An interview with Professor Ilma Čepāne

In Latvia, we often read and hear the word 'rule of law', which, in the opinion of the speaker or writer, gives their statement a certain level of intelligence or 'sophistication'. Do we understand and use the concept of the 'rule of law' correctly?

I agree with the irony! Often, high-ranking officials tend to say or think: 'We are a state governed by the rule of law because we have courts!' That is not so! Firstly, the rule of law is one of the fundamental principles of a democratic state – Latvia – which stems from Article 1 of the Satversme (Constitution). The principle of the rule of law is one of the core values of the European Union. Secondly, a state governed by the rule of law is the exercise of state power based on constitutionally adopted laws in order to guarantee freedom, justice and legal security.

The rule of law tends to be twofold – there is so-called restorative rule of law – meaning that if there has been an infringement of legal norms, there is a court to which the aggrieved person can turn, and the rule of law is restored; the second is so-called preventive rule of law – creating such legal norms and monitoring compliance with these norms so that society respects them. Penalties are not the main thing! If our society were law-abiding at the same time, and the laws were such that they satisfied society, they would be followed. Litigation occurs only because representatives of society break the laws. In Latvia, legal consciousness has not been formed. If the norms of laws and other regulatory acts are not followed in society, so-called 'legal nihilism' is formed – the highest degree of legal ineffectiveness. Legal nihilism arose in 19th-century Russia, where society considered that the police were bad, the courts were bad, the state administration was bad, but – the Tsar was good! The state system at that time was perceived as the root of evil! A good example is N. Gogol's 'The Government Inspector' – a typical example of legal nihilism, even if literary.

A similar situation can be observed in so-called 'post-communist' countries. People see that those who were in power during the Soviet era have changed their coats or turned them inside out; in many cases, they both dictate the rules and break them themselves at the same time. If the representatives of the people (members of parliament) do not follow legal norms, then people turn away from politics, and people think – laws do not need to be followed, because they see daily how 'things are taken care of'. A recent example – the 'house-ship'. The court did not use the necessary methods of interpretation at the time, and a house that everyone saw – 'it is a house' – was called a ship! Similar examples are unfortunately seen in other construction cases – the laws state: you must not build in a certain place, but a person does it anyway – 'Say, I will build it, I will finish it and see what happens. I will coordinate it with a retroactive date!'

Should all activities or opportunities necessarily be regulated by law? A common situation - we hear quite enough about forests, parks, ditch banks, where someone has decided to dump or pour out trash. Common sense or education cannot be regulated by documents...

We must start with upbringing in the family! From kindergarten, school, university. Of course, using proportionate enforcement mechanisms. You cannot hire a policeman for everyone or assign a supervisor. Much depends on the mentality of the nation. Back in the Soviet era, there was a so-called student exchange at the University of Latvia with friendly countries. Students from the then-Czechoslovakia came to us in Riga; they wanted not only to be in Riga but to visit Leningrad and Moscow. We went there! One of the universities offered to stay in the dormitories. There, I saw an unforgettable sight – at the foot of the Lenin monument, a deep hole had formed in the asphalt, into which bottles, bags, and much else had been thrown. I asked how such a situation had come about. I was told that students threw many things out of the windows, the surroundings were quite dirty, but during so-called 'Saturday volunteer work days', people collected everything and tidied up. What to add here? Only upbringing!

Observe how waste is sorted elsewhere in Europe and the world – even at airports, there are many small containers. Always alert pensioners will point out or help you if you put something in the wrong place. While visiting Canada, I talked about sorting matters with a relative who is a family doctor. She answered briefly: 'If anyone found out that I was littering the environment and being sloppy with it, no one would come to me as a doctor!' Penalties in Canada for throwing trash in the wrong places are large! It is a principle, a lifestyle, or whatever you would call it.

How have 'green ideas' changed since the 90s, when you turned to politics? What has influenced this change the most?

The changes are significant.

The late 80s, a totalitarian state. What could one talk about at that time, even during Gorbachev's 'perestroika'? Environmental protection! The Soviet Union had reached a grim situation. I still have a clipping from a 1989 newspaper, where the decision of the USSR Supreme Soviet 'On urgent measures for the ecological recovery of the country' was published. It is mentioned that in 103 cities, where more than 50 million people live, the concentration of harmful substances in the air was exceeded 10 times or more. The state of 2/3 of water sources is unsatisfactory, and quality wastewater treatment is not ensured in 600 cities. Several million hectares of former agricultural land have been taken out of circulation (flooding, erosion, the impact of mining). In my opinion, the environmental situation was one of the reasons for the collapse of the USSR; it was a time when one could talk about these things relatively openly. In Latvia, there were protests against the Daugavpils HES, the Environmental Protection Club organized protest rallies against the Sloka pulp mill, and in Riga, they protested against the planned metro construction. Ecological problems were at the centre of public attention.

During the years of independence, priorities changed – 'the environment was replaced by the economy'. For a long time, economic and financial issues have been at the centre of interests, unlike, for example, our Scandinavian neighbours, where even teenagers emphasize that governments are not doing enough to stop or prevent global climate change. In Latvia, environmental problems are not highlighted in this way. The 'guilty' party is the political situation or the politicians, because we do not have a 'real' Green party as it is understood in Western Europe. There, 'green' politicians follow events in industry, agriculture, waste recycling, etc. In Latvia, there is a strange entity – the ZZS, which combines two incompatible things. Large farmers (large landowners) are one of the main polluters of the environment, and a small Green party walks hand-in-hand with them. The little brother cannot really object or resist the big one!

In my opinion, nonsense is being told in society that we are a green country, at least official documents and reports testify to that. That is not the case! In the early 90s, when industry and the collective farm system collapsed, economic changes gave the environment some breathing room. But – today we are no longer in a breathing period – thoughts are only on how to build something new or what else to cut down.

In Latvia, green issues are often associated with bans, restrictions, and the word – 'Stop!'

I have participated in a few European Union-funded projects, talking about property right restrictions in specially protected areas. I think such a thing (restrictions) is necessary, because even if you act unreasonably in the dune zone, dunes can start to 'walk', bury houses, roads, etc. At the moment, I think politicians pay little attention to a reasonable attitude towards the environment; I admit that there is also no conviction in society that a small country can achieve anything. Specially protected natural values in the European Union are protected by two directives – the so-called Birds Directive (one of the oldest in Europe) and the Habitats Directive. Three years ago, there was an attempt to change (to make 'softer') the requirements of these directives, because entrepreneurs in Europe were not happy with the strict requirements. The attempt did not succeed.

What is the cooperation between politicians and lawmakers with scientists?

When I served in the Saeima myself, it was a point of honour for me to cooperate and consult with industry professionals and representatives of science. To be able to adopt a law, it must be based ('at the bottom') on an expert opinion and research. It is not for nothing that laws have annotations. Nothing can be worse than laws being... as they often are with us, and not based on expert opinions. That is bad! Very bad!

You mentioned case law. We have quite a few institutions that can carry out inspections and remove bans without involving courts!

Both in the Constitutional Court and in the administrative court, there have been several cases regarding restrictions on property and usage rights. For example, if there is no nest of a protected bird in the forbidden area, and the bird is not there, the restriction on the use of property rights is wrong. Here, however, another thing must be taken into account – you are unlikely to explain to a bird where to live. Remember the Riga experience with the terns that nested on the roof of the Press House! The plan to move the tern colony did not succeed.

Of course, state institutions can carry out an inspection and remove a ban. As a lawyer, I see a very serious problem elsewhere – there is no proportionality between the restriction on property rights and compensation from the state. There are cases where owners have turned to the Constitutional Court to achieve the end of the legislature's shameless practices. For example, at the beginning of the economic crisis, a provision on not paying compensation for damage caused to fish ponds by birds was included in the Law on the Conservation of Species and Habitats. At that time (2009), the government and the Saeima decided: 'We are in a crisis, money is short, we will not pay anything!' A year passes – we will not pay, a second passes – we will not pay, a third passes – again – you will get nothing! Here, both the principle of legality and the principle of legal certainty were violated, because people dug ponds for business! The Constitutional Court recognized the Saeima's action as illegal, and the legislature was forced to change the restrictions!

There are quite a few cases that the Constitutional Court has examined in relation to the infringement of the rights of owners or society. The cases are different. The court has evaluated regulatory acts that affect territorial planning and construction, the Law on the Conservation of Species and Habitats, and the rights of non-governmental organizations. The Constitutional Court evaluates the legality of laws!

In relation to the mentioned issues, I would like to praise the administrative court. For example, in the autumn of 2010, on the last working day of the Saeima (I do not remember which, but it is not that important), a provision was included in the Transitional Provisions of the Waste Management Law that waste management contracts that had been concluded without following the procurement procedure could remain in force for an unreasonably long time – in Riga and Liepaja until 2020, in Jelgava even until 2029. An entrepreneur went to the administrative court and objected to such discrimination. The administrative court suspended the examination of the case and turned to the Constitutional Court, which declared this provision illegal.

How to be sure that an expert's and specifically this expert's research or conclusion is real, truthful? We have a certain crisis of confidence or a time of questioning everything...

As a lawyer, I have not had such cases; my conclusions have not been questioned. Of course, scientists are also different. For example, in 2003, in relation to territorial planning in the Constitutional Court, I received an opinion from a professional scientist who claimed to have studied beetles (protected and rare) at a time when the territory under investigation was covered by about 5 cm of snow – where and how to find and study beetles under the snow!?! I will repeat myself - scientists are people, and people are different! I have had to encounter very contradictory assessments on issues regarding environmental impact. Here, however, I would like to say – if an expert is caught lying, I think it will be difficult for him to do anything further.

In your opinion, is the word 'expert' used correctly in Latvia in recent years? Is every expert that a person is called really a true professional in the relevant field?

I have not followed the usage, though. I think that in the matter of experts, certification, stricter regulation, or something would be necessary... In environmental law and environmental issues, I have not encountered low-qualified people. As much as I have experienced, in many sectors, specialization requires more precise knowledge. My students at the University of Latvia, who have studied one field or another, see the problems! Often, specialists from one field decide about each other.

In a small country, in a small society, what would be the minimum number of advisors, larger than one, to ask? Or the minimum number of expert examinations?

I cannot answer! It depends on the issue at hand.

Europe and environmental matters. Portugal, the Alps, Norway, Malta. Different climates, flora, fauna. There are forests, there are no forests. Plains, mountains... Are unified environmental protection principles possible?

They are! They are possible! Basic principles, let's call them that! The precautionary principle, the sustainable development principle, the assessment principle. The EU, for example, has set strict requirements for waste management and the assessment of the environmental impact of economic activities. As I already mentioned – it also strictly regulates the protection of species and habitats. If you remember the not-so-distant uproar with and around 'Rail Baltica', where farmers wanted the tracks not to touch or divide their properties. There are still cases pending in the administrative court in which the applicants refer to disproportionate restrictions on property rights. At the same time, however, it is clearly known that the railway line cannot 'go' through protected nature areas of EU importance! The EU sets general requirements, but it is stated that requirements in a member state can also be stricter. I believe that Latvia's accession to the EU has brought benefits to our environment. We had 50 years without private property; when restoring property rights, many had the idea: 'This is my land, I can do what I want! If I want – I clear-cut it! If I want – I build! What is it to others? This is mine!' That is not so! That would be a long and professional conversation about proportionality – the right to property and economic development, and society's right to a favourable environment. Article 105 states: 'Everyone has the right to own property. Property shall not be used in a way that is contrary to the interests of the public. Property rights may be restricted only in accordance with law. Expropriation of property for public purposes in exceptional cases on the basis of a separate law shall be permitted only upon fair compensation.' Article 115 is a counterbalance to the previous one (The State shall protect everyone's right to live in a favourable environment by providing information about the state of the environment and by promoting the preservation and improvement of the environment.). None of these articles can be absolutized! The biggest mistake of the Greens is often a categorical 'against!' – for example – to the construction of a waste recycling plant. Excuse me, will Latvia send waste for a month? There must be understanding, a broader vision! Economic interests cannot be so sharply contrasted with environmental issues – there must be balance and proportionality! Egils Levits recently mentioned three main problems of the present and future in his book launch lecture: environmental pollution and climate change, digital technologies that violate the human right to private life, and artificial intelligence.