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Thursday, 28.03.2024, 15:57
Elena Lukyanova: language amendments in the law violate the rights of Latvian higher institution owners
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.