Foreign precedents in the case-law of the Latvian Constitutional Court

Jānis Pleps, Latvia Foreign precedents in the case-law of the Latvian Constitutional Court Abstract The author analyzes the influence of the case-law of the foreign constitutional courts on the case-law of the Constitutional court of Latvia. With references to the foreign precedents, the Constitutional Court has taken over many key concepts of constitutional law. The foreign precedents allowed to improve the constitutional law doctrine of Latvia and to return the legal system of Latvia back to the Western legal tradition. Key words: foreign precedent, constitutional court, comparative law, constitutional interpretation Introduction The Constitution of the Republic of Latvia 1 (hereinafter the Constitution) was adopted on 15 February 1922 at the Latvian Constitutional Assembly. Initially, the Constitution regulated only the principles of constitutional system and the organization of state power. Due to various reasons the Constitutional Assembly could not adopt the section that envisaged regulating the fundamental human rights. 2 The constitutional system established with the Constitution is based on the Westminster model synthesis with the German Constitution of 11 August 1919 3 (known as the Weimar Constitution). 4 Even though the Weimar Constitution had a major impact on the creation of the Constitution, the deputies of the Constitutional Assembly used the constitutional cognitions of the time that depicted also other post-wwi adopted constitutions 5. 1 Latvian Parliament, <http://saeima.lv/en/legislation/constitution>, The Constitution of the Republic of Latvia, [access: 18 April 2017]. 2 See more: M. Laserson, Die Verfassungsrecht Lettlands, Jahrbuch des öffentlichen Rechts, 1923/1924, No. XII, pp. 258 269. 3 <http://www.verfassungen.de/de/de19-33/verf19-i.htm>, Die Verfassung des Deutschen Reiches, [access: 18 April 2017]. 4 C. Taube, Constitutionalism in Estonia, Latvia and Lithuania. A Study in Comparative Constitutional Law, Uppsala 2001, p. 112. 5 J. Žilys, Latvijos Respublikos Konstitucija (Satversme), [in:] Konstitucinio regulavimo įvairovė. Kolektyvinė monografija. Vilnius 2006, p. 212. 21

EUROPEAN JOURNAL OF PUBLIC MATTERS N o. 1/2017 After reinstatement of independence of the Republic of Latvia, based on the doctrine of state continuity, the validity of the Constitution was fully renewed on 6 July 1993. 6 On 15 October 1998, the Saeima (the Parliament) updated the Constitutional regulation with the human rights catalogue. The regulation of Chapter VIII of the Constitution Fundamental Human Rights was developed based on the draft chapter of human rights developed by the Constitutional Assembly in 1922, the European Convention of Human Rights 7, and other international treaties in the sphere of human rights, as well as on constitutions of other countries 8. The regulation of the human rights chapter has not been taken over from another country s constitution, but it is mainly aimed at the European Convention of the Human Rights and UN international pacts 9. In interpretation of the Constitution, in particular applying standards of human rights, it is common to widely employ the provisions of international treaties in the sphere of human rights binding on Latvia and the practice of international institutions, and in particular that of the European Court of Human Rights 10. Similar to the practice of the Federal Constitutional Court of Germany, the Constitutional Court in its practice has also evolved the doctrine of respect of the Constitution towards international law (Völkerrechtsfreundlichkeit) 11. The Constitutional Court has concluded that it has not been the legislator s intent to juxtapose the human rights provisions comprised in the Constitution against the international human rights provisions, but rather quite the opposite the intent was to achieve mutual correspondence between these provisions. Thus, in cases, when it is necessary to determine the content of the fundamental rights standard included in the Constitution, this standard is to be construed as relevant as possible to the interpretation used in the practice of applying international human rights standards 12. It means that the Constitution is to be construed as much as possible in a way that its interpretation 6 D. Iļjanova, The Republic of Latvia, [in:] Constitutional Law of 10 EU Member States. The 2004 Enlargement, Kluwer Law International 2006, pp. V5 V6. 7 European Court of Human Rights, <http://www.echr.coe.int/documents/convention_eng. pdf>, [access: 18 April 2017]. 8 C. Taube, Constitutionalism, p. 124. 9 R. Balodis, Ievads Latvijas Republikas VIII nodaļas komentāriem, [in:] Latvijas Republikas Satversmes komentāri. VIII nodaļa. Cilvēka pamattiesības, Rīga 2011, p. 16.l. 10 M. Mits, European Convention on Human Rights in Latvia. Impact on Legal Doctrine and Application of Legal Norms, Lund 2010, pp. 133 157. 11 Judgement of the Constitutional Court of the Republic of Latvia of 13 May 2005 Case No.2004-18-0106, <http://www.satv.tiesa.gov.lv/wp-content/uploads/2004/08/2004-18-0106_spriedums_eng. pdf>, [access: 18 April 2017]. 12 Judgement of the Constitutional Court of the Republic of Latvia of 30 August 2000 Case No.2000-03-01, para. 5, <http://www.satv.tiesa.gov.lv/wp-content/uploads/2000/03/2000-03-01_spriedums_eng.pdf>, [access: 18 April 2017]. 22

I. ARTICLES would not contradict international commitments of the Republic of Latvia in the sphere of protection of human rights 13. At the same time, the comparative law dimension plays an important role. Judges of the Constitutional Court have admitted that the Constitution may not be interpreted in isolation from the understanding that most of other democratic countries have about the matter to be interpreted. Quite the contrary, in interpreting the Constitution, must be taken into account those cognitions, which are defined in the experience of democratic countries. The use of comparative law was even more necessary due to the integration of Latvia into the European Union, because the Western legal theory, namely, legal thinking, had to be adopted during the accession process, because only then the laws harmonized at the text level in Latvia in practice would work the same way as it does in the European Union. 14 The Constitutional Court has referred to the other countries experience as the overall constitutional heritage of the Europe. 15 Within the framework of comparative law, the experience of Germany has been particularly important for Latvia in general and in constitutional law in particular. It is due to the affiliation to the same law family and historical tradition, as well as language background, dogmatic modernity and precision 16. I. The application of foreign precedents 1. Foreign precedents in the Constitutional Court practice The Constitutional Court was established with the amendments to the Constitution of 5 June 1996 17. In establishing the regulation of the authority and procedures of the Constitutional Court, a major role was attributed to analysis of foreign experience, including a thorough analysis of operations of the Federal Constitutional Court of Germany. Since its establishment until 1 March 2017, the Constitutional Court has proclaimed 280 judgments, in which it has examined the conformity of various legal enactments to the Constitution. The judgments of the Constitutional 13 Judgement of the Constitutional Court of the Republic of Latvia of 13 May 2005 Case No. 2004-18-0106, para. 5, < http://www.satv.tiesa.gov.lv/wp-content/uploads/2004/08/2004-18-0106_ Spriedums_ENG.pdf> [access: 18 April 2017]. 14 Dissenting Opinion of Justice Aivars Endziņš, Anita Ušacka and Juris Jelāgins in Case No.2000-03-01, para. 5,<http://www.satv.tiesa.gov.lv/wp-content/uploads/2000/03/2000-03-01_Atseviskas_domas_ENG.pdf>, [access: 18 April 2017] 15 Judgement of the Constitutional Court of the Republic of Latvia of 22 February 2010 Case No.2009-45-01, para. 9, <http://www.satv.tiesa.gov.lv/wp-content/uploads/2009/07/2009-45-01_spriedums_eng.pdf>, [access: 18 April 2017]. 16 E. Levits, Nopietns darbs konstitucionālajās tiesībās, Jurista Vārds, 2001, No.16, p. 209. 17 D. Iļjanova, The Republic of Latvia. [in:] Constitutional Law of 10 EU Member States. The 2004 Enlargement, The Hague, London, Boston 2006, pp. V47 V51. 23

EUROPEAN JOURNAL OF PUBLIC MATTERS N o. 1/2017 Court are legally binding upon other institutions of the state authority, upon parties implementing the legal standards, and private persons, namely, they have the effect of erga omnes. The Constitutional Court with elaborate and reasoned judgments and with the constitutionality standard embedded therein has ensured a high level of public trust 18. Judgments of the Constitutional Court are rulings prepared jointly by all judges, depicting the opinion of the majority regarding the conformity of the contested legal enactment with the Constitution. If a judge does not concur to with the majority opinion, he/she is entitled to supplement the judgment with the dissenting opinion. In some cases, the issue on applying foreign precedent has been sufficiently important within the framework of the specific case, because afterwards attention is paid to this matter in the dissenting opinion. In the 280 judgments pronounced up to now, the Constitutional Court has made a reference to 58 foreign precedents. It means that in 20.7 % of cases, the Constitutional Court in the judgment has made expressis verbis reference to and has analysed foreign precedents. Dissenting opinions rendered by a Constitutional Court judge have been added in the cases of 34 judgments of the Constitutional Court during this time period. Foreign precedents are used in six dissenting opinions. In three cases the Constitutional Court judges have justified their reasoning with references to foreign precedents, however in three more cases, the Constitutional Court judges have criticized the majority Constitutional Court position, by employing specific foreign precedents. When analysing references to foreign precedents included in judgments and dissenting opinions, it can be concluded that the Constitutional Court has made more references to them in the initial stages of its work, when sufficient practice in interpretation of the Constitutional standards and in methodology of evaluating constitutionality of legal provisions had not yet been accumulated. As it was indicated, the use of foreign precedents was justified with the need to ensure the return of the Latvian legal system back to the Western legal tradition and to take over the legal cognitions of the Western legal tradition to consolidate the principles of a democratic state and rule of law. The young democracies, including Latvia, may not believe that the current democracy development stage of the country is an absolute measure, but instead they must focus on the democracy standards of developed Western countries. [..] No country may regard the current situation as self-sufficient, rather it must take into account the experience of other countries of the Council of Europe 19. Since 18 A. Rodiņa, J. Pleps, Constitutionalism in Latvia: reality and developments, [in:] New Millenium Constitutionalism: paradigms of reality and changes, Yerevan 2013, pp. 444 451. 19 Dissenting Opinion of Justice Aivars Endziņš, Anita Ušacka and Juris Jelāgins in Case No.2000-03-01, para. 5, <http://www.satv.tiesa.gov.lv/wp-content/uploads/2000/03/2000-03-01_atseviskas_domas_eng.pdf>, [access: 18 April 2017]. 24

I. ARTICLES 2007, the amount of such references has been reducing in the Constitutional Court judgments. The Constitutional Court has recognized that the legal framework of other countries may not be directly applied when solving specific matters, apart from cases stipulated in law, because in comparative law analysis, the differing legal, social, political, historical, and systemic context must always be taken into account 20. As regards indiscriminate use of foreign precedents in the Constitutional Court judgments, the Constitutional Court judge Kristīne Krūma had pointed out: There is no doubt that possibly broader application of comparative law reasoning in essence is to be regarded positively, because the national, international, and transnational court dialogue is a reality nowadays and this reality should be as proficiently as possible applied in developing and enhancing the legal system. Nevertheless, it must be taken into account that by failing to perform a sufficiently thoroughly weighed out analysis of the constitutional structure of other countries and by mechanically transferring and applying the cognitions voiced in legal sources of other countries, it will result in a situation that these cognitions will not organically fit in a ruling prepared within the framework of the Latvian legal system. This matter is particularly complicated within the context of constitutional law, because there is no such absolute regulatory theory that would be specifically applicable to comparative constitutional law. Thus, within the context of the current constitutional law theory, references to foreign case-law, in particular such references that are made merely to support the respective party s approach, bear questionable legitimacy. The Constitutional Court decisions must correspond to traditions and values of the national legal systems. Thus, a court s reference to comparative constitutional law may be subject to reasonable criticism 21. II. The methodology of applying foreign precedents The Constitutional Court generally independently assesses the need to use foreign precedents for justifying a specific conclusion and performs an analysis of these precedents. Only in some cases, the petitioners have offered the Constitutional Court their references to the relevant foreign practice, nevertheless the Court has mostly refused these instances of reasoning. For instance, in a certain case, the petitioner made a reference to the specific US Supreme Court case. The Constitutional Court, for its part, concluded that such 20 Judgement of the Constitutional Court of the Republic of Latvia of 8 June 2007 Case No. 2007-01-01, para. 24.1, <http://www.satv.tiesa.gov.lv/wp-content/uploads/2007/01/2007-01-01_spriedums_eng.pdf>, [access: 18 April 2017]. 21 Dissenting Opinion of Justice Kristīne Krūma in Case No.2008-03-03, para.6, <http://www.satv. tiesa.gov.lv/wp-content/uploads/2016/02/2008-03-03_atseviskas_domas.pdf>, [access: 18 April 2017]. 25

EUROPEAN JOURNAL OF PUBLIC MATTERS N o. 1/2017 reference to the judgment in the case Robinson v. California is unjustified, because the challenged legal standard to be assessed by the Constitutional Court and the practice of application thereof differs from the legal standard assessed by the US Supreme Court and recognized as anti-constitutional 22. However, in another case, the Supreme Court of Latvia, when addressing the Constitutional Court, had drawn the Court s attention to a number of judgments reached by the Federal Constitutional Court of Germany regarding similar cases. The Constitutional Court extensively explained why the Senate has failed to sufficiently thoroughly examine the structural differences of fundamental rights established in the Fundamental Law of Germany and in the Constitution, as well as in the differing regulation of the mandatory health insurance system 23. On another occasion, though, the Constitutional Court agreed to the petitioner s provided reference to a judgment reached by the House of Lords of the United Kingdom in a similar case, nevertheless, it supplemented its opinion with additional references to other foreign precedents as well 24. The judgments of the Constitutional Court almost always include references to foreign court judgments, rather than the dissenting opinions supplementing them (only in one case the court has made a reference to dissenting opinions 25 ). Mostly, the Constitutional Court judgments include references to foreign precedents, by laconically explaining the meaning of the respective conclusion and the context of application in the matter at hand. Nevertheless, rather often, judgments include extensive citations from foreign precedents, in order to depict the necessary cognition in a direct quotation. In general, the Constitutional Court makes references to judgments of foreign constitutional courts or other institutions having comparable authority. In two cases, the Constitutional Court, in explanation of administrative law matters has made a reference to judgments of the Federal Supreme Administrative Court of Germany 26. 22 Judgement of the Constitutional Court of the Republic of Latvia of 26 January 2005 Case No.2004-17-01, para. 14.2, <http://www.satv.tiesa.gov.lv/wp-content/uploads/2004/07/2004-17-01_ Spriedums_ENG.pdf>, [access: 18 April 2017]. 23 Judgement of the Constitutional Court of the Republic of Latvia of 7 January 2010 Case No.2009-12-03, para. 15.1., http://www.satv.tiesa.gov.lv/wp-content/uploads/2016/02/2009-12-03_ Spriedums.pdf >, [access: 18 April 2017]. 24 Judgement of the Constitutional Court of the Republic of Latvia of 19 June 2010 Case No.2010-02-01, <http://www.satv.tiesa.gov.lv/wp-content/uploads/2010/01/2010-02-01_spriedums_eng. pdf>, [access: 18 April 2017], para. 9.4.2. 25 Judgement of the Constitutional Court of the Republic of Latvia of 18 January 2010 Case No.2009-11-01, <http://www.satv.tiesa.gov.lv/wp-content/uploads/2009/05/2009-11-01_spriedums_eng.pdf>, [access: 18 April 2017], para. 10.3. 26 Judgement of the Constitutional Court of the Republic of Latvia of 21 May 2004 Case No.2003-23-01, <http://www.satv.tiesa.gov.lv/wp-content/uploads/2009/05/2009-11-01_spriedums_eng. pdf>, [access: 18 April 2017], para.9; Judgement of the Constitutional Court of the Republic of Latvia of 24 Februar 2011 Case No.2010-48-01, <http://www.satv.tiesa.gov.lv/wp-content/ uploads/2010/07/2010-48-03_spriedums_eng.pdf., [access: 18 April 2017], para. 6.7. 26

I. ARTICLES In another judgment, the Constitutional Court has made a reference to the judgments by the Germany s North Rhine-Westphalia Supreme Administrative Court 27. In these 58 judgments that make references to foreign precedents, the Constitutional Court has made overall 128 references to judgments by foreign constitutional courts or institutions having comparable authority. In most cases, the Constitutional Court has made a reference to the practice of the Federal Constitutional Court of Germany 50 direct references to judgments of the Federal Constitutional Court of Germany or 39 % of all references to foreign precedents. In addition, it must be indicated that the Constitutional Court makes references also to commentaries to the Fundamental Law of Germany 28 or the Law on Federal Constitutional Court 29, or other legal doctrine sources, which often mean an indirect reference to the practice of the Federal Constitutional Court of Germany. The regional context is an important factor for the Constitutional Court, namely, it often makes a reference to the rulings of constitutional courts of neighbour countries. The Constitutional Court rulings contain 22 references or 17 % of all references to the judgments of the Constitutional Court of the Republic of Lithuania, which makes it the second most important source of inspiration after the Federal Constitutional Court of Germany. The Constitutional Court has made references to the Estonian Supreme court practice comparatively on fewer occasions only 4 references. Rather often, references are made to the Czech (10 times), Austrian (8 times), and Slovenian (6 times) constitutional court judgments. Likewise, the Constitutional Court has made references to judgments of constitutional courts of Belgium (7 times), Poland (5 times), the United Kingdom (1 time), France (1 time), Spain (1 time), Switzerland (1 time), Lichtenstein (1 time), Hungary (1 time), the Russian Federation (1 time), and Azerbaijan (1 time). Moreover, the Constitutional Court has made a reference to the judgments of the Canadian (5 references) and the US (3 references) Supreme Court. The references made by the Constitutional Court to foreign precedents have received frequent criticism even in the dissenting opinions. For instance, the Constitutional Court made the first reference to a foreign precedent in the case No. 2000-03-01. The Constitutional Court in its conclusion about the legal nature of law indicated the following: A similar opinion has been voiced also by the Federal Constitutional Court of the Federal Republic of Germany: That, who has spied and 27 Judgement of the Constitutional Court of the Republic of Latvia of 24 Februar 2011 Case No.2010-48-01, <http://www.satv.tiesa.gov.lv/wp-content/uploads/2010/07/2010-48-03_spriedums_eng.pdf>, [access: 18 April 2017], para.6.3 and 6.7. 28 Deutscher Bundestag, <https://www.bundestag.de/grundgesetz>, Grundgesetz für die Bundesrepublik Deutschland, [access: 18 April 2017]. 29 Gesetz über das Bundesverfassungsgericht (Bundesverfassungsgerichtsgesetz BVerfGG), <https://www.gesetze-im-internet.de/bverfgg/>, [access: 18 April 2017]. 27

EUROPEAN JOURNAL OF PUBLIC MATTERS N o. 1/2017 oppressed their own people, that, who has defrauded, betrayed, and let down or who is held responsible for it all, has no place in Bundestag even if they cannot be stripped of their mandate 30. In criticism of this reference, the dissenting opinion points out: The reference to the practice of the Federal Constitutional Court of Germany in the judgment is made without paying thorough attention to the essence of the respective case and in isolation from the context. The quote that, who has spied and oppressed their own people, that, who has defrauded, betrayed, and let down or who is held responsible for it all, has no place in Bundestag even if they cannot be stripped of their mandate is not the Court s opinion, but rather a fragment from the Bundestag deputy Wiefelspütz s speech, which is included in the judgment to illustrate the intent of the respective legal norm the Parliament s self-purification. 31 Likewise, the aforementioned Constitutional Court judge Kristīne Krūma in her dissenting opinion criticizes extensive application of foreign precedents in a judgment by the Constitutional Court, all the while ignoring the differing regulation and context of the Latvian legal system. With regard to applying the practice of the German Federal Constitutional Court, Kristīne Krūma has pointed out: Neither the German law, nor the law of any other country is directly or indirectly indicated as one of such sources of law. Pursuant to Article 1 of the Constitution, Latvia is a democratic, independent republic. It means that generally binding and generally applicable law in Latvia can be established and passed by the Saeima and a body of citizens rather than the parliament, courts, or doctrine of Germany. If the Constitutional Court were guided by the comparative constitutional law theory, it would require a more elaborate and censorious approach to application of normative regulation and caselaw of other countries 32. III. Reasons for applying foreign precedents 1. Practice of the Federal Constitutional Court of Germany The Constitutional Court normally makes a reference to foreign precedents in cases, when it is necessary to borrow certain theoretical ideas regarding the relevant matter of constitutional law or constitutional court proceeding. In cases, when 30 Judgement of the Constitutional Court of the Republic of Latvia of 30 August 2000 Case No.2000-03-01, http://www.satv.tiesa.gov.lv/wp-content/uploads/2000/03/2000-03-01_spriedums_eng.pdf>, [access: 18 April 2017], para.6. 31 Dissenting Dissenting Opinion of Justice Aivars Endziņš, Anita Ušacka and Juris Jelāgins in Case No.2000-03-01, <http://www.satv.tiesa.gov.lv/wp-content/uploads/2000/03/2000-03-01_atseviskas_domas_eng.pdf>, [access: 18 April 2017], para. 5.2. 32 Dissenting Opinion of Justice Kristīne Krūma in Case No.2008-03-03, <http://www.satv. tiesa.gov.lv/wp-content/uploads/2016/02/2008-03-03_atseviskas_domas.pdf., [access: 18 April 2017], para. 6. 28

I. ARTICLES a matter is not sufficiently elaborate in the Latvian law doctrine or court practice, the Constitutional Court will first make a reference to the practice of the Federal Constitutional Court of Germany. The constitutional courts of many other countries usually employ the practice of the Federal Constitutional Court of Germany in construing certain constitutional law institutes. The Constitutional Court has made a reference to the practice of the Federal Constitutional Court of Germany when forming the methodology for assessing the fundamental rights restrictions. In the case No. 2001-05-03, the Constitutional Court made a reference to the conclusion made by the Federal Constitutional Court of Germany, namely, that fundamental rights may be limited with a law or on the grounds of a law. 33 In the case No. 2002-04-03, the Constitutional Court made a reference to the case of the Federal Constitutional Court of Germany, in which the legislator was given a timeframe for arranging the fundamental rights restrictions at penitentiaries 34. In the case No. 2004-19-01, the reference to the judgment of the Federal Constitutional Court of Germany has enabled formulating the legislator s duties in assessing the fundamental rights restrictions 35. Likewise, the practice of the Federal Constitutional Court of Germany has affected the Constitutional Court, by formulating attitude towards international law standards in the sphere of human rights and the case-law of application thereof. The Constitutional Court has taken over the approach adopted by the Federal Constitutional Court of Germany, namely, that the scope of fundamental rights guaranteed in the constitution encompasses all of the country s international commitments in the sphere of human rights 36. The rulings of the Federal Constitutional Court of Germany have played an important role in clarification of the contents of specific fundamental rights. For instance, based on the practice of the Federal Constitutional Court of Germany, the Constitutional Court has clarified the contents of the right to employment 37. 33 Judgement of the Constitutional Court of the Republic of Latvia of 19 December 2001 Case No.2001-05-03, <http://www.satv.tiesa.gov.lv/wp-content/uploads/2001/07/2001-05-03_spriedums_eng.pdf>, [access: 18 April 2017], para. 6. 34 Judgement of the Constitutional Court of the Republic of Latvia of 22 October 2002 Case No.2002-04-03, <http://www.satv.tiesa.gov.lv/wp-content/uploads/2002/04/2002-04-03_spriedums_eng.pdf>, [access: 18 April 2017], para. 3. 35 Judgement of the Constitutional Court of the Republic of Latvia of 15 February 2005 Case No.2004-19-01, <http://www.satv.tiesa.gov.lv/wp-content/uploads/2004/09/2004-19-01_spriedums_eng.pdf>, [access: 18 April 2017], para. 7.5. 36 Judgement of the Constitutional Court of the Republic of Latvia of 17 January 2001 Case No.2001-08-01, <http://www.satv.tiesa.gov.lv/wp-content/uploads/2001/08/2001-08-01_spriedums_eng.pdf>, [access: 18 April 2017], para.3; Judgement of the Constitutional Court of the Republic of Latvia of 13 May 2005 Case No.2004-18-0106, <http://www.satv.tiesa.gov.lv/wp-content/ uploads/2001/08/2001-08-01_spriedums_eng.pdf>, [access: 18 April 2017] para. 5. 37 Judgement of the Constitutional Court of the Republic of Latvia 4 June 2002 Case No.2001-16-01, <http://www.satv.tiesa.gov.lv/wp-content/uploads/2001/11/2001-16-01_spriedums_eng. pdf>, [access: 18 April 2017], para.2; Judgement of the Constitutional Court of the Republic of 29

EUROPEAN JOURNAL OF PUBLIC MATTERS N o. 1/2017 Likewise, the practice of the Federal Constitutional Court of Germany has been employed to clarify the extent of parental and state duties in children s education 38. The opinions voiced in the judgments of the Federal Constitutional Court of Germany have served as grounds for interpreting the theory of freedom to assemble 39, the ground rules of the state civil service doctrine, 40 and the theory of resocialization of convicts 41. The Constitutional Court often employs the practice of the Federal Constitutional Court of Germany in cases, when the Federal Constitutional Court of Germany has adjudicated a similar case. For instance, by making a reference to the practice of the Federal Constitutional Court of Germany, the Constitutional Court has assessed a deputy s rights to receive compensation and the transparency of the system of determining that compensation 42. The decisions reached by the Federal Constitutional Court of Germany are used to find the right balance between the principle of equity and legal stability in a criminal procedure 43. The practice of the Federal Constitutional Court of Germany is particularly important in matters of the procedure of constitutional litigation. By making a reference to Germany s precedents, the Constitutional Court has justified its procedural rights to reinstate the effect of a normative regulation that has become invalid, if the contested normative enactment is recognized as non-consistent with the Constitution 44. The rights of the Constitutional Court to re-examine constitutionality of a specific legal enactment, if significant changes have occurred since the previous judgment, has Latvia of 23 April 2003 Case No.2002-20-0103, <http://www.satv.tiesa.gov.lv/wp-content/ uploads/2002/10/2002-20-0103_spriedums_eng.pdf>, [access: 18 April 2017], para. 3. 38 Judgement of the Constitutional Court of the Republic of Latvia of 13 May 2005 Case No.2004-18-0106, <http://www.satv.tiesa.gov.lv/wp-content/uploads/2001/08/2001-08-01_spriedums_eng. pdf>, [access: 18 April 2017], para. 10. 39 Judgement of the Constitutional Court of the Republic of Latvia, 23 November 2006 Case No.2006-03-0106, <http://www.satv.tiesa.gov.lv/wp-content/uploads/2006/03/2006-03-0106_spriedums_eng.pdf>, [access: 18 April 2017], para. 30.2. 40 Judgement of the Constitutional Court of the Republic of Latvia of 10 May 2007 Case No.2006-29-0103, <http://www.satv.tiesa.gov.lv/wp-content/uploads/2006/11/2006-29-0103_spriedums_eng. pdf>, [access: 18 April 2017], para.12 19. 41 Judgement of the Constitutional Court of the Republic of Latvia of 14 June 2007 Case No.2006-31-01, <http://www.satv.tiesa.gov.lv/wp-content/uploads/2006/11/2006-31-01_spriedums_eng. pdf>, [access: 18 April 2017], para. 14.2. 42 Judgement of the Constitutional Court of the Republic of Latvia of 22 February 2002 Case No.2001-06-03, <http://www.satv.tiesa.gov.lv/wp-content/uploads/2001/07/2001-06-03_spriedums_eng.pdf>, [access: 18 April 2017], para. 2 6. 43 Judgement of the Constitutional Court of the Republic of Latvia of 5 March 2002 Case No.2001-10-01, <http://www.satv.tiesa.gov.lv/wp-content/uploads/2016/02/2001-10-01_spriedums. pdf>, [access: 18 April 2017], para. 8. 44 Judgement of the Constitutional Court of the Republic of Latvia of 16 December 2005 Case No.2005-12-0103, <http://www.satv.tiesa.gov.lv/wp-content/uploads/2005/05/2005-12-0103_spriedums_eng.pdf>, [access: 18 April 2017], para. 25. 30

I. ARTICLES been similarly justified 45. Similarly, the practice of the Federal Constitutional Court of Germany has been used to form the theory of invasion of rights, to establish the rights of a person to file a constitutional complaint 46. 2. The constitutional court practice in Central Eastern Europe After reinstatement of independence, the Republic of Latvia was faced with the need to reform its legal system from a legal system belonging to a socialistic law family to a legal system belonging to the Western legal tradition. In this process, it was necessary not only to radically change the normative regulation, but also the understanding of law and legal thinking. Since not only the Republic of Latvia was facing these problems, but also other Central Eastern European countries, which were going through similar transformations of their respective legal systems, it is common for the Constitutional Court to make references to similar solutions reached in other countries to provide additional support for their ruling. This way, the Constitutional Court mainly informatively gives a reference to the reader of the judgment that similar problems have occurred in other countries and they are solved similarly to the solution found by the Constitutional Court. For instance, when deciding on the rights to appeal against judges decisions in administrative violation cases, the Constitutional Court indicated that similar regulation has already been recognized as non-conformant to the constitution by the constitutional courts of Russia and Azerbaijan 47. The Constitutional Court has a particularly close cooperation with the Lithuanian Constitutional Court. For more than ten years now, the judges of the constitutional courts of both countries have been meeting in joint seminars and discussing about topical issues of constitutional practice, thus, through common efforts, trying to find solutions to the topical problems. Cooperation with the Constitutional Court of Lithuania is particularly well-depicted in using court precedents of this country. The Constitutional Court often makes references to the rulings of constitutional courts of the Czech Republic (formerly Czechoslovakia) and Poland. When deciding on the matter of the official language, the Constitutional Court has chosen to quote the decision of the Constitutional Court of Lithuania for 45 Judgement of the Constitutional Court of the Republic of Latvia of 15 June 2006 Case No.2005-13-0106, <http://www.satv.tiesa.gov.lv/wp-content/uploads/2005/06/2005-13-0106_spriedums_eng. pdf>, [access: 18 April 2017], para. 10.1. 46 Judgement of the Constitutional Court of the Republic of Latvia of 18 February 2010 Case No.2009-74-01, <http://www.satv.tiesa.gov.lv/wp-content/uploads/2009/08/2009-74-01_spriedums_eng.pdf>, [access: 18 April 2017], para. 12.1. 47 Judgement of the Constitutional Court of the Republic of Latvia of 20 June 2002 Case No.2001-17-0106, <http://www.satv.tiesa.gov.lv/wp-content/uploads/2001/12/2001-17-0106_spriedums_eng. pdf>, [access: 18 April 2017], para. 3. 31

EUROPEAN JOURNAL OF PUBLIC MATTERS N o. 1/2017 illustration regarding the role and functions of the official language in a country 48. When assessing the election threshold in parliamentary election as established in the election law, the Constitutional Court has made a reference to that the Czech and Slovenian constitutional courts have recognized a similar restriction as consistent with the constitution 49. References to Estonian, Lithuanian, and Czech precedents have been important also in analysing the consequences of overcoming the socialist regime 50. In the socially significant case of establishing rental caps, the Constitutional Court made extensive references to similar judgments of Poland, the Czech Republic, Estonia, and even Germany 51. Likewise, the Constitutional Court rather frequently makes references to the decisions reached by constitutional courts of other Central Eastern European countries, to take over similar theoretical concepts and doctrinal conclusions. Thus, for instance, with a reference to the practice of the Constitutional Court of Lithuania, the Constitutional Court has improved the content of the principle of legitimate expectations 52. Similarly, a reference to the Lithuanian precedent has duly served to conclude that the rights to property protect the amount of a state pension 53. Precedents of the Constitutional Court of Lithuania have been significant also in establishing the contents of the principle of independence of judges 54. 48 Judgement of the Constitutional Court of the Republic of Latvia of 21 December 2001 Case No.2001-04-0103, <http://www.satv.tiesa.gov.lv/wp-content/uploads/2001/06/2001-04-0103_spriedums_eng.pdf>, [access: 18 April 2017], para. 3.2. 49 Judgement of the Constitutional Court of the Republic of Latvia of 23 September 2002, Case No.2002-08-01, <http://www.satv.tiesa.gov.lv/wp-content/uploads/2002/06/2002-08-01_spriedums_eng.pdf>, [access: 18 April 2017]. 50 Judgement of the Constitutional Court of the Republic of Latvia of 25 March 2003 Case No.2002-12-01, <http://www.satv.tiesa.gov.lv/wp-content/uploads/2002/07/2002-12-01_spriedums_eng.pdf>, [access: 18 April 2017], para.1 3; Judgement of the Constitutional Court of the Republic of Latvia of 15 June 2006 Case No.2005-13-0106, <http://www.satv.tiesa.gov.lv/ wp-content/uploads/2005/06/2005-13-0106_spriedums_eng.pdf>, [access: 18 April 2017], para.13. 51 Judgement of the Constitutional Court of the Republic of Latvia of 8 March 2006 Case No.2005-16-01, <http://www.satv.tiesa.gov.lv/wp-content/uploads/2005/07/2005-16-01_spriedums_eng. pdf>, [access: 18 April 2017], para. 12 17. 52 Judgement of the Constitutional Court of the Republic of Latvia of 25 October 2004 Case No.2004-03-01, <http://www.satv.tiesa.gov.lv/wp-content/uploads/2004/04/2004-03-01_spriedums_eng.pdf>, [access: 18 April 2017], para. 9.2. 53 Judgement of the Constitutional Court of the Republic of Latvia of 8 June 2007 Case No. 2007-01-01, <http://www.satv.tiesa.gov.lv/wp-content/uploads/2007/01/2007-01-01_spriedums_eng. pdf>, [access: 18 April 2017], para. 20. 54 Judgement of the Constitutional Court of the Republic of Latvia of 18 October 2007 Case No.2007-03-01, <http://www.satv.tiesa.gov.lv/wp-content/uploads/2016/02/2007-03-01_spriedums. pdf>, [access: 18 April 2017], para.24 26; Judgement of the Constitutional Court of the Republic of Latvia of 18 January 2010 Case No.2009-11-01, <http://www.satv.tiesa.gov.lv/wp-content/ uploads/2009/05/2009-11-01_spriedums_eng.pdf>, para. 8 21. 32

I. ARTICLES 3. The practice of constitutional courts in other countries References by the Constitutional Court to foreign precedents mostly remain within the context of Central Eastern European countries. Nevertheless, references to decisions reached by constitutional courts of various countries can be observed in the Constitutional Court judgments. Mostly, the use of this practice has become possible owing to the collaboration network of constitutional courts organized by the Venice Commission Democracy through Law and the created database CODICES 55. The Constitutional Court on a number of occasions has made direct references to availability of the respective precedent in the database CODICES. For instance, this way, the Constitutional Court has explained the content of right to be heard, by making a reference to the precedents of the Switzerland s Supreme Court and Lichtenstein s State Court 56. The practice of the Constitutional Court of Austria has been an important aspect for the Constitutional Court in constitutional litigation matters. The Constitutional Court has made a reference to it, in order to justify the rights to reinstate the legal validity to a prior normative regulation. 57 The Constitutional Court has made a reference to similar judgments of the Constitutional Court of Austria regarding the material law issues that affected the persons rights to pension 58 and commercial law 59. Relatively frequently, the Constitutional Court has made a reference to the practice of the Constitutional Court of Belgium (formerly the Arbitrage Court). Thus, for instance, the practice of the Constitutional Court of Belgium was used in interpreting the contents of the right to live in benevolent environment 60. Likewise, the precedents of Belgium have been useful in construing the constraints of the legislator s freedom of conduct in the tax sphere 61. 55 CODICES, <http://www.codices.coe.int/nxt/gateway.dll?f=templates&fn=default.htm>, [access: 18 April 2017]. 56 Judgement of the Constitutional Court of the Republic of Latvia of 5 November 2008 Case No.2008-04-01, <http://www.satv.tiesa.gov.lv/wp-content/uploads/2008/04/2008-04-01_spriedums_eng.pdf>, [access: 18 April 2017], para. 11. 57 Judgement of the Constitutional Court of the Republic of Latvia of 16 December Case No.2005-12-0103, <http://www.satv.tiesa.gov.lv/wp-content/uploads/2008/04/2008-04-01_spriedums_eng. pdf>, [access: 18 April 2017], para. 25. 58 Judgement of the Constitutional Court of the Republic of Latvia of 31 March 2010 Case No.2009-76-01, <http://www.satv.tiesa.gov.lv/wp-content/uploads/2009/08/2009-76-01_spriedums_eng.pdf>, [access: 18 April 2017], para. 5.4. 59 Judgement of the Constitutional Court of the Republic of Latvia of 19 October 2011 Case No.2010-71-01, <http://www.satv.tiesa.gov.lv/wp-content/uploads/2010/11/2010-71-01_spriedums_eng.pdf>, [access: 18 April 2017], para. 13.2. 60 Judgement of the Constitutional Court of the Republic of Latvia of 24 February 2011 Case No.2010-48-01, <http://www.satv.tiesa.gov.lv/wp-content/uploads/2010/11/2010-71-01_spriedums_eng.pdf>, [access: 18 April 2017], para. 6. 61 Judgement of the Constitutional Court of the Republic of Latvia of 3 April 2008 Case No.2007-23-01, <http://www.satv.tiesa.gov.lv/wp-content/uploads/2007/10/2007-23-01_spriedums_eng. 33

EUROPEAN JOURNAL OF PUBLIC MATTERS N o. 1/2017 The Constitutional Court has made a reference also to the Canadian and the US Supreme Court judgments; however that has been done in a specific context as regards matters of compensation for judges and the principle of independence of judicial power. The Constitutional Court has extensively based its conclusions in a judgment of the Canadian Supreme Court. 62 Nevertheless, in this judgment, besides the decisions by the Canadian and the US Supreme Courts, the Constitutional Court has extensively used the judgments by the constitutional courts of the Czech Republic, Poland, and Lithuania 63. This way, the Constitutional Court has demonstrated that the legal matter at hand is common for both the continental European law and the Common law systems and a shared standard of independence of the judicial power is observed, which is to be ensured in each democratic country subject to the rule of law. Conclusions The Constitutional Court in its practice has widely used foreign precedents to justify its conclusions in specific matters. Mostly, the purpose of using these precedents has been improving the constitutional law doctrine of Latvia and returning the legal system of Latvia back to the Western legal tradition. With references to foreign precedents, the Constitutional Court has taken over many important concepts of constitutional law. The practice of the Federal Constitutional Court of Germany has played particularly great importance. References to foreign precedents are more often observed in the Constitutional Court practice of the earlier years of its operations, when it was necessary to rapidly develop the concept of a constitutional complaint and methodology for assessing restrictions of fundamental rights. Whereas lately, when the Constitutional Court has accumulated a broad practice in these matters, a reserved and slightly sceptical attitude can be observed towards foreign precedents. The take-over of practice of international institutions and primarily that of the European Court of Human Rights into the Latvian legal system in this respect is still more important. pdf>, [access: 18 April 2017], para. 9; Judgement of the Constitutional Court of the Republic of Latvia of6 December 2010 Case No.2010-25-01, <http://www.satv.tiesa.gov.lv/wp-content/ uploads/2010/04/2010-25-01_spriedums_eng.pdf>, [access: 18 April 2017], para. 10. 62 Judgement of the Constitutional Court of the Republic of Latvia of 18 January 2010 Case No.2009-11-01, <http://www.satv.tiesa.gov.lv/wp-content/uploads/2009/05/2009-11-01_spriedums_eng.pdf>, [access: 18 April 2017], para. 9 21; Judgement of the Constitutional Court of the Republic of Latvia of 22 June 2010 Case No.2009-111-01, <http://www.satv.tiesa.gov.lv/wp-content/ uploads/2009/12/2009-111-01_spriedums_eng.pdf>, [access: 18 April 2017], para. 29. 63 Judgement of the Constitutional Court of the Republic of Latvia of 18 January 2010 Case No.2009-11-01, <http://www.satv.tiesa.gov.lv/wp-content/uploads/2009/05/2009-11-01_spriedums_eng.pdf>, [access: 18 April 2017], para. 8 21. 34

I. ARTICLES The legal methodology in using foreign precedents selected by the Constitutional Court has not been criticized in the Latvian legal science. Nevertheless, the dissenting opinions voiced by the Constitutional Court judges contain rather extensive criticism about how the majority of the Constitutional Court has employed foreign precedents. Most often, in selection of these precedents, no specific methodology or systematic approach is detected. The application of foreign precedents depends more on the experience of the rapporteur of the Constitutional Court judge and their office and on their openness towards the constitutional system of another country. It can be observed that a number of judges consistently make references to foreign precedents, thereby supplementing the reasoning behind the judgment and showing the context of the respective case in the European space. At the same time, certain scepticism towards the legal importance of such references is observed in the case of other judges. Bibliography The Constitution of the Republic of Latvia. Die Verfassung des Deutschen Reiches. Grundgesetz für die Bundesrepublik Deutschland. European Convention of Human Rights. Gesetz über das Bundesverfassungsgericht. Balodis R., Ievads Latvijas Republikas VIII nodaļas komentāriem, [in:] Latvijas Republikas Satversmes komentāri. VIII nodaļa. Cilvēka pamattiesības, Rīga 2011. Iļjanova D., The Republic of Latvia, [in:] Constitutional Law of 10 EU Member States. The 2004 Enlargement. The Hague, London, Boston 2006. Laserson M., Die Verfassungsrecht Lettlands, Jahrbuch des öffentlichen Rechts, 1923/1924, No. XII, pp. 258 269. Levits E., Nopietns darbs konstitucionālajās tiesībās, Jurista Vārds, 2001, No. 16. Mits M., European Convention on Human Rights in Latvia. Impact on Legal Doctrine and Application of Legal Norms, Lund 2010. Rodiņa A., Pleps J., Constitutionalism in Latvia: reality and developments, [in:] New Millenium Constitutionalism: paradigms of reality and changes, Yerevan 2013. Taube C., Constitutionalism in Estonia, Latvia and Lithuania. A Study in Comparative Constitutional Law, Uppsala 2001. Žilys J., Latvijos Respublikos Konstitucija (Satversme), [in:] Konstitucinio regulavimo įvairovė. Kolektyvinė monografija, Vilnius 2006. 35