CommentaryAnna Mandel, Boston College Law '11, writes about her experience at the Latvian Constitutional Court….
In the United States, state and federal courts are not bound by the precedents or laws of other jurisdictions. For example, the Supreme Court of Texas is not bound by the decisions of the Supreme Court of California. While courts are free to base their holdings on the logic used by courts in other jurisdictions, in my experience, they rarely do so. It is even rarer for American courts to refer to international law, although there are always exceptions, such as the US Supreme Court's referral to the Geneva Conventions in Boumediene v. Bush in a 2008 ruling concerning the treatment of Guantanamo Bay detainees and executive powers.Working at the Constitutional Court of the Republic of Latvia, I have encountered the opposite practice. The Constitutional Court heavily cites precedents from other countries – even non-European ones – and often relies on decisions from the European Court of Human Rights (ECHR). While these foreign precedents are not binding, it is an unwritten albeit accepted rule that such case law should still be cited. For example, although the Latvian Constitutional Court often cites decisions of the Constitutional Court of the Republic of Lithuania due to the similarity of their political structures and legal issues, it also makes frequent reference to holdings from constitutional courts in France, Italy, and Germany.
However, neither the Latvian Constitutional Court nor many other European courts will cite precedent from certain former Soviet block countries because their governments are viewed as being largely undemocratic. This refusal sends a poignant message. Citation, in this sense, is internationally significant not only as precedent but also as a signal of approval or disapproval.
Decisions from the ECHR and the European Court of Justice (ECJ) are binding upon the Latvian Constitutional Court according to Chapter VIII, Article 89 of the Latvian Constitution (the "Satversme"). It is perhaps due to the collective nature of the European Union that countries such as Latvia use case law from other European nations, but it also seems to be a way for newly-independent republics to gain "best practices" information from older states such as Germany and Italy.
For example, in a 2004 immigration case, the Constitutional Court used German Administrative Law to support its holding that a claimant's immigration status may be appealed. The case, entitled "On the Compliance of Section 61 of the Immigration Law with Article 92 of the Satversme," dealt with a claimant who sought appeal of her denial of permanent residence status by the State Secretary of the Ministry of the Interior. The Court looked to the General Administrative Law of Germany for examples of administrative acts (verwaltungsakt), and ultimately found the Secretary's denial to be one. Therefore, according to Latvian Administrative Procedural Law, Part A, ch. 1, § 1(3), the denial could be appealed.
In the same judgment, the Court utilized Canadian law to support the notion that, although great deference is accorded to security officials such as the State Secretary of the Ministry of the Interior, security concerns cannot be manipulated so as to mitigate fundamental human rights and individual freedoms. The Court cited the Canadian Immigration and Refugee Protection Act of 2001 to bolster the idea that due process and procedural justice are fulfilled when an individual is accorded the right to appeal an administrative decision, even though the decision concerns national security.
Likewise, Case No. 2001-08-01 ("On Conformity of Article 348 (the seventh part) of the Civil Proceedings Law with Article 92 of the Republic of Latvia Satversme"), a matter concerning one's right to a fair court, cited a legal concept from the German Federal Constitution as well as case law from the ECHR. While it is obligatory for Latvia and other signatories to the European Convention on Human Rights to adhere to ECHR precedent, they are not officially required to refer to other countries' case law. However, constitutional courts such as Latvia's make their judgments seem more legitimate and acceptable in the European community when they do so. In the same case, the Constitutional Court cited a provision of the German Federal Constitution which supported abiding by the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Latvian Constitutional Court, like The Federal Constitutional Court of Germany (Das Bundesverfassungsgericht), abides by international conventions to the extent that they do not limit the fundamental human rights expressed or implied in the national constitution. In this case, rulings from the ECHR and provisions in the German Federal Constitution were used to reason that although Article 92 of the Satversme grants a citizen the ability "to protect his or her rights and legal interests in a fair court," it does not always guarantee a right to appeal in civil matters.
Thus, it can be seen that the constitutional jurisprudence of Latvia is often closely-linked with the constitutional jurisprudence of other European and non-European nations. In Courts Crossing Borders, John F. Stack, Jr. and Mary L. Volcansek wrote:
[O]ne side effect of the move toward globalization has been the development of a network of judicial bodies with wide-ranging authority to alter domestic policy and domestic law. What began as a mere side effect is now…a major force in shaping legal practice in many regions of the world and in driving resolutions of human rights, economic, and even criminal issues.
In addition to judicial bodies like the ECHR and the ECJ, case law and legal doctrine from individual countries is penetrating the constitutional jurisprudence of other independent nations such as Latvia. In this way, a micro-system of international jurisprudence is being built, where precedents from foreign nations are treated not as laws but as an adjudicatory code. The United States Supreme Court does not frequently borrow ideas from other nations' constitutional courts, but perhaps this approach would benefit human rights and immigration policy laws in the future.
Sources:
Latvian Constitution
Case No.2004-14-01, Judgment in the Name of the Republic of Latvia, Riga, December 6, 2004, "On the Compliance of Section 61 of the Immigration Law with Article 92 of the Satversme (Constitution)."
Administratīlaquo;vie Procedure Law, Part A, ch.1, § 1(3)
Canadian Immigration & Refugee Protection Act of 2001
Photo credits: Anna Mandel
