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International Internet Magazine. Baltic States news & analytics Wednesday, 26.09.2018, 16:11

Elena Lukyanova: language amendments in the law violate the rights of Latvian higher institution owners

BC, Riga, 04.07.2018.Print version
Dr. Elena Lukyanova (Law), Director of Institute of Law Enforcement Effectiveness Monitoring, Professor of the Justice Department, NRU, a well-known international expert in the protection of rights and freedoms, who specialises in the Latvian situation, has sent a letter concerning language amendments to the Law on Higher Education Institutions to Mr. Raimonds Vējonis), President of the Latvian Republic. The renowned expert in the field of justice points out the consequences of these amendments that cause damage to property, contrary to the international documents. BK publishes the uncensored text of the address below.

Dear Mr. President,

 

The topical discussion in mass media concerning the amendments to item 3 of Art. 56 of the Law “On Higher Education Institutions” (No. 998/Lp12) adopted by the Saeima of the Latvian Republic on 21 June, 2018, may not leave me aside, a person, who has a residence permit and resides in Latvia. Being an international expert, I clearly understand that this Law violates Art. 1 of Protocol No. 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms with respect to private training institutions. However, this violation is of a somewhat different nature to those which everybody is discussing now.

 

As it is known, Art. 1 of Protocol 1 to the Convention is aimed at protection of the right to ownership and property of owners. The European Court considers property not just as a chattel and realty but also as an “asset” including the right to demand, in respect of which the “claimant can state that he/she has a substantiated and ”lawful expectation” that he/she will have a possibility to exercise his/her property right effectively”. While recognising the right of each person to the unimpeded use of his/her property, Art. 1, per se, guarantees the right of ownership in a very broad sense (Resolution of the European Court in the case “Marks (Маркс) v Belgium”).

 

All of the above indicates the strict limits of the state and its bodies’ interference in private matters and the independence of decision-making when performing legally significant actions by each subject – possessor of the right. With due consideration of ECHR practice, a set of the basic principles has been developed that allow state interference in private property. These are: 1) interference for the public benefit, 2) lawfulness of interference and 3) adherence to the fair balance between private and public interests. All of these requirements are to be accomplished simultaneously. Should at least one of these three elements be missing, interference is considered impossible. I believe that in the discussed case, the first condition is arbitrary and the third one is clearly disregarded – the balance of private and public interests is unreasonably displaced towards its public component.

 

Despite the Convention and the Court proceeding from the concept of the wide margin of appreciation of states, any disproportionate limitation aimed at the lawful goal, will not be considered necessary and will constitute a breach of the Convention. The European Court indicated that the legislator has no right to adopt the norms which, by their material content, are obligatory for property reimbursement[1] in in terms of the definition of the content and limits of the law that are not to be reimbursed.

 

Hence, it is possible to unambiguously assert that under the conditions of superiority of the principles of the rule of law and legal equality, interference of the public-law entity (State) in private property may not be unlimited and may not unbalance the proportion between the society’s requirements and important protection criteria of the fundamental rights of a person, which means proportionality of the used instruments and the desired objective in order to ensure a balance of the constitutionally protected values and to exclude not only violations of the individual’s rights but, also, excessive burden. For instance, the Resolution of the European Court on “Blumberg (Блумберг) v Latvia” stresses that the state-participant acquires positive obligations to ensure that the legal system ensures sufficient protection of property rights and provides adequate means of legal remedies to assert such rights.

 

In compliance with Art. 89 of the Satversme (Constitution) of the Latvian Republic, all of these ECHR resolutions taken in individual cases are binding for execution by all countries-participants to the Convention. Hence, if the owners, whose rights have been violated by the adopted amendments to item 3, Art. 56 of the Law “On Higher Educational Institutions” (No. 998/Lp12), applied to court, the introduced limitations of the private property right will certainly be admitted as disproportionate and constitute a violation of Art. 1 of Protocol 1 of the Convention on the Protection of Human Rights and Fundamental Freedoms. Moreover, there is a high chance that the obligation to cancel these limitations will be imposed on the Latvian Republic.

 

I very much hope that you will rectify such an evident error. I would never wish for Latvian legislators to face the European judicial authorities, resulting in them having to redress this situation out of necessity.

 

Yours sincerely,

 

Dr. Elena A. Lukyanova (Law)

Director, Institute of Law Enforcement Effectiveness Monitoring,

Professor, Justice Department, NRU



[1] Resolution of the European Court of Human Rights as of 28 June, 2007, in the case “Shukhardin (Шухардин) v Russia” // Bulletin of the European Court of Human Rights. Russian edition. 2008. No. 5.






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