Source: Constitutional Court 04.06.2021. summary of the judgment
On 4 June 2021, the Constitutional Court delivered its judgment in case No. 2020-39-02 “On the compliance of Article 3(c), Article 4(3), and Article 12(1) of the Council of Europe Convention of 11 May 2011 on preventing and combating violence against women and domestic violence with the Preamble and Articles 1, 99, and 110 of the Constitution of the Republic of Latvia, the compliance of Article 4(4) with Article 91 of the Constitution of the Republic of Latvia, and the compliance of Article 14 with Article 112 of the Constitution of the Republic of Latvia”.
The contested provision
- Article 3(c) of the Council of Europe Convention of 11 May 2011 on preventing and combating violence against women and domestic violence (hereinafter – the Istanbul Convention) provides that the term “gender” shall mean the socially constructed roles, behaviors, activities, and attributes that a given society considers appropriate for women and men.
- Article 4(3) of the Istanbul Convention provides: “The implementation of the provisions of this Convention by the Parties, in particular measures to protect the rights of victims, shall be secured without discrimination on any ground such as sex, gender, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth, sexual orientation, gender identity, age, state of health, disability, marital status, migrant or refugee status, or other status.”
- Article 4(4) of the Istanbul Convention provides that, under the terms of this Convention, special measures that are necessary to prevent and protect women from gender-based violence shall not be considered discrimination.
- Article 12(1) of the Istanbul Convention provides that the Parties shall take all necessary measures to promote changes in the social and cultural patterns of behavior of women and men with a view to eradicating prejudices, customs, traditions, and all other practices that are based on the idea of the inferiority of women or on stereotyped roles for women and men.
- Article 14 of the Istanbul Convention provides:
“1. Parties shall take, where appropriate, the necessary steps to include teaching material on issues such as equality between women and men, non-stereotyped gender roles, mutual respect, non-violent conflict resolution in interpersonal relationships, gender-based violence against women, and the right to personal integrity, adapted to the evolving capacity of learners, in formal curricula at all levels of education.
2. Parties shall take the necessary steps to promote the principles referred to in paragraph 1 in informal educational facilities, as well as in sports, cultural and leisure facilities and the media.”
Provisions of higher legal force
- The Preamble of the Constitution of the Republic of Latvia (hereinafter – the Constitution): “The State of Latvia, proclaimed on 18 November 1918, has been established by uniting the historical Latvian lands and on the basis of the unwavering will of the Latvian nation to have its own State and its inalienable right to self-determination, in order to guarantee the existence and development of the Latvian nation, its language and culture throughout the centuries, to ensure the freedom of the people of Latvia and of each individual, and to promote their welfare.
The people of Latvia won their State in the War of Independence. In the freely elected Constitutional Assembly, they consolidated the structure of the State and resolved upon a Constitution for themselves.
The people of Latvia did not recognize the occupation regimes, resisted them, and regained their freedom by restoring national independence on 4 May 1990 on the basis of the continuity of the State. They honor their freedom fighters, commemorate the victims of foreign powers, condemn the communist and Nazi totalitarian regimes and their crimes.
Latvia, as a democratic, constitutional, socially responsible, and national State, is founded on human dignity and freedom; it recognizes and protects fundamental human rights and respects national minorities. The people of Latvia protect their sovereignty, the independence of the State of Latvia, its territory, its territorial integrity, and the democratic structure of the State.
Since ancient times, the identity of Latvia in the European cultural space has been shaped by Latvian and Livonian traditions, Latvian folk wisdom, the Latvian language, universal human values, and Christian values. Loyalty to Latvia, the Latvian language as the only official language, freedom, equality, solidarity, justice, honesty, the work ethic, and the family are the foundations of a cohesive society. Each individual takes care of themselves, of their loved ones, and of the common good of society, acting responsibly toward others, future generations, the environment, and nature.
Latvia, aware of its equal standing in the international community, defends the interests of the State and promotes the sustainable and democratic development of a united Europe and the world.”
- Article 1 of the Constitution:
“Latvia is an independent democratic republic.”
- Article 91 of the Constitution:
“All human beings in Latvia shall be equal before the law and the courts. Human rights shall be realized without discrimination of any kind.”
- Article 99 of the Constitution:
“Everyone has the right to freedom of thought, conscience, and religion. The church shall be separate from the State.”
- Article 110 of the Constitution:
“The State shall protect and support marriage — a union between a man and a woman — the family, and the rights of parents and children. The State shall provide special assistance to children with disabilities, children left without parental care, and children who have suffered from violence.”
- Article 112 of the Constitution:
“Everyone has the right to education. The State shall ensure that everyone may acquire primary and secondary education free of charge. Primary education shall be compulsory.”
The facts of the case
The case was initiated on the basis of an application by twenty-one members of the 13th Saeima (hereinafter – the Applicant). The Applicant indicates, among other things, that Article 12(1) of the Istanbul Convention, read together with Article 4(3) and Article 3(c), essentially requires the State to take the necessary measures to promote changes in the thinking and attitudes of society and to prevent discrimination against persons who identify themselves not with the sex assigned to them at birth, but with another gender.
In the Applicant’s view, the contested provisions are incompatible with the family values and Christian values that form the constitutional identity of the State of Latvia as enshrined in the Constitution, with the right to freedom of thought and conscience enshrined in Article 99 of the Constitution, and with the State’s duty to protect the traditional family enshrined in Article 110 of the Constitution.
The Applicant also points to the possible conflict of Article 4(4) of the Istanbul Convention with the principle of the prohibition of discrimination enshrined in Article 91 of the Constitution. Namely, the special measures for preventing violence provided for in this provision of the Istanbul Convention, which apply only to women, may create differential treatment on the basis of sex.
In the Applicant’s view, Article 14 of the Istanbul Convention imposes a duty on the State to include in educational programs issues concerning persons who do not identify themselves with the sex assigned to them at birth, such as transgender and transsexual persons. Such regulation is said to be contrary to Article 112 of the Constitution, which is said to include the rights of a child’s parents to ensure that their children receive an education that is in accordance with their religious beliefs and philosophical convictions.
The findings of the Court
On the signing of the Istanbul Convention
The Constitutional Court concluded that, in the present case, the Cabinet of Ministers had the right to adopt the decision on the signing of the Istanbul Convention. Consequently, the Istanbul Convention has been signed in accordance with the requirements set out in the Vienna Convention and the law “On International Treaties of the Republic of Latvia”. [13.1.1.]
On the object and purpose of the Istanbul Convention
The Constitutional Court concludes that the object and purpose of the Istanbul Convention is the eradication of violence against women and domestic violence, thereby promoting gender equality. Consequently, all the obligations imposed on the Parties by the Istanbul Convention apply solely within the scope of application of the Istanbul Convention, in accordance with its object and purpose. [13.1.3.]
On the procedure for examining the claim
The Constitutional Court, in examining Article 12(1), Article 4(3), and Article 3(c) of the Istanbul Convention (hereinafter – the contested regulation), recognized that they are to be assessed as a unified legal regulation. [13.1.4.]
The Constitutional Court first assessed the compliance of the contested regulation with the Preamble of the Constitution, read together with Article 1, and then assessed the compliance of the contested regulation with Article 99 and Article 110 of the Constitution respectively. [13.2.]
On the compliance of the contested regulation with the Preamble of the Constitution, read together with its Article 1
The Constitutional Court indicated that every State is characterized by its constitutional identity, which helps to distinguish it from other States. It is a substantively rich, broad phenomenon, consisting of elements that differ in nature, only some of which are universally binding legal norms. Such, for example, are the overarching principles of democracy, the rule of law, and a national and socially responsible State that define the identity of the structure of the State of Latvia. [14.1.]
Part of Latvia’s constitutional identity is reflected in Article 1 and the Preamble of the Constitution, where, among other things, Christian values are mentioned and the postulate is included that the family is the foundation of a cohesive society. The Constitutional Court emphasized that the mention of Christian values is a reference not to religion, but to belonging to European or Western civilization. The reference to the family, in turn, means that such a form of social life is morally and legally recognized. [14.2.]
Both Christian values and the postulate that the family is the foundation of a cohesive society are among the elements that form Latvia’s constitutional identity, which help to identify the State of Latvia. These elements are extra-legal factors that arise from historical and sociological facts and reflect values, yet are not in themselves universally binding legal norms. This means that a claim regarding the compliance of the contested regulation with Christian values and with the postulate that the family is the foundation of a cohesive society is not a claim regarding the compliance of the contested regulation with legal norms of higher legal force. In view of the above, the Constitutional Court terminated the legal proceedings in the part concerning the compliance of the contested regulation with the Preamble of the Constitution, read together with Article 1 of the Constitution. [14.2., 14.3.]
On the compliance of the contested regulation with Article 99 of the Constitution
The Constitutional Court recognized that a person’s adherence to views on the social roles, behavior, activities, and attributes that this person considers appropriate for women and men falls within the scope of Article 99 of the Constitution. [15.1.]
The Constitutional Court emphasizes that, in a democratic State governed by the rule of law, it is not permissible for the State to impose any particular conviction on the individual. However, the State has a duty to offer the individual information about violence and the factors causing it, in order to prevent such violence. This also applies to gender-based violence. The mere fact that such information is offered to individuals does not mean that they would be obliged to hold a certain conviction. Such a conclusion follows, among other things, from the fact that the contested regulation does not provide for the application of coercive measures against a person with the aim of making them change their convictions. [15.2.]
In view of the above, the Constitutional Court recognized that the contested regulation does not restrict a person’s right to freedom of thought, conscience, and religion enshrined in Article 99 of the Constitution, and terminated the legal proceedings in the part concerning the compliance of the contested regulation with Article 99 of the Constitution. [15.2.]
On the compliance of the contested regulation with Article 110 of the Constitution
The Constitutional Court recalled that the protection of a family consisting of a child and their mother and father falls within the scope of the first sentence of Article 110 of the Constitution. [16.1.]
The obligation of the Parties to the Istanbul Convention, provided for in the contested regulation, to ensure in a non-discriminatory manner the eradication of such prejudices, customs, traditions, and other practices that are based on the idea of the inferiority of women does not in itself affect the State’s duty to ensure the protection of the family. Namely, the contested regulation does not affect the State’s duty to protect the family enshrined in the first sentence of Article 110 of the Constitution. Consequently, the Constitutional Court terminated the legal proceedings in the part concerning the compliance of the contested regulation with Article 110 of the Constitution. [16.2.]
The Constitutional Court also drew attention to the fact that the scope of application of the Istanbul Convention covers only the eradication of violence against women and domestic violence, and that the contested regulation does not impose the adoption or introduction of any particular form of marriage or family. [16.2.]
On the State’s duty to protect persons from violence
The Constitutional Court recalled that the State has a duty to protect everyone from violence that may endanger a person’s life or physical and mental health, as well as expose a person to the risk of torture and cruel or degrading treatment. This duty of the State applies to all persons within the State’s jurisdiction – both men and women. [18.]
On the prohibition of discrimination on the basis of sex
The Constitutional Court also concluded that, in the Latvian legal system, the prohibition of discrimination on the basis of sex includes not only the prohibition of discriminating against a person on the basis of their anatomical sex characteristics, but is also extended to the social roles, behavior, activities, and attributes that society considers appropriate for women and men. [19.]
On the compliance of Article 4(4) of the Istanbul Convention with Article 91 of the Constitution
The Constitutional Court found that gender-based violence still persists in Latvia and most often affects women in particular. Since there are circumstances in Latvia that permit the establishment of differential treatment toward women in order to prevent gender-based violence and ensure de facto gender equality, it can be concluded that the implementation of special measures is aimed at achieving the goal – de facto equality of men and women. More specifically, the differential treatment permitted under Article 4(4) of the Istanbul Convention essentially contributes to the prevention of gender-based violence – namely, it eliminates the circumstances that require the implementation of special measures with regard to women. [23., 24.]
Consequently, the Constitutional Court concluded that the differential treatment permitted under Article 4(4) of the Istanbul Convention has an objective and reasonable basis, and therefore complies with Article 91 of the Constitution. [24.]
On the compliance of Article 14 of the Istanbul Convention with Article 112 of the Constitution
The Constitutional Court recognized that Article 14 of the Istanbul Convention imposes a duty on the Parties to assess, in accordance with the situation within them, the need to take specific measures for reforming educational programs and for disseminating educational materials in line with the purpose of the Convention in informal educational facilities, as well as in sports, cultural, and leisure facilities and the media, and, if necessary, to take such measures in accordance with the purpose of the Convention. The specific measures depend on the situation of each Party and the particularities of the organization of its education system. [25.2.]
Before the legislator has assessed whether it is necessary in Latvia to take specific measures for reforming the education system and has accordingly taken such measures, it is not possible to verify whether these measures correspond to the needs of Latvian society, namely, whether the content of education corresponds to the requirement of the adaptability of education that arises from the right to education enshrined in Article 112 of the Constitution. Moreover, as long as no specific study has been carried out on the need to take the measures referred to in Article 14 of the Istanbul Convention within the Latvian education system and to introduce specific improvements to educational programs, it is not possible to assess whether and how they affect the rights of parents to raise their children in accordance with their religious or philosophical convictions. This means that Article 14 of the Istanbul Convention does not in itself restrict the right to education enshrined in Article 112 of the Constitution for any group of persons. Consequently, the Constitutional Court terminated the legal proceedings in the part concerning the compliance of Article 14 of the Istanbul Convention with Article 112 of the Constitution. [25.2.]
The Constitutional Court ruled:
- To terminate the legal proceedings in the part concerning the compliance of Article 3(c), Article 4(3), and Article 12(1) of the Council of Europe Convention of 11 May 2011 on preventing and combating violence against women and domestic violence with the Preamble and Articles 1, 99, and 110 of the Constitution of the Republic of Latvia, and the compliance of Article 14 of the Council of Europe Convention of 11 May 2011 on preventing and combating violence against women and domestic violence with Article 112 of the Constitution of the Republic of Latvia.
- To recognize Article 4(4) of the Council of Europe Convention of 11 May 2011 on preventing and combating violence against women and domestic violence as compatible with Article 91 of the Constitution of the Republic of Latvia.
The judgment of the Constitutional Court is final and not subject to appeal; it enters into force on the day of its publication.
The text of the judgment is available on the website of the Constitutional Court.
Source: Constitutional Court 04.06.2021. summary of the judgment
Some paragraphs in the findings section of the judgment have been highlighted in bold (LLSTA editorial).