At the time when war is waged in Europe, the role of law enforcers, inter alia, courts, also changes. The range of threats targeting Latvia and other democratic states in the circumstances of war in Europe, including hybrid warfare, has expanded and diversified. Hence, the range of countermeasures against these threats must be expanded accordingly. In the current geopolitical conditions, the Constitutional Court not only provides protection to a person’s rights, lawful interests and fundamental freedoms but also plays an important role in stabilising the security situation in the long term.
The range of legal instruments used to respond properly to challenges stems from the Constitution that, for more than 100 years, can adjust to societal development and changes in other circumstances, inter alia, threats to the State’s existence.
In the current complicated circumstances, it is important to underscore that Latvia’s State system is based on the principle of militant democracy. This principle not only allows but also demands that public institutions and citizens to defend against internal and external threats to the State of Latvia, as well as its democratic system. The European Court of Human Rights (hereafter—ECtHR) also has pointed out that democracy needs to protect itself, in particular, in conditions of increasing geopolitical threats. ECtHR has recognised, inter alia, that, when scrutinising the proportionality of a restriction on rights, it must have consideration of the general context of the case at both the domestic and the international or regional levels (Ždanoka v. Latvia (No. 2), application No. 42221/18, para. 55).
The instruments for the Latvian legal system to respond adequately to challenges that jeopardise the State’s existence are constantly specified in the case law. In its rulings, the Constitutional Court also improves and develops the elements of the principle of militant democracy. The examination of several applicable examples from the most recent case law of the Constitutional Court follows.
In the case regarding the language use in pre-election campaigning (Constitutional Court of the Republic of Latvia, Case No. 2024-06-01, 2025), the applicant, a political party, contested the compliance of Section 51 of the Pre-election Campaign Law with Article 100 of the Constitution. The contested provision stipulated that, during the pre-election campaign period, pre-election campaign materials had to be placed and pre-election campaign had to be conducted in the official language (including the Latgalian written language) or the Livonian language. Whereas, during the pre-election campaign period before the elections of the European Parliament and local government councils, campaign materials may include translation in the official languages of the Member States of the European Union or the campaign may be conducted with interpretation into these languages. The applicant held that, since the candidates proposed by the applicant and members of the political party could not communicate in a public environment with the voters in a minority language that they understood better, the right to the freedom of speech, included in Article 100 of the Constitution, had been infringed upon.
The Constitutional Court recognised that the legislator, when adopting the contested provision, had balanced the interests of public security and the democratic state system, protecting which, in the current geopolitical situation, the regulation on the use of the official language, with the political parties’ right to the freedom of speech during pre-election campaigning. To protect its democratic order and guarantee the stability of its democratic system, the State may need to take special self-defence measures (Constitutional Court of the Republic of Latvia, Case No. 2024-06-01, 2025, para. 13). Such measures may be necessary also for the protection of the Latvian language, which, as the Court recognised, is a part of the constitutional identity of the Latvian State (Constitutional Court of the Republic of Latvia, Case No. 2024-06-01, 2025, para. 13; Constitutional Court of the Republic of Latvia, Case No. 2021-45-01, 2023, para. 20.1). Thus, the legal system, assisted by the contested provision, responds to threats, at the same time promoting the use of the Latvian language as the society’s common language of communication and democratic participation, strengthening the constitutional role of the official language and decreasing the social divide (Constitutional Court of the Republic of Latvia, Case No. 2024-06-01, 2025, para. 14).
It must be constantly kept in mind that Latvia’s security policy is subordinated to the fact that its neighbouring state is Russia, the current ideology of which is geared towards war and aggression against neighbouring states. In the current geopolitical situation, the Russian language may be used as the bearer of Russia’s ideology. Russia’s measures for information impact, in particular, target the countries where elections are scheduled. Therefore, during the period of pre-election campaign, it is important to decrease the possibility of disseminating messages that support Russia’s aggressive politics (Constitutional Court of the Republic of Latvia, Case No. 2024-06-01, 2025, para. 13.2). The above echoes ECtHR’s considerations regarding the ‘soft power’ policy, implemented by Russia, as a framework for the propaganda by which Russia is targeting the Baltic States. ECtHR has noted that propaganda was firstly aimed at the local Russian communities, yet its goal was also to influence a wider audience—Russian speakers or those who yearned for ‘the glorious Soviet Union era’ (Kirkorov v. Lithuania, application No. 12174/22, para. 61).
The Constitutional Court concluded that the contested provision of the Pre-election Campaign Law was aimed at decreasing the impact of Russia’s information measures. The expansion of Russia’s activities impacting Latvia’s information space with its disinformation and the constantly increasing security risks caused the need, in the current geopolitical situation, to restrict the use of foreign languages in pre-election campaigns. In this way, not only the public security Latvia and its democratic state order but also the security and democracy of the whole of Europe are protected (Constitutional Court of the Republic of Latvia, Case No. 2024-06-01, 2025, para. 16.1).
The doctrine of State continuity as the grounds for restoring the statehood is one of the constitutional cornerstones of the Republic of Latvia. The Constitutional Court examined the principle of State continuity in the case regarding the dismantling of monuments that glorified the Soviet occupation (Constitutional Court of the Republic of Latvia, Case No. 2022-41-01, 2023). In this case, the Constitutional Court has further developed its judicature, specifying, inter alia, the principle of continuity of the Latvian State, to restore the historical justice and protect the statehood of Latvia, established in 1918.
The principle of State continuity falls within the content of the unalterable core of the Constitution and is based on the free will of the people, irrespective of the historical events that have jeopardised Latvia’s statehood. The continuity doctrine, as the grounds for restoring the statehood, imposes upon the institutions of state power the obligation not to derogate from it. According to the Court’s conclusion, specifically for local governments, the obligation to terminate the negative impact caused by objects that glorify the Soviet regime and unlawful impact upon Latvia’s statehood and to dismantle such objects in certain procedure and within a certain term follows from the principle of State continuity (Constitutional Court of the Republic of Latvia, Case No. 2022-41-01, 2023, para. 7).
The objects that glorified the Red Army were erected with the aim of altering the memories and emotions of Latvian inhabitants with respect to the experience of crimes perpetrated by the occupation power, against individuals, humanity and the State system and reminding them of the constant presence of the Soviet power. Because of the reasons why such objects, glorifying the Soviet regime, originated and the fact that, already since the adoption of the Declaration ‘On the Restoration of Independence of the Republic of Latvia’ (Declaration of the Supreme Council of 4 May 1990 On the Restoration of Independence of the Republic of Latvia, 1990), the principle of State continuity was binding upon local governments, the Constitutional Court found that, for a long time already, such actions by local government that were aimed at eliminating the symbolic impact of objects had been admissible, for example, dismantling of objects or placing them into accredited museums. In the provisions, contested in the case, regarding the obligation to dismantle the objects that had to be fulfilled within a certain term, as well as the local governments’ obligation to finance partially the dismantling of such objects, the principle of State continuity has been specified, restricting the previous options for actions that the local government had with respect to eliminating the symbolic impact of objects and establishing for it a specific obligation regarding proper maintenance of territory.
The Constitutional Court took into consideration the geopolitical context, recognising that the incentive for adopting the contested provisions and setting the term for performing the obligation included therein had been the increasingly more active use of the objects that glorified the Soviet regime for propaganda purposes and ever increasing threats for the statehood of Latvia that had to be prevented (Constitutional Court of the Republic of Latvia, Case No. 2022-41-01, 2023, para. 10).
The importance of the geopolitical context and the internal and external security of the State was also underscored in the case regarding the prohibition for a soldier in the professional service to be a member of a political party (Constitutional Court of the Republic of Latvia, Case No. 2022-33-01, 2023). This case was initiated based on an application submitted by a professional soldier. The applicant wanted to become a member of a political party; however, the contested provision of the Military Service Law prohibited a person from being a soldier and a member of a political party simultaneously.
The Constitutional Court underscored that, in the current geopolitical context, the need for politically neutral National Armed Forces was particularly pronounced. The prohibition to become a member of a political party ensures that a soldier does not become involved in the gaining and exercising of political power, does not influence political decisions and is not used for attaining the goals of a political party. Political neutrality of the National Armed Forces facilitates effective performance of the national defence function and, thus, protection of the democratic state system and public security is ensured (Constitutional Court of the Republic of Latvia, Case No. 2022-33-01, 2023, para. 13).
The Constitutional Court concluded: the benefit gained by society from the requirement of political neutrality set for a soldier outweighed the adverse consequences caused for the soldier by the prohibition, established in the contested provisions, to be a member of a political party. In view of the task, to be the defender of the State that a soldier is entrusted with, he must be professional and neutral and ensure the defence of the State of Latvia and its democratic system, irrespective of the political competition. The contested provisions ensure that society can trust soldiers and the National Armed Forces, as well as to rely on the national defence being carried out in the interests of the whole society, not in the interests of a part of society represented by a particular political party. The Constitutional Court also concluded that the legislator had not totally restricted a soldier’s political rights and that a soldier could also express his political position without being a member of a political party (Constitutional Court of the Republic of Latvia, Case No. 2022-33-01, 2023, para. 16).
The need to reduce threats to Latvia’s national security was underscored in the case regarding the requirement set for Russian citizens to prove their proficiency in the official language to repeatedly receive a residence permit in Latvia (Constitutional Court of the Republic of Latvia, Case No. 2023-04-0106, 2024). In this case, the constitutional complaint was submitted by several citizens of the Russian Federation who previously had the status of Latvia’s citizens or non-citizens and to whom, upon obtaining the citizenship of the Russian Federation, the permanent residence permits in Latvia had been issued in a simplified procedure. The contested provision of the Immigration Law provided that such permanent residence permits were valid until 1 September 2023, whereas, to receive a permanent residence permit repeatedly, persons had to submit, inter alia, a certification regarding proficiency in the official language.
The Constitutional Court recognised that, currently, citizenship of the Russian Federation was a factor is perceived as a threat to Latvia’s national security. Therefore, individual screening of Russian citizens residing in Latvia had to be conducted as soon as possible. Reviewing the restriction on fundamental rights, included in the contested provisions, from the perspective of national security, the Constitutional Court reiterated that ensuring national security was a basic obligation of the State, particularly now, as the Russian Federation is waging war against Ukraine. Likewise, it must be considered that Russia has had a long-standing impact on the geopolitical situation in the Baltic Sea region through its provocative and aggressive military and hybrid activities. The Latvian national security is also jeopardised by the information operations, actively deployed by Russia, which also make use of propaganda and disinformation (Constitutional Court of the Republic of Latvia, Case No. 2023-04-0106, 2024, para. 18.1).
The persons, to whom the contested provision applied, had chosen to establish a relationship of loyalty and solidarity with the Russian Federation by becoming citizens of this state. Citizenship grants a person rights and imposes obligations vis-à-vis their country of citizenship. A state has the discretion to assess various risks to national security and change its immigration policy accordingly to respond to them. The Court emphasised that, in this context, it was important that the Russian Federation has been recognised as being a state sponsor of terrorism (Statement by the Saeima on ‘Targeted military attacks by the Russian Federation against Ukrainian civilians and public space’ and the European Parliament resolution of 23 November 2022 on the recognition of the Russian Federation as a state sponsor of terrorism (2022/2896(RSP)), 2022). Whereas, the contested provisions ensure that Russian citizens may reside on the territory of Latvia only if they do not pose a threat to national security (Constitutional Court of the Republic of Latvia, Case No. 2023-04-0106, 2024, para. 19). Thus, the restriction on fundamental rights, established by the contested provision, stems from the need to reduce security risks and is aimed at the protection of a democratic state system and public security. The benefit that society gains from the restriction on fundamental rights aimed at reinforcing national security and the official language outweighs the damage inflicted upon a person’s rights and lawful interests.
The Constitutional Court also dismissed the applicants’ arguments regarding violations of the principle of equality before the law by pointing out that the citizens of the Russian Federation were not in similar and, according to certain criteria, comparable circumstances to all other foreigners who had obtained permanent residence permits in a simplified procedure. The geopolitical context was significant also for these considerations, i.e. the Court noted: other foreigners’ countries of citizenships were not neighbouring with Latvia, had not started warfare in their neighbouring states and, historically, had not posed threats to Latvia’s national security (Constitutional Court of the Republic of Latvia, Case No. 2023-04-0106, 2024, para. 20).
The principle of militant democracy is usually specified by responding to attempts to eliminate the democratic state system or hinder its functional ability. At the same time, as regards the ability of a democratic system to defend itself, one cannot forget the need for the democracy to maintain its basic values, inter alia, human dignity, to level out socio-economic differences and to ensure sustainable national development. One needs to be aware that if sufficient support by the State is not ensured to a group of persons when they need it, it can cause feelings of alienation and pose risks and threats to national security.
Hence, the State must take preventive actions to reinforce democracy and not create the possibility for questioning its effectiveness. One of the ways to decrease this risk is setting the minimum income level that complies with human dignity. This matter has been on the Constitutional Court’s agenda several times (Constitutional Court of the Republic of Latvia, Case No. 2019-24-03, 2020; Constitutional Court of the Republic of Latvia, Case No. 2019-25-03, 2020; Constitutional Court of the Republic of Latvia, Case No. 2019-27-03, 2020). Protection of social peace was a consideration which was also taken into account in the case regarding the minimum income threshold, defined in the Law on Social Services and Social Assistance and the law ‘On Social Security’ (Constitutional Court of the Republic of Latvia, Case No. 2022-34-01, 2023).
In its rulings regarding the guaranteed minimum income, the Constitutional Court has emphasised the State’s duty to review the amount of social assistance regularly (Constitutional Court of the Republic of Latvia, Case No. 2022-34-01, 2023, para. 16). The world is undergoing dynamic changes, people’s needs become dependent on unprecedented factors, increasing prices of energy resources, essential goods and services, which affect, in particular, the socially most vulnerable. Every person is a value for Latvia and the legislator is obliged to improve constantly the system of social assistance that ensure transparent, effective and targeted provision of support, which means, inter alia, that the amount of necessary social assistance must be determined based on a method that stems from the aim to protect human dignity and level out social inequality. The State of Latvia may not deprive its inhabitants of the possibility to lead a life worthy of human dignity and, thus, create socially excluded groups who do not develop or lose the sense of affinity with the State (Constitutional Court of the Republic of Latvia, Case No. 2022-34-01, 2023, para. 11). This is also a matter of national security.
The principle of militant democracy adjusts flexibly to changing circumstances. In applying this principle, the proportionality of measures used to restrict fundamental rights is the decisive criterion. This means—the more essential the threat, the more far-reaching measures for counteracting it can be. Already, the Constitutional Court pointed out this in 2000: exercise of human rights cannot be directed against democracy as such (Constitutional Court of the Republic of Latvia, Case No. 2000-03-01, 2000, para. 6 of findings). In the present geopolitical situation, when a war is waged in Europe and the diversity of various threats is on the rise, the principle of militant democracy becomes the foundation that allows public institutions and society to respond, jointly and effectively, to internal and external threats, maintaining stability and constitutional identity.
The Latvian legal system and the Constitutional Court play an important role in the protection of national security and democracy. The primary task of constantly assessing the level of threat falls upon the executive power and the legislature. The institutions of judicial power, in turn, which meticulously and with utmost responsibility review the proportionality of the chosen measures with the seriousness of the existing threat, are the Constitutional Court and other courts of Latvia. The case law constantly develops to ensure effective instruments for the protection of the official language, the State continuity, neutrality of the armed forces and national security. These measures not only strengthen Latvia’s democracy but also promote European security in general, highlights the need for adjusting legal mechanism to the changing international environment and safeguarding the national independence and democratic system in the long-term.