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8 November 1994
Doc. 7193
OPINION on the application by Latvia for membership of the Council of Europe1
(Rapporteur: Mr VOGEL, Germany, Group of the European People's Party)
1. Introduction
It is now more than three years since Latvia made its application for membership to the Council of Europe. The Committee on Legal Affairs and Human Rights is now satisfied that a rather long but certainly very interesting period of acquaintance-making may soon come to an end and that Latvia may enter the Council of Europe as its 34th member state. At different levels there have been numerous contacts between the Council of Europe and the Latvian authorities during this period which will continue to be of great value once Latvia has joined the Organisation. I myself visited Latvia several times and the Sub-Committee on Human Rights — in line with the traditions of the Committee on Legal Affairs and Human Rights — met in Latvia on 20 and 21 December 1992.
As a result of these contacts there seems now to be a consensus in the Council of Europe that, in respect of essential questions such as parliamentary democracy, a multi-party system, the rule of law and the protection of human rights, the situation in Latvia complies with the general standards of the Council of Europe. After the visit of the sub-committee in fact two main questions were still left open: there had not yet been proper parliamentary elections for the Saeima (Parliament) and permanent residents without Latvian citizenship did not have a proper legal status. Parliamentary elections were held on 5 and 6 June 1993 and the conclusion of the delegation of the Parliamentary Assembly was that they had been "free and fair".2
As a result the only outstanding main question was the situation of those numerous persons who had been citizens of the former USSR and who were residing in Latvia but who were not of Latvian origin and, as a consequence, did not hold Latvian citizenship. They constitute about 45% of the population of Latvia.
As to the second condition, that is adequate citizenship legislation, Latvia complied when on 22 July 1994 the Saeima passed its Citizenship Act which was subsequently signed by the President of the Republic, and will enter into force as soon as implementing regulations are adopted. I shall return to this later.
Having said this the Committee on Legal Affairs and Human Rights now fully subscribes to the conclusions of the report of the Political Affairs Committee, that is that the Committee of Ministers invite Latvia to join the Council of Europe at the earliest opportunity.
It may be recalled that, in accordance with Order No. 488 (1993) the Committee on Legal Affairs and Human Rights and the Political Affairs Committee are instructed to monitor closely the honouring of commitments entered into by the authorities of new member states. Pursuant to this order and also to Resolution 1031 (1994) on the same subject, the Committee on Legal Affairs and Human Rights considers as "commitments" entered into by the Latvian authorities the following questions which will be dealt with in chapters below:
2. The implementation of the Citizenship Act of 22 July 1994;
3. The preparation, adoption and implementation of a law on the status of former USSR citizens who are not citizens of Latvia or any other state;
4. The ratification of the European Convention on Human Rights and some of its protocols — recognition of the optional clauses;
5. The ratification of some of the other Council of Europe conventions;
6. The courts;
7. The protection of the rights of minorities.
2. The implementation of the Citizenship Act of 22 July 1994
The elaboration and adoption of proper citizenship legislation has been a very difficult and delicate assignment. It was one of the main conditions for membership of the Council of Europe and, in fact, experts of the Council of Europe and of other international organisations, such as the CSCE, gave their advice on the different versions of the Citizenship Act which was finally passed by the Saeima on 22 July last.
A major objection to previous versions of the bill had been the quota system which would have allowed for a limited number of naturalisations of this group of the population which had been divided into age groups for the purpose of the bill. The arbitrary character of such a quota system made the bill unacceptable to the Council of Europe. However the quota system has now been replaced by a system of naturalisation starting in 1996 with the applications by residents who were born in Latvia and are 16 to 20 years old on the date of their application. Naturalisation of the last category listed in the act, that is residents who were born outside Latvia and entered Latvia when under 30 years old, will start as from the year 2002 and as from 2003 applications for naturalisation by all other residents may be made.
In accordance with official sources the total number of registered residents in Latvia in October 1993 was 2 389 328 persons of which 1 715 938 were Latvian citizens (that is 71,81% of the registered residents) and 673 398 (that is 28,18%) were non-citizens. The new act would allow practically all of these non-citizens to apply to become Latvian nationals over a period of ten years.
Considering the tremendous hardship which the Latvian population has suffered over the last fifty years because of its annexation by the Soviet Union, and also by its occupation by the nazis during the second world war, we must recognise that the Latvians have good reasons and the right to protect their own identity as well as they can. Seen in this light we must consider that the new act is as generous as it could be and that in due course it will do justice to all those whose presence, originally, has been forced upon the Latvian people.
Permanent residents, in order to be eligible for naturalisation, must know the basic principles of the constitution and of "constitutional law: the rights and obligations of a citizen and a person", know the text of the national anthem and the history of Latvia, have a legal source of income and have a command of the Latvian language (Article 12 of the act). The procedure for testing command of the Latvian language is laid down in Articles 19 and 20.
The Assembly's rapporteurs, when fulfilling their monitoring assignment, should look at it that the application of these conditions, and especially of the language conditions, is not being made too severe and that procedures are not being protracted. In this respect it is of course important that a refusal of naturalisation by the Ministry of the Interior can be appealed to the courts (Article 17 paragraph 3) and that there is a parliamentary control of the implementation of the Citizenship Act by a special Saeima commission (Article 29 of the act).
3. The preparation, adoption and implementation of the law on the status of
former USSR citizens who are not citizens of Latvia or any other state
As indicated above it may be expected that the bulk of the permanent residents will apply to obtain Latvian citizenship over the next ten years. However, ten years is a long period of time in the life of any human being and fair regulations on the status of those who are not yet in a position to apply are therefore an essential corollary to the Citizenship Act. Recently a draft bill of the Latvian Government on the status of former USSR citizens who are not citizens of Latvia or any other state was submitted to Council of Europe experts for their appraisal. These appraisals will include an opinion by the European Commission for Democracy through Law. The draft bill which is still an unpublished internal government document, is applicable to those persons who are certified as resident on the basis of former USSR (internal) passports or of identification documents issued by the Republic of Latvia. It excludes from its guarantees USSR armed forces personnel retired from active service after 4 May 1990 and associated persons.
The elaboration, adoption and implementation of this draft legislation will certainly be a matter which the Assembly's rapporteurs may wish to follow in the future. Yet they decided that it should not be a reason to postpone any longer the admission of Latvia to the Council of Europe. Once Latvia is a member of our Organisation it will be expected to ratify soon some of the Council's main legal instruments, such as the European Convention on Human Rights and some of its protocols and the European Social Charter. These instruments in themselves will already constitute a very important legal protection for any person resident on Latvian territory. When revising the bill, Latvian law-makers may wish to be inspired by the European Convention on Establishment. For instance, the bill provides that the subjects concerned shall "have a right to protect themselves from unemployment", but this is a rather vague statement which might be better replaced by the wording of Article 10 of the European Convention on Establishment "to engage in any gainful occupation on an equal footing with its own nationals". Generally speaking no distinction should be made between nationals and non-nationals in respect of "industrial, commercial, financial and agricultural occupations, skilled crafts and the professions, whether the person concerned is self-employed or is in the service of an employer".
During our visit to Riga in August 1994 representatives of the minorities showed us a list of twenty-four points where they thought there was discrimination between Latvian and non-Latvian residents and this was — at least partially — confirmed by the Minister of State responsible for human rights to whom we spoke later. A list of thirty-two discrepancies in status and rights of citizens and permanent resident non-citizens was submitted to us by the League of Stateless Persons.3 During the monitoring process the rapporteurs will have to look especially at three questions: whether all unjustified discrimination between Latvians and non-Latvians has been eliminated, whether there are proper court procedures and whether the "personal identification certificate", provided for in the draft bill, will enable those holding such a certificate to freely leave Latvia for business, study, tourism, etc and to return there.
4. The ratification of the European Convention on Human Rights and
some of its protocols — recognition of the optional clauses
Nowadays one expects new member states to sign the European Convention on Human Rights at the moment of accession and ratify the Convention normally within a year. Pending the entry into force of the 11th Protocol they should also recognise the optional clauses, that is the right of individual application to the European Commission of Human Rights (Article 25 of the Convention) and the compulsory jurisdiction of the European Court of Human Rights (Article 46). Ratification of the Convention should include ratification of the first additional protocol, which contains a number of additional rights which seem particularly relevant to the Latvian situation, such as the right of every natural or legal person to the peaceful enjoyment of his possessions (Article 1 of the protocol). New member states should also ratify the Second Protocol to the Convention which confers upon the European Court of Human Rights competence to give advisory opinions. Protocol No. 4 is important in the Latvian context as it provides for free movement (Article 2) and prohibits the collective expulsion of aliens (Article 4). So is Protocol No. 7 which provides, in its first article, that an "alien lawfully resident in the territory of a state shall not be expelled therefrom except in pursuance of a decision reached in accordance with law ...". No doubt it would be desirable if Latvia were to ratify the other (additional) protocols but this cannot be reasonably demanded given the fact that a number of Council of Europe member states have not, or not yet, ratified these protocols. It is, however, very important that Protocol No. 11 be ratified at the same time as the Convention itself, in order not to delay the entry into force of this protocol which will introduce a single court system replacing the existing Commission and Court of Human Rights.
5. The ratification of some of the other Council of Europe Conventions
It is very important that Latvia soon becomes a contracting party to the European Social Charter — which would constitute an additional guarantee against discrimination — and to the European Convention for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment — which has now become a very effective instrument to protect and improve the situation in European prisons and places of detention and the rights of the prisoners. It is hardly necessary to stress that Latvia should also sign and ratify the General Agreement on Privileges and Immunities of the Council of Europe and its additional protocol.
6. The courts
No state will ever be able to respect the rule of law unless it has a properly functioning and independent judicial system. In the Latvian situation this will be of particular importance for the application of the Citizenship Act and the future legislation on the status of former USSR citizens who are not citizens of Latvia or any other state; this was discussed above.4 During the rapporteurs' visit in August 1994 virtually all discussions focused on these questions, leaving no time for other important matters such as the judicial system. The otherwise excellent report on human rights in the Republic of Latvia by Mr De Meyer, Judge at the European Court of Human Rights, and Mr Rozakis, member of the European Commission of Human Rights,5 is also silent on the courts. However, during the first visit of the rapporteurs to Latvia in April 1992 the courts had been a subject of discussion. We then had discussions with judges and lawyers, but felt it was difficult to get a clear view of the workings of the courts. We wrote
"The Soviet system of justice remains in function. Judges and lawyers apply the laws of the Soviet Union, most of which have not yet been adapted to the Latvian situation. Latvia has now reintroduced the civil law of before 1940 but it is evident that major legislative reforms cannot be accomplished overnight. We assume that much will be demanded from the courts in the years to come to complement lacunae in the law. No doubt the difficult economic situation and the change to a market economy will require an enormous legislative effort from the Supreme Council and, once elected, the new parliament. Pending such new legislation the courts will have a major role to play.
Adequate independence seems to have been accorded to the judiciary.
We mentioned briefly the death penalty, which exists in Latvia, but executions are rare. It has, however, been applied in 1992. Some of our member states retain the death penalty in their statute book and we do not think it appropriate to recommend its abolition to Latvia under these circumstances. We underlined that, in the opinion of many countries, the death penalty should be abolished as experience shows that it is not a deterrence to crime."
The 1922 Constitution of Latvia did not provide for a constitutional court which, in fact, many Council of Europe member states do not have. A proposal for such a court has now been made by the Latvian Ministry of Justice. It was recently submitted to the experts of the European Commission for Democracy through Law who gave their oral and written opinions on the draft bill.
7. The protection of the rights of minorities
The adequate protection of the rights of minorities has been a matter of continuous concern for the Parliamentary Assembly over the last five years. It should be considered as a "condition" for membership of the Council of Europe. It may be recalled that the summit conference in Vienna in October 1993 instructed the Committee of Ministers to draw up a framework convention and an additional protocol to the Human Rights Convention on Cultural Rights, taking into account the rights of minorities. Pending the adoption and implementation of these texts, the main reference document is Assembly Recommendation 1201 (1993), which includes the text of the proposal for an additional protocol to the Human Rights Convention concerning persons belonging to national minorities. In the case of Latvia the question of citizenship and the situation of permanent residents who do not yet have Latvian nationality is, of course, a minority problem. Very interesting remarks, though hardly any criticism, on the Latvian language legislation can be found in the report of the eminent lawyers,6 who also mention a number of other rights of minorities which seem to be reasonably respected.
Reporting committee: Political Affairs Committee (Doc. 7169).
Committee for opinion: Committee on Legal Affairs and Human Rights.
Reference to committee: Doc. 6506 and Reference No. 1752 of 25 September 1991.
Opinion approved by the committee on 24 October 1994.
Secretaries to the committee: Mr Plate, Ms Bakardjieva and Mrs Kleinsorge.
3 1See Annex 15 to AS/Pol (1994) 38.
4 1See chapters 2 and 3.
5 2AS/Ad Hoc Bur/EE (43) 4.
6 1See chapter 6.