Strasbourg, 1 February 2006
Consultative Council of European Judges (CCJE)
Questionnaire on “The role of judges in striking a balance between protecting the public interest and human rights in the context of terrorism”: reply submitted by the delegation of Latvia
A. Availability of information and documentation on all international legal instruments relevant to judicial activities (point IV (d) of the framework action plan)
A.1. Does your country have schemes to provide judges with initial and in-service training in international and European law? If it does, please provide a list of those schemes, specifying the subjects dealt with over the last year. Please indicate the number of judges concerned by these schemes, distinguishing between initial and in-service training and the total number of judges in your country.
According to the law “On judicial power” Court Administration of the Republic of Latvia plan and provide training of judges. Court Administration collaborating with chief judges prepares the training programmes for each year. The training programme includes themes of regular training, as well as actual issues in EU legislation. Court Administration supports also judges’ participation in international conferences, seminars and in programmes of exchange of experience, evaluating the topicality of the concrete theme.
Initial training for judges’ candidates was provided on the theme “International public rights and EU law in context of Latvian laws”. Five judges’ candidates attended these training.
In-service training for district (city) court judges was provided on the theme “EU law and human rights, EU civil rights”. 271 judges from district (city) courts attended these training.
In-service training for investigation judges was provided on the theme “EU human rights”. 41 investigation judges attended these training.
In-service training for judges of regional courts was provided on the theme “Application of EU legal standards (criminal cases)”. 110 judges from regional courts attended these training.
In-service training for judges was provided on the theme “EU labour law”. 11 judges attended these training.
The total number of judges in the Republic of Latvia is 382.
In Latvia judges develop their qualification by attending regular seminars, lectures which are offered by the Judges Training Centre.
The basic activities of the Judicial Training Centre in accordance with the Statute are training and development of qualification of judges and working out and implementation of the training program etc. The JTR has an especially significant role in further education and development of qualification of the “new” judges.
A.2. Do all judges periodically receive full information on recent legislation and case-law at the European and international levels, without it being necessary for them to perform their own research in these matters? If they do, please indicate what types of documents are sent direct to each judge by the national authorities (e.g. official gazettes, legal periodicals). Please also specify what information is available on paper and what is provided in electronic form (CD-Room, for instance).
Information about newest instructional and educational legal literature, glossary of normative acts and summary of court practice is available on portal of Latvian courts www.tiesa.lv. There is also opportunity to receive on the request legal literature what is available.
The Division of the European Court of Justice of the Ministry of Justice on regular basis prepares and disseminates the generalisation of case law of the European Court of Justice. Special scheme contains the number of a case, name of participants, short content of the judgement etc. There is a possibility to open the full text of the judgement.
The Department of Case Law of the Supreme Court of the Republic of Latvia prepares and provides information with the researches. One of the researches prepared by the Department in 2004 was “Courts practice in cases of protection of honour and dignity“. The first paragraph of the generalisation “The standards for the protection of freedom of expression and protection of honour and dignity” based on analysis of the case law of the European Court of Human Rights. One of the conclusions, made in generalisation was that almost all principles, which arise from the ECHR practice in particular field, are reflected in the Latvian court practice.
A seminar “Legal sources – Internet as a source of information” for the Supreme Court judges was held in 2005. A number of themes was proposed within the framework of the seminar: the most effective way how to find EU legal acts, court practices, official publications; how to find and orientates oneself within the documents which are under preparation in European institutions; data bases available in the field of human rights and public international law; what kind of information can be found in Latvian full-text data base Westlaw.
A.3. Do judges have opportunity to attend foreign language courses? Are these courses free of charge or state-subsidised? Does each court have legal translation facilities?
There is offered an opportunity for judges to attend language courses, for example, English language, French language courses, intensive German language courses. Most of these courses are state-subsidised. There is also opportunity for judges to improve his/her language knowledge within international projects or within the programme of exchange of experience.
In 2005 Judicial Training Centre provides course for all judges “Professional Legal Writing in English: Principles and Practice”. This course is partly subsidised by the state and partly by the particular judge.
According to the law “On Judicial Power” judicial proceedings in the Republic of Latvia shall be conducted in the official language (Latvian language). A court may allow also other language to be used in judicial proceedings if the parties, their lawyers and prosecutor agree to it.
For a person who participates in a matter, but is not fluent in the language of the judicial proceeding, a court shall ensure the right to become acquainted with the materials of the matter and to participate in the court proceeding with the assistance of an interpreter, as well as the right to appear before the court in the particular language, in which such person is fluent.
Every court has an interpreters, who interprets from Latvian-Russian-Latvian both courts hearings and prepared materials of the matter for persons who don’t understand Latvian language. If there is necessity to provide translation in other language, in this case it is provided by the Court Administration.
B. Dialogue between national and European judicial institutions (point IV © of the framework action plan).
B.1. What means does your country use to enhance dialogue between the national courts and the European courts? Please provide information on training dispensed in this connection over the last year.
Court Administration supports judges participation in international conferences, seminars and in programmes of exchange of experience, evaluating the topicality of the concrete theme.
There is also opportunity for the courts to act as fellowships courts with other European courts. During the bilateral project between Sweden and Latvia “Development of Latvian judiciary and court administration” was contracted the fellowships contract between two courts of Latvia (Riga Vidzemes District Court and Riga Zemgales District Court) and two court of Sweden (Nordcheping and Lincheping). The contract gave the opportunity for the judges as well as for the court staff to get acquainted with the courts’ work, the organisation of the work and as well as gain experience in the organisation of the courts’ work.
From the 1994 the Council of Association of Judges of the Baltic States are exist. The main targets of the Council are to co-ordinate activities related to realisation of judicial reform with the purpose to consolidate and integrate Baltic States, to favour unification of legislation of the Estonia, Latvia and Lithuania.
Forms of the activities of the Council are the following one: session of the Council, exchange with the information, experience and co-ordination of the efforts directed to realisation of judicial reforms, arrangement of conferences and seminars.
The Council is entitled to submit a memorandum to executive and legislative governing bodies of each State on issues general and important for all Baltic States.
During last few years there were sessions dealing with such issues – models for the administration and management of the courts having in particular regard to new information technology matters, legal aid systems, issues in relation to self-governing of the judiciary.
From the 1996 Latvian Judges Association is a member of the International Association of Judges.
B.2. Does your country hold events bringing together the national courts and the European courts? Who participates in these gatherings? How are their results passed on, so as to enhance their reach?
In Latvia visits of judges and assistants of judges from the European Court of Justice and the European Court of Human Rights have hold. For example, last year judge and two assistants of judges from the European Court of Justice visited Supreme Court. The main topic discussed during the visit was use of preliminary ruling. The information on visit judges and other interested can find in the web site of the Supreme Court.
C. Application by national courts of the European Convention on Human Rights and the case-law of the European Court of Human Rights, European community law and other international legal instruments (point IV (b) of the framework action plan).
C.1. In your country what rank do the following sources of law enjoy in the hierarchy of law in particular in relation to constitutional provisions and ordinary legislation?
a) the European Convention on Human Rights (ECHR)
b) EU treaties
c) The case-law of:
- European Court of Human Rights
- Court of Justice of the European Communities
d) international treaties.
The legal system of Latvia follows the doctrine of monism: acts of international law if they have been passed under particular procedure, are recognised to be elements of the national system of law. Besides, norms and principles of international law have priority over the norms of national law. It was already stipulated in the Declaration of 4 May 1990 “On Restoration of the Independence of the Republic of Latvia” where Article 1 prescribed the dominance of fundamental principles of international law over national laws.
The Satversme of Latvia (the Constitution) does not include special provisions on the hierarchy of legal norms. It follows from Article 68 and 85 of the Constitution, Article 16 of the Constitutional Court Law as well as from other laws.
Article 68 of the Satversme is a significant special regulation with regard of the European Union, which provides:
All international agreements, which settle matters that may be decided by the legislative process, shall require ratification by the Saeima (the Parliament).
Upon entering into international agreements, Latvia, with the purpose of strengthening democracy, may delegate a part of its State institution competencies to international institutions.
International agreements in, which a part of State institution competencies are delegated to international institutions may be ratified by the Saeima.
Membership of Latvia in the European Union shall be decided by a national referendum, which is proposed by the Saeima.
Article 85 of the Satversme and Article 16 (item 1) of the Constitutional Court Law envisaged that the Constitutional Court reviews cases concerning the compliance of laws with the Constitution.
Item 2 of Article 16 determines that the Constitutional Court shall review cases regarding compliance with the Satversme of international agreements signed or entered into by Latvia (even before the Saeima has confirmed the agreement).
Article 16 (item 6) of the Constitutional Court Law establishes that the Constitutional Court shall review cases on the compliance of the national legal norms of Latvia with international agreements entered into by Latvia, which are not contrary to the Satversme.
Article 15 of the Administrative Procedure Law provides:
(1) In administrative proceedings courts shall apply the external regulatory enactment, legal norms of international law and the European Union (Community), as well as the general principles of law.
(2) The courts shall observe the following hierarchy of the legal force of external regulatory enactment:
1) the Satversme;
2) the laws, and the regulations of the Cabinet of Ministers adopted in accordance with Article 81 of the Satversme;
3) regulations of the Cabinet of Ministers;
4) binding regulations of local governments.
(3) The legal norms of international law regardless of their source shall be applied in accordance with their place in the hierarchy of legal force of external regulatory enactment. If a conflict between a legal norm of international law and a norm of Latvian law of the same legal force is determined, the legal norm of international law shall be applied.
(4) The legal norms of the European Union (Community) shall be applied in accordance with their place in the hierarchy of legal force of external regulatory enactment. In applying the legal norms of the European Union (Community), courts shall take into account case law of the European Court of Justice.
According to Article 5 of Civil Procedure Law:
(1) Courts shall adjudge civil matters on the basis of the laws of Latvia.
(3) Where provided for by law or by agreement, the courts shall also apply provisions of international law or the laws of another states.
According to Article 2 of Criminal Procedure Law:
(1) The criminal procedure in Latvia shall be determined by the Satversme (the Constitution) of the Republic of Latvia, international legal norms and this Law.
(2) In applying the legal norms of the European Union (Community), shall take into account case law of the European Court of Justice. In applying the Latvian legal norms, shall take into account interpretation of the particular legal norm in the judgement of the Constitutional Court.
The succession provided in Article 15(2) of the Administrative Procedure Law – the Satversme, the laws, and the regulations of the Cabinet of Ministers issued according to Article 81 of the Satversme, regulations of the Cabinet of Ministers, binding regulations of the local governments - forms the central part of the hierarchy of all legal norms.
Article 15(3) provides for the European Union (Community) legal norms, and Article 15(4), for the international legal norms to be included in central part of this hierarchy.
The legal base of Latvia’s membership in the European Union is the Treaty of 16 April 2003 on the accession to the European Union. The Treaty of Accession has an appended Act concerning Conditions of Accession and the Adjustments. Article 2 provides the following: “From the date of accession the provisions of the original Treaties and the acts adopted by the institutions and the Central Bank shall be binding on the new Member states and shall apply in these States under the conditions laid down in these Treaties and in this Act.
The laconic regulation determines that Latvia has adopted legal norms of the European Communities, which have been in force at the moment of accession, and that they are in operation here. The reference to agreements also includes in Article 220 of the Treaty establishing the European Communities, which is the basis of the role of the European Court of Justice in application of the European Community law. Thus, Article 2 of the Act concerning Conditions of Accession and the Adjustments also includes the case law of the European Court of Justice. It is a source of European Community law. The case law of the European Court of Justice, transferred according to Article 2 of the Act, also covers the principle of the direct effect of the Community law and the principle of primacy over national legal norms.
By signing the Treaty of Accession of 16 April 2003 and accepting the appended Act concerning Conditions of Accession, Latvia have accepted that in Latvia the European Community legal norms are ranked higher than the Latvian national legal norms.
In the hierarchy of Latvian legal norms, the Satversme is the supreme legal act. Like the constitutions of any country, it cannot be derived from other legal norms. The Satversme has acquired its supreme judicial power by being, in a definite historical moment, the act that had manifested the political will of the people, and which has found implementation in life. The actions of the state shall in all aspects be consistent with the norms of the Satversme.
The Satversme of Latvia does not provide special regulations that would tackle the primacy issues of the Community law. However, as such a special adjustment has not been included in the Satversme, the question concerning the primacy of the European Community law shall be solved in the frames of the current regulations of the Satversme. Article 68 of the Satversme is a significant special regulation with regard of the European Union. It provides: All international agreements, which settle matters that may be decided by the legislative process, shall require ratification by the Saeima.
According to its content, the Treaty of Accession is an international agreement by which part of the Latvian State institution competencies is delegated to the European Union according to Article 68 of the Satversme.
However, Article 68 of the Satversme is not a blanco norm. Whether and to what extent the Treaty of Accession is in force in the Latvian legal system, depends on the relevance of the Treaty to the regulations of the Satversme.
It follows that the supremacy principle of the Community law included in the Treaty of Accession may only be accepted to the extent it is allowed by the Satversme.
The mandate of the Satversme to conclude international agreements, which stipulates delegation of the State institutions competencies to the international institutions, is not only given in relation to the European Union, it can also be extended to other international organisations. Article 68(2) stipulates a special material prerequisite for the admissibility of such an agreement – it must be concluded “with the purpose to strengthen democracy”.
To indicate that the delegation of the competencies of the Latvian Sate institutions to international institutions can only be admissible if the democracy principle provided for in the Satversme Article 1 is not affected. The above principle is in turn closely related with the notion of state independence under the same article and of the people’s sovereignty stipulated in Article 2.
It follows from the above that within the entire context of the Satversme, Article 68 shall be interpreted in the way that the international agreement, by which a part of Latvia’s State competencies are delegated, is in force only to the extent to which it does not affect independence of the state, its democratic order, and people’s sovereignty.
Establishing whether and to what extent the principles of the direct effect and primacy of the Community law, enshrined in the Treaty of Accession, correspond to the provision of Article 68(2) of the Satversme, it shall be noted that an international agreement enters into force when it is approved by the law (Article 68(1). In case of the Treaty of Accession, this is the Law on Ratification of 30 September 2003.
As it mentioned before, Latvia follows the monism doctrine. According to this doctrine, the international legal norms that are in effect in Latvia and the national legal norms form a unified legal system. In case of collision the international legal norms have superiority over the national legal norms. The above finds reflection in Article 13 of the Law "On International Agreements of the Republic of Latvia". According to this Article “If an international agreement approved by the Saeima stipulates other provisions than the legislative acts of the Republic of Latvia do, the provisions of an international agreement are applied.
The above is also approved by the case law of the Constitutional Court. In its judgement of 7 July 2004 in case No. 2004-01-06 the Constitutional Court established the following: “In establishing a contradiction between the international legal norm and the Latvian national legal norm, the institution applying the norm shall use the international legal norm.”
From the above it follows that the law by which the Saeima approves (ratifies) an international agreement shall be considered as “an order for its application” in Latvia. As soon as such order is given, the international agreement is included in the system of legal norms in Latvia.
By the Law on Ratification of 30 September 2003, the Treaty of Accession has been included in the legal system operating in Latvia. According to the theory and practice of the Latvian law, this agreement is ranked higher than a simple statutory law.
The same also refers to the principles of direct effect and primacy of the Community law, which are included in the Treaty of Accession. In the Latvian legal system they are ranked higher than statutory law.
Conclusion may be made that in Latvia the legal norms of the European Communities are ranked higher than the national statutory law. In case of contradiction between the Community norms and Latvian legislative acts the norm of the European Community law must be applied.
The primacy principle of the European Community law cannot be applied in relation to the norms formally included in the constitutional base of Latvia, as well as to the norms in the Satversme in the constellation that indirectly specify some of the basic norms (in particular, the notion democracy in Article 1). The Satversme retains priority here.
The current regulation of the rank of the European Community law in the Satversme, which is based in Article 68 of the Satversme, solves the collision problems between the Latvian law and the legal norms of the European Communities in favour of the legal norms of the European Communities.
After Latvia’s accession to the European Union, the Constitutional Court, in its first fundamental judgement concerning the applicability of the Community law in Latvia, established the following: “…that from laws and international liabilities, undertaken by the Republic of Latvia when ratifying Viena Convention, follows that in each particular case, if there arises a discrepancy between the international legal norms, ratified by the Saeima, and the national legal norms of Latvia the international legal norms shall be applied. Besides, the international liabilities, undertaken by Latvia on the basis of international agreements, confirmed by the Saeima, are binding also on the Saeima itself. It may not adopt legal acts, which are at variance with the above liabilities.” The case dealt with relations between the norms of a Latvian statutory law, a European directive, and an international agreement.
In its judgements Constitutional Court also has referred to the case law of European Court of Justice (see, for example, judgements in cases:
No. 2004-03-01 “On the compliance of Article 30 (parts five and six) of the Law “On State Pensions” with Articles 1 and 91 of the Constitution (Satversme) of the Republic of Latvia”, October 25, 2004, No. 2004-10-01 “On the compliance of Section 132 (Item 3 of the first part) and Section 223 (Item 6) of the Civil Procedure Law with Article 92 of the Constitution (Satversme) of the Republic of Latvia”, January 17, 2005.
In its judgement of 7 July, 2004 the Constitutional Court established: “…When applying the legal norms of the European Union the institutions and the courts shall take into consideration the judicature of the European Court of Justice”.
There are judgements of courts of general jurisdiction and administrative courts where courts referred to the case law of European Court of Justice.
In October 1998 the Satversme has been supplemented with Chapter VIII “Fundamental Human Rights”. Besides Chapter VIII of the Satversme, there are some articles in other Chapters of the Satversme enshrining the fundamental rights.
The European Convention for the Protection of Human Rights and Fundamental Freedoms has had a great impact on the elaborating of the cited Chapter. As far as the laconic style of our Satversme permitted, the legislator – when elaborating the above norms- tried to take into consideration the letter and spirit of the Convention.
The European Convention for the Protection of Human Rights and Fundamental Freedoms as well as its Protocols 1, 2, 4, 6, 7 and 11 is applied by Latvian Courts in guaranteeing human rights and everyone can demand it application in their case. The Convention is legally binding, directly applicable and justifiable in Latvia. When domestic courts do not guarantee the rights enshrined in the Convention, everyone has the right to turn to the European Court of Human Rights.
All the norms of the Satversme are very brief and laconic. Therefore it is of great importance, how they are interpreted. The Constitutional Court has played an essential role to favour putting into practice the theory of modern human rights and fundamental freedoms. It is constant practice of the Constitutional Court to interpret the contents of the norms of human rights, incorporated into the Satversme in compliance with the practice of application of international human rights.
Constitutional Court formulated this standpoint in the some judgements when concluded:
“On the one hand the possibility and even the necessity of applying international norms for interpretation of the fundamental rights, incorporated in the Satversme, follows from Article 89 of the Satversme, determining that the State recognises and protects the fundamental rights of a person in accordance with this Satversme, the laws and international agreements binding on Latvia. It can be seen that the objective of the legislator has not been to contradiction to the norms of the human rights, included in the Satversme with the international human rights norms. Quite to the contrary – the objective was to create mutual harmony of these norms (see the judgement of the Constitutional Court in case No. 2003-03-01, 30 August, 2000).
“Chapter VIII of the Satversme “Fundamental Human Rights” was adopted after Latvia had undertaken the above international liabilities. Constitutional Courts of other states also interpret the human rights included in their Fundamental Laws in like manner. For example, the German Federal Constitution has pointed out that “when interpreting the Fundamental Law one should take into consideration the content and state of development of the European Convention for the Protection of Human Rights and Fundamental Freedoms as far as it does not decrease or limit the fundamental rights, included in the Fundamental Law, i.e., the influence, which is excluded by the Convention itself (Article 60 of the Convention). Thus the judgement of the European Court of Human Rights serve as basic means of interpreting the content and limits of the fundamental rights determined by the Fundamental Law… One may not presume that the legislator, if he has not stated clearly, would have wanted to deviate from the international liabilities binding on the German Federative Republic or allowed the possibility of infringing the above liabilities” (see BvefGE 74, 358). On the other hand, to establish the contents and limits of the Satversme Article, it is not always possible to confine oneself just to the interpretation of the Convention and the practice of the European Court of Human Rights, especially in cases when the Satversme Article does not envisage specified (concrete) rights. One should take into consideration the norm, incorporated in Article 60 of the Convention (in the wording of the Convention, which took effect on November 1, 1998 – Article 53). The norm determines that 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 any other agreement to which it is a Party.” (see the judgement of the Constitutional Court in case No. 2001-08-01 “On Conformity of Article 348 (the seventh part) of the Civil Procedure Law with Article 92 of the Satversme of the Republic of Latvia”, January 17, 2002).
Many fundamental rights and freedoms not enlisted in the Satversme expresis verbis have been derived from the Constitution by way of interpretation.
One should take into account the standpoint of the Constitutional Court that the content of the norms of human rights incorporated into the Satversme should be interpreted in compliance with the practice of application of international norms of human rights. In the numerous judgements of the Constitutional Court there are remarks to the case law of the European Court of Human Rights and the works of the legal scientists analysing this practice.
In one of recent judgement the Constitutional Court pointed out:
“As the submitters request to assess conformity of the impugned norm with several Satversme and international legal norms, the Constitutional Court reminds that the aim of the legislator has not been to oppose the human rights norms, included in the Satversme, to international human rights norms. The chance and even necessity to apply international norms for interpretation of the fundamental rights, incorporated in Satversme, inter alia follow from Article 89 of the Satversme, which determines that the State shall recognise and protect fundamental human rights in accordance with the Satversme, laws and international agreements binding upon Latvia. It can be seen from the Article that the aim of the legislator has been to achieve the harmony of norms, incorporated in the Satversme with international human rights norms. Besides, Chapter VIII of the Satversme “Fundamental Human Rights” was passed after Latvia had undertaken the relevant international liabilities.
The other Constitutional Courts of the European States, when interpreting the national Constitution norms, similarly use the European Convention for the Protection of Human Rights and Fundamental Freedoms and other international human rights norms as well as the case law of the European Court of Human Rights. The German Federal Constitutional Court has established that Convention guarantees influence interpretation of fundamental rights included in the Basic Law and the principle of the law-governed state. The text of the Convention and the case law of European Court of Human Rights serve as means of interpretation on the level of constitutional law to determine the contents and scope of fundamental rights and the principles of the law-governed state, as far as it does not lead to decrease or limitation of fundamental rights, included in the Basic Law, that is – to influence, which is precluded by Article 53 of the Convention. The Constitutional legal meaning of international human rights is the expression of favourableness (Volkerrechtsfreundlichkeit) of the Basic Law toward the international law, which strengthens the state sovereignty by an international legal norm and the aid of general principles of international law. Therefore the Basic Law shall be interpreted as much as possible of the German Federative Republic does not arise (see the German Federative Constitutional Court October 14, 2004 Judgement in case 2BVR 1481/04).
When renewing the independence of the Republic of Latvia, the Supreme Council stressed the significance of international legal principles (see Item 1 of the LSSR Supreme Council May 4, 1990 Declaration on the Renewal of Independence of Latvia). Simultaneously the Supreme Council, by adopting the “Declaration of the Accession of the Republic of Latvia to International Legal Instruments Relating to Human Rights”, declared that it recognised as binding more than 50 international documents, relating to human rights.
Thus, when interpreting the Satversme and international liabilities of Latvia, one should look for the interpretation, which ensures harmony, but not confronting.
The rights and freedoms included in Satversme are primarily enforceable vis-à-vis in the state. Article 89 of the Satversme provides that “the State shall recognise and protest fundamental human rights in accordance with this Constitution, laws and international agreements binding upon Latvia”. That means the duty of the legislative, executive and judicial powers and of local governments is to guarantee these rights and freedoms.
In Article 17 part I of the Constitutional Court Law are enumerated the subjects which have the rights to submit an application to initiate such case. Such right shall have a court, when reviewing an administrative, civil or criminal case, a judge of the Land Registry when entering real estate – or thus confirming property rights on it – in the Land Book, a person whose fundamental rights established by the Constitution have been violated, as well as.
According to Article 32 of the Constitutional Court Law a judgement of the Constitutional Court shall be binding on all state and municipal institutions, offices and officials, including the courts, also natural and judicial persons. 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 date of publishing the judgement of the Constitutional Court, unless the Constitutional Court has ruled otherwise.
However, if the Constitutional Court has recognise any international agreement signed or entered into by Latvia as incompatible with the Constitution, the Cabinet of Ministers is immediately obliged to see that the agreement is amended, denounced, suspended or the accession to that agreement is recalled.
C.2. Does your country’s case law recognise the value – at least for interpretation purpose – of the Council of Europe recommendations and resolutions?
Latvian courts recognise recommendations and resolutions of the Council of Europe, also for interpretation purposes.
C.3. If the European Court of Human Rights were to hold that certain provisions in your country’s legislation violate the ECHR, would your national courts be permitted not to apply those provisions? Apart from execution of the Court’s judgements by the government, do the national courts have authority to prescribe their own measures implementing the Court’s decisions?
Everyone has the right to defend his/her rights and lawful interests in a fair court. This right guaranteed by Article 92 of the Satversme of the Republic of Latvia.
Judicial power in the Republic of Latvia is vested in district (city) courts, regional courts, Supreme Court and the Constitutional Court.
Civil, administrative cases and criminal cases are examined in three levels.
The Constitutional Court within the jurisdiction reviews cases concerning the compliance of laws and other legal norms with the Constitution.
If the human rights have been infringed by administrative acts or measures, which are contradiction with law under which they have been given or taken, the administrative courts have the power to invalidate the administrative acts as contrary to law.
If the law itself under which the administrative act was passed or measure taken is unconstitutional, the administrative court have the right and the obligation to submit the application to the Constitutional Court.
The courts of general jurisdiction can also submit application to the Constitutional Court.
Article 19' of the Constitutional Court Law deals with the application by a court to the Constitutional Court. It envisages, that the application shall be submitted if:
1) a court – when reviewing an administrative case in the first instance, under the procedure of appeal or casation, holds that the norm, which has to be applied to the case does not comply with the legal norm (act) of higher force;
2) a court – when reviewing an administrative case in the first instance, under the procedure of casation or appeal, holds that the norm, which the institution has applied or which should be applied at the administrative court process does not comply with the Satversme or international legal norm (act).
In 2004 26 cases were initiated in the Constitutional Court. 10 of them were initiated on the claim of the administrative courts and the courts of general jurisdiction.
Very important measure for protecting the human rights in the constitutional claim to the Constitutional Court. In compliance with Article 19.2 of the Constitutional Court Law any person, who holds that his/her fundamental rights, established by the Constitution, have been violated by applying a legal norm, which is unconformity with the legal norm of higher force may submit a claim.
Since 1 July 2001 individual person, any Latvian inhabitant can lodge a complaint in the Constitutional Court about his/her fundamental rights violation.
In its turn from January 1, 2001 to January 1, 2006, 824 applications have been registered at the Constitutional Court. However, only 71 of them had been initiated as constitutional claims.
Article 19.2 of the Constitutional Court Law envisaged that the constitutional claim shall be submitted only after exhausting the ordinary legal remedies (a claim to a higher institution or official, a claim or application to a court of general jurisdiction etc.) or if there are no other means.
If the European Court of Human Rights were hold that the certain provisions in our legislation violate European Convention for the Protection of Fundamental Rights and Freedom the appropriate Court judgement should be followed by actions from the State (The Parliament, the Government) – either amendments or abrogation of law.
If such actions do not follow and the court, while adjudicating the case comes across the norm, which has been recognised by the European Court of Human Rights as not corresponding to the Convention, the particular court may postpone proceedings and apply to the Constitutional Court. The Constitutional Court has the exclusive right to invalidate the law. General jurisdiction courts and administrative courts lack the above-mentioned competence.
C.4. Where legislation violating provisions of the ECHR has been applied in legal proceedings concluded by a final, non-appealable decision, are the following remedies available in your country before a possible application to the Court in Strasbourg:
- a direct application for reopening of the proceedings?
- lodging of a claim for compensation?
Please specify whether national law affords solutions of this kind, which are solely confined to certain violations of the ECHR, such as legal proceedings, which have breached the reasonable time requirement.
There is Chapter 39 of the Administrative Procedural Law – Adjudication of matter de novo in connection with newly discovered facts. Article 353 of cited Chapter determines what shall be considered to be these facts. These facts are:
(5) a norm of law, which was applied in adjudging the matters is found to not be in compliance with a norm of law of higher legal force,
(6) an adjudication of the European Court of Human Rights or other international or supranational court in this matter from which it follows that the administrative proceeding should be initiated de novo. In such case the court in taking a decision in the resumed matter shall relay on the facts determined in the adjudication of the European Court of Human Rights or other international or supranational court and the legal assessment thereof.
According to Article 354 of the Administrative Procedure Law a matter in connection with newly - discovered facts, may be initiated by a participant in an administrative proceeding by submitting an application:
1) regarding the setting aside of an adjudication of a district administrative court – to a regional court,
2) regarding the setting aside of an adjudication of a regional administrative court – to the Senate of the Supreme Court.
If a court determines that there are newly - discovered facts, it shall set aside the appealed adjudication in full or in part and refer the matter to a court of first instance for it to be re-adjudicated.
See, for example, cases No. SJA 14, 2005, No. SJA 6, 2004 of the Administrative Department of the Supreme Court of the Republic of Latvia.
According to Article 479 of the Civil Procedure Law the following facts shall be deemed to be newly - discovered: the acknowledgement of a norm of law applied in the adjudication of the matter as not in conformity with higher norm of law in legal effect.
In connection with newly discovered facts a matter may be initiated by submitting an application by the participant in the matter.
According to Article 655 of the Criminal Procedure Law the following facts shall be deemed to be newly - discovered:
an adjudication of the Constitutional Court about the inadequacy of some legal norm or its interpretation to the Constitution, on the basis of which court’s decision has come into force,
an adjudication of the international court institution concerning the decision of Latvian court, which has come into force, but does not correspond to international normative acts binding to Latvia.
In cases where legislation violating provisions of the European Convention of Human Rights and Fundamental Freedoms has been applied in legal proceedings concluded by a final decision before applying to the European Court of Human Rights, a person has the possibility to apply to the Constitutional Court. If the Constitutional Court recognises the law not compliance with the Constitution (Satversme) or the Convention, then:
1. a court proceedings can be renewed;
2. a person may apply for redress to courts of general jurisdiction or administrative courts.
For example, see Constitutional Court judgement in case No. 2004 – 21 – 01 “On the compliance of paragraph 32 of the Transitional provisions of the Law on State Pension with Article 1 and 109 of the Satversme”. In this judgement the Constitutional Court established: “… withholding from pensions on the basis of paragraph 32 of the Pension Law Transitional provisions or Section 36 of the Law shall be inadmissible and illegal as of the moment of declaring paragraph 26 of the Pension Law Transitional provisions invalid. Thus, the persons, from whom the above withholdings have been held, have the right to receive back the withheld sum of money.
On the basis of the Administrative Procedure Law the institution and the court shall act so as to as much as possible efficiently to ensure those rights of the pensioners, which follows from this Judgement.
D. The role of judges in striking a balance between protecting the public interest and human rights in the context of the fight against terrorism.
D.1. Has your country incorporated the Council of Europe recommendations and resolutions in its legislation or taken special measures to distribute and publicise these instruments?
Provisions prescribed by Council of Europe recommendations and resolutions have been taken into account while elaborating amendments to Criminal Law of Latvia. No special measures have been taken to distribute and publicise these instruments.
D.2. Has your country passed substantive and/or procedural legislation specifically concerned with the fight against terrorism? Please, describe any ways in which its provisions depart from the general law applicable in your country to the prosecution and punishment of criminal offences?
The parliament has adopted Amendments to Criminal Law on December 8, 2005, amending Article 88 of Criminal Law, which deals with the fight against terrorism.
Article concerned establishes criminal liability for the acts committed with the intent to intimidate population or compel a State, its institutions or international organisations to perform or abstain from performing any act or to harm the interests of a State, its population or international organisation: 1) explosion, 2) fire, 3) manufacture, 4) kidnapping, 5) hostage taking, 6) unlawful manufacture, repairing, purchase, possession, carrying, transmission, realisation of weapons, ammunition, pneumatic weapons, explosives or explosive devices, 7) seizure of aircraft, ships or other means of transport, 8) intentional acts with the aim to cause person’s death, body injuries or other harm to person’s health, 9) destruction or damage of enterprises, constructions, fixed platforms on the continental shelf, pipelines and gas lines, electric lines, lines of communication, vehicles, electronic communication networks, State ionic radiation objects, 10) causing nuclear or radiation accidents, 11) mass contamination, 12) epidemic, epizootic dissemination, 13) threatening to commit any of the acts listed in 1) to 12) if there are grounds to believe that the threats can be fulfilled.
Article prescribes more severe punishments if these acts have been committed in a group of person formed or prior agreement (terrorist group) or if a person is leading a terrorist group.
Article concerned has been elaborated taking into account Council Framework Decision of 13 June 2002 on combating terrorism (2002/475/JHA) to encourage common understanding of acts of terrorism to approximate laws of European Union Member States regarding the substantive criminal law.
The Criminal Law has been accomplished in accordance with contemporary terrorism threat.
The Parliament has amended the Criminal Law on April 28, 2005, including Article 88 dealing with crime of terrorism financing.
Article concerned established criminal liability for direct or indirect collection or transfer of financial resources or other belongings obtained in any way with the intention to make use of them or being aware that they will be completely or partly used to commit one or several terrorist acts or to transfer them to terrorist organisation or individual terrorist (terrorism financing).
Article prescribed more severe punishments for terrorism financing if this act has been committed in a group of persons formed on prior agreement or if it has been committed on a large scale.
Annex 2 to Criminal procedural law of Latvia adopted on April 21, 2005 by the Parliament prescribes offences for witch person is extradited to the Member State of the European Union not verifying if these offences are considered unlawful according to the law of Latvia. One of these offences is terrorism.
The provisions, which are applicable to the prosecution and punishment of criminal offence of terrorism and financing terrorism, do not depart from the general law (Criminal Procedural Law and Code of Punishment Execution) applicable in Latvia.
D.3. What means does your country use to reconcile the demands of the fight against terrorism and protection of human rights?
Article 12 of the Criminal Procedure Law prescribes that criminal procedure is carried out taking into account internationally recognised human rights and precluding unjustified imposition of criminal procedural obligations or interference in person’s life. Human rights can be restricted only in case of public security reasons and accordance with Criminal Procedure Law in proportion with the character and risk of criminal offence.
According to the norms of cited Law, the institute of investigation judge has been established and exists in Latvia.
Investigation judge is a judge who has been delegated the responsibility to control the observance of human rights in criminal proceeding.
Among other responsibilities, the investigation judge has the responsibility to initiate that the officials, authorised to lead criminal procedure, would receive punishment for the encroachment of human rights.