Supreme Court judgment in Raihman case (excerpts), 2017

(..)

Motivation part

[7] The main issue to be decided in the present case is connected with the influence of Human Rights Committee views in Raihman case upon the consideration of the specific case. The Supreme Court fully joins the view given by the Human Rights Committee on the scope of the right to privacy following from Article 17 of the Covenant, including the Human Rights Committee conclusions that an interference with privacy must be provided for under the law, it must have a legitimate aim and it must be proportionate in the particular circumstances. In the same time, the Supreme Court cannot join the evaluation of the factual circumstances given by the Human Rights Committee, and the related conclusion of proportionality being violated in the specific case.

[8] The Human Rights Committee has pointed in the Raihman case, in general terms, that the forceful addition of a declinable ending to a surname, which has been used in its original form for decades, and which modifies its phonic pronunciation, is an intrusive measure, which is not proportionate to the aim of protecting the official State language. Concerning the possible violation of Article 17 of the Covenant, the Human Rights Committee took note of the allegation by the applicant that the legal requirement imposing a Latvian spelling for his names in official identity documents, after 40 uninterrupted years of him using his names in their original form, resulted in a number of daily constraints, and generated a feeling of deprivation and arbitrariness, taking into account applicant’s claim that his name and surname look and sound odd in their Latvian form.

(..)

[10] (..) Taking into account the above, the Supreme Court cannot agree, in the specific case, with the claim by the Human Rights Committee in the Raihman case that applicant’s names had been used in Russian in identity documents for decades. On the contrary – the first name and surname of the applicant have been reproduced in Latvian as Leonīds Raihmans since his birth, and have been written this way in all the applicant’s identity documents (passports).

(..)

[12] The Constitutional Court has pointed out that Human Rights Committee views are not considered to be res judicata, i.e., they are not legally binding for the states which recognized the competence of the Committee to consider individual communications. However, the Committee’s views are considered to be an authoritative opinion, which clarifies the content of those Covenant provisions which the national authorities need to evaluate (paragraph 10 of the decision of the Constitutional Court of May 30, 2012, refusing to initiate a case on the application No. 76/2012). A similar indication is given in a commentary on Article 89 of the Constitution of the Republic of Latvia – the decisions adopted by the Human Rights Committee on individual complaint, have the force of an authoritative interpretation only, not that of a court judgment, thus they are not formally binding in the way, as, e.g., judgments of the European Court of Human Rights are (Rudevskis J. 89. panta komentārs. Grām.: Latvijas Republikas Satversmes komentāri. VIII nodaļa. Cilvēka pamattiesības. Autoru kolektīvs prof. R. Baloža zinātniskā vadībā. Rīgā: Latvijas Vēstnesis, 2011, 29. lpp.)

In its turn, the Supreme Court has pointed out that, although Human Rights Committee views are not legally binding, they indicate the scope of the human rights provisions included in the Covenant. The human rights provisions included in the Covenant (taking into account the interpretation given by the Committee), in turn, are binding for Latvia as international law provisions (paragraph 4 of the Supreme Court decision of May 12, 2012, in case No. SJA-8/2011 (A42148004)).

In this regard, the Supreme Court repeatedly stresses that it fully joins the view given by the Human Rights Committee in Raihman case on the scope of the right to privacy following from Article 17 of the Covenant. In the same time, taking into account the factual circumstances found above, the Supreme Court cannot agree with the evaluation of the factual circumstances given by the Human Rights Committee in the specific case, neither with the related conclusion of proportionality being violated in the specific case.

A state has to consider Human Rights Committee views in good faith. in the same time, this does not prohibit a state from dismissing Human Rights Committee views, after careful consideration, if they are not reflecting the true legal position with regard to the case concerned (European Commission for Democracy through Law (Venice Commission) “Report on the implementation of international human rights treaties in domestic law and the role of courts” Strasbourg, 8 December 2014, Study No. 690/2012, paragraph 78).

(..)

[16] To summarise the most essential, briefly, the Supreme Court agrees with the view given by the Human Rights Committee in the views in Raihman case on the scope of the right to privacy following from Article 17 of the Covenant. However, it cannot join the evaluation of the factual circumstances given by the Human Rights Committee, neither the related conclusion of proportionality being violated in the specific case, as it does not reflect the true legal and factual situation in the specific case.

Contrary to the general remark of the Human Rights Committee that applicant’s first name and surname had been used in Russian in identity documents for decades, it is found in the present case, that the first name and surname of the applicant have been reproduced in Latvian as Leonīds Raihmans since his birth, and have been written this way in all the applicant’s identity documents (passports). The passport issued to the applicant by the Union of Soviet Socialist Republics, i.e., by another state, contains applicant’s first name and surname in Russian, along with the applicant’s first name and surname in Latvian. In turn, in all the identity documents issued to the applicant by the Republic of Latvia, applicant’s first name and surname are consequently used in Latvian. Neither is it found that the reproduction of applicant’s names would have caused sufficient hardship for the applicant, nor that the applicant’s names would have acquired some unpleasant meaning after their reproduction in Latvian. Therefore, in the present case, no violation of the applicant’s right to privacy is found.

Resolutive part

Based on Clause 1 of Paragraph 1 of Section 348, and on Section 351 of the Administrative Procedure Law, the Supreme Court

resolved

to leave intact the judgment of the Administrative Regional Court of April 26, 2016, and to reject the cassation complaint of Leonids Raihmans. The judgment is final.


Document data: adopted 04.10.2017. ECLI:LV:AT:2017:1004.A420579912.2.S Case No. A420579912, SKA-424/2017. Link to an anonymised version (in Latvian) https://manas.tiesas.lv/eTiesasMvc/nolemumi/pdf/330943.pdf

Tagged: Tags