THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LATVIA JUDGMENT ON BEHALF OF THE REPUBLIC OF LATVIA Riga, November 29, 2007 in case No. 2007-10-0102 The Constitutional Court of the Republic of Latvia, composed of the Chairman of the Court session Gunārs Kūtris, Justices Kaspars Balodis, Aija Branta, Juris Jelāgins, Kristīne Krūma, Uldis Ķinis and Viktors Skudra, having regard to the application of twenty-one members of the 9th Saeima [Parliament] of the Republic of Latvia - Arturs Krišjānis Kariņš (the first person having signed the application), Solvita Āboltiņa, Silva Bendrāte, Ingrīda Circene, Ilma Čepāne, Ina Druviete, Uldis Grava, Sandra Kalniete, Artis Kampars, Ausma Kantāne, Sarmīte Ķikuste, Gunārs Laicāns, Ainars Latkovskis, Visvaldis Lācis, Linda Mūrniece, Jānis Reirs, Einars Repše, Ingūna Rībena, Anna Seile, Kārlis Šadurskis and Dzintars Zaķis, according to Article 85 of the Satversme [Constitution] of the Republic of Latvia (hereinafter – the Satversme) and Article 16 (1) and (2), Item 3 of the first part of Article 17 (1) (3) and Article 28.1 of the Constitutional Court Law, on October 30, 2007, in the Court Session examined the following case in written proceedings, “On Compliance of the Law “On Authorisation to the Cabinet of Ministers to Sign the Draft Agreement between the Republic of Latvia and the Russian Federation on the State Border between Latvia and Russia Initialled on August 7, 1997” and the Words “Observing the Principle of Inviolability of Borders Adopted by the Organization of Security and Cooperation in Europe” of Article 1 of the Law “On the Republic of Latvia and the Russian Federation Treaty on the State Border of Latvia and Russia” with the Preamble and Article 9 of the Declaration of May 4, 1990 of The Supreme Council of the Republic of Latvia “On Restoration of Independence of the Republic of Latvia” and Compliance of the Treaty of March 27, 2007 of the Republic of Latvia and the Russian Federation of the State Border of Latvia and Russia with Article 3 of the Satversme of the Republic of Latvia”. The Constitutional Court has established: 1. On February 8, 2007 the Saeima (Parliament) of the Republic of Latvia (hereinafter – the Saeima) passed the Law “On Authorisation to the Cabinet of Ministers to Sign the Draft Agreement between the Republic of Latvia and the Russian Federation on the State Border between Latvia and Russia Initialled on August 7, 1997” (hereinafter – the Law on Authorization). The Law provides: “According to the Constitutional Law of the Republic of Latvia “On the Statehood of the Republic of Latvia” passed by the Supreme Council of the Republic of Latvia on August 21, 1991, as well as taking into account the internationally recognized continuity of the Republic of Latvia, the Cabinet of Ministers shall be authorized to sign the draft treaty initialled on August 7, 1997 between the Republic of Latvia and the Russian Federation on the State border of Latvia and Russia”. 2. On March 19, 2007, the Cabinet of Ministers passed Order No. 151 “On Signing of the Draft Agreement between the Republic of Latvia and the Russian Federation on the State Border between Latvia and Russia”. The Order provides that under the Law on Authorization, “as well as respecting the principle of inviolability of frontiers adopted by the Organisation for Security and Co- operation in Europe, [..] the draft Agreement shall be signed by Prime Minister, Aigars Kalvitis, on behalf of the Republic of Latvia”. 3. On March 27, 2007, The Prime Minister of the Republic of Latvia Aigars Kalvītis and the Chairman of the Government of the Russian Federation Mihail Fradkov signed the Republic of Latvia and the Russian Federation Treaty on the State Border of Latvia and Russia (hereinafter – the Border Treaty). The Border Treaty was signed “in mutual respect for the other State’s sovereignty and independence, equality and territorial integrity, confirming the adherence to the principles of the UN and OSCE, recognising the beneficial effect of the treaty law statement of the State 2 border of the Republic of Latvia and the Russian Federation for the further development of good neighbourly relations” and „on the basis of the good will of the parties”.1 4. On May 29, 2007, the Saeima ratified the Border Treaty by passing the Law “On the Republic of Latvia and the Russian Federation Treaty on State Border of Latvia and Russia” (hereinafter – the Ratification Law). Article 1 of the Ratification Law provides that the Border Treaty “is accepted and approved observing the principle of inviolability of frontiers established by the Organization of Security and Cooperation in Europe”. 5. The Applicant – twenty-one members of the Saeima – asks the Constitutional Court: 1) to recognize the Law on Authorization and words “observing the principle of inviolability of border established by the Organization of Security and Cooperation in Europe” of the Ratification Law as not being in compliance with the Preamble and Article 9 of the Declaration of May 4, 1990 of the Supreme Council of the Latvian Soviet Social Republic (Latvian SSR) “On Restoration of Independence of the Republic of Latvia” (hereinafter – the Declaration of Independence); 2) to recognize the Border Treaty and the Ratification Law as not being in compliance with Article 3 of the Satversme of the Republic of Latvia. 5.1. It is stated in the Application that the Declaration of Independence is a constitutional provision in substantive terms, because it establishes the scope of activity and mutual relations of two other constitutional foundational documents – the Satversme and the Constitution of the Latvian SSR. Since the provisions of the Declaration of Independence could be effective only in the case if the provisions of the Declaration of Independence have at least the same force as that of the abovementioned constitutional acts, in the hierarchy of legal norms, then the Declaration is of a constitutional rank, i.e. it is a norm of constitutional rights also in formal terms. The Satversme, when becoming effective in full, has not “covered” the entire area of regulation of the Declaration of Independence. Therefore, in the Applicant’s view, the provisions of the Declaration of Independence that are in force belong to the norms of Latvian 1 The Final Clause of the Border Treaty provides that the treaty is drafted in Latvian and Russian, both texts being equally authentic. At the date of the translation, the Border Treaty has not been submitted to the United Nations Treaty Series. While every effort has been made to translate the relevant provisions of the Treaty as accurately as possible, the translation given here is not authentic in the meaning of the Vienna Convention. 3 constitutional provisions both in substantive and formal terms. However, the Declaration of Independence has a lower legal force than the Satversme. The Applicant regards the Preamble and Articles 1, 2, 8 and 9 of the Declaration of Independence as being in force. The norms of the Declaration of Independence together with the Satversme form the “written Constitution” in force of Latvia. 5.2. Two facts follow from the Declaration of Independence – that Latvia was occupied in 1940, and that its independence was restored in 1990, i.e. the Preamble provides for continuity of the statehood of Latvia. Article 9 of the Declaration gives the authority to the government to settle Latvia’s relations with the USSR and the main directions of the authorization. This Article of the Declaration of Independence also applies to the legal continuator of the USSR – the Russian Federation. Until the Article 9 of the Declaration of Independence is repealed, Latvia can form its treaty relations with Russia only in the manner that none of the newest treaties would conflict with the Peace Treaty of August 11, 1920 between Latvia and Russia (hereinafter – the Peace Treaty). 5.3. By means of the Law on Authorization, the Saeima authorizes the Cabinet of Ministers to sign the Border Treaty, but it is in conflict with the Peace Treaty by amending the State border of Latvia and Russia established in the Peace Treaty. In the Applicant’s view, in the Law on Authorization the Saeima has amended the authorization for formation of relationships with the Russian Federation that is established in Article 9 of the Declaration of Independence. Since the Law on Authorization has a lower legal force and Article 9 of the Declaration of Independence is not amended, the Law on Authorization is in conflict with Section 9 of the Declaration of Independence. It is also indicated in the application that the Law on Authorization does not state the doctrine of State continuity in a clear enough manner. Due to this reason, the Law is in conflict with the Preamble of the Declaration of Independence. 5.4. Article 3 of the Satversme establishes the State territory of Latvia. In order to determine the procedure of change of the State territory of Latvia, it is necessary to use the preparatory materials of the Satversme. One should take into account the opinion of a member of the Constitutional Assembly of Latvia Fricis Menders that the Satversme cannot allow giving a part of Latvia to a foreign power. The Applicant also emphasizes the opinion of the Chairman of the Satversme Commission Marģers Skujenieks that Article 3 of the Satversme does not provide for a possibility to change the border of Latvia by way of international treaties. 4 The Applicant considers that the State border established in Article 3 of the Satversme can not be changed by international agreements after enactment of the Satversme. On the day of enactment of the Satversme, Latvia had already concluded agreements with Estonia, Russia and Lithuania, which specifically stated the external border of Latvia.