Aldis Laviņš
President of the Constitutional Court of
the Republic of Latvia
[1] The Constitutional Court in Latvia performs both abstract and concrete constitutional review as part of its competence.
The Constitutional Court judgments are directly applicable legal acts. No special so called embodiment mechanism or act of applying are needed to enforce a Constitutional Court judgment.
It is obvious that the judgements by which contested norms are recognised as being compatible with the Constitution do not require special execution. But the judgements that recognise a norm as being incompatible with an act of higher legal force require that certain changes be made to the legal system.
[2] The removal of a contested norm from the legal system may lead to various legal consequences. On the one hand it can improve the legal regulation, but at the same time we should bear in mind that it creates the absence of regulation and it may lead to even worse situation than existed by the contested norm. In view of this, the Court in its judgements makes a thorough evaluation of the consequences that may be caused by repealing a norm.[1]
Now I will focus how the Court is dealing with this problem.
[3] The Constitutional Court Law provides that the contested provision which is declared as incompatible with constitution loses its legal force on the date of publication of the judgment. This is a general rule.
If the Court applies this rule and repeals a norm, the Court indicates which regulation shall be applied to the respective legal relationships. There are three options:
Firstly – the Court has a competence to declare that the norm of higher legal force should be applied directly. For instance, while there is still no new regulation, and the old one has lost its legal force due to its unconstitutionality, then the norm of the Constitution and the interpretation of it provided by the Court shall be applied directly.[2]
Secondly – the Constitutional Court can provide a temporary provision that must be abided by until the legislator has improved the lawful regulation, bringing it in compliance with the Constitution.[3]
Thirdly – the Court has a competence to declare that the regulation which was in force previously shall be applied. Sometimes, when necessary and possible, the Constitutional Court may hold in the substantive part of its judgement that the legal norm, which had been amended by the legal norm recognised by the Constitutional Court as being incompatible with norms of higher legal force, shall regain legal force.[4] In the practice of the Court, the application of this solution has been based on the practice of the constitutional courts of Germany and Austria.
The Constitutional Court Law does not provide such a competence expresis verbis. But such a competence derives from the idea of particular article of the Constitutional Court Law, therefore I am not going to develop this issue, but focus on another question, which could be a subject for our discussion. Question is – before stating that the legal norm, which had been amended by the legal norm recognised as being incompatible with the Constitution, shall regain legal force and shall be applicable, should the Court by its own motion check whether this so called previous norm is compliant with the Constitution?
[4] The Constitutional Court Law provides that the Court has a competence to set a date from which contested norm loses its legal force.[5] In practice it means that the Court can declare that the anti-constitutional norm is applied until the amendments have been made. For such situations the Court has at least two options:
Firstly – the Court determines the date until which the norm remains valid, thus giving the legislator a possibility to adopt a regulation compatible with the Constitution.
In one of the cases the Court clearly indicated that “the Legislator needs time for improving the regulation, since the contested norm was to ensure that a legitimate aim is achieved. The situation that would evolve if there were no regulation whatsoever regarding this matter would be even less compliant with the Constitution than the current one. In such circumstances, it is admissible that a norm incompatible with the Constitution remains valid for a certain period of time, so that the Legislator would have a possibility to resolve the issue, ensuring that the interests of both the society and the particular individual are observed”.
The amounts of time allowed for improving the regulation vary, from three month to one year. In each individual case, the Court considers the scope of the necessary amendments, as well as the legislator’s ability to adopt amendments to the regulatory act by the corresponding deadline (there have been instances when the Saeima’s recess dates, or elections, have fallen on the respective period).
Secondly – the Court determines the date on which the norm will become invalid if a specific condition is not fulfilled (so-called conditional judgements).[6] Judgements with an “if” condition means that the Court establishes a condition, the fulfilment or non-fulfilment of which determines whether the contested norm complies with the Constitution.
[4.1] Usage of conditional judgments motivates the legislator to seek a way to resolve the situation, otherwise the norm will become invalid. For example, in one of the case the Constitutional Court came to the conclusion that the infringement of the fundamental rights had occurred, however, it had been caused not by the contested norm of Section 96 of the Criminal Procedure Code directly, but by the contested norm together with the deficiencies of another law, namely the law On Legal Profession [Latvian “Advokatūra”], which was not contested within the case in question. The Constitutional Court held: “To recognise the first sentence of the second part of Article 96 of the Criminal Procedure Code of Latvia as being incompatible with Article 92 of the Constitution and null and void if the legislator does not amend the legal regulation of the advocates’ activity so that it complies with the standards of the European Union and the European Council and guarantees the right to a fair trial to the full extent”.[7]
Thus, the legislator was given six month period to decide between the two options – amending the law On Legal Profession or allowing the contested norm of the Criminal Procedure Code to become invalid. The legislator took up the first option and adopted the law Amendments to the Law on Legal Profession as a matter of urgency. The law entered into effect and problem of constitutionality was solved.
In case the legislator does not fulfil the conditions, the contested norm becomes invalid. The judgement in case No 2003-05-01 contained a requirement to the legislator to specify the state officials whose honour and dignity shall be protected by means of criminal procedure. The mentioned condition was not fulfilled, therefore, as of the date determined by the Court, the Criminal Law no longer envisages responsibility for insulting the honour and dignity of a state official.[8]
[4.2] In practice, there also occur cases when a conditional judgement is combined with the compliance of the norm. That is, the Court recognises the contested norm as being compatible with the Constitution, adding that a particular condition should be fulfilled.[9]
It should, however, be admitted that such an articulation of the judgement is not altogether perfect, because it does not motivate the legislator to set the legal regulation in order. Therefore, this form can only be applied in cases when the contested norm in general line is correct, but there are problems with its correct interpretation and application. Substantially, such ruling shows that the norm complies with the Constitution only if interpreted as the Court has demonstrated.
[5] The Constitutional Court is responsible for ensuring that its judgements in the social reality secure constitutional order – legal stability and clarity. It is beyond doubt that the Constitutional Court, when rendering a judgement, must consider the social reality and must always evaluate the consequences that the respective judgement will cause.
There is an opinion in our country that in interpreting the Constitution and the Constitutional Court Law the Court has opted for the happy middle ground, aspiring to avoid excessive narrowing or broadening of its own competence. To prevent the situation where the constitutional review leads to the violation of the principle of separation of powers, the Constitutional Court in its judgements avoids formulating legal norms or defining the way the legislator should formulate them. Thus, mutual respect is exercised – the legislator takes into account the findings provided as a result of the constitutional review, and the Constitutional Court respects the legislator’s discretion.
[1] Para 12 of the Judgment of the Constitutional Court of the Republic of Latvia in the Case No. 2008-02-01., 04.02.2009.
[2] Judgement of the Constitutional Court of the Republic of Latvia in the Case No. 2003-10-01, 06.11.2003.
[3] Para 35.3. of the Judgment of the Constitutional Court of the Republic of Latvia in the Case No. 2009-43-01, 21.12.2009.
[4] Judgments of the Constitutional Court of the Republic of Latvia in the Case No. 2005-12-0103, 16.12.2005. and 2006-13-0103, 04.01.2007..
[5] Judgment of the Constitutional Court of the Republic of Latvia in the Case No. 2006-28-01, 11.04.2007.
[6] Judgment of the Constitutional Court of the Republic of Latvia in the Case No. 2003-05-01, 29.10.2003.
[7] Judgment of the Constitutional Court of the Republic of Latvia in the Case No. 2003-08-01, 06.10.2003.
[8] Judgment of the Constitutional Court of the Republic of Latvia in the Case No. 2003-05-01, 29.10.2003.
[9] Judgment of the Constitutional Court of the Republic of Latvia in the Case No. 2002-12-01, 25.03.2003.
