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  On the Compliance of that Paragraph of Section 1 of the Law “Amendments to the Law on State Social Allowances” by which a New Item has been Incorporated into the State Social Allowances Law as well as the Compliance of its Section 2 with Section 110 of the Republic of Latvia Satversme (Constitution)

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Court/Judicial body:  Republic of Latvia Constitutional Court
Date: 2 November 2006 CRC
Provisions:  Article 4: Implementation of rights Article 26: Social security Article 27: Standard of living
Domestic provisions: Constitution (Saversme): Section 91 (equality before the law and the courts), Section 110 (the State shall protect and support marriage, the family, the rights of parents and the rights of the child) Section 1, Amendments to the State Social Allowances Law / Section 7(1), State Social Allowances Law: Childcare allowance shall be granted until the child’s first birthday to a person caring for a child if such person is unemployed or employed but on parental leave. A person who is employed but not on parental leave shall receive half of the childcare allowance granted to a person employed but on parental leave. Section 2, Regulations No.644 (on the Amount and Procedure of Granting and Payment as well as Revision of Childcare Allowance)

Case summary

Background: Amendments to the State Social Allowances Law provided for: (1) a parent working full-time or part-time to receive the same childcare allowance as an unemployed parent, and (2) a parent who is employed but not on parental leave to receive half of the childcare allowance granted to a person employed but on parental leave. Twenty members of the Latvian parliament submitted a claim to the Constitutional Court arguing that these amendments were unconstitutional as they disproportionately restricted the rights of the parents and the child.

Issue and resolution: Right to social security and an adequate standard of living. The Court found that the system of paying varying amounts of childcare allowance based on employment status was constitutional, however, the amounts provided in the law were inadequate. It also found that it was discriminatory to treat persons working full-time and part-time as equal for the purposes of the childcare allowance, given their different economic circumstances.

Court reasoning: The State has a duty under Section 110 of the Constitution to create and maintain a system for the protection and support of families and children. The amended Section 7(1) of the State Social Allowances Law groups all persons who care for the child until one year of age based on employment status – the unemployed, the employed who are on parental leave and the employed who are not on parental leave. Dividing persons into groups does not deny any person the right to receive childcare allowance, but instead ensures the possibility for all persons who care for a child until one year of age to receive childcare allowance. To find the differentiation unconstitutional would mean that persons who are employed and not on parental leave would not receive any childcare allowance. While Section 110 of the Constitution establishes a duty to support families and children, it does not create subjective rights for each and every person to demand a certain form and amount of benefit. The rights of the child and family are declared in international instruments which Latvia has ratified. Articles 26 and 27 of the CRC sets out a child’s right to social security and insurance benefits and a standard of living adequate for physical and mental development. However, the issue of the provisions and amount of such benefits falls within the competence of the national legislator, which has the discretion to implement a system for the granting of such benefits. As at August 2006, the median childcare allowance did not guarantee the subsistence of one person. If a parent is compelled to work in order to satisfy the primary financial needs of the family and receives only half the allowance, then the result would be contrary to the legislative aim of serving the best interest of the child since the parent would have even less time with the child. The amount of childcare allowance provided under Latvian law is therefore not satisfactory to ensure adequate care for the child. In particular, the legislator had not assessed the impacts on low-income families who cannot afford not to work because the amount of childcare allowance is not adequate. The law as drafted only achieves its aims in relation to financially secure families where one parent can afford to take the full parental leave at the prevailing levels of childcare allowance while another high-earning parent continues to work. Low-income households who cannot afford to take parental leave because of the inadequate childcare allowance are disadvantaged as a result. In addition, it is disproportionate and unreasonable for part-time and full-time workers to receive the same amount of reduced childcare allowance. A parent who earns a small income working part-time would be compelled to work even more hours to make up for the lost allowance as a result of their part-time employment. This is not in the best interest of the child. Part-time workers are in fundamentally different circumstances to full-time workers and to treat them equally would be disproportionate and therefore unconstitutional.
Excerpt citing CRC and other relevant human rights 13.2 Interpreting Section 110 of the Satversme as read in conjunction with Section 89 of the Satversme, it can be concluded that Section 110 of the Satversme assigns the State with the duty to guarantee for a family with children at least the minimum of internationally declared rights, surely, also that of social rights. The Republic of Latvia has acceded to several international instruments in the sector of social rights. On March 23, 2006 the Saeima adopted the Law by which it declared as binding on Latvia the Convention of Maternity Protection, which has been elaborated on June 15, 2000 by the General Conference of International Labour Organization, by taking into consideration UNO 1948 Universal Declaration of Human Rights, UNO 1979 Convention on Elimination of Any Kind of Discrimination of Women, UNO 1989 Convention on the Rights of a Child, Peking 1995 Declaration and Platform of Activities, International Labour Organization 1975 Declaration on Equal Possibilities and Relationships to Working Women, International Labour Organization 1998 Declaration on Fundamental Principles and Rights in the Sector of Labour and Provisions for its Planned Realization, the aim of which is to ensure equal possibilities and relationships towards both – working women and working men and especially 1981 Convention on Employees with Families. … 13.3. Section 26 of the UNO Convention on the Rights of a Child establishes: “1. Member States recognize the right of every child to make use of benefits of social security, including social insurance and carry out the needed measures to completely realize the above right in accordance with the national legislature. 2. These benefits – if necessary – are granted in accordance with the existing resources and the possibilities of the child and those persons, who are responsible for subsistence of the child as well as by observing any reasons, which are connected with the benefit, received by the child or which are being received in its name.” The first, the second and the third Paragraphs of the above Convention determine: “1) The Member States recognize the rights of a child to such standard of living, which is needed for physical, intellectual, mental, moral and social development. 2) Parents or other persons, who care for the child, commensurate to their finances and social standing, shall be mainly responsible for ensurance of standard of living, which is needed for the development of the child. 3) The Member States in accordance with national circumstances and within the range of national possibilities implement the needed measures to render assistance to parents and other persons, who care for the child to realize the above rights and – if necessary – render material aid and elaborate programs of support, especially with regard to provision of food, clothing and dwelling.” Simultaneously Section 4 of this Convention envisages that “the Member States perform all the necessary legislative, administrative and other measures to realize the rights, incorporated in this Convention. As regards economic, social and cultural rights the Member States perform the above measures within the range of maximum resources at their disposal and – if necessary – with the help of international cooperation.” Thus the above international norms stress the responsibility for ensurance of child’s interests of both – the parents (or other persons, who care for the child) and the state within the range of its maximum resources in rendering aid to parents and other persons, who care for the child. However, these norms leave the issue on the provisions and amount of the above aid within the competence of the national legislator. From the norms follow neither the requirement to grant an allowance to the person, who cares for the child, nor any other requirements concerning the amount of such an allowance. Follow Up: The childcare allowance was subsequently raised and currently stands at 120 lats a month.

CRIN Comments:  CRIN believes this decision is consistent with the CRC. As cited by the Court, Article 27(3) requires States to take appropriate measures to assist parents to implement children’s right to an adequate standard of living, and to provide material assistance in case of need, particularly with regard to nutrition, clothing and housing. Article 4 requires States to take such measures for the implementation of economic rights to the maximum extent of their available resources.

Citation:  No. 2006-07-01
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