Endzins A.
Chairman of the Constitutional Court of Latvia

The Application of Different Techniques of Interpretation
of the Constitution as a Factor of its Development

In comparison with other states, which renewed or formed their statehood after being part of the USSR, Latvia finds itself in a specific situation as concerns the sector of constitutional law. When renewing its independence, Latvia renewed also the validity of its Constitution – the Republic of Latvia Satversme, which was adopted in 1922.

Several foreign scientists of the sector of law call it a step of "nostalgic dreams" and "somewhat surprising" However, as I have repeatedly stressed at international gatherings, the politicians chose the renewal of the validity of the old Constitution not just for stressing the continuity of the statehood of Latvia but also because the old Constitution had many advantages. In such a way the state institutional system in Latvia was determined by a document, which – on the one hand - was free from the influence of the so-called model of Soviet time thinking and – on the other hand – it had been verified in practice by both – collecting positive experience and in disclosing shortcomings. The Republic of Latvia 1922 Satversme became the instrument of change for the renewal of a democratic and law-based state in Latvia.

Of essential importance for avoiding repetition of the errors of the past in Latvia was fixing of the institute of the Constitutional Court in Article 85 of the Satversme, which resulted in the formation of the Constitutional Court. The above Article determines 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 Constitutional Court shall have the right to declare laws or other enactments or parts thereof invalid. The appointment of judges to the Constitutional Court shall be confirmed by the Saeima for the term provided for by law, by secret ballot with a majority of the votes of not less than fifty-one members of the Saeima".

The Article is very laconic, but it complies with the 1922 style of the Republic of Latvia Satversme. The Constitutional Court has interpreted this norm in such a way so as to realize in its activities the role "of a watchdog", guarding the Constitution and ensuring that the Satversme is really an instrument of change when creating a democratic and law-based state in Latvia.

I can only agree to the words, expressed by the former Prime Minister of our neighbouring state Lithuania A. Kubilius that "the significance of constitutional arguments in political decision-making is not predetermined by mythological respect of politicians for the Constitution, it rests on the existence of the Constitutional Court, which is a powerful and influential player in political decision-making"².

The Constitutional Court has realized its role of the "watchdog" and has not obliged the will of the ruling politicians. Thus in summer of 1999 there was a scandalous case and the quarrel arose whether the case was within the competence of the Constitutional Court. The Constitutional Court in its Judgment concluded that "one of the fundamental principles of a democratic state is the principle of separation of power. It follows that there exists control of the judicial power over the legislative and executive power. No legal norm or activity of the executive power shall remain out of control of the judicial power, if it endangers interests of an individual."

When the Constitutional Court declared the Judgment in the above and another scandalous case in quite a different way than the ruling politicians wanted, the Prime Minister and the Minister of Justice expressed the idea that the Constitutional Court shall be liquidated. In this case the public in the person of mass media and the greatest number of the Parliament members expressed unequivocal support to the Constitutional Court and the above politicians had to change their viewpoint.

In its turn several years later, when the case, connected with the legality of compensations paid to the deputies was reviewed, the Head of the Saeima Administrative Committee Juris Dobelis dared to express a rather indicative insinuation (I am quoting him): "You see, the Saeima itself determines not only the budget of the state, but also its own budget. Thus it is just on our conscience how much we decide to give ourselves, as we are able to do it as we want. And, sorry to say, we are determining your budget as well. There!"

The Constitutional Court of course did not take into consideration the above threats. In its Judgment the Constitutional Court repeatedly stressed that "In its turn the rule of law determines that the law and the rights are binding on any institution of the state power as well as on the legislator itself. In a democratic republic the parliament has to observe the Constitution and other laws, also those, passed by the parliament itself."

However, side by side with the role of the "watchdog" that is first of all used for realization of the principle of separation of power and securing of rule of law in cases of more or less noticeable violation of the Satversme, of great importance has also been the contribution of the Constitutional Court in ensuring an up-to-date interpretation of a unified state fundamental law and embodiment of legal theory characteristic to the Western sector of law.

As I have already mentioned, the renewal of validity of the old Constitution in Latvia had many advantages, but also some shortcomings. At the time when the Republic of Latvia Satversme was in effect only de iure, but de facto there were occupational regimes in Latvia, the legal thought of the world and the understanding of democracy and a law-based state had noticeably developed. On the one hand it was necessary to amend or supplement several norms of the old Constitution as well as to incorporate into the Satversme the Chapter on Human Rights. On the other hand there was the necessity of creation of such an interpretation of the Satversme, which would comply with the requirements of up-to-date democracy. We have done much in both the above directions, even though we have not managed to do it as quickly as we had initially hoped.

From the viewpoint of the formation of the Satversme, two main bodies of norms may be noticed. On the one hand the norms, adopted in 1922 determine the fundamental principles of the formation of the State and the institutional system, in which during the last decade several amendments have been introduced. On the other hand – fundamental human rights are determined by Chapter 8. of the Satversme, which has been adopted quite recently – in 1998. As concerns the style and form, all the newly introduced norms comply with the traditional and laconic style of the Satversme. As concerns the volume of the Republic of Latvia Satversme, if compared with the so-called up-to-date constitutions, it is very short. It, in its turn, increases the necessity of efficient interpretation of the norms of the Satversme.

The problems of interpretation of the Satversme, with which the Constitutional Court met, are connected with problems, which one comes across during the transitional period from one legal system to another one. It is not possible to restructure the legal theory and its application in one day only. The process of formation of legal theory, which meets the requirements of our time in Latvia has been long and hard .

The main problem, which during the transitional period shall be solved in issues of interpretation of legal norms, was abandonment of brainwashing and politicization of law, which was characteristic to the Soviet law and introduction of the teleological interpretation method. As is well-known, the Western law uses four methods of interpretation of legal norms: 1) grammatical (linguistic) method, which is directed to elucidation of the contents of the text of the norm from the linguistic viewpoint; 2) the systemic method, which is directed to clarification of the notion of the text of the norm from the mutual interconnection of the norms; 3) the historic method, which is directed to clarification of the text of the norm from the historical viewpoint of its passing; 4) teleological method, which helps to elucidate the text of the norm from the viewpoint of the aim of its adoption. The first three of the above methods were acknowledged by the Soviet legal theory; the forth – the teleological method – was disclaimed. Denial of this method is understandable as under the Soviet legal theory the aim of a norm, determined by the legislator had no value in itself as it was subordinated to the leading instructions of the Communist Party. Giving up the ruling role of the Communist Party was the first big step on the road to such interpretation of legal norms, which comply with the requirements of a law-based state. The next decisive and also the hardest step was putting the teleological method into practice.

The Constitutional Court in its Judgments when interpreting the Satversme has tried to make use of all the above methods in practice, not fearing to express the conclusions, which initially caused different opinion among the Latvian lawyers. As a matter of fact the Constitutional Court has been the initiator in the process of development of theory of law in more cases than one.

For example, already in its first Judgment the Constitutional Court referred to general legal principles. It resulted in a wide public discussion, which included both – sharp criticism and a very positive assessment of the activity of the Constitutional Court. Thus not only the Judgment but also the above discussion was a noticeable contribution into the development of the legal theory. In its next Judgments the Constitutional Court repeatedly referred to general legal principles, and no public criticism followed it. The legal thought had accepted the above behaviour of the Constitutional Court.

Several years later the general legal principles as the source of law were fixed in the Administrative Procedure Law. The first part of Article 15 of this law determines: "In an administrative process the institution and the court apply external normative acts, international legal norms as well as general legal principles, including the principles of the administrative process". At the moment the lawyers of Latvia have no doubt that the legal principles are an important legal source. Besides this legal source is being widely used in practice, inter alia also in the courts of general jurisdiction.

I would like to dwell on several interpretation techniques of Constitution in a wider sense. Taking into consideration the time of adoption of the Republic of Latvia Satversme, as well as the almost half a century long discontinuation of its development, the Constitutional Court has always tried not to "lose the forest behind some trees", in other words – not to lose the spirit of the Satversme behind its letter. Namely, when interpreting particular norms, the Constitutional Court takes into consideration the Satversme in aggregate as a document, which has been elaborated by guidance of the best samples of its time. By interpreting the Satversme in the above way the Constitutional Court has concluded that at that time the legislator had wanted to create a progressive democratic system in Latvia. At the present moment, when interpreting the contents of particular norms, one has to take into consideration the development of the democratic thought in the world scale.

For example, in one of the matters of the Constitutional Court the so-called "percentage barrier" of the Saeima Election Law was challenged. It is interesting that on June 9, 1922 the Republic of Latvia Constitutional Assembly adopted the Law on the Saeima Elections. This Law did not envisage electoral percentage threshold, which the candidates have to surmount to become the Saeima deputies. In its turn after the renewal of the independence of Latvia the legislator in the election laws determined the above barrier. The Constitutional Court assessed the conformity of the above norms with the five universally recognized election principles in the democratic states of the world. Namely, that the elections have to be general, equal, free, secret and direct. The Constitutional Court declared that the challenged norms comply with the above principles and with the Satversme.

In another case was challenged the norm of the Saeima Election Law, this denied the active election right to persons, to whom arrest had been applied as the security measure. The Saeima Election Law, passed in 1922 incorporated an analogous norm. The Constitutional Court concluded that "To establish the aims of the challenged legal norm, one has to analyze the restrictions of the right to vote in Latvia since the moment of adoption of the 1922 Election Law as well as the development of the election rights of the world and the tendencies of liberalization". The Constitutional Court quoted the viewpoints of several deputies of the Constitutional assembly expressed in 1922 and concluded that "already the Constitutional Assembly, when discussing the restrictions to the election rights, came to the conclusion that the restrictions may be changed and shall not be incorporated into the Constitution but into the Election Law. One should note that in the context of the world election system of that time the 1922 Election Law was a progressive law and envisaged far less restrictions to the right to vote than several other democratic states, e.g. women had the right to vote". In this case the Constitutional Court declared that the challenged norm of the Saeima Election Law was unconformable with the Satversme.

As I have already mentioned the greatest part of the Republic of Latvia Satversme norms concerning the fundamental human rights, namely, Chapter 8 of the Satversme, have been passed comparatively recently – in autumn of 1998. When interpreting these norms of Satversme the most topical feature is their interpretation in the context of European constitutional traditions.

I would like to stress whether and how approximation of the European Convention for the Protection of Human Rights and Fundamental Freedoms at the European Court of Human Rights shall be used when interpreting the norms of the Republic of Latvia Satversme.

The European Convention for the Protection of Human Rights and Fundamental Freedoms as well as its Protocols 1, 2, 4, 7 and 11 were ratified on 4 June 1997, but Protocol No. 6 – on 27 April 1999. At that time, the Republic of Latvia Satversme (Constitution), had not been supplemented with Chapter VIII "Fundamental Human Rights". Thus the fact that the fundamental rights were fixed in the Constitution later than the European Convention for the Protection of Human Rights and Fundamental Freedoms took effect in Latvia, is essential. As far as the laconic style of our Constitution permitted, the legislator – when elaborating the above norms – tried to take into consideration the letter and spirit of the Convention.

The Constitutional Court concluded: "Article 89 of the Satversme determines that the State recognizes and protects the fundamental rights of a person in accordance with the Constitution, laws and international agreements binding on Latvia. From this Article it can be seen that the aim of the legislator has not been to oppose the norms of human rights, incorporated into the Satversme, to the international ones. Quite to the contrary – the aim has been to achieve mutual harmony of the norms.

In cases, when there is doubt about the contents of the norms of human rights incorporated into the Satversme, they should be interpreted in compliance with the practice of application of international norms of human rights. The practice of the European Court of Human Rights, which in accordance with liabilities Latvia has undertaken (Article 4 of the "Law on 4 November 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols 1, 2, 4, 7 and 11) is mandatory when interpreting the norms of the Convention shall also be used when interpreting the relevant norms of the Satversme".

This conclusion had far-reaching consequences in the further activity of the Constitutional Court. Participants in cases and the Court itself have made reference to it. It is interesting to note that in the case, Judgment in which was announced on 17 January 2002, the applicant in her written explanations, submitted to the Constitutional Court, has expressed a viewpoint that the Saeima in its written reply has groundlessly referred to the interpretation of international norms of human rights. To her mind the Saeima had not taken into consideration the national legal system. The Constitutional Court analyzed the arguments of the submitter of the claim and concluded:

"Well-grounded is the reference of the Saeima that in cases, when doubt on the contents of the norm of the human rights, incorporated into the Satversme, arises, it should be interpreted as near as possible to the interpretation used in the international practice of applying the human rights. In its turn, both – the context in which it is used, and the applicant’s viewpoint that the national legal system has not been taken into consideration, shall be discussed from two aspects. To establish whether Article 92 of the Satversme includes the right of always appealing against the court decision on a civil case at a higher instance court, on the one hand the Convention and its interpretation in the practice of the Court of Human Rights and norms of other international human rights have to be analyzed. On the other hand, one should ascertain whether the legislator in Article 92 of the Satversme has not included more extensive rights than those, determined by international documents."

After that the Constitutional Court pointed out that human rights, incorporated into the fundamental law, are interpreted in the same way by constitutional courts of other states as well. The Court referred to the practice of the German Federal Constitutional Court.

In one of the more recent matters the Constitutional Court reviewed the conformity of several norms of the Labour Law with Article 106 of the Satversme, which inter alia envisages prohibition of forced labour. To interpret the concept "forced labour", incorporated in the above Satversme Article, the Constitutional Court made use of the practice of the European Court of Human Rights", concluding that "As Latvia is a Member State of the Convention, Judgments of the European Court of Human Rights are binding on it and it shall respect the conclusions, included in the judgments on the interpretation of international legal norms".

At the same time I would like to note that the Constitutional Court, when interpreting the Republic of Latvia Satversme does not dogmatically copy the practice of European institutions. In every particular case the specifics of Latvia is taken into consideration and the Satversme is interpreted as a single aggregate body.

For example, in compliance with Article 4 of the Satversme, the Latvian language is the official language in the Republic of Latvia. Article 16 of the State Language Law establishes that "the language of mass media broadcasts is determined by the "Radio and Television Law". The fifth part of Article 19 of the Radio and Television Law includes the norm, which determined that the proportion of a broadcaster’s foreign languages programs shall not exceed 25 per cent of the total air time per twenty four hours. This norm was challenged at the Constitutional Court and the submitter substantiated the claim by stating that the norm violates several fundamental human rights, enshrined in the Satversme and European Convention for the Protection of Human Rights and Fundamental Freedoms, like the right to freedom of expression. One shall explain that in its turn, in accordance with Article 5 of the "Language Law" any other language, besides the Liv language, used within the Republic of Latvia, must be regarded as a foreign language". And the sense of the term "a foreign language" shall be applied also to the challenged norm.

As concerns the case there was no argument about the challenged norm violating the right to freedom of expression, included in the Satversme, however the Parliament held the viewpoint that such the restriction was permissible. The Saeima in its written reply points out that the legitimate aim of the challenged norm has been increase of influence of the Latvian language in the Latvian cultural environment and advancement of public integration.

The Constitutional Court concluded that "One of the legitimate aims, determined

by Article 116 of the Satversme, which permits restriction to the right to freedom of expression, is public welfare. Side by side with the aspects of material welfare, the notion "public welfare" includes also non-material aspects, which are necessary for functioning of the harmonious society. "Activity of the State to secure public dominance of the Latvian language" may be considered as one of the non-material aspects […] Increase of the influence of the Latvian language will further the process of public integration and secure harmonious functioning of the society, and that is an essential precondition of public welfare." The Constitutional Court concluded that the text on the restriction of freedom of expression, included in the challenged norm, has legitimate aims.

However, further in the judgment, when evaluating whether the restriction of the fundamental right is in compliance with the principle of proportionality, the Constitutional Court established that implementation of the challenged norm has neither furthered more extensive use of the State language nor advanced the process of integration. The Court concluded that the limitation to the use of language, included in the challenged norm, cannot be regarded as socially needed in the democratic society. At the same time the Constitutional Court when assessing several circumstances, including the experience of our neighbouring state Estonia deduced that there exists the possibility of reaching the advanced aim by other means, which limit the rights of a person in a lesser degree. The Constitutional Court concluded that the language use restrictions, which are incorporated into the challenged norm, cannot be regarded as necessary and proportionate in the democratic society. The challenged norm was declared as being unconformable with the Satversme and null and void.

When interpreting the Republic of Latvia Satversme in the context of European constitutional traditions, the Constitutional Court has in many cases established that the problems, which Latvia comes across at the present moment, have also been solved in the Constitutional Court practice of other states. In such cases the Constitutional Court makes use of the practice of those courts. Besides, the Constitutional Court also makes reference to particular legal norms and Constitutional Court Judgments of other states.

As a specific example several Constitutional Court Judgments on Article 91 of the Satversme can be mentioned. Article 91 of the Satversme determines that all persons within Latvia are equal before the law and the courts. Human rights are implemented without any discrimination.

In one of its Judgments with regard to the above Satversme Article the Constitutional Court stressed that "Similarly, general prohibitions of discrimination have been incorporated into several Constitutions of the European states (see Article 3 of the German Federative Republic Fundamental Law, Article 3 of the Republic of Italy Constitution, Article 1 of the Kingdom of Netherlands Constitution, and Article 1 of the Republic of France Constitution). Analogous to the first sentence of Article 91 of the Satversme, the German Federative Republic Fundamental Law (Article 3, part 1) determines that "all the people are equal before the law". The principle of equality, incorporated into this Article is evaluated as the right, which shall function immediately. The courts of Germany and the greatest part of special literature acknowledge the first part of Article 3 of the Fundamental Law as the subjective public right to equal attitude […] This right is binding also on the legislator. […] Article 91 of the Satversme determines limits of the legislators’ activities in all the cases when persons, among them also officials, are in equal and comparable conditions"

When interpreting the Republic of Latvia Satversme the Constitutional Court is trying not only to master the experience of other European states but also to follow the tendencies and ways of development of the legal thought, not being afraid to act as pioneers in implementation of the tendencies. We hope that the judgments in some of our cases might be used by constitutional courts of other countries. One of them could be the Constitutional Court Judgment declared on 20 March 2003. The essence of it is as follows: The challenged norm of the Higher School Law establishes that "the elected positions of professor, associated professor, assistant professor and administrative positions (rector, prorector, dean) in higher schools may be held until the age of 65 years". The challenged norm of the Law "On Scientific Activity" establishes that administration positions and academic positions in state scientific institutions and organizations, as well as positions in elected collegiate scientific institutions may be occupied by persons until reaching the age of 65 years, except cases when the respective person has received the complied permission from the Ministry of Education and Science and the Latvian Council of Science on extending the age limit for a certain period. The Constitutional Court declared these norms as unconformable with Article 106 of the Republic of Latvia Satversme and null and void as of the date of the announcement of the Judgment.

The Court established that both – the challenged norms of the Higher School Law and the challenged norm of the Law "On Scientific Activity" denied to persons, who have reached 65 years of age, the possibility of running for the above positions on equal grounds and thus also equal access to labour market, guaranteed in Article 106 of the Satversme. The Court holds, that "Article 106 of the Satversme envisages that the main criterion for qualifying for the academic and administrative positions, established in the challenged norms, shall be abilities and qualification but not old age of the person. Thus the prohibition, incorporated into the challenged norm, which sets age limit to the fundamental right enshrined in Article 106 of the Satversme, is unconformable with the principle of proportionality. The Court referred to Article 21 of the European Charter of the European Union Fundamental Rights as well. According to this Article any discrimination on the basis of old age is forbidden.

It is not possible in a short report to give an exhaustive survey on all the essential cases in which the techniques of interpretations used by the Constitutional Court have been significant for successful interpretation of the Constitution. I tried just to mention the most relevant moments. I shall be glad to answer to your questions.