On the Compliance of the Words “and Has Been Living in the Republic of Latvia not less than 60 Months, the Last 12 Months of which Continuously”, which are Included in Section 4 (Item 2 of the Fifth Part)

LATVIA

Title: 
On the Compliance of the Words “and Has Been Living in the Republic of Latvia not less than 60 Months, the Last 12 Months of which Continuously”, which are Included in Section 4 (Item 2 of the Fifth Part) with Section 110 of the Republic of Latvia Satversme.

Court: 
The Republic of Latvia Constitutional Court

Date:
22 December 2005

CRC Provisions: 
Article 2: Non-discrimination
Article 3: Best interests of the child

Domestic Provisions:
Section 110, Constitution: The State shall provide special support to disabled children, children left without parental care or who have suffered from violence
Section 4, fifth part (Item 2), Law on State Social Allowances: A child who has lost a provider is only able to receive state benefits if his former deceased provider had been living in the Republic of Latvia not less than 60 months and the last 12 months continuously
Rights of the Child Law: Section 3 (Prohibition of discrimination) and Section 6 (The rights and best interests of the child shall take priority)

Case Summary:
Background:
This case was submitted by the Administrative District Court following its review of a claim brought by the legal representatives of a child of a recently deceased father. The child's father had given up his Latvian residency and left for Moscow to start a business and subsequently passed away in Moscow. An application was made for the child to be granted State social benefits following his father's death. This was declined by the State social benefits department on the basis that Latvia had not been the permanent place of residence of the father 12 months before his death, as required by Section 4, fifth part (Item 2) of the Law on State Social Allowances. Legal representatives of the child sought a declaration that the decision to decline the child State benefits was invalid.

The Administrative District Court found that the restrictive criteria had no legitimate aim, restricted the rights and interests of a child and was discriminatory. The State had the duty to secure the rights and freedoms of a child regardless of the residency of the child's parents. The Administrative District Court therefore considered the decision to be unconstitutional and referred the case to the Constitutional Court.

Issue and resolution:
Discrimination; right to social security. The Constitutional Court held that the Latvian legal provision imposing residency criteria that a parent has to meet before a child who has lost a parent is entitled to State benefits was unconstitutional and violated Articles 2 and 3 of the CRC and equivalent provisions incorporated into Latvian child protection laws.

Court reasoning:
The rights of a child to social and economic protection is guaranteed by Section 110 of the Latvian Constitution. To restrict a child’s enjoyment of such rights on the basis of the residency criteria described is a restriction of the child's fundamental rights.

Fundamental rights may be subject to restrictions only in cases where the protection of vital public interests requires it and if the principle of proportionality has been observed. Thus it is necessary to assess the restriction to establish whether it was provided for by law, whether it has a legitimate aim and whether it complies with the principle of proportionality.

While recognising that (i) the State has extensive authority in implementing social and economic policy (as recognised by the European Court of Human Rights), (ii) the residency criteria was properly provided by law, and (iii) the residency criteria had a legitimate policy aim of linking the right to social benefits to a person's actual residency in Latvia, the residency criteria was disproportionate as it ultimately restricted the rights of a child who required and was entitled to the State support in question. The State has the duty to ensure the rights and freedoms of all children in Latvia irrespective of the place of residency of their parents, guardians or family members. Thus, there are no grounds for the restriction of State benefits for the child based on the residency of the child's lost provider. Such residency criteria did not prioritise the child's best interests in accordance with provisions of the CRC and Latvian child protection laws and had a discriminatory effect.

Both the CRC and Latvia's Rights of the Child Law state that in all matters concerning the child, the rights and best interests of the child shall be the primary consideration. This is one of the most significant principles of the CRC, which determines the interpretation of the rights and freedoms of a child. This means that all organs of the State, including the executive, the courts, the legislature and State bodies, have to adopt their decisions on the basis of the best interests of the child. Prioritising any other aims and considerations above that of the best interests of the child in matters that affect the child is not acceptable.

Excerpts citing CRC and other relevant human rights instruments:
11. The UNO Convention on the Rights of a Child (henceforth – the Convention) establishes several fundamental principles for the protection of the rights of a child.

Both – Section 3 (the first Part) of the Convention and Section 6 (the first Part) of the Rights of the Child Law determine the priority of the interests of a child. This principle establishes that in all activities and decisions in regard to a child, attention shall first of all be paid to ensuring of the best interests of the child. This is one of the most significant principles of the Convention, which determines the interpretation of the rights and freedoms of a child.
       
The above refers to all three branches of State power – the legislative power, the executive power and the judicial power. This principle, incorporated into the Convention, shall be observed also when determining priorities and directions of policy. When elaborating the policy on the protection of the rights of a child special attention shall be paid to distribution of the budget, as well as to the fact how the above policy will influence the life of children.
…
Both – Section 2 of the Convention and Section 3 of the Protection of the Rights of the Child Law determine prohibition of discrimination. The impugned norm envisages a differentiated attitude to persons, who are in equal conditions – to children, who have lost their provider.

Notes:
The residency criteria was in place at the time of the father's death but was deleted and had no legal validity by the time the case was reviewed by the Constitutional Court. Nevertheless, the Constitutional Court declared it to be unconstitutional and in violation of the CRC and Latvian laws during the period it was in force.

CRIN Comments: 
CRIN believes this decision is consistent with the CRC. Children have a right to benefit from social security (Article 26), and the State must ensure such right to each child without discrimination of any kind, irrespective of the child’s or their parent’s status (Article 2). Furthermore, Article 3 not only requires the best interests of the child to be a primary consideration in all actions concerning children, it also requires States to ensure the child such protection and care as is necessary for their well-being.

Citation: 
No. 2005-19-01

Link to Full Judgment:
http://www.satv.tiesa.gov.lv/upload/2005-19-01E.rtf

This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.