Perspectives from Latvia

Transcription

1 Co.Co.A. Comparing Constitutional Adjudication A Summer School on Comparative Interpretation of European Constitutional Jurisprudence 4th Edition Social Rights Latvia Social rights Perspectives from Latvia Prepared by: Līga Ziediņa 1

2 Social rights Perspectives from Latvia Līga Ziediņa I Introduction Today, a democratic state is also considered to be a socially responsible or social state. This type of state tries to observe, as widely as possible, the principle of social fairness in the legislative, executive and judicial branches. The most important basic social rights are enumerated in many international documents, such as the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the European Social Charter. The Republic of Latvia has signed on to all of these instruments. The European Social Charter gives signatories the right to choose which rights will be binding on them. When the Latvian Parliament (Saeima) ratified the Charter, articles 1, 5, 6, 8, 9, 11, 13, 14, 16 and 17 were adopted. In contrast to the fundamental human rights established in the European Convention on Human Rights and therefore subject to the interpretation and control of the European Court of Human Rights, basic social rights do not have this type of effective international judicial mechanism. Therefore, the Constitutional Court of the Republic of Latvia (Satversmes tiesa) is not able to use international precedent in the area of social rights in its jurisprudence; Latvia uses its own national precedents to decide cases concerning social rights. There are also large differences in the ways in which States have established basic social rights in their national constitutions and in States economic situation and resources available. On account on this, the ability to use jurisprudence from other countries is very limited and this makes the Court s job more difficult. 2

3 In general, with regard to old democracies, social rights are established in principle only. There are some countries, such as Germany, that have explicitly established some social rights in their constitutions. In contrast, new democracies, such as Latvia, despite having limited financial resources, have explicitly established several social rights in their constitutions. As a result of this, the Constitutional Court of Latvia has adjudicated many cases concerning social rights. However, it seems that there will be an increase in the number of cases in which the Constitutional Court will have to interpret social rights such as the right to fair pay (Article 107), disability, unemployment and pension benefits (Article 109), medical care (Article 111), etc. II Case law Looking back at nearly ten years of history, since the enactment of Chapter 8, Fundamental Human Rights, persons have successfully defended their social rights which are established in the Constitution by referring applications to courts, especially to administrative courts. Also, the Constitutional Court has made more than 20 judgments on the topic of various social rights. In most cases, the Court has ruled that a legal act was unconstitutional and therefore no longer in force. The following is an essential principle in our social rights jurisprudence: «There is no doubt that a State s ability to protect social rights is closely linked with its financial resources. However, the following human rights conclusion can still be made: if some social rights are included in the Constitution, the State cannot relinquish them. These rights are not merely declarative» 1. 1 Judgment in case no ; see full text of this and other judgments at: 3

4 Since in most cases concerning social rights the Constitutional Court had to decide about the compatibility of certain legal provisions with the fundamental right to social security, in this presentation, I will discuss the most important Constitutional Court judgments on the interpretation of Article 109 and Article Case no Disputed legal provision: The first case ever heard by the Constitutional Court connected to Article 109 was initiated in The application was filed by 20 deputies from Parliament. They contested a provision of the law that said that only those for whom employers pay the obligatory insurance fees are insured persons. Conclusions made by the Constitutional Court: The term social security, used in Article 109 of the Constitution, should be understood as the various measures taken by the Latvian State concerning social security and also social insurance. The legal relations between the insurer and the insured person as well as with the employer are relations which concern public rights. The law obligates the employer to make a payment of compulsory premiums for every employee. If the employer does not perform this task, then the organiser of insurance, i.e., the State, must force the employer to comply. Therefore, when developing the system of State social insurance, the State is obligated to develop an efficient mechanism to safeguard the social rights established in the Constitution, thus guaranteeing the right to social security. If the employer violates the law and does not make the compulsory payment, certain State institutions are authorised to realise their claim against those employers. The persons who should be insured and who cannot influence either the activity of the employer or the State institution that implements and supervises social insurance need not suffer just because other people do not perform their tasks determined by law or 4

5 perform them insufficiently. Otherwise, the mechanism created to implement constitutional rights will not correspond to its objectives. If the institutional system does not perform its duties in collecting taxes adequately, then one may hold that the State institutions do not make use of all their resources to implement social rights. 2. Case no Disputed legal provision: The contested provision stated that in order to acquire the status of unemployed person, the person has to have a permanent residence permit. Conclusions made by the Constitutional Court: Any employee who has been insured in case of unemployment and whose place of residence is in Latvia has the right to social security benefits if unemployed guaranteed in Article 109 of the Constitution. Latvia, taking into consideration its economic situation, has not acknowledged Article 12 of the [European Social] Charter as binding onto it. When guaranteeing the right to social security for unemployment, the State has, first of all, to take care of the social security (protection) of its permanent residents. Thus, the relationship of a person with the State can be determinate in securing social rights. Latvia has undertaken the task of guaranteeing the right to social security for unemployment only for those employees whose place of residence is in Latvia. Therefore, the determination of differentiated social guarantees to those employees who have received temporary residence permits and are employed in Latvia for a period of time (i.e., are guest workers) is not illegal. 5

6 In these cases, the legislator should evaluate whether the employees who have received temporary residence permits (guest workers) and have joined the social insurance system have to be subject to social insurance in case of unemployment. 3. Case no Disputed legal provision: The contested provision said that for persons to be socially insured (employees or self-employed) the payment of that part of the pension which exceeds twice the amount of the state social insurance benefit shall be suspended. Conclusions made by the Constitutional Court: The Latvian legislator, when developing and passing the Pension Law, has not adopted the practice of those States in which the right to receive the granted pension for the employed pensioners is limited. However, when evaluating the pension systems of developed nations with regard to the limitation of pension payments to employed pensioners, one has to take into consideration the fact that firstly, both the pension systems and the above limitations of different States are different. Secondly, in many States, an employed pensioner may receive not only the social insurance pensions but also pensions accrued from private pension funds (or from the employer), the amount of which is unlimited. Thus, the total income of the pensioners in those States ensures adequate living conditions for them. In their turn, the private pension funds of Latvia are in effect only for a few years, and for the greater part of employed pensioners, the only income is the State age pension and their salary. The Constitutional Court agrees with the statement that the realization of social rights depends first of all on the economic situation and the available resources of the State. However, if the legislator, making use of its authority in the creation and realization of the social policy as well as in the determination of the amount of social rights, has incorporated them into the Constitution and specified the contents of these 6

7 rights in the laws, then they are individual rights. A person may request the realization of these rights from the State as well as the protection of his/her rights at court. By limiting the right of the person to receive the granted pension under the procedure envisaged by law, the challenged norm limits the right to social security in old age, which is guaranteed by Article 109 of the Constitution and is specified in the Pension Law. If the decisions of the legislator violate the rights and lawful interests of an individual, then one has to evaluate whether they are in compliance with the principles of a law-based State. The challenged norm is evidently unfair to those pensioners whose income does not exceed that part of the pension which is not paid. Social security measures have both the economical function of avoiding income losses and the social function of ensuring the possibilities of an individual to maintain his/her status as a full-fledged member of society. The challenged norm compels the employed pensioners to choose either to receive the full amount of their pension or to continue working. This is in conflict with the right of a person who has reached a pensioner s age to participate in public life. Remark: In this case, the Constitutional Court decided that the challenged provision is unconstitutional and incompatible with Article 1 of the Constitution. This was the first case out of many in which the Constitutional Court had to decide about the compatibility of legal norms that concern pensioners with the Constitution, especially with Article 1 and Article 109. Since the economic situation in Latvia is getting worse every day, State institutions such as the Parliament and the government in general are looking for ways how to decrease the State s expenses. Due to this, the Parliament has made a new law, the aim of which is to provide people with social benefits in the time period from July 1 st, 2009 until December 31 st, 2012, taking into account the financial resources 7

8 available. The new provisions inter alia state that pensioners who are working during the time period mentioned will get only 30% of their State aid pensions and pensioners who are not working will get only 90% of the State aid pension until As it seems, the Constitutional Court will have to decide whether these provisions are compatible with the Constitution, especially with the established social rights. 4. Case no Disputed legal provision: The challenged norm stated that the average insurance payment salary for a calendar day used to calculate the benefits may not exceed 50 percent of 1/365 th of the limit of the mandatory State annual payments of social insurance, which was became effective on the day that the insured person could request payments from the State. Thus, for one category of persons, the average income was decreased even more than 50 percent when calculating the benefit, thus reducing the amount of the benefit. Conclusions made by the Constitutional Court: Persons, when making social insurance payments, are insured for maternity and sickness as established by law. As soon as the need for insurance occurs, the person has the right to a maternity or sickness benefit. The person makes social insurance payments from his/her income, which do not exceed the maximum yearly income object (at present, this was up to Lats [approx ]). Thus, all persons who are entitled to the above benefits are in comparable circumstances. The State, when choosing the model of social insurance, has determined that the social security benefits have to comply with the social insurance payments made. The challenged legal norm establishes a noticeably smaller social insurance benefit as compared with the salary from which the social insurance payments are made. Thus, one group of social insurance premium payers receives services that are not proportional 8

9 to the paid social insurance premiums at the same time that another group receives services that are proportional to the payments which were made. When implementing the right to social security that is established in the Constitution, the duty of the State is not only to determine the normative regulation of this right, but also to create the mechanism for the effective realization of the legal norm. The duty of the State is not only to declare that certain rights exist, but also to put these rights into practice and supervise their application. If this duty is not appropriately fulfilled, i.e., if there is no adequate control concerning the misuse of legal norms with regard to receiving unreasonably large benefits, then the State is not making use of all of the measures at its disposal for the realization of social rights. Thus, the objective of the challenged legal norm to preclude the possibility of misuse of the legal norms and the receipt of unreasonably large maternity and illness benefits cannot be regarded as legitimate. When calculating a person s maternity benefits the person s financial situation is substantially worsened when compared to the period before maternity and delivery leave. For example, the person is not able to observe credit commitments which she could easily pay before the maternity and delivery leave. Thus, the restriction in the challenged legal norm is not just since the benefit received by the public is not greater than the loss incurred to the rights and legitimate interests of the individual. 5. Case no Disputed legal provision: The contested provision stated that if the person entitled to compensation for disability is in prison, this person loses the right to compensation for the time period spent in prison. Conclusions made by the Constitutional Court: 9

10 Social security means different measures of social insurance, among which are social insurance and social aid. These measures must also serve the special requirements of disabled persons and their involvement in public life. One of the fundamental principles of State social insurance is the solidarity between the payers of the social insurance premiums and the receivers of the social insurance services. Thus, if an employee is insured with a type of social insurance, then when insurance is necessary, the employee has the right to appropriate security. The Constitutional Court did not agree with the viewpoint of the Parliament that the objective of the challenged norm is to avert twofold state care for the imprisoned persons, in the sense that the imprisoned person is receiving two types of social care sustenance in prison and disability benefits. No legal provision in national law ensures social care for the imprisoned disabled persons; besides, no funds have been anticipated for it. It follows from this case that full medical care is not guaranteed for the imprisoned disabled persons. Thus, their specific needs are not provided for. The challenged legal norm that denies the right to social security without an impartial and reasonable ground envisages a differentiated attitude toward the imprisoned disabled persons. 6. Case no Disputed legal provision: The contested provision stated that only those persons who are taking care of their children and during this period are not considered to be employees or selfemployed persons are entitled to receive State benefits for childcare. Conclusions made by the Constitutional Court: Since it follows from Article 110 of the Constitution and international treaties ratified by Latvia, the State has a positive duty to create and maintain a system with a 10

11 view to social and economic protection of the family. Such a system has been created in Latvia, determining in the normative acts several types of allowances which ensure financial benefits to a family. Since the legislator, when implementing the State s positive duty of creating and maintaining a positive social and economic family system, has specified the right of a family to specific protections by determining several safeguarding mechanisms (benefits, grants etc.). These rights have become the rights of the individual. A person may require realization of these rights from the State and can defend these rights in a court. The State wishes to protect the rights of children so as to ensure adequate care for children in their first years of life. Thus, the challenged norm (prohibition to work) has legitimate aims the protection of the rights of children and ensuring adequate parental care for children up to the age of one. There are cases in which a person s employment during a certain period of time (even during childcare) is a precondition for maintaining the professional qualification or advancement, which, in its turn, is significant for the protection of long-term family interests (after the end of parental leave). Thus, there exists a group of persons who are forced to refuse the State allowance (childcare benefit) in order to maintain their professional skills and their place in the labour market, as well as to provide for their family in the future. In these cases, the challenged norm does not fulfil the legitimate aim. The Court concluded that it is possible to accomplish the legitimate aim with a legal norm that restricts individual rights to a lesser degree. For example, the person could be allowed to work part-time and receive the minimum amount of the allowance, or such an allowance that would be smaller if the person would not work. It would encourage parents to choose not to work during the first year of the life of their child; however, the possibility to work part-time would be maintained for those parents for whom it would be necessary. 11

12 III Relevant provisions The Constitution of the Republic of Latvia 2 Article 91 All human beings in Latvia shall be equal before the law and the courts. Human rights shall be realised without discrimination of any kind. Article 106 Everyone has the right to freely choose their employment and workplace according to their abilities and qualifications. Forced labour is prohibited. Participation in the relief of disasters and their effects, and work pursuant to a court order shall not be deemed forced labour. Article 107 Every employed person has the right to receive, for work done, commensurate remuneration which shall not be less than the minimum wage established by the State, and has the right to weekly holidays and a paid annual vacation. Article 108 Employed persons have the right to a collective labour agreement, and the right to strike. The State shall protect the freedom of trade unions. Article 109 Everyone has the right to social security in old age, for work disability, for unemployment and in other cases as provided by law. Article See full text: 12

13 The State shall protect and support marriage a union between a man and a woman, the family, the rights of parents and rights of the child. The State shall provide special support to disabled children, children left without parental care or who have suffered from violence. Article 111 The State shall protect human health and guarantee a basic level of medical assistance for everyone. The European Social Charter 3 Article 1 The right to work With a view to ensuring the effective exercise of the right to work, the Parties undertake: 1. to accept as one of their primary aims and responsibilities the achievement and maintenance of as high and stable a level of employment as possible, with a view to the attainment of full employment; 2. to protect effectively the right of the worker to earn his living in an occupation freely entered upon; 3. to establish or maintain free employment services for all workers; 4. to provide or promote appropriate vocational guidance, training and rehabilitation. Article 5 - The right to organise With a view to ensuring or promoting the freedom of workers and employers to form local, national or international organisations for the protection of their economic 3 See full text: 13

14 and social interests and to join those organisations, the Parties undertake that national law shall not be such as to impair, nor shall it be so applied as to impair, this freedom. The extent to which the guarantees provided for in this article shall apply to the police shall be determined by national laws or regulations. The principle governing the application to the members of the armed forces of these guarantees and the extent to which they shall apply to persons in this category shall equally be determined by national laws or regulations. Article 6 The right to bargain collectively With a view to ensuring the effective exercise of the right to bargain collectively, the Parties undertake: 1. to promote joint consultation between workers and employers; 2. to promote, where necessary and appropriate, machinery for voluntary negotiations between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements; 3. to promote the establishment and use of appropriate machinery for conciliation and voluntary arbitration for the settlement of labour disputes; and recognise: 4. the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into. Article 8 The right of employed women to protection of maternity With a view to ensuring the effective exercise of the right of employed women to the protection of maternity, the Parties undertake: 1. to provide either by paid leave, by adequate social security benefits or by benefits from public funds for employed women to take leave before and after childbirth up to a total of at least fourteen weeks; 14

15 2. to consider it as unlawful for an employer to give a woman notice of dismissal during the period from the time she notifies her employer that she is pregnant until the end of her maternity leave, or to give her notice of dismissal at such a time that the notice would expire during such a period; 3. to provide that mothers who are nursing their infants shall be entitled to sufficient time off for this purpose; 4. to regulate the employment in night work of pregnant women, women who have recently given birth and women nursing their infants; 5. to prohibit the employment of pregnant women, women who have recently given birth or who are nursing their infants in underground mining and all other work which is unsuitable by reason of its dangerous, unhealthy or arduous nature and to take appropriate measures to protect the employment rights of these women. Article 9 The right to vocational guidance With a view to ensuring the effective exercise of the right to vocational guidance, the Parties undertake to provide or promote, as necessary, a service which will assist all persons, including the handicapped, to solve problems related to occupational choice and progress, with due regard to the individual's characteristics and their relation to occupational opportunity: this assistance should be available free of charge, both to young persons, including schoolchildren, and to adults. Article 11 The right to protection of health With a view to ensuring the effective exercise of the right to protection of health, the Parties undertake, either directly or in cooperation with public or private organisations, to take appropriate measures designed inter alia: 1. to remove as far as possible the causes of ill-health; 2. to provide advisory and educational facilities for the promotion of health and the encouragement of individual responsibility in matters of health; 15

16 3. to prevent as far as possible epidemic, endemic and other diseases, as well as accidents. Article 12 The right to social security With a view to ensuring the effective exercise of the right to social security, the Parties undertake: 1. to establish or maintain a system of social security; 2. to maintain the social security system at a satisfactory level at least equal to that necessary for the ratification of the European Code of Social Security; 3. to endeavour to raise progressively the system of social security to a higher level; 4. to take steps, by the conclusion of appropriate bilateral and multilateral agreements or by other means, and subject to the conditions laid down in such agreements, in order to ensure: a. equal treatment with their own nationals of the nationals of other Parties in respect of social security rights, including the retention of benefits arising out of social security legislation, whatever movements the persons protected may undertake between the territories of the Parties; b. the granting, maintenance and resumption of social security rights by such means as the accumulation of insurance or employment periods completed under the legislation of each of the Parties. Article 13 The right to social and medical assistance With a view to ensuring the effective exercise of the right to social and medical assistance, the Parties undertake: 1. to ensure that any person who is without adequate resources and who is unable to secure such resources either by his own efforts or from other sources, in 16

17 particular by benefits under a social security scheme, be granted adequate assistance, and, in case of sickness, the care necessitated by his condition; 2. to ensure that persons receiving such assistance shall not, for that reason, suffer from a diminution of their political or social rights; 3. to provide that everyone may receive by appropriate public or private services such advice and personal help as may be required to prevent, to remove, or to alleviate personal or family want; 4. to apply the provisions referred to in paragraphs 1, 2 and 3 of this article on an equal footing with their nationals to nationals of other Parties lawfully within their territories, in accordance with their obligations under the European Convention on Social and Medical Assistance, signed at Paris on 11 December Article 14 The right to benefit from social welfare services With a view to ensuring the effective exercise of the right to benefit from social welfare services, the Parties undertake: 1. to promote or provide services which, by using methods of social work, would contribute to the welfare and development of both individuals and groups in the community, and to their adjustment to the social environment; 2. to encourage the participation of individuals and voluntary or other organisations in the establishment and maintenance of such services. Article 16 The right of the family to social, legal and economic protection With a view to ensuring the necessary conditions for the full development of the family, which is a fundamental unit of society, the Parties undertake to promote the economic, legal and social protection of family life by such means as social and family benefits, fiscal arrangements, provision of family housing, benefits for the newly married and other appropriate means. 17

18 Article 17 The right of children and young persons to social, legal and economic protection With a view to ensuring the effective exercise of the right of children and young persons to grow up in an environment which encourages the full development of their personality and of their physical and mental capacities, the Parties undertake, either directly or in co-operation with public and private organisations, to take all appropriate and necessary measures designed: 1. a. to ensure that children and young persons, taking account of the rights and duties of their parents, have the care, the assistance, the education and the training they need, in particular by providing for the establishment or maintenance of institutions and services sufficient and adequate for this purpose; b. to protect children and young persons against negligence, violence or exploitation; c. to provide protection and special aid from the state for children and young persons temporarily or definitively deprived of their family's support; 2. to provide to children and young persons a free primary and secondary education as well as to encourage regular attendance at schools. Universal Declaration of Human Rights 4 Article 16 4 See full text: 18

19 (1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. (2) Marriage shall be entered into only with the free and full consent of the intending spouses. (3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. Article 22 Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality. Article 23 (1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment. work. (2) Everyone, without any discrimination, has the right to equal pay for equal (3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. (4) Everyone has the right to form and to join trade unions for the protection of his interests. Article 24 Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay. Article 25 19

20 (1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. (2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection. 20