional planning act with a law was assessed. Having established the non-compliance with the law, the Constitutional Court of Slovenia recognized the impugned act as invalid without assessing its compliance with constitutional norms (see http://www. odlocitive.us-rs.si). From the procedural point of view, such a construction complies with the legal system of Slovenia. First, it is provided in Article 160 of the Constitution of Slovenia that the Constitutional Court inter alia shall adjudicate compliance of normative acts with laws and the Constitution, and, second, the second sentence of Article 162(2) of the Constitution of Slovenia provides that „anyone who demonstrates legal interest may request the initiation of proceedings before the Constitutional Court”. Article 9(2) of the Aarhus Convention offers two alternative choices. It provides: “Each Party shall, within the framework of its national legislation, ensure that members

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of the public concerned (a) Having a sufficient interest or, alternatively, (b) Maintaining impairment of a right, where the administrative procedural law of a Party requires this as a precondition, have access to a review procedure before a court of law and/or another independent and impartial body established by law […]”. Namely, the Aarhus Convention has taken into consideration the different criteria that exist in the Member states. Unlike the procedure of the Constitutional Court of Slovenia, the Latvian law grants the right to address the Constitutional Court not to the persons who have a sufficient interest but in the case of a restriction of certain rights. It is not enough only to conclude that a person has an interest in order to establish that there exists a restriction of fundamental rights within the meaning of the procedure of the Constitutional Court. 2.3. When assessing whether and to what extent a case regarding the compliance of a particular act with legal norms of a higher legal force must be examined in the Constitutional Court pursuant to an application, the Constitutional Court has principally assessed the following criteria in its case-law until now: 1) whether the respective case, according to Article 16 of the Constitutional Court Law, can be examined in the Constitutional Court at all, namely: a) whether the case regarding the compliance of a specific impugned act may be examined by the Constitutional Court; b) whether the case regarding the compliance with a particular act may be examined in the Constitutional Court, namely, whether the act, compliance with which is disputed, is an act of a higher legal force if compared with the impugned act; 2) whether the applicant, according to Article 17 of the Constitutional Court Law, has the right to submit an application to the Constitutional Court; 3) whether there exist any specific requirements regarding the particular type of application. In the case of a constitutional claim, the compliance of the application with the requirement “in the case of a limitation of the fundamental rights” included in Article 17(1)(11) of the Constitutional Court Law, as well as with the requirements of Article 192 of the Constitutional Court Law is assessed. Namely, first it has been examined: a) whether in the constitutional claim there is an indication of specific fundamental rights enshrined in the Satversme; b) whether the submitter of the constitutional claim is a person who is entitled to the specific fundamental rights enshrined in the Satversme; c) whether the impugned provision affects the applicant, namely, whether it: - affects the submitter of the constitutional claim himself and directly; - affects the submitter of the constitutional claim at this moment, namely, the restriction exists at this moment or it is necessary to prevent it at this moment; - affects, i.e. causes or may cause unfavourable consequences for the submitter of the constitutional claim, d) dwhether the requirements of Article 192 of the Constitutional Court Law regarding the protection of the rights by general means of protection of rights; 4) whether the application complies with the requirements of Article 18 of the Constitutional Court Law.

3. Considering the above-mentioned aspects in relation to the conclusions made in the Judgment, we have come to the following conclusions: 3.1. We fully agree to the opinion that “the land use plan of a local government is an external legislative act, and it is binding on each natural and legal person, and serves as a legal basis for making specific decisions regarding development” and “it falls within the jurisdiction of the Constitutional Court to assess the compliance of the Impugned Plan with the Satversme” (para. 12.1 of the Judgment). We also agree to the position of the Constitutional Court that the Regulations No. 690 cannot be assessed in the framework of this case, as well as to the position that “the Constitutional Court should not re-consider the conclusions made by the State Environment Bureau regarding the necessity to carry out a strategic assessment for the land use plan” (para. 21 of the Judgment). It has been correctly indicated in the Judgment: “In specific cases the Constitutional Court may or even must go beyond the strict formulation of a claim in order to ensure effective protection of individual rights and enforcement of a judgment. However, assessment of compliance with the Satversme of such acts, which are not subject to review in the respective case, would be contrary to the procedural principles of the Constitutional Court (see the judgment of the Constitutional Court of 19 December 2007 in the case no. 2007-13-03, para. 6)” (para. 18 of the Judgment). Unfortunately, the above-mentioned conclusion has not been taken into account in para. 23.2 of the Judgment, wherein the activities of the State Environment Bureau have been assessed and recognized as non-compliant with the Article 235(7) of the law “On Environmental Impact Assessment”, namely, the fact that the Bureau, when drawing attention to the shortcomings to be eliminated, did not submit the environmental report for a revision. The case regarding the compliance of the activities of a state administration institution – the State Environment Bureau – with normative acts does not fall within the jurisdiction of the Constitutional Court. Such a case was not and could not have been initiated at the Constitutional Court. The Constitutional Court had no legal basis for recognising the activities of the State Environment Bureau as noncompliant with normative acts. 3.2. The case was initiated regarding the compliance of the Impugned Plan with Article 115 of the Satversme. However, in this case, it is mainly the compliance of the Impugned Plan with certain environmental laws, rather than with Article 115 of the Satversme, that is being assessed. Both the case on the compliance of the Impugned Plan with the Satversme and the case on the compliance of the Impugned Plan with a “ordinary” law fall within the jurisdiction of the Constitutional Court. However, it must be taken into consideration that Article 17(1)(11) of the Constitutional Court Law authorizes a person to submit an application only “in the case of restriction of the fundamental rights”. Pursuant to a constitutional claim the Constitutional Court could initiate and adjudicate a case only insofar as it concerns the Petitioner’s fundamental rights guaranteed by the Satversme and insofar as the application complied with the requirements provided by law. 3.3. The Constitutional Court, in the judgment of 26 April 2007 in the case no. 2006-38-03 has drawn attention to certain problematic aspects in cases on the compliance of land use plans with legal norms of a higher legal force. After this judgment, a discussion has started in the legal science of Latvia regarding the appropriateness of the procedure of the Constitutional Court for rights protection in cases when a municipal council adopts a land use plan that does not comply with

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legal norms. Attention is also drawn to the fact that access to the Constitutional Court is hampered by the need to substantiate that there has been a limitation of the fundamental rights guaranteed by the Satversme. Professor A. Endziņš indicates: “The present procedure of the Constitutional Court is not optimal for the examination of these cases when norms that are contested, according to the terminology used in the judgment, “resemble not normative legal acts, i.e. acts that comprise legal norms, but individual acts, i.e. acts of application of legal norms”. Namely, a person may defend its rights not in each case when a land use plan does not comply with laws, but only in cases when the fundamental rights established in the Satversme are limited. This causes additional difficulties for a person when preparing an application. Namely, a person, in the application, must substantiate not only the fact that a land use plan does not comply with the law, but also the fact that the fundamental rights established in the Satversme have been violated. Hence there appears a question whether such requirements do not establish a certain limitation of the fundamental right of a person to a fair court” [Endziņš A. Kā vērtēt jaunāko Satversmes tiesas praksi. Jurista Vārds, 09.10.2007., no. 41(494)]. However, this discussion does not mean that the Constitutional Court could ignore the requirements of the Constitutional Court Law. In two cases when the Constitutional Court has had to decide on controversial issues regarding its jurisdiction, it has recognized that “one of the fundamental principles of a democratic state is the principle of separation of powers, from which follows the control of the judicial power over the legislative and executive power. No legal norm or activity of the executive power may remain outside the control of the judicial power, if it endangers some interests of an individual” [the judgment of the Constitutional Court of 9 July 1999 in the case no. 04-03(99) and the judgment of 22 February 2002 in the case no. 2001-06-03, para. 1.2 of the motives part]. However, unlike the abovementioned judgments where the considered impugned acts did not fall within the jurisdiction of any court, the compliance of the Impugned Plan with a “ordinary” law can be adjudicated in the Constitutional Court if the application is submitted by, for instance, the Ombudsman or the Prosecutor General. 3.4. Article 17(1)(11) of the Constitutional Court Law provides that “a person whose fundamental rights established by the Satversme have been restricted has the right to submit an application to the Constitutional Court”. The applicant is a person within the meaning of this article. However, Article 192(1) of the Constitutional Court Law allows submitting a constitutional claim only to a person who considers that their fundamental rights established in the Satversme have been restricted. Article 192(6)(1) also requires the petitioner to substantiate the allegation that it is his fundamental rights that have been restricted. It has been indicated in the legal science that “a constitutional claim may only be used for the protection of fundamental rights (of both, natural and legal persons). If a person wants to act on behalf of any other person then in such cases the respective representation norms must be observed” (Rodiņa A. Konstitucionālā sūdzība: teorija un prakse Latvijā. Tiesību harmonizācija Baltijas jūras reģionā 20.-21. gadsimta mijā. Rīga, 2006, p. 491). In order to establish whether the particular case must be examined on the basis of the constitutional claim of the Petitioner, it is necessary to determine whether the Petitioner is “everyone” for the purpose of Article 115 of the Satversme and “any person” for the purpose of Article 192 of the Constitutional Court Law. Namely,

whether the Petitioner has submitted a constitutional claim in order to protect her fundamental rights. That is, whether the particular legal person enjoys the rights to live in a benevolent environment. In the Judgment, by imprecisely referring to para. 1 of the motives part of the judgment of the Constitutional Court of 3 April 2001 in the case no. 2000-07-0409, it has been indicated: “The Constitutional Court has declared that a legal person under private law has the right to address the Constitutional Court, and the Court has acknowledged that the rights, freedoms and obligations of the Satversme are applicable to legal persons insofar as they can be by their very nature applied to legal persons. Namely, as far as the nature of these rights, freedoms and obligations allows to use them not only by an individual but also by legal person (see the judgment of 3 April 2001 by the Constitutional Court in the case no. 2000-07-0409, para 1 of the motives part)” (para. 12.2. of the Judgment). A deceptive impression follows from para. 12.2 of the Judgment that there are pre-established criteria in the case-law of the Constitutional Court, and that this caselaw has already examined all the cases when legal persons are entitled to implement their fundamental rights established in the Satversme, including the fundamental right included in Article 115 of the Satversme. However, in the case mentioned in the Judgment, in the case no. 2000-07-0409, no such general conclusions have been made. The conclusion has been made only regarding the fundamental rights guaranteed by Article 91 of the Satversme. It follows from the Judgment that the Satversme provides for “the right of a legal person to a benevolent environment” (para. 13.3 of the Judgment). In the case-law of the Constitutional Court, the case-law of other European constitutional courts and the case-law of the European Court of Human Rights it has been established that certain fundamental rights (for instance, the right to property, the right to a fair court) are also enjoyed by legal persons. At the same time legal scientists indicate that legal persons do not enjoy those human rights that because of their nature cannot be applied to legal persons. This is the case with the right to life, the prohibition of torture and inhuman treatment, the right to liberty and security, the prohibition of capital punishment, the right to family life, marriage. In this respect the rights of the European Convention for Protection of Human Rights and Fundamental Freedoms by their nature are related to qualities that pertain only to living beings and that are not characteristic to legal persons (see: Grabenwarter C. Europäische Menschenrechtskonvention. Verlag C.H. Beck, München, Manz`sche Verlags- und Universitätsbuchhandlung, Wien, 2005, S. 102). The right to live in a benevolent environment is directed towards ensuring of the rights and the quality of life of a person as a physical being, promotion of welfare of persons and the possibility to exercise the fundamental rights of persons, including the right to life. These rights because of their nature cannot be enjoyed by legal persons. In the Judgment, the emphasis has been shifted from the actual legal subjects provided for in Article 115 of the Satversme to those persons who have an interest to achieve the implementation of these rights on behalf of other persons. The opinion that a legal person has the right to live in a benevolent environment could, for instance, lead to the absurd assumption that a commercial society has the right to an environment favourable for commercial activities, which is not and may not be the right established in Article 115 of the Satversme.

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A legal person does not have the right to live in a benevolent environment, as guaranteed by the Satversme. Consequently, the Petitioner does not enjoy the fundamental right established in Article 115 of the Satversme, and may not submit a constitutional claim in the case of a restriction of this right. 3.4.1. Still, this conclusion does not mean that we would consider initiation of this case as non-compliant with the norms of the Constitutional Court Law. When initiating a case, the panel has to take into consideration the principle that all doubts shall be interpreted in favour of the initiation of a case. “In the case of doubt, a case shall be initiated by verifying, at the panel level, only whether the application contains a sufficient legal justification for the possibility that things stand like the submitter of the application thinks they do. The controversial procedural issue should be settled by the Constitutional Court in a judgment.” [Endziņš A. Kā vērtēt jaunāko Satversmes tiesas praksi. Jurista Vārds, 09.10.2007., no. 41(494)]. 3.4.2. Examination of the case was also possible on the basis of the particular application, however not in relation to the possible restriction of the fundamental rights of a legal person, but in relation with that of a particular natural person – the director of the association “Coalition for Nature and Cultural Heritage Protection”, Sandra Jakušonoka. The case materials indicate that she was in correspondence, regarding the Impugned Plan, as the President of the society “Coalition for Nature and Cultural Heritage Protection”, as the director of the Riga bureau of the Latvian Green Movement (Latvijas Zaļā kustība), and also as a natural person (case materials, vol. 1, p. 48). Her speech at the hearing of the Constitutional Court also attested that she regards the Impugned Plan as a restriction of the fundamental rights of a legal person, as well as that of her own fundamental rights. 3.4.3. Not denying that protection of the rights established in Article 115 of the Satversme at the Constitutional Court would be more effective if, when submitting a constitutional claim regarding a restriction of the basic rights established therein, the requirement regarding a restriction of the basic rights of the applicant [itself] would not apply to organizations that comply with the criteria listed in the Aarhus Convention, we consider that the Constitutional Court in the Judgment has in fact examined, by disregarding the procedure established by law, a case regarding the compliance of the words “his own” of Article 192(1) and the words “the applicant” of Article 192(6)(1) of the Constitutional Court Law with the Aarhus Convention and has declared these words to be invalid as from the date of submitting of the application. Such actions violate the principle of separation of powers that follows from Article 1 of the Satversme, a well as the limits of the judicial power. Moreover, in the Judgment the compliance of the above-mentioned norms with Article 92 of the Satversme has not been thoroughly examined. It has been indicated in para. 12.2 of the Judgment: “If a person, i.e., a private law person, a legal person governed by private law or an organization of these persons were denied the right to ask for review of compliance of a land use plan with Article 115 of the Satversme, the right of person to a fair trial that provided in Article 92 of the Satversme would be violated”. However, as it has been established in the case-law of the Constitutional Court, the fundamental rights guaranteed by Article 92 of the Satversme may be restricted, but this restriction must comply with certain criteria. 3.5. Irrespective of the fact whether the case would have been examined pursuant to a constitutional claim of S. Jakušonoka as a natural person or whether it would have been established that the above-mentioned words of Article 192 of the Constitutional

Court Law are invalid, the constitutional claim must substantiate the existence of a restriction of the specific fundamental rights. Neither in the case-law of the Constitutional Court, nor in the legal doctrine of Latvia can one find unambiguous criteria for establishing the existence of a restriction of fundamental rights. In the previous case-law of the Constitutional Court it has already been recognised that there exists a possibility of a future restriction, i.e. it can be a “potential” or a “possible” one. We agree to the opinion expressed in the Judgment that “breach of the right to live in a benevolent environment established in Article 115 of the Satversme, are to be interpreted broadly by including ongoing activities that may cause imminent threats to human health or the environment, as well as the future, proposed activities” (para. 13.1 of the Judgment). Nevertheless, the restriction must manifest itself as a diminishment or threat of those values that are protected by the fundamental rights enshrined in the Satversme. As to the rights to live in a benevolent environment, it means that it is possible to contest only an act that is directed towards debasement of the environmental quality (in the sense of a particular person), namely, the act must provide for an action or an inaction which would deteriorate the quality of the environment or as a result of which negative consequences are possible. The fact alone that a person “has participated in drafting and adoption of the impugned act, for instance, a land use plan, as far as legal acts provide for such possibility and it has been possible to implement it in practice” (para. 13.2 of the Judgment) does not and cannot confer this person a priori rights to contest the entire adopted act or any freely chosen norm of the adopted act. There are several moments to be noted that should have been assessed in the case under review, without claiming to present an exhaustive list of all the theoretically possible cases and in abstraction from above-mentioned procedural problems that pertain to the rights of a legal person to submit a constitutional claim only regarding a restriction of its own fundamental rights. The Impugned Plan includes a considerable territory. The situation in various places of the Impugned Plan differs. As to the contested norms, the Constitutional Court when initiating a case in other situations has often divided the claims put forward in applications without initiating a case or by terminating a case with regard to a part of the claim and by examining the case only with regard to that part of the claim in respect to which there exists a substantiation of a restriction of fundamental rights within the meaning of Article 192 of the Constitutional Court Law. Unfortunately, it has not been done in the Judgment. 3.5.1. The former land use plan provided for a bank in the sea, which was established in the plan as “a port territory”, as well as for such a territory in the dunes stretching from the left bank of the mouth of the Daugava river until the boundary of the port. The Impugned Plan, however, in this part provides for a greenery and a nature territory. Without denying that deterioration of the environment in certain cases or according to perception of certain individuals may take place also if territories where economic activities are planned are turned into greenery and nature territories, it must be emphasized that it was necessary to substantiate in the application why the Petitioner considers that in this territory the Impugned Plan restricts the right to live in a benevolent environment.

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The Petitioner has provided no reasons for the claim of a restriction of fundamental rights as to this territory, and the case of the Constitutional Court concerning the Impugned Plan had to be terminated regarding this part. The result provided by the Judgment, namely, the restoration of a plan that provides for a port territory in the sea in this part, does not comply with the fundamental rights established in Article 115 of the Satversme, as well as with the international liabilities of Latvia. 3.5.2. Neither is there any motivation regarding the restriction of fundamental rights concerning the part of the Impugned Plan that pertains to the right bank of the River Daugava near the mouth of the Mīlgrāvis Canal, which was established as “a territory with special provisions” in the former plan, and as a greenery and nature territory in the Impugned Plan. Also with regard to this part the case had to be terminated. 3.5.3. The case had to be terminated also regarding that part of the Impugned Plan where the former plan provided for a green zone territory, but the Impugned Plan for a greenery and nature territory. The Petitioner has not indicated what kind of a restriction was caused by such a change of the permitted (planned) use of the territory. 4. As it has been mentioned before, we do not agree with the interpretation of Article 115 of the Satversme included in the Judgment, as well as to the structure and the scope of the examination of the fundamental rights enshrined in this article that is used in the Judgment. We also disagree with many procedural aspects when examining a case initiated on the basis of a constitutional claim regarding the compliance of a legislative act with the rights established in Article 115 of the Satversme. Now we will express our position regarding certain conclusions made in the Judgment when assessing the compliance of the Impugned Plan with certain legislative acts, while leaving aside the above-mentioned conclusions concerning the Judgment in general. 5. It has been correctly indicated in the Judgment that land use planning is an autonomous function of a local government. The status of the Riga City Council complies with the criteria established in the European Charter of Local SelfGovernments and the rights established in this Charter fully apply to it. Article 4(4) of the Charter provides that “powers given to local authorities shall normally be full and exclusive. They may not be undermined or limited by another, central or regional, authority except as provided for by the law.” Article 8(3) of this Charter requires that the intervention of the controlling authority should be kept in proportion to the importance of the interests which it is intended to protect. According to the Regulations no. 883, the following shall be established in a land use plan of a local government: the planned (permitted) use of the territory; provisions for the use and building up of the territory, which include requirements for the land units and the building up thereof, as well as for utilities for each part of the territory (with a specified different planned (permitted) utilisation); the boundaries of the planned administrative territory, towns and villages; and the development of the structure of distribution of the population of the territory, as well as other issues. However, during the examination of the case it has not been confirmed that there exists any legislative act that would establish what kinds of use of the territory in particular ought to be provided for in a land use plan. Consequently, the local government, when implementing its autonomous function, may choose whether to provide separately for “nature territories” and “greenery” territories, or “greenery and

nature territories”, or to provide separately for “ports”, “light industry enterprises”, “general manufacturing enterprises” and other territories, or to provide for a unified “industry and manufacturing territories”. In general, we do not object to the following opinion expressed in the judgment: “When planning the zoning, namely, how diverse the authorised use of the respective territory should be set, the discretionary power of a local government is restricted by both, the objectives of land use planning – to promote sustainable and balanced development, as well as the principles of land use planning – inter alia, the principle of diversity. According to that, the diversity of the nature, the cultural environment, human and material resources and economical activities should be taken into account when drafting the land use plan. This inter alia means that the authorised use must be adjusted so that the development potential of this territory is revealed in the best possible way by observing the diversity existing in the territory, as well as its peculiarities and specificity.” (para. 24.4 of the Judgment). Without objecting the fact that the land use plan “should be clear and understandable” and that in ideal situation “the planned (authorised) use of the territory should be set in the Land Use Plan so that everyone could make long-term plans, including economic, for future” (para. 24.4 of the Judgment), we would like to draw the attention to an aspect that has not at all been taken into consideration in the Judgment. From the point of view of constitutional law, each land use plan should at first be regarded as restriction of the right of a person to an unencumbered development, property rights, as well as several other fundamental human rights. Both in the case-law of the Constitutional Court and that of the European Court of Human Rights, very strict criteria have been established with regards to restricting these rights. A situation when a local government would prohibit the owner to use his her property in a certain way only in order to ensure the possibility for persons to foresee the actions of other persons for a long time to come would not comply with the principle of proportionality. In a land use plan it should be taken into consideration that each restriction established for the owner must comply with the principle of equality in comparison with other owners who are in equal and comparable conditions. Even if a fundamental right or some person to an entirely clear and unchanging land use plan for at least 10 subsequent years would follow from Article 115 of the Satversme, this right may be restricted in order to ensure other persons’ rights established in the Satversme, by taking into account the principle of unity of the Satversme. Without denying that the right to property can be restricted in favour of the interests of the society and in order to ensure a diverse, foreseeable and benevolent environment that would be fit for development of different persons, it must be taken into account that such restrictions must be justified and necessary. It is impossible to return to the society, the development of which and the initiative of each individual was very restricted in the framework of an administratively commanding system. The choice how to use one’s property first of all must be left to the owner. The restrictions established by the local government must be reasonably balanced with the interests of the owner. When providing for different rules of land use in various territories where it is permissible, an environment that fosters initiative and development is created which is regarded as a benevolent environment by many inhabitants of Riga. The interest of foreseeability of the territory per se cannot be superior to the fundamental rights established in the Satversme. Moreover, it must be taken into consideration that no development of the city environment that would comply with the principles of a state governed by

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the rule of law was possible in Riga for more than half a century due to historical circumstances. When planning the territory in such city, the specific conditions that are created by the change of socio-economical and political system must be taken into consideration. When trying to find a balance between the different fundamental rights and legal principles, the Riga City Council as a directly elected municipal institution enjoys a broad margin of discretion. When establishing the structure of the Land Use Plan and providing for one kind of planned (permitted) use of the territory that includes many purposes of the use of the territory, the Riga City Council has acted within its margin of discretion. 6. The Freeport of Riga plays an important strategic role in the infrastructure of the state. Its free development and functioning is not a local or private-level interest. The Saeima has by law established a special legal regime for the Freeport of Riga in order to encourage the participation of Latvia in international trade, the attraction of investments, the development of production and services, as well as the creation of new working places. The Freeport of Riga is not a subject not only of private law but also of public law. Moreover, a port is fulfilling economic functions and is also used for the fulfilment of functions related with the security of the state. The Saeima has provided the Freeport of Riga as a subject of public law with a broad authority, including the authority that significantly impacts the rights of private persons in the territory of the port. Not only those persons who realize business activities in the territory of the port, but also entrepreneurs in different regions of the state who send or receive the goods necessary to ensure their business activities (and thus also to ensure working places and social welfare) through the port, and private persons who exercise their rights by means of the port are interested in an undisturbed functioning and development of the Freeport of Riga. Consequently, ensuring of the best possible functioning of the port shall be regarded as welfare of the society within the meaning of Article 116 of the Satversme. Ensuring the functioning and development of the port may serve as a legitimate aim to limit fundamental rights enshrined in the Satversme according to Article 116 of the Satversme. Constitutional courts of other states have also recognized the importance of functioning of objects related with ports for ensuring public welfare. The Court of Arbitration of Belgium (Constitutional Court of Belgium) in its judgment of 2 July 2003 in the case no. 94/2003 (see www.codices.coe.int) examined a case concerning a Government Decree of the Flemish Region, which, on the basis of important interests of the society provided for an extraordinary procedure for granting construction permit for the construction of “Deurganckdok”, an object related with the port. The Decree inter alia provided not only for a shortened and special procedure for granting construction permits, but also for the possibility that the government might grant a permit also in case if the permit does not comply with the land use plan. Construction works also concerned territories to which the Directive 79/409/EEC and the Directive 92/43/EEC apply, as well as the Natura 2000 territories. Disregarding the fact that the applicant had alleged a violation of many fundamental rights established in the Belgian Constitution and norms of the above-mentioned directive, the Court of Arbitration of Belgium concluded that the Parliament of the Flemish Region could provide for the right to the government to grant construction permits in the cases when it is required by important social and strategic interests. The applications were rejected. It is to be

noted that Article 23(3)(4) of the Belgium Constitution provides for the right to live in a healthy environment. The Constitutional Court of Austria recognized as non-compliant with the Constitution the norm of the Lower Austria Nature Protection Law (nature protection in accordance with the Constitution or Austria falls within the scope of the competence of the federal land) which did not ensure the interests of the society protected by the Constitution by prohibiting the construction of a railway tunnel. 7. Article 5 of the Land Use Planning Law provides for the levels of land use planning and documents by providing that land use planning shall be implemented at several levels by elaborating mutually coordinated land use plans. In an ideal situation a port as an important object of infrastructure would be provided in the land use plans of the national and regional level, and local government could guide themselves by them. Unfortunately, such an ideal situation currently does not exist in Latvia. However, this does not mean that by adopting the Impugned Plan the local government should not take into consideration the special status of the Freeport of Riga established by law. Article 1 of the Law on Freeport of Riga provides that the Freeport is a part of the territory of the Republic of Latvia, not that of the Riga City, by thus indirectly emphasizing the special character of the Freeport. Well-founded is the opinion of the representative of the Riga City Council that “the main purpose of the Land Use Plan is to establish the limits of operations of the port in the common scheme of the city infrastructure plan. The purpose of the development programme of the port, however, is to specify the land exploitation options authorised for the territory of the port thus, allowing businesses who are currently working or might be potentially working in the port to plan their operations and its development in the territory of the port”. The Cabinet of Ministers by means of its regulations may only denote such territory as the territory of the port, which would in future be developed for the needs of the port. Other way of the use of the territory could be determined by the local government only insofar as it is specifically provided for in legislative acts or insofar as it has been coordinated with the port. Consequently, as to the territory wherein the boundaries of the port had been established at the moment of the adoption of the Impugned Plan, the Riga City Council could not provide for any other way of use of the territory but industrial and manufacturing territory, apart from the territories of nature parks and protected areas established according to the procedures provided for by law. After the Regulations no. 690 were adopted, the freedom of discretion of the Riga City Council regarding the entire territory of the Impugned Plan is limited. 8. It has been indicated in the Judgment: “Neither in the Land Use Planning Law, nor in the Law on Ports, nor in any other law, there is authorization granted to a local government to delegate its competence of land use planning to the port’s authority. In accordance with the Land Use Planning Law, the planned (authorised) use of the territory provided in the land use plan of a local government may be specified only with a detailed plan, which is drafted according to the procedure established in the Regulations no. 883” (para. 24.3 of the Judgment). We have already indicated that, when selecting the structure of land use plan, including when providing for a certain planned (permitted) use that covers many

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purposes of use of the territory, the Riga City Council has acted within the framework of the discretion conferred to it. The Riga City Council has not delegated, neither had it to delegate the establishment of the internal functional structure of the territory occupied by the Freeport of Riga. The Riga City Council has fulfilled its function of land use planning by means of the Impugned Plan. When interpreting the Land Use Planning Law, the Law on Ports and the Law on Freeport of Riga jointly, it can be concluded that the legislator has, on the one hand, obligated exactly the Freeport of Riga to take the responsibility of development of the port territory but, on the other hand, has provided for duties that are related with additional procedures for elaboration of port programme, if compared to activities of ordinary subjects of private law. The procedure of adoption of a land use plan ensures both transparency and the participation of the society, and, from the point of view of an individual, it has an advantage over the programme of the port. However, one cannot identify any violation of the Satversme in the circumstance that the legislator has provided for a slightly different legal regulation for the territory and activities of the port, if compared with other territories of the local government. A fundamental right “to the most detailed possible land use plan” does not follow from Article 115 of the Satversme. And even if a similar fundamental right would follow from it, they could be restricted for the purpose of achieving the above-mentioned legitimate aim. A restriction must be regarded as proportionate, taking into consideration the benefit that the society receives from the functioning of the port as a strategically important object, as well as the fact that the possible restriction of the rights established in Article 115 of the Satversme is insignificant – the programme of the port also requires an environmental impact assessment. The fact that, according to the law, the programme of the port requires a mandatory environmental impact assessment, reduces (but does not eliminate) the possibility of the society to participate in this process. However, in this case, the representative of the Bureau has indicated that on 10 August 2004 the Decision no. 2 “On the Application of the Strategic Assessment Procedure to the Freeport of Riga Development Programme” was adopted. 9. In the case under review there is no dispute about the fact that the strategic environmental impact assessment has been carried out for the Impugned Plan. In this procedure the competent institution is granted by law a very broad authority to affect the quality of documents to be elaborated. The institution drafting the environmental impact assessment pursuant to Article 232(2) of the law “On Environmental Impact Assessment” has to receive consultations concerning the degree of specificity of an environment report. When examining the issues related to the strategic environmental impact assessment, the law grants the Bureau a broad freedom of action. According to the transitional provision of the above-mentioned draft law, the Bureau is authorized to decide “unilaterally” whether the strategic environmental impact assessment should be applied. According to Article 235(6) and (7) of the Law “On Environmental Impact Assessment”, the environment report shall be submitted within the term established by the Cabinet of Ministers, taking into consideration the compliance of the report with the requirements of legislative acts and the justification of the selected solution, as well as terms shall be established within which the developer of the planning document after its confirmation has to submit a report on direct or indirect impact on

the environment of the implementation of the planning document, including impact not foreseen by the environment report. If the environment report does not comply with the requirements of the legislative acts or the selected solution substantially impacts human health and the environment, and if it is not sufficiently justified or the public has not been informed and the environment report has not been discussed according to the procedure established by the Cabinet of Ministers, or if the received comments and suggestions have not been examined, the competent institution submits the environment report to its developer for revision, by indicating the shortcomings to be addressed or by ordering the developer to ensure that the public is informed and may discuss the report. At the hearing of the Court, the representative of the Bureau indicated that the strategic assessment of the Development Plan has been carried out according to the requirements of legislative acts. It has been established in para. 1 of the conclusions of the Resolution no. 24 of the State Environment Bureau of 16 December 2005 “On the Environmental Report of the Riga City Development Plan 2006–2018”: “1. The Environment Report for the strategic environmental impact assessment of the Riga Development Plan 2006-2018 includes environmental impact assessment of two mutually related planning documents – “Riga Development Programme 2006–2012” and “Riga Development Programme 2006–2018”, and no assessment has been singled out for each of the documents. Therefore this assessment can equally be applied to the Environment Report and both the above-mentioned planning documents. 2. The Environment Report has been elaborated in accordance with the requirements of para. 8 of the Cabinet of Ministers Regulation of 23 March 2004 no. 157 “Procedures for Strategic Environmental Impact Assessment”. It includes a well-structured and extensive information regarding the environmental conditions in the Riga City, it assesses the possible environmental impacts of implementation of the planning document, includes recommendations for elimination or reduction of the identified impact, as well as draws attention to contradictions and shortcomings of the Development Plan” (case materials, vol. 3, pp. 49‑50). Para. 4 of the conclusions provides for the time-limit for submission of monitoring (case materials, vol. 3 p. 56). Although, in the assessment certain shortcomings are indicated and recommendations provided, they cannot be assessed separately from other conclusions made in paras. 2 and 4. It fell within the freedom of action of the Bureau to examine whether the recommendations provided and shortcoming established are important enough to request a revision of the documents, or whether they can be regarded as sufficient. In the case under review, the Bureau adopted a decision within the framework of its freedom of action. Consequently, the allegations that no strategic environment impact assessment has been carried out for the Impugned Planned are ill-founded. The objective of the procedure of a strategic environmental impact assessment is not and cannot be “the most positive assessment possible”. The aim of this procedure first of all is acquisition of information, its assessment, development and finding of a solution. Providing of recommendation and establishment of shortcomings, even if the documents must not be revised, positively affects the respective planning document. If such indications were to be regarded as ones that are reducing the force of the assessment, a situation may arise that the Bureau would refrain from providing such recommendations. That would not comply with the object and purpose of a strategic environmental impact assessment.

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In the assessment, like in a judgment, there must be those arguments mentioned that the Bureau has emphasized when making a decision whether or not the document should be revised. The purpose of a strategic environmental impact assessment is not to hamper the further development of a project, if it is possible, during its elaboration, to find solutions that could prevent possible risks. According to Article 2 of the Law “On Environmental Impact Assessment”, its objective is to prevent or reduce the negative impact of the planned activities of natural or legal persons or that of the implementation of the planning documents on the environment. The implementation of a land use plan, which manifests itself through development and assessment of the following planning document, does not per se have a negative impact on the environment. The implementation of the Impugned Plan, insofar as it only leads to an elaboration of a port programme, does not by itself have a harmful effect on the environment. Therefore, in the assessment, the Bureau has correctly included arguments regarding the fact that the strategic environmental impact assessment should be applied to the programme of the port. Without denying the great importance of the precautionary principle in the environmental law, it must be emphasized that it shall be applied conjointly with other principles and that it provides for a certain freedom of action when interpreting reasonably at what moment it is possible to assess each planned project of activity. Moreover, under Article 3(6) of the law “On Environmental Impact Assessment” the assessment shall be carried out in accordance with not only the principle of sustainable development and the precautionary principle, but also the principle of assessment. The opinion of the Riga City Council that “the situation would be absurd if a project planned in the territory of the Freeport of Riga were subject to two strategic assessments and furthermore to one environmental assessment” is justified. Consequently, there is not only no procedural basis but also no substantive basis for the opinion expressed in the Judgment that “the State Environment Bureau violated Article 235(7) of the Law On Environmental Impact Assessment by identifying the defects to be eliminated while simultaneously deciding that the Environmental Report should not be given back for revision” (para. 23.2 of the Judgment). 10. It has been stated in the Judgment that “working on the Impugned Plan, the procedure of obtaining and evaluation of opinions requested by the Regulations no. 883 was not observed. In the case under examination, the opinion of the Public Administration of Cultural Heritage was important for the drafting and adoption of the Land Use Plan because, if this opinion would be observed another version of the final Land Use Plan would have been adopted. Moreover, the Administration was not able to provide its opinion due to omission of the Riga City Council” (para 27.2 of the Judgment). Such opinion is included into the Judgment without any motivation, and with regard to the protection of cultural monuments there has been no violation of Article 115 of the Satversme or of any other rights. It is not sufficient to assess the Impugned Plan by using only the grammatical method of interpretation of legal norms, which in the case under review manifests itself through examining the “colour” by which the specific territory is marked in the graphical part of the Land Use Plan and by reading the permitted way of use of the respective territory. The Impugned Plan must also be interpreted systematically.

10.1. Regulations on the Land Use Planning and Construction in the Territory of Riga include para. 5 “Regulations Regarding the Protection of Cultural Heritage” which provides the following: “5.1 General provisions of this chapter shall be applied to all territories marked, in the land use plan, as historical territories of the territory of the city that have been conferred the status of cultural heritage already before the elaboration of the Land Use Plan or to which such a status has been conferred by the Land Use Plan and that are planned to be protected as both, world cultural heritage and national cultural heritage monuments having the official status of a monument, and potential monuments or certain special protected historical construction territories. 5.2 General requirements for the protection of cultural heritage monuments are included in the law “On the Protection of the Cultural Monuments” and regulations of the Cabinet of Ministers. 5.3 Regulations for protection of cultural heritage regarding other land use and construction regulations are exceptional regulations, and they have a greater force. 5.4 Cultural monuments and protected construction territories […] 5.4.4.1. Largest cultural monuments of Riga under supervision of the state are: 5.4.4.1.1. State cultural monument no. 8538 “The complex of fortification buildings of the banks of the Daugava entry”. A part of the monument is located in the Daugavgrīva, on the Buļļu Island, but the other part – in Mangaļsala. 5.4.4.1.2. Local cultural monument no. 8539 “Komētforts Dike”. The monument is located on the Buļļu Island near the entry of the Daugava River into the sea […]”. Taking into consideration what has been established in para. 5.3 that provisions on protection of cultural heritage regarding other regulations of land use and construction are exceptional regulations, and they have a greater force, as well as taking into consideration the fact that the status of a state historical monument of both monuments mentioned in the application are provided for in paras. 5.4.4.1.1 and 5.4.4.1.2, the Impugned Plan, even if its graphical part would not precisely show the borders of these cultural monuments, could not cause any such restriction of the right of a person to live in a benevolent environment that would be related with the use of these monuments that would not comply with the requirements of the law or to the change of the borders of these monuments. Even if the State Inspection for Cultural Heritage Protection had once again reassessed the Impugned Plan, the rules contained in para. 5 of the Regulations on the Land Use Planning and Construction in the Territory of Riga would not have been changed. 10.2. The Conclusion regarding the inaction of the Riga City Council is biased and it has been taken out of the context. The Riga City Council did not maliciously avoid submitting the materials to the State Inspection. It can be concluded from the case materials that the State Inspection has submitted five letters regarding the different versions of the Land Use Plan and the Protection and Development Plan of the Riga Historical Centre, the last of which was a letter of 21 October 2005 on the second draft of the Riga Development Plan. 10.3. The State Inspection has drawn attention to the shortcomings in the graphical depiction of the above-mentioned cultural monuments, however the State Inspection has not objected to the land use regulations neither in the territory of the monuments, nor in the adjacent territories. Consequently, a reassessment of the Plan could not impact the essence of the protection of these monuments.

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10.4. Even if it were to be assumed that there have been violations in relation to the above-mentioned cultural monuments that would require declaring the Land Use Plan invalid, no such violation could serve as the grounds for declaring invalid the entire Impugned Plan. Taking into consideration all the arguments stated above, we consider that the part of the Riga Land Use Plan 2006-2018 that covers the territory of the Freeport of Riga complies with Article 115 of the Satversme.

Judge of the Constitutional Court Judge of the Constitutional Court

K. Balodis V. Skudra

2008-35-01

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The rights of the people to decide on sovereignty issues that are linked to the State’s membership in the European Union It was examined whether the law “On the Treaty of Lisbon Amending the Treaty of European Union and the Treaty Establishing the European Community” infringed upon the principle of people’s sovereignty and whether the law, therefore, had to be put for a national referendum. It was found that the state of Latvia was based on fundamental values, which included, inter alia, fundamental rights and fundamental freedoms, democracy, the sovereignty of the state and of the people, the separation of powers and the rule of law. The state has an obligation to guarantee these values, and these may not be infringed upon by amendments to the Satversme which have been introduced only by a law. Thus, the conferring of competencies to the European Union cannot extend so far as to violate the foundations of an independent, sovereign and democratic republic based on the rule of law and fundamental rights. Likewise, it cannot affect the citizens’ right to decide on issues that are important for a democratic state. It was noted that conferring of competences to the European Union and integration of the Community legal acts into the Latvian legal system imposed certain restrictions, which were acceptable only of the European Union law was compatible with the principles of a democratic state and the people’s sovereignty. It was recognised that conferring some competencies to the European Union was not to be considered as a weakening of the people’s sovereignty but rather as using the people’s sovereignty for reaching the aims defined in the treaties of the European Union. Neither the treaties that are currently in effect nor the aims that the European Union strives to achieve within the limits of its competence are contrary to the values and interests enshrined in the Satversme. At the same time, with the development of the European Union’s integration it must be taken into consideration that the principle of the people’s sovereignty prohibits from unrestricted conferring of competences that would bar from discussing Latvia as a sovereign state. The separate opinion of one judge was appended to the judgment. It comprises considerations regarding the need to terminate the proceedings in the case because the applicant’s fundamental rights had not been restricted.

JUDGMENT in the name of the Republic of Latvia in the case no. 2008-35-01 Riga, 7 April 2009 The Constitutional Court of the Republic of Latvia in the following composition: the chairman of the Court hearing Gunārs Kūtris, judges Kaspars Balodis, Aija Branta, Juris Jelāgins, Kristīne Krūma and Viktors Skudra,

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with the secretary of the hearing of the Court Līva Rozentāle, in the presence of the submitter of the constitutional claim Edgars Jansons, Benno Butulis as the representative of the submitter of the constitutional claim Olafs Brežinskis, the assistant to a sworn attorney Liene Cakare as the representative of the submitter of the constitutional claim Uldis Vizbulis, and sworn attorney Dmitrijs Skačkovs as the representative of the submitter of the constitutional claim Mārīte Teivāne, in the presence of the sworn attorney Lauris Liepa as the representative of the institution which has adopted the impugned act, the Saeima [Parliament] of the Republic of Latvia, on the basis of Article 85 of the Satversme [Constitution] of the Republic of Latvia, Article 16(1), Article 17(1)(11) and Article 192 of the Constitutional Court Law, on 3, 4 and 10 March 2009, in Riga, in a public Court hearing examined the case “On the compliance of the law “On the Treaty of Lisbon Amending the Treaty of European Union and the Treaty Establishing the European Community” with Article 101 of the Satversme of the Republic of Latvia”.

The facts 1. On 15 December 2001, at the meeting of the European Council in Laeken, the “Laeken Declaration on the Future of the European Union” (hereinafter – the Laeken Declaration) was adopted. It provided that the European Union (hereinafter also – the EU) must become more democratic, transparent and effective. The Laeken Declaration provided for drafting of a Constitution for European citizens, as well as to elaborate a Convention for EU reform preparation. The Convention was finally elaborated, wherein representatives of Latvia also participated. The Treaty establishing a Constitution for Europe (hereinafter – TC) was confirmed on 18 June 2004 in an intergovernmental conference where all 25 Member States of the EU took part, representatives of Latvia included. It was planned to substitute, by means of the TC, several other treaties effective before that time. Representatives of all the Member States signed the TC in Rome, on 29 October 2004. On 2 June 2005, the Saeima of the Republic of Latvia (hereinafter – the Saeima) adopted the Law “On the Treaty Establishing a Constitution for Europe” by thus adopting and confirming the TC signed in Rome on 29 October 2004, as well as the Final Act and the declaration annexed thereto. The TC did not come into force because it was rejected at the referenda in France on 29 May 2005 and in the Netherlands on 1 June 2005. Based on the results of the intergovernmental conference of 18 June 2004 (the TC draft) and the mandate confirmed by the European Council on 21 and 22 June 2007, the Treaty of Lisbon amending the Treaty on the European Union and the Treaty establishing the European Community (hereinafter – TL) was drafted (see Līguma par Eiropas Savienību un Līguma par Eiropas Savienības darbību konsolidētās versijas. Oficiālais Vēstnesis C 115, 9 May 2008). Leaders of the Member States and those of their governments confirmed the TL on 18-19 October 2007 at the informal meeting of the European Council in Lisbon and decided that it would be signed on 13 December 2007. The President and the Prime Minister of Latvia, as well as the Minister of Foreign Affairs together with the leaders of other EU Member States and their governments signed the TL in Lisbon, Portugal, on 13 December 2007.

On 3 April 2008 the Saeima adopted the law “On Recognizing the Law “On the Treaty Establishing a Constitution for Europe” as Invalid”. On 8 May 2008 the Saeima adopted the law “On the Treaty of Lisbon Amending the Treaty on the European Union and the Treaty Establishing the European Community” (hereinafter – the impugned act). It was promulgated on 28 May 2008. The impugned act came into force on the day following its promulgation, namely, on 29 May 2008. 2. The petitioners Edgars Jansons, Raimonds Seņko, Aivars Graikstis, Uldis Vizbulis, Mārīte Teivāne, Kristaps Bergmanis, Raimonds Rutenbergs, Arvīds Kalme, Maija Smila, Māra Pastore, Olafs Brežinskis, Rihards Cicens and Valērija Mihailovska (hereinafter – the Petitioners) indicate that the impugned act restricts their fundamental rights guaranteed by Article 101 of the Satversme of the Republic of Latvia (hereinafter – the Satversme), namely, the rights to participate in the work of the state and of local government according to the procedures provided by law because the TL could have been adopted and confirmed only by a national referendum. Taking into consideration the principle of the unity of the Satversme, it must be found that the impugned act breaches Articles 2 and 77, as well as Article 68(4) of the Satversme. Moreover, this breach has lead to a restriction of the fundamental rights guaranteed by Article 101 of the Satversme. Besides, there exist several other legal bases that provide for the duty to submit the TL to a national referendum. The principle of sovereignty enshrined in Article 2 of the Satversme is breached. By referring to Article 20 of the Consolidated Treaty on the European Union (hereinafter – TEU), the petitioners indicate that that the state of Latvia, in the case of necessity, would no more be able to freely decide on the issue regarding an eventual withdrawal from the EU. Namely, the withdrawal would depend on the will of other subjects, which Latvia will not be able to control. The qualified majority of votes provided for in Article 238 of the Consolidated Treaty on the Functioning of the European Union (hereinafter – TFEU) would lead to a situation when the withdrawal could be blocked even by only some of the 27 EU Member States. Thus, after coming into force of the TL, Article 2 of the Satversme would also become declarative. Since the impugned act has, in fact, amended Article 2 of the Satversme, Article 77 of the Satversme has not been applied without reason. Article 77 of the Satversme refers to the constitution in its material sense. The words “to amend” included therein should not be understood according to their narrow grammatical sense. Article 2 of the Satversme can be amended without introducing any direct changes into its text. Since the Saeima has surrendered the national sovereignty to another subject without submitting this issue to a national referendum, Article 2 of the Satversme is to be recognized as having been amended, whilst Article 77 of the Satversme – as having been breached. The Petitioners consider that by adopting the impugned act Article 68(4) of the Satversme has been breached. The words “substantial changes” included therein is a notion that may be interpreted from the legal point of view and pertain to the cases when the EU membership is related to, first, trends of weakening of the democracy, second, the approximation of the EU to a state entity, and, third, the adoption of a new treaty, a constitution for the EU. Trends of weakening of the democracy manifest themselves in the fact that the TL deviates, regarding voting and decision-making procedures in the Council, from the principle of consensus that is being applied at present. Consequently, other Member States would be authorized to adopt decisions binding on Latvia by ignoring

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any objections of Latvia and disregarding its interests. Likewise, not all of the Member States would have the right to nominate a commissioner, which means that the equality of the rights of Latvia as a small state will not be ensured within the European Union. When assessing the approximation of the EU to a state entity, it is indicated that after the adoption of the TL there will be no more competences not exercised by the EU. It also clearly follows from Article 26 of the TEU that the EU takes over such competences characteristic to state entities as a common foreign and security policy. Moreover, Article 2(1) of the TFEU allows the EU to delegate fulfilment of certain functions to the Member States. This, however, is not possible because the EU cannot delegate what has been delegated to itself. Accession of the EU to the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter – the ECHR) should also be taken into consideration because no such rights have been provided for a supranational organization. The Petitioners emphasize that the TL includes about 90 percent of the norms that were included into the TC. Consequently, there is a reason to suppose that by means of the TL, a completely different EU is being formed, and that this Treaty should be regarded as its constitution. Moreover, the TL confers to the EU additional competences and authority regarding its Member States. When answering the questions posed by the Constitutional Court, the Petitioners indicate that the TL would become binding on Latvia if a national referendum would be held according to the procedure established in Article 79(1) of the Satversme and the result thereof would be positive. On the other hand, in the event if the argumentation provided in the constitutional claim would not be recognized as well-founded, a national referendum should be held pursuant to the procedure established in Article 79(2) of the Satversme. The Petitioners consider that in the written response of the Saeima it has been incorrectly argued that that Article 68(4) of the Satversme provides for an optional national referendum. If the Saeima had established that the TL provides for substantial changes in the terms of Latvia’s membership to the EU, the Saeima would have the duty, rather that the right, to submit the TL to a national referendum. Such a duty follows from Article 18 of the Satversme. The notion “substantial changes in the terms regarding the membership of Latvia in the European Union” contained in Article 68(4) of the Satversme is a legal one. Therefore the Constitutional Court has no obstacles for examining this notion, even if half of the members of the Saeima have not concluded that any substantial changes are made. It has been indicated in the amendments to the application that Article 101(1) of the Satversme includes not only the right of the people to participate in a national referendum whenever it is held but also for the right to demand holding a national referendum whenever it ought to be held pursuant to the Satversme or laws. The TL infringes Article 2 of the Satversme in terms of its concept and content, which requires, according to the Satversme, a double confirmation. Namely, since the TL amends Article 2 of the Satversme on the merits, the Saeima initially had to adopt a ratification law and then to submit this law to a national referendum. Since the above-mentioned law has not been submitted to a national referendum, it has not gained the validity of a law. It is also necessary to take into consideration that Article 77 of the Satversme is applicable in cases when it is necessary to assess the membership in the EU, as well as substantial terms of the membership. On the other hand, several conditions for delegation of competencies follow from the principle of the sovereignty of the people

and the principle of a democratic state: the delegation of competencies may not restrict the rights of withdrawal of a Member State; only a part of the competencies or particular competencies may be delegated; only specific competencies may be delegated; any delegation of competencies may be permitted only in case if it is done for the purpose of strengthening the democracy. The right to withdraw from the EU at currently derives from the content and the character of its fundamental documents, as well as the Vienna Convention on the Law of International Treaties (hereinafter – the Vienna Convention). However, the TL, unlike the “(non-) regulation” currently in force, considerably hampers or even excludes any possibility for a Member State to withdraw from the EU. Thus the rights to say “the last word” means the rights of the people to withdraw from the EU immediately, rather than that the people would have to remain in the EU for two more years. Consequently, the objective to strengthen the democracy has not been reached. Just the contrary, the democracy within the EU becomes weaker. A deficit of democracy is even increased by the procedure for amending the fundamental treaty of the EU which permits circumventing the national parliaments by thus making them lose control over “gradual loss competencies” to the EU. In the European Council Latvia is represented by the President of the State who has no direct democratical legitimation, which means that his activities may not serve as the basis for amending the fundamental treaties of the EU. The Council will be authorized to apply the principle of qualified majority of votes when deciding on issues in more than 40 new domains. This would concentrate the power of large states and weaken the influence of small ones. The rights of one million Europeans to request the drafting of a legal act would not strengthen the democracy either, because there are no such people as “Europeans”. However, even in case if the Constitutional Court established that the impugned act has gained the validity of law, it was still necessary to hold at least a national referendum as provided in Article 68(4) of the Satversme. The Petitioner E. Jansons additionally indicated during the Court hearing that Articles 1 and 2 of the Satversme have been recognized the core of the Satversme since 1918. Consequently, other norms of the Satversme and, for instance, the accession to another state, are be interpreted through these articles. Although the Satversme has undergone certain changes over time, its core has nevertheless remained unchanged. It is also necessary to interpret the amendments to Article 68 of the Satversme through the core of the Satversme because these norms have been established exactly for the moment such as the present, namely, the “ratification of the Treaty of Lisbon”. Consequently, Article 68(4) of the Satversme must not be interpreted as an exclusive prerogative of the Saeima. It is also necessary to take into consideration the fact that the society has not been appropriately informed on the issues regarding the TL. As substantial changes of the TL should be understood an irreversible export of competencies of Latvia; these competencies are not only cultural values but they are also strategically important in the context of the right to self-determination of the state. These areas include the foreign policy, the security policy, and common judicial system. B. Butulis, the authorized representative of O. Brežinskis, indicated that the TL must not be assessed separately from other EU documents, namely, the accession of Latvia to the EU and the TL should be assessed in conjunction with one another. When acceding the EU, there existed two main theories on sovereignty. One of the theories admitted that by acceding to the EU the sovereignty of the people is infringed, whilst the other theory did not recognize any such infringement. For Latvia to be able to accede to the EU, it was declared, due to certain political considerations, that the sovereignty

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of the people is not being infringed. Therefore, when adopting the impugned act, it has not been verified whether its adoption would breach Article 2 and Article 77 of the Satversme. Understanding of sovereignty has changed in the course of time; however, the notion of sovereignty can be regarded as a legal term with vague, though definable limits. In the context of this notion, the delegation of national competencies to supranational organizations is of a particular importance. Such delegation of competencies should be carried out without infringing the sovereignty of the people. What is important from the point of view of the sovereignty of the people is the right of the people to withdraw from the EU or any other supranational organization, i.e. the rights to retrieve the competencies once delegated. It is also necessary to take into consideration the extent and limits of the delegated competencies. When assessing the delegation of competencies to the EU it is necessary to take into consideration Article 68(2) of the Satversme which provides that the only purpose for which competencies of state institutions may be delegated to a supranational organization is the purpose of strengthening democracy. On the other hand, the TL would only increase the democratic deficit, whilst the influence of Latvia within the Council would decrease. Therefore more and more decisions would be taken outside Latvia, which means that the decisions would be made by persons who are not directly legitimated. The assistant to a sworn attorney L. Cakare, the authorized representative of U. Vizbulis, indicated that the TL causes two fundamental breaches of the rule of law, namely, the loss of sovereignty and the decrease in the protection of fundamental rights. The Saeima, when adopting a law of such importance, has acted contrary to the norms of the Satversme and has jeopardised the sovereignty of the people. The complex procedure established in Article 50 of the TEU, according to which a Member State can withdraw from the EU, has disabled the citizens of the State to decide on the status of their own state. These rights are being conferred to other persons and institutions, which thus considerably undermines the sovereignty of the people. The sovereign power of the citizens of the Republic of Latvia is being delegated from one legal subject to another one that is not related with the Republic of Latvia. Such a possibility is not envisaged by the norm on democracy and sovereignty included in the Satversme. When changing the notion of the sovereignty of the people, Article 2 of the Satversme has been amended in practice. On the other hand, Article 77 of the Satversme pertains to the constitution in its material sense. Without introducing direct amendments to Article 2 of the Satversme but by delegating the sovereignty of the people to another legal subject, this Article has in fact been amended. Delegation of competencies to international organization without submitting the issue to a national referendum is possible if the sovereignty of the people is not forfeited. The Saeima, however, has not assessed the importance of the norms of the TL. The amendments of such scale introduced by the TL manifest themselves through trends of weakening of the democracy. Planned changes in the procedure of voting that would come into force within the Council in 2014 and approximate the EU to a state entity serve as a proof of this fact. Weakening of the democracy also manifests itself through the fact that the Council is not an institution elected by the inhabitants of Europe. The EU, in fact, already has a peculiar legal status which is being constantly improved. Consequently, it can be concluded that such and improvement and changes approximate the EU to a state entity because the EU, under the TL, takes over such domains where the authority of the EU and that of the Member States compete. Moreover, it gains certain rights to retain competencies in the fields overtaken. It can be concluded

form the aforesaid that, after coming into force of the TL, the EU would exercise all the competencies of the Member States. Sworn attorney D. Skačkovs, the authorized representative of M. Teivāne, indicated that according to Article 251 of the TFEU a representative directly elected by the people, in fact, is denied the possibility to play any role in the European Parliament. Also, “the relations between the Council and the European Parliament resemble the relations between the State Council and the State Duma of the tsarist Russia rather than a modern democratic state, and this is indeed unique nowadays”. Since all the people have the right to freely decide their destiny and determine their political status without any external influence, the European Council is not entitled to deny the rights to the people of Latvia to freely withdraw from the EU. When providing answers to the questions posed by the Constitutional Court and the representative of the Saeima, it was indicated that the procedure according to which a Member State can withdraw from the EU is unclear, because Article 50 of the TEU does not clearly establish the way, according to which the Republic of Latvia, in the case of withdrawal from the EU, would retrieve the competencies delegated to the EU. Moreover, under Article 50(2) of the TEU, the Republic of Latvia will not participate in the decision-taking process regarding the withdrawal procedure. In the course of time, the EU is approximating to a state entity, i.e. it is being federalized. This will lead to a weakening of the democracy in the EU. New conferred exclusive competencies that cause the greatest concerns regarding the breach of Article 2 of the Satversme are security, foreign affairs, common judicial system and common trade policy. After coming into force of the TL the Member States would, in fact, lose the right to express their own point of view regarding foreign policy. Likewise, the three EU pillars would be destroyed, whilst security would become an ordinary competence of the EU. Withdrawal procedure of the Republic of Latvia from the EU is established in Article 68(3) of the Satversme, namely, the withdrawal would be implemented by means of a national referendum. On the other hand, under the TL, it would be necessary to agree on the terms of withdrawal or to wait two more years. Moreover, the state itself would not participate in the negotiations regarding the withdrawal. 3. The Saeima, the institution that adopted the impugned act, has indicated in its written reply that the impugned act does not contradict Article 101 of the Satversme. Article 101 of the Satversme does not provide for the cases when a national referendum should be held; nor does it define the persons who would be entitled to participate in a national referendum. These cases are established in other norms of the Satversme, whilst Article 80 of the Satversme provides for the right of citizens to participate in a national referendum. Article 73 of the Satversme establishes the cases when issues may not be submitted to a national referendum, whilst Article 68 of the Satversme provides for the cases when and the terms under which issues regarding the participation in the EU are to be submitted to a national referendum. Consequently, it cannot be considered that Article 101 of the Satversme puts forth independent requirements regarding the cases when an issue should be submitted to a national referendum. An answer to the question whether to hold a national referendum follows from the interpretation of Article 68(4) of the Satversme and the presence or absence of the respective preconditions. In order to conclude whether the impugned act complies with Article 101(1) of the Satversme, it is necessary to establish whether this law has been adopted without

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breaching the requirements of Article 68(4) of the Satversme. It can be clearly concluded form the grammatical construction of the above-mentioned norm that in the case if at least a half of the members of the Saeima have not demanded a national referendum regarding the introduction of changes into the terms of the EU membership, a national referendum shall not be held. The Saeima emphasizes: if the constitutional legislator had intended to provide for an obligatory national referendum in the case if substantial changes are being introduced into the terms of EU membership by means of a treaty, then of Article 68(4) of the Satversme would have had a respective wording without requiring for the will (signatures) of 50 members of the Saeima in favour of holding a national referendum. The Saeima also indicates that Article 68(4) of the Satversme confers to the Saeima the rights to initiate a national referendum not as an institution of state power but as a certain number of the members of the Saeima representing the people. Likewise, the members of the Saeima, being representatives of the people, are entitled to exercise this right at their own discretion if they consider it necessary and compliant with the interests of the Latvian people. Consequently, it can be concluded that only 50 members of the Saeima may decide whether the factual and legal circumstances should be recognized as substantial changes in the terms of the membership of the Republic of Latvia in the EU, which would allow the Saeima to decide on holding a national referendum. Moreover, the Saeima indicates that the change of certain terms of the EU membership cannot be regarded as substantial changes. Broadening of the EU competence regarding a certain issue does not imply “substantial changes in the terms of the membership”. This issue shall be decided on the basis of considerations of political utility. A national referendum provided for in Article 68(4) of the Satversme must be organised by the Saeima only if a draft decision signed by 50 members of the Saeima is submitted. Before such a draft decision is submitted, the Saeima as an institution of state power is not entitled to adopt a decision, by the majority of votes, regarding holding of a national referendum regarding substantial changes in the terms of EU membership. In the replies submitted to the Court the Saeima informs that Latvian membership in the EU, as well as introduction of any changes in the terms of EU membership or the institutional structure or competence of the EU is implemented on the basis of international legal instruments, i.e. international treaties, and these treaties are concluded by the EU Member States. Consequently, the respective issue is to be examined in the context of Article 68 of the Satversme. After the amendments of 8 May 2003, Article 68 of the Satversme provides for two kinds of procedures, according to which the Saeima ratifies international agreements. Under Article 68(1) of the Satversme, as well as taking into consideration Article 23 and Article 24 of the Satversme, international agreements which settle matters that may be decided by the legislative process are ratified by the Saeima in a session, in which at least half of the members of the Saeima participate with the absolute majority of votes of the members of the Saeima present. On the other hand, in cases when partial delegation of competencies of national institutions to international institutions is provided when entering into international agreements, which settle matters that may be decided by the legislative process, with the purpose of strengthening democracy, then Article 68(2) of the Satversme applies. Namely, the Saeima may ratify such international agreements in sessions in which at least two-thirds of the members of the Saeima participate, and a two-thirds majority vote of the members present is necessary for ratification. In addition to both procedures included in Article 68 of the Satversme, such cases when the procedure established by article 77 of the Satversme should be applied can

exist, namely, if mandatory amendments to Articles 1, 2, 3, 4, 6 or 77 of the Satversme would follow from the ratification of international agreements. According to Article 77 of the Satversme, such amendments would come into force only if they were ratified by a national referendum and at least a half of the citizens of Latvia who have the right to vote would have voted in favour of the amendments. Any international treaty which settles matters that may be decided by the legislative process is assessed by the Saeima before its ratification in order to determine the procedure in accordance with which it should ratified in order to ensure that Latvia would undertake the international obligations provided for in the particular treaty in accordance with the procedure established in the Satversme. The leading public administration institution in the field of foreign affairs is the Ministry of Foreign Affairs. Under the legislative acts it provides opinions on lawfulness of international treaties so that the Cabinet of Ministers could decide on submitting them to the Saeima. In addition to this, the Saeima itself, after having received a draft law regarding the ratification of an international treaty, assesses the procedure for its ratification. Likewise, the Saeima assesses the utility and the conformity of a concluded international treaty with the interests of the state of Latvia. Such right of the Saeima is enshrined in Article 68 of the Satversme. The Saeima emphasizes that Article 68(1) and (2), as well as Article 77 of the Satversme provide for automatic procedures. Namely, if the preconditions for applying certain procedures provided for in these norms are present, then the issues must be decided only according to the procedures established in these articles of the Satversme. Likewise, in these cases it is indispensible to verify the procedure, according to which each particular issue must be decided upon. On the other hand, Article 68(4) of the Satversme provides for an optional procedure, namely, the application of this procedure depends on the fact whether the subject provided for in Article 68(4) of the Satversme requires application thereof. The Saeima would have had the duty to assess the question whether the TL provides for “substantial changes in the terms of Latvia’s membership in the EU” only in the case if a request of at least a half of the members of the Saeima to submit the issue to a national referendum as provided for in Article 68(4) of the Satversme had been received. It is provided for by Article 11(4) of the law “On National Referenda and Initiation of Legislation”, namely, “the Saeima shall propose holding a national referendum on substantial changes in the terms regarding Latvia’s membership in the European Union if so requested by at least one-half of the members of the Saeima”. In this case, the Saeima should make certain not only that one-half of the members of the Saeima have requested holding a national referendum, but also that the international treaty under consideration does provide for substantial changes in the terms of Latvia’s membership in the EU. It is also admitted that pursuant the wording of Article 68(4) of the Satversme the establishing of “substantial changes in the terms of the membership of Latvia in the EU” is rather a question of political utility. However, it cannot be denied that this notion has a certain legal content that affects the application of Article 68(4) of the Satversme. The Saeima also expresses doubts regarding the fact whether any real restrictions of the fundamental rights of the Petitioners guaranteed by the Satversme has occurred at present. First of all, the TL, for the purpose of international law, has not yet come into effect and at present it does not cause any legal consequences to the Petitioners. Secondly, even in the case if the TL had come into effect, no automatic subjective public right to participate in a national referendum follows from Article 68(4) and Article 72

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of the Satversme. The legal construction of both of these norms is based on the fact that the criterion for initiating the process is a request of, respectively, one or several officials, without which no subjective public rights emerge. Therefore the Saeima also asks to assess whether it is useful to continue the proceedings in this case. When assessing what has been indicated by the Petitioners, the representative of the Saeima admits that the majority of the argumentation provided orally pertains to the structure of the EU and the authority of the European Community created already in 1957, rather than to the deficiencies of the TL and possible restrictions of rights. In fact, the Petitioners contest the membership of the Republic of Latvia in the European Union. It is essential that at the time when the Republic of Latvia joined the European Union, the TC had already been drafted and submitted to the Member States for discussion. Consequently, the assessment of the the legality of the ratification of the TL is affected by the fact that the Saeima had already ratified the TC, and the legality of the ratification law of the TC has not been disputed. In fact, the possible restriction of the rights of the Petitioners could have been caused by the ratification of the TC in 2005. When assessing the ratification of the TL it is wrong to assess the adoption of the impugned act solely in the context of the work that has been done by the legislator without assessing the work done by the Cabinet of Ministers and the ministries. The representative of the Saeima indicated that the Petitioners base their arguments concerning the reduction of the sovereignty on the changes introduced with regard to the rights to withdraw from the EU, as well as by substantial changes in the terms of membership in the European Union. Nowadays the understanding of sovereignty has changed considerably, whilst initial understanding thereof “today no longer survives the criticism”. An essential parameter was introduced into the definition of sovereignty by the membership in the European Union, as well as by the international legal relations prevailing in the modern world. While the Member States preserve the rights to terminate this restrictive independence by withdrawing from the EU, they do not lose their sovereignty. Consequently, “sovereignty” nowadays, in fact, also includes the notion of “the right to the last word”. Article 50 of the TEU clearly provides that each Member State can decide on withdrawing from the EU in accordance with its own constitutional requirements. Taking into consideration the legal, political, economic, and social bonds that have been formed between the Republic of Latvia and the EU, the term of two years established in Article 50 of the TEU is proportional. The fulfilment of liabilities towards the EU and its institutions definitely cannot be regarded as a restriction of sovereignty. Consequently, the sovereignty of the people is not restricted but, on the contrary, it is being exercised. The European Commission does not represent Latvia as a Member State. It implements the common EU policies. The Commissioner does not represent the Republic of Latvia, either. The Commissioner must be neutral in his work because he is responsible for “a common range of issues” and does not put forth the identity of the State he pertains to as the priority of his activities. By means of the TL, the number of the members of the European Parliament is reduced from 785 to 750. However, Latvia will still have nine representatives, the same as under the regulation currently in force. To counter the arguments concerning the decrease of the democracy, the Saeima indicates that the civic initiative introduced by the TL that allows one million of the citizens of the EU Member States to initiate the adoption of legislative acts is a substantial innovation.

When providing answers to the questions posed at the Court hearing, the representative of the Saeima indicated that the Republic of Latvia would not delegate, by means of the TL, any such competence to the EU that would lead to the conclusion that the content of Article 2 of the Satversme has been amended. Consequently, the sovereignty of the state has certainly not been restricted. For instance, in the field of foreign policy and security policy the EU would still have no rights to express a viewpoint that would contradict the one of the Republic of Latvia. Likewise, the formation of the European Public Prosecutor’s Office would not concern Article 2 of the Satversme and the public prosecutor’s offices would strictly remain an issue of the competence of each Member State. After coming into force of the TL, the Constitutional Court would still be entitled to assess issues related to the extent and limits of the sovereignty of the people. On the other hand, the issues pertaining to the EU treaties will fall within the jurisdiction of the European Court of Justice. The Saeima has an obligation before the adoption of any legal norm to assess its compliance with Articles 1 and 2 of the Satversme. The compliance with these articles is being assessed not only when the members of the Saeima decide on the confirmation of a certain draft law but also when the respective draft law is being prepared and discussed, for instance, in the responsible ministry, the Cabinet of Ministers, or in the respective committee of the Saeima. If during preparation of a draft law the non-compliance thereof with Articles 1 and 2 of the Satversme has not been established, there is no reason to apply Article 77 of the Satversme. […]

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The motives I 9. The case was initiated concerning a possible infringement of the fundamental right to participate in the work of the state, as guaranteed by Article 101 of the Satversme. Article 101(1) of the Satversme provides: “Every citizen of Latvia has the right, as provided for by law, to participate in the work of the state and of local government, and to hold a position in the civil service.” The Petitioners consider that the rights guaranteed by Article 101 of the Satversme have been infringed by means of the procedure of the ratification of the TL because they were denied the possibility to participate in a national referendum regarding the TL as provided for in Article 77 of the Satversme in conjunction with Article 2 of the Satversme, or, in the event that the Constitutional Court would not recognize a breach of Articles 2 and 77 of the Satversme, Article 68(4) of the Satversme would be breached. In order to determine whether the fundamental rights of the Petitioners have been breached, it is necessary to assess whether the case under review falls under the jurisdiction of the Constitutional Court and what are the limits of the claim. 10. Latvia joined the EU on 1 May 2004. The national referendum on the accession of the Republic of Latvia to the European Union took place on 30 September 2003. 1 010 467 persons having the right to vote participated therein, 676 700 of whom voted “in favour” of the accession of the Republic of Latvia to the European Union (see: the decision of 6 October 2003 of the Central Election Commission no. 20 “On the Results of the National Referendum on Latvia’s Membership in the European Union”. Latvijas Vēstnesis, 7 October 2003, no. 28). Hence the decision regarding Latvia’s

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membership in the European Union was adopted and the issue regarding Latvia’s membership in the European Union was decided by a national referendum in accordance with the provisions of Article 68(3) of the Satversme and the requirements of Article 79(2) of the Satversme. 10.1 At the time when Latvia was joining the European Union, its activities were regulated by the Treaty on the European Union (hereinafter – the TEU), the Treaty Establishing the European Community (hereinafter – the TEC), as well as the Treaty Establishing the European Atomic Energy Community (hereinafter – the Euratom). Last amendments to these treaties were introduced by the Treaty of Nice that came into force on 1 February 2003. Moreover, at that time the preparatory works of the TC had already been launched. Pursuant to the order of 14 February 2002 of the Cabinet of Ministers no. 85 “On Appointment of a Representative of the Latvian Government and his Deputy for Participation in the Laeken Convention set up by the European Union Council” and the order of 24 December 2002 of the Cabinet of Ministers no. 714 “On Appointment of a Representative of the Latvian Government and his Deputy for Participation in the Laeken Convention of the European Union Council” governmental representatives and their deputies were assigned for participation in the European Convention that drafted the TC. According to the declaration of 28 December 2002 of the Saeima, four members of the Saeima also became involved in the work of the European Convention, two of them being permanent representatives and two others being their deputies. In order to assess the draft of the TC and to prepare the Latvia’s national position for the intergovernmental conference, the Ministry of Foreign Affairs, under the regulation of 3 June 2003 of the Cabinet of Ministers no. 286 “Interim procedure for Coordination of Development, Approval and Representation of Latvia’s National Position in European Union Issues”, established an inter-institutional working group. Taking into consideration the opinions provided by the competent institutions, and the opinions of the EU institutions and institutions of other EU Member States, the working group prepared suggestions for Latvia’s national position for the intergovernmental conference. 10.2 The TC was signed on 29 October 2004 in Rome, Italy. On 2 June 2005 the Saeima ratified the TC by adopting the law “On the Treaty Establishing a Constitution for Europe”. The basic purpose of the TC was to create such an EU fundamental treaty that could ensure optimal and efficient EU and the functioning of its institutions due to the joining of new Member States. On 3 April 2008 the Saeima adopted the law “On Declaring the Law “On the Treaty Establishing a Constitution for Europe” as invalid”. The abovementioned law was adopted, among other things, because on 29 May 2005 the citizens of France and on 1 June 2005 the citizens of the Netherlands rejected the TC in national referenda, and the EU Member states agreed to draft new amendments to the treaties (see the annotation to the law “On Declaring the Law “On the Treaty Establishing a Constitution for Europe” as invalid”: http://titania.saeima.lv/LIVS/SaeimaLIVS. nsf/0/367449605F4DFA1DC2257401002B5DAA?OpenDocument). The TC was ratified by the Saeima and later declared as invalid in accordance with the procedure established in the second sentence of Article 68(2) of the Satversme. Namely, both laws were adopted at Saeima sessions where at least two-thirds of the members of the Saeima were present, the decisions being adopted with the twothirds majority of the votes of the members of the Saeima present.

The compliance of the law “On the Treaty Establishing a Constitution for Europe” or the law “On Declaring the Law “On the Treaty Establishing a Constitution for Europe” as invalid” with the Satversme has not been contested. 10.3 Representatives of the Member States signed the TL at the European Council on 13 December 2007. Unlike the TC which was adopted as a new and independent treaty, which would fully replace the former treaties, the TL was confirmed as amendments to the effective TEU and TEC. Consequently, the TL, unlike the TC, shall be regarded as amendments to existing treaties rather than a new international treaty for the purpose of Article 40 of the Vienna Convention. According to Article 40(2), each Member State participates in the negotiation and conclusion of amendments. This means that the TL does not create a conceptually new legal subject [see: Dougan M. The Treaty of Lisbon 2007: Winning Minds, Not Hearts (2008) 45 Common Market Law Review 617, pp. 622-624]. In the present case the Petitioners dispute the compliance of the ratification of the TL with Article 101(1) of the Satversme. Accordingly, the case was initiated only regarding this issue of compliance. Consequently, the arguments of the Petitioners regarding the procedure by which the Republic of Latvia joined the EU, as well as the legality of the law “On the Treaty Establishing a Constitution for Europe”, fall outside the scope of the claim and will not be assessed. At the same time, the Court recognizes that the assessment of the TL or another EU legal act comparable to the TL as to its legal consequences within the framework of another case might be affected, for example, by the fact that it would turn out that as a result of the application of the said acts norms of the Satversme are infringed. Namely, either by applying the norms that are not mentioned in the application or as a result of a change of the practice of application of the EU fundamental treaties within the meaning of Article 31(3)(b) of the Vienna Convention, the rights enshrined in the Satversme would be affected. In the framework of the case under review, the Court must assess the norms that amend the currently effective norms of the treaties, as well as the norms that are new or repeal the currently effective norms. 10.4 The impugned act was adopted pursuant to the procedure established in the second sentence of Article 68(2) of the Satversme. Namely, the procedure provided for in the Satversme for concluding international treaties in the cases when Latvia, with a view to strengthening its democracy, delegates a part of the competencies of state institutions to international institutions. After the amendments of 8 May 2003 Article 68 of the Satversme provides that the Saeima may ratify international agreements in which a part of state institution competencies are delegated to international institutions with the purpose of strengthening democracy in sessions in which at least two-thirds of the members of the Saeima participate, and a two-thirds majority vote of the members present is necessary for ratification of such agreements. Therefore acts of constitutional rank can be adopted only in the cases established in the Satversme (see the judgment of the Constitutional Court of 29 November 2007 in the case no. 2007-10-0102, Para 56.3). Laws that are being adopted according to the procedure established in the second sentence of Article 68(2) of the Satversme are adopted by the same subject, i.e., the Saeima, and they are being adopted according to the same procedure which is used for introducing amendments to those articles of the Satversme that are not be recognized as forming the constitutional foundation of the Republic of Latvia. The fact that the said laws are being adopted in two rather than three readings, as provided

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for in Article 114(2)(3) of the Saeima Rules of Procedure, follows from the fact that international agreements, due to their character, are confirmed at the parliament without introducing any amendments to their text. The legislator is authorized only to ratify or to reject such agreements. The decision of the legislator to ratify an agreement means the assent of the state to be bound by the particular international agreement. According to Article 85 of the Satversme and Article 16(1) of the Constitutional Court Law, the Constitutional Court reviews cases regarding the compliance of laws with the Satversme. When interpreting the term “law” used in the said norms, it is necessary to take into consideration the fact that the purpose of the legislator, when establishing the Constitutional Court, first of all was to create an effective mechanism for the protection of the priority of constitutional norms. The assumption that the Constitutional Court may not review the procedure of the adoption of laws adopted on the basis of the second sentence of Article 68(2) of the Satversme with the Satversme, namely, to assess whether the Saeima, when adopting such norms, has breached the procedural order of adoption thereof, would be in conflict with this purpose (see the decisions on refusal to initiate a case of the Fourth Panel of the Constitutional Court of 11 November 2003. Application registration nos. 119-123). 11. At the Court hearing the representative of the Saeima L. Liepa asked to terminate the proceedings in the case, indicating that: 1) the TL has not come into force at the international level. Consequently, no the Petitioners’ fundamental rights have not been restricted. 2) the Petitioners have not exhausted the general legal remedies. On the basis of the decision of 26 April 2007 of a panel of the Constitutional Court on refusal to initiate a case based on an application of a natural person, it should also be recognized in the case under consideration that the rights of the Petitioners to participation and expression of the opinion could have been infringed if they had exercised the rights to submit a draft law or draft amendments to the Satversme regarding the confirmation of the TL by means of a national referendum, as provided for in Article 78 of the Satversme; 3) a complaint that is submitted to a constitutional control institution by a person whose purpose is not to protect his subjective constitutionally protected fundamental rights, is to be regarded as actio popularis. In this case, the constitutional claim is directed towards the protection of general order and the prestige of the legislator rather than to the prevention of the infringement of specific fundamental rights of the Petitioners (see the transcript of the hearing of the Constitutional Court of 4 March 2009, case materials, vol. 4, pp. 20-22). 11.1 The Constitutional Court, when assessing the arguments of the representative of the Saeima that the case should be terminated because the TL has not yet entered into force, finds that in the case under review there is no dispute whether the TL or any of its norms directly infringes or restricts the rights or legal interests of the Petitioners. The Petitioners question the compliance of the procedure of the ratification of the TL with the Satversme. The Petitioners also reiterated at the Court hearing that they contest the constitutionality of the ratification procedure rather than the TL. Namely, they ask the Constitutional Court to assess whether the Saeima has appropriately applied the procedure established in Article 68(2) of the Satversme or rather the TL should have been ratified as provided for in Article 79(1) or (2) of the Satversme, by holding a national referendum in which the Petitioners would have the right to participate.

Consequently, the fact that the TL has not come into force at the level of international law may not serve as a reason to refuse assessing the compliance of its ratification procedure with the Satversme. It is also necessary to take into consideration the fact that the task of the Constitutional Court is, on the one hand, to ensure full protection of the Satversme as the supreme law of the state and, on the other hand, it has the duty to ensure, within the scope of its jurisdiction, that the Republic of Latvia would undertake international obligations according to the procedures established in the Satversme. Namely, the Constitutional Court has the duty to ensure the supremacy of the Satversme by at the same time ensuring that the procedure according to which the State has undertaken certain international obligations, would not be contested post factum, i.e. after the coming into force of the particular international treaty. 11.2 When assessing whether the invoked findings of 26 April 2007 by a panel of the Constitutional Court can be applied to the case under review, the Constitutional Court recognizes that the panel, when deciding whether a particular application is admissible for examination at the Constitutional Court, is guided only by the arguments provided in the application. The interpretation of the procedural issue established in the Constitutional Court Law provided in the decision of the panel normally pertains to a specific situation. On 26 April 2007, the Constitutional Court based examined an application of twenty-one members of the Saeima and initiated a case concerning the constitutionality of the same legal act which had also been contested by a natural person. The members of the Saeima who signed the application are regarded as a single petitioner whose procedural rights are broader in comparison with those of a natural person. Such a difference mainly pertains to the duty of a natural person to substantiate the restriction of his fundamental rights. If the practice of the Court were to simultaneously review several cases regarding the assessment of the constitutionality of identical acts, while the extent of the procedural rights of the petitioners was different, this would be contrary to the principle of procedural economy. In the case under review none of the subjects according to whose application the Constitutional Court could perform an abstract control of a legal norm (act), has addressed the Court. The task of the Constitutional Court is to, within the limits of its jurisdiction, to ensure the existence of such a legal system that would allow eliminating at the fullest and most exhaustive level possible regulation that does not comply with the Satversme or other legal norms (acts) of higher legal force, as well as to provide its opinion regarding constitutionally important issues. Consequently, in the case under review, the Constitutional Court has no reason to terminate proceedings before examining the case on the merits. 11.3 The argument that the application of the Petitioners should be regarded as actio popularis and that their rights have not been restricted is to be assessed within the context of establishing the scope of Article 101(1) of the Satversme. When reviewing cases regarding violations of specific fundamental rights, due to their specific nature it is necessary to merge the conclusion regarding the restriction of the right with the examination of the case on the merits. Although the Constitutional Court Law does not provide for it, the Constitutional Court concludes that there exist certain fundamental rights, the assessment of infringement of which requires the examination of the case on the merits. Such a procedure is provided, for example, by Article 29(3) of the ECHR (see, for example, the judgment of the European Court of Human Rights of 7 February 2008 in the case Kovach v. Ukraine, application no. 39424/02, para. 44; judgment of

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14 October 2008 in the case Blumberga v. Latvia, application no. 70930/01, para. 61). In the case under review, the Petitioners have pointed to, inter alia, the possible changes, by means of ratification of the TL, to the content articles of the Satversme that are of a substantial importance for the legal system of the Republic of Latvia. Taking into consideration these considerations, as well as the fact that the rights of the people to participate in the decision-making process regarding issues relevant to the State shall be regarded as substantial fundamental rights, the Constitutional Court has an obligation to provide the broadest possible assessment of the question whether the rights of the Petitioners have been infringed, and to examine the case on the merits. Consequently, the fact that the TL has not yet come into force, as well as the decision of the panel of the Constitutional Court regarding refusal to initiate a case regarding another application may not serve as the basis for the Constitutional Court to terminate proceedings in the case under review and not to assess the compatibility of the procedure of adoption of the impugned act with the Satversme. The Constitutional Court is entitled to review the question whether the TL, which amends the TEU and the TEC, has been ratified according to the procedure established in the Satversme and by observing the requirements of the Satversme regarding a national referendum. II 12. Article 101 of the Satversme envisages a right that serves as the guarantee to the existence of democratic system and which is directed to ensuring the legitimacy of the state system. However, this right is not absolute, as Article 101 of the Satversme includes the condition “in the manner prescribed by law” (see the judgment of 30 August 2000 of the Constitutional Court in the case no. 2000-03-01, para. 1 of the motives part). 13. The content of Article 101 of the Satversme must be interpreted in close conjunction with Article 89 of the Satversme which provides that the state shall recognize and protect fundamental human rights in accordance with the Satversme, laws and international agreements binding upon Latvia. When interpreting the Satversme and the international obligations of Latvia, a solution needs to be sought that would ensure harmony of norms (see the judgment of 13 May 2005 of the Constitutional Court in the case no. 2004-18-0106, para. 5 of the motives part). Consequently, international law and the practice of application thereof may serve as an instrument for determining the content of the legal norms and principles contained in the Satversme. 13.1. Article 25(a) of the UN International Covenant on Civil and Political Rights provides that “every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 [of the Covenant] and without unreasonable restrictions to take part in the conduct of public affairs, directly or through freely chosen representatives” The UN Committee on Human Rights has indicated in the General Comment no. 25 that “the allocation of powers and the means by which individual citizens exercise the right to participate in the conduct of public affairs protected by article 25 should be established by the constitution and other laws” [General Comment no. 25: The right to participate in public affairs, voting rights and the right of equal access to public service (Art. 25): 12/07/96. CCPR/C/21/Rev.1/Add. 7, para. 5]. The minimum standard established by Article 25(a) of the Covenant is that the public power must be based on the principle of sovereignty. Namely, the government is responsible before the people, whilst the people control the government. The way in which the rights of the people

to sovereignty are structured depends on the political system of the respective state. The Covenant does not provide for a specific model of democracy, and the states in this respect are granted a broad freedom of action (see M. Nowak, UN Covenant on Civil and Political Rights. CCPR Commentary, Kehl and Arlington, VA: N. P. Engel, 1993, pp. 441, 453). Such an approach is also confirmed by the practice of the UN Committee on Human Rights (see Communication no. 205/1986: Canada. 03/12/91. CCPR/C/43/D/205/1986, para. 6). The institute of a national referendum obviously complies with the modern understanding of a “direct” conduct of public affairs. The rights contained in Article 25(a) of the UN International Covenant on Civil and Political Rights are related to, but distinct from, the right of peoples to self-determination guaranteed by Article 1 of the Covenant. Article 1 provides that peoples have the right to freely determine their political status and to enjoy the right to choose the form of their constitution or government. Article 25, however, deals with the right of individuals to participate in those processes which constitute “the conduct of public affairs” [see General Comment no. 25: The right to participate in public affairs, voting rights and the right of equal access to public service (Art. 25): 12/07/96. CCPR/C/21/Rev.1/Add.7 para. 2]. The structure and the form of a state, according to which citizens are implementing their right to participate in “the conduct of public affairs”, is provided by the Satversme and laws. 13.2. The Saeima recognized in its written reply that Article 101(1) of the Satversme includes a broad range of issues, whilst only one of these issues is related to the participation of the citizens in a national referendum. Neither does Article 101 of the Satversme provide for the cases when a national referendum should be held, nor for the persons who have the right to participate in a national referendum. These cases are provided in other norms of the Satversme, for instance, Articles 48, 68, 72, 73, 77, and 78 (see the case materials, vol. 1, p. 58). The Ombudsman has also admitted that the right to participate in a national referendum is only one of the rights that follow from Article 101(1) of the Satversme (see the case materials, vol. 2, p. 45). The Constitutional Court holds that the words “to participate in the work of the state” shall be understood also as the right to participate in a national referendum. There is no reason to consider that Article 101(1) of the Satversme should be interpreted in such a way that it would apply only to the right to participate in processes that are already ongoing, namely, that it would be applicable only in the cases when the possible infringement of human rights could have occurred during an already ongoing national referendum. The drafting history of Article 101 of the Satversme does not indicate that the legislator intended to provide only for the right of private persons to participate in already ongoing activities (see the case materials, vol. 1, pp. 74-146). M. Mits, taking into consideration the drafting history of Article 101 of the Satversme and international documents on human rights, correctly drew the attention of the Court to the fact that the participation in the work of the state may be carried out directly or indirectly, whilst the above-mentioned norm of the Satversme incorporates both of these forms of participation (see the transcript of the hearing of the Constitutional Court of 4 March 2009, case materials, vol. 4, pp. 118 and 119). 13.3. Article 101(1) of the Satversme is applicable also to the right to request a national referendum if such a right is not expressis verbis provided for in the Satversme or a law, and this request pertains to the cases for holding a referendum guaranteed by the Satversme. A private person on the basis of Article 101 of the Satversme may request the application of the constitutionally guaranteed procedure of a national referendum or to ask to assess whether the adoption of a particular law complies with the right to

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participation as guaranteed by the Satversme. A national referendum, however, may not be held if the constitution or a normative act in conjunction with the constitution does not provide for it. This is the case, for instance, when deciding on a particular issue falls within the exclusive competence of the parliament [see: Code of Good Practice on Referendums, adopted by the Council for Democratic Elections at its 19th meeting, Venice, 16 December 2006, and the European Commission for Democracy through Law (Venice Commission) at its 70th plenary session, Venice, 16-17 March 2007, Study no. 371/2006, CDL-AD (2007)008, Strasbourg, 19 March 2007, p. 11]. Consequently, private persons may not request the creation of a participation procedure that is not provided for in normative acts but is desirable (see the opinion of M. Paparinskis, the case materials, vol. 3, p. 44). In the case under review, the Petitioners have indicated two norms of the Satversme that provide for the right of full-fledged citizens of the Republic of Latvia to participate in a national referendum. Consequently, there is no doubt that the request is based on the norms that provide for submission of certain questions to a national referendum, and the Petitioners do not ask to introduce new norms to the Satversme or to repeal any norms of the Satversme currently in force. In order to assess whether, taking into consideration the procedure of TL ratification, the fundamental rights of the Petitioners have been breached, it is necessary to establish whether the Petitioners have been conferred such rights in accordance with Article 101 of the Satversme in conjunction with Article 2 of the Satversme. If the Constitutional Court will establish that the rights of the Petitioners have not been infringed, it will have to assess whether the infringement would have been caused by interpreting Article 101 of the Satversme in conjunction with Article 68(4) of the Satversme. The Petitioners have the right to ask the Constitutional Court to assess whether the Saeima, when adopting the impugned act, has acted correctly by not submitting it to a national referendum as established in Article 77 or Article 68(4) of the Satversme. III 14. Article 2 of the Satversme provides that the sovereign power of the state of Latvia is vested in the people of Latvia. The principle of sovereignty of people is enshrined in this norm (see the transcript of the 1st meeting of the 4th session of the Constitutional Assembly of 20 September 1921). Under the principle of sovereignty, the people of Latvia is the only subject of the sovereign power. The Satversme divides the power of between the body of Latvian citizens and the Saeima; however, it guarantees the exclusive right to deal with the fundamental norms of the Satversme of the Latvian people, namely, to repeal the constitution or to establish a new constitutional order (see the judgment of 29 November 2007 of the Constitutional Court in the case no. 2007-10-0102, para 31.1). First, under Article 78 of the Satversme, the body of the citizens of Latvia may adopt a draft of amendments to the Satversme. Second, according to Article 77 of the Satversme, only the body of the citizens of Latvia may amend Articles 1, 2, 3, 4, 6 and 77 of the Satversme. The norms mentioned in Article 77 of the Satversme “are the most essential articles of our Satversme; it is impossible to change the republican and democratic nature of our state structure without amending these articles. The people of Latvia are therefore delegated the authority to protect these articles of the Satversme; they can only be amended on the basis of the will of the people expressed by means of a national referendum (obligatory referendum)” (Dišlers K. Ievads Latvijas valststiesību zinātnē. Rīga: A. Gulbis, 1930, p. 110). Consequently, the Saeima

may not ignore the right of the people to participate in the decision-making process that follows from the provisions of Article 2 of the Satversme. In order to establish whether in the case under review any infringement of the fundamental rights of the Petitioners has occurred, the Constitutional Court has to assess whether the Petitioners had the rights, “established by law”, to participate in the work of the state, namely, the rights to participate in a national referendum under Article 77 of the Satversme. 15. First of all, the Constitutional Court must establish whether, when adopting the impugned act, Article 2 of the Satversme could have been amended and, if so, whether such amendments have occurred in the case under review. 15.1. The Petitioners have indicated in their application, the amendments to the application, as well as at the hearing of the Court that Article 2 of the Satversme may also be amended without changing its text. Articles 1, 2 and 3 of the Satversme provides for the fundamental principles of the structure of the Latvian state. These fundamental principles are expressed in the form of abstract and conceptual axioms, and the above-mentioned articles do not contain any reference to the procedures for their amendment or implementation. The establishment of such procedures is the task of the articles of other chapters of the Satversme. The Constitutional Court has already indicated in its case-law that it is possible to adopt laws, including laws on ratification of international treaties, that restrict Articles 1 and 2 of the Satversme, and that adoption of such laws without submitting them to a national referendum is unconstitutional according to Article 77 of the Satversme (see the judgment of 29 November 2007 of the Constitutional Court in the case no. 2007-100102, paras. 28.4 and 42.3 of the motives part). 15.2. The representative of the Saeima recognised this opinion of the Petitioners as correct and indicated that “the Saeima does not disagree that amendments to Article 2 of the Satversme are not only grammatical; they may also be contextual, which means that the amendments can be related to other legal acts by which the sovereignty might be changed or its extent might be affected” (the transcript of the hearing of the Constitutional Court of 4 March 2009, the case materials, vol. 4, p. 55). […] Therefore it can be concluded that in the case under review there is no dispute about the fact whether Article 2 of the Satversme can be amended without introducing textual changes into this article but only including such changes into other legal acts. Consequently, the Constitutional Court must assess whether as a result of the adoption of the impugned act the principle of the sovereignty of the people enshrined in Article 2 of the Satversme has been affected and whether after the adoption of the impugned act it had to be confirmed in a national referendum according to the procedure established in Article 77 of the Satversme. 16. In their application, the amendments of the application, and at the hearing of the Court the Petitioners maintained different claims regarding the norms of the TL that possibly infringe Article 2 of the Satversme. In order to assess the possible infringement of Article 2 of the Satversme, the Constitutional Court must analyse the respective norms of the TL referred to by the Petitioners. 16.1. The principal argument of the Petitioners is related to the restricted rights to withdraw from the EU. Initially the Petitioners indicated that the right of “the last word” of the people means the right to immediately withdraw from the EU because

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“since such a statement has been expressed regarding the withdrawal from the EU, then there must exist some serious reason, yet the people must suffer for two more years irrespective of their dissatisfaction” (amendments to the constitutional claim lodged by the Petitioners, the case materials, vol. 3, p. 74). Likewise, the Petitioners have indicated that Latvia would not be able to participate in the negotiations regarding the withdrawal agreement. At the hearing of the Court the Petitioners changed their submissions by admitting that, according to their mind, withdrawal would not always be possible without the established term of two years because the state would have incurred many secondary liabilities that could cause certain consequences. Moreover, in the case of withdrawal, it is not clear to what extent Latvia would be able restore the situation that existed at the time of joining the EU (see the transcript of the hearing of 4 March 2009 of the Constitutional Court, the case materials, vol. 4, p. 39). The Petitioners, however, did not specify the way and the extent to which it would be possible to restore the situation of 2004; neither did they explain what mutual actions of Latvia and the EU would be necessary to enable an immediate restoration of this situation by circumventing the requirement regarding mutual agreement. Article 50 of the TEU provides: “1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements. 2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament. 3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period. 4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it. A qualified majority shall be defined in accordance with Article 238(3) (b) of the Treaty on the Functioning of the European Union. 5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.” 16.2. The cited article of the TEU is a new norm. Previously the procedure for th Member States’ withdrawal from the EU was not regulated in the fundamental treaties. Having assessed this article, the Constitutional Court holds that the arguments of the Petitioners regarding the withdrawal procedure shall not be regarded as wellfounded due to three reasons. First, the regulation regarding the withdrawal rights is not a restriction of the sovereignty of the people because, at present, Article 54(b) of the Vienna Convention already provides for the withdrawal procedure from an international treaty. The abovementioned norm of the TEU shall be regarded as lex specialis regarding Article 54(b) of the Vienna Convention that provides that the termination of a treaty

or the withdrawal of a party may take place at any time by consent of all parties after consultation with the other contracting states. Moreover, the TL provides for broader guarantees if compared to the general international law. According to Article 50(3) of the TEU the State shall have the right to withdraw from the EU after the term of two years even if it has not come to an agreement with other States. According to Article 50(2) of the TEU, there is no need to receive the consent of all Member States because a withdrawal agreement is concluded by the Council if there is a qualified majority. Second, the Petitioners erroneously believe that Article 50 of the TEU prohibits Latvia from participation in the elaboration of the rules of the withdrawal. This article only provides that the representatives of Latvia shall not participate in the negotiations on behalf of the EU. Latvia, however, preserves its rights as an independent contracting party. The Constitutional Court indicates that in this context the term of two years is substantial for Latvia in order to ensure the most lenient possible withdrawal procedure, while observing the rights and legal interests of the state and its citizens that they would have exercised while Latvia was a Member State of the EU. Consequently, it is not only desirable but also indispensible to have a period during which it would be possible to reach a compromise regarding those persons who are exercising any of the fundamental freedoms of the EU at the respective moment, for instance, persons who are legally residing and working in other EU Member States or have concluded an agreement on supply or purchase of goods, provision of services, recognition of qualifications, functioning of affiliates of an enterprise, as well as who have exercised other rights in other states of the world that are a party to special agreements with the EU and that these persons would lose in the case of Latvia’s withdrawal from the EU. Thirdly, the term of two years per se does not restrict the possibility of Latvia to withdraw from the EU because Article 50(3) of the TEU does not exclude the possibility that an agreement regarding the withdrawal could be achieved sooner. It is also possible to agree with the opinion of the representative of the Ombudsman that was expressed at the hearing of the Court that the term of two years established in the above-mentioned article is proportionate (see the transcript of the hearing of the Constitutional Court of 4 March 2009, the case materials, vol. 4, p. 96). Article 50 of the TEU that provides for the rights of the Member States to withdraw from the EU does not amend the content of Article 2 of the Satversme. 16.3. The Petitioners have also indicated that the EU is gradually becoming a state entity or a federal state, which means that, after coming into effect of the TL, a European people would be created (see the case materials, vol. 4, pp. 79 and 85). The Constitutional Court does not agree with these arguments of the Petitioners. First, according to the fundamental principles of international law concerning the creation of states, it is necessary to put forth a specific demand regarding formation of a state without breaching the territorial integrity of states and observing national constitutional provisions. This would mean that all the inhabitants of the EU Member States, by exercising their right to self-determination, would have to put forth such demand in accordance with the constitutional requirements of each state. The principle of self-determination includes three elements: the right to selfdecision, the right to self-organization and the right to self-government. The right of the people to self-decision as an element of the principle of selfdetermination means the right of the people to freely and independently decide on its political status by adhering to another state on the basis of autonomy or by separating

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from another state and establishing their own independent state in accordance with the norms of the national law. The right to self-organization of people is the right to independently establish the structure of their state in a constitution that is adopted by a national referendum or a constitutional assembly. The right of self-government of people is the right to implement the state power in accordance with the provisions of a constitution (see the judgment of 29 November 2007 of the Constitutional Court in the case no. 2007-10-0102, para. 18.1). The TL contain any norm that would manifest the will of the EU to become a state, and the inhabitants of the EU Member States have not requested the possibility to exercise their right to self-determination within the EU. Neither the impugned act nor the TL include direct references to any such demand regarding the right to selfdetermination. On the contrary, the TEU expressis verbis provides for the respect of the identity and sovereignty of the Member States, which is emphasized even more than in the currently effective treaties. Article 4(2) of the TEU provides that he Union shall respect the equality of Member States as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. The EU respects the essential state functions, including ensuring the territorial integrity of the state, maintaining law and order and safeguarding national security. These functions remain the responsibility of each Member State. This norm guarantees that there will continue to exist states and their fundamental constitutional structures, as well as their values, principles, and fundamental rights that cannot be lost along with the strengthening of a supranational organization. The national identity of the Member States is an essential fundamental value of the EU that, being enshrined in treaties, creates legal consequences. The EU exercises its competences not by expressing the will of a single sovereign, but rather as a common exercise of public power by various involved states. This is also confirmed by Article 1 of the TEU that provides that the Member States establish among themselves a European Union, on which they confer competencies to attain common objectives. The EU is not a state, but rather a new form of political and legal order [see: A. Von Bogdandy, Doctrine of Principles. In: European Integration – The New German Scholarship, J.H.H. Weiler, A. von Bogdandy (ed.), Jean Monnet Working Paper Series 9/03.1. NYU School of Law, New York 2003, 1-50, pp. 10, 12]. Second, under Article 48 of the TEU and also according to the former Article 48 of the TEU, the Treaties can be amended if all Member States agree to the amendments in accordance with their constitutional requirements and, if necessary, making a compromise regarding exceptions in the terms of the membership. Consequently, the people of Latvia does not lose their rights to object, directly or through authorized representatives, to any changes within the European Union, including the changes that do not comply with the Satversme. The role of the EU institutions in the procedure of amending the Treaties is not decisive. The EU institutions do not have the right to adopt final decisions, although they do have the right to initiate revision of the Treaties. This is an essential characteristic of an organization based on international law. This is how the EU differs from a federal state. In federal states mainly federal institutions adopt amendments to the constitution. Even if federal entities (for instance, lands, states, cantons) have the right to participate in the drafting process of amendments to a constitution, no consent of all entities is required for the amendments to enter into force.

Third, when providing arguments for their opinion regarding the formation of the European people, the Petitioners referred to the Charter of Fundamental Rights (hereinafter – the Charter) and Article 9 of the TEU. The Constitutional Court concludes that no such conclusion follows from the text of the TEU or the Charter. The Preamble of the TEU recurrently refers to the interests of the European peoples. Also in the further text of the TEU the need to improve the welfare of peoples, not the people, is emphasized as one of the basic tasks of the EU (see, e.g., Article 3 of the TEU). The Preamble of the Charter, to which the Petitioners refer, establishes expressis verbis that European peoples, rather than the people, form a close mutual association, want to enjoy a peaceful future that would be based on common values. Article 9 of the TEU, as indicated by the Petitioners, is not to be regarded as a new norm. It literally duplicates the currently effective Article 17 of the TEC that provides for conferring citizenship to persons who have been naturalized in accordance with the legislation of Member States. Moreover, the EU Member States enjoy such a freedom of action that they are entitled to supplement the Treaty with a declaration providing for persons to be regarded as EU citizens at the EU level. This article has been included into the Treaty already in 1992 by introducing amendments to the Maastricht Treaty. The Member States, however, who have supplemented the Treaty with a declaration, must observe the obligations that flow from the ECHR (see: the judgment of the European Court of Human Rights of 18 February 1999 in the case “Matthews v. the United Kingdom”, application no. 24833/94; case C-145/04 Kingdom of Spain v. United Kingdom of Great Britain and Northern Ireland [2006] ECR I-7917). Consequently, the Constitutional Court has no reason to conclude that approximation of the EU to a state entity would take place after coming into force of the TL or that the European people would be formed by means of the TL. 17. In order to assess the most substantial changes that are introduced by the TL according to the Petitioners, they cannot be reviewed separately; it is necessary to take into consideration the full body of changes, as well as the balance of rights and duties that is being achieved within the EU. The Constitutional Court recognizes that the state of Latvia is based on fundamental values that, inter alia, include fundamental rights and fundamental freedoms, democracy, sovereignty of the state and people, separation of powers and rule of law. The state has the duty to guarantee these values and they cannot be infringed by amending the Satversme by means of only a law. Consequently, the delegation of competencies cannot exceed the rule of law and the basis of an independent, sovereign and democratic republic based on the fundamental rights. Likewise, it cannot affect the right of citizens to decide upon the issues that are substantial for a democratic state. The content of Article 2 of the Satversme provides not only for “the right to the last word” but also the duty to assess the rules of functioning of an international organization as such. In this context, “the right to the first word” appears to be more important, which is a legitimate acceptance of implementation of sovereignty in a certain way, namely, the objective, nature and structure of an organization that is implementing a competence, as well as the ability of the state and its citizens to affect the implementation processes of the competence. Consequently, it is necessary to assess at what moment exercise of sovereignty for the purpose of undertaking international obligations reaches the level when a constitutional procedure must be used in order to legitimize the exercise of sovereignty in the national law system (see the opinion of M. Paparinskis, the case materials, vol. 3, pp. 47, 48 and 50).

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Already before the World War II, when analysing the legal consequences that emerge when a state undertakes international obligations, in international law sovereignty was seen as the exercise of sovereign rights rather than the restriction thereof. The right to undertake international obligations is an element of state sovereignty. The Permanent Court of International Justice has indicated: “The Court declines to see in the conclusion of any treaty by which a State undertakes to perform or refrain from performing a particular act an abandonment of its sovereignty. But the right to enter into international engagements is an attribute of State sovereignty” (Affaire du Vapeur „Wimbledon”, CPJI Ser A 01 15, 1923, 25). When analysing the relations of states and international organizations, it has been admitted that international organizations are institutions in the frameworks of which the states are pooling their sovereignty and resources in order to solve common problems and find common solutions for them by thus acting in favour of their national interests (see Scelle G., L’admission des nouveaux membres de la Société des Nations // Revue Générale de Droit International Public, 1921, vol. 28, pp. 122, 125-127; Huber M., Die soziologischen Grundlagen des Völkerrechts, Berlin, 1928, ss. 18, 23; Lauterpacht H. (ed). Oppenheim’s International Law, Fifth edition, London, 1937, p. 308). The notion of sovereignty has always been related to the use of power in internal and foreign relations, and this use has always been subjected to sovereign values establishing it. Values attach normative character to the sovereignty that can be used to assess the order established in a given society, which in our case means the relations between a state and an international organization (sk.: Sarooshi D., International Organizations and Their Exercise of Sovereign Powers, Oxford Monographs in International Law, 2005, p. 9). A state may be a member of such international organizations, the legal relations between the institutions and member states of which may differ, and in each particular case these relations would differently affect the respective constitutional norms, even if the organization is endowed with an international legal personality. Consequently, the Constitutional Court must assess whether possible amendment of Article 2 of the Satversme has occurred along with the amendments to the EU fundamental treaties referred to by the Petitioners. 18. In their amendments of the claim the Petitioners have mentioned several considerations due to which, according to them, Article 2 of the Satversme should be regarded as having been amended. Without mentioning any particular articles of the EU fundamental treaties, caselaw of the European Court of Justice or other facts of legal nature, the Petitioners have not substantiated the differences between legal regulation which is presently effective in accordance with the EU fundamental treaties, and the legal regulation that would be established by the TL after coming into force thereof. However, the Constitutional Court holds that it is necessary to assess the allegations of the Petitioners. 18.1. Both in the amendments of the claim and at the hearing of the Court the Petitioners mentioned the following aspects that allegedly affect Article 2 of the Satversme: 1) the status of the EU as a legal person; 2) the volume and the vagueness of delegated functions, including broadening of the exclusive competences;

3) the changes in the decision-making procedures that provides for circumventing the parliaments of the Member States and increasing the role of the European Parliament and the European Council; 4) the common foreign and security policy, including armed forces of the EU; 5) the flexibility clause and the passarelle procedure; 6) the establishment of the European Public Prosecutor’s Office; 7) the adoption of the Charter and acceding to the ECHR; 8) the formation of the EU Judicial Panel, the establishment of the positions of a Chairman of the EU and the EU Foreign Affairs Commissioner, as well as the fact that Latvia would be represented by a commissioner only for two out of three terms of office of the Commission; 9) the insufficient information on amendments that the TL would introduce into the EU fundamental treaties. The Constitutional Court will not assess the usefulness of introduction of certain articles into the EU fundamental treaties, which is the question of political determination. The task of the Constitutional Court is not to permit the possibility that Article 2 of the Satversme would be amended by using the incorrect procedure. Consequently, the Constitutional Court must ex officio assess the aspects mentioned by the Petitioners that could cause a possible breach of Article 2 of the Satversme. 18.2. The Petitioners indicate that under Article 47 of the TEU the EU is conferred the status of a legal person. This means that approximation of the EU to a status of a state entity would continue. The Constitutional Court concludes that after coming into effect of the TL the EU would continue functioning primarily on the basis of two treaties, the TEU and the TFEU, and both these treaties would have equal power. Before this, the EU was functioning based on the so-called pillar system, where only the first pillar – the European Community – had the status of a legal person. The fact that an international organization has the status of a legal person does not per se mean that this organization is being approximated to a state entity. It was indicated by the International Court of Justice: “The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community” (Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion, April [1949] ICJ Rep. 174, 178). Consequently, the ICJ concluded that international organizations are not “states” or “super-states” but instead they are a different type of subjects of international law. By means of its opinion, the International Court defined the basic requirements for an international organization, including the need to possess the status of a legal person and indirectly delegated authority (see Klabbers J., The Life and Times of the Law of International Organizations, Nordic Journal of International Law 70: 287-317, 2001, pp. 302-303). International organizations, in contrast to states, may use their status of a legal person only within the competences delegated to them, and these competences are mainly established in the establishing treaty. Consequently, in order to assess whether the TL amends the content of Article 2 of the Satversme, it is important to find out what new competences have been delegated to the EU and whether they are defined sufficiently clearly, rather than the fact that the EU has gained the status of a legal person. Consequently, the Constitutional Court must assess those amendments to the TL that have been mentioned by the Petitioners and that pertain to the new or changed competences of the EU.

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18.3. The Petitioners have indicated that after coming into force of the TL, 32 new competences would be delegated to the EU (see the transcript of the hearing of the Constitutional Court of 4 March 2009, the case materials, vol. 4, p. 80). In the amendments of the claim it has been indicated that the EU may refuse to accept the delegated competences by giving them back to the Member States. As examples for additionally delegated competences the Petitioners mentioned, at the hearing of the Court, such competences as the energy policy and the trade policy. In this context, the Petitioners also drew attention to the changes in the decision-making procedure. The Constitutional Court holds that the assessment of the delegated competences must be based on the fact that the delegation of competences to the EU and the integration of the legal acts of the European Community into our system establishes certain restrictions that are permissible only in the case if the EU law is compatible with the principles of a democratic state and the sovereignty of the people that follow from Article 1 and Article 2 of the Satversme. The Constitutional Court indicates that delegation of certain competences to the EU shall be regarded as the use of sovereignty of people for reaching the aims set forth in the EU treaties rather than weakening of the sovereignty of the people. Neither the currently effective treaties, nor the objectives mentioned in Article 3 of the TEU that pursuant to paragraph 6 of this article the EU is striving to achieve within the framework of its competence contradict the values and interests enshrined in the Satversme. At the same time, as the EU integration develops, it is necessary to take into consideration that Article 2 of the Satversme does not allow an unlimited delegation of competences, which would deprive Latvia its status as a sovereign state. In the case under review, taking into consideration the references made by the Petitioners, there is no reason to establish that the EU would be delegated new exclusive competences in accordance with Article 3 of the TEU. The EU has always enjoyed broad exclusive competence in the issues related with trade (see, e.g.: http:// europa.eu/abc/panorama/index_en.htm). This is related not only to the area of regulation of the EU internal market but also to the issues of the EU external trade. For instance, the EU represents its Member States in the World Trade Organization since 1 January 1995. By coming into force of the TL, the protection of trademarks, design patterns, patents and copyright protection will be harmonized. These changes are related with the need to achieve the objectives of the Lisbon Strategy adopted in 2005 regarding the increase of innovations, research and the competitiveness of the single market. Likewise, the competence in trade policy will be broadened regarding specific aspects, for instance, regarding direct foreign investments. The Constitutional Court concludes that the opinion of the Petitioners that after coming into force of the TL the power industry would become an exclusive competence of the EU is ill-founded. As to the energy policy, Article 4 of the TFEU provides that the Member States and the EU shall have separate competences. Because of the present structure of the Treaty, the energy policy is not regulated in a separate chapter. The EU, however, when exercising its present competences that are delegated to it within the framework of the regulation regarding internal market, environment protection and other fields, has already adopted respective legal acts and elaborated energy policy. For instance, documents regarding the taxation of power-supply points, regarding public procurement, internal market as well as environment protection have been adopted [see the Council Directive of 20 December 1968 imposing an obligation on Member States of the EEC to maintain minimum stock of crude oil and/or petroleum products; the Council Directive 98/93/EC of 14 December 1998, amending Directive 68/414/EEC imposing

an obligation on Member States of the EEC to maintain minimum stock of crude oil and/or petroleum products; the Directive 2006/32/EC of the European Parliament and of the Council of 5 April 2006 on energy end-use efficiency and energy services and repealing the Council Directive 93/76/EEC]. Already at present there are several mechanism in force that are relate to energy technologies, European power supply networks, power supply security, climate change and nuclear waste. Likewise, the European Energy Charter (confirmed by the Decision 98/181/EC of 23 September 1997 by the European Communities of the Energy Charter Treaty and the European Coal and Steel Community) and the Energy Community Treaty (confirmed by the Council Decision 2006/500/EC of 29 May 2006) have been adopted. Euratom is also effective at the moment and it regulates several issues related to energy. A separate chapter is devoted to energy in the TL, thus separating it from other related issues. In this chapter of the TL it is provided that the main objectives of the EU membership is to ensure the functioning of the energy market, to ensure power supply security, effective use and economy of energy, as well as the identification of new and renewable sources of energy. A considerable amendment in the field of energy is the so-called principle of solidarity, according to which in case if any EU Member State has landed in serious difficulties regarding power supply, the duty of other Member States is to provide assistance (see Article 122 of the TFEU). Consequently, there is no reason to maintain that the competence delegated to the EU in the field of energy would broaden considerably after coming into effect of the TL and that these amendments create an infringement of Article 2 of the Satversme. The effective treaties do not include any such an enumeration. On the other hand, Article 5 of the TEU and Title I of the first part of the TFEU “Categories and Areas of Union Competence” precisely define the division of competencies between the EU and its Member States. Enumeration of the competences provided in Articles 4 and 6 of the TFEU ensure a more transparent functioning of the organization. This does not change the situation that has occurred after joining the Union; it only simplifies, restructures it and makes it more precise. A clear separation of competences by the TL in generally guided towards legal certainty and positive development of mutual relations between the national and the EU legislation. Moreover, the EU, when exercising its non-exclusive competences, must observe the principle of subsidiarity and the principle of proportionality which restrict the possibility to broaden the competences. At the same time, national parliaments would be involved to monitor the application of these principles (see: Article 5 of Protocol No. 2 of the TFEU “On the Application of the Principles of Subsidiary and Proportionality”). The above-mentioned norms and the principles form a sufficiently precise normative framework that permits to clearly define the extent of competences that would be delegated to the EU according to the TL. All the EU institutions also have to ensure a continuous observance of the principles of subsidiarity and proportionality. The European Court of Justice will monitor the exercise of the competences on the basis of Article 263 of the TFEU and by means of the preliminary rulings procedure that is established in Article 267 of the TFEU. It is not possible to disagree with the Petitioners that the European Court of Justice “has declared itself to be the engine of the integration of the European Union” (the transcript of the hearing of the Constitutional Court of 4 March 2009, the case materials, vol. 4, p. 32 and the transcript of the hearing of the Constitutional Court of 10 March 2009, the case materials, p. 129). Although certain judgments of this court

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have raised discussions on their long-term consequences, such conclusion cannot be applied to all of its opinions, especially concerning the undertaking of new competences in the framework of the EU (see, e.g., Opinion 2/92 Competence of the Community or one of its Institutions to Participate in the Third Revised Decision of the OECD on National Treatment [1995], ECR I-521; Opinion 2/94 Accession of the Community to the European Human Rights Convention [1996] ECR I-1759; Opinion 1/94 Competence of the Community to Conclude International Agreements Concerning Services and the Protection of Intellectual Property, WTO [1994] ECR I-5267, Craig P., de Búrca G., EU Law. Text, cases and materials. 4th ed., Oxford University Press, 2008, pp. 9798). In the doctrine it has also been indicated that the European Court of Justice shall no more be regarded as “the engine of the integration”; its task is to ensure balance between the competences and functions of the institutions, between the Member States and their citizens (see: Albi A., Supremacy of EC Law in the New Member States. Bringing Parliaments into the Equation of Co-operative Constitutionalism, European Constitutional Law Review, 3: pp. 25-67, 2007, p. 40). 18.4. At the hearing of the Court sitting the Petitioners repeatedly reiterated that, as the procedure of voting in the Council changes, the possibility that Latvia as a small state will no longer be capable to appropriately protect its interests would increase. “The influence of Latvia in the Council will decrease from 1.2 to 0.4 percent” (the transcript of the hearing of the Constitutional Court of 4 March 2009, the case materials, vol. 4, p. 32 and the transcript of the hearing of the Constitutional Court of 10 March 2009, the case materials, vol. 4, p. 128). Moreover, the transition from consensus voting to the co-decision procedure will take place in several fields (see the case materials, vol. 1, pp. 9 and 10). Article 16 of the TEU regarding the procedures of voting in the Council provides: “2. The Council shall consist of a representative of each Member State at ministerial level, who may commit the government of the Member State in question and cast its vote. 3. The Council shall act by a qualified majority except where the Treaties provide otherwise. 4. As from 1 November 2014, a qualified majority shall be defined as at least 55% of the members of the Council, comprising at least fifteen of them and representing Member States comprising at least 65% of the population of the Union. A blocking minority must include at least four Council members, failing which the qualified majority shall be deemed attained. The other arrangements governing the qualified majority are laid down in Article 238(2) of the Treaty on the Functioning of the European Union. 5. The transitional provisions relating to the definition of the qualified majority which shall be applicable until 31 October 2014 and those which shall be applicable from 1 November 2014 to 31 March 2017 are laid down in the Protocol on transitional provisions.” The EU membership means that neither Latvia nor any other Member State has an absolute right to block every decision that is being adopted in the European Union. Latvia has not had such a right since the accession to the European Union. Although the TL does provide for several issues, decisions on which in the future will made based on the basis of qualified majority of votes rather than reached on consensus, the Constitutional Court agrees to the opinion of M. Mits that the possible decrease of influence of Latvia upon the EU institutions should be assessed in combination with the amelioration of the direct influence of Latvia (see the transcript of the hearing of

the Constitutional Court of 4 March 2009, the case materials, vol. 4, p. 120). As to this context, there are at least three substantial changes introduced by the TL. First, pursuant to Article 11(4) of the TEU, no fewer than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the European Commission to submit a proposal on matters where citizens consider that a legal act of the EU is required. According to Article 24(1) of the TFEU the European Parliament and the Council shall adopt a regulation concerning the procedure for the implementation of such an initiative. Second, Article 12 of the TEU and Protocol No. 1 to the TFEU “On the Role of National Parliament in the European Union” provides for encouraging of greater involvement of national parliaments in ensuring of the principle of subsidiarity and the principle of proportionality. National parliaments will receive all the draft legislative acts, participate in the assessment mechanisms of the area of liberty, security and lawfulness, will participate in the political supervision of the Europol and in the assessment of the work of the Eurojust as well as in the revision procedures of the Treaties and the accession procedures of new member states. If one-third of the Parliaments will object to the adoption of any act, then the Commission will have to reconsider it. Third, along with the TL, the so-called Ioannina Compromise, which is included in the Declaration No. 7 attached to the TL Final Act, will be introduced. According to the Article 16(4) of the TEU that provides for voting procedures in the Council after 1 November 2014, the so-called blocking minority that must include at least four Council members is established. According to the Compromise, the blocking minority will be formed, up until 31 March 2017, by three-quarters of the number of the Member States or EU citizens mentioned in Article 16 (4) After 1 April 2017, the restriction will be expanded to 55 percent of the Member States or number of citizens. In order to amend this Compromise, the Council must reach a consensus decision. Moreover, in the cases when a Member State will consider that any draft EU legal act affects its interests, financial equilibrium, the social security system or the domain of criminal law, it is entitled to initiate the termination of the legislative procedure. In this case, the European Council would be obligated to reach, within four months, a consensus decision regarding the continuation or termination of the legislative procedure. 18.5. The Petitioners hold that after coming into effect of the TL, Latvia would delegate the competence of the common foreign and security policy to the EU because in the future decisions will be adopted within the EU (see the transcript of the hearing of the Constitutional Court of 4 March 2009, the case materials, vol. 4, pp. 46 and 48). The Constitutional Court agrees with the opinion of the Petitioners insofar as the TL formally repeals the pillar system. The former second pillar – common foreign and security policy (hereinafter – CFSP) has been included in Title V of the TEU “General Provisions of the Union’s Action and Specific Provisions on the Common Foreign and Security Policy”. This is the only pillar that will be preserved at the intergovernmental level. Under Article 22 of the TEU, the external action of the Union will continue to have to be adopted unanimously with a view to reach the objectives established in Article 21 of the TEU. According to Articles 22 and 23 of the TEU this applies to all decisions regarding CFSP. Under Articles 24 and 31 of the TEU the common foreign and security policy is subject to specific rules and procedures that do not provide for the adoption of legislative acts. Under Article 275 of the TFEU neither will the EU Court have jurisdiction regarding these provisions. The only exception when the EU Court is entitled to review the CFSD decisions is the cases

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when these decisions are related to the rights of individuals (Article 40 of the TEU and Article 75 of the TFEU). Such practice also exists in the context of the effective Treaties. The European Court of Justice is already reviewing compliance of such regulations and decisions with the fundamental treaties that introduces sanctions for the European Community based on the UN Security Council resolutions or positions of the Council. In the result of the adoption of such acts, bank accounts of individuals are often blocked or travelling restrictions established in case if they are suspected of supporting international terrorism (see Cases 402/05 P and C 415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council [2008] judgment of 3 September 2008; Case T-284/08 People’s Mojahedin Organization of Iran v Council [2008] judgment of 4 December 2008). Consequently, the only substantial difference is that decisions, too, would be adopted with in the framework of the CFSP. As to the common foreign and security policy, it is provided that this policy is an integral part of the CFSP and it is undertaken using capabilities provided by the Member States (see Article 42 of the TEU). The TEU provides for elaboration of such policy based on unanimous decisions of the European Council, and it particularly emphasizes the fact that the common foreign and security policy will not concern the duties of the Member States in the NATO and will be consistent with these commitments. In general, the TEU requires the adoption of unanimous decisions and does not provides that the mutual obligations of the Member States would exceed those established in the treaty establishing NATO (see Article 42(7) of the TEU). 18.6. In the amendments to the claim the Petitioners referred to the flexibility clause and the passarelle procedure that allegedly points to the approximation of the EU to a state “element” (entity) (see the case materials, vol. 3, p. 85). Although the Petitioners have not specified the norm where the flexibility clause is included, the Constitutional Court believes that by mentioning the so-called flexibility clause the Petitioners have meant Article 352 of the TEU. The above-mentioned norm has been included into the EU fundamental treaties since the founding of the European Communities (see Article 308 of the TEU). Similar flexibility clauses are also included in the treaties establishing other organizations, and the International Court of Justice has found that they are an organic element of effective functioning of international organizations (see Advisory Opinion, Reparations for Injuries suffered in the service of the UN, ICJ, 11 April 1949). Moreover, the TL will introduce additional democratic guarantees, namely, the national parliaments will have the right to object in the case if the EU would elaborate new legal acts on the basis of Article 352 of the TFEU. The doctrine regards it as an amelioration of the functioning of the EU (see: Albi, p. 42). Passarelle procedure or the norms for simplified revision procedures for fundamental treaties are already included in the EU treaties (see, e.g., Article 42 of the TEU, Article 137(2) and Article 175(2) of the TEC). The EU fundamental treaties, even after the eventual coming into force of the TL, would not provide for an equal decision-making procedure within the EU; special decision-making procedures are provided alongside the ordinary decision-making procedure, namely, the co-decision procedure: the adoption of an unanimous decision sometimes by means of a consent provided by the European Parliament or after consulting with the European Parliament. It will not be possible to change the EU competences in accordance with the passarelle procedure, whilst it will be possible to introduce amendments into the procedure of the decision-making procedure within the EU by transiting from the special decisionmaking procedure to the co-decision procedure. Article 48(7) of the TEU provides for

two kinds of passarelle procedures. First, the Member States may agree on the transition to the co-decision procedure. Second, the Member States may agree on decision making by a qualified majority of votes in the Council without amending the procedure regarding the involvement of the European Parliament in the decision-making process. The Council is entitled to adopt such decisions unanimously by also receiving the consent of the European Parliament. As a substantial change in the present regulation regarding the decision-making procedure can be regarded the fact that the national parliaments must be informed about the planned changes in the decision-making procedure, the parliaments being allowed to use their veto rights within six months. Consequently, the argument of the Petitioners that amendments to the Treaty could be introduced without the consent of the Saeima is ill-founded. The national parliaments will have no such authority only regarding the already effective passarelle norms. The TFEU also provides for several exceptions when the passarelle norms may not be applied (see Article 353 of the TFEU). Consequently, the Constitutional Court concludes that Latvia will have the rights and the possibility to block changes of the decision-making procedure that are undesirable for it and the Saeima will have the possibility to express its opinion before the coming into force of such changes. 18.7. In the amendments of the claim and during the hearing of the Court the Petitioners indicated that the EU would be approximated to a state entity because the European Public Prosecutor’s Office would be created. At the hearing of the Court the representative of the Saeima indicated that the TL does not provides for establishing of a common Public Prosecutor’s Office at the European level and “it is only a political position that may be implemented” (see the transcript of the hearing of the Constitutional Court 4 March 2009, the case materials, vol. 4, p. 61). The Constitutional Court finds that, first, according to Article 86(1) of the TFEU, establishing of the European Public Prosecutor’s Office is just a possibility, namely, also after coming into effect of the TL the European Public Prosecutor’s Office will not be formed automatically. Second, the regulations, by means of which the Eurojust could be reformed into the European Public Prosecutor’s Office have to be adopted by a unanimous decision of the Council and with the consent of the European Parliament. Thus, during elaboration of the abovementioned regulations the Republic of Latvia will have the possibility to express its opinion and, if necessary, to block adoption of a decision. Third, even if the European Public Prosecutor’s Office were to be created, one could not agree that it would take over or have a considerable impact on the competence of the judiciary or the public prosecutor’s office of the Republic of Latvia. Although the planned competence of the European Public Prosecutor’s Office would differ from the present competence of Eurojust, which is to coordinate the collaboration between states for combatting international and organized crime, it would still include only the issues related to the financial interests of the EU or issues of transboundary importance. The Petitioners have not indicated any other aspects why establishment of the European Public Prosecutor’s Office would be impermissible. Consequently, the Constitutional Court recognizes this argument of the Petitioners as ill-founded. 18.7. The Petitioners indicate that the EU cannot accede to the ECHR, which confers such rights only to states. The human rights established in the Charter can also be compared to the rights established in Chapter 8 of the Satversme, and the application of the Charter may prove to be incompatible with the Satversme (see the transcript of

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the hearing of the Constitutional Court of 10 March 2009, the case materials, vol. 4, p. 132). The Constitutional Court first of all indicates that Article 6(2) of the TEU provides only that “the Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties”. Consequently, the objective is set assuming that such accession may take place only in accordance with the provisions of the TEU and ECHR. The fact that under Article 6(2) and (3) of the TEU the Charter and the ECHR become binding within the EU is not incompatible with the Satversme because both of these documents are based on similar values and principles. Moreover, the Constitutional Court has reiterated that the objective of the legislator has not been to contrast the norms of human rights established in the Satversme with international legal norms. By its essence the Satversme cannot envisage a lesser scope of ensuring or protecting fundamental rights than is envisaged in any of the international human rights acts. A different conclusion would be at variance with the idea of a state governed by the rule of law that is incorporated in Article 1 of the Satversme, because one of the main forms of expression of a state governed by the rule of law is the recognition of human rights and fundamental freedoms as the highest value of the state (see the judgment of the Constitutional Court of 14 September 2005 in the case no. 200502-0106, para. 10). Moreover, it must be indicated that on 28 March 2006 Latvia ratified Protocol no. 14 to the ECHR (see the law of 9 February 2006 “On Protocol no. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Amending the Control System of the Convention”). Article 17 thereof provides for amendments to Article 59 of the ECHR by supplementing it with a second paragraph that would give the possibility to the EU to accede to this Convention. The European Community has already acceded to 47 different Conventions of the Council of Europe (see http://conventions.coe.int/Treaty/Commun/Liste Traites. asp?CM=13&CL=ENG). Moreover, the Community represents the Member States in different international organizations or international treaties; for example, since 1995 – in the World Trade Organization, since 1 April 1998 – the UN Convention on the Law of the Sea in accordance with the restrictions of shared competences [see http:// www.wto.org/english/theWTO_e/countries_e /european_communitiese.htm and http:// www.un.org/Depts/los/referencefiles/chronological_lists_of _ratifications.htm#The%20 United%20Nations%20Convention%20on%20the%20Law%20of%20the%20Sea; C-459/03 Commission v. Ireland (Mox Plant) [2006] ECR I-4635]. Article 51 of the Charter clearly provides that it does not establish any new powers for the Community or the Union, or modify powers and tasks defined by the Treaties. It delegates responsibilities to the institutions and other subjects of the EU, as well as the Member States only in cases when they are applying the EU law. The Charter may not be applied in the fields that Latvia has not delegated to the EU. Consequently, the constitutional mechanism for the protection of human rights is autonomous and independent from the EU. Moreover, it has to be noted that along with recognising the Charter as a legally binding document, the protection of the rights of persons will be improved because hitherto it has been ensured only at the level of general principles of law but this is insufficient in the context of the principles of legal security and legal certainty (the decision of the Ruropean Court of Human Rights of 13 January 2005 in the case “Emesa Sugar v. Netherlands”, application no. 62023/00, decision of 13

January 2005, Case C-17/98 Emesa Sugar v. Aruba [2000] ECR I-665, Craig and Búrca, pp. 425-426). In the framework of the case under consideration, it is possible to establish that in the future, after coming into force of the TL, several systems for protection of human rights will exist, inter alia, the system of the Republic of Latvia, that of the EU and the ECHR. Latvia has already agreed to this step by ratifying Protocol no. 14 to the ECHR, which has not been contested before the Constitutional Court. Moreover, the Court cannot assess in abstracto the claim regarding a possible collision of different systems for protection of human rights. Such collisions will have to be solved at each particular case, taking into consideration the circumstances of each case. 18.9. The Petitioners indicated several institutional amendments that approximate the EU to a state entity, namely, the fact that offices of the EU Chairman and the EU Foreign Affairs Commissioner would be established, the fact that Latvia would be represented by a commissioner only for two out of three terms of office of the Commission, as well as the fact that European Judicial Panel with an extended scope of competences would be formed. The currently effective treaties provide that the chairmanship of the European Council is held by the head of the Presiding State or the chairman of its government who shall be conferred the respective authority for six months. Under Article 15(5) of the TEU the European Council shall elect its President, by a qualified majority, for a term of two and a half years, renewable once. Such planned changes of organizational nature would ensure a closer succession of the EU activities; however, they may not infringe the activities of Latvia as a sovereign state. The argument of the Petitioners regarding the establishment of the position of the EU Foreign Affairs Commissioner is unclear. Evidently the Petitioners have meant the merging of the competence of the foreign affairs commissioner and the High Representative of the Union for Foreign Affairs and Security Policy (hereinafter – the High Representative) by means of the new treaty. On of the tasks provided for in the Laeken Declaration was to ensure a greater legal capacity of the EU institutional framework and thus to ensure a more efficient and coordinated implementation of the foreign policy. Under Article 18 of the TEU the High Representative conducts the Union’s CFSP by submitting proposals and promoting the development of the policy as mandated by the Council. The same applies to the common security and defence policy. Although pursuant to Article 18(4) of the TEU the High Representative will conduct the Foreign Affairs Council, he will be responsible for responsibilities incumbent on the Commission in external relations and for coordinating other aspects of the Union’s external action. When working in the Commission, according to Article 18(2) and (3) of the TEU the High Representative will carry out his functions in accordance with the authority conferred by the Council. Consequently, although the High Representative will act within the framework of the Commission, it is possible to conclude that the functions of the commissioner of foreign affairs will be restricted because his competence will not be established by the Commission but by the Council. The competence of the High Representative will follow from decisions of the Council, wherein decisions are adopted unanimously, rather than from decisions of the Commission. This is also confirmed by Article 18(4) of the TEU that provides that in exercising the responsibilities within the Commissions, the High Representative will be bound by the Commission procedures to the extent that this is consistent with his authority conferred by the Council and complies with the decisions of the Foreign Affairs Commission.

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Consequently, like it is provided in the currently effective Articles 18, 26 and 27(d) of the TEU, the High Representative will be bound by the Council procedures rather than those of the Commission. This means that the High Representative will not be entitled to express any opinion and to undertake any initiative without a unanimous consent of the Council. Consequently, Latvia will not lose the right to restrict the scope of activities of the High Representative. The argumentation provided by the Petitioners is not precise regarding the reduction of the number of the commissioners provided by the TL either. First, a provision regarding the reduction of the number of commissioners was already provided for in the Treaty of Nice that was valid at the moment when Latvia joined the EU. The Treaty of Nice was supplemented by the Protocol on Enlargement of the European Union. Article 4 of the Protocol includes provisions regarding the Commission. Paragraph 2 of this article provides that once the Union consists of 27 Member States, Article 213(1) of the Treaty establishing the European Community and Article 126(1) of the Treaty establishing the European Atomic Energy Community shall be replaced by the following: “1. The Members of the Commission shall be chosen on the grounds of their general competence and their independence shall be beyond doubt. The number of Members of the Commission shall be less than the number of Member States. The Members of the Commission shall be chosen according to a rotation system based on the principle of equality, the implementing arrangements for which shall be adopted by the Council, acting unanimously. The number of Members of the Commission shall be set by the Council, acting unanimously. This amendment shall apply as from the date on which the first Commission following the date of accession of the 27th Member State of the Union takes up its duties.” Consequently, it was known already before the accession of Latvia to the EU that not every Member State will always be represented by one representative in the Commission. Second, according to the constitutional structure of the EU, the European Commission and the commissioners represent the common interests of the EU rather than the interests of a particular state. Under Article 17 of the TEU, the Commission shall promote the general interest of the Union and take appropriate initiatives to that end. It shall ensure the application of the Treaties, and of measures adopted by the institutions pursuant to them. Consequently, from the point of view of the protection of the national interests of each Member State it is not important whether each of them would be represented by their own commissioner. Third, as it has been indicated in the Presidency Conclusions adopted at the European Council meeting in Brussels, the European Council agrees that provided the TL enters into force, a decision will be taken, in accordance with the necessary legal procedures, to the effect that the Commission shall continue to include one national of each Member State (see Brussels European Council, Presidency Conclusions, 1112 December 2008, Brussels, 13 February 2009, 17271/1/08 REV 1, point 2). Such conclusions by the European Council, according to Article 4 of the currently effective TEU, provide for general development of the EU. The Constitutional Court concludes that the Petitioners by referring to the European Judicial Panel have possibly meant the Court of Justice of the European Union, which will include the Court of Justice, the General Court and specialised courts (see: Article 19 of the TEU). It is not planned to introduce substantial changes into

the EU judicial system by means of the TL, although certain rules providing details about the competences of the courts can be distinguished (see: Dougan, p. 673). The main of these rules are the following: simplified procedures regarding sanctions for the states that do not observe the EU acts; broadening of the competences regarding security, freedom and justice (see: Article 46 of the currently operating TEU and Title IV of the TEC), repeal of the restrictions of the jurisdiction of the court regarding the current Title VI of the TEU. As to the issues that are currently included in the third pillar a five-year transitional period is established. According to Article 276 of the TFEU, the Court of Justice of the European Union will have no jurisdiction to review the validity or proportionality of operations carried out by the police or other law-enforcement services of a Member State with regard to the safeguarding of internal security. The Constitutional Court indicates that Article 275 of the TFEU excludes jurisdiction of the Court of Justice over the CFSP and the acts that have been adopted in its framework. This Article, like previously, does not prohibit examining such issues that restrict the rights of natural and legal persons. After coming into force of Article 263(4) of the TFEU regarding legal acts that do not require further implementation activities from the Member States but restrict the rights of legal and natural persons, their rights to turn to the EU courts will be expanded. When assessing changes to the jurisdiction of the court in general, it is necessary to admit that the competence of the court to review decision that restrict the rights of individuals will increase [see: Spaventa E., Fundamental What? The difficult relationship between foreign policy and fundamental rights, in Cremone M. and de Witte B. (eds.), EU Foreign Relations Law: Constitutional Fundamentals, Hart Publishing, 2008]. Consequently, the Constitutional Court finds that, although the scope or the jurisdiction of the EU courts will increase, it will to a great extent be related with additional guarantees for the protection of the rights of natural and legal persons. 18.10. The Petitioners consider that the breach of the principle of sovereignty included in Article 2 of the Satversme manifests itself through the fact that “deliberate concealment of information from the society regarding the content and consequences of the Treaty of Lisbon” has been permitted, or the provided information has been eurooptimistic rather than neutral (the case materials, vol. 3, pp. 80 and 81). The Constitutional Court notes that the highest possible degree of awareness of the society on the issues regarding the EU shall without a doubt be evaluated positively, and this favours the transparency and foreseeability of the decisions adopted in this respect. Dissemination of additional information shall be regarded as manifestation of good administration, which at the same time increases the understanding of the society regarding the specific issue and creates the basis for broader discussions on possible problematic issues. As a result of such awareness, the society has the possibility to participate in the decision-making process of national importance regarding integration issues into the European Union. The Constitutional Court indicates, however, that is has no reason to recognize the process or the way in which the society was informed about the TL, as a possible infringement or restriction of the sovereignty of the people. Actions of national institutions when informing the society on the issue insofar as this duty is not expressis verbis provided for in legislative acts depends rather on the choices made by the public power regarding politically the most useful action; such a choice is not subject to strict court assessment by means of legal arguments. The Constitutional Court has not established that any norms of the TL would infringe the principle of the sovereignty of the people enshrined in Article 2 of

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the Satversme. Consequently, based on Article 77 of the Satversme, a national referendum did not have to be held. IV 19. Article 68(4) of the Satversme provides: “Substantial changes in the terms regarding the membership of Latvia in the European Union shall be decided by a national referendum if such referendum is requested by at least one-half of the members of the Saeima.” The Petitioners indicate that the above-mentioned norm, also taking into consideration the historical circumstances of its drafting, obligates the members of the Saeima to submit substantial changes in the terms regarding the membership of Latvia in the EU to a national referendum. Moreover, this duty also follows from the solemn promise of a member of the Saeima provided for in Article 18 of the Satversme. The Saeima does not agree to such an interpretation of Article 68(4) of the Satversme and submits that this norm provides only for the right of the members of the Saeima to submit substantial changes in the terms regarding the membership of Latvia in the EU to a national referendum. Members of the Saeima exercise this right by taking into account considerations of political utility. 19.1. The Constitutional Court indicates that the content of Article 68(4) of the Satversme is to be determined by first of all applying the grammatical interpretation of legal norms. Namely, the Constitutional Court, taking into account the contradicting interpretations of Article 68(4) of the Satversme by the participants of the case, must determine, whether this norm provides for the duty or the right of the members of the Saeima to submit substantial changes in the terms regarding the membership of Latvia in the EU to a national referendum. […] The Constitutional Court agrees that the grammatical interpretation of Article 68(4) of the Satversme gives no reason to conclude that it would establish a duty of the members of the Saeima to submit substantial changes in the terms of the membership of Latvia in the EU to a national referendum. A conclusion that it provides for the duty of the members of the Saeima would be evidently contrary to the grammatical text of Article 68(4) of the Satversme. 19.2. The grammatical method of interpretation is but one of the methods of interpretation and it is not always possible to be guided by the literal meaning of a legal norm. It has to be taken into account the use of the grammatical method of interpretation in majority of cases cannot be considered as sufficient to reveal the content of a legal norm, and therefore other interpretation methods should also be used (see, e.g., the judgment of the Constitutonal Court of 4 February 2003 in the case no. 2002-06-01, para. 3 of the motives part, the judgment of the Constitutonal Court of 20 December 2006 in the case no. 2006-12-01, para. 9.1 and the judgment of the Constitutonal Court of 21 December 2007 in the case no. 2007-12-03, para. 19). When applying the historical interpretation method, the meaning of a legal norm is established by taking into account the circumstances, under which it has been created (see, e.g., the judgment of the Constitutonal Court of 8 February 2007 in the case no. 2006-09-03, para. 12). It can be seen from the materials of the working group that drafter the amendments to Articles 68 and 79 of the Satversme that initially a norm analogous to Article 68(4) of the Satversme had not been included in the draft (see the case materials, vol. 3, p. 128). On the other hand, since the moment when the working group agreed to supplement Article 68 with a new fourth part, the wording “if requested by at least one-half of

the members of the Saeima” has remained unchanged up to the moment when the norm was adopted by the Saeima (see the case materials, vol. 3, pp. 144, 146, 162, 166 and 171). Discussions of the working group that drafted the amendments to Articles 68 and 79 of the Satversme and the annotation of the draft law “Amendments to the Satversme of the Republic of Latvia” do not show that Article 68(4) of the Satversme provides for a duty of the members of the Saeima to submit substantial changes in the terms of the membership of Latvia in the EU to a national referendum. Also the persons invited by the Constitutional Court, taking into account the historical circumstances of the drafting of Article 68(4) of the Satversme, point out the right rather than the duty of the members of the Saeima established in the above-mentioned norm (see the opinion of M. Paparinskis, the case materials, vol. 3, p. 52 and the statement of M. Mits at the hearing of the Court, the case materials, vol. 4, p. 119). A significant argument is the theoretical substantiation provided by the working group for the amendments to Article 68 of the Satversme, where in the context of the fourth part it has been repeatedly and clearly indicated that a national referendum is not obligatory and that the members of the Saeima have the right to choose whether to submit any issue related to the European integration to a national referendum. It is indicated in the above-mentioned substantiation that Article 68(4) of the Satversme confers a right to the Saeima that are not related with fundamental constitutional principles, i.e. the right to assess the terms regarding Latvia’s membership in the European Union and to decide whether to submit such terms to a national referendum. The above-mentioned norm has introduced a new and non-obligatory type of a national referendum. The first words “if it is requested” specify the most essential difference between a national referendum provided for in the third part of the same article, namely, a national referendum of this kind is not obligatory, and at least one half of the members of the Saeima have the right to choose whether the submit or not any issue regarding the EU integration to a national referendum. The initial objective of such an amendment was to ensure that a national referendum would be held on very important issues regarding the EU integration. Article 68(4) of the Satversme ensures the possibility to determine the will of the people in case if the EU, which Latvia has acceded to, changes its constitutional structure to such an extent that it may cause doubt whether the people of Latvia would approve Latvia’s membership in such a substantially altered form of European integration (see Kādēļ Latvijas konstitūcijā nepieciešami labojumi? Jurista Vārds, 15 May 2001, no. 14). 19.3. In order to determine the content of particular norms of the Satversme at the fullest extent possible and in an objective manner, they must be compared to other norms of the Satversme. Several other norms of the Satversme in order to ensure the achievement of the legal consequences provided for therein use a wording that is analogous to that of Article 68(4) of the Satversme, namely, “if it is requested”. For instance, Article 20 of the Satversme provides: “The Presidium shall convene sittings of the Saeima if requested by the President, the Prime Minister, or not less than one third of the members of the Saeima”; Article 26 of the Satversme provides: “The Saeima shall appoint parliamentary investigatory committees for specified matters if not less than one-third of its members request it”, whilst Article 72 of the Satversme provides that “The President has the right to suspend the proclamation of a law for a period of two months. The President shall suspend the proclamation of a law if so requested by not less than one-third of the members of the Saeima. This right may be exercised by the President, or by one-third of the members of the Saeima, within ten days of the adoption of the law by the Saeima. The law thus suspended shall be put to a national

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referendum if so requested by not less than one-tenth of the electorate. If no such request is received during the aforementioned two-month period, the law shall then be proclaimed after the expiration of such period. A national referendum shall not take place, however, if the Saeima again votes on the law and not less than three-quarters of all members of the Saeima vote for the adoption of the law”. Consequently, an obligatory precondition for performing the respective activities is a request signed by a certain number of members of the Saeima as established in the Satversme, namely, the Satversme conditions the implementation of the respective activities on a request signed by a sufficient number of members of the Saeima. The implementation of this activity falls within the exclusive competence of the members of the Saeima as representatives of the people, rather that within the area of competence of the Saeima as an authority of public power. Consequently, the Satversme confers the right to individual members of the Saeima to express their viewpoint regarding issues of national importance and to supervise the actions of the majority of the parliament. Article 68(4) of the Satversme has a similar structure. The Constitutional Court has recognised that that the Satversme is a short, laconic but at the same time a complicated document. Namely, no norm of the Satversme or its part or even a single word may be regarded as unnecessary, because such an understanding would destroy the inner logical structure of the Satversme (see the judgment of the Constitutional Court of 16 December 2005 in the case no. 200512-0103, para. 17). If any phrase of the Satversme has been conferred a certain content, then it is necessary to take it into consideration in order to ensure a correct application of the respective norm of the Satversme. In order to emphasize the duty of the Saeima to implement or to refrain from a certain action, wording different from that of Article 68(4) of the Satversme is used elsewhere in the Satversme. For instance, Article 68(3) of the Satversme provides that “membership of Latvia in the European Union shall be decided by a national referendum, which is proposed by the Saeima”. Consequently, the pre-condition for deciding the issue of Latvia’s membership in the European Union is the duty of the Saeima to initiate a national referendum. If the Saeima fails to fulfil this duty, then no legal basis is created to hold a national referendum and deciding the issue regarding Latvia’s membership in the EU. Article 66(2) of the Satversme provides: “If the Saeima makes a decision that involves expenditures not included in the Budget, then this decision must also allocate funds to cover such expenditures”. Consequently, if the Saeima wants to adopt a decision that is related with expenditures not included in the budget, it has the duty to establish, in that decision, the source of the resources, by means of which it is planning to cover the expenditures. On the other hand, Article 77 of the Satversme provides: “If the Saeima has amended the first, second, third, fourth, sixth or seventy-seventh Article of the Satversme, such amendments, in order to come into force as law, shall be submitted to a national referendum”. Consequently, the Saeima, when amending any of the articles mentioned in Article 77 of the Satversme, also has the duty to submit the respective amendments to a national referendum. If the Saeima fails to fulfil this duty, the amendments do not come into force. 19.4. Article 68(4) of the Satversme and Article 79(2) of the Satversme confers the right to the people to decide issues regarding substantial changes in the terms of the membership of Latvia in the European Union if it is requested by at least a half of the members of the Saeima. Such a wording ensures the possibility to find out the will of the people in the case if the EU changes its constitutional structure to such an extent

that it may cause doubt whether the people of Latvia would approve Latvia’s membership in a significantly altered form of European integration; at the same time it is ensured that a national referendum would be held only regarding very important issues of the EU integration (for instance, substantial changes to the EU fundamental treaties). The present wording does not allow submitting any issue to a national referendum (for instance, acts adopted by the EU institutions, such as directives, regulations etc.) (see the annotation of the draft law “Amendments to the Satversme of the Republic of Latvia”, document no. 318, A http://www.saeima.lv/saeima8/mek_reg.fre). The Constitutional Court admits that an interpretation of Article 68(4) of the Satversme that its unequivocal wording would be explained as the duty of the members of the Saeima to mandatorily submit substantial changes in the terms of the membership of Latvia in the EU to a national referendum would not comply with the principle of legal certainty. The validity of such a conclusion is not confirmed by the aim of the legislator due to which such a norm has been included into the Satversme. The Petitioner E. Jansons, in essence, substantiates such interpretation of Article 68(4) of the Satversme by means of an argument of political utility, namely, if this issue would have been submitted to a national referendum, then “the trust capital of the Saeima would have been higher” (see the transcript of the hearing of the Constitutional Court of 4 March 2009, the case materials, vol. 4, p. 27). Therefore it is possible to suppose that the Petitioners, in fact, ask the Constitutional Court to carry out a constructive development of Article 68(4) of the Satversme, i.e. its teleological reduction. Namely, the Petitioners consider that the words “if it is requested by at least one-half of the members of the Saeima” cannot be applied in cases when substantial changes are being introduced in EU integration, taking into consideration amendments to the EU fundamental treaties. In such cases the amendments should always be automatically submitted to a national referendum. However, a prohibition to apply teleological reduction may follow from the principle of legal certainty in case if it is necessary to strictly follow the unequivocal legal norm (see: Neimanis J. Tiesību tālākveidošana. Rīga, Latvijas Vēstnesis, 2006, p. 155). The Constitutional Court finds that the choice of the politically most useful solution is, first of all, the duty of directly and democratically legitimized parliament. “No deviation from the text in the fundamental law may be justified by usefulness […] the letter of the fundamental law reveal its basis: to be an irrevocable law for citizens; to be the determining factor, without which life is impossible” [Sinaiskis V. Lietderība un noteikumi likumu tulkošanā (Sakarā ar dep. Goldmaņa neaizskaramību). Jurists, no. 3, 1928, 72. col.]. The Constitutional Court concludes that Article 68(4) of the Satversme provides as a pre-condition for the people to exercise their right to participate in the decisionmaking process regarding the issues on amendments to the EU treaties, for a request of at least one-half of the members of the Saeima. Although such an exercise of the rights of the people provides for a certain pre-condition, the Constitutional Court may not reassess the constitutionality of individual norms of the Satversme because such assessment does not fall within its jurisdiction. The Constitutional Court, however, de lege ferenda agrees to what has been indicated by M. Paparinskis that a national referendum no doubt has a substantial role in legitimizing such decisions of national importance (see the case materials, vol. 4, pp. 57 and 58). 20. At the same time, the Constitutional Court agrees with the opinion of the Petitioners that the Saeima, when assessing ratification of any international treaty

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which settles matters that may be decided by the legislative process, is first of all obligated to assess this treaty. The fact that other national institutions have already performed such assessment (for instance, the ministry that is responsible for the respective domain) does not relieve the Saeima of its responsibility to assess the respective issue itself. Article 68 of the Satversme inter alia provides that all international agreements which settle matters that may be decided by the legislative process, shall require ratification by the Saeima. The Constitutional Assembly, when including the above norm in the Satversme has not conceded that the state of Latvia could avoid fulfilling its international commitments. The demand to require the ratification of the international agreements by the Saeima was incorporated in the Satversme with the aim of precluding international liabilities which would regulate matters that may be decided by the legislative process without the assent of the Saeima. Thus it can be seen that the Constitutional Assembly has been guided by the presumption that international liabilities “settle” issues and they are to be fulfilled (see the judgment of the Constitutional Court of 7 July 2007 in the case no. 2004-01-06, paras. 3.2 and 6 of the motives part). Neither the debates in the Saeima, nor the opinions of the commissions of the Saeima provide an answer to the question of how the issue of whether the TL would introduce substantial changes in the terms of the membership of Latvia in the EU has been assessed before the ratification of the TL. On the other hand, it can be concluded indirectly from the debates in the Saeima regarding the ratification of the TL that it has been assessed whether the TL would introduce substantial changes in the terms of the membership of Latvia in the EU. For instance, a member of the Saeima and a representative of the responsible commission Leopolds Ozoliņš indicated during the debates: “The principles and norms included into the draft law comply with the main aims of the drafting of the Law and the national position of the Republic of Latvia. The Treaty does not provide for substantial changes in the terms of Latvia’s membership in the EU. Along with the coming into force of the Treaty, the possibilities of Latvia to participate in the decision-making process in the EU will improve (transcript of the session of 19 May 2005 of the 8th Saeima of the Republic of Latvia, http://www. saeima.lv/steno/2002_8/st_ 050519/st1905.htm). The Constitutional Court indicates that the fact whether the members of the Saeima are able to make an objective decision regarding the ratification of an international treaty that delegates a part of the competences of Latvia to the EU depends to a great extent whether the members of the Saeima have access to a preliminary assessment of the respective treaty that has been carried out by the authorities supervised by the Cabinet of Ministers and provided in the opinions of experts. After receiving the respective draft law the Saeima itself is also obligated to assess, in accordance with the procedure established in the Satversme and laws, first of all according to which procedure the law should be ratified. The existence of such duty was confirmed by the representative of the Saeima who indicated: “The ratification of each legislative act in the Saeima is tested to assess whether it complies with the hierarchy of legislative acts and whether it complies with the requirements of Articles 1 and 2 of the Satversme” (see the transcript of the hearing of the Constitutional Court of 10 March 2009, the case materials, vol. 4, p. 154). After having studied the transcripts of the sessions of the Saeima and other case materials, the Constitutional Court has no reason to consider that the voting of the members of the Saeima regarding the ratification of the TL has been arbitrary and based on incomplete information. Moreover, the duty to assess legal acts that are submitted to voting is a question of political responsibility.

Since the procedure established in Article 68 of the Satversme has not been breached during the process of adopting the impugned act, the rights of the Petitioners enshrined in Article 101 of the Satversme have not been infringed, either. Consequently, it can be concluded that the impugned act complies with Article 101 of the Satversme.

415

The resolutive part On the basis of Articles 30‑32 of the Constitutional Court Law, the Constitutional Court concluded: The law “On the Treaty of Lisbon Amending the Treaty of European Union and the Treaty establishing the European Community” has been adopted in conformity with the procedures established in the Satversme of the Republic of Latvia and consequently complies with Article 101(1) of the Satversme. The judgment is final and not subject to appeal. The judgment is announced in Riga on 7 April 2009.

The chairman of the hearing of the Court

G. Kūtris

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Separate opinion of the judge of the Constitutional Court Juris Jelāgins in the case no. 2008-35-01 Riga, 21 April 2009 “On the compliance of the law “On the Treaty of Lisbon Amending the Treaty of European Union and the Treaty Establishing the European Community” with Article 101 of the Satversme of the Republic of Latvia”. The Constitutional Court of the Republic of Latvia (hereinafter – the Constitutional Court) on 3, 4 and 10 March 2009 in a public hearing of the Court examined the case “On the compliance of the law “On the Treaty of Lisbon Amending the Treaty of European Union and the Treaty Establishing the European Community” with Article 101 of the Satversme of the Republic of Latvia”. The petitioners consider that there has been a violation of their right guaranteed by Article 101 of the Satversme of the Republic of Latvia (hereinafter – the Satversme) to participate in the work of the state, i.e., to participate in a referendum on the Treaty of Lisbon Amending the Treaty of European Union and the Treaty Establishing the European Community. The Constitutional Court adopted a judgement and ruled that the Law on Ratifying the Lisbon Treaty had been adopted according to the procedure established by the Satversme and, thus, was compatible with the Article 101(1) of the Satversme. The author of the separate opinion does not agree to such a ruling of the Court, because he is of the opinion: if the Law on Ratifying the Lisbon Treaty was adopted according to the procedure established by the Satversme, then a restriction of the fundamental rights of the petitioners cannot be established and, therefore, the legal proceedings in the case had to be terminated. Pursuant to Article 85 of the Satversme, the Constitutional Court “shall review cases concerning the conformity of laws with the Satversme”. Article 1(1) of the Constitutional Court Law provides that the Constitutional Court “shall adjudicate matters regarding the conformity of laws and other regulatory enactments with the Satversme”, whereas Article 16 of this Law sets out that the Court adjudicates matters regarding: 1) conformity of laws with the Satversme; 2) conformity of international agreements signed or entered into by Latvia (also until the confirmation of the relevant agreements in the Saeima) with the Satversme; 3) conformity of other laws and regulations or parts thereof with the norms (acts) of a higher legal force”. Thus, reviewing of such cases where the compliance of legal norms with legal norms of a higher legal force must be examined falls within the jurisdiction of the Constitutional Court. The Law on Ratifying the Lisbon Treaty is a law of a constitutional rank. Thus, the Constitutional Court has the right to examine only the compliance of the procedure by which this law was adopted with the Satversme. I.e., the Constitutional Court had to establish, whether due to an inappropriate adoption of the Law on Ratifying the Lisbon Treaty the fundamental rights established in Article 101 of the Satversme of the petitioners had been restricted. After Latvia advanced the aim to become a Member State of the European Union (hereinafter – the EU), it was established that amendments had to be introduced to some articles of the Satversme. A working group established especially for this purpose proposed amendments to Articles 68 and 79 of the Satversme. The amendments were

based on the thesis of the legal doctrine, pursuant to which the core of the Satversme (Articles 1, 2, 3, 4 and 6) may not be amended upon Latvia’s accession to the European Union (see Kādēļ Latvijas konstitūcijā nepieciešami labojumi? Darba grupas Satversmes grozījumu izstrādāšanai piedāvātā projekta teorētiskais pamatojums. Jurista Vārds, 15 May 2001, no. 14). The Saeima, performing its function of the constitutional legislator, supported this opinion of the working group and Articles 68 and 79 of the Satversme were adopted in a new wording. Separation of the power of the Satversme or the constitutional legislation and the legislative power is based on the principle of the constitutional supremacy. This means that the constitution is a special law that cannot be revoked or amended in the regular legislative process. Usually, a special procedure has been established for amending the constitution (see Heun W. Supremacy of the Constitution, Separation of Powers, and Judicial Review in Nineteenth-Century German Constitutionalism. University of Göttingen, Germany. Ratio Juris, Vol. 16, Issue 2, pp. 195‑205, 4 June 2003; Limbach J. The concept of the supremacy of the Constitution. The Modern Law Review. Vol. 64, no. 1 (2001), pp. 1‑10). Since it was recognised that Latvia’s accession to the European Union did not amend the core of the Satversme, the law which ratified “The Treaty of Accession between the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, Ireland, the Hellenic Republic, the Kingdom of Spain, the French Republic, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Republic of Austria, the Portuguese Republic, the Republic of Finland, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland (Member States of the European Union) and the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia, the Republic of Slovakia concerning the accession to the European Union” (hereinafter – the Treaty on Accession to the EU), was not put to a national referendum in accordance with the procedure defined in Article 77 of the Satversme, assuming that it had acquired the force of a law in anyway. Article 68(1) of the Satversme provides that “[a]ll international agreements, which settle matters that may be decided by the legislative process, shall require ratification by the Saeima”, whereas Article 73 of the Satversme provides that agreements with other nations may not be submitted to a national referendum. I am of the opinion that the Treaty on Accession to the EU may not be considered as a treaty that settles a matter that may be decided by the legislative process. The Treaty on Accession to the EU settles a matter that may be decided in the process of constitutional legislation, and therefore applying the prohibition envisaged by Article 73 of the Satversme to it would be incorrect. The constitutional legislator by adopting Articles 68 and 79 of the Satversme in a new wording recognised that, upon accessing to the EU, there were no grounds for holding a national referendum according to the procedure set out in Article 77 of the Satversme. Therefore the third part was added to Article 68 of the Satversme, pursuant to which the mater of acceding to the European Union had to be put for a national referendum in the form of a plebiscite prior to ratifying the Treaty on Accession to the EU. A plebiscite is held with respect to an abstract matter unlike voting by the people in the form of a referendum in which the people exercise their regular legislative right or the rights of the constitutional legislator (see Dišlers K. Ievads Latvijas valststiesību zinātne. R., A. Gulbis, 1930, pp. 112‑115).

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At the same time, the same quorum and the number of votes given required for a positive result was applied to the new wording of Article 79(2) of the Satversme on plebiscite as the one set for adopting regular laws, but not for the constitutional laws. Latvia joined the European Union in compliance with the provisions of Article 68(2) and (3) and Article 79(2) of the Satversme. Likewise, the law on “Treaty Establishing a Constitution for Europe” (hereinafter – the Law on Ratifying the Constitution for Europe) by which the Treaty Establishing a Constitution for Europe which was signed on 29 October 2004 in Rome was ratified according to the procedure established in Article 68(2) of the Satversme, i.e., by adopting it with a qualified majority vote by the members of the Saeima. Treaty Establishing a Constitution for Europe was intended as the constitution of the EU which, in case it were adopted, would replace the Treaties Establishing the EU (see Norman P., The accidental constitution: The story of the European Convention. Brussels: EuroComment, 2003, pp. 403‑406). Unlike was the case with the Treaty on Accession to the EU, this time, i.e., before adopting the law ratifying the Treaty on Establishing a Constitution for Europe, a plebiscite was not held because the members of the Saeima did not demand it. Neither was the law on ratifying the Treaty on Establishing a Constitution for Europe put for a national referendum pursuant to the procedure established by Article 77 of the Satversme, because evidently it was considered that it did not amend the content of the articles that constitute the core of the Satversme. The law on ratifying the Treaty on Establishing a Constitution for Europe was not contested at the Constitutional Court. However, soon after that, the ratification of this treaty was suspended in other Member States of the European Union and the law on ratification was revoked. The Lisbon Treaty was drafted to replace the Treaty on Establishing a Constitution for Europe as amendments to the EU basic documents in force, rather than a new EU legal document of a constitutional level (see Craig P. The treaty of Lisbon: Process, architecture and substance. European Law Review. – Vol. 33, no.2 (2008), pp. 137‑166). The petitioners consider that in order for the ratification act by which Latvia adopts and approves of the Lisbon Treaty to enter into effect, a national referendum had to be held according to the procedure established by Article 77 of the Satversme, because this treaty amends the content of Article 2 of the Satversme; however, if the Constitutional Court were to recognise that it was not required to hold a national referendum according to the procedure established by Article 77 and Article 79(1) of the Satversme, then the national referendum should have been held according to the procedure established by Article 68(4) and Article 79(2) of the Satversme. The ratification of the Lisbon Treaty should have been put to a national referendum according to the procedure established by Article 77 and Article 79(1) of the Satversme if the law on the Treaty on the Accession to the EU had been adopted according to the same procedure. As is well known, at that time it was not adopted according to this procedure. However, the fact that accession to the EU did not take place according to the procedure established by Article 77 of the Satversme does not preclude the possibility that amendments to the fundamental documents of the EU could be such that would require to implement ratification by organising a vote by the people in the form of a national referendum. That would be required if as the result of ratifying the Lisbon Treaty one of the provisions constituting the core of the Satversme would be amended. Therefore in this case, the Constitutional Court assessed whether the law ratifying the Lisbon Treaty amended the content of Article 2 of the Satversme, violating the fundamental rights

of the petitioners that were enshrined in Article 101 of the Satversme, i.e., the right to participate in a national referendum. Upon joining the EU, our constitutional legislator held that by ratifying the Treaty on the Accession to the EU, the articles constituting the core of the Satversme were not amended, and therefore only a plebiscite was held. Agreeing to the findings of the Constitutional Court and considering that, theoretically, the content of Article 2 of the Satversme could be amended without introducing textual changes to it, the Saeima acted in accordance with the thesis that Article 2 of the Satversme was not amended because the idea of the sovereignty of the people was not revoked. The sovereignty of the people is retained because the people are not denied the so-called right of final say. This right can be exercised because the people retain the right to secede from the EU. If at the time when Latvia accessed to the EU, the possibility to secede from it existed only on the basis of general documents of international law (Vienna Convention on the Law of Treaties. Vienna, 23 May 1969. United Nations, Treaty Series, vol. 1155, p. 331), which were used by Greenland in its time, now the right to secede has been defined expressis verbis in the Lisbon Treaty itself. As the materials of the working group which drafted amendments to Articles 68 and 79 of the Satversme, as well as the transcripts of the Saeima sessions indicate (see the case materials, vol. 3, pp. 144, 146, 162, 166, and 171), the “loss of the ultimate (final) say” by the people was recognised as the “red line”, the overstepping of which would require holding of a referendum according to the procedure established by Article 77 of the Satversme. In the framework of this case, i.e., in conjunction with Article 101 of the Satversme, there were no grounds to assess whether, by ratifying the Lisbon Treaty, other articles of the core of the Satversme had been amended. However, apparently, such a “red line” exists also with respect to other provisions included in the core of the Satversme, for example, the provision: “Latvia is an independent state”. In this regard, ratification of a treaty by which Latvia would join the European Union as a federal sate could be recognised as being such a line. The answers to the following questions could serve as the main criteria for deciding whether a vote by the people in the form of a referendum should be held. First, whether following the adoption of the respective legal acts the sovereign rights of the people of Latvia could be lost; second, whether Latvia loses or does not lose its independence. The content of the core of the Satversme is changed, to a larger or smaller extent, following the adoption of each norm of a constitutional rank. For example, by adopting Article 89 of the Satversme, which provides that “[t]he state shall recognise and protect fundamental human rights in accordance with this Satversme, laws and international agreements binding upon Latvia”, in fact, the scope of the content of the articles constituting the core of the Satversme was changed. Namely, not every amendment to the content of the articles constituting the core of the Satversme requires adoption in a referendum. Even the following question could be asked: should any textual amendment to the articles that constitute the core of the Satversme be approved by organising a vote by the people according to the procedure established in Article 77 of the Satversme? For example, should a referendum be held if the Saeima were to amend Article 1 of the Satversme, providing that “Latvia is an independent democratic republic governed by the rule of law”? Of course, a referendum would not be necessary, since it can be established through interpretation that Latvia is a state governed by the rule of law. Since the law on ratifying the Lisbon Treaty was adopted pursuant to the procedure established by the Satversme, there are no grounds to recognise that the rights of the petitioners defined in Article 101 of the Satversme had been restricted.

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Interpretation of Article 68 of the Satversme shows that the plebiscite before ratifying the Treaty on the Accession to the EU is initiated by the Saeima, whereas the plebiscite regarding the changes to the conditions of Latvia’s membership in the European Union is initiated if it is demanded by at least half of the members of the Saeima. The constitutional legislator has left the issue of holding or not holding a national referendum regarding new conditions of membership in the European Union to the members of the Saeima. The members did not request holding a national referendum to establish the people’s view on ratification of the Lisbon Treaty. The fundamental rights granted to the parties submitting the constitutional complaint in Article 101 of the Satversme, i.e., the right to participate in a national referendum, would be infringed upon if the members of the Saeima were obliged to request a national referendum, but did not do that. The provision of Article 68(4) of the Satversme is clearly worded to mean that only members of the Saeima have the right to request a national referendum. Therefore a restriction of the rights enshrined in Article 101 of the Satversme with respect to the petitioners could be established only if at least half of the members of the Saeima had requested a national referendum, but it had not been held. Members of the Saeima did not submit such a request. Thus, in this case a restriction of the fundamental rights of the parties submitting the constitutional complaint cannot not be established. A finding follows from Article 192(1) of the Constitutional Court Law that a case can be examined on the basis of a constitutional complaint if a restriction of the fundamental rights established in the Satversme has occurred. However, if such a violation of fundamental rights is not present, then legal proceedings in the case are impossible and, pursuant to Article 29 of the Constitutional Court Law, must be terminated.

Judge of the Constitutional Court J. Jelāgins

2008-37-03

Access to medicines

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Reimbursing the costs of purchasing medicines intended for treating rare diseases The right to health was examined. The state, in certain instances, in accordance with economic possibilities, must take measures to protect human health. The right to health, inter alia, envisages the accessibility of such health protection system that ensures to all persons equal opportunities to attain the highest level of health. The state has the obligation to provide for the availability and accessibility of health care facilities, services, devices and medicines, as well as other conditions that influence the possibility to attain the highest possible level of health. However, the state cannot assume total responsibility for a person’s possibilities to attain the highest possible level of health because this is influenced both by genetic factors and different susceptibility to various diseases among persons, as well as by an unhealthy life style. The state’s obligation to ensure access to medicines was examined. The obligation may depend upon the resources that the state has at its disposal. As a result of the fast development of contemporary medicine and research, an extensive range of medicines and medical devices intended for treating various diseases is available. However, the state’s financial resources are limited, and it is unable to pay for all medicines, medical devices and treatment that an individual might need. It was recognised that allocation of resources to one group of patients at the same time would mean that another group of persons would be denied these resources. Therefore the state has to allocate resources and define to whom in what circumstances and what kind of treatment will be paid for. In deciding on these matters, the state enjoys broad discretion. It was underscored that the state, first and foremost, must strive to develop primary health care and prevention, from which a large part of society greatly benefits, rather than expensive health care services which often are accessible only to a small part of society. The state must try to use its resources in a way that would ensure that as many people as possible would benefit. If resources are limited, then a mechanism that ensures optimum use of the available resources is necessary.

JUDGMENT in the name of the Republic of Latvia in the case no. 2008-37-03 Riga, 29 December 2008 The Constitutional Court of the Republic of Latvia in the following composition: the chairman of the hearing of the Court Gunārs Kūtris, judges Kaspars Balodis, Aija Branta, Juris Jelāgins, Kristīne Krūma and Viktors Skudra,

JUDGMENT in the case no. 2008-37-03

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On the basis of Article 85 of the Satversme [Constitution] of the Republic of Latvia and Article 16(3), Article 17(9)(1), Article 191 and Article 281 of the Constitutional Court Law, having regard to the constitutional claim of the Administrative Regional Court, in a Court hearing of 2 December 2008 examined in written proceedings the case: “On the compliance of Article 100 and Article 1001 of the Cabinet of Ministers Regulations of 31 October 2006 no. 899 “Procedures for the Reimbursement of Expenses toward the Purchase of Medical Products and Medical Devices for the Out-Patient Care” with Article 91 of the Satversme of the Republic of Latvia”.

The facts 1. On 31 October 2006 the Cabinet of Ministers adopted the Regulations no. 899 “Procedures for the Reimbursement of Expenses toward the Purchase of Medical Products and Medical Devices for the Out-Patient Care” (hereinafter – the Regulations No. 899). Article 100 and Article1001 thereof (hereinafter – the Impugned norms) provide the following: “100. The State Mandatory Health Insurance Agency shall reimburse the expenses toward purchase of medicinal products and medical devices in the cases referred to in this Chapter in the amount of maximum 10000 lats per one patient within the time period of 12 months. 1001 If the foreseen expenses exceed the expenses referred to in Article 100 of these Regulations, the State Mandatory Health Insurance Agency shall specify the reimbursement expenses for one package of the medicinal product in Decision on the reimbursement of medicinal products. The difference between the price of one package of the medicinal product and the reimbursement amount specified in Decision of the Mandatory Health Insurance Agency shall be covered by the patient upon receipt of the medicinal product in the pharmacy.” 2. The Petitioner – the Administrative Regional Court (hereinafter – the Petitioner) – asks to recognize the Impugned norms as non-compliant with Article 91 of the Satversme of the Republic of Latvia. The Petitioner, when examining an application of Irina Salova regarding the temporary regulations, has recognized that circumstances of the case imply violation of the principle of legal equality regarding I. Salova. If the fundamental principles included in the Regulations no. 899 are not observed, Article 91 of the Satversme is being breached. The Petitioner indicates that Z 94.8 was diagnosed to I. Salova. This disease can be treated with Glivec medication to ensure her vital functions. According to the Decision of 23 March 2007 of the State Mandatory Health Insurance Agency No. 9/1.1-10/1987, expenses towards purchase of these medical products was reimbursed to I. Salova at the amount of 100 percent because this medical product has been included into the list of reimbursable medical products. Since the organism of I. Salova has elaborated resistance against Glivec medical product, she has been assigned a 12-month therapy using Sprycel medical product according to a decision of doctors because this is the only medical products that can prevent recrudescence of the disease. Since Sprycel medical product has not been

included into the list of reimbursable medical products, reimbursement of purchase thereof is limited to 10 000 lats per 12 months. The Petitioner holds that I. Salova enjoys equal and comparable conditions if compared to those persons for whom an identical disease has been diagnosed and who receive compensation, at the amount of 100 percent, for the purchase of the medical products necessary for ensuring their vital functions, namely Glivec medical products. The Impugned norms provide for a different attitude because, in the result of application thereof, the persons for whom one and the same disease has been diagnosed and who need such medical products that would ensure their vital functions are provided for different amount regarding reimbursement of the purchase of medical products. According to the Petitioner, by providing for a limited reimbursement of the purchase of medical products, I. Salova is, in fact, deprived of Sprycel medical products necessary for her. Namely, the difference of the price of the medical products and reimbursement amount that she has to cover herself constitutes 2707.09 lats per month, i.e. 78 percent of the total price of the medical products. Consequently, I. Salova is not able to purchase this medical product and thus cannot use the lawful compensation. The Petitioner holds that there is no legitimate aim for providing for a different attitude because the regulation included in the Impugned norms, in fact, is more advantageous for those persons for whom a disease identical to that of I. Salova has been diagnosed but medical products necessary for treating thereof are included into the list of reimbursable medical products. When providing for the order, according to which the amount of reimbursement for each separate person shall be established, it is necessary to take into consideration the basic principles of reimbursement of the purchase of medical products as provided for in the Regulations no. 899, namely, if a patient has been diagnosed with a chronic, life-threatening disease or a disease that results in a severe, irreversible disability and the treatment of the disease requires the use of the respective medical products to maintain the patient’s vital functions, the reimbursement for the purchase of medical products shall be established at the amount of 100 percent. The fact that Sprycel are not included into the list of reimbursable medical products and therapeutic and costs efficiency has not been examined is a formal criterion that does not depend on the will of I. Salova. Moreover, non-inclusion of particular medical products into the list does not imply that their efficiency has not been proved. Such conclusion can only be made after assessment of the medical product rather than guiding oneself by a forma criterion of medical products being or not included into the list of reimbursable medical products. If it would be included into the fundamental principles of the Regulations no. 899 that only such medical products, the costs of which does not exceed a particular sum, for instance, 10000 lats per one patient for the period of 12 months, would be included into the list of reimbursable medical products, the principle of equality would also be observed in relation to those persons who has been diagnosed with a disease that requires using such medical products that would ensure their vital functions. The Petitioner assumes that the procedure for establishing the amount for reimbursement of the purchase of medical products may contain preconditions that restrict the rights of persons to apply for reimbursement of the purchase of medical products at the amount of 100 percent. The Cabinet of Ministers, however, by adopting a respective normative enactment, should guide itself not only by the laws regulating the state budget, but also the norms included into the Satversme. It should be assessed

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in particular whether the restriction of the rights complies with the legitimate aims provided for in Article 116 of the Satversme, as well as the principle of justice, equality and proportionality should be observed. 3. The institution that has adopted the impugned act – the Cabinet of Ministers – does not agree with the opinion of the Administrative Regional Court and holds that the Impugned norms do comply with Article 91 of the Satversme. The Cabinet of Ministers holds that, when assessing compliance of the Impugned norms with the Satversme, it is necessary to take into consideration Article 111 of the Satversme which provide that the state shall protect human health and guarantee a basic level of medical assistance for everyone. The rights established in Article 111 of the Satversme belong to social rights, and, when implementing them, the state enjoys a broad freedom of action that can be reasonable related with the economic situation of the state. Exercise of social rights depends on the economic situation of each state governed by the rule of law and resources available thereto. Although Article 111 of the Satversme provides for the duty of the state to carry out measures for protection of human health, this does not, however, confer a person any subjective rights to receive unlimited financial resources for ensuring his or her health. Consequently, Article 91 of the Satversme in conjunction with Article 111 of the Satversme provides for the duty of the state to ensure a just balance in allocation of financial resources to health care by taking into account the interest of certain patients to receive expensive health care services and the necessity to ensure availability of health care to the greatest possible part of the society. The Regulations no. 899 provides for two mechanisms of reimbursement of the purchase of medical products - general and individual. The Cabinet of Ministers holds that persons, for whom purchase of medical products is reimbursed according to the general mechanism, and persons, for whom the purchase of medical products is reimbursed according to an individual mechanism, enjoy equal and comparable conditions. Although both of these mechanisms differ, none of them can be regarded as more or less advantageous for one or another person because there lay objective and reasonable consideration at the basis of each of them. Therapeutic effect and economic feasibility of medical products to be reimbursed according to a general procedure is assessed. The individual mechanisms for reimbursement is guided towards ensuring unforeseen cases (rare diagnosis, new medical products) in case of therapeutic effect of a medical product is unknown and it is not possible to plan such payments from the state budget in advance and to plan resources necessary for meeting the needs of a patient. A different attitude is established because there exist two different mechanisms for reimbursement of the purchase of medical products due to certain objective reasons. If the therapeutic effect and the economic feasibility of a medical product has been assessed, it can be included into the list of reimbursable medical products. On the other hand, if, in extraordinary cases, a medical product has not been assessed therapeutically and economically or it has been assessed but rejected regarding inclusion of it into the list of reimbursable medical products, the state has provided for an additional mechanism. None of these two mechanisms can be regarded as more or less advantageous for a person. The legitimate aim of the Impugned norms is not to protect the interest of the basic state budget per se but to ensure the rights of every person to health protection. Namely, it is assessed in each particular case whether a fair balance between the interests of those

patients who need particular medicines and the interests of the society to implement the rights to health protection as guaranteed in Article 111 of the Satversme. Under Article 111 of the Satversme the duty of the state to ensure people with health care at the level permitted by the economical possibilities of the state and, in the case of lack of financial resources, to use mechanisms that would allow ensuring the interests of the greatest number of people possible at the best level possible. Consequently, compliance of reimbursement of the purchase of medical products with therapeutic and cost efficacy thereof is a mandatory precondition. The procedure according to which expenses for the purchase of medical products are reimbursed to persons differs from the procedure of reimbursement of the purchase of medical products included into the list of reimbursable medical products based on legitimate considerations that follow from the requirements of the Regulations no. 899 regarding medicaments to be included into the list of reimbursable medical products. Medical products with disproportionate costs are not included into the list of reimbursable medical products, though costs for the purchase of these medicaments are reimbursed at the amount of 100 percent but not more than 10000 lats per the time period of 12 months. By reimbursing the purchase of medical products with nonproportionate costs, the resources of the state budget meant for this would be spent for meeting the needs of a considerably narrower circle of patients. […]

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The motives 6. Article 91 of the Satversme provides: “All human beings in Latvia shall be equal before the law and the courts. Human rights shall be realised without discrimination of any kind.” Although the application contains a request to assess compliance of the Impugned norms with Article 91 of the Satversme, if still follows from the application that compliance of the Impugned norms only with the first sentence of Article 91 of the Satversme should be assessed provided that the first sentence thereof guarantees equality of persons before the law and courts. The objective of the principle of prohibition of discrimination incorporated in the second sentence of Article 91 of the Satversme is to prevent the possibility that in a democratic state governed by the rule of law, based on some impermissible criterion like race, nationality or gender, the fundamental rights would be restricted (see the judgment of the Constitutional Court of 14 September 2005 in the case no. 2005-02-0106, para. 9.3). It has not been indicated in the application, however, that the different attitude provided in the Impugned norms would be based on some inadmissible criterion. Therefore, in the framework of this case, the Impugned norms shall be analysed in the context of the principle of equality, rather than that of prohibition of discrimination. Moreover, the Impugned norms shall be analysed at the extent of the claim included in the application and only in relation to the procedure for reimbursement of the purchase of medical products meant for outpatient treatment, without assessing the procedure for reimbursement of the costs towards purchase of medical devices. 7. The principle of equality provided in the first sentence of Article 91 of the Satversme should guarantee existence of a common legal procedure. Namely, its task is to ensure implementation of such requirement of a law-governed state as overall influence of laws on all persons and application of law without any privileges.

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It guarantees complete effect of the law, objectivity and impassiveness of its application as well as the fact that nobody is allowed not to observe the instructions of the law (see the judgment of the Constitutional Court of 14 September 2005 in the case no. 200502-0106, para. 9.1). Such unity of legal procedure, however, does not mean levelling because “equality permits a differentiated approach if it can be justified in a democratic society” (see the judgment of the Constitutional Court of 26 June 2001 in the case no. 2001-02-0106, para. 6 of the motives part). When interpreting Article 91 of the Satversme the Constitutional Court has recognized that the principle of equality forbids to the state institutions adopting such norms, which without a reasonable ground permit a differentiated attitude to persons, who are in equal and under certain criteria comparable circumstances. The principle of equality permits and even requires a differentiated attitude towards persons, who are in different circumstances as well as permits a differentiated attitude towards persons, who are in equal circumstances, if there is an objective and reasonable basis for it (see, e.g., the judgment of the Constitutional Court of 3 April 2001 in the case no. 200007-0409, para. 1 of the motives part and the judgment of the Constitutional Court of 11 November 2005 in the case no. 2005-08-01, para. 5). A different attitude has no objective and well-grounded reason if it does not have a legitimate aim or if the chosen means are not proportionate to the advanced legitimate aim (see the judgment of the Constitutional Court of 23 December 2002 in the case no. 2002-15-01, para. 3 of the motives part). Consequently, in order to assess whether the Impugned norms comply with the principle of equality included in the first sentence of Article 91 of the Satversme, it is necessary to establish: 1) whether and what persons (groups of persons) are in equal and, according to certain criteria, comparable conditions; 2) whether the Impugned norms provide for an equal or different attitude towards these persons; 3) whether such attitude has an objective and well-grounded reason, namely, whether it has a legitimate aim and whether the principle of proportionality has been observed. 8. The Impugned norms are related with persons mentioned in Article 92 of the Regulations no. 899. In order to establish whether these persons enjoy equal and, according to certain criteria, comparable conditions if compared with the persons mentioned in Chapter II of the Regulations no. 899, it is necessary to establish what mechanisms of reimbursement of the purchase of medical products are provided for in the Regulations no. 899. The Regulations no. 899 provides for two mechanisms of reimbursement of the purchase of medical products: general and individual one. 8.1. In the frameworks of the general mechanism, the purchase medical product that are included into the list of reimbursable medical products and meant for treatment of diagnosis included in Appendix 1 of the Regulations no. 899 is reimbursed. The list of reimbursable medical products is compiled by the Medicine Pricing and Reimbursement State Agency (Article 11 of the Pharmaceutical Law and Article 10 of the Regulations no. 899) in accordance with the fundamental principles mentioned in Article 6 of the Regulations no. 899, and the list consists of three parts: List A, List B and List C. List A, according to the criteria provided in Article 23 and Chapter V of the Regulations no. 899, provides for mutually replaceable medical products within the framework

of the titled of medical products or a group thereof, as well as mutually replaceable medical devices. List B, according to the criteria provided in Article 23 and Chapter V of the Regulations no. 899, includes such medical products and medical devices having no replaceable medical product or medical device as its counterpart. List C, according to the criteria provided in Article 23 and Chapter V of the Regulations no. 899, includes such medical products and medical devices, the costs of which per one patient constitute 3000 lats per year and provisions of prescription of which, according to Article 55 of the Regulations no. 899, are insufficient in order to limit the number of patients taking into consideration the resources allocated for the reimbursement. The costs towards the purchase of reimbursable medical products are covered to a certain extent taking into consideration the nature and level of gravity of the disease. As provided for in Article 4.1 of the Regulations no. 899, medical produces shall be reimbursed at the amount of 100 percent, 90 percent, 75 percent and 50 percent. 8.2. The individual mechanism provides for reimbursement of the costs towards the purchase of medical products that are not included into the list of reimbursable medical products for individual persons. Under Article 92 of the Regulations no. 899 the State Mandatory Health Insurance Agency, based on the application of a patient supplemented by the decision made by the Council of Physicians of the relevant field, is entitled to take a decision regarding the reimbursement for purchase of medicinal products or medical devices for individual patients. The above-mentioned expenses shall be reimbursed within the range of funding allocated for the reimbursement of expenses towards purchase of medicinal products in the following cases. First, the diagnosis is not included in Annex 1 to these Regulations, and the treatment of the definite disease without administration of the specific medicinal product does not maintain patient’s life functions. Secondly, the diagnosis is included in Annex 1 to these Regulations, and none of the medicinal products included on the list of reimbursable medicinal products and medical devices are appropriate for the maintenance of life functions (the administration of medicinal products and medical devices not included on the List of reimbursable medicinal products for the definite diagnosis is required). In this case, the State Mandatory Social Insurance Agency adopts a decision regarding reimbursement of the costs towards the purchase of medical products at the amount of 100 percent. The Impugned norms provide, however, that the purchase of medical products is reimbursed for individual persons at the amount not exceeding 10000 lats per one patient for the time period of 12 months. If the expenses exceed 10000 lats, the difference shall be covered by the patient on the receipt of the medical product in the pharmacy. 8.3. The Constitutional Court holds that the opinion of the Petitioner that the persons mentioned in Article 92.2 of the Regulations no. 899 and the persons mentioned in Chapter II of the same Regulation enjoy equal and comparable conditions is grounded because both groups of persons have been diagnosed with one and the same disease (chronic, life-threatening disease or a disease that results in a severe, irreversible disability) and both groups of persons need, for treatment of their disease, to use medical products to maintain their vital functions. The Human Rights Bureau also agrees with this viewpoint. Moreover, the Constitutional Court holds that the persons mentioned in Article 92.1 of the Regulations no. 899 (whose diagnosis has not been included into Appendix 1 of the Regulations no. 899) enjoy equal and comparable conditions if compared to the persons mentioned in Chapter II of the same Regulation because both these groups of persons have been diagnosed with a chronic, life-threatening disease or a disease that results in a severe, irreversible disability, and the treatment of

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the disease requires the use of the respective medical products to maintain the patients’ vital functions. Consequently, the persons mentioned in Article 92 of the Regulations no. 899 and the persons mentioned in Chapter II of the Regulations no. 899 are in equal and comparable conditions. 9. The persons mentioned in Article 92 of the Regulations no. 899, as well as the persons mentioned in Chapter II thereof have the right to receive reimbursement of the purchase of medical products at a certain amount in accordance with the diagnosis. As to the individual mechanism of reimbursement, the Impugned norms, however, provide for restrictions by providing that in certain cases the costs towards the purchase of medical products per one patient shall be reimbursed at the amount that does not exceed 10000 lats for the period of 12 months. No such restriction exists in the general mechanism or reimbursement, as well as such medical products are included into the list of reimbursable medical products that exceed 10000 lats per one patient for the period of 12 months. Consequently, the Impugned norms provide for a different attitude towards the persons who are in equal and comparable conditions. 10. In order to establish whether the different attitude has an objective and wellgrounded reason, it is necessary to assess whether it has a legitimate aim and whether the principle of proportionality has been observed. Taking the above into consideration the Constitutional Court recognizes that it is not always possible to assess conformity of a concrete restriction of a fundamental right with the Satversme only in the aspect of the first sentence of Article 91 of the Satversme. First, it shall be taken into consideration that the equality principle, determined in the first sentence of Article 91 of the Satversme very often is applied together with other fundamental rights. Especially because one cannot often deduce how to adjudicate a case just on the basis of this principle (see the judgment of the Constitutional Court of 8 November 2006 in the case no. 2006-04-01, para. 15). It has also been recognized in legal literature that often it is not possible to arbitrate if based only on this principle (see Langenbuhere K. Tiesnešu tiesību attīstība un iztulkošana. Rīga: Tiesu namu aģentūra, 2005, p. 158). When establishing whether the legal norms comply with the principle of equality, one shall take into consideration the field of law, in which it is included. The nature of the Impugned norms, inter alia, also its connection with other norms of the Satversme and their place in the system of fundamental rights, inevitably influence the scope of the control, realized by the Constitutional Court (see the judgment of the Constitutional Court of 8 November 2006 in the case no. 2006-04-01, para. 15.2). 11. The Cabinet of Ministers indicates that the different attitude has a legitimate aim, i.e. to protect the rights of other persons, namely, the rights to health protection. The Human Rights Bureau also holds that the objective of the different treatment is to ensure the rights of other person to health protection. 11.1. The right to health protection at the constitutional level have been enshrined in Article 111 of the Satversme that provides that the state shall protect human health and guarantee a basic level of medical assistance for everyone. The Constitutional Court has already indicated that the obligation of the state is not only to undertake measures of protecting health of the people but also to abstain from activities, limiting

the possibilities of persons taking care of their health themselves. Thus, in compliance with Article 111 of the Satversme, every person to a certain extent has the right of undertaking measures he/she considers necessary to protect his/her health (see the judgment of the Constitutional Court of 22 October 2002 in the case no. 2002-0403, para. 1 of the motives part and the judgment of the Constitutional Court of 23 April 2004 in the case no. 2003-15-0106, para. 6). 11.2. Likewise, the Constitutional Court has indicated that the content of Article 111 of the Satversme has to be interpreted as being read in conjunction with Article 89, which establishes: “The state shall recognize and protect fundamental human rights in accordance with this Satversme, laws and international agreements binding upon Latvia” (see the judgment of the Constitutional Court of 22 October 2002 in the case no. 2002-04-03, para. 1 of the motives part, the judgment of the Constitutional Court of 27 June 2003 in the case no. 2003-04-01, para. 1 of the motives part and the judgment of the Constitutional Court of 17 January 2005 in the case no. 200410-01, para. 7.1). When interpreting the Satversme and the international liabilities of Latvia it is necessary to look for such solution that would ensure harmony thereof (see the judgment of the Constitutional Court of 13 May 2005 in the case no. 2004-18-0106, para. 5 of the motives part). Consequently, the international law and the practice of application thereof may serve as the means for establishing the content of legal norms and principles established in the Satversme. Article 25 of the UN Universal Declaration of Human Rights provides that everyone has the rights to a standard of living adequate for the health and well-being of himself and of his family, including medical care. Article 12 of the UN International Covenant on Economic, Social and Cultural Rights provides that the States Parties of the Covenant recognize the rights of everyone to the enjoyment of the highest attainable standard of physical and mental health. The set of measures that the States Parties must undertake for full implementation of the rights must contain such measures that are necessary to ensure prevention, treatment and control of diseases, inducing epidemic, endemic, occupational and other diseases, as well as creation of conditions which would assure to all medical service and medical attention in the event of sickness. The UN Committee for Economic, Social and Cultural rights that has been established with a view to supervise implementation of the UN International Covenant on Economic, Social and Cultural Rights in the Member States has interpreted the rights to health protection in its General Comment no. 14 “The right to the highest attainable standard of health” (see The right to the highest attainable standard of health: 11/08/2000. E/C.12/2004/4. CESCR. Substantive issues arising in the Rights. General Comment no. 14). In this comment (hereinafter – the General Comment no. 14) it has been indicated that the rights to health protection shall not be interpreted as the right to be healthy. The right to health protection include both, certain freedoms and rights. Freedoms mean, for instance, the fact that everyone can freely control his or her own health and body, as well as be free from interruption of other persons into certain processes, for example, a person cannot be treated without his consent. On the other hand, the rights include the right to availability of such medical assistance system that would ensure equal possibilities to reach the highest health level possible for everyone. It must be taken into consideration, however, that the state cannot undertake full responsibility for the possibilities of a person to reach the highest health level possible if it is determined by genetic factors, resistance or non-resistance of a particular person against different diseases, as well as unhealthy life style. Consequently, the right to

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health protection comply with the duty of the state to ensure availability and accessibility of medical care institutions, services, equipment and medical products, as well as other conditions that affect the possibility to reach the highest health level possible. Consequently, the duty of the state to carry out measures that are necessary to protect human health, including ensuring of availability and accessibility of health care services and medical products follows from the right to health protection. 11.3. The Cabinet of Ministers in its reply explains that the objective of the Impugned norms is to ensure balance between the interests of all patients to receive primary health care of a certain level and the interests of patients in individual and extraordinary cases. If, in the frameworks of an individual reimbursement mechanism, no restrictions would be established, there would form an unfair, unequal and nonproportionate attitude of the state towards other patients. Namely, it would not be possible to satisfy applications of patient submitted to state-reimbursed institutions in order to receive reimbursement of the purchase of medical products in accordance with the list of reimbursable medical products because the budget resources of medical assistance would already be spent when reimbursing the costs towards the purchase of medical products for individual persons. The Cabinet of Ministers has indicated that, if no such restrictions would be established, the number of those patients who could receive individual reimbursement would be reduced because the resources allocated would be at an insufficient amount. Consequently, the restriction established in the Impugned norms is guided towards ensuring a possibility for the broadest circle of patients possible to receive effectively reimbursement of the purchase of medical products by thus favouring health protection in accordance with Article 111 of the Satversme. Since the state has the duty to ensure accessibility of medical products, and the restriction included into the Impugned norms is also guided towards the objective to ensure the accessibility of medical products to the largest number of persons possible, the different attitude has a legitimate aim, i.e. to ensure the right to health protection of other persons. 12. As it follows from the application, the Petitioner holds that by providing in the Impugned norms a different attitude, the principle of proportionality is not observed. The Impugned norms provide for a different treatment depending on the fact whether the medical product necessary for treatment of a certain disease is or is not included into the list of remunerable medical products. Medical products are included into this list only in the case if their therapeutic and economic efficiency has been examined. This, however, is a formal criterion because it does not depend on the will and activities of a particular patient. Moreover the fact that the medical product has not been included into the list of remunerable medical products does not mean that they are inefficient. Efficiency of medical products can be judged only after assessment thereof. The Petitioner holds that the amount of remuneration of the costs towards the purchase of medical products can only be restricted if it would apply also to the general mechanism of reimbursement of the purchase of medical products. The Human Rights Bureau, too, holds that the principle of proportionality has not been observed. The fact that efficiency of medical products to be reimbursed according to general procedure is not sufficient or proved enough may not serve as the basis for restriction of the amount of reimbursement. In the frameworks of an individual reimbursement mechanism, each case is assessed separately since each of such cases is extraordinary. Moreover, in the case if a person needs expensive medical products and he or she has to cover the difference between the price and the reimbursement amount,

the opportunity to purchase this medical product is small or none. Since the Impugned norms do not ensure that all persons receive the same amount of reimbursement for the purchase or medical products for treatment or an identical or similar diagnosis, the principle of proportionality has not been observed. 12.1. According to the Constitutional Court, in order to establish whether the principle of proportionality has been observed when establishing a non-proportionate attitude, it is necessary to take into consideration the connection of the Impugned norms not only with the norms mentioned in the application but also with that of the Satversme. 12.1.1. The Impugned norms are related with the rights to health protection established in Article 111 of the Satversme. Moreover, the Impugned norms have an impact to the rights of a person to health protection conferred thereto, as well as the rights of other persons to health protection. Therefore it is necessary to assess the duties of the state that follow from the rights of persons to health protection. The Impugned norms regulate the duty of the state to ensure the access of persons to medical products. This duty follows from the rights to health care. However, the practice of application of the norms of international human rights shows that the duty to ensure all necessary medical products for free does not follow from the rights to health protection. Neither such duty follows from the rights of everyone to live and the rights to private life (see the decisions on admissibility of the European Court of Human Rights in the cases “Nitecki v. Poland”, decision of 21 March 2002; “Sentges v. the Netherlands”, decision of 8 July 2002; “Pentiacova and Others v. Moldova”, decision of 4 January 2005). It has also been indicated in the General Comment no. 14 that the duty of the state is to provide persons with an access to medical products, especially to the most important medical products enumerated by the World Health Organization. This duty also includes the duty of the state to ensure financial availability of medical products. However, in the General Commentary, it has not been indicated that everyone has the rights to request full reimbursement of the necessary medical products. 12.1.2. The duty of the state to observe, protect and ensure the rights of persons follows from civil and political rights, as well as economic, social and cultural rights. The duty to observe the fundamental rights implies the duty of the state not to interfere with the rights of persons. The duty to protect the fundamental rights means the duty of the state to protect the fundamental rights of a person from interference of other private persons with them. On the other hand, the duty to ensure the fundamental rights implies the duty of the state to take certain measures for the exercise of the fundamental rights (The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, para. 6. See also the judgment of the Constitutional Court of 3 April 2008 in the case no. 2007-23-01, para. 7). The duty to ensure access to medical products shall be qualified as the duty to ensure the fundamental rights and it can as such depend on the resources at the disposal of the state. It has been recognized in the International Covenant on Economic, Social and Cultural Rights. Article 2(1) of this Covenant provides that each State Party to the Covenant undertakes to take steps to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the Covenant by all appropriate means. The Constitutional Court has also recognized that the state may not refuse from implementing its economic, social and cultural rights established in the Satversme, however, the extent of implementation of these rights depend of the resources at the disposal of the state (see the judgment of the Constitutional Court of 13 March 2001 in the case no. 2000-08-0109, the motives

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part and the judgment of the Constitutional Court of 11 December 2006 in the case no. 2006-10-01, paras. 14.2 and 14.3). 12.1.3. As a result of the fast development of modern medicine and science, an extensive list of medical products and devices has emerged for treatment of different diseases. However, the financial resources of the state are limited and the state cannot reimburse the costs of each inhabitant towards the purchase of the necessary medical products, medical devices and health treatment. Allocation of resources for one group of patients means that these resources are denied to other groups. Therefore, almost each state must deal with the difficult question regarding allocation of resources. Consequently, states may decide who shall receive the reimbursement, under what circumstances and for what kind of treatment. No universal criteria exist in the world that would allow determining priorities. Therefore the state enjoys a broad freedom of action in this respect. The European Court of Human Rights has also indicated that, when deciding issues regarding allocation of a limited amount of resources, the state enjoys a wide margin of discretion (see the decisions on admissibility of the European Court of Human Rights in the cases “Nitecki v. Poland”, decision of 21 March 2002; “Sentges v. the Netherlands”, decision of 8 July 2002; “Pentiacova and Others v. Moldova”, decision of 4 January 2005). Such activities, however, are not unlimited. First, regardless of the level of the economical development, the state has the obligation of undertaking activities to reach the ensurance of the social rights at least on the minimum level by making use of all the means at its disposal (see: Judgment of 14 January 2004 by the Constitutioanl Court in the case No. 2003-190103, Para 8). Second, it has been emphasized in the General Comment no. 14 that an inadequate allocation of resources for health care is inadmissible. The state must first of all develop primary health care and prevention system, which would be advantageous for the majority of the society, rather than to provide expensive health care services that are often available to a very small part of the society. It has also been admitted in the doctrine that resources should be used with a view to provide the greatest possible benefit for the largest possible number of persons. If resources are limited, it is necessary to elaborate such mechanism that would ensure optimal use of resources available (see Alvarez-Castillo F., Ravindran T. K. S., de Pinho H. Priority Setting. In: The Right Reforms? Health Sector Reforms and Sexual and Reproductive Health. Ravindran T. K. S., de Pinho H (eds). South Africa: Women’s Health Project, School of Public Health, University of the Witwatersrand, 2005, p. 164). This means that it is necessary to balance the interests of separate persons and the entire society. One cannot admit a situation in the field of social rights that any group of the society, after having requested the state to ensure certain medical services free of charge, would gain more benefit if compared to other groups of the society. If the financial resources of the state are limited, then the main focus must be made on the welfare of the society (see Annus T., Nompter A. The rights to health protection in the Estonian Constitution. Juridica International, no. VII, 2002, pp. 120‑121). The Human Rights Bureau in its opinion has drawn attention to the need to protect the rights of the entire society (see the case materials, vol. 2, p. 6). Consequently, the state has the duty to ensure an efficient use of resources and to achieve a fair balance in allocation of financial resources provided for health care, by observing the need of certain patients to receive expensive health care services and

the general necessity to ensure availability of the health care for the greatest part of the society possible. 12.2. The Cabinet of Ministers has indicated in its reply that the system of reimbursement for medical products in Latvia has been formed, taking into consideration the fact that primary health care is the main part of health care, which is based on scientific and practical methods and that must be accessible to the inhabitants. The system of reimbursement of the purchase of medical products has been formed as one of the mechanisms for ensuring one of the principles of primary health care, which is accessibility and justice. This concerns patients with severe and chronic diseases. Full medical treatment of outpatients allows preventing worsening of the health conditions of a patient and his or her treatment in a hospital. Therefore, in Latvia, there has been a medical products reimbursement system introduced for patients with severe or chronic diseases. Pharmaceutical features of medical products to be reimbursed according to general procedure have been assessed, namely, their therapeutic efficiency, compliance to certain schemes and guidelines for treatment of particular diseases, as well as other important factors (see Articles 22, 23 and 24 of the Regulations no. 899 and Chapter VI). These medical products have also been evaluated economically, namely, their costs and effect on the state resources allocated for such kind of reimbursement, their therapeutically and cost efficiency in comparison with another available therapeutic method have been assessed, as well as the prices thereof in Latvia and in other European Member states have been analysed (see Articles 22, 23 and 24 of the Regulations no. 899 and Appendix 3). When assessing medical products meant for ensuring vital functions before inclusion of them into the list of reimbursable medical products, survival index is taken into consideration, namely, it is being assess at what extent a particular medical product prolongs live in comparison with other therapeutic method available for treatment of the respective disease (usually – widely available therapeutic method). This means that, according to the list of reimbursable medical products, the costs of a patient for only such medical products that the competent state institution has recognized as therapeutically and economically feasible are reimbursed for a particular diagnosis (a patient), rather than any medical product chosen by the patient and any medical product for any price is reimbursed, provided that the costs for the purchase of medical products are reimbursed at the amount of 100 percent. When including medical products into the list of reimbursable medical products, it is being calculated at what extent the new costs exceed the planned ones. Taking into consideration the difference between survival indices and costs, additional expenses per one life-year acquired in the result of treatment is being calculated (this is cost efficiency increase coefficient). In other states, too, similar methods are applied when forming a list of state-reimbursed medical products (see Alvarez-Castillo F., Ravindran T. K. S., de Pinho H. Priority Setting. In: The Right Reforms? Health Sector Reforms and Sexual and Reproductive Health. Ravindran T. K. S., de Pinho H (eds). South Africa: Women’s Health Project, School of Public Health, University of the Witwatersrand, 2005, p. 140). According to Article 46.2 of the Regulations no. 899, on the List C, medicinal products and medical devices shall be included if cost-effectiveness increase ratio for a life-year acquired in addition does not exceed the cost-effectiveness increase ratio for medicinal products and medical devices already included on the List. On the other hand, in case of reimbursement of the costs for the purchase of medical products for individual persons, therapeutic efficiency of the medical product,

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its compliance to the schemes and guidelines for treatment of the respective diseases and other important factors have not been assessed. Moreover, no positive cost evaluation of the medical product is provided. The individual mechanism for reimbursement is guided towards ensuring treatment in extraordinary cases (rare diagnosis, new medical products), if therapeutic efficiency of products (including survival indices, which in separate cases may equal with zero) is not yet known and it is not possible to foresee and plan budget resources for meeting the needs of patients. In the case under review, too, based on Article 4 of the Medical Law and Article 62.2 of the Regulations no. 899, the Medicine Pricing and Reimbursement State Agency has rejected the application of the distributor of medical products to include the medical product Sprycel (Dasatinibum, ATC L01XE06) into the list of reimbursable medical products because no results of chemical research have been submitted. Neither has the Medicine Pricing and Reimbursement State Agency received any information regarding therapeutic efficiency of the medical product in the case of Z94.8 diagnosis (see the case materials, vol. 1, pp. 149‑159 and vol. 2, pp. 12‑22). Consequently, it can be concluded that the system of reimbursement of medical products is based on assessment of therapeutic and cost efficiency. Only such medical products are included into the list of reimbursable medical products, the therapeutic and cost efficiency of which have been proved. On the other hand, in the case of individual mechanism of reimbursement of the costs for the purchase of medical products, assessment of therapeutic and cost efficiency of medical products is insufficient or is not sufficiently proved. When providing for a different attitude, the state is trying to achieve effective use of the resources at its disposition in the system of reimbursement of medical products and to ensure the rights of the largest part of the society possible to health protection. Taking into consideration the aforesaid, the Impugned norms are an appropriate measure for reaching the legitimate aim. 12.3. Since 2005 the system of reimbursement of the costs for the purchase of medical products in Latvia is being developed according to the conception “On Financial Resources to Ensure Accessibility of Medical Products for Treatment of Outpatients in Latvia for the Following Five to Ten Years, the Role and Responsibility of the State in this Process” (hereinafter – the Conception). The Conception was approved by the Order of 20 December 2004 by the Cabinet of Ministers No. 1002 “Regarding the Conception on Financial Resources to Ensure Accessibility of Medical Products for Treatment of Outpatients in Latvia for the Following Five to Ten Years, the Role and Responsibility of the State in this Process” (see http://polisis.mk.gov.lv). Under the Conception, drawing up of a list of remunerable medical product was launched on 2005 and fully terminated on 2007. The list was created for the diagnoses that were not funded for the period of two years due to the lack of resources. From 1 January 2007, the amount of reimbursement in the case of several diseases was increased. List of reimbursable medical products appropriate for medical systems have been drawn up for several groups of diseases by emphasizing those groups, the sickness and mortality rate of which are higher. Likewise, those medical products that have been purchased according to a centralised order have also been included into the list of reimbursable medical products. From 1 January 2005, reimbursement of medical products for individual patients was launched by thus providing the patients with severe and chronic diseases with a possibility to receive state assistance when purchasing medical products in extraordinary cases, for instance, if a patient has been diagnosed with a rare disease that is not included into the reimbursement system or the medical

products necessary for its treatment has not been included into the list of reimbursable medical products. 2 percent from the annual state budget are allocated for such cases of reimbursement of medical products (see the case materials, vol. 1, pp. 136‑141). The funding of the state budget allocated for the remuneration for medical products has gradually increased. As it follows from the information provided by the Cabinet of Ministers, there were 19.8 million lats allocated for remuneration of the purchase of medical products in 2004, 30.4 million lats in 2005, 42.7 million lats in 2006, 61.3 million lats in 2007 and 66.3 million lats in 2008 (see the case materials, vol. 1, p. 139 and Appendix 4 of the law “On State Budget for 2008”). Irrespective of the increase of the funding, the Ministry of Health indicates that deficit of 7 million lats is planned for the system of reimbursement of medical products, which causes problems regarding reimbursement of the medical products included into the list of reimbursable medical products (see the case materials, vol. 2, p. 10). As it was already indicated, the state enjoys a wide margin of appreciation when deciding on the allocation of resources. It was also concluded that therapeutic and cost efficiency of medical products may also serve as the reason for a different attitude. It was recognized by, for instance, the Federal Constitutional Court of Germany by indicating that the fact that the state refuses to reimburse medical products, the therapeutic and cost efficiency of which has not been assessed, even if this medical product is necessary for ensuring vital functions of a patient (see the judgment of the Federal Constitutional Court of Germany of 5 March 1997 in the case no. 1 BvR 1068/96). Consequently, it can be concluded that the state has the right not to reimburse the costs towards the purchase of such medical products, the therapeutic and cost efficiency of which has not been assessed or proved. The state, however, has chosen to provide assistance for the persons who do not need such help, although the assistance is limited. Taking into consideration the aforesaid, the Constitutional Court concludes that the state has selected the most lenient measure possible. 12.4. When assessing the rights of the legislator and the Cabinet of Ministers to provide for the amount of social assistance, it is necessary to take into consideration the fact that the minimum amount of reimbursement of medical products is determined by the state budget that is often politically assessed. The Constitutional Court has already indicated that it is not possible to assess the financial possibilities of the state, the economic situation, the priorities of the legal policy and the particular needs of certain social groups by means of legal argumentation. These considerations affect the decision of the legislator and the Cabinet of Ministers when providing for services and establishing the amount thereof (see the judgment of the Constitutional Court of 11 December 2006 in the case no. 2006-10-01, paras. 14.2 and 14.3). The courts of other states have also recognized that court proceedings is not an appropriate measure for dealing with an issue regarding priorities in the health care system (see King J. A. The Justiciability of Resource Allocation. The Modern Law Review, 2007, vol. 70, Number 2, p. 199). Consequently, the possibilities of the Constitutional Court to assess whether, in the case under review, the benefit gained by the society is greater than the harm done to a person are limited. The Constitutional Court, however, can assess whether, in this case, the established restriction is well-grounded. 12.4.1. Certain funding from the state budget is allocated for the reimbursement for medical products. The amount of the resources allocated is calculated taking into

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consideration prognosis regarding the number of those patients that have been diagnosed with diseases listed in Appendix 1 of the Regulations no. 899 and who need medical products included into the list of reimbursable medical products for treatment thereof, as well as calculations for average costs for treatment of one patient are taken into account. On the other hand, the number of those patients that need individual reimbursement, as well as the costs of treatment of these patients cannot be prognosticated. Therefore no extra resources are allocated for individual remuneration, whilst a part of resources allocated for reimbursement of medical products is used. When establishing, by means of the Impugned norms, the limit of the reimbursement at the amount of 10000 lats per the period of 12 months for one patient, the state has tried to ensure that it would be possible to provide assistance for the largest number of patients possible. Namely, it was done by assessing possibilities of the state budget and proportionality of the restriction with average costs for the purchase of medical products. Consequently, there can be a situation formed that due to a certain restriction there is a person that cannot, in fact, by the necessary medical products. On the other hand, if there were no such restriction, there could be a situation formed that resources allocated for the mechanism of individual remuneration would be spent on assistance provision for a small number of persons who would need expensive medical products. In order to ensure a more efficient use of resources allocated for the mechanism of individual reimbursement of medical products, the particular restriction has been established. It is based on calculations of reimbursement to be allocated per one individual patient. As it was indicated by the Ministry of Health, it is possible for most patients to fully cover the costs for the purchase of medical products by means of 10000 lats. The Ministry has substantiated its opinion by the following numbers: namely, average costs for remuneration per one individual patient constitute 6721 lats in 2005, 3767 lats in 2006, 3615 in 2007 and 2978 in eight months of 2008 (see the case materials, vol. 2, p. 10). Consequently, it can be concluded that the restriction established by the Impugned norms is based on reasonable considerations. Therefore the Cabinet of Ministers has managed to balance the interests of the society and that of individual persons. 12.4.2. The Petitioner indicates that the different attitude has no objective reason because a person cannot influence the inclusion of a medical product into the list of the reimbursable medical products. The fact that the medical product has not been assessed does not mean though that it is inefficient. Article 11 of the Regulations no. 899 provides that in order to include medicinal products and medical devices oi the list of reimbursable medicinal products, a holder (owner) of marketing authorization or an authorized representative thereof, or a wholesaler of medicinal products or medical devices, or an authorized representative thereof shall submit a written application to the Medicine Pricing and Reimbursement State Agency. The Ministry of Health explains that this provision is related with the fact that the abovementioned persons can guarantee accessibility of the respective medical products for a patient. Moreover, such mechanism allows achieving decrease of the price. Based on the procedure established in the Regulations no. 899, according to which medical products are included into the list of reimbursable medical products, as well as based on the facts obtained during the investigation process, the Medicine Pricing and Reimbursement State Agency can agree with the producer (distributor) on basic price (wholesale price) reduction for medical products to be included into the list of remunerable medical products. For instance, as it was indicated in the reply

of the Ministry of Health, the initial price of the medical product Glivec was 1807.40 lats (120 capsules of 100 ml). The Medicine Pricing and Reimbursement State Agency managed to reduce the price to 1600 lats. In the result of this, total expenses for remuneration of the medical product Glivec was reduced by 150000 lats, which means that assistance was provided for more than 1000 patients in accordance with the list of reimbursable medical products, which constitutes more than 40 percent in the case of individual reimbursement (costs per one patient when reimbursing medical products from the list of reimbursable medical products constitutes 140.98 lats, prescription expenses - about 15 lats). Moreover, it is necessary to take into consideration the fact that information regarding researches that are carried out for the respective medical products is necessary in order to carry out the therapeutic and economic efficiency assessment for the medical product. The documents containing the necessary information can generally be provided by the owner of a registration certificate. Consequently, such procedure has been established on the basis of reasonable considerations that are guided towards efficient use of resources and the objective to ensure the rights to health protection of the greatest part of the society possible. Consequently, it can be concluded that the different attitude established in the Impugned norms is well-founded. Taking into consideration the aforesaid, as well as the fact that the state enjoys a wide margin of appreciation in the field of health protection, the Constitutional Court has no reason to question whether the interests of the society and that of individual persons have been balanced. Since the different attitude has a legitimate aim and the principle of proportionality has been observed, the Impugned norms comply with Article 91 of the Satversme.

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On the basis of Articles 30‑32 of the Constitutional Court Law The Constitutional Court decided: Article 100 and Article 1001 of the 31 October 2006 Cabinet of Ministers Regulations no. 899 “Procedures for the Reimbursement of Expenses toward the Purchase of Medical Products and Medical Devices for the Out-Patient Care” comply with Article 91 of the Satversme of the Republic of Latvia The judgment is final and not subject to appeal. The judgment takes effect on the day of its publication.

The chairman of the hearing of the Court

G. Kūtris

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2009-11-01

Judges’ remuneration

Judges’ financial security as a safeguard for the independence of courts and the right to a fair trial The jurisdiction of the Constitutional Court to review cases linked to judges’ remuneration was examined. No legal norm that infringes upon persons’ rights may remain outside the control of the judicial power. Thus, the Constitutional Court has the right to examine cases regarding legal norms that pertain to the judicial power itself. The independence of judges as an integral element of the right to a fair trial was analysed. Financial security, guaranteed by appropriate and stable remuneration, is one of the essential elements of the judges’ independence. The state has the obligation to set such remuneration to judges that is compatible with the status, functions and responsibility of a judge. A judge should be financially independent and feel secure about his future. It was noted that the requirement to ensure an appropriate remuneration to a judge is linked not only to a judge’s independence but also to the qualification and competence requirements, as well as restrictions set for a judge. The legislator’s right to decrease judges’ remuneration in conditions of economic recession was examined. In such circumstances everyone assumes proportional responsibility for eliminating the harsh consequences of the crisis, therefore the judges must also show solidarity with other citizens. In a situation where the state is forced to introduce general decrease of remuneration in institutions financed from the budget, decreasing of judges’ remuneration is permissible. However, judges’ remuneration may not be decreased to the extent that a judge who has assumed commensurate financial commitments becomes insolvent and, thus, his independence is jeopardised. Moreover, the decrease of judges’ remuneration may be applied only in short term, while the financial and economic situation of the state is particularly harsh. It was underscored that prior to taking decisions on the operation of courts the legislator should give an opportunity to the legislative power to express its opinion because the principle of separation of power comprises also the requirement of cooperation between branches of power. If the legislator, due to objective reasons, cannot uphold the opinion of the judicial power, it must substantiate its decision.

JUDGMENT in the name of the Republic of Latvia in the case no. 2009-11-01 Riga, 18 January 2010 The Constitutional Court of the Republic of Latvia in the following composition: the chairman of the hearing of the Court Gunārs Kūtris, judges Kaspars Balodis, Aija Branta, Juris Jelāgins, Kristīne Krūma and Viktors Skudra,

on the basis of the constitutional applications of [258 judges] (hereinafter – the Petitioners), on the basis of Article 85 of the Satversme [Constitution] of the Republic of Latvia (hereinafter – the Satversme) and Article 16(1) and (3), Article 17(1)(11) and Articles 192 and 281 of the Constitutional Court Law, on 18 December 2008 examined in written proceedings the case “On the compliance of paragraph 7(2) and paragraph 17 of the transitional provisions of the law “On Judicial Power” (in the wording of 14 November 2008) with Articles 1, 83 and 107 of the Satversme of the Republic of Latvia”.

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The facts

1. The procedure for calculating the remuneration of judges was set out in the law of 19 June 2003 “Amendments to the Law “On Judicial Power”” which came into force on 1 July 2003. The aforementioned law started a reform in the remuneration of the judges, based upon the Concept Document “Remuneration of Judges and Court Employees”, approved with the Order no. 706 of the Cabinet of Ministers of 19 December 2002 (hereinafter – the Concept Document). The main aim of the Concept Document was to develop a system of remuneration for judges, which would be the basis for the existence of a professional, fair and independent court. 1.1. In accordance with Article 1191 of the law “On Judicial Power” a judge’s monthly salary was tied to the average monthly gross remuneration of employees in the state of the previous year, to which a coefficient 4.5 was applied. At the same time a gradual transition to the amount of remuneration set out in the law was envisaged. Until 2006 the monthly salary of a judge was calculated on the basis of the average gross remuneration of the employees in 2001. Moreover, in accordance with the transitional provisions, in 2003, 2004 and 2005 60, 70 and 80 percent of the calculated salary were paid, respectively. 1.2. The amendments to the law “On Judicial Power” of 23 February 2006 provided that the salary should be tied to the monthly average gross remuneration of 2001 not until 2006 but until 31 December 2006. The second sentence of paragraph 7 of the transitional provisions of the law “On Judicial Power” also provides that the monthly salary of judges, except the monthly salary of the judges of Land Register Offices, in 2007 and 2008 shall be calculated, taking into consideration the average monthly gross remuneration of 2005, but in 2009 – the average monthly gross remuneration of the employees in 2006, and that the coefficient 4.5 shall remain unchanged. 1.3. On 14 November 2008 the Saeima [Parliament] of the Republic of Latvia (hereinafter – the Saeima) adopted the law “Amendments to the Law “On Judicial Power”” in which paragraph 7 of the transitional provisions was worded differently. The second sentence of this paragraph provided: “The monthly salary of a judge, except the monthly salary of a judge of a Land Register Office, in 2007, 2008 and 2009 shall be calculated, taking into consideration the average monthly gross remuneration of employees in 2005, keeping the coefficient 4.5 unchanged” (hereinafter – the impugned paragraph 7). 1.4. The system of remuneration for judges of Land Register Offices was introduced simultaneously with the system of remuneration for judges, by including in the law “On Judicial Power” Article 1201, worded as follows: “The monthly salary of a judge of a Land Register Office shall be calculated by applying the coefficient 2.5 to the average monthly gross remuneration of the employees in the state, as announced in the official statistical report of the Central Statistical Bureau, which has been approximated until lats”.

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1.5. With the amendments of 8 November 2007 the coefficient 3.5 was set, simultaneously envisaging a transitional period until 2009. With the amendments of 14 November 2008 the coefficient 4.5 was set. However, paragraph 17 of the transitional provisions provided: “The monthly salary of a judge of a Land Register Office shall be calculated as follows: until 1 January 2009 – in accordance with the average monthly gross remuneration of the employees in the state, as announced in the official statistical report of the Central Statistical Bureau, which has been approximated until lats, applying to it the coefficient 2.5; in 2009 – taking into consideration the average monthly gross salary of the employees in 2006, applying the coefficient 2.5; in 2010 – in accordance with the average monthly gross remuneration of the employees in the state, as announced in the official statistical report of the Central Statistical Bureau, which has been approximated until lats, applying to it the coefficient 3.5” (hereinafter also – the impugned paragraph 17; hereinafter – the impugned paragraph 7 and 17; jointly also – the impugned provisions). 2. The Petitioners consider that the impugned provisions set out a more disadvantageous regulation compared to the previous method (procedure) for calculating the judges’ salaries, since the impugned provisions envisage that the judges’ salaries remain unchanged for three subsequent years – 2007, 2008 and 2009. This, actually, is said to be a decrease in the amount of the judge’s remuneration. The Petitioners indicate that it follows from Article 107 of the Satversme which, inter alia, defines the right for every employee to receive a commensurate remuneration for the work done, that a commensurate remuneration is such which also adequately reflects the character of the work done. Thus, for a remuneration to be commensurate, when setting it the work to be done by the person must be duly taken into consideration. It is said that also from the rights to receive a commensurate remuneration for the work done follows that, when setting the remuneration for judges, the principle of the independence of courts must also be taken into consideration. Namely, the judges’ remuneration could be recognised as being commensurate for the work done only if, when setting it, the principle of the independence of courts, had been taken into consideration. Moreover, both the method for setting the remuneration and the amount of remuneration should be of the kind that ensures compliance with the principle of the independence of courts. The Petitioners allege that by setting the remuneration for judges the principle of legal certainty, the principle of legal stability (Article 1 of the Satversme) and the principle of the independence of courts (Article 83 of the Satversme) have been violated. The judges’ social guarantees, which are granted to the judge during the term in office, and also after the expiry of the mandate, are said to be one of the elements of the independence of judges. The judge should receive an adequate remuneration, which cannot be decreased during the judge’s term in office. Any attempt to decrease the judges’ remuneration or other social guarantees should be considered as a breach of the principle of the independence of courts. The Petitioners emphasize that the impugned provisions also violate the principle of legal stability. By arbitrary amending the procedure for calculating the salary set out in the law “On Judicial Power”, the Petitioners are said to be denied the possibility to base their future activities upon the laws and acts of legislation that are in force and effectively plan their income and expenditure.

The Petitioners’ legal certainty that the reform of the judges’ remuneration would not be stopped had been even more strengthened by the principle of the independence of judges. Namely, they had developed a certainty that the legislator would abide by the principle of the independence of judges and would not amend the law in such a way as to decrease the amount of the judges’ remuneration, which the judges had reckoned with. After examining the case materials, the Petitioner K. Kalvāne-Radziņa noted that a judge in administering justice has been granted one of the state powers defined in the Satversme – the judicial power. Therefore, the judge, undoubtedly, must be a highly qualified lawyer, who is doing a responsible job and, thus, also receive remuneration commensurate to it. However, the comparison of the remuneration of the judges and the lawyers and heads of the structural units working in public administration, allows concluding that the work of the judges is valued significantly lower. This proves that the judges’ remuneration already before the impugned provisions were adopted was not commensurate to the status of the judge. It could not be understood, why the remuneration of judges had to be kept unchanged since 2007, but the remuneration of the officials of the institutions of public administration since 2007 increased significantly, moreover, even in 2009. Thus, the arguments provided by the Saeima about the international commitments, which had set upon the legislator the duty to decrease the remuneration of all employees working in institutions funded from the state budget, do not hold ground, likewise – the arguments about the principle of solidarity, upon which the decrease of the employees working in all branches of state power, is founded. After the introduction of these amendments to the law the work of a judge, as regards its material appreciation, is no longer attractive to a highly qualified lawyer. Moreover, the judge indicates that the reference made by the Saeima to the signed Letter of Intent with the International Monetary Fund of 18 December 2008 and Memorandum of Understanding with the European Commission signed on 28 January 2009 is not appropriate, since the aforementioned documents were created after the adoption of the impugned provisions. 3. The Saeima – the institution that has adopted the impugned provisions – in its written reply indicates that the adoption of the impugned provisions was linked to the fast economic recession, which is still ongoing. The official data of the Central Statistical Bureau prove that – considerable decrease of the gross domestic product, revenues and expenditure deficit of the public sector, the decrease of the industrial production, decreasing retail sales, growing unemployment level. To compensate for the lack of finances, Latvia took international loans, in order to obtain and to use them a number of conditions were set for Latvia, including ones applicable to the decrease of remuneration. The Letter of Intent with the International Monetary Fund, signed on 18 December 2008, serves as the basis for obtaining the loan, paragraphs 24 and 30 of which envisage measures for decreasing the remuneration both in 2009 and in subsequent years, and also the Memorandum of Understanding with the European Commission signed on 28 January 2009. It is said that it follows from these documents that a targeted and timely implementation of the Latvian Programme for Stabilising the Economy and Restoring Growth (approved by Order no. 123 of the Cabinet of Ministers of 19 February 2009) is the most significant precondition for obtaining the international loan, and this Programme is said to apply also the judges’ remuneration. Consequently, the measures for preventing the economic recession are focused upon reaching the aims referred to in Article 116 of the Satversme – protection of the rights of other people and public welfare.

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The Saeima holds the opinion that the adoption of the impugned provisions is only one among numerous measures implemented to reach the aforementioned aims. The impugned provisions first of all are needed to safeguard the interests of the state budget, since the actions of the state are founded upon self-financing, and a situation, when the expenses exceed the revenue, could not be allowed in the long-term. Thus the goal of the restrictions, which the impugned provisions contain, is said to be not only safeguarding the interests of the state budget under the conditions of economic recession, when the budget expenditure must be decreased and balanced with the revenue, but also to realise the rights of other persons to social security. Thus, the adoption of the impugned provisions had been necessary and urgent, and it had a legitimate aim – ensuring the public welfare and protection of the rights of other persons. Moreover, the impugned provisions have a fixed term. The Saeima simultaneously indicates that the principle of the independence of courts cannot be linked only with the amount of judges’ remuneration set in the legislation. A complex and systemic assessment of compliance with this principle is needed. The independence of the system of courts (the institutional dimension) and the independence of judges (the individual dimension) is said to follow from numerous criteria: absence of a direct interference by the other powers (executive and legislative) in the administration of justice, sufficient funding to the system of courts for fulfilling its organisational and administrative functions, guaranteed social security and activities to the judges (selection of candidates for the office of judge, irrevocability and immunity of a judge), impartial allocation of cases, the reviewing of the court judgments according to the procedure set out in the legislation, etc. The Saeima emphasizes that at present the remuneration for judges’ work is commensurate with the character of the job, the skills needed for performing the job and the responsibility, conforms with the requirements and restrictions set in the law, and, moreover, is balanced with the status and the remuneration of other officials of the judicial system, as well as with the general level of salaries in the state. Therefore a breach of Article 107 of the Satversme cannot be identified. Thus the adoption of the impugned provisions is said to follow logically from the legislator’s discretion and the duty to strike a balance between the interests of various social groups. The judges’ remuneration is not the only factor ensuring the independence of the judiciary, and the stopping of its increase per se does not create a threat to the independence of the judiciary, especially so, considering the fact that the judges’ remuneration is far from being incommensurably low. The Saeima considers that the setting of the remuneration falls within the sphere of social rights, which is inseparably linked with the state’s financial possibilities, therefore the legislator, in regulating the aforementioned legal relationship, has been granted a wide discretion. The legislator’s decisions on the implementation of social rights have an important political dimension, which is influenced by the economic situation of the state and resources available to it, therefore concerning the implementation of social rights the legislator cannot be set as strict requirements as with regard to the ensuring of other human rights. Thus, the social rights are said to be special and different from the human rights. The Saeima indicates that the impugned provisions are an exceptional and fixedterm measure, implemented under the conditions of economic recession. Moreover, prior to the adoption of the draft law in the last reading, the possible alternatives had been meticulously assessed. The possibility to compensate for the losses incurred by the judges, if such were caused with the paragraph 7 or 17 of the transitional provisions,

from the resources allocated to the Ministry of Finances budget sub-programme “Resources for unforeseen events” had been considered. However, this solution gained no support, because it would not have helped to reach the legitimate aim on a sufficient scale, i.e., since the impugned provisions were adopted to economize the financial resources, the resources for introducing an appropriate mechanism of compensation would also be lacking. By adopting the impugned provisions the Saeima did not breach the judges’ rights to adequate financial guarantees at least on the minimum level, did not act unfairly vis-á-vis some social groups, and did strike a balance between the rights of various social groups. Moreover, the decrease of remuneration was introduced also with regard to other bodies of state power, public and local government institutions of administration. The judges’ salaries are funded by the state budget. The remuneration of other officials (employees) of state and local government institutions was decreased, but the impugned provisions envisage only staying the increase of the remuneration. In view of the fact that the remuneration of all employees funded from the state budget, including the President of the State, the Prime Minister, ministers and members of the Saeima, was decreased, the Saeima holds the opinion that the principle of solidarity was complied with. Thus, the impugned provisions comply with the principle of solidarity and do not breach the principle of the independence of courts. The Saeima also does not agree to the opinion of the Petitioners that the impugned provisions do not comply with the principle of legal certainty. The principle of legal certainty is one of cornerstones of a democratic state, which follows from Article 1 of the Satversme, and it has the aim to promote the predictability and certainty of legal acts, as well as the stability of legal relationship between the state and the person. However, the principle of legal certainty does not prohibit introducing amendments, conforming to certain requirements, to the existing legal regulation. The Saeima emphasizes that neither the principle of legal stability nor fairness prohibit deviating from the previous practice. It is not only permissible, but even necessary in those cases, when the most appropriate and obviously better suited solution has to be chosen. The Saeima considers that in the said situation retreating from the legal regulation more favourable to the person is permissible, since the individual is granted the possibility to understand the motivation behind these actions, as well as whether a regulation like this under these conditions is objectively necessary and whether the breach is not arbitrary. The principle of legal certainty is said to be a constitutional value. Likewise, the protection of the rights of other persons and ensuring social welfare, by effectively re-distributing the common good and by balancing the revenues and the expenditure of the state, is also a constitutional value. The Saeima believes that in case if several constitutional values interact, the legislator has the discretion to decide upon the most appropriate solution. A mechanical protection of legal certainty in those cases, when it contradicts other constitutional values, cannot be absolute. In addition to the aforementioned arguments about the necessity and the proportionality of the impugned provisions, the Saeima also notes that in this case the principle of legal certainty should be viewed also in the context of the principle of equality, i.e., the intangibility or increase of the “benefits” granted to one group automatically means the worsening of the material status of a group of other persons. Thus, a situation when the decrease of remuneration affected all employees of the public sector, but not the representatives of the judiciary and a greater decrease

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of the remuneration were applied to other employees of the public sector would not be permissible. The Saeima, by assessing the experience of other countries – the Czech Republic, Canada and Lithuania, in dealing with the issue of judges’ remuneration, has concluded that in accordance with the case law of these countries, the decrease of judges’ remuneration breaches neither the principle of the independence of judges, nor the principle of legal certainty. The Saeima asks to declare the impugned norms compatible with the Satversme. […]

The motives

5. The competence of the Constitutional Court to examine this case has not been disputed, however, the special character of the issue demands assessing and justifying the rights of the Constitutional Court. One of the fundamental principles of a democratic state enshrined in Article 1 of the Satversme is the principle of the separation of powers, which includes the control of the judiciary over the legislative and the executive power. Not a single legal provision or an action of the executive power can stay outside the control of the judiciary, if it infringes the interests of any person. [see the judgment of the Constitutional Court of 9 July 1999 in the case no. 04-03(99) para. 1 of the motives part]. The judiciary as a whole and the Constitutional Court as part of it has to ensure as complete control of two other branches of power as possible (see the judgment of the Constitutional Court of 22 February 2002 in the case no. 2001-06-03, para. 1.2 of the motives part). Examining the competence granted to the Constitutional Court by Article 85 of the Satversme to assess the compliance of laws with the Satversme, it can be concluded that the Constitutional Court decides on specific disputes concerning the compliance of legal norms with norms of higher legal force (see the judgment of the Constitutional Court of 20 December, 2006 in the case no. 2006-12-01, para. 9.2). By assessing the compliance of a law with the Satversme, the Constitutional Court implements the principle of supremacy, thus ensuring constitutional fairness. Neither the Satversme nor the Constitutional Court Law grant to the Constitutional Court the right to refuse to examine the compliance of a law or another legal provision with the Satversme, likewise, do not give the rights to anybody to prohibit the Court from fulfilling its functions or to restrict the Court in the fulfilment of its functions. Thus the Constitutional Court has the jurisdiction to examine the constitutionality of a decision adopted by another branch of power even in those cases when such decisions affect the judiciary. 6. The applications contain a request to assess the compliance of the impugned provisions with Articles 1, 83 and 107 of the Satversme. The compliance of the impugned provisions with the principle of legal certainty, which follows from Article 1 of the Satversme, in the framework of this case must be examined in interconnection with the independence of the judge included in Article 83 of the Satversme. Likewise, in assessing the compliance with the right set out in Article 107 of the Satversme to receive remuneration commensurate with the work done with regard to the judges, the requirement of independence included in Article 83 of the Satversme must be taken into consideration. Therefore, first of all the content of Article 83 of the Satversme must be demonstrated, therefore the Constitutional Court will start by assessing the compliance of the impugned provisions with Article 83 of the Satversme.

I 7. Article 83 of the Satversme provides: “Judges shall be independent and subject only to the law.” The independence of the judges and the court defined by this provision is one of the fundamental principles of a state, which is democratic and governed by the rule of law. “The authors of the Latvian Satversme and the constitutions of democratic states demand an independent judiciary and a special status of the judge not because some people just like it, but because it is an absolutely necessary constituent part of a democratic state, governed by the rule of law (Endziņš A. Tiesu sistēmas un politikas saskarsme un dinamika. Jurista Vārds, 7 May 2002, no. 9). The task of the judiciary is to see to it that in administering justice the state constitution, laws and other legal acts are enforced, that the principle of the rule of law is abided by, and that human rights and freedoms are protected (see the judgment of the Constitutional Court of 18 October 2007 in the case no. 2007-03-01, para. 26). The independence of the court and the judges is not an end in itself, but only a means for ensuring and strengthening democracy and the rule of law, as well as a mandatory pre-condition for realising the right to a fair trial; therefore the principle of independence of the court and the judges included in Article 83 of the Satversme has to be examined in conjunction with Article 1 of the Satversme, which includes the principle of the rule of law and the separation of powers, as well as the first sentence of Article 92 of the Satversme, which sets out the right of a person to defend his or her rights and lawful interests in a fair court. 7.1. The concept “a fair court” mentioned in Article 92 of the Satversme contains two aspects, namely, “a fair court” as an independent and impartial institution of the judiciary which reviews a case and “a fair court” as a proper procedure, conforming with a state based on the rule of law, for reviewing a case. The first aspect is linked to the principle of the judges’ independence included in Article 83 of the Satversme (see the judgment of the Constitutional Court of 4 February 2003 in the case no. 2002-06-0, para. 1 of the motives part). The requirements set in the international documents for the independence of judges fall within the content of the right to a fair court. Article 6 of The European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter – the Convention) provides that everybody “is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” Article 14 of the UN International Covenant on Civil and Political Rights contains a similar wording. Apart from the aforementioned international documents ratified by the Republic of Latvia, there is a number of documents developed by international institutions, which have been adopted so that the member states in their laws and practice would follow the principles they contain, for example, the United Nations Basic Principles on the Independence of the Judiciary (see Apvienoto Nāciju Tiesu varas neatkarības pamatprincipi // Latvijas Vēstnesis, 28 September 1995, no. 148), the Council of Europe Committee of Ministers Recommendation no. R (94) 12 to Member States on Independence, Efficiency and Role of Judges of 13 October 1994, Opinion no. 1 of the Consultative Council of European Judges on standards concerning the independence of the judiciary and the irremovability of judges, the European Charter on the Status of Judges, Council of Judges, 8–10 July 1998, the Universal Charter of the Judge adopted by the Central Council of the International Association of Judges in 1999, Judges’ Charter in Europe adopted by the European Association of Judges on 20 March 1998. Even though

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these documents should be perceived only as guidelines, they impose strict moral and political duties for the states and must be used as a means for clarifying the content of the criterion of judges’ independence. The European Court of Human Rights, when analysing the content of the term “fair trial” included in the first sentence of Article 6(1) of the Convention, has concluded that several criteria must be considered, for example, the procedure for appointing to the office of the members of the said institutions, the term for which they are appointed, safeguards against external influence, the presence of external features of independence (see the judgment of the European Court of Human Rights in the case Campbell and Fell v. the United Kingdom, § 78, the judgment in the case Langborger v. Sweden § 32, the judgment in the case Bryan v. The United Kingdom § 37, and judgment in the case Coeme and others v. Belgium § 120). The independence of judges is important for everybody who turns to a court and relies upon the fairness in the administration of justice. Thus, an effective realisation of human rights is impossible if the judges are not independent. 7.2. The principle of the rule of law is one of the principles of a democratic state. Only an independent judiciary is able to ensure a fair result of the court proceedings, which is the foundation for the rule of law. The requirement that judges must be protected against any kind of unfounded interference into the administration of justice and the fulfilment of the judges’ duties, is not only justified and reasonable, but is even essential for safeguarding the rule of law. The United Nations Economic and Social Council in the Preamble to the Bangalore Principles of Judicial Conduct (hereinafter – the Bangalore Principles) has indicated: a competent, independent and impartial judiciary is essential if the courts are to fulfil their role in upholding constitutionalism and the rule of law (see the Bangalore Principles of Judicial Conduct, 29 April 2003, United Nations Commission on Human Rights resolution 2003/43, preamble). Anyone with regard to whom justice is administered is interested in ensuring the independence of judges. Thus, the independence of judges guarantees the safeguarding of the rule of law in the interests of the society and the state. 7.3. Only in such a state, in which the principle of separation of powers guarantees a balance between the branches of state power and reciprocal control, preventing the tendencies of any branch to domineer by promoting the moderation of power and thus ensuring a truly independent judiciary, the independence of judges can be ensured. The aim of the separation of powers is to maintain the guarantees of person’s freedom, preclude the replacement of the model of state governed by the rule of law with an authoritarian regime or an autocracy of a single person. In a state governed by the rule of law the principle of the separation of powers guarantees the balance and reciprocal control between the branches of state power. This exactly gives the judges the possibility to fulfil their duties in a proper way. Thus the requirement of judges’ independence is closely linked with the independence of the judiciary and thus, also, with the implementation of the principle of the separation of powers. 8. The Constitutional Court must assess whether the setting of the judges’ remuneration falls within the scope of the principle of the independence of judges contained by Article 83 of the Satversme.

The Constitutional Court when analysing the constitutional grounds, aims and significance of the independence of the judge, already indicated that it is impossible to ensure the necessary independence of the judge unless the judiciary itself as a whole is free from undue influence or the political pressure exerted by the executive power or the legislator. 8.1. The United Nations Basic Principles on the Independence of the Judiciary provide that it is the duty of every state to provide adequate resources to enable the judiciary to properly perform its functions (see Apvienoto Nāciju Tiesu varas neatkarības pamatprincipi // Latvijas Vēstnesis, 28 September 1995, no. 148, § 7]. The UN ECOSOC in its Resolution no. 1989/60 of 24 May 1989 has pointed out that the states must pay special attention to the resources needed to ensure the functioning of the judiciary, inter alia, by setting an adequate number of judges, appropriate for the number of cases to be examined, ensuring to the courts the necessary staff support and technical means, by providing to the judges appropriate personal security and remuneration (see the procedures for effective implementation of the Basic Principles on the Independence of the Judiciary, ECOSOC resolution 1989/60 of 24 May 1989). Abiding by the principle of the separation of powers included in the Satversme and the requirement of the independence of judges, as well as other internationally recognised requirements, the legislator in Articles 10 and 117, respectively, of the law “On Judicial Power” has provided that the system of courts shall be funded from the state budget. The state, by envisaging an appropriate funding, guarantees an effective legal protection of a person in a competent and independent court. Therefore only such funding of the judiciary, which ensures the fulfilment of these duties, complies with the Satversme. On the one hand, taking into consideration that the budget is a means for implementing the policy of the state and that decisions concerning the state budget can be taken only and solely by the legislator, but, on the other hand, taking into account that the institutions of the judiciary themselves can make the most unbiased estimates on the amount of resources needed to ensure the functioning of court, a reasonable compromise must be found between the guarantees of the judiciary and the budget possibilities. The legislator, prior to taking decisions on the functioning of courts – both on issues linked to the budget, as well as other issues related to the realisation of the functions of the courts, must give a possibility to the judiciary or an independent institution representing the judiciary, if such has been established, to express their opinion on issues affecting the functioning of courts. The Ministry of Justice likewise points out: in a situation, when decisions linked to the functioning of courts can be adopted, without taking into consideration the objections expressed by the representatives of the judiciary “may be a reason to doubt whether the principle of the equality of all branches of the state power is enforced” (the case materials, vol. 2, p. 20). In a democratic state the principle of the separation of powers not only divides the branches of the state power, but also contains the requirement of their reciprocal cooperation, since the shared aim of all branches of power is the strengthening of democracy in the interests of the nation. If the legislator because of objective reasons cannot agree with the opinion of the judiciary, it has to justify its decision. 8.2. The Constitutional Court agrees to what the Saeima has pointed out in its written reply, namely, “the principle of the independence of court cannot be linked only with the amount of judges’ remuneration set in the legislative acts, the adherence to this principle needs a complex and systemic assessment” (the case materials, vol. 1, p. 94).

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The independence of judges is connected with a number of such guarantees: guaranteed tenure of the judge (the procedure for appointing or approving judges, the qualification necessary for the appointment, guarantees of irremovability, conditions for promotion and transfer to another position, conditions for suspending and terminating the mandate), the immunity of the judge, financial security (social and material guarantees), the institutional (administrative) independence of a judge and the actual independence of the judiciary from the political influence of the executive power or the legislator. All these guarantees are closely interlinked, and, if even one of them is disproportionally restricted, then the principle of the independence of judges is breached and thus the fulfilment of the basic court functions and ensuring human rights and freedoms come under threat. The financial security of a judge is one of the guarantees of the independence of judges. The constitutional doctrine points out several aspects of judges’ financial security, however, in all democratic states the judges’ financial security is clearly recognised as one of the most essential elements in ensuring judges’ independence (see, for example, the judgment of the Constitutional Court of the Czech Republic of 14 July 2005 in the case Pl. US 34/04). The Constitutional Court of Lithuania has concluded that it is generally accepted in democratic states that a judge who has to examine legal disputes occurring in society, including disputes between persons and the state, must have not only high professional qualification and perfect reputation, but also must be materially independent and feel secure about his or her future (see the judgment of the Constitutional Court of the Republic of Lithuania of 12 July 2001 in the case no. 13/2000-14/2000-20/200021/2000-22/2000-25/2000-31/2000-35/2000-39/2000-8/01-31/01, para. 4.5., http:// www.lrkt.lt/dokumentai/2001/r010712.htm). The state has the obligation to set such remuneration for judges that would be commensurate with the status, functions and responsibility of a judge. The safeguarding of judges’ remuneration is one of the guarantees of judges’ independence. Likewise, the documents developed by international institutions point out that the independence of judges must be linked with judges’ remuneration and other material and financial guarantees. The UN Human Rights Committee in General Comment no. 32 has indicated that member states should take specific measures guaranteeing the independence of judges and protecting judges from any form of political influence in their decision-making, inter alia, by establishing judges’ remuneration (see the International Covenant on Civil and Political Rights, Article 14, General Comment no. 32, para. 19). The United Nations Basic Principles on the Independence of the Judiciary which have been defined to help the member states to fulfil their task – to ensure and to promote the independence of the judiciary, provide, inter alia, that an adequate remuneration must be secured by the law (see Apvienoto Nāciju Tiesu varas neatkarības pamatprincipi, paragraph 11 // Latvijas Vēstnesis, 28 September 1995, no. 148). The Council of Europe Committee of Ministers Recommendations no. R (94)12 Principle III “Proper working conditions”, specifically its paragraph 1.”b” provides: “Proper conditions should be provided to enable judges to work efficiently and, in particular, by ensuring that the status and remuneration of judges is commensurate with the dignity of their profession and burden of responsibilities” [Recommendation no. R (94) 12, Principle III, para. 1b]. Paragraph 6.1 of The European Charter on the Status of Judges provides: “The level of the remuneration to which judges are entitled for performing their professional

judicial duties must be set so as to shield them from pressures intended to influence their decisions or judicial conduct in general, impairing their independence and impartiality” (European Charter on the Status of Judges, para. 6.1). Article 13 of The Universal Charter of Judge adopted by the International Association of Judges in 1999 provides: “The judge must receive sufficient remuneration to secure true economic independence. The remuneration must not depend on the results of the judge’s work and must not be reduced during his or her judicial service” (Universal Charter of the Judge, para. 13). Thus a commensurate remuneration for work falls within the content of the principle of the independence of judges included in Article 83 of the Satversme. 9. The Constitutional Court has already concluded that the content of the independence of a judge contains an adequate remuneration. However, as it follows from the documents developed by international institutions already referred to in this Judgment, the remuneration of a judge must be comparable to the prestige of his or her profession and the scope of responsibility. The United Nations Economic and Social Council in the Preamble to the Bangalore Principles has pointed out: if the courts are to fulfil their role in upholding constitutionalism and the rule of law, it is essential to have not only an independent and impartial judiciary, but also a competent one (see the preamble of the Bangalore Principles on Judicial Conduct). Taking into consideration the status of the judge and the fact that he fulfils the function of the administration of justice, the legislator has not only the right, but also the duty to set with regard to him or her as the implementer of the judiciary special requirements as to the competence, qualification and experience, as well as restrictions aimed at ensuring the independence of the judge. The law “On Judicial Power” defines the requirements set for the judge, the rights and the obligations, as well as the restrictions set for a judge. But in accordance with the third part of Article 7 of the law “On Avoiding the Interest of Conflict in the Actions of State Officials”, the judges are allowed to combine the status of a state official only with such positions that they occupy in accordance with the law or international agreements approved by the Saeima, regulations and orders of the Cabinet of Ministers, the work of a pedagogue, researcher, professional athlete or creative work. The Supreme Court of Canada has pointed out that with regard to the setting of judges’ remuneration, the independence of the judge and the court is not the only essential issue. This requirements has two more purposes: 1) to promote judicial productivity, since judges with a sense of financial security are more likely to work above and beyond the call of duty; 2) to recruit to the bench lawyers of great ability and first-class reputation (see the judgment of the Supreme Court of Canada of 18 September 1997, Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3). The constitutions or the constitutional laws of some countries include special requirements with regard to the judges’ remuneration. For example, the second paragraph of Article 178 of the Constitution of Poland provides that the judges’ salaries should be consistent with the “dignity of their office” and scope of their duties, Article 88 of the Constitution of Greece provides that the judges’ remuneration should be comparable with the office of the judge. It is only justified and reasonable to set the remuneration commensurate with the responsibility linked to the significance of the office and the workload, the requirement of independence, as well as the rank of the specific office within the constitutional legal

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order. For example, the Constitutional Court, assessing the remuneration of the members of the Saeima, has found that: “The remuneration of a member of the Saeima should be commensurate with the responsibility and the workload linked with the importance of the office, as well as the rank of this office within the constitutional legal order. […] Moreover, the restrictions imposed upon the economic activities of the deputies by the Satversme and the Law on Prevention of Corruption should be taken into consideration. The deputy’s remuneration “is first of all a guarantee of his or her independence” (the judgment of the Constitutional Court of 22 February 2002 in the case no. 2001-06-03, paras. 5.1 and 6.1 of the motives part). Likewise, the purpose of judges’ remuneration is both to ensure their independence and to partially compensate for the restrictions set in the law. Moreover, it should be taken into account that a judge, who is independent, but lacks adequate qualification, is unable to ensure the right to a fair trial, precise interpretation of the laws and the protection of constitutional values. Undeniably, the state is interested in ensuring not only a sufficient number of independent and competent judges, but also the functioning of other independent and competent officials. The Constitutional Court agrees to what has been pointed out by the Cabinet of Ministers that the President of the Bank of Latvia, his deputy, the members of the Council of the Bank of Latvia, the chairperson, deputy-chairperson and the council members of the Financial and Capital Market Commission have to be both independent and competent. (see the case materials, vol. 7, pp. 66‑71). However, these are not the only officials, whose competence and independence the state and the society are interested in. Considering the judge’s mandate, the qualification and competence requirements set for him or her, as well as the impact and significance of a judge’s decisions, the position of a judge should be the highest stage in a lawyer’s career. The legislator has provided that this office can be occupied only by persons who have reached the age of 30. For a lawyer, who has acquired certain experience, to change jobs and to start a career of a judge at this age, he or she needs not only the mandatory qualification, experience and confidence, but also an appropriate financial security and guarantees. Thus, the requirement to ensure an appropriate remuneration to a judge is linked not only with the principle of the independence of a judge but also with the qualification and competence requirements set for and the restrictions imposed upon a judge. 10. To establish whether the impugned provisions infringe the independence of a judge it must be examined whether Article 83 of the Satversme contains a prohibition to decrease judges’ remuneration. Article 83 of the Satversme sets out that “judges shall be independent and subject only to the law.” Thus, this provision expressis verbis does not contain a prohibition to decrease judges’ remuneration. The Constitutional Court already indicated that the scope and the content of the principle of the independence of judges included in the Satversme is assessed not only in interconnection with other constitutional provisions and principles, but also taking into consideration Latvia’s international commitments in the field of human rights. 10.1. Judges’ Charter in Europe indicates that one of the principles of judges’ independence is that “judicial salaries must be adequate, to ensure that the Judge has true economic independence and must not be cut at any stage of a Judge’s service”

(Judges’ Charter in Europe, para. 8). In some countries (for example, the United States of America, Australia) the prohibition to decrease the remuneration of judges is expressly set out in the constitution. For example, Article 3, Section I of the United States Constitution already from the end of the 18th century contains a direct prohibition to diminish a judge’s remuneration during his term in office. The Supreme Court of the United States in its Judgment of 1920 indicated that the primary purpose of this provision was not to benefit the judges, but to attract fit men to the bench and insure independence of action and judgment. Any withholding from the judge of what was promised to them must be regarded as within the prohibition set out in the Constitution (see the judgment of the US Supreme Court in the case Evans v. Hatter 532 U.S. 245 (1920) http://supreme.justia.com/us/253/245/case. html). Thus, the prohibition directly included in the Constitution of the state to decrease judges’ remuneration is aimed also at the safeguarding the judges’ independence. 10.2. The understanding of general values, including the independence of judiciary and democracy, depend upon the history and the traditions of a state. In those states, in which quite recently a single partly ruled, it might be difficult to accept the understanding that the independence of the judiciary demands its separation from the political power (see The Cambridge Yearbook of European Legal Studies, vol. 4, 2001, p. 54). The issue of decreasing judges’ remuneration, as well as other aspects linked to the financial security of judges have been examined not only by those states where due to historical reasons there could be discussions about the scope and the contents of the independence of the judiciary (the Czech Republic, Russia, Lithuania, Poland, Slovenia), this question has been topical also in Australia, the United States of America, Canada, Germany and elsewhere. In the aforementioned countries the constitutional courts or other institutions implementing the constitutional supervision have established that in a situation when a state experiences financial difficulties, the judges’ salaries must be especially protected against excessive and adverse fluctuations (see the judgment of the Constitutional Tribunal of the Republic of Poland of 18 February 2004 in the case no. 12/03 http://www.trybunal. gov.pl/eng/summaries/documents/K_12_03_GB.pdf ). The social and material guarantees of judges are part of the guarantees protected by the principle of the independence of judges and courts. Thus, any attempt to decrease judges’ remuneration or social guarantees or decrease the budget for the courts should be interpreted as an infringement upon the independence of the judiciary (see the judgment of the Constitutional Court of the Republic of Lithuania of 6 December 1995 in the case no. 3/95 http://www.lrkt.lt/ dokumentai/1995/n5a1206a.htm). The judge has inalienable rights to an unreduced salary (see the judgment by the Constitutional Court of the Czech Republic of 15 September 1999 in the case Pl. US 13/99). Therefore it is impermissible to decrease the judges’ salaries with the aim of preventing budget deficit (see the judgment of the Supreme Court of Canada of 18 September 1997 in the case Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3). One of the essential constitutionally protected guarantees of the independence of the judiciary is the protection of judges against the decrease of salary during their term in office. Moreover, a stable economic situation of the judges ensures to them also a high degree of independence in the broadest sense (see the judgment of the Constitutional Court of the Republic of Slovenia of 11 December 2009 in the case U-I-159/08-18, para. 33). To allow the judges to fulfil their functions effectively, complying with the requirements of independence and competence, as well as with the set restrictions, the legislator, taking into account the requirements defined by international organisations,

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has envisaged to them remuneration not only in the form of concrete salaries, but also as social and security guarantees, etc. Thus, the prohibition of decrease applies not only to judges’ remuneration. The requirement to safeguard the judges’ remuneration and other guarantees follows from the principle of the independence of courts and judges, which has the purpose to protect judges from any kind of influence: the impact of the legislator, the executive power, institutions and officials, various organisations, business entities, legal and natural persons. Thus, Article 83 of the Satversme contains also prohibition to decrease the remuneration set for the judges during their term in office. 10.3. Judges do not live in a social vacuum, and the specific situation of the state applies to them, whatever its causes – a natural disaster, economic recession, the government’s actions or failure to act or irresponsible decisions. And yet, the prohibition to decrease the judges’ remuneration during the term in office (mandate) does not mean that any actions of the legislator, which, could, possibly, have a negative impact upon the judges’ remuneration, are absolutely prohibited. Judges are also citizens, and their special status and role does not grant them immunity in situations, when the state, in dealing with a complex situation, passes decisions with regard to its population. Other constitutional courts have also concluded that the prohibition to decrease judges’ remuneration cannot be absolute. The Czech Constitutional Court has pointed out that “a total immunity of judges’ remuneration would be illusory and contrary to the elementary conditions of the social reality” ( judgment of the Constitutional Court of the Czech Republic of 14 July 2005 in the case Pl. US 34/04, dissenting opinions of Justices Vojen Guttler, Jan Musil, Pavel Rychetsky). The Constitutional Court of Slovenia noted: “The protection of judges against a reduction of their salaries is not absolute; it does entail, however, that the reduction of judges’ salaries is justified only in truly exceptional instances, on the basis of a review of the specific circumstances in each individual case” ( judgment of the Constitutional Court of Slovenia of 11 December 2009 in the case U-I-159/08-18) of 15 January 2009, 15/98, 33/03). The Supreme Court of Canada established: “A temporary reduction in judicial salaries is permitted in case of economic emergency” ( judgment of the Supreme Court of Canada of 18 September 1997 in the case Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3). The judiciary must fit organically into society and it needs to be approved (accepted) and respected by the society. The judiciary itself and also the legislator and the executive power have a significant role in achieving and ensuring that. High standards of conduct and ethics have been set for judges, they also impose certain restrictions. However, a person, who decides to become a judge, must take into account certain standards of the profession. Under the conditions of economic crisis social solidarity means that every citizen assumes a proportional responsibility for eliminating the harsh consequences of the crisis, but the state officials, including the judges, act in solidarity with the inhabitants of the state. The legislator’s decision to decrease judges’ salaries may put the independence of courts at risk. The Supreme Court of Canada has indicated that taking the decision on decreasing judges’ remuneration, theoretically, gives the legislator the possibility to exert political influence upon judges with the help of economic manipulations (see the judgment of the Supreme Court of Canada of 18 September 1997 in the case Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3). Nevertheless, this theoretical possibility does not allow

concluding and declaring that the decrease of judges’ remuneration under all conditions should be viewed as influencing the judiciary and an infringement upon the principle of the independence of judges. Theoretically an ungrounded increase of the judges’ remuneration could likewise be considered as influencing the judiciary. Thus, under particular conditions – in a situation of economic recession when the state is forced to introduce a general decrease of remuneration in the institutions funded by the state budget, it is possible to derogate from the principle prohibiting the decrease of judges’ remuneration. 11. The Constitutional Court, in assessing what kind of legislator’s activities regarding the setting of the judges’ remuneration are prohibited or allowed by the principle of the independence of courts and judges included in the Satversme, examines the impugned provisions in conjunction with the principle of the separation of powers, the principle of independence and, particularly, the financial security of judges. The system of courts is funded from the state budget. Abiding by the principle of the separation of powers, it is the duty of the legislator, when developing a respective legal regulation, to ensure to the judges remuneration complying with the requirements of the Satversme and the international law – remuneration, social and security guarantees. In a democratic state it would be inadmissible if the judges’ themselves or the executive power would set their salary or if the salary of the officials of other independent institutions were set by the executive power or the independent institution itself. The right to set the judges’ remuneration, even if this right is not absolute, is granted to the legislator. The fact that the legislator takes decisions on the budget and remuneration of the officials in independent institutions, including courts, does not yet mean that it infringes the independence needed to execute the said functions. 11.1. An adequate remuneration is one of the elements of judges’ financial security. Judges need the financial security as a guarantee against external influence and for maintaining their qualification. The individual level (scope) of financial security depends upon the life style of each specific person (judge). The state cannot and should not assume responsibility for excessive expenses or disproportionate financial plans of a judge. However, a situation when the state decreases a judge’s remuneration to the extent that a judge, who has taken on financial commitments commensurate to his or her remuneration, becomes insolvent and thus his or her independence is threatened, is inadmissible. The state has the obligation to ensure judges’ financial security on a level needed by the judge to execute his or her official duties. The financial security of a judge which includes setting a commensurate remuneration, namely, remuneration, social guarantees, including pensions, for judges serves as a guarantee of a proper administration of justice and as a ground for setting high requirements to a judge, and allows maintaining confidence in his or her competence, independence and fairness. Thus, the financial security is an integral element of judges’ independence. 11.2. The financial security of judges – it means that a judge feels secure that the remuneration, which was set at the moment when he started fulfilling the duties of his office, will not be decreased and that, in case the living expenses increase, would be increased accordingly. If the law does not set out a procedure for automatically adjusting the remuneration to the changing costs of living, then the law should provide for another mechanism ensuring this correspondence. The legislator in Latvia has provided

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a regulation, which ensures maintaining the real value of the judges’ remuneration both in the case of economic recession and economic growth. Likewise, the Supreme Court of Canada has noted the prohibition to decrease the real value of remuneration and the need to define in law a precise procedure for ensuring it. The legislator’s failure to act, namely, abstaining from increasing judges’ remuneration corresponding to the real increase in the living costs, contradicts the financial security of judges and is to be perceived as a de facto decrease (see the judgment of the Supreme Court of Canada of 18 September 1997 in the case Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3). The US Supreme Court has made a similar conclusion, indicating in its judgment that the Constitution has granted the legislator the right to set the remuneration and relies upon the integrity and the common sense of the representatives elected by the people. If the law does not contain a formula, which keeps the judges’ remuneration set by the legislator on a certain level compared to the average salary, then the legislator sets judges’ remuneration and a clear procedure for regular increase of such remuneration [see the judgment of the US Supreme Court in the case United States v. Will 449 U.S. 200 (1980) http://supreme. justia.com/us/449/200/case.html]. The Consultative Council of European Judges in paragraph 62 of Opinion no. 1 has also pointed out the need to introduce a regulation that would ensure the increase of judges’ remuneration corresponding to the costs of living (see the CCJE Opinion no. 1, para. 62). The protection of the judge against decrease in remuneration, in view of its purpose – ensuring the independence of a judge, should be understood as a protection against any interference, as the result of which the salary, with which the judge had reasonably counted with when choosing the career of a judge, could decrease. This condition applies both to the protection of the judge’s basic salary, as well as to the additional guarantees, which are part of the judge’s remuneration. Thus, Article 83 of the Satversme protects the actual value of judges’ remuneration, ordering to retain it. 11.3. Not only the amount of a judge’s remuneration, but also its stability has an essential role in ensuring the independence of the judiciary. The UN Human Rights Committee in its General Comment no. 32 has included the requirement to the states to adopt laws that would lay down clear procedures and impartial criteria for setting the judges’ remuneration (see the International Covenant on Civil and Political Rights, Article 14, General Comment no. 32, para. 19). Considering the purposes of the financial security, the requirement to set clear procedures and impartial criteria means not only an understandable and transparent, but also a stable and sustainable system. The Czech Constitutional Court has indicated that “the compensation of judges, in the wider sense, should be a stable, non-reducible value, not an adjustable factor which one or another government calculates, e.g. because judges’ salaries seem too high to it in comparison with the salaries of state employees, or in comparison with another professional group” ( judgment of the Constitutional Court of the Czech Republic of 14 July 2005 in the case Pl. US 34/04). If the legislator were given unlimited rights to influence judges’ salaries according to its political choice, then the concept of the independence of the court would be rendered meaningless, since the stability of remuneration is one element of the independence of the court and judges. Thus, only a stable system of remuneration creates financial security. 11.4. The financial and material conditions needed for the functioning of courts can be made worse and the judges’ remuneration can be decreased by law in special

exceptional cases and temporarily – while the financial and economic situation of the state is particularly difficult. However, even under exceptionally difficult economic conditions neither the funding of the courts, nor the judges’ remuneration can be decreased to the extent that the courts become unable to fulfil their constitutional function – administering justice. The guarantees for the independence of judges must be always ensured - both during the period of extraordinary situation that the state undergoes and after it is over. In view of the principle of the separation of powers and the principle of the independence of judges, the legislator’s discretion in deciding on the judges’ remuneration differs from the discretion when deciding upon restrictions in other public sectors. Thus, a temporary decrease of judges’ remuneration is permissible in the presence of serious, socially justifiable reasons and if it is decreased in compliance with the principles enshrined in the Satversme. 11.5. The legislator draws up the legal regulation on the judges’ remuneration. In any case this regulation is a complex solution, and its purpose is to ensure a remuneration that would comply with the requirement of judges’ independence and the actual value of which cannot be decreased. The laws of some countries contain a concrete judge’s salary and set out a mechanism for regular reassessment of the judges’ remuneration. Other states have developed systems, which compare judges’ remuneration with the average monthly remuneration of employees in the state. To a certain extent this solution allows ensuring the value of a judge’s salary, because with the growth of the average salary, the judge’s remuneration also increases, and with the decrease in the average salary the judges’ remuneration also decreases proportionally. This kind of system exists also in Latvia. The first part of Article 1191 of the law “On Judicial Power” sets out: “The monthly salary of a judge of a district (city) court shall be calculated by applying the coefficient 4.5 to the average monthly gross salary of the employees in the state of the previous year, as published in the official report of the Central Statistical Bureau, approximated until lats.” The first part of Article 1201 of this law similarly provides: “The monthly salary of a judge of a Land Register Office shall be calculated by applying the coefficient 4.5 to the average monthly gross salary of the employees in the state of the previous year, as published in the official report of the Central Statistical Bureau, approximated until lats.” Thus, the Saeima, when drafting the legal regulation of the judges’ regulation, in accordance with Article 83 of the Satversme has established a procedure, which precludes the decrease in the real value of judges’ remuneration. The legislator not only develops the legal regulation with regard to the judges’ remuneration, but also decides upon the conditions under which the system should be changed and also upon the changes themselves. The legislator has the right to develop a new system of judges’ remuneration, if it has a legitimate purpose, as well as serious reasons and, thus, reasonable grounds for developing a new system. In realising the rights of the Saeima to adopt, amend and supplement laws and other acts of legislation or to declare them invalid, the compliance with the procedures set out by the Satversme and the principles included in the Satversme must be ensured. The legislator, when using the law to regulate specific relationships, also when changing the system of judges’ remuneration or developing a new system for it, must not breach the constitutional principles. Since in a democratic state the system of judges’ remuneration must function in the long-term, the development of a new system in a period of crisis or under the influence of a crisis – thus, a temporary situation when a system which complies

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with the Satversme and the international requirements is already functional, would not comply with the principle of the independence of courts and judges. Article 84 of the Satversme guarantees to the judge tenure for life, thus the right of the judge to receive remuneration “for life” is also constitutionally defined. However, when deciding on the development of a new system in the absence of crisis and taking into consideration that the procedure for setting judges’ salaries should be independent, effective and impartial, the legislator would have the duty to: 1) substantiate the need for the new system in such a scope that in case if the court had to assess its compliance with the Satversme this substantiation would provide all information necessary for assessment; 2) to hear the opinion of an independent institution representing the judiciary (in the absence of such, the opinion of the judiciary itself), respecting it in accordance with the principle of the separation of powers; 3) if this opinion is not taken into consideration or is only partially taken into consideration, provide a substantiation for one’s actions in such a scope that in case if the court had to assess its compliance with the Satversme, this substantiation would provide all information necessary for examination; 4) to set a sufficient transition period, allowing the judges, who have chosen their position for life, to re-qualify for an equal position. Thus, the Satversme restricts the legislator’s discretion in developing the legal regulation for judges’ remuneration. II 12. To verify whether the Saeima in adopting the impugned provisions has complied with the principle of the independence of a judge included in Article 83 of the Satversme, the Constitutional Court must verify: 1) whether the impugned provisions restrict the financial security of judges; 2) whether the restrictions have been set forth in a law; 3) whether the restrictions have a legitimate aim; 4) whether the restrictions are proportional. 13. Considering the fact that the situation in the field of the interior and judicial affairs has been emphasized as an important criterion in assessing the European Union candidate countries, Latvia prior to the accession to the European Union had to implement consistent and progressive reforms in the system of courts, which included also the issues of the remuneration of judges and court employees. On the basis of the need to implement reforms in the national judicial system, required by the program for integration into the European Union, inter alia, to ensure the independence of the courts and judges in compliance with the constitutional provisions, a Concept Document was developed (see http://polsis.mk.gov.lv/LoadAtt/file37887.doc, accessed on 4 December 2009). The solutions included in the Concept Document were implemented when the Saeima in 2003 adopted the law “Amendments to the Law “On Judicial Power”” (see the case materials, vol. 2, p. 17). These amendments set out the procedure for calculating the monthly remuneration for judges and judges of Land Registry Offices, which is included in Articles 1191, 1192, 120 and 1201 of the law “On Judicial Power”. In accordance with the Concept Document and the transitional period set in accordance with paragraph 2 of the transitional provisions of the law of 19 June 2003 a gradual approximation of judges’ salaries with the remuneration set out in the law was planned, i.e., with the remuneration recognised by the legislator as being commensurate with the office of a judge. In accordance with it in 2003 60% of a judge’s monthly remuneration was paid, in 2004 – in the amount of 70%, in 2005 – in the amount

of 80 %, and in 2006 – in the amount of 100%. It means that the system of judges’ remuneration provided by the law, which would be able to guarantee judges’ financial security to the extent that would ensure the independence of judges, had to be fully implemented in 2006. The statement in the written reply of the Saeima that actually the impugned norms extend the period of transition for implementing the system of judges’ remuneration defined in the law “On Judicial Power” cannot be agreed with. Paragraph 7 of the transitional provisions (in the 23 February 2006 wording of the law) provided that the judges’ remuneration in 2006 should be calculated taking into account the increase of the monthly gross remuneration of the employees compared to the previous year; in 2007 and 2008 it should be calculated by taking into account the monthly gross remuneration of the employees in 2005; in 2009 – by taking into account the average monthly gross remuneration in 2006. The impugned paragraph 7 did not extend the transitional period set in 2003. It changed the procedure for calculating the salary defined by the law, by providing that in 2009 a judge’s monthly salary should be calculated not by taking into account the average monthly gross remuneration of employees in 2006, as was previously provided by the law, but the average remuneration of 2005. Moreover, the annotation to the draft law points out that “starting with 2010 the payment of salaries to the judges and the judges of Land Registry Office will start in the previously planned amount” – taking into account the average monthly gross remuneration of employees in 2008, i.e., in conformity with the system provided by the law. Thus, the impugned paragraph 7, by providing that in 2009 the monthly salary of a judge should be calculated as in 2008, decreases the judges’ remuneration previously provided by the law. Paragraph 17 of the transitional provisions applies to the remuneration of the judges of Land Register Offices. Paragraph 17, introduced with the amendments to the law of 8 November 2008, provided a transitional period until 2009, however, this transitional period was connected with the introduction of a new coefficient in Article 1201 of the law (the previous coefficient 2.5 was replaced with 3.5). The impugned paragraph 17 provides that in 2009 monthly salary should be calculated as in 2008, and extends the transitional period until 2011. This transitional period is linked to the substitution of coefficient 3.5 set out in Article 1201 of the law with coefficient 4.5. Thus the impugned paragraph 17 sets a transitional period for the implementation of the new system of remuneration for the judges of Land Register Offices provided in the law, but the rule on calculating a judge’s monthly salary in 2009 like in 2008 decreases the remuneration of the judges of Land Register Offices, since the previous wording of the law provided that in 2009 the salaries would be calculated in accordance with the average remuneration of 2006, applying the coefficient 2.5. Thus, the impugned provisions decrease the judges’ salary and consequently restrict the financial security of judges. 14. The Constitutional Court has already established that judges’ remuneration can be defined only by a law adopted by the Saeima. The Impugned provisions are included in the law “On Judicial Power” with the law “Amendments to the Law “On Judicial Power”” adopted by the Saeima on 14 November 2008, published in the official newspaper “Latvijas Vēstnesis” on 25 November 2008 and is in force. Thus, the restrictions to the judges’ financial security have been established by a law adopted by the legislator.

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15. Any restriction of the independence of judges should be founded upon conditions and arguments about its necessity, i.e., the restriction is set because of important interests – with a legitimate aim. In the Constitutional Court proceedings the duty to demonstrate and substantiate the legitimate aim of any restriction first of all rests upon the institution that passed the impugned act, in this specific case – upon the Saeima. The Saeima in its written reply points out that the impugned provisions were adopted in the framework of measures for preventing the economic recession and were targeted at reaching the aim set in Article 116 of the Satversme – to protect the rights of other people and public welfare. The impugned provisions are only one among the numerous measures implemented to salvage the national economy, to balance the state budget, to protect other constitutional values and to ensure vitally important public and state interests. The Constitutional Court agrees that the prevention of economic recession at a time when the state is in a complicated financial situation, should be regarded as an action aiming to protect the interests of other people and public welfare – therefore it must be recognised as a legitimate aim. Thus, the impugned restriction has a legitimate aim. 16. The restriction of the guarantees of the judges’ independence must be regarded as proportional, if the legislator has complied with the limits of its discretion, i.e., when adopting the decision affecting the independence of judges has complied with all the principles following from the Satversme. The Constitutional Court, in assessing, whether the legislator with its action has infringed upon the independence of judges, must assess all actual conditions in each specific situation. The actions of the legislator, which in one case lead to disproportional restriction, in another case, taking into account the specific conditions, could be recognised as proportional and complying with the constitutional requirements. When assessing the proportionality of a restriction the Constitutional Court must take into consideration both the reason for the restriction, i.e., the legitimate aim, and the way in which the restriction was set, as well as the possible consequences of this restriction. The legislator must be able to prove that it has tried to set the decrease of the judges’ remuneration as fairly as possible, complying with all principles following from the Constitution. If the legislator has acted exactly like this, then the decrease could be recognised as constitutional. 17. To assess the proportionality of the restrictions contained in the impugned provisions, the Constitutional Court will assess the system of judges’ remuneration, its aims, basic principles, the procedure of implementation and the amendments introduced to the system. When setting up the system of judges’ remuneration, the Saeima in the annotation to 2003 draft law “Amendments to the Law “On Judicial Power”” noted: “The situation which has currently developed in the state is that the remuneration of court employees is not commensurate with their job duties and the responsibility for the work done. The low remuneration for judges is the reason why there is no serious competition for the office of a judge, thus it is impossible to ensure the involvement of highly qualified lawyers in the judicial work. The low remuneration is also causing large staff turn-over, which leaves a negative impact upon the work of the courts in general; it also creates preconditions for corruption.” Thus, a direct link was identified between the remuneration and the possibility to attract qualified lawyers, the possible risks,

which have to be considered, if the remuneration is not adequate, were also indicated. The Constitutional Court agrees to what has been pointed out by the Ministry of Justice, that “a remuneration, which is commensurate to the office and is competitive, is an essential condition for ensuring the independence of the judiciary” (the case materials, vol. 2, p. 17). 17.1. The system of judges’ remuneration provides that the monthly salary of a judge is calculated by applying a coefficient to the average monthly gross salary of the employees in the state, as published in the official statistical report of the Central Statistical Bureau. Thus the system is pegged to the average monthly gross salary of the employees in the state. Such a system, typical of the majority of modern democratic states, does not provide that the legislator should introduce a special mechanism for reviewing the judges’ remuneration in a case, when its real value diminishes. The amount of the judges’ salary reflects the remuneration trends within the state. In the period of economic growth, when the average salary in the state increases, the judges’ remuneration also increases and thus the real value of their remuneration is preserved. Under the conditions of economic recession, when the average salary in the state decreases, in the framework of this system the judges’ remuneration also decreases. Thus, the system of judges’ remuneration in Latvia has been developed so as to as far as possible avoid the need to amend it. 17.2. Under the conditions of economic recession the legislator’s decision because of the lack of financial resources to decrease the judges’ remuneration simultaneously with the salaries of other employees of the public sector is understandable and justifiable. However, the system of judges’ remuneration already per se envisages automatic decrease of their remuneration in a situation like that, and it would not be fair to allow a repeated decrease of the judges’ remuneration – both simultaneously with the decrease of the remuneration of employees in other state institutions, and on the basis of the decrease of the average monthly gross remuneration of the employees in the state. It can be recognised that this second decrease because of the specific character of the system happens with certain delay in time; however, the salary increase similarly takes place with a delay of two years. The procedure for calculating the remuneration of the members of the Saeima and ministers includes a provision that corrects this drawback, thus ensuring a more timely response to the changes in the average remuneration. The Constitutional Court has no reason to assert that within two years’ time the legislator after identifying the repeated decrease in the judges’ remuneration will not implement measures to prevent the possible negative consequences. However, on the basis of the materials available in the case, it cannot be established that in the specific case the legislator had taken into account that the decrease in the average remuneration in the state will cause a repeated decrease in the judges’ remuneration after two years. The Constitutional Court has already established that the financial security of judges includes also social guarantees, including a judge’s pension(see para. 11.1 of this judgment). Thus, the principle of the independence of judges included in Article 83 of the Satversme protects judges’ pension in the same way as other guarantees of judges’ financial security. Taking into consideration the procedure for calculating the pension set out in the law, also in the case of economic growth, a judge, whose pension depends upon this decreased remuneration, would receive a pension calculated in this way, namely, his social guarantees would be restricted. Thus, the impugned provisions not only cause immediate negative consequences, but also influence the judges’ financial security in the future.

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17.3. The system of judges’ remuneration was developed with the aim to promote the career development of a judge, since it provides a different remuneration to judges of different level courts. The Ministry of Justice has indicated that the system was developed to ensure a commensurate remuneration for work and to guarantee independence in the administration of justice (see the case materials, vol. 2, p. 17). A judge working at the court of any level must be independent. Judges have been granted the right to take final decisions concerning the life, freedom, rights, obligations and property of a person (see Apvienoto Nāciju Tiesu varas neatkarības pamatprincipi // Latvijas Vēstnesis, 28 September 1995, no. 148). The judges at the court of all levels pronounce judgments on the behalf of the people and the state of Latvia, the judgment has the force of a law, it is mandatory to all, and it must be treated with the same respect as the law. A judgment passed by a judge at the court of any level can influence the interests of the whole society. The significance of a judgment does not depend upon the level of the court, in which the judge has passed it, therefore ensuring the independence of all judges is in the interests of the society and the state. Therefore the legislator, when deciding upon the conformity of the judges’ remuneration with the status of the judge, the scope and character of the work, the requirements set for the office and the guarantees of independence, should take the remuneration of the judge in the lowest level court as the basis. 17.4. When developing the system of judges’ remuneration, the legislator at the same time set a transition period, envisaging a gradual, but complete implementation of this system (see para. 13 of this judgment). Thus the legislator created a system of judges’ remuneration, set a transition period and a procedure for calculating the remuneration in this period, as well precisely indicated the term, when the system set out in the law would become fully functional. The applications indicate that every judge “when choosing to work in the office of a judge or to continue this work, undoubtedly, has carefully planned his or her future – both the responsibility in executing the duties of the office, and the remuneration linked to it. The long-term reform of the system of judges’ remuneration, which was launched in the state, as well as the basic principles of a judge’s remuneration defined in the law, was and still is a significant factor for every judge” (the case materials, vol. 1, p. 3). Thus, the law “On Judicial Power” defined the moment when the judges were supposed to receive remuneration commensurate with their office, and therefore judges could reasonably rely upon it. 17.5. The Ministry of Justice indicates that “the level of remuneration laid down in the law thus far has not been reached yet”, because the set transition period has been extended several times, taking into consideration the economic situation (see the case materials, vol. 2, p. 17). The changes which influenced the calculation of judges’ salaries and consequently also their amount, were introduced in the transitional provisions by the amendments of 23 February 2006, 8 November 2007 and the impugned 14 November 2008 amendments, as well as with the amendments that were adopted later, i.e., on 12 December 2008 and 1 December 2009. 17.6. The amendments of 23 February 2006 to Article 1191(1) provided that the salary was calculated not on the basis of the average monthly gross salary of the previous year, but on the basis of the average monthly gross salary of the employees in the state as published in the official statistical report on the previous year. As the result of this amendment the judges’ remuneration was in fact calculated not on the basis of the average remuneration of the previous year, but the average remuneration two

years ago. Initially the introduced amendments caused a situation when the judges’ remuneration was “frozen” for one year. 17.7. The same amendments changed paragraph 1 of the transitional provisions, extending the initially defined transition period for one year. The annotation to the law indicates that this transition period conforms to the Concept Document. However, the Concept Document states that in 2006 the judges’ remuneration should be paid in the amount of 100%. Also during the meeting of the Saeima Legal Committee on 4 June 2003, debating the draft law “Amendments to the law “On Judicial Power””, Elita Stivriņa, the representative of the Ministry of Justice, indicated that paragraph 1 of the transitional provisions “in 2006 will no longer be functioning” (see the case materials, vol. 6, p. 8). Thus the amendments which for one more year prohibited judges to receive the remuneration planned in the law were introduced into the law. The Association of Latvian Judges formally expressed its opinion on these amendments, indicating the need to ensure the calculation of judges’ remuneration in accordance with Article 1191 of the law “On Judicial Power” (see the case materials, vol. 2, p. 173). 17.8. At the same time also amendments to paragraph 7 of the transitional provisions were introduced, providing that: “The monthly salary of judges, except the monthly salary of the judges of Land Register Offices, in 2007 and 2008 shall be calculated, taking into consideration the average monthly gross remuneration of the employees in 2005, without changing the coefficient 4.5, but in 2009 – taking into account the average monthly remuneration in 2006, without changing the coefficient 4.5.” This provision included in the law created the right for the judges to reckon that in 2010 the judges’ salaries would be paid in full, i.e., in accordance with Article 1191 of the law “On Judicial Power”. The available materials of the case allow to establish that this provision was developed on the basis of the objections of the Saeima Legal Affairs Committee to Article 1191” (the case materials, vol. 6, pp. 90, 96 and 101). The amendments of 8 November 2007 introduced changes which affected the remuneration of the judges of Land Register Offices. In Article 1201 of the law the coefficient 2.5 was replaced with 3.5, a transitional period until 1 January 2009 was also envisaged, supplementing the transitional provisions with paragraph 17, expressed as follows. “The monthly salary of a judge of a Land Register Office shall be calculated by applying the coefficient 2.5 to the average monthly gross remuneration of the employees in the state, as announced in the official statistical report of the Central Statistical Bureau, which has been approximated until lats.” Consequently, in 2005 the salary of a judge of a Land Register Office had to be calculated by applying coefficient 3.5 to the average remuneration of 2007. The annotation to the draft law points out that the current “remuneration of the judges of Land Register Offices is not competitive” and that it is necessary to increase the remuneration in order “to prevent moving of qualified and experienced Land register judges to district (city) courts, vacant legal professions or better remunerated work in private entities.” The annotation states: “The legal regulation that is in force provides that the status of the judges of Land Register Offices shall be equalled to the status set for the district (city) court judges. Consequently the criteria for setting the remuneration of a judge of a Land Register Office must be equalled to the status of a judge of a district (city) court” (case materials, Vol. 6, p. 127). Thus, the legislator admitted that applying the coefficient 2.5 to the remuneration of the judges of Land Register Offices was not an adequate solution; that the calculated remuneration was not competitive and was not commensurate with the office of a judge.

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17.9. The Constitutional Court has already established that the amendments of 14 November 2008 (the impugned provisions) decreased the remuneration of both judges and the judges of Land Register Offices. Moreover, the transitional period for implementing the system of remuneration for the judges of Land Register Offices was extended. Each judge of Land Register Offices had a lawful right to rely upon the salary set in the law, as it was prior to the coming into force of the impugned paragraph 17. This impugned provision caused a decrease of salary by 46 percent compared to the salary, which was set by the law of 2009 in the previous wording. Thus in accordance with the impugned paragraph 17 the coefficient that should be applied when calculating the salaries of the judges of Land Register Offices is 1.89 (not 3.5, as it was previously provided by the law). Each judge had the right to rely upon the salary set in the law, as it was prior to the coming into force of the impugned paragraph 7. This impugned provision caused a decrease of salary by 19 percent compared to the salary, which was set by the law of 2009 in the previous wording. Thus in accordance with the impugned paragraph 17 the coefficient that should be applied when calculating the salaries of the judges of Land Register Offices is 2.78 (not 4.5, as it was previously provided by the law). Thus, the legislator by adopting the impugned provisions decreased the salary set in law upon which the judges had the right to rely. 18. The Constitutional Court already established that a temporary decrease of judges’ remuneration is permissible if it is justified by serious, socially acceptable causes and if the remuneration is decreased in compliance with the principles enshrined in the Satversme. The Saeima points out that the impugned provisions are “an exceptional and fixed-term measure” (see the case materials, vol. 1, p. 96). In accordance with the impugned regulation the judges will receive the defined remuneration in full in 2010, but the judges of Land Register Offices – in 2011, i.e., the law provided that in 2010 judges’ salary would be calculated on the basis of the average monthly gross salary of the employees in 2008, but the salary of the judges of Land Register Offices in 2011 would be calculated on the basis of the average monthly gross salary of the employees in the state in 2009. Consequently, it can be established that the impugned provisions envisaged decreasing the judges’ remuneration. 19. According to the statements included in the written reply of the Saeima, the decrease of the judges’ remuneration is one among many measures implemented to balance the state budget. The harsh economic conditions force the state to review and to decrease the funding for all employees of the public sector, irrespective of the branch of power they belong to, the way the budget of the institution is formed and its field of function. It would be inadmissible to decrease the funding of only one branch of power – the court or only the judges’ remuneration, likewise it would be inadmissible to keep unchanged the funding of only one branch of power contrary to other branches of state power and institutions. Such an approach would not comply with the principle of fairness and equality. Even under the conditions of economic recession the funding can be decreased only and solely by complying with the constitutional principles and constitutional procedures, i.e., by respecting the fundamental rights and freedoms, especially the constitutional principle of equality.

Prime Minister Ivars Godmanis, speaking at the Saeima session on 11 December 2009, pointed out that “an absolute solidarity” must be observed in decreasing salaries. The legislator had to find a solution, which would simultaneously ensure solidarity, would not breach fundamental rights and would comply with all constitutional principles. When deciding upon a decrease of salary which would meet equality and solidarity criteria, not only the amount of remuneration of concrete persons but also the scope of work, different functions, requirements and restrictions set for the office in all branches of power – judges, the representatives of the legislative and executive power, as well as independent institutions should be taken into consideration; moreover, the option of giving up certain functions or the possibility of decreasing the number of positions should be considered. Solidarity has not been observed in the decrease of salaries, if it applies to all employees of the public sector, but the amount of decrease has not been assessed and substantiated separately for each group working in the public sector. In fact, the impugned norms set the judges’ remuneration in 2009 not on the level of 2008 but of 2007 – thus, they decreased it. The remuneration of the members of the Saeima, in its turn, was recalculated at the beginning of 2008, namely, it was increased but at the end of 2008 one part of the Saeima members’ remuneration, i.e., which consists of the salary, premium payment to the Saeima officials, remuneration for work in parliamentary committees, representation expenses, in accordance with 11 December 2008 law “Amendments to the Saeima Rules of Procedure” was left unchanged, namely, “frozen”. Likewise, the monthly salaries of the members of the Cabinet of Ministers were also recalculated in 2008, when the Law on the Rules of Procedure of the Cabinet of Ministers of 15 May 2008 came into force, and in accordance with this law the monthly salary remained unchanged from 1 July 2008 until 31 March 2009. With the Amendments of 31 December 2008 to the Law on the Rules of Procedure of the Cabinet of Ministers the monthly salary was “frozen” until 1 March 2010. The case materials allow to conclude that during the first six months of 2009 the average monthly salary of the heads of the ministerial legal departments was by 6.4 percent higher than the average salary of 2008, but the monthly salary of the state secretaries at the ministries were raised by 3.4 percent. In some ministries the monthly salaries of the state secretaries were increased even in April of 2009, for example, at the Ministry of Finances – by 35 percent and the Ministry of Health – by 30 percent (See: case materials, Vol. 5., pp. 140-156). The Saeima, trying to prove the compliance with the solidarity principle, pointed out that not only the impugned provisions decreased the remuneration for judges, but that the remuneration was decreased for all other officials and employees of state and local government institutions, as the law adopted on 12 December 2008 “On the remuneration of the officials and employees of the state and local government institutions in 2009” limited all expenses of the state and local government institutions for remunerating officials (employees) (see the case materials, vol. 5, p. 160). The Constitutional Court points out that this law and the restrictions included in it, inter alia, the decrease of the funding for the purposes of remuneration by at least 15 % of the initially approved funding of this institution for this purpose, applies also to court and judges. The Saeima in its written reply indicates that on the basis of the law adopted on 16 June 2009 “Amendments to the Law “On the State Budget for 2009””, in July the expenditure for remunerating the employees of the public sector was decreased. Likewise it notes that the amendments to the laws introduced in June decreased

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the remuneration of the members of the Saeima (a 20% decrease was applied to a part of the remuneration, but it did not apply to compensations) and the salaries of ministers by 20 percent. The Constitutional Court cannot agree with this interpretation of solidarity and its application to the decrease of judges’ remuneration at the end of 2008, because the decrease with regard to the legislator and the executive power was implemented in June of 2009 (see the case materials, vol. 5, pp. 160, 161), i.e., at the time, when the judges’ remuneration was decreased repeatedly (16 June 2009 amendments to the law “On Judicial Power”). The Constitutional Court has initiated several cases with regard to the conformity of the second sentence of paragraph 7 and the second sentence of paragraph 20 of the transitional provisions of the law “On Judicial Power” (in the wording of 16 June 2009) to Articles 1, 8 and 107 of the Satversme of the Republic of Latvia. In these cases the provisions that envisage to set the judges’ remuneration, “frozen” in 2009 (on the level of 2007), in the amount of 85 percent are contested. Thus the compliance of the proportional decrease of judges’ salaries, introduced in 2009, with the Satversme, will be examined by the Court in future cases. The Saeima points out that by adopting the impugned provisions it did not act unfairly towards individual social groups; however, it does not provide any confirmation or proof on what way the attitude towards various social groups was in fact assessed (see the case materials, vol. 1, p. 97). Likewise the Saeima does not indicate which were the social groups whose interests it balanced and the way it was done. The Saeima in its written reply refers to the judgment of the Supreme Court of Canada, in which it is stated that the decrease of the judges’ remuneration is to be considered as lawful, if, firstly, it has been implemented simultaneously with the decrease of the remuneration of all public sector employees, secondly, if the judges even with the decreased remuneration still enjoy sufficient economic independence, and, thirdly, if the remuneration is not decreased below such a minimum level, which would not be compatible with the office of a judge (see the case materials, vol. 1, p. 98). The Saeima does not provide any information proving that it assessed the situation and the conditions in order to arrive at any of the aforementioned conclusions. Neither can it be established from the materials of the case. Thus, in decreasing the judges’ remuneration by means of the impugned provisions the principle of solidarity was not complied with. 20. Even if the decrease of judges’ remuneration were a part of general economic measures, in the framework of which the salaries of absolutely all employees of the public sector were decreased, such a decrease could be regarded as rational (reasonable) and therefore justifiable (fair) only in case if all other requirements which restrict the legislator’s discretion were met. The Saeima in its written reply erroneously pointed out that the issue of setting the remuneration for judges fell within the field of social rights, in which the legislator had a broad discretion. A judge’s remuneration is one of the guarantees of his independence. The legislator, in setting the judges’ remuneration, enjoys certain discretion; however, as the Constitutional Court already pointed out, the legislator’s discretion in this field has strict limitations. The documents developed by international institutions also point out the necessity to set a commensurate remuneration for the judge. Recommendation no. R (94) 12 of the Council of Europe Committee of Ministers indicates that the remuneration should be set in the law and should be commensurate with the dignity, respect and load of

responsibility of the office [see Recommendation no. R (94) 12, Principle III 1b]. The Opinion no. 1 of the Consultative Council of the Judges of Europe provides: an adequate level of salaries is necessary to ensure that the judges can work freely and are protected against pressure, aimed at influencing their decisions and actions (see the CCJE Opinion No 1, para. 61). When setting up the system of judges’ remuneration, the legislator chose to calculate the salary taking into account the average monthly gross salary of the employees in the state and applying coefficient 4.5 to it. The legislator admitted that this system could be regarded as commensurate with the office of a judge, i.e., firstly, it is sufficiently competitive to attract to the position of a judge capable and competent lawyers. Secondly, the salary is sufficient for the judges to enjoy adequate financial independence, taking into account the significance and the impact of the decisions taken by judges, the prohibition to hold another job set in the law, as well as the workload of judges. It is pointed out in the annotation to the draft law that “in 2009 the judges and the judges of Land Register Offices will not be ensured remuneration commensurate with the volume and the nature of their work”. However, the Saeima in its written reply, without offering any assessment or substantiation, indicated that “at present the judges’ remuneration set in the state is adequate to the character of the job to be performed, the skills that are necessary for fulfilling the position and the restrictions, and it is also balanced with the status and remuneration of other officials of the judiciary, as well as the salary in the state in general” (the case materials, vol. 1, p. 95). 21. In order to ascertain whether the judges’ remuneration is commensurate with the responsibility of the office and the workload, the requirements of independence, restrictions linked to the office, as well as the rank of the office within the constitutional order, the Constitutional Court shall examine whether the Saeima which asserts that the judges’ remuneration conforms to the office of a judge, has assessed, first, the restrictions on holding another job, second, the increasing volume of work, and, third, the ability of the remuneration to attract qualified lawyers. 21.1. The society’s faith in the independence of the judiciary would be impaired if the judges were paid so low salaries as to cause even the slightest doubts that the judges might be influenced by exerting a political influence through economic means. The Supreme Court of Canada has also noted: if the remuneration is too low, then there is always risk, even theoretical, that the representatives of the judiciary could adjudicate cases in a specific way to achieve that the legislator sets a higher remuneration for them, or could receive presents or other benefits from the parties of a case (see the judgment of the Supreme Court of Canada of 18 September 1997 in the case Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3 and the judgment of 14 February 2002 in the case Mackin v. New Brunswick (Minister of Finance); Rice v. New Brunswick, [2002] 1 S.C.R. 405, 2002 SCC 13). The judges have a significantly restricted possibility of holding another job. Thus, a judge cannot alongside his job as judge engage in commercial activities or take another paid job, except for the ones envisaged in the law. Essentially a judge’s remuneration includes also a special compensation for the prohibition to hold another job (see the judgment of 11 December 2009 by the Constitutional Court of Slovenia in the case U-I-159/08-18, para. 33). The judges’ possibilities to gain other income are limited. The prohibition to combine jobs is set because of the special legal status of the judge and also the judiciary as one of the branches of state power. The purpose of

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this prohibition is to ensure the independence of judges, which is a precondition for fair administration of justice. Assessing the proportionality of the amount of judges’ remuneration from this aspect, it has to be noted that so strict restrictions regarding holding another job have not been set for the officials working in public administration, and they have the right to receive remuneration also in other places of employment. Thus, the restrictions on holding another job and receiving another income set for the judges place an obligation upon the state to ensure them a sufficient remuneration and social guarantees which conform to the status of a judge. 21.2. The Constitutional Court recognizes that a judge’s workload also influences his possibilities of holding another job. The case materials allow establishing that during the recent years the workload of judges has been constantly growing. For example, the number of cases received by the first instance courts in 2008 compared to 2007 had increased by 17 817 cases or 40 percent. The average number of cases received and adjudicated (workload) by a judge in 2008 compared to 2007 had increased by 20 percent, but in Riga City courts – by 52 percent. The years 2008 and 2009 saw an especially fast increase in the number of civil cases. As the Ministry of Justice has pointed out, the number of civil cases received by district (city) courts in 2009 compared to the previous year has increased almost by 100 percent. The Ministry of Justice has also noted that, irrespectively of the significant increase of the workload, the legislator has left the amount of remuneration unchanged, which could potentially lead to social consequences, as well as increased term of case adjudication. The excessively long terms of case adjudication could be a ground for complaints of inhabitants to the European Court of Human Rights, and thus, unavoidably, would cause material losses to the state. Even though the productivity of work does not directly depend upon remuneration, the workload should be taken into account in setting the number of judges and their remuneration. The fact that the courts have limited possibilities to ensure the necessary financial and human resources needed to carry out the work of a court properly creates an additional load for judges. The Saeima also in its written reply has pointed to the low remuneration of court staff (see the case materials, vol. 5, p. 161). Qualified staff is needed for effective organisation of judges’ work, moreover, the institutional or administrative adequacy of courts directly depends both upon the funding and the possibilities of the court to decide independently about issues linked with the use of resources (both financial and human). Insignificant interest about the office of a judge, i.e., weak competition and longterm unfilled vacancies can cause problems in ensuring the function of administration of justice in the state. The current situation presents evidence that this risk is real. The Ministry of Justice has indicated that there are cases, when a competition for the vacant judge’s position has to be advertised repeatedly, since no one has applied, or when none of the applicants can be advanced further because of not meeting the minimum level of skills and professional abilities set in the acts of legislation”. For example, in 2008 out of 71 announced competitions four had no Petitioners, but in 13 competitions none of the Petitioners was advanced further (see the case materials, vol. 2, pp. 18, 19). The second problem is that the judges can leave their work at the court to work in another legal profession which would allow them to lead a respectable life, commensurate with their knowledge and qualification. It is noted in the annotation to the draft law: “The regulation included in the draft law could facilitate a situation, in which judges decide to give up the career of a judge in favour of another, better

remunerated job. Thus it could lead to problems in ensuring effective fulfilment of the court function, as the result of which the terms for adjudicating cases at court would extend.” 21.3. In assessing the compliance of the decrease of judges’ remuneration only such comparison between a judge’s salary and other salaries which can be considered as justified can be used. In the countries of the European Union the average salary of a judge at the beginning of a judge’s career is 3.3 times higher that of a same level judge in Latvia, but the highest remuneration exceeds the remuneration of a Latvian judge 12.4 times [see European judicial systems, edition 2008 (data 2006): Efficiency and quality of justice, Council of Europe, September 2008, pp. 185‑186]. One cannot reprove the legislator of setting inadequate salary for the judges only because it is too low compared to the judges’ salaries in other states of the European Union. However, this difference in remuneration should urge the legislator to assess the reasons and the possible risks linked to it. 21.4. The principle of the separation of powers does not define special arithmetic proportions between the levels of remuneration in different branches of power, nor between the level of remunerations of persons in comparable positions. The comparison of positions in different branches of power is always controversial, considering the diverse complicated factors characterising a position. Quite frequently these are completely different jobs with completely different scopes of responsibility. The character of the work, degree of stability in serving in the office, the authorisation linked with the functions to be fulfilled, also the time of tenure differ to the same extent. Because of these and other similar reasons it is unjustified to compare positions and to demand that officials belonging to one branch of power should earn exactly as much as the officials belonging to another branch of power (see the judgment of 18 February 2004 of the Constitutional Court of the Republic of Poland in the case no. 12/03 http://www. trybunal.gov.pl/eng/summaries/documents/K_12_03_GB.pdf ). Several constitutional courts (for example, in Estonia, Canada, Poland) dealing with the issues linked with judges’ remuneration have noted that the levelling of remuneration in various branches of power should not be set as an aim. The Constitutional Court of Lithuania has pointed out that “in some countries the judges’ remuneration is higher than the remuneration of the Prime Minister – and that does not surprise anyone” (see the judgment of the Constitutional Court of the Republic of Lithuania of 6 December 1995 in the case no. 3/95 http://www.lrkt.lt/dokumentai/1995/n5a1206a.htm). The Constitutional Court of Slovenia, in its turn, compares the remuneration of a judge in the lowest level court with the minimum remuneration of a minister and a member of the Parliament (see the judgment of the Constitutional Court of the Republic of Slovenia of 11 December 2009 in the case U-I-159/08-18, para. 33). The Constitutional Court already indicated that the setting of salaries falls within the competence of the legislator and that to a certain extent it is a political decision. And yet, the Satversme restricts also political decisions. If the principle of equality ensures that, for example, during economic recession, by providing a lawful justification for this need, everybody’s remuneration can be decreased, and yet such an interpretation of the principle of equality, leading to setting an identical level of remuneration for all branches of power, is unacceptable. The European Charter on the Status of Judges also chooses the condition that the level of remuneration should be such as to protect judges against pressure, it does not provide that the level of remuneration should be harmonised with the remuneration of the highest officials of the legislator and the executive power,

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since such a comparison is impossible (see the European Charter on the Status of Judges, para. 6.1). 21.5. In order to attract to the office of judge the most competent and knowledgeable specialists, judges should receive an adequate remuneration compared to the remuneration of other highly qualified lawyers. The Constitutional Tribunal of Poland has indicated that a judge’s salary should be equal to the remuneration that practicing professional lawyers receive – attorneys, legal advisors, notaries (see the judgment of the Constitutional Tribunal of the Republic of Poland of 4 October 2000 in the case no. 9/00 http://www.trybunal.gov.pl/OTK/otk_ odp.asp?sygnatura=P%208/00). It is clear that the purpose of such possible comparison of remuneration is to attract to the office of a judge highly qualified lawyers, however, it would not be proper to compare the remuneration of judges with the income received by the representatives of free legal professions, who in their activities are financially independent. It must be noted that financial independence means not only the possibility to earn much more, but also certain risks and additional expenditure (investments in the place of practice, pension). Therefore the Constitutional Court agrees with the Saeima that comparing a judge’s remuneration with, for example, remuneration of a sworn attorney would not be justified. The judges in addition to the remuneration set in the law are provided with social guarantees and appropriate working conditions. However, the statement made by the Saeima that “when assessing the remuneration of judges the remuneration of court staff should also be taken into consideration” is unacceptable. Undoubtedly, the remuneration of the court staff should correspond to their job duties and the necessary qualification. Moreover, the Saeima itself has noted in the letter that the court staff has “already low” salaries (see the case materials, vol. 5, p. 163). However, only because the court staff have low remuneration, there are no grounds to declare that because of this the judges’ remuneration should be decreased, i.e., equated with the remuneration of the court staff (see the case materials, vol. 5, p. 161). The comparison with the prosecutors’ remuneration is equally improper, since the legislator itself in the Law on the Prosecutor’s Office has envisaged the principle of proportionality in the remuneration of prosecutors and judges. 21.6. It is also impossible to assess the adequacy of judges’ remuneration using a judge’s individual material needs as a basis. In order to determine whether the level of judges’ remuneration is appropriate, it should be assessed in connection with the trends and proportions of the level of remuneration in the public sector. The Saeima maintains that “a reasonable proportionality in setting the remuneration for work of equal value to judges and the employees of the public administration in legal profession has been ensured” (the case materials, vol. 5, p. 161). In the framework of the case information on the remuneration to employees of legal profession working in other branches of the state power, heads of independent institutions and the highest civil servants of the state – the ministerial state secretaries was requested. The Constitutional Court established that the salary of judges already since 2007 had been significantly lower than the average salary of the heads of ministerial legal departments; the salary of the ministerial state secretaries was almost two times higher than a judge’s salary. The average salary of the heads of independent institutions exceeded the salary of a judge in 2007 – 3.6 times, in 2008 – 4.3 times, but the salary of the members of the councils of independent institutions exceeded judges’ salary in 2007 – 2.6 times and in 2008 – 3.6 times. Moreover, until 2009 the officials of public administration were receiving premium payments, thus the average total remuneration of the highest officials of public administration in 2007 and 2008 surpassed the judges’

remuneration even three times (in some ministries the remuneration of the state secretaries in 2007 and 2008 is 5.5 times larger than the remuneration of a judge and even 10 times larger than the remuneration of a judge of a Land Register Office). The average increase of salary in the public administration in 2007 (68‑88 percent) and in other independent institutions (25 percent) significantly exceed the increase of the judges’ salary (16 percent). Moreover, in 2008, when the judges’ salaries were already “frozen”, the salaries of the highest civil servants of public administration increased by 17‑19 percent, but the salaries of the heads of other independent institutions – by 20 percent. With all due respect towards all professions and offices, without doubting the influence and significance of their adopted decisions, but at the same time taking into account the importance of a fair and independent court in the protection of human rights and freedoms and in ensuring the rule of law, as well as the duties, responsibilities, restrictions and competence requirements of judges, such a difference between the remuneration of judges and the representatives of other branches of power cannot be recognised as reasonable and proportional. 22. The Ministry of Justice has pointed out that the appropriate level of remuneration defined in the law still has not been reached because the transitional period has been extended several times, due to the “economic situation in the state” (see the case materials, vol. 2, p. 17). The statement that in the previous years the judges’ remuneration was “frozen” because of the economic situation in the state is not justified, since the materials obtained in the process of preparing the case prove the opposite. The Saeima in its letter of response indicated that the economic development significantly worsened in 2008 and that on 7 November 2008 the Central Statistical Bureau for the first time publicised information about the decrease of gross domestic product (see the case materials, vol. 5, p. 159). This is also proven by the fast increase of the average remuneration of the public-sector employees, including the increase of the wages of the ministers, the Saeima deputies and officials of the independent institutions, implemented in 2008. Prime Minister I. Godmanis, addressing the Saeima deputies during the session of 11 December 2008, indicated that already in 2007 the increase in wages had reached even 30 percent, and at present we “simply cannot afford such increase in salaries, which we were able to afford during the previous years” (see the transcript of the session of the Saeima of 11 December 2008 http://www.saeima. lv/steno/Saeima9/081211/st081211.htm, accessed on 26 December 2009). The judges’ remuneration was decreased at the time when the monthly salary of many employees of the public sector was significantly increased. Thus the Saeima, when deciding to decrease the judges’ remuneration, did not assess its balance with the changes in remuneration of officials in other branches of power, it also did not take into considerations the restrictions on holding another job set for the judges, and all the possible consequences and risks following from it. 23. The Constitutional Court already noted that only a stable remuneration guarantees the financial security of judges (see para. 11.3 of this judgment). Prior to initiating this case the amendments to the transitional provisions of the law “On Judicial Power”, which influenced the calculation of the judges’ salary, were implemented with the amendments of 23 February 2006, 8 November 2007 and the impugned amendments of 14 November 2008. The judgment establishes that the changes, which were introduced with the 2006 and 2007 amendments to the law, were not linked with

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extraordinary situation or any exceptional circumstances. The amendments to the law adopted in 2006 and 2007 are not being assessed in the framework of this case, however, the Constitutional Court noted that these have influenced not only the stability of the system of judges’ remuneration, but together with the impugned provisions influence the present amount of the judges’ remuneration and, consequently, the conformity with the status of a judge. The statement of the Ministry of Justice that with regard to the procedure for calculating the judges’ remuneration “the requirement that the legal provision must conform with the system and the present assessment, has a primary significance compared to the principle of legal stability and the previous practice, if the existing practice is no longer acceptable” cannot be agreed to (the case materials, vol. 2, p. 17). The Constitutional Court already established that the system of judges’ remuneration is flexible and adjusts to the general economic situation in the state, thus a need to deviate from this system could arise only under special exceptional conditions. In such a case a temporary stepping away, in compliance with the Satversme, from the principles for setting the salary set out in the law and consequently from the general prohibition to decrease the judges’ remuneration, does not undermine the stability of the system of remuneration. However, such amendments of acts of legislation, which without reason influence the stability of the judges’ remuneration, do not meet the requirements of the judges’ financial security. Thus, the legal regulation on the setting of judges’ remuneration which is in force and which has been influenced by repeated amendments to the law, including the impugned provisions, cannot be regarded as stable. 24. The principle of separation of powers prohibits the executive power to decide upon issues which directly influence the actions of judiciary and the functioning of courts, i.e., the issues of funding, the number of judges, the necessary staff, its competence requirements, remuneration and other issues. This is exactly the reason why the legislator has to give the possibility to the judiciary or an independent institution, which represents the judiciary, to express its opinion on issues, which affect the functioning of courts, but the taking of decisions concerning them fall within the competence of the legislator. The legislator has the right to disagree with the opinion of the judiciary, however, the legislator has to listen to it and to treat it with respect and due understanding. To ascertain whether the legislator in adopting the impugned provisions, has complied with the independence of the branches of power included in the principle of the separation of powers, the Constitutional Court will assess the procedure of adopting these provisions. 24.1. The impugned norms are included in the draft law “Amendments to the Law “On Judicial Power””, drafted by the Ministry of Justice, “implementing the paragraph 1 § 9 of the minutes no. 62 of the meeting of the Cabinet of Ministers of 4 September 2008, in which the ministries, taking into consideration the amount of supported expenditure stated in indent 3 of the said paragraph, were given the task to asses and, if necessary, draft amendments to the acts of legislation”. It is noted in the letter from the Ministry of Justice that “the draft law and its annotation had to be drafted within a week, since the draft law was scheduled for the Cabinet of Ministers meeting together with other draft laws of the 2009 budget package” (the case materials, vol. 2., p. 15). It is noted in the annotation to the draft law that “by changing the procedure for calculating the monthly salary set out in the law, the principle of the independence

of the judiciary and the judges, which is enshrined in Article 83 of the Satversme of the Republic of Latvia and in the law “On Judicial Power” is indirectly affected, the principle of legal certainty is also infringed. Thus, negative consequences with regard to the further development of the system of courts are possible, including difficulties in filling the vacant positions of judges and judges of Land Register Offices.” Part V of the annotation in which the commitments following from international agreements, as well as “compliance assessment” have to be indicated, contains an entry “not applicable”. In accordance with paragraph 4 of the Cabinet of Ministers instruction no. 20 of 18 December 2007 “The Procedure for Filling in the Annotation to a Draft Law” and entry “not applicable” has to be made regarding those issues that are not affected by the draft legal act. This Instruction provides that the compliance with the case law of the European Court of Human Rights must be assessed. Since the annotation to the draft law contained a note that the introduced amendments to the law had an impact upon the independence of the judiciary and the judges, Part V of the annotation had to contain an assessment of the case law of the European Court of Human Rights regarding the requirement included in Article 6 of the Convention to guarantee the right to an independent trial. The Supreme Court also categorically objected to the draft law, since the “amendments will have a significant impact upon the principle of the independence of the judiciary and the judges, which is enshrined in Article 83 of the Satversme of the Republic of Latvia. The principle of the independence of the judiciary and the judges does not allow a situation when the representatives of the judiciary have to “bargain” about the financial resources, which are needed to ensure the court functions set out in the law. A situation like that not only threatens the principle of independence of courts, but also the rights of everybody enshrined in the Satversme and international documents to an independent and fair trial, inter alia, can cause doubts about the impartiality of the judgments of the court” (the case materials, vol. 1, p. 84). The Minister for Justice Gaidis Bērziņš in a letter to the Prime Minister of 30 September 2008 noted: “By changing the procedure for calculating the monthly salary established in the law, the principle of the independence of the judiciary and the judges is indirectly affected” (the case materials, vol. 1, p. 86). But during the meeting of the Cabinet of Ministers of 7 October 2008 the Minister for Justice submitted his dissenting opinion on the draft law, noting the threat to the principle of the independence of judges. The Minister also drew attention to the case law of the constitutional courts of other countries and warned that internationally a measure like that could be assessed as an attempt to influence the independence of the judiciary, untypical of democratic states (see the case materials, vol. 1, pp. 57 and 91). Notwithstanding all of the above mentioned, the Cabinet of Ministers did not eliminate the drawbacks mentioned in the annotation and did not assess the expressed objections. 24.2. During the Saeima session of 16 October 2008 when the decision to submit the draft law to the committees was taken the member of the Saeima S. Āboltiņa called not to support the draft law and indicated: “Judges and court employees are the only ones for whom the increase in salary is defined by law […].So then we today are aiming to support amendments, which can be easily revoked through the Constitutional Court” (transcript of the Saeima meeting of 16 October 2008, http://titania.saeima.lv/LIVS/ SaeimaLIVS.nsf/0/314baab01ee91aeec22574e90030c1ff/$FILE/LP0902_0.htm, accessed on 26 December 2009).

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During the Saeima session of 30 October 2008 the draft law was recognised as urgent and was adopted without discussions in the first reading (see the transcript of the Saeima meeting of 30 October 2008 http://titania.saeima.lv/LIVS/SaeimaLIVS.nsf/0/ B249E1AF4F1AB4CFC22574F90049798A?OpenDocument, accessed on 2 December 2009). To recognise that the salary decrease is justifiable, it is not enough to have an important aim. The aim must be proportional to the means used to achieve it, i.e., the legislator has to prove that the chosen means are proportional. The Saeima in its written reply points out that “prior to the adoption of the draft law in the final reading the possible alternatives were carefully assessed” (see the case materials, vol. 1, p. 96). Namely, the Saeima points to the proposal submitted by the Legal Office of the Saeima on the possibility that the judges and the judges of Land Register Offices could be compensated for losses, if such would be caused by the draft law (see the case materials, vol. 5, pp. 161‑162). It can be established from the case materials that the Legal Bureau of the Saeima in its opinion on the draft law drew the committees attention to several conditions that needed to be assessed, i.e., the need to assess the compliance of the amendments with the principle of the independence of judges, included in Article 83 of the Satversme, and the principle of legal certainty which follows from Article 1 of the Satversme. Likewise, the Legal Bureau also indicated that the amendments should provide for considerate transition to the new regulation and compensation for the losses caused (see the case materials, vol. 6, pp. 192‑195). These proposals were not supported, and on 14 November 2008 the draft law was adopted in the second reading without discussions (see the transcript of the Saeima session of 14 November 2008 http://titania.saeima.lv/LIVS/SaeimaLIVS. nsf/0/5053320642BBC31DC22575200054D9B7?OpenDocument, accessed on 26 December, 2009). Even though the Saeima itself admits that “it would not help to achieve the legitimate purpose on a sufficient scale”, it is impossible to find in the case materials a confirmation that not only alternative solutions, but also the compliance of the amendments with Article 83 of the Satversme and also the principle of legal certainty, which follows from Article 1 of the Satversme, were assessed (see the case materials, vol. 1, p. 96). Thus, the legislator when adopting the impugned provisions did not asses with sufficient care the alternative solutions to establish whether less restrictive measures existed. 24.3. It is noted in the written reply of the Saeima that “Latvia has taken international loans, and several conditions were set for obtaining them, among them also such that refer to the decrease of remuneration” (the case materials, vol. 1, p. 193). To concretize this argument the Saeima pointed out that the procedure for receiving and using international loan was defined by certain rules, which “are included in the Memorandum of Understanding between the European Communities and the Republic of Latvia, paragraph 2 of which provides decreasing the amount of remuneration and the number of employees in state and local government institutions” (the case materials, vol. 5, p. 168). The impugned provisions were adopted on 14 November 2008, but the Memorandum of Understanding between the European Communities and the Republic of Latvia was signed on 28 January 2009. Thus, the Saeima’s reference to the requirements set in this Memorandum is not correct.

The Constitutional Court has already pointed out that the international lenders, within the framework of their competence, define the main aims for the state; however, the choice of the most suitable and adequate means for reaching these aims is left at the discretion of the state. The Constitutional Court did not receive information that the international lenders had set the adoption of the impugned provisions as the precondition for receiving the loan (see the judgment of the Constitutional Court of 21 December 2009 in the case no. 20019-43-01, para. 30.1). Moreover, the international commitments undertaken by the Cabinet of Ministers cannot serve as an argument for restricting the independence of judges defined in Article 83 of the Satversme. 24.4. It can be established from the case materials that the Legal Affairs Committee of the Saeima received many letters from Latvian courts in connection with the draft law. During 29 October 2008 meeting of the Legal Affairs Committee the committee member Vineta Muižniece pointed out: “Courts have submitted letters with substantive argumentation, with pronounced disagreement, however, we are at the same time politicians, responsible for the situation in the state, and therefore we have to take a decision on the course of the draft law” (the case materials, vol. 7, p. 35). During the Saeima meeting on 30 October 2008 the member of the Saeima S. Āboltiņa noted with regard to the adoption of the budget and the judges’ salaries that “nobody, except the Minister for Justice, has tried to reach an agreement with judges and to arrive at a kind of a compromise.” Neither does the Saeima deny that, when deciding on the impugned provisions, the opinion of the judiciary was not heard. The Saeima in its written reply noted directly that “such consultations would be meaningless”, moreover, the issue had been very urgent (see the case materials, vol. 1, p. 96). The obligation to listen to the opinion of an institution representing the judiciary follows from the principles of the separation of powers and the independence of judges. The argument about the urgency of the issue cannot justify the infringement of these principles. Moreover, the materials of the case allow establishing that the representatives of the judiciary had expressed their opinion. The Saeima, in its turn, has not submitted materials proving that it assessed the opinion expressed and arguments presented by the judges. Thus, the legislator, in adopting the impugned provisions, did not comply with the principle of the separation of powers. 25. This judgment establishes a number of incompatibilities which influence the financial security of judges and, thus, also the independence of judges. The introduced amendments and the identified breaches, in view of the existing conditions, cannot be regarded as reasonable and acceptable. The other guarantees of the independence of the judiciary, which, undoubtedly, have great significance, do not compensate for the disproportional restrictions of a judge’s financial security. Since by disproportionally restricting the financial security of judges the principle of the independence of judges has been breached, the impugned provisions are incompatible with Article 83 of the Satversme. 26. In accordance with the case-law of the Constitutional Court, if the impugned legal provisions are declared incompatible with a provision of the Satversme, the Court does not asses the compliance of these provisions with other provisions of the Satversme. 27. During the examination of a case the Constitutional Court is bound by the limits of the claim, i.e., it has to verify the compatibility of the impugned provisions

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with the provisions of a higher legal force, taking into consideration the argumentation of the Petitioners and the motives and considerations reflected in the applications. In this case the Petitioners have contested the second sentence of paragraph 7 and paragraph 17 of the transitional provisions of the law “Amendments to the Law “On Judicial Power”” in the 14 November 2008 wording of the law. As it was already indicated in this judgment, while this case was being prepared and adjudicated, the impugned provisions were amended further with the law of 16 June 2009 “Amendments to the Law “On Judicial Power”” and the law of 1 December 2009 “Amendments to the Law “On Judicial Power”. The amendments to the law adopted in June and December 2009 envisage, inter alia, to apply the “freezing” of the judges’ salaries also to the years 2010 and 2011, but with regard to the judges of Land Register Offices – also to 2012. Namely, the second sentence of the impugned paragraph 7 in the wording, which is currently in force, provides “the monthly salary of a judge, except the monthly salary of a Land Register judge, in 2007, 2008, 2009, 2010 and 2011 shall be calculated, taking into consideration the average monthly gross remuneration of employees in 2005, keeping the coefficient 4.5 unchanged.” The impugned paragraph 17, in its turn, envisages that the monthly salary of a judge of a Land Register Office shall be calculated “in 2010 and 2011 – taking into consideration the average monthly gross remuneration of the employees in 2006, applying the coefficient 2.9; in 2012 – by applying the coefficient 3.5 to the average monthly gross remuneration of the employees in the state in the previous year, as announced in the official statistical report of the Central Statistical Bureau, which has been approximated until lats.” Since the principle of “freezing” equally applies to 2009 and also to 2010, 2011 and 2012, the new wording of the impugned provisions, to the extent they prolong the period for “freezing” the salaries, essentially maintain the situation of the judges set by the impugned provisions for several more years. Therefore, abiding by the principle of procedural economy, the Constitutional Court has grounds to broaden the claim and to attribute its conclusions also to paragraphs 7 and 17 of the transitional provisions, to the extent they in the same way as the impugned provisions define the procedure for calculating the judges salary also in 2010, 2011 and 2012. 28. The Constitutional Court already concluded that the impugned provisions envisaged a decrease of judges’ remuneration (see para. 18 of this judgment). Upon establishing that the principle of “freezing” is applied also to the years 2010 and 2011, but with regard to the judges of Land Register Offices – also to 2010, it can be concluded that the period of decreasing judges’ remuneration has been significantly extended. In fact the “freezing” of salaries has been set for the period from 2007 until 2011, while it is being calculated on the basis of the average remuneration in 2005. However, taking into consideration that in 2009, 2010 and 2011 various remuneration-linked restrictions have been set also with regard to the representatives of other branches of state power, the Constitutional Court can agree to the statement that the decrease of remuneration until 2012 can be regarded as having a fixed term. The legislator has provided that judges will receive remuneration in full amount starting with 2010, but the judges of Land Register Offices – starting with 2013. Wherewith the legislator has envisaged a fixed-term decrease of the judges’ remuneration and has clearly set in the law the end of the term of decreased remuneration.

29. In accordance with Article 31(11) of he Constitutional Court Law in case the Constitutional Court declares a legal provision to be incompatible with a norm with a higher legal force, it has to set a date as of which said provision would become invalid. The Petitioners in this case have requested to declare the impugned provisions invalid from the day of their coming into force, i.e., 9 December 2008. Thus the Constitutional Court has to determine a date as of which the impugned provisions should be regarded invalid. Article 32(3) of The Constitutional Court Law provides that a legal provision (act) which the Constitutional Court has declared incompatible with a legal provision with a higher legal force shall be regard invalid as of the day when the judgment of the Constitutional Court is published, unless the Constitutional Court has provided otherwise. Thus the legislator has granted to the Constitutional Court discretion to decide the date as of which the impugned provision, which has been declared incompatible with a legal norm with a higher legal force, becomes invalid. To declare the impugned provision invalid from another day, not the moment when the judgment is published, the Constitutional Court has to substantiate its opinion. In determining the moment when the impugned provisions on decreasing judges’ remuneration become invalid, the Constitutional Court, to the extent possible, should see to it that the interests of these persons are not harmed, i.e., the unlawfully withheld remuneration should be paid. Even though the members of the Saeima have been informed about the possible consequences, namely, member of the Saeima S. Āboltiņa pointed out that the savings made by decreasing judges’ remuneration was “illusory”, because “these will have to be repaid” (transcript of the sessions of the Saeima of 16 October 2008 and 30 October 2008), the Constitutional Court still has to assess the specific conditions, since such a situation, which would be incompatible with the Satversme even more than the situation if the consequences of the impugned provisions would continue for some time, would not be admissible. Moreover, the payment of judges’ salaries in full amount and compensation for all unpaid sums could seriously threaten the stability of the basic budget of the state and the welfare of the whole society, including the Petitioners themselves. It has been recognised in the case law of the Constitutional Court: even though certain provisions have been recognised as incompatible with the Satversme, however, instant increasing of the financial resources to be paid to the persons, without considering the possibility of taking well-considered measures to ensure the payments, could significantly influence the payments intended for other persons, hinder the implementation of the functions of other institutions and thus encumber the fulfilling of the state functions in general. (see the judgment of the Constitutional Court of 4 January 2007 in the case no. 2006-13-0103, para. 12). With the annulment of the impugned provisions, the salary of judges should be set in accordance with the Articles 1191 and 1201 of the law “On Judicial Power”, to the extent that this salary is not restricted by the amendments to the law that envisaged a decrease in percentage of the judges’ remuneration. Taking into consideration what has been established in this case – that the judges’ salary, which is being paid in accordance with the impugned provisions, is calculated by multiplying the average remuneration with coefficient 2.78, but the judges of Land Register Offices – coefficient 1.89, not 4.5 or 3.5 as was previously envisaged in the law, it can be concluded that the salary of judges, if it were paid in full amount, i.e., in accordance with the provisions of the system of judges’ remuneration, it would increase almost twice. An immediate enforcement of the judgment could have an adverse impact upon the state budget. The annulment of the impugned provisions starting as of the date they

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came into force, i.e., 1 January 2009, could create even more adverse consequences. Therefore the Constitutional Court has to set the most appropriate date on which the impugned norms shall become invalid. 30. Article 31(12) of the Constitutional Court Law in substance envisages similar rights as the ones granted to the constitutional courts of other states for ensuring the enforcement of their judgments, i.e., an authorisation granted to the constitutional court itself to define significant legal consequences of its judgments. Moreover, the law not only authorises the Constitutional Court, but also places responsibility upon it, so that its judgments in the social reality would ensure legal stability, clarity and peace (see the judgment of the Constitutional Court of 21 December 2009 in the case no. 200943-01, para. 35.1). The Constitutional Court has already concluded that it, to the extent possible, should see to it that the situation which could develop starting with the moment when the impugned provisions become invalid should not breach the fundamental rights of the Petitioners and other persons guaranteed in the Satversme and would not cause significant harm to the interests of the state or society (see the judgment of the Constitutional Court of 16 December 2005 in the case no. 2005-12-0103, para. 25 and the judgment of 21 December 2009 in the case no. 2009-43-01, para. 35.1). If the Constitutional Court were not to decide upon issues linked with the enforcement of this judgment, i.e., would not set the date as of which the impugned provisions become invalid, a situation could develop which might threaten the stability of the state budget.

The resolutive part On the basis of Articles 30‑32 of the Constitutional Court Law, the Constitutional Court decided: 1. To declare the second sentence of paragraph 7 of the transitional provisions of the law “On Judicial Power”, in the wording of the laws of 14 November 2008, 16 June 2009 and 1 December 2009 to be incompatible with Article 83 of the Satversme of the Republic of Latvia and invalid starting from 1 January 2011. 2. To declare paragraph 17 of the transitional provisions of the law “On Judicial Power”, in the wording of the laws from 14 November 2008, 16 June 2009 and 1 December 2009 to be incompatible with Article 83 of the Satversme of the Republic of Latvia and invalid starting from 1 January 2011. The judgment is final and is not subject to appeal. The judgment comes into force on the day of its publication.

The chairman of the hearing of the Court

G. Kūtris

2009-43-01

Old age pension

477

Decreasing old age pension Social rights and their restrictions in circumstances of economic recession were characterised. In adopting decisions in the field of social rights, the legislator is guided by political considerations rather than by legal considerations. Moreover, the scope of social rights provisions guaranteed by the state may change depending upon the amount of resources at the state’s disposal. Thus, in circumstances of major economic recession the legislator must be given reasonable discretion allowing it to act swiftly and decisively. However, the economic situation of the state or the need to decrease the budget deficit may not serve as a general justification when the state derogates from the rights that have been granted to persons. It was recognised that in certain cases the economic crisis may reach such a level where the legislator should be granted discretion to take adjustment measures, even if these would infringe upon persons’ fundamental rights. Therefore, if the state’s financial resources are very limited, it may change also the terms for receiving pensions. It was underscored that in circumstances of rapid economic recession the state, nevertheless, maintains a certain totality of basic obligations that it has no right to derogate from. To the extent possible, the state must ensure to all old people a standard of living that complies with human dignity and the possibility to participate actively in the public, social and cultural life of the state. Pensioners are a social group in need of special protection. This all the more applies to those pensioners who have a low income that does not even reach the minimum social security.

JUDGMENT in the name of the Republic of Latvia in the case no. 2009-43-01 Riga, 21 December 2009 The Constitutional Court of the Republic of Latvia in the following composition: the chairman of the hearing of the Court Gunārs Kūtris, judges Kaspars Balodis, Aija Branta, Juris Jelāgins, Kristīne Krūma and Viktors Skudra, on the basis of the application of [121 natural persons and 20 members of the 9th Saeima [the Parliament] of the Republic of Latvia (hereinafter jointly referred to in the text as the Petitioners), according to Article 85 of the Satversme [the Constitution] of the Republic of Latvia and Article 16(1), Article 17(1)(3) and (11), and Articles 192 and 281 of the Constitutional Court Law, on 23 November 2009 at a hearing of the Court examined in written proceedings the case “On the compliance of Article 2(1) of the law “On State Pension and State Allowance Disbursement in the Period from 2009 to 2012” with Articles 1 and 109

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of the Satversme of the Republic of Latvia and on the compliance of Article 3(1) of this law with Articles 1, 91, 105 and 109 of the Satversme of the Republic of Latvia”.

The facts 1. On 16 June 2009 the Saeima of the Republic of Latvia adopted the Law on State Pension and State Allowance Disbursement in the Period from 2009 to 2012 (hereinafter – the Disbursement Law). The purpose of this law is stated in Article 1: “to provide persons with social security within the limits of the available financing according to the laws on state budget for the current year in the period from 1 July 2009 to 2012.” According to the Disbursement Law, cuts to particular payments from the special budget of social insurance were established for the above mentioned period. Thus, Article 2(1) of the Disbursement Law stipulates that “in the period from 1 July 2009 to 31 December 2012 the state old-age pensions and service pensions granted according to the by-laws “On Service Pensions” and “On the Rank and File and the Unit Commanding Personnel of the Institutions of the Ministry of the Interior Employee Pensions (Employee Pensions)” are paid in the amount of 90 percent from the pension amount granted in accordance with the legislative acts”. Whereas Article 3(1) of the Disbursement Law prescribes that “in the period from 1 July 2009 to 31 December 2012 the recipients of state old-age pensions and service pensions granted according to the by-laws “On Long Service Pensions” and “On the Rank and File and the Unit Commanding Personnel of the Institutions of the Ministry of the Interior Employee Pensions (Employee Pensions)” are paid in the amount of 30 percent of the pension amount granted in accordance with the legislative acts starting with the first date of the month following the month when the recipient of pension has become a person subject to mandatory social insurance (employee or self-employed) in accordance with the Law on State Social Insurance” (hereinafter Article 2(1) and Article 3(1) of the Disbursement Law jointly will be referred to as the impugned provisions). […] 2. The Petitioners pointed out that several basic legal principles follow from Article 1 of the Satversme – the principle of protection of legitimate expectations, the principle of proportionality, the principle of the rule of law, the principle of a social state, the principle of good governance and the principle of social solidarity. The legislator, adopting the impugned provisions that prescribe 10 percent cut of old-age pension granted for life for pensioners unemployed and 70 percent cut for pensioners employed, has violated these principles. The Petitioners claimed that the issue concerning old-age pensions pertains to the area of social policy, has a long-term nature and requires stability. Therefore legal order in this area should be sufficiently stable and unchanging, so that individual persons could plan their future with confidence based on legal provisions. Assessing whether the impugned provisions comply with the principle of protection of legitimate expectations, it is necessary to take into account whether relying on the previous legal order was lawful, substantiated and reasonable, and whether legal order in its substance is sufficiently stable and unchanging to confide in it. In addition, the Petitioners noted that it is important to bear in mind whether the legislator, adopting the impugned provisions, has deviated from the rights originally guaranteed to private persons.

2.1. The Petitioners went on that the procedure prescribed by the Law on State Pensions adopted on 2 November 1995 was created as an insurance system – a person’s pension depends on the contributions made during the period of employment. Calculation and granting procedure for all kinds of state pensions has been in effect for a long period of time and is based on certain principles. The recipients of old-age pensions are a special group of society because the granted pension is predominantly the only source of income for them. Therefore, there is no doubt that persons who qualify for old-age pension have relied upon legal order for calculation and granting of old-age pension, and this reliance has been lawful, reasonable and justified. The legal order was in force for a long period of time and it was sufficiently stable and unchanging. Although the economic situation in the country has deteriorated, the principle of the protection of legitimate expectations still has a major role in the existence of a state governed by the rule of law. The state has an obligation to provide judicial stability, whereas persons have the right to rely upon the state fulfilling its obligation in good faith. The situation when a decision crucial for the state is adopted urgently in two days’ time is also unacceptable. At the same time, the Petitioners noted that the principle of protection of legitimate expectations is not absolute. However, a deviation from the above principle should comply with the constitutional principles, and when the legislator makes such amendments to the Law, a “lenient” transition to the new legal order should be ensured. A lenient transition could have been providing both a certain transition period to the new legal order as well as compensation of losses. It is especially emphasized in the applications that the legislator has not envisaged the obligation to compensate or repay the deducted reduction of state pensions to the recipients of old-age pension. On the contrary – the Saeima has rejected the proposal that envisaged the procedure for repaying the deducted share of pensions. 2.2. The Petitioners proceeded to argue that when assessing the compliance of the impugned provisions with the principle of proportionality one should bear in mind that the benefit for the society from adopting a certain legal provision or legal order should be greater than detriment to legal interests of a person. Furthermore, the legislator should assess the influence of the legal provision to be adopted on each group of persons who are affected by the provision. The Petitioners admitted that the economy of the state budget funds could by itself be the legitimate aim of the impugned provisions; however, the economy of the state budget funds at the expense of such an unprotected group of society, namely, the recipients of old age pensions, is unacceptable. Likewise, the legitimate aim of the impugned provisions cannot be the one mentioned in the Disbursement Law – “to grant social security to persons within the limits of the available financing”. On the contrary, the state has to provide financing for the satisfaction of social needs in the amount guaranteed by the legislative acts. When determining whether the impugned provisions are proportionate and whether the same aims could be reached by other means that interfere less with the rights of persons, it should be considered that social rights are different human rights since they depend on the economic situation in the country and the available resources. If there is not enough financing in the state social budget to safeguard the above principles, the state should look for other alternatives. The additional explanations to the application of the members of the Saeima list the following other alternatives: first, to increase the income by improving the collection

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of the existing taxes; second, to reduce other budget expenditures; third, to introduce new taxes or to increase the existing ones. Non-compliance of the impugned provisions with the Satversme follows also from the draft law annotation that states a risk that these provisions might contradict Articles 1 and 109 of the Satversme. 2.3. As to Article 3(1) of the Disbursement Law, the lack of consultations with experts during the preparation of the draft law is also considered as its substantial drawback. Thus, the fiscal effect of the provision has not been duly assessed; moreover, it can even be disputed. A situation when the fiscal effect of the provision turns out exactly the opposite and the resources of the state social insurance budget would decrease is also possible. Likewise, there is no substantiation as to why the legislator has included this particular amount of pension disbursement decrease in the impugned provisions, i.e. 70 percent. The Petitioners also dispute the allegation that the impugned provisions have been adopted because the international creditors – the European Commission and the International Monetary Fund (hereinafter – IMF) – had required so. Article 3(1) of the Disbursement Law does not comply with Article 91 of the Satversme because it creates an unequal situation between employed and nonemployed pensioners. An alternative solution for this provision was a proposal to determine an equal deduction for all pensioners, e.g. in the amount of 15 percent. Yet, such a solution was not even considered. Likewise, employed pensioners are put in an unequal situation compared to the employees who are not pensioners. In this context the criteria of unequal treatment is age, and age discrimination is one of the prohibited discrimination types both in Latvia and in the European Union. Explanation by the Cabinet of Ministers that the adoption of Article 3(1) of the Disbursement Law is lenient because it is not applicable to certain self-employed persons, has no substantiation. Such a view is rather general and groundless because nobody has furnished exact number of persons to whom such a deduction of pension disbursement would not be applied. Likewise, one should take into account that persons whose income does not exceed one minimum monthly wage are not persons subject to mandatory social insurance in the interpretation of the Law on State Social Insurance; therefore they are not subject to recalculation of the state old-age pension in correspondence with social insurance contributions they have made. When assessing the impugned provisions from the aspect of Article 105 of the Satversme, it should be taken into account that the Latvian pensions system is based on the principle of insurance. That is – each person or his/her employer makes contributions that make up person’s pension capital. Therefore at least that part of pension that has been calculated since 1 January 1996 should be regarded as having been earned by the person, and the state has undertaken to disburse it when the person reaches a certain age. According to the Petitioners Article 3(1) of the Disbursement Law disproportionately restricts the property rights of a person since the calculated pension remains the same, whereas only 30 percent from the calculated pension is disbursed. Thus the essence of property rights is violated and further trust to the whole pension system is diminished. If the state had, for example, stipulated that such deduction from pensions should be treated as loan that will be repaid later, then the limitation would be proportionate. 2.4. The Petitioners stated that when assessing the compliance of the impugned provisions with Article 109 of the Satversme, the following should be considered: if the state has included a fundamental right in the Satversme, it has an obligation to implement it.

When adopting any changes in the sphere of social rights, the state has to provide for a certain period of time, so that the affected persons can duly prepare themselves for these changes. In this case, the preparation time was just two weeks. It was noted even in the draft law annotation submitted by the Cabinet of Ministers that the adoption of the Disbursement Law from 1 July 2009 is not possible since there will be pension and allowance overpayments for the period from 1 July 2009 until the introduction of the new procedure. Latvia has ratified a number of international agreements in the area of social rights. The conclusion that follows from these documents is that the legal provisions that provide a broader nature of human rights and better possibilities for human rights protection should be preferred. The obligation to protect and provide for the human rights to a certain extent does not deny the state the possibility to amend the provisions for implementation of the respective human rights, however, the respective amendments cannot restrict the nature of human rights. Taking into account the above, the Petitioners asked the Constitutional Court to declare Article 2(1) of the Disbursement Law to be incompatible with Articles 1 and 109 of the Satversme and Article 3(1) to be incompatible with Articles 1, 91, 105 and 109 of the Satversme as well as to declare both impugned provisions invalid as of the moment of their adoption. 3. The institution that has adopted the impugned act – the Saeima – did not agree with the arguments of the Petitioners and pleaded the Constitutional Court to adjudge the applications ill-founded and to reject them. The Saeima argued as follows. 3.1. When assessing the compatibility of the impugned provisions with the Satversme, factors related to the economic situation in the country and resources of the state budget of Latvia cannot be ignored. Since 2008, economic development has considerably deteriorated. The drop in Gross Domestic Product in the second quarter of 2009 was 19.6 percent in comparison with the same period of the previous year. Therefore, more efficient steps to prevent the decline of the state economy were required. In accordance with the Declaration of the Intended Activities of the Cabinet of Ministers issued on 11 March 2009, the government has undertaken to achieve a reduction of the budget deficit. The need for such a reduction followed both from the commitments to the European Commission and IMF as well as from determination to stop the economic recession in the country. The sharp decline in economic activity caused a considerable decline in the state budget revenues as well. Therefore a substantial reduction of expenditure in the budgets of ministries and central state institutions was planned in the Law Amendments to the Law on State Budget 2009 – in order to achieve budget consolidation for the amount of 500 million lats. The Disbursement Law has been prepared in view of the situation in the State budget. The above budget consolidation measures are based on the agreement signed by the political parties constituting the government , the Free Trade Union Confederation of Latvia, the Employers’ Confederation of Latvia, the Latvian Association of Local and Regional Governments, the Latvian Chamber of Commerce and Industry and Latvian Pensioners’ Federation on 11 June 2009 (hereinafter – the Agreement of 11 June). The Saeima pointed out that the principle of operation of the social insurance special budget is self-financing, namely, the legislative acts regulating social insurance envisage a close link between social insurance contributions and social insurance services.

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Pensions and allowances are a part of social insurance services and are offered to their recipients from social insurance contributions made by those currently employed. It is emphasized in the replies that the special budget expenditures had been constantly increasing due to the rapid increase in wages during the previous years. As a result, the amount of pensions and allowances had increased alongside with the number of individual service users. Although the positive balance of the social budget on 1 January 2009 was LVL 951.1 million, it decreased to LVL 153.5 million by 1 August 2009. Therefore, if the impugned provisions were not adopted, considering the fulfillment of the social insurance special budget and revenues forecast as well as planned expenditure for the coming years, the accumulations in the state special budget would be used up already in a couple of years. 3.2. The principle of protection of legitimate expectations following from Article 1 of the Satversme does not restrict the legislator’s rights to deviate from the previous practice, even if it has been stable. Such a deviation is not only acceptable but also necessary in the cases when a more suitable and obviously more appropriate solution has to be chosen. Although the principle of protection of legitimate expectations has a constitutional value, protection of other persons’ rights and social welfare has an equal constitutional value, and it can be provided by efficient redistribution of common wealth and balancing the revenues and the expenditures of the state. The principle of protection of legitimate expectations does not mean that the laws cannot be changed. Otherwise the regulating power of the state would gradually decrease until the operation of the state would “freeze”. 3.3. Article 3(1) of the Disbursement Law complies with Article 91 of the Satversme, since the purpose of social security benefits is to guarantee means for living to persons when they cannot be actively involved in employment legal relationships due to various reasons and thus to provide means for living by themselves. Old age is one of the cases when a person receives social security benefits – an oldage pension. The differentiated amount of reduction in old-age pension for employed pensioners compared to nonemployed pensioners and pensioners with other income is substantiated because employed pensioners have revenues from employment alongside with the state old-age pension and can provide means for living for themselves. Different treatment of persons subject to the rules contained in Article 3(1) of the Disbursement Law is proportionate to the benefit for the society. The impugned provision helps to guarantee disbursements of social insurance services, and the established restrictions of rights are balanced taking into account the age of a person as a social risk that affects the ability of the person to provide means of living for himself or herself. Whereas employed pensioners and able-bodied persons in active employment are not in an equal and comparable situation in accordance with Article 3(1) of the Disbursement Law; therefore, there are no grounds for analyzing whether Article 3(1) of the Disbursement Law prescribes a different treatment and whether such a different treatment has objective and reasonable grounds. 3.4. When determining the compliance of Article 3(1) of the Disbursement Law with Article 105 of the Satversme, the Saeima pointed out that “making social insurance contributions cannot be regarded as creation of property, and the opinion that pension system creates “property” in accordance with the Law on State Pensions has no grounds, because it is based on the principle that a person makes certain contributions”. Although in the case no. 2007-01-01 the Constitutional Court ruled that the right to a pension

disbursement is compatible with the nature of the concept of “property” in the first sentence of Article 105 of the Satversme, it would be appropriate to re-evaluate this issue precisely in the context of Article 3(1) of the Disbursement Law. 3.5. Also, the impugned provisions do not violate Article 109 of the Satversme since social rights are special and different rights. The implementation of these rights depends on the economic situation in each country and the available resources. Economic growth and employment are preconditions for a social protection system of a higher level. During the period from 2002 to 2008, when economic growth rate in the country was accelerating and revenues of the state special budget were increasing respectively, a number of changes in the area of pensions were made to support the recipients of pensions, paying special attention to the recipients of small pensions. Before adopting the impugned provisions, the income of employees decreased considerably, while unemployment increased. As a result, special budget revenues that are basically made of social insurance contributions have considerably decreased. Therefore, it was necessary to balance expenditures and revenues within the limits of this budget. The adoption of the impugned provisions is considered as a necessary measure, and it was not possible to reach its goal by other means that would restrict the rights of an individual to a lesser extent. Since special budget revenues are made of social insurance contributions, the required economy could be achieved only by reducing the amount of the established social security disbursements. 3.6. The impugned provisions that prescribe a small and fixed-term reduction of the state pension amount should be viewed in the context that, during the improvement of economic situation and increase of available resources, the amount of state pensions has been substantially increased over the years. The Saeima especially drew the attention of the Constitutional Court to the fact that the restriction prescribed by the impugned provisions is of a temporary measure and Article 9 of the Disbursement Law contains a constant and publicly controllable monitoring mechanism for this law. Taking into account the above, the Saeima requested the Constitutional Court to declare Article 2(1) of the Disbursement Law to be compatible with Articles 1 and 109 of the Satversme as well as to declare Article 3(1) of the Disbursement Law to be compatible with Articles 1, 91 105 and 109 of the Satversme. […]

The motives I 20. Cases concerning both the compliance of Article 2(1) of the Disbursement Law with Articles 1 and 109 of the Satversme and the compliance of Article 3(1) of the Disbursement Law with Articles 1, 91, 105 and 109 of the Satversme were declared admissible in the Constitutional Court. It follows from the applications and the reply of the Saeima that the impugned legal provisions pertain to the area of social rights, and the case disputes the legislator’s action which restricts the rights to social security guaranteed by the Satversme. It also follows from the case materials that the legislator has established restrictions for the disbursement of pensions in the Disbursement Law, thus restricting the fundamental rights to social security granted to persons by Article 109 of the Satversme (see the case materials, vol. 9, p. 182 and vol. 10, p. 113).

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When assessing the compliance of legal provisions with the legal principles derived from the national fundamental values defined in Article 1 of the Satversme, one should take into account that these principles can take different expressions in different legal areas. The nature of the impugned provisions, their relation to other provisions of the Satversme and place in the context of the legal system also inevitably affect the control exercised by the Constitutional Court. That is to say, the legislator’s freedom of action in regulating a specific matter may be broader or narrower, and the Constitutional Court has to determine whether the scope of the freedom of action exercised by the Saeima conforms to the provisions of the Satversme (cf. the judgment of the Constitutional Court of 8 November 2006 in the case no. 2006-04-01, paras. 15.2 and 15.3). Thus, the compliance of the provisions impugned in this case with the principle of protection of legitimate expectations and the principle of proportionality should be determined in the context of Article 109 of the Satversme. Concerning Article 91 of the Satversme, the Constitutional Court has repeatedly stated that, when ascertaining whether any legal provision of the Law on State Pensions contradicts the principle of equality, one has to take into account the legal area that the impugned provision falls into. The principle of equality usually applies along with other fundamental rights – especially because often one cannot adjudicate a case on the basis of this principle alone. The rights established in Article 91 of the Satversme are “relative”, namely, although they stipulate equal treatment, by themselves they do not reveal the nature of this treatment, i.e. whether it should be favourable or unfavourable. In order to arrive at one of these outcomes, one should take into account other considerations outside the limits of the principle of equality (cf., e.g., the judgment of the Constitutional Court of 11 November 2005 in the case no. 2005-08-01, paras. 5 and 6.1 and the judgment of the Constitutional Court of 8 November 2006 in the case no. 2006-04-01, para. 15). Furthermore, the Constitutional Court has stated that the right to receive pension disbursements is deemed as a property right within the meaning of Article 105 of the Satversme. However, when determining the compliance of a legal provision to the article in question, one has to take into account whether the case is related to the area of social rights. If the case is related to this area, it should at the same time be taken into account that the rights and legal interests of the submitter of the Application cannot be protected to the same extent as they would be protected in the case of restriction of property rights in their “classic” understanding (cf. the judgment of the Constitutional Court of 8 June 2007 in the case no. 2007-01-01, paras. 20 and 21). The Constitutional Court acknowledges that broad discretion should be granted to the state in respect of property rights in the area of social rights, for the rights provided by Article 105 of the Satversme do not guarantee a specific pension amount, and they may be subject to restriction. With regard to pension, Article 105 of the Satversme guarantees to persons legal protection of a lesser extent than Article 109 of the Satversme (see the case materials, vol. 10, p. 125). When ascertaining the nature of the fundamental rights established by the Satversme, one should also take into account the international commitments that Latvia has undertaken in the area of human rights. The international regulations of human rights and the practice of their application at the level of constitutional rights serve as interpretative means for determining the nature and scope of the principles of judicial state and fundamental rights as far as they do not lead to the restriction of the fundamental rights provided by the Satversme (cf. the judgment of the Constitutional Court of 18 October 2007 in the case no. 2007-03-01, para. 11). The obligation of

the state to observe its international commitments in the area of human rights follows from Article 89 of the Satversme, stating that the state shall recognise and protect fundamental human rights in accordance with the Satversme, laws and international agreements binding upon Latvia. This article clearly shows the constitutional legislator’s intention to harmonise the constitutional provisions concerning human rights with the international regulations of human rights (cf. the judgment of the Constitutional Court of 9 May 2008 in the case no. 2007-24-01, para. 11). Article 9 of the International Covenant on Economic, Social and Cultural Rights (hereinafter – the Covenant) prescribes that the states that are Parties to the Covenant recognise the right of everyone to social security, including social insurance. Admittedly, the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter – the Convention) does not contain provisions analogous to the content of Article 109 of the Satversme. Nevertheless, the European Court of Human Rights (hereinafter – ECtHR) adjudicates the matters pertaining to social security and social assistance in the light of property rights as they are interpreted in Article 1 of Protocol no. 1 to the Convention (cf., e.g., the judgment of the Grand Chamber of the ECtHR of 12 April 2006 in the case “Stec and Others v. the United Kingdom”, application nos. 65731/01 and 65900/01, para. 51). In view of the aforesaid, the Constitutional Court concluded that the rights to pension fall under the fundamental rights to social security guaranteed by Article 109 of the Satversme. In this case, there were reasons for acknowledging that the said article of the Satversme guarantees higher protection for the persons’ rights to pension. At the same time, it should be pointed out that the decrease of pension disbursement amount prescribed in the impugned legal provisions should also be considered in the context of principles derived from Article 1 of the Satversme and Protocol 1, Article 1 of the Convention, taking into account both the protection of property rights provided therein and the Latvian system of pension financing. Therefore, the compliance of the impugned legal provisions with Article 109 of the Satversme should be determined first. 21. None of the cases was declared admissible following a constitutional claim concerning the compliance of Article 2(1) of the Disbursement Law – insofar as it pertains to the long service pensions specified in the provision – with the legal provisions of higher legal force. Furthermore, the Application submitted by twenty members of the Saeima on the basis of which the case no. 2009-68-01 was declared admissible does not contain substantiation for considering that the deduction from the aforementioned long service pensions do not comply with the requirements of legal provisions (acts) of higher legal force. The Saeima pointed out that the arguments included in its replies in the cases no. 2009-52-01, no. 2009-63-01 and no. 2009-65-01 can be applied by analogy to the case no. 2009-68-01. Cases no. 2009-63-01 and no. 2009-65-01 were declared admissible with respect to Article 3(1) of the Disbursement Law – insofar as this paragraph pertains to service pensions, which are analogous to pensions specified in Article 2 of the Disbursement Law. The Constitutional Court stated that it follows from the principle of economy of legal costs that it would not be cost-effective to adjudicate repeatedly the matters that can be adjudicated within a specific case. The decisive factor is whether the matter to be adjudicated is closely related to the provisions impugned in the case as well as whether it is possible to adjudicate this matter on the basis of the provided substantiation (cf. the judgment of the Constitutional Court of 3 April 2008 in the case no. 2007-23-01,

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para. 17). It follows from the replies of the Saeima that the service pension disbursement amount in the impugned provisions is established on the grounds of the same considerations as those concerning old-age pensions. All the pension disbursement amounts established by the impugned legal provisions are essentially based on a similar understanding of the legislator’s rights to implement specific changes in the regulation of social rights. Therefore, it is also possible within this case to determine the compliance of the service pension disbursement amount established in Article 2(1) of the Disbursement Law with Article 109 of the Satversme. 22. The Constitutional Court in its judgments has adjudicated the constitutional compliance of specific matters concerning pension disbursements (see, e.g., the judgments of the Constitutional Court of 4 December 2003 and 4 January 2007 in the cases no. 2003-14-01 no. 2006-13-0103). In the above judgments the Court has not analysed service pensions in the light of Article 109 of the Satversme. The service pension disbursement amount established in the impugned legal provisions is closely related to the social insurance special budget expenditures. The purposes of old-age and specific service pensions are similar – to compensate the loss of capacity for work. That is, service pensions are intended – when specific conditions set in – for providing the means of subsistence for persons whose work entails the loss of professional skills that may occur already before reaching the old-age pension age. Service pension is an additional social guarantee for persons who have carried out specific functions in the interests of the state in special conditions (cf. the judgment of the Constitutional Court of 4 December 2003 in the case no. 2003-14-01, para. 7). One can conclude from the replies of the Saeima that service pensions disbursed in compliance with the Law on State Pensions are calculated using the same method as for old-age pensions which have disbursement restrictions. Thus, an identical decrease is established for these service pensions, so that the relevant category of persons would not have a privileged status (see the case materials, vol. 8, pp. 87 and 97). The substantiation provided by the Saeima for the service pension disbursement amount specified in the impugned provisions is identical to the substantiation provided with regard to the old-age pension amount established in the impugned legal provisions. Therefore, in this judgment there is no need to adjudicate separately the issue of service pensions as such, and the Court’s conclusions concerning the old-age pension disbursement amount are equally applicable to the service pension disbursement amount established in the impugned provisions. II 23. On 29 November 1990 the Supreme Council of the Republic of Latvia adopted the Law on State Pensions. The rights to state pension were granted to all the residents of the Republic of Latvia whose domicile at the moment of the law coming into force – 1 January 1991 – was the Republic of Latvia. This law established the right to social security in retirement age, prescribing two types of state pension: labour pension (oldage, disability, survivor’s and service pensions) and social pension. The law granted the right to labour pension to persons under the social insurance of the Republic of Latvia, whereas social pension was granted to persons without the right to labour pension. The pension scheme established by this law was based on the formerly effective pensioning principles, that is, on redistribution principles which did not facilitate the interest of employed persons in securing their old age. This scheme made the whole

society responsible and did not provide a direct relation between the amount of contributions and the amount of pension granted. The level of pensions granted was also low (see the judgment of the Constitutional Court of 19 March 2002 in the case no. 2001-12-01, para. 1 of the motives part, and p. 7 of the Pension Reform Conception in the case materials, vol. 10, p. 162). On 21 October 1993 the Law on Provisional Procedures for Calculating State Pensions was adopted. This law also assigned the main responsibility for oldage security to the state instead of each individual resident. In accordance with the provisions of this law, the disbursed pension amount did not depend on the amount of contributions, but on the length of service only. The lack of relation between the amount of social contributions and the amount of pension did not facilitate the making of social contribution payments. When creating a new social insurance system, the Saeima chose the state social insurance model from several alternatives. For such a system, the law prescribed the basic principles of insurance, the range of insured persons, the insurance risks and the procedure for accruing the funds, and this insurance was mandatory. This system was included in the Law on State Pensions adopted on 2 November 1995. With the adoption of this law, the principles of state mandatory pension insurance system based on insurance contributions were implemented in Latvia. The Law on State Pensions stipulates that old-age pension is granted for life. Although the granted pension can be recalculated and indexed, it cannot be granted anew. In particular, the condition that the amount of pension depends on the amount of contributions (the accrued capital) and the number of years when a person is entitled to receive pension ensures the long-term stability of the pension system. The first level of pension is designed as a redistribution scheme working on the basis of the principle of solidarity between generations, which means that the money contributed by younger, currently employed persons is distributed for disbursements to pensioners. This system finances all pensions, including the pensions of those persons who had been employed before Latvia regained independence and who were unable to make social insurance contributions or otherwise accrue their pension capital. The Constitutional Court has adjudicated that only the funds available in the state pension special budget may be used for the old-age pension disbursements. Thus, it is in the interests of one part of society – the recipients of pension – to balance the pension budget expenditures with revenues and to preclude the excess expenditure of the funds of this budget (cf. the judgment of the Constitutional Court of 19 March 2002 in the case no. 2001-12-01, para. 3.1.3 of the motives part). It means that all contributions to the social insurance budget can be used only for the purposes established by the law – for pensions, allowances as well as system administration costs. Therefore, the economic situation in the state, especially employment and migration, is closely related to the amount of funds in the social insurance special budget. It follows from the applications and the replies of the Saeima that the reduction of pension disbursements affects the first level of pension system only (mandatory statefunded pension scheme). The purpose of the first level of state pension system is to guarantee the minimum income level to the residents of retirement age. Since the first level is mandatory and based on the principle of social insurance, there is a connection between the mandatory social insurance contribution payments made by the residents and the level of service attained as the end result (see p. 12 of the Pension Reform Conception in the case materials, vol. 10, p. 167).

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In the context of the first level of pension, the right to request an identifiable share is not granted to an individual person; however, the person can hope to receive material support that will depend on the situation at the time when pension is to be received. The pensions of this system are based on the so-called collective insurance principle, and they cannot be granted on the basis of individual contribution. In this case, persons do not acquire the right to a specific sum, for it is subject to fluctuations and legal regulation (cf. the judgment of the Constitutional Court of 26 June 2001 in the case no. 2001-02-0106, para. 2 of the motives part). In addition, once pension is granted to a person, the person obtains legally protected confidence that the specific amount of pension disbursement will be retained in the future. Latvia has adapted and modified the classic principle of solidarity between generations: the money earned by the employed generation is paid to the current pensioners. At the same time, the insurance principle is maintained, which means that everyone makes one’s own accruals for pension. The principle of taking into account the expected lifetime in pension calculation has received a positive assessment. Pension policy should not be used for solving all social matters, for every attempt to do so creates problems that endanger the pension system’s long-term stability, which cannot be permitted (see, for example, Par Latvijas pensiju sistēmas starptautisko novērtējumu. Latvijas Vēstnesis, 10 April 2001, no. 57; Kad Latvijas pensiju sistēmu uzskata par paraugu Eiropai. Latvijas Vēstnesis, 19 February 2002, no. 27). At the same time, conclusions have been made that the Latvian pension system is sensitive even to the slightest changes of such parameters as, for example, the contribution rate, the indexation mechanism and the minimum retirement age (see sub-paragraph 4.14 of Aide Memoire – the World Bank Fund technical assistance mission report of 11-22 June 2007 concerning state expenditure control and state financial management matters, the case materials, vol. 9, p. 104). Hence one can say that the social insurance system implemented in Latvia as a result of the pension reform of 1995 can ensure the long-term availability of pensions and other social services in proportion to the amount of person’s participation in this system, or on the basis of collective insurance principle, whereas inconsiderate or hasty decisions may considerably endanger the sustainability and well-balanced continuation of the system. III 24. Article 109 of the Satversme states: “Everyone has the right to social security in old age, for work disability, for unemployment and in other cases as provided by law.” The Constitutional Court, interpreting the above article, acknowledged that, on the one hand, the enactment of these fundamental rights depends on the resources at the disposal of the state and society; however, on the other hand, if any rights to social protection are included in the fundamental law, the state is not entitled to refuse the enactment of these rights. In this case these rights are not just declaratory, their protection has constitutional value in Latvia (see, e.g., the motives part of the judgment of the Constitutional Court of 13 March 2001 in the case no. 2000-08-0109). The applications dispute the regulation of the Disbursement Law that restricts the disbursement amount for the pensions specified by the Law on State Pensions as well as for certain service pensions. The said regulation of the Disbursement Law has not been adopted as a result of a comprehensive social insurance system reform, and it is prescribed for a specific period of time – from 1 July 2009 to 31 December

2012. Besides, Article 9 of the Disbursement Law obligates the Cabinet of Ministers to reconsider the validity of disbursement restrictions stipulated by this law twice a year and, correspondingly, submit the Saeima either a report concerning the continuation of the restrictions, or, in case of need, a draft law concerning their full or partial revocation. The Constitutional Court in its judgments repeatedly adjudicated the constitutional compliance of legal provisions pertaining to social rights, affirming that the state itself is responsible for the system of social and economic protection (types and amounts of allowances) and its maintenance. This system is dependent on the economic situation in the state and the available resources. Moreover, the state should be vested with wideranging freedom of action when deciding the matters of social rights (see the judgment of the Constitutional Court of 25 February 2002 in the case no. 2001-11-0106, para. 1 of the motives part, and the judgment of 22 December 2005 in the case no. 2005-19-01, para. 9). Usually the political dimension of decisions concerning the enactment of social rights taken by the state – and, especially, by its legislator – is of importance, that is, decisions in this area are made not so much following legal considerations than political ones, which, in turn, are dependent on both the legislator’s idea of the state social service principles and a special need of the society or its part for relief or support from the state (see the judgment of the Constitutional Court of 8 November 2006 in the case no. 2006-04-01, para. 16). In the area of social rights it is not always possible to draw an exact dividing line between legal and political considerations, and the Constitutional Court should refrain from judging the political matters, for it is primarily the area of authority of a democratically legitimated legislator (cf., e.g., the judgment of the Constitutional Court of 29 October 2003 in the case no. 2003-0501, para. 29, and the judgment of the Constitutional Court of 14 September 2005 in the case no. 2005-02-0106, para. 18). The state has a threefold duty in the area of each fundamental right: to respect, to protect and to guarantee the rights of persons. Acting in conformity with human rights, the state should enact a range of measures – both passive, for example, non-interference with the rights of persons, and active, for example, satisfaction of persons’ individual needs (cf. the judgment of the Constitutional Court of 3 April 2008 in the case no. 2007-23-01, para. 7). In the area of social rights it is crucial whether the state with its affirmative action can guarantee the satisfaction of person’s individual needs resultant from a particular fundamental right. At the same time, one should take into account that the provisions of the Satversme basically do not grant persons the rights to a specific amount of social security, and the state should refrain from excessive interference with the financial relations of its citizens. Therefore, the amount of social security granted by the state may vary depending on the amount of funds at the disposal of the state. However, the fundamental rights of persons established by the Satversme are binding to the legislator irrespective of the economic situation in the state. 25. The Petitioners maintain that the impugned legal provisions restrict fundamental constitutional rights. The replies of the Saeima also expressis verbis state that the impugned provisions restrict the fundamental rights of persons. The Constitutional Court has ruled that if the pensions granted in compliance with the procedure established by the law are not disbursed in full amount, the rights to social security in the case

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of old age granted by Article 109 of the Satversme and specified in the Law on State Pensions are restricted (cf., e.g., the judgment of the Constitutional Court of 19 March 2002 in the case no. 2001-12-01, para. 2 of the motives part and the judgment of the Constitutional Court of 6 April 2005 in the case no. 2004-21-01, para. 10). Hence, the Disbursement Law restricts the fundamental rights of persons guaranteed by Article 109 of the Satversme. 26. The rights guaranteed by Article 109 of the Satversme may be restricted if a restriction is established by the law, justified by a legitimate aim and conforms to the principle of proportionality (cf., e.g., the judgment of the Constitutional Court of 9 October 2007 in the case no. 2007-04-03, para. 26). The restriction of fundamental rights is established by the law, namely, it is included in the Disbursement Law adopted by the Saeima on 16 June 2009 and promulgated by the President of the State on 30 June 209. The case does not contain any materials that would call into question the legitimacy of the adoption of the impugned provisions. At the same time, it should be pointed out that the haste in the context of preparation and adoption of the impugned provisions, as well as the fact that society was not duly and timely informed prior to the adoption of these provisions, should be viewed negatively (cf. the judgment of the Constitutional Court of 26 November 2009 in the case no. 2009-08-01, para. 17.2). Therefore, the restriction of fundamental rights contained in the impugned provisions has been duly established by the law. 27. In the case of any restriction of fundamental rights, there must be circumstances and arguments justifying such a restriction, that is, it must be imposed for the sake of significant interests, a legitimate aim (cf., e.g., the judgment of the Constitutional Court of 8 June 2007 in the case no. 2007-01-01, para. 23). Although the Satversme, inter alia, Article 116 thereof, does not specify directly the cases when the fundamental rights established by Article 109 could be restricted, these fundamental rights cannot be deemed as absolute either. The Satversme is a single body and the provisions included therein should be interpreted systemically. The assumption that no restrictions can be imposed on a particular fundamental right would contradict with both the fundamental rights of other persons guaranteed by the Satversme and other provisions of the Satversme (cf. the judgment of the Constitutional Court of 22 October 2002 in the case no. 2002-04-03, para. 2 of the motives part). When restricting the rights, the institution that has issued an impugned regulation – in this specific case, the Saeima in the first place – is obliged to present and justify a legitimate aim for such a restriction. 27.1. The Saeima as well as the Cabinet of Ministers pointed out that the restriction included in the impugned provisions had a legitimate aim, namely, to protect not only the interests of the state social insurance special budget but also the constitutional values specified in Article 116 of the Satversme – the rights of other persons, also taking into account the obligation of the state to ensure both the disbursement of state pensions and rendering of other services granted by the social security system in the future. It follows from the information provided by the Saeima that the impugned provisions were adopted in the circumstances when the economic situation of the Republic of Latvia was in a rapid decline. The state budget revenues had been decreasing, unemployment growing, bringing about the increase of the social insurance special budget expenditures. In the second quarter of 2009 Latvia underwent the most

rapid decline of economic activity in the European Union. So, for instance, the revenues of the state consolidated budget during the first six months of 2009 were for 15 % lower than those of the corresponding time period in 2008. At the same time, the expenditures of the state consolidated budget during the first six months of 2009 were for 7.2 % higher than those of the corresponding time period in 2008. The Gross Domestic Product drop in comparison to the first six months of 2008 was 18.7 %. The drop persisted also in the third quarter of 2009, reaching 18.4 % (see http://www.csb.gov.lv/ csp/content/?cat=244, accessed on 1 December 2009). The projected amount of the government’s external debt for the second half of 2009 was approximately 33.2 % from the gross domestic product, and it has increased for approximately 70 % since 2008 (see http://ec.europa.eu/economy_ finance/pdf/2009/ autumnforecasts/lv_en.pdf, accessed on 1 December 2009). During this time, the financial deficit of the state consolidated budget reached 449.9 million lats or approximately 3.5 % from the gross domestic product, and the prognosis was that the deficit may reach 1.3 milliard lats or approximately 9.5 % from the gross domestic product by the end of 2009. As a consequence, both the performance of the functions of the state and the possibility of the economic activity renewal in the foreseeable future would be put in danger (see the opinion of the Bank of Latvia, the case materials, vol. 9, p. 118). Concerning the need to balance the revenues and expenditures of the social security system, the Saeima indicated that, as a result of the economic crisis, wages had decreased and the unemployment had increased. Consequently, the social insurance special budget revenues dropped. The number of socially insured persons has also decreased for 12.3 %. It is also evident from the information furnished by the Ministry of Welfare that the actual expenditures of the social insurance special budget were for approximately 86 million lats higher than revenues during the first six months of 2009 (see the case materials, vol. 9, p. 113). At the same time, the rapid increase of wages during the preceding years has brought about the increase of the expenditures of the social insurance special budget. The budget in question is a constituent part of the state budget. It is prognosticated that its expenditures will exceed the revenues in the years 2009 and 2010, thus creating the budget deficit. In order to curb this tendency and to ensure further sustainability of the social insurance budget, the deficit had to be reduced. The Petitioners hold that the impugned provisions have two aims – the economy of the state budget funds and the enactment of the rights of other persons to social security. The Ombudsman and A. Kovaļevska, in turn, pointed out that the balancing of expenditures and revenues of the special budget should be deemed as the legitimate aim of the impugned provisions (see the case materials, vol. 9, p. 182 and vol. 10, p. 116). It follows from the opinion furnished by the Bank of Latvia and Ģ. Rungainis that the reduction of the state budget deficit and the budget balancing can be deemed as the legitimate aim of the impugned provisions (see the case materials, vol. 9, p. 118 and vol. 10, pp. 1-3). 27.2. The Constitutional Court has held that a pension disbursement restriction can have a legitimate aim – to solve financial problems of the social budget (cf., e.g., the judgment of the Constitutional Court of 19 March 2002 in the case no. 2001-12-01, para. 2 of the motives part). The Constitutional Court has also concluded that balancing the revenues and expenditures of the pension special budget can be a legitimate aim for pension disbursement restriction. One should especially consider the need to preclude deficit in the state pension special budget as well as the need to ensure that pension

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disbursements continue in the future (cf. the judgment of the Constitutional Court of 11 November 2005 in the case no. 2005-08-01, para. 8). The main challenge of the pension system is to ensure its sustainability. The UN Committee on Economic, Social and Cultural Rights has also affirmed that social security scheme should be sustainable, especially with respect to pensions – to guarantee that both the current and future generations would be able to enact their rights to pension (see the UN Committee on Economic, Social and Cultural Rights, General Comment no. 19. The right to social security, E/C.12/GC/19 4 February 2008, para. 11). Thus, the system of pensions is intended not only for the existing pension recipients; it is intended for securing pension to the future generations as well. In this context the system of pensions is related to ensuring the welfare of society. The sustainability of the pension system is based on three principles: adequacy, financial sustainability and capability to adapt itself to changes (see the European Commission, Objectives and working methods in the area of pensions: Applying the open method of coordination, Joint Report of the Social Protection Committee and the Economic Policy Committee, Luxembourg: Official Publications of the European Communities, 2001). Consequently, the sustainability of pension system is closely related to the overall economic situation in the state. The Constitutional Court agrees with the argument of the Saeima that, in the circumstances of a major economic recession – to lessen, within limits, its adverse consequences – the legislator must act as swiftly, concertedly and decidedly as possible. Reasonable freedom of action must be granted to the legislator for taking such measures. However, the economic situation in the state, or the need to reduce the budget deficit, in the absence of other legitimate aims, cannot serve as an overarching justification for the state to restrict the rights previously granted to persons. The Disbursement Law has been adopted at the time of a difficult economic situation. In this context, the rapid economic recession in the state has affected the social budget within a relatively short period of time. The social insurance special budget is a constituent part of the state budget; therefore, there are financial interconnections between these budgets. Changes in the expenditures or revenues of the social insurance special budget have an effect on the balance of the entire state budget. It is evident that the economic situation in the state has also affected the stability of the social insurance special budget, and the Saeima and the Cabinet of Ministers, in this situation, were obliged to take action in order to ensure the welfare of society in a long-term perspective. The Constitutional Court cannot regard as justified the opinion of the Petitioners – i.e. that the impugned provisions do not have a legitimate aim, for the necessary economy is planned solely at the expense of persons with low income. The decrease of budget expenditures reached by means of the impugned provisions is approximately 17.4 % or one-sixth from the total decrease of the state consolidated budget. No doubt, such a decrease has also affected the other positions of the budget along with the branches of activity of the state and national economy. So, for example, the number of workplaces has been cut down and the amount of financing revised for the state administration system, including the areas of healthcare and education. More than that, it follows from the case materials that if the size of pensions had not been reduced, even more significant reductions in the other budget positions would have been in order (see the case materials, vol. 10, pp. 1-2 and 130). To be sure, the issue concerning the consequences of the impugned provisions should be determined in view of their proportionality, and this aspect by itself does not take away the legitimate aim of the impugned provisions.

Therefore, the impugned provisions have a legitimate aim – securing the sustainability of the social insurance budget by means of balancing its revenues and expenditures, thus ensuring the welfare of society. 28. The principle of proportionality prescribes that in cases when a public authority restricts the rights and lawful interests of persons, a reasonable degree of proportionality between the interests of persons and the interests of the state or society should be attained. To determine whether a legal provision adopted by the legislator satisfies the principle of proportionality, one should clarify 1) whether the means used by the legislator are appropriate for achieving the legitimate aim; 2) whether such an action is indispensable, i.e., the end cannot be achieved by other means, less restricting the rights of individual persons; 3) whether the benefit for society will be more significant than the detriment to the rights of individual persons. If, while assessing a legal provision, it can be established that it does not comply with at least one of these criteria, it follows that the legal provision in question does not comply with the principle of proportionality and therefore is unlawful (cf. the judgment of the Constitutional Court of 16 May 2007 in the case no. 2006-42-01, para. 11). The Limburg Principles – developed for the implementation of the Covenant in 1986 – stipulate that measures must be taken without delay and by using all the necessary means in order to guarantee the respective rights at least at a minimum level, irrespective of the development level of a country. The said national-level measures include not only legislative but also administrative, judicial, economic, social and educational measures. The laws that restrict the enactment of any social rights cannot be unjust or discriminatory (see Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, U.N. Commission on Human Rights, U.N. ESCOR, 43d Sess., U.N. Doc. E/CN.4/1987/17). Even if a country has a substantial deficiency of financial resources, it is obliged to protect the weakest members of the society (see UN Committee on Economic, Social and Cultural Rights, General Comment no. 3. The nature of States parties’ obligations, E/1991/23 14 December 1990, para. 12; UN Committee on Economic, Social and Cultural Rights, General Comment no. 6. The economic, social and cultural rights of older persons, E/1996/22 8 December 1995, para. 17). In accordance with the Law on State Pensions, the recipients of old-age pensions are deemed to be a special social group, because when these people discontinue paid employment, their income and, correspondingly, opportunities to take part in different processes of public life decrease. 29. To determine whether the impugned provisions comply with the principle of proportionality, the Constitutional Court first has to ascertain whether the means chosen by the legislator were appropriate for the attainment of the legitimate aim. 29.1. The Petitioners maintained that the means chosen are not appropriate for the attainment of the legitimate aim set forth by the Saeima, for these means affect only the most unprotected group of society – the recipients of old-age pension. Furthermore, those Petitioners who dispute Article 3(1) of the Disbursement Law emphasised that this provision is not appropriate for the attainment of the legitimate aim, and the prognosticated fiscal effect has not been achieved as a result of its adoption. The Saeima and the Cabinet of Ministers believe that the chosen means are appropriate for the attainment of the legitimate aim. During the difficult economic

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situation, as the opinion of the Cabinet of Ministers and the replies of the Saeima assert, the state was compelled to turn to international institutions in order to obtain loans for the stabilisation of the economic situation and the financial system of the Republic of Latvia. The condition for receiving the said loans was the reduction of the state budget expenditures for 500 million lats. Consequently, the budget for the year 2009 had to be modified, reducing the expenditures for this sum. Other alternatives for cutting the expenditures, such as the devaluation of the national currency, were regarded as unacceptable. With the adoption of the impugned provisions, the planned social insurance special budget economy for the year 2009 was more than 88 million lats. A. Kovaļevska pointed out that the measures specified in Article 2 of the Disbursement Law are appropriate for the attainment of the legitimate aim, for the reduction of the amount of pension disbursements helps to substantially reduce the special budget expenditures, whereas the appropriateness of the measures specified in Article 3(1) of the Disbursement Law are debatable (see the case materials, vol. 10, p. 116). 29.2. The Constitutional Court admits that the means chosen by the legislator could be appropriate for the attainment of the legitimate aim if it were possible to attain this aim by the regulation in question. When determining the appropriateness, the Constitutional Court cannot take the legislator’s place and present more appropriate political decisions or advise how to allocate the state budged funds. The task of the Court is to determine whether the impugned provisions are reasonable and harmonised, whether the state possesses the resources needed for their implementation, whether the provisions are balanced, flexible and bring about short-term or long-term satisfaction of needs as well as whether these provisions are transparent and have been made public (see Langa P., Taking Dignity Seriously. Judicial Reflections on the Optional Protocol to the ICESCR, Nordic Journal of Human Rights, Vol. 27, no. 1, 2009, p. 33). The Constitutional Court agrees that the impugned provisions are directly related to the urgent need to balance the state budget, including the social insurance special budget, in order to diminish the influence of the economic recession on the balance of revenues and expenditures as well as to ensure the sustainability of the pension system. In certain cases, economic crisis can develop to the point when the freedom of action must be granted to the legislator to enable the implementation of remedial measures – even if the latter would infringe the fundamental rights established by the Satversme. In the situation of extremely limited financial resources of the state, the latter has freedom of action to change the conditions for pension disbursement – with the aim of sustaining a just social insurance system (see the concurring opinion of judge Thomassen, the case “Kjartan Ásmundsson v. Iceland”, application no. 60669/00, judgment of the ECtHR of 30 March 2005). The planned social insurance budget economy in this context is commensurate with the consequences of economic recession – the deficit in the state budget and the overall decline of economic activity in Latvia compared to the showings for 2008. Even if the information furnished by the Ministry of Welfare confirms that the total economy attained as a result of the implementation of Article 3(1) of the Disbursement Law was approximately 12.7 million lats for the period from July to September 2009, i.e., 6.2 million lats less than the economy planned for this period of time (see the case materials, vol. 13, pp. 45-47), all in all, the Constitutional Court has no grounds to call into question the fact that the impugned provisions have helped to reduce the expenditures of the state social insurance special budget, correspondingly facilitating the balancing of revenues and expenditures. Therefore, the impugned provisions can help to achieve the legitimate aim.

30. The Constitutional Court also had to determine whether the legitimate aim – the balancing of the social insurance special budget – could be attained by other means, less restricting of the rights of individuals. It means determining whether an appropriate balance has been achieved between the need to reach the legitimate aim and the means used toward reaching this aim (see Langa, p. 36). The measures imposed by the state must be commensurable with both the financial crisis and the interests that these measures affect (see Jackman M., Porter B., Canada, in Langford M. ed., Social Rights Jurisprudence. Emerging Trends in International and Comparative Law, Cambridge University Press, 2009, p. 219). 30.1. The Saeima and the Cabinet of Ministers have repeatedly referred to the liabilities towards the international creditors as one of the reasons for the adoption of the impugned provisions. That is, it follows from the information furnished by these institutions that the adoption of the impugned provisions is related to the fulfilment of the requirements of the international creditors. In contrast to that, the invited persons admitted that they do not possess any information concerning the international creditors requesting the reduction of pensions established by the impugned provisions (see the case materials, vol. 9, pp. 119, 204 and 205). They attested just the opposite, namely, that the international creditors did not point at a specific area in which the reduction should be carried out; moreover, the representative of the European Commission even emphasised that the budget deficit cannot be reduced solely on account of decreasing the expenditures, for that would impose too heavy a burden on the residents, particularly on the families with low income (see the case materials, vol. 9, p. 205). The Constitutional Court established that the original documents related to the receipt of international loans do not contain any information that could be associated with the adoption of the impugned provisions. At the same time, in sub-paragraph 7.2 of the Supplementary Memorandum of Understanding between the European Community and the Republic of Latvia of 13 July 2009, Latvia pledged to reduce the outlays of pensions by 10 % for non-employed pensioners and by 70 % for employed pensioners (see the opinion of the Cabinet of Ministers, the case materials, vol. 9, p. 7, and sub-paragraph 7.2 of the Supplementary Memorandum of Understanding between the European Community and the Republic of Latvia of 13 July 2009, the case materials, vol. 11, pp. 90 and 91). With reference to the commitments between the IMF and the Republic of Latvia, the same pledge is included in the Economic Stabilisation and Growth Revival Programme for Latvia adopted by the Saeima on 16 June 2009 (see the opinion of the Cabinet of Ministers in the case materials, vol. 9, p. 7, and subparagraph 5.2 of the Economic Stabilisation and Growth Revival Programme for Latvia adopted by the Saeima on 16 June 2009, the case materials, vol. 9, pp. 33 and 34). However, the fact that the above documents contain the pledge of the Cabinet of Ministers to adopt the impugned provisions does not mean that the international creditors have stipulated these particular conditions. Although the international creditors, within their terms of reference, prescribe for the state the main objectives to be achieved, such as, e.g., the reduction of the state budget for the amount of 500 million lats, including the reduction of the social insurance special budget expenditures, the choices of the most suitable and appropriate means for the attainment of these objectives as well as the possible alternatives are left at the state’s own discretion. The Constitutional Court has not received any information indicating that the international creditors stipulated the adoption of the impugned provisions as a prerequisite for granting the loan. The measures set forth in sub-paragraph 7.2 of

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the Supplementary Memorandum of Understanding between the European Community and the Republic of Latvia of 13 July 2009 and sub-paragraph 5.2 of the Economic Stabilisation and Growth Revival Programme for Latvia adopted by the Saeima on 16 June 2009, inter alia, the measures pertaining to the reduction of pension disbursements, are to be characterised as an action of the state with the aim to reduce the budget expenditures and, consequently, to be eligible for the international loan. The Cabinet of Ministers has indicated that during the negotiations the international creditors repeatedly took notice of the possibility that the sustainability of the social budget would be endangered even in the case of freezing of the indexation of pensions. Yet, no evidence of this assertion – for instance, negotiation minutes – have been submitted to the Constitutional Court. It follows from the previous IMF reports that the sustainability of the social budget is endangered and the fiscal risk is caused, for example, by the excessively generous parental allowances (children’s benefits) and the inconsiderately regulated sickness benefits; moreover, the outflow of large amounts of the social security funds to those social groups that cannot be deemed as disadvantaged or low-income is observable (see, e.g., sub-paragraphs 4.22-4.27 of the World Bank report Aide Memoire, the case materials, vol. 9, pp. 105ff ). Besides, the principle of separation of powers delimits the authority of the Cabinet of Ministers. In accordance with this principle, the Satversme confers the legislative powers – namely, the powers to decide the most important matters for the state – to the Saeima in particular, and, in individual cases, to full-fledged citizens of the Republic of Latvia. The other branches of power are obliged to implement these laws in practice (cf. the judgment of the Constitutional Court of 1 October 1999 in the case no. 03-05(99), para. 1 of the motives part). When determining the relations of the areas of authority of the Saeima and the Cabinet of Ministers, it was admitted that the requirement for the legislator to decide by itself all the matters of the state through legislation has become unrealistic in the complicated living conditions of the present-day society. In order to ensure that the state power be exercised more effectively, it is permissible to deviate from the requirement that the legislator decides all the matters wholly by itself. The optimum effectiveness is achieved when the legislator decides the most important matters through legislation, while delegating to the Cabinet of Ministers the drafting of more detailed regulations and the development of provisions necessary for the implementation of the law in practice (cf. the judgment of the Constitutional Court of 21 November 2005 in the case no. 2005-03-0306, para. 7). Although the Cabinet of Ministers is entitled to adopt legislative acts, the latter are not permitted to contain such provisions that cannot be deemed as aids for the implementation of the provisions of laws (cf. the judgment of the Constitutional Court of 3 April 2001 in the case no. 2000-07-0409, para. 5). Thus, it is permissible to delegate the drafting required for the implementation of a law in practice to the Cabinet of Ministers, whereas the Saeima is obliged to decide all the most important matters of the state and public life by itself through legislation. Furthermore, Article 68(1) of the Satversme prescribes that all international agreements, which settle matters that may be decided by the legislative process, shall require ratification by the Saeima. In order to establish whether the Saeima’s submissions justifying the restriction of the rights of persons are well-founded, one should consider whether the Cabinet of Ministers was entitled to decide without authorisation from the Saeima matters pertaining to the international loans, or else the respective commitments are to be

taken as settling the matters that had to be decided through legislation and, accordingly, needed the Saeima’s approval. In determining whether the respective commitments are to be taken as settling the matters that had to be decided through legislation, one should take into account the previous practice of regulating such matters. So, on 29 December 1928, the President of the State promulgated the Law on External Loan adopted by the Saeima on 18 December 1928. Article 1 of this law stated: “The Cabinet of Ministers shall be authorised to enter into a commitment concerning an external loan for the amount of six million US dollars for a period of 35 years with 6% annual interest rate and to sell for this purpose the State Treasury bonds for the same amount for the highest possible rate.” Furthermore, Article 3 of this law stated: “The Cabinet of Ministers shall issue specific provisions for the implementation of this law into practice” (Collection of laws and Cabinet regulations, issue no. 27, 31 December 1928, p. 662). On 6 May 1931, the President of the State promulgated the Law on Internal Loan for Road Building with Premiums adopted by the Saeima on 28 April 1931. Article 1 of this law stated that “the internal loan of 1931 for road building with premiums shall be issued for the nominal value of 12 million lats for 30 years. The loan shall be issued on the basis of a special instruction of the Minister for Finance” (Collection of laws and Cabinet regulations, issue no. 11, 18 May 1931, pp. 441-447). On 29 June 1931, the President of the State promulgated the Law on Short-term External Loan adopted by the Saeima on 22 June 1931. Article 1 of this law stated: “The Cabinet of Ministers shall be authorised to commission the Minister for Finance to issue government bonds for the amount of up to 20 million lats” (Collection of laws and Cabinet regulations, issue no. 22, 12 August 1931, p. 772). The above references illustrate that the matters pertaining to international and other loans that significantly affect the state budget were dealt with by the Saeima through legislation in the 20s and 30s of the last century. The initial practice after the restoration of the Satversme was that the matters related to international loans were decided by the Saeima (see, e.g., the Law on the Investment Bank of Latvia General Loan Security Agreement between the Republic of Latvia and the European Investment Bank adopted on 29 March 1995 and the Law on the Agreement between the Republic of Latvia and Nordic Investment Bank adopted on 29 March 1995). Article 81 of the Satversme stated: “In cases of urgent necessity between sessions of the Saeima, the Cabinet of Ministers shall have the right to issue regulations which shall have the force of law.” These regulations did not have the power to amend, inter alia, the budget and budget rights, and they could not be applied to loans and the issue of Treasury bonds. The fact that Article 81 has been deleted from the Satversme does not provide grounds for concluding that the matters specified therein would now fall within the area of authority of the Cabinet of Ministers. That is, even after the Satversme has been amended and Article 81 deleted, the Saeima still has exclusive authority to decide on the matters pertaining to the areas specified in this article, and the Cabinet of Ministers has no rights to decide on the matters regulated therein. The Constitutional Court admits that the matters the Cabinet of Ministers dealt with by entering into the respective commitments with the international creditors were deemed as sufficiently important matters for the state and public life to be decided through legislation by the Saeima. It also obviously follows from the replies of the Saeima that the receipt of the international loan is of utmost importance for halting the economic recession in Latvia. Similarly, paragraph 20 of the Memorandum of Understanding between the European Community and the Republic of Latvia states: “For

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Latvia the Memorandum shall become effective after completion of internal procedures required under the laws of Latvia” (the case materials, vol. 11, p. 66). The Constitutional Court cannot agree with the statements concerning the receipt of the loan found in the letter of the Minister for Justice to the European Commission, namely, that all the approvals and authorisations required for the receipt of the loan have been obtained and that the agreement does not violate any provision of national legislation, and that the enactment of the agreement will not violate the requirements of any Latvian legislative act, and that its lawfulness, validity and enactment will not be contested in court or in any other institution (see the letter of the Minister for Justice of the Republic of Latvia to the European Commission, Annex 3 to the Loan Agreement between the European Community and the Republic of Latvia of January 2009, http://ec.europa.eu/latvija/documents/pievienotie_ faili/29.01.09.la.doc, accessed on 1 December 2009). The Constitutional Court maintains that the conceptual decision with respect to the receipt of the international loan and terms and conditions thereof is to be deemed as an important and significant matter of state and public life, and that, in compliance with the procedure established by the Satversme, it had to be decided by the legislator itself. Although the Saeima has adopted the Economic Stabilisation and Growth Revival Programme for Latvia, has carried out decisions concerning changes to the state budget for 2009 and has adopted the state budget for 2010, these decisions cannot replace the rights established by the Satversme and also the duty to decide on all the substantial matters relating to the aforementioned loans, including the matters concerning the possible authorisation for the Cabinet of Ministers. Therefore, the international commitments assumed by the Cabinet of Ministers cannot by themselves serve as an argument for the restriction of the fundamental rights enshrined in Article 109 of the Satversme. 30.2. In order to ascertain whether there were less restricting means at the disposal of the legislator, the Constitutional Court has to determine whether the legislator had considered possible alternatives to the impugned provisions. The ECtHR has indicated that public interests also in the context of decrease of pension or other comparable disbursements leave a wide margin of appreciation to the legislator. The Court must respect this margin of appreciation – unless it is evident that the legislator’s actions had no reasonable justification (see the judgment of the ECtHR of 15 September 2009 in the case “Moskal v. Poland”, application no. 10373/05, para. 61). 30.2.1. The reply and the opinion of the Cabinet of Ministers indicate that, as a result of the Agreement of 11 June, the Disbursement Law was approved by the political parties that constitute the government, the Free Trade Union Confederation of Latvia (LBAS), the Employers’ Confederation of Latvia (LDDK), Latvian Pensioners’ Federation (LPF), the Latvian Association of Local and Regional Governments (LPS) and by the Latvian Chamber of Commerce and Industry. Thus, the Saeima and the Cabinet of Ministers imply that, by means of this Agreement, the best possible solution from several alternatives has been reached. One can gain an insight from the replies submitted by the involved organisations to the Constitutional Court that alternative solutions to the impugned provisions have either been uttered at other meetings or have been left without consideration. So, for example, LPS informed the Constitutional Court that, during preparation of the Agreement of 11 June, other alternatives were considered – reduction of untaxed minimum to 0 lats, reduction of pension for 15 %, reduction of pension premiums and disbursement of

pensions to employed pensioners in the amount of 100 lats. LBAS and LDDK indicated that, during the preparation of changes to the budget of 2009, there were consultations held concerning possibilities to reduce the untaxed minimum of the individual income tax or to increase the social insurance contribution rate, and there were no other counsels held regarding the impugned provisions. LPF in turn admitted that it did not participate in the deliberations concerning the Agreement of 11 June because the decision had already been adopted. LPF also acknowledged that an agreement concerning the reduction of pensions for 20 % to those employed pensioners whose pensions are higher than 100 lats and non-payment of premiums to those pensioners who have retired after 1 January 1996 has been reached at the meeting with the Minister for Welfare on 9 June 2009. These agreements were not approved at the meeting of the Cabinet of Ministers. The Constitutional Court points out that the Agreement of 11 June by itself neither confirms nor excludes the legitimacy or the constitutionality of the impugned provisions. Also, the participation of individual organisations or public partners of the government in the preparation of the aforementioned Agreement is not indicative of the constitutional compliance or – just the opposite – non-compliance. The Agreement of 11 June cannot be considered as a legitimate precondition for the adoption of the impugned provisions; rather, it may be viewed a quasi-political pledge signed for different reasons by the individual organisations and public partners of the government along with the political parties constituting the government. The fact of the Agreement is relevant to this case only insofar as possible alternatives to the impugned provisions have been considered during its preparation. In addition, contrary to the opinion expressed in the replies of the Saeima, the letter of the Cabinet of Ministers and the annotation to the Disbursement Law Draft, the Constitutional Court deemed that the participation of organisations and public partners of the government in the preparation of the Agreement of 11 June was just formal. 30.2.2. The Ministry of Welfare explained in the information it furnished to the Constitutional Court that the draft of the Disbursement Law had to be drawn up in a limited period of time, and it was not possible to consider the alternatives for lack of time (see the case materials, vol. 9, p. 115). The Cabinet of Ministers, in turn, explained that debates concerning the required reduction of the state budget for 500 million lats were extremely difficult and hard. Other alternatives for the reduction of pensions were considered in these debates. Yet, as a result, an agreement was reached only with regard to one specific solution, namely, the one set forth in the Agreement of 11 June. Besides, it would not be rational to discuss other solutions during the Disbursement Law Draft preparation process also for the reason that the issue of the budget deficit reduction had to be settled immediately (see the case materials, vol. 9, p. 8). The information furnished by the Saeima, LBAS, LDDK, LPF, LPS and the Head of the Social and Employment Matters Committee A. Barča purport that certain alternatives to the adoption of the impugned provisions were discussed. For example, there was a proposition to set down the maximum amount of pension – 350 lats and to restrict the disbursement of pension to employed pensioners for 50 %. At the same time, it is acknowledged that the alternatives would not yield sufficient economy or have not been sufficiently reviewed (see the case materials, vol. 9, p. 162 and vol. 10, p. 64). Also, during the debates concerning the Disbursement Law taking place at the Saeima, several propositions alternative to the adoption of the impugned provisions were uttered, for instance – reduction of the expenditures of ministries, increase of the mandatory social insurance contribution rate or fixing the minimum amount of

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pension that cannot be further reduced (see transcripts of the session of the 9th Saeima taking place on 15 and 16 June http://www.saeima.lv/steno/Saeima9/090615/st090615. htm, http://www.saeima.lv/steno/Saeima9/090616a/st090616a.htm, accessed on 2 December 2009). Yet, these propositions were just uttered, not reviewed. The Constitutional Court concluded that neither the Cabinet of Ministers, nor the Saeima had carried out objective and well-weighed analysis neither regarding the consequences of the adoption of the impugned provisions, nor regarding other, less restrictive means for the attainment of the legitimate aim. This conclusion also follows from the Disbursement Law Draft annotation, which states that “there is a risk that the provisions of Articles 2, 3, 5 and 6 of the Draft Law contradict the principle of protection of legitimate expectations ensuing from Article 1 of the Satversme as well as cause the risk of contradiction to the rights of persons to equality and nondiscrimination established by Article 91 of the Satversme and the rights to social security established by Article 109, and may therefore constitute grounds for persons to apply to the Constitutional Court” (Article II, Annotation, the Draft Law on State Pension and State Allowance Disbursement in the Period from 2009 to 2012, http://titania.saeima. lv/LIVS/SaeimaLIVS.nsf/0/0BEB9E49A7761574C22575D6003F8248?OpenDocument, accessed 1 December 2009). The annotation of the draft Disbursement Law also indicates that no consultations with experts have taken place (see Article VI, annotation, the draft Law on State Pension and State Allowance Disbursement in the Period from 2009 to 2012). The Legal Bureau of the Saeima, in turn, indicates in its opinion concerning the draft of the Disbursement Law that there is no sufficient information for considering the draft law provisions as the most lenient and definitive means for the reduction of the state expenditures. Furthermore, the opinion goes on that applying the restriction provided in Article 3(1) of the draft law to so wide a range of persons is not justified and violates the principle of proportionality. In addition, the draft law contains an obvious contradiction: the law is supposed to become effective as of 1 July 2009, whereas the draft law annotation indicates that the enactment of the law from this date is unfeasible (see the case materials, vol. 8, pp. 5354). The legislator’s task is to find a compromise between competing legislative-political aims, especially between the legislative and constitutional principles. For example, when taking a decision concerning specific social reliefs, one must find a compromise between the fundamental principles of social statehood and enactment of economical state budget policy (see Cipeliuss R. Par tiesisko apsvērumu racionālu strukturēšanu. Likums un Tiesības, 2000, no. 4, p. 112). The Constitutional Court concludes that the proposed alternatives to the impugned provisions cannot be regarded as viable and accepted, for it was simply impossible to draft adequate alternative proposals in such a short period of time. Likewise, it was impossible to give careful and detailed consideration to such major issues as the potential economic effect and the social consequences of these alternative solutions within a few days. Consequently, the Constitutional Court had no grounds for deeming the alternative solutions – which lack the necessary justification and analysis of economic and social consequences – as sufficiently well-considered alternatives to the impugned provisions. Due to the haste and the insufficient involvement of experts, the legislator could not duly consider alternative solutions and work out a lenient transition. Among other things, the fact that the Disbursement Law had to be corrected urgently is also indicative of the legislator’s inconsiderate action. That is, the disbursement restrictions included

in the Disbursement Law pertained to old-age and service pensions. As a consequence, those persons, who had reached the retirement age while still receiving disability pension, received it in full amount, whereas those persons, who had been granted oldage pension instead of disability pension, received it in restricted amount. In other words, the Disbursement Law provided obviously different treatment for persons who were the recipients of disability pension on the one hand (the reduction of pension not applied), and persons who received old-age pension instead of disability pension on the other hand (the reduction of pension applied) (see the Law “Amendment to the Law “On State Pension and State Allowance Disbursement in the Period from 2009 to 2012”” adopted on 17 September 2009 and the annotation to this draft law http://titania.saeima. lv/LIVS/SaeimaLIVS.nsf/0/CDF73564B79BB4E3C225761F004BE61E?OpenDocument, accessed on 1 December 2009). It is acknowledged in the legal scholarship that delay, unpredictability and inconsistency in the exercise of state power prove that measures carried out and implemented by the state have led up to violation of the principle of proportionality (see Harris D., O’Boyle M., and Warbrick C., Law of the European Convention on Human Rights, 2nd ed., Oxford University Press, 2009, p. 676). The ECtHR has also stated that “indecisiveness – no matter whether it has come about as a result of legislation or administrative or institutional practice – is a factor to be considered in adjudicating an action of the state. Indeed, in the case of dealing with a matter of common interest, the public authorities have a duty to consider this matter in due and coordinated manner for a reasonably long period of time” (“Broniowski v. Poland”, 2004-V; 43 EHRR 1, paras. 151 and 184 GC). Next, if the restriction established in Article 3(1) of the Disbursement Law is not dealt with in a differentiated way, a situation may arise when the deduction from person’s pension is higher than his or her income from work or self-employment legal relations. The fact that such an action of the legislator does not comply with the Satversme has already been stated in the earlier Constitutional Court judgments (see the judgment of the Constitutional Court of 19 March 2002 in the case no. 2001-12-01, para. 3.1.3 of the motives part). Besides, a situation has arisen that Article 3(1) is not applicable to specific groups of persons who have other income in addition to pension. As the Cabinet of Ministers pointed out, in accordance with Article 6 of the Law on State Social Insurance, persons who have reached the age that gives the right to receive the state old-age pension, and who are owners of farms (fisheries), recipients or royalties, natural persons who perform the management of an immovable property or acquire income from a private subsidiary holding or a household plot, and who have registered as economic activity income tax payers, shall not be persons subject to mandatory social insurance. Similarly, the reduction of pension is not applied to self-employed persons who are registered with the State Revenue Service and whose income does not reach the minimum monthly wage (see the case materials, vol. 9, pp. 11-12). Also, with respect to those persons who are subject to Article 2(1) of the Disbursement Law, the Constitutional Court could not confirm that the legislator has chosen the least restricting means for the attainment of the legitimate aim. That is to say, the deduction from pension in the amount of 10 % is applied to all pensioners irrespective of the amount of their pension. As a result of the application of this provision, a pensioner may become a deprived person compelled to apply for social aid. When adopting the impugned provisions the legislator has not considered with sufficient care the alternatives to these provisions and has not envisaged a more

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lenient solution. Therefore, the impugned provisions do not comply with Article 109 of the Satversme. 31. The Constitutional Court points out that, even if the state reduces the pension disbursement amounts for a period of time in the situation of rapid economic recession, there is still a definite body of fundamental rights that the state is not entitled to derogate from. In this context, it is essential to determine whether the rights of pension recipients to social security have been infringed according to substance (see the judgment of the ECtHR of 30 March 2005 in the case “Kjartan Ásmundsson v. Iceland”, application no. 60669/00, para. 39). The Constitutional Court indicates that one of the indispensable elements of a pension system is its adequacy. It means that the pension system guarantees reliable and adequate income, which does not destabilise the state budget and does not put an excessive burden on future generations, at the same time ensuring justice and solidarity, as well as capacity to react on changing needs of individuals and society (see the Social Protection Committee, Adequate and Sustainable Pensions, Report by the Social Protection Committee on the future evolution of social protection, Göteborg European Council, June 2000). States should secure, within limits, a standard of worthwhile human life and opportunity to take active part in the state, public, social and cultural life to all elderly people (see the European Commission, Communication on supporting national strategies for safe and sustainable pensions through an integrated approach, COM (2001) 362 final, July 2001). 31.1. The applications repeatedly emphasise that the accruals of the social insurance special budget have been spent unreasonably, and this expenditure was one of the reasons for adopting the impugned provisions. The Ministry of Finance and the State Treasury in their replies to the Constitutional Court allege that disposing of the social insurance special budget accruals took place in conformity with the Law on Budget and Financial Management. One of the fundamental principles of social insurance – self-financing – has been worked into the legal acts regulating this area. The social insurance special budget is built up solely by the social insurance contributions, and the outlays from this budget are intended solely for social insurance services. It means that a certain balance between the revenues and outlays of this budget has to be maintained. Imposition of unreasonable additional expenditures can unsettle this balance, thus endangering the financial sustainability of this budget. 31.1.1. One can see from the case materials that 951.1 million lats had been accrued in the social insurance special budget at the beginning of 2009, whereas by 1 September 2009 this accrual had decreased to 845.4 million lats. Thus, the accrual of the social insurance special budget had decreased by more than 100 million lats within a period of eight months. The surplus in the social insurance budget from contributions made during the years of economic growth and favourable demographic situation is accrued to the social insurance accounts. Although mutual borrowing among budgets took place already in 1999, and a possibility to use the social insurance budget reserves for deriving profit was discussed already in 2005, only on 2 December 2009 the Cabinet of Ministers decided to support the investment of the social insurance special budget accrual funds into the State Treasury (see the case materials, vol. 9, pp. 187-188, and the Conception of the Cabinet of Ministers “On management of State social insurance financial resources until 2012” of 3 December 2008, Latvijas Vēstnesis, 5 December 2008, no. 190).

The surplus of the social insurance special budget is the reserve fund. In accordance with the effective regulatory enactments, it can be used solely for the disbursement of social insurance allowances and pensions in the cases when the revenues of the social insurance special budget are not sufficient for covering its expenditures. That is, this accrual can also be used for creating a balance between the social security of different generations and the guaranteed adequacy of pensions. Article 7, Paragraph Three of the Law on Social Insurance provides that a reserve may be established for each special budget in which the excess income of the special budget over the amount of financing for the provided social insurance services is included. Thus, one can conclude that a decision to dispose of the social insurance budget accruals belongs to social policy. Well-considered and focused disposal of this accrual would facilitate its increase, and the accrual could be used for alleviating the budget situation when the demographic situation in the state starts to go down. On the one hand, the chosen procedure ensures that the social insurance budget accruals are subject to a lesser economic risk, because they are invested into sufficiently reliable financial instruments, and their value is relatively retained. Likewise, the practice in force guarantees that the social insurance special budget funds are adequately accounted for. On the other hand, there is no doubt that the practice in force, which governs the disposal of this accrual of several hundred million lats, delegates undue powers to the executive authority – the Minister for Finance – and the State Social Insurance Agency (hereinafter – SSIA) as the executor of the budget. For example, the procedure following which the director of SSIA and the representative of the State Treasury enter into simplified agreements for the investment of several hundred million lats from the social insurance budget accrual funds to the State Treasury cannot be deemed as transparent. Considering the lack of due control, there are sufficient grounds for doubting whether the social insurance special budget accrual funds have been, in this way, indeed, allocated most effectively. For this reason, the Petitioners could have reasonable doubts regarding the purposes for which the said accruals have in fact been channelled. Likewise, there is no sufficient control, including the control exercised by the Saeima, ensuring that this large accrual is used as an instrument of social policy and the funds are allocated in a way that is most profitable to the national economy and social insurance budget. To the contrary, as M. Poršņova pointed out, it is possible that the respective accrual is being used for solving the state budget deficit problems as well as for the fulfilment of short-term objectives of the executive power. As a result, the whole social insurance system is destabilised (see the case materials, vol. 9, p. 188). 31.1.2. It can be inferred from the case materials that one of the reasons of such a big deficit in the social insurance budget was the ill-considered definition of parenting benefit as a type of social insurance. In 2008 approximately 66.7 million lats were spent for the disbursement of this benefit, and there were plans to spend approximately 82.9 million lats for this purpose in 2009 (see the case materials, vol. 9, p. 195). Until 1 January 2008 this benefit was defined as a type of social allowance – childcare benefit, and it was disbursed from the basic budget of the state. Under the then effective legislation, the amount of the benefit was limited, i.e. it could not exceed 392 lats per month. The Constitutional Court adjudicated such a regulation as conforming to the principle of legal equality ensuing from Article 91 of the Satversme (see the judgment of the Constitutional Court of 11 December 2006 in the case no. 200610-03).

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In order to change the procedure for the disbursement of childcare benefit that was effective until 1 January 2008, the Cabinet of Ministers submitted draft amendments to the Law on State Social Insurance to the Saeima on 8 October 2007. The draft law was developed on the basis of the Prime Minister’s Resolution no. 111-1/152 of 20 September 2007. The Resolution commissioned the Ministry of Welfare, in cooperation with the Ministry of Justice and the Ministry of Finance, to prepare amendments concerning the optimisation of the childcare benefit system to the relevant drafts of legal acts and submit for review until 24 September 2007 for the Cabinet of Ministers’ meeting of 25 September (see the Prime Minister’s Resolution no. 111-1/152 of 20 September 2007, the case materials, vol. 10, p. 81). The draft law was declared as urgent and was adopted without debates in both the first and the second readings (see transcript of the Saeima’s session of 24 October 2007 http://www.saeima.lv/steno/Saeima9/071024/st071024.htm and transcript of the Saeima’s session of 8 November 2007 http://www.saeima.lv/steno/ Saeima9/071108/st071108.htm, accessed on 2 December 2009). With the adoption of this law, a new type of state social insurance – parenting insurance – was introduced in the Law on State Social Insurance. The Draft Law Annotation stated: since it is planned to disburse the parenting benefit in full amount and without any restrictions also to employed persons who at the same time receive income from work, the parenting insurance does not conform to the real meaning of social insurance. Furthermore, since the implementation of this benefit was supposed to be provided from the existing social insurance contributions, it would negatively affect the social insurance special budget in a long-term perspective. Implementing the parenting benefit and disbursing it from this budget in keeping with the current social insurance contribution rate, the reserve accrued in this budget would be spent 10 years earlier than planned (see the annotation to the draft law Amendments to the Law on State Social Insurance, reg. no. 470/Lp9, http://www.saeima.lv/saeima9/lasa?dd=LP0470_0, accessed on 2 December 2009). The draft law annotation stated that the overall social insurance contribution rate would be maintained in the amount of 33.09 %, and the service (parenting benefit) corresponding to parental insurance would be financed from the disability, maternity and sickness special budget funds, changing proportionally the distribution of the expenditures of these special budgets (see the annotation to the draft law, reg. no. 470/Lp9). It is evident from the Cabinet of Ministers regulations pertaining to the distribution of social insurance contribution rates by state social insurance types that in 2009 the proportion of mandatory social insurance contributions intended for parental insurance has increased for approximately 70 % compared to 2008; i.e. the proportion has increased from 1.08 % in 2008 to 1.85 % in 2009. The Constitutional Court maintained that, keeping the social insurance contribution rate in the amount of 33.09 %, the legislator had no basis for introducing a new type of social insurance. As a result of this, the balance of the social insurance budget was unsettled and its sustainability – put in danger. The newly introduced type of social insurance – parental benefit – is paid from the social insurance budget without respective additional contributions therein. It is also evident from the draft materials of the Law on State Social Insurance that the initially established social insurance contribution rate was planned for financing only five types of state social insurance – state pension insurance, social insurance in case of unemployment, social insurance against accidents at work and occupational illnesses, disability insurance and maternity and sickness insurance (see, e.g. the drafting

documents of the Law on State Social Insurance, case materials, vol. 9, pp. 166-180; Pension Law conception, p. 3, case materials, vol. 10, p. 158; Ministry of Welfare Social Report for 1998, pp. 12-37). Consequently, the substantial cause of the negative financial balance in the social insurance budget was the establishment of the parental benefit as a new type of social insurance, without changing the social contribution rate. For instance, the total economy planned to be achieved for the year 2009 as a result of the enactment of the impugned provisions was approximately 88 million lats. This sum corresponds to the planned outlays of parental benefits from the social budget for approximately one year and one month. It can also be concluded that the sustainability of the social insurance special budget was affected by other hasty and inconsiderate decisions in the field of social policy, for example, the increase of pension premium to 70 santims for each year of the length of insurance accumulated until 1996, the decrease of mandatory social insurance contributions channelled to pension funds as well as the inconsiderate pension indexation mechanism (see Sub-paragraph 4.19 of the World Bank report Aide Memoire, the case materials, vol. 9, p. 105, and the opinion of M. Poršņova, the case materials, vol. 9, p. 204). As already stated in this judgment, the Latvian social insurance system is fragile, and every inconsiderate decision may cause serious consequences for the stability of this system in a long-term perspective. Therefore, the state has a duty to put its social policy into effect by managing the social insurance special budget funds with extreme care. The decisions adopted in haste and without sufficient prior deliberation, along with the economic situation in the state, have caused the current difficult situation in the social insurance special budget. 31.2. Rights to social security of at least the minimum level are included in the scope of Article 109 of the Satversme, and the aim of these rights is to ensure life worthy of a human being (see the motives part of the judgment of the Constitutional Court of 13 March 2001 in the case no. 2000-08-0109). Pensioners are to be deemed as a social group that needs special protection, all the more those pensioners whose income is low and estimated as not reaching the minimum social security. The UN Committee on Economic, Social and Cultural Rights has described the duty of the state to guarantee the availability of social security at least at a minimum level. In the cases when state, considering the resources at its disposal, is incapable to ensure this minimum level to all the risk groups, it should specify the groups that need special protection, and social security should be provided for these groups (see General Comment no. 19, para. 59). Several organisations, including international organisations, have assessed the risk of poverty for the residents of Latvia. For example, Eurostat data of poverty risk groups due to old age for the year 2007 show that approximately 33 % from persons who are older than 65 are in the poverty risk group (see http://ec.europa.eu/ employment_social/spsi/docs/social_inclusion/data_overarching_en.xls, accessed on 25 November 2009). Furthermore, according to the study carried out in Latvia, poverty risk among lone elderly people has increased also during the time of economic growth – from 45 % in 2005 to 69 % in 2006 and to 75 % in 2007 (see the provisional data of the Central Statistical Bureau for 2007 ”Survey of European Union Statistics on Income and Living Conditions (EU-SILC)” http://www.csb.lv/csp/content/?cat=471&id=5762, accessed on 25 November 2009).

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Even during the time of economic growth, the funds allocated to social protection services were relatively scanty in Latvia (see Europe in Figures, Eurostat yearbook 2009, p. 256). Whereas Sweden, for example, allocated approximately 32 % from its GDP for this purpose and France – 31.5 %, this figure for Latvia is only 12.4 %. This situation is reflected in statistics concerning the inequality of income distribution, which continued to increase also in the period of economic growth and is the highest among the EU States (see Inequality of income distribution http://epp.eurostat.ec.europa.eu/ tgm/table.do?tab=table&init=1&plugin=1&language=en&pcode=tsdsc260, accessed on 1 December 2009). In order to ascertain the minimum level of social security in a specific case, the state has to make a choice from several methods used by different international organisations. Although these methods are not legally binding, their principles are of markedly recommendable nature, sufficiently authoritative to be able to advice the state to choose the optimum model of action for solving a specific problem. These methods take into account the needs of households depending on their size and composition. There is a wide range of such methods of assessment available (see Atkinson A. B., Rainwater L., Smeeding T. M., Income Distribution in OECD Countries, OECD Social Policy Studies, no. 18, 1995, Paris). Three of these methods are the most widespread: (1) OECD equivalence scale, (2) OECD-modified scale, (3) square root scale, which is used since 2008 (see http:// www.oecd.org/dataoecd/61/52/35411111.pdf, accessed on 3 December 2009). Eurostat in its practice has adopted the OECD-modified scale method (see http://ec.europa. eu/employment_social/spsi/docs/social_ protection/SPC%20Study%20minimum%20 income%20final.pdf, accessed on 3 December 2009). On the basis of calculations made according to these methods, the optimum level of income is determined for persons, so that they would be able to satisfy their basic needs. The choice of a particular equivalence scale to be used depends on technical assumptions about economies of scale in consumption as well as on value judgments about the priority assigned to the needs of different individuals, such as the elderly. These judgments will affect the results. In selecting a particular equivalence scale, it is important to be aware of its potential effect on the level of inequality and poverty, on the size of the poor population and its composition (see What are Equivalence Scales? OECD Project on Income Distribution and Poverty, via www.oecd.org/els/social/inequality, accessed on 25 November 2009). Since the results may differ depending on the method chosen, a substantiated choice of the method which is most suitable to the situation in Latvia is a matter of a political choice of the legislator. 32. The Petitioners consider that the impugned provisions do not comply with the principle of protection of legitimate expectations, for the legislator has not envisaged a lenient transition to the new legal order. The principle of protection of legitimate expectations is closely linked with the principle of a state based on the rule of law. The Constitutional Court has pointed out that, in accordance with the principle of protection of legitimate expectations, government institutions are obliged to act consistently with respect to the normative acts issued and to respect the legitimate expectations that persons could have developed under a specific legal provision. Individual persons, in turn, in accordance with this principle, can count on the constancy and unchangeability of a lawfully issued legal provision. Then persons can plan with confidence their future in the context of

the rights guaranteed by this legal provision (see the judgment of the Constitutional Court of 19 March 2002 in the case no. 2001-12-01, para. 3.2 of the motives part and the judgment of the Constitutional Court of passed on 8 November 2006 in the case no. 2006-04-01, para. 21). At the same time, the principle of protection of legitimate expectations does not preclude the state from making changes to the existing legal order. The principle cannot be interpreted so widely that it would safeguard persons from every possible dissatisfaction. Otherwise the state would not be able to react to changing conditions of life. Nevertheless, the principle of protection of legitimate expectations requires the state, when it changes an existing legal order, to observe a reasonable balance between persons’ confidence in the currently effective legal order and those interests for the sake of which this legal order is being changed (see the judgment of the Constitutional Court of 26 November 2009 in the case no. 2009-08-01, paras. 23 and 25). The Constitutional Court has already indicated that, when a resolution on revocation of pension revision was made in 2009, the determination of retaining the pension disbursement amount was referred to as the substantiation for this revocation in the debates of the Saeima (see the judgment of the Constitutional Court of 6 November 2009 in the case no. 2009-08-01, para. 21). Clause 12.2.4 of the government declaration endorsed on 11 March 2009 states that the government is not going to aggravate “the existing financial situation for pensioners and persons with disabilities; however, knowing that the previously signed international documents envisage “freezing” of pensions in Latvia, which means temporary revocation of pension indexation”, further procedure for pension indexation will be defined more exactly. The reduction of pensions particularly affected the employed pensioners: deduction from their pensions was set for the amount of 70 %, while they could not terminate the employment relations in accordance with the requirements of the relevant regulatory enactments of the Republic of Latvia. That is to say, approximately two weeks passed from the moment of adoption of the Disbursement Law until its effective date. Such a short period of time was insufficient for persons to assess in an adequate manner whether it would be beneficial for them to terminate their employment legal relationships pursuant to Article 100(1) of the Labour Law, which provides for the right to give a notice in writing of termination of an employment contract one month in advance. Moreover, there were cases when deductions from the pensions of employed pensioners were made even if the employment legal relationships had in fact been terminated. As a result, legal uncertainty increased even more. Annotation to the Disbursement Law Draft also conceded that the enforcement of this law from 1 July 2009 was unfeasible (see Article I, annotation, the draft Law on State Pension and State Allowance Disbursement in the Period from 2009 to 2012). The Constitutional Court has previously adjudicated that the amount of pensions of employed pensioners can be restricted, taking into account their income from employment (see the judgment of the Constitutional Court of 19 March 2002 in the case no. 2001-12-01, para. 3.1.1 of the motives part). However, the impugned legal provisions to be adjudicated within this case do not envisage an all-encompassing change of state policy with regard to the amount of pensions of employed pensioners; the provisions in question provide only a temporary restriction of pension disbursements. In any event, the employed pensioners could not foresee such a change of legal order – even if this change was supposed to be temporary; nor could they make a well-considered choice.

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Adjudicating whether a reasonable balance has been maintained between the need to protect legitimate expectations of persons and the need to secure public interests, one should consider whether the planned transition to the new legal order is sufficiently lenient. The Constitutional Court has previously established that such a lenient transition may be expressed in the form of setting down a reasonable transitional period or granting a compensation (see the judgment of the Constitutional Court of 25 March 2003 in the case no. 2001-12-01, para. 2 of the motives part). Having regard of the duty to protect persons’ reasonable confidence in the permanence of legal order ensuing from the principle of legitimate expectations, the state has not only rights; it also has a duty to counter the situations when public interests are seriously jeopardised. If legal order is changed for the common good of society, then such an action is permissible. On this account, a temporary reduction of pension disbursement amount is justified if it is carried out in fair balance with persons’ legitimate expectations concerning a specific pension disbursement amount. The ECtHR has also repeatedly drawn attention to the need of ensuring fair balance and commensurate compensation (see Harris D., O’Boyle M., Warbrick C., Law of the European Convention on Human Rights, 2nd ed., Oxford University Press, 2009, p. 675). In the context of this case, it means that the reduction of pensions could have been implemented only if a legal provision concerning later reimbursement of the deducted money had been simultaneously adopted. In other words, planning such a temporary reduction, the legislator is obliged to ensure its fair reimbursement at a later time. More than that, the state, in proportion to the overall interests of society, had to define the groups of pensioners who would be exempt from this reduction, or to whom a different reduction amount would be applied. The impugned reduction of pensions does not allow a differentiated approach and does not provide either for a later compensation for the deductions, or for an adequate transitional period. Therefore, the impugned provisions do not comply with Article 1 of the Satversme. IV 33. Consistent with the practice of the Constitutional Court, if an impugned legal provision is adjudicated as unconformable with one constitutional norm, the Court does not further adjudicate the conformity of the provision in question with other constitutional norms. The provisions impugned in this case also affect several other fundamental rights established by the Satversme, first of all the fundamental rights established by Articles 91 and 105 of the Satversme. Thus, the legislator had, to equal extent, to take into account both the duty arising from the first sentence of Article 91 of the Satversme – to treat persons in different positions differently – and the duty to protect the rights to pension disbursement granted by Article 105 of the Satversme (cf. the judgment of the Constitutional Court Judgment of 19 March 2002 in the case no. 2001-12-01, para. 6 of the motives part and the judgment of the Constitutional Court of 8 June 2007 in the case no. 2007-01-01, paras. 20 and 21). 34. In accordance with Article 31(11) of the Constitutional Court Law, if the Constitutional Court has decided that a legal provision is incompatible with a legal provision of a higher legal force, the Court is obliged to decide on the moment when the impugned provision becomes invalid. In this case, the Petitioners have requested to declare the impugned provisions as invalid from the day of their adoption, which is 16 June 2009.

For that reason, the Constitutional Court has to decide on the moment from which the impugned provisions would lose their validity. Article 32(3) of the Constitutional Court Law prescribes that “any legal norm (act) which the Constitutional Court has determined as incompatible with the legal norm of higher force shall be considered invalid as of the day of publication of the decision of the Constitutional Court, unless the Constitutional Court has ruled otherwise.” Thus, declaring an impugned provision to be incompatible with a legal norm of a higher force does not necessarily mean that the provision in question must be declared invalid as of the day of publication of the judgment. In Article 32(3) of the Constitutional Court Law the legislator has conferred to the Constitutional Court wide freedom of action to decide from which moment an impugned legal provision – that has been declared to be incompatible with a legal norm of a higher legal force – becomes invalid. To invalidate the impugned provision not from the day of the publication of the judgment but from some other moment, the Constitutional Court must substantiate such a decision. Determining the exact moment from which the impugned provisions lose validity, the Constitutional Court, on the basis of its previous practice, would consider the following issues: • whether the invalidation of the impugned provisions with retrospective effect is required for the protection of fundamental rights of the Petitioners; • whether there are any considerations due to which the impugned provisions would have to be invalidated with retrospective effect only in relation to the Petitioners. The Constitutional Court has concluded in this case that the impugned provisions violate the fundamental principles of a state governed by the rule of law and the fundamental rights guaranteed to persons by the Satversme. There are no other ways to preclude the infringement of the Petitioners’ fundamental rights established by the Satversme than to invalidate the impugned provisions as of the moment of their adoption. In this case, the state is obliged to reimburse the deducted parts of pensions. All persons to whom the impugned provisions apply are in a situation similar to that of the Petitioners. The Constitutional Court takes into account that several thousands of other persons wanted to submit constitutional claims concerning these same impugned provisions. Thus, the Constitutional Court decided that not only the rights of the Petitioners but also the rights of all recipients of pension have been infringed. Therefore, the impugned provisions must be invalidated as of the moment of their adoption with respect to all recipients of pension whom they affect. Article 66 of the Satversme states: “Annually, before the commencement of each financial year, the Saeima shall determine the State Revenues and Expenditures Budget.” Interpreting this Article, the Constitutional Court has indicated that “the funds required for the execution of the state duties are determined and substantiated for the budget in keeping with this procedure: in a timeframe for which these funds are planned, the expenditures are covered by the corresponding revenues (the judgment of the Constitutional Court of 27 November 2009 in the case no. 1998-01-05(98), para. 1 of the motives part). The Law on the State Budget for 2010 was adopted on 1 December 2009. Abandonment of the regulation of the impugned provisions was not planned in this budget. If the judgment of the Constitutional Court had to be enforced immediately, a situation would arise that would be even more incompatible with the Satversme than the situation in which the consequences of the impugned provisions still continue for some period of time. Instant disbursement of pensions in

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full amount and reimbursement of all the sums withheld could substantially endanger the stability of both the basic budget of the state and the social insurance special budget, therefore – the welfare of the whole society, including that of the Petitioners. In its previous practice, the Constitutional Court has acknowledged: even if some provisions have been adjudged as unconformable to the Satversme, an instant increase of financial assets disbursable to persons without an opportunity to carry out wellconsidered measures providing for these disbursements could substantially affect the funds to be disbursed to other persons, encumber the performance of functions of the state institutions and thus impede the discharge of state functions in general (see the judgment of the Constitutional Court of 4 January 2007 in the case no. 200613-0103, para. 12). In view of the purpose of the social budget – which is to ensure the sustainability of the pension system as well as to satisfy the public interests in general – a reasonable period of time should be given for the accomplishment of the necessary measures. Therefore, the Constitutional Court has a duty to define the procedure for the enforcement of this judgment. 35. Article 31(12) of the Constitutional Court Law provides that, if necessary, “other court decisions” can be included in a judgment of the Constitutional Court. Therefore the Constitutional Court is also authorised to settle other substantial matters, so that new infringements of the fundamental rights established by the Satversme would not come about after the invalidation of the impugned provisions and that the withdrawal of the these provisions “from circulation” would not cause disturbance in the legal order (see the judgment of the Constitutional Court of 16 December 2005 in the case no. 2005-12-0103, para. 25). 35.1. According to its substance Article 31(12) of the Constitutional Court Law provides for similar rights to those granted to constitutional courts of other countries for ensuring the enforcement of their judgments, namely, authorising the Constitutional Court to decide important legal consequences of its judgments by itself. For example, the law not only grants authorisations to the Constitutional Court but also makes it responsible for its judgments – so that they ensure legal stability, clarity and peacefulness in the public sphere (see Benda E., Klein E. Lehrbuch des Verfassungsprozeßrechts. C.F. Müller Juristischer Verlag Heidelberg, 1991, S. 525). The Constitutional Court has already concluded that, within limits, it has to make sure that the situation from the moment of invalidation of the impugned provisions would not cause the infringement of the fundamental rights that the Satversme grants to the Petitioners and other persons as well as would not cause substantial damage to the state or public interests (see the judgment of the Constitutional Court of 16 December 2005 in the case no. 2005-12-0103, para. 25). If the Constitutional Court did not decide the issues related to the enforcement of this judgment, namely, did not set the moment of invalidation of the impugned provisions, a situation would arise that could endanger the stability of the state budget; besides, it would not be clear when exactly the reimbursement of the part of pensions withheld on the basis of the impugned provisions would have to be commenced, for how long and following what procedure. The law does not prohibit the Constitutional Court to decide that it is unfeasible to commence immediately the enforcement of the Judgment – the disbursement of pensions in full. 35.2. Article 9 of the Disbursement Law prescribes for the Cabinet of Ministers to reconsider the validity of disbursement restrictions stipulated by this law twice a year

and, correspondingly, submit the Saeima either a report concerning the continuation of the restrictions, or, if needed, a draft law concerning their full or partial revocation. The Ministry of Welfare has undertaken, by 1 February 2010, to prepare and submit to the Cabinet of Ministers for further submission to the Saeima the draft report referred to in Article 9 of the Disbursement Law, thus ensuring the fulfilment of the task delegated to the Cabinet of Ministers (see the letter of the Ministry of Welfare, the case materials, vol. 10, p. 93). The case materials show that the accrual of the social insurance special budget was approximately 951 million lats at the beginning of January 2009. This accrual has decreased to 767 million lats by the beginning of December 2009 (see the item “Money for pension disbursement will have to be taken from deposit”, National News Agency LETA, 11 December 2009). Accordingly, the accrual has decreased for 184 million lats within the eleven months of 2009, decreasing for approximately 17 million lats per month. Furthermore, the information furnished by SSIA reveals that in December of 2009 the pension special budget had a deficit of approximately 50 million lats. To guarantee the disbursement of pensions at the beginning of 2010, solutions for acquisition of the necessary funds are being considered: first, channelling of the accrual in the employment special budget to the pension special budget; second, early termination of the agreements concluded with the State Treasury concerning the investment of the social insurance special budget in term deposit (see the item “Money for pension disbursement will have to be taken from deposit”, National News Agency LETA, 11 December 2009). On this account, one can conclude that, presently, in order to eliminate the deficit in the social insurance pension special budget, a certain period of time is required either for revision of the agreement concluded with the State Treasury concerning the investment of the social insurance special budget in term deposit, or for proper revision of the division of state social insurance contribution rates by state social insurance types, or for finding some other solution. In view of the aforesaid and the circumstance that, in addition to current expenditures, more than ten million lats per month will still be needed for the restoration of full pension disbursement amounts, as well as the fact that pensions are calculated and disbursed for calendar months, the Constitutional Court maintains that the deductions from pensions made on the basis of the impugned legal provisions are terminable not later than from 1 March 2010. 35.3. Deciding about the timeframe for reimbursement of the part of pensions withheld from persons within the period from 1 July 2009 to 1 March 2010, one should take into account that the restriction for the disbursement of particular pensions prescribed by the Disbursement Law was planned for three and a half years – from 1 July 2009 to 31 December 2012. Moreover, the legislator has allowed for a possibility that the said restrictions may be revoked already before 31 December 2012. It has already been pointed out by this judgment that the Disbursement Law had been adopted rather hastily, without considering either the proportionality of the reduction of pensions, or other aspects relating to the consequences of the impugned provisions. In accordance with the Satversme, the Saeima has not only rights but also duties to draft and adopt laws that settle important matters of state and public life. Similarly, the Satversme authorises the Saeima to decide on matters that affect the state budget. Establishment of the procedure for reimbursement of the pension deductions made

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in accordance with the impugned provisions can be deemed as both a sufficiently important matter of public life and a matter that significantly affects the state budget. Therefore, the Saeima has a duty to draft and adopt a regulation that would settle this matter in a lawful way. The Constitutional Court, in turn, has a duty, within the limits of its competence, to ensure effective protection and restoration of the fundamental rights of the affected persons. Neither the protection of the infringed rights, nor their restoration would be effective if the Saeima did not fulfil its duty to establish a procedure for the reimbursement of the deductions from pensions. The Constitutional Court decided that, in this case, the conclusions of this judgment constitute the ground for the reimbursement in question, which must be commenced on 1 March 2010 in such an amount and within such a timeframe as the deductions have been made in accordance with the impugned provisions, namely, a part of pension non-disbursed in one month should correspondingly be reimbursed in one month. The ECtHR, when adjudicating matters concerning the reimbursement of financial assets unjustifiably withheld as a result of violation of rights established by the Convention, has also concluded that persons are entitled to compensation within a reasonable timeframe, taking into account the respective situation and commensurate interests (see the judgments of the ECtHR in the cases “Lithgow v. UK”, judgment of 8 July 1986, applications no. 9006/80; 9262/81; 9263/81; 9265/81; 9266/81; 9313/81; 9405/81, paras. 120-122; “Guillemin v. France” (Article 50), judgment of 2 September 1998, 105/1995/611/699, para. 24; “Jucys v. Lithuania”, judgment of 8 January 2008, application no. 5457/03, paras. 37 and 39; “Broniowski v. Poland”, 2004-V; 43 EHRR 1, paras. 151 and 184). Deciding on the drafting and adoption of such a regulation, one should take into account that, although the recipients of old-age pension constitute a special group, this group is not uniform with respect to their income, age and other aspects. It means that the reimbursement of the deducted part of pension should be carried out within a reasonable timeframe and, within limits, taking into account the different positions of particular persons. Considering the economic situation in Latvia and the state budget, the part of pensions withheld on the basis of the impugned provisions must be, in accordance with the procedure established by the Saeima, reimbursed in full not later than by 1 July 2015.

The resolutive part

On the basis of Articles 30-32 of the Constitutional Court Law, the Constitutional Court decided: 1. To declare Article 2(1) and Article 3(1) of the Law on State Pension and State Allowance Disbursement in the Period from 2009 to 2012 to be incompatible with Articles 1 and 109 of the Satversme of the Republic of Latvia and invalid as of the moment of their adoption. 2. To stipulate that the deductions from pensions established in accordance with Article 2(1) and Article 3(1) of the Law on State Pension and State Allowance Disbursement in the Period from 2009 to 2012 shall be discontinued not later than from 1 March 2010.

3. To order the Saeima to establish a reimbursement procedure for the deductions made in accordance with Article 2(1) and Article 3(1) of the Law on State Pension and State Allowance Disbursement during the period from 2009 to 2012 not later than by 1 March 2010.

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The judgment is final and not subject to appeal. The judgment comes into force on the day of its publication.

Chairman of the hearing of the Constitutional Court G. Kūtris

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2009-94-01

Dual citizenship

The scope of obligations that follows from the doctrine of state continuity, in deciding on issues related to double citizenship Determination of the totality of Latvia’s citizens following the establishment of the Republic of Latvia was described. At the time dual citizenship was not permitted. Whereas after the independence of the Republic of Latvia was lost the exile Latvians, due to practical daily-life considerations, often chose to take citizenship of their country of residence. The impact of the doctrine of state continuity on establishing the totality of Latvian citizens following the restoration of the independence of the Republic of Latvia was analysed. The doctrine of state continuity comprises also the principle of citizenship continuity. This principle envisages the state’s legal obligation, to the extent possible, to reinstate the rights of those citizens who were such before the unlawful occupation of the state. However, the state does not have the obligation to register all the aforementioned persons and their successors as citizens. The jurisdiction of the Constitutional Court to review cases linked to dual citizenship was assessed. Basically, the issue of double citizenship is a political matter, not a legal one. The Court must examine this issue, insofar possible, without interfering with the legislator’s competence.

JUDGMENT in the name of the Republic of Latvia in the case no. 2009-94-01 Riga, 13 May 2010 The Constitutional Court of the Republic of Latvia in the following composition: the Chairman of the hearing of the Court Gunārs Kūtris, judges Kaspars Balodis, Aija Branta, Juris Jelāgins, Kristīne Krūma and Viktors Skudra, Having regard to the application submitted by the Administrative Cases Department of the Senate of the Supreme Court of the Republic of Latvia, According to Article 85 of the Satversme [the Constitution] of the Republic of Latvia and Article 16(1), Article 17(1)(9) and Articles 191 and 281 of the Constitutional Court Law, on 13 April 2010 examined in written proceedings the case “On the compatibility of the words in the first sentence of paragraph 1 of the transitional provisions of the Citizenship Law “if the registration takes place by 1 July 1995” and of the second sentence with Articles 1 and 2 of the Satversme of the Republic of Latvia, as well as with the preamble of the declaration of the Supreme Council of the Latvian SSR “On the Restoration of the Independence of the Republic of Latvia””.

The facts

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1. The Saeima [the Parliament] of the Republic of Latvia (hereinafter – the Saeima) on 22 June 1994 adopted the Law on Citizenship. paragraph 1 of its transitional provisions provides: “Citizens of Latvia and their descendants who, during the period from 17 June 1940 to 4 May 1990, left Latvia as refugees, in order to escape the terror of the occupation regimes of the USSR and Germany, were deported, or due to the aforesaid reasons have not been able to return to Latvia and have become naturalised during this time in a foreign state, retain their right to register in the Population Register as citizens of Latvia, and after registration shall, to the full extent, enjoy the rights of citizens and fulfil the obligations of citizens, if registration occurs by 1 July 1995. If such persons register after 1 July 1995, they shall renounce the citizenship (nationality) of the foreign state.” The respective provision has not been amended and is in force in its initial wording. 2. The Administrative Cases Department of the Supreme Court of the Republic of Latvia (hereinafter – the Petitioner) notes in the application that the doctrine of the Latvian state continuity follows from the preamble of the Satversme [the Constitution] of the Republic of Latvia (hereinafter – the Satversme) and from the 4 May 1990 Declaration of the Supreme Council of the Latvian SSR “On the Restoration of the Independence of the Republic of Latvia” (hereinafter – the Declaration of Independence). The preamble of the Declaration of Independence is said to impose a duty upon the institutions of state power to abide by the aforementioned doctrine and not to deviate from it. The legislator, when deciding upon issues of citizenship, should also abide by this doctrine. It follows from the doctrine of state continuity that, first, notwithstanding the occupation the state of Latvia continued to exist uninterruptedly. Secondly, that the provisions of the Law on Nationality of 23 August 1919 (hereinafter – the Nationality Law) and the Law on Travelling Passports of 20 February 1936 were in force until the moment when the regulation included in them was replaced by new legal provisions issued by representatives of a legitimate Latvian power. Thirdly, during the period of occupation Latvian citizenship continued to exist and to pass on to the following generations in accordance with jus sanguinis principle. Fourthly, during the period of occupation the embassies of Latvian state abroad continued to act on behalf of Latvia, to strengthen the state of Latvia, and the decisions adopted and the activities performed by them are valid. The citizenship or the connection between the person and the state is said to be one of human rights. It is included in Article 15 of the United Nations Universal Declaration of Human Rights (hereinafter – the Human Rights Declaration) and is protected also in Latvia on the basis of Article 89 of the Satversme. The states have the right to define the range of their citizens. Simultaneously states in this legal relationship have to take into consideration whether a person is a citizen of the respective state, but basically have to ignore, whether the person is also a citizen of another state (a person with dual citizenship). The citizenship of another state is said to be of importance only in exceptional cases. Upon restoring the legal system of independent Latvia, the legislator, in accordance with the principles of a state governed by the rule of law, had the obligation to take measures in order to compensate for the damages caused by the previous regime and to restore justice to the extent possible. The legislator is said to have neglected the fact that for the range of persons indicated in the first sentence of paragraph 1 of

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the transitional provisions of the Citizenship Law the dual citizenship developed as the consequence of the occupation of Latvia and that during the period of Latvia’s occupation also these people abroad constituted one of the most essential elements of Latvian state – the nation. The legislator did not consider the legitimate aim of the second sentence of paragraph 1 of the transitional provisions of the Citizenship Law, nor whether the restriction which prohibits exercising the rights of a citizen of Latvia is proportional. Thus, the words of the first sentence of paragraph 1 of the transitional provisions of the Citizenship Law “if registration occurs by 1 July 1995” and the second sentence are said to be in conflict with Article 2 of the Satversme and the preamble of the Declaration of Independence. The principle of legal certainty, in its turn, is said to envisage that a previously adopted legal regulation can be amended only by abiding by the constitutionally enshrined principles and by observing the legal rights of a person and legal certainty. The principle of legal certainty protects a person’s right to the already acquired rights, i.e., persons can rely that the rights that have been acquired in accordance with valid legal acts will be preserved in the defined period of time and will be actually implemented. The Supreme Council of the Republic of Latvia (hereinafter – the Supreme Council) on 27 November 1991 adopted the decision “On application of 15 October 1991 Decision of the Supreme Council of the Republic of Latvia “On the Restoration of the Rights of the Citizens of the Republic of Latvia and the Basic Principles of Naturalisation” to the Citizens of the Republic of Latvia Residing Abroad” (hereinafter – the Decision of 27 November 1991). This decision sets out that the provision included in paragraph 2.2 of the Decision of the Supreme Council1 of 15 October 1991 “On the Restoration of the Rights of the Citizens of the Republic of Latvia and the Basic Principles of Naturalisation” (hereinafter – the Decision of 15 October 1991) on the presentation of the permit of expatriation and paragraph 2.3 shall not apply to the citizens of the Republic of Latvia and their descendants, who, under the conditions of the occupation of their fatherland being outside Latvia have acquired the citizenship of another state in the period from 17 June 1940 to 21 August 1991. In accordance with paragraph 1 of the Decision of 27 November 1991 the aforementioned citizens of Latvia could rely that the foreign citizenship they had acquired would be recognised and that because of it they would not be denied the rights of a Latvian citizen. However, the second sentence of paragraph 1 in the transitional provisions of the Citizenship Law which was adopted later included a requirement to the citizens of Latvia who because of occupation have moved abroad to renounce dual citizenship. Thus, the words of the first sentence of paragraph 1 in the transitional provisions of the Citizenship Law “if registration occurs by 1 July 1995” (hereinafter – the impugned provisions) are inconsistent with Article 1 of the Satversme and precisely – with the principle of legal certainty. 3. The institution that has adopted the impugned provisions – the Saeima – does not agree to the Petitioner’s arguments and asks the Constitutional Court to declare the application unfounded and to reject it. The Saeima holds the opinion that, first, the historical context for defining and restoring the body of citizens must be analysed and that only after that the conformity of the impugned provisions with the legal provisions of a higher legal force can be

assessed. On 23 August 1919 Latvian People’s Council passed the Nationality Law. Its aim was to identify the initial body of citizens. The initial body of Latvian citizens was defined in accordance with Article 1 of the Nationality Law and in conformity with several principles. First, a person who met the requirements of the Nationality Law had to express his or her own will to become a citizen of Latvia by registering at the state institutions. Secondly, this registration for the citizenship of Latvia had a fixed period, since the Nationality Law provided a period of six months, within which a person had to decide on taking Latvian citizenship. Thirdly, the procedure of registration was identical both for persons residing in the territory of Latvia and for persons, who were abroad. After adopting the Declaration of Independence, the state of Latvia once again decided the issue of citizenship. The legislator created the regulation on the basis of the continuity doctrine. In accordance with this doctrine the state of Latvia restored de facto the citizen’s rights to those persons, who had had them before Latvia’s occupation. The Decision of 15 October 1991 of the Supreme Council and other acts adopted by it in the field of citizenship envisaged a repeated identification of Latvia’s body of citizens. At the same time, it must be considered that the Nationality Law was binding to the Supreme Council and that it had no right to amend this Law or to adopt a new law on citizenship, significantly changing Latvia’s body of citizens. The Supreme Council had been authorised only to repeatedly identify Latvia’s body of citizens in accordance with the regulation of the Nationality Law. The repeated identification of Latvia’s body of citizens had been based upon the same principles that had been included in the Nationality Law for the identification of the initial body of citizens. The Saeima agrees to the Petitioner that in accordance with the doctrine of continuity the citizenship of Latvia continued to exist and to pass also to the next generations in accordance with jus sanguinis principle. However, the Saeima holds the opinion that the application interprets the doctrine of state continuity inaccurately and inconsistently. The Nationality Law includes as one of the obligations of a citizen the prohibition of a dual citizenship, which was rooted in Latvia’s historical experience. The duty of a Latvian citizen had been clearly defined and known to the citizens of Latvia. If a person acquired the citizenship or the nationality of another state, he automatically lost both the rights of a Latvian citizen and the rights to receive a Latvian travelling passport. In accordance with the Nationality Law, the Law on Travelling Passports and the Instruction of the Consular Service of 1936 it had been impossible to issue a Latvian travelling passport to persons who simultaneously were also citizens or nationals of another state. Even though the diplomatic missions had limited possibilities to establish, whether a Latvian citizen had obtained the citizenship or the nationality of another state, all persons had to fulfil the citizen’s rights in good faith. Namely, the person had the obligation to inform immediately the authorities about any changes that could influence his status as a citizen, as well as not to retain Latvian citizenship illegally, if he had obtained the citizenship or the nationality of another state. An unlawful action of a person acquiring the citizenship or the nationality of another state does not create a right to retain the citizenship of Latvia. In such a case a person should no longer be considered a citizen of Latvia. Also during the period of occupation of the state all legal acts of the state of Latvia had been in force and the retaining of Latvian travelling passport after obtaining the citizenship or the nationality of another state had been an unlawful activity, to which a prescription

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period cannot be applied. The authorities of Latvian state, upon establishing that a person belongs to the body of citizens of another state, had the obligation to annul the Latvian travelling passport issued by it and to exclude this person for the registers of Latvian citizens. The doctrine of state continuity does not create the right for those citizens of Latvia who have obtained the citizenship or the nationality of another state to retain it when restoring the citizenship of Latvia. Moreover, the doctrine of state continuity rather creates the obligation to the legislator to define a procedure for excluding persons, who contrary to the provisions of Article 8 of the Nationality Law, have kept Latvian citizen’s passport, from the body of Latvian citizens. When assessing the provisions of the Decision of 27 November 1991 the Saeima indicates that the respective regulation has been retained also in the Citizenship Law. I.e., the Citizenship Law does not allow a dual citizenship, if it has formed by way of naturalisation. The impugned provisions, in their turn, set out a precise procedure, which must be followed by those citizens of Latvia who during the occupation period of Latvia obtained the citizenship or nationality of another state and wish to retain a dual citizenship. The legislator’s decision included in the Citizenship Law is said to be a deviation from the formal understanding of the doctrine of state continuity, which envisages a prohibition of the dual citizenship. The Saeima as the legislator elected in free elections had the right to amend the regulation, which was included in the Nationality Law, in the Citizenship Law. Since the occupation of Latvia had been the reason why many citizens of Latvia obtained the citizenship of other states, the legislator in those respective cases has allowed for the possibility of dual citizenship. This should be considered a special measure, aimed at the restoration of justice. The Petitioner’s argument that the impugned provisions are inconsistent with the principle of legal certainty which follows from the unlimited right of the Latvian citizens and their descendants to register the citizenship of Latvia and to retain the citizenship of other states envisaged in the Decision of 27 November 1991 is said to be ill-founded. Namely, the special status of the Supreme Council and especially the generally recognised restriction of jurisdiction with regard to the reform of the Satversme and citizenship issues, has led to the situation that the solutions with regards to the issue of citizenship were not binding to the Saeima, when drafting the Citizenship Law. The Saeima, in its turn, as a freely elected and legitimate representative of Latvian nation, had a wide discretion in drafting the Citizenship Law in conformity with the doctrine of state continuity. In assessing whether there were grounds for persons to rely upon the Decision of 15 October 1991 and the Decision 27 November 1991, the fact that these decisions did not possess the features of a final regulation should be taken into account. I.e., in accordance with paragraph 3.6 of the Decision of 15 October 1991 naturalisation was started only after the law regulating citizenship issues was adopted. Thus, the aforementioned decisions could not have created such a legal certainty in persons that their status would be defined contrary to the regulation of the Nationality Law. Only the Saeima could adopt a new citizenship law. Thus, the impugned provisions are said not to be inconsistent with the principle of legal certainty. The Saeima draws the attention of the Constitutional Court to the fact that the rights of the citizens of Latvia who were citizens until 17 June 1940 and their descendants to restore their legal connection with the state are unlimited. Also after the exhaustion of the term defined by the impugned provisions, i.e., after 1 July 1995

these persons can register in the Population Register as citizens of Latvia. However, when registering after this date, the citizens of Latvia have to renounce the belonging to the body of the citizens of another state. The obligation included in the impugned provisions to renounce the citizenship or the nationality applies only to those persons who obtained the citizenship or nationality of another state by way of naturalisation in the period from 17 June 1940 to 4 May 1990. The obligation included in the second sentence of paragraph 1 of the transitional provisions of the Citizenship Law does not apply to those persons, who acquired the citizenship of another state in other way. The Saeima when answering the questions of the Constitutional Court, indicates that the impugned provisions should be regarded as a significant adjustment of the provisions of the Nationality Law which had been used in attempting to solve the situation which had arisen as the result of Latvia’s occupation that many persons abroad had acquired the citizenship of other states. However, such a measure cannot be unlimited. I.e., legal exactitude demands a repeated identification of the body of Latvian citizens within a reasonable and fixed term, within which anybody would decide upon a preferable solution for himself. The Saeima especially emphasizes that already initially the wording of the impugned provisions included a limited term within which a person had to decide on retaining the dual citizenship. In the course of discussing the draft Citizenship Law, no proposal was expressed on defining a longer period or unlimited rights to register. Neither did the exile Latvians, who had been elected to the Saeima, submit such a proposal. The definition “left Latvia as refugees”, used to denote the circle of persons in paragraph 1 of the transitional provisions of the Citizenship Law, is said to be rather descriptive, and the term “refugee” is used in an everyday meaning of it, including persons who left Latvia because of the Soviet of German occupation regime. After getting acquainted with the materials of the case, the Saeima concludes that documents obtained by the Constitutional Court confirm what has been noted in its written reply and in the additional explanations. First, these documents prove that the mandate of the Supreme Council, already during its term of activities, was recognised as limited, especially in the field of regulating the citizenship issue. Second, the fact of Latvia’s occupation must definitely be assessed as a condition which could influence the application of the provisions of the Nationality Law in exile. The preservation of Latvian passports in exile, indeed, could be assessed as a patriotic act, and, when repeatedly identifying the body of Latvian citizens, these passports could be regarded as a proof of persons’ legal connection with the state of Latvia. However, that does not mean that the repeated identification of the body of Latvian citizens could be unlimited. In view of the aforementioned, the Saeima requests the Constitutional Court to declare that the impugned provisions are compatible with Articles 1 and 2 of the Satversme and the preamble of the Declaration of Independence. […]

The motives 11. The application allows to conclude that the Petitioner asks the Constitutional Court to examine the conformity of the impugned provisions with the doctrine of state continuity. It also follows from the written answer of the Saeima that the most significant

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constitutional issues of the impugned provisions concern exactly this aspect. Thus, in order to establish the content of the impugned provisions and their conformity with the legal provisions of a higher legal force, they first of all must be assessed from the perspective of the continuity doctrine. The Petitioner holds the opinion that dual citizenship of the persons referred to in the first sentence of paragraph 1 of the transitional provisions of the Citizenship Law formed as the consequence of the occupation of Latvia and that these persons as citizens of Latvia during the occupation period in foreign countries constituted one of the most essential elements of the state – the nation. Consequently, the prohibition of dual citizenship is equal to the deprivation of citizenship. The Saeima in its written answer, in its turn, indicates that the application, assessing the conformity of the impugned provisions with the Satversme and the Declaration of Independence, interprets state continuity imprecisely and inconsistently. The judgment of the Constitutional Court of 29 November 2007 in the case no. 2007-10-0102 provides an elaborate analysis of the doctrine of Latvian state continuity. The Court declared that state continuity was characterised by the continuity of the state as a legal person or identity in international law. State continuity is based upon the claims connected with it, which have been advanced according to applicable provisions or procedures of international law, and the fact that these claims are accepted by the international community in a situation when doubts with regard to the identity of the state arise. If a state whose independence was unlawfully interrupted restores its statehood, it can, on the basis of the continuity doctrine, declare itself the same state, which was unlawfully liquidated. In such a case the state itself must define its continuity and act in accordance with the requirements of the continuity doctrine both in international relations and in domestic policy, and also the international community must agree to this self-assessment of the state. The state can be regarded as “the same” state, if it exists continuously or after occupation is restored with actually “the same” constitutional features and if the international community accepts its claim to state continuity. It is not necessary for the state to restore its independence in the same territory and with the same body of citizens and with the same constitutional order which existed before the unlawful interruption of the state continuity de facto. In the course of time the body of citizens of the state, its territory and its constitutional order can change. The continuity doctrine recognises that such changes could have occurred also in the state, the independence of which is being restored. However, in such a case this state must act in accordance with the continuity doctrine, and the respective changes must be introduced not tabula rasa, but on the basis of the previous constitutional regulation. In other words, the changes must occur in the framework of the continuity doctrine, not outside it (see the judgment of the Constitutional Court of 29 February 2007 in the case no. 2007-10-0102, paras. 32.2. and 32.3). The adoption of the Declaration of Independence and the reinstitution of Article 2 of the Satversme initiated the process of restoring Latvia’s independence, on the basis of the continuity doctrine. The reinstitution of 1 of the Satversme, in its turn, created certainty for the citizens of Latvia that the decisions would be taken in conformity with the basic postulates of the continuity doctrine and that the changes would be consistent with the basic principles of a democratic state. The doctrine of state continuity includes also the principle of continuity of citizenship. If a state chooses continuity as its foundation, then the citizenship regulation

must be consistent with this principle. It means that a state, while preserving its essential elements, including nation, as far as possible, must see to it that the amendments in the legal regulation are introduced in conformity with the principles that follow from the continuity doctrine. Consequently, the Constitutional Court will first assess the compatibility of the impugned provisions with Article 2 of the Satversme and the Declaration of Independence. 12. To establish whether the continuity doctrine has been abided by, the historical conditions when the institution of Latvian citizenship originated must be examined. 12.1. The People’s Council passed the Nationality Law on 23 August 1919. Its purpose was to identify the initial body of citizens. I.e., this Law defined the procedure for recognizing persons to be the citizens of the newly established Latvian state. The initial body of Latvian citizens in accordance with Article 1 of the Nationality Law was defined according to belonging to the territory of Latvia, i.e., in accordance with jus soli principle. This provision envisaged that all nationals of the former Russian state, without differentiating as to their ethnicity and religion, who lived in the territory of Latvia, originated from the districts falling within Latvian border regions or on the basis of Russian law already before August 1914 belonged to these districts and by the day when this law was promulgate had not transferred to another nationality, should be considered a citizen of the state. Thus, a person’s link with the territory of Latvia could be actual (originating from the districts falling within Latvian borders), as well as legal (on the basis of the Russian law already before 1 August 1914 already belonged to these districts) (see Dišlers K. Ievads Latvijas valststiesību zinātnē. Rīga: A. Gulbis, 1930, pp. 77‑78). Upon establishing the state, the body of Latvian citizens had to be defined, and Latvia selected jus soli principle as the point of departure. On 7 October 1921 the Nationality Law was supplemented with Article 11 which envisaged that “everyone, without discriminating as to the ethnicity of religion who on the day when Article 11 of this Law is promulgated has not transferred into the citizenship of another state and a) who until 1 August 1914 had had permanent place of residence within the borders of Latvia for the last 20 years, b) or who has had permanent place of residence within the border of Latvia until 1881, or c) who is the descendant of persons referred to in paragraphs “a” and “b”, is recognised as a citizen of Latvia”. These provisions did not apply to those persons, who had evaded military service. Article 4 of the Law, in its turn, was supplemented with a note that those foreigners, who were serving or had served in the Latvian Army, could be admitted to Latvian citizenship with a Cabinet of Ministers decision, if they had resided in the territory of Latvia for five years (see Likumu un valdības rīkojumu krājums, 19. burtnīca, 20 October 1921, p. 339). Article 2 of the Nationality Law envisaged that “the citizens who temporarily reside outside the borders of Latvia and meet the requirements included in Article 1, shall not lose the right to Latvian nationality, if they within one year from the day when this Law is promulgated return to Latvia or register as citizens of Latvia with any of Latvian diplomatic missions abroad or inform about their unwillingness to retain Latvian nationality to the Minister of Interior.” 12.2. Some exceptions to jus soli principle were envisaged by concluding international treaties and including in the body of citizens persons who had links with the territory of Latvia. Thus the identification of the body of citizens continued. For example, on 22 July 1921 an Agreement between Latvia and Russia on the Procedure

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for the Optation of Citizenship, Repatriation, on the Exportation and Liquidation of the Property of the Citizens of the Parties to the Agreement was concluded. Article 1 of the Agreement set out the procedure in accordance with which the inhabitants of the newly acquired territories of Latvia could apply for Latvian citizenship. In accordance with Article 7 of this Agreement Latvia could not refuse to grant Latvian citizenship to these persons (see Likumu un valdības rīkojumu krājums, 15. burtnīca, 24 August 1921, pp. 251, 252 and 256). Similar agreements containing the regulation of the citizenship issue were concluded with the Republic of Estonia, the Ukrainian Soviet Socialist Republic and the Republic of Lithuania (see, for example, Likumu un valdības rīkojumu krājums, 13. burtnīca, 22 December 1920, pp. 1‑13; 12. burtnīca, 30 June 1921, pp. 192‑195, and 21. burtnīca, 29 December 1921, pp. 353‑360). The aforementioned agreements allow concluding that the establishment of dual citizenship was not permitted. 12.3. The Nationality Law was adopted in difficult times when Latvia was not yet recognised de jure. On 7 July 1919 the Provisional Government of Latvia arrived in Riga (see Andersons E. Latvijas vēsture. 1914‑1920. Stokholma: Apgāds Daugava, 1967, p. 506). The Eastern districts of Latvia were occupied by the Soviet armed forces but the German and Bermont army which was also hostile to the existing Latvian state was in Kurzeme. Nothing was clear about the situation in Russia [see Straume A. Pavalstniecības jautājums Latvijā (1919‑1940). Latvijas Vēsture, 1992/2, p. 71]. Consequently, one can agree to what was pointed out both by the Saeima and I. Ziemele, that when adopting the Nationality Law it was a matter of principle to define a body of loyal citizens and to exclude the possibility that Latvian citizens could simultaneously be also citizens of another state. One of the legal mechanisms that could be used to ensure that only persons loyal to Latvia become Latvian citizens was included in Article 8 of the Nationality Law. It provided that no one could simultaneously be a national of Latvia and of another state. Otherwise the person loses the rights of a Latvian citizen. In this way the Law set out the prohibition of dual citizenship, which, notwithstanding the numerous amendments to the Nationality Law, essentially remained unchanged. The opinions provided in the Case allow concluding that in those cases, when a person, while being in exile, had adopted the citizenship of another state, from the perspective of Latvian legal acts it unavoidable meant losing the citizenship of Latvia (see A. Lerhs’s opinion in the case materials, vol. 6, p. 105). The Nationality Law, which de jure was in force before the Citizenship Law was adopted, expressis verbis included the prohibition of dual citizenship. 13. Since the unlawful occupation de facto interrupted the functioning of Latvian citizenship, the Constitutional Court must establish whether and in what way this citizenship continued de facto and de jure during the period of this violation of international right. 13.1. The continuing activities of the state missions and the recognitions of their jurisdiction is the most significant factor in the context of Latvian citizenship. From 1940 to 1991, while there was no lawful government in Latvia and the annexation of the state continued, Latvia de jure in international relations was represented by the retained diplomatic and consular service. The actions of the employees of this service undeniably was one of the conditions, which made other states lean towards non-recognition of the unlawful occupation and annexation of Latvia (see Dēliņš E. Ar skatu no Austrālijas: Latvijas ārlietu dienests 4. maija Deklarācijas

priekšvakarā // 4. maijs. Rakstu, atmiņu un dokumentu krājums par Neatkarības deklarāciju. Rīga: Fonds Latvijas Vēsture, 2000, p. 50, and Lerhis A. Latvijas Republikas ārlietu dienests. 1918–1941. Rīga: Latvijas vēstures institūta apgāds, 2005, pp. 255‑279). During the period of occupation the actions of Latvian diplomatic missions was the only manifestation of the legal capability of the Latvian state. At the same time, these missions no longer had the support of a lawful government. In such an extraordinary situation their actions were defined by the limited legal capability of the state. On the basis of the ambassadors’ statements, Latvian diplomatic and consular missions abroad continued their work up until the restoration of Latvia’s independence, not recognising Latvia’s annexation to the USSR and representing Latvia’s interests (see the judgment of the Constitutional Court of 29 November 2007 in the case no. 2007-10-0102, para 33.1). The heads of the missions defined the guidelines of state foreign policy, appointed staff members of the missions, consuls and personal representatives (see Lerhis A., pp. 284‑286). The basis for the activities of Latvian diplomatic and consular service was the extraordinary powers granted on 17 May 1940 to the Ambassador of Latvia Kārlis Zariņš to represent Latvia’s interests abroad. (see Dunsdorfs E. Kārļa Ulmaņa dzīve. Ceļinieks. Politiķis. Diktators. Moceklis. Rīga: Zinātne, 1992, pp. 366‑369). Even though there were discussions in exile about who had the right to represent Latvia under conditions of unlawful occupation (see, for example, Senatoru atzinums // 4. maijs. Rakstu, atmiņu un dokumentu krājums par Neatkarības deklarāciju. Rīga: Fonds Latvijas Vēsture, 2000, pp. 382‑385); however, these powers were recognised as legal and valid by the governments of the Western states, including the United Kingdom and the USA (see, for example, Lerhis A., pp. 256‑257). The content of the extraordinary powers was limited, for example, it did not envisage the possibility to establish a government in exile, however, their basic objective was clear – to safeguard Latvia’s interests as far as possible (see Ziemele I. State Continuity and Nationality: the Baltic States and Russia: Past, Present and Future as Defined by International Law. Leiden: Martinus Nijhoff Publishers, 2005, p. 22). Moreover, they were granted in belief that the potential occupation of Latvia would not be long (see Andersons E. Latvijas vēsture. 1920‑1940. Ārpolitika. E. Dunsdorfa red. II. - [B.v.]; Daugava, 1984, pp. 412‑415). The agreement of the Latvian ambassadors concluded on 26 May 1946 in Geneva allows to conclude that the diplomats committed themselves to fight for the restoration of the independence of the state as intensely as possible. They agreed that the extraordinary powers granted on 17 May 1940 to the Ambassador K. Zariņš and his eventual successor in rights Alfrēds Bīlmanis should be considered to be the continuation of the idea of a sovereign power and thus is the legal basis for the ambassadors’ activities. The ambassadors continued to represent the sovereign power of Latvia in those states and international institutions, with which they were accredited and where they were able to act. The ambassadors agreed to cooperate, to the extent the political circumstances allowed, with all Latvian patriotic organisations, which had the aim to restore the independence of Latvia (see the case materials, vol. 6, p. 129). Oļģerts Grosvalds, the Latvian Ambassador in Paris as late as in 1951 signed a certificate that he recognised the extraordinary powers granted by the lawful government of Latvia on 17 May 1940 and K. Zariņš, the Ambassador of the state in London, as the holder of these powers (see the case materials, vol. 6, p. 138). Other states recognised the powers of the Baltic diplomatic representatives. Thus, for example, the USA allowed the Baltic diplomatic and consular institutions to

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act as the representatives of the respective states. Similarly, measures were taken to protect the Baltic properties in the USA. The same approach was adopted by the United Kingdom, as well as courts in Germany and Ireland [see Hough W., The Annexation of the Baltic States and its Effect on the Development of Law Prohibiting Forcible Seizure of Territory, p. 392, footnote 397, p. 415, footnote 431, pp. 434‑435; see also The Republic of Latvia Case, 20 International Law Reports 180 (1953), 10 Int’L. Law Reports 91 (1949)]. Also the German Federative Republic, establishing diplomatic relations with the USSR, emphasized especially that it did not recognise the unlawful occupation and annexation of the Baltic States realized by the USSR, as well as the territorial changes, which in this connexion had occurred after the beginning of World War II (see the importance of the reservations made the German Federative Republic in the case materials, vol. 6, pp. 146‑151). Also Canada, Australia, France, Yugoslavia, Denmark, Belgium, Spain, Portugal, the Vatican, Malta, Greece, Italy, Luxemburg, Turkey, Norway, the Netherlands, Switzerland adhered to the nonrecognition policy. Diplomatic relations were maintained with Uruguay, Brazil, Columbia, Ecuador, Chile, Guatemala, Paraguay, Venezuela, Costa Rica and other states (see: Hough W., pp. 444‑445). Thanks to the diplomats of the Baltic States the issue of the occupation of these three countries was debated at the UN Specialised Committee on Decolonisation in 1983 and at the Parliament of the European Union [see 1982‑1983 Eur. Parl. Doc. (no. 7.908), pp. 432‑433 (1983)]. Several resolutions were also adopted by the Parliamentary Assembly of the Council of Europe [see Dokumenti par Latvijas valsts starptautisko atzīšanu, neatkarības atjaunošanu un diplomātiskajiem sakariem, pp. 160‑161; Pagātne nākotnē: 1940. gada notikumu izvērtējums. Ž. Ozoliņa. (red.). Rīga: SKDS, 2005, p. 10]. Thus, Latvian diplomats abroad for fifty years maintained the claim for the state of Latvia, and this fact is essential in the context of the continuity doctrine. In view of the fact that in 1990 Latvia’s independence was restored on the basis of the continuity doctrine, the actions of the highest state officials abroad during the period of state occupation are also binding to the legislator. 13.2. During the period of Latvia’s occupation the diplomatic and consular missions in the Western countries in their actions were guided by the pre-occupation legal acts. They were still in force also following the occupation of Latvia. Due to objective reasons the application of the Nationality Law, as well as other legal acts – The Consular Regulations of 7 December 1935, the Instruction of Consular Service of 10 September 1936, the Law on Travelling Passports of February 1936, the Instructions under the Law on Travelling Passports of 28 May 1936. Often the consular representatives of Latvia had to act in the spirit of the respective state laws, however, adapting to such circumstances, which were impossible to predict at the time when the respective legal acts were drafted, i.e., before the occupation (see the opinions of A. Lerhs and I. Ziemele in the case materials, vol. 6, p.104 and vol. 7, p. 38). During the occupation period the missions abroad could not apply those legal provisions which envisaged the subordination, connection and cooperation of the missions with the state institutions within the territory of Latvia – the Ministry of Foreign Affairs, the Ministry of Interior, as well as regulated travel to and from the territory of Latvia (see A. Lerhs opinion in the case materials, vol. 6, p. 103). For example, paragraph 2, 3, 4, 5, 6, 8, 21, 34, 39, 53, 54 and 70 of the Instruction under the Law on Travelling Passports, Article 13 of the Law on Travelling Passports, as well as Subparagraph 5.d of paragraph 101 of the Consular Service Instructions could not be fully or partially applied (see 1936. gada 28. maija Instrukcija pie Likuma

par ārzemju pasēm // Valdības Vēstnesis, no. 132, 15 June 1936, and 1936. gada 10. septembra Konsulārā dienesta instrukcija // Valdības Vēstnesis, no. 208, 14 September 1936). Thus, those legal acts which regulated issues of Latvian citizenship and registration of citizens de facto became invalid. The registers of diplomatic missions in those countries, where the missions of Latvian state were found or where the validity of Latvian travelling passports was extended, became the only registers, which continued registering Latvian citizens. 13.3. During the years of exile for the refugees – Latvian citizens who had come to other states – it was important to obtain Latvian travelling passport from the diplomatic and consular missions of their state. When residing in their countries of residence and also in order to leave the refugee camps, a document proving the nationality was needed, and for Latvian citizens a citizen’s travelling passport could serve best of all as such a document (see A. Lerhs’s opinion in the case materials, vol. 6, p. 104). The archive materials confirm that the registration was very widespread among Latvians residing abroad, especially during the first years of exile. Great distances between the refugees’ places of residence and Latvian missions frequently made it difficult to receive the Latvian travelling passport; however, Latvian citizens tried to overcome these difficulties. The practice of forwarding the documents necessary for obtaining the passport to the missions by mail was also widespread. Due to objective reasons it was difficult to verify the belonging of persons to the Latvian citizenship. During the war many persons had lost their domestic passport, therefore the following were recognised as documents proving citizenship – a birth certificate, for the widowers – the spouse’s death certificate, for the divorcees – a court judgment or equivalent documents certified by a notary in case the originals were not available (see A. Lerhs’s opinion in the case materials, vol. 6, p. 107). In separate cases the fact that a person had been a citizen of Latvia could be certified with, for example, testimonies provided by witnesses. The documents held at the archive of the Ministry of Foreign Affairs show that the missions, acting under such extraordinary circumstances, made entries in their registers on issuing travelling passports, on extending their validity and on collecting the respective state duties. Likewise, the voluminous correspondence with some private persons allows concluding that prior to issuing the passport the provided data were verified. Thus, for example, it follows from the materials of the case, that missions registered the extension of the validity of the passport both in the cards of individual persons and in accordance with paragraph 30 of the Instruction under the Law on Travelling Passports – special registers of issuing and extending the validity of passports (see the case materials, vol. 6, pp. 124‑126). The aforementioned is evidence that the issuing and extending the validity of travelling passports was one of the most important functions that the state realised during the period of occupation in Latvian missions abroad. The travelling passports were issued in accordance with Latvian legal acts. For example, citizens filled out questionnaires intended for the persons who register with Latvian missions abroad. The questionnaires contain excerpts from both the Law on Travelling Passports and the Consular Regulations (see the case materials, vol. 6, pp. 127, 132‑135 and 139‑140). The citizens were informed about the necessity to extend the validity of the passport regularly. At the same time the missions sometimes refused to exclude persons from the body of citizens, if this question did not fall within their jurisdiction (see the case materials, vol. 6, p. 145).

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Even though the missions tried to abide by Latvian legal acts, they had limited possibilities to verify whether all the information provided to them concerning the issuing or the extending the validity of travelling passports was true. For example, it is mentioned in a letter by Ēriks Žilinksis, the Secretary of the Office of the Embassy in London of April 6, 1979 to the Ādolfs Šilde, the representative of Latvian interests in the German Federative Republic, that all applicants had to submit a questionnaire for applying for a passport with a photo, as well as documents proving the belonging to Latvian citizenship. “We do not want to be pedants, however, in these times special effort must me made not to lose the trust of friendly foreign states into our consular activities.” Likewise, the letter points out: “We try to be as liberal as possible, but we would not want to see the Latvian passport becoming, as it were, flag of convenience” (A. Lerhs’s opinion in the case materials, vol. 6, p. 107). The archive materials of the Ministry of Foreign Affairs allow to conclude that many countries, including the USA, England, Australia, Denmark, France, the Netherlands, Norway, Spain, Finland, the German Federative Republic and Sweden recognised Latvian travelling passport as a valid travelling document (see the case materials, vol. 6, pp. 136, 137 and 156). The fact that Latvia’s citizenship was retained during the period of unlawful occupation of Latvia was especially significant from the perspective of state continuity. In this way a real legal link with the state of the pre-occupation time was ensured (see I. Ziemele’s opinion in the case materials, vol. 6, p. 37). 13.4. To establish the way the institute of Latvian citizenship evolved, the Constitutional Court has to assess whether during the period of the occupation of the state there were grounds to allow the formation of dual citizenship for Latvian citizens in exile. With the unlawful occupation extending longer, the de jure existence of Latvia became more threatened. With the vanishing of hope to restore the independence of Latvian state soon, as well as because of practical daily considerations, more and more exile Latvians acquired the citizenship of the country of their residence (see A. Lerhs’s opinion in the case materials, vol. 6, p. 105). For example, Latvia’s mission in Great Britain, headed by K. Zariņš, extended the validity of Latvian travelling passport even in those cases when the person himself admitted that he had acquired the citizenship of another state. Thus, it is noted in a letter of the mission: “the Embassy received your letter of 10 October this year, accompanied by your Latvian travelling passport No. 08939 LS and note that due to your admittance into the English citizenship this passport has become invalid. In this respect the Embassy finds it necessary to explain that the English law does not require this, on the contrary, it allows dual citizenship. Therefore we would like to ask, whether with the transfer into the English citizenship you intend to sever ties with the idea of the Latvian state, since we regard the Latvian passport first and foremost as the symbol of our national unity. We do not think that you intend to sever these ties because of the passport duty, which is, after all, only 2/- per month. Therefore we think that you will reconsider this issue and will continue to hold your Latvian passport” (the case materials, vol. 6, p. 152). Also the letter of 28 May 1956 notes: “the Embassy is honoured to confirm the receipt of your letter of 27 May of this year and your Latvian travelling passport. In this respect we take the liberty to indicate that usually with the transfer into English nationality, compatriots do not sever their ties with the Latvian state, but continue to hold their Latvian passports. It is hard to predict the course of events in these difficult times, and it is always safer to stay with one’s own nation” (the case materials, vol. 6, p. 154).

In those circumstances Latvian missions, indeed, had to act in a way so as to ensure the preservation of the state as much as possible, therefore formal implementation of the Nationality Law became impossible. The application of the pre-occupation legal acts had to be subordinated to the assessment of the interests of the state as to their merits, considering the political and historical reality (see: I. Ziemele’s opinion in the case materials, vol. 7, p. 38). Thus, dual citizenship, which formed under the conditions of state occupation, cannot be regarded as unlawful. The Constitutional Court recognises that the rules of Latvian legal acts, including the Nationality Law, had to be adjusted, in view of the situation of occupation and the interests of the state. Formal interpretation and application of these legal provisions would have been inconsistent with the interests of the Latvian state during the period of unlawful occupation. 14. It is noted in the application that the persons who under the conditions of occupation were forced to leave Latvia and acquire the citizenship of another state could rely upon the provisions of the Decision of 27 November 1991. Consequently the Constitutional Court will establish, under what conditions and with what mandate the Supreme Council could impact the body of Latvian citizens, which had developed in accordance with jus sanguinis principle during the occupation. 14.1. The Saeima indicates in its written answer that the Supreme Council, in view of the procedure for its election, had the power only to identify the body of Latvian citizens in accordance with the regulation of the Nationality Law. Thus, essentially, the Decision of 27 November 1991 was adopted outside the framework of its jurisdiction, because contrary to the Nationality Law envisaged the introduction of the dual citizenship institution. The Constitutional Court has recognised that the Supreme Council was elected in only partially free elections and did not have the jurisdiction to decide upon all issues. It expressed the political will of not only citizens of Latvia, but also that of other inhabitants of Latvian SSR However, the Supreme Council chose the legal platform of Latvia of 18 November 1918. Considering the right of Latvian citizens envisaged in Article 2 of the Satversme to decide all most important issues of the state and on the basis of the continuity doctrine, the Supreme Council adopted the Declaration of Independence. With the moment of adopting this Declaration, the Supreme Council undertook to ensure the actual restoration of the state independence (see the judgment of the Constitutional Court of 29 November 2007 in the case no. 2007-10-0102, paras. 61.2. and 61.3). The Supreme Council which was elected in 1990 on the basis of the laws of the occupation power, was only an institution of the transition period (see Ziemele I., p. 35). So a question can be advanced whether it had the jurisdiction to decide on Latvia’s independence (see Celle O. 4. maijs un trimdas latvieši // 4. maijs. Rakstu, atmiņu un dokumentu krājums par Neatkarības deklarāciju. Rīga: Fonds Latvijas Vēsture, 2000, p. 117). Neither did Latvian society hold a unified attitude towards the Supreme Council and its powers [see, for example, Jundzis T. Vēsturiski politiskā situācija laikā, kad tapa 4.maija Deklarācija (1990. g. marts – maijs); Latvijas Republikas pilsoņu kongresa 1990. gada 1. maija rezolūcija „Par LPSR Augstāko padomi” // 4. maijs. Rakstu, atmiņu un dokumentu krājums par Neatkarības deklarāciju. Rīga: Fonds Latvijas Vēsture, 2000, pp. 38‑41 and 377‑378]. However, it cannot be denied that an objective necessity for an institution which would restore the statehood of the Republic of Latvia had appeared. The Supreme Council was such an institution. Even though its constitutional functions were limited,

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it, nevertheless, had the jurisdiction to ensure that the core of legitimate Latvian statehood was fully restored. 14.2. The preamble of the Declaration of Independence provides the particulars of the doctrine of the Latvian state continuity and sets the duty for the institutions of state power to abide by this doctrine and not to deviate from it. Likewise, the exposition of the historical facts and their legal assessment, which substantiates the continuity doctrine and is included in the preamble, is binding to the institutions of state power (see: Judgment of 29 November 2007 by the Constitutional Court in the case No. 200710-0102, para 64.2.). The Supreme Council had the task to do the necessary preparatory work to renew the functioning of Article 6 of the Satversme, i.e., to hold elections of the the Saeima. The preparation and holding of these elections should be recognised as the last stage in de facto restoration of Latvia’s independence. When adopting both the Decision of 15 October 1991 and the Decision of 27 November 1991 the Supreme Council had the duty to ensure the continuity of Latvian citizens’ rights. The Decision of 27 November 1991 was the basis, so that the persons residing abroad, who during the period of occupation had acquired a citizenship of another state, could register as citizens of Latvia and receive the personal identity number, to realize the sovereign power of the nation and to participate in the elections of the 5th Saeima. Thus, one can agree with the Petitioner that the principle of the continuity of citizenship envisages the legal duty of the state to the extent possible to reinstitute the rights of those citizens who had them prior to the unlawful occupation of the state. At the same time it must be noted that in the context of the continuity doctrine the state does not have the duty to register as citizens all persons, who were the citizens of this state, before it de facto lost its independence, and the descendants of such persons. In this respect the claim of state continuity is essentially political in its nature (see the opinion of Berita Aavikso, a lecturer at the Constitutional Law Department of the Tartu University in the case materials, vol. 7, p. 30). The transcripts of the sessions of the Supreme Council show that citizenship was one of the most discussed issues. Latvia’s independence de facto was restored on 21 August 1991, however, the procedure for identifying the body of Latvian citizens was not defined at the same time. On 31 July 1991 the Supreme Council adopted Decision no. 129 “On Establishing a Working Group for Drafting the New Wording of the Satversme of the Republic of Latvia and the Conception of the Republic of Latvia Citizenship”. The Supreme Council tried to put the procedure for defining the body of citizens into the draft law “On Citizenship”; however, the working group established for the drafting of this law could not reach a compromise on this issue. The possibility to adopt the Law “On Citizenship” was not supported by the Faction of the Popular Front at the Supreme Council, since there was an opinion that the Supreme Council by adopting a new citizenship law would derogate from the concept of renewing the Republic of Latvia of 1918. Some deputies even left the Popular Front faction, because they did not agree with the decision that the Supreme Council had the authority to pass the citizenship law [see Latvijas tiesību vēsture (1914–2000). Rīga: Fonds Latvijas Vēsture, 2000, pp. 461 and 462]. Thus, the Constitutional Court concludes that the Supreme Council was aware of the limits to its competence which were defined in the Declaration of Independence. It did not adopt a new citizenship law, but based itself upon decisions which abided by both the Nationality Law and the citizenship continuity principle.

14.3. To assess whether no deviations from the authorisation by the Declaration of Independence occurred, the Constitutional Court has to verify whether the definition of the body of citizens with the Decision of 27 November 1991 did not exceed the competence of the Supreme Council. Following the unlawful occupation and annexation of Latvia the Presidium of the Supreme Council of the USSR on 7 September 1940 adopted the Decree “On the Procedure of Acquiring the Nationality of the USSR for the citizens of the Lithuanian, Latvian and Estonian SSR”. In accordance with paragraph 1 of this Decree the citizens of Latvian SSR, among others, had to be regarded as the citizens of the USSR. Thus, under the conditions of occupation, the register of Latvian citizens did not function and had to be renewed after the restoration of state independence. However, Latvian citizenship continued to exist and to transfer to next generations and pass to the next generations in accordance with the jus sanguinis principle. It can be concluded from the aforementioned that all those persons, who were the citizens of the state prior to its occupation, did not lose Latvian citizen during this period. An integral element of the continuity doctrine was not only the identification of those citizens who lived in Latvia but also the application of the jus sanguinis principle to those citizens who as the result of both occupations had had to leave Latvia. Moreover, in the process of restoring citizenship it was important to take into consideration the practice of Latvian consular missions that had lasted for years in applying the national legal norms, and also the fact that some groups of Latvian citizens had lost all ties with their homeland for the whole period of occupation. Thus, Latvia, to the extent possible, had to restore the rights of all its citizens. In accordance with paragraph 2.1. of the Decision of 15 October 1991 the persons who belonged to the body of Latvian citizens and who had its citizenship on 17 June 1940, as well the descendants of such persons who at the moment when this Decision came into force lived in Latvia, registered after 1 July 1992 and received the citizens’ passports in accordance with procedure set by the Council of Ministers of the Republic of Latvia. paragraph 2.2 of the Decision, in its turn, provided that the persons, who belonged to the body of Latvian citizens and who had its citizenship on June 1940, as well the descendants of such persons, who at the moment when this Decision came into force did not reside in Latvia or who were citizens of other states, could register at any time and, upon presenting the expatriation permit, receive the citizen’s passport in accordance with the procedure set by the Council of Ministers of the Republic of Latvia but paragraph 2.3 provided that a Latvian citizen could not simultaneously be also a citizen or a national of another state. Latvian citizens and Latvian organisations abroad castigated the adoption of the Decision of 15 October 1991 since this Decision laid down the prohibition of dual citizenship (see A. Endziņš’s opinion in the case materials, vol. 7, p. 12. and Egils Levits’s letter to Gunārs Meriovics in the case materials, vol. 6, pp. 32‑35). The persons living in exile objected both to the fact that a Latvian citizen’s passport could be received only upon presenting the expatriation permit, and also against the provision that a citizen of Latvia could not simultaneously be a citizen or a national of another state. Consequently, the Supreme Council adopted the Decisions of November 1991, providing that the paragraph 2.2 of the Decision of 15 October 1991 on the presentation of expatriation permit and paragraph 2.3 did not apply to Latvian citizens and their descendants, who, under the conditions of the occupation of their fatherland, while being outside Latvia, had acquired the citizenship of another state in the period from 17 June 1940 to 21 August 1991.

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14.4. Both the Decision of October 15 1991 and the Decision of 27 November 1991 were aimed at setting up the Population Register and preparing for the Saeima elections. I.e., after the occupation of Latvia is was impossible to apply the pre-occupation normative legal acts pertaining to the registration of citizens. The Ministry of Interior, which in this field was the supervisory and leading state institution, had also stopped functioning. Thus, considering also the task set in the Declaration of Independence, the registration of citizens was an objective necessity. The Population Register was created and later the registration of the voters for the Saeima elections was performed in conformity with the possibilities and requirements of the time, thus concluding the period, in which the transition to de facto restoration of the state independence occurred. Formal abiding by the Nationality Law and disregarding the practice that had evolved during occupation would lead to the conclusion that those persons who under the conditions of occupation had acquired the citizenship (nationality) of another state had lost the rights of Latvian citizens, including the right to elect the Saeima. The “exclusion” of the citizens in exile prom participation in the realisation of sovereign state power would weaken the legitimacy of the newly elected Saeima, and such an action would be inconsistent with the principle of the sovereignty of the nation. The restriction of the competence of the Supreme Council with regard to expanding the body of citizens should rather be interpreted as a prohibition to grant citizenship to those persons who had entered Latvia during occupation, not as a prohibition to decide about the persons who already were Latvian citizens. It was indeed assessed from this aspect, indicating that Latvian citizenship in accordance with the Nationality Law had continued to exist uninterruptedly. The citizenship of the USSR unlawfully imposed upon the citizens of Latvia is invalid, but the citizens of the USSR, who had entered Latvia, have not acquired Latvian citizenship (see Levits E. Valsts atjaunošanas koncepcijas attīstība (personiskas piezīmes) // 4. maijs. Rakstu, atmiņu un dokumentu krājums par Neatkarības deklarāciju. Rīga: Latvijas Universitātes žurnāla „Latvijas Vēsture” fonds, 2000, p. 267). Thus, the restriction of the jurisdiction of the Supreme Council with regard to the citizenship issue was aimed mainly at not allowing the automatic granting of citizenship to those persons, who had entered the country during the unlawful occupation. The Constitutional Court concludes that neither the Decision of 15 October 1991, nor the Decision of 27 November 1991 should be considered as constituting a restriction of the power of the legally established Saeima to decide on the citizenship issue in the future. The Saeima has directly confirmed this by its actions, by adopting the Citizenship Law on 11 August 1994. Thus, the Decision of 27 November 1991 is consistent with the continuity doctrine which follows from Article 2 of the Satversme and the Declaration of Independence. 15. To assess the compatibility of the impugned provisions with the principles of legal certainty and proportionality, the historical context in which these provisions were adopted and their content must be established by applying the methods of interpretation of legal provisions. The fact that the legislator had the duty to implement measures to compensate, to the extent possible, for the damages caused by the previous regime and to ensure justice, must be also taken into consideration (see the judgment of the Constitutional Court of 25 May 2003 in the case no. 2002-12-01, para. 1 of the motives part).

15.1. The impugned provisions were adopted by the 5th Saeima, which was elected on 5 and 6 June 1993. 23 lists of candidates were registered for the Saeima elections, including in total 879 candidates. 1 118 316 voters or 89.9 percent of the Latvian citizens with the right to vote participated in the elections. The number of citizens, who voted abroad, was 18 413 (see http://web.cvk.lv/pub/public/27483.html, accessed on 22 April 2010). From among Latvian citizens who had returned to Latvia after time spent in exile 17 members were elected to the 5th Saeima, and they belonged to different fractions. The citizenship issue was topical both before the elections and afterwards – the commitment to draft and adopt the Citizenship Law was included in the report on the constitution of the Cabinet of Ministers and the declaration on the intended activities of the Cabinet. The debates about the Citizenship Law started already during the session of 23 September 1993 of the 5th Saeima, when the decision was taken to submit the prepared draft law to the committees (see http://www.saeima.lv/steno/st_93/st2309. html, accessed on 22 April 2010). During the further readings of the Citizenship Law – on 25 November 1993 and 9 and 21 July 1994 – again extensive debates on various issues of the Citizenship Law took place. The impugned provisions as a proposal for the draft Citizenship Law were submitted by the members of the Saeima of the Latvian National Independence Movement faction for the third reading. The proposal was to express Article 10 of the draft law in the following wording: “The citizens of the Latvian state and their descendants who in the period from 17 June 1940 to 21 August 1991, escaping from the terror of the USSR and German occupation regime, left Latvia as refugees, as well as were deported or because of these reasons have been unable to return to Latvia and during this time have become naturalised in foreign states, retain the right to register into the Population Register as citizens of Latvia and following the registration enjoy the rights of a citizen and fulfil the citizens’ obligations in full, if the registration occurs by 1 July 1995. If these persons register after 1 July 1995, they shall renounce the citizenship of the other state.” The Legal Affairs Committee rejected the proposal to add a new article to the law and accordingly placed these provisions in the transitional provisions. The transcript of the Saeima meeting of 21 June 1994 allows to conclude that the Legal Affairs Committee introduced also editorial amendments to the impugned provisions. An essential correction was the replacement of the numbers and words “21 August 1991” with the numbers and words “4 May 1990”. Likewise the Legal Affairs Committee rejected the proposal of the members of the Saeima from the Democratic Party faction to replace the words “if the registration occurs by 1 July 1995” with the words “if the registration occurs by the day when this law enters into force”, as well as the proposal of the same faction to express the last sentence in the following wording: “if the respective persons register after this law has come into force, they shall renounce the citizenship of the other state”. Since the factions did not maintain the demand to submit their proposals to a vote, a separate vote regarding the impugned provisions was not held (see the transcript of the session of the 5th Saeima of 21 June 1994 http:// www.saeima.lv/steno/st_94/st2106.html, accessed on 22 April 2010). The case materials lead to the conclusion that the Citizenship Law was meticulously assessed, evaluating various alternatives of regulation, but the impugned provisions did not cause disputes among the members of the Saeima and reflected the legislator’s will. Moreover, the Saeima, in adopting the impugned provisions, had no possibility to

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influence the situation, when other states, the citizenship of which persons, who had left Latvia, had acquired during occupation, in their laws or in their practical application did not recognise the institute of dual citizenship. 15.2. Without questioning the actions of the legislator, the Constitutional Court must establish whether the persons who had the right to renew the Latvian citizen’s rights were identified in conformity with the requirements of the continuity doctrine. To establish this, an interpretation of the impugned provisions must be performed. 15.2.1. In the interpretation of the impugned provisions the fact that Latvian citizens had been forced to and for a long time resided in other states simultaneously retaining their identity with the Latvian statehood must be taken in consideration. Thus, the impugned provisions must be applied not only to those Latvian citizens, who went to other countries as refugees or were deported, but also to those, who later, during the occupation period, left Latvia because of other reasons. The opinion provided by OCMA also leads to the conclusion that the provision of paragraph 1 of the transitional provisions of the Citizenship Law “and have become naturalised during this time in a foreign state” must be interpreted widely, providing the opportunity to renew Latvian citizen’s rights also to those citizens’ descendants, who acquired the citizenship of another state not by way of naturalisation (see the case materials, vol. 6, pp. 3 and 4). Thus, formal approach in applying grammatical interpretation is not permissible. Moreover, it can be concluded form the case materials that the impugned provisions were interpreted in such a way that by the specified date the persons living abroad had the obligation only to fill in a registration questionnaire. The inclusion of the person in the Population Register itself could occur also after the specified date, and such a case the respective person could retain dual citizenship. The case-law of the administrative courts is also consistent with the approach established in the decisions of the Constitutional Court that the legal provisions that pertain to the acquisition of citizenship should not be applied formally. I.e., for an individual the acquisition of a citizenship is usually an important issue in life, and therefore a situation when the Latvian citizenship is denied because of formal considerations and circumstances that have not been clarified in full, should not occur (see the decision of the Constitutional Court of 21 August 2007 to discontinue the proceedings in the case no. 2007-07-01, para. 19). Thus, for example, administrative courts, examining concrete cases, verify, whether persons have not been intentionally mislead or because of some other reasons have not made mistakes in filling out the form of primary registration regarding the registration for citizenship before the term defined by the impugned provisions (see the case materials, vol. 6, pp. 63‑97). 15.2.2. When assessing the impugned provisions in relation with other provisions of the Citizenship Law, it can be concluded that they constitute lex specialis with regard to Article 2 of the Citizenship Law. Article 2 provides that a citizen of Latvia is anyone who has been its citizen on 17 June 1940, as well as descendants of these persons who have registered in accordance with the procedure set out by the law. Those persons, who have obtained the citizenship of another state after 4 May 1990, are an exception. Thus, both all those persons, who were Latvian citizens on 17 June 1940, and the descendants of such persons, are recognised as Latvian citizens without time limitations. Even though the Petitioner does not contest the requirement to register per se, it is important to establish the significance of the fact of registration in the context of restoration of citizen’s rights.

The Constitutional Court has already indicated that during the period of occupation it was impossible to apply those legal acts which regulated the issues of registering Latvian citizens and the identification of the body of citizens initially was entrusted to the Supreme Council. Considering the situation that had evolved historically with regard to the issue of the citizens’ registration, it would be reasonable to assume that in the process of restoring the citizen’s rights the person himself has a certain duty to participate. A situation, when a person would be automatically, perforce registered in the Population Register, would be inadmissible. Thus, in this case registration was an act “awakening” the citizens’ rights. In the context of identifying the body of citizens, a person’s registration at a consular institution should be distinguished from the registration in the Population Register, because the Consular Register and the Population Register have different legal statuses and different purposes of activities. During the period of occupation the basic function of the Consular Register was to provide valid travel documents to Latvian citizens and to maintain the idea of the Latvian state. Moreover, many Latvian citizens had no access to Latvian missions. The aim of the Population Register, in its turn, is to develop a unified and universally accessible system for recording inhabitants. Its main task is to ensure the recording of Latvian inhabitants, by including and updating information about them in accordance with the procedure set out by the law. Persons’ voluntary registration with Latvian consular services in foreign countries with the aim of extending the validity of the Latvian travelling passport cannot be equalled with the registration which had to be performed with the OCMA in accordance with the procedure set out by legal provisions. This was the procedure, which the legislator had set out to identify the body of citizens, and thus the expressed argument that a person enjoys in full all the citizen’s rights also without registering in the Population Register, is inconsistent with the legislator’s will. Also the Administrative District Court and Administrative Regional Court in applying the impugned provisions has recognised as ungrounded the Petitioner’s argument that the registration with the Latvian consular services abroad with the aim to extend the validity of the travelling passport can be equalled with the registration which at that time was carried out by Latvian embassies abroad and by the OCMA in Latvia (see the case materials, vol. 2, pp. 27 and 151). The registration cannot be viewed as a simple technical, administrative procedure when the population register of a state is renewed after a 50 years’ long unlawful occupation. The legislator also had to take into consideration this actually very complicated situation. The documents of the case indicate that Latvian travelling passports were not always considered as completely valid personal identity documents. “In many of these passports the nationality column has not been filled out because the person at present cannot claim Latvian citizenship […] the travelling passports of the Republic of Latvia issued in the post-war period cannot be regarded as documents directly proving the RL citizenship” (16 October 1992 letter of the Senior Expert of the Consular Department of the Ministry of Foreign Affairs to the Director of the Department of Citizenship and Migration, the case materials, vol. 6, pp. 160 -161). Registration per se neither grants nor deprives a person of Latvian citizenship. Any person, who was a Latvian citizen in the pre-occupation period, independently of the place of residence, is considered to be a citizen of Latvia in conformity with the continuity doctrine and Article 2 of the Citizenship Law. However, the legislator

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had no right to recognise these persons arbitrarily and unilaterally as the citizens of the state, ignoring their legal relationships with other states. The manifestation of a personal will is essential in the case of restoring the citizen’s rights. During the occupation and especially at the beginning of the 1990s the issuing of Latvian travelling passports was encumbered by legal uncertainty. For example, the materials of the Case allow concluding that the travelling passports were issued not only to persons, who had emigrated from Latvia, but also to permanent residents of Latvia, who, being in foreign countries, had lost the travel documents of the former USSR or quire simply had expressed a wish to acquire such a passport. Moreover, it was not always possible to verify, whether the respective persons were indeed Latvian citizens or when they had entered Latvia for permanent residence. Even as late as in 1992 Latvian travelling passports were issued also to such persons, who could not claim Latvian citizenship (see the case materials, vol. 6, p. 160). Even though the general interest in registration was large, also such persons, who – on the contrary – wanted to renounce Latvian citizenship in order to acquire the citizenship of another state or to receive a confirmation that they were not Latvian citizens – approached Latvian embassies. Since the procedure of renouncing was not fully regulated, the persons, renouncing their citizenship, wanted to keep their travelling passports (see the case materials, vol. 6, pp. 179‑180). Thus, the introduction of the registration measure with the aim to reinstitute the rights of Latvian citizens was substantiated. No citizen of Latvia who received citizenship by birth has been deprived of the right to register as the citizen of Latvia at any time. Thus, the Petitioner’s argument about the infringement of the doctrine of state continuity is ill-founded. 16. The Petitioner has noted that citizenship must be viewed as one of the human rights and that the impugned provisions are inconsistent with the principles of proportionality and legal certainty following from Article 1 of the Satversme. 16.1. The case-law of the Constitutional Court recognises that from the concept of democratic republic included in Article 1 of the Satversme the obligation of the state to abide by a series of fundamental principles of a state governed by the rule of law follows, including the principles of proportionality and legal certainty [see the judgment of 10 June 1998 in the case no. 04-03(98), the motives part, and the judgment of 24 March 2000 in the case no. 04-07(99), para. 3 of the motives part). Article 1 of the Satversme does not prohibit the legislator to introduce amendments to the existing legal regulation (see the judgment of the Constitutional Court of 16 December 2005 in the case no. 2005-12-0103, para. 24). However, when amending the legal regulation, the legislator has no right to infringe the fundamental rights of a person and in this concrete case – also the principle of citizenship continuity. In assessing the compatibility of a certain legal provision with the legal principles that follow from the constitutional fundamental values of the state defined in Article 1 of the Satversme, the fact that these principles may manifest themselves differently in different fields of law must be taken in consideration. Also the nature of the contested provision, its link with other constitutional provisions and place in the legal system necessarily influences the control realised by the Constitutional Court. The legislator’s discretion in regulating a concrete issue can be broader or narrower, and the Constitutional Court must assess whether the scope of discretion exercised by the Saeima conforms to the one defined in the Satversme (see the judgment of the Constitutional Court of 8 November 2006 in the case no. 2006-04-01, paras. 15.2. and 15.3).

In the field of regulating citizenship the state has a wide discretion (see the decision of the Constitutional Court of 21 August 2007 to discontinue the proceedings in the case no. 2007-07-01, para. 8). However, this discretion cannot be unlimited. In the framework of the continuity doctrine the legislator has the obligation to ensure that no person, who retained Latvian citizenship during the time of occupation, would be excluded from the body of citizens, and also that the requirements set for the reinstitution of citizenship were proportional. Thus, the Constitutional Court must assess whether the certainty that persons’ developed with regard to the possibility of retaining dual citizenship due to the Decision of 27 November 1991 exceeded the legislator’s discretion in regulating citizenship. It means that the Constitutional Court has to verify, whether the impugned provisions do not violate a person’s right to the citizenship of a concrete state. 16.2. The application indicates that citizenship or a person’s link with the state is one of the human rights, since it is included in Article 15 of the Human Rights Declaration and consequently in Article 89 of the Satversme. The setting of such a term, after the expiry of which a person, by registering as a Latvian citizen has to renounce the citizenship of another state, is said to be equal to deprivation of citizenship or even deprivation of citizenship en masse or for a group of persons, which can be identified by a specific feature. The Constitutional Court notes that the Human Rights Declaration is an authoritative source of human rights and that the content of its provisions has developed over time and has served as the basis for the development of the principles and customs of international law. However, in order to establish precisely the scope of Article 15 of the Human Rights Declaration which is binding to the state in accordance with Article 89 of the Satversme an additional assessment is needed. Article 15 of the Human Rights Declaration provides that everyone has a right to citizenship. However, it does grant to a person a right to the citizenship of a concrete state. Even though the content of the Article has changed over time and the development of international law has influenced the discretion of states with regard to citizenship issues, its content is still limited. Doctrine indicates that citizenship is not a natural or inalienable right, because it essentially follows from the existence of a sovereign state (see Lauterpacht H., International Law and Human Rights, Archon Books, 1968, pp. 346‑350). At present Article 15 of the Human Rights Declaration contains three main elements: the right to citizenship or avoidance of statelessness; the prohibition to deprive arbitrarily of citizenship (including deprivation en masse) and a person’s rights to change his citizenship. Deprivation of citizenship because of political or other discriminatory considerations is considered to be an arbitrary deprivation of citizenship [see Ziemele I., Schram G. G., Article 15, Alfredsson G., Eide A. (eds.), The Universal Declaration of Human Rights. A Common Standard of Achievement, Martinus Nijhoff Publishers, 1999, pp. 297‑324, at p. 303]. Also such deprivation of citizenship which results in statelessness is considered to be arbitrary (see Chan M.M.J., The right to a nationality as a human right / The current trend towards recognition, HRLJ, 28 February 1991, vol. 12, no. 1‑2, p. 3). The prohibition of discrimination cannot be construed widely, for example, the language proficiency requirement is not considered discriminatory. In addition to this, consensus in two following fields can be traced: in the gender equality, which means the decreasing of statelessness in cases of marriage; and more pronouncedly – the obligation of a state to grant citizenship to every child, who has been born in its territory and otherwise would become a stateless person (see: Chan M.M.J., p. 13).

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16.3. The Constitutional Court has no grounds to conclude that the persons to whom the impugned provisions apply, would belong to any of the categories mentioned above and consequently would fall within the scope of Article 15 of the Human Rights Declaration. The Decision of 15 October 1991 shows that the obligation to register was equally applied not only to persons living abroad but also to those persons whose place of residence was within the territory of Latvia. A time-limit was set at the very beginning also for the registration of Latvia’s inhabitants. In this way persons after fulfilling the obligation to register defined by legal acts could enjoy the citizen’s rights and fulfil the citizen’s duties. Moreover, de facto restoration of state independence could be implemented only with the identification of the body of citizens. Also the exile Latvians, in order to participate in the Saeima elections, had to register and acquire a personal identification number. The materials of the case show that the registration of Latvians living abroad was performed by embassies. If a person wanted to receive a personal identity number and a citizen’s passport of the Republic of Latvia, he had to fill out the registration form. After that, when a personal identity number had been already granted to the person, the respective embassy issued to him a document “Certification of the citizenship of the Republic of Latvia” (see the case materials, vol. 6, p. 170). This document was the grounds allowing a citizen to participate in the 5th Saeima elections. It also follows from the information provided by CEC that the documents, which gave the right to participate in the elections of the 5th Saeima were the Latvian passport, the USSR passport with a Latvian citizen’s registration mark or a registration form issued by Citizenship and Migration Department of the Republic of Latvia to Latvian citizens residing abroad. Other documents were not acceptable (see the case materials, vol. 6, p. 117). Thus, the statement that persons in foreign countries had been in some way pushed aside or excluded from the implementation of the sovereign power of the nation cannot be recognised as substantiated. Every person who in the period from 1991 to 1993 had received a personal identification number could participate in the elections of the Saeima. Mass media disseminated calls to take part in the elections, placing a special emphasis upon the citizenship issue, the solution of which was equally expected both by those, who were in exile, and by those, who lived in Latvia and had supported Latvia’s independence (see Amerikas latviešu apvienības paziņojums sakarā ar 5. Saeimas vēlēšanām, Diena, 4 June 1993, no. 111, p. 2). The case materials include information both on the registration of Latvian citizens and the issuing of passports (see the case materials, vol. 6, pp. 157‑169). In accordance with paragraph 2 of the Instruction of 11 June 1993 “The Issuing of the Citizens’ Passports of the Republic of Latvia at the Diplomatic Missions and Consular Institutions of the Republic of Latvia Abroad” a citizen of Latvia, who wished to receive the passport, had to be registered in the Population Register. It was no longer possible to extend the validity of the travelling passports of the Republic of Latvia, because these were declared invalid starting with 1 January 1994 (see the case materials, vol. 6, pp. 176 and 177). The Ministry of Foreign Affairs in 1992 and 1993 forwarded to embassies information about the Decision No. 216 of 5 June 1992 which approved the regulations on the passports of the citizens of the Republic of Latvia. The passport forms were sent to all embassies of Latvia, so that citizens’ passports could be issued to Latvian citizens in their countries of residence (see the case materials, vol. 6, pp. 156 and 163).

Thus, it can be concluded that every person, who met the requirements defined in the Decision of 15 October 1991 and the Decision of 27 November 1991, was given the opportunity to register as a citizen of Latvia and to reinstate his citizen’s rights. 16.4. On 2 March 1993 the Supreme Council adopted the decision “On “The Provisional Regulations on the Procedure according to which the Citizens of the Republic of Latvia, who Leave the Citizenship of the Republic of Latvia, Lose the Citizenship of the Republic of Latvia””. This decision approved the procedure, according to which the citizens of the Republic of Latvia, who leave Latvian citizenship, lose the citizenship of the Republic of Latvia. paragraph 3 of the Provisional Regulations envisaged that the Presidium of the Supreme Council had no right to deny to a citizen of the Republic of Latvia the right to leave the citizenship, except for cases, when a citizen expressing such a wish has not fulfilled the obligations towards the state defined in legislation, is put to criminal trial or a court judgment has come into legal force and has to be enforced with regard to this citizen. paragraph 4 of the Regulations, in its turn, envisaged that the applications concerning the citizens of the Republic of Latvia leaving the citizenship should be submitted to the Department of Citizenship and Migration. The citizens of the Republic of Latvia residing abroad could submit the application on leaving the citizenship to the diplomatic missions or consular institutions of the Republic of Latvia, which, in their turn, would forward it to the Department of Citizenship and Migration. The Provisional Regulations mentioned above allow to conclude that the issue of losing citizenship when a person left Latvian citizenship was solved on an individual, not collective, basis. Thus, a concrete group of persons was not deprived of citizenship. The Constitutional Court has no grounds to conclude that persons were deprived of citizenship – especially in view of the previous conclusions about the right unlimited in time to exercise one’s rights defined in Article 2 of the Citizenship Law. Moreover, the subjects of the impugned provisions were not excluded from citizenship en masse. A special legal regulation was established with regard to them for retaining dual citizenship until a concrete date, while with regard to other citizens of the Republic of Latvia, who had acquired the citizenship of another state by way of naturalisation, dual citizenship was not permitted at all. Consequently the impugned provisions do not fall within the scope of Article 15 of the Human Rights Declaration, since their subjects are not stateless persons and they have not been arbitrarily deprived of citizenship, leading to a situation of statelessness. 16.5. In assessing whether persons could develop certainty with regard to dual citizenship in the framework of the doctrine of state continuity, the evolvement of the dual citizenship institution and the practice of the countries in reinstating citizens’ rights must be considered. Internationally dual citizenship, like statelessness, for a long time was regarded undesirable and its prohibition was accepted as a general practice. International treaties were concluded already since the beginning of the 20th century to fight against dual citizenship. Thus, for example, on 12 April 1930 the Hague Convention on Certain Questions Relating to the Conflicts of Nationality Laws was concluded. Its preamble declared: the states parties to the convention are convinced that every person should be a citizen of only one state and recognise that the ideal to be attained is the elimination of not only statelessness, but also of dual citizenship (see the Convention on Certain Questions Relating to the Conflicts of Nationality Laws, The Hague, 12 April 1930,

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http://www.legislationline.org/legislation.php?tid=11&lid=5572, accessed on 22 April 2010). Dual citizenship was considered undesirable from the perspective of the legal policy [see Institut de Droit International, Art. 5 of the Résolutions relatives aux conflits de lois en matiére de nationalité (naturalisation et expatriation), adopted in Venice (1896)]. Various agreements were concluded also in later years to regulate problems connected with dual citizenship. For example, the Council of Europe on 16 May 1963 adopted the Convention on reduction of cases of multiple nationality and military obligations in cases of multiple nationality. Already in the 1970s it was concluded that the number of dual citizenship cases continued to grow for various reasons and that the states were unable to prevent these causes (see Horváth E., Mandating Identity. Citizenship, Kinship Laws and Plural Nationality in the European Union, Kluwer: European Monographs 56, 2008, p. 219). For quite a long time the general attitude of the states and the doctrine of law towards dual citizenship remained negative (see Weis P., Nationality and Statelessness in International Law, Sijthoff & Noordhoff, 1979, p. 199; Verzijl J.H.W., International Law in Historical Perspective, Part V, SijthoffLeiden, 1972, p. 48). Changes in the respective approaches have become apparent only recently, but the discretion of states is quite large. Thus, a person has no subjective right to a dual citizenship but the Constitutional Court has to establish whether such a right can arise when the state reinstates citizens’ rights. Other international practice examples allow concluding that the de facto reinstitution of citizenship, the right of the state to regulate the terms for restoring this status and persons’ rights to renew this status are balance (see Verzijl J.H.W., p. 45). In such cases a free choice is offered – to renew or to reject the possibility to regain the citizen rights, not renewing dual citizenship. The expression of a person’s will is significant, and it overrules the will of the legislator. The doctrine indicates that the state has no right to retroactively impose its citizenship upon its former citizens. An expression of a person’s will is necessary. Moreover, there is no difference between the state’s attempt to impose its citizenship on persons, who reside abroad and once were its citizens, and the attempt to grant its citizenship to persons, who reside abroad and have never been its citizens (see Donner R., The Regulation of nationality in international law, 2nd ed., Transnational Publishers Inc., 1994, pp. 169‑170). The comparison with the practice of such states as Estonia and Lithuania which regained their independence similarly to Latvia and have also strictly adhered to the continuity doctrine also leads to the conclusion that the issue of the permissibility of dual citizenship with regard to those persons, who had to leave the state during occupation, can be regulated in various ways (see EUDO citizenship observatory. Country report: Lithuania. Kūris E., 2009, p. 2, http://eudo-citizenship.eu/docs/ CountryReports/Lithuania.pdf, accessed on 26 April 2010). First it must be noted that dual citizenship in all three Baltic States prior to their occupation was prohibited, and when their independence was restored, this issue was extensively discussed. Likewise, the significance of exile in restoring independence and strengthening of continuity was emphasised in all Baltic States (see Järve P. Estonian citizenship: Between ethnic preferences and democratic obligations. Citizenship Policies in the New Europe. – Amsterdam: Amsterdam University Press, 2007, pp. 47, 48, 53; Kūris E., p. 3). However, the practice of the Baltic States with regard to the permissibility of dual citizenship differs even on the constitutional level. Thus, for example, Article 8(3) of

Estonian Constitution envisages that no one can be deprived of Estonian citizenship, which has been acquired by birth. Abiding by this constitutional principle and on the basis of the Resolution of the Supreme Council of the Republic of Estonia of 26 February 1992 the legal basis for dual citizenship was created. The second part of Article 1 of Estonian Citizenship Law provides that a citizen of Estonia cannot be a citizen of another state, but Article 22, 28 and 29 provide that a person, immediately upon accepting a citizenship of another state, ceases to be an Estonian citizen. It is also admitted that the respective provisions thus far have not been applied and that divergent opinions have been expressed as to their interpretation and application, including by the highest state officials (see B. Aavikso’s opinion in the case materials, vol. 7, p. 29). Article 12(3) of Lithuanian Constitution provides that except individual cases stipulated in the law no one can be simultaneously the citizen of Lithuania and another state. The Citizenship Law of 1991 provided that the Lithuanian citizenship should be preserved for unlimited period of time for those who were Lithuanian citizens before 15 June 1940 and their descendants, but, when registering as Lithuanian citizens, they should renounce the citizenship of another state. Following the adoption of the Constitution the Lithuanian Seimas gradually expanded the circle of those persons, who had the right to retain dual citizenship when being in exile. The Constitutional Court of the Republic of Lithuania declared as incompatible the provisions, which allowed the formation of dual citizenship, since they no longer envisaged individual cases of granting dual citizenship. At present it is admitted that not all the issues pertaining to the citizenship of exile Lithuanians have been completely solved (see: Kūris E., p. 3). The current debates in Lithuania prove that it is possible to set out on the legislative level that the persons, who have acquired Lithuanian citizenship by birth, do not lose it upon acquiring a citizenship of another state. Thus, it can be concluded that a different legal regulation of citizenship, including also dual citizenship, exists in Lithuania and Estonia with regard to persons, who had to leave the country during occupation and acquired citizenship on the basis of the jus sanguinis principle. The introduction of amendments in this field is seen as an issue falling within the legislator’s jurisdiction. It follows both from the international acts and from the doctrine that the issue of dual citizenship is essentially a political one, not an issue to be solved on the basis of legal considerations (see paras. 96‑98 of the Explanatory Report to the European Convention on Nationality of 14 May 1997; Kūris E., p. 4). In those cases when the court has the obligation to examine them, they should be examined, to the extent possible, without interfering with the competence of the legislator who expresses the nation’s will. The Constitutional Court concludes that also at present international law does not envisage a person’s right to a dual citizenship and that the state has the right to define the procedure of registration in those cases when persons renew their citizens’ rights. 16.6. Lastly, the Constitutional Court has to assess the proportionality of the term of registration chosen by the legislator, considering the legislator’s discretion and the subjective interests of a person in retaining a dual citizenship. The application indicates that the term included in the impugned provisions within which persons had the right to register as Latvian citizens, while at the same time retaining the citizenship of another state, is not proportional. The application does not provide a substantiation of this statement. The explanations provided by the Saeima do

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not reveal the considerations either, why exactly this time-limit – 1 July 1995 – was defined by the impugned provisions. In assessing whether the transition to the new legal regulation was not implemented arbitrarily the particular nature of the legal relationships should be considered, as well as whether the amendments to the legal regulation envisaged a lenient transition to the new legal regulation. In this case the impugned provisions with the term defined by them envisaged a moment by which the persons, who could be recognised as the citizens of the Republic of Latvia, could register and could also retain the citizenship of another state. First, the Constitutional Court indicates that the term included in the impugned provisions cannot be assessed in isolation from the Decision of 27 November 1991. I.e., already on the basis of this Decision persons had the right to register as citizens of Latvia, simultaneously retaining also the citizenship of another state acquired under the conditions of occupation. Looking from this perspective, the term, during which a person was given the opportunity to retain the citizenship acquired abroad, was approximately three and a half years. There are no grounds to consider that persons, who really wanted to renew Latvian citizenship, during all this period had no possibility to settle the registration envisaged by the Decision of 27 November 1991 and later by the Citizenship Law. The Saeima, in adopting the Citizenship Law, decided to abide by the historical principle of the prohibition of a dual citizenship. The impugned provisions set out a special legal regime for those persons who had been forced to leave Latvia and had acquired the citizenship of another state during occupation. Thus, the Saeima envisaged a mechanism for ensuring a just transition, to the extent possible, decreasing the adverse consequences caused by the occupation regime. Also the principle of the continuity of citizenship cannot be understood so that it would deny the legislator the right to set a term, after the expiry of which a person, in order to reinstate the rights of Latvian citizen, would have to renounce the citizenship acquired in another state. Moreover, the regulation included in the impugned provisions was the most favourable to a private person out of all proposals that were discussed while the Citizenship Law was prepared. Thus, the Constitutional Court finds no substantiated reasons, why the term set by the impugned provisions – 1 July 1995 – should be declared as having been set arbitrarily or would with obvious disproportionality deny to persons the right to retain dual citizenship. The setting of the term was connected with the legislator’s will to identify the body of Latvian citizens within a concrete period in order to ensure a sustainable development of the state and to regulate essential issues in the existence of the state. Thus, for example, the legislator had to implement the land and property reform, had to set up the civil service and the armed forces, had to create the taxation policy, an also renew international cooperation, inter alia, in visa issues. An individual, being aware of the discretion that the Saeima had with regard to the citizenship issue, could not develop a certainty that the regulation included in the Decision of 15 October 1991 or the Decision of 27 November 1991 would remain unchanged. Neither the impugned provisions, nor Article 2 of the Citizenship Law impose disproportional obligations upon persons, who want to register as Latvian citizens. For example, the requirements of the Repatriation Law were not applied to this group of persons. In the current situation the only requirement is to choose Latvian citizenship by registering with OCMA and renouncing the citizenship of another state.

The impugned provisions are consistent with Article 1 of the Satversme, since the legislator has taken into consideration the legal certainty of persons in setting a proportional transitional period for retaining dual citizenship, as well as has envisaged a possibility to register to reinstate one’s rights of a citizen without time limitations. 17. The Saeima has several times examined the issue of the regulation of the institute of dual citizenship at least with regard to the persons affected by the impugned provisions. For example, on 1 December 2005 several members of the Saeima submitted a draft law “Amendments to the Citizenship Law” (reg. no. 1456). The respective draft law, which was rejected and was not transferred to committees, envisaged a number of amendments to the Citizenship Law, inter alia, including to Article 1 of the transitional provisions, expressing it in the following wording: “Citizens of Latvia and their descendants who, during the period from 17 June 1940 to 4 May 1990 left Latvia as refugees, in order to escape the terror of the occupation regimes of the USSR and Germany, were deported, or due to the aforesaid reasons have not been able to return to Latvia and have become naturalised during this time in a foreign state, retain their right to register in the Population Register as citizens of Latvia, and after registration shall, to the full extent, enjoy the rights of citizens and fulfil the obligations of citizens.” An identical provision was included in the draft Citizenship Law, which was submitted to the Saeima on 1 June 2006 (reg. no. 1752) and the draft Citizenship Law, which was submitted to the Saeima on 21 September 2006 (reg. no. 1882). These draft laws were also rejected and were not submitted for reviewing in committees. Thus, it is clear that the legislator did not want to amend the institute of dual citizenship to include a broader circle of persons, who would have the right to dual citizenship. The Constitutional Court points out that the attitude of European states and especially of the EU Member States towards dual citizenship has changed to a certain extent, however, the basic approach with regard to it has always been regulated by the legislator. Moreover, a legislator, deciding to allow dual citizenship, also defines with regard to which persons and which cases dual citizenship is admissible, taking into consideration the interests of the state, political situation and the citizenship policy (see http://eudo-citizenship.eu/country-profiles, accessed on 26 April 2010). The Council of Europe Convention on Nationality leaves the decision on dual citizenship to the discretion of the state (see the preamble and paras. 6‑9 of the Explanatory Report to the Convention). The Constitutional Court recognises that the adoption of the legal regulation on the citizenship issue has a political aspect, which indirectly defines the limits of the control realised by the Constitutional Court. Citizenship issues, both before the occupation of Latvia and after the restoration of independence have always been on the agenda of political debates. All essential issues relating to the citizenship institution, first and foremost, fall within the jurisdiction of the legislator. Also with regard to some issues of citizenship, with regard to which it was impossible to reach political consensus in the Saeima, both in 1927 and in 1998 referenda were held.

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The resolutive part

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On the basis of Articles 30‑32 of the Constitutional Court Law, the Constitutional Court decided: To declare the words of the first sentence of paragraph 1 of the transitional provisions of the Citizenship Law “if registration occurs by 1 July 1995” and the second sentence to be compatible with Articles 1 and 2 of the Satversme of the Republic of Latvia and the preamble of the Declaration of the Supreme Council of the Latvian SSR of 4 May 1990 “On the Restoration of the Independence of the Republic of Latvia”. The judgment is final and not subject to appeal.

2010-50-03

Expression of religious belief

543

A person’s right to keep religious objects in a prison The right to freedom of religious belief was examined. It includes not only the existence of religious beliefs but also expression thereof. The legislator may restrict only the expression of religious belief, which, inter alia, includes also the use of religious objects. Expression of religious belief in prisons was examined. The state, to the extent possible, should allow prisoners to practice their religious belief, inter alia, by using religious objects.

The judgment comes into force on the day of its publication. The chairman of the hearing of the Court G. Kūtris

JUDGMENT in the name of the Republic of Latvia in the case no. 2010-50-03 Riga, 18 March 2011 The Constitutional Court of the Republic of Latvia in the following composition: the chairman of the hearing of the Court Gunārs Kūtris, and judges Kaspars Balodis, Aija Branta, Kristīne Krūma, Vineta Muižniece and Viktors Skudra, pursuant to a constitutional complaint of Nauris Rakuzovs, on the basis of Article 85 of the Satversme (Constitution) of the Republic of Latvia and Article 16 (3), Article 17(1)(11), Article 192 and Article 281 of the Constitutional Court Law, on 1 March 2011 examined the case “On the compliance of the First Appendix to 30 May 2006 Cabinet of Ministers Regulations no. 423 “Regulations of Internal Procedure in Imprisonment Establishments” insofar as it regulates the keeping of religious objects with Article 99 of the Satversme of the Republic of Latvia”.

The facts

1. Para. 4 of 30 May 2006 Cabinet of Ministers Regulations No. 423 “Regulations of Internal Procedure in Imprisonment Establishments” (hereinafter – the Regulations No. 423) provides that a person sentenced to imprisonment (hereinafter – prisoner) shall have the duty to transfer to responsible persons of the imprisonment establishment his or her identification documents and other documents, precious metals, gemstones and gemstone ware, securities, as well as all belongings that are not mentioned in the list of those articles and food products that a prisoner has the right to keep, or the number of which exceeds the permitted amount. The articles and food products that a prisoner has the right to keep are listed in the appendix of the Regulations No. 423 (hereinafter – the Appendix). Religious objects are not referred to in the Appendix.

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2. The Petitioner Nauris Rakuzovs (hereinafter – the Petitioner) asks the Constitutional Court to assess the Annex insofar as it fails to establish keeping of religious objects (hereinafter – the impugned norm). It has been indicated in the application that the prohibition for prisoners to keep religious objects, for instance, icons, crosses, rosary, contradicts the freedom of religion guaranteed by Article 99 of the Satversme of the Republic of Latvia (hereinafter – the Satversme). The prohibition to keep religious objects prohibits performing religious rituals and restricts the right to religion. Such prohibition is not necessary; therefore it is not proportional. The Petitioner holds that prisoners preserve their basic rights when kept in custody, and restrictions established to them cannot exceed the extent required by the kind of punishment or regime of the imprisonment establishment. The Petitioner indicates that restricting of keeping of religious objects cannot be related to safety considerations. It is possible to do harm to another person by means of the objects that are already kept by prisoners. Moreover, in many imprisonment establishments, keeping of religious objects is, in fact, permitted. Consequently, this causes unequal attitude because regimes of different imprisonment establishments differ. Moreover, the Petitioner emphasizes the role of religion in re-socialization of prisoners. 3. The institution that has adopted the impugned act, the Cabinet of Ministers indicates that freedom to religion includes the right to internal faith which is an absolute right, and the right to expressing one’s religious beliefs, which is not an absolute right. Expression of religious beliefs can be restricted by law insofar as it is necessary in a democratic society in order to maintain security of the society, ensure public order, as well as health, dignity and rights and freedoms of other persons. The European Court of Human Rights has recognized that Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter – the Convention) protects only such activities that ensure expression of religious beliefs in a commonly accepted way, like public worships, rather than protects all activities executed by a person based on his or her religious beliefs. Moreover, when exercising the freedom of religion, a person has to take into account the specific character of a particular situation. The Cabinet of Ministers indicates the following: from the point of view of canon law the use of religious objects is not separated as a particular element or accentuated in any way. Moreover, such objects are not always necessary for expressing one’s religious beliefs. Prohibiting prisoners to keep and use rosary does not mean that a person is prohibited to resort to its religion and fulfil certain rituals. Restriction of the basic rights of a prisoners, namely, the prohibition of keeping and using of religious objects in his or her cell has been established on the basis of law because the Regulations No. 423 have been adopted in accordance with the stipulated procedure and pursuant to the delegation by the Saeima. The regulatory framework included in the Regulations No. 423 is aimed at ensuring order in imprisonment institutions. It is necessary to restrict the kinds and amounts of objects kept by prisoners and to permit them to keep the minimum amount of objects necessary for meeting hygiene and certain basic needs. Consequently, all other objects, including religious objects are prohibited. Likewise, the aim to protect the rights and security of other prisoners as well as personnel shall be regarded as grounded.

The Cabinet of Ministers indicates that punishment of deprivation of liberty includes restrictions of the basic rights characteristic to it insofar as it is necessary to reach the aim of the punishment. Criminal punishment as a public compulsory mechanism is implemented not only as denial to exercise certain actions and revocation of rights with the purpose of changing behaviour of a prisoner, but also as a measure of special and general prevention, namely, the purpose of criminal punishment is to prevent a prisoner from committing another criminal offences and to make other members of the society to restrain from criminal offences. According to the Cabinet of Ministers, the restriction included in the impugned norm should be assessed in the context of other possibilities to express one’s religious beliefs that are ensured to prisoners in imprisonment establishments. Measures of spiritual care for prisoners are organized in the following forms: public worships, concerts, classes of religious literature analysis, demonstration of films with religious content, as well as individual conversations with a priest. Spiritual care is also ensured by religious organizations registered pursuant to the stipulated procedures. When assessing norms regulating the enforcement of penalties, it can be concluded that international human rights do not commit the state to guarantee such procedure for exercising one’s freedom to religion in an imprisonment establishment that would comply with the desires of each prisoner, including the right to keep religious objects; the international human rights rather oblige the state to implement the essence and the general character of the right to freedom of religion. Consequently, legislative acts ensure the minimum of the freedom of religion, and the restriction shall be regarded as proportional. […]

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The motives

7. Article 99 of the Satversme provides: “Everyone has the right to freedom of thought, conscience and religion. The church shall be separate from the state.” 7.1. The freedom of thought, conscience and religion is one of the most important values of a democratic society. This freedom comprises different religious, non-religious and atheistic beliefs, as well as the right to accept or refuse religion. In the light of the particular article of the Satversme, religious beliefs can be interpreted in a broad manner. Moreover, not only presence of religious beliefs but also expression of religious beliefs is protected. When establishing the content of Article 99 of the Satversme, the Constitutional Court has to take into account international documents on human rights as well as the practice of application thereof. A norm that is similar to that of Article 99 of the Satversme is included in Article 9 of the convention and Article 18 of the United Nations (hereinafter – the UN) International Covenant on Civil and Political Rights (hereinafter – the Covenant). The European Court of Human Rights (hereinafter – the ECHR) has recognized that freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned (see, e.g., the judgment of the ECHR of 13 December 2001 in the case “Metropolitan Church of Bessarabia and Others v. Moldova”, appl. no. 45701/99,

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para. 114, and the judgment of 5 October 2006 in the case “The Moscow Branch of the Salvation Army v. Russia”, appl. no. 72881/01, para. 57). 7.2. Article 116 of the Satversme provides: “The rights of persons set out in Articles ninety-six, ninety-seven, ninety-eight, one hundred, one hundred and two, one hundred and three, one hundred and six, and one hundred and eight of the Satversme may be subject to restrictions in circumstances provided for by law in order to protect the rights of other people, the democratic structure of the state, and public safety, welfare and morals. On the basis of the conditions set forth in this Article, restrictions may also be imposed on the expression of religious beliefs.” Likewise, it follows from Article 9 of the Convention and Article 18 of the Covenant, as well as from Article 99 of the Satversme if considered in conjunction with Article 116 of the Satversme that the internal aspect of religious beliefs ( forum internum) and the right to devote oneself to religion or the freedom of expression of religious beliefs being the right to external expression of the freedom of religion ( forum externum) are distinguished. The EHCR has indicated the following: while religious freedom is primarily a matter of individual conscience, it also implies the right to devote oneself to religion or the right to manifest one’s religion (see the judgment of the ECHR of 25 May 1993 in the case “Kokkinakis v. Greece”, appl. no. 14307/88, para. 31). The Satversme does not provide any explanation of the term “expression of religious beliefs”, whilst Article 9 of the Convention and Article 18 of the Covenant indicate that expression of religious beliefs includes cultivation of worships, execution of religious and ritual ceremonies, as well as preaching. In its General Comment no. 22 on the right to freedom of thought, conscience and religion (hereinafter – the General Comment 22), the UN Committee on Human Rights has indicated that manifestation of religion includes also use of religious objects (see General Comment 22 on the right to freedom, conscience and religion of the UN Committee of Human Rights of 30 July 1993, para. 4, http://www.unhchr.ch/tbs/doc.nsf/0/9a30112c27d1167cc12563ed004d8f15, consulted on 1 March 2011). Pursuant to Article 116 of the Satversme, only expression of religious beliefs rather than the rights referred to in Article 99 of the Satversme that can be restricted. External aspects of the freedom of though and conscience are closely related with the freedom of speech guaranteed in Article 100 of the Satversme and they are admissible in a democratic society to ensure necessary restrictions. Consequently, internal expressions of thoughts, conscience and religious beliefs cannot be restricted. A similar conclusion was made also by the ECHR (see para. 33 of the ECHR judgment in the case “Kokkinakis v. Greece”), and the UN Committee on Human Rights (see paras. 3 and 4 of the General Comment 22). 8. The Petitioner considers that the prohibition to prisoners to keep religious objects contradicts Article 99 of the Satversme. Consequently, the Constitutional Court has to assess whether the impugned norm causes a restriction of the fundamental rights established in Article 99 of the Satversme. 8.1. One of the fundamental principles included in the Recommendation Rec( 2006)2 of the Committee of Ministers to member states on the European Prison Rules (hereinafter – the European Prison Rules) is as follows: persons deprived of their liberty retain all basic rights restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed (see: the Recommendation Rec(2006)2 of the Committee

of Ministers to member states on the European Prison Rules, paras. 2 and 3, https:// wcd.coe.int/wcd/ViewDoc.jsp?id=955747, consulted on 1 March 2011). 8.2. The UN Special Rapporteur on freedom of religion or belief (Asma Jahangir) has indicated there is a real risk that the circumstances of detention, as well as specific policies by prison authorities may result in undue restrictions of the opportunity of detainees to practice their religion or belief. Consequently, prisoners find themselves in a situation of enhanced vulnerability and can therefore be an easy target for harassment (see the Interim Report of the Special Rapporteur on freedom of religion or belief, 17 June 2009, paras. 19‑20, //www2.ohchr.org/english/issues/religion/docs/A-64-159.pdf, consulted on 1 March 2011). In the General Comment 22 it has also been emphasized that persons already subject to certain legitimate constraints, such as prisoners, continue to enjoy their rights to manifest their religion or belief to the fullest extent compatible with the specific nature of the constraint (see the General Comment 22, para. 8). 8.3. The Annex enumerates objects and food products that a prisoner has the right to keep. It follows from para. 4 of the Regulations No. 423 that objects not referred to in the Annex should be transferred to the imprisonment establishment for storing. Pursuant to para. 7 of the Regulations objects, wares and substances prohibited to be kept that are found during search and not have been voluntarily submitted to the imprisonment establishment shall be confiscated and destroyed. The Annex does not expressis verbis mention any religious objects. However, certain objects that are included into the Annex and are formulated in a general manner can also be of religious nature, like, books, photography, headdress. Based on the fact that Buddhist rosaries are not included into the Annex, the Petitioner was prohibited to keep them. Consequently, the prohibition to keep religious objects that follows from the impugned norm can restrict the right of prisoners to express their religious beliefs. 9. Like in relation to any basic right, also in relation to the observance, protection and ensuring of the freedom of religion the state has positive and negative duties. In the present case, the state prohibits the Petitioner to keep a rosary by thus restricting his freedom to express his religious beliefs. The Cabinet of Ministers and the Latvian Prison Administration consider that Article 99 of the Satversme has not been infringed because prisoners kept in imprisonment establishments have been ensured other possibilities of expressing their religious beliefs, namely, they were ensured to attend public worships, concerts or classes of religious literature analysis. However, the decisive role is played by the fact that the established restriction is lawful rather than the fact that the state has fulfilled its positive duties. Consequently, it is necessary to investigate whether by adopting the impugned norm the state has or has not infringed its duty to refrain from infringing the basic rights established in Article 99 of the Satversme. In order to establish whether the particular restriction is lawful, the Constitutional Court shall investigate the following: 1) whether it has been established by law and whether it has been adopted on lawful basis; 2) whether it has a legitimate aim; 3) whether it is proportional (see the judgment of the Constitutional Court of 16 May 2007 in the case no. 2006-42-01, para. 8).

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10. Any restriction of fundamental rights should be established by law or adopted on a lawful basis. The Cabinet of Ministers indicates in its reply that the restriction that follows from the impugned norm has been established by law. The Cabinet of Ministers has regulated the particular issue based on an authorization by the Saeima; moreover, the Regulations No. 423 has been established according to a stipulated procedure, they have been clearly formulated, and they comply with other norms of normative acts. The Annex has been adopted on the basis of Article 11(5) and Article 47(1) of the Latvian Sentence Execution Code. Article 11(5) of the Latvian Sentence Execution Code provides: “Internal procedural regulations of deprivation of liberty institutions shall be approved by the Cabinet.” However, Article 47(1) of the same code provides: “In deprivation of liberty institutions only non-food goods shall be permitted to be received by way of parcels and deliveries. The procedures by which parcels or deliveries shall be received and issued, as well as the list of those things which are permitted to be received by way of parcels and deliveries shall be regulated by Cabinet regulations”. Moreover, Article 42 of the Latvian Sentence Execution Code provides that in deprivation of liberty institutions strictly regulated internal procedures shall be determined by also determining a list and the number of objects and possessions which they can keep in their possession. The Constitutional Court concludes the following: in the present case, there is no dispute whether the Regulations No. 423 has or has not been adopted according to the stipulated procedures. The legislator has granted to the Cabinet of Ministers a general authorization to elaborate internal procedures regulations of imprisonment establishments and to determine the list of objects that the prisoners would have the right to keep. Consequently, the restriction of fundamental rights following from the impugned norm has been established in accordance with law. 11. Article 116 of the Satversme provides that expression of religious beliefs can be restricted in order to protect the rights of other persons, the democratic structure of the state, and public safety, welfare and morals. The Cabinet of Ministers indicates that the legitimate aim of the impugned norm is ensuring order in imprisonment establishments. Restrictions regarding the kind and number of objects allow ensuring order in imprisonment establishments. Religious objects, including rosary, can be used for assaults or unlawful communication among prisoners; therefore keeping of them should be prohibited. Consequently, the aim of the impugned norm is to protect the security of the society and rights of other persons. Consequently, the restriction of the fundamental rights that follows from the impugned norm does have a legitimate aim. 12. In order to assess whether the legal provision passed by the legislator complies with the principle of proportionality, the Constitutional Court will examine the following: first, whether the means employed by the legislator are suitable for achieving the legitimate aim or whether the aim set can be reached by the measure selected; second, whether such action is indispensable, i.e., whether the aim cannot be reached by other means that restrict the rights and legal interests of a persons at a lesser extent;

third, whether the action of the legislator is proportionate or commensurate, i.e., whether the benefit gained by the society is greater than the losses caused to the rights and legal interests of a person. If, when assessing the legal provision, it is acknowledged that it is in conflict with at least one of the above criteria, then it is in conflict with the principle of proportionality and is unconstitutional (see, e.g.: the judgment of the Constitutional Court of 16 May 2007 in the case no. 2006-42-01, para. 11). 13. The Appendix provides a list of objects that are permitted to be kept by prisoners; consequently, keeping of all other objects is prohibited. The Appendix does not refer to any religious objects. The Latvian Prison Administration has indicated that certain religious objects, like rosary can be kept and used for assault, unlawful inter-cell communication and preservation of prohibited substances. However, neither materials furnished by the Latvian Prison Administration (see the case materials, pp. 53‑67 and 69‑76), nor other case materials prove that religious objects would cause any greater danger to security of the society or rights of other persons if compared to other objects, the keeping of which is permitted. Objects listed in the Appendix can also used for unlawful actions. Consequently, it cannot be stated that the restriction of fundamental rights included in the impugned norm is appropriate for reaching of the legitimate aim. 14. When assessing whether the legitimate aim could be reached by other measures that would restrict the basic rights at a lesser extent, the Constitutional Court first has to assess the current practice. 14.1. Replies to questions regarding keeping of religious objects presented by imprisonment institutions manifest the following: in several imprisonment institutions, including closed prisons, keeping of such objects is permitted based on an individual assessment. The procedure according to which a decision whether to permit or to prohibit keeping of a religious object is made by assessing peculiarities of a particular object or other individual circumstances, must be regarded as a measure that would restrict the fundamental rights to a lesser extent. There is no reason for the Constitutional Court to hold that thus the legitimate aim would be reached at a lesser extent if compared by total prohibition to keep religious objects. Moreover, the fact that such practice already exists in certain imprisonment establishments proves that religious objects cause no substantial threat to the security of the society or the rights of other persons, that would require a total prohibition of keeping of such objects. 14.2. In the authorization granted by the legislator to the Cabinet of Ministers, namely, the authorization to regulate internal rules of procedure of imprisonment establishments, one cannot establish the intent of the legislator to restrict the freedom to express religious beliefs by prisoners in such manner. In the Latvian Sentence Execution Code, the Cabinet of Ministers has been generally authorized to determine objects that prisoners can keep in their possession. When elaborating a particular regulation, the Cabinet of Ministers has the duty to take into account the basic rights, including the freedom to express religious beliefs. The Cabinet of Ministers had the possibility to select another way of regulating the issue regarding objects that can be kept by prisoners in imprisonment establishments. For instance, to determine a list of objects that would be prohibited to be kept or to

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enumerate those objects that are permitted to be kept by also ensuring the possibility to decide on the right to keep other objects if this is requested by a prisoner. Moreover, para. 2 of the Appendix establishes that the total weight of those objects that a prisoner has the right to keep may not exceed 30 kilograms. Certain objects are limited in their dimensions. Such restrictions regarding weight and dimensions can be regarded as measure that restricts the rights of a person to a lesser extent would and would ensure reaching of the legitimate aim and would permit avoiding all such situations when a prisoner wants to keep any religious objects that fail to comply with regulations. 14.3. The Constitutional Court is not required to enumerate in a judgment all possible measures that would restrict the rights of a person at a lesser extent. Having established that there exists at least one more lenient remedy, it is possible to recognize that the impugned norm restricts the basic rights of a person in a non-proportionate manner (see the judgment of the Constitutional Court of 23 April 2009 in the case no. 2008-42-01, para. 17.2). Consequently, it can be concluded that there exist other measures that restrict the basic rights of persons to a lesser extent, and the restriction that follows from the impugned norm is not indispensable for reaching the legitimate aim. 15. The duty of the state to ensure prisoners with the possibility to keep religious objects also follows from the European Prison Rules. Article 29.2 of the European Prison Rules provides: The prison regime shall be organized so far as is practicable to allow prisoners to practice their religion and follow their beliefs, which requires using of other religious objects. In certain cases, the decision of an imprisonment institution to allow a prisoner keeping some religious objects has averted a restriction of fundamental rights established in Article 99 of the Satversme. Therefore, an individual assessment of circumstances of each case must be viewed positively. However, the practice differs in different imprisonment establishments because the procedure according to which prisoners are allowed or prohibited to keep religious objects has not been established by a legislative act. Consequently, it is probable that persons in similar circumstances are treated differently, and this might cause a breach of the principle of equality. Therefore the Cabinet of Ministers has the duty to establish common principles to render the practice of imprisonment establishments more compliant with the requirements of the fundamental rights. It is also necessary to take into account what has been established in the doctrine, namely, that in certain cases the convicts can use the freedom to religion as a pretext for reaching of other aims, for instance, to gain advantage over others, which would not be possible otherwise [see van Dijk P. et al. (eds). Theory and Practice of the European Convention on Human Rights. 4th ed. – Antwerpen, Oxford: Intersentia, 2006, p. 313]. Therefore the Constitutional Court does not contest the necessity to establish certain restrictions in respect of keeping of religious objects. Legislative framework should allow an imprisonment institution to decide either to allow or to prohibit prisoners to keep religious objects, by taking into account the circumstances of each individual case, and it should also be ensured that such a practice is based on common principles. Such a solution would ensure that the benefit gained by the society from restriction of the fundamental rights of a person is greater than the detriment caused to the rights of a person.

Consequently, the restriction of fundamental rights that follows from the impugned norm is not proportional and therefore the impugned norm fails to comply with Article 99 of the Satversme. 16. Article 32(3) of the Constitutional Court Law provides that a legal norm (act) that the Constitutional Court has declared as non-compliant with the norm of a higher legal force shall be regarded as not in effect from the day of publication of the judgment of the Constitutional Court, if the Constitutional Court has not determined otherwise Since a procedure according to which an administration of an imprisonment establishment can decide either to permit or to prohibit keeping of religious objects by prisoners has to be established in legislative acts, the Constitutional Court holds that the impugned norm shall be regarded as null and void as from 1 October 2011.

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The resolutive part On the basis of Articles 30-32 of the Constitutional Court Law, the Constitutional Court decided: The First Appendix of 30 May 2006 Cabinet of Ministers Regulations No. 423 “Regulations of Internal Procedure in Imprisonment Establishments” insofar as it regulates keeping of religious objects, does not comply with Article 99 of the Satversme of the Republic of Latvia and shall be null and void as from 1 October 2011. The judgment is final and not subject to appeal. The judgment shall come into force on the date of publishing thereof. The chairman of the hearing of the Court G. Kūtris JUDGMENT in the case no. 2010-50-03

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2013-05-01

National referenda The right of the totality of citizens to participate in the legislative process

The principle of democracy was analysed. The essence of the concept of democracy is implementing the will of society’s majority, and it is closely linked to the principle of the people’s sovereignty. The people of Latvia can exercise its sovereign power only in a democratic state. Since Latvia’s state order is democratic, such legal procedure that allows the bearer of sovereign power – the people – to express its will must be established in the state. Ways in which citizens can express their will are characterised. In the framework of the election procedure, the people elect the Saeima. The people itself may act as the legislator, by submitting draft laws and deciding on them in national referenda. Likewise, in a national referendum, the totality of citizens may decide on the laws or amendments to the Satversme, adopted by the Saeima, as well as on other matters defined in the Satversme that have been put for a national referendum. It was found that the Satversme recognised only a democratic state order. The majority of the people is implemented in a democratic state order, at the same time effective possibilities to express its opinions is ensured also to the minority. It was underscored that the legislator’s obligation is to ensure that the people’s legislative right is exercised in compliance with the principles of a democratic state governed by the rule of law. The procedure for implementing the voters’ legislative initiative may not be such that would turn the voters’ right to submit a draft law into a formality.

JUDGMENT in the name of the Republic of Latvia in the case no. 2013-05-01 Riga, 12 February 2014 The Constitutional Court of the Republic of Latvia in the following composition: chairman of the hearing of the Court Gunārs Kūtris, judges Kaspars Balodis, Aija Branta, Kristīne Krūma, Uldis Ķinis and Sanita Osipova, with secretaries of the hearing of the Court Alla Spale and Elīna Kursiša, with the participation of Andrejs Elksniņš, the representative of the Petitioner – twenty members of the 11th Saeima [the Parliament] […], as well as the representatives of the institution which has adopted the contested act – the Saeima – head of the Legal Bureau of the Saeima Gunārs Kusiņš and senior legal advisor Jānis Pleps, on the basis of Article 85 of the Satversme [the Constitution] of the Republic of Latvia and Article 16(1) and Article 17(1)(3) of the Constitutional Court Law, on 8 and 14 January 2014 examined in a public hearing the case

“On the compliance of Article 22(1) (in the wording of the law of 8 November 2012 which enters into force on 1 January 2015) and of para. 4 and para. 5 of transitional provisions of the Law on National Referenda, Legislative Initiatives and European Citizens’ Initiative with Articles 1 and 2 of the Satversme of the Republic of Latvia”.

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The facts 1. On 31 March 1994 the Saeima adopted the “Law on National Referenda and Legislative Initiatives”, the title of which was expressed in new wording pursuant to the amendments of 20 September 2012: “Law on National Referenda, Legislative Initiatives and European Citizens’ Initiative” (hereinafter – the Law on National Referenda). 1.1. Article 22 of the Law on National Referenda in the wording which was changed pursuant to the amendments introduced on 8 May 2003 and 6 April 2006 provides: “Not fewer than 10 000 of the citizens of Latvia with the right to vote, upon indicating their name, surname and personal identity number, shall have the right to submit to the Central Election Commission a fully elaborated draft law or draft amendment of the Satversme. Each signature shall be certified by a sworn notary or a local government institution which engages in notarial activities.” 1.2. Pursuant to the law of 8 November 2012 “Amendments to “Law on National Referenda, Legislative Initiatives and European Citizens’ Initiative”” (hereinafter – Amendments to the Law on National Referenda), the Saeima significantly changed the procedure according to which the electorate could submit a draft law or draft amendments to the Satversme. Pursuant to the aforementioned amendments on 1 January 2015 Article 22(1) of the Law on National Referenda shall come into force in the following wording: “Not fewer than one-tenth of the electorate, upon indicating their name, surname, personal identity number and the date of signing, shall have the right to submit to the Central Election Commission a fully elaborated draft law or draft amendment to the Satversme within 12 months from the day when the draft law or the draft amendment to the Satversme has been registered with the Central Election Commission.” Whereas para. 4 and para. 5 were added to the transitional provisions of the Law on National Referenda, providing: “4. Until 1 January 2015 no fewer than 30 000 voters, upon indicating their name, surname, personal identity number and the date of signing, shall have the right to submit to the Central Election Commission a fully elaborated draft law or draft amendment to the Satversme. The draft law or the draft amendment to the Satversme may be submitted within 12 months from the day when the draft law or the draft amendment to the Satversme has been registered with the Central Election Commission. Within these 12 months each signature must be certified by a sworn notary or at the guardianship tribunal which performs notarial functions. The guardianship tribunal shall set a fee for certifying the signature in connection with collection of signatures in favour of a draft law or draft amendment to the Satversme, taking into consideration the direct administrative costs of certifying a signature, however, not exceeding half of the sum, which is stipulated by the law, for certifying the authenticity of a signature at a custody court. 5. If until 1 January 2015 no fewer than 30 000 voters, upon indicating their name, surname, personal identity number and the date of signing, submit to the Central

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Election Commission a fully elaborated draft law or draft amendment to the Satversme, the Central Election Commission shall set a term of 21 days during which the forms for collecting signatures which the voters can sign, shall be accessible in places defined by the Council of each republican city or region.” Para. 4 and para. 5 of the transitional provisions of the Law on National Referenda are in force since 11 December 2012. 2. The petitioner – twenty members of the 11th Saeima (hereinafter – the Petitioner) alleges that Article 22(1) of the Law on National Referenda and para. 4 and para. 5 of the transitional provisions are incompatible with Article 1 and Article 2 of the Satversme of the Republic of Latvia (hereinafter – the Satversme), as they obviously restrict the right of people, set out in the Satversme, to participate in legislation. I.e., in para. 4 and para. 5 of the Law on National Referenda the Saeima has unreasonably increased the number of voters, who have to sign in favour of the draft law or draft amendments to the Satversme (hereinafter jointly – a draft law) during the first stage of collecting signatures. The minimum required number of electors’ signatures has been increased from 10 000 to 30 000. Whereas Article 22(1) of this Law which will enter into force on 1 January 2015 envisages that the signing in favour of a draft law will have only one stage, during which the initiators of the draft law must collect the signatures of at least one-tenth of electorate. 2.1. Article 22(1) of the law and para. 4 and para. 5 of the transitional provisions allegedly infringe upon the constitutive and legislative functions of the totality of citizens. The Saeima, by changing the procedure of legislative initiative, has made the application of the norms of the Satversme practically impossible, i.e., full-fledged implementation of democracy in the Republic of Latvia. Direct democracy is allegedly restricted, since the burden of organising the collection of signatures has been imposed upon voters, decreasing the institutional and financial support by the state. Allegedly the totality of citizens has been deprived of an instrument allowing it to influence the life of the state. However, the right of the minority to initiate debates regarding an issue is complies with the essence of democracy. 2.2. Article 22(1) of the Law on National Referenda and para. 4 and para. 5 of the transitional provisions allegedly have no legitimate aim. It is alleged that the Saeima has unreasonably narrowed the rights of Latvian citizens established in the Satversme to directly exercise the right to legislative initiative. Whereas decreasing of the state budget expenditure cannot be recognised as a legitimate aim. The Petitioner considers that the requirement to collect signatures of 30 000 voters can be met only by organisations which are supported by very prosperous people. This will decrease the public trust in the institution of national referendum. 2.3. Considering the previous history of national referenda, the Petitioner is of the opinion that the people of Latvia exercise their constitutional right to participate in legislation in a well-considered and weighted way. It is noted in the application that the law of 1994 “On National Referenda and Legislative Initiative” had enshrined a procedure of legislative initiative, which was objectively necessary and sustainable. This law established a sufficiently large number of voters’ signatures that was need to submit a draft law to the Central Election Commission, i.e., 10 000. At the time of adopting this law no doubts had been raised that the minimum number of voters’ signatures necessary for submitting a draft law and the two stages in the procedure of legislative initiative were compatible with the requirements of the rule of law and democracy.

The Petitioner alleges that the Constitutional Court already in its judgment of 19 May 2009 in the case no. 2008-40-01 had recognised that the number of initiators of a draft law – 10 000 – ensured that only issues important for society were dealt with by means of national referenda. The Petitioner holds that following the adoption of the aforementioned Judgment the circumstances have not changed so essentially as to recognise that the aforementioned number of voters, who have signed, no longer proves public interest in solving a particular issue and the importance of this issue. Moreover, the data of 2011 consensus show that Latvia’s population has decreased. In parallel to that the part of Latvian nation, in percentage, who have to sign in order to initiate a law, has increased. 2.4. The restrictions established in Article 22(1) of the Law on National Referenda and para. 4 and para. 5 of the transitional provisions allegedly are not necessary, since the collection of signatures can be improved by using other means, less restrictive to a person’s rights and legal interests, for example, electronic signature. The Petitioner holds that the system of electronic signatures which can be used to collect signatures in favour of European Citizens’ Initiative, could be used also when collecting signatures in favour of draft laws advanced by voters. 2.5. Andrejs Elksniņš, the Petitioner’s representative, at the hearing of the Court clarified the claim. He noted that the Petitioner contests: 1) Article 22(1) of the Law on National Referenda, insofar it envisages that as of 1 January 2015 the voters, in order to submit a draft law, would have to collect in one stage of signing at least the signatures of one tenth of electorate (hereinafter – the impugned norm); 2) para. 4 and para. 5 of the transitional provisions, insofar they envisage that at least 30 000 voters’ signatures must be collected during the first stage of signing (hereinafter – the impugned transitional provisions) At the hearing of the Court the Petitioner’s representative pointed out a number of deficiencies that the legislator had made in its activities when drafting and adopting the impugned norm and the impugned transitional provisions (hereinafter jointly – the impugned regulation). For example, the legislator did not substantiate why 30 000 voters’ signatures in the first stage of collecting signatures was a more adequate requirement than 10 000 signatures. Likewise, no founded considerations regarding the expediency of organising the collection of signatures as of 1 January 2015 only in one stage, without financial or organisational participation of the state have been presented. Likewise, the Petitioner’s representative doubted, whether the state would be able to establish in full the system of electronic signature, accessible to a sufficient number of voters, by 1 January 2015. Whereas the possible incompatibility of the impugned regulation with Article 2 of the Satversme should be assessed because the exercise of the principle of people’s sovereignty is closely linked with the concept of democracy enshrined in Article 1 of the Satversme. 3. The institution which has adopted the contested act – the Saeima – does not agree with the Petitioner’s opinion and submits that the impugned regulation is compatible with Article 1 and Article 2 of the Satversme. 3.1. The Satversme comprises the idea of representative democracy, pursuant to which the will of the people is implemented by the parliament. The Saeima holds that the impugned regulation does not affect the principle of people’s sovereignty, since it has no impact upon the possibility for people to elect their representatives – members of the Saeima – at general election. Moreover, Article 2 of the Satversme allegedly does not regulate the way in which the people’s sovereignty should be exercised. This

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is specified by other provisions of the Satversme, which envisage the way in which the people exercise their sovereign power. The electorate’s right to legislative initiative and restrictions thereon should be first and foremost assessed within the scope of Articles 65, 78 and 101 of the Satversme. If the voters’ right to legislative initiative were not established in Article 65 and Article 78 of the Satversme, it would be impossible to exercise them solely on the basis of Article 2 of the Satversme. The impugned regulation allegedly complies with Article 2 of the Satversme, as it does not change the constitutional requirements set in order to exercise the right to legislative initiative. Whereas the establishment of procedure for collecting at least one tenths of voters’ signatures in order to initiate a law falls within the legislator’s discretion. 3.2. The Saeima notes that the amendments to the Law on National Referenda were adopted as a result of prolonged discussions and made the legal regulation clearer. The amendments were introduced for a number of reasons. First of all, they were necessary to improve the regulation on the procedure of legislative initiative, inter alia, to ensure to the citizens of Latvia due possibility to exercise the right, defined in the Satversme, to submit draft laws. Secondly, the possibility for citizens to participate in the actions of the state had to be ensured. Thirdly, the democratic state order had to be protected, decreasing the possibility to advance unprepared draft laws or proposals threatening the foundations of the state. Fourthly, the legislator had dispelled the concern that the necessary minimum number of submitters of a draft law was too small and it could be possible to advance draft laws only in order to use the second stage in collecting signatures for political purposes. By abolishing stages in the collection of signatures, the procedure of signing was made simpler and better understandable. Moreover, the possibility to collect signatures electronically and to sign at local government institutions allegedly ensure effectiveness of this procedure. 3.3. The impugned regulation allegedly ensures a lenient transition to the new procedure for signing. I.e., the impugned norm is coming into force on 1 January 2015. Whereas the impugned transitional provisions retain until 1 January 2015 the collection of signatures in two stages and provide that no less than 30 000 voters must sign in the first stage. This number of voters’ signatures had been defined as the result of political compromise achieved in political consultations. The lenient transition was needed to ensure that the principle of legal certainty is abided by. The choice of date had been harmonised with the possibility to ensure a system of electronic signature accessible to voters. 3.4. The Petitioner’s statement that the online systems for collecting electronic signatures, similarly as in the case of European citizens’ initiatives, could be used already now for collecting signatures for implementing voters’ legislative initiative, is said to be ill-founded. Higher security requirements are set with regard to collection of signatures in favour of a legislative initiative. Therefore the legislator has entrusted the Cabinet of Ministers to ensure until 1 September 2014 technical and security readiness of the online United Portal of State and Municipal Services for collecting signatures in online regime. The representatives of the Saeima Gunārs Kusiņš and Jānis Pleps at the hearing of the Court noted that one of the aims of amendments of 8 November 2012 had been to improve the institution of the voters’ legislative initiative, taking into consideration the way it had been used in practice, technological developments, as well as foreign experience. The citizens’ right to submit a draft law is not a mandatory

requirement of Article 2 of the Satversme. Moreover, only few countries ensure such right to electors. It is of relevance in the case under review, what kind of procedure for collecting voters’ signatures is envisaged by the Satversme. The representatives of the Saeima pointed to the fact that the legislator not only had the discretion to establish the procedure for exercising the voters’ right to legislative initiative, but also a constitutional obligation to provide a legal regulation of if, abiding by the framework set out in the Satversme. The number of electors who are ready to sign the draft law, should be sufficiently large in order to consider that the draft law submitted to the Saeima pertains to issues that are important for a large part of society. […]

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The motives 13. The application requests recognising the impugned regulation as being incompatible with Article 1 and Article 2 of the Satversme. At the hearing of the Court the Petitioner’s representative specified the limits of the claim. I.e., the impugned norm allegedly is incompatible with Article 1 and Article 2 of the Satversme, because it sets the requirement that at least one tenth of voters who have signed at one stage of collecting signatures have the right to submit a draft law. This procedure will enter into force on 1 January 2015. Whereas the impugned transitional provisions allegedly are incompatible with Article 1 and Article 2 of the Satversme, as these envisage that at least 30 000 voters must sign in favour of the draft law during the first stage of collecting signatures. Thus, in the case under review the Constitutional Court must assess the compatibility of Article 1 and Article 2 of the Satversme with the following: 1) the impugned norm which envisages that the voters’ right to legislative initiative is exercised in only one stage of collecting signatures, during which no less than one tenth of voters must sign; 2) the impugned transitional provisions which envisage increasing the minimum necessary number of voters who have to sign during the first stage of collecting signatures. 14. At the hearing of the Court the representative of the Saeima requested to terminating the proceedings in the part regarding the compatibility of the impugned regulation with Article 2 of the Satversme, as it did not affect the sovereignty of the people. I.e., Article 2 of the Satversme allegedly does not demand direct democracy. Likewise, it does not set out the number of voters’ signatures necessary for submitting a draft law, nor the number of stages in collecting signatures. Neither does the impugned regulation affects the people’s right to elect the Saeima in general election, nor does it change the procedure for exercising voters’ right to legislative initiative envisaged in the Satversme (see the case materials, vol. 4, pp. 152‑157). Article 29(1) of the Constitutional Court Law defines the legal grounds for terminating the proceedings by a decision of the Constitutional Court prior pronouncement of a judgment. If arguments have been provided with respect to termination of the proceedings in a case, the Constitutional Court must examine them (see, for example, the judgment of the Constitutional Court of 19 October 2011 in the case no. 2010-71-01, para. 11).

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14.1. Article 2 of the Satversme establishes that the sovereign power of the state of Latvia is vested in the people of Latvia. This norm of the Satversme defines the principle of sovereignty of the people. In accordance with this principle, the people of Latvia are the only subject of the state sovereign power (see Dišlers K. Konstitūcija un satversmes vara. Tieslietu ministrijas vēstnesis, 1921, nos. 1‑3, pp. 1‑10). Therefore the people should be able to influence decision taking in the state, i.e., their will must be the source of state power and be the basis for state power (see the judgment of the Constitutional Court of 19 May 2009 in the case no. 2008-40-01, para. 11). Thus, the people of Latvia are both the source of power and the bearer of sovereign power. 14.2. Already upon adopting the Satversme, the sovereign will of the people of Latvia was expressed in the introduction to the Satversme: “The people of Latvia, in freely elected Constitutional Assembly, have adopted the following Satversme”. Thus, the introduction to the Satversme confirms that the people of Latvia have undertaken to exercise their sovereign power only in compliance with the norms of the Satversme and in accordance with the procedure established in it. Article 2 of the Satversme defines the fundamental principle of the order of the Latvian state, which is defined generally. It does not contain references to a procedure for amending or exercising the principle of the sovereignty of people. This procedure is set out in other Chapters of the Satversme (see the judgment of the Constitutional Court of 7 April 2009 in the case no. 2008-35-01, para. 15.1). The legal norms included in Satversme are closely interconnected (see the judgment of the Constitutional Court of 22 October 2002 in the case no. 2002-04-03, para. 2 of the motives part). Hence, the principle of people’s sovereignty enshrined in Article 2 of the Satversme must be examined in interconnection with provisions for exercising it which are included in other norms of the Satversme. 14.3. The Constitutional Court, in examining pre-requisites for exercising the voters’ legislative initiative, has already recognised that the essence of the concept of democracy is the implementation of the will of the majority in society and is closely linked with the principle of the sovereignty of the people embedded in Article 2 of the Satversme (see the judgment of the Constitutional Court of 19 May 2009 in the case no. 2008-40-01, para. 11). Article 1 of the Satversme provides: “Latvia is an independent democratic republic”. Pursuant to the Satversme, the people of Latvia can exercise their sovereign power only in a democratic state. Since Latvia’s state order is democratic, a legal order that allows the bearer of the sovereign power – the people – to express their will, must be established. It has been recognised in legal science: “Article 2 of the Satversme has been worded in such a way as to make it fit well with the legal construction of a democratic republic. This formula contains the transfer of sovereign power from one subject to another – from the state to the people” (Dišlers K. Latvijas valsts suverēnās varas subjekts pēc L. R. Satversmes 2. panta. Jurists, 1930. gada februāris, no. 2, p. 34). Contemporary legal scholars also hold that “Article 2 is primary in the system of Satversme, whereas Article 1 – i.e., independence of the state and democratic order of the state – is a tool that is needed to ensure the operation of Article 2, i.e., the sovereignty of the people of Latvia and a particular adequate (i.e., democratic) way, in which the people of Latvia express and exercise their will (Valsts prezidenta Konstitucionālo tiesību komisijas viedoklis

„Par Latvijas valsts konstitucionālajiem pamatiem un neaizskaramo Satversmes kodolu”. Rīga: Latvijas Vēstnesis, 2012, p. 39). 14.4. The Satversme sets out a number of ways for citizens to express their will. In the framework of election procedure the people elect the Saeima (Article 6-9, Article 14 of the Satversme). The people themselves can act as a legislator by submitting draft laws and deciding on them in national referenda (Article 64, Article 65, Articles 78-80 of the Satversme). Likewise, a totality of citizens in a national referendum can decide on the laws or amendments to the Satversme adopted by the Saeima (Articles 72-75, Article 77, Article 79, Article 80 of the Satversme), as well as on other issues put to a national referendum (Article 48, Article 68(3) and Article 68(4) of the Satversme). The Satversme and the respective laws set out a series of requirements both for the procedure of election and of national referendum (see the judgment of the Constitutional Court of 19 May 2009 in the case no. 2008-40-01, para. 11). Pursuant to Article 64 of the Satversme, the right to legislate is vested in the Saeima and also in the people. The Saeima has this right, because it is the representation of the people, elected by the citizens of Latvia, i.e., democratically legitimised body of power – the legislator. The people also have the right to legislate, however, only in accordance with the procedure and in the scope envisaged in the Satversme. Exercising the people’s right to legislative initiative is one of the ways for implementing the will of people. The people, in fulfilling the legislative function, not only exercise their right envisaged in the Satversme, but also abide by the requirements of the Satversme. The people have restricted their own sovereign power with provisions stating that they exercise their right to legislative initiative according to the procedure and within the scope set out in the Satversme. For example, the voters’ right to legislative initiative cannot be exercised with regard to draft laws, which, in accordance with Article 73, cannot be put for national referenda. Pursuant to Article 65 of the Satversme, one tenth of electorate may submit a draft law to the Saeima in cases and in accordance with the procedure envisaged by the Satversme. Legislative initiative is to be understood as submitting to the Saeima a proposal on adopting, amending or revoking a law. The basic regulation on the implementation of voters’ legislative initiative is included in Articles 78‑80 of the Satversme. However, the Satversme, in view of its concise style, does not provide a complete regulation of this issue. It is provided by the legislator in a separate law, i.e., the Law on National Referenda (see the judgment of the Constitutional Court of 19 May 2009 in the case no. 2008-40-01, para. 9). The voters’ right to legislative initiative is a special possibility for the people to exercise their sovereign power, and it exercises this power in the periods between the Saeima elections. Whereas the provisions of the Satversme are binding to the Saeima, in establishing the procedure for exercising the voters’ right to legislative initiative. 14.5. The Constitutional Court in its rulings has repeatedly examined the requirements set in the Law on National Referenda regarding exercise of voters’ right to legislative initiative (see the judgment of the Constitutional Court of 19 May 2009 in the case no. 2008-40-01, the decision on terminating the proceedings of 19 December 2012 in the case no. 2012-03-01 and the judgment of 18 December 2013 in the case no. 2013-06-01). The impugned regulation is also part of the Law on National Referenda, which regulates the procedure for implementing the voters’ legislative initiative. At the hearing of the Court the Petitioner’s representative expressed the opinion that the legislator, in adopting the impugned regulations, had not been sufficiently

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careful and deprived the totality of citizens of an instrument, which allowed them to influence the life of the state. Thus, essentially, the Petitioner holds that the legislator in the impugned regulation has narrowed the possibilities for exercising the sovereign power of the people. The impugned regulation envisages changes in the procedure according to which the voters’ right to legislative initiative, defined in the Satversme, is to be exercised. Amendments to the procedure for exercising citizens’ constitutional rights per se are not indicative of a violation of the principle of people’s sovereignty established in Article 2 of the Satversme. And yet, people can exercise their right only within a framework of democratic procedure. Thus, a procedure for exercising voters’ right to legislative initiative, which were incompatible with the order of a democratic state, would not comply with the principle of the people’s sovereignty. Thus, a procedure denying voters the possibility to exercise the right to legislative initiative set out in the Satversme would be incompatible with Article 2 of the Satversme. Exercise of the people’s sovereign power is closely linked with the democratic state order enshrined in Article 1 of the Satversme. Hence, the procedure for exercising the voters’ right to legislative initiative established by the impugned regulation must first and foremost comply with Article 1 of the Satversme, enshrining the existence of a democratic state order in Latvia. Upon establishing compliance of the impugned regulation with Article 1 of the Satversme, it will be possible to conclude that the legislator has abided by the principle of the sovereignty of people enshrined in Article 2 of the Satversme. Thus, the proceedings in the case must be continued. 15. It follows from Article 1 of the Satversme that a lawful democratic order exists in Latvia, which recognises the principles of a democratic state governed by the rule of law (see the judgment of the Constitutional Court of 19 May 2009 in the case no. 200840-01, para. 11). Thus, the Satversme recognises only a democratic state order. The concept “democratic republic” comprises a number of principles of a state governed by the rule of law, inter alia, the principles of division of power and reciprocal supervision, the supremacy of law (subjection of public power to law), legality, proportionality and legal certainty [see, for example, the judgment of the Constitutional Court of 24 March 2000 in the case no. 07-07(99), para. 3 of the motives part]. At the hearing of the Court the Petitioner’s representative expressed the opinion that the aforementioned concept comprised also participation of society in public decision taking (see the case materials, vol. 1, p. 7 and vol. 4, pp. 5‑7). The will of the majority of people is implemented in a democratic order, however; also the minority is ensured effective possibility to express its opinion. The people of Latvia, abiding by the provisions of the Satversme, have the right to participate in deciding on issues of national importance. However, they can exercise this right only within the framework of such democratic procedure that respects the opinion of the minority and implements the will of the majority. Citizens must trust the legitimacy of the constitution and the fact that the constitution is implemented in a democratic procedure. Procedure must be established for adopting legally binding decisions regarding proposals of political character. Issues of interest to society must be decided also if there is a lack of consensus, however, decisions must always be taken in a procedure that allows considering them as being legitimate. A reasonable decision taking procedure is a pre-requisite for

the legitimacy of the majority’s power. The existence of such a procedure does not always guarantee impeccable results; however, it allows presuming that the decision has been taken correctly (see Habermas J. Reply to Symposium Participants, Benjamin N. Cardozo School of Law. Cardozo Law Review, 1995‑1996, pp. 1492‑1494). The Constitutional Court has recognised that the requirement to fulfil the state’s functions in compliance with the principles of a democratic and state governed by the rule of law follows from the principle of democracy enshrined in Article 1 of the Satversme (see the judgment of the Constitutional Court of 10 May 2007 in the case no. 2006-29-0103, para. 18). Therefore the legislator has the obligation to ensure that the people’s right to legislative initiative is exercised in compliance with the principles enshrined in Article 1 of the Satversme, inter alia, the principle of democracy. If the law regulates the procedure, in which the electors exercise their right to legislative initiative enshrined in the Satversme, then the legislator’s task is to adopt regulation ensuring that the principle of democracy is complied with. Thus, in the case under review the Constitutional Court must examine, whether the requirements, set by the impugned regulation for the exercise of the voters’ right to legislative initiative, are not incompatible with the principle of democracy. 16. The Constitutional Court, having examined the requirements for exercising the voters’ right to legislative initiative, has noted that the right of a totality of citizens to participate in the process of legislation is to be considered a right that belongs to the institutional field of constitutional order. The purpose of this right is to ensure direct, democratic participation by the people in the legislative process (see the judgment of the Constitutional Court of 19 May 2009 in the case no. 2008-40-01, para. 12, and the decision on terminating the proceedings of 19 December 2012 in the case no. 201203-01, para. 17). Thus, the procedure for implementing the voters’ legislative initiative envisaged by law may not be of the kind that makes the voters’ right to submit draft laws formal. The Constitutional Court has concluded in its rulings that the constitutional obligation of the Saeima to provide a clear regulating on exercising the electors’ right to legislative initiative and the procedure of a national referendum follows from Article 1 and Article 78 of the Satversme (see the judgment of the Constitutional Court of 19 May 2009 in the case no. 2008-40-01, para. 9, and the decision on terminating the proceedings of 19 December 2012 in the case no. 2012-03-01, para. 17). The case contains no dispute regarding the fact that the Saeima in the impugned regulation has specified the right of the subject referred to in Article 78 of the Satversme – one tenth of electorate. Moreover, the Constitutional Court has already recognised that the Saeima, in defining the procedure for exercising the voters’ right to legislative initiative and national referendum, enjoys discretion, insofar it is not limited by the provisions of the Satversme (see the decision on terminating the proceedings of 19 December 2012 in the case no. 2012-03-01, para. 16). Thus, the Constitutional Court has the discretion to establish the procedure for exercising the voters’ right to legislative initiative. 17. Verification, whether the legislator, in making the procedure for exercising the people’s right envisaged in Article 78 of the Satversme more exact and detailed, has not overstepped the limits of its discretion, falls within the jurisdiction of the Constitutional Court (see the decision on terminating the proceedings of 19 December 2012 in the case no. 2012-03-01, para. 15).

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The Saeima, in adopting the impugned regulation, first and foremost had to abide by the provisions on exercising the people’s right to legislative initiative included Article 65 and Article 78 of the Satversme. Pursuant to the aforementioned articles of the Satversme, no less than one tenth of the electors have the right to submit a draft law. Thus, the legislator, in adopting the impugned regulation, has not violated this provision of the Satversme. Moreover, the Satversme does not regulate the number of stages or the way the collection of voters’ signatures should be organised. However, the Saeima, in establishing the procedure for exercising the voters’ right to legislative initiative, may not use its discretion arbitrarily. Therefore the legislator needs well-founded reasons to amend the procedure for exercising the electors’ right to legislative initiative. Moreover, this procedure should be of the kind allowing voters to exercise their right to legislative initiative, established in the Satversme, effectively. To verify, whether the Saeima has not overstepped the limits of its discretion by providing in the impugned norm that the voters’ right to legislative initiative is to be exercised only in one stage of collecting signatures, during which the signatures of no less than one tenth of electors must be collected, and by increasing in the transitional provisions to 30 000 the number of those voters, who have to sign in favour of the draft law during the first stage of collecting signatures, the Constitutional Court must establish, whether: 1) well-founded reasons existed for adopting the impugned regulation; 2) the impugned regulation ensures effective exercising of the voters’ right o legislative initiative. 18. The Constitutional Court shall first of all examine, whether well-founded reasons existed for the legislator, in amending the procedure for exercising the voters’ right to legislative initiative, to establish the requirements included in the impugned regulation. 18.1. The Saeima has referred to a number of reasons, why the legislator adopted the Amendments to the Law on National Referenda, inter alia, the impugned regulation. Firstly, the new regulation included in the Law on National Referenda, must eliminate the shortcomings of this law and establish a clear and understandable procedure for implementing the electors’ legislative initiatives. Secondly, more expedient use of the state budget and private resources should be ensured. Thirdly, the citizens’ involvement in the work of the state by using the possibilities offered by contemporary technology should to be promoted, i.e., the possibility of using electronic signatures. Fourthly, the new regulation was adopted to decrease the possibility for advancing unprepared draft laws. Fifthly, public interests had to be protected, eliminating the possibility of using the voters’ legislative initiative and the national referendum contrary to their purposes. The opinion expressed by the Saeima and the summoned persons – that the Amendments to the Law on National Referendum can be recognised as a significant reform of the institute of national referendum – can be upheld (see the case materials, vol. 1, pp. 29‑31, vol. 2, pp. 162‑163, pp. 175‑176 and vol. 4, pp. 37‑38, 65‑67). The impugned regulation is only a part in the Amendments to the Law on National Referenda, which were necessary as a whole to update the Law on National Referenda in compliance with the contemporary legal and social reality, characterised by extensive use of technologies and possibilities of communication. These amendments simplify the procedure for exercising the electors’ right to legislative initiative. Likewise, they make the exercising of this right more accessible

for the electors, for example, by introducing additional opportunities to sign in favour of draft laws. The impugned regulation, inter alia, expands the possibilities for Latvian citizens residing abroad to participate in the electors’ legislative initiatives by signing in favour of draft laws. Moreover, the Constitutional Court has recognised: “[…] if draft laws of poor quality or unconstitutional draft laws were regularly submitted to national referenda, it would level out the very idea of electors’ legislative initiative and over time the civic activity of electors might decrease” (the judgment of the Constitutional Court of 18 December 2013 in the case no. 2013-06-01, para. 13.2). Thus, the legislator must ensure that the civic activity of electors is not decreasing only because unprepared draft laws are advanced in the form of electors’ legal initiative. The opinion expressed by the Petitioner and the summoned persons that solely the decrease of state budget expenditure cannot be regarded as a well-founded reason for significantly amending the procedure for exercising the people’s right to legislative initiative can be upheld (see the case materials, vol.1, p. 9, vol. 3, p. 130 and vol. 4, pp. 69 and 76). The possibilities for exercising the electors’ right envisaged in the Satversme should not be influenced by the fact that the legislator, possibly, wants to decrease the financial support provided for the particular procedure or to cease financing it altogether. However, the Saeima, in regulating the procedure, in which the electors exercise their right to legislative initiative, has the right to consider, whether this procedure ensures rational use of the invested financial resources. 18.2. It follows from the case materials that in the course of drafting the impugned regulation extensive discussions took place in the Saeima about ways of establishing in the Law on National Referenda such procedure that would not restrict the electors’ right to legislative initiative. It was emphasized at the meetings of the Saeima Legal Affairs Committee that the impugned regulation should ensure exercise of this right (see the case materials, vol. 1, pp. 67‑71, 124‑129 and the appendix to vol. 3 – audio recordings of the meetings of the Saeima Legal Affairs Committee). The experience of other countries and the experts’ opinions expressed at the meetings of the Saeima Legal Affairs Committee had been taken into consideration in elaborating the Amendments to the Law on National Referenda (see the case materials, vol. 1, pp. 58‑60, vol. 3, pp. 110‑118 and the appendix to vol. 3 – audio recordings of the meetings of the Saeima Legal Affairs Committee). At the hearing of the Court the representatives of the Saeima and the summoned persons noted that the electors’ legislative initiatives and the national referenda implemented according to the procedure established in Article 78 of the Satversme were indicative of deficiencies in the procedure that had existed thus far. For example, the requirement that the minimum necessary number of signatures to be collected in the first stage of collecting signatures should be 10 000 had been disproportionally low. This had caused doubts regarding the necessity of the draft law and the public interest in its further advancement (see the case materials, vol. 4, pp. 83‑85). Also during the meetings of the Saeima Legal Affairs Committee, when the impugned regulation was examined, an opinion had been expressed that the existing procedure for implementing the electors’ legislative had facilitated collection of signatures and organising of national referenda about issues, which a large part of society did not consider to be significant (see the case materials, vol. 1, pp. 67‑74 and vol. 2, pp. 149‑150). Some of the summoned persons at the hearing of the Court emphasized that the electors’ legislative initiative not infrequently served not for advancing important draft laws, but for carrying out the campaigns of political parties (see the case materials,

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vol. 4 pp. 102‑103, 134‑136). The Constitutional Court also notes that pursuant to Article 23(2) of the Law on National Referenda a political party, an alliance of political parties or an association can be the initiative group for collecting signatures in favour of a draft law. A draft law can be important for a significant part of electros also in the case if the electors’ legislative initiative had been launched by a political party. 18.3. Already the Constitutional Assembly, in drafting the provisions of the Satversme regarding the electors’ right to legislative initiatives, emphasized “national referenda are admissible, but they can take place only if life has made it necessary, on very significant issues.” Likewise, an opinion that “the national referendum, in which people have to participate fully prepared and with clear conviction, clear insight that such acts should occur only in case of serious need, and therefore the number, which gives the right to citizens to propose and achieve implementation of people’s initiative and a referendum, has been established such that in case a serious need requires it, then the number will be achieved and it will be possible to hold the national referendum” [Latvijas Satversmes sapulces stenogrammu izvilkums (1920–1922). Rīga: Tiesu namu aģentūra, 2006, 5, p. 129]. The Constitutional Court, having examined the requirement in the Law on National Referenda that the elector has the obligation to certify his or her signature at a certified notary’s office or a local government institution, which engages in notarial activities, has recognised that the procedure for collecting electors’ signatures must ensure that important draft laws, elaborated in the interests of a significant part of populations are advanced in the form of electors’ legislative initiative (see the judgment of the Constitutional Court of 19 May 2009 in the case no. 2008-40-01, para. 15.3). This finding can be applied also to the case under review. The requirement included in the impugned regulation to collect the signatures of a sufficiently significant part of electorate creates conviction that the issues dealt with in the draft law will be important enough for the electors to sign and for the legislative initiative to bring results. Moreover, in accordance with the procedure established in the Rules of Procedure of the Saeima at least 10 000 citizens of Latvia have the right to submit a collective application to the Saeima. This procedure is effective as of 2 February 2012. Thus, at the time when the impugned regulation was adopted, i.e., on 8 November 2012, the citizens already had the right to submit a collective application. Not only the electors’ legislative initiative, but also the collective applications gives to the citizens the possibility to achieve that a legislative procedure regarding an issue that is important for them is initiated in the Saeima. Thus, the Constitutional Court has obtained confirmation that the reasons due to which the legislator introduced amendments to the procedure for exercising the electors’ right to legislative initiative by the impugned regulation were wellfounded. 19. The legislator’s task in establishing a procedure for exercising the electors’ right to legislative initiative is to create a legal mechanism allowing effective exercise of this right. 19.1. The Constitutional Court finds that as of 1 January 2015 the Law on National Referenda is envisaging the possibility to sign in favour of a draft law in a number of sites. I.e., pursuant to Article 22(1) of the Law on National Referenda every elector’s signature must be certified by a notary public in the local government, where the declared place of residence is located, at a custody court, which engages in notarial

activities, or in the region by the head of a parish or municipality. The legislator has also envisaged the possibility, as of the date when the impugned norm enters into force, to collect signatures in favour of draft laws electronically in the United Portal of State and Municipal Services or in another online system. At the hearing of the Court the Petitioner’s representative expressed doubts, whether the state would be able to ensure the possibility to electors to sign electronically in the United Portal of State and Municipal Services as of 1 January 2015 (see the case materials, vol. 4 pp. 2‑3, 142‑144). Pursuant to the information, which was provided at the hearing of the Court by the representative of the Ministry of Environment Protection and Regional Development and the representatives of the Saeima, sufficient state budget resources have been allocated to meet the provisions of the Law on National Referenda – to develop and maintain appropriate system for signing in the United Portal of State and Municipal Services (see the case materials, vol. 4 pp. 119‑120, 154‑155). The Constitutional Court has no grounds to doubt that the Cabinet will be able to ensure that a system allowing electors to sign in the aforementioned portal in favour of a draft law is established. The accessible means of electronic communication and the level of development of contemporary technologies allow electors to exercise their right to legislative initiative established in the Satversme in a sufficient fast and convenient way. Thus, the possibilities for signing established by the Saeima is a solution that is favourable for the electors and ensures exercising the right to legislative initiative. 19.2. Pursuant to Article 22(1) of the Law on National Referenda electors may submit a draft law within 12 months as of the date, when it is registered with the Central Election Committee. Thus, no less than one tenth of electorate have the right to sign in favour of the draft law within a year. This term for signing is to be recognised as being reasonable and sufficient, allowing electors to express their will and the initiators of the draft law to collect the signatures of no less than one tenth of electorate. Moreover, in accordance with the previous procedure, every signature of at least 10 000 electors collected during the first stage of collecting signatures was valid for 12 months, whereas the other electors had to make their choice regarding signing in the second stage within 30 days. Whereas the legislator has set a longer term in the impugned norm, during which no less than one tenth of electorate can sign in favour of a draft law. The Constitutional Court concludes that the new procedure allows electors to consider and express properly their attitude towards the draft law. 19.3. The Petitioner doubts, whether it will be possible to exercise the right to legislative initiative on its merits, since starting with 1 January 2015 the collection of signatures will be held only in one stage, during which no less than one tenth of the electors will have to sign. The aforementioned requirement allegedly restricts also the minority rights, typical of democracy. The Constitutional Court already found that the impugned regulation facilitates advancing in the procedure of electors’ legislative initiative only draft laws that are important for electors. The opinion expressed by a number of summoned persons that the support of a sufficiently large part of electors can be achieved by initiating the adoption of laws, which are, indeed, important for electors (see the case materials, vol. 4 pp. 75‑77, 83‑84, 98‑100). Thus, the electors will engage in implementing the legislative initiative more actively if the issues dealt with by the draft law are important to them. The Saeima, in establishing the procedure for implementing the electors’ legislative initiative, must ensure the balance between the majority’s interests and

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the minority’s rights, necessary in democracy. However, the constitutional legislator has already defined this minority numerically in the Satversme, envisaging that no less than one tenth of electors can submit a draft law. As concluded in Para 17 of this Judgment, the legislator had abided by this provision of the Satversme in adopting the impugned norm. Thus, the impugned norm ensures to the minority of electors the right to express their will by submitting draft laws. The procedure established by the impugned norm allows electors to exercise effectively their right to legislative initiative established by the Satversme. 20. The Petitioner holds that the legislator has increased the minimum number of electors, who have to sign in favour of a draft law during the first stage of collecting signatures, from 10 000 to 30 000 unfoundedly. The Constitutional Court must examine the impact of the changed number of electors upon the possibilities for exercising the electors’ right to legislative initiative. 20.1. Pursuant to the law adopted in 1922 “On National Referenda and Legislative Initiative”, no less than one thousand electors’ signatures had to be collected during the first stage of collecting signatures in order to submit the draft law to the Central Election Committee. As E.Endziņš noted during the hearing of the Court, one thousand was a substantiated number, in view of the possibilities for circulating information at the time – which were very limited compared to the present. Whereas in the Law on National Referenda, adopted by the 5th Saeima on 31 March 1994, the minimum necessary number of electors’ signatures during the first stage of collecting signatures was increased to 10 000, since the situation had changed (see the case materials, vol. 4, pp. 134‑135). At the Saeima session of 31 March 1994 it was emphasized that increasing the minimum necessary number of electors’ signatures would make the electors exercise the right to legal initiative in a more responsible way. Moreover, it should be taken into consideration that the state incurs substantial expenses in ensuring the second stage of collecting signatures and organising the national referendum (see the transcript of the session of 31 March 1994 of the 5th Saeima of the Republic of Latvia). 20.2. The Constitutional Court Law defines the limits of the jurisdiction of the Constitutional Court, and it does not grant to the Constitutional Court the right to assess the political expediency of actions taken by other constitutional institutions of state power (see the judgment of the Constitutional Court of 11 November 2005 in the case no. 2005-08-01, para. 9, and the judgment of 29 November 2007 in the case no. 2007-10-0102, para. 36.4). The Constitutional Court examines an issue falling within its jurisdiction, insofar legal arguments, differentiated from law policy arguments, can be applied to it. Issues to be dealt with politically must be decided on by democratically legitimised political bodies of the state, first of all – the legislator (see the decision of the Constitutional Court on terminating the proceedings of 19 December 2012 in the case no. 2012-03-01, para. 13.4). The choice of the most effective means to ensure exercising the electors’ right to legislative initiative first and foremost is an issue of political choice made by the legislator. However, examining, whether the legislator has chosen such means that ensure to citizens the possibility to exercise their constitutional rights effectively, falls within the jurisdiction of the Constitutional Court. In drafting the impugned transitional provisions, the Saeima Legal Affairs Committee discussed the minimum necessary number of electors during the first stage of signing, initially envisaging increasing it to 70 000 (see the case materials, vol. 1,

pp. 84‑87). Whereas the Saeima, in the extraordinary sitting of 26 July 2012, decided that the minimum necessary number of electors’ signatures during the first stage of signing should be 50 000. I. Kahanoviča, the representative of the President of the State, confirmed at the hearing of the Court that the President of the State had supported increasing the minimum necessary number of electors’ signatures to 50 000, moreover, in the letter of 3 August 2012 to the Speaker of the Saeima had emphasized that this number in the first stage of collecting signatures should be retained also after repeated examination of the law (see the case materials, vol. 1, pp. 130‑131, vol. 2, p. 127 and vol. 4, p. 128). 20.3. It follows from the case materials that the transitional provisions were elaborated to ensure transition to the new regulation set out on Article 22 of the National Referenda Law, which envisages the possibility of collecting signatures also electronically (see the case materials, vol. 1, pp. 84‑87). The Cabinet must ensure that the United Portal of State and Municipal Services is technically ready and secure for collecting signatures in online regime by 1 September 2014. Thus, the legislator had to envisage a transitional period, during which it would be possible to prepare the aforementioned portal, so the electors could start signing electronically in favour of a draft law as of 1 January 2015. Even though the Petitioner contests the substantiation of the minimum number of electors envisaged in the transitional provisions, it must be taken into consideration that 30 000 constitutes only two per cent of the totality of citizens with the right to vote. Therefore the requirement to collect 30 000 electors’ signatures is justifiable and does not prohibit the electors to exercise their right to legislative initiative, established in the Satversme, effectively. A number of summoned persons expressed such considerations (see the case materials, vol. 1 p. 28 and vol. 2 pp. 169, 176‑177). Thus, the legislator in the impugned transitional provisions has defined a reasonable and gradual transition to the legal regulation that will enter into effect on 1 January 2015 and will envisage collecting of electors’ signatures in one stage, during which the initiators of the draft law themselves will have to collect the signatures of no less than one tenth of electorate. Thus, the procedure envisaged by the impugned transitional provisions allows the electors to exercise their right to legislative initiative, established in the Satversme, effectively. 21. The Constitutional Court already recognised that the legislator had wellfounded reasons for adopting the procedure established by the impugned regulation, allowing the electors to exercise their right to legislative initiative, established in the Satversme, effectively. In the Law on National Referenda the legislator has significantly expanded the electors’ possibilities to sign in favour of draft laws as of 1 January 2015 and, inter alia, has envisaged also electronic signing. Moreover, it will be possible to collect the signatures of no less than one tenth of electorate for a sufficiently long period of time – 12 months. The changes introduced by the impugned transitional provisions in the procedure for implementing electors’ legislative initiative envisage gradual transition to the procedure established by the impugned norm. Thus, there are no grounds to consider that the Saeima, in adopting the impugned regulation, exceeded the limits of its discretion. Thus, the requirements set out in the impugned regulation comply with the principle of democracy included in Article 1 of the Satversme.

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In Para 14.5 of this judgment the Constitutional Court already concluded that the sovereignty of people can be exercised only within the framework of democracy and the impugned regulation would comply with Article 2 of the Satversme, if the principle of democracy enshrined in Article 1 of the Satversme had been abided by. The legislator did not violate Article 1 of the Satversme, hence, the impugned regulation is not incompatible with the principle of the people’ sovereignty enshrined in Article 2 of the Satversme. At the same time the Constitutional Court reminds that the legislator, abiding by the fundamental principles of a state governed by the rule of law enshrined in Article 1 of the Satversme, has the obligation to consider regularly, whether the legal regulation continues to be effective and whether it should not be improved in any way (see, for example, the judgment of the Constitutional Court of 11 November 2005 in the case no. 2005-08-01, para. 9.5, and the judgment of 2 June 2008 in the case no. 2007-22-01, para. 18.3). Thus, the legislator both during the transitional period and after 1 January 2015 must follow, whether the procedure envisaged by the impugned regulation can be implemented and whether electors are able to exercise their right to legislative initiative effectively. The legislator, in adopting the impugned regulation, has not exceeded the limits of its discretion and the impugned regulation complies with Article 1 and Article 2 of the Satversme.

The resolutive part On the basis Article 30-32 of the Constitutional Court Law the Constitutional Court decided: To declare Article 22(1) (in the wording of the Law of 8 November 2012, which enters into force on 1 January 2015) and of para. 4 and para. 5 of transitional provisions of the Law on National Referenda, Legislative Initiatives and European Citizens’ Initiative as being compatible with Article 1 and Article 2 of the Satversme of the Republic of Latvia. The judgment is final and not subject to appeal. The judgment comes into force as of the day of its pronouncement.

Chairman of the hearing of the Court G. Kūtris

2014-09-01

Arbitration courts

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The competence of a court of general jurisdiction to review the legality of an arbitration court agreement A person’s agreement to having a dispute resolved by an arbitration court was reviewed. An arbitration court does not belong to the system of judicial power. Therefore a person, by agreeing to dispute resolution at an arbitration court and waiving his right to turn to a court of general jurisdiction, voluntary restricts his fundamental rights. However, such a freedom of a person extends only insofar it is compatible with the basic principles of the legal system of a democratic state governed by the rule of law. It was recognised that the state has the obligation to create such legal mechanism that would allow to verify whether a person had voluntarily waived his right to a fair trial. If a person has not agreed to have a case adjudicated by an arbitration court, then the arbitration court procedure and its potential outcome may infringe upon the rights of such person. In such cases a person must have the right to turn to court to protect his rights that have been infringed upon, irrespectively of other persons’ will or actions. It was noted that, in resolving some issues in the Latvian legal system, the legal regulation of other countries cannot be applied directly. In comparative law analysis, the different legal, social, political, historical and systemic context always must be taken into consideration. However, if sufficiently clear-cut general conclusion regarding harmonisation of national law or a united standard in a certain matter can be made, then the summary on legal regulation or practice of other states may serve as a recommendation for resolving the particular problem or as a general principle of law.

JUDGMENT in the name of the Republic of Latvia in the case no. 2014-09-01, Riga, 28 November 2014 The Constitutional Court of the Republic of Latvia in the following composition: the chairman of the hearing of the Court Aldis Laviņš, judges Kaspars Balodis, Kristīne Krūma, Gunārs Kusiņš, Uldis Ķinis and Sanita Osipova, having regard to a constitutional complaint submitted by the limited liability company “HIPOTĒKU BANKAS NEKUSTAMĀ ĪPAŠUMA AĢENTŪRA”, with the participation of the authorised representatives of the submitter of the constitutional complaint – sworn attorneys Mārtiņš Aljēns, Uģis Zeltiņš and Arnis Ešenvalds, the authorised representative of the institution that has adopted the impugned act – the Saeima [the Parliament] of the Republic of Latvia, Daina Ose, legal advisor of the Legal Bureau of the Saeima,

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with the secretary of the hearing of the Court Elīna Kursiša, on the basis of Article 85 of the Satversme [the Constitution] of the Republic of Latvia, Article 16(1) and Article 17(1)(11) of the Constitutional Court Law, on 21 and 29 October 2014 in Riga examined at a public hearing of the Court the case “On the compliance of Article 495(1) of the Civil Procedure Law with the first sentence of Article 92 of the Satversme of the Republic of Latvia”.

The facts 1. On 14 October 1998 the Saeima adopted the Civil Procedure Law, which entered into force on 1 March 1999. Article 495(1) of the Law provides that an arbitration court determines its jurisdiction regarding a dispute, even in cases where one of the parties contests the existence or the validity of an agreement (hereinafter – the impugned norm). Pursuant to the impugned norm the arbitration court itself decides whether the dispute is subject to adjudication by the arbitration court (hereinafter – the principle of the arbitration court jurisdiction). 2. The limited liability company “HIPOTĒKU BANKAS NEKUSTAMĀ ĪPAŠUMA AĢENTŪRA” (since 1 October 2014 – limited liability company “Hiponia”) (hereinafter – the Petitioner) has requested the Constitutional Court to examine the compliance of the impugned norm with the first sentence of Article 92 of the Satversme of the Republic of Latvia (hereinafter – the Satversme). The Petitioner has been a defendant in two proceedings before the Latvian Arbitration Court. However, the Latvian Arbitration Court allegedly did not have the right to adjudicate the cases initiated against the Petitioner, because the dispute had not been subject to adjudication by the Latvian Arbitration Court. I.e., the Petitioner alleges that the agreement of 20 December 2011 on the basis of which the arbitration court had recognised that the cases fell within its jurisdiction should be recognised as being a forged document, since it had never concluded this kind of an agreement. In the legal proceedings before the arbitration court the Petitioner had requested the Latvian Arbitration Court to demand the original of the agreement of 20 December 2011 and to order an expert examination of it. However, the arbitration court rejected this request. The Petitioner turned to a court of general jurisdiction, requesting it to recognise the forged arbitration court agreement as being invalid. However, the court of general jurisdiction had found that the claim regarding the validity of the arbitration court agreement could not be subject to examination by a court of general jurisdiction, except for cases envisaged in law. The Department of Civil Cases of the Supreme Court had also recognised this finding as being valid. Thus, the impugned norm allegedly restricts a person’s fundamental right by denying a person the possibility to contest the validity of an arbitration court agreement even in the presence of valid suspicion that this agreement might be forged. Allegedly, it is not doubted that the restriction to the fundamental right established by the impugned norm has been defined in law. Likewise, the restriction to the fundamental right has a legitimate aim – ensuring fast adjudication of disputes. I.e., the impugned norm comprises the principle of the arbitration court jurisdiction recognised internationally, according to which an arbitration court itself decides on the jurisdiction of the dispute. However, the legislator, by prohibiting contesting

the jurisdiction of an arbitration court at a court of general jurisdiction, allegedly has not chosen a measure that would restrict a person’s right in the most lenient way possible. The principle of the jurisdiction of an arbitration court may not be understood in a way that would grant to an arbitration court an exclusive right to decide on the issue of the jurisdiction of a dispute for adjudication by an arbitration court. This principle is linked to the idea that an arbitration court may adopt decisions that are fair and protect the interests of the parties to the case. However, allegedly, the true aim of this principle is not to leave the issue of the jurisdiction of a dispute only to the discretion of arbitration courts. I.e., this principle not only does not exclude a person’s right to turn to a court of general jurisdiction, but also – quite on the contrary – respects this right. The public benefit from fast proceedings before the arbitration court cannot counterbalance the damage inflicted upon a person’s rights. The impugned norm is said to not only cause a situation when a person is forced to resign with having a dispute adjudicated by an arbitration court, but also possibilities for abusing the institution of arbitration court. The Petitioner also notes that the regulation of the Civil Procedure Law on issuing a writ of execution in connection with an arbitration court award does not ensure an effective protection of a person’s fundamental rights. I.e., in the stage of issuing a writ of execution, a court of general jurisdiction has the obligation to verify only whether any of the grounds defined in Article 536(1) of the Civil Procedure Law to refuse issuing a writ of execution exists. This verification allegedly does not entail examination of whether the arbitration court agreement is valid – pursuant to Article 536(1)(3) of the Civil Procedure Law one of the grounds when a judge may refuse issuing a writ of execution is that “the arbitration court agreement, pursuant to the law applying thereto, has been set aside or declared null and void”. Thus, issuing a writ of execution may be refused if the arbitration court agreement has already been set aside or declared null and void, but the judge cannot examine this issue when deciding on the application for issuing a writ of execution for the enforcement of the arbitration court award. The Petitioner agrees to the opinion of the Saeima that in some cases the possibility to contest an arbitration court agreement at a court of general jurisdiction could be abused, for example, to delay the arbitration court proceedings or the enforcement of the arbitration court award. However, this fact does not justify such legal regulation that denies a person the right to contest at a court of general jurisdiction the existence or validity of an arbitration court agreement. The legislator could prevent abuse of the right to contest the arbitration court agreement at a court of general jurisdiction. For example, it could be possible to include in the law a special legal regulation, pursuant to which the decision on the jurisdiction of a dispute to be adjudicated by an arbitration court could be subject to the judicial control by a court of general jurisdiction. At the hearing of the Court, the authorised representative of the Petitioner, sworn attorney Mārtiņš Aljēns, noted additionally that the source of the principle of arbitration court jurisdiction is not the agreement of the parties, but either national or international law. The fact that the arbitration court is the first to decide on its own jurisdiction is said to follow not from the arbitration court agreement but from the legal norm, the aim of which is to ensure that the proceedings before the arbitration court are not delayed. The principle of arbitration court jurisdiction allegedly does not exclude the possibility that also a court of general jurisdiction might adjudicate the issue of the jurisdiction of the dispute. Quite to the contrary – the aforementioned principle is

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said to mean only that the arbitration court has the priority in deciding on questions regarded the arbitration court’s jurisdiction over a dispute. The regulation of the Civil Procedure Law which applies to the issuing of a writ of execution for compulsory enforcement of the arbitration court award allegedly is not appropriate in order for a judge to make a comprehensive and unbiased assessment of the validity of the arbitration court agreement. The parties to this procedure do not have the possibility to use all means for proving that are envisaged by law, for example, witnesses’ evidence. The legislator has the competence to adopt such legal regulation that would impact the effectiveness of the proceedings before the arbitration court to the least extent possible. It would be possible to envisage in the law a special procedure for contesting the arbitration court agreement. For example, the respective cases could be examined by the appellate instance court, the ruling of which would be final or could be appealed against only to the cassation instance court. Allegedly it does not follow from the principle of arbitration court jurisdiction that the issue of jurisdiction of a dispute would fall only within the exclusive jurisdiction of an arbitration court. The arbitration court, allegedly, has only the priority in deciding on the jurisdiction of a dispute; however, it should not be the only one deciding on this issue. The state has the obligation to ensure to a person the right to contest before a court of general jurisdiction the decision by an arbitration court on the jurisdiction of a dispute. If the arbitration court agreement is contested, than the subject matter of the dispute is whether a person had, indeed, waived his or her right to have the case heard before a court of general jurisdiction. 3. The institution which has adopted the impugned act – the Saeima – considers that the impugned norm complies with the first sentence of Article 92 of the Satversme. The right to a fair court is said to be ensured, essentially, also in the proceedings before an arbitration court, and these proceedings are said to be one of the ways in which a person can protect his or her infringed rights or lawful interests. It is contended that a person’s right to choose adjudication of a dispute by an arbitration court follows from the dispositive principle. This means that a person may not only waive the judicial protection, but also any other form of rights protection. If a person, expressing his or her free will, waives the protection of his or her subjective rights in court and selects another form of rights protection allowed by law, then a restriction on the fundamental rights enshrined in Article 92 of the Satversme cannot be identified. The Saeima upholds the Petitioner’s view that the impugned norm envisages the principle of arbitration court jurisdiction. It is contended that this principle does not mean that an arbitration court has the right to decide, whether the dispute is subject to being adjudicated by an arbitration court. The impugned norm is said to be aimed at decreasing the workload of courts of general jurisdiction, to limit the possibilities of the parties to delay the proceedings before the arbitration court and to ensure fast resolution of a dispute between parties. It is maintained that the impugned norm protects the right of other persons to a fair court, because it ensures faster and more effective hearing of disputes. Allegedly, the impugned norm is appropriate for reaching the legitimate aim, since it clearly provides: turning to a court of general jurisdiction regarding the existence or the validity of an arbitration court agreement is impermissible. Pursuant to the impugned norm, the arbitration court itself decides on these issues. The Saeima is said to have a broad discretion in defining the regulation regarding the proceedings before

the arbitration court. Whereas the courts of general jurisdiction control the operations of the arbitration courts in the procedure of issuing a writ of execution. More extensive involvement of a court of general jurisdiction in controlling the judgment by the arbitration court would give a person possibilities to abuse this right and to delay the proceedings before the arbitration court. Moreover, considering the pace of legal proceedings in the state courts of all instances, it is clear that one of the most important advantages of the arbitration court proceedings – fast adjudication of a dispute – would be lost. Thus, the benefit to the society ensured by the impugned norm, i.e., effective functioning of arbitration courts, is said to exceed the restrictions to the rights of some persons caused by the impugned norm. If the impugned norm were to be recognised as being incompatible with the first sentence of Article 92 of the Satversme, the defendants would be able to always submit a claim to a court of general jurisdiction contesting the arbitration court agreement. If the procedure before the arbitration court were to be suspended until a court of general jurisdiction had heard the dispute regarding the validity of arbitration court agreement, the arbitration court proceedings would become meaningless. During the hearing of the Court the authorised representative of the Saeima Daina Ose additionally noted that the Saeima, respecting the wish of society to use methods of alternative dispute resolution in solving contentions and disputes, had adopted the Law on Arbitration Courts and the Law on Mediations. These laws are going to ensure high quality resolution of every dispute. The Law on Arbitration Courts envisages special pre-requisites for establishing an arbitration court and for improving the quality of the arbitration court proceedings. As regards a person, who wants to fulfil the duties of an arbitrator, the legislator has set the requirements of an impeccable reputations, professional or academic higher education, qualification of a lawyer and at least three years long practical experience, gained while working as a faculty member at an institution of higher education in the speciality of legal science or another position in legal speciality. During the process of adopting the Law on Arbitration Courts the Legal Affairs Committee of the Saeima had debated the principle of the arbitration court jurisdiction. All those participating in the discussions had agreed that the current procedure which envisaged the control over the jurisdiction of an arbitration court at the stage of issuing a writ of execution was sufficient for ensuring a fair outcome. If a court of general jurisdiction had the right to decide on the validity of arbitration court agreement after the arbitration court itself had decided on it, a party to a dispute would be simultaneously involved in two legal proceedings. This could lead to legal uncertainty and a possibility to delay the enforcement of the arbitration court award. The control of arbitration courts by courts of general jurisdiction is concentrated in the stage of issuing a writ of execution, i.e., after the case has been heard in the arbitration court proceedings on its merits and the compulsory enforcement of its award is necessary. In this stage of legal proceedings, the legality of the arbitration court proceedings is verified, inter alia, also the independence and impartiality of the arbitration court. Likewise, the judge, upon issuing a writ of execution for compulsory enforcement of the arbitration court award, has the right to assess the validity of the arbitration court agreement. The representative of the Saeima, referring to statistical data, also noted that the mechanism for controlling rulings by arbitration courts, selected by the Saeima, which functioned at the stage of issuing a writ of execution, had justified itself, by significantly relieving the workload of courts of general jurisdiction. In those instances,

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when an assessment of the quality of the arbitration court judgment by the court of general jurisdiction is needed, it is provided during the stage of issuing a writ of execution. […]

The motives 14. In the case under review the regulation of the Civil Procedure Law, which denies a person the right to turn to a court of general jurisdiction to dispute the competence of an arbitration court to decide on the jurisdiction of a civil law dispute in a particular case, when a person has not agreed to having the case adjudicated by an arbitration court, is disputed. 14.1. The Constitutional Court has recognised that an arbitration court does not belong to the system of judicial power, which is established in the Satversme and the law “On Judicial Power”. A person’s right to agree to enter into an arbitration court agreement follows from the dispositive principle. If an arbitration court agreement is concluded, a person’s free will is expressed in the form of a legal transaction, and the criterion of the admissibility of a voluntary restriction to fundamental rights is applied. Substituting a person’s freely expressed will by an assessment of the reasonability of such actions is neither the task of the legislator, nor that of the Constitutional Court. Even though the state is not responsible for the arbitration court proceedings and a person, through freely expressed will, may voluntarily waive the possibility to have a particular civil law dispute adjudicated by a court of general jurisdiction, nevertheless a person’s freedom to waive the fundamental rights guaranteed in the Satversme extends only insofar it is compatible with the basic principles of a legal system of a judicial and democratic state. The first sentence of Article 92 of the Satversme envisages both the obligation of the state to establish an effective legal regulation that would ensure the possibility to eliminate essential procedural violations that have occurred in the arbitration court proceedings, as well as the obligation to not recognise the outcome of such arbitration court proceedings, where such violations have occurred (see the judgment of the Constitutional Court of 17 January 2005 in the case no. 2004-10-01, paras. 5, 8 and 9). 14.2. Moreover, in establishing the content of the fundamental rights established in the Satversme, Latvia’s international commitments in the field of human rights must be taken into consideration (see, for example, the judgment of the Constitutional Court of 20 December 2010 in the case no. 2010-44-01, para. 8.1). The Constitutional Court has already interpreted Article 92 of the Satversme with regard to the field of arbitration courts in interconnection with Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter – the Convention) (see the judgment of the Constitutional Court of 17 January 2005 in the case no. 2004-10-01, para. 7.1). Thus, the findings included in the rulings by the European Court of Human Rights (hereinafter – ECHR) on Article 6 of the Convention with regard to arbitration court are to be used in determining the content of the first sentence in Article 92 of the Satversme. With regard to arbitration court ECHR has noted that Article 6 of the Convention does not prohibit from establishing arbitration courts for resolving disputes of commercial nature between private persons (see the ECHR Judgment of 28 October

2010 in the case “Suda v. the Czech Republic”, application no. 1643/06, para. 48, and the judgment of 3 April 2008 in the case “Regent Company v. Ukraine”, application no. 773/03, para. 54). A person has the right to waive the right to have the case heard by a court of general jurisdiction, and Article 6 of the Convention allows such freely expressed waiver (see the ECHR decision of 23 February 1999 in the case “Suovaniemi and Others v. Finland”, application no. 31737/96). ECHR has also recognised that the choice to transfer the dispute for hearing by an arbitration court should be free, compatible with law and unequivocal. If disputes are heard by an arbitration court on the basis of law, not on the basis of the parties’ free will, then the arbitration court proceedings should comply with all requirements of Article 6 of the Convention (see the ECHR judgment of 28 October 2010 in the case “Suda v. the Czech Republic”, application no. 1643/06, paras. 48 and 49). Thus, in those cases where parties have freely chosen to transfer the dispute for hearing by an arbitration court, it is being presumed that in the arbitration court proceedings they waive the rights included in Article 6 of the Convention. The state carries no responsibility for the fairness of case adjudication by arbitration courts; however, in those cases, where a court of general jurisdiction controls the arbitration court proceedings, it should verify, whether the legal proceedings before the arbitration court have been fair (see the decision of the European Commission on Human Rights of 2 December 1991 in the case “Jakob BOSS Söhne KG v. Germany”, application no. 18479/91). The state control over the functioning of arbitration courts may have twofold manifestations: firstly, the state may provide that an arbitration court should be established and that it should function in compliance with the requirements of Article 6 of the Convention; secondly, the state may envisage that the functioning of arbitration courts is controlled by a court, which has been established and functions in compliance with Article 6 of the Convention. Thus, the obligation of the state to create a legal mechanism for examining, whether a person has voluntarily waived the right to a fair court follows from the first sentence of Article 92 of the Satversme and international documents binding upon Latvia. 15. The Petitioner notes in the constitutional complaint that the impugned norm denies its right to turn to a court of general jurisdiction and contest the jurisdiction of the arbitration court. I.e., the Latvian Arbitration Court heard the case on the basis of such arbitration court agreement, with regard to validity of which reasonable doubts existed; however, courts of general jurisdiction, on the basis of the impugned norm, refused to examine the issue of the arbitration court jurisdiction. Whereas the Saeima notes in its written reply that the impugned norm comprised the principle of the arbitration court jurisdiction, which should be regarded as one of the basic principles in the international arbitration law. Allegedly, this principle means that only and solely the arbitration court has the right to decide on all issues pertaining to its jurisdiction. During the court hearing the parties to the case and the summoned persons noted that principle of the arbitration court’s jurisdiction was included in a number of sources of international law (see, for example, the transcript of the hearing of the Constitutional Court of 21 and 29 October 2014 in the case materials, vol. 5, pp. 10, 41, 70, 86 and 138). However, the opinions expressed regarding the content of the principle of arbitration court jurisdiction diverged.

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The Petitioner’s representative, the representative of the Ombudsman, Inga Kačevska and Jānis Lapsa noted that this principle did not deny courts of general jurisdiction the right to assess the competence of an arbitration court (see, for example, the transcript of the hearing of the Constitutional Court of 21 and 29 October 2014 in the case materials, vol. 5, pp. 85, 138, 140, 167, 168 and 183). Whereas the representative of the Saeima and the representative of the Ministry of Justice noted that this principle should be understood in the way that a person had not right to turn to a court of general jurisdiction and request the court to assess the jurisdiction of an arbitration court (see, for example, transcript of the Constitutional Hearing of the Court of 21 October 2014 in the case materials, vol. 5, pp. 27, 29 and 74). In view of the fact that the parties to the case and the summoned persons expressed divergent opinions on the principle of arbitration court jurisdiction, the Constitutional Court must first and foremost establish, what kind of content is granted to the principle of arbitration court jurisdiction in the sources of legal regulation on arbitration courts. 15.1. The Constitutional Court notes that legal proceedings before an arbitration court is to be recognised as an effective way, in which persons can resolve their civil law disputes. The legal proceedings before an arbitration court gain particular relevance in case, where the disputes of parties to commercial legal relationships should be resolved in due time and, thus, civil law circulation should be sped up. Therefore, the arbitration court procedure is of great importance in the legal system of Latvia, and the legal regulation of this field should be based both upon international legal acts binding upon Latvia and upon other binding legal acts – the principles of international law. 15.2. The second and the third part of Article VI of the European Convention on International Commercial Arbitration envisages that a court of general jurisdiction may decide on the jurisdiction of an arbitration court if the arbitration court agreement is non-existent or null and void, or has lapsed. In the scope of the aforementioned Convention the term “invalid arbitration agreement” means an agreement that has been invalid already from the moment of its drafting, for example, in the absence of the parties’ will to conclude an agreement or if a party is incapacitated (see Hascher D.T. European Convention on International Commercial Arbitration of 1961: Commentary. Yearbook Commercial Arbitration, vol. XXXVI, 2011, p. 524). The aforementioned Convention also envisages that a court of general jurisdiction, before an arbitration court has adjudicated the case on its merits, decides on the issue of the validity of an arbitration agreement only in particular cases, i.e., if well-founded and significant reasons exist. Moreover, also in such a case a court of general jurisdiction may only conduct a prima facia examination of the validity of the arbitration agreement. Whereas after the arbitration court has passed its ruling, a court of general jurisdiction has the right to assess the arbitration agreement in full [see Fouchard Gaillard Goldman On International Commercial Arbitration. Gaillard E., Savage J. (Eds.) The Hague: Kluwer Law International, 1999, p. 408]. 15.3. The principle of arbitration court jurisdiction is not included expressis verbis in The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which is binding upon Latvia. However, this Convention does not exclude the right of a court of general jurisdiction to examine the arbitration court jurisdiction. Only in examining the jurisdiction of an arbitration court, the principle of chronology must be complied with – the arbitration court should be the first to decide on its jurisdiction, unless a court of general jurisdiction has not established before that that the arbitration agreement is invalid, has lost its force and cannot be implemented (see ICCA’s Guide to the Interpretation of the 1958 New York Convention: A Handbook

for Judges. The Hague: International Council for Commercial Arbitration, 2011, p. 39). An arbitration agreement cannot be implemented in those cases where it has been invalid from the very beginning, has been concluded without expressed will of the parties, for example, without due authorisations, by duress, fraud or excessive influence (see Berg A. J. van den. New York Convention of 1958: Annotated List of Topics. Yearbook Commercial Arbitration, 2013, p. 25). 15.4. The Constitutional Court has also recognised that the Model Law is a standard of legal regulation used throughout the world (see the judgment of the Constitutional Court of 17 January 2005 in the case no. 2004-10-01, para. 9.1). The Model Law was elaborated with the aim of creating clear and comprehensive rules that would comprise fair and modern standards of international arbitration, which, as general legal principles, would be applicable in various legal and economic systems existing in the world. It is also noted in the annotation to the draft “Law on Arbitration Courts” that the Model Law was used to improve the Latvian legal regulation on arbitration (see the annotation to the draft law no. 1039/Lp11 “Law on Arbitration Courts” submitted to the Saeima on 27 December 2013). Article 8 of the Model Law (with amendments of 2006) clearly defines those instances, when a court of general jurisdiction may not transfer a dispute to an arbitration court, i.e.: if the arbitration agreement is null and void, inoperative or incapable of being performed, as well as if the jurisdiction of arbitration court is incompatible with public order or imperative legal norms. An arbitration court is invalid, if it has been forged, as well as if it has been concluded as the result of fraud, deception or unlawful activities (see UNCITRAL 2012 Digest of Case-Law on the Model Law on International Commercial Arbitration. New York: United Nations, 2012, pp. 40, 41). It is likewise recognised that in accordance with Article 8 of the Model Law the legislator has a broad discretion in deciding on who is the first to assess the validity of an arbitration agreement – the arbitration court itself or a state court. In any case, where the state court examines the validity of an arbitration agreement, it has full right to decide on this issue and it also will always have “the right to the final word”. Whereas in those cases, when the arbitration court is the first to decide on its jurisdiction, the party, which is dissatisfied with such decision by the arbitration court, may request a state court to adopt a final decision in this matter [see Brekoulakis S. L., Shore L. United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration. In: Mistelis L. A. (Ed.) Concise International Arbitration. Alphen aan den Rijn: Kluwer Law International, 2010, pp. 601, 602, 614]. It can be concluded from Article 8 and Article 16 of the Model Law that an arbitration court is not the only one having the right to decide on the validity of an arbitration court agreement. A court of general jurisdiction also holds this right. 15.5. The Constitutional Court has repeatedly recognised that the legal regulation of other countries cannot be applied directly when dealing with particular issues in the Latvian legal system, except for cases provided by law. The different legal, social, political, historical and systemic context should always be taken into account when conducting comparative law analysis (see, for example, the judgment of the Constitutional Court of 8 June 2007 in the case no. 2007-01-01, para. 24.1, and the judgment of 3 June 2009 in the case no. 2008-43-0106, para. 10.6). However, if a systematic analysis of the legal regulation on a particular issue in other countries may lead to a sufficiently unequivocal conclusion regarding

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harmonization of national law or a uniform standard in this issue, the results gained from surveying the legal regulation or practice in other countries may serve as a proposal for resolving a particular problem or as a general principle of law. This applies also to the legal regulation in the field of arbitration courts and its application in practice. In many countries the comparative doctrine of the regulation on arbitration notes that the decisions by an arbitration court regarding the existence of an arbitration agreement is most closely linked to the jurisdiction of an arbitration court and is subject to control by a state court. In those cases when the arbitration court jurisdiction is contested, the state court has the final word in deciding on this issue. I.e., the issue, whether a valid arbitration agreement exists and whether the hearing of the dispute by a state court has been waived voluntarily, “cannot be left in charge of arbitrators or other private persons.” Predominantly the national laws on arbitration courts envisage the possibility to contest the decision by an arbitration court on its jurisdiction in case, where a valid arbitration agreement is absent [see Sanders P. Arbitration. In: Cappelletti M. (Ed.) International Encyclopedia of Comparative Law. vol. XVI: Civil Procedure. Mohr Siebeck, Nijhoff: Tübingen, Leiden, 2014, pp. 63, 126]. Thus, the principle of arbitration court jurisdiction does not exclude the possibility that the jurisdiction of an arbitration court is examined by a court of general jurisdiction. 16. It follows from the written reply by the Saeima, as well as from the points made by the representative of the Saeima during the court hearing that the impugned norm denied a person the right to turn to a court of general jurisdiction, requesting to adjudicate the issue of an arbitration court jurisdiction. The legislator’s intention is also confirmed by the rulings made by courts of general jurisdiction, which recognise, referring to the impugned norm: the request regarding the validity of an arbitration agreement cannot be a subject of review at a court of general jurisdiction, except for cases, when restrictions to concluding an arbitration court have been envisaged, i.e., in labour, consumer, competition, lease of residential premises and other legal relationships (see the decision of the Supreme Court Department of Civil Cases of 31 January 2014 in the case no. SKC-1627/2014, para 5.2, the case materials, vol. 1, p. 118). The Supreme Court has noted that the issue of the validity of arbitration agreement cannot be a subject for examination by a court of general jurisdiction also in those cases when a lower instance court establishes that an arbitration agreement is invalid. For example, the Panel of Civil Cases of Kurzeme Regional Court by the Judgment of 10 June 1011 recognised an arbitration agreement concluded by the parties as being invalid. The Kurzeme Regional Court, on the basis of experts’ opinion and witnesses’ testimonies, found that the arbitration agreement had not been signed by the person indicated in the copy of the contested agreement. Moreover, the Court paid special attention to the fact that it did not have at its disposal the original copy of the arbitration agreement (see the judgment of the Panel of Civil Cases of Kurzeme Regional Court of 10 June 2011 in the case no. C40108906). Whereas the Supreme Court Department of Civil Cases by Decision of 30 January 2013 revoked the aforementioned judgment by Kurzeme Regional Court and terminated legal proceedings in the case. The Supreme Court Department of Civil Cases recognised in its decision that an arbitration court itself decided on all issues pertaining to the jurisdiction of the case. The issue of the arbitration court’s jurisdiction

over the dispute, as well as the issue of the validity of an arbitration agreement should be resolved in the concrete arbitration proceedings, not at a court of general jurisdiction (see the judgment of the Supreme Court Department of Civil Cases of 30 January 2013 in the case no. SKC-20/2013, paras. 10.2 and 10.3). The Constitutional Court has recognised that the Supreme Court has an important role in the interpretation and application of legal norms in a way that is compatible with the Satversme. The courts of general jurisdiction are the ones that have the best knowledge of the actual and legal facts of the case, which testify to the existence of such rights or interests of a person that should be protected (see the judgment of the Constitutional Court of 6 June 2012 in the case no. 2011-21-01, para. 12). The Constitutional Court has no grounds to question the considerations of the Supreme Court that the impugned norm does not grant to a person the right to turn to a court of general jurisdiction to contest an arbitration court jurisdiction. Hence, the Constitutional Court must examine whether the restriction on fundamental rights included in the impugned norm is compatible with the right to a fair court. 17. The Constitutional Court has recognised that the concept of “a fair court” referred to in Article 92 of the Satversme comprises two aspects, i.e., “a fair court” as an independent institution of the judicial power, which adjudicates the case; and “a fair court” as due procedure, compatible with a judicial state, in which the case is examined. The first aspect of this concept should be interpreted in interconnection with Chapter VI of the Satversme, the second – in interconnection with the principle of a judicial state, which follows from Article 1 of the Satversme (see the judgment of the Constitutional Court of 5 March 2002 in the case no. 2001-10-01, para. 2 of the motives part). Both aspects – the institutional, which means that a court should be fair; and the procedural, which envisages that everyone should have a free access to a court – are inseparably connected; the fairness of a court would be meaningless if accessibility was not ensured, and vice versa – the accessibility of a court would be unnecessary, if the fairness of a court was not ensured (see the judgment of the Constitutional Court of 14 March 2006 in the case no. 2005-18-01, para. 8). Thus, the court’s possibilities to restore justice in each particular case are inseparable linked with the totality of procedural and substantive law adopted by the legislator, in compliance with which the particular case is adjudicated. Article 92 of the Satversme defines an important fundamental duty of a judicial state – to establish a legal procedure with the help of which all persons could effectively protect their rights (see the judgment of the Constitutional Court of 6 June 2012 in the case no. 2011-21-01, para. 7). The Satversme does not directly envisage cases where the right to a fair court could be restricted; however, this right cannot be considered to be absolute (see the judgment of the Constitutional Court of 4 January 2005 in the case no. 2004-16-01, para. 7.1). The Satversme is a united whole, and the norms that it comprises should be interpreted in a systemic way. An assumption that particular fundamental rights cannot be imposed any restrictions at all would collide with the fundamental rights of other persons, guaranteed in the Satversme, as well as with other norms of the Satversme (see the judgment of the Constitutional Court of 22 October 2002 in the case no. 2002-04-03, para. 2 of the motives part). The right to a fair court may be restricted; however, it must be verified, whether the restriction can be justified, i.e., whether 1) it has been established by law; 2) it has

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a legitimate aim; 3) it is proportional (see, for example, the judgment of the Constitutional Court of 27 June 2003 in the case no. 2003-04-01, para. 1.2 of the motives part). 18. During the hearing of the case the parties to it and the summoned persons expressed divergent opinions on whether the restriction to the fundamental right that followed from the impugned norm had been, indeed, established by law. The Petitioner’s representative and the Ombudsman’s representative noted during the hearing of the Court that the restriction to the Petitioner’s fundamental right had been established by law (see the transcript of the hearing of the Constitutional Court of 21 October 2014 in the case materials, vol. 5, pp. 9 and 85). Whereas the summoned persons Inga Kačevska and Jānis Lapsa noted that the restriction to the Petitioner’s fundamental right followed from the way the impugned norm was interpreted and applied by courts of general jurisdiction. I.e., the impugned norm could be interpreted and applied also differently, not prohibiting a court of general jurisdiction from deciding on the arbitration court jurisdiction. Moreover, this interpretation of the impugned norm is allegedly proven also by some rulings by courts of general jurisdiction (see the transcript of the hearing of the Constitutional Court of 29 October 2014 in the case materials, vol. 5, pp. 140, 167 and 168). The Constitutional Court has recognised that the legislator’s obligation to envisage clearly in legal norms a procedure that would create clear and secure conviction by an individual regarding the possibilities to protect his or her fundamental rights follows from Article 92 of the Satversme in interconnection with Article 90 (see the judgment of the Constitutional Court of 24 October 2013 in the case no. 2012-2301, para. 14.4). In some cases a court of general jurisdiction has decided on the validity of an arbitration agreement, as well as has recognises an arbitration court agreement as being invalid as of the date when it was concluded. For example, the Riga City Latgale Suburb Court in its judgment of 23 February 2010 concluded that, in view of the plaintiff’s age and condition of health, she had been unable to understand her actions, the significance of it, and to manage it. Thus, the Court recognised the arbitration agreement concluded by the plaintiff as being invalid as of the moment when it was concluded. The legality of the judgment was verified neither in appellate, nor cassation proceedings (see the judgment of the Riga City Latgale Suburb Court of 23 February 2010 in the civil case no. C29526804/C21/10, and the judgment of the Riga City Vidzeme Suburb Court of 23 October 2013 in the case No. 3-12/0280/6). On the one hand, the judgment by the Riga City Latgale Suburb Court might be indicative of the rights of a general jurisdiction court to assess the validity of an arbitration agreement and, if it has been recognised as being invalid, to refuse issuing a writ of execution. However, on the other hand, the ruling of the aforementioned judgment collides with the interpretation of the impugned norm provided by the Supreme Court. The Constitutional Court notes that the judicature of the Supreme Court with regard to the right of a court of general jurisdiction to assess the validity of an arbitration agreement is clear – a court of general jurisdiction does not have this right. This interpretation of the impugned norm also complies with the legislator’s intent in including the impugned norm in the Civil Procedure Law. Thus, the restriction to fundamental rights included in the impugned norm was established by law.

19. Any restriction on fundamental rights should be founded on facts and arguments regarding its necessity, i.e., the restriction must be established due to important interests - for a legitimate aim (see, for example, the judgment of the Constitutional Court of 22 December 2005 in the case no. 2005-19-01, para. 9). The Saeima holds that the restriction on fundamental rights set out in the impugned norm has a legitimate aim in the meaning of Article 116 of the Satversme: to decrease the workload of general jurisdiction courts, to limit the possibilities for parties to delay the arbitration procedure and to ensure fast resolution of the parties’ dispute. At the court hearing the Petitioner’s representative expressed a similar opinion; i.e., maintaining that the legitimate aim of the restriction to the fundamental right was to facilitate the effectiveness of the legal proceedings before a court of general jurisdiction (see the transcript of the hearing of the Constitutional Court of 21 October 2014 in the case materials, vol. 5, pp. 9 and 26). The Constitutional Court has recognised that dispute resolution by an arbitration court ensures decrease in the workload of courts of general jurisdiction and ensures fast and effective hearing of disputes. The following are among the advantages of an arbitration procedure – comparatively faster course of it, professional specialisation of arbitrators, finality of the ruling, possibility to agree upon a procedure that differs from the procedure before a court of general jurisdiction, as well as confidentiality (see the judgment of the Constitutional Court of 17 January 2005 in the case no. 2004-1001, para. 8). Decreasing the workload of courts and facilitation of procedural economy can be a legitimate aim of the restriction to fundamental rights, and in such an instance the restriction is established for the cause referred to in Article 116 of the Satversme – for the protection of other persons’ rights (see the judgment of the Constitutional Court of 7 October 2010 in the case no. 2010-01-01, para. 12.2). Thus, the impugned norm has a legitimate aim – protection of other persons’ rights. 20. The Constitutional Court has found that upon establishing the legitimate aim of the restriction to fundamental rights the compliance of this restriction with the principle of proportionality must be examined and, thus, it must establish, first, whether the measures used by the legislator are appropriate for reaching the legitimate aim, i.e., whether the legitimate aim of the restriction can be reached by the impugned norm; second, whether such action is necessary, i.e., whether the aim cannot be reached by other measures, less restrictive upon the rights and lawful interests of a person; third, whether the legislator’s action is appropriate, i.e., whether the benefit gained by society exceeds the damage caused to a person’s right and lawful interest. If it is recognised that the restriction established by the impugned norm is incompatible with even one of these criteria, then the restriction is also incompatible with the principle of proportionality and is unlawful (see, for example, the judgment of the Constitutional Court of 19 March 2002 in the case no. 2001-12-01, para. 3.1. of the motives part). 20.1. The prohibition to turn to a court of general jurisdiction to contest the validity of an arbitration agreement established by the impugned norm was included in the Civil Procedure Law with the aim of preventing increase in the workload of general jurisdiction courts. I.e., a court of general jurisdiction, on the basis of the impugned norm, refuses to accept a statement of claim and does not examine an issue pertaining to an arbitration court jurisdiction.

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Thus, the measures chosen by the legislator are appropriate for reaching the legitimate aim. 20.2. The restriction established by the impugned norm is necessary if no other means exist that would be as effective and the selection of which would to a lesser extent restrict persons’ fundamental rights. In assessing, whether the legitimate aim can be reached also by other means, the Constitutional Court underscores that a more lenient measure is not just any other measure, but a measure that would allow reaching the legitimate aim in at least the same quality (see the judgment of the Constitutional Court of 13 May 2005 in the case no. 2004-18-0106, para. 19 of the motives part). At the same time the Constitutional Court has the jurisdiction to verify, whether alternative measures do not exist that would restrict persons’ fundamental rights established in the Satversme to a lesser extent (see, for example, the judgment of the Constitutional Court of 15 April 2009 in the case no. 2008-36-01, para. 15). 20.2.1. The Petitioner holds that a more lenient measure exists that would allow reaching the legitimate aim and would restrict a person’s rights to a lesser extent. I.e., an alternative measure would be granting to a person the right to turn to a court of general court to contest the jurisdiction of an arbitration court to hear the particular case (see the case materials, vol. 1, p. 9). Whereas the Saeima notes that this could not be regarded as an alternative measure, as it would create additional workload to courts of general jurisdiction (see the case materials, vol. 1, pp. 140 and 141). The information provided by the Ministry of Justice shows that annual statistical data regarding the cases examined and judgments adopted by the independent arbitration courts registered in Latvia is not accumulated in centralised way in Latvia. The courts of general jurisdiction annually receive approximately 1500 to 2150 applications regarding compulsory enforcement of decisions by arbitration courts: 2145 applications – in 2011, 1895 – in 2012 and 1519 – in 2013 (see the case materials, vol. 2, p. 180). However, the data provided by the Ministry of Justice do not cover those cases, where a compulsory enforcement of the judgment is not necessary or the judgment by the arbitration court has been implemented voluntarily. The argument noted by the Saeima and the Ministry of Justice could be upheld, i.e., that granting to a person the right to turn to a court of general jurisdiction and contest the jurisdiction of the arbitration court could increase the workload of courts. However, this argument per se cannot serve as grounds for depriving a person substantially of his or rights. I.e., the aim chosen by the legislator – decreasing the workload of the courts of general jurisdiction, thus speeding up other legal proceedings – may not threaten such fundamental rights of a person that he or she has not voluntarily waived. In the case under review, where the necessity to facilitate the speed of legal proceedings collides with the need to support rights that are essential for a person, the protection of the rights that are essential for a person should be given priority. Moreover, the actual facts of the case under review give grounds for questioning the argument that the regulation on controlling the arbitration court proceedings that is currently in force does not increase the workload of general jurisdiction courts. I.e., courts of general jurisdiction in three different instances have adopted in total six different decisions pertaining to the jurisdiction of the Latvian Arbitration Court and the enforcement of its award. Initially the Petitioner turned to the Riga City Vidzeme Suburb Court, contesting the validity of agreement of 20 December 2011. After the district court refused to accept the Petitioner’s statement of claim, an auxiliary complaint regarding this decision by

the court was submitted to the Riga Regional Court. The decision by the Riga Regional Court, in its turn, was appealed to the Supreme Court Department of Civil Cases, which did not revoke the decision by the Riga Regional Court. During the stage of issuing a writ of execution, the Riga City Vidzeme Suburb Court first of all rejected the application by Resort Management regarding issuing of a writ of execution. Resort Management submitted an auxiliary complaint regarding this decision by the district court to the Riga Regional Court, which revoked the decision by the Riga Vidzeme Suburb Court. Finally, the Riga City Vidzeme Suburb Court, repeatedly examining the application by Resort Management regarding issuing a writ of execution decided to satisfy this application. Moreover, the Supreme Court and the Prosecutor’s General Office have become involved in the process of compulsory enforcement of the ruling adopted by the Latvian Arbitration Court. I.e., on the basis of a protest submitted by the Chief Prosecutor of the Department for the Protection of Rights of Persons and State of the Prosecutor’s General Office, on 22 September 2014 the Supreme Court Department of Civil Cases has initiated cassation legal proceedings, has suspended the enforcement of the decision of 3 June 2014 by the Riga City Vidzeme Suburb Court and decided to adjudicate in written procedure the case regarding revoking of it (see the case materials, vol. 4, pp. 166-169, 181 and 182). Hence, the Constitutional Court recognises that an increase in the workload of the court of general jurisdiction cannot be used to justify a general prohibition to the arbitration court jurisdiction at a court. 20.2.2. At the court hearing the representative of the Saeima, as well as a number of summoned persons noted that Article 536(1) of the Civil Procedure Law envisaged a judge’s right to refuse issuing a writ of execution if the arbitration court, in adjudicating a civil law dispute, has exceeded its jurisdiction. However, the opinions of representative of the Saeima and the summoned persons differed as to the exact paragraph of Article 536(1) of the Civil Procedure Law which granted this right to a judge. The representative of the Saeima held that this right of the judge was established by Article 536(1)(6) and (7) of the Civil Procedure Law. Kalvis Torgāns referred to Article 536(1)(6) of the Civil Procedure Law. The representative of the Ministry of Justice pointed to Article 536(1)(1) of the Civil Procedure Law, underscoring that the Ministry’s “competence is not to tell the court about correct application of law. Whereas the representative of Resort Management referred to Article 536(1)(1), (2) and (3) of the Civil Procedure Law (see the transcript of the hearing of the Constitutional Court of 21 and 29 October 2014 in the case materials, vol. 5, pp. 44, 72, 128, 151 and 164). The representatives of the Petitioner and the Ombudsman, in their turn, noted that none of the paragraphs of Article 536(1) of the Civil Procedure Law envisaged a judge’s right to refuse issuing a writ of execution if an arbitration court had adjudicated the particular case on the basis of an invalid arbitration agreement (see the transcript of the hearing of the Constitutional Court of 21 and 29 October 2014 in the case materials, vol. 5, pp. 11, 87, 92, 184‑187). The Constitutional Court notes that the opinion of the parties to the case and the summoned persons regarding the content of the impugned norms per se is not decisive in establishing the legal consequences of the respective norm, because a legal norm cannot be understood outside the practice of its application and the legal system in which it functions (see, for example, the judgment of the Constitutional Court of 23

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November 2006 in the case no. 2006-03-0106, para. 24.5, and the judgment of 28 June 2013 in the case no. 2012-26-03, para. 12.1). The Ministry of Justice has submitted to the Constitutional Court a survey of the case law regarding the application of Article 536(1) of the Civil Procedure Law in courts of general jurisdiction in the period from 1 January 2013 to 30 June 2014. During this period paras. 1-7 of Article 536(1) have been used as the grounds for refusing issuing a writ of execution in connection with an arbitration court award slightly more than 200 times. The following circumstances are the most frequently noted as the grounds for refusal to issue a writ of execution: an arbitration court has adjudicated a dispute with a person, against who an insolvency proceedings or legal protection process; the arbitration clause in accordance with the Consumer Rights Protection Law should be recognised as being an unfair contractual provision; the judgment by the arbitration court is not reasoned; late payment interest payments for a period prior to the enforcement of the judgment have been collected by an arbitration court award; a party was not duly informed about the arbitration procedure; or it could not provide its explanations due to other reasons, which significantly influenced the arbitration procedure (see the case materials, vol. 3, pp. 65 68). It follows from the aforementioned survey of case law that a judge of a general jurisdiction court refuses issuing a writ of execution only in those cases, where the arbitration court has breached the restrictions on its jurisdiction that laws define expressis verbis. The legislator has established such cases, for example, in paras. 1‑8 of Article 487(1) of the Civil Procedure Law and Article 6(3)(7) of the Consumer Rights Protection Law. However, it does not follow from the survey of the case-law prepared by the Ministry of Justice that a judge of a general jurisdiction court, when deciding on issuing a writ of execution, would have the obligation to examine the arbitration court jurisdiction also in other cases, to which the restrictions on the jurisdiction of an arbitration court which laws define expressis verbis do not apply. Neither could the representative of the Saeima provide such examples from the case law during the examination of the case (see the transcript of the hearing of the Constitutional Court of 21 October 2014, the case materials, vol. 5, p. 45). Thus, the practice of applying Article 536 of the Civil Procedure Law does not show that this norm would impose an obligation upon a judge to examine the arbitration court jurisdiction on all occasions and, if the limits have been breached, refuse to issue a writ of execution. 20.2.3. The representative of the Saeima noted during the court hearing that the Civil Procedure Law granted to the parties to a case the right to point to possible violations of the arbitration procedure, inter alia, violations of jurisdiction, during the procedure of enforcing the arbitration court award (see the transcript of the hearing of the Constitutional Court of 21 October 2014, the case materials, vol. 5, p. 29). Whereas the Petitioner’s representative underscored that a court of general jurisdiction, when deciding on issuing a writ of execution in connection with an arbitration court award, did not ensure an effective protection of a person’s fundamental rights, since during this stage of the procedure the parties to the case had limited possibilities to submit evidence, the procedure took place in the absence of the parties to a case and the law defined only a term of 15 days for submitting written explanations (see the transcript of the hearing of the Constitutional Court of 21 October 2014, the case materials, vol. 5, pp. 11 and 17).

Article 5341(1) of the Civil Procedure Law envisages: when a court has received an application regarding issuing a writ of execution, the application is immediately forwarded to other parties to the case by registered mail, establishing a term for submitting written explanations, which is at least 10 days and no longer than 15 days as of the date of forwarding the application. Whereas paras. 3 and 4 of the second part of this Article provide that a party to the case notes in the explanations the evidence that confirms his or her objections or reasoning, as well as the law these are based on, and also requests regarding accepting or requiring of evidence. The Ministry of Justice notes in connection with the aforementioned norms: if any of the parties to the case contests the legality of an arbitration court award, a court of general jurisdiction has the right to require from the arbitration institute the case materials that are necessary for examining the presence of the facts noted in the explanation, as well as to require the original copy of the arbitration agreement to forward it for expert-examination (see the case materials, vol. 2, p. 179). At the same time the Petitioner’s opinion can be upheld, i.e., that Part D of the Civil Procedure Law does envisage the obligation of a general jurisdiction court to always examine the jurisdiction of an arbitration court and in case of doubt, for example, require the original copy of the arbitration agreement or to commission an expert-examination. The Petitioner in the explanations regarding the application by Resort Management on issuing a writ of execution for enforcing the Latvian Arbitration Court award and in additional explanations repeatedly drew the attention of the court to the possible invalidity of the arbitration agreement (see the case materials, vol. 1, pp. 170‑184). However, the court, ruling on the compulsory enforcement of the award by the Latvian Arbitration Court, only established that the agreement on having the dispute adjudicated by the Latvian Arbitration Court was valid (see the decision of the Riga City Vidzeme Suburb Court of 3 June 2014 in the case no. 3-12/0080/12, the case materials vol. 2, p. 28). The Ministry of Justice has also noted that if an investigatory institution has initiated criminal proceedings, for example, with regard to possible forgery of the arbitration agreement, “deciding on the matter of issuing a writ of execution […] must be suspended until the final decision in criminal proceedings has been adopted” (see the case materials, vol. 2, p. 179). This interpretation of the Civil Procedure Law norms is included, for example, in the decision of 20 May 2014 by the Riga City Latgale Suburb Court. It recognises that issuing a writ of execution should be refused and that the Court takes into account the defendant’s objections, i.e., that it had not signed the loan agreement and has submitted an application to the police requesting initiation of criminal proceedings in connection with forgery of a signature (see the decision of the Riga City Latgale Suburb Court of 20 May 2014 in the case no. 3-12/0067). Whereas in deciding on the issue of compulsory enforcement of the award by the Latvian Arbitration Court, the court noted that, irrespectively of the criminal proceedings initiated by the State Police regarding a forgery of the agreement of 20 December 2011, there were no legal grounds to doubt its validity. In the presence of this circumstance, the court satisfied the application by Resort Management regarding issuing a writ of execution for compulsory enforcement of the award by the Latvian Arbitration Court (see the decision of the Riga City Vidzeme Suburb Court of 3 June 2014 in the case no. 3-12/0080/12, the case materials, vol. 2, p. 28). The aforementioned leads to the conclusion that the case law regarding the case of issuing a writ of execution, when a criminal procedure regarding a possible forgery of an arbitration agreement has been initiated, is inconsistent.

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The Constitutional Court has repeatedly underscored that a uniform case law is important from the perspective of the right to a fair court. Courts have the obligation to adjudicate similar cases similarly, but different cases – differently, on the basis of the principle of equality. In the absence of measures that would ensure a consistent case law, the state violates a person’s right to a fair court (see the judgment of the Constitutional Court of 7 October 2010 in the case no. 2010-01-01, para. 15.3). 20.2.4. The Constitutional Court also notes that the first sentence of Article 92 of the Satversme envisages a person’s subjective right to turn to court and to protect his or her rights that have been violated. If a person has not consented to having a case adjudicated by an arbitration court, than the arbitration procedure and its potential outcome, undoubtedly can significantly infringe upon the person’s rights. On such occasions a persons should have the right to turn to court for direct and indirect protection of his or her rights, irrespectively of other persons’ will or actions. Article 533(2) of the Civil Procedure Law provides that the party interested in having an award of a permanent arbitration court enforced in Latvia is entitled to apply to the district (city) court with an application for issue of a writ of execution. Whereas as regards a person, upon who the award by an arbitration court has imposed an obligation to be fulfilled, the law grants no rights to turn to court in connection with the arbitration procedure. This person may only express his or her explanations regarding an already submitted application for issue of a writ of execution. Hence, a person’s right to a court protection in a case, for example, when a significant procedural violation had been committed in the arbitration procedure, depends on whether and when the interested party decides to turn to court with an application for a compulsory enforcement of the award by the arbitration court. Moreover, in those cases when the enforcement of the award by the arbitration court is not necessary, a person, upon which it has imposed an obligation or who was denied some rights, has not possibility whatsoever to request a court of general jurisdiction to eliminate violations made in the arbitration court procedure. However, such awards by an arbitration court may have a significant impact upon a person’s rights. Likewise, the award by the Latvian Arbitration Court, by which more than half a million lats was collected from the Petitioner in favour of Resort Management, which was substantiated, inter alia, by the part of reasoning in an award previously adopted by the Latvian Arbitration Court, the enforcement of which was not necessary (see the case materials, vol. 1, p. 93). 20.2.5. In examining the Petitioner’s argument that the procedure of issuing a writ of execution in connection with the arbitration court award takes place in the absence of the parties to the case, it must be taken into consideration that a person’s right to be heard during legal proceedings is one of the most important procedural safeguards that follow from the first sentence in Article 92 of the Satversme. The Constitutional Court notes that these safeguards comprise, for example, the right to receive full information on the opinion expressed by the opposite party, the evidence and facts collected, as well as the right to a reasoned ruling by the court. The right to be heard must be ensured at least in writing (see the judgment of the Constitutional Court of 27 June 2003 in the case no. 2003-03-01, para. 6.1 of the motives part). However, the first sentence in Article 92 of the Satversme does not grant to a person an absolute fundamental right to oral legal proceedings, and the organising of such proceedings in all cases would create an unnecessary workload for the court. Oral proceedings should be envisaged only in those cases, when issues that either legally or technically complicated must be heard by court. Likewise, ECHR has also

recognised that Article 6 of the Convention does not envisage a person’s absolute right to oral proceedings and that such proceedings should be held only when examining special issues (see, for example, the judgment of the ECHR of 12 November 2002 in the case “Döry v. Sweden”, application no. 28394/95, para. 37, and the judgment of 23 November 2006 in the case “Jussila v. Finland”, application no. 73053/01, para. 41). In individual cases, for example, if the case pertains to complex legal issues, the parties to the case should be granted the right to request to be heard orally. The fact that the Civil Procedure Law does not envisage the right of a party to the case to be heard also orally in the procedure of issuing a writ of execution in connection with an arbitration court award may make it difficult for a person to object to a compulsory enforcement of an arbitration court award. A number of summoned persons drew the Court’s attention also to the fact that both the term envisaged by Article 5341(1) of the Civil Procedure Law for submitting a written explanation, and the term defined in Article 535(1), within which a judge adopts a decision on issuing a writ of execution, were too short and threatened an effective control over an arbitration court award. For example, Inga Kačevksa noted that the term for submitting written explanations on the application for issuing a writ of execution was excessively short in those cases, when a party to the case has a foreign domicile (see the case materials, vol. 3, p. 62). Kalvis Torgāns, in his turn, recognised that due to the term established by the Civil Procedure Law, a judge has no time to consider the application in-depth and adopts the decisions on issuing a writ of execution or on refusing to issue a writ of execution “as formally as possible” (see the transcript of the hearing of the Constitutional Court of 29 October 2014, the case materials, vol. 5, p 165). The Constitutional Court upholds the opinion expressed by the summoned persons and notes that the aforementioned terms established by the Civil Procedure Law are too short. Thus, the regulation on the procedure of compulsory enforcement of an arbitration court award included in the Civil Procedure Law is not appropriate for examining the jurisdiction of an arbitration court in all cases. 20.2.6. During the court hearing the representative of the Saeima, as well as a number of summoned persons noted that the Petitioner could have defend its right to a fair court not by contesting the jurisdiction of the arbitration court at a court of general jurisdiction, but by other means. For example, the Petitioner had had the right to submit a counter-claim to the arbitration court; submit a claim for compensating of losses against the member of the board, who had signed the respective agreement on having a case adjudicated by an arbitration court; to contest the board member’s right to enter into an agreement on having a dispute examined by an arbitration court; to turn to police or the prosecutor’s office requesting initiation of criminal proceedings in connection with forgery of documents; to turn to the Prosecutor General with request to submit a protest against the judge’s decision, which satisfied the request to issue a writ of execution; to record procedural violations committed in the legal proceedings before an arbitration court and note these during the stage of issuing a writ of execution (see, for example see transcript of the 21 and 29 October 2014 sitting of the Constitutional Court, the case materials, vol. 5, pp. 37, 157, 192 and 193). The Constitutional Court recognises that all the aforementioned possibilities are not directly aimed at contesting the jurisdiction of an arbitration court. Hence, these

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solutions are not alternative measures that would be less restrictive upon persons’ fundamental rights. 20.2.7. The Saeima and the Ministry of Justice holds that the granting to a person the right to contest the arbitration court jurisdiction at a court of general jurisdiction would unfoundedly delay arbitration procedure. The Constitutional Court notes that submitting a claim to a court of general jurisdiction requesting recognising an arbitration agreement as being invalid would not influence the arbitration procedure – an arbitration procedure that had already been initiated could continue, but in case, where the arbitration procedure has not been initiated yet, it could be initiated parallel to the legal proceedings before a court of general jurisdiction. The first part of Article 8 of the Model Law also provides that the court, where proceedings have been initiated with regard to a dispute subject to an arbitration court, should order the parties to turn to arbitration court, unless it decides that the arbitration agreement is invalid or is incapable of being performed. Whereas the second part of Article 8 of the Model Law envisages that in case where such proceedings take place at a state court, the arbitration proceedings may be initiated or continued, and that the award can be made parallel to the proceedings taking place before a state court. The regulation included in the second part of Article 8 of the Model Law may increase the number of such cases, where an arbitration court and a court of general jurisdiction adopt mutually inconsistent rulings. However, such regulation is justifiable, since it both decreases the possibilities of the parties to the case to delay arbitration proceedings, as well as the motivation of the parties to arbitration proceedings to turn to a state court regarding issues that according to the arbitration agreement are subject to examination by the arbitration court (see Brekoulakis S. L., Shore L., p. 604). Thus, the legitimate aim of the restriction on the fundamental right included in the impugned norm can be reached by other measures, less restrictive upon a person’s rights and lawful interests. 21. Pursuant to Para11 of Article 31 of the Constitutional Court Law the Court must define the date as of which the impugned norm (act) becomes invalid. The legislator, in Article 32(3) of the Constitutional Court Law, has granted to the Constitutional Court a broad discretion to decide on the date, as of which a legal norm, which has been recognised as being incompatible with a legal norm of higher legal force, becomes invalid. To recognise the impugned norm as being invalid not from the date when the judgment is published, but as of another date, the Constitutional Court must substantiate its opinion. The Constitutional Court has already recognised that in deciding on the date, as of which the impugned norm (act) becomes invalid, it must be taken into consideration that its task is to prevent the violation of Petitioners’ fundamental rights to the extent possible (see, Judgment of 16 December 2005 by the Constitutional Court Law in Case No. 2005-12-0103, Para 25). In the case under examination the impugned norm was applied against the Petitioner by a court of general jurisdiction. The consequences of applying the impugned norm was issuing a writ of execution for compulsory enforcement of award by the Latvian Arbitration Court, as well as enforcement activities commenced by a bailiff.

Hence, to eliminate the adverse consequences caused by the impugned norm, with regard to the Petitioner the impugned norm must be recognised as being invalid as of the moment the violation of fundamental rights occurred. 22. As the materials of the case under review show, the Petitioner had been the defendant in two legal proceedings before the Latvian Arbitration Court. During the first legal proceedings the Latvian Arbitration Court adopted an award, recognising, inter alia, that two articles in the agreement entered into by the Petitioner and Resort Management were invalid (see the case materials, vol. 1, pp. 36-49). The Petitioner’s representative noted at the court hearing that the enforcement of the aforementioned award by the arbitration court was not necessary. Therefore no judicial control over this award by the arbitration court was necessary. Both the representative of the Ministry of Justice and Kalvis Torgāns evaluated it as “a possible legal lacuna” or as “an anti-constitutional [legal] lacuna” (see the transcript of the hearing of the Constitutional Court of 21 and 29 October 2014 in the case materials, vol. 5, pp. 83 and 151). The Constitutional Court has noted already in its Judgment of 17 January 2005 in the case no. 2004-10-01 that the Civil Procedure Law did not contain norms defining the procedure for contesting an award by an arbitration court, even if issuing a writ of execution is not requested (see the judgment of the Constitutional Court of 17 January 2005 in the case no. 2004-10-01, para. 10). The aforementioned regulation is included neither in the Civil Procedure law, nor in the Law on Arbitration Courts. In some cases, in order to have the award by an arbitration court enforced, there is no need to turn to a court of general jurisdiction and request issuing a writ of execution, and there may be also situations, where the award by an arbitration court is to be recognised or enforced in a foreign state. Likewise, the Civil Procedure Law does not provide what happens with the award by an arbitration court if a court of general jurisdiction has refused to issue a writ of execution for its compulsory enforcement. In such a case a person has no legal remedies for defence against, possibly, unlawful award by an arbitration court, which, in fact, remains in force, and a party to the case my repeatedly try to achieve its enforcement, for example, in a foreign state. Taking into consideration, inter alia, the problems in the functioning of arbitration courts that were noted by the summoned persons and the lack of regulation on issuing a writ of execution, an internationally accepted institute for contesting an award by an arbitration court would be of particular importance in Latvia. Therefore, the Constitutional Court repeatedly draws the attention of the Saeima to the need to define the grounds and procedure for contesting an award by an arbitration court. 23. At the court hearing both the parties to the case and the summoned persons repeatedly noted that on 11 September 2014 the Saeima had adopted the Law on Arbitration Courts, which envisaged that it would enter into force on 1 January 2015. Article 24(1) of this law provides: “The panel of the arbitration court decides on the jurisdiction of the arbitration court over the civil law dispute, inter alia, the validity of the arbitration agreement. The issue of the arbitration court’s jurisdiction over the dispute may be decided by the panel of the arbitration court at any stage of the arbitration proceedings.” Whereas pursuant to Article 9 of the law of 11 September 2014 “Amendments to the Civil Procedure Law”, Chapters 61, 62, 63, 64 and 65 are deleted from the Civil

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Procedure Law, i.e., also the chapter that comprises the impugned norm. Pursuant to Article 19 of the law of 11 September 2014 “Amendments to the Civil Procedure Law”, Chapters 61, 62, 63, 64 and 65 of the Civil Procedure Law will become invalid on 1 January 2015. Thus, the legislator has envisaged that on 1 January 2015 the impugned norm will be replaced by another legal norm included in the Law on Arbitration Courts, having the same legal consequences as the impugned norm. Article 24(1) of the Law on Arbitration Courts has not been contested before the Constitutional Court. Therefore the Constitutional Court must examine, whether the broadening of the claim in the case is necessary and permissible and whether the issue of compatibility of Article 24(1) of the Law on Arbitration Courts with the first sentence of Article 92 of the Satversme should be examined. The Constitutional Court has repeatedly found that, abiding by certain criteria, first and foremost “the concept of close connection”, in certain cases the limits of a claim in an already initiated case may be broadened. To establish, whether in the particular case the limits of the claim could be and should be broadened, it must be, first of all, be established, whether the norm, with regard to which the claim is broadened, is so closely linked to the norm, which is expressis verbis contested in the case, that its examination is possible within the framework of the same grounds or is necessary for adjudicating the particular case, and, secondly, whether the broadening of the limits of the claim is necessary for abiding by the principles of the legal proceedings before the Constitutional Court (see, for example, the judgment of the Constitutional Court of 3 April 2008 in the case no. 2007-23-01, para. 17, and the judgment of 20 October 2011 in the case no. 2010-72-01, para . 15). The compliance of Article 24 (1) of the Law on Arbitration Courts with the Satversme is closely connected with the claim regarding the compliance of the impugned norm with the Satversme, since, after entering into force this norm would create for persons identical legal consequences, incompatible with the Satversme, as the impugned norm. Therefore, from the point of view of procedural economy of proceedings before the Constitutional Court, broadening of the claim in the case under review would be expedient. Moreover, the principle of a judicial state requires the Constitutional Court, in compliance with its jurisdiction, to ensure the existence of such system of law that would, to the extent possible, prevent legal regulation incompatible with the Satversme or other legal norms of higher legal force. The representative of the Saeima noted at the court hearing that Article 24 (1) of the Law on Arbitration Courts maintained, essentially, legal regulation identical to the impugned norm (see the transcript of the hearing of the Constitutional Court of 21 October 2014, the case materials, vol. 5, p. 28). Likewise, the opinion provided by the Ministry of Justice also leads to the conclusion that the Law on Arbitration Courts comprises the same legal regulation as the impugned norm, and it envisages the right of an arbitration court to decide on its jurisdiction over a dispute, inter alia, on the validity of an arbitration agreement (see the case materials, vol. 2, p. 182, and the transcript of the hearing of the Constitutional Court of 21 October 2014, the case materials , vol. 5, p. 70). The aforementioned norm and the impugned norm have been adopted on the basis of the same understanding of the legislator regarding its discretion in the field of control over the functioning of arbitration courts, and the findings included in this judgment regarding the impugned norm are applicable also to Article 24(1) of the Law on Arbitration Courts. Therefore, both these norms can be recognised as being

incompatible with the first sentence of Article 92 of the Satversme in the framework of the same reasoning. Therefore the Constitutional Court recognises that Article 24(1) of the Law on Arbitration Courts, to the extent it denies a person the right to contest an arbitration court jurisdiction at a court of general jurisdiction, is incompatible with the first sentence of Article 92 of the Satversme.

591

The resolutive part Pursuant to Article 30-32 of the Constitutional Court Law the Constitutional Court decided: 1. To declare Article 495(1) of the Civil Procedure Law, insofar it prohibits from contesting the jurisdiction of an arbitration court at a court of general jurisdiction, as being incompatible with Article 92 of the Satversme. 2. As regards the submitter of the constitutional complaint - the limited liability company “HIPOTĒKU BANKAS NEKUSTAMĀ ĪPAŠUMA AĢENTŪRA” (at present – limited liability company ”Hiponia”) - to declare Article 495(1) of the Civil Procedure Law, to the extent it prohibits from contesting the jurisdiction of an arbitration court at a court of general jurisdiction, as being incompatible with Article 92 of the Satversme of the Republic of Latvia and invalid as of the moment when the fundamental rights of the person which submitted the constitutional complaint were restricted. 3. To declare Article 24(1) of the Law on Arbitration Courts, insofar it prohibits contesting the jurisdiction of an arbitration court at a court of general jurisdiction, as being incompatible with Article 92 of the Satversme of the Republic of Latvia. The judgment is final and not subject to appeal The judgment was pronounced in Riga on 24 November 2014. The judgment enters into force on the date of its pronouncement.

Chairman of the hearing of the Court A. Laviņš

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2014-11-0103

Natural resources tax

The state’s discretion in introducing a new tax The natural resource tax that must be paid for producing electricity in hydroelectric power stations was characterised. Its purpose is to ensure a more effective and responsible use of natural resources. It was underscored that water is invaluable in ensuring sustainable development. The legislator’s discretion in the field of taxes was examined. In this field, the same requirements cannot be set for the legislator as, for example, in the field of protecting and ensuring civil or political rights. The legislator enjoys broad discretion in the implementation of taxation policy. However, the tax payment cannot impose an incommensurate burden on the taxpayer. A tax, as to its nature, may not be confiscatory. It was found that the provisions of tax law must be not only legally impeccable but also economically valid. They require a reasonable explanation, based on objective and reasonable considerations. The taxpayers, the taxable object and the principle for calculating the tax may not be set arbitrarily, and the procedure for calculating the tax should be such that would allow calculating mathematically the payable tax. Person’s expectations regarding constancy of legal regulation on taxes were analysed. In cases where persons have been released from the obligation to pay a tax for a long period of time, they have no right to expect that this regulation will remain constant and that they will never have to pay the respective tax, exactly as in the case where the legislator establishes an obligation to pay a new tax.

JUDGMENT in the name of the Republic of Latvia in the case no. 2014-11-0103 Riga, 28 November 2014 The Constitutional Court of the Republic of Latvia in the following composition: the chairman of the hearing of the court Aldis Laviņš, judges Kaspars Balodis, Kristīne Krūma, Gunārs Kusiņš, Uldis Ķinis and Sanita Osipova, with the participation of the authorised representative of the petitioners – limited liability company “DOBELES HES”, limited liability company “PALSMANES ŪDENSDZIRNAVU HES” and limited liability company “SL PLUS” – sworn attorney Jānis Vaits, the authorised representative of the petitioner joint stock company “LATGALES ENERĢĒTIKA” Uģis Grauds, as well as the owner of the applicant – farm “Dzirnavas” of the Dobele region Bērze rural municipality – Orvils Heniņš, the representative of the institution which has adopted the impugned act – the Saeima [the Parliament] – Mārtiņš Brencis, and the representative of the institution which adopted the impugned act – the Cabinet of Ministers – Rudīte Vesere, with the secretaries of the hearing of the Court Elīna Kursiša and Alla Spale,

on the basis of Article 85 of the Satversme [the Constitution] of the Republic of Latvia and Article 16(1) and (3), Article 17(1)(11), as well as Article 192 and Article 28 of the Constitutional Court Law, on 17 February and 25 February 2015 in Riga examined at a public hearing of the Court the case “On the compliance of Article 3(1)(f), Article 191 of the Natural Resources Tax Law, the Cabinet of Ministers Regulations of 14 January 2014 no. 27 “Amendments to the Cabinet of Ministers Regulations of 19 June 2007 no. 404 “Procedures for the Calculation and Payment of Natural Resources Tax and Procedures for the Issuance of Permits for Use of Natural Resources”” with Article 105 of the Satversme of the Republic of Latvia”.

593

The facts 1. On 15 December 2005 the Saeima adopted the Natural Resources Tax Law (hereinafter – the NRTL) which entered into force on 1 January 2006. The law of 6 November 2013 “Amendments to Natural Resources Tax Law” (hereinafter – Amendments to the NRTL), inter alia, added a number of legal provisions to the NRTL, establishing the obligation to pay the natural resources tax also to persons using water resources for producing electricity in a hydroelectric power station with the total installed capacity of hydroelectric generation stations was below 2 MW (hereinafter also – the small-scale HPS). Article 3(1)(f) of the NRTL provides that a taxpayer of the natural resources tax is a person who has received or in accordance with the laws and regulations regarding environmental protection or use of subterranean depths had a duty to receive a permit, a licence or a C category polluting activity certificate laid down in the laws and regulations regarding environmental pollution and who in the territory of the Republic of Latvia, continental shelf of exclusive economic zones uses water resources for production of electricity in a small HPS. Whereas the NRTL Article 191 provides: “The tax rate for the use of water resources for production of electricity in a hydroelectric power plant, the total capacity of the hydroelectric station installed of which is less than 2 megawatts, shall be 0.00853 euros per 100 cubic metres of the water that has flown through the hydrotechnical structure. The Cabinet shall determine the procedures by which the water flown through the hydrotechnical structure shall be calculated on the basis of the quantity of electricity produced and the efficiency coefficient of the operation of the hydroelectric station.” The procedure for calculating and paying natural resources tax was established by the 19 June 2007 Regulations of the Cabinet of Ministers no. 404 “Procedures for the Calculation and Payment of Natural Resources Tax and Procedures for the Issuance of Permits for Use of Natural Resources” (hereinafter also – Regulations no. 404). On 14 January 2014 the Cabinet of Ministers adopted Regulations no. 27 “Amendments to the Cabinet of Ministers Regulations of 19 June 2007 no. 404 “Procedures for the Calculation and Payment of Natural Resources Tax and Procedures for the Issuance of Permits for Use of Natural Resources”” (hereinafter – the amendments to Regulations no. 404). The amendments to Regulations no. 404 provide for the following: “1. Introduce the following amendments to Regulations of 19 June 2007 of the Cabinet of Ministers no. 404 “Procedures for the Calculation and Payment of Natural Resources Tax and Procedures for the Issuance of Permits for Use of Natural Resources” (Latvijas Vēstnesis, 2007, 100. no. 2009, 90. no. 2010, 67. no. 2013, 189. no.):

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1.1. to replace in the reference to the law, on the basis of which the Regulations has been adopted, the number and word “Article 17” with the number and word “Article 191”; 1.2. to replace in the text of the Regulations the words “Ministry of Environment” (in appropriate case) with the words “Ministry of Environmental Protection and Regional Development” (in appropriate case); 1.3. to add to the Regulations Subparagraph 1.20, worded as follows: “1.20. the procedure for calculating the water flown through the hydrotechnical structure on the basis of the quantity of electricity produced and the efficiency coefficient of the operation of the hydroelectric station.”; 1.4. to add Para 211, 212, 213, 214 and 215 to the Regulations, worded as follows: “21.1 The quantity of water used for production of electricity shall be calculated in accordance with the following formula: WHES =

EHES 0,002725 × HHES × ƞHES

, where

WHES – the quantity of water used for the production of electricity in the hydroelectric station, m3; ΕHES – the quantity of produced electricity, kWh; HHES – water drop (difference between levels), m; ƞHES – the average or benchmark efficiency coefficient (comprises the efficiency coefficients of the turbine, transmission and generator); 0.002725 – coefficient, which characterises the average water consumption for producing 1 kWh of electricity (kWh/m3 × m). 21.2 The total sum of natural resources payment in euro shall be calculated in accordance with the following formula: ∑DRN = WHES × 0,01 × 0,00853 21.3 The efficiency coefficient of a hydropower unit is indicated in their certificates. If the efficiency coefficient of hydropower units cannot be based upon the certificate of the hydropower unit or the permit to use water resources, then the average benchmark efficiency coefficient of 0.75 shall be used. 21.4 If several hydropower units have been installed at a hydroelectric power station, then the quantity of water that has flown through shall be first calculated for each hydropower unit separately and the results shall be added up. 21.5 The taxpayer shall calculate the tax for the actual quantity of water that has flown through the hydrotechnical structure on the basis of the indicator defined in the appropriate permit to use water resources or the recorded data that are entered into the log. If the record-keeping documents indicate any of the indicators within a certain interval, then the highest limit of the interval shall be used for calculating the quantity of water that has flown through the hydrotechnical structure and tax.” 2. Subparagraphs 1.3 and 1.4 shall be applicable as of 1 January 2014.” Since 4 June 2014 Regulations no. 404 have the following title: “Procedures for the Calculation and Payment of Natural Resources Tax, Procedures for the Issuance of Permits for Use of Natural Resources and Auditing the Management Systems.” 2. Two cases were initiated at the Constitutional Court with regard to the compliance of Article 3(1)(f) of the NRTL, Article 191 of the NRTL and amendments to Regulations no. 404 (hereinafter together – the impugned norms) with Article 105 of the Satversme of the Republic of Latvia (hereinafter – the Satversme). On 5 August 2014 a decision

was adopted to join cases no. 2014–11–0103 and no. 2014–30–0103 in one case. The joint case no. 2014–11–0103 retained its former name “On the Compliance of Article 3(1)(f), Article 191 of Natural Resources Tax Law, the Cabinet of Ministers Regulations of 14 January 2014 no. 27 “Amendments to the Cabinet of Ministers Regulations of 19 June 2007 no. 404 “Procedures for the Calculation and Payment of Natural Resources Tax and Procedures for the Issuance of Permits for Use of Natural Resources”” with Article 105 of the Satversme of the Republic of Latvia”. 3. The petitioners – [79 legal persons] (hereinafter all together – the Petitioners) – consider that the impugned norms are incompatible with Article 105 of the Satversme. It is noted in the applications that the Petitioners produce electricity in small HPSs. The impugned norms had established an obligation for the Petitioners to pay natural resources tax for using water resources in the production of electricity. It is contended that the obligation to pay the tax is a restriction upon the right to own property; therefore the compliance of the impugned norms with Article 105 of the Satversme should be examined. It is alleged that the restriction upon the Petitioners’ right to own property had been established by law; however, no consultations with the representatives of the respective field had been held during while the norms were drafted and adopted, amendments to the NRTL had been submitted to the Saeima for hearing in the package of draft budget laws; however, it is doubted whether a draft law that envisages establishing a new tax should be heard in urgent procedure together with other draft laws that influence the budget. The restriction upon the right to own property is said to have no legitimate aim, since the aim that follows from the impugned norms – to reduce the damaged inflicted upon natural resources – is simulative. Water, which is used in producing electricity, is not irreversibly consumed, polluted or transformed. The legislator had substantiated the imposition of natural resource tax upon the small-scale HPS by the damage inflicted upon fish resources and legal inequality between the three largest hydroelectric power stations in Latvia and the small HPS. However, the impugned norms are said not to be targeting the legitimate aim, since the small-scale HPS every year compensate for the damage inflicted upon fish resources in accordance with Article 26(3) of Fishery Law. The reference to legal inequality, in its turn, is said to be unfounded. Even if it were established that the restriction upon the right to own property had a legitimate aim, the restriction would not comply with the principle of proportionality. The measures used by the legislator are said to be inappropriate for reaching the legitimate aim, since by applying a tax to the small-scale HPSs the damage caused to natural resources could not be decreased and a more rational use of resources could not be achieved. It is contended that the calculation of the natural resource tax allows concluding that hydroelectric power stations with the largest water drop must pay the lowest tax. Thus, a more rational use of water resources could be made by increasing the water drop. However, legal acts prohibit from increasing the water level to increase the drop. The small HPS could be divided into three groups: 1) small HPSs that sell all the electricity they produce on the free market; 2) small HPSs that sell all the electricity they produce in the framework of mandatory electricity procurement; 3) small HPSs that sell part of the electricity they produce on the free electricity market, but part of it – within the framework of the mandatory electricity procurement. The natural resource tax is said to be an excessive burden upon those persons whose HPSs sell part of or all

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electricity that they produce on the free market. The calculation of natural resource tax show that in general the Petitioners must pay a tax in the amount of 15 to 50 per cent of their gross revenue, and this is said to be disproportional. At the same time a number of Petitioners have been imposed the obligation to pay also subsidised electricity tax, and both types of tax must be paid from the revenue, i.e., irrespective of whether the company operates with profit or loss. It is contended that the legislator had not considered whether the legitimate aim of the restriction could not be reached by other measures, less restrictive upon an individual’s rights. Likewise, the benefit that the society gains from the restriction upon the right to own property is said not to exceed the losses caused to the Petitioners. Society is said to benefit from the operations of the small-scale HPSs, whereas, if the production of energy from renewable energy resources decreased, then the share of fossil electricity and dependence from the energy resources of other countries would increase. At the hearing of the Court the Petitioners’ authorised representative sworn attorney J.Vaits noted additionally that, in assessing the proportionality of the obligation to pay the tax, it must be considered, whether after paying the tax the person still had an economic interest to continue the respective business activity. Whereas in assessing the compliance of the amendments to Regulations no. 404 with the Satversme, the same arguments provided by the Petitioners that applied to the compatibility of the impugned norms in the amendments to the NRTL with the Satversme should be taken into consideration. 4. The institution which has adopted the impugned act – the Saeima – considers that Article 3(1)(f) of the NRTL and the NRTL Article 191 (hereinafter – the impugned norms of the NRTL) comply with Article 105 of the Satversme. The Constitutional Court should assess the compatibility of the impugned norms of the NRTL with the first sentence of Article 105 of the Satversme. Article 105 of the Satversme is said to provide both for unhindered exercise of the right to own property and the rights of the state to restrict the right to own property in public interests. The restriction upon the Petitioners’ fundamental right has been established by law, which had been adopted in due procedure. Allegedly, neither the Satversme, nor the Saeima Rules of Procedure define consultations with the possible addressees of legal norms as a mandatory pre–requisite for adopting such norms. The Directive 2000/60/ EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (hereinafter – the Water Framework Directive) requires the users of water to cover the costs of water management services. Latvia must create a mechanism that would ensure that water users would cover all expenses related to the use of this resource, not only the damages caused to fish resources as the result of economic activities. Hence, the restriction upon the fundamental rights is said to have a legitimate aim – to ensure the other persons’ rights and welfare of society. The measures used by the legislator are said to be appropriate for reaching the legitimate aim of the rights restriction. Natural resources tax is said to be an appropriate and legitimate mechanism for such measures to ensure financing that have the aim of reducing the impact upon environment. Moreover, it should be examined in conjunction with Article 115 of the Satversme. It is alleged that there are no other measures, more lenient towards an individual’s rights, but the chosen legal regulation is said to balance the interests of society and those of an individual in the field of environment protection.

The Saeima does not agree to the Petitioners’ opinion that the amount of natural resource tax in the particular situation is not proportional. Initially the draft amendments to the NRTL had planned applying the tax rate of 0.018 euro/kWh to the small-scale HPSs. However, taking into consideration also the planned subsidised electricity tax, the rate of the natural resource tax was made dependent upon the quantity of water flowing through a hydrotechnical structure. The procedure for calculating the said quantity of water is established by the Cabinet of Ministers, on the basis of quantity of electricity that is produced and the efficiency coefficient of the hydroelectric station. Such calculation is allegedly more complex; however, it is more proper with regard to the taxpayer, since only that quantity of water that is used to produce electricity must be paid for. During the hearing of the Court M. Brencis, the representative of the Saeima, noted in addition that the legislator had broad discretion in establishing taxes. The impugned norms of the NRTL were said to be an incentive for persons to use water resources in a more rational way. The calculation of the natural resources tax had been based upon the idea – the more efficient use of water, the lower the natural resource tax payments. 5. The institution which has adopted the impugned act – the Cabinet of Ministers – considers that the impugned norms comply with Article 105 of the Satversme. The case had been initiated at the Constitutional Court regarding the compatibility of the impugned norms with Article 105 of the Satversme as a whole; however, essentially, their compliance with only the first three sentences of Article 105 of the Satversme should be examined. The Cabinet of Ministers agrees that the obligation to pay taxes is a restriction upon the right to own property. However, the state has great discretion in the field of taxes, and the right of the state to establish an obligation to pay taxes per se does not infringe upon a person’s fundamental rights. It should be taken into consideration that the natural resources tax, unlike other taxes, should not be assessed as a fiscal instrument; it is said to have other specific objectives. The application of this tax is said to be based upon principles that are used internationally and have been embedded also in the national legal acts – the principle “polluter pays” and the principle of producer’s responsibility. Until the amendments to the NRTL were adopted, the small-scale HPSs had not paid anything for using water resources and, thus, had lacked incentives for more careful use of natural resources. Moreover, Latvia is obliged to take into consideration the requirements that follow from the Water Framework Directive, inter alia, the requirement to ensure such price policy that would serve as an incentive for the users of water resources to use this resource efficiently. The restriction of the Petitioners’ right to own property has been established by law, and it has a legitimate aim. The state has intended the impugned norms for balancing the society’s interest in living in beneficial environment with the facilitation of economic development. The natural resources tax must ensure that all costs linked to the use of water resources are covered in full. Allegedly, no more lenient measures exist, neither is it possible to establish another natural resources tax rate, since the impugned norms balance the interests of society and those of an individual in the field of environment protection. The initial wording of the draft amendments to the NRTL, with the intention to simplify the tax calculations, envisaged establishing the tax rate as a fixed per cent of the existing electricity purchasing price. However, in the course of examining the draft law, a more commensurate approach to the tax calculation had been identified; i.e., a formula, according to which every small-scale HPSs could calculate the tax payment

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individually. The formula had been developed in cooperation with the faculty members of the Latvia University of Agriculture, Faculty of Rural Engineering and is aimed at an efficient use of natural resources and introduction of environmentally friendly technologies. The natural resources tax is said to be unconnected to the prices of mandatory procurement and with whether the electricity that is produced is sold in the framework of mandatory procurement or is used to meet the needs of the smallscale HPSs themselves. In the additional explanations that were provided, the Cabinet of Ministers expressed the opinion that the scope of damage to environment caused by the small HPSs was indirectly linked to the height of the water drop of the hydroelectric power station, since as the result of their operations the oxygen regime and temperature changed, sedimentation process occurred in the water basin, as well as erosion of the water–bed in the rapids Articles. During the hearing of the Court the representative of the Cabinet of Ministers R.Vesere noted in addition that the Petitioners’ objections regarding inconsiderate introduction of the tax were unfounded. Since 2010 when the management plans for river basins were elaborated discussions had taken place regarding the need to introduce natural resources tax for using water at the small-scale HPSs. In 2013 the particular regulation was drafted. […]

The motives 15. Article 105 of the Satversme provides: “Everyone has the right to own property. Property shall not be used contrary to the interests of the public. Property rights may be restricted only in accordance with law. Expropriation of property for public purposes shall be allowed only in exceptional cases on the basis of a specific law and in return for fair compensation.” The Petitioners request the Constitutional Court to examine the compatibility of the impugned norms with Article 105 of the Satversme. At the hearing of the Court J. Vaits, the Petitioners’ authorised representative, noted that the impugned norms were incompatible with the first and the third sentence in Article 105 of the Satversme. The Constitutional Court has found that Article 105 of the Satversme provides both for unhindered exercise of the right to own property and the rights of the state to restrict the exercise of the right to own property in the interests of the public (see, for example, the judgment of the Constitutional Court of 20 May 2002 in the case no. 2002-01-03, the motives part). The Constitutional Court has also noted that the obligation to pay a tax always means a restriction upon the right to own property (see, for example, the judgment of the Constitutional Court of 8 June 2007 in the case no. 2007-01-01, para. 19). It follows from the above that the regulation established by the impugned norms, insofar as it envisages a person’s obligation to pay the natural resources tax, falls within the scope of the first and the third sentence in Article 105 of the Satversme. Hence, the Constitutional Court will examine the compliance of the impugned norms with the first and the third sentence in Article 105 of the Satversme. 16. In the case under review several norms of the NRTL and of the Cabinet of Ministers Regulations are being contested. Therefore it must be examined, whether all impugned norms establish a person’s obligation to pay a tax, i.e., whether all impugned norms restrict a person’s right to own property.

Subparagraph Article 3(1)(f) of the NRTL defines which person should be considered as a taxpayer paying the natural resources tax. Whereas Article 191 of the NRTL inter alia, defines the rate of the tax to be paid for using water resources to produce electricity in small-scale HPS. A person’s obligation to pay natural resources tax for using water resources to produce electricity in a small-scale HPS follows from the impugned norms. Hence, these norms restrict a person’s right to own property. Whereas the amendments to Regulations no. 404 do not envisage the obligation to pay the natural resources tax, but, in accordance with the authorisation granted by the legislator, establish the procedure for calculating the quantity of water that has flown through a hydrotechnical structure, on the basis of the quantity of electricity that has been produced and the efficiency coefficient of the hydrotechnical station. However, not all norms of the amendments to Regulations no. 404 are linked to the procedure for calculating the quantity of water that has flown through. For example, subparagraph 1.2 of these Regulations specifies the wording with regard to the name of the branch ministry used throughout the text of Regulations no.404, and this in no way pertains to the procedure for calculating the quantity of water that has flown through. The Applicant’s authorised representative J. Vaits also specified at the hearing of the Court that the only those norms of the amendments to Regulations no. 404 that pertained to the procedure for calculating the quantity of water that had flown through the station restricted the Petitioners’ fundamental rights. Therefore in the framework of the case under examination the Constitutional Court will examine the compatibility of the amendments to Regulations no. 404 with the Satversme only insofar they establish the procedure for calculating the quantity of water that has flown through a hydrotechnical structure. The amendments to Regulations no. 404, insofar they establish the procedure for calculating the quantity of water that has flown through a hydrotechnical structure, per se do not impose an obligation upon a person to pay the natural resources tax. I.e., if the amendments to Regulations no. 404 were recognised as being invalid, a person, nevertheless, would retain the obligation to pay the natural resources tax, established in the NRTL. However, the norms of the amendments to Regulations no. 404 comprise the procedure for establishing the amount of the natural resources tax that a person has to pay. Thus, the amendments to Regulations no. 404 are closely linked to the impugned norms of the NRTL. Moreover, it follows from the applications and the explanations provided by the Petitioners at the hearing of the Court that the same legal arguments that are applied to the incompatibility of the impugned norms of the NRTL with the Satversme are also applied to the possible incompatibility of the amendments to Regulations no. 404 with the Satversme. Hence, both the impugned norms of the NRTL and the amendments to Regulations no. 404, insofar they establish the procedure for calculating the quantity of water that has flown through a hydrotechnical structure, are to be examined as a uniform Regulations that establishes a person’s obligation to pay a certain amount of natural resources tax for using water resources to produce electricity at small-scale HPS. 17. The Constitutional Court has recognised that the right to own property can be restricted, if the restriction is justifiable. To establish, whether the restriction upon rights is justifiable, the Constitutional Court must examine: 1) whether the restriction upon fundamental rights has been established by law; 2) whether the restriction has a legitimate aim;

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3) whether the restriction is proportional to its aim (see, for example, the judgment of the Constitutional Court of 20 May 2002 in the case no. 2002-01-03, the motives part). 18. Even though the impugned norms of the NRTL and the amendments to Regulations no. 404 are to examined as a uniform regulation, the Constitutional Court, nevertheless, must verify, whether each of the norms referred to above has been adopted in due procedure. Prior to examining, whether the restriction upon fundamental rights has been established by law, the subject, which in the field of tax law is to be considered as the legislator, must be identified. Pursuant to Article 64 of the Satversme two subjects have the right to legislate – the Saeima and the people in procedure and scope established in the Satversme. Whereas Article 73 of the Satversme points out those issues that cannot be put for a national referendum. It follows from the above, that the Satversme restricts the actions of the people as the legislator in the field of taxes and, insofar the actions by the state with regard to taxes fall within the scope of Article 73 of the Satversme, the Saeima is to be considered as the sole legislator in this field. 18.1. Divergent opinions have been expressed in the case as to whether the norms of the NRTL have been adopted in due procedure. The Petitioners call into question whether the legislator has the right to include a draft law that envisages introduction of a new tax into the package of draft budget laws. I.e., they doubt, whether a draft law that envisages introduction of a new tax could be recognised as being a draft law that amends the state budget. The Petitioners hold that such procedure for establishing new taxes is incompatible with the meaning and purpose of Article 871 of the Saeima Rules of Procedure. The representative of the Saeima noted at the court hearing that the issue, whether a draft law that envisaged introduction of a new tax should be submitted for hearing as part of the package of drat budget laws was political and depended upon the legislator’s will. The impugned norms were included in the draft amendments to the NRTL which the Cabinet of Ministers on 1 October 2013 submitted to the Saeima together with other draft laws of the state budget package. On 17 October 2013 the Saeima adopted the amendments to the NRTL in the first reading, but on 6 November 2013 – in the second, final reading. The amendments to the NRTL were promulgated on 27 November 2013 and entered into force on 1 January 2014. Pursuant to Article 21 of the Satversme the Saeima provides for its internal operations and order. Article 871 of the Saeima Rules of Procedure provides that the package of draft budget laws consists of a draft law on the annual state budget or draft laws governing or amending the state budget, or budget-related draft laws. The procedure, established in the Saeima Rules of Procedure, in which the draft annual state budget law and draft laws governing or amending the state budget are heard, differs from the procedure of reading other draft laws. Since the planning of the state financial resources are based upon the calculations of the state revenue and expenditure, the legislator has the right and, at the same time, also an obligation to include into the state budget law and the accompanying package of laws only such issues, which pertain to the particular financial year and are closely related to the use of the state financial resources (see the judgment of the Constitutional Court of 19 December 2011 in the case no. 2011-03-01, para. 18). In view of the special procedure established for hearing the package of draft budget laws, the Saeima must examine, whether all draft laws of the state budget

package, submitted by the Cabinet of Ministers, comply with the criteria set out in Article 871 of the Saeima Rules of Procedure. If a draft law does not comply with these criteria, the Saeima must exclude it from the package of draft budget laws. Moreover, the Saeima has acted like this in reading the package of 2014 draft state budget laws. For example, at the session of 17 October 2013 the Saeima excluded from the package of draft budget laws the draft law “Amendments to the Law “On National Referenda, Legislative Initiative and European Citizens’ Initiative”” (no. 925/Lp11) (see the transcript of the 17 October 2013 session of the 11th Saeima, available: http://www.Saeima.lv/lv/transcripts/ view/196, accessed on 25.02.2015.). The amendments to the NRTL entered into force on 1 January 2014. As of 1 January 2014, the impugned norms provided for the obligation to pay the natural resources tax. Thus, the amendments pertained to the particular fiscal year, and the Saeima has abided by the requirements of Article 871 of the Saeima Rules of Procedure. The Petitioners hold that during the course of adopting the amendments to the NRTL their interests had been ignored and no discussions with the representatives of the sector had been held (see the application in the case materials, vol. 2, p. 13). It follows from the case materials that a representative of the sector participated in the sittings of the Budget and Finance (Taxation) Committee that examined the draft amendments of the NRTL (see the case materials, vol. 3, pp. 3, 14, 16). The participation of stakeholders in the process of hearing a draft regulatory enactment may facilitate adoption of an unbiased decision and balancing of various interests; however, the opinion of a particular group of persons is not binding upon the legislator (see also the judgment of the Constitutional Court of 26 November 2009 in the case no. 2009-08-01, para. 17.2). Even though it would be advisable to hear the opinion of the addressees of the norms, neither the Satversme, nor the Saeima Rules of Procedure establish such hearing as a mandatory pre-requisite for adopting legal norms. The opinion of the addressees of these draft norms cannot prohibit the Saeima from adopting decisions. Thus, there are no grounds to recognise that the impugned amendments to the NRTL had been adopted by ignoring the provisions of the Satversme and the Saeima Rules of Procedure. The case does not contain a dispute regarding other aspects in adopting or promulgating the amendments to the NRTL. Thus, it can be concluded that the amendments to the NRTL have been adopted and promulgated in accordance with the procedure set out in the Satversme and the Saeima Rules of Procedure. 18.2. Pursuant to Article 3 of Law on Taxes and Fees, the taxable objects to which state taxes are applied and the tax rates are determined by the Saeima. Article 191 of the NRTL determines the taxable object and the rate, as well as authorises the Cabinet of Ministers to establish the procedures by which the water that has flown through the hydrotechnical structure shall be calculated on the basis of the quantity of electricity produced and the efficiency coefficient of the operation of the hydroelectric station. Thus, the legislator has defined two criteria that the Cabinet of Ministers must abide by in elaborating the procedure referred to above. In accordance with the authorisation granted in the NRTL, the Cabinet of Ministers had the task to elaborate a procedure that would be based upon the two criteria indicated by the legislator, would comply with the Satversme and laws and would be aimed at reaching the aims defined in Article 3 of the NRTL. The participants of the case have not contested the right of the Cabinet of Ministers to establish the procedure by which the water flown through the hydrotechnical structure is calculated. Neither has it been established in the course of hearing the case that

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the Cabinet of Ministers breached the authorisation granted to it by the legislator. It can be concluded from the above that the Cabinet of Ministers, in adopting the amendments to Regulations no. 404 has complied with the auhtorisation granted by the legislator. The case does not contain a dispute with regard to other aspects in adopting or promulgating the amendments to Regulations no. 404. Thus, the amendments to Regulations no. 404 have been adopted and promulgated in accordance with the procedure established in the Satversme. Hence, the restriction upon the fundamental rights included in the impugned norms has been established by law. 19. Any restriction upon the fundamental rights must be based upon circumstances and arguments regarding its necessity, i.e., the restriction must be established for the sake of important interests – a legitimate aim (see, for example, the judgment of the Constitutional Court of 22 December 2005 in the case no. 2005-19-01, para. 9). The Constitutional Court has recognised that in the legal proceedings before the Constitutional Court the duty to identify the legitimate aim falls upon the institution, which has adopted the impugned act (see the judgment of the Constitutional Court of 25 October 2011 in the case no. 2011-01-01, para. 13.2). The Saeima states that the restriction upon the fundamental rights has been established to balance the public interest to live in a benevolent environment with economic development. I.e., the legitimate aim of the restriction upon the fundamental rights is said to be ensuring other persons’ rights and public welfare. The Cabinet of Ministers in its written reply upholds the Saeima’s opinion with regard to the legitimate aim of the restriction upon the fundamental rights (see the written reply by the Cabinet of Ministers, the case materials, vol. 1, p. 99). To identify the legitimate aim of the restriction upon the fundamental rights in the case under review, the reason why in the particular case the legislator has established a person’s obligation to pay the natural resources tax must be identified. Pursuant to the NRTL Article 2, the purpose of the natural resources tax is to promote economically efficient use of natural resources, restrict pollution of the environment, reduce manufacturing and sale of environment polluting substances, promote implementation of new, environment-friendly technology, support sustainable development in the economy, as well as to ensure environmental protection measures financially. The representative of the Saeima noted at the court hearing that in the case under review the natural resources tax has been established, basically, for using water as resource. I.e., the obligation to pay this tax has been established so that persons would pay for using water as significant resource and use this resource as efficiently as possible. Whereas the summoned persons K. Ketners and M. Jurušs at the court hearing expressed the opinion that in general the tax has been established both for using water as resource, but also in connection with the fact that after flowing through hydrotechnical stations of the small-scale HPS its properties had changed, and also in view of the impact that operations of small-scale HPS left upon environment. A number of the European Union and international documents have foregrounded the importance of water as resource. The Constitutional Court has recognised that the regulatory enactments of the European Union, insofar the fundamental principles of the Satversme are not affected, must be taken into consideration in the interpretation of the national regulatory enactments (see, for example, the judgment of the Constitutional Court of 2 May 2012 in the case no. 2011-17-03, para. 13.3). The 1st recital in the Preamble to the Water Framework Directive notes that water should be treated as heritage and

should be protected. Moreover, a requirement to the member states of the European Union to provide incentives to use water resources efficiently follows from Article 9 of the Water Framework Directive. Whereas Para 19 in the final report the United Nations 2012 Conference on Sustainable Development recognizes the critical importance of water as resource in ensuring sustainable development (see the Report of the United Nations Conference on Sustainable Development. Rio de Janeiro, Brazil, 20‑22 June 2012. United Nations: New York, 2012, p. 23, available: http://www.uncsd2012.org/content/documents/814UNCSD%20 REPORT%20final%20revs.pdf, accessed on 25.02.2015.). Even though the document referred to above is not binding as to its legal status, nevertheless, the findings that it comprises should be recognised as being sufficiently authoritative (to compare, see the judgment of the Constitutional Court of 14 September 2005 in the case no. 2005-020106, para. 16). It follows from the above that a tax to be paid for using such important resource as water can serve the purpose of protecting public welfare. Moreover, it should be taken into consideration that the natural resources tax should be recognised as being the so-called environmental tax (see, for example, Dr. oec. K. Ketners’s opinion in the case materials, vol. 4, p. 28). The system of environmental taxes is used to adjust prices in such a way as to ensure that taxpayers’ actions are environment-friendly (see Milne J. E., Andersen M. S. [editors]. Handbook of Research on Environmental Taxation. [N.p.]: Edward Elgar Publishing, 2012, p. 15). Thus, the legislator’s general aim in establishing the obligation to pay natural resources tax for using water as resource important for society in business activities is to ensure more efficient and responsible use of natural resources. The environmental taxes do not have pronounced fiscal functions as, for example, taxes on revenue; however, the resources obtained from the payments of natural resources tax can be used for financing projects and measures of public importance. It has also been recognised in the case-law of the Constitutional Court that the Regulations that envisages payment of a tax should be assessed as a restriction that has been established in taxation legal relationships to ensure the formation of the state and local government budget (see the judgment of the Constitutional Court of 8 June 2007 in the case no. 2007-01-01, para. 22). Taxes are established to ensure public welfare (see, for example, the judgment of the Constitutional Court of 6 December 2010 in the case no. 2010-25-01, para. 9). The impugned norms are aimed not only at more efficient and responsible use of natural resources, but also at ensuring revenue in the state budget, and this revenue may be used, inter alia, to finance measures for improving the environment condition. Thus, the restriction upon the fundamental rights that the impugned norms comprise is aimed at protecting public welfare. Thus, the restriction upon the fundamental rights has a legitimate aim – the protection of public welfare. 20. Upon establishing the legitimate aim of the restriction upon the fundamental rights, its compliance with the principle of proportionality must be examined. Since in the case under review the compatibility of a restriction upon the right to own property, which follows from the obligation to pay a tax, with the Satversme is being examined, the Constitutional Court must establish, whether the specificity of the tax law influences the scope of constitutional review. The Constitutional Court has recognised that in the field of tax law the legislator cannot be set the same requirements as, for example, in the field of ensuring and protecting civic or political rights (see, for example, the judgment of the Constitutional

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Court of 13 April 2011 in the case no. 2010-59-01, para. 9). The state, in establishing and implementing its taxation policy, enjoys broad discretion (see, for example, the judgment of the Constitutional Court of 20 May 2011 in the case no. 2010-70-01, para. 9). It comprises the right to choose tax rates and the categories of persons that the taxes apply to, as well as the right to provide details of the respective Regulations. In examining the limits of the legislator’s discretion with regard to establishing a tax for a specific object. It must be taken into consideration that the Satversme expressis verbis authorizes the legislator to adopt the state budget, i.e., to determine the revenue and expenditure of the state. The Satversme authorises the legislator to implement such fiscal policy that would ensure the revenue necessary for the state (see the judgment of the Constitutional Court of 6 December 2010 in the case no. 2010-25-01, para. 10). Thus, the state must provide for its sustainable development, inter alia, also in a way to ensure that the state budget would always have the resources necessary for performing the functions of the state. Moreover, the Constitutional Court has already noted that a person’s right to own property cannot be examined in insolation from a person’s constitutional duty to pay taxes established in due procedure (see, for example, the judgment of the Constitutional Court of 13 April 2011 in the case no. 2010-59-01, para. 9). The finding that the rights that follow from Article 105 of the Satversme should be interpreted in interconnection with Article 1 of Protocol no. 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (see, for example, the judgment of the Constitutional Court of 28 May 2009 in the case no. 200847-01, para. 7.1) has become embedded in the case-law of the Constitutional Court. It follows from the case-law of the European Court of Human Rights (hereinafter – ECHR) that the cases related to the establishment of the obligation to pay taxes are predominantly examined in the context of control over the use of property (see, for example: Sermet L. The European Convention on Human Rights and property rights. Human rights files, no. 11 rev. Strasbourg: Council of Europe Publishing, 1999, p. 25). It has also been recognised in the case-law of ECHR that a tax, as to its nature, must not be confiscatory (see, for example, the ECHR judgment of 25 July 2013 in the case “Khodorkovskiy and Lebedev v. Russia”, applications no. 11082/06 and 13772/05, para. 870). Whereas the Constitutional Court has recognised that in reviewing the legality of restricting fundamental rights, it could chiefly examine whether the payment of the tax was not an excessive burden for the addressee and whether the legal regulation on taxes complied with the general principles of law (see the judgment of the Constitutional Court of 8 June 2007 in the case no. 2007-01-01, para. 24). Thus, in assessing whether the payment of a tax is not an excessive burden for the addressee it must be considered, inter alia, whether the applied tax as to its nature is not confiscatory. Thus, the specificity of the tax law influences the scope of constitutional review. 21. In addition to this, in the case under review it is important that the impugned norms do not introduce a totally new obligation to pay a natural resources tax, but revoke an exemption from the obligation to pay the natural resources tax that had been in force for a rather long period. The Cabinet of Ministers notes in its written reply that historically regulatory enactments envisaged an exemption from paying the natural resources tax for using water resources in hydroelectric power stations as an initial support to the small-scale HPS that would allow them to commence their operations (see the written reply by the Cabinet of Ministers in the case materials, vol. 1, p. 88).

Article 171(2) of 14 September 1995 law “On the Natural Resources Tax” (in the wording of 20 December 2011) provided: “The tax shall not be calculated for: […] 2) the use of water (flow) in hydrotechnical and fisheries facilities, in water reservoirs, fish farms and pond farms, except for the quantity of water that in the permit for water use have been defined as consumption for production, maintenance and household needs.” This exemption was retained in the NRTL by providing in Article 5(2) (in the wording of the law of 15 December 2005) that the tax should not be paid for using water (flow) in hydrotechnical and fisheries facilities, also in hydroelectric power stations. This Regulations was in force until the amendments to the NRTL entered into force. Likewise, Article 17(1) of the Water Management Law, from the date of its adoption – 12 September 2002 until 6 November 2013, when the amendments came into force, provided that natural and legal persons used water flow free of charge for producing hydroelectric power. It cannot be concluded neither from the legal norms referred to above, nor the discussions that were held at the time when these norms were read at the Saeima sessions that the exemption from the natural resources case in the particular case had been intended as an initial support to small-scale HPS. Nevertheless, by including such exemption into legal norms the legislator with regard to the use of water for production of hydroelectric power had established a more favourable tax regime for the small-scale HPS. Two concepts are known in the tax law – tax relief and exemption from tax. Compared to tax relief, an exemption from tax is a more favourable tax regime for a person, since the legal acts define precisely those cases, where persons do not have to pay the tax at all. For example, Chapter 2 of the NRTL provides a detailed regulation regarding the kinds of operations (types of operations) or the kinds of persons to which the natural resources tax is not applied. All operations (or kinds of operations) that are referred to in this chapter are related to the use of natural resources or goods that are harmful to the environment or causing certain pollution. Thus, essentially, any activity, which is not currently taxable, is such that could envisage for the person conducting it the obligation to pay the natural resources tax. However, the legislator, by exercising its discretion, in these cases has established an exemption from the tax. With regard to tax exemptions, it has been recognised in the case-law of the Constitutional Court that a person’s legal certainty that a tax exemption would not be revoked even if priorities of economic policy were to change is not protected to the same extent as a person’s legal certainty in other cases, when restrictions are placed upon the right to own property (see, for example, the judgment of the Constitutional Court of 6 December 2010 in the case no. 2010-25-01, para. 10.1). Whereas in those cases where regulatory acts had exempted persons from the obligation to pay a tax for a long period of time they do not have the right to expect that such regulation would remain unchanged and that they would never have to pay the respective tax, – exactly as in the case, where the legislator establishes an obligation to pay a new tax. 22. The Petitioners noted that the restriction on the right to own property was not proportional, since those Petitioners that sold the produced electricity in the framework of mandatory procurement also had the duty to pay the subsidized electricity tax (see, for example, the application in the case materials, vol. 1, p. 24). However, the Petitioners have not advanced such arguments that would allow concluding that the natural resources tax, as to its nature, was confiscatory. Neither do the case materials provide confirmation to the fact that in the case under review the natural resources tax could be recognised as being confiscatory.

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In assessing, whether the payment of a tax is not an excessive burden for the addressee, it must be taken into consideration that each tax is an element in the taxation policy implemented by the legislator and that usually each person has the obligation to pay a number of taxes. Each tax has different aims, objects, rates, the procedure for calculating and applying it. Likewise, each Applicant also simultaneously pays a number of taxes. Moreover, the obligation to pay various taxes and the financial impact caused by it differs depending upon the Petitioners’ legal status (for example, one–man company, a farm or a share company), types of activities, contractual commitments and other circumstances. The Petitioners have requested the Constitutional Court to examine the compatibility of only one particular tax with the Satversme. J. Vaits, the Petitioners’ authorised representative, noted at the court hearing that the Petitioners were under different circumstances. Some of the Petitioners sell all electricity that they produce in the framework of mandatory procurement, others – on the free market, or sell part of the produced electricity on the free market and part – in the framework of mandatory procurement. Thus, in the case under review, the Constitutional Court must not examine the proportionality of the whole tax burden applied to the Petitioners, since that would mean reassessment of the taxation policy in various sectors, and it is not the task of the Constitutional Court. Hence, the Constitutional Court shall examine only the compatibility of the natural resources tax related to the use of water resources for producing electricity at smallscale HPS with the Satversme, without dealing with the restriction upon the right to own property caused by the obligation to pay other taxes. 23. It follows from the facts of the case and the legal substantiation submitted by the Petitioners that in the case under review, in examining the compatibility of the impugned norms with the general principles of law, the Constitutional Court must verify whether the principle of proportionality has been complied with. To establish whether the restriction upon fundamental rights complies with the principle of proportionality, the Constitutional Court usually examines whether the measures applied are appropriate for reaching the legitimate aim; whether the legitimate aim cannot be reached by other measures, less restrictive upon a person’s rights and legal interests; whether the benefit gained by society exceeds the losses caused to a person (see, for example, the judgment of the Constitutional Court of 22 December 2008 in the case no. 2008-11-01, para. 13). 24. The Petitioners and some of the summoned persons have expressed doubts, whether the restriction upon the fundamental rights that the impugned norms comprise is appropriate for reaching its legitimate aim. 24.1. The Constitutional Court upholds the finding expressed in literature on the tax law that the taxation legal norms should be not only legally impeccable, but also economically substantiated (see: Lazdiņš J. Ievads nodokļu tiesībās. Jurista Vārds, 10 October 2006, no. 40, p. 2). Moreover, tax regulation must be founded upon unbiased and rational considerations (see the judgment of the Constitutional Court of 20 May 2011 in the case no. 2010-70-01, para. 9). The Constitutional Court cannot verify whether the measures used by the legislator comply with the finding of economics. However, to conclude, whether the restriction upon fundamental rights caused by the obligation to pay the tax is appropriate for reaching its legitimate aim, the Constitutional Court must verify whether the measures

used by the legislator have reasonable explanation, based upon unbiased and rational considerations. I.e., whether the taxpayers, the taxable object and the principle for calculating the tax have not been determined arbitrarily and whether the procedure for calculating the tax allows determining mathematically the payable tax. Pursuant to the impugned norms, the natural resources tax applies to all smallscale HPS and it must be paid for using water resources to produce electricity. The procedure for calculating the quantity of water that has flown through the facility, included in Regulations no. 404, abiding by the authorisation granted by the legislator, has been determined on the basis of the quantity of electricity that has been produced and the efficiency coefficient of the hydrotechnical station. This means that the criteria used for calculation pertain to the process of production that takes place in small-scale HPS. Thus, the selected principle for calculating the tax has a reasonable explanation. The written opinions submitted to the Constitutional Court by the summoned persons K. Siļķe and L. Magelis call into question the correctness of the formula developed by the Cabinet of Ministers and its suitability for calculating the natural resources tax (see the opinions of the summoned persons, the case materials, vol. 4, pp. 1, 31‑33). K. Siļķe also noted that the Cabinet of Ministers had made an error in explaining the coefficient 0.002725 of the formula. However, at the court hearing K.Siļķe admitted that the inaccuracy referred to above did not essentially influence the calculation of the quantity of the water that had flown through. The formula introduced by Regulations no. 404 was said to be a generally known formula of hydraulics and hydrotechnics. Thus, it is possible to use this formula to make mathematically correct calculations of the quantity of water that has flown through a hydrotechnical structure. It must be noted additionally that both the particular object of the natural resources tax and the formula for calculating the quantity of water that has flown through have been chosen with the aim to create incentives for more efficient use of water resources. The Cabinet of Ministers in its additional explanations to the Constitutional Court has noted that hydroelectric power stations with small water drops are less efficient, since they use more water for producing one kilowatt-hour of electricity compared to hydroelectric power stations with larger water drops (see the additional explanations by the Cabinet of Ministers, the case materials, vol. 4, p. 71). It follows from the above that a person whose small-scale HPS has larger water drops or efficiency coefficient of hydroelectric station, must pay smaller natural resources tax. Thus, in the particular case the measures chosen for reaching the legitimate aim of the restriction upon the fundamental rights has a reasonable explanation, based upon unbiased and rational considerations. 24.2. Pursuant to Article 28(4) of the NRTL, the payment of taxes for using water resources to produce electricity in small-scale HPS are paid into the basic state budget. The Ombudsman holds that the efficiency of using revenue from the natural resources tax could be called into question, since it is not paid into the budgets of those local governments, on the territories of which small-scale HPS operate and is not used to eliminate the environmental impact caused in the particular territory (see the Ombudsman’s opinion, the case materials, vol. 4, p. 68). Whereas the Cabinet of Ministers has noted that Latvia has accumulated experience in managing revenue from the natural resources tax over many years. Subsidies are allocated from the state budget for the program “Latvian Environmental Protection Fund”, and part of this subsidy is channelled for assessing the operations of small-scale HPS, increasing efficiency and reducing negative environmental impact (see the additional explanations by the Cabinet of Ministers, the case materials, vol. 4, p. 75).

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Certainly, the natural resources tax ensures the state budget revenue. It has been recognised in the case-law of the Constitutional Court that the legislators duty to cover from the revenue of a particular tax expenditure only in particular fields does not follow from the Satversme (see the judgment of the Constitutional Court of 3 February 2012 in the case no. 2011-11-01, para. 13). In the instance under review, the revenue from the natural resources tax can be used to finance various social and economic measures aimed at protecting the public welfare, inter alia, also projects to be implemented in the field of environment protection. Thus, it can be concluded that the measures used by the legislator are appropriate for reaching the legitimate aim of the restriction upon the fundamental rights. 25. It follows from the explanations provided by the participants in the case and summoned persons during the court hearing that in the particular case a lower tax rate, another principle for calculating the tax or such formula for calculating the quantity of water that has flown through the facility that would contain a coefficient that would level out the differences in water drops of small-scale HPS could be considered to be more lenient measures. 25.1. In establishing, whether the legislator had more lenient measures at its disposal, the Constitutional Court must examine, whether the legislator has considered alternatives to the impugned norms (see, for example, the judgment of the Constitutional Court of 21 December 2009 in the case no. 2009-43-01, para. 30.2). It follows from the case materials that the Saeima in the first reading approved the initially submitted wording of the amendments to the NRTL. For the second reading, the proposals by the Saeima members U. Augulis and J.Tutins were submitted – to retain the exemption from paying the tax for using water recourses, as well as a proposal by the Cabinet of Ministers offering another procedure for calculating the payment of tax and another, lowered tax rate (see the case materials, vol. 3, pp. 156, 163). In the second reading, the Saeima, in separate voting, rejected the proposal to retain the exemption and supported the proposal submitted by the Cabinet of Ministers (see the transcript of the extraordinary session of the 11th Saeima on 6 November 2013, available: http://www. Saeima.lv/lv/transcripts/view/202, accessed on 25.02.2015.). Thus, the legislator has examined the possibility to retain the exemption and the necessity to revoke it. Hence, the legislator has considered both the validity of the restriction upon the fundamental rights that the impugned norms of the NRTL comprise, as well as alternatives to the impugned norms of the NRTL. 25.2. The Constitutional Court underscores that in assessing, whether the legitimate aim can be reached by other means, it must be taken into consideration that a more lenient measure is not just any other measure, but such that would allow reaching the legitimate aim in at least the same quality (see, for example, the judgment of the Constitutional Court of 13 May 2005 in the case no. 2004-18-0106, para. 19 of the motives part). Moreover, in particular, in assessing, whether more lenient measures for reaching the legitimate aim exist, the Constitutional Court must abide by the limits of review that follow from the nature of the tax law (see, for example, the judgment of the Constitutional Court of 20 May 2011 in the case no. 2010-70-01, para. 16). As noted above, the natural resources tax should be considered an environmental tax. The Constitutional Court has recognised that tax laws perform also a regulatory function, i.e., balance the interests of the state and those of taxpayers, as well as influence taxpayers’ behaviour (see the judgment of the Constitutional Court of 3 April 2008 in the case no. 2007-23-01, para. 15). Thus, the legislator, in exercising its discretion in

establishing taxation policy, has the right to support or restrict, through the natural resources tax, the use of particular economic activity, technology or natural resource, thus providing for sustainable development of the state. I.e., the legislator has the right to select such measures for reaching the defined legitimate aim that can influence a person’s interest to take up particular types of commercial activities or employ particular technologies in his or her commercial activities. Inter alia, the legislator can, by using the tax, also increase the costs of the respective commercial activity and, thus, decrease the amount of income that the person had planned to gain from the respective activity. Thus, if the legislator, by exercising its discretion, has decided to introduce a tax with a regulatory function, the absence of such a tax cannot be recognised as being a more lenient measure. In such a case, similarly to the case under review, the legislator wishes to reach two purposes by the restriction upon the fundamental rights – to leave a particular impact upon a person’s behaviour and to ensure revenue for the state budget. This means that the absence of an obligation to pay the natural resources tax would not allow reaching the legitimate aim of the restriction upon the fundamental rights in at least the same quality. If the Constitutional Court has established that the principle for calculating the tax, which the legislator has chosen, has a reasonable explanation, based upon unbiased and rational considerations, then the Constitutional Court has no right to provide that the legislator should select another tax rate, another principle for calculating the tax or should include other elements in the formula for calculating the tax. Likewise, ECHR, in examining case with regard to restrictions upon human rights in connection with the obligation to pay tax, does not assess the choices made by states in the field of taxes, unless such choice lacks reasonable grounds (see, for example, the ECHR judgment of 4 July 2013 in the case “R.Sz. v. Hungary”, application no. 41838/11, para. 48). It has been established in the case under review that the legislator considered alternatives to the impugned norms, and certainty has been gained that the principle for calculating the tax has a reasonable explanation, which is based upon unbiased and rational considerations. Thus, there are no more lenient means that would allow reaching the legitimate aim of the restriction upon the fundamental rights in at least the same quality. 26. The Petitioners contend that the burden created by the natural resources tax is not proportional and that the public benefit does not exceed the damage inflicted upon their rights and legal interests. The Petitioners, in turning to the Constitutional Court, also forecasted that due to the amendments to the NRTL the majority of companies operating in the particular field would become insolvent by the end of 2014 (see the application, the case materials, vol. 2, pp. 29-30). And yet, during the court hearing, the Petitioners’ representatives noted that they had no knowledge of cases, where the insolvency proceedings of a company operating in the respective field had been initiated due to the obligation to pay the natural resources tax or where a company had ceased to produce electricity in a small-scale HPS. The authorised representative of SSHA noted at the court hearing that the actual impact of this tax upon particular companies operating in the sector significantly differed, since it depended upon various factors. In the case under review, in assessing the benefit that the society gains form the impugned norms, the gains from the operations of small-scale HPS should be taken into consideration. The summoned person J.Ozoliņš noted that in 2013 in Latvia 146 small-scale HPS operated, from which 59 million kilowatt-hours of electricity were procured. The contribution by the small-scale HPS to the balance of consumption in the state complies with their technical possibilities (see J. Ozoliņš’s opinion, the case

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materials, vol. 4, p. 59). The authorised representative of SSHA noted during the court hearing that the contribution by the small-scale HPS to the national electricity supply made up approximately 1 to 1.5 per cent. The Constitutional Court recognises that smallscale HPS contribute to the national electricity supply and strengthening of the self– sufficiency in energy. Moreover, the small-scale HPS produce electricity from renewable resources, which should be counted as environmentally friendly energy resources. The state, in establishing the obligation to pay natural resources tax for using water resources in producing electricity, has attempted to make the operations of smallscale HPS more efficient and environment-friendly; i.e., to the extent possible, promote introduction of more modern technologies in the operations of small-scale HPS, as well as to identify the environmental impact of the small-scale HPS. This means that society, in addition to the benefit it gains from the production of electricity in the small-scale HPS, also benefits from more efficient operations of the small-scale HPS and, thus, in general the public welfare is being promoted. As established above, in this particular case the natural resources tax also has a regulatory function. Thus, a person – the taxpayer – has the possibility to adjust his or her actions in such a way as to decrease the possible negative consequences caused by the obligation to pay the tax. Moreover, the impugned norms are aimed at ensuring revenue into the state budget. This means that the public benefit – vis-à-vis restrictions upon the rights of some taxpayers – is not only more efficient operations of the small-scale HPS, but also the state budget resources to be used for the protection of public welfare. Hence, the benefit that the society gains from the impugned norms exceeds the damage inflicted upon a person’s rights and legal interests, and the impugned norms comply with the principle of proportionality.

The resolutive part On the basis of Article 30-32 of the Constitutional Court Law, the Constitutional Court

2015-01-01

National flag

611

Sanctions for the failure to place the national flag on a residential building on national holidays and commemorative days The right to freedom of expression and the placement of the national flag on a residential building owned by a person as one manifestation of the freedom of expression was examined. It was found that the national flag of Latvia is an integral element of the constitutional and international identity of the Latvian state. It symbolises the historical process of consolidation of the Latvian nation, as well as the struggle for an independent and democratic state of Latvia. It was recognised that the obligation to place the national flag on residential buildings on national holidays and commemorative days consolidates the awareness of statehood and, thus, also the democratic Republic of Latvia. However, the fact that a penalty is envisaged for the failure to perform this obligation creates the possibility that the flag is placed on buildings only because of the envisaged penalty. Envisaging a penalty to ensure that obligations of civic nature are performed can be recognised as being proportionate only in exceptional cases. In a democratic state, alongside imperative measures also pre-conditions of general nature must be created for the voluntary performance of civil duties, primarily based on the awareness of statehood not in fear of punishment. Envisaging penalty for not expressing one’s opinion is inadmissible in a democratic society. A separate opinion of two judges were appended to the judgment. It was noted in the opinion that there should be a possibility to achieve by coercive measures that an obligation ensured in a legal norm is performed.

decided: 1. To declare Article 3(1)(f) and Article 191 of Natural Resources Tax Law to be compatible with Article 105 of the Satversme of the Republic of Latvia. 2. To declare the Cabinet of Ministers Regulations of 14 January 2014 no. 27 “Amendments to the Cabinet of Ministers Regulations of 19 June 2007 no. 404 “Procedures for the Calculation and Payment of Natural Resources Tax and Procedures for the Issuance of Permits for Use of Natural Resources”” to be compatible with Article 105 of the Satversme of the Republic of Latvia. The judgment is final and not subject to appeal. The judgment was pronounced in Riga on 25 March 2015. The judgment shall come into force as of the moment of its pronouncement.

Chairman of the hearing of the Court

A. Laviņš

JUDGMENT in the name of the Republic of Latvia in the case no. 2015-01-01 Riga, 2 July 2015 The Constitutional Court of the Republic of Latvia in the following composition: the chairman of the hearing of the Court Aldis Laviņš, judges Kaspars Balodis, Kristīne Krūma, Gunārs Kusiņš, Uldis Ķinis, Sanita Osipova and Ineta Ziemele, having regard to the constitutional complaint submitted by Solvita Olsena, on the basis of Article 85 of the Satversme of the Republic of Latvia and Article 16(1), Article 17(1)(11), as well as Article 192 and Article 281 of the Constitutional Court Law at the court hearing of 2 June 2015 reviewed in written procedure the case “On the compliance of Article 7(1) and (2) of the Law on the National Flag of Latvia and Article 20143 of the Latvian Administrative Violations Code with Article 100 of the Satversme of the Republic of Latvia”.

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The facts 1. The Law on the National Flag of Latvia (hereinafter – the Law on the National Flag) was adopted on 29 October 2009 and entered into force on 18 November 2009. Article 7(1) and (2) of the Law on the National Flag (hereinafter also – the impugned norms of the Law on the National Flag) provide: “(1) The national flag of Latvia 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 1 May, 4 May, 21 August, 11 November and 18 November. (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, 17 June, 4 July and on the first Sunday of December.” Article 7(1) of the Law on the National Flag has been amended once. The amendments that were introduced with the law of 8 November 2012 and entered into force on 16 November of the same year provided that also 21 August was a day of commemoration. Before the Law on the National Flag was adopted, the law “On the National Flag of Latvia”, adopted on 24 November 1994, was in force. Article 2(5) of this Law also defined the obligation to place the national flag on residential buildings on 16 February, 24 February, 25 February (in mourning presentation), 17 June (in mourning presentation), 4 July (in mourning presentation), 11 November, 18 November and in the first Sunday of December (in mourning presentation). 2. Article 201 43 of the Latvian Administrative Violations Code (hereinafter – the impugned 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, the 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.” On 19 July 1995 the law “Amendments to the Latvian Administrative Violations Code” was adopted, by which Chapter Fourteen “e” was included into the law “Administrative Violations in the Use of Symbols of the State”. Article 20143 included in this Chapter, inter alia, established liability for failing to place the Latvian national flag on the dates specified by the Saeima, envisaging a monetary fine up to 50 lats for it. Warning as a penalty was not envisaged. Article 20143 of the Latvian Administrative Violations Code (hereinafter also – LAVC) was amended on 4 February 2010 in connection with the adoption of the Law on the National Flag. The current wording of LAVC Article 20143 has been in force since 1 January 2014 when amendments to the Latvian Administrative Violations Code entered into force, by which the monetary fine established in Article 20143 was expressed in euro, and now its maximum amount is not 30 lats but 40 euro. 3. The petitioner Solvita Olsena (hereinafter – the Petitioner) on 14 June 2013 in her property, which was also her place of residence, celebrated a family festival. The Petitioner had not placed on the residential building the Latvian national flag in mourning presentation because it would have hindered the celebrations.

An administrative violation report was drawn up with regard to the Petitioner because the Latvian national flag in mourning presentation had not been placed on the Petitioner’s residential building (see the case materials, p. 21), noting that the Petitioner had failed to place on a residential building owned by her the Latvian national flag in mourning presentation in compliance with the requirements of Article 7(2) of the Law on the National Flag and of para. 10 of the Cabinet Regulations of 27 April 2012 no. 405 “Regulations on Applying the Law on the National Flag of Latvia” on the day of commemoration of the victims of the communist genocide, and thus had committed an administrative violation. On 28 November 2013 the Pārdaugava Sub-committee of the Administrative Committee of the Riga City Council adopted a decision to impose an administrative penalty upon the Petitioner – a warning, on the basis of Article 32 and Article 20143(1) of LAVC. The Petitioner appealed against this decision. On 17 December 2013 the Administrative Committee of the Riga City Council decided to leave the decision on imposing the administrative penalty unchanged (see the case materials, p. 22). The Petitioner appealed against the decision by the Administrative Committee of the Riga City Council before the Court of the Riga City Zemgale Suburb which by the judgment of 4 April 2014 (see the case materials, p. 29) left the decision on imposing the administrative penalty unamended. The Petitioner submitted an appeal to the Panel of Criminal Cases of the Riga Regional Court which by a judgment of 17 June 2014 (see the case materials, p. 32) left the judgment of the Riga City Zemgale Suburb Court unamended. The judgment by the Panel of Criminal Cases of Riga Regional Court was not subject to appeal. The Petitioner considers that the contested norm of the Law on the National Flag and the impugned LAVC norm (hereinafter jointly also – the impugned norms) infringe upon her right to freedom of speech guaranteed by Article 100 of the Satversme of the Republic of Latvia (hereinafter – the Satversme). She requests the Constitutional Court to declare the impugned norms as being incompatible with Article 100 of the Satversme. If on 14 June 2013 the Latvian national flag in mourning presentation had been placed on the Petitioner’s residential building, it would have been contrary to her political and philosophical convictions. Allegedly, the obligation to place the Latvian national flag in mourning presentation on a residential building significantly restricts the Petitioner’s freedom of speech and the right to freely express her opinion on historical events. The Petitioner holds that she is forced to express an opinion that is loyal to the state in a place, at a time and in a way that is unacceptable to her. Article 100 of the Satversme should be interpreted broadly, including into it also non-verbal forms of expression. The use of the Latvian national flag as a symbol of the state is a way in which a person expresses his or her opinion in a non-verbal form. The Petitioner underscores that she uses the Latvian national flag only when she wishes to express her opinion on the events in the state. 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. The Petitioner does not deny that pursuant to Article 116 of the Satversme restrictions may be placed upon an individual’s rights, and yet she emphasizes that the restriction upon an individual’s rights established by the impugned norms is disproportional. Allegedly, the obligation established by the impugned norms of the Law on the National Flag for private persons to place the Latvian national flag on residential buildings does not serve a legitimate aim, and even if a legitimate aim

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could be established, this restriction, nevertheless, should not be recognised as being proportional and necessary in a democratic society. Upon having familiarised herself with the case materials the Petitioner submitted additional considerations regarding her claim, indicating that it was linked to Article 99 of the Satversme, which protects an individual’s right to the freedom of thought and conscience. She does not agree to the opinion expressed by the Saeima regarding the legitimate aim of the restriction upon rights. Allegedly, compulsory use of the Latvian national flag as a symbol of the state cannot be recognised as an important pre-requisite for the protection of public welfare. 4. The institution which adopted the impugned acts – the Saeima – considers that the impugned norms comply with Article 100 of the Satversme. The Saeima, referring to the case-law of the European Court of Human Rights (hereinafter – the ECHR) which is said to be comparable to this case notes that the obligation to place the Latvian national flag on residential buildings applies to all private persons in a general and neutral way, irrespectively of their ethnicity or views. Placing of the Latvian national flag on residential buildings on the days specified in the Law on the National Flag as a technical activity is said to be an obligation that follows only from the fact that the person owns a residential building and cannot be considered as an obligation imposed upon these persons to express their personal loyalty to Latvia. This obligation, similarly to the obligation of paying a real estate tax or to place on the building a number plate conforming to a certain standard, is said not to be linked with a person’s beliefs or sentiment. The obligation to place the Latvian national flag on a residential building ten days in a year, allegedly, does not influence the Petitioner’s rights, within the limits set in Article 100 of the Satversme, to express her opinion on the events in Latvian history in any place and at any time. Moreover, it does not impose an obligation to abstain from hosting events in one’s house on the specified dates or from expressing one’s personal attitude towards the national holidays or the historical events remembered on the days of commemoration. The Saeima does not agree with the Petitioner’s opinion that she had been imposed an obligation to express mourning or joy on the respective days; i.e., that the so-called negative right to the freedom of speech or an individual’s right not to express one’s opinion would be restricted. If, however, it could be established that the Petitioner’s right to the freedom of speech had been restricted, then the respective restriction has a legitimate aim and should be recognised as being proportional. The obligation to place the Latvian national flag on residential buildings on ten days that have been established by the impugned norms of the Law on the National Flag is said to follow also from the preamble of the Satversme (hereinafter – the preamble) and Article 4 of the Satversme which establishes the constitutional status of the Latvian national flag. The national flag of Latvia would not reach its aim – to symbolise Latvia as a democratic society and to consolidate people – if the obligation to use it had been imposed only upon institutions of public administration. The legislator’s task to regulate the use of the Latvian national flag and to establish a commensurate obligation of private persons to use it in some cases is said to follow from Article 4 of the Satversme. The purpose of the Law on the National Flag is said to comply with the legitimate aim defined in Article 116 of the Satversme – “public welfare”, which is said to comprise also intangible aspects that are necessary for the functioning of the society. Moreover, it also complies with the aim of protecting other persons’

rights, which Article 10(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter – the Convention) recognizes as being legitimate. The Saeima considers that the established restriction is appropriate for reaching the legitimate aim, since placing of the Latvian national flag on residential buildings owned by natural persons ensures that the owner of the respective building participates in the commemoration of the relevant historical events. By this also a noteworthy part of the rest of society is reached. The necessity of the restriction in a democratic society should be examined both in the historical context, which is included in the third paragraph of the preamble, and also in view of the relevance of the values linked to it in contemporary Latvia and Europe. With regard to the impugned LAVC norm the Saeima notes that the following fact should be taken into consideration – the penalty envisaged for failure to place the Latvian national flag on a residential building is to be imposed in an administrative procedure, not in criminal law procedure. If a person is made administratively liable, then in case of the first offence the legislator has envisaged the minimal administrative penalty, and also in the case of a repeated offence the party applying the penalty has been granted the discretion to issue a warning. The Saeima also refers to Article 21 of the LAVC, which allows not initiating a case of administrative violation and issuing only an oral admonishment. Whereas in case when a monetary fine is imposed, the impugned LAVC norm allows a flexible review of its amount, abiding by the principle of individualizing the sanction. The sanction defined in the Latvian Administrative Violations Code should not be considered as being obviously disproportional. The Saeima, referring to the case-law of the Constitutional Court, underscores the legislator’s broad discretion in the field of penal policy and notes that the legislator should rule on such issues the decisions on which mainly depend upon political expedience. Upon familiarising itself with the case materials, the Saeima has submitted additional considerations. The Saeima notes that placing the Latvian national flag on residential buildings is a public obligation. The placing of the Latvian national flag on a residential building is showing respect towards this flag and the constitution of the state, it does not mean supporting certain political views. The Saeima underscores that that the administrative penalty envisaged for failing to perform the obligation defined by the impugned norms of the Law on the National Flag should not be viewed as being obviously contrary to an individual’s right to the freedom of speech. […]

The motives 10. The Petitioner requests the Constitutional Court to review the compatibility of the impugned norms with Article 100 of the Satversme. It provides: “Everyone has the right to freedom of expression, which includes the right to freely receive, keep and distribute information and to express his or her views. Censorship is prohibited.” Even though the Petitioner requests examining the compatibility of the impugned norms with Article 100 of the Satversme, the substantiation provided in the application pertains only to the possible incompatibility of the impugned norms with the first sentence in Article 100 of the Satversme. Thus, in accordance with the claim, the Constitutional Court reviews the possible incompatibility of the impugned norms with the first sentence of Article 100 of the Satversme.

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The Petitioner, after having familiarized herself with the case materials, has expressed the opinion that the impugned norms have an impact also upon her freedom of thought, but has not requested expanding the scope of her claim. The Constitutional Court also notes that the case has been initiated with regard only to the possible infringement of the right to freedom of speech enshrined in Article 100 of the Satversme. 10.1. The impugned norms of the Law on the National Flag establish the obligation to the place the Latvian national flag on public buildings, buildings of legal persons governed by private law and associations of persons, as well as on residential buildings on ten days of the year, on five out of these – in mourning presentation. Whereas the impugned LAVC norm envisages an administrative penalty for failure to perform this obligation. The Cabinet of Ministers Regulation of 27 April 2010 no. 405 “Regulations on Applying the Law on the National Flag of Latvia” (hereinafter – Regulation no. 405), adopted in accordance with Article 22(1)(1), (2) and (4) of the Law on the National Flag, provides that the possessor or holder of a building or premises or his authorised person, who has been imposed the respective obligation, is responsible for complying with the Law on the National Flag and Regulation no. 405. The Application has not contested the compatibility of Regulation no. 405 with the Satversme. The Law on the National Flag attributes the obligation of placing the Latvian national flag on public buildings, buildings of legal persons governed by private law and associations of persons, as well as on residential buildings. The application and the case materials comprise considerations only with regard to the application of the impugned norms to residential buildings owned by natural persons. Since the Petitioner 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. 10.2. The Petitioner had been administratively punished, because the Latvian national flag in mourning presentation had not been placed on the residential building that she owned on one of the dates specified in the impugned norms of the Law on the National Flag – on 14 June. The Petitioner holds that the obligation established in the impugned norms of the Law on the National Flag to place the Latvian national flag on residential buildings on all the dates specified in these norms violates her right to the freedom of speech, since, pursuant to the impugned LAVC norm, she may be punished on any of these days, if the Latvian national flag or the Latvian national flag in mourning presentation has not been placed on the residential building that she owns. The case materials show that the Saeima and persons summoned in the case present their considerations with regard to the impugned norms in their interconnection. It follows from the annotation to the draft Law on the National Flag that the amendments to the impugned LAVC norm were elaborated together with the drafting of the law (see the annotation to the draft law no. 1226/Lp9 “Law on the National Flag of Latvia” submitted to the Saeima on 25 May 2009). Likewise, during the debates at the Saeima sittings the draft Law on the National Flag was analysed together with the impugned LAVC norm; i.e., the obligation to place the Latvian national flag on residential buildings and the administrative liability for the failure to perform this obligation (see the transcript of the Saeima session of 15 October 2009). The obligation to place the Latvian national flag on buildings is defined by the impugned norms of the Law on the National Flag and is not limited only to one day when the Petitioner failed to perform this obligation. Exactly the same obligation must be performed on all ten days specified in the impugned norms of the Law on

the National Flag (the only difference is the presentation of the Latvian national flag on days of commemoration), and also the consequences of the failure to perform it are identical; i.e., the envisaged administrative penalty. The contested LAVC norm does not provide an exhaustive list of all elements of the administrative violation. To establish the content of the impugned LAVC norm, it must be analysed in interconnection with the impugned norms of the Law on the National Flag. Thus, the Constitutional Court holds that the obligation to place the Latvian national flag on residential buildings owned by natural persons on the dates specified by the Saeima and the administrative penalty for failure to perform this duty must be examined in interconnection. Hence, the Constitutional Court will examine the impugned norms in interconnection, insofar they impose an obligation upon natural persons on the dates specified by the impugned norms of the Law on the National Flag to place on residential buildings that they own the Latvian national flag and establish an administrative penalty for the failure to perform this obligation. 11. The Petitioner had not placed on her house the Latvian national flag in mourning presentation on 14 June 2003, because she had organised a family celebration on this day and had not wanted to express mourning. She is defending her right to the freedom of speech; i.e., the right to adhere to her opinion, not expressing it. 11.1. The Constitutional Court has already reviewed issues related to the freedom of speech, revealing the content of Article 100 of the Satversme in individual aspects of the freedom of speech. It has been recognised in the case law of the Constitutional Court that the freedom of speech is considered as being one of the most important fundamental human rights, included in the constitution of all democratic states (see, for example, the judgment of 29 October 2003 in the case no. 2003-05-01, para. 21). The freedom of speech comprises a person’s right to adhere to one’s opinion and to express it freely. The pre-requisite for exercising this right is the freedom to receive and to distribute information, which is one aspect of the freedom of speech. In establishing the content of fundamental rights defined in the Satversme, Latvia’s international commitments in the field of human rights must be taken into consideration (see the judgment of the Constitutional Court of 16 December 2008 in the case no. 200809-0106, para. 4). The international human rights provisions on the constitutional level are a means for determining the content and the scope of fundamental rights and at the same time are directly applicable in Latvia, insofar these are legally binding upon the state. The state’s obligation to abide by the international commitments in the field of human rights that it has assumed follows from Article 89 of the Satversme, laws and international treaties binding upon Latvia. The Constitutional Court underscores the aim of reaching harmony between the norms of human rights included in the Satversme and the international human rights provisions (see the judgment of the Constitutional Court of 13 May 2005 in the case no. 2004-18-0106, para. 5 of the motives part). The Constitutional Court has recognised that the content of Article 100 of the Satversme can be revealed in full by taking into account Article 19 of the United Nations Organisation (hereinafter – UN) International Covenant of Civil and Political Rights of 16 December 1996 (hereinafter – the Covenant), as well as Article 10 of the Convention (see the judgment of the Constitutional Court of 5 June 2003 in the case no. 2003-02-0106, para. 1 of the motives part). Legal literature emphasizes the substantive link between the inclusion of Chapter VIII “Fundamental Human Rights”, thus, also Article 100, of the Satversme with the Convention and the Covenant (see: Levits E. Piezīmes par Satversmes 8. nodaļu – Cilvēka pamattiesības. Cilvēktiesību

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žurnāls, 9–12/1999. Latvijas Universitātes Juridiskās fakultātes Cilvēktiesību institūta izdevums, 21. lpp.). 11.2. The initial historical objective of human rights – to protect a person against unfounded interference by the state in the sphere of his liberty – can be discerned also in the content of the right to freedom of speech. The United Nations Commission on Human Rights has recognised the negative aspect of the freedom of speech, underscoring that any form of effort to coerce a person to express one’s opinion is to be considered as a violation of “the freedom not to express one’s opinion (General Comment no. 34: Freedom of opinion and expression (Art. 19): 10/09/2011. CCPR/C/GC/34, para. 10). This has been recognised also within the European system of human rights protection (see the report of the European Commission on Human Rights of 1 March 1994 in the case “Goodwin v. the United Kingdom”, para. 48). The case-law of ECHR includes references to the possible infringement upon the negative aspect in the freedom of speech (see, for example, the judgment of the Grand Chamber of the ECHR of 3 April 2012 in the case “Gillberg v. Sweden”, application no. 41723/06, para. 84), it has also been recognised that an individual may express one’s opinion by showing one’s attitude and by behaviour (see, for example, the judgment of the ECHR of 23 September1998 in the case “Steel and Others v. the United Kingdom”, application no. 24838/94, paras. 90 and 92). Thus, the showing of attitude may manifest itself as not expressing one’s opinion. An individual may choose to be “free from” expressing one’s opinion and thus exercise his or her rights to the freedom of speech in its negative aspect. 11.3. The right to freedom of speech defined in Article 100 of the Satversme is a right that protects a person. It provides that a person may request the state not to interfere in the field of his or her freedom of speech. The first sentence in Article 100 of the Satversme comprises a reference to the negative aspect of the freedom of speech, i.e., the right “to keep information”. In the case under review the Constitutional Court distinguishes between two aspects of the freedom of speech: the positive one or an individual’s right to freely receive and distribute information, to express one’s opinion publicly orally, in writing, visually, with the help of artistic means of expression and other legal ways, and the negative one or the right to keep information, adhere to one’s opinion and not express it. It is this negative aspect that pertains to the facts of the case under review. The Constitutional Court, in interpreting Article 100 of the Satversme in interconnection with the Convention and the Covenant, finds that the freedom not to express one’s opinion falls with the scope of Article 100 of the Satversme. Thus, the negative aspect of the freedom of speech falls with the scope of Article 100 of the Satversme. 11.4. The Constitutional Court has recognised in its case law that everyone has the right to freely receive information and express their opinion in any form – orally, in writing, visually, using artistic means of expression, etc. (see, the judgment of the Constitutional Court of 5 June 2003 in the case no. 2003-02-0106, para. 1 of the motives part, and the judgment of 29 October 2003 in the case no. 2003-05-01, para. 21). The freedom of speech, alongside its traditional manifestations, for example, speeches, diversity of opinion in mass media, participation in demonstrations and other events, comprises also various forms of artistic expression, for example, fiction, painting, music, as well as other combined forms of expression for the freedom of speech, inter alia, use of symbols (see, for example, the judgment of the ECHR of 21 March 2002 in

the case “Nikula v. Finland”, application no. 31611/96, para. 46, and the judgment of 21 October 2014 in the case “Murat Vural v. Turkey”, application no. 9540/07, paras. 44 and 46). It is recognised in para. 52 of the judgment of the ECHR of 24 July 2012 in the case “Fáber v. Hungary”, application no. 40721/08, that the use of a flag with symbolic meaning is to be recognised as an expression of the freedom of speech. It is also emphasized in legal literature that the freedom of speech may manifest itself as “symbolic expression” (see: Latvijas Republikas Satversmes komentāri. VIII nodaļa. Cilvēka pamattiesības. Autoru kolektīvs prof. R. Baloža zinātniskajā vadībā. Rīga: Latvijas Vēstnesis, 2011, p. 360). Thus, placing of the Latvian national flag on a residential building owned by a natural person is also on of the expressions of the freedom of speech. The Petitioner also recognises the symbolic meaning of the Latvian national flag; however, on that particular day she had chosen not to express her opinion by placing the Latvian national flag on the residential building. Thus, the Petitioner exercised her right to the freedom of speech in its negative aspect. Thus the scope of the first sentence in Article 100 of the Satversme comprises also placing of the Latvian national flag on a residential building owned by a natural person or the choice not to place it.

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12. The impugned norms of the Law on the National Flag impose the obligation to place the Latvian national flag on residential buildings owned by natural persons. Whereas the impugned LAVC norm establishes an administrative penalty for the failure to perform this obligation. The Petitioner had not wanted to express her opinion by placing the Latvian national flag in mourning presentation on the residential building owned by her. An administrative penalty was imposed upon her for this. The Petitioner appealed against the administrative penalty imposed upon her, but the penalty had been left unchanged. Thus, the impugned norms restrict the Petitioner’s freedom of speech in its negative aspect. 13. An individual’s rights may be restricted, if the restriction can be justified, i.e., it is justifiably necessary in public interests. The Constitutional Court has recognised that the right to freedom of speech is not absolute (see the judgment of the Constitutional Court of 5 June 2003 in the case no. 2003-02-0106, para. 1 of the motives part). It has also been noted in the case-law of ECHR that in some cases the individual interests may be restricted, giving preference to the interests of society (see, for example, the judgment of the ECHR of 25 November 1997 in the case “Zana v. Turkey”, application no. 18954/91, para. 51, the judgment of 21 October 2014 in the case “Murat Vural v. Turkey”, application no. 9540/07, paras. 62 and 63, and the judgment of 13 January 2015 in the case “Petropavlovskis v. Latvia”, application no. 44230/06, paras. 70 and 71). Restrictions upon the freedom of speech must me interpreted narrowly, and the legislator must provide appropriate and sufficient justification for the need of such restriction (see, for example, the judgment of the ECHR of 8 July 2008 in the case “Vajnai v. Hungary”, application no. 33629/06, paras. 45 and 46). To establish, whether the restriction upon the right to freedom of speech established by the impugned norms is justifiable, the Constitutional Court must examine, whether this restriction upon fundamental rights has been introduced by a law adopted in due procedure, whether this restriction has a legitimate aim and whether the restriction is

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commensurate to its legitimate aim (see, for example, the judgment of the Constitutional Court of 29 October 2003 in the case no. 2003-05-01, para. 22). 14. To examine whether the restriction upon fundamental rights has been established by law it must be verified: 1) whether the law has been adopted in accordance with the procedure provided for in regulatory enactments; 2) whether the law has been promulgated and is publicly accessible in accordance with requirements defined in regulatory enactments; 3) whether the law has been worded with sufficient clarity, so that a person would be able to understand the contents of the rights and obligations that follow from it and would be able to foresee the consequences of application thereof (see the judgment of the Constitutional Court of 8 April 2015 in the case no. 201434-01, para. 14, and the judgment of 4 February 2009 in the case no. 200812-01, para. 10.1). There is no dispute in the case, whether the impugned norms have been adopted and promulgated in accordance with procedure established by regulatory enactments and are publicly accessible, nor – whether the impugned norms have been worded with sufficient clarity. Thus, it can be concluded that the restriction upon rights has been established by law. 15. Any restriction upon rights must be based upon circumstances and substantiation for its necessity; i.e., the restriction must be established in favour of important interests – a legitimate aim (see, for example, the judgment of the Constitutional Court of 22 December 2005 in the case no. 2005-19-01, para. 9). It follows from Article 116 of the Satversme that the right to the freedom of speech can be restricted to protect other persons’ rights, democratic structure of the state, public safety, welfare and morals. The Satversme has established the possible restrictions upon the freedom of speech in a general way, whereas the Convention provides concrete criteria. The legitimate aims referred to in the second part of Article 10 of the Convention, for the sake of which the freedom of speech may be subject to restrictions, are the following: national security, interests of territorial integrity or public safety, prevention of disorder or crime, protection of health or morals, protection of the reputation or rights of others, preventing the disclosure of information received in confidence, or maintaining the authority and impartiality of the judiciary. Thus, the aim of the restriction upon the freedom of speech must be recognised as being legitimate if it corresponds with the aims referred to in Article 116 of the Satversme, which must be examined in interconnection with the aims indicated in the second part of Article 10 of the Convention. 15.1. The Constitutional Court has recognised that in the procedure before the Constitutional Court the obligation to indicate the legitimate aim first of all lies upon the institution, which adopted the contested act (see the judgment of the Constitutional Court of 25 October 2011 in the case no. 2011-01-01, para. 13.2). It follows from the case materials that, according to the Saeima’s opinion, the restriction upon rights that is established by the impugned norms has the legitimate aim defined in Article 116 of the Satversme – improving public welfare (see the case materials, p. 104). The Saeima has explained that the obligation to place

the Latvian national flag “on residential buildings has been established with the aim of commemorating historical events that have been recognised, in a democratic procedure, as being significant in the development of Latvia as a democratic state”, it also ensures education of society and awareness of the development of democracy and the value of fundamental human rights. The Saeima, referring to the second part of Article 10 of the Convention points also to the protection of other persons’ rights as the legitimate aim of the established restriction. Whereas the Petitioner holds that the legitimate aim of the established restriction cannot be discerned. The first paragraph of the preamble provides that “The state of Latvia […] has been established […] to ensure freedom and promote welfare of the people of Latvia and each individual”. Thus, promoting the welfare of Latvian society is one of the objectives of the state. The Satversme provides that a democratic structure of state has been established in Latvia (see the fourth paragraph of the preamble). The most effective exercise of human rights and freedoms is possible under the conditions of democracy. From the opinions provided by the summoned persons regarding the legitimate aims of the rights restriction, i.e., promoting public patriotism, commemoration of historical events important for the state of Latvia, maintaining the values embedded in the Satversme, showing respect and solidarity, consolidation of the national selfconfidence, one general aim, summarising all the aforementioned, follows. I.e., placing of the Latvian national flag on residential buildings owned by natural persons promotes the protection of the democratic structure of the state and is needed by society to increase its welfare. The obligation to place the Latvian national flag on residential buildings owned by natural persons strengthens the security of the state and, thus, is compatible with the aims included in the second part of Article 10 of the Convention. 15.2. The Constitutional Court notes: in the case under review it is important that the Latvian national flag is the symbol of the state that has been enshrined in the Satversme and that the symbolic status of the Latvian national flag has been established in para. 5 of Article 2 of the Law on the National Flag. The regulation on the Latvian national flag has been included in Article 4 of the Satversme since its adoption in 1922. Article 1, 2, 3, 4, 6 and 77 form the constitutional law foundations for the state of Latvia. The Latvian national flag is a value with ancient history. The red-white-red colours of the flags mentioned in written sources of the 13th century have ben indicated as the possible origins of the Latvian national flag (see: Latvijas Republikas Satversmes komentāri. Ievads. I nodaļa. Vispārējie noteikumi. Autoru kolektīvs prof. R. Baloža zinātniskajā vadībā. Rīga: Latvijas Vēstnesis, 2014, p. 319). The national flag as the symbol of the state has an important role in shaping awareness of the statehood and strengthening it in all stages of the national history. For example, the special symbolic role of the Latvian national flag during the period of Soviet occupation and the Third Awakening has been highlighted (see: Latvijas Republikas Satversmes komentāri. Ievads. I nodaļa. Vispārējie noteikumi. Autoru kolektīvs prof. R. Baloža zinātniskajā vadībā. Rīga: Latvijas Vēstnesis, 2014, p. 324; Bergmane A. Mūsu karoga stāsti: 1940–1991. Rīga: Lauku Avīze, 2015). The Latvian national flag symbolizes the historical process of the consolidation of the Latvian nation, as well as the fight for independence and a democratic state of Latvia. The dates specified by the Saeima, on which the Latvian national flag must be placed on, among others, also the residential buildings owned by natural persons, mark historical events important for the establishment and existence of the state of Latvia. Thus, the Latvian national flag as

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the symbol of the state is also an integral element in the constitutional and international identity of the Latvian state. The obligation to place the Latvian national flag on residential buildings strengthens the awareness of statehood and, thus, also the democratic Republic of Latvia, where fundamental rights can be effectively exercised. Stable awareness of the statehood shows that citizens perceive their state as a value per se, and such awareness of the statehood can develop only under democracy, when citizens can freely express their views (see: Vēbers E. Valstiskā apziņa politiskās nācijas struktūrā. Grām.: Pilsoniskā apziņa. Vēbers E. (red.). Rīga: Latvijas Universitātes Filozofijas un Socioloģijas institūts, Etnisko pētījumu centrs, 1998, p. 43). The Constitutional Court has expressed the finding that the right to the freedom of speech characterises the democratic structure of the state, and the scope of this right – the democratic society (see the judgment of the Constitutional Court of 29 October 2003 in the case no. 2003-05-01, para. 31.3). Likewise, during the debates at the Saeima, dedicated to reviewing the draft Law on the National Flag, the need to strengthen the awareness of statehood was underscored, referring to the complex historical circumstances at the time of establishing Latvia as a democratic state (see the transcript of the Saeima session of 15 October 2009). Thus, the restriction upon fundamental rights has been established to reach the legitimate aim referred to in Article 116 of the Satversme – to protect the democratic structure of the state of Latvia 16. To determine whether the rights restriction established by the impugned norms should be considered as being proportional, the Constitutional Court examines, whether the chosen restrictive measures are appropriate for reaching the legitimate aim, whether the aim cannot be reached by other measures, less restrictive upon an individual’s rights, and whether the benefit that the established restriction gives to society exceeds the damage caused to an individual (see, for example, the judgment of the Constitutional Court of 22 December 2008 in the case no. 2008-11-01, para. 13, the judgment of 5 June 2003 in the case no. 2003-02-0106, para. 4 of the motives part, and the judgment of 29 October 2003 in the case no. 2003-05-01, para. 34). 16.1. The Constitutional Court must establish, whether the restriction upon the freedom of speech that the impugned norms comprise is an appropriate measure for reaching the legitimate aim in a democratic society. The Saeima notes that the established rights restriction is appropriate for reaching its legitimate aim, since placing of the Latvian national flag on residential building ensures not only that all residents of the particular building participate in common commemoration of the respective historical events, but also that “noteworthy part of the rest of society is reached” by this. The Ministry of Justice has also expressed a similar opinion. The Saeima and the persons summoned in the case, in providing grounds for the obligation to place the Latvian national flag on residential buildings, underscore that the history of development of Latvia as a democratic state and the political situation, requiring that common historic memory is maintained and consolidates, must be taken into consideration. The historical and constitutional peculiarities of each state may determine the choice of special measures for reaching the legitimate aim that has been set. In Latvia the obligation to place, on the dates specified by the Saeima, the Latvian national flag on residential buildings should be considered as being such special choice. The grounds for introducing such special measures have been recognised also in the case-law of the ECHR (see, for example, the judgment of the Grand Chamber of

the ECHR of 16 March 2006 in the case “Ždanoka v. Latvia”, application no. 58278/00, paras. 95 and 121). In reviewing the appropriateness of the selected measure in the case under review, it must be taken into consideration that the expression of beliefs showing loyalty to the sate should be separated from expressing opinions showing loyalty to a particular ideology or political force (see the judgment of the Grand Chamber of the ECHR of 27 April 2010 in the case “Tǎnase v. Moldova”, application no. 7/08, paras. 166 and 167). The necessity to separate the views has been recognised also by the Saeima (see the case materials, pp. 174‑175), emphasizing that the imposed obligation does not demand expressing opinion that would be loyal to any political force. The Constitutional Court also holds that the obligation to place the Latvian national flag upon residential buildings owned by natural persons is an appropriate measure, by which a large part of society is informed, reminding of historical events important for the state of Latvia. Thus, it can be concluded that the obligation to place, on the dates specified by the impugned norms of the Law on the National Flag, the Latvian national flag on residential buildings owned by private persons is an appropriate measure for reaching the legitimate aim. 16.2. The Constitutional Court must also examine, whether more lenient measures do not exist for reaching the legitimate aim and whether the legislator has examined the suitability of other measures, less restrictive upon individuals’ rights. Both the Petitioner and the Ombudsman express the opinion that it would be possible to facilitate commemoration of historical events by other measures, for example, by informing inhabitants about historical events, explaining the significance of these events in the history of Latvia and the world, as well as by urging to commemorate and honour the participants of these events. The Saeima, in turn, has noted that the legitimate aim of the restriction cannot be reached in equal quality by other measures, for example, by the educational activities referred to by the Petitioner. A restriction upon fundamental rights is proportional only if no other measures exist that would be as effective and the choice of which would allow placing more lenient restrictions upon fundamental rights. In examining, whether the legitimate aim could be reached by more lenient measures, it should be taken into consideration that are more lenient measure is not just any other measure, but such that would allow reaching the legitimate aim in the same quality (see the judgment of the Constitutional Court of 13 May 2005 in the case no. 2004-18-0106, para. 19 of the motives part). The measures that the Petitioner refers to as being less restrictive upon an individual’s rights and the measures chosen by the legislator do not reach the aim in the same quality. Visual demonstration of the state symbols (placing the national flag on buildings) differs in quality from other measures, for example, educational activities, in particular, with regard to the size of the audience that can be reached immediately and simultaneously. Thus, these measures cannot be considered as being mutually replaceable, as to the quality, and equally effective. Thus, the Constitutional Court concluded that no more lenient measures existed for reaching the legitimate aim of the restriction upon fundamental rights. 16.3. In examining the compatibility of the restriction upon fundamental rights with its legitimate aim, it must be verified, whether the adverse consequences caused to an individual by restricting his or her fundamental rights do not exceed the benefit that the society in general gains from this restriction. I.e., the interests to be balanced

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in the case must be identified, as well as the interest that should be granted priority (see the judgment of the Constitutional Court of 7 October 2010 in the case no. 2010-0101, para. 15). In this case the Constitutional Court must establish, whether the public benefit from the application of impugned norms exceeds the damaged inflicted upon an individual’s rights. 16.4. The Constitutional Court has noted the constitutional significance of the Latvian national flag as a symbol of the state. Likewise, it was concluded that the obligation to place the Latvian national flag on residential buildings on the dates specified by the Saeima was established with the aim of strengthening the democratic structure of the state, immediately and simultaneously informing society about historical events important for the existence of the Latvian state. Thus the awareness of statehood under the conditions of democracy is strengthened. The Constitutional Court holds that the civic obligation of placing the Latvian national flag on residential buildings gives significant benefit to society in general. The obligation to place the Latvian national flag on the residential buildings owned by natural persons on the dates specified by the Saeima should not be recognised as being excessive restriction upon the negative aspect of the Petitioner’s freedom of expression. In a state, where the need for measures to strengthen the awareness of statehood is still recognised, the benefit to society exceeds the damage caused to an individual’s rights. Thus, the obligation established in the impugned norms of the Law on the National Flag to place the Latvian national flag on residential buildings owned by natural persons is proportional, and therefore the impugned norms of the Law on the National Flag comply with Article 100 of the Satversme. 16.5. The Constitutional Court notes: the fact that a penalty is envisaged for failing to place the Latvian national flag on the residential buildings owned by natural person on the dates specified by the Saeima changes the legal nature of the restriction upon an individual’s fundamental rights. I.e., it could be possible that the Latvian national flag is placed on the residential building only because of the established penalty and not in commemoration of the historical events important for the Latvian state. A number of summoned persons in the case have also underscored this. For example, the Ministry of Justice has recognised the impact of the penalty upon the actual actions by an individual, noting that if the penalty had not been envisaged, very probably, the obligation to place the Latvian national flag on residential buildings in many places would not be performed at all (see the case materials, p. 132). The Ombudsman has also underscored the impact of the envisaged penalty upon an individual’s actual actions, i.e., placing of the Latvian national flag on a residential building “in fear of possible administrative penalty” (see the case materials, p. 146). During the debates before adopting the draft Law on the National Flag in second reading a number of members of the Saeima, for example, V. Buzajevs, I. Druviete, K. Šadurskis spoke in favour of the obligation to place the Latvian national flag on residential buildings owned by natural persons, linking it to the penalty for failing to perform this obligation, envisaged in the Latvian Administrative Violations Code. V.Buzajevs noted that “it is the matter of […] choosing the conception – either coerced patriotism or voluntary patriotism”. Whereas I. Druviete asked to consider amending LAVC, thus “releasing from the mandatory obligation to hoist the national flag those persons, who due to heir physical condition are simply unable to do it.” K. Šadurskis also pointed to the possible disproportionality of the envisaged penalty, by underscoring that “the application of penal norms in the case of not placing the flag should be reconsidered” (see the transcript of the Saeima session of 15 October 2009).

I. Ijabs also noted the negative impact of the established penalty, underscoring that “patriotism and understanding of the development of democracy, basically, is founded upon other factors and not upon obligations, imposed by law, to perform certain rituals” (see the case materials, p. 130). I. Ijabs expresses the opinion that no “acute social need” can be discerned in connection with the imperative obligation to place the Latvian national flag on residential buildings owned by natural persons, which has been indicated in the ECHR case law as a necessary pre-condition for recognising a restriction upon an individual’s right as being proportional (see, for example, the judgment of the ECHR of 8 July 2008 in the case “Vajnai v. Hungary”, application no. 33629/06, para. 43, and the judgment of 6 May 2003 in the case “Perna v. Italy”, application no. 48898/99, para. 39b). The Constitutional Court notes: if it is possible that an individual will be punished for not expressing one’s opinion, than this aspect influences not only the incentives for the individual’s actual actions in a particular situation, but also other expressions of an individual’s freedom of speech. 16.6. The Constitutional Court does not uphold the opinion expressed by the Saeima that the hoisting of the Latvian national flag as a technical activity is an obligation that follows only from the fact that the person owns a residential building (see the case materials, p. 101). By equalling the placing of the Latvian national flag on the building to the placing of its number plate the constitutional significance of the Latvian national flag is downplayed. The placing of the Latvian national flag as the state symbol on the residential building can influence an individual and his views and, thus, cannot be recognised as being a neutral, technical activity. The development of the awareness of statehood must be facilitated in compliance with the principle of a democratic state established in the Satversme. During the stage when the democratic structure of the state was created and consolidated, a pronouncedly imperative approach to defining civic obligations in connections with the development of the awareness of the statehood could have been necessary and even commensurate. However, there are no grounds for ensuring this process in a longer period of time by penalties, in particular, if the negative aspect in an individual’s freedom of speech is infringed upon. The Constitutional Court has already recognised that an individual has obligations towards society and that the establishment of such obligations by law is valid (see para. 16.4 of this judgment); however, establishing a penalty for ensuring that obligations of civic nature are performed can be recognised as being proportional only in exceptional cases. In a democratic state, alongside imperative measures, also preconditions of general nature should be created for voluntary performance of civic obligations, which primary are based not upon fear of punishment, but in the awareness of the statehood, which finds respective manifestations in the actions and behaviour of an individual. If the existing legal order in the state ensures that an individual is not punished for expressing one’s opinion or refraining to do so in a legal way, then the optimum legal environment for an individual’s self-expression is ensured. 16.7. In the case under review, the penalty envisaged in the impugned LAVC norm for failure to place the Latvian national flag on residential buildings owned by natural persons not only leaves an impact upon the actual actions taken by an individual; i.e., forces him 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

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(secondary impact). The case-law of the ECHR underscores that the possible penalty that has been envisaged for an individual in the field of the freedom of speech leaves a negative impact upon the freedom of speech in society as a whole (see, for example, the judgment of the Grand Chamber of ECHR of 10 December 2007 in the case “Stoll v. Switzerland”, application no. 69698/01, paras. 153 and 154). In relation to this it has been recognised that the introduction of even minor penalties in the field of freedom of speech leaves a negative impact (chilling effect) upon society in general and therefore is admissible only in exceptional cases (see, for example, the judgment of the ECHR of 21 March 2002 in the case “Nikula v. Finland”, application no. 31611/96, paras. 54 and 55, and the judgment of 14 March 2013 in the case “Eon v. France”, application no. 26118/10, para. 61). If a legislator establishes an administrative penalty linked to a restriction upon the negative aspect of the freedom of speech, then it should provide sufficient substantiation for it. It has been recognised in the ECHR case law that the decisive condition for establishing the disproportionality of the penalty linked to a restriction upon the freedom of speech is not the severity of the penalty, but the fact that the legislator has not provides sufficient substantiation for the necessity of the penalty [see, for example, the judgment of the Grand Chamber of ECHR of 26 September 1995 in the case “Vogt v. Germany”, application no. 17851/91, paras. 52(ii), 52(iii) and 53, the judgment of the ECHR of 27 May 2003 in the case “Skałka v. Poland”, application no. 43425/98, paras. 35 and 38, and the judgment of 14 March 2013 in the case “Eon v. France”, application no. 26118/10, para. 52]. The case materials do not lead to assurance that with regard to the impugned LAVC norm the Saeima has provided sufficient substantiation regarding the existence of an exceptional case. The restriction upon an individual’s freedom of speech, by establishing a penalty, cannot be justified by general assumptions regarding special social need (see, for example, the judgment of the ECHR of 8 July 2008 in the case “Vajnai v. Hungary”, application no. 33629/06, para. 55). The Saeima has pointed to the circumstances that were relevant at the time when the impugned norms were adopted; however, it has not substantiated the current necessity for an administrative penalty as an element in the restriction upon the freedom of speech in a democratic society. The freedom of speech in its negative aspect manifests itself as refraining from active actions. If an individual by his action endangered democratic society or other persons’ interests, then there would be grounds to apply, for example, Article 93 of the Criminal Law, which provides for criminal liability for desecration of state symbols, inter alia, the Latvian national flag. An individual’s freedom of speech in its negative aspect does not manifest itself as such, potentially endangering action, but as refraining form active actions. 16.8. The impugned norm of the LAVC, due to the considerations presented above, 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. Thus, the restriction included in the impugned LAVC norm, insofar it established a penalty for failure to place the Latvian national flag upon residential buildings owned by natural persons, is disproportional and is incompatible with Article 100 of the Satversme.

The resolutive part

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On the basis of Articles 30‑32 of the Constitutional Court Law, the Constitutional Court decided: 1. To declare Article 7(1) and (2) of the Law on the National Flag of Latvia to be compatible with Article 100 of the Satversme of the Republic of Latvia. 2. To declare Article 20143 of the Latvian Administrative Violations Code, insofar it established penalty for failure to place the Latvian national flag on residential buildings owned by private persons in accordance with Article 7(1) and (2) of the Law on the National Flag of Latvia, to be incompatible with Article 100 of the Satversme of the Republic of Latvia. The judgment is final and not subject to appeal. The judgment enters into force on the day of its publication.

Chairman of the hearing of the Court

A. Laviņš

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Separate opinion of judges of the Constitutional Court Kaspars Balodis and Kristīne Krūma in the case no. 2015-01-01 Riga, 16 July 2015 “On the compliance of Article 7(1) and (2) of the Law on the National Flag of Latvia and Article 20143 of the Latvian Administrative Violations Code with Article 100 of the Satversme of the Republic of Latvia”. 1. On 2 July 2015, the Constitutional Court (hereinafter also – the Court) adopted the judgment in case No. 2015-01-01 (hereinafter – the Judgment), in which it examined compliance of Article 7(1) and (2) of the Law on the National Flag of Latvia and Article 20143 of the Latvian Administrative Violations Code (hereinafter, jointly also – the impugned norms) with Article 100 of the Satversme of the Republic of Latvia (hereinafter – the Satversme). The case was initiated on the basis of a constitutional complaint submitted by Solvita Olsena (hereinafter – the Petitioner). In the Judgment, the Constitutional Court declared Article 7(1) and (2) of the Law on the National Flag of Latvia (hereinafter also – the Law on the National Flag) to be compatible with Article 100 of the Satversme but Article 20143 of the Latvian Administrative Violations Code (hereinafter also – LAVC), to the extent it establishes sanctions for failure to place the national flag of Latvia on residential buildings owned by natural persons pursuant to the Article 7(1) and (2) of the Law on the National Flag of Latvia, to be incompatible with Article 100 of the Satversme. 2. We agree with the finding made in the Judgment that Article 7(1) and (2) of the Law on the National Flag of Latvia (hereinafter – also the impugned norms of the Law on the National Flag) are compatible with Article 100 of the Satversme. However, we believe that the reasoning and the methodology used by the Constitutional Court do not provide a convincing constitutional legal assessment of matters that are essential for the case under review. We are of the opinion that the Constitutional Court has not conducted a sufficient assessment of the probable restriction of the Petitioner’s fundamental rights and has unreasonably expanded the limits for examining the case. The legitimate aim of the restriction of the right is not clearly revealed by the reasoning included in the Judgment. Likewise, the Court has not taken into consideration the legislator’s discretion which it exercises in defining the obligation to use the national flag and the sanction for failure to perform this obligation. We do not agree with the finding included in the Judgment regarding the incompatibility of Article 20143 of the Latvian Administrative Violations Code (hereinafter also – the impugned LAVC norm) with Article 100 of the Satversme. 3. It follows from the case materials that on 14 June 2013 the Petitioner held a family celebration in her property which is also her place of residence. The national flag of Latvia (hereinafter also – the national flag) in mourning presentation had not been placed on the building, because that would have hindered the celebrations. Minutes on an administrative violation had been drawn up, and the Petitioner had been punished by an issued warning, on the basis of Article 32 and Article 20143(1) of LAVC.

3.1. Para. 10 of the Judgment predominantly presents the Petitioner’s arguments with respect to the restriction of her rights; however, the Court has not provided a sufficiently detailed assessment of the scope of this probable restriction. Therefore we cannot uphold the points made in para. 10.2 of the Judgment with respect to the limits of examining the claim. The examination and adjudication of a constitutional complaint, unlike an abstract review of legal norms, is not a measure that serves only for the alignment of the legal system. First and foremost, it is a measure that serves to protect the fundamental rights of the submitter of the particular constitutional complaint. Therefore the Constitutional Court must conduct an individual examination of the proportionality of the contested restrictions with respect to the party submitting the constitutional complaint (see the judgment of the Constitutional Court of 15 June 2006 in the case no. 2005-130106, para. 20.2). The Constitutional Court reviewed the obligation to place the national flag on residential buildings owned by natural persons with respect to all ten days referred to in the impugned norms of the Law on the National Flag. However, the impugned norms were applied to the Petitioner only with respect to one specific date – 14 June. In para. 10.2 of the Judgment the Court notes that the impugned norms of the Law on the National Flag will be examined in conjunction with the impugned norm of the LAVC, although only the first part of Article 20143 of the LAVC was applied to the Petitioner. The Judgment, however, does not provide substantiation on why the Constitutional Court is examining such norms of the Law on the National Flag and the LAVC which were not applied to the Petitioner. Likewise, the Constitutional Court has not differentiated between the dates on which the flag must be placed on buildings in connection with festivities, and the dates, on which the national flag must be placed on buildings in mourning presentation. 3.2. Pursuant to Article 192(1) of the Constitutional Court Law any person who considered that his or her fundamental rights established in the Satversme are restricted by a legal norm that is incompatible with a legal norm of higher legal force may submit a constitutional complaint to the Constitutional Court. Whereas Article 18(1)(4) of the Constitutional Court Law, in conjunction with Article 192(6)(2) of this Law, requires to substantiate in the application the allegation of the incompatibility of the impugned norms with a legal norm of higher legal force. Moreover, the application must also substantiate that the infringement upon the petitioner’s fundamental rights defined in the Satversme has been caused exactly by this incompatibility. The Constitutional Court has noted that the term “restrict” has been included in the law with the purpose of separating the constitutional complaint from the actio popularis. This requires the existence of a substantiated probability that the contested norm causes a restriction of the fundamental rights of the petitioner (see the judgment of the Constitutional Court of 22 February 2002 in the case no. 2001-06-03, para 2.4 of the motives part). In the meaning of the Constitutional Court Law, a restriction of a person’s fundamental rights is to be understood as a situation where the impugned norm causes adverse consequences for the petitioner himself (see the decision of the Constitutional Court on terminating the proceedings of 11 November 2002 in the case no. 2002-07-01, para. 3). This means that a constitutional complaint may be submitted in cases where, first, the restriction of the fundamental rights is direct, concrete, the contested norm affects the petitioner himself, and, secondly, affects him at the moment of submitting the application, i.e., at the moment of submitting the application the restriction on fundamental rights already exists (see, for example,

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the judgment of the Constitutional Court of 18 February 2010 in the case no. 2009-7401, para. 12, and the decision of 11 November 2002 on terminating the proceedings in the case no. 2002-07-01). In the case of a constitutional complaint, it is important to establish whether, indeed, the petitioner’s fundamental rights, established in the Satversme, have been restricted (see the judgment of the Constitutional Court of 15 April 2009 in the case no. 2012-04-03, para. 18). The act of applying the legal norm that causes adverse consequences to a person may prove to be a restriction in itself (see the judgment of the Constitutional Court of 10 May 2013 in the case no. 2012-16-01, para. 21.1). 3.3. It follows from the case materials that only Article 7(2) of the Law on the National Flag and Article 20143(1) of LAVC had been applied to the Petitioner. The administrative sanction – a warning – had been applied to the Petitioner because on 14 June 2013 the national flag in mourning presentation had not been placed on the residential building in her ownership (see the case materials p. 22). The application does not comprise legal substantiation as to why Article 7(1) of the Law on the National Flag had caused adverse consequences for the Petitioner and, thus, had restricted her fundamental rights. It has been recognised in the case-law of the Constitutional Court that a person has the right to turn to the Constitutional Court only if a direct link between the restriction of the fundamental rights of this person and the legal norm which is contested in the application exists (see the judgment of the Constitutional Court of 18 February 2010 in the case no. 2009-74-01, para. 12). The application and the case materials allow ascertaining only that a link exists between the restriction of the Petitioner’s fundamental rights and the obligation, defined in Article 7 (2) of the Law on the National Flag, to place on residential buildings the national flag in mourning presentation on 14 June. With respect to other norms of the Law on the National Flag that are contested, as well as to Article 20143(2) of LAVC, a restriction of the Petitioner’s fundamental rights cannot be established. The Constitutional Court, on the basis of Article 29(1)(3) of the Constitutional Court Law, had to terminate the proceedings with respect to those impugned norms of the Law on the National Flag and norms of LAVC that did not restrict the Petitioner’s fundamental rights. Therefore, the Constitutional Court should have examined the compliance of the impugned norms with the first sentence of Article 100 of the Satversme, insofar as these applied to the obligation of natural persons to place the national flag in mourning presentation to the residential buildings in their ownership on 14 June, but with respect to the other impugned norms of the Law on the National Flag and LAVC norms the proceedings had to be terminated. 4. We are of the opinion that the Constitutional Court, in reviewing compliance of the impugned norms with the right to freedom of speech, which has been enshrined for everyone in the first sentence of Article 100 of the Satversme, has not sufficiently revealed and characterised the legitimate aim of the restriction upon fundamental rights. The reasoning that the Constitutional Court has provided with respect to the legitimate aim predominantly comprises considerations as to the legal policy aims that the legal regulation on using the national flag of Latvia serves. At the end of para. 15.1 of the Judgment, the Court, in addition to protecting the democratic order of the state, has also noted such aims as “increasing the welfare of society” and the security of the state, calling these two last purposes jointly as “a general aim”. The security of the state as the aim of the restriction is mentioned in the Judgment

by referring to Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. However, the content of the statement regarding increasing the welfare of society and the security of the state as the legitimate aims of the restriction is not revealed in the Judgment. Likewise, the Constitutional Court has not provided reasoning as to why these two aims, referred to above, should be linked to the constitutional values referred to in Article 116 of the Satversme, which would allow restricting fundamental rights. In the reasoning included in para. 15.2 of the Judgment the Constitutional Court, essentially, has provided considerations regarding the aims of the legal regulation on the use of the Latvian national flag and the symbolic meaning of the national flag, rather than providing substantiation for the final conclusion of this paragraph on the protection of the democratic order of the state as the legitimate aim of the restriction on fundamental rights. The general aim of a law and other legal policy aims of the legislator may, to a larger or smaller extent, coincide with the legitimate aim of the restriction on fundamental rights or allow to identify it with greater precision, however, the establishment of these is not the main question to be reviewed. The proportionality of the restriction upon fundamental rights is to be examined with respect to the legitimate aim of this restriction and not in connection with the legal policy aims that the legislator has wanted to achieve. Therefore the Constitutional Court must establish the legitimate aim of the particular restriction on fundamental rights, i.e., the essential interest, for the ensuring of which a person’s fundamental rights have been restricted. The conclusion included in the Judgment regarding the protection of the democratic order of the state as the legitimate aim of the restriction on fundamental rights can be upheld; however, the Constitutional Court has not provided sufficient reasoning on why the restriction of a person’s freedom of speech has been established for reaching exactly this aim. 5. In assessing the proportionality of the restriction of fundamental rights included in the impugned norms, the Constitutional Court has not taken into consideration to a sufficient degree the merits of the case and has not complied with the limits of the claim. Likewise, the Constitutional Court has deviated from the conclusion included in the Judgment regarding a joint examination of the impugned norms. 5.1. In para. 10.2 of the Judgment the Court has provided substantiation on why the impugned norms must be examined jointly. The Court notes: since all the features of an administrative violation have not been exhaustively listed in the impugned LAVC norm, the obligation to place the Latvian national flag on residential buildings owned by natural persons and the administrative sanction envisaged for failure to perform this obligation must be examined jointly. However, in para. 16 of the Judgment the Constitutional Court, in examining proportionality of the restriction upon fundamental rights, has not substantiated the deviation from the methodology indicated in para. 10.2 of the Judgment and has analysed the impugned norm of LAVC separately from the impugned norms of the Law on the National Flag. Upon beginning to examine whether the measures chosen by the legislator are suitable for reaching the legitimate aim of the restriction on fundamental rights, the Court has indicated that “the restriction upon the freedom of speech that the impugned norms comprise” will be examined (see para. 16.1 of the Judgment). However, the following reasoning until the end of para. 16.4 of the Judgment does not pertain to all of the impugned norms, but rather only to the impugned norms of the Law

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on the National Flag. It is concluded at the end of the aforementioned paragraph that the impugned norms of the Law on the National Flag are compatible with Article 100 of the Satversme. Whereas in para. 16.5 of the Judgment in which the impugned norm of LAVC is examined the Court has established that the penalty for failure to place the national flag on residential buildings owned by natural persons changes the legal nature of the restriction on fundamental rights. In fact, a conclusion should follow from the methodology for assessing proportionality and the arguments that the Court has used in para. 16 of the Judgment that rather than one restriction of fundamental rights established by all of the impugned norms two restrictions of fundamental rights existed. I.e., the restriction on the freedom of speech established by the impugned norms of the Law on the National Flag and the punishment established by the impugned norm of LAVC – also as a restriction on the freedom of speech. The Constitutional Court also admitted it indirectly, by concluding that “the restriction included in the impugned LAVC norm, insofar it established a penalty for failure to place the Latvian national flag upon residential buildings owned by natural persons, is disproportional and is incompatible with Article 100 of the Satversme” (see para. 16.8. of the Judgment). However, in the Judgment the appropriateness and necessity of the restriction of fundamental rights were examined only with respect to the obligation of placing the national flag established in the impugned norms of the Law on the National Flag. We are of the opinion that the Constitutional Court had to abide consistently with the finding included in para. 10.2 of the Judgment regarding the need to examine the impugned norms jointly. This would have allowed reaching a uniform conclusion regarding the compliance of the restriction on fundamental rights included in the impugned norms with the principle of proportionality. 5.2. We agree to what is said in the Judgment regarding the importance of the Latvian national flag in strengthening an independent state. The national flag as the symbol of the state is an indispensable element in the constitutional and international identity of the State (see para. 15.2. of the Judgment). The national flag of Latvia is defined in Article 4 of the Satversme. The Constitutional Court, referring to the doctrine of public law, has recognised that the norms referred to in Article 77 of the Satversme, inter alia, Article 4 of the Satversme, are the most important norms of the Satversme, without amending or revoking of which it would be impossible to change the nature of the order of the state of Latvia as a democratic republic; therefore these articles have been placed under the protection of the people themselves and can be amended only in a national referendum (see the judgment of the Constitutional Court of 7 April 2009 in the case no. 2008-35-01, para. 14). However, in the case under review, the Constitutional Court has not taken into consideration the fact that the special status of the Latvian national flag, established in the Satversme, influences also the limits of the constitutional review. The Constitutional Court has noted that the legal system comprises also such issues for the adjudication of which strict legal limits have not been set, but the decisions adopted therein mainly depend upon political expediency and that such issues should be decided upon by democratically legitimised political bodies of the state, first of all – by the legislator (see the decision of the Constitutional Court on terminating the proceedings of 20 January 2009 in the case no. 2008-08-0306, para. 12). This finding applies also to those issues, which are related to the use of important symbols of the state and the legislator’s discretion to determine when and in what circumstances these symbols should be used.

Likewise, in its Judgment, the Constitutional Court has not taken into consideration the findings expressed in its existing case-law regarding the legislator’s discretion with respect to the penal policy. Establishing a sanction for the failure to fulfil the obligation of placing the Latvian national flag is a penal policy matter. The Constitutional Court has recognised that the legislator enjoys broad discretion in determining sanctions for particular offences, as well as in envisaging requirements for releasing a person from liability therefor. Usually, in adopting this regulation, the legislator uses as the basis the perceptions, views and values that have been accepted by society and which it has right to express in regulation. The review that falls within the jurisdiction of the Constitutional Court reaches only insofar as it must be assessed whether the legislator has not obviously overstepped the limits if its discretion defined in the Satversme (see the judgment of the Constitutional Court of 29 October 2003 in the case no. 2003-05-01, para. 29, and the decision on terminating the proceedings of 6 January 2011 in the case no. 2010-31-01, para. 5). A situation, for example, where a legal norm poses a significant threat to a person’s fundamental rights, should be considered as overstepping the limits of discretion set in the Satversme (see the judgment of the Constitutional Court of 19 November 2013 in the case no. 201309-01, para. 10). The Saeima has meticulously assessed not only the obligation established by the norms of the Law on the National Flag to place the flag but also the sanction for failure to fulfil this obligation. For example, it was noted during discussions in the Saeima that the legislator’s aim was not to impose a severe punishment on persons and that a warning was an appropriate sanction for failure to place the flag on buildings on days of holidays and commemorative days indicated by the Saeima [see the transcript of the Saeima session of 15 October 2009. Latvijas Vēstnesis, 27 October 2009, no. 170 (4156)]. We agree the opinion of Mārtiņš Mits, a person summoned in the case, that the sanction established by the impugned norm of LAVC – initially, a warning, as well as a warning and a fine in the amount up to 40 euro in the case of a repeated violation – is proportionate, because it is not severe and the party applying the legal norm, in the case of a repeated violation, has the possibility to take into account the particular circumstances and to apply a warning once more (see the case materials, p. 141). It can be concluded that the Saeima has not overstepped the limits of its discretion and has complied with the principle of proportionality. The Saeima, within the framework of its discretion, has defined 14 June as a date that is important for the people of Latvia, when the national flag of Latvia in mourning presentation must be placed on buildings, and has envisaged a proportionate sanction for failure to fulfil this obligation. 5.3. It is noted in para. 16.6 of the Judgment that in a democratic state, alongside imperative measures, also preconditions of general nature should be created for voluntary performance of civic obligations, which primarily are based not upon fear of punishment, but on the awareness of the statehood, which finds respective manifestations in the actions and behaviour of an individual. We agree to the finding by the Constitutional Court regarding the need to increase the awareness of the statehood; however, we find the assumption included in the Judgment that the national flag, on the days of holidays and commemorative days defined by the Saeima, is placed on residential buildings mainly because the owners of residential buildings are afraid of the punishment as being too general and unfounded. Irrespectively of the motivation that a person has to abide by the requirements of law, the state should have at its disposal also coercive measures to make a person abide by legal norms.

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As noted in the legal science, legal norms that are issued or recognised by the state are characterised by the fact that compliance with them can be coercively achieved. If sanctions for failure to comply with a legal norm are not defined, doubts could arise as to the quality of this norm but the state governed by the rule of law would lose authority and credibility (see Rüthers B., Fischer C. Rechtstheorie. 5. Auflage. München: Verlag C. H. Beck, 2010, S. 39). The Judgment has turned the impugned norms of the Law on the National Flag, insofar they apply to natural persons, who own residential buildings, into declarative norms, which impose only a moral obligation on these persons. If a legislator has established in legal norms an objective obligation for persons, then there should be also legal coercive measures for ensuring that this obligation is met. We consider that not only Article 7(1) and (2) of the Law on the National Flag of Latvia but also Article 20143 of the Latvian Administrative Violations Code complies with Article 100 of the Satversme of the Republic of Latvia.

Judge of the Constitutional Court Judge of the Constitutional Court

Kaspars Balodis Kristīne Krūma

2015-11-03

Regulation of the Bank of Latvia

635

The Bank of Latvia as an autonomous institution of public administration has the right to issue external regulatory enactments The principle of legislator’s supremacy was examined. It provides that adoption of general laws regarding any matter of national politics falls within the legislator’s jurisdiction. However, to make the legislative process more effective the legislator may entrust issuing of external regulatory acts also to an institution of executive power, inter alia, an autonomous institution of public administration. Requirements regarding the right of autonomous institutions of public administration to issue external regulatory enactments have been defined. First, the autonomous institution of public administration should be appropriately democratically legitimised. Second, the legislator has the right to authorise an autonomous institution of public administration to issue external regulatory enactments that are required to implement a law only within a field of jurisdiction granted by law. Third, an autonomous institution of public administration has the right to set binding requirements only to a particular range of subjects, according to the specifics of their activities. A separate opinion of one judge was appended to the judgment. It comprises considerations regarding the moment, as of which a legal norm that had been issued ultra vires should be recognised as being invalid.

JUDGMENT in the name of the Republic of Latvia in the case no. 2015-11-03 Riga, 2 March 2016 The Constitutional Court of the Republic of Latvia in the following composition: chairman of the hearing of the Court Aldis Laviņš, judges Kaspars Balodis, Gunārs Kusiņš, Uldis Ķinis, Sanita Osipova and Ineta Ziemele, having regard to a constitutional compliant submitted by the limited liability company “TAVEX”, with the participation of the authorised representatives of the submitter of the constitutional complaint – sworn attorneys Lauris Liepa and Matīss Šķiņķis, and Jānis Pleps, the authorised representative of the institution which has adopted the impugned act – the Bank of Latvia, with Elīna Kursiša as the secretary of the hearing of the Court, on the basis of Article 85 of the Satversme [the Constitution] of the Republic of Latvia, Article 16(3), Article 17(1)(11), as well as Article 192 and Article 28 of the Constitutional Court Law, on 12 and 19 January, as well as on 1 February 2016 in Riga examined at aa public hearing of the Court the case

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The facts 1. On 17 July 2008 the Saeima [the Parliament] adopted the law On the Prevention of Money Laundering and Terrorism Financing (hereinafter the Law on Prevention), which entered into force on 13 August 2008. Article 1(13) of the Law on Prevention provides that a supervisory and control authority is a state authority or professional organisation carrying out activities related to supervision and control of compliance with the requirements set in this Law. Article 47 of the Law on Prevention, in turn, regulates the rights of supervisory and control authorities. Article 32 of the law of 13 August 2014 “Amendments to the Law On the Prevention of Money Laundering and Terrorism Financing” (hereinafter - Amendments to the Law on Prevention) added to Article 47 of the Law on Prevention the third part, worded as follows: “The Bank of Latvia shall define for capital companies, which are engaged in buying and selling foreign currency cash, binding requirements for fulfilling the obligations defined in this Law with regard to establishing a system of internal control, identifying the true beneficiaries and verifying, whether the person, who has been indicated as the true beneficiary, is indeed the true beneficiary, as well as with regard to supervising transactions made by clients and having knowledge of clients’ business activities.” These amendments entered into force on 16 September 2014. The Bank of Latvia, pursuant to Article 47(3) of the 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” (hereinafter – the Bank of Latvia Regulation no. 141). This Regulation entered into force on 16 September 2014. paras. 19 and 20 of it (hereinafter – the impugned norms) provide: “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. 20. If the total sum of transactions conducted by one client referred to in para. 19 within one month reaches the sum referred to in Sub-paragraph 13.1 of this Regulation [8000 euro], the capital company shall identify this client in accordance with the procedure referred to in para. 18 of this Regulation.” 2. The petitioner – limited liability company “TAVEX” (hereinafter – the Petitioner) – requests the Constitutional Court to recognise the impugned norms as being incompatible with Articles 1 and 64, as well as the first sentence of Article 91 of the Satversme of the Republic of Latvia (hereinafter – the Satversme) and invalid as of the date of adoption thereof.

The Petitioner is a capital company which as part of its business activities is engaged in buying and selling foreign currency cash (hereinafter also – trading 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. The requirements of the Law on Prevention are said to apply to both groups of subjects of law referred to above. It is said to follow from Article 11(2) of the Law on Prevention and sub-para 8.2.4 and sub-para 8.6 of the Cabinet of Ministers Regulations of 22 December 2008 no. 1071 “Regulation on the List of Indications of Suspicious Transactions and on the Procedure for Reporting on Suspicious or Unusual Transactions” (hereinafter – Regulations no. 1071) that capital companies that are trading in cash and credit institutions have the obligation to identify the client (credit institutions – a client who does not hold an account) in all cases of trading cash in the amount equal to 8 000 euro or more. The contested norms, which had been issued on the basis of authorisation included in Article 47(3) of the Law on Prevention, are said to apply only to capital companies engaged in trading cash, but do not apply to credit institutions, which provide identical services. On 16 December 2014 the Bank of Latvia approved the regulation on internal control for preventing money laundering and financing of terrorism adopted by the Petitioner and recognised it as being compliant with legal requirements. In assessing the impact of the contested norm upon trading cash, the Petitioner had observed that during the first two months of 2015 87 clients had refused to conduct transactions to trade cash with the Petitioner, indicating as one of the reasons their unwillingness to be identified. Whereas when conducting such transactions within the amounts defined by the impugned norms at credit institutions, such identification is not performed. The compliance of the impugned norms with the principle of legal equality included in the first sentence of Article 91 of the Satversme should be examined in conjunction with the restriction upon the right to engage in commercial activities that falls within the scope of the first sentence of Article 105 of the Satversme. Capital companies, engaged in trading cash, and credit institutions are said to be in similar and according to particular criteria comparable circumstances. First, both groups of persons referred to conduct their commercial activities as capital companies. Second, they are said to provide the same kind of service and to be participants of the relevant geographical market of the relevant type of services and of the same particular goods in the meaning of Article 1 of the Competition Law. Third, these two comparable groups are to be considered as being competitors; moreover, they conduct their commercial activities in close proximity to one another. Fourth, the Competition Council has pointed to the need to ensure similar legal regulation for both these groups. Before the impugned norms entered into force, the requirements regarding identification of the client and the true beneficiary when trading cash had been the same for credit institutions and for capital companies engaged in trading cash. Whereas the impugned norms impose an obligation to identify the client or the true beneficiary upon capital companies engaged in trading cash in such cases, where the credit institutions do not have this obligation. Thus, it is alleged that the impugned norms do not ensure equal rights to all persons, who are in similar and comparable circumstances. The legitimate aim of the restrictions upon fundamental rights established in Article 105 of the Satversme and the aim of the differential treatment are to be differentiated between, with regard to trading cash the impugned norms had been

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adopted in view of the need to protect public security. The contested norms had been adopted also to ensure compliance of legal regulation with the Report of 5 July 2012 by the Committee of Experts on the Evaluation of Anti-Money Laundering Measures and Financing of Terrorism (hereinafter – MONEYVAL) on Latvia’s system for preventing and combatting money laundering and financing of terrorism (hereinafter – the Report) and recommendations included therein. Whereas with regard to the legitimate aim of differential treatment the Petitioner notes that such does not exist. The MONEYVAL Report is said to comprise only a general recommendation to ensure that the Bank of Latvia defines clear requirements with regard to identification of the client and the true beneficiary also in such cases, where a transaction as to its scope does not amount to the status of unusual or suspicious transactions. Therefore, allegedly, there are no objective and publicly recognised grounds to define stricter requirements regarding identifying the client and the true beneficiary for capital companies engaged in trading cash compared to credit institutions. If the impugned norms have a legitimate aim, then it should be verified whether, in establishing differential treatment, the principle of proportionality had been complied with. If it were recognised that the differential treatment, established by the impugned norms, nevertheless, had a legitimate aim, then the measures chosen by the Bank of Latvia are said to be inappropriate for reaching it in a situation, where persons, who are unwilling to be identified, can avoid being identified. The preparatory materials for drafting the impugned norms are not publicly accessible. However, the answers provided by the Ministry of Finance and the Bank of Latvia to the application submitted by “Association of Non-Bank Financial Service Providers” (hereinafter also – Non-Bank Association) containing a proposal to amend the impugned norms do not lead to the conclusion that the Bank of Latvia had considered alternative measures or, in general, assessed, whether the impugned norms were not contradictory to the first sentence of Article 91 of the Satversme. Hence, the differential treatment established by the impugned norms is said to be unnecessary for reaching even a hypothetical legitimate aim. The contested norms create a situation where potential clients refuse to conduct transactions of trading cash because they do not have personal identity documents with them or are unwilling to be identified. Allegedly, society gains nothing from the differential treatment, since persons are able to conduct the respective transactions at credit institutions. The differential treatment is said to be particularly incommensurate in a situation, where branches of capital companies engaged in trading cash and branches of credit institutions operate side by side. Compliance of the impugned norms with Article 1 and Article 64 of the Satversme should be examined in conjunction. The Bank of Latvia cannot be considered to be a democratically legitimised institution, since it is not linked to the will of the people. In view of the current textual regulation of the Satversme, which does not define expressis verbis the rights of the Bank of Latvia to issue external regulatory enactments, only enforcement of regulatory enactments, planning and other tasks could be delegated to it. Likewise, it is contended that the principle of a democratic state governed by the rule of law does not allow institutions of public administration to issue external regulatory enactments. Allegedly, neither does such a right follow from the Satversme in the substantial understanding of it, solely because a respective general constitutional tradition, moreover, recognised by the Constitutional Court, does not exist. A tradition like this cannot be established by a newly adopted law. It can be only identified and accepted post factum. Reasonable doubts about the right of the Bank of Latvia to adopt

external regulatory enactments are said to follow also from Article 9(1) of the law On Official Publications and Legal Information, which does not provide for such type of external regulatory enactments as “Regulation of the Bank of Latvia”. Thus, until now the Bank of Latvia, by issuing external regulatory enactments, is said to have acted ultra vires. Even if it were hypothetically presumed that the Bank of Latvia had the right to issue external regulatory enactments, it had exceeded the limits of authorisation granted by the legislator. Moreover, the legislator even had not had the right to authorise another subject of law to issue such norms, which, pursuant to “theory of materiality”, defined in the case-law of the Constitutional Court, are solely within the Saeima’s competence. The authorisation included in Article 47(3) of the Law on Prevention is said to allow issuing only of such legal norms that would establish the procedure for performing obligations referred to in the authorisation, i.e., norms of procedural nature. Whereas the impugned norms are to be recognised as norms of substantive law. Moreover, the Law on Prevention and Regulations no. 1071 exhaustively point to those cases when the client or the true beneficiary should be identified. If this list needs to be expanded, then only the legislator has the competence to do so. The contested norms are said to comprise such indicators of legal constituent elements, which are not allowed by the Law on Prevention. In view of the abovementioned, the impugned norms should be recognised as being incompatible as of the moment when the violation of Petitioner’s fundamental rights occurred. At the hearing of the Court the Petitioner’s authorised representative Matīss Šķiņķis repeated the arguments mentioned in the application and pointed, in particular, to the documents proving transactions of trading cash annexed to the case materials, which show that in a number of credit institutions it is possible to conduct transactions, the amount of which is equivalent to 2 000–7 999.99 euro, without identification. 3. The institution which has adopted the impugned act – the Bank of Latvia – considers that the impugned norms comply with Article 1 and Article 64, as well as the first sentence in Article 91 of the Satversme. It had been noted in the MONEYVAL Report that Recommendations no. 37 of 13 May 2009 by the Bank of Latvia “Recommendations on establishing a system of internal control to prevent money laundering and financing of terrorism to capital companies who have received a licence from the Bank of Latvia for buying and selling foreign currency cash” (hereinafter – the Bank of Latvia Recommendations no. 37) were not enough to ensure due supervision and control of such capital companies which engaged in trading cash, therefore the competence of the Bank of Latvia in this field had to be expanded, granting to it the right to issue legally binding guidelines, or to entrust supervision and control of this field to the Financial and Capital Market Commission (hereinafter also – FCMC). In view of the observations made in the Report, it had been concluded in the Action Plan for Improving the System for Preventing Money Laundering and Financing of Terrorism, approved at the meeting of the Council for the Development of Financial Sector of 28 March 2013, that the Bank of Latvia should lay down stricter requirements regarding client scrutiny in capital companies engaged in trading cash. In accordance with the guidelines established by the Action Plan referred to above, Amendments to the Law on Prevention had been adopted. The annotation to the respective draft law had noted that the Law on Prevention defined only the minimum requirements for preventing money laundering and financing

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of terrorism, therefore the Bank of Latvia had to establish more detailed requirements for the capital companies referred to, appropriate for the type of activities they engage in. Allegedly, the annotation to the Bank of Latvia Regulation no. 141 shows that in the elaboration of the impugned norms the risks that are linked to the service provided by capital companies engaged in trading cash had been assessed. The Bank of Latvia had sent this draft regulation to ten major capital companies of the sector for approval. The Non-Bank Association had provided an expanded response, however, those capital companies, which were not members of this Association, had not expressed objections to this draft regulation. The Bank of Latvia had assessed the arguments provided and thus ensured to the addressees of the impugned norms a possibility to participate in the process of elaborating the regulation. It had been noted in the MONEYVAL Report that capital companies conducted the supervision of only unusual and suspicious transactions and the clients performing such transactions, but did not supervise other clients and transactions conducted by them, even though they constituted the largest share of turn-over for these capital companies. Before the impugned norms were adopted, the valid Bank of Latvia Recommendations no. 37 had provided that capital companies themselves, pursuant to the Law on Prevention, should assess possible risks in their operations and implement adequate measures for preventing thereof. The Bank of Latvia, upon implementing control measures, had concluded that capital companies which were engaged in trading cash, mostly identified and registered only unusual transactions, the amount of which exceeded the threshold value defined in regulatory enactments – 8 000 euro, but did not register suspicious transactions that were below it. Likewise, avoiding identification of unusual transactions had been established, for example, by splitting one transaction into several transactions, conducting similar transactions in identical amounts within a short period of time. In addition to that, after the threshold value of the amount of a suspicious transaction was increased in the Law on Prevention [from 7 100 euro (5 000 lats) to 8 000 euro], which was done in relation to the introduction of euro, it was established that the number of such transactions, the amount of which exceeded the previous, but did not exceed the new threshold value, had increased. Thus, prior adoption of the impugned norms, a situation had evolved in practice, where the client supervision was done formally and capital companies, ignoring the purpose of the Law on Prevention, did not identify and had no knowledge of their clients. In adopting the impugned norms a fact, established by control measures, had also been taken into account, i.e., that capital companies engaged in trading cash had not seen to it that their employees would have knowledge about regulatory enactments that regulate money laundering. The regulation included in the impugned norms is said to be unambiguous and applicable without requiring substantial financial and human resources. Whereas in choosing the threshold value – 2 000 euro, the amounts of transactions noticed in the framework of control measures and the regularity of transactions corresponding to them had been taken into considerations. If the regulation established by the impugned norms is in force, those persons, who want to avoid identification, have to conduct a number of transactions in various capital companies, and, thus, the possibility to detect such suspicious activities has significantly increased. In deciding on the issue of permissibility of special authorisation, the Constitutional Court, allegedly, has consistently allowed that not only the Cabinet of Ministers, but also other state institutions have the right to issue external regulatory enactments within the framework of administrative activities. The legislator has established the Bank of Latvia as an independent, autonomous institution which oversees a separate field of public

administration, which has been removed from the competence of the Cabinet of Ministers. To ensure due governance of the respective field, the Bank of Latvia independently performs all the administrative activities that follow from the legal regulation. Issuing of external regulatory enactments, if the law comprises special authorisation, is said to be one of such activities. Since 1992 the Bank of Latvia has already issued more than 100 regulations. Thus, regulations of the Bank of Latvia as a special type of external regulatory enactment have existed and have been applied for extended period of time. Thus, the constitutional tradition has developed. Likewise, the issue of the place of such regulations in the hierarchy of regulatory enactments is said to have been settled. Pursuant to Article 57 of the Satversme the issue of granting special authorisation is to be decided on by way of legislation. The right of an autonomous subject of public law to issue external regulatory enactments has been accepted within the system of Article 64 of the Satversme, i.e., it allows the legislator’s discretion to authorise, when demanded by considerations of expedience, not only the Cabinet, but also other state institutions to issue external regulatory enactments. Regulations of the Bank of Latvia, on the basis of special authorisation granted by the legislator, are issued by the Council of the Bank of Latvia, comprised of the President of the Bank of Latvia, his deputy and six members of the Council. Pursuant to Article 22 of the law “On the Bank of Latvia”, the President of the Bank of Latvia is elected to the office by the Saeima, which also appoints to the office his deputy and members of the Council of the Bank of Latvia. Allegedly, this process ensures sufficient democratic legitimization, in particular, taking into consideration restrictions established for independent institutions. If the legislator had wished to authorise the Bank of Latvia to establish the procedural order for performing the obligations defined for the subjects of the Law on Prevention, then it would have included this term into the legal norm. However, the legislator had chosen another wording, and this, allegedly, is not coincidental. The authorisation of FCMC, included in Article 47(2) of the Law on Prevention, points to it. Thus, the content of authorisation granted to the Bank of Latvia should be established within the framework of the system of the law. The legislator had recognised the respective issue as one that should be regulated by regulations issued by the Bank of Latvia and not by a norm of law. This approach is said to comply with the purpose and the system of law, since also in other cases the legislator had not regulated in detail all necessary issues with regard to a particular subject, but authorised the control and supervisory authority of the particular subject to regulate its activities. Thus, it is alleged that the Bank of Latvia did not act ultra vires. In establishing whether in the case under review there are persons who are in similar and according to concrete criteria comparable circumstances it should be taken into consideration that the Competition Council had assessed the issues referred to by the Petitioner in the context of the Competition Law. The test of compliance with the principle of legal equality as to its methodology is said to differ from the test of compliance of competition law, and the finding reached in the framework of one test cannot be directly or automatically adopted in another test. Inhabitants are said to differentiate between capital companies engaged in trading cash and services provided by credit institutions and to be able to identify significant differences between the two. Likewise, subjects whose risks in commercial activities with regard to attempts at money laundering and financing of terrorism are different, cannot be considered as being in similar and comparable circumstances. The legislator had regulated many

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issues pertaining to subjects of the Law on Prevention together; however, this law also lays down special regulation for specific subjects. Article 47 of the Law on Prevention provides for different models of supervision and control for credit institutions and other subjects. This is said to prove the legislator’s conscious decision to provide a regulation on credit institutions that differs from the one on capital companies that are engaged in trading cash. The aforementioned groups should be compared in the total context of services offered by them, without singling out only one type of services. Trading in cash is said not to be the most essential of services provided by credit institutions. They provide numerous other financial services with the aim of establishing long-term business relationships. Pursuant to the requirements of the Law on Prevention, a credit institution, prior to establishing a business relationship, always performs client identification, irrespectively of the amounts of planned transactions. The legal regulation established for capital companies engaged in trading cash in general is said to differ significantly from the legal regulation for credit institutions. A concrete form – that of a legal person, as well as special requirements regarding establishment and the initial capital have been set for credit institutions in the Credit Institutions Law, which ensure that credit institutions have access to extensive resources for providing financial services, inter alia, equipping premises and attracting clients. Thus, credit institutions are able to invest resources in employee training, control mechanisms and various security systems, which can be based upon employees’ assessment and margin of appreciation. Violations of the Law on Prevention that have been committed may make the commercial activities of a credit institution, as well as participation in international financial markets difficult, as well as decrease trust in it. Whereas Regulation of the Bank of Latvia of 13 May 2009 no. 36 “Regulations on Buying and Selling Foreign Currency Cash” comprises requirements for capital companies engaged in trading cash. Pursuant to this Regulation, a licence is issued not to the capital company, but to each site for buying and selling foreign currency at its disposal. Therefore the equipment of currency exchange points created by capital companies significantly differs from the equipment of credit institutions and their branches. Requirements that the Law on Prevention defines for capital companies engaged in trading cash and for credit institutions are said to be different, and also the significantly differentiated system of sanctions is said to illustrate these differences. In view of the above, it should be concluded that credit institutions and capital companies that engage in trading cash are not in similar and comparable circumstances. At the hearing of the Court the authorised representative of the Bank of Latvia Jānis Pleps repeated and expanded the arguments provided in the written reply and underscored that the MONEYVAL Report included recommendations with regard to the Bank of Latvia, but made no references to activities of FCMC in supervising credit institutions in the field of trading cash. […]

The motives 4. The application requests to review the compatibility of the impugned norms with Article 1 and Article 64, as well as the first sentence of Article 91 of the Satversme. Article 1 of the Satversme provides: “Latvia is an independent democratic republic.” Pursuant to 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.

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. Article 192(1) of the Constitutional Court Law provides that a constitutional complaint (application) may be submitted to the Constitutional Court by any person, who holds that a legal norm that is incompatible with a legal norm of higher legal force, violates his or her fundamental rights established in the Satversme. The term “violates” has been included in the Law to separate the constitutional complaint from action popularis (see the judgment of the Constitutional Court of 22 February 2002 in the case no. 2001-06-03, para. 2.4 of the motives part). To review a case which has been initiated on the basis of a constitutional complaint the Constitutional Court must establish a violation of a person’s fundamental rights. The Petitioner is linking the possible violation of its fundamental rights with the prohibition of differential treatment, included in the first sentence of Article 91 of the Satversme, which, inter alia, is said to have occurred because the impugned norms had not been adopted in procedure complying with Article 1 and Article 64 of the Satversme. Thus, in the case under review, the Constitutional Court must, first of all, examine compliance of the impugned norms with the first sentence in Article 91 of the Satversme and establish, whether the impugned norms cause differential treatment. Thus, the Constitutional Court shall examine, whether the impugned norms comply with the first sentence in Article 91 of the Satversme. 5. The objective of the principle of equality enshrined in the first sentence of Article 91 of the Satversme is to ensure that such a requirement of a state governed by the rule of law as comprehensive impact of law upon all persons and application of law without any privileges whatsoever would be ensured (see the judgment of the Constitutional Court of 2 February 2010 in the case no. 2009-46-01, para. 7; and the judgment of 23 November 2015 in the case no. 2015-10-01, para. 15). However, such unity of legal order does not mean levelling out, since equality permits differential treatment, if it is justifiable in a democratic society (see the judgment of the Constitutional Court of 26 June 2001 in the case no. 2001-02-0106, para. 4 of the motives part). I.e., the equality principle prohibits state institutions to issue such norms that without reasonable grounds permit differential treatment of persons, who are in similar and according to concrete criteria comparable circumstances. At the same time the equality principle allows and even demands differential treatment of persons, who are in different circumstances, as well as allows differential treatment of persons, who are in similar circumstances, if there are objective and reasonable grounds for it (see, for example, the judgment of the Constitutional Court of 11 November 2005 in the case no. 2005-08-01, para. 5, and the judgment of 13 June 2014 in the case no. 201402-01, para. 10). To assess whether the impugned norms comply with the equality principle that the first sentence of Article 91 of the Satversme comprises it must be established: 1) whether and which persons (groups of persons) are in similar an according to concrete criteria comparable circumstances; 2) whether the contested norm envisages similar or differential treatment of these persons (groups of persons); 3) whether there are objective and reasonable grounds for this treatment, i.e., whether it has a legitimate aim and whether the principle of proportionality has been complied with (see, for example, the judgment of the Constitutional Court of 2 February 2010 in the case no. 2009-46-01, para. 7).

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6. To establish, whether the impugned norms comply with the equality principle enshrined in the first sentence of Article 91 of the Satversme, at least two groups of persons should be compared (see the judgment of the Constitutional Court of 3 November 2011 in the case no. 2011-05-01, para. 17). In the case under review it is not disputed that in the sector of trading cash two following groups can be discerned: 1) capital companies, which are engaged in trading cash; 2) credit institutions, which provide the service of trading cash as one type of financial services. From the perspective of the first sentence of Article 91 of the Satversme, the fact, whether several groups have a common feature, applicable to all of them, is decisive (see, for example, the judgment of the Constitutional Court of 13 June 2014 in the case no. 2014-02-01, para. 11). The Petitioner considers 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 (see the application in the case materials, vol. 1, pp. 8-10). The summoned persons – the Competition Council, the Ombudsman and the NonBank Association – uphold this opinion. The Competition Council, in particular, underscores that the services provided by the two indicated groups of persons are mutually substitutable (see the transcript of the hearing of the Constitutional Court of 19 January 2016, the case materials, vol. 4, pp. 39 and 43). Whereas the Bank of Latvia holds that the aforementioned groups of persons are not in similar and according to concrete criteria comparable circumstances, since within the system for preventing money laundering and financing of terrorism credit institutions are always separated from other financial institutions. This separations is based upon such an essential criterion as the assessment of the risk of money laundering and financing of terrorism (see the written reply in the case materials, vol. 1, pp. 183‑188). A number of summoned persons uphold this opinion, i.e., the Saeima, FCMC, association ”The Association of Latvian Commercial Banks”, the Control Service and Aivars Lošmanis, substantiating this with the fact that credit institutions have submitted to the Control Service many more reports on unusual and suspicious transactions than capital companies engaged in trading cash. Moreover, this conclusion is said to be based upon the international practice in preventing money laundering and financing of terrorism and the experience gained thus far (see, for example, the transcript of the hearing of the Constitutional Court of 19 January 2016, the case materials, vol. 4, pp. 9‑10, and the Saeima’s opinion in the case materials, vol. 2, pp. 65 and 66). Summoned person Edvīns Danovskis holds that the issue of the level of risk for money laundering and financing of terrorism is important in evaluating proportionality of the restriction upon fundamental rights, established by the impugned norms (see the transcript of the hearing of the Constitutional Court of 1 February 2016, the case materials, vol. 5, p. 88). At the hearing of the Court the representative of the Bank of Latvia also admitted that these risks could be regarded as the criteria for justifying the differential treatment (see the transcript of the hearing of the Constitutional Court of 12 January 2016, the case materials, vol. 3, p. 158).

Assessment of money laundering and financing of terrorism risks is to be considered as being an essential aspect. However, the opinion that in credit institutions these risks are lower per se does not prove that the assessment thereof should be considered as being the most important criterion in comparing the two groups of persons. Analysis of the aforementioned risks can be used to assess, whether it is necessary to impose certain obligations upon subjects of the Law on Prevention. The Constitutional Court has recognised before that participants of the same relevant market are in similar and according to concrete criteria comparable circumstances (see the judgment of the Constitutional Court of 9 February 2004 in the case no. 2003-210306, para. 9.2). A number of documents that the case materials hold, as well as arguments presented by the participants of the case indicate that in case, if the particular service is not received at a capital company, which is engaged in trading cash, it can be received at a credit institution (see the case materials, vol. 1, pp. 134‑137, and vol. 3 pp. 39-47). This means that the services provided by both subjects are mutually substitutable. The case materials also comprise information about the share of services provided by both groups of persons within the framework of the same market (see the case materials, vol. 3, pp. 5 and 6). The Constitutional Court holds that in assessing, whether groups of persons are in similar and according to concrete criteria comparable circumstances, it is of decisive importance that both groups of persons may be identified according to particular criteria; i.e., according to totality of common essential features, – the subjects belonging to both groups are capital companies, which operate in the same market, i.e., the market of services of trading cash, the services they provide are mutually substitutable, and they are to be considered as being competitors. Consequently, capital companies, which are engaged in trading cash, and credit institutions, which provide the service of trading cash as one type of financial services, in providing this service are in similar and according to concrete criteria comparable circumstances. 7. The contested norms impose upon capital companies, which are engaged in trading cash, an obligation to identify the client or the true beneficiary in such cases, where external regulatory enactments do not impose such an obligation upon credit institutions (if the transaction is not unusual or suspicious and business relationship is not initiated, but the amount of transaction is equivalent to 2 000–7 999.99 euro). It follows from the case materials that such situations are possible, where a potential client refuses to conduct a transaction of trading cash at capital companies, which are engaged in trading cash. Unwillingness to be identified, absence of personal identification documents, as well as the fact that at credit institutions during an analogous transactions identification of persons is not done are mentioned as reasons for such refusal (see the case materials, vol. 1, pp. 46‑133). Thus, the impugned norms set the requirement to identify the client or the true beneficiary only with regard to one market participant – a capital company, which is engaged in trading cash, whereas such requirement is not imposed upon the other market participant – a credit institution, which also is engaged in trading cash. Thus, the impugned norms envisage differential treatment of groups of persons, which are in similar and according to concrete criteria comparable circumstances.

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8. The Constitutional Court has repeatedly noted that abiding by the procedure for adopting a legal norms is a pre-requisite for the validity of the legal norm (see the judgment of the Constitutional Court of 21 November 2005 in the case no. 200503-0306, para. 10.4, and the judgment of 21 December 2015 in the case no. 2015-03-01, para. 23). To assess compatibility of differential treatment established by the impugned norms with the first sentence of Article 91 of the Satversme, it must be, first and foremost, verified, whether the differential treatment has been established by a legal norm that has been adopted in the procedure envisaged in regulatory enactments. It has been recognised in the case-law of the Constitutional Court that differential treatment may be established in accordance with law (compare the judgment of the Constitutional Court of 19 December 2007 in the case no. 2007-13-03, para. 12). The word “law” comprises not only laws adopted by the Saeima, but also generally binding (external) regulatory enactments, if these have been adopted on the basis of law, published in the procedure established by regulatory enactments, are worded with sufficient clarity, so that the addressee would be able to understand his rights and obligations, and also comply with the principle of a state governed by the rule of law (compare, for example, the judgment of the Constitutional Court of 20 May 2002 in the case no. 2002-01-03, the motives part, and the judgment of 12 December 2014 in the case no. 2013-21-03, para. 11). The Bank of Latvia has issued the impugned norms which envisage differential treatment, on the basis of Article 47(3) of the Law on Prevention. The Petitioner holds that the Bank of Latvia even does not have the right to issue external regulatory enactments; but, if it were recognised, that the Bank of Latvia has such right, then it, in issuing the impugned norms, has exceeded the authorisation granted in law. Thus, the Constitutional Court must establish, whether differential treatment has been established by law. 9. The Petitioner is not contesting the legal status of the Bank of Latvia as an institution of public administration; however, it holds that the right of the Bank of Latvia to issue external regulatory acts does not follow from the Satversme and that the Bank of Latvia should not be recognised as being a democratically legitimized institution, since it is not linked to the people’s will (see the transcript of the hearing of the Constitutional Court of 1 February 2016, the case materials, vol. 5, p. 93, and the application, the case materials, vol. 1, p. 19). The Bank of Latvia, in turn, notes that its right to issue external regulatory enactments follows from the Satversme and that it has sufficient democratic legitimization (see the written reply in the case materials, vol. 1, pp. 177‑178). 9.1. To assess, whether the impugned norms were adopted in due procedure, the Constitutional Court must verify, whether the right of the Bank of Latvia as an autonomous institution of public administration to issue external regulatory enactments follows from the Satversme. Among others, the principle of separation of powers, which manifests itself as division of the state power into legislative, executive and judicial power, follows from the concept of democratic republic enshrined in Article 1 of the Satversme [see the judgment of the Constitutional Court of 1 October 1999 in the case no. 03-05(99), para. 1 of the motives part]. Separation of powers has the purpose of ensuring a person’s fundamental rights and a democratic state order, guaranteeing a system of checksand-balances between institutions of state power (see, for example, the judgment of 20 December 2006 in the case no. 2006-12-01, para. 6.1). The principle of separation

of powers must ensure implementation and protection of the fundamental values of a democratic state governed by the rule of law (see the judgment of the Constitutional Court of 18 December 2013 in the case no. 2013-06-01, para. 11). Pursuant to Article 64 of the Satversme, the right to legislate, i.e., the right to regulate an issue by law, is vested into the Saeima, as well as into the people, in the procedure and scope established by the Satversme. The case under review pertains only to the issue of the actions by the Saeima as the legislator. Pursuant to the principle of separation of powers, general passing of laws on any issues of state policy falls within the legislator’s competence. To ensure effective exercise of the state power, exceptions to the principle of the legislator’s supremacy are admissible. These exceptions follow from the Satversme. The purpose thereof is to make the legislative process more effective, as well as respond faster and more adequately to the needs for amendments to legal regulation. Pursuant to the Satversme functions of the executive power fall within the competence of the Cabinet of Ministers, even though some activities of the executive power may be entrusted to other institutions. One of the activities of public administration is issuing of external regulatory enactments in case, where the legislator, in abiding by the Satversme, has authorised an institution of executive power to issue such. Since issuing of such regulatory enactments is an activity of public administration, the Cabinet of Ministers or another institution of executive power specifies in greater detail the political will included in the law or sets our the procedure for implementing the law. The content of these acts, adopted as part of such activity, mainly comprises procedural norms, which function as a tool for embodying the norms established by the law. In some cases the content may consist also of substantial norms; however, these should be adopted on the basis of the legislator’s authorisation. External regulatory enactments, which are issued on the basis of authorisation, constitute that part of regulatory enactments, which have developed not through elaboration of laws, but through implementation thereof (compare the judgment of the Constitutional Court of 9 October 2007 in the case no. 2007-04-03, paras. 13, 14 and 16). Article 58 of the Satversme combines all institutions of public administration, which perform functions of public power, into one common system subordinated or subjected to the Cabinet of Ministers [see the judgment of the Constitutional Court of 9 July 1999 in the case no. 04-03(99), para. 2 of the motives part]. However, Article 58 of the Satversme does not automatically require mandatory subordination of all institutions of public administration to the Cabinet of Ministers (see the judgment of the Constitutional Court of 16 October 2006 in the case no. 2006-05-01, para. 15.4). Article 1 of the law “On the Bank of Latvia” provides that the Bank of Latvia is the central bank of the Republic of Latvia with the full rights of an autonomous state institution. Article 57 of the Satversme allows establishment of such autonomous state institutions, which perform some activities of executive power, without being subordinated to the Cabinet of Ministers. However, in this case Article 58 of the Satversme defines a mechanism, which ensures democratic legitimization of an institution of public administration and its responsibility for exercising its competence. If the legislator, exercising the right envisaged in Article 57 of the Satversme to define by law the relations between state institutions, releases an institution of public administration from subordination to the Cabinet of Ministers, it should envisage also another, but not less effective democratic legitimization of this institution and responsibility thereof for its activities (see the judgment of the Constitutional Court of 16 October 2006 in the case no. 2006-05-01, para. 16.1). In view of the above, the Bank of Latvia as an autonomous

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institution of public administration, in being outside subordination to the Cabinet of Ministers, requires appropriate democratic legitimization. The Constitutional Court has already recognised that the Bank of Latvia is an autonomous institution of public administration, which is not subordinated to the Bank of Latvia and fulfils its functions independently (see the judgment of the Constitutional Court of 16 October 2006 in the case no. 2006-05-01, paras. 16.3 and 16.4). The case under review does not comprise a dispute on whether the legitimization of the Bank of Latvia is appropriate for it as an autonomous institution of public administration to perform governance activities, which are not linked to issuing of external regulatory enactments. In difference to other activities of executive power, issuing of external regulatory enactments requires appropriate democratic legitimization for it. Thus, the Satversme allows for the right of autonomous institutions of public administration to issue external regulatory enactments in the framework of governance activities, is such institutions have received appropriate democratic legitimization. Consequently, in the case under review it will be assessed, whether the democratic legitimization of the Bank of Latvia is appropriate, allowing the legislator to authorise it to issue external regulatory enactments. 9.2. Article 6 of the Satversme provides that the Saeima is elected in general, equal and direct elections, and by secret ballot based upon proportional representation. Thus, the Saeima is directly democratically legitimized. Whereas pursuant to the first and the second part of Article 22 of the Law “On the Bank of Latvia”, the President of the Bank of Latvia is elected into office by the Saeima, which appoints also the Vice-president and the members of the Bank of Latvia Council to their offices. Thus, all members of the Bank of Latvia Council are indirectly (not immediately) democratically legitimized. The democratic legitimization of the Bank of Latvia Council is influenced by the pre-requisite that a member thereof, within his term of office, may be dismissed from the office only in cases envisaged in Article 22 of the law “On the Bank of Latvia”. However, the fact indicated by the Petitioner that during their term in office, the Saeima has no possibility to exert political influence upon the members of the Bank of Latvia Council, does not mean that the members of the Bank of Latvia Council would lack democratic legitimization. The Bank of Latvia Council being outside political influence is an essential pre-requisite for the independence of the national central bank, which follows not only from the Satversme and the law “On the Bank of Latvia”, but also from Article 130 of the Treaty on the Functioning of the European Union and Protocol no. 4 on the Statute of the European System of Central Banks and of the European Central Bank. The Saeima has the right, within the limits of the Satversme, to define the competence of an autonomous institution of public administration and to amend it at any time. The scope of competence granted to such an institution must be established in interconnection with the democratic legitimization thereof. The Saeima has the right to authorise an autonomous institution of public administration to issue external regulatory enactments that are necessary for implementing the law in a field of competence granted by law, for example, with regard to preventing money laundering and financing of terrorism, the supervision of which requires particular competence and autonomy. An autonomous institution of public administration, in exercising the authorisation granted by the legislator in the particular field of competence, has the right to define binding requirements only for a concrete circle of subjects in accordance with the specificity of their activities. Thus, the Bank of Latvia as an autonomous institution of public administration established by the Saeima is to be considered as having appropriate democratic legitimization, in order for it to

have the right to issue external regulatory enactments within the field of restricted competence granted by the law with regard to a concrete circle of subjects. Thus, the Bank of Latvia has the right to issue external regulatory enactments in accordance with the authorisation in the field of competence granted to it by law with regard to concrete circle of subjects. 10. The Petitioner holds that the regulation established by the contested norm comprises such issues, the deciding on which falls solely within the legislator’s competence (see the transcript of the hearing of the Constitutional Court of 1 February 2016, the case materials, vol. 5, pp. 92-94). Whereas the Bank of Latvia notes that, in adopting the impugned norms, it has acted within the limits of competence granted by the legislator (see the transcript of the hearing of the Constitutional Court of 1 February 2016, the case materials, vol. 5, p. 101). 10.1. When acting as the legislator, the Saeima does not have the right to transfer to the executive power for deciding upon such issues, which according to the Satversme fall with only within the exclusive competence of the Saeima itself (see the judgment of the Constitutional Court of 14 October 2015 in the case no. 2015-05-03, para. 10). The legislator, in authorising the executive power to elaborate regulation on a particular issue, may not cause a risk that the balance between the legislative power and the executive power might tip to the side of the executive power to the extent that it might jeopardize the principle of separation of powers and, thus, also the essence of a democratic state order (see the judgment of 11 January 2011 in the case no. 201040-03, para. 10.2). In deciding on authorisation, the legislator has the duty to consider the significance of the particular issue and connection thereof with the fundamental rights (see the judgment of the Constitutional Court of 14 October 2015 in the case no. 2015-05-03, para. 10). The Bank of Latvia may not issue regulations on issues, which have not been decided in full by the legislator itself. Thus, the Constitutional Court must establish, which issues in the particular field had been decided by the legislator itself. 10.2. The Saeima has adopted the Law on Prevention and Amendments to the Law on Prevention, authorising the Bank of Latvia to define binding requirements for capital companies, which are engaged in trading cash, with regard to fulfilling obligations in the particular field, established in this law. 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 (Article 11 of the Law on Prevention), as well as to report on unusual or suspicious transactions (Article 30 of the Law on Prevention). In Article 30(2) of the Law on Prevention, the Saeima has authorised the Cabinet of Ministers to issue regulations approving the list of features of an unusual transaction and the procedure for submitting reports on unusual or suspicious transactions. In accordance with this authorisation the Cabinet of Ministers has issued Regulations no. 1071, para. 8 of which provides that a transaction is to be considered as being unusual, if it complies with even one feature referred to in this paragraph. Subparagraphs 8.2.4 and 8.6 of Regulations no. 1071 define both with regard to capital companies, engaged in trading cash, and credit institutions as such a feature the case, where a client (for credit institutions – a client without an account) buys or sells foreign currency cash in the amount equivalent to 8 000 euro or exceeding it. A reference to the features included in the list of features of an unusual transactions is included also in Article 11(2)(2) of the Law on Prevention, thus, these features, inter alia, refer to identification of the client or the true beneficiary.

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The legislator has authorised several institutions of public administration, inter alia, the Bank of Latvia, to issue binding requirements in particular fields for those subjects, the supervision and control of which these institutions implement. The Saeima has chosen a model of identification and reporting, which is based upon risk assessment, and has defined the main lines thereof in the law. Thus, the legislator itself has decided upon the issue of requirements to be set for credit institutions and capital companies engaged in trading cash, inter alia, the requirement to identify the client or the true beneficiary. 11. The Constitutional Court in its case-law has recognised as being incompatible with the Satversme such regulatory enactments that had been issued without abiding by the legislator’s authorisation, i.e., ultra vires. This doctrine is applicable to compliance of regulatory enactments issued by an institution, which has been authorised by the legislator, with legal norms of higher legal force (see the judgment of the Constitutional Court of 9 October 2007 in the case no. 2007-04-03). The Constitutional Court has already reviewed compliance of legal norms issued by derived public law legal persons with norms of higher legal force (see the judgment of the Constitutional Court of 24 December 2002 in the case no. 2002-16-03). In view of the fact that the Bank of Latvia has been authorised by the legislator to issue external regulatory enactments, the findings by the Constitutional Court expressed in the framework of ultra vires doctrine are applicable to the case under review. 11.1.The Constitutional Court has recognised that the legislator’s authorisation should maintain the system of checks-and-balances in the relationships between the branches of power, as well as comply with the principle of a state governed by the rule of law [see the judgment of the Constitutional Court of 1 October 1999 in the case no. 03-05(99), para. 1 of the motives part]. The Bank of Latvia has the right to issue external regulatory enactments only insofar this right has been transferred to it by law. The Bank of Latvia has the right to issue an external regulatory enactment only if the legislator has clearly defined the content and limits of the authorisation. Regulatory enactments that are subordinated to law may not include such legal norms, which cannot be considered as being supplementary aid for implementing a norm of the law (compare the judgment of the Constitutional Court of 9 October 2007 in the case no. 2007-04-03, paras. 14 and 15). The legislator has the right to authorise the Bank of Latvia or other autonomous institutions of public administration to elaborate the regulation necessary for implementing a law only insofar it specifies the requirement of the law or establishes a procedure for implementing it. An authorisation of this kind is included in the second and third part of Article 47 of the Law on Prevention with respect to FCMC and the Bank of Latvia. The Petitioner holds that the Bank of Latvia has acted contrary to Article 64 of the Satversme, because the impugned norms had been issued ultra vires; i.e., by exceeding the authorisation established in the third part of Article 47 of the Law on Prevention. The Bank of Latvia had defined in the impugned norms a new case for identifying the client or the true beneficiary in the meaning of Article 11 of the Law on Prevention, but this is said to be inadmissible, since the enumeration of features of the legal elements, included in the legal provision referred to, is exhaustive (see the transcript of the hearing of the Constitutional Court of 1 February 2016, the case materials, vol. 5, pp. 94 and 95). Whereas the Bank of Latvia and the Saeima hold that the impugned norms were issued in compliance with authorisation granted by the Saeima. A supervisory

and control authority may not establish new cases for client identification; however, identification envisaged in the impugned norms is said to be a special simplified type of identification or an instrument for implementing requirements of Article 7 of the Law on Prevention. Therefore the impugned norms, allegedly, should not be examined in the context of Article 11 of the Law on Prevention (see the transcript of the hearing of the Constitutional Court of 1 February 2016, the case materials, vol. 5, pp. 89‑90 and 104‑105). The Constitutional Court must establish the purpose and the content of the authorising norm and of the impugned norms, as well as whether the Bank of Latvia has not exceeded the scope of authorisation granted to it. 11.2. The executive power also must understand authorisation granted by the legislator not only as one concrete, laconic legal norm, but the very substance and purpose of the law (see the judgment of the Constitutional Court of 11 January 2011 in the case no. 2010-40-03, para. 10.4). The purpose of authorisation should be understood as that, what the legislator tried to achieve by granting the right to regulate the particular issue (see the judgment of the Constitutional Court of 9 October 2007 in the case no. 2007-04-03, para. 19). Pursuant to Article 2 of the Law on Prevention, the purpose of the law is preventing money laundering and financing of terrorism. Persons referred to in Article 2(1) of the Law on Prevention have been entrusted performance of this obligation, inter alia, capital companies, which are engaged in trading cash, themselves. The legislator has envisaged applying an approach that is based upon risk assessment to the subjects of the Law on Prevention (see the transcript of the session of 24 January of the 9th Saeima’s winter session). Article 6(1) of the Law on Prevention that the subject of law, in accordance with the type of its activities, shall implement measures to identify, assess and understand the risks of money laundering and financing of terrorism typical of it activities and clients, and, on the basis of the risk analysis conducted, shall establish a system of internal control for preventing money laundering and financing of terrorism. The legislator has included in Article 7(1) of the Law on Prevention provides minimum requirements with regard to the content of internal control system. Article 8 of the Law on Prevention, in turn, defines for the subjects of the law a regular duty to assess, how effectively the system of internal control functions, and to implement measures to improve it. The purpose of Article 47(3) of the Law on Prevention must be established by taking into consideration Action Plan for Improving the System for Preventing Money Laundering and Financing of Terrorism approved at the sitting of the Council for the Development of Financial Sector on 28 March 2013 (see the case materials, vol. 4, pp. 84‑129), sub-paragraph 3.2.8 of which underscores recommendation included in MONEYVAL Report: “Latvia should ensure that the Bank of Latvia provides clear requirements for ongoing due diligence in two important areas: establishing the source of funds and nature of business of the customer when the transactions does not qualify as an unusual or suspicious transaction or the customer is a high-risk customer or a politically exposed person.” In adopting Article 47(3) of the Law on Prevention, the legislator has emphasized recommendations included in MONEYVAL Report. The purpose of the norm is to include in the law an obligation for the Bank of Latvia to establish more detailed requirements for capital companies, engaged in trading cash, in accordance with the type of activities thereof (see the annotation to the draft law no. 1153/Lp11 submitted to the Saeima on 13 May 2014 “Amendments to the Law on Prevention Money Laundering and Financing of Terrorism, Article 2(2)).

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Authorisation included in Article 47(3) of the Law on Prevention means that the Bank of Latvia, in performing the duties of control and supervisory authority, must assess the risks of money laundering and financing of terrorism that the capital companies, which are engaged in trading cash, encounter in their operations and must define binding requirements for eliminating these risks. In view of the above, the purpose of the authorising norm is to set for capital companies, which are engaged in trading cash, such requirements with respect to preventing money laundering and financing of terrorism that are based on the assessment of risks in their operations. Whereas the annotation to draft Regulation no. 141 of the Bank of Latvia, which comprises the contested norm, shows that for the Bank of Latvia the risks linked to cash transactions in capital companies, which are engaged in trading cash, have been the basis for issuing these (see the annotation to draft Regulation no. 141 of the Bank of Latvia, the case materials, vol. 1, p. 194). The written answer by the Bank of Latvia also includes the aforementioned risk assessment (see the case materials, vol. 1, pp. 168‑172). Thus, in the process of drafting the Bank of Latvia Regulation no. 141 the risks that capital companies, which trade in cash, encounter in their operations were assessed. Hence, the Bank of Latvia Regulation no. 141 was elaborated to reach the purpose of the legislator’s authorisation. 11.3. The content of authorisation should be sufficiently clear to reveal the essence of authorisation (see, for example, the judgment of the Constitutional Court of 21 November 2005 in the case no. 2005-03-0306, para. 10, and the judgment of 9 October 2007 in the case no. 2007-04-03, para. 20). Article 47(3) of the Law on Prevention includes authorisation to issue “binding requirements for performing obligations established in this Law with respect to establishing a system of internal control, identifying true beneficiaries and verifying, whether the person, who has been indicated as the client’s true beneficiary, is the true beneficiary of the client, as well as with respect to supervising of the transactions conducted by clients and knowing business activities of clients.” The Constitutional Court has recognised that the term “procedure” means the way of implementing a process or of organising activities (see the judgment of the Constitutional Court of 9 October 2007 in the case no. 2007-04-03, para. 20 and the judgment of 14 October 2015 in the case no. 2015-05-03, para. 13.2). This concept is not used in Article 47(3) of the Law on Prevention. This indicates that the authorisation granted to the Bank of Latvia is different and comprises not solely the right to regulate the procedural aspect of activities. The content of authorisation included in Article 47(3) of the Law on Prevention must be established, by analysing also norms of the same law, which regulate issues referred to in Article 47(3). Article 11(2) of the Law on Prevention defines the cases when the subject of law identifies the client, before conducting a particular transaction, without initiating business relationship. The Constitutional Court must assess whether the impugned norms apply to any of the client identification cases referred to in Article 11(2) of the Law on Prevention. As the Bank of Latvia and the Saeima note, Article 47(3) of the Law on Prevention provides, inter alia, for the rights of the Bank of Latvia to establish binding regulations for capital companies, which are engaged in trading cash, for performing the duties established in this law as regards creating of an internal control system. Whereas pursuant to Article 7(1)(5) of the Law on Prevention, the subject of law, in establishing a system of internal control must envisage, inter alia, a procedure for detecting unusual transactions.

One of the ways that allow detecting unusual transactions is to establish a certain threshold value of the amount of a transaction, and if it is exceeded, the client must be identified, even if the transaction has no signs of an unusual or suspicious transaction. However, the legislator’s authorisation means that the executive power, in exercising it, must act within the framework of requirements of a particular law and of the whole legal system. Thus, the authorising norm, as to its content, indicates that the legal requirement with regard to establishing a system of internal control must be implemented insofar the implementation of those legal requirements, which the Bank of Latvia has not been authorised to specify, is not substantially altered. The Bank of Latvia has not been authorised to add to the regulation of Article 11 of the Law on Prevention. 11.4. The scope of authorisation means the range of those issues, which an institution, in exercising authorisation granted by the legislator, has the right to regulate. In establishing the scope of authorisation granted by the legislator, specific features of the particular sector, the regulation of which has been tasked by the legislator, must be taken into account (see the judgment of the Constitutional Court of 11 January 2011 in the case no. 2010-40-03, para. 10.4). To understand the substance of the law, the regulation of the particular field and also the general regulations should be assessed. Authorisation granted by the legislator means that the executive power, in exercising it, must act within the framework of the legal system (see the judgment of the Constitutional Court of 14 October 2015 in the case no. 2015-05-03, para. 13.3). The scope of authorisation granted to the Bank of Latvia is to be understood by analysing the system of the Law on Prevention as a whole. It is noted in the annotation to the Law on Prevention that the law defines only the general, minimum requirements regarding prevention of money laundering and financing of terrorism. Therefore the Bank of Latvia must define more detailed requirements for capital companies, which are engaged in trading cash, appropriate for the type of their activities (see the annotation to the draft law no. 1153/Lp11 submitted to the Saeima on 13 May 2014 “Amendments to the Law on Prevention Money Laundering and Financing of Terrorism, Article 1(2)). The Saeima notes that the Bank of Latvia, assessing the risks of money laundering and financing of terrorism in accordance with the subject’s of law types of activities, has exercised the right envisaged in law to issue regulatory enactments with additional requirements with regard to detecting unusual transactions, which is an issue to be regulated by the system of internal control. Such requirements, allegedly, do not automatically envisage the obligation to identify the client in the procedure of Article 11 of the Law on Prevention and to report about this transaction in accordance with Article 30 of this Law (see the transcript of the hearing of the Constitutional Court of 1 February 2016, the case materials, vol. 5, p. 89). The Constitutional Court has recognised in its rulings that fundamental rights may be restricted only by law or on the basis of law, which clearly indicates the scope of restriction upon fundamental rights. Restriction of fundamental rights without a clear authorisation from the legislator is inadmissible. Whereas in exercising the authorisation, restriction of a person’s fundamental rights must be avoided, if the authorising norm has not clearly indicated it (see the judgment of the Constitutional Court of 21 November 2005 in the case no. 2005-03-0306, para. 10, and the judgment of 12 February 2016 in the case no. 2015-13-03, para. 15.2). In the case under review it is essential that the legal norm, which authorises an autonomous institution of public administration to issue an external regulatory enactments, should be worded with sufficient clarity, in view of the legal nature of democratic legitimization of this institution. Thus, the obligations included in

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the norms issued on the basis of such authorisation and – even more so – restrictions upon fundamental rights must clearly follow from the text of the authorising norm. The binding requirements for fulfilment of duties with regard to establishing a system of internal control defined in the Law on Prevention that the text of the authorising norm refers to does not apply to identification of clients or true beneficiaries referred to in annotation to the Bank of Latvia draft Regulation no. 141. Moreover, Article 7(1)(1) of the Law on Prevention, which regulates establishing the system of internal control, refers only to the procedure of client identification, which clearly points to the procedural nature of such identification. The documents from drafting and adopting the impugned norms do not confirm the arguments of the Bank of Latvia and the Saeima that the impugned norms envisage only “simplified” identification and only specify requirements of the Law on Prevention with regard to establishing a system of internal control, i.e., detecting unusual transactions. Annotation to the Bank of Latvia draft Regulation no. 141 with regard to the impugned norms focuses upon the obligation to identify clients and register transaction, whereas another paragraph refers to the requirements for capital companies to review the documents of the existing internal control system (see the annotation to the Bank of Latvia draft Regulation no. 141, the case materials, vol. 1, p. 194). The Bank of Latvia and the Saeima note that the impugned norms had been adopted in compliance with a recommendation included in MONEYVAL Report. However, recommendation “Latvia should ensure that the Bank of Latvia provides clear requirements for ongoing due diligence in two important areas: establishing the source of funds and nature of business of the customer when the transactions does not qualify as an unusual or suspicious transaction or the customer is a high-risk customer or a politically exposed person” as to its content points to specific activities for establishing the source of funds and nature of the customer’s business, which are impossible in the case, if only the “simplified” identification, referred to by the Bank of Latvia and the Saeima, is conducted. The contested norms substantially envisage procedure for identifying the client or the true beneficiary. The Bank of Latvia Regulation no. 141 comprises both an article on establishing a system of internal control (Article II) and an article on identifying unusual and suspicious transactions (Article IV); however, the impugned norms are included in Article V “Identification of the client and the true beneficiary”. Also in terms of actual consequences the impugned norms envisage identification of clients or true beneficiaries; i.e., making copies of a client’s personal identification documents and verifying, whether a client’s personal identity documents are authentic and valid. The term “to identify” means “to establish” (according to certain features), “to know” (according to typical, peculiar features), to “recognise” (Latviešu valodas vārdnīca. Rīga: Avots, 1998, p. 257; Svešvārdu vārdnīca. Rīga: Jumava, 1999, p. 294). Also FCMC and the Control Service emphasize that client supervision and due diligence essentially are impossible without identification, envisaged in the impugned norms (see, for example, the transcript of the hearing of the Constitutional Court of 19 January 2016, the case materials, vol. 4, p. 30, and the transcript of the hearing of the Constitutional Court of 1 February 2016, the case materials, vol. 5, p. 71). It is not disputed in the case under review that client identification cases referred to in Article 11 of the Law on Prevention have been listed exhaustively and that the legislator has not authorised the Bank of Latvia to supplement this list of cases. The Constitutional Court does not uphold the argument of the Bank of Latvia and the Saeima that the legal regulation that the impugned norms comprise differs in terms of legal consequences

from the regulation established in Article 11 of the Law on Prevention, which is said to be directly linked to the obligation to report on suspicious or unusual transactions envisaged in Article 30 of the same law. The abovementioned obligations established in the Law on Prevention are to be recognised as being independent. Thus, regulation of Article 11 of the Law on Prevention does not allow revision thereof, envisaging, on the basis of authorisation, another identification of the client or the true beneficiary. The impugned norms establish requirements regarding identification of the client or the true beneficiary – thus, regulate an issue, which has already been exhaustively regulated in Article 11 of the Law on Prevention. In view of the abovementioned it can be concluded that the Bank of Latvia, in adopting the impugned norms, has acted contrary to the principle of separation of powers and has exceeded authorisation granted by the legislator. Hence, the impugned norms have been issued ultra vires and are incompatible with Article 1 and Article 64 of the Satversme.

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12. If the impugned norms have been issued ultra vires, then the differential treatment that they comprise has not been established by law and therefore is incompatible with the first sentence of Article 91 of the Satversme. In view of the abovementioned, it is not necessary to examine, whether the aim of differential treatment established by the impugned norms is legitimate and whether such treatment is commensurate (compare the judgment of the Constitutional Court of 12 December 2014 in the case no. 2013-21-03, para. 12.6). Thus, the impugned norms are incompatible with the first sentence of Article 91 of the Satversme, since the differential treatment that they envisage has not been established by law. 13. Pursuant to Article 31(11) of Constitutional Court Law, the Court must decide on the date, as of which the contested norm (act) becomes invalid. Pursuant to Article 32(3) of Constitutional Court Law, a legal norm, which has been recognised by the Constitutional Court as being incompatible with a norm of higher legal force, is to be recognised as being invalid as of the date when the judgment by the Constitutional Court is published, unless the Constitutional Court has provided otherwise. Thus, the legislator has granted to the Constitutional Court broad discretion in deciding on the date, as of which a norm, which has been recognised as being incompatible with a norm of higher legal force, becomes invalid. To recognise a contested norm as being invalid not as of the day of its publication, but as of another date, the Constitutional Court must substantiate its opinion (see the judgment of the Constitutional Court of 21 December 2009 in the case no. 2009-43-01, para. 34, and the judgment of 28 November 2014 in the case no. 2014-09-01, para. 21). It has been found in the case-law of the Constitutional Court that legal norms, which have been adopted ultra vires, are to be recognised as unlawful and invalid as of the moment of their adoption [see the judgment of the Constitutional Court of 10 June 1998 in the case no. 04-03(98), the motives part, and the judgment of 9 October 2007 in the case no. 2007-04-03, para. 25]. It must be presumed with regard to such cases that an anti-constitutional legal norm has never been in force, because it has not been adopted in due procedure, and therefore it cannot cause legal consequences (see the judgment of the Constitutional Court of 12 December 2014 in the case no. 2013-21-03, para. 13). The Constitutional Court has found that in exceptional cases derogations from this presumption could be admissible. However, in such cases the Constitutional Court should

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identify those substantial circumstances that would provide grounds for establishing such an exception (see the judgment of the Constitutional Court of 12 December 2014 in the case no. 2013-21-03, para. 13, and the judgment of 12 February 2016 in the case no. 2015-13-03, para. 17). The impugned norms have been adopted ultra vires. The Constitutional Court has not found confirmation in the case under review of the presence of such circumstances that could provide grounds for exemption from the presumption of invalidity of the impugned norms as of the moment of their adoption.

The resolutive part On the basis of Articles 30‑32 of the Constitutional Court Law, the Constitutional Court decided: To declare paras. 19 and 20 of the Bank of Latvia Regulation no. 141 “Requirements Regarding Prevention of Money Laundering and Financing of Terrorism in Buying and Selling Foreign Currency Cash” to be incompatible with Article 1 and Article 64, as well as the first sentence of Article 91 of the Satversme of the Republic of Latvia as of the moment of their adoption. The judgment is final and not subject to appeal The judgment shall enter into force at the moment it is pronounced.

Chairman of the hearing of the Court A. Laviņš

Separate opinion of the judge of the Constitutional Court Aldis Laviņš in the case no. 2015-11-03 Riga, 15 March 2016

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“On the compliance of paras. 19 and 20 of the Bank of Latvia Regulation no. 141 of 15 September 2014 “Requirements Regarding Prevention of Money Laundering and Financing of Terrorism in Buying and Selling Foreign Currency Cash” with Article 1 and Article 64, as well as the first sentence in Article 91 of the Satversme of the Republic of Latvia”. 1. On 2 March 2016 the Constitutional Court adopted a judgment in the case no. 2015-11-03 “On the compliance of paras. 19 and 20 of the Bank of Latvia Regulation no. 141 of 15 September 2014 “Requirements Regarding Prevention of Money Laundering and Financing of Terrorism in Buying and Selling Foreign Currency Cash” with Article 1 and Article 64, as well as the first sentence in Article 91 of the Satversme of the Republic of Latvia” (hereinafter – the Judgment) and declared paras. 19 and 20 of the Bank of Latvia Regulations no. 141 of 15 September 2014 “Requirements Regarding Prevention of Money Laundering and Financing of Terrorism in Buying and Selling Foreign Currency Cash” (hereinafter – the impugned norms) as being incompatible with Articles 1 and 64, as well as the first sentence in Article 91 of the Satversme of the Republic of Latvia and void as from the moment of their adoption. I cannot agree to the arguments included in para. 25 of the Judgment with respect to recognising the impugned norms as being void from the moment of their adoption. In providing reasoning for my opinion, I shall make use of the abbreviations used in the Judgment. 2. It has been correctly recognised in para. 23.2. of the Judgment that Regulations no. 141 of the Bank of Latvia were drafted to attain the aim of authorisation granted by the legislator. Pursuant to the findings provided in this paragraph, the aim of the authorising norm (Article 47(3) of Law on Prevention) is to define such requirements for capital companies engaged in trading cash with respect to prevention of money laundering and financing of terrorism, that would be based upon an assessment of the risks of their operations. The Constitutional Court in its Judgment drew attention to the fact that the Bank of Latvia, in issuing the impugned norms, had taken as the basis risks inherent to transactions of trading cash in capital companies that are engaged in trading cash, and the risk assessment mentioned above was included in the written reply of the Bank of Latvia. However, it is noted in para. 25 of the Judgment that the Constitutional Court has not found confirmation regarding the existence of such essential circumstances, which could justify an exemption from the presumption that the norms that have been issued ultra vires are void as of the moment of their adoption. 3. The Constitutional Court, by exercising the right granted to it by Article 32(3) of the Constitutional Court Law must ensure, to the extent possible, that the situation which might develop as of the moment when the impugned norm becomes invalid, would not limit persons’ fundamental rights guaranteed in the Satversme and would

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not significantly harm the interests of the State and society (see the judgment of the Constitutional Court of 16 December 2005 in the case no. 2005-12-0103, para. 25, and the judgment of 16 April 2015 in the case no. 2014-13-01, para. 22). The Constitutional Court Law not only grants authorisation to the Constitutional Court, but it also imposes responsibility to ensure that its judgments ensure legal stability, clarity and peace in social reality (see the judgment of the Constitutional Court of 21 December 2009 in the case no. 2009-43-01, para. 35.1.). In those instances where an immediate revoking of a impugned norm that had been issued ultra vires would be even more incompatible with the Satversme than leaving it in force, it is possible to provide that the impugned norm would become invalid as of a particular future date (see, for example, the judgment of the Constitutional Court of 22 October 2002 in the case no. 2002-04-03, para. 3 of the motives part, and the judgment of 23 September 2008 in the case no. 2008-01-03, para. 20). 3.1. The Constitutional Court has recognised in its case-law that measures envisaged for prevention of money laundering and financing of terrorism serve to protect public safety. The State has an obligation to protect public safety and to control the flow of finances, to prevent legalisation of criminally acquired assets and financing of terrorism, as well as tax evasion. Such an obligation of the state is envisaged not only by the Satversme, but also by commitments of Latvia as a Member State of the European Union and by a series of Latvia’s international commitments (compare: the judgment of the Constitutional Court of 28 May 2009 in the case no. 2008-47-01, para. 11). Participants of the case under review share the opinion that in the field of trading cash the risks of legalising criminally obtained assets and financing of terrorism are particularly high. The Constitutional Court also upheld this opinion of the case participants, recognising in para. 23.2. of the Judgment that the impugned norms had been adopted by assessing the operational risks of capital companies engaged in trading cash that might be linked to possibilities of legalising criminally obtained assets and financing of terrorism. Therefore I am of the opinion that the impugned norms were adopted with the aim of protecting public safety. Although the impugned norms had been issued ultra vires, they facilitated the protection of public safety in a particular part of the market, i.e., with respect to subjects that are under the supervision of the Bank of Latvia – capital companies engaged in trading cash. By declaring the impugned norms invalid, the scope of supervision and control of these capital companies in the field of preventing legalisation of criminally obtained assets and financing of terrorism is decreased. It had to be assessed in para. 25 of the Judgment whether declaring the impugned norms void from the moment of their adoption would not decrease the level of public safety and, thus, would be even less compatible with the Satversme, compared to leaving them in force for a certain period of time. 3.2. In adopting legal regulation pursuant to which capital companies engaged in trading cash are supervised and controlled, it must be taken into consideration that the system of legislative acts should be internally coherent. The legislator is obliged to ensure that the regulation on public administration included legislative acts complies with the principle of good governance (see, for example, the judgment of the Constitutional Court of 19 May 2009 in the case no. 2008-40-01, para. 17). Supervision and control over transactions of trading in cash are regulated not only by the impugned norms, but also by an extensive and united system of legal norms. The recommendation included in MONEYVAL Report, noted in para. 3.2.8 of the Action Plan for Improving

the System for Preventing Money Laundering and Financing of Terrorism approved at the meeting of the Council for the Development of Financial Sector on 28 March 2013, which is referred to also in para. 23.2. of the Judgment and which has been taken into account in defining the aim of Article 47(3) of the Law on Prevention, applies not solely to the Bank of Latvia, but to the Republic of Latvia in general. The Bank of Latvia, in accordance with the authorisation granted by the legislator, acts within the field of competence established for it; namely, it develops the requirements on performing the obligations defined in Law on Prevention only with respect to capital companies which are engaged in trading cash. Whereas pursuant to Article 47(2) of the Law on Prevention the FCMC has the right to issue legal regulations for supervising and controlling the prevention of money laundering and financing of terrorism with respect to credit institutions; however, FCMC has not issued regulations in accordance with the aforementioned norm of Law on Prevention. I believe that in the particular situation a decision had to be taken on whether the legislator and state institutions should not be given a certain period of time for assessing meticulously, in the framework of cooperation, taking into consideration the system of legislative acts as a whole, the best way for protecting public safety by abiding, inter alia, by the principle of equality before law. 4. There have been a number of instances in the case‑law of the Constitutional Court, where a legal norm (act) that had been adopted ultra vires was recognised as being invalid as of a certain future date. The Constitutional Court has motivated such findings by assessing various circumstances. In one of these cases the Constitutional Court took into consideration that the legal norms that were incompatible with the Satversme were aimed at protecting persons’ fundamental rights and security and that the situation that would occur if no legal act would regulate the particular field would be even more incompatible with the Satversme. Therefore the Constitutional Court allowed that these legal norms, which formally had been issued ultra vires, remained in force until a different legal regulation entered into force (see the judgment of the Constitutional Court of 22 October 2002 in the case no. 2002-04-03, para. 3 of the motives part). In another case the Constitutional Court found that recognising regulation that was incompatible with authorisation granted by the legislator as void from the moment of its adoption would place persons in a more unfavourable situation. Due to this the respective institution of public administration was given sufficient time for drafting and issuing regulation that would comply with norms of a higher legal force (see the judgment of the Constitutional Court of 23 September 2008 in the case no. 2008-01-03, para. 20). Whereas regarding the issue of legal norms on granting scholarships that had been adopted ultra vires, the Constitutional Court recognised that a situation where after the impugned norm had been declared void institutions of higher education would have to re-examine issues of granting scholarships during the study term, would be contrary to the principle of legal stability (see the judgment of the Constitutional Court of 5 May 2011 in the case no. 2010-57-03, para. 16). Yet in another case the Constitutional Court concluded that it was impossible to eliminate a restriction of fundamental rights without actions taken by the Cabinet of Ministers. Namely, the Cabinet of Ministers had to establish a procedure appropriate for the task set by the legislator. This required time; therefore the most appropriate solution was to declare the impugned norms as being invalid as of a specific future date (see the judgment of the Constitutional Court of 27 June 2013 in the case no. 2012-22-0103, para. 19).

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Abiding by, inter alia, the principle of equality, similar cases must be resolved similarly. Therefore the Constitutional Court in its Judgment had to take into account also the findings included in the rulings referred to above and had to assess whether the obligation of the state to protect public security in a field as important as preventing money laundering and financing of terrorism did not point all the more to the need of recognising the impugned norms as being void from a certain future date.

2015-14-0103

In view of the above, I am of the opinion that it had to be assessed in the Judgment whether the need to protect public safety should not be considered as being a sufficiently essential circumstance for not declaring the impugned norms void as of the moment of their adoption and instead giving time to the legislator and state institutions for a systemic assessment of the best way for protecting public security, by abiding, inter alia, by the principle of legal equality.

Personal data protection as an element of the right to private life was examined. The DNA profile is one kind of personal data of a natural person. Determination of this profile is a unique method for identifying a person. In those cases, where a person cannot be identified by other methods, determination of the DNA profile may be the only effective means of identification. It was recognised that determination of suspects’ DNA profiles facilitates detection of criminal offences. The DNA profile allows, with a high degree of precision, to identify a person, to establish a person’s presence on the crime scene, as well as connection to previously committed criminal offences or links to other persons. Thus, a database including as many DNA profiles as possible not only helps to investigate more effectively the particular criminal offence but also to detect and prevent other criminal offences. However, in some cases preference should be given to persons’ right to data protection. For example, if the suspect later is exonerated, his DNA profile should be deleted from the database. Two separate opinions have been appended to the judgment. Some procedural and methodological aspects are examined in these opinions.

Judge of the Constitutional Court

A. Laviņš

DNA database

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A person’s right to protection of sensitive data and the state’s right to process such data

JUDGMENT in the name of the Republic of Latvia in the case no. 2015-14-0103 Riga, 12 May 2016 The Constitutional Court of the Republic of Latvia in the following composition: chairman of the hearing of the Court Aldis Laviņš, judges Kaspars Balodis, Gunārs Kusiņš, Uldis Ķinis, Sanita Osipova and Ineta Ziemele, having regard to a constitutional complaint submitted by Lato Lapsa, on the basis of Article 85 of the Satversme [Constitution] of the Republic of Latvia and Article 16(1) and (3), Article 17(1)(11), as well as Article 192 and Article 281 of the Constitutional Court Law, on 6 and 13 April 2016, in a public hearing of the Court examined the case “On the compliance of Article 1(2) and (6), Article 4, Article 10, Article 18(1) of the Law on the Development and Use of the National DNA Database, as well as paras. 2 and 13 of the Cabinet of Ministers Regulations of 23 August 2005 no. 620 “The Procedure of Providing Information to be Included in the National DNA Database, as well as the Procedure for Collecting Biological Material and Biological Trace”, insofar as these apply to suspected persons, with Article 96 of the Satversme of the Republic of Latvia”.

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The facts 1. On 17 June 2004 the Saeima [the Parliament] adopted the Law on the Development and Use of the National DNA Database (hereinafter – the DNA Law), which entered into force on 1 January 2005. It has been amended twice – on 9 March 2006 and on 16 June 2010. Article 1(2) of the DNA Law provides that biological traces are biological material collected at the crime scene, at the place of residence of a missing person, from the victim, person arrested, suspected or accused or clothes thereof, from a corpse, as well as from other types of material evidence; Article 1(6) of the DNA Law provides that comparative samples are the biological material taken from victims, persons arrested, suspected, accused or convicted, from unidentified bodies, biologically close relatives of missing persons (children, parents) to ascertain the source of the biological traces, identify a missing person or an unidentified body. Article 4 of the DNA Law provides that information regarding DNA profiles and that concerning persons, who are suspected, have been accused or have been convicted, regarding unidentified bodies, persons missing in the Republic of Latvia and biological traces are compiled and kept within the National DNA Database. Article 10 of the DNA Law defines what kind of information must be included within the National DNA Database regarding a suspect, person convicted or accused of committing a criminal offence. Article 18(1) of the DNA Law provides that DNA profiles and information about suspected or accused persons, if the criminal proceedings are terminated as a whole or against the particular person on the basis of exonerating circumstances or the decision by which the respective person has been recognised as being a suspect is revoked on the same grounds, as well as in the case, where an exonerating judgment has entered into force, DNA must be stored in the National Database for 10 years as of the day when the Forensic Service Department has received the decision or the judgment, or the aforementioned information is deleted from the National DNA Database after the Forensic Service Department has received a written application from the person concerned (hereinafter – the impugned norms of the DNA Law). Article 1(2) and (6), Article 4 and Article 10 of the DNA Law have been in force in this wording since 6 April 2006 when amendments of 9 March 2006 to the DNA Law entered into force. All the articles referred to above have included reference to suspected persons since the DNA Law entered into force in its initial wording. Article 18(1) of the DNA Law has been in force in this wording since 20 July 2010 when the amendments of 16 June 2010 to the DNA Law entered into force, decreasing the term for storing DNA profiles and information about suspects and accused persons from seventy-five years to ten years. Cabinet Regulations of 23 August 2005 no. 620 “The Procedure of Providing Information to be Included in the National DNA Database, as well as the Procedure for Collecting Biological Material and Biological Trace” (hereinafter – Regulations no. 620) have been adopted on the basis of the DNA Law. Para. 2 of Regulations no. 620 provides: “Biological material shall be collected from close relatives of missing persons, suspects, accused persons, persons on trial or persons convicted for committing a criminal offence and from victims, as well as from unidentified dead bodies and from dead bodies of persons who have died a violent death.” Para. 3 of Regulations no. 620 provides: “Biological traces shall be collected at the crime scene, from the victim or the suspect or clothes thereof, from a corpse,

as well as from other material evidence in the procedure established by the Criminal Procedure Law (hereinafter – impugned norms of Regulations no. 620).” The impugned norms of Regulations no. 620 have been in force in this wording from the moment they were adopted. 2. The petitioner – Lato Lapsa (hereinafter – the Petitioner) – is a natural person why by the decision of an official in charge of criminal proceedings of 17 April 2014 was recognised as being a suspect in criminal proceedings. The official in charge of criminal proceedings had prepared a deed on taking biological material from the Petitioner to determine his DNA profile and to store it in the National DNA Database. The Petitioner refused to give biological material, since the decision including substantiation for taking biological material had not been presented to him. His refusal was recorded in the deed. An administrative violation case for refusal to give biological material pursuant to Article 1752 of the Latvian Administrative Violations Code (hereinafter – LAVC) was initiated. On 24 September 2014 the Riga City Central District Court adopted a judgment terminating the proceedings in the administrative violation case and issuing an oral reprimand to the Petitioner. The Petitioner appealed against this judgment by submitting a complaint in which he alleged that the impugned norms did not establish an obligation of a person to give biological material. The Panel of Criminal Cases of Riga Regional Court rejected the Petitioner’s appeal and upheld the judgment of the Riga City Central District Court. The judgment entered into force on 9 January 2015. On 24 April 2015 a prosecutor of the Department of Criminal Law of the Prosecutor’s General Office, Unit for Investigating Particularly Important Cases, adopted a decision on terminating criminal proceedings, on the grounds that the offence committed by the Petitioner did not comprise elements of crime (see the case materials, vol. 1, p. 30). The Petitioner has turned to the Constitutional Court. He considers that the impugned norms of the DNA Law and the impugned norms of Regulations no. 620 (hereinafter jointly also – impugned norms) have violated his right to privacy, enshrined in Article 96 of the Satversme of the Republic of Latvia (hereinafter – Satversme). The Petitioner, referring to case-law of the Constitutional Court, notes that this right protects the physical and mental integrity of a person, dignity and respect, name and identity, as well as personal data and prohibits ungrounded interference by the state in a person’s private life. The Petitioner alleges that in preparing the draft of the DNA Law neither its compliance with international norms of human rights, nor possible infringements upon persons’ fundamental rights which might arise after adoption of this legal act had been analysed. Likewise, it had not been examined whether the rights of any group of persons included in the draft law were not violated without grounds or disproportionally restricted compared to society’s common interests. Legal acts should be sufficiently clear, so that application thereof “would not create adverse consequences to persons, and so that the persons applying legal acts would understand their own actions clearly”. Allegedly, neither the impugned norms, nor their interpretation in interconnection with the Criminal Procedure Law clearly state what happens in those cases when a person refuses to give biological material. Thus, “consequences may be unpredictable – depending upon interpretation by a particular person applying the law”.

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Allegedly, the fact that a decision could be adopted with respect to the suspect that no elements of crime were found in his actions has not been taken into consideration either. It is not clear to the Petitioner “in what way storing and comparing of an innocent person’s data could facilitate faster resolving of criminal offences”. The Petitioner holds that in the stage of preparing the draft of the DNA Law the particular regulation had been discussed neither with experts and non-governmental organisations, nor international advisors. No public awareness raising measures had been implemented either. Thus, the quality of the law and the legality of the restriction upon fundamental right are questioned. The Petitioner questions the appropriateness of measures chosen by the legislator for reaching the legitimate aim, as well as the proportionality of the restriction upon the fundamental right. The Petitioner admits that the legitimate aim of impugned norms is public safety and protection of other persons’ rights by increasing the number of resolved crimes; however, he doubts whether taking of biological material from suspects had to be envisaged for reaching this aim. Allegedly, taking biological material from convicted persons is well-founded. Society is interested in efficient resolving of criminal offences, and in those instances where a person has been recognised as being guilty by a lawful court judgment that has entered into force, DNA profile could help to resolve a previous criminal offence or criminal offences that might be committed in the future. However, the impugned norms are said to envisage the taking of biological material from all suspects “without any more profound substantiation or criteria”. Allegedly, the impugned norms place the Petitioner in an equal situation with a person, “who is caught at the crime scene”. In the Petitioner’s situation a decision had been adopted that his actions did not comprise characteristics of a criminal offence, and the criminal proceedings had been terminated. If the Petitioner had allowed taking of biological material, then, to his mind, a situation would occur that data of an innocent person were used in comparison necessary for resolving criminal offences. Refusal to give biological material, in its turn, had led to adverse consequences – record keeping with regard to an administrative violation had been initiated, as the result of which the court had issued oral reprimand to him. If the impugned norms did not provide for taking of biological material from all suspects and storing personal data thereof within the National DNA Database, the Petitioner would not have incurred these adverse consequences. In situation like this, applying any kind of sanctions to a person, who has not been recognised by a court’s judgment as being guilty, is said be a disproportional restriction upon fundamental rights of this person. The Petitioner considers that the legitimate aim could be reached by measures less restrictive upon a person’s rights. Taking of biological material from suspects should at least be restricted by certain conditions that should be met or the existence of which should be verified before biological material is taken. Such conditions could be an order by the head of the investigative institution, reasoned decision by the official in charge of criminal proceedings, decision by a supervisory institution or a decision by the investigative judge. Likewise, a pre-requisite for taking biological material could be suspicion regarding committing of a particular type of criminal offence or the severity of potential sanctions. The impugned norms are said to be incompatible with the principle of proportionality, since they, allegedly, do not ensure a reasonable balance between the interests of a person and those of society. Violation of private life caused by taking of biological material from all suspects for determining DNA profile and storing in the National DNA Database is said to be disproportional.

At the hearing of the Court Valērijs Ickevičs, the Petitioner’s representative, did not agree the view of the Saeima and the Cabinet of Ministers that the impugned norms had not been applied to the Petitioner. He underscored that they had caused an infringement upon the Petitioner’s fundamental rights, since it had been recognised that his actions comprised elements of an administrative violation. Record keeping with regard to an administrative violation is to be equalled to criminal proceedings, with respect to consequences caused to a person. V. Ickevičs referred to the case-law of the European Court of Human Rights (hereinafter – ECHR), emphasizing that only the suspect himself could assess in full how severe the influence of such record keeping had been upon his psychological and emotional state. The Petitioner requested the Constitutional Court to recognise the impugned norms as being invalid as of the date they entered into force. 3. The institution which has adopted the impugned act – the Saeima – considers that the impugned norms comply with Article 96 of the Satversme and that legal proceedings in the case should be terminated. The Saeima points out that the impugned norms are not applicable to the Petitioner. Allegedly, none of the impugned norms defines the grounds for taking biological material. Requiring of expert examination and performance of other investigative activities within criminal proceedings, as well as taking the biological material required for performing such actions is said to be defined by the Criminal Procedure Law, not by the impugned norms, The Petitioner had not contested the norms of the Criminal Procedure Law that define the grounds for taking comparable samples from suspects. The Petitioner is said to contest, in fact, the grounds for taking biological material, i.e., legal regulation that allows determining DNA profiles of suspects and storing thereof in the National DNA Database. The Saeima recognises that the impugned norms infringe upon the right to private life of these persons, guaranteed in Article 96 of the Satversme; however, it holds that the infringement is proportional. Ilze Tralmaka, the representative of the Saeima, stated at the hearing of the Court that biological material from suspects in criminal proceedings is not taken “automatically”, solely on the basis of these persons’ status in criminal proceedings. The official in charge of criminal proceedings is obliged to make a case-by-case assessment and require DNA expert examination only if it is necessary. Thus, DNA profiles that have been obtained on the basis of decisions by officials in charge of criminal proceedings are compiled and stored in the National DNA Database. Allegedly, the Petitioner has not used all general legal remedies that would allow resolving the restriction of his fundamental rights upon its merits. I.e., he had not exercised the right envisaged in the Criminal Procedure Law to contest the validity of the investigator’s decision to take biological material for performing DNA expert examination by submitting a complaint to the supervising prosecutor. Three stages are to be distinguished in the procedure for determining DNA – taking of the biological material, genetic analysis thereof and storing of DNA profile in the National DNA Database. A person who considers that his rights have been infringed upon within the particular stage may submit a complaint for each of these stages to the supervisory prosecutor or a higher standing prosecutor. The Petitioner had not complained about the infringement upon his rights in any of the stages in this procedure. Likewise, it cannot be established that the impugned norms would cause a legal situation that could be recognised as being “of particular importance and requiring an

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urgent solution”. The administrative violation case with respect to the Petitioner has been terminated and, thus, it had not caused adverse consequences to him. A reprimand by the court cannot be recognised as an administrative sanction and does not cause to the Petitioner so severe adverse consequences that could be the grounds for initiating legal proceedings at the Constitutional Court. The Saeima considers that the impugned norms had been worded sufficiently clearly, allowing a person, in case of necessity seeking appropriate advice, to understand the content of rights and obligations following therefrom and to predict the consequences of the application of the norms. The addressees of the DNA Law are said to be, basically, persons who “ensure criminal proceedings and are linked to maintenance of the DNA National Database”. The official in charge of criminal proceedings or members of investigative team in criminal proceedings who have acquired appropriate education and apply legal norms in their everyday work, should not construe the impugned norms in a way that would allow “automatic collection of biological material from all suspects”. The Saeima holds that a “problem of interpretation” of the impugned norms has occurred in the case under review, that it is not systemic, and should be resolved by “explaining the interpretation of the norm to the persons applying the norm”. The legitimate aim of the restriction is said to comply with provisions of Article 116 of the Satversme – public security and protection of other persons’ rights. DNA profiles that are included in the National DNA Database are used to resolve and prevent criminal offences. The established restriction is said to be appropriate for reaching the legitimate aim. The usefulness of data stored in the National DNA Database in resolving criminal offences is said to be significant. Allegedly, there are no alternative and more lenient measures to storing DNA profiles of suspects. The only issue that could be considered would be the term for storing the DNA profiles of such persons; however, setting the term falls within the legislator’s competence. The current term for storing DNA profiles – 10 years – has been established by taking into consideration the statutory limitation periods for criminal liability, possibilities to prove in the future faster and in a more effective way the guilt or innocence of a person and the need to make the work of law enforcement institutions in resolving criminal offences easier. The Saeima holds that the established term is valid. The DNA Law sets out the obligation of the state to delete the data stored in the National DNA Database upon receiving a person’s application in writing. Thus, it could be considered that, if those persons who have been exonerated after the criminal proceedings have been terminated, or whose status of a suspect has been revoked, do not use this opportunity, are storing their data in the National DNA Database voluntarily. The Saeima underscores that combatting crime in public interests is not only the right of the state, but also its positive obligation. Hence, the benefit gained by society exceeds the damage inflicted upon an individual. The restriction upon an individual’s rights is said to be relatively minor. The state has envisaged safeguards against abuse of data, and a person has been granted the possibility to achieve that his data are deleted from the National DNA Database in a fast and simple way. Thus, the legislator has ensured a reasonable balance between public interests and a person’s right to private life, hence, the impugned norms are said to be proportional. The DNA profile which is obtained from suspect’s biological material and included in the National DNA database, is to be linked with a particular, identified natural person and therefore recognised as personal data in the meaning of Personal Data Protection

Law (hereinafter – Data Protection Law). The Saeima holds that sensitive personal data, i.e., information about a person’s race or state of health, including information about hereditary diseases or genetic particularities, are not stored in the National DNA Database. Therefore, allegedly, the restriction established by the impugned norms does not affect a person’s right to enjoy his fundamental rights effectively, nor any other aspects that are important for a person’s existence or identity. 4. The institution which has adopted the impugned act – the Cabinet of Ministers – considers that the impugned norms comply with Article 96 of the Satversme. The Cabinet indicates that the application does not substantiate the existence of a restriction. The impugned norms do not define an obligation “to take and to give a sample of biological material” and therefore, allegedly, do not cause a direct restriction to the Petitioner. The ruling on not applying an administrative sanction to the Petitioner is said not to be linked to the DNA Law or Regulations no. 620, but to the failure to perform an obligation defined in the Criminal Procedure Law. Moreover, the Petitioner’s biological material was not taken, and, thus, his fundamental rights have not been infringed upon. The Petitioner, allegedly, has not exhausted general legal remedies. Appealing against a court’s ruling is not to be recognised as exhausting those general legal remedies which in the circumstances of the particular case should be considered as being effective. The Petitioner has not used the legal remedies envisaged in the Criminal Procedure Law. I.e., he did not turn to the supervising prosecutor or a higher-standing prosecutor with a complaint about the official’s in charge of criminal proceedings “decision to take a sample of biological material for comparative examination”. The Cabinet holds that these legal remedies were available to the Petitioner and would have been able to ensure effective protection of his rights. The legitimate aim of storing information about suspects’ DNA and other information is resolving criminal offences and providing proof thereof, or public security, as well as protection of national security. The Petitioner’s statements regarding the lack of clarity of the norms of the DNA Law and of Regulations no. 620 are said to be unsubstantiated. The impugned norms are said to comprise a clear, understandable, and predictable regulation on taking biological material of suspects in criminal proceedings, determining DNA profiles, as well as on rules of storage. At the hearing of the Court Vilnis Vītoliņš, the Cabinet’s representative, agreed to the opinion expressed by the Saeima’s representative that the DNA Law should be interpreted in a way that only those DNA profiles that have been determined as the result of investigative activities within criminal procedure should be collected in the National DNA Database. The right to take biological material and the obligation to give it is regulated by the Criminal Procedure Law. The decision on taking biological material is adopted on the basis of information about the facts that attest the person’s connection with the particular criminal offence. Information about a person’s DNA profile may be included in the National DNA Database only in those cases where the official in charge of criminal proceedings has adopted a decision on taking biological material. The official in charge of criminal proceedings also has the possibility to abstain from taking biological material. Thus, individualised assessment of the necessity to take a sample of biological material is ensured within the framework of each criminal case. The validity of actions taken by the official in charge of proceedings is supervised by an unbiased and independent official – a prosecutor, who has the right to respond

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to breaches by institutions of pre-trial investigation and to adopt binding decisions. Moreover, a person, whose rights or lawful interests have been violated, has the right to submit a complaint about actions taken by the official in charge of proceedings. Storing of information about suspects’ DNA profiles helps to reach the legitimate aim and therefore is appropriate for reaching it. Resolving of criminal offences is said to depend upon the volume of information that investigative institutions have at their disposal. Excluding suspects from the group of those persons whose DNA profiles can be determined and stored in the National DNA Database would decrease the effectiveness of preventing, resolving and proving criminal offences. Allegedly, it is impossible to reach the legitimate aim as effectively by measures that are less restrictive upon a person’s rights. Each measure aimed at resolving and proving criminal offences is said to be unique, and these measures cannot be compared and “assessed as being less restrictive”. The range of respective measures for combatting crime should ensure as effective prevention, resolving and proving of committed and possible future criminal offences as possible. DNA profile and other information referred to in Article 10 of the DNA Law in general are to be recognised as the personal data of a natural person, insofar this information allows identifying a particular natural person. The storage of data included in the National DNA Database complies with the provisions of the law On State Information Systems and the Personal Data Protection Law (hereinafter – the Data Protection Law). Arbitrary or automated retrieval of information from the National DNA Database is said to be impossible. Moreover, the subject of a DNA profile is made anonymous by a system-produced encoding, therefore the possibility to identify the respective person by the DNA profile is excluded. The data subject has been ensured the possibility to choose – to allow storing information about his DNA profile in the National DNA Database for 10 years or to request an immediate deletion of the DNA profile. Thus, the data subject is not placed in a situation that is more unfavourable compared to persons who have not been recognised as being suspects. A similar regulation on collecting biological material from suspects and storing DNA data is said to be in force also in Belgium, France, Lithuania, Norway, and Spain. The damage inflicted upon an individual’s rights is said to be smaller that the public benefit, and, thus, the impugned norms are said to be proportional. The representative of the Cabinet at the hearing of the Court joined the opinion that the case should be terminated, since no restriction of fundamental rights could be established and the Petitioner in the particular situation had failed to use all effective and real legal remedies. […]

The motives 13. The Saeima, the Cabinet and the Ministry of Justice have referred to findings by the Constitutional Court and express the opinion that the impugned norms do not cause a direct and concrete restriction of the Petitioner’s fundamental rights defined in Article 96 of the Satversme and, thus, the proceedings in the case should be terminated. The proceedings in the case should be terminated also because the Petitioner, allegedly, has not used all the effective general legal remedies. If arguments have been provided that could serve as the grounds for terminating the proceedings in a case, the Constitutional Court must examine these (see, for example,

the judgment of the Constitutional Court of 19 October 2011 in the case no. 2010-71-01, para . 1). 14. To establish whether legal proceedings in the case under review should be continued the Constitutional Court will verify: 1) whether the impugned norms pertain to such fundamental rights of the Petitioner that have been defined in Article 96 of the Satversme; 2) whether a direct and concrete restriction of the Petitioner’s fundamental rights exists; 3) whether the pre-requisites defined in law regarding use of general legal remedies and terms for submitting the constitutional complaint have been met (see, for example, the judgment of the Constitutional Court of 10 May 2013 in the case no. 2012-16-01, para. 16.4). 15. To examine whether the impugned norms pertains to the Petitioner’s fundamental rights defined in Article 96 of the Satversme the Constitutional Court must, first, establish the scope of this Article. 15.1. Article 96 of the Satversme provides that everyone has the right to inviolability of his or her private life, home, and correspondence. The right to private life means that an individual has the right to his own private space, suffering minimum interference by the state or other persons. A finding has been enshrined in the case law of the Constitutional Court that the right to inviolability of private life protects a person’s physical and mental integrity, honour, and dignity, name and identity, personal data (see the judgment of the Constitutional Court of 26 January 2005 in the case no. 2004-17-01, para. 10, the judgment of 11 May 2011 in the case no. 2010-55-0106, para 10.2, and the judgment of 14 March 2011 in the case no. 2010-51-01, para. 13). Article 89 of the Satversme provides that the state recognises and protects fundamental human rights in accordance with the Satversme, laws and international agreements binding upon Latvia. It follows from this Article that the legislator’s aim is to harmonise the human rights provisions included in the Satversme with international legal provisions. International human rights provisions that are binding upon Latvia and the practice of application thereof on the level of constitutional law serve as a means of interpretation to define the content and scope of fundamental rights and principles of a state governed by the rule of law, insofar they do not cause decrease or restriction of fundamental rights included in the Satversme (see the judgment of the Constitutional Court of 13 May 2005 in the case no. 2004-18-0106, para. 5 of the motives part). In interpreting Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter – the Convention), the ECHR has recognised that the concept of “private life” has broad scope. Collection and storing of personal data fall within the scope of the right to inviolability of private life (see the judgment of the Grand Chamber of the ECHR of 16 February 2000 in the case “Amann v. Switzerland”, application no. 27798/95, para. 65, and the judgment of 4 December 2008 in the case “S. and Marper v. the United Kingdom”, applications no. 30562/04 and no. 30566/04, paras. 68 and 69). Inviolability of private life and protection of personal data have been enshrined also in Articles 7 and 8 of the European Union Charter of Fundamental Rights. The Constitutional Court finds that collection, processing and storing of data that characterise a person’s physical and social identity fall with the scope of a person’s right to inviolability of personal life.

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Thus, the right to inviolability of personal life enshrined in Article 96 of the Satversme comprises protection of the personal data of a natural person. 15.2. In the case under examination when the Petitioner was recognised as being a suspect in criminal proceedings a deed was drawn up on taking biological material for inclusion into the National DNA Database. The Constitutional Court must establish whether the suspect’s biological material which is taken for genetic analysis of DNA and the DNA profile stored in the National DNA Database are data of a natural person and, thus, fall within the scope of Article 96 of the Satversme. Pursuant to Article 1(1) of the DNA Law biological material is parts of human tissue or organs or body fluids, which contain cells with deoxyribonucleic acid un the nuclei thereof (for example, blood, saliva, bones). Article 1(3) of the DNA Law provides that DNA is the part of the deoxyribonucleic acid molecule which indicates the genetic information of identifying features of a human. Genetic analysis of DNA is analysis of biological material to determine DNA profile. Article 1(4) of the DNA Law provides that DNA profile is a computer-readable result of the genetic analysis of DNA. Definition of a natural person’s data is included in the Data Protection Law. Pursuant to Article 2(3) of this Law, personal data is any information related to an identified or identifiable natural person. Biological material which is taken from a person drawing up a deed thereon, the sample form of which is included in Annex 1 to Regulations no. 620, comprises DNA data of a concrete (already identified) person. Upon analysis of the collected biological material, a person’s DNA profile is determined and included for storage into the National DNA Database. Thus, throughout the process of determining DNA profile, data of an identified person are handled. Therefore, both the biological material of an identified person, as well as the new units of information created in the process of analysis, inter alia, also the outcome of genetic analysis of DNA (DNA profile) stored in a particular format (computer readable) are to be recognised as the personal data of a natural person in the meaning of the Data Protection Law and Article 96 of the Satversme. 15.3. Pursuant to Article 2(8) of the Data Protection Law sensitive personal data are personal data, which indicate the race, ethnic origin, religious, philosophical or political convictions, or trade union membership of a person, or provide information as to the health or sexual life of a person. The Constitutional Court has recognised that these data indicated in the Data Protection Law, essentially, comply with the data of special categories regulated by Article 8 of Directive of the European Parliament and of the Council of 24 October 1995 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data (see the judgment of the Constitutional Court of 14 March 2011 in the case no. 2010-51-01, para. 13). The finding that an individual’s DNA profile are sensitive personal data has been consolidated also in the case law of ECHR (see the judgment of the Grand Chamber of ECHR of 4 December 2008 in the case “S. and Marper v. the United Kingdom”, applications no. 30562/04 and no. 30566/04, paras. 75 and 76). In all cases DNA profile is determined with the aim of identifying a concrete person or a link between several persons. The fact that only part of information that biological material comprises is used in the process of determining DNA profile does not substantially influence recognition of DNA profile as being sensitive personal data (see ibid., para . 3). Neither the fact that DNA profile is a computer readable outcome of genetic analysis of DNA that cannot be used without applying appropriate information

technology influences recognition of DNA profile as being sensitive personal data (see ibid., para. 75). Thus, biological material of an identified person, which is collected and analysed in the process of determining DNA profile, as well as DNA profile are a natural person’s personal data requiring special protection. 15.4. Article 10(4) and Article 12 of the Data Protection Law define the general principles according to which personal data of a natural person are processed for the needs of criminal proceedings. These norms provide that personal data, which relate to criminal offences, conviction in criminal cases and in cases of administrative violations, or to court rulings or court file materials, may be processed for the needs of criminal proceedings. the Data Protection Law is applicable also to processing of a natural person’s personal data for purposes that have not been initially envisaged in the field of criminal law, inter alia, for the following purposes: to prevent immediate significant threat to public safety; to detect criminal offences and to carry out criminal prosecution. Legal grounds for processing sensitive personal data of a natural person have been defined in Article 11 of the Data Protection Law, providing that processing of sensitive personal data is prohibited, except cases referred to in this Article. Para. 11 of this Article permits processing of sensitive personal data, when performing functions of public administration or establishing state information systems laid down in the law. The National DNA Database has the status of a state information system. Thus, in the framework of criminal proceedings processing of both non-sensitive personal data of a natural person and of sensitive data is permitted. Thus, both the biological material of a suspect and his DNA profile are personal data of a natural person that fall within the scope of Article 96 of the Satversme and, in view of their sensitive nature, require special protection. 16. To assess, whether a direct and concrete violation of the Petitioner’s fundamental rights exists, the scope of the impugned norms should be defined and it must be established, whether the impugned norms pertain to the Petitioner’s situation, and verified, whether the impugned norms have caused an infringement upon fundamental rights. 16.1. The Petitioner contests compliance of Article 1(2) and (6), Article 4, Article 10, Article 18(1), as well as of paras. 2 and 13 of the Regulations no. 620 with Article 96 of the Satversme, insofar these norms provide that biological material for determining DNA profile and for storing in the National DNA Database should be taken from all suspects. The Constitutional Court has recognised that it must, within the limits of its jurisdiction, establish the purpose and the true meaning of the contested norm and of other legal norms closely linked thereto (see the judgment of the Constitutional Court of 20 October 2011 in the case no. 2010-72-01, para. 12). Hence, the Constitutional Court must establish the scope of the impugned norms. 16.1.1. At the court hearing different opinions were expressed as to whether the impugned norms envisaged taking the suspect’s biological material for determining DNA profile only, if the official in charge of the proceedings had adopted a decision on the necessity to determine it for clarification of some circumstances of the case, or whether biological material is taken from all persons, who have been granted the status of a suspect. The Saeima and the Cabinet at the court hearing upheld the opinion that in each particular case the official in charge of criminal proceedings adopted a decision on taking

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a suspect’s biological material for determining DNA profile and storing in the National DNA Database (see the transcript of the hearing of the Constitutional Court of 6 and 13 April 2016, the case materials, vol. 2, p. 87). The Ministry of Justice also expressed the opinion that the official in charge of criminal proceedings had to assess in all cases whether determining of DNA profile was necessary in the particular case (see the transcript of the hearing of the Constitutional Court of 6 and 13 April 2016, the case materials, vol. 3, p. 12). Written replies by the Prosecutor’s General Office and the State Police included arguments related to pre-requisites for taking a suspect’s biological material for the purpose of comparative analysis (see the case materials, vol. 1, pp. 106 and 126), but did not analyse the facts of the case under examination. At the court hearing representatives of the State Police and the Prosecutor’s General Office added to the opinions expressed in writing by noting that in those cases, where a suspect’s biological material is taken for the purpose of including his DNA profile in the National DNA Database, without requiring expert examination un the particular case, the prerequisite for applying the impugned norms is the status of the respective person in criminal proceedings and the provisions of the DNA Law (see the transcript of the hearing of the Constitutional Court of 6 and 13 April 2016, the case materials, vol. 2, p. 130, and vol. 3, p. 27). The summoned person A. Lieljuksis upheld this interpretation of the impugned norms (see the case materials, vol. 1, p. 117). This interpretation was approved also by the summoned person A. Bitāns (see the case materials, vol. 1, p. 136). Pursuant to Article 13 of the DNA Law, taking of biological material, as well as timely provision of the Forensic Services Department with information for inclusion within the National DNA Database in accordance with the procedures specified by the Cabinet is ensured by investigative institutions, the Prison Administration, prosecutor’s offices, courts, and institutions or medical treatment or medical practitioners. These institutions and persons are responsible for taking biological material, as well as for timely provision of information and conformity of such information with certifying documents thereof. Article 12(142) of the law “On Police”, in turn, provides that a police officer, in performing the duties assigned to him, in conformity with the competence of the service, has the right to collect biological material in the procedure defined by regulatory legal acts on establishment and use of the National DNA Database. The fact that the DNA Law defines the obligation of investigative institutions, but the law “On Police” – the rights of investigative institutions to perform activities for identifying persons, inter alia, to take biological material of suspects, was confirmed at the court hearing by the representatives of the State Police and the Prosecutor’s General Office, as well as by the Ministry of Justice and by A. Lieljuksis (see the transcript of the hearing of the Constitutional Court of 6 and 13 April 2016, the case materials, vol. 2, p. 138, and vol. 3, pp. 16, 27 and 63). The case under examination contains materials revealing that the senior inspector of the Security Police had testified in the sitting of the first instance court that all police institutions have the obligation to take “a DNA sample” of a suspect. Allegedly this is done on the basis of Regulations no. 620, which has been issued in compliance with the DNA Law. The witness had noted that “collection of DNA samples is not linked to the particular criminal proceedings in which Lato Lapsa has been recognised as being a suspect” (see the case materials, vol. 1, p. 24). The impugned Article 1(6) of the DNA Law provides that comparative samples are the biological material taken from, inter alia, suspected persons to ascertain the source of the biological traces, identify a missing person or an unidentified body (see the transcript

of the hearing of the Constitutional Court of 6 and 13 April 2016, the case materials, vol. 2, p. 147, and vol. 3, pp. 1 and 3). Thus, in the Petitioner’s situation, the official in charge of criminal proceedings performed the obligation defined in the DNA Law to collect biological material from the suspect for determining is DNA profile and it was necessary for creating the National DNA Database. 16.1.2. Pursuant to provisions of the Article 2 of the DNA Law, the purpose of this Law is to establish the National DNA Database to be used to disclose criminal offences, to search for missing persons and to identify unidentified bodies (human remains), as well to determine and regulate the exchange of the results of DNA genetic analysis with foreign states and international organisations. Article 4 of the DNA Law, in turn, provides, that information regarding DNA profiles and that concerning persons, who are suspected, have been accused or have been convicted, regarding unidentified bodies, persons missing in the Republic of Latvia and biological traces is compiled and stored within the National DNA Database. I. Tralmaka, the representative of the Saeima, at the hearing of the Court expressed the opinion that the purpose of the DNA Law should be understood as compiling in a united database those DNA profiles that have been determined in performing investigative activities of criminal procedural nature (see the transcript of the hearing of the Constitutional Court of 6 and 13 April 2016, the case materials, vol. 2, pp. 94 and 102). This opinion was substantiated by the points made in annotation to the draft the DNA Law. This was upheld by representatives of the Cabinet and the Ministry of Justice. A. Lieljuksis underscored at the hearing of the Court that the purpose of the DNA Law should interpreted as being broader than just compiling the data obtained in the framework of investigative activities of criminal procedural nature. Information included in the National DNA Database was said to facilitate detection of as many criminal offences as possible, without limiting itself to just one criminal proceedings. Essentially, this opinion was upheld also by the representative of the State Police, O. Bergere, Head of the Unit for DNA Expert Examination at the Forensic Services Department of the State Police, and the representative of the Prosecutor’ General Office. O. Bergere explained that information stored in the National DNA Database was regularly shared with foreign countries in the framework of Prüm system (see the transcript of the hearing of the Constitutional Court of 6 and 13 April 2016, the case materials, vol. 2, p.2). Article 4 of the DNA Law clearly defines stages in determining DNA profile, i.e., collecting and storing of information. In interpreting this norm, it should be taken into consideration that Regulations no. 620, issued on the basis of the DNA Law, regulates taking of biological material, because without it DNA genetic analysis objectively would be impossible. Regulations no. 620 regulates actions by officials in all cases, when a person’s biological material has to be taken, inter alia, defines the procedure for taking it, for drawing up a deed, the sample form of which has been included in Annex 1 to Regulations no. 620, as well as for providing information to the Forensic Services Department of the State Police. The impugned para. 2 of Regulations no. 620 defines categories of those persons, from whom biological material must be taken (providers of the sample), defining, inter alia, suspects as one of these categories. Thus, taking of biological material, although is not directly indicated in the DNA Law Article 4 as a separate activity, is one of the stages in determining DNA profile.

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Article 10 of the DNA Law sets out what kind of information about a person suspected of committing a criminal offense should be included in the National DNA Database. Thus, this norm defines elements in the data unit of a natural person to be included and stored in the National DNA Database. Article 18(1) of the DNA Law, in turn, defines the period of storing DNA profiles and information about suspects in the National DNA Database in case if criminal proceedings are terminated as a whole or against the particular person on exonerating grounds, or the decision by which the respective person has been recognised as a suspect is revoked on the same grounds, or if an exonerating judgment has entered into force. This norm also provides in which case information from the National DNA Database is to be deleted, if an application regarding deleting the information in writing has been received from the respective person; however, if such application has not been received, the DNA profile and information are stored in the National DNA Database for 10 years from the day the Forensic Services Department has received the particular decision or judgment. At the hearing of the Court, contrary to the opinion expressed by the Saeima and the Cabinet, representatives of the State Police and the Prosecutor’s General Office, as well as A. Lieljuksis stated that Article 1(6), Article 4, Article 10, Article 18(1) of the DNA Law, as well as para. 2 of Regulations no. 620 created a uniform regulation on collecting and storing DNA profiles of suspects in the National DNA Database (see the transcript of the hearing of the Constitutional Court of 6 and 13 April 2016, the case materials, vol. 2, p. 133, and vol. 3, pp. 35 and 70). The purpose of the DNA Law is to establish the National DNA Database, which is to be used for resolving any criminal offence. The Constitutional Court recognises that in a case, where DNA profiles of suspects are determined with the aim of investigating a particular criminal offence, on the basis of a decision adopted by an official in charge of criminal proceedings, the aim of the DNA Law would be reached only partially; i.e., possibly a larger part of DNA profiles would not be used for resolving other criminal offences. Thus, considering the purpose of the DNA Law and opinions expressed at the court hearing concerning application of impugned norms, in particular, concerning data exchange and cooperation with foreign countries, such interpretation of the impugned norms that allows taking biological material necessary for determining DNA profile from all subjects defined in Article 13 of the DNA Law – the persons who have been granted the status of a suspect in criminal proceedings, should be recognised as being compatible with reaching the purpose of the DNA Law. Thus, Article 1(6), Article 4, Article 10 and Article 18(1) of the DNA Law, as well as para. 2 of Regulations no. 620 form a united legal regulation, which is the basis for taking biological material from a suspect for determining his DNA profile an storing it in the National DNA Database. 16.2. The impugned Article 1(2) of the DNA Law provides that biological traces are biological material collected at the crime scene, inter alia, suspected or accused or clothes thereof, as well as from other types of material evidence. The impugned para. 13 of Regulations no. 620, in turn, provides that biological traces are to be collected at the crime scene, from the victim or the suspect or clothes thereof, as well as from other material evidence in the procedure established by the Criminal Procedure Law. It was established at the court hearing that the provisions of Article 1(2) of the DNA Law and para. 13 of Regulations no. 620 had not been applied in the Petitioner’s case.

I.e., in the particular criminal proceedings, where the Petitioner was recognised as being the suspect, traces of biological material were not taken and the decision on determining the source of biological traces for investigative purposes was not adopted. Thus, Article 1(2) of the DNA Law and para. 13 of Regulations no. 620 are not applicable to the Petitioner’s situation. Therefore, legal proceedings in the part of the claim regarding the compliance of Article 1(2) of the DNA Law and Para 13 of Regulations no. 620 with Article 96 of the Satversme are to be terminated pursuant to Article 29(1)(3) of the Constitutional Court Law. 16.3. In verifying whether such circumstances exist due to which examination of the case should be continued regarding compliance of Article 1(6), Article 4, Article 10 and Article 18(1) of the DNA Law, as well para. 2 of Regulations no. 6290 (hereinafter in the text of the Judgment the term “impugned norms” are used to denote only these norms) with Article 96 of the Satversme the Constitutional Court must verify whether the impugned norms have caused an infringement in the Petitioner’s situation. To differentiate between cases when a person submits a constitutional complaint with the purpose of defending his rights and cases where a person does it for the interests of the public, for example, to protect other persons’ rights or for reaching political, scientific or other aims, it is not enough to establish that a person belongs to a group to which the legal norm applies. A person must credibly demonstrate that the adverse consequences caused by the legal norm infringes upon his fundamental rights (see the judgment of the Constitutional Court of 10 May 2013 in the case no. 2012-16-01, para. 22.1). The Saeima, the Cabinet and the Ministry of Justice are of the opinion that the Petitioner’s fundamental rights have not been infringed upon, because he refused to give his biological material for determination of DNA profile. At the court hearing the Saeima maintained the opinion that the Petitioner had not provided arguments showing that each of the impugned norms had been applied to him, causing an infringement upon rights (see the transcript of the hearing of the Constitutional Court of 6 and 13 April 2016, the case materials, vol. 2, p. 88). The Cabinet and the Ministry of Justice upheld the Saeima’s opinion. The Constitutional Court has already established that the case materials contain a deed that proves that the Petitioner had had to give biological material for its genetic analysis, for determining the DNA profile and for storing in the National DNA Database (hereinafter – procedure for determining DNA profile). The Petitioner delayed the initiated procedure for determining DNA profile, being of the opinion that it infringed upon his fundamental rights. Record keeping for an administrative violation for refusal to give biological material was initiated against the Petitioner in accordance with LAVC Article 1752. The court, in assessing the Petitioner’s behaviour, has recognised that he had the obligation “to participate in establishing the National DNA Database” (see the case materials, vol. 1, p. 24). The record keeping in the case of administrative violation has not been terminated on exonerating grounds. It has been recognised that the Petitioner’s behaviour contains elements of violation and he has been orally reprimanded. It has been recognised in the case law of the Constitutional Court: to ensure that the rights guaranteed to an individual in the Satversme are effectively protected, the Constitutional Court must examine their actual application (see the judgment of the Constitutional Court of 21 October 2009 in the case no. 2009-01-01, para. 11.3). Moreover, the Constitutional Court has recognised that in the presence of any doubt

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concerning possibilities to terminate legal proceedings, the Court has ex officio obligation to examine the case on its merits and to provide an assessment as extensive as possible on whether the Petitioner’s fundamental rights have not been violated (see the judgment of the Constitutional Court of 19 November 2009 in the case no. 2009-09-03, para. 10). There is no dispute in the case whether para. 2 of Regulations no. 620 was applied to the Petitioner, since he had the status of a suspect. Thus, the Petitioner belonged to the identified group of subjects, to which the impugned norms were applied as a united regulation. The Constitutional Court noted that ECHR has emphasized the special risks and far-reaching consequences of storing biological material and DNA profile, in view of the fact that the respective sensitive information can actually be used at any time in the future (see the judgment of the Grand Chamber of ECHR of 4 December 2008 in the case “S. and Marper v. the United Kingdom”, applications no. 30562/04 and no. 30566/04, para. 69). Considering the nature of these data, requiring special protection, the fact that the Petitioner succeeded in unlawfully avoiding application of the impugned norms as united legal regulation dos not mean that he has not entered the scope of these norms. Moreover, the Petitioner had been in a legal situation that had caused adverse consequences to him; i.e., it was recognised that he had committed an administrative violation. Thus, the impugned norms have caused an infringement upon the Petitioner’s fundamental rights. 17. To verify, whether the Petitioner has used all possibilities to defend his rights by general legal remedies, the Constitutional Court shall determine whether all effective and real legal remedies have been used. The Saeima, the Cabinet and the Ministry of Justice underscored that Article 336(1) of the Criminal Procedure Law granted to the person, whose rights or lawful interests had been infringed upon in criminal proceedings, the right to submit a complaint regarding the action or decision by the official in charge of criminal proceedings. Allegedly, the Petitioner did not use this possibility. At the court hearing the representative of the State Police upheld the opinion that a person had the right to complain about the action or decision by the official in charge of criminal proceedings; however, he noted that in the particular situation a complaint like this would not be effective. Since administrative record keeping was initiated for refusal to give biological material, within the framework of it the Petitioner had had the possibilities to defend his rights (see the transcript of the hearing of the Constitutional Court of 6 and 13 April 2016, the case materials, vol. 2, p. 137). The representative of the Prosecutor’s General Office upheld this opinion (see the transcript of the hearing of the Constitutional Court of 6 and 13 April 2016, the case materials, vol. 3, p. 43). The Petitioner has defended his rights within the framework of record keeping regarding an administrative violation. Although the court has recognised the Petitioner’s violation as being insignificant and has not applied sanctions, the Petitioner has appealed by submitting a complaint. He has expressed the opinion in it that “no regulatory enactment defines the obligation to give biological material to any institution […], neither to provide assistance in establishing the National DNA Database” (see the case materials, vol. 1, p. 26). The court has not recognised this opinion as being substantiated. Both court instances have recognised that the demand by a police official to give biological material for determining the DNA profile and storing it in the National DNA Database had been lawful. The court held that examination of the DNA Law and Regulations no.

620, issued on the basis thereof, did not fall within its jurisdiction. None of the court instances had found grounds for turning to the Constitutional Court to verify, whether the restriction upon fundamental rights that followed from the impugned norms complied with the Satversme. The Constitutional Court has recognised that constitutional complaint has been created as a subsidiary legal remedy. Abiding by the principle of subsidiarity, only real and effective possibilities to protect fundamental rights that have been infringed upon must be exhausted, and not just any possible legal remedies that in any way could pertain to the applicant’s situation (see the judgment of the Constitutional Court of 19 October 2011 in the case no. 2010-71-01, para . 4). The ECHR has also underscored that requirements of the subsidiarity principle must be applied in a flexible way, avoiding excessive formalism (see, for example, the judgment of the ECHR of 18 January 2007 in the case “Estrikh v. Latvia”, application no. 73819/01, paras. 93 and 94). Since the impugned norms form a united regulation, pursuant to this regulation the procedure of determining DNA profile consists of a number of subsequent stages – taking the suspect’s biological material, analysis of DNA to determine DNA profile and storing the DNA profile in the National DNA Database. The Constitutional Court holds that in the case under review the fact that the impugned norms do not envisage the possibility for interrupting the procedure of determining DNA profile in any of its stages as being significant. Therefore it cannot be recognised that effective legal remedies would be accessible to a person in all stage of determining DNA profile. In the Petitioner’s situation the dispute occurred at the moment when taking of biological material was initiated, and this dispute was examined in the framework of record keeping regarding an administrative violation. The Constitutional Court notes that the opinion held by the Saeima and the Cabinet that the Petitioner in the particular circumstances, in addition to the record keeping that had been initiated, had to contest the action or decision by the official in charge of criminal proceedings, in order to recognise formally that he had used all possible legal remedies to protect his rights, is unfounded. The case contains materials that prove that two purposes of determining a person’s DNA profile can be differentiated between. In the case, where the suspect’s DNA profile is determined only to be stored in the National DNA Database, but is not necessary for conducting investigatory activities, no criminal procedural regulation on the suspect’s obligations and rights in connection thereto has been established. In the Petitioner’s Case, within the framework of record keeping regarding administrative violation, it was possible to examine on its merits both the legality of an official’s demand and to examine compliance of the impugned norms with the Satversme. Thus, in the circumstances of the particular case the Petitioner has used all effective and real general legal remedies. Therefore, legal proceedings in the part regarding compliance of Article 1(6), Article 4 and Article 10 and Article 18(1) of the DNA Law, as well as para. 2 of Regulations 620 with Article 96 of the Satversme must be continued. 18. The impugned norms envisage collecting and storing sensitive personal data in the National DNA Database. Thus, the impugned norms comprise restrictions upon rights established in Article 96 of the Satversme. To establish, whether the restriction upon inviolability of private life, established by the contested norm, is admissible, the Constitutional Court must examine, whether this restriction upon fundamental rights has been established by law adopted in due

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procedure, whether it has a legitimate aim and whether the restriction is proportional (see, for example, the judgment of the Constitutional Court of 29 October 2003 in the case no. 2003-05-01, para. 22). 19. To examine whether the restriction upon fundamental rights has been established by law it must be verified: 1) whether the law has been adopted in accordance with the procedure established in legal acts; 2) whether the law has been promulgated and is publicly accessible in accordance with legal requirements; 3) whether the law has been worded with sufficient clarity so that a person would be able to understand the content of rights and obligations following from it and predict the consequences of application thereof (see the judgment of the Constitutional Court of 2 July 2015 in the case no. 2015-01-01, para. 14). 20. It is not disputed in the case that the norms of the DNA Law had been adopted and promulgated in the procedure defined in the Satversme and the Saeima Rules of Procedure. Neither is the public accessibility of the DNA Law disputed. There are no materials in the case that would create doubt as to whether the norm of Regulations no. 620 had been adopted and promulgated in due procedure and were publicly accessible. 21. The Petitioner doubts the quality of the impugned norms, noting that legal regulation on determining DNA profile for including and storing it in the National DNA Database is unclear. The Ombudsman and A. Bitāns have also noted the lack of clarity of the impugned norms. The Saeima and the Cabinet, as well as the Ministry of Justice hold that the impugned norms had been defined with sufficient clarity, so that a person, in case of necessity seeking appropriate advice, would be able to understand the content of rights and obligations following therefrom and would be able to predict the consequences of applying thereof. The Saeima and the Cabinet have underscored the legislator’s discretion to seek advice of experts and social partners, as well as the fact that the scope of such consultations does not directly influence the quality of legal norms that are adopted. The Constitutional Court is of the opinion that extensive feasibility study during the period of drafting and adopting a legal norm, inter alia, analysis of other countries’ experience and consultations with scholars and experts of the field, could have a favourable impact upon the quality of a legal norm. However, the level of detail or the scope of the feasibility study per se cannot be the grounds for establishing sufficient quality of a legal norm. At the court hearing the representative of the Saeima upheld the opinion that legal norms had been clearly defined. However, in the Petitioner’s situation the norms had been, allegedly, applied erroneously. The Cabinet and the Ministry of Justice supported the Saeima’s opinion. The representative of the State Police did not find an error in the official’s actions. At the court hearing he expressed the opinion that upon initiating the procedure for determining the Petitioner’s DNA profile the impugned norms had been applied in accordance with the established practice (see the transcript of the hearing of the Constitutional Court of 6 and 13 April 2016, the case materials, vol. 2, pp. 131 and

132). This opinion was upheld by the representative of the Prosecutor’s General Office and A. Lieljuksis. It has been recognised in the case law of the Constitutional Court that the opinion of participants of the case and of the summoned persons with regard the content of legal norms per se is not decisive in establishing the legal consequences of the respective legal norms, since a legal norm cannot be understood outside the practice of applying thereof and the legal system, within which it functions (see the judgment of the Constitutional Court of 28 November 2014 in the case no. 2014-09-01, para. 20.2.2). The Constitutional Court has established the scope of the contested norm and concludes that the impugned norms, in the interpretation enshrined in Para 16 of this Judgment, are clear and predictable. Thus, the restriction upon fundamental rights has been established by law. 22. All restrictions upon rights should be based upon circumstances and substantiation of its necessity; i.e., the restriction should be established due to important interests – for a legitimate aim (see, for example, the judgment of the Constitutional Court of 22 December 2005 in the case no. 2005-19-01, para. 9). It follows from Article 116 of the Satversme that a person’s right to inviolability of private life may be restricted in cases envisaged by law to protect other persons’ rights, democratic state order, public security, welfare, and morals. In legal proceedings before the Constitutional Court the obligation to indicate the legitimate aim first of all rests with the institution that issued the contested act (see, for example, the judgment of the Constitutional Court of 25 October 2011 in the case no. 2011-01-01, para. 13.2). The Saeima has indicated that the legitimate aim of the restriction is establishing of the National DNA Database and using it to resolve criminal offences, search for missing persons and identify unidentified bodies, as well as sharing the results of DNA genetic analysis with foreign countries and international organisations. This complies with the legitimate aim defined in Article 116 of the Satversme – for public security and protection of other persons’ rights. Essentially, all other participants of the case uphold the Saeima’s opinion. The ECHR has recognised that crime prevention and resolving of criminal offences are legitimate aims that justify storing of sensitive personal data (see the judgment of the Grand Chamber of ECHR of 4 December 2008 in the case “S. and Marper v. the United Kingdom”, applications no. 30562/04 and no. 30566/04, para. 100, and the judgment of 4 June 2013 in the cases “Peruzzo v. Germany” and “Martens v. Germany”, applications no. 7841/08 and no. 57900/12, para. 40). The Constitutional Court upholds the opinion expressed by the Saeima regarding importance of sharing the results of genetic analysis, in particular, among the EU member states. Resolving of criminal offences by verifying a person’s possible connection to other criminal offences is in the interests of society as a whole and each member of it. Thus, the legitimate aim of the restriction is public security and protection of other persons’ rights. 23. In determining, whether the restriction established by the impugned norms is proportional, the Constitutional Court examines, whether the restrictive measures that are used are appropriate for reaching the legitimate aim, whether the aim cannot be reached by other means, less restrictive upon an individual’s rights, and whether

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the benefit gained by society from the established restriction exceeds the harm inflicted upon the individual (see, for example, the judgment of the Constitutional Court of 22 December 2008 in the case no. 2008-11-01, para. 13). 23.1. The Petitioner has recognised that taking biological material from convicted persons is appropriate for reaching the legitimate aim of the restriction. Effective resolving of criminal offences is said to be in public interests. If a person has been recognised as being guilty by a court’s judgment that has entered into legal force, then comparison of this person’s DNA profile could help to discover previously committed criminal offences or prevent criminal offences planned in the future. This is said to be compatible with the aim of the restriction. However, the Petitioner considers that determining DNA profiles of suspects is incompatible with the principle of presumption of innocence in criminal procedure and therefore is not an appropriate measure with respect to these persons. The Saeima does not uphold this opinion expressed by the Petitioner and notes that the principle of presumption of innocence is not violated, because determining of DNA profile does not mean that a person has been recognised as being guilty of committing a criminal offence. The Cabinet, in turn, has noted that fast technological development, as well as unpredictability of inhabitants’ actions has brought changes also in the way criminal offences are committed and resolved. The constantly increasing number of cross-border criminal offences is making employees of investigative institutions adapt investigative activities to the new situation. Resolving of criminal offences is said to be directly dependent upon information that is at the disposal of police. The chosen measure is said to be appropriate for promoting effective resolving of criminal offences, achieving fair regulation of criminal law relationships without excessive interference into a person’s life, as well as for ensuring the preventive function. The Cabinet has also underscored that in the absence of the National DNA Database, such criminal offences as, for example, crimes against morals and sexual inviolability, would not be resolved, because in such cases DNA is one of the most important pieces of evidence. The State Police, the Prosecutor’s General Office, and A. Lieljuksis also upheld this opinion. The ECHR has recognised that combatting crime, in particular, terrorism and organised crime, to a large extent depends upon contemporary scientific methods of investigation and identification (see the judgment of the Grand Chamber of ECHR of 4 December 2008 in the case “S. and Marper v. the United Kingdom”, applications no. 30562/04 and no. 30566/04, para. 105). The importance of these methods has been highlighted also in the sixth paragraph of Recommendation of 10 February 1992 by the Committee of Ministers of the Council of Europe On the Use of Analysis of Deoxyribonucleic Acid (DNA) within the Framework of Criminal Justice System, as well as in the first and the second paragraph in the Preamble of the Resolution by the Council of the European Union of 9 June 1997 no. 97/C193/02 On the Exchange of DNA Analysis Results. The Constitutional Court recognises that determining DNA profiles of suspects in the stage of investigating possible criminal offences is an appropriate measure for reaching the legitimate aim of the restriction. Determination of DNA profile allows identifying, with high level of accuracy, the presence of a particular person at the crime scene or connection with previously committed criminal offences, during the investigation of which DNA profiles had been determined, as well as connections with other persons.

Thus, the restriction is appropriate for reaching the legitimate aim of the restriction. 23.2. In assessing, whether the legitimate aim could not be reached in a more lenient way, it should be taken into consideration that a more lenient measure is not just any other measure, but only a measure by which the legitimate aim can be reached in the same quality. Moreover, the Constitutional Court does not have the right to determine, which measure is the best, but has the right to determine, whether the measure chosen by the state is effective (see the judgment of the Constitutional Court of 8 April 2015 in the case no. 2014-34-01, para. 18). In assessing, whether the legitimate aim could be reached by measures that are less restrictive upon an individual’s rights, the Petitioner has pointed to two alternatives. He has expressed the opinion that biological material should not be taken from suspects, but has not provided concrete arguments supporting this alternative. The Petitioner holds that a more lenient restriction upon suspects’ rights could be also setting additional requirements for determining DNA profile, for example, an order by the head of the investigative institution, reasoned decision by the official in charge of criminal proceedings or the severity of possible sanction to be applied for the respective criminal offence. The Saeima and the Cabinet have expressed the opinion that the legitimate aim cannot be reached by more lenient alternative measures (see the case materials, vol. 1, pp. 54 and 72). Allegedly, in some cases DNA is the only means for identifying a person, who is searched for in connection with possible involvement in committing a criminal offence. Each measure aimed at preventing, detecting and proving a criminal offence is said to be unique and different from others. These measures are said to supplement each other, and only the use thereof in their totality can ensure the most effective resolving of all criminal offences committed in the past and of the possible future criminal offences (see ibid.). The Prosecutor’s General Office and the State Police also hold that the data stored in the National DNA Database are of special significance in investigating and resolving criminal offences (see the case materials, vol. 1, pp. 107 and 128). At the court hearing the summoned person O. Bergere explained that the Unit for DNA Expert Examination at the Forensic Services Department of the State Police had two main lines of activity. If a decision by the official in charge of criminal proceedings on requesting DNA expert examination is adopted, experts perform expert examination, which includes also examination of material evidence, looking for traces and analysis. Alongside this, other experts perform analysis of DNA samples and enter the respective information in the National DNA Database. In fact, DNA samples of persons are being constantly compared. This may allow detecting matches with a particular person or identifying material evidence, which might link a number of cases and establish a series of criminal offences (see the transcript of the hearing of the Constitutional Court of 6 and 13 April 2016, the case materials, vol. 2, p. 149). A. Bitāns holds that taking of biological material from all suspects for determining their DNA profile should be recognised as being unlawful (see the case materials, vol. 1, p. 139). A. Lieljuksis, in turn, states that taking of biological material from suspects could be restricted by additional requirements, for example, the nature of the offence and degree of dangerousness. In current investigations DNA is the most accurate method for identifying persons that is used in practice, it also is said to ensure a very high degree of credibility of identification. It allows avoiding ungrounded charges of criminal offences that a person did not commit, and also helps to resolve crimes that cannot be resolved by other methods. However, A. Lieljuksis underscored that in circumstances of unstable

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penal policy linking determination of DNA profiles with the penal sanction envisaged for a particular criminal offence would not be advisable (see the case materials, vol. 1, p. 123). The Constitutional Court recognises that determining of DNA profile is a unique method for identifying persons. In those cases, where a person cannot be identified by other methods, determining of DNA profile may be the sole effective measure of identification. The Constitutional Court finds that for a certain period of time, in procedure established by law, law enforcement institutions have access to DNA profiles of all suspects that can be accordingly used for investigation not only within the framework of the particular criminal procedure, where the persons has been granted the status of a suspect. In view of the fact that criminal offences may be linked in various ways, it has to be recognised that the National DNA Database that contains as many DNA profiles as possible not only allows investigating particular criminal offences in a more effective way, but also curbs criminality, resolving other criminal offences, which previously were unresolved, and promotes preventing and resolving criminal offences in the future. This would not be ensured if DNA profiles were determined only in those cases, where the official in charge of criminal proceedings had adopted a respective decision, in view of the need to verify the circumstances of the case. Establishment of the National DNA Database with respect to categories of identified subjects as a measure for reaching the legitimate aim should be separated from those cases, where individual decisions by the official in charge of criminal proceedings are adopted in criminal proceedings. As effective prevention of crime and resolution of criminally punishable offences as possible, which is to be ensured by storing in the National DNA Database the DNA profiles of subjects defined in law, complies with the legitimate aim. Thus, there are no more lenient measures that would allow reaching the legitimate aim in the same quality. 23.3. In examining the proportionality of a restriction, it must be verified, whether the adverse consequences that the individual incurs as the result of restriction upon his fundamental rights do no exceed the benefit that society in general gains. I.e., the interests that must be balanced in the case, as well as the interests that should be given priority must be identified (see, for example, the judgment of the Constitutional Court of 7 October 2010 in the case no. 2010-01-01, para. 15). The Petitioner notes that with respect to suspects the impugned norms are of “disproportionally restrictive nature”. The Saeima and the Cabinet hold that the negative consequences caused for the individual are minor compared to the public benefit gained by application of the impugned norms. To substantiate public benefit, the Saeima underscores that combating crime in public interests is not only the right, but also a positive obligation of the state, which follows, inter alia, from fundamental human rights and freedoms included in the Satversme and the Convention. Moreover, this obligation of the state pertains not only to crimes that could have been committed on its territory, but, in certain instances, also to such crimes that have been committed outside its territory and the resolving of which requires effective interstate cooperation (see the judgment of the ECHR of 7 January 2010 in the case “Rantsev v. Cyprus and Russia”, application no. 25965/04, paras. 289 and 307). The DNA Law, allegedly, provides to a person sufficient legal remedies regarding acquiring and storing of his personal data. Moreover, determining and storing of DNA profile in the National DNA Database is said to be

compatible not only with public interests, but also those of the data subject. Thanks to the determined DNA profile, a person can be effectively excluded from the circle of suspects with respect not only to one, but, possible, even several criminal offences; moreover, the determined DNA profile can be effectively used, for example, in searching for a missing person. This opinion was expressed also by the Cabinet of Ministers, the Ministry of Justice, the Prosecutor’s General Office, and the State Police. The Constitutional Court also supports this opinion. 23.3.1. The Constitutional Court has recognised that the following principles of personal data protection are in force: rule of law, fairness, minimality, and anonymity. Rule of law comprises also the requirement that the use and transmitting of personal data for other purposes than the ones they were initially obtained may occur only with the consent of the respective person or on legal basis. The principle of fairness requires that obtaining and processing of information occurs in a way that excludes excessive interference to the privacy, autonomy and integrity of data subjects. The principle of minimality provides that processing of personal data is prohibited, unless significant and previously clearly defined objectives of data processing must be reached. Anonymity means that linking information with the particular data subject has become impossible (see the judgment of the Constitutional Court of 14 March 2011 in the case no. 201051-01, para. 14). The ECHR has recognised that a state has the right to store only such volume of data that complies with the legitimate aim of data processing, and demands existence of sufficient legal remedies, noting that the sufficiency thereof depends upon the volume of stored personal data, duration of storing, rules on destroying and using data (see the judgment of the ECHR of 25 September 2001 in the case “P.G. and J.H. v. the United Kingdom”, application no. 4478798, paras. 44-47, and the judgment of 4 December 2008 in case “S. and Marper v. the United Kingdom”, applications no. 30562/04 and no. 30566/04, paras. 103 and 107). The Council of the European Union has pointed out to the member states the need to abide by appropriate rules of personal data protection, when engaging in mutual personal data exchange. It is recognised in the Framework Decision that competent authorities may collect personal data only for specified, explicit and legitimate purposes in the framework of their tasks and personal data may be processed only for the same purpose for which data were collected. It also underscores that member states should ensure that subjects are informed that personal data could be or are being collected, processed or transmitted to another member state [see the Council Framework Decision 2008/977/JOHAN of 27 November 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters, para. 27 of the preamble and Article 3(1)]. As regards processing of data, Framework Decision does not prohibit member states to establish even stricter measures for personal data protection than defined therein; however, it underscores the necessity to ensure that any personal data that member states exchange among themselves are processed legally and in compliance with fundamental principles. Consequently, in assessing the adverse consequences caused to a person, the Constitutional Court must verify, whether the impugned norms comply with these principles of data protection. The impugned norms envisage using DNA profile only in accordance with the purpose of the DNA Law; i.e., establishing the National DNA Database. The DNA

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Law provides that data to be included in the National DNA Database are to be used for resolving criminal offences, searching for missing persons, and identifying unidentified bodies (human remains). The Constitutional Court has recognised that the legitimate aim of the restriction upon fundamental rights established by the impugned norms is protection of public security and other persons’ rights. Pursuant to Article 10 of the DNA Law, the following information is included in the National DNA Database: the suspect’s given name and surname, his personal identity number, nationality and DNA profile, the criminal case number, the name of the of institution, where the comparative sample has been taken, and the name and surname of the person, who has taken this sample. Thus, the amount of information that is objectively needed for identifying DNA profile is stored. Pursuant to Article 15 of the DNA Law the suspects’ DNA profiles and other information included in the National DNA Database is restricted access information. Article 16 of the DNA Law provides that the right to receive information from the National DNA Database is given only to investigatory institutions, with the consent of a prosecutor, institutions of prosecutor’s office and courts for conducting pre-trial criminal proceedings, examination and adjudication of cases. Likewise, information to foreign law enforcement institutions may be issued only for these purposes (see also the Resolution by the Council of the European Union of 9 June 1997 no. 97/C193/02 On the Exchange of DNA Analysis Results, the ninth paragraph of the Preamble). The subject of determined and stored DNA profile is made anonymous by a systemproduced encoding, thus ensuring his protection. Moreover, the DNA profile in a coded (computer-readable) form is stored separately from the information, by which it could be identified and that is set out in the DNA Law Article 10. Thus, anonymity of data is ensured (see the case materials, vol. 1, p. 56). The National DNA Database stores accurate data. To exclude possible errors or inaccuracies, information into the National DNA Database is entered twice. To record in detail any handling of the data, the entering, reviewing of and accessing data is registered, indicating the time and date of each manipulation (see ibid.). While a person has the status of a suspect in criminal proceedings, determining of DNA profile pursuant to Article 1(6), Article 4, Article 10 of the DNA Law and para. 2 of Regulations 620 complies with the principles of personal data protection; i.e., the rule of law, fairness, minimality, and anonymity. Thus, the public benefit from these impugned norms exceeds the restrictions established upon a person’s rights. Thus, the restriction upon fundamental rights established by the impugned norms is proportional and complies with Article 96 of the Satversme. 23.3.2. Article 18 (1) of the DNA Law defines the term for storing DNA profiles and information, inter alia, with respect to suspects in cases, where criminal proceedings have been terminated as a whole or against the particular person on exonerating grounds, or the decision by which a person has been recognised as being a suspect or an accused person, on the same grounds, has been revoked, as well as if a judgment exonerating the person has entered into force. The data subject has the right, upon onset of circumstances specified in this norm, to request that his data are immediately deleted from the National DNA Database. It was already established in the case that a person’s criminal procedural status is the sole criterion for storing his DNA profile on the basis of the impugned norms. The Constitutional Court establishes that, pursuant to Article 18(1) of the DNA Law, in those cases where there no longer is legal basis for storing a person’s DNA profile in

the National DNA Database but an application requesting deletion of these data has not been received from the person, these sensitive personal data are still stored although he is no longer a suspect. Following the change of a person’s criminal procedural status, i.e., in the case, where the criminal proceedings are terminated as a whole or against the particular person on the grounds of exonerating circumstances, or the decision by which a person has been recognised as being a suspect on the same grounds is revoked, as well as if a judgment exonerating the person has entered into force, then the grounds, established in law, upon which a person’s fundamental rights are restricted for reaching the legitimate aim, disappear. Therefore with respect to such cases the state has the obligation to establish such legal regulation that would define criteria for restitution of a person’s rights in their initial scope. It was stated at the court hearing that there was no particular procedure for storing and destroying biological material taken from a person after it had been genetically analysed. Likewise, there is no control mechanism that would allow the person himself or with the mediation of an independent institution to verify that his sensitive data, including biological material that had been taken, have been destroyed or deleted and are not used for purposes that cannot be recognised as being legitimate. The Constitutional Court also notes that neither does Article 18(1) of the DNA Law define the term, within which, from the receipt of a person’s request, the person’s data are deleted from the National DNA Database. Likewise, the state has not been established an obligation to stop the procedure of determining DNA profile, when during it the particular criminal procedural status of a person has been revoked and the legal grounds for determining his profile for storing in the National DNA Database no longer exist. The term for storing the collected biological material and procedure for destroying thereof has not been defined either. The Constitutional Court cannot uphold the opinion expressed by the Saeima that the fact that a person has not submitted an application requesting deletion of his data from the National DNA Database is to be regarded as agreeing to storage of the data. The Constitutional Court notes that one of the priorities in the reform of data protection of the European Union member states is to ensure persons fundamental rights better, in particular, in the field of data protection. Considering the sensitive nature of a person’s biological material and DNA profile, the subjects of law should be imposed such obligations that would ensure that personal sensitive data are not stored without grounds established in law. The DNA Law does not define such obligation. It has been underscored in the case-law of ECHR that Article 8 of the Convention imposes upon state institutions not only a negative obligation to refrain from any unfounded interference into inviolability of private life, but also a positive obligation to take measures necessary to protect this right (see the judgment of the ECHR of 26 March 1985 in the case “X and Y v. the Netherlands”, application no. 8978/80, para. 23). Thus, the legislator must establish such mechanism for personal data protection that would ensure that the rules of storing thereof would fully comply with the envisaged purpose of data processing. The Constitutional Court holds that with respect to rules on storing and deleting suspects’ biological material and DNA profile the legislator has failed to perform its duty. Thus, a person, who has been a suspect in criminal proceedings, after this status has been revoked, has not been ensured all necessary guarantees with respect to deletion of his sensitive data, although grounds for storing these data established in law no longer exist.

685

JUDGMENT in the case no. 2015-14-0103

684

Therefore, the restriction imposed a person’s rights exceeds the public benefit and the restriction upon fundamental rights included in Article 18(1) of the DNA Law is not proportional. Thus, Article 18 of the DNA Law, insofar it applies to suspects, is incompatible with Article 96 of the Satversme. 24. Pursuant to Article 32(3) of the Constitutional Court Law, the legal norm that has been recognised by the Constitutional Court as being incompatible with a norm of higher legal force, is to be recognised as being invalid as of the day when the judgment by the Constitutional Court is published, unless the Constitutional Court has provided otherwise. This norm grants to the Constitutional Court broad discretion to decide upon the date, as of which the norm, which has been recognised as being incompatible with a norm of higher legal force, becomes invalid. I deciding upon the date as of which the impugned norms becomes invalid, the rights and interests of not only the applicants, but also those of other persons must be taken into consideration (see, for example, the judgment of the Constitutional Court of 16 December 2005 in the case no. 200512-0103, para. 25, and the judgment of 19 October 2011 in the case no. 2010-71-01, para. 26). In the case under review the Constitutional Court must take into consideration that immediate revoking of the impugned norms, before a new legal regulation has entered into force, is impossible, because in such a case suspects’ biological material stored after determination of DNA profile would have to be destroyed immediately, but collection of new biological material would be impossible prior to adoption of new legal regulation. This would place public security under threat. In a situation like this it is necessary and admissible that the norms that are incompatible with the Satversme remain in force for a certain period to give the legislator the possibility to adopt a new legal regulation that would ensure protection of suspects’ sensitive data (see, for example, the judgment of the Constitutional Court of 22 October 2002 in the case no. 2002-04-03, para. 3 of the motives part, and the judgment of 9 March 2010 in the case no. 2009-69-03, para. 16). In view of the fact that legislator needs a reasonable period of time for drafting and adopting a new legal regulation, the impugned norms in this case cannot be recognised as being invalid as of the date when the judgment by the Constitutional Court is published.

The resolutive part On the basis of Article 30-32 of the Constitutional Court Law, the Constitutional Court decided: 1. To terminate the proceedings in the case in the part regarding compliance of Article 1(2) of the Law on the Development and Use of the National DNA Database and para. 13 of the Cabinet of Ministers Regulations of 23 August 2005 no. 620 “The Procedure of Providing Information to be Included in the National DNA Database, as well as the Procedure for Collecting Biological Material and Biological Trace”, insofar as these apply to suspected persons, with Article 96 of the Satversme of the Republic of Latvia;

2. To declare Article 1(6), Article 4, Article 10 of the Law on the Development and Use of the National DNA Database, as well as para. 2 of the Cabinet of Ministers Regulations of 23 August 2005 no. 620 “The Procedure of Providing Information to be Included in the National DNA Database, as well as the Procedure for Collecting Biological Material and Biological Trace”, insofar as these apply to suspected persons, to be compatible with Article 96 of the Satversme of the Republic of Latvia; 3. To declare Article 18(1) of the Law on the Development and Use of the National DNA Database, insofar as it applies to suspected persons, to be incompatible with Article 96 of the Satversme of the Republic of Latvia and invalid as of 1 January 2017.

687

The judgment is final and not subject to appeal. The judgment enters into force on the day it is promulgated.

Chairman of the hearing of the Court

A. Laviņš

JUDGMENT in the case no. 2015-14-0103

686

Separate opinion of the judge of the Constitutional Court Kaspars Balodis in the case no. 2015-14-0103 Riga, 25 May 2016 “On the compliance of Article 1(2) and (6), Article 4, Article 10, Article 18(1) of the Law on the Development and Use of the National DNA Database, as well as paras. 2 and 13 of the Cabinet of Ministers Regulations of 23 August 2005 no. 620 “The Procedure of Providing Information to be Included in the National DNA Database, as well as the Procedure for Collecting Biological Material and Biological Trace”, insofar as these apply to suspected persons, with Article 96 of the Satversme of the Republic of Latvia”. 1. On 12 May 2016, the Constitutional Court adopted a judgement in the case no. 2015-14-0103 “On the compliance of Article 1(2) and (6), Article 4, Article 10, Article 18(1) of the Law on the Development and Use of the National DNA Database, as well as paras. 2 and 13 of the Cabinet of Ministers Regulations of 23 August 2005 no. 620 “The Procedure of Providing Information to be Included in the National DNA Database, as well as the Procedure for Collecting Biological Material and Biological Trace”, insofar as these apply to suspected persons, with Article 96 of the Satversme of the Republic of Latvia” (hereinafter – the Judgement). In providing reasoning for my opinion, I shall use the abbreviations used in the Judgement. The concept “impugned norms” will apply to all legal norms, with respect to compatibility of which with Article 96 of the Satversme the case no. 201514-0103 was initiated. The Constitutional Court decided in the Judgement: 1) to terminate the proceedings in the case in the part regarding compliance of Article 1(2) of the DNA Law and para. 13 the Regulations no. 620, insofar as these apply to suspected persons, with Article 96 of the Satversme; 2) to recognise Article 1(6), Article 4, Article 10 of the DNA Law and para. 2 of the Regulations no. 620, insofar as these apply to suspected persons, as being compatible with Article 96 of the Satversme; 3) to recognise Article 18(1) of the DNA Law, insofar as it applies to suspected persons, as being incompatible with Article 96 of the Satversme and invalid as of 1 January 2017. 2. I agree with the reasoning provided in the Judgement and the ruling of the Constitutional Court with respect to terminating legal proceedings in the part regarding compliance of Article 1(2) of the DNA Law and para. 13 the Regulations no. 620, insofar as these apply to suspected persons, with Article 96 of the Satversme, as well as with respect to the compliance of para. 2 of the Regulations no. 620, insofar as it applies to suspected persons, with Article 96 of the Satversme. Likewise, I agree with the finding made in the Judgement that the biological material and DNA of a suspect are personal data of a natural person, which fall within the scope of Article 96 of the Satversme and, in view of their sensitive nature, require special protection. It is validly recognised in para. 16.1.2 of the Judgement that such interpretation of the impugned norms that allows taking biological material necessary for determining DNA profile from all subjects defined in Article 13 of DNA Law –

the persons who have been granted the status of a suspect in criminal proceedings, should be recognised as being compatible with reaching the purpose of DNA Law. I do not agree with the conclusion made by the Constitutional Court regarding the need to continue the proceedings in the case and to examine also the compatibility with the Satversme of the other impugned norms, i.e., Article 1(6), Article 4, Article 10 and Article 18(1) of DNA Law, insofar these apply to suspected persons, because none of these norms had restricted the Petitioner’s fundamental rights.

689

3. It follows from the application and the case materials that the Petitioner Lato Lapsa is a natural person who by the decision adopted by the official directing criminal proceedings has been recognised as being a suspected person in criminal proceedings. The official in charge of the criminal proceedings – the senior inspector of the Security Police prepared a deed on taking biological material from the Petitioner for determining his DNA profile and for storing it in the National DNA Database. The Petitioner refused to provide the biological material and an administrative violation case was initiated with regard to this in accordance with Article 1752 of the Latvian Administrative Violations Code. The Centre District Court of the City of Riga ruled that the administrative violation case had to be terminated and issued an oral reprimand to the Petitioner for failing to satisfy in due time the legal demands made by a public official who was performing investigative functions. 4. In para. 16.1.2. of the Judgement the Constitutional Court has concluded that five of the impugned norms, i.e., Article 1(6), Article 4, Article 10 and the Article 18(1) of DNA Law, as well as para. 2 of the Regulations no. 620 formed a united legal regulation, which was the basis for taking biological material from a suspect for determining his DNA profile an storing it in the National DNA Database. Article 1(6) of DNA Law comprises a definition of what, in the meaning of this Law, should be considered as being comparable samples. Article 4 of DNA Law refers to the stages in the procedure of determining the DNA profile, i.e., collecting and storing of information. Article 10 of DNA Law determines the content of a unit of natural person’s data to be included and stored in the National DNA Database. Article 18 (1) provides the duration of storing DNA profiles and information about suspects in the National DNA Database and procedure for deleting information from the database. Para 2 of the Regulations no. 620 refers to persons from whom samples of biological material are collected, inter alia, suspected persons. The taking of biological material from the Petitioner which was performed on the basis of para. 2 of the Regulation No. 620 is one of the stages in the procedure of determining the DNA profile. It is correctly noted in para. 16.1.2 of the Judgement that without taking the biological material which is regulated by the impugned Regulations no. 620, DNA genetic research, objectively, would be impossible. Likewise, the findings made in para. 17 of the Judgement can be upheld, i.e., that the procedure for determining the DNA profile includes a number of successive stages – taking the suspect’s biological material, analysis of DNA to determine the DNA profile and storing of the DNA profile in the National DNA Database. To substantiate the conclusions regarding the united legal regulation, para. 16.1.2 of the Judgement describes the way in which Article 1(6), Article 4, Article 10 and Article 18(1) of DNA Law, as well as para. 2 of the Regulation No. 620 serve to reach the goal of DNA Law– to establish the National DNA Database to be used to solve criminal offences, to search for missing persons and to identify unidentified bodies

Separate opinion in the case no. 2015–14–0103

688

(human remains), as well to determine and regulate the exchange of the results of DNA genetic analysis with foreign states and international organisations. However, neither the interconnection between separate legal norms nor the fact that these norms serve to reach the goal of the law is a sufficient argument for recognising the respective norms as being a united legal regulation, in the meaning thereof adopted in the previous caselaw of the Constitutional Court. In other judgements, the Constitutional Court has accurately and clearly indicated the particular features because of which several norms that had been contested in the particular case should be regarded as a united regulation. For example, in the judgement in the case no. 2014-11-0103 “On Compliance of Article 3(1)(f) and Article 191 of Natural Resources Tax Law, the Cabinet of Ministers Regulations of 14 January 2014 no. 27 “Amendments to the Cabinet of Ministers Regulation of 19 June 2007 no. 404 “Procedures for the Calculation and Payment of Natural Resources Tax and Procedures for the Issuance of Permits for Use of Natural Resources”” with Article 105 of the Satversme of the Republic of Latvia” the Constitutional Court reviewed the impugned norms as a united regulation because these in total established a person’s obligation to pay a tax that had been calculated according to a certain methodology and, thus, restricted a person’s right to property (see the judgment of the Constitutional Court of 25 March 2015 in the case no. 2014-11-0103, para. 16). In the Judgement adopted in the current case, the Constitutional Court has used the thesis regarding a united regulation only to find substantiation for examining such norms which had not been even applied to the Petitioner. On the basis of its conclusion regarding a united legal regulation, the Constitutional Court has recognised in para. 16.3 of the Judgement that all impugned norms included in the united regulation had caused a restriction of the Petitioner’s fundamental rights. The conclusion made in the Judgement regarding Article 1(6), Article 4, Article 10 and Article 18(1) of DNA Law, as well as para. 2 of the Regulation No. 620 as a united legal regulations is the basis for the incorrect assessment made by the Constitutional Court regarding the scope of the restriction of the Petitioner’s fundamental rights. 5. Both the Saeima and a number of persons summoned in the case had expressed the opinion that the impugned norms had not caused to the Petitioner a direct and concrete restriction of fundamental rights defined in Article 96 of the Satversme and that, therefore, the proceedings in the case had to be terminated. If arguments are provided that could be the grounds for terminating the proceedings in a case the Constitutional Court must examine these (see, for example, the judgement of the Constitutional Court of 19 October 2011 in the case no. 2010-71-01, para. 11). 5.1. Pursuant to 192(1) of the Constitutional Court Law any person who considers that a legal norm which is incompatible with a legal norm of higher legal force restricts his or her fundamental rights defined in the Satversme may submit a constitutional complaint to the Constitutional Court. Whereas Article 18(1)(4) in interconnection with Article 192(6)(1) of the Constitutional Court Law requires to provide in the application legal substantiation of the incompatibility of the impugned norms with a legal norm of higher legal force. Moreover, it must be substantiated in the application also in what way this incompatibility causes a restriction of the petitioner’s fundamental rights defined in the Satversme. The Constitutional Court has noted that the term “restrict” has been included in the law with the aim of drawing a boundary between the constitutional complaint

and actio popularis (see the judgement of the Constitutional Court of 22 February 2002 in the case no. 2001-06-03, para. 2.4 of the motives part). In the meaning of the Constitutional Court Law, a restriction of a person’s fundamental rights is to be understood as a situation where the contested norm causes adverse consequences directly to the petitioner (see the decision of the Constitutional Court on terminating the proceedings of 11 November 2002 in the case no. 2002-07-01, para. 3). This means that a constitutional complaint may be submitted in those cases where, first, the restriction of the fundamental rights is direct and concrete, and the impugned norm affects the petitioner directly, and, second, at the moment of submitting the application the restriction of the fundamental rights already exists (see, for example, the judgement of the Constitutional Court of 18 February 2010 in the case no. 2009-74-01, para. 12, and the decision on terminating the proceedings of 11 November 2002 in the case no. 2002-07-01). In the case of a constitutional complaint it is important to establish whether, indeed, the Petitioner’s fundamental rights, established in the Satversme, have been restricted (see the judgement of the Constitutional Court of 15 April 2009 in the case no. 2008-36-01, para. 9). An act of applying the legal norm which creates adverse consequences for the petitioner, can be evidence of the restriction itself (see the judgement of the Constitutional Court of 10 May 2013 in the case no. 2012-16-01, para. 21.1). 5.2. It follows from the case materials that only para. 2 of the Regulations no. 620 had been applied to the Petitioner. The administrative violation case with respect to the Petitioner, pursuant to Article 1752 of the Latvian Administrative Violations Code, was initiated exactly with respect to the refusal to provide biological material for establishing the DNA profile (see the case materials, vol. 1, p. 24). It has been recognised also in the Judgement that only para. 2 of the Regulations no. 620 had been applied to the Petitioner (see the Judgement, para. 16.3). It has been recognised in the case-law of the Constitutional Court that a person has the right to turn to the Constitutional Court only if a direct connection between the restriction upon the fundamental rights of this person and the legal norm that is contested in the application exists (see the judgement of the Constitutional Court of 18 February 2010 in the case no. 2009-74-01, para. 12). The application and the case materials only confirm a direct connection between the restriction upon the Petitioner’s fundamental rights and para. 2 of the Regulations no. 620, which was applied to the Petitioner in the case of an administrative violation. Therefore the Constitutional Court should have concluded in para. 16.3 of the Judgment that the Petitioner’s fundamental rights had been infringed upon only by para. 2 of Regulations no. 620. 5.3. However, there are no grounds to assert that the Petitioner’s fundamental rights had been violated by the four norms of the DNA Law, with respect to which the proceedings in the case were continued. The Petitioner refused to provide biological material for establishing the DNA profile, therefore these norms were not applied to him. No confirmation was found that the aforementioned legal norms had caused a restriction of the Petitioner’s fundamental rights. Only minimal reasoning is provided as to the way in which the united legal regulation had restricted the Petitioner’s fundamental rights, which, in the opinion of the Constitutional Court, is formed by the five impugned norms. On the basis of the fact that para. 2 of the Regulations no. 620 had been applied to the Petitioner, the Constitutional Court has recognised in para. 16.3 of the Judgement that “[t]hus

691

Separate opinion in the case no. 2015–14–0103

690

the Petitioner belonged to the identified group of subjects, to which the impugned norms were applied as a united regulation”. However, the limits of the restriction of the Petitioner’s fundamental rights are defined by the fact that para. 2 of the Regulations no. 620 had been applied to him. The statement included in the Judgement of the Constitutional Court that the Petitioner had entered into the scope of the impugned norms as a united regulation, although he had avoided being applied this regulation, cannot be upheld (see para. 16.3. of the Judgement). In establishing the way in which an restriction of a person’s fundamental rights is manifested in a case that has been initiated on the basis of a constitutional complaint, the Constitutional Court must take into account the actual situation of the person, rather than take as the basis arguments regarding which legal norms would be applicable to the person in which situation. The restriction of the Petitioner’s fundamental rights, defined in Article 96 of the Satversme, was caused solely by para. 2 of the Regulations no. 620. 5.4. The examination and adjudication of a constitutional complaint, unlike abstract review of legal norms, is not a measure that would serve only for the alignment of the legal system. It, first and foremost, serves for the protection of the fundamental rights of the submitter of the particular constitutional complaint. Therefore the Constitutional Court must examine the proportionality of the contested restrictions, individually, with respect to the submitter of the constitutional complaint (see the judgement of the Constitutional Court of 15 June 2006 in the case no. 2005-13-0106, para. 20.2). Thus, a constitutional complaint primarily serves for the protection of the Petitioner’s fundamental rights, and not for the alignment of the legal system. However, the Constitutional Court, in examining the constitutionality of the impugned norms which had not restricted the Petitioner’s rights at all, in the case under review acted as if the case had to be examined within the framework of the abstract constitutional review of legal norms. Para. 23.3.2 of the Judgement provides a detailed assessment of the proportionality of the restriction of fundamental rights deriving from Article 18(1) of the DNA Law. Only this contested norm, insofar as it applied to suspected persons, was recognised as being incompatible with Article 96 of the Satversme because the Constitutional Court identified in this norm deficiencies with respect to the storage and deletion of the biological material and the DNA profile of suspected persons. The Constitutional Court, in assessing compliance of the restriction on fundamental rights deriving from Article 18(a) of the DNA Law with the third criterion of proportionality, i.e., answering the question whether the damage inflicted upon a person’s rights and lawful interests outweighed the public benefit from the restriction on fundamental rights, has expressed, primarily, policy considerations which are linked to alignment of legal regulation. The Constitutional Court should not have examined the compliance of Article 18(1) of the DNA Law with Article 96 of the Satversme, because this contested norm, similarly to Article 1(6), Article 4 and Article 10 of the DNA Law had not restricted the Petitioner’s fundamental rights defined in the Satversme. Moreover, in the resolutive part of the Judgment the Constitutional Court has made an obvious methodological inconsistency, by splitting “the united legal regulation”, consisting of the five impugned norms. The Court, inter alia, has decided that one of the norms constituting the united legal regulation. i.e., Article 18(1) of the DNA Law, is incompatible with Article 96 of the Satversme, whereas the others are compatible with it. If the Constitutional Court held that the impugned norms comprised a united legal regulation, it should have been consistent and should have recognised as being

incompatible with Article 96 of the Satversme the whole legal regulation, consisting of four norms of the DNA Law and one norm of the Regulations no. 620, insofar as they apply to suspected persons. The cause of this inconsistency is the concept of “united legal regulation” used in the Judgement into which, without convincing arguments, all five impugned norms have been included. Therefore the Constitutional Court should have terminated the proceedings in the case with respect to the compliance of 1(6), Article 4, Article 10 and Article 18(1) of the DNA Law, insofar as these norms apply to persons suspected, with Article 96 of the Satversme.

Judge of the Constitutional Court

693

K. Balodis

Separate opinion in the case no. 2015–14–0103

692

Separate opinion of the judge of the Constitutional Court Aldis Laviņš in the case no. 2015-14-0103 Riga, 25 May 2016 “On the compliance of Article 1(2) and (6), Article 4, Article 10, Article 18(1) of the Law on the Development and Use of the National DNA Database, as well as paras. 2 and 13 of the Cabinet of Ministers Regulations of 23 August 2005 no. 620 “The Procedure of Providing Information to be Included in the National DNA Database, as well as the Procedure for Collecting Biological Material and Biological Trace”, insofar as these apply to suspected persons, with Article 96 of the Satversme of the Republic of Latvia”. 1. On 12 May 2016, the Constitutional Court adopted a judgement in the case no. 2015–14–0103 “On the compliance of Article 1(2) and (6), Article 4, Article 10, Article 18(1) of the Law on the Development and Use of the National DNA Database, as well as paras. 2 and 13 of the Cabinet of Ministers Regulations of 23 August 2005 no. 620 “The Procedure of Providing Information to be Included in the National DNA Database, as well as the Procedure for Collecting Biological Material and Biological Trace”, insofar as these apply to suspected persons, with Article 96 of the Satversme of the Republic of Latvia” (hereinafter – the Judgement), and decided: 1) to terminate the proceedings in the case in the part regarding compliance of Article 1(2) of the Law on the Development and Use of the National DNA Database and para. 13 of the Cabinet of Ministers Regulations of 23 August 2005 no. 620 “The Procedure of Providing Information to be Included in the National DNA Database, as well as the Procedure for Collecting Biological Material and Biological Trace”, insofar as these apply to suspected persons, with Article 96 of the Satversme of the Republic of Latvia; 2) to recognise Article 1(6), Article 4, Article 10 of the Law on the Development and Use of the National DNA Database, as well as para. 2 of the Cabinet of Ministers Regulations of 23 August 2005 no. 620 “The Procedure of Providing Information to be Included in the National DNA Database, as well as the Procedure for Collecting Biological Material and Biological Trace”, insofar as these apply to suspected persons, as being compatible with Article 96 of the Satversme of the Republic of Latvia; 3) to recognise Article 18(1) of the Law on the Development and Use of the National DNA Database, insofar as it applies to suspected persons, as being incompatible with Article 96 of the Satversme of the Republic of Latvia and invalid as of 1 January 2017. 2. I disagree with a number of arguments included in the Judgement and findings that were made – that the Petitioner had exhausted all the effective and real general legal remedies and also with respect to the scope of Article 1(6), Article 4 and Article 10 of Law on Development and Use of the National DNA Database, as well as para. 2 of the Cabinet of Ministers Regulations of 23 August 2005 no. 620 “The Procedure of Providing Information to be Included in the National DNA Database, as well as the Procedure for Collecting Biological Material and

Biological Trace” and the compliance thereof with Article 96 of the Satversme of the Republic of Latvia. In substantiating my opinion, I shall use the abbreviations used in the Judgement. 3. The opinions of the participants in the case substantially differ, therefore, in this case, the issue of the content of the impugned norms and the obligations and rights of persons and institutions of public administration that follow from them were of principal importance. 3.1. The institutions which had adopted the impugned acts – the Saeima and the Cabinet of Ministers – at the hearing of the Court upheld the opinion that the taking of biological material from suspected persons was regulated by Article 207‑209 of the Criminal Procedure Law. Allegedly, the suspected persons had the obligation to give samples for comparative researh or allow taking of these, as provided in Article 67(1) of the Criminal Procedure Law. It is allowed to commission expert examinations and to take the samples for comparison required to perform it only if the person in charge of the proceedings or a member of an investigatory team has recognised the need to establish facts and circumstances important for the criminal proceedings. None of the impugned norms of DNA Law or the Regulations no. 620 could be the grounds for taking biological material. Thus, in each particular case, the decision on taking the biological material of a suspected person for determining the DNA profile and for storing it in the National DNA Database is taken by the official directing the criminal proceedings. The opinions provided by two summoned persons – the Ministry of Justice and the Ombudsman – regarding the interpretation of the impugned norms were similar. 3.2. However, those summoned persons whose competence comprises application of the impugned norms – the State Police and the Prosecutor’s General Office – upheld the opinion that the impugned norms should be interpreted broader. I.e., allegedly, the regulatory enactments envisage two independent grounds for taking biological material from suspected persons. First, the Criminal Procedure Law provides for taking biological material from suspected persons. If particular circumstances need to be clarified in a criminal case, the person in charge of the proceedings, on the basis of Article 193‑209 of the Criminal Procedure Law, has the right to demand expert examination and request the suspected persons to provide samples of biological material or allow taking them for comparative research and determining the DNA profile to reach the aims defined in the Criminal Procedure Law. Second, biological material is taken from suspected persons also outside the regulation of the Criminal Procedure Law. On the basis of DNA Law and the Regulations no. 620 biological material is said to be taken from all suspected persons with the aim of including the DNA profiles of these persons in the National DNA Database, even if expert examination has not been required in the particular case. The pre-requisite for applying DNA Law and Regulations no. 620, allegedly, is only the fact the respective person has been granted the status of a suspected person in criminal proceedings. Aldis Lieljuksis, a summoned person, also upheld this interpretation of the impugned norms. 3.3. The Constitutional Court, in the Judgement, by referring to the purpose defined in Article 2 of DNA Law, recognised as being valid such interpretation of the impugned norms that allows subjects defined in Article 14 of DNA Law to take the biological material necessary for establishing the DNA profile from all those persons, who have been given the status of a suspected person in criminal proceedings.

695

Separate opinion in the case no. 2015–14–0103

694

Essentially, the Constitutional Court upheld the interpretation of the impugned norms that was provided by parties applying the law – the State Police and the Prosecutor’s General Office. 4. By recognising such interpretation as being valid, the Constitutional Court in its Judgement has not provided counter-arguments to a number of arguments expressed by the Saeima and the Cabinet of Ministers regarding the content and scope of the impugned norms. 4.1. The court in its judgement must respond to those arguments of the participants of the case, which are significant for correct adjudication of the case (see, for example, the judgement of the Grand Chamber of the ECHR of 16 November 2010 in the case “Taxquet v. Belgium”, application no. 26/05, para. 91). Only insignificant arguments can be left without a response (see Bārdiņš G. Dialoga loma tiesas spriešanā. Rīga: Tiesu namu aģentūra, 2016, pp. 226 and 275). At the Constitutional Court, in deciding the issue of the scope of the impugned norms, the arguments of the Saeima, as the legislator, and of the Cabinet of Ministers, as the issuer of the regulatory enactment subordinated to this law, are of essential importance, because these institutions, first and foremost, have the obligation to explain what kind of legal relationships they had wished to regulate by the impugned norms. 4.2. Both the Saeima and the Cabinet of Ministers, in explaining the content and scope of the impugned norms, referred to the documents from the process of drafting of the DNA Law. In order to use an annotation to a draft law as a source which reveals the aim of the regulatory enactment and the legislator’s will, first of all it must be verified whether the draft law was not significantly changed in the course of discussing it in the Saeima. If there are no changes or they are not significant, there are grounds for concluding that the purpose indicated in the annotation to the draft law complies with the one that the legislator had wanted to reach. Comparison of the wording of the impugned norms in the initial draft law no. 736 submitted to the Saeima on 25 March 2004 “Law on Development and Use of the National DNA Database” (hereinafter – the Draft DNA Law) with the DNA Law that was adopted on 17 June 2004 shows that the wording of the impugned norms was not changed. Thus, in establishing the scope of the impugned norms, the information included in the annotation to the Draft DNA Law not only could, but should have been taken into consideration. 4.3. The annotation to the Draft DNA Law shows that it, first of all, provides a description of the situation at the time when the law was drafted: “In performing biological expert examinations, in 1999 the Forensic Examination Centre of the State Police started using the deoxyribonucleic acid (DNA) method to identify precisely the suspected persons according to traces of biological nature in connection with committing of a criminal offence. This expert examination is conducted on the basis of norms of the Latvian Criminal Procedure Code” (my emphasis). Further in the annotation, the purpose of the law is clearly defined: “For effective use of the results obtained in biological expert examinations using the DNA method in detecting criminal offences and in accordance with the requirements set by the European Union to the Member States to set up and accordingly maintain a DNA database, it is necessary to establish in the Expert Examination Centre of the State Police a DNA database, entering into it information obtained in biological expert examination [which is conducted on the basis of criminal procedural regulation]” (my emphasis). It is noted in the part of the annotation “Substance of the draft regulatory enactment”: “The draft

regulatory enactment provides that a national DNA database will be established and also defines which information regarding the DNA profile will be collected and stored in the aforementioned database; the procedure for issuing information from the DNA database and terms of storing the information”. The text of the annotation provided a confirmation that the legislator, as explained during the hearing of the Court, had intended to establish a DNA database of scope that would store information obtained in biological expert examinations. Likewise, the note that the legal grounds for taking biological material are determined by the criminal procedural regulation confirms that the legislator did not intend to establish new legal grounds for taking biological material in DNA Law. That is why it is clearly indicated both in the annotation to the Draft DNA Law and in Article 4 of the DNA Law that information about DNA profiles and information about suspected persons is collected and stored in the National DNA Database (my emphasis). 4.4. It is indicated in the annotation to the Draft DNA Law that this draft law had been made on the basis of the concept document on establishing and using the national deoxyribonucleic acid (DNA) database, approved at the meeting of the Cabinet of Ministers on 27 August 2002. Article II of the aforementioned concept document “Legal acts that are linked to solving the respective problem”, in para. 5, refers to the Council of Europe Committee of Ministers Recommendation of 10 February 1992 no. R(92)1 “On the Use of Analyses of DNA within the framework of the Criminal Justice System”. It is provided in para. 4(2) of this Recommendation: where the domestic laws admit that samples may be taken without the consent of the suspect, then that should only be done if the circumstances of the case warrant such actions. The interpretation of the impugned norms, which was provided by the issuers thereof, complies with the provision included in para. 4 of the aforementioned Recommendation, i.e., that, irrespectively of the suspects’ wish, the biological material is taken from them only in those cases where the person in charge of the criminal proceedings has deemed it necessary for establishing facts and circumstances important in the criminal proceedings. Whereas the interpretation of the impugned norms offered by those applying the law – the State Police and the Prosecutor’s General Office, according to which biological material should be taken from all suspected persons, without examining other circumstances, is incompatible with para. 4 of the aforementioned recommendation. 4.5. In concluding the analysis of the scope and content of the impugned norms, attention should be paid to the fact that the explanation included in Article VII of the Draft DNA Law “How the enforcement of the regulatory enactment will be ensured” makes no reference whatsoever regarding establishing a new state institution or broadening the functions of the existing institutions, it is only noted that the functions of the State Police Expert Examination Centre will be expanded, i.e., this institution will be granted the right to establish a DNA database and use it in detecting criminal offences. This article contains no references to granting additional competence to investigators to take biological material from all suspected persons with the purpose of establishing a DNA database, even if it is not necessary for conducting investigatory activities provided for in the Criminal Procedure Law. Neither does the annotation to the draft law provide explanations on the field, to which such activity (action) of the investigator belongs to, - is it an investigatory activity, activity in the field of public administration or it is of other nature. If in a democratic state governed by the rule of law the legislator plans to establish by a regulatory enactment a restriction on a person’s fundamental rights, then procedure

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must be introduced by which a person may defend his right that has been infringed upon (such a requirement clearly follows also from Article 13 of the Convention and Article 92 of the Satversme). In the particular situation legal remedies should be envisaged, because, in the case of taking biological material, a person’s right to inviolability of private life is significantly restricted. The fact that DNA Law does not provide for a procedure by which a suspected person could defend his rights that have been infringed upon and the Draft DNA Law does not comprise information on legal remedies could serve as the grounds for concluding that the legislator had envisaged neither granting additional competence to investigators, nor additional restrictions on suspects fundamental rights. 4.6. No substantiation is provided in the Judgement as to why the arguments and considerations expressed above were of no significance in determining the scope of the impugned norms. The Constitutional Court, on the basis of the purpose of DNA Law, defined in Article 2 of this law, has recognised that in the case if DNA profiles of suspects were to be determined only with the aim of investigating a specific criminal offence, on the basis of decision adopted in criminal proceedings by a person in charge of the proceedings, the purpose of DNA Law would be met only partially, i.e., DNA profiles could not be used as effectively in detecting other criminal offences. I fully agree with the opinion that crime prevention and detecting criminal offences are important purposes which can justify processing of sensitive personal data and that the data stored in the National DNA Database are of particular significance in investigating and detecting criminal offences. However, the principle of separation of powers may not be ignored. Uncontestably, the purpose of DNA Law – establishing the National DNA Database, which, inter alia, is to be used for detecting criminal offences – would be reached also in the case if, as indicated in the annotation to the Draft DNA Law, only information obtained in biological expert examination were included in it. Undeniably, the amount of information collected in such a database would be smaller; however, it, nevertheless, would be important in investigating and detecting criminal offences and would serve for reaching the purposes defined in Article 2 of the DNA Law. If practice would confirm that a database of such a scope, in the particular social and economic circumstances, no longer allows reaching the purposes that had been set, then, abiding by the principle of separation of powers, the legislator, and not those applying the law, would have the competence to increase the amount of information to be included into the database. By increasing the amount of information to be stored in the database, persons’ right to inviolability of private life would be restricted even more, therefore the legislator would have to analyse in a very detailed way the compliance of the respective restrictions with the Satversme. 5. The Constitutional Court, recognising the interpretation referred to in para 3.3 of this separate opinion as being valid, has not reflected in the Judgement considerations due to which, if various interpretations of the impugned norms exist, the interpretation that does not ensure the higher level of protection of fundamental rights was preferred. Pursuant to the finding expressed in para. 11 of the decision of the Constitutional Court on terminating the proceedings of 8 March 2011 in the case no. 2010-52-03, if various interpretations of a legal norm are possible, the interpretation that provides the higher level of protection of fundamental rights must be chosen. This finding follows from the principle of a democratic state governed by the rule of law, which requires

ensuring possibilities for exercising human rights and freedoms in the broadest scope possible. Therefore all legal norms from which a restrictions of fundamental rights follow should be interpreted as narrowly as possible. Pursuant to the interpretation of the impugned norms on which the Saeima and the Cabinet of Ministers insisted the right to inviolability of private life would be restricted only for those persons, with respect to whom, in view of the circumstances of the particular criminal case, the person in charge of the proceedings had recognised the need to conduct an expert examination and requested these persons to give samples of biological material for comparative analysis or to allow taking these, whereas the rights of other suspected persons defined in Article 96 of the Satversme would not be restricted. Whereas the interpretation offered by institutions applying the law – the State Police and the Prosecutor’s General Office – restrict the fundamental rights established in Article 96 of the Satversme of all suspected persons, because as soon as a person is recognised as being a suspect, he must satisfy the request made by the competent official to provide biological material for determining the DNA profile and inclusion in the National DNA Database. As noted in para. 4 of this Separate Opinion, sufficient number of arguments is in favour of the interpretation of the impugned norms provided by the Saeima and the Cabinet of Ministers. Therefore it should have been examined in the Judgement which of the possible interpretations of the impugned norms should be preferred, taking into account the principle of a state governed by the rule of law which demands guaranteeing the possibilities for exercising human rights and freedoms in the broadest scope possible, and interpreting all the restrictions of human rights and freedoms as narrowly as possible. 6. I also do not agree with the argumentation included in the Judgement on whether the Petitioner has exhausted all effective and real legal remedies. As already noted in para. 3 of this Separate Opinion, the Constitutional Court upheld the interpretation of the impugned norms provided by the institutions applying the law, pursuant to which regulatory enactments envisage two independent and unconnected grounds for taking biological material from suspected persons. Thus, to provide an accurate response to the question regarding the use of legal remedies, it had to be established which general legal remedies correspond to each of the two types of taking biological material. 6.1. In the case where particular circumstances must be established in a criminal case and the person in charge of the criminal proceedings, on the basis of Articles 193‑209 of the Criminal Procedure Law, requests an expert opinion and requests the suspect’s biological material for researching it and for determining the DNA profile, to reach the purposes defined in the Criminal Procedure Law, the legal remedies available to a person are clearly defined in the Criminal Procedure Law itself. I.e., pursuant to Article 337 of the Criminal Procedure Law, a complaint regarding an action or decisions taken by an investigator may be submitted to the prosecutor who supervises the criminal proceedings and who has the right to examine the validity of a decision or an action taken by the person in charge of the proceedings and, if necessary, to revoke a decision, thus preventing a possible violation of fundamental rights. In the adjudicated case, the Constitutional Court established that in the criminal proceedings in which the Petitioner had been recognised as being a suspect, traces of biological nature had not been obtained and in the respective case a decision on

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requesting expert examination for determining the source of the traces of biological origin for the purposes of investigation had not been adopted. Therefore the actions of the person in charge of the proceedings were not targeted at reaching the purposes defined in the Criminal Procedure Law, and therefore it cannot be recognised as being an investigatory activity. Thus, as the Constitutional Court has validly recognised, the actions of the person in charge of the proceedings, i.e., requesting the Petitioner to provide biological material, should not have been appealed in the procedure established in Article 337 of the Criminal Procedure Law. 6.2. The Constitutional Court recognised that the impugned norms should be interpreted to mean that, on the basis of the DNA Law and the Regulations no. 620, biological material is taken from all suspected persons with the purpose of including the DNA profiles of these persons in the National DNA Database. It must be noted that neither the participants in the case, nor the summoned persons were of the same opinion regarding the legal remedies that would be available to suspected persons in such cases. The Petitioner, as well as several summoned persons – the State Police, the Prosecutor’s General Office and Aldis Lieljuksis – noted that an administrative violation case had been initiated with respect to the Petitioner for his refusal to provide biological material and that he had had the possibility to defend his rights in the framework of this case. The Constitutional Court also recognised that in the Petitioner’s situation it had been possible to examine the legality of the actions taken by the person in charge of the proceedings on their merits in the framework of the administrative violation case. I do not agree to this opinion, because I believe that making a person administratively liable cannot be regarded as a legal remedy for this person. Quite to the contrary, an administrative violation case is one of the coercive measures at the state’s disposal. Moreover, essentially, cases of administrative violations can be equalled to criminal cases. In both instances, a public law sanction is applied to a person for committing a violation that is harmful for society. The fact that a person has appealed in court a decision adopted in an administrative violation case does not mean that he has used legal remedies that are available in the case where a person in charge of the proceedings has requested provision of biological material for the purpose of establishing a DNA database. 6.2.1. In my opinion, first of all it had to be established, to which field the actions of the person in charge of the proceedings are attributable in those cases when he demands a suspect to provide biological material exactly for the purpose of creating the DNA database. Neither the DNA Law, nor the annotation to the Draft DNA Law comprise references to legal remedies that are envisaged for suspected persons in those cases when an official requests provision of biological material on the basis of the DNA Law and the Regulations no. 620. In my opinion, the actions by the person in charge of the proceedings, i.e., requesting biological material on the basis of the DNA Law and Regulations no. 620, most probably are action in the field of public administration and are to be qualified as de facto action within the meaning of the Administrative Procedure Law. In fact, it corresponds to all the features that the Department of Administrative Cases of the Supreme Court in its case-law has recognised as such that characterise de facto action, i.e., the de facto actions by an institution have the following mandatory features: 1) it is an action (action or failure to act), 2) taken by an institution 3) in the field of public administration of the public law, 4) it is addressed to an individual person, 5) it has actual consequences, 6) it causes a restriction of a person’s rights or lawful interests,

7) it is not a legal act, 8) it is externally targeted, 9) it has the nature of completeness (final regulation) (see Latvijas Republikas Augstākās tiesas tiesu prakses vispārinājums. Faktiskās rīcības jēdziens – pazīmes un to interpretācija, 2006, p. 29). Also at the hearing of the Court a number of persons summoned in the case presumed that the actions of the person in charge of the proceedings, i.e., requesting the suspect’s biological material, on the basis of the DNA Law and the Regulations no. 620, corresponded to actions in the field of public administration. 6.2.2. The Constitutional Court has not indicated in the Judgement how such an action by the person in charge of the proceedings should be qualified. However, the Judgement contains a statement that the impugned norms do not provide for the possibility to interrupt the procedure of establishing the DNA profile in any of its stages and, thus, effective legal remedies are unavailable to a person at the stage of taking biological material, determining the DNA profile, and also in the stage of storing. I cannot agree with this conclusion. The impugned norms, indeed, do not envisage a possibility to interrupt the procedure of determining the DNA profile in any of its stages; however, this does not mean that provisions of other regulatory enactments cannot be applied to the legal relationship under scrutiny. Actions by the person in charge of the proceedings – requesting a suspect’s biological material, on the basis of the DNA Law and the Regulations no. 620, correspond to actions in the field of public administration and should be qualified as de facto action within the meaning of the Administrative Procedure Law; therefore, in the particular case, provisions of Article 91 of the Administrative Procedure Law were applicable. The first part of this article provides: a person who considers that the planned or commended de facto action infringes upon or could infringe upon the rights and lawful interests of this person, may submit an application to the institution regarding changing the institution’s intent with respect to this de facto action. The second part of this article provides that the institution must examine and assess the application prior to taking the de facto action or, if possible, prior to completing it. The institution informs about its decision in the general procedure, but a private person may contest and appeal against this decision of the institution as an administrative act. It is important to note that Article 80 of the Administrative Procedure Law which regulates suspending the operation of a disputed administrative act provides that an application on contesting an administrative act suspends is operation as of the day when the institution receives the application, except for the cases, which are envisaged in the Article 360(2) and (3) of this law, as well as in those cases when the application has been submitted by an addressee of a favourable administrative act to achieve issuance of an even more favourable administrative act, or if the application with respect to a general administrative act has been submitted. If a higher-level institution leaves the administrative act unchanged, its operation is resumed on the day when the timelimit for appealing against the administrative act ends and the act has not been appealed against. The exceptions defined in this norm are not applicable to the Petitioner’s situation. Thus, pursuant to Article 91 of the Administrative Procedure Law, the Petitioner had the right to submit an application to the Security Police with respect to the request made by the person in charge of the proceedings to provide biological material on changing the institution’s intent with respect to this de facto action. If the Petitioner’s application had been rejected, he would have had the right to appeal against the answer provided, as an administrative act, in the administrative court. The most important thing, however, is the fact that upon receiving the contesting application the de facto

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action would have been suspended in accordance with the rules set out in Article 91 and Article 80 of the Administrative Procedure Law. If the Petitioner had contested the action of the person in charge of the proceedings, i.e., requesting of the biological material, he would have had legal grounds for not providing biological material until his application had been examined by the institution. If the institution’s decisions had been unfavourable for the Petitioner and he had appealed against it in the administrative court, then the Petitioner would have the right to not provide biological material until the court’s ruling in the administrative case had entered into force. Thus, the Petitioner had at his disposal effective and real legal remedies that he could have used to protect his rights that had been infringed upon. It has been recognised in the case-law of the Constitutional Court that a person submitting a constitutional complaint must exhaust all effective and real legal remedies (see the judgement of the Constitutional Court of 19 October 2011 in the case no. 2010-71-01, para. 14). In the particular case the Petitioner had not exhausted all legal remedies, moreover, he had not used the legal remedy envisaged exactly for his situation. In a democratic state governed by the rule of law a situation in which no legal remedies have been envisaged for a person or there is no clarity about them, is impermissible. In the adjudicated case, this lack of clarity most probably can be explained by the fact that the opinion about the content and scope of the impugned norms held by the institutions applying the law differed significantly from the interpretation by the authors of these norms. The institutions applying the law, being of the opinion that the impugned norms constituted independent grounds for taking biological samples from all suspected persons, had to explain immediately to each such person what legal remedies were available to him in the particular case. 7. The Constitutional Court in its case-law, in establishing the scope of impugned norms, has repeatedly underscored that the opinion of the participants of the case and of the summoned persons regarding the content of legal norms per se was not decisive in establishing the legal consequences of the respective norm, because a legal norm could not be understood outside the practice of application thereof and the legal system within which it functions (see the judgement of the Constitutional Court of 28 November 2014 in the case no. 2014-09-01, para. 20.2.2). Thus, the Constitutional Court confirms that it respects the understanding of the impugned norms of the parties applying the law. In the present case I cannot uphold the understanding of the impugned norms proposed by the institutions applying the law – the State Police and the Prosecutor’s General Office, because a restriction on a person’s right to inviolability of private life that is as extensive as this is not necessary in a democratic society and, thus, is disproportional. I agree with the findings made in the Judgement that both the biological material of a suspect and the DNA profile are data of a natural person that fall within the scope of Article 96 of the Satversme and, in view of their sensitive nature, require special protection. I also agree with the findings made in the Judgement regarding the legitimate aim of the restriction of the Petitioner’s fundamental rights and that the impugned norms, in the interpretation that was recognised in the Judgment as being correct, have been applied in order to reach this legitimate aim. However, I do not agree with the conclusion made in para. 23.2 of the Judgement that no more lenient measures existed that would have allowed reaching the legitimate

aim in the same quality. This paragraph of the Judgement refers to two more lenient measures indicated by the Petitioner. I believe that they have not been duly examined in accordance with the methodology developed in the case-law of the Constitutional Court. This, in particular, applies to the second alternative proposed by the Petitioner, i.e., that additional requirements should be set for determining the DNA profile, for example, such as an order by the head of the investigatory institution, a reasoned decision by the official directing the proceedings or the severity of probable sanctions applicable for the respective offence. It is noted in the Judgement that, if restrictions were imposed on taking biological material and determining the DNA profile by introducing such additional requirements, then the legitimate aim would not be reached in the same quality, because the quality of reaching the legitimate aim was directly proportional to the number of the DNA profiles included in the National DNA Database. I believe that this statement is too simplistic, because the inclusion in the database the DNA profiles of such persons with respect to whom it is not clearly known that they have committed or are going to commit criminal offences, does not promote public safety and protection of other persons’ interests. Therefore, the direct mathematical proportionality between the number of DNA profiles found in the database and the quality of reaching the legitimate aim is not the correct criterion of assessment. DNA profiles of suspected persons are included in the National DNA Database on the basis of an assumption that a person who once has been suspected of having committed a criminal offence might have committed criminal offences in the past or will commit such in the future. The institutions adopting the impugned norms had to assess, first, whether such a presumption was valid and, second, whether it was equally valid with respect to all suspects, notwithstanding the type, severity, nature of the criminal offence, the age of the respective person and the possible form of guilt. The mandatory nature of such assessment follows also from the principle of minimality, referred to in para. 23.3.1 of the Judgement, which must be complied with in processing personal data, as well as from the provision included in para. 4(2) of the Council of Europe Committee of Ministers Recommendation of 10 February 1992 No. R(92)1 that collection of biological material without a person’s consent was permissible only if the circumstances of the particular case warranted it. The approach taken by the United Kingdom which is similar to the Latvian system in its comprehensive and undifferentiated approach to collecting DNA data has been harshly criticised also by the ECHR. Moreover, in the majority of the Council of Europe Member States (for example, Austria, Belgium, Finland, France, Germany, Hungary, Ireland, Italy, Luxembourg, the Netherlands, Norway, Poland, Spain, and Sweden) the collection of DNA data in the framework of criminal proceedings is not systematic, but is restricted by various specific criteria or limited to more serious criminal offences (see the judgement of the Grand Chamber of ECHR of 4 December 2008 in the case “S. and Marper v. the United Kingdom”, applications no. 30562/04 and no. 30566/04, paras. 46 and 119). The application of such criteria to collection of DNA data in such an extensive circle of the Council of Europe Member States clearly indicates that criminal offences are effectively detected even if a person’s right to inviolability of private life is respected. Para. 23.3 of the Judgement contains only a reference to a subjective assessment made by the summoned person Aldis Lieljuksis of the instability of the Latvian penal policy. I believe that the aforementioned paragraph of the Judgement does not provide a due assessment of whether the quality of reaching the legitimate aim of a restriction

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on fundamental rights would be significantly affected by not taking biological materials from persons who are suspected of committing a criminal violation or a less serious crime. The Constitutional Court had to assess itself whether, indeed, the Latvian penal policy was so unstable as to allow such differential approach to turn into an obstacle for reaching the legitimate aim of the restriction on fundamental rights. Individual changes of the penal policy are not a proof of its instability.

Judge of the Constitutional Court

A. Laviņš

2016-06-01

Official secrets

705

A person’s rights in cases where his special permit to access official secrets is annulled The right to freely choose one’s vocation was examined. If vocation is linked to accessing official secrets, a person needs the special permit. In those cases, where the permit is annulled, the person does not have the right to keep his job. However, a general unlimited prohibition from receiving the permit repeatedly following the annulment thereof is not proportionate. It was examined whether a person is ensured the right to a fair trial in the process of adopting a decision on the special permit. It was found that a person was denied access to “a court” because the Prosecutor General who adopted the final decision was not “a court”. Moreover, the person is not duly ensured the right to be heard and to find out the reasons for annulling the special permit. If institutions of national security doubt a person’s suitability for accessing official secrets, the elimination of a threat to national security interests takes primacy, ensuring, to the extent possible, also a person’s procedural rights. However, after the decision on annulling the special permit is already adopted, a person must be heard and must be informed about the reasons for adopting the decision. It was established that part of the procedure for annulling special permits was not regulated by such generally binding regulatory enactments that were publicly accessible. Moreover, the state institutions which are involved in the process each have their own understanding of a person’s procedural rights. A procedure like this is unacceptable because a restriction on a person’s fundamental rights must be established by law, which clearly defines the scope and limits of the restriction on fundamental rights. Arbitrary restrictions of fundamental rights are not permissible.

JUDGMENT in the name of the Republic of Latvia in the case no. 2016-06-01 Riga, 10 February 2017 The Constitutional Court of the Republic of Latvia in the following composition: chairman of the hearing of the Court Aldis Laviņš, judges Kaspars Balodis, Gunārs Kusiņš, Uldis Ķinis, Sanita Osipova, and Ineta Ziemele, having regard to a constitutional complaint submitted by Raimonds Lazdiņš, with the participation of the authorised representatives of the submitter of the constitutional complaint Lauris Liepa and Mārtiņš Petersons, as well as the authorised representative of the institution which has adopted the impugned act, the Saeima [the Parliament], Ilze Tralmaka, and Marija Paula Pēce as the secretary of the hearing of the Court,

JUDGMENT in the case no. 2016-06-01

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on the basis of Article 85 of the Satversme [the Constitution] of the Republic of Latvia and Article 16(1), Article 17(1)(11), as well as Article 192 and Article 28 of the Constitutional Court Law, examined at a public hearing of the Court in Riga on 13 December 2016, as well as 3 and 11 January 2017, the case “On the compliance of Article 11(5) and Article 13(3) and (4) of the law “On Official Secrets” with the first sentence of Article 92, Article 96 and the first sentence of Article 106 of the Satversme of the Republic of Latvia”.

The facts 1. The law “On Official Secrets” was adopted on 17 October 1996 and entered into force on 1 January 1997. It has been amended several times. At the moment of submitting the application Article 11(5) of the law “On Official Secrets” provided: “(5) “A person may appeal against a decision regarding refusal to issue a special permit to the Director of the Constitution Protection Bureau within 10 days from the day when he or she became aware of such decision. The person may appeal the decision of the Director of the Constitution Protection Bureau within 10 days from the day when he or she became aware of such decision to the Prosecutor General, whose decision shall be final and may not be appealed. It shall be sent for enforcement to a state security institution.” Whereas Article 13(3) and (4) of this Law provided: “(3) “A person may appeal the decision regarding cancellation of the special permit, non-extension of the term of validity or lowering of the category thereof in accordance with the procedures provided for in Article 11(5) of this Law. Until the taking of a final decision, the person shall be denied access to official secrets. (4) If on the basis of Paragraph one, Clauses 2-4 of this Article the special permit of an official or employee is cancelled or the term of validity of the special permit is not extended, it shall be a sufficient reason to believe that this person does not conform to the position held (work to be performed) which is related to the use or protection of official secrets. After the taking of a final decision, such a person shall be transferred without delay to work, which is not related to official secrets or employment (service) relations with him or her shall be terminated and henceforth he or she shall be denied receipt of a special permit. A person for whom the category of the special permit has been lowered shall be transferred to an appropriate position or, if not possible, employment (service) relations with him or her shall be terminated.” 2. On 23 April 2003 the Constitutional Court adopted a judgment in the case no. 2002-20-0103 “On Compliance of Article 11(5) of the Law “On Official Secrets” and Para 3 of Chapter XIV of the Cabinet Regulations of 25 June 1997 no. 226 “List of Official Secret Objects” with Article 92 of the Satversme of the Republic of Latvia” (hereinafter – Judgment in the case no. 2002-20-0103). In this judgment the Constitutional Court declared Article 11(5) of the law “On Official Secrets”, as well as the contested provisions of the Cabinet Regulations to be compatible with Article 92 of the Satversme of the Republic of Latvia (hereinafter – the Satversme). 3. The petitioner Raimonds Lazdiņš (hereinafter – the Petitioner) requests the Constitutional Court to review the compatibility of Article 11(5) and Article 13(3) and (4) of the law “On Official Secrets” (hereinafter – the impugned norms) with

the first sentence of Article 92, Article 96 and the first sentence of Article 106 of the Satversme. The application contested also Sub-para 2.10.6 of the Cabinet Regulations of 26 October 2004 no. 887 “List of Official Secret Objects” (hereinafter – Regulations no. 887), pursuant to which the means, methods and inspection measures for the special protection of classified information of official secret objects, NATO, the European Union, foreign countries, international organisations and authorities (for example, pages of questionnaires) are deemed to be an object of official secrecy. The 1st Panel of the Constitutional Court in its decision of 15 April 2016 refused to initiate a case with respect to the possible incompatibility of this legal norm with the Satversme. 3.1. The Petitioner notes that he had been issued the special permit for accessing official secrets (hereinafter – the special permit) in 2005. On 8 February 2007 he concluded an employment contract with the State Joint Stock Company (SJSC) RIGA International Airport and had been the Director of its Security Department until 6 December 2013, when the employer had issued an order on suspending him from his duties and prohibiting from being at his work place. Later SJSC RIGA International Airport issued a couple of more orders with respect to the Petitioner, but he had brought a claim against these to court and the judicial proceedings had been favourable to him. On 26 January 2015 the Security Police had adopted a decision to annul the special permit granted to the Petitioner. The Petitioner had appealed against the decision by the Security Police to the Director of the Constitution Protection Bureau (hereinafter – CPB), who had invited him for a discussion and on 7 August 2015 adopted a decision no. 5.2-10/15/369 on rejecting the complaint. The Petitioner appealed against the decision by CPB Director to the Prosecutor General, who on 16 September 2015 adopted final decision no. 8-63-14/433 on rejecting the Petitioner’s complaint. Allegedly, the Petitioner had not been told about the grounds for annulling special permit and had not been informed about violations that he had committed. The decision by the Prosecutor General had contained a general statement that the Petitioner had violated the procedure established for working with, using and protecting official secrets, and that investigation materials contained information that gave grounds for doubting the Petitioner’s trustworthiness and ability to keep official secrets. The decision had been substantiated by Article 9(3)(6) and Article 13(1)(2) and (3) of the law “On Official Secrets”. The Petitioner holds that the special permit was annulled because the employer had not been able to terminate legal employment relationship with him by other means. Whereas discussion with the Director of CPB had been organised to meet formally the requirements of para. 111 of the Cabinet of Ministers Regulations of 6 January 2004 no. 21 “Regulations regarding the Protection of Official Secrets, t and North Atlantic Treaty Organisations, European Union and Foreign State Institution Classified Information” (hereinafter – Regulations no. 21). Since the Petitioner could not perform his job duties without the special permit, on 16 September 2015 he had agreed to a settlement with the employer, agreeing that legal labour relationship, as well as all legal proceedings that had been initiated were terminated. 3.2. It is noted in the application that the impugned norms established procedure for annulling the special permit and restricted the right to access to court, which was protected by the first sentence of Article 92 of the Satversme. Procedural guarantees enshrined in Article 92 of the Satversme and Article 6 of the European Convention

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for the Protection of Human Rights and Fundamental Freedoms are said to apply also to this procedure. The Petitioner holds that his claim cannot be considered as having been adjudicated by the judgment in case no. 2002-20-0103. It is contended that an effective legal remedy should be unbiased and independent. The Petitioner holds: the fact that the Prosecutor’s General decision on annulling the special permit is not subject to appeal does not comply with the guarantees established in the first sentence of Article 92 of the Satversme and Article 13 of the Convention. The impugned norms establish the Prosecutor’s General right to control decisions adopted by security institutions, inter alia, by the Director of CPB; however, the Prosecutor General is said to be directly dependent upon these institutions, as they can adopt a decision to annul the special permit issued to the Prosecutor General at any time. Thus, the Prosecutor General is not totally independent from the state security institutions. The impugned norms are said to violate also the principle of equality of procedural rights or equal opportunities that falls with the content of the right to a fair trial, as well as the right to be heard. I.e., a person, whose special permit is annulled, has no possibility to find out the grounds for annulment. Hence, the possibility to appeal against the decision on annulment of a special permit that the impugned norms envisage is said to be meaningless, because the person cannot express objections and provide explanations with respect to circumstances that are unknown to him. The procedure established by the impugned norms is said to restrict the principle of procedural fairness, which is also protected by the first sentence of Article 92 of the Satversme. The Petitioner holds that the impugned norms restrict also his right to inviolability of private life, envisaged by Article 96 of the Satversme, because he is denied the right to obtain information that has been the grounds for annulment of a special permit. The impugned norms are also restricting the Petitioner’s fundamental right established by the first sentence of Article 106 of the Satversme, since because his special permit was annulled, the Petitioner had to leave his job and also in the future cannot perform such job or take an office that requires receipt of a special permit. 3.3. Allegedly, the impugned norms do not define with sufficient clarity the scope of authorisation granted to competent institutions and, thus, do not protect persons against arbitrary interference with their fundamental rights. I.e., the impugned norms are said to allow to perform, without substantiation, such activities, the legality of which cannot be verified by any independent subject, for example, a court. 3.4. Likewise, the impugned norms do not envisage procedural guarantees to a person, with respect to which a decision is adopted, for example, do not envisage the right to acquaint himself, at least in minimum amount, with information, on the basis of which the respective decision is adopted, neither do they envisage a possibility to contest truthfulness of this information. More than 10 years after judgment was passed in case no. 2002-20-0103 competent institutions are said to continue applying the impugned norms, ignoring requirements of Article 92 of the Satversme. Thus, the impugned norms are said to be incompatible with quality criteria of legal acts developed in the case law of the Constitutional Court and the European Court of Human Rights (hereinafter – ECHR). The Petitioner recognises that the impugned norms have been adopted to protect official secrets and, thus, their legitimate aim is protecting security of the state and society. However, the Petitioner’s right to a fair trial, allegedly, have not been restricted, but he has been essentially deprived of this right, which is inadmissible in

any circumstances. The legislator should have established a system that would ensure a person’s fundamental rights, i.e., would allow a person to familiarise himself with the investigation file at least in the amount that would not jeopardise national security interests and do not infringe upon confidentiality of operatives, as well as would give to the person a possibility to appeal against the decision on annulment of a special permit in court, as it is envisaged, for example, by Article 108(2)(1) of the Administrative Procedure Law or Article 11(3)(1) of the Civil Procedure Law. At the hearing of the Court the Petitioner’s representatives underscored that application of impugned norms caused to a person, also the Petitioner, irrevocable and very significant consequences. By depriving of the right to receive a special permit for life, the Petitioner is also deprived of the right to freely choose his workplace. The restriction upon the Petitioner’s fundamental rights is said to be disproportional compared to the benefit gained by society. Likewise, the Petitioner’s representatives emphasized that the impugned norms should be examined as a united legal regulation. 4. The institution which has adopted the impugned act – the Saeima – considers that the constitutional complaint regarding Article 11(5) and Article 13(3) of the law “On Official Secrets” has been submitted with regard to an already adjudicated claim, therefore legal proceedings should be terminated, whereas Article 13(4) of this Law is said to be compatible with the Satversme. The Saeima alleges that the impugned norms cannot be regarded as being a united regulation, because they are applied to two different procedures, i.e., they regulate, first, procedure for annulling a special permit, and, secondly, an employer’s action in case, if an employee’s special permit is annulled. Allegedly, in each of these cases different legal remedies are available to a person. The Saeima notes that the Petitioner’s right to access materials of investigation case should be examined in connection with a person’s right to an effective legal remedy. Moreover, a panel of the Constitutional Court had refused to initiate a case on the basis the Petitioner’s constitutional complaint regarding compliance of Sub-para 2.10.6 of the Regulations no. 887 with Article 96 of the Satversme. 4.1. It is noted in the written reply by the Saeima that the legislator has the right to restrict a person’s access to such information at the disposal of the state that might cause harm to the interests of the state, individual persons and society. Protection of the state and sovereignty thereof is said to be one of the basic obligations of the state, therefore the state is responsible for protection of information, the disclosure of which might jeopardise it. Inter alia, the state is responsible for ensuring that only such persons, whose conformity, traits and loyalty to the state is not doubted in the least, have access to official secrets. A special permit may be issued not only to persons in public service, but also person employed in private sector, whose job duties are linked to the need to access official secrets. However, issuing of a special permit is said to be a public legal act, based upon relationship of trust between the state and the particular individual. Moreover, a person, who applies for a special permit or for extension of its term, is aware that he could be subjected to additional screening. 4.2. The Saeima draws the Constitutional Court’s attention to the fact that the case has been initiated on the basis of a constitutional complaint, therefore the actual circumstances of the case must be granted special importance. The Petitioner’s special permit had been annulled because during screening such facts had been established that caused doubts about his trustworthiness and ability to keep officials secrets, and

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he had violated procedure established for working with, using or protecting official secrets. This should be taken into consideration in assessing, whether the procedure for annulling a special permit established by the impugned norms complies with the Satversme. The Saeima refers to the case-law of the Constitutional Court and ECHR and points out that the concept mentioned in the first sentence of Article 6 of the Convention “civil rights and obligations” is narrower than “rights and lawful interests” mentioned in the first sentence of Article 92 of the Satversme. However, findings made by ECHR, which are included in the decision in case “Spūlis and Vaškevičs v. Latvia” are said to be applicable also to the case under review. The special duty of discretion, which characterises the state’s relationship with a civil servant, is said to apply to all persons having access to official secrets. Thus, also the right to retain access to official secrets is said to be linked to the special duty of discretion and not fall within the scope of “rights and lawful interests” in the meaning of the first sentence of Article 92 of the Satversme. It is maintained that the legislator is not obliged to ensure protection of such rights in court, with all the institutional and procedural guarantees of the right to a fair trial. At the hearing of the Court the representative of the Saeima expressed the opinion that the fact, whether the recipient of special permit was or was not an official, was insignificant. A decision on annulling a special permit may have an impact upon a person’s fundamental rights, i.e., the right to retain the current vocation, however, it is said not to affect essential fundamental rights or freedoms. Therefore the legislator had included in the impugned norms an effective mechanism for rights protections, which is said to ensure review of the legality and validity of such a decision, first of all, in a national security authority and then – by an independent official – the Prosecutor General. The right to an effective legal remedy allegedly does not envisage the state’s obligation to ensure all safeguards for the right to a fair trial, nor application thereof in accordance with as high standards as the ones that must be ensured in legal proceedings. Moreover, it should be taken into consideration that annulment of a special permit is directly linked to possible risks for national security and that in adoption of the respective decision investigatory information also can be used. Therefore the legal review and safeguards that are accessible to a person in the process of protecting their rights could be restricted to a large extent. The Saeima notes that all materials of the investigation case are accessible to the Director of CPB. He examines a person’s complaint on its merits and, if necessary, revokes the decision by a national security authority on annulment of a special permit. Moreover, the decision by the CPB Director can be appealed against to the Prosecutor General, which complies with the guarantees of independence that the legislator must ensure by envisaging the possibility to appeal against the decision on annulment of special permit. The fact that the Prosecutor General also needs a special permit, per se, does not mean that Prosecutor General is not independent or objective in the procedure of appeal. Moreover, the Saeima holds that appealing against annulment of the special permit in court would not help to solve the problem pointed out by the Petitioner. The judges, specially authorised to review these cases, would have to obtain a special permit, similarly as currently those judges, who review legality of measures regulated by the Investigatory Operations Law, must obtain it. As regards the principle of equal opportunities and the right to be heard, the Saeima reminds that this right is not absolute and may be restricted. Allegedly, in the case under review whether the materials of investigation case have been recognised

as being an official secret validly is not to be examined in the case. It is essential that the state has recognised: disclosing of such information is linked with so great risk to the national security that it must be recognised as being an official secret and a person should be deprived from access to it. Regulations no. 887, unlike Cabinet of Ministers’ Regulations of 25 June 1997 no. 226 “List of Official Secret Objects” (hereinafter – Regulations no. 226) reviewed in the judgment in the case no. 2002-20-0103, is said to grant the status of an official secret not to the person’s investigation case in general, but to particular information, which comprises official secret. Thus, information, which is not an official secret and the disclosure of which does not pose a national security threat, should be disclosed to a person, abiding by the principles of administrative procedure. The nature and scope of the non-disclosable information is said to depend upon circumstances of the particular investigation case, therefore the impugned norms have been worded flexibly, leaving national security authorities and the Prosecutor General in charge of adopting the decision. The norms are said to be sufficiently precise, and the restriction upon fundamental rights had been established by law. If an obligation to present to the person information that is included in his investigation case were established in law, national security could be subjected to inadmissible risks. At the hearing of the Court the representative of the Saeima emphasized that the possibility to appeal in court the decision on annulment of the special permit would not guarantee to a person the right to familiarise himself with case materials in full. In cases like this it is important that the independent institution, which reviews legality of the respective decision, would have access to all necessary materials. Hence, findings of the Constitutional Court presented in its judgment in case no. 2002-20-0103 are said to be still relevant. Hence, part of the claim with respect to Article 11(5) and Article 13(3) of the law “On Official Secrets” are said to be already adjudicated and legal proceedings in this part should be terminated. 4.3. The Saeima points out that Article 13 (4) of the law “On Official Secrets” is a general norm, which establishes the following principle: a person, who has been denied access to official secrets may not perform professional duties that are linked to access to official secrets. The restriction established by the contested norm is said to apply to all subjects of official secrets. Allegedly, the Petitioner contested this norm because it envisaged legal consequences to annulment of the special permit and the Petitioner considered that the procedure for appealing this decision was incompatible with the Satversme. Positions for the performance of duties whereof access to official secrets is required are said to belong to a special category of offices. Access to official secrets is said to be always linked to performance of obligations that are important for the state or society, therefore setting of additional conditions and restrictions is admissible. Likewise, it is important to note that annulment of a special permit prohibits the person in the future to take such offices and to perform such official duties, the performance of which requires access to official secrets. The Saeima holds that Article 11(5) and Article 13(2) of the law “On Official Secrets” ensure to a person an effective legal remedy in case, if a special permit is annulled, and, thus, also Article 13(4) complies with the first sentence of Article 106 of the Satversme. […]

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The motives 5. Pursuant to the case law of the Constitutional Court, issues of procedural nature are to examined before reviewing the constitutionality of legal norms on their merits (see, for example, Judgment of 19 October 2011 by the Constitutional Court in Case no. 2010-71-01, Para 11, and Judgment of 29 April 2016 in Case no. 2015-19-01, Para 10). 5.1. Article 11(5) of the law “On Official Secrets” establishes the procedure for appealing against a decision on refusing to issue a special permit. Article 13 (3), in turn, applies this procedure also to decisions on annulling a special permit. The Constitutional Court in its judgment in case no. 2002-20-0103 has already reviewed compatibility of Article 11(5) of the law “On Official Secrets” with Article 92 of the Satversme. Para 4 of Article 20 (5) of the Constitutional Court Law provides that a Panel of the Constitutional Court may refuse to initiate a case, if the application has been submitted with respect to an already adjudicated claim. In accordance with Para 3 of Article 29 (1) of this Law, legal proceedings in a case may be terminated before pronouncement of the judgment, if it is established that the decision on initiating a case does not meet requirements set in Article 20 (5). The Saeima request terminating legal proceedings on compliance of Article 11 (5) and Article 13 (3) of the law “On Official Secrets” with the first sentence in Article 92 of the Satversme. The Saeima holds that this claim should be considered as being already adjudicated, because following the respective judgment neither the actual, nor legal situation has significantly changed and the Petitioner’s arguments are the same as the arguments of Petitioner in Case no. 2002-20-0103. The Petitioner, however, notes that the claim cannot be regarded as being already adjudicated for a number of reasons, inter alia, because: 1) he requests reviewing compatibility of the respective norms also with such fundamental rights guaranteed in the first sentence of Article 92 of the Satversme the compliance of which was not reviewed in the judgment in case no. 2002-20-0103; 2) it can be concluded from the practice of applying the impugned norms that, contrary to the ruling made by the Constitutional Court in the judgment in case no. 2002-20-0103, they are applied without respecting fundamental rights established in Article 92 of the Satversme; 3) ECHR in its judgment in case “Ternovskis v. Latvia” has recognised that the procedure envisaged by the impugned norms does not comprise adequate procedural guaranteed for the protection of a person’s interests. Therefore the finding made in the judgment in case no. 2002-20-0103 that the restriction upon a person’s fundamental rights established in Article 11 (5) of the law “On Official Secrets” is proportionate to the legitimate aim should be re-examined. Therefore the Constitutional Court must first of all examine, whether the claim regarding incompatibility of Article 11 (5) and Article 13 (3) of the law “On Official Secrets” has not been already adjudicated. 5.2. The Constitutional Court has recognised that it adjudicates a case by examining circumstances that exist at the moment of making the judgment, and in these particular circumstances and at the particular moment when the claim is adjudicated an initiation of new case with respect to it is inadmissible; however, the judgment in a particular case cannot encompass changes that have occurred after the pronouncement thereof. Therefore in some cases, upon establishing that significant new circumstances exist, the Constitutional Court may examine a claim that has been already adjudicated once. In deciding on, whether the particular issue is not “an adjudicated claim”, not only

the respective substantive part of the judgment should be taken into consideration, but also the findings made in the judgment and the development of legal system after the judgment has been pronounced (see Judgment of 15 June 2006 by the Constitutional Court in Case no. 2005-13-0106, Para 10.1 and Para 10.3, and Judgment of 29 April 2016 in Case no. 2015-19-01, Para 10.4). The Constitutional Court has the obligation to comply with the findings expressed in its rulings due to requirements regarding stability of legal system, succession, legality and equality. However, constitutionality of legal norms may be re-examined, if, for example, the norm no longer complies with the actual social reality or becomes incompatible with the legal relationships, which in the course of societal development have become dominant. Therefore the findings made in the judgment in case no. 2002-20-0103 should be taken into consideration in the case under review only insofar as the social reality and the context of legal relationships have not changed (compare: Judgment of 19 December 2011 by the Constitutional Court in Case no. 2011-03-01, Para 14, and Judgment of 1 November 2012 in Case no. 2012-06-01, Para 13.3.2). Thus, the Constitutional Court, in examining, whether the claim regarding Article 11 (5) and Article 13 (3) of the law “On Official Secrets” has not been already adjudicated, must establish, whether significant new circumstances are not present, because of which the claim cannot be considered as being already adjudicated. 5.3. In the judgment in case no. 2002-20-0103 the Constitutional Court reviewed compliance of Article 11(5) of the law “On Official Secrets” and Para 3 of Chapter XIV of Regulation no. 226 with Article 92 of the Satversme. The Constitutional Court found that a person did not have rights and lawful interests to obtain such information, which in procedure established by law had been recognised as being official secrets. The Constitutional Court recognised that the contested norm of the law “On Official Secrets” restricted fundamental rights established in Article 92 of the Satversme; however, it was possible to interpret and apply it in compliance with the Satversme. As the result of this interpretation the restriction upon fundamental rights is to be recognised as being proportionate with the legitimate aim – defence of national security (see Judgment of 23 April 2003 by the Constitutional Court in Case no. 2002-20-0103, Para 2 and Para 5 of the Findings). 5.4. In the judgment in case no. 2002-20-0103 the Constitutional Court recognised the impugned norms as being compatible with Article 92 of the Satversme. However, the findings included the condition that the contested norm complied with the Satversme only if it was interpreted in accordance with the Satversme. The Constitutional Court also noted: “In particular, if the person is denied his right to defence in court, the alternative procedure should be well-considered and should give to a person the possibility to implement defence of his rights at as high level as possible. […] the procedure, in which the decision on issuing a special permit or on refusal to issue it is adopted, inter alia, special guarantees for the person who is being investigated are not established in law. A procedure like this imposes disproportionate restrictions upon the rights of a person being investigated, creates doubts as to the objectivity of the adopted decision and is not necessary in a democratic society. […] In a state governed by the rule of law it is possible to develop a better-considered mechanism, so that, in deciding on issuing a special permit, alongside the interests of national security also the interests of each particular person under investigation would be taken into consideration to the extent possible” (Judgment of 23 April 2003 by the Constitutional Court in Case no. 2002-200103, Para 5 of the Findings).

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5.5. The Judgment in case no. 2002-20-0103 reviewed Article 11 (5) of the law “On Official Secrets” in the following wording: “A person may appeal against a decision regarding refusal to issue a special permit or for lowering the category of a special permit to the Director of the Constitution Protection Bureau. The decision of the Director of the Constitution Protection Bureau may be appealed to the Prosecutor General, whose decision shall be final and not subject to appeal. It shall be sent for enforcement to a state security institution.” On 18 December 2003 this norm was expressed in the wording that is currently in force, applying the procedure of appeal established in it only to refusal to issue a special permit, as well as setting a term for appealing against a decision by the Director of CPB. Thus, substantially, legal regulation contested in case no. 2002-20-0103 has not been changed. The Saeima has not deemed it necessary to review the regulation that applies to special permits. 5.6. The Constitutional Court has found that a legal norm cannot be understood outside its functioning in the interface between “the ought” of law and the existence, to word it differently – outside the practice of applying this norm and the legal system, within which it functions. 5.7. To establish, whether the aim defined by the legislator is reached by the contested norm, functioning of the contested norm in practice must be analysed (see Judgment of 6 October 2003 by the Constitutional Court in Case no. 2003-08-01, Para 4 of the Findings, and Judgment of 28 June 2013 in Case no. 2012-26-0, Para 3 12.1). The Petitioner notes that the impugned norms even now are not applied in accordance with the Satversme. Also the summoned persons – the Ombudsman, A. Lieljuksis – point to possible deficiencies in application of the impugned norms. The Ombudsman draws the Constitutional Court’s attention to the fact that problems in application of legal norms might be indicative of unlawfulness of the norms themselves. Whereas the Saeima, as well as other summoned persons – the Prosecutor’s General Office, national security authorities – note that after passing of the judgment in case no. 200220-0103 the respective norms have been applied in accordance with the Satversme (see Case materials, Vol. 1 pp. 16, 124, 134, 137; Vol. 2 pp. 17, 25, 26; Vol. 3 p. 85.). Thus, still, more than ten years after case no. 2002-20-0103 was reviewed, there are still divergent opinions about the scope of norms contested in it and constitutionality of application thereof. 5.8. Case no. 2002-20-0103 was reviewed more than fourteen years ago, at the time, when in the Latvian legal system transformation was on-going from the Soviet law to law compatible with a democratic state governed by the rule of law, the core value of which is ensuring of human rights (compare: Judgment of 29 April 2016 by the Constitutional Court in Case no. 2015-19-01, Para 10.6). Significant changes have taken place in the legal system since that time. For example, on 1 February 2004 the Administrative Procedure Law entered into force, but on 2 February administrative courts commenced their activities. Thus, since the judgment in case no. 2002-20-0103 was passed, the legal system has significantly changed; however, the legal regulation, notwithstanding these changes and the findings included in the aforementioned judgment, has remained unchanged. Moreover, it should be taken into consideration that judgment in case no. 200220-0103 did not examine Article 13 (3) of the law “On Official Secrets”, which is contested by the Petitioner in the case under review. Although this norm comprises a reference to Article 11 (5) of the law “On Official Secrets”, which has already been reviewed, there are no grounds to recognise the claim regarding Article 13 (3) of

the Law as being already adjudicated, because it applies only to annulment of special permits. Therefore the claim regarding compliance of the impugned norms – Article 11 (5) and Article 13 (3) of the law “On Official Secrets” – with the first sentence of Article 92 of the Satversme cannot be recognised as being already adjudicated. Thus, legal proceedings in case regarding this claim must be continued. 6. The Petitioner requests the Constitutional Court to examine compliance of the impugned norms with a number of norms of the Satversme, inter alia, Article 96 of the Satversme. It was noted in the constitutional complaint and during the hearing of the Court that Article 96 of the Satversme established the Petitioner’s right to verify, what kind of information on him was included in the category of classified information and to access this information. However, it is noted in the written reply by the Saeima that compliance of the impugned norms with Article 96 of the Satversme should not be reviewed separately, because the Petitioner’s right to access materials of investigation case should be examined in connection with a person’s right to an effective legal remedy. Thus, the Constitutional Court must assess, whether legal proceedings regarding compliance of the impugned norms with Article 96 of the Satversme should be continued. 6.1. Article 96 of the Satversme provides that everyone has the right to inviolability of private life, correspondence and home. The right to private life means that an individual has a right to his private space, suffering minimal interference by the state or other persons. The finding that the right to inviolability of private life protects a person’s physical and mental integrity, honour and dignity, name and identity, as well as personal data has been consolidated in the case law of the Constitutional Court. The concept “private life” has a broad scope. Acquiring and storing personal data falls within the scope of the right to inviolability of private life (see Judgment of 26 January 2005 by the Constitutional Court in Case no. 2004-17-01, Para 10, and Judgment of 12 May 2016 in Case no. 2015-14-0103, Para 15.1). In the judgment in case no. 2002-20-0103 the Constitutional Court concluded: “A person’s right to receive information about himself should be differentiated from the right to receive information in general and about others, which are based upon two different human rights, respectively: the right to protection of private life and the right to freedom of information. On the one hand, a person has no right to demand access to officials secrets as such; however, on the other hand, a person in each particular case has the right to verify, whether information, which pertains to this person himself, has been validly included in the category of classified information” (Judgment of 23 April 2003 by the Constitutional Court in Case no. 2002-20-0103, Para 6 of the Findings). ECHR, in turn, has recognised that accessibility of information at the disposal of state institutions may be restricted to ensure its confidentiality, as well as to protect third persons’ rights. However, a system like this complies with the principle of proportionality and positive obligations of the state that follow from Article 8 of the Convention only, if to the person, who wishes to obtain information from state institutions about himself, such procedure is ensured, where refusal to hand out information is reviewed by an independent institution (compare: ECHR Judgment of 7July 1989 in case “Gaskin v. the United Kingdom”, Application no. 10454/83, Para 49).

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6.2. Pursuant to Para 11 of Article 17(1) of the Constitutional Court Law a person may submit a constitutional complaint or an application regarding initiation of a case envisaged in Para 1 of Article 16 of the Constitutional Court Law only in case of violation of established fundamental rights. Article 192 (1) of this Law provides: “A constitutional complaint (application) may be submitted to the Constitutional Court by any person who considers that their fundamental rights as defined in the Constitution infringe upon legal norms that do not comply with the norms of a higher legal force.” The Constitutional Court has noted that pursuant to Article 192 (1) and Para 1 of Article 192 (6) of the Constitutional Court Law, it is important to establish, whether, indeed, fundamental rights of the Petitioner defined in the Satversme have been violated (see Judgment of 15 April 2009 by the Constitutional Court in Case no. 2008-36-01, Para 9). The panel of the Constitutional Court, in examining the submitted constitutional complaint and deciding on initiation of a case, assesses, inter alia, compliance of the constitutional complaint with requirements set in the Constitutional Court Law, and it, among other things, verifies, whether the Petitioner has substantiated violation of fundamental rights. Whereas the Court, in the course of reviewing the case, verifies, whether a violation exists, taking into consideration materials and opinions collected in the case (see Judgment of 10 May 2013 by the Constitutional Court in Case no. 201216-01, Para 21.2). 6.3. The 1st Panel of the Constitutional Court by its decision of 15 April 2016 initiated a case regarding compliance of the impugned norms with the norms of the Satversme, but refused to initiate a case with regard to Sub-para 2.10.6 of Regulation no. 887, because in this part the application did not meet requirements set in Article 192 (1) and Para 1 of Article 192 (6) of the Constitutional Court Law (see Case Materials, Vol. 1. pp. 60 and 62). Pursuant to Sub-para referred to above, methods and inspection measures for the special protection of classified information of official secret objects, NATO, the European Union, foreign countries, international organisations and authorities (for example, pages of questionnaires) are classified as confidential information. The Constitutional Court concludes that this is the norm that prohibits the Petitioner from verifying, what kind of information about him has been included in the category of classified information, and from accessing this information, thus, possibly, restricting his fundamental rights established in Article 96 of the Satversme. However, none of the impugned norms, with respect to which the case under review has been initiated, directly or indirectly restricts the Petitioner’s fundamental rights. I.e., these norms do not regulate, what kind of information should be classified as official secrets and whether the Petitioner has the right to familiarize himself with it. 6.4. Pursuant to Para 6 of Article 29(1) of the Constitutional Court Law legal proceedings in a case may be terminated before pronouncing the judgment, if continuing legal proceedings in the case is impossible. The Constitutional Court already concluded that the impugned norms did not restrict the Petitioner’s fundamental rights established in Article 96 of the Satversme. Thus, compliance of the impugned norms with Article 96 of the Satversme cannot be examined. Thus, legal proceedings in the case in the part regarding compliance of the impugned norms with Article 96 of the Satversme are to be terminated. 7. Before reviewing constitutionality of the impugned norms, the limits of the claim must be specified.

The case has been initiated on the basis of a constitutional complaint. The Constitutional Court has found that in such a case significant meaning should be granted to the actual circumstances, in which the contested norm has violated the Petitioner’s fundamental rights (see, for example, Judgment of 25 October 2011 by the Constitutional Court in Case no. 2011-01-01, Para 12). 7.1. The Petitioner holds that the impugned norms should be regarded as being a united regulation and that they violate his fundamental rights established in the first sentence of Article 92 and the first sentence of Article 106 of the Satversme, insofar: 1) the first sentence of Article 13 (3) of the law “On Official Secrets”, by referring to the procedure envisaged in Article 11 (5), provides that the decision by the Prosecutor General on annulment of a special permit is final and not subject to appeal; 2) the second sentence of Article 13(4) of this Law provides that: a) after the final decision has been adopted, the person must be immediately transferred to a job that is not linked to official secrets or employment (service) relations with him must be terminated, and b) in the future he is prohibited from receiving a special permit. The Saeima notes that the impugned norms are not to be regarded as being a united regulation, because they regulate two different procedures: first, the procedure for appealing against a decision on annulling a special permit, and, secondly, actions by the employer, when an employee’s special permit is annulled. In each of these cases different legal remedies are said to be available to a person. 7.2. The Constitutional Court has recognised that it is not necessary to review in a case compatibility of each contested norm with each indicated norm of higher legal force (see Judgment of 20 December 2006 by the Constitutional Court in Case no. 2006-12-01, Para 5). The Constitutional Court concludes that, in view of the actual circumstances, as well as the scope and content of the impugned norms, it is expedient to divide the claim into two parts and to review: 1) compatibility of Article 11 (5) and Article 13 (3) of the law “On Official Secrets”, insofar these norms provide with regard to decision on annulling a special permit that the Prosecutor’s General decision is final and not subject to appeal, with the first sentence of Article 92 of the Satversme in connection with the first sentence of Article 106 of the Satversme; 2) compliance of the second sentence of Article 13 (4) of the law “On Official Secrets” with the first sentence of Article 106 of the Satversme. Moreover, to establish the Petitioner’s rights and lawful interests, which are protected by the first sentence of Article 92 of the Satversme, the Constitutional Court recognises as being expedient to review, first of all, compliance of Article 13(4) of the law “On Official Secrets” with the first sentence of Article 106 of the Satversme. 8. The first sentence of Article 106 of the Satversme provides: “Everyone has the right to freely choose their employment and workplace according to their abilities and qualifications”. 8.1. The Constitutional Court has repeatedly recognised that the Satversme does not directly guarantee the right to work, but the right to freely choose employment and workplace, inter alia, also the right to retain the current employment and workplace. Likewise, the right to freely choose employment includes such an important element as the right to retain one’s current employment, which, in turn, comprises

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the right to continue this employment in the future (see Judgment of 23 April 2003 by the Constitutional Court in Case no. 2002-20-0103, Para 3 of the Findings, and Judgment of 21 December 2015 in Case no. 2015-03-01, Para 14.2). The Constitutional Court has also recognised that the concept “employment” included in Article 106 of the Satversme is to be understood as such type of work that requires appropriate training and is the source of a person’s existence, as well as vocation, which is linked to the whole personality of each individual. The concept “employment” is applicable to employment in both private and public sector (see Judgment of 18 December 2003 by the Constitutional Court in Case no. 2003-12-01, Para 7, and Judgment of 21 December 2015 in Case no. 2015-03-01, Para 14.1). The right to “freely choose”, included in Article 106 of the Satversme, requires that an individual should be ensured the possibility to choose; however, it does not require ensuring to each person the possibility to do exactly the job that they wish to. However, the concept “to choose” in this Article is to interpreted as conscious and target actions by a person, not just an internal decision (see Judgment of 4 June 2002 by the Constitutional Court in Case no. 2001-16-01, Para 2 of the Findings). As the Constitutional Court has noted, in the meaning of the first sentence of Article 106 of the Satversme, the right to freely choose employment and workplace means, first, equal access to labour market to all persons, and, secondly, that the state may not set other, restrictive criteria to persons, apart from requirements regarding definite abilities and qualifications, without which a person may not perform duties of the respective office. The state has the obligation to refrain from creating such direct or indirect circumstances that would hinder a person from exercising his right to “freely choose” employment (see Judgment of 20 May 2003 by the Constitutional Court in Case no. 2002-21-01, Para 1 of the Findings, and Judgment of 21 December 2015 in Case no. 2015-03-01, Para 14.1). The Constitutional Court has also concluded that the fundamental rights enshrined in the first sentence of Article 106 of the Satversme protect a person from all actions by the state that restrict this freedom of choice. However, this norm does not prohibit the state from setting requirements that must be met in order to engage in particular vocation. The right to freely choose employment, inter alia, the right to retain the current employment may be restricted; however, the restriction must comply with one of legitimate aims defined in Article 116 of the Satversme and must be proportionate (see Judgment of 23 April 2003 by the Constitutional Court in Case no. 2002-20-0103, Para 3 of the Findings, and Judgment of 21 December 2015 in Case no. 2015-03-01, Para 14.2). 8.2. The Petitioner notes that the Article 13 (4) of the law “On Official Secrets” restricts the fundamental rights established by the first sentence of Article 106 of the Satversme in two ways, i.e.: 1) following adoption of the final decisions, a person is immediately transferred to a job that is not linked to official secrets, or employment (service) relations with him must be terminated; 2) the person is denied the right to receive a special permit in the future. In its judgment in case no. 2002-20-0103 the Constitutional Court already found that refusal to issue a special permit restricted a person’s right to choose or to retain workplace. Each person, who meets the criteria established in law, has the right to choose also such workplace, in which he comes into contact with classified information, as well as to receive a special permit (see Judgment of 23 April 2003 by the Constitutional Court in Case no. 2002-20-0103, Para 3 of the Findings).

The contested norm – Article 13 (4) of the law “On Official Secrets” – in the case of annulling a special permit denies a person the right to retain his current workplace. After annulment of a special permit, the person no longer meets one of the qualification requirements, but compliance with this requirement is mandatory for the person to perform the previous work; i.e., the person no longer has access to official secrets and he no longer can perform his duties of office. Whereas prohibition to receive a special permit repeatedly restricts a person’s right to freely choose workplace in the future. Thus, Article 13(4) of the law “On Official Secrets” restricts a person’s fundamental rights to freely choose and retain workplace.

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9. To establish, whether the restriction upon fundamental rights that have been defined by the impugned norms is admissible, the Constitutional Court must examine, whether this restriction has been established by a law adopted in due procedure, whether it has a legitimate aim, and whether the restriction is proportionate (see, for example, Judgment of 29 October 2003 by the Constitutional Court no. 2003-05-01, Para 22). 10. To examine, whether the restriction upon fundamental rights has been established by law, it must be verified: 1) whether the law has been adopted in compliance with procedure envisaged in regulatory enactments; 2) whether the law has been promulgated and is accessible in accordance with requirements of regulatory enactments; 3) whether the law has been worded with sufficient clarity, so that a person would be able to understand the content of rights and obligations following from it and would be able to predict consequences of application thereof (see, for example, Judgment of 2 July 2015 by the Constitutional Court in Case no. 2015-01-01, Para 14). 10.1. The contested norm to be examined – Article 13 (4) of the law “On Official Secrets” – is included in a law and is publicly accessible in accordance with requirements of regulatory enactments. It is not disputed in the case under review, whether the impugned norms has been adopted and promulgated in procedure established by regulatory enactments. 10.2. The Constitutional Court has noted that a legal norm that restricts persons’ fundamental rights should be worded with sufficient precision, so that an individual, in case of necessity seeking appropriate advice, would be able to plan his actions (see Judgment of 11 May 2011 by the Constitutional Court in Case no. 2010-55-0106, Para 13.1). 10.2.1. It is not disputed in the case that the contested norm – Article 13 (4) of the law “On Official Secrets” – has been sufficiently clearly worded, so that a person would be able to understand the content of rights and obligations following from it and predict consequences of application thereof, insofar this norm provides that after adoption of the final decision a person is immediately transferred to a job that is not related to official secrets or that employment (service) relations with him must be terminated. 10.2.2. At the hearing of the Court divergent opinions were expressed with respect to the scope and content of the second restriction upon fundamental rights included in this contested norm – prohibition to a person to receive a special permit in the future.

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The Petitioner and the Ombudsman hold that after a person’s special permit has been annulled, he is prohibited from receiving a special permit for the rest of his life (see Case Materials, Vol. 1, p. 13.; Vol. 2 p. 15.; Vol. 3, pp. 71. and 72). Whereas the Saeima and other summoned persons – the Prosecutor General, national security authorities – note that this norm does not exclude the possibility for a person, in case of exception, to apply repeatedly for a special permit and to obtain it, if the circumstances that were the grounds for annulling the special permit have been eliminated (see Case Materials, Vol. 3, p. 87; Vil. 4, pp. 19, 20, 38, 53, 54, and 71). It has been recognised in the case law of the Constitutional Court that the opinion of participants in the case and of the summoned persons regarding the content of impugned norms per se is not decisive in establishing legal consequences of the particular norm (see Judgment of 28 November 2014 by the Constitutional Court in Case no. 201409-01, Para 20.2.2). At the hearing of the Court the summoned persons pointed to possible contra legem application of the contested norm in come cases; however, these references do not lead to a conclusion about a uniform and general practice of applying the contested norm. In examining the scope and content of the restriction established by the contested norm – prohibition to receive a special permit in the future, the Constitutional Court finds: in the wording that is currently in force this norm does not provide that a person would have the right to apply repeatedly for a special permit and does not allow a person to arrive at such a conclusion. Hence, the contested norm has been worded with sufficient clarity, allowing a person to understand the content of rights an obligations following from it. Thus, restrictions upon fundamental rights envisaged in Article 13 (4) the law “On Official Secrets” have been established by law. 11. All restrictions upon fundamental rights should be based upon circumstances and substantiation for necessity thereof; i.e., a restriction should be established for important interests – a legitimate aim (see, for example, Judgment of 22 December 2002 by the Constitutional Court in Case no. 2005-19-01, Para 9). Article 116 of the Satversme provides that rights envisaged in Article 106 of the Satversme “may be subject to restrictions in circumstances provided for by law in order to protect the rights of other people, the democratic structure of the state, and public safety, welfare and morals”. The Petitioner admits that the restriction upon fundamental rights to freely choose and retain workplace established in the contested norm – Article 13 (4) of the law “On Official Secrets” – has a legitimate aim – protection of public safety (see Case Materials, Vol. 1, p. 16). The Saeima also notes that to persons, whose work is linked to public safety and performance of obligations that are important for the state and society, additional requirements and restrictions can be set that cannot be set to persons, whose professional activities are entirely in the field of private law (see Case Materials, Vol. 1, p. 86). The Constitutional Court concludes that prohibition to retain the current workplace, as well as freely choose workplace in the future if a special permit is annulled is linked to the need to protect public safety. I.e., the legislator’s aim, in adopting the contested norm, was to prevent a possibility that a person, who might jeopardise national security interests, accesses official secrets. The restriction established in Article 13 (4) of the law “On Official Secrets” has a legitimate aim – protection of public security.

12. In establishing, whether the restriction upon fundamental rights defined by the impugned norms is proportionate, the Constitutional Court examines, whether the restrictive measures that are used are appropriate for reaching the legitimate aim, whether the aim cannot be reached by other measures that are less restrictive upon an individual’s rights and whether the benefit gained by society outweighs the harm inflicted upon an individual. If, in examining a legal norm, it is recognised that it is incompatible with even one of these criteria, then it is incompatible with the principle of proportionality and is unlawful (see, for example, Judgment of 16 May 2007 by the Constitutional Court in Case no. 2006-42-01, Para 11). The Petitioner notes that the restrictions upon fundamental rights established in the contested norm are not appropriate for reaching the legitimate aim, are not necessary and that the benefit that society gains from them does not outweigh the harm inflicted upon an individual. However, he links restriction upon fundamental rights established in the first sentence of Article 106 of the Satversme with regulation on the procedure for annulling a special permit and application thereof, but has not expressed his opinion on proportionality of those restrictions upon fundamental rights, which are established in Article 13 (4) of the law “On Official Secrets”. 13. The Constitutional Court will assess separately the proportionality of each restriction upon fundamental rights established in Article 13 (4) of the law “On Official Secrets”. First, regulation pursuant to which a person, after a final negative decision has been adopted, must be immediately transferred to a job that is not related to official secrets or that employment (service) relations with him must be terminated, will be examined. 13.1. Measures chosen by the legislator are appropriate for reaching the legitimate aim, if this aim is reached by the particular regulation (see, for example, Judgment of 7 October 2010 in Case no. 2010-01-01, Para 13). The prohibition established in the contested norm under review for a person to retain the current workplace after annulment of a special permit ensures that official secrets cannot be accessed without a special permit. Thus, the restriction under review is appropriate for reaching the legitimate aim – protection of public security. 13.2. The restriction established in the contested norm is necessary, if no other measures exist that would be as effective and by choosing of which a person’s fundamental rights would be restricted to a lesser degree. However, a more lenient measure is not just any other measure, but only such measure that allows reaching the legitimate aim in at least the same quality (see, for example, Judgment of 7 October 2010 by the Constitutional Court in Case no. 2010-01-01, Para 14). Verifying, whether alternative measures that would be less restrictive upon person’s fundamental rights established in the Satversme exist, falls within the competence of the Constitutional Court. Likewise, it falls within the competence of the Constitutional Court to establish, whether the legislator, in restricting fundamental rights of a person or a group of persons, has considered, whether in the particular case no alternative measures exist that would be less restrictive upon a person’s fundamental rights provided for in the Satversme (see, for example, Judgment of 30 March 2010 by the Constitutional Court in Case no. 2009-85-01, Para 19). It follows from the case materials that in procedure of adopting the law “On Official Secrets” no alternative measures were found that would restrict a person’s fundamental rights to a lesser extent than the restriction to retaining the current

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workplace after annulment of the special permit established in Article 13 (4) of the Law. Neither has the Constitutional Court, in the process of preparing the case or at the hearing of the Court, has found confirmation of existence of another measure, less restrictive upon a person’s rights, that would be as effective and would reach the legitimate aim in at least the same quality as the restriction under review. Thus, the restriction under review is necessary for reaching the legitimate aim. 13.3. In assessing appropriateness of a restriction upon fundamental rights for its legitimate aim, it must be verified, whether the adverse consequences to a person caused by a restriction upon his fundamental rights do not outweigh the benefit that society in general gains from this restriction. I.e., it must be established, which interests must be balanced in the case and which of these interests should be granted priority. Thus, the Constitutional Court must establish, whether the benefit that public gains from application of the impugned norms outweighs the harm inflicted upon a person’s rights (see Judgment of 7 October 2010 by the Constitutional Court in Case no. 2010-01-01, Para 15, and Judgment of 2 July 2015 on Case no. 2015-01-01, Para 16.3). In the case under review a person’s right to retain workplace must be balanced with the security interests of the state and society. In its judgment in case no. 2002-20-0103 the Constitutional Court found that national security interests demand that only such persons would have access to official secrets, whose personal traits would not permit a risk that official secrets might be disclosed. The restriction to retain workplace, if a person has been validly denied access to official secrets, is necessary in a democratic society and ensures due balance between the interests of society and those of a person (see Judgment of 23 April 2003 by the Constitutional Court in Case no. 2002-20-0103, Para 3 of the Findings). A person’s right to retain workplace after annulment of a special permit would subject national security interests to risk, allowing that official secrets can be accessed by a person, whose ability to keep official secrets is doubted. Moreover, a person without a special permit would not be able to perform the respective duties of office in full. The Constitutional Court concluded that in this case priority should be given to security interests of the state and society and that the restriction with respect to a person’s fundamental right to keep his workplace was proportionate. Thus, the second sentence of Article 13 (4) of the law “On Official Secrets”, insofar it provides that after the final decision on annulment of a special permit has been adopted, a person must be immediately transferred to a job that is not linked to official secrets or that employment (service) relations with him must be terminated, complies with the first sentence of Article 106 of the Satversme. 14. Examining the prohibition to a person to receive a special permit in the future and, thus, to freely choose workplace, established in Article 13 (4) of the law “On Official Secrets”, the Constitutional Court finds that it, similarly to prohibition to retain workplace, it is appropriate for reaching the legitimate aim. I.e., it denies access to official secrets to a person, whose special permit already has been annulled once, this person is prohibited from receiving a special permit also in the future and, thus, a possible threat to public security is eliminated. The Constitutional Court must examine, whether the legitimate aim cannot be reached by more lenient measures.

A general prohibition without time limits to receive a special permit in the future, if it has been annulled once, has been established in the contested norm, irrespectively of the circumstances that have been the grounds for annulling a special permit. At the hearing of the Court the Ombudsman’s representative expressed the opinion that the legitimate aim could be reached by measures that are less restrictive upon a person’s rights, for example, in certain cases, when circumstances that have been the grounds for annulling a special permit have been eliminated, allowing a person to apply repeatedly for a special permit (see Case Materials, Vol. 4, pp. 82 and 83). However, the Constitutional Court established that already now the contested norm was applied contra legem in way that was less restrictive upon a person’s rights (see Para 22.2.2 of this Judgment). Namely, sometimes a person is allowed to apply repeatedly for a special permit, when circumstances that had been the grounds for initial annulment of a special permit had been eliminated, or when it is established that such circumstances had not existed at the time, when the decision had been adopted. In such a case a risk to national security is prevented by national security authorities that investigate the respective person and assess all risks. Experience of other European countries, including member states of NATO and the European Union, shows that the issue of repeated issuing of special permits can be regulated in a way that is less restrictive upon a person’s rights. For example, in the Czech Republic and Lithuania in a case of annulment of a special permit, a person is not prohibited from repeatedly applying for a special permit. Whereas in Estonia the possibility to apply repeatedly for a special permit depends upon the grounds for annulment of a special permit. A person is prohibited from applying repeatedly for a special permit only in some cases defined in regulatory enactments, for example, if a person has been punished for an intentional crime against the state or humanity. In other cases such prohibition is not imposed. It does not follow from the case materials that the Saeima, in adopting the law “On Official Secrets”, had examined, whether at least with respect to some specific cases a regulation that would be less restrictive upon a person’s rights could be adopted. The Constitutional Court does not have to indicate in the judgment all possible more lenient measures. The task of the Constitutional Court is to examine compliance of the impugned norms with fundamental rights established in the Satversme, not to substitute the legislator’s discretion in a matter of legal policy with its own opinion on possible most rational legal regulation. Upon establishing that there is even one less restrictive measure that would allow reaching the legitimate aim at least in the same quality, there are grounds to recognise that the contested norm places disproportionate restrictions upon fundamental rights (see Judgment of 19 January 2014 by the Constitutional Court in Case no. 2013-08-01, Para 14, and Judgment of 19 March in Case no. 2013-13-0, Para 1 15.1). The Constitutional Court finds that at least in the case, when circumstances that had been the grounds for initial annulment of a special permit have been eliminated or it has been disclosed that such circumstances did not exist at the time when the decision was taken, there would be no grounds for prohibiting a person from receiving a special permit repeatedly. Thus, it would be possible to protect national security interests and reach the legitimate aim of the contested norm in the same quality, but by measures that are less restrictive upon a person’s rights, for example, by envisaging in law certain cases, where it would be allowed to apply for a special permit repeatedly, or a term after expiry of which a person could apply repeatedly for a special permit in certain procedure. Thus,

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a general prohibition without time limits to receive repeatedly a special permit after it has been annulled places disproportionate restrictions upon a person’s fundamental rights, i.e., the right to choose workplace. Thus, the words “and henceforth he or she shall be denied receipt of a special permit” in the second sentence of Article 13 (4) of the law “On Official Secrets” are incompatible with the first sentence of Article 106 of the Satversme. 15. The first sentence of Article 92 of the Satversme provides: “Everyone has the right to defend his or her rights and lawful interests in a fair court”. A finding has been enshrined in the case law of the Constitutional Court that Article 92 of the Satversme imposes upon the state a positive obligation, pursuant to which it must not only establish and maintain an institutional infrastructure that is necessary for ensuring a fair court, but also must adopt and implement legal norms that would guarantee that the procedure itself is fair and objective. In interconnection with Article 90 of the Satversme this obligation means the legislator’s duty to clearly envisage in legal norms such procedures that would create in an individual a clear and solid confidence in his possibilities to protect his fundamental rights (see Judgment of 5 March 2002 by the Constitutional Court in Case no. 2001-10-01, Para 2 of the Findings, and Judgment of 24 October 2013 in Case no. 2012-23-01, Para 14.4). Thus, the concept of “a fair court” included in Article 92 of the Satversme comprises two aspects, i.e., “a fair court” as an independent institution of judicial power, which hears the case, and “a fair court” as due procedure appropriate for a state governed by the rule of law, in which this case is reviewed. It means that everyone has the right not only to fair legal proceedings, but also to access to court (see Judgment of 5 March 2002 by the Constitutional Court in Case no. 2001-10-01, Para 2 of the Findings, and Judgment of 17 October 2005 in Case no. 2005-07-01, Para 6). The Satversme does not directly provide for cases, when the right to a fair trial may be restricted; however, this right is not absolute. This right may be restricted, insofar it is not substantially taken away (see, for example, Judgment of 4 January 2005 by the Constitutional Court on Case no. 2004-16-01, Para 7.1, and Judgment of 17 May 2010 in Case no. 2009-93-01, Para 12). Thus, the right to a fair court may be restricted. 16. The Petitioner requests the Constitutional Court to review Article 11 (5) and Article 13 (3) of the law “On Official Secrets”, insofar these norms provide with respect to decision on annulling a special permit that the Prosecutor’s General decision is final and not subject to appeal. If Article 11(5) of the Law would not include the words “whose decisions shall be final and may not be appealed”, then a person could appeal a Prosecutor’s General decision in court in accordance with the general procedural regulation, vis-à-vis which the regulation included in the law “On Official Secrets” must be considered as being special regulation. The Constitutional Court has already concluded that Article 92 of the Satversme does not guarantee to a person the right to have all matters that are important to him decided in court (see Judgment of 6 December 2004 by the Constitutional Court in Case no. 2004-14-01, Para 8). However, the state must ensure effective protection to every person, whose rights or lawful interests have been infringed upon. Ensuring a person’s right to a fair trial is the most important means for reaching this aim, because protection of a person’s other fundamental rights depends upon due provision

of this right (see Judgment of 20 April 2012 by the Constitutional Court in Case no. 2011-16-01, Para 9). It is not disputed in the case that access to official secrets is not part of any person’s rights and that the state has broad discretion in choosing measures for protecting official secrets. However, this dos mean that in the procedure of protecting official secrets such subjective and lawful interests of persons that are established in Article 92 of the Satversme are not restricted. Therefore the Constitutional Court must establish, whether the impugned norms – Article 11(5) and Article 13 (3) of the law “On Official Secrets” – apply to such rights and lawful interests of the Petitioner that fall within the scope of the first sentence of Article 92 of the Satversme. 17. Article 89 of the Satversme provides that the state recognises and protects fundamental human rights in accordance with the Satversme, laws, and international treaties binding upon Latvia. A finding has been enshrined in the case law of the Constitutional Court that the state’s obligation to take into consideration international commitments in the field of human rights follows from this article of the Satversme. The aim of the constitutional legislator has been to harmonise norms on human rights included in the Satversme with international human rights provisions (see, for example, Judgment of 30ī August 2000 by the Constitutional Court in Case no. 2000-03-01, Para 5 of the Findings). 17.1. The Constitutional Court has found that the first sentence of Article 92 of the Satversme must be interpreted, first and foremost, in interconnection with Article 6 of the Convention. The first part of Article 6 of the Convention provides: “In the determination of his civil rights and obligations […], everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” ECHR has recognised that the right to access to court as one element in the right to a fair trial means possibility for a person to initiate proceedings for the protection of civil rights and obligations in an institutional that should be considered as being “ a court” in the meaning of the Convention (see ECHR Judgment of 21 February 1975 in case “Golder v. the United Kingdom”, Application no. 4451/70, Para 36). However, the right to access to court, established in the first part of Article 6 of the Convention, does not mean that the possibility to turn to court with regard to any issue should be ensured to a person. I.e., the concept of “determination of civil rights and obligations”, used in this norm, makes it applicable only in such cases, the outcome of which is decisive with respect to a person’s civil rights and obligations (see ECHR Judgment of 16 July 1971 in case “Ringeisen v. Austria”, application no. 2614/65, Para 94). ECHR has also recognised that a person’s right to access to court in cases with respect to employment in public service may be restricted, in view of the special relationship between the state and a civil servant, which is characterised by the obligation of loyalty and duty of discretion (see ECHR Decision of 18 November 2014 in “Spūlis and Vaškevičs v. Latvia”, applications no. 2631/10 and 12253/10, Para 41 and 42). However, if a person’s civil rights are affected, then the state has the obligation to prove existence of “objective grounds in the state’s interests” for denying a person access to court (Judgment of the ECHR Grand Chamber of 19 April 2007 in case “Vilho Eskelinen and others v. Finland”, application no. 63235/00, Para 62).

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17.2. Article 53 of the Convention provides: “Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a Party”. Thus, if it follows from norms of the Convention and interpretation thereof in the case law of ECHR that certain fundamental rights enshrined in the Constitution encompass the concrete situation, then it usually falls within also the scope of the respective fundamental rights enshrined in the Satversme. Whereas, if human rights enshrined in the Convention do not encompass the particular situation, it does not mean that this situation would not fall within the scope of fundamental rights enshrined in the Satversme. In a case like this the Constitutional Court must verify, whether no circumstances exist that would indicate that a higher level of fundamental rights protection is envisaged in the Satversme (see, for example, Judgment of 13 May 2005 by the Constitutional Court in case no. 2004-18-0106, Para 5 of the Findings, and Judgment of 19 October 2011 in case no. 2010-71-01, Para 12.1). Thus, the Convention envisages the minimum standard of protection for human rights and fundamental freedoms; however, the state may guarantee a broader scope of these rights and higher standards of protection in its laws, first of all – in the constitution of the state. In interpreting norms of the Satversme, the Constitutional Court must take into consideration the Convention and judicature of ECHR; however, this does not prohibit the Constitutional Court from arriving at the conclusion that the Satversme provides for a higher level of protection of fundamental rights than the Convention. 18. The Constitutional Court already concluded that annulment of a special permit results in restriction upon a person’s fundamental right established in the first sentence of Article 106 of the Satversme to freely choose and retain workplace (see Para 20.2 of this Judgment). The Department of Administrative Cases of the Supreme Court Senate concluded on 24 March 2009 that the Prosecutor’s General decision on annulling a special permit does not have all features of an administrative act; however, its impact upon a person’s rights, inter alia, the right to retain an office, essentially may be decisive. Therefore, taking into account general regulation that defines the procedure for appealing against administrative acts in a court, such decisions should be reviewed by a court in administrative procedure. However, the special legal norms, i.e., Article 11 (5) and Article 13 (3) of the law “On Official Secrets” do not provide for such procedure (see Decision of 24 March 2009 by the Department of Administrative Cases of the Supreme Court Senate in case no. A7027708/18 SKA-278/2009, Para 10). ECHR, in turn, has established that annulment of a special permit had a decisive impact upon the applicant’s personal situation – without the required access he could not continue working in the job that he had performded for seven years, and it, undeiably, caused financial conseqeuces to him. The connection between the decision not to grant access to official secrets to the applicant and his loss of income was neither minor, nor indirect (see, for example, ECHR Judgment of 29 April 2014 in case “Ternovskis v. Latvia”, application no. 33637/02, Para 44). A person, who because of annulment of a special permit has been transferred to another job or with whom employment (service) relations have been terminated, has the right to turn to court in connection with this legal employment issue. However, the competence of the court, which reviews a dispute that follows from this legal employment relations issue, does not include the issue, whether a person’s special

permit has been annulled lawfully and, thus whether the transfer of a person to another job or dismissal from the job (service) had been valid. Also ECHR in its judgment in case “Ternovskis versus Latvia” recognised that he judges, who reviewed the applicant’s application with respect to a dispute related to legal employment relations, could not familiarise themselves with essential proof, for example, materials of the investigation case regarding the applicant’s access to official secrets, and, in fact, in the particular case only the defendant had access to all relevant documents (see ECHR Judgment of 29 April 2014 in case “Ternovskis versus Latvia”, application no. 33637/02, Para 71). The Constitutional Court concluded that in the case of annulling a special permit the restriction upon a person’s fundamental rights and lawful interests manifests itself directly as the consequences that the particular decision leaves upon legal employment relations. These consequences, contrary to the Saeima’s opinion, must be taken into account in reviewing, whether the impugned norms restrict a person’s rights and lawful interests in the meaning of the first sentence of Article 92 of the Satversme. Thus, in legal reality annulment of a special permit may restrict a person’s fundamental rights. The Constitutional Court holds that in the case, where a person’s rights enshrined in the first sentence of Article 106 of the Satversme are restricted, he should have the possibility to defend his rights in the way that complies with the first sentence of Article 92 of the Satversme. Thus, the regulation included in the impugned norms – Article 11 (5) and Article 13 (3) of the law “On Official Secrets”– with respect to procedure for appealing against decisions on annulment of a special permit must be examined within the scope of the first sentence of Article 92 of the Satversme in connection with a restriction upon fundamental rights established in the first sentence of Article 106 of the Satversme. 19. The Constitutional Court must assess, whether the procedure included in the impugned norms for appealing decisions on annulling special permits ensures to a person the right to a fair trial. Firstly, it must be assessed, whether access to “court” in the institutional meaning of this word has been ensured to a person. 19.1. In its judgment in case no. 2002-20-0103 the Constitutional Court found that the norm examined in this case – Article 11 (5) of the law “On Official Secrets” – restricted fundamental rights established in Article 92 of the Satversme, because neither the Director of CPB, nor the Prosecutor General could be regarded as being an institution that would comply with denomination “court”, i.e., an independent institution of judicial power that reviews the case (see Judgment of 23 April 2003 by the Constitutional Court in Case no. 2002-20-0103, Para 5 of the Findings). It follows also from the judicature of ECHR that the Prosecutor General, who adopts the final decision with respect to annulment of a special permit, cannot be regarded as being “a court” even in the broadest meaning of this word (see ECHR Judgment of 29 April 2014 in case “Ternovskis versus Latvia”, application no. 33637/02, Para 72 and 73). 19.2. However, the first sentence of Article 92 of the Satversme does not require to ensure that a person in order to protect his rights and unlawful interests that have been infringed upon could turn solely to institutions of judicial power referred to in Article 82 of the Convention. On the basis of case law of ECHR with respect to Article 13 of the Convention, it can be concluded that provision of effective rights protection depends not only upon the possibility to turn to court, but upon the whole

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mechanism of supervision and functioning thereof (see Judgment of 11 May 2011 by the Constitutional Court in Case no. 2010-55-0106, Para 20.1). 19.2.1. The Petitioner holds that the Prosecutor General, in reviewing a person’s complaint about the decision by the Director of CPB, cannot be entirely independent and unbiased. The Saeima and the summoned persons – the Ministry of Justice, the Ministry of the Interior, the Prosecutor’s General Office, and CPB – do not uphold this view (see Case Materials, Vol. 1, pp. 8, 9, 80, 123, 124,135 and 142; Vol. 2, p.3). The Constitutional Court has found that in certain fields the prosecutor’s office in Latvia may be considered as being an effective and accessible legal remedy, because the status of a prosecutor and his role in supervision of legality ensures independent and unbiased review of a complaint in compliance with Article 13 of the Convention (see, for example, Judgment of 11 October 2004 by the Constitutional Court in Case no. 2004-06-01, Para 19). 19.2.2. The principle of separation of power that follows from the concept of democratic republic included in Article 1 of the Satversme ensures implementation and protection of fundamental values of a democratic state governed by the rule of law. This principle should not be perceived in a dogmatic and formalistic way, but should be correlated to its aim to prevent centralisation of power in the hands of one institution or official. Thus, this principle guarantees mutual checks-andbalances between institutions, to prevent trends of usurping power and to promote restraint of power [see Judgment of 1 October 1999 by the Constitutional Court in Case no. 03-05 (99), Para 1, and Judgment of 18 December 2013 in Case no. 201306-01, Para 11]. The Constitutional Court has found: “The status and role of the prosecutor’s office within the constitutional system of the state must be defined in accordance with the principle of separation of powers. The order of implementation of state power, the status or competence of an institution of state power cannot be analysed, if the issue of the separation of powers is ignored (Judgment of 20 December 2006 by the Constitutional Court in Case no. 2006-12-01, Para 6). The Constitutional Court has found: objective neutrality of a court means that any valid doubts of the participants of a case or society regarding objectivity of the court must be excluded. Moreover, even semblance may be important, and even perceived biasedness must be eliminated. These findings regarding neutrality of a court are equally applicable also to the prosecutor’s office as an institution of judicial power (see Judgment of 14 May 2013 by the Constitutional Court in Case no. 2012-13-01, Para 13.2 and 14.2.3, and Judgment of 29 April 2016 in Case no. 201519-01, Para 16.1). 19.2.3. The Constitutional Court finds that in the field of protecting official secrets the Prosecutor General is, firstly, a decision maker. For example, pursuant to Article 3(2) and Article 8(2) of the Investigatory Operations Law, the Prosecutor General approves internal regulatory enactments of state institutions, which have been granted by law the right to engage in investigatory activities, on organisation of such activities, methods, tactics, measures and record keeping. Secondly, in accordance with Article 26(1) of the law “On State Security Institutions” the Prosecutor General and public prosecutors specifically authorised by him carry out supervision over the processes of investigatory operations, intelligence and counterintelligence of state security institutions and the system for protecting official secrets. Thirdly, pursuant to the impugned norms the Prosecutor General in certain cases adopts the final decision

with respect to special permits. Thus, the Prosecutor General has extensive and varied authorisation in this field. Since the decision on annulling a special permit restricts a person’s fundamental rights, all risks related to validity of the decision and all doubts about independence and objectivity of the final decision maker should be eliminated. The Constitutional Court concludes: although the Prosecutor General is an official belonging to the judicial system, in the field of protection of official secrets he cannot be regarded as an institution that would comply with denomination “court”. Thus in the procedure established in the impugned norms – Article 11(5) and Article 13(3) of the law “On Official Secrets” –for appealing against the decision on annulling a special permit “court” in the institutional meaning thereof is not accessible to a person. 20. The Constitutional must assess also, whether in the procedure established in the impugned norms for appealing against the decision on annulment of a special permit procedural rights that comply with the first sentence of Article 92 of the Satversme are effectively ensured to a person. A fair trial as due legal proceedings appropriate for a state governed by the rule of law comprises a number of elements – interconnected rights. It comprises, for example, the principle of equality of parties and adversary principle, the right to be heard, the right to a reasoned judgment, and the right to appeal (see Judgment of 17 May 2010 by the Constitutional Court in Case no. 2009-93-01, Para 8.3). Although in the framework of the case under review the regulation, pursuant to which a Prosecutor’s General decision is final and not subject to appeal, is being reviewed, the way, in which a person’s procedural rights are ensured throughout the procedure of annulling the special permit must be taken into consideration. The Constitutional Court has concluded that the limits of applying rights included in the first sentence of Article 92 of the Satversme may be narrowed in cases that apply to national security; however, certain guarantees regarding rights protection must exist also in such cases (see Judgment of 6 December 2004 by the Constitutional Court in Case no. 2004-14-01, Para 10). The principle of a state governed by the rule of law requires examination of cases in such procedure that would ensure fair and objective adjudication thereof (see Judgment of 9 January 2014 by the Constitutional Court in Case no. 2013-08-01, Para 6). The Constitutional Court in its Judgment in case no. 2002-20-0103 already recognised that a person’s procedural rights may be restricted in the procedure of issuing special permits, but also noted that law did not establish a procedure for adopting a decision on a special permit and that, inter alia, no procedural guarantees for the person to be investigated had been set (see Judgment of 23 April 2003 by the Constitutional Court in Case no. 2002-20-0103, Para 3 and 5 of the Findings). The Constitutional Court holds that the reference to the procedure for appealing against a decision on annulling a special permit included in the judgment by ECHR is important. Although ECHR in this case did not review directly this procedure, it concluded that the procedure, in which the Prosecutor General adopted a decision with respect to the applicant’s special permit did not comply with adversary principle and the principle of equality. Likewise, ECHR concluded that the applicant had no possibility to respond to evidence that testified against him, and, thus, he was in unequal position compared to the other party (see ECHR Judgment of 29 April 2014 in case “Ternovskis versus Latvia”, Application no. 33637/02, Para 72).

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The Constitutional Court concludes that, in view of the national security interests, in the procedure of annulling a special person the procedural rights may be ensured to a person in a restricted way, however, without substantially depriving of them. The Constitutional Court holds that in the context of this procedure it is important to review a number of aspects in ensuring a person’s procedural rights. 21. The Constitutional Court has concluded that the concept of a fair trial comprises also the principle of equal opportunities. It requires that all parties involved in proceedings would have equal opportunities to present facts of the case and prohibits from granting any of the parties significant advantages compared to the opponent (see Judgment of 5 March 2002 by the Constitutional Court in Case no. 2001-10-01, Para 7 of the Findings). On the one hand, by involving a person in proceedings, actual and legal correctness of the adopted decision is expected, but, on the other hand, human dignity finds its manifestation in the right to fair procedure (see Judgment of 5 November 2008 by the Constitutional Court in Case no. 200804-01, Para 11). Also in the judgment in case no. 2002-20-0103 the Constitutional Court recognised that the principle of justice comprised requirements needed for a fair procedure for examining a case, and hearing a person was one among such requirements. This means that both parties of the proceedings have the right to present their opinion on the respective matter (see Judgment of 23 April 2003 by the Constitutional Court in Case no. 2002-20-0103, Para 5 of the Findings). 21.1. In a state governed by the rule of law the right to be heard, inter alia, has an important role in exercising the right to a fair trial, i.e., in full defence of rights and balancing the interests of involved parties (see Judgment of 21 October 2009 by the Constitutional Court in Case no. 2009-01-01, Para 11.3). The right to be heard is exercised in a number of ways, for example, as the right to receive full information about the opinion expressed by the opposite party, on evidence and facts collected, as well the right to expect that the court’s ruling, taking into account opinion expressed by parties, will be reasoned. Moreover, the right to be heard comprises also a person’s right to speak about facts and legal issues. Exercising of this right at least in writing must be ensured (see Judgment of 27 June 2003 by the Constitutional Court in Case no. 2003-03-01, Para 6.1. of the Findings). ECHR has also rescognised that the aim of the Convention is to guarantee efficient and effecive rather than theoretical and illusory rights, therefore the right to be heard is to be considered as being effective only if the person is actually “heard”, i.e., if his arguments are duly examined (see ECHR Judgment of 29 April 2014 in case “Ternovskis versus Latvia”, application no. 33637/02, Para 66). This is one of procedural rights, which, although in a limited way, should be ensured to a person also in the procedure for annulling a special permit. The Constitutional Court has already concluded that the person under investigation must be ensured, to the extent possible, the right to express his opinion and to be heard, before the decision on accessing official secrets is adopted (see Judgment of 23 April 2003 by the Constitutional Court in Case no. 2002-20-0103, Para 5 of the Findings). 21.2. No publicly accessible regulatory enactment regulates the procedure, in which persons, whose special permit is annulled, are to be heard. The summoned persons – CPB, the Security Police – note that in case of annulling a special permit discussions are held in accordance with Para 111 of Regulation no. 21, which provides that the national security authority, in the framework of investigation, conducts

discussions with persons, who are applying for a special permit of the first category. Whereas in other instances discussions are held, if answers to questions included in the questionnaire must be clarified or if important information established in course of investigation must be assessed (see Case Materials, pp. 136, 137 and 147). The Security Police also notes that before a special permit is annulled a discussion is held, during which a person is informed about causes for annulment and the established facts in the amount to preclude disclosure of official secrets and jeopardising counterintelligence interests. The Director of CPB explained at the hearing of the Court that in accordance with instructions by the Prosecutor General in the procedure of annulling a special permit a person is always invited for a discussion at the national security authority (see Case Materials, Vol. 1, p. 148; Vol. 4, pp. 59 and 60). The Prosecutor’s General Office in it written opinion and the Prosecutor General at the hearing of the Court provided divergent opinions on performing the obligation to hear. It is stated in the written opinion that since adoption of the judgment in case no. 2002-20-0103, with only some exceptions, persons are always invited to provide explanations, when the decision by the Director of CPB is examined. The Prosecutor General, in turn, noted at the hearing of the Court that a person was invited for a discussion only, if he had clearly expressed such a request in his complaint (see Case Materials, Vol. 1, p. 124; Vol. 4, pp. 42 and 43). The Petitioner notes that he had been invited for a discussion at the Security Police and with the Director of CPB, but not with the Prosecutor General, although he had indirectly requested it in his complaint (see Case Materials, Vol. 1, pp. 3, 4 and 46; Vol. 4, p. 43). 21.3. A person’s right to be heard is linked to the right to be informed about circumstances that are the basis for adopting a decision on annulling a special permit. In its judgment in case no. 2002-20-0103 the Constitutional Court found: by allowing a person under investigation to familiarise himself with investigation materials in full could inflict significant harm upon national security interests, for example, confidentiality of operatives. In such a case the damage inflicted upon national interests in general would outweigh restrictions imposed upon the rights of some persons (see Judgment of 23 April 2003 by the Constitutional Court in Case no. 2002-20-0103, Para 5 of the Findings). In the judgment in the case under review the Constitutional Court already made a reference to judicature of ECHR, pursuant to which a person may be prohibited from acquiring information about himself at the disposal of national security authorities to protect confidentiality of this information or other persons’ rights; however, a person should have the possibility to turn to an independent institution in connection with such refusal (see Para 18.1 of this Judgment). The Saeima notes in its written reply that disclosing the content of information included in the investigation files or revealing sources in need of special protection could jeopardise national security. Such risks cannot be predicted and might be different in each particular case; therefore they should be established on case-by-case basis. In this case assessment made by the institution applying the impugned norms is said to be of particular importance, because national security authorities and the Prosecutor General have at their disposal all investigative materials pertaining to the respective person. The Saeima holds that the obligation of national security authorities to disclose to a person information, the disclosure of which does not jeopardise national security follows not only from the judgment in case no. 2002-20-0103, but also from the legal system in general – the Satversme, the Freedom of Information Law, the Administrative Procedure Law (see Case Materials, Vol. 1, pp. 81-83).

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Whereas the summoned persons – the Prosecutor General, national security authorities – point out that the decision on annulling a special permit usually is sizeable and reasoned; however, a person receives only notification about this decision, indicating the legal basis for adoption of this decision, but not the actual circumstances that have been the grounds for adopting this decision. Pursuant to Sub-para 2.10.6 of Regulation no. 887 this information is classified as confidential. The Director of CPB at the hearing of the Court noted that only such information that did not jeopardise “sources, secret cooperation and methodology” was disclosed to a person. However, these summoned persons assert that a person almost always finds out the reason, why a special permit has been annulled, because this can be derived from questions that are asked during the discussion (see Case Materials, Vol. 1 p. 124; Vol. 4, pp. 49, 54, 70, and 144). The Petitioner notes that during the discussion at the Security Police he had been informed that the special permit that had been granted to him would be annulled; however, the causes had not been explained to him. Afterwards the Petitioner had been invited to discussion with the Director of CPB, to whom he had appealed against the decision by the Security Police on annulment of the special permit; however, he had not found out the reason for annulling the special permit (see Case Materials, Vol. 1, pp. 3 and 4). The Petitioner, similarly to the Ombudsman, draws the Constitutional Court’s attention to the fact that sometimes the amount of information to be disclosed is not sufficient for a person to understand the reason, why his special permit is annulled (see Case Materials, Vol.1, p.10; Vol. 2, p. 17; Vol. 3, pp. 62 and 66; Vol. 4, p. 81). It is alleged that most often such uncertainty occurs, when a special permit is annulled on the basis of Para 6 of Article 9 (3) of the law “On Official Secrets”. The Constitutional Court finds that restrictions upon a person’s right to be informed affects a person’s possibilities to express his opinion about the circumstances of the case during the discussion. Moreover, also in submitting a complaint regarding the decision to annul a special permit, a person may not have access to the necessary information about what kind of doubts held by national security authorities he has to disprove, in order to exercise his right to be heard. 21.4. The Constitutional Court concludes: if national security authorities have at their disposal facts that allow doubting, whether a person is suitable for accessing official secrets, then elimination of a threat to national security interests prevails over ensuring a person’s procedural rights. The Security Police has also noted: if a person, whose trustworthiness or ability to keep official secrets is validly doubted on the basis of information at the disposal of a national security authority were allowed to retain a special permit, then this institution would fail to perform one of its main objectives, i.e., it would not guarantee protection of official secrets and would not justify the aims for which it had been established and exists in circumstances of democracy (see Case Materials, Vol. 1, p. 146). However, after the decision on annulling a special permit has been adopted and the threat to national security interests has been eliminated, restrictions upon hearing and informing a person should be accessible and clear in the meaning, in which the Constitutional Court examines, whether a restriction upon fundamental rights has been established by law (see Para 22 of this Judgment). Thus, insofar national security interests allow it, a person’s right to be heard should be ensured before a decision on annulling a special permit is adopted. However, hearing a person during the appeals procedure is an imperative requirement. This right

should be ensured irrespectively of the fact, whether a person himself has or has not clearly and unambiguously expressed such a request in his complaint. Moreover, regulation on this issue included in regulatory enactments should be such as to allow a person to be certain that within the framework of appeals procedure he will be invited for a discussion and will be heard. Similar considerations are applicable also to informing a person about circumstances, upon which the decision on annulling a special permit is based. Insofar national security interests allow it, a person should be informed about such circumstances before the initial decision on annulling a special permit is adopted. Following the adoption of this decision, a persons right to be informed about circumstances upon which the decision is based, as well as a person’s right to be heard is to be ensured in scope that would allow a person to exercise his right to fair trial. For example, ECHR has concluded that for the protection of national security interests, competent state institutions may edit out sensitive information or provide to a person a summary of the essential facts ( compare: Judgment by the Grand Chamber of ECHR of 21 October 2013 in case “Janowiec and others v. Russia”, application no. 29520/09, Para 206). 21.5. A number of regulatory enactments regulate operations of national security authorities in the field of protection of official secrets, inter alia, the law “On Official Secrets”, the Investigatory Operations Law, Regulation no. 21, and also Instruction approved by the Cabinet of Ministers, which defines the status of classified information and which, as the summoned persons – the Prosecutor General, national security authorities – defines, inter alia, the procedure for investigating persons and for issuing and annulling special permits. At the hearing of the Court the representative of the Security Police called this Instruction the handbook of national security authorities. Neither the person to be investigated, nor society in general has been informed about this document. Neither the Ombudsman, in preparing opinions, nor the Constitutional Court in the period of preparing the case has had the opportunity to familiarise itself with this Instruction (see Case Materials, Vol. 1, p. 148, Vol. 4, pp. 26, 49, 64, 65, 80). On 2 June 2016, at the meeting of Secretaries of State, draft amendments to Regulation no. 21 were examined, it is envisaged to establish cases, when a person must be informed about circumstances, because of which a special permit is annulled, as well as to set terms, within which national security authorities must investigate a person. Although at the hearing of the Court representatives of national security authorities and other summoned persons noted that already now in the procedure of annulling special permits a person’s procedural rights were ensured, they referred to these amendments as such that would dispel all doubts about legality of the respective procedure (see Case Materials, Vol. 1, 148; Vol. 4, pp. 65 and 70). 21.6. The Constitutional Court has found that the Satversme as a united document requires that restrictions upon a person’s fundamental right were established in a way, which is acceptable in a democratic state, i.e., by law or on the basis of law, which clearly defines the scope and limits of a restriction upon fundamental rights. Arbitrary restriction of fundamental rights is inadmissible (see Judgment of 22 October 2002 by the Constitutional Court in Case no. 2002-04-03, Para 2 of the Findings, and Judgment of 12 February 2016 in Case no. 2015-13-03, Para 15.2). The Constitutional Court finds that in the procedure of annulling special permits, by referring to national security interests, a person’s procedural rights are significantly restricted; moreover, part of this procedure is not regulated by such generally

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binding regulatory enactments that would be publicly accessible. I.e. a person may not familiarize himself with the regulation that defines his rights and restrictions thereupon, because part of this regulation has been granted the status of classified information. Moreover, in the course of preparing this case and during the hearing of the Court the Constitutional Court has ascertained that each state institution involved in annulment of special permits and in the procedure for appealing against the relevant decisions has its own understanding of the procedural rights and the scope thereof to be ensured to persons involved in this procedure. If a person’s procedural rights have not been consolidated in regulatory enactments, then ensuring of these rights are left to parties applying legal provisions and depends upon their understanding of procedural justice. Thus, procedural rights established in the first sentence of Article 92 of the Satversme are not ensured to a person. Thus, in the procedure for appealing against the adopted decision on annulling a special permit, established by the impugned norms – Article 11 (5) and Article 13(3) of the law “On Official Secrets”– procedural rights compatible with the first sentence of Article 92 of the Satversme are not ensured to a person. 22. The Constitutional Court already found that in the procedure for appealing against a decision on annulment of a special permit a person is denied access to court in the institutional meaning of it and procedural rights compatible with the first sentence of Article 92 of the Satversme are not ensured to a person. Thus, a person is substantially denied the right to a fair trial. To ensure a person’s right to a fair trial in accordance with the first sentence of Article 92 of the Satversme, as well as to eliminate any doubts regarding validity of decisions on annulling special permits, the review thereof should be transferred to an appropriately legitimised independent institution. Thus, Article 11 (5) and Article 13 (3) of the law “On Official Secrets”, insofar these norms provide with respect to a decision on annulment of a special permit that the Prosecutor’s General decisions is final and not subject to appeal, are incompatible with the first sentence of Article 92 of the Satversme. 23. The state power has the obligation to abide in its actions by principles of a state governed by the rule of law. First and foremost, this means that the legislator has the duty to consider regularly, whether legal regulation continues to be effective, appropriate and necessary, and whether it should not be improved in any way. Moreover, principles of a state governed by the rule of law require that the Constitutional Court, in accordance with its jurisdiction, would ensure existence of such legal system, which, insofar possible, would eliminate legal regulation that is incompatible with the Satversme or other legal norms of higher legal force (see Judgment of 9 January 2014 by the Constitutional Court in Case no. 2013-08-01, Para 18.2). In its judgment in case no. 2002-20-0103 the Constitutional Court found that procedure for adopting decisions on special permit had not been established in law, and the procedural rights of a person to be investigated hand not been enshrined, as well as that a better-consider mechanism for appealing against these decisions could be created (see Judgment of 23 April 2003 by the Constitutional Court in Case no. 2002-20-0103, Para 5 of the Findings). The Constitutional Court finds that within fourteen years following passing of judgment in case no. 2002-20-0103 the Saeima has not amended the procedure

for issuing and annulling special permits and for appealing against the respective decisions. Procedural guarantees to the person, who is being investigated, still have not been established in law. However, considering the legislator’s broad discretion in the field of protecting official secrets, the Constitutional Court holds that the Saeima itself must re-examine the procedure for annulling special permits and for appealing against the respective decisions and should choose the most appropriate solution that would actually and effectively ensure a person’s procedural rights, as well as balance the interests of a person and those of national security. 24. Pursuant to Article 32 (3) of the Constitutional Court Law, a legal provision that has been recognised by the Constitutional Court as being incompatible with a legal norm of higher legal force is to be recognised as being invalid as of the date when the judgment of the Constitutional Court has been published, unless the Constitutional Court has provided otherwise. This norm of the Constitutional Court Law grants to the Constitutional Court broad discretion in deciding, as of which date the norm that has been recognised as being incompatible with a norm of higher legal force becomes invalid. In deciding upon the date, as of which the contested norm becomes invalid, the rights and interests of other persons, not only those of applicants should be taken into consideration. Moreover, recognition of a contested norm as being invalid should not cause new infringements upon fundamental rights defined in the Satversme (see Judgment of 29 April 2016 by the Constitutional Court in Case no. 2015-19-01, Para 17). In the case under review the Constitutional Court takes into account the fact that for the sake of protecting national security interests it would be inadmissible to recognise the impugned norms as being invalid as of a past date or as of the date when the judgment by the Constitutional Court is published. The Petitioner has not requested to recognise the impugned norms to be invalid as of a retroactive date. The Constitutional Court finds that in this case it is necessary and admissible that the norms that are incompatible with the Satversme remain in force for a certain period, to give the legislator possibility to adopt new legal regulation – introduce appropriate amendments to the law “On Official Secrets” and, if necessary, to other regulatory enactments. In view of the fact that the legislator needs a reasonable period of time for adopting new legal regulation, a general retroactive force to revocation of the impugned norms cannot be set, nor can the impugned norms be recognised as invalid as of the date when the judgment by the Constitutional Court enters into force (compare, for example, Judgment of 22 October 2002 by the Constitutional Court in Case no. 2002-04-03, Para 3 of the Findings, and Judgment of 29 April 2016 in Case no. 2015-19-01, Para 17). Until the Saeima has not eliminated restrictions upon fundamental rights established by the contested norm that his Judgment refers to, in the procedure of annulling special permits with respect to a person’s procedural rights the findings of this Judgment shall be applicable, inter alia, the finding about hearing a person and informing a person about the circumstances that are the grounds for decision on annulling a special permit.

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The resolutive part

736

On the basis of Articles 30‑32 of the Constitutional Court Law, the Constitutional Court decided: 1. To terminate legal proceedings in the part regarding compliance of Article 11(5) and Article 13(3) and Article 13(4) of the law “On Official Secrets” with Article 96 of the Satversme of the Republic of Latvia; 2. To declare Article 11(5) and Article 13(3) of the law “On Official Secrets”, insofar these norms with respect to annulment of a special permit provide that the Prosecutor’s General decisions is final and not subject to appeal, to be incompatible with the first sentence of Article 92 of the Satversme of the Republic of Latvia and invalid as of 1 July 2018; 3. To declare the second sentence of Article 13(4) of the law “On Official Secrets”, insofar it provides that following adoption of the final decision on annulment of a special permit a person must be transferred immediately to a job that is not related to official secrets or legal employment (service) relations with him must be terminated, to be compatible with the first sentence of Article 106 of the Satversme of the Republic of Latvia; 4. To declare the words “and henceforth he or she shall be denied receipt of a special permit” in the second sentence of Article 13(4) of the law “On Official Secrets” to be incompatible with the first sentence of Article 106 of the Satversme of the Republic of Latvia and invalid as of 1 July 2018. The judgment is final and not subject to appeal The Judgment enters into force at the moment of its pronouncement.

Chairman of the hearing of the Court

A. Laviņš