Juristica International

Introduction

Since the beginning of 2020, the Constitutional Court of the Republic of Latvia (hereinafter ‘the Court’) has delivered rulings in more than 80 cases which concerned a broad variety of issues, including protection of personal data, the use of the official (Latvian) language in education, the SARS-CoV-2 pandemic, the safety of and access to the Latvian natural-gas pipeline network, and LGBTQ+ rights if we confine ourselves to naming only a few. This paper offers an overview of selected rulings of the Court by categorizing them into three groups which reflect the recent trends in the case law of the Court: the Covid-19 pandemic, empowerment of marginalised groups in society, and protection of democracy.

Cases related to the SARS-CoV-2 pandemic

In March 2020, the World Health Organization announced that the global COVID‑19 outbreak caused by a coronavirus had reached the level of a pandemic. *1 Shortly after that, the Latvian government (through the Cabinet of Ministers) issued an order declaring a state of emergency for approximately a month. *2 It was later prolonged for a few months and issued again two times over the course of the next two years. This allowed room for swift epidemiological safety measures and related human rights restrictions most of which were established by the government. Several of these measures were contested before the Court resulting in over 100 complaints. Most of the said complaints were related to the obligation to wear medical face masks; limitations on assembly, association, and religious activity, limitations of business hours and commercial activity in shopping centres; the ‘downtime allowance’ paid by the state to workers; and vaccination. However, only some of these complaints fell within the jurisdiction of the Court or were substantiated enough for a case to be initiated before the Court.

Restrictions on gambling businesses (Case 2020‑26‑0106)

The first SARS-CoV-2-pandemic-related judgement of the Court concerned temporary prohibition of in-person gambling as well as interactive gambling during the state of emergency. *3 The case was initiated on the basis of constitutional complaints submitted by five companies who organize gambling; they claimed that such prohibition, amongst other, violates their right to property as enshrined in Article 105 of the Latvian Constitution (the Satversme) *4 . The Court reiterated that the right to operate a particular type of business under a licence (namely, organising in-person and/or interactive gambling in this case) indeed falls within the scope of Article 105 of the Constitution and, hence, that the applicant’s right to property had indeed been restricted. The restriction had been imposed in order to ensure protection of other people’s rights regarding public-health concerns and of public welfare.

The Court concluded that the restriction to in-person gambling was both appropriate and necessary as it contributed to limiting the spread of the virus in a timely fashion, since the principal mode of transmission of the virus was through respiratory droplets that are expelled when a person speaks, coughs, or sneezes. Namely, physical contact and meetings had to be limited. However, the restrictions on interactive gambling did not help to limit the spread of COVID‑19. Even though they could have contributed to protecting the financial situation of individuals during the pandemic, the Court noted that even during the emergency situation, the legislator must not adopt provisions that are unreasonably broad and also restrict the rights of those individuals to whom the legitimate aim of the regulation does not at all apply. Namely, when adopting a provision aimed at protecting individuals with gambling problems and their families, the legislator had no reason for simultaneously restricting all other people’s right to choose where to invest their funds and thereby interfere with how they wished to spend their free time. It was furthermore established that, what could be regarded as alternatives to the means of achieving the legitimate aims are specific restrictions on the course of interactive gambling, for example, limiting the time and money spent on the gambling websites. Thus, the Court found that the restrictions imposed on interactive gambling were not necessary in the context of proportionality test and therefore did not comply with the Constitution.

In this case, the Court elaborated on how proportionality should be applied together with the precautionary principle which grants the legislator a wider margin of appreciation. Namely, if the resort to the precautionary principle as such is reasonably justified, whenever there is a qualified and serious risk to health and welfare whenever there is a qualified and serious risk to health and welfare, the State does not have to wait until the risk becomes reality. However, the restrictions adopted by the legislator, on the basis of such precaution, still have to be in line with the Constitution. Furthermore, it was established that that in cases wherein the legislator is faced with great uncertainty and believes that the achievement of particular aims requires quick solutions, there is no necessity for the legislature to conduct lengthy, in‑depth research into the threat of the respective damage or hold detailed debate on the prevention of the damage as these would significantly delay the adoption and effectiveness of the decision. The Court expressed ideas along similar lines in other cases related to the SARS-CoV-2 pandemic.

Testing for the virus prior to entry to Latvia (Case 2021‑10‑03)

The case was initiated on the basis of an application submitted by a citizen of Latvia who had been residing in Germany for several years. The applicant had made a habit of travelling to Latvia, had planned to do so in 2021 by passenger air transport in the second half of January or in February; however, the Latvian government had set forth several restrictions on travelling, including the requirement for a negative Covid-19 test result before boarding a passenger air transport that is flying to Latvia. The applicant held that said requirement imposed a disproportional restriction on her as a citizen’s right to freely return to Latvia as enshrined in Article 98 of the Constitution.

The Court found that the right of Latvia’s citizens to freely return to Latvia was absolute and could not be restricted. However, it was noted that there are various ways in which a citizen of Latvia could return to Latvia, for example, by crossing the land border or entering through a port, airport, railway station, or otherwise. Thus, the Court concluded that a person’s right to return to Latvia should be differentiated from a person’s wish and possibility to use a particular type of transportation for this purpose.

The Court found that entering the territory of Latvia was not restricted, for example, for the citizens of Latvia who entered Latvia by vehicle that was not providing commercial transportation services and who had tested positive for SARS‑CoV-2. Additionally, it was noted that the contested norm could indeed have caused certain inconvenience for the person because it impeded traveling in the manner she desired. However, this could not be regarded as an insurmountable obstacle as Latvia had not prohibited its citizens from traveling and had not closed its borders. Hence, the Court concluded that the applicant’s right of freely returning to Latvia had not been restricted, and the proceedings were terminated accordingly. *5

Restrictions on operations at shopping centres (Case 2021‑24‑03)

The case concerned an epidemiological safety provision set forth by the Cabinet of Ministers that stipulated that operation of shops in the shopping centres, the total area dedicated to trade of which exceeded 7000 square meters, was prohibited, except for certain categories of shops. It was initiated on the basis of applications submitted by companies running shops on the premises of these shopping centres that have the possibility to ensure entrance to these shops from the outside, as well as the owners of shopping centres who lease their premises to traders and service providers. The applicants argued the contested regulation creates inequality and is incompatible with the right to property as it provided that only a selection of shops could operate in large shopping centres.

The Court held that the rights of shop owners had been restricted but the said restriction was imposed in order to curb the spread of the virus behind COVID-19 by limiting the gathering and mobility of people in large shopping centres and consequently decreasing the load on public transportation. Thus, the regulation pursued the legitimate aim of protection of other persons’ right to health. Additionally, uncontrolled spread of SARS-CoV-2 could have caused an overload for the health sector, thus jeopardising the continuity of accessibility of health care and medical services. Hence, protection of public welfare was also acknowledged as a legitimate aim of the restriction. Furthermore, the Court concluded that the restrictions did contribute to achieving these aims. Nevertheless, the Court found that other measures existed that would restrict the shop owners’ fundamental rights to a lesser extent and would ensure the fulfillment of the legitimate aims in the same quality. Namely, there were no significant differences between a shop located in a large shopping centre that had been zoned off from the common use premises and to which an entrance from the outside had been ensured, and a shop set up outside a shopping centre’s premises. Thus, regulation permitting such shops in large shopping centres to continue operating would allow to achieve the authorities’ legitimate aims in the same quality.

Therefore, the Court concluded that the contested regulation, insofar as it applied to shop owners, violated their right to property and was incompatible with Article 105 of the Constitution. To this extent, the contested regulation was also deemed incompatible with the principle of equality as enshrined in the Constitution’s Article 91, because it prohibited the operation of those shops in large shopping centres irrespectively of whether separate entrance from outside could be ensured for the particular shop. Meanwhile, stand‑alone shops set up in other trading venues could continue their operations.

Regarding the owners of shopping centres, the Court recognised that the possibility for them to benefit from leasing their premises was closely connected to the tenants’ rights to use these premises for trading. Thus, the contested regulation substantially stripped the owners from exercising their right to lease their premises out and profit from their property respectively. Nevertheless, the entire society benefited from the contested regulation as it protected both people themselves from falling ill and the health care system from becoming overloaded. In view of the spread of the virus and the threats it posed for the health system, the legitimate interests of some commercial companies could not be placed above the interests of the entire society. Thus, the Court recognised that the contested regulation, insofar as it applied to owners of large shopping centres, complied with the right to property as enshrined in Article 105 of the Constitution. However, the Court deemed it incompatible with the principle of equality as enshrined in Article 91 of the Constitution. The contested regulation allowed trading within the premises of a large shop. On the other hand, with certain exceptions, trade was not allowed in large shopping centres during the whole time the contested regulation was in force. Hence, the contested regulation foresaw differential treatment of these groups. The Court did not identify objective arguments allowing to conclude that the differential treatment of owners of large shopping centres and owners of large shops had a legitimate aim. *6

Conclusions from the COVID‑19-related cases

The Court has also adjudicated a case concerning regulation stipulating that school students shall receive all their primary and general secondary education remotely, due to spread of SARS-CoV-2. The remote learning regulation was deemed to comply with the school student’s right to education as enshrined in Article 112 of the Constitution. Furthermore, there are two cases that are still pending before the court. One is related to prohibition to import mink in Latvia during the pandemic, but the other is related to the obligation for members of Parliament to be vaccinated against the coronavirus before being permitted to carry on fulfilling their duties.

An overarching view that the Court has taken in the COVID-19 pandemic related cases is that the proportionality principle should be applied together with the precautionary principle which grants the legislator a wider margin of appreciation. Namely, if the resort to the precautionary principle as such is reasonably justified, whenever there is a qualified and serious risk to health and welfare, the State does not have to wait until this risk becomes reality. However, the restrictions adopted by the legislator, on the basis of such precaution, still have to be in line with the Constitution. Furthermore, it has been established that that in cases when the legislator is faced with great uncertainty and believes that the achievement of particular aims requires quick solutions, there is no necessity for the legislator to conduct lengthy, in‑depth research about the threat of the respective damage or hold detailed debate on the prevention of the damage as these would significantly delay the adoption and effectiveness of the decision. These ideas might be followed by the Court in other COVID‑19 pandemic related cases.

Cases related to empowerment of society’s marginalised groups

Another reoccurring theme in the recent case law of the Court has been the empowerment of marginalized groups of society. These cases showcase the need to protect vulnerable minorities from the uncontrolled and more often than not biased rule of the majority.

Poverty and guaranteed minimum income (Case 2019‑24‑03)

In summer 2020, the Court passed judgement in a case which concerned the guaranteed minimum income (GMI) level set forth by the government (Cabinet of Ministers). *7 This indicator was supposed to represent the amount of money a person needs to cover their basic needs. According to Latvian law, it is used to determine the amount of GMI benefit – a material support in monetary terms provided to eligible persons in need for covering their everyday expenses. At the time of adjudication of the case, the contested provision stated that the amount of GMI level for a person shall be 64 euros per month.

The case was initiated on the basis of the Ombudsman’s application. The Ombudsman held that this GMI index was incompatible with the core principle of a welfare state and with the principle of the rule of law because it does not assure needy persons of a life compatible with human dignity and does not honour the obligation to ensure that people have an opportunity to exercise their social rights at least to a minimal extent in accordance with the guarantees of Article 109 of the Constitution.

The Court reiterated that the legislator is obliged to create a social-security system that is aimed at the protection of human dignity as the overarching value of a democratic state governed by the rule of law. For everyone to be able to lead a life compatible with human dignity, the minimal social assistance should be such that anybody could provide food, clothes, housing and medical assistance for themselves – everything that is needed to guarantee elementary survival to any person, as well as to ensure to any person the possibility to exercise their right to primary education. Moreover, social assistance should guarantee to a person the possibilities to participate in social, political, and cultural life, thus, ensuring this person the status of a full-fledged member of society.

The Court found that the legislator had introduced measures to create a system of social security, thus ensuring to persons the possibility to exercise their right to social security. One of the elements in the system of social security is social assistance, the purpose of which is to provide assistance to needy persons and which comprises the GMI level, set in the contested norm, and the benefit linked to it. However, the GMI level itself was set by the Cabinet of Ministers, not Parliament, even though it was a parliamentary duty to decide on this essential issue. Furthermore, the Court established that the GMI level of 64 euros was based on a mere agreement between the institutions involved in the payout of the GMI benefit, namely, the Cabinet of Ministers and local governments. There was no method behind it that would ensure that the GMI level actually contributes to ensuring the basic needs of the GMI benefit recipient.

Other measures of the social security system available to needy persons in addition to the benefit for ensuring GMI level were also examined by the Court. It recognised that, within the framework of the social-security system, various measures of social assistance were available to a needy person. However, the state social benefits could not be assessed as benefits to be used to satisfy a person’s basic needs since they have other objectives. Moreover, they were granted to persons belonging to certain groups of inhabitants in concrete situations. Thus, the Court found that the GMI level set in the contested norm, in interconnection with other measures of the social-security system, did not ensure that every needy person could lead a life that would be compatible with human dignity. Hence, the contested norm was found incompatible with Article 1 and Article 109 of the Constitution.

Reintegration of ex-convicts into society (Case 2020‑36‑01)

The Court has adjudicated several cases which were related to permanent bans imposed on ex‑convicts even after their criminal record had been cleared. These bans mostly manifest as restrictions on formal recognition of their family ties as well as access to certain jobs.

In March 2021, the Court delivered a judgement in a case concerning a norm which prohibits a person convicted of a violent criminal offence from being employed in contact with children for life. *8 This case was initiated on the basis of an application submitted by the Supreme Court. It stated that the employer, on the basis of the contested norm, terminated the employment relationship with an employee who worked as a building supervisor and had been convicted of malicious hooliganism.

Firstly, the Court held that all forms of violence against children must be prevented in the first place by proactive and preventive measures. The contested provision also provided for such measures. It minimised the likelihood of direct and continuous or regular contact with children by a person whose past behaviour has been directed at endangering another person by using or threatening violence. Furthermore, the Court reiterated that in cases where a decision is adopted by weighing various interests involved, including the interests of the child, the best interests of the child have the highest priority. But this does not mean that other interests should not be taken into account. In this case, the best balance must be found between all the interests involved. The right to choose employment is also an important fundamental right, as work is an indispensable source of human dignity and affirmation in a democratic society.

Secondly, the Court emphasised that the legislator is entitled to establish such a prohibition (whereby a convicted person may not be employed in contact with children) only if said person objectively poses a greater risk of danger to a child than someone who has not been convicted of a crime. The mere fact that a person has been convicted of a violent crime is not always sufficient to establish that they pose risk to children in the longterm. The prohibition of a restriction on a fundamental right should not be based on general presumptions, but should, as far as possible, promote the achievement of individual justice. The Court held that the right of a person convicted of a violent criminal offence to be employed in contact with children may be assessed individually by the head of the institution, the employer or the event organiser, if necessary in consultation with the State Inspectorate for Protection of Children’s Rights. The State Inspectorate for the Protection of Children’s Rights could also be given such additional competence, and such an assessment could also be made by a court of general jurisdiction. Consequently, the legitimate aim of the restriction of fundamental rights could be achieved in the same quality by means which were less restrictive of the rights of persons and which, moreover, did not require a disproportionate contribution from the state and society. Thus, the restriction of fundamental rights contained in the contested provision was not proportionate and the contested provision did not comply with Article 106 of the Constitution.

LGBTQ+ rights (Case 2019‑33‑01)

The case concerned a legal norm that did not envisage the right to a leave in connection with the birth of a child to the female partner of the child’s mother. *9

The case was initiated on the basis of a constitutional complaint. It was noted therein that the applicant was in a stable same-sex relationship with her partner. After they began cohabiting, two children were born to the applicant’s partner, and the applicant and her partner had jointly planned their birth. Both children lived in a common household with the applicant and her partner. Immediately after the birth of the youngest child, the applicant had wanted to take the leave of 10 calendar days to be together with the new-born child in the first moments of his life and to provide support to her partner. However, the contested legal provision envisages the right to this leave only to the father of the child but does not envisage this right to the female partner of the child’s mother, who in fact should be considered as being one of the new-born child’s parents. Thus, the legislator had not fulfilled its duty to ensure protection and support to a family with same-sex partners.

Firstly, the Court noted that the state’s obligation to protect marriage as a union between a man and woman is set forth in the first sentence of Article 110 of the Constitution. At the same time, this norm establishes an obligation on the state’s part to protect and support the family, parents, and children too. The Court underscored that this obligation did not apply only and solely to a family established through marriage. Thus, the first sentence of Article 110 of the Constitution defines a positive obligation of the state to protect and support all families, also, inter alia, de facto families established through cohabitation. The Court also noted that Article 110 of the Constitution did not specify the concept of family and did not advance gender as a criterion for determining the persons who should be recognised as being a family. In this regard, it recognised that society consisted not only of such persons who, as to their nature, formed close personal and family ties with the representatives of a different sex, but also of persons who, as to their nature, formed such relationships with the representatives of their own sex.

Secondly, the Court recalled that human dignity was the constitutional value of the State of Latvia. The view that the dignity of one human being could be of a lesser value than the dignity of another human being is incompatible with the principle of human dignity. The principle of human dignity does not allow the state to derogate from ensuring fundamental rights to a certain person or a group of persons. The stereotypes prevailing in the society may not serve as constitutionally justifiable grounds for denying or restricting the fundamental rights of a certain person or groups of persons in a democratic state governed by the rule of law.

Lastly, the Court concluded that, in a family of same-sex partners, legal protection and the measures of social and economic protection were accessible only to the mother and her child. Thus, substantially, the protection and support accessible to the family of same-sex partners did not differ from the protection and support that is accessible to the family consisting only of a mother and her child. Thus, the existing legal regulation of family relationships did not ensure protection and support to same-sex partners and to the children born into their families as a united family. The legislator had not established legal regulation of family relationships of same‑sex partners, and had not envisaged for families of same-sex partners measures of social and economic protection and support in relation to the birth of a child. Thus, the legislator had not fulfilled its positive obligation deriving from Article 110 of the Constitution to ensure legal, social and economic protection also to families of same-sex partners. Consequently, the Court recognized the contested norm as being incompatible with Article 110 of the Constitution.

Concluding remarks on case law related to empowerment of marginalised groups

The case law related to empowerment of marginalised groups in society reveals human dignity as an overarching value and fundamental right used to determine the constitutional framework within which these cases should be adjudicated. It remains important to this day, as many of the groups mentioned here are still sometimes seen as inherently inferior and less valuable to society.

Cases related to protection of democracy

Another topical issue highlighted in the recent case law of the Court is protection of democracy. The Court has adjudicated cases related to voting rights of prisoners, financing of political parties, as well as militant democracy measures set forth in the Criminal Law.

Voting rights of persons serving a custodial sentence (Case 2021‑43‑01)

In November 2022, the Court passed a judgement in a case concerning a norm in Latvian law according to which persons who are serving a sentence in places of deprivation of liberty have no right to elect the council of a local government. *10 The case was initiated on the basis of an application of an individual who was serving a custodial sentence and as such was subjected to the contested norm. This individual claimed that the prohibition established by the contested provision restricts the right of a person to participate in the election of local government by voting as set forth in the first sentence of Article 101 of the Constitution.

The Court recognized that the contested norm unjustly and automatically restricted the fundamental right to elect local government for a group of individuals based solely on the fact that they were serving a custodial sentence in a place of detention. The norm in question, however, failed to take into account whether there was a logical and sufficient connection between the restriction of the right to vote and the specific criminal offense committed by the individual, as well as their unique circumstances. As such, individuals serving a custodial sentence in a place of detention should not be exposed to greater restrictions than what is necessary due to the nature of their offence and the type of punishment imposed on them.

The Court also emphasized that the restriction of suffrage for individuals serving a sentence at a place of deprivation does not effectively encourage civic engagement or successful reintegration into society upon release. A general restriction on suffrage is also at odds with the goal of criminal punishment, which is to rehabilitate and reintegrate the individual into society. Furthermore, the Court observed that any limitations on the right to vote must be evaluated in relation to the democratic progress of the state. Specifically, it is crucial to regularly reassess the necessity of such limitations, taking into account the level of democratic maturity of the society and the state at the given time.

As a result, the Court found the contested provision to be incompatible with right of a person to participate in the election of local government by voting as set forth in Article 101 of the Constitution.

Democracy capable of protecting itself (Case 2021‑34‑01)

In May 2022, the Court terminated proceedings in a case concerning a criminal-law provision which criminalized a public call to eliminate national independence of the Republic of Latvia. *11 The case was initiated on the basis of a constitutional complaint of an individual who had published an appeal on a Web site calling for collecting signatures for the Republic of Latvia to join the United States of America. By a judgement of a court of general jurisdiction, the applicant was found guilty of the criminal offence provided for in the contested norm. The applicant considered that this norm infringed his right to freedom of expression as enshrined in Article 100 of the Constitution.

The Court interpreted the contested norm and concluded that this norm provided for criminal liability only for such a public call to eliminate the national independence of the Republic of Latvia, which poses a real threat to the interests of the state and society and incites to such an action that would actually enable the aim of the call to be achieved. Furthermore, the Court emphasised that the contested norm in the state’s criminal law served to protect the state and its democracy. This norm contributed to the implementation of the principle of democracy capable of protecting itself. It was also recognized that the objective purpose of the contested norm of the Criminal Law was to target persons who made such public calls for the elimination of national independence which exceed the limits of freedom of expression and pose a real threat to the national independence and democratic state system of the Republic of Latvia.

The Court recognized that its interpretation of the contested norm of the criminal law ensured protection of the fundamental rights of a person enshrined in Article 100 of the Constitution. In such a way, by interpreting and applying the contested norm in accordance with the Constitution ruled out any grounds for doubting its constitutionality along the way. Thus, the Court recognized the applicant’s assumption that the conflict of legal norms with legal norms of higher legal force was caused by the contested norm of the criminal law as unfounded. Whereas assessing the actual circumstances of the criminal case and the qualification of the offence committed by the person did not lie within the competence of the Court, the proceedings connected with the contested criminal-law norm’s compliance with Article 100 of the Constitution were terminated.

Concluding remarks on cases related to protection of democracy

The case law related to protection of democracy suggests that the understanding of democracy, rule of law and human rights might still not be sufficient within the society of Latvia and the Parliament, too.

In order to change that, the Court has taken part in several projects to maintain a dialogue with both the society and other state institutions. These include drawing and writing competitions for school students, annual meetings with representatives of state institutions as well as active engagement with the media.