THE
OF THE
JUDGEMENT
in the name of the
in case No. 2000-03-01
The
Constitutional Court of the Republic of Latvia in the body of the Chairman of the
Court session A.Endziņš, the justices R.Apsītis, I.Čepāne,
J.Jelāgins, A.Lepse, I.Skultāne and A.Ušacka, with the secretary
of the Court session E.Rozenberga,
in
the presence of the sworn advocate A.Ogurcovs and the deputy
A.Bartaševičs- the authorized representatives of the petitioner i.e. 23
deputies of the 7th Saeima, namely, A.Bartaševičs,
J.Jurkāns, A.Klementjevs, P.Maksimovs, M.Mitrofanovs, M.Bekasovs,
B.Rastopirkins, A.Golubovs, O.Deņisovs, M.Lujāns, O.Tolmačovs,
J.Pliners, I.Solovjovs, J.Urbanovičs, B.Cilevičs, J.Ādamsons,
O.Zvejsalnieks, P.Salkazanovs, L.Bojārs, J.Čevers, G.Bojārs,
I.Burvis
and
the authorized representative of the institution that issued the act, which is
disputed- the head of the Legal Bureau of the Saeima G.Kusiņš,
under
Article 85 set by the Satversme (Constitution) as well as Items 1 and 9 of
Article 16 and the first and seventh parts of Article 17 of the Constitutional
Court Law
in
a public hearing in
”On Compliance of Article
5 (Items 5 and 6) of the Saeima Election Law and Article 9 (Items 5 and 6) of
the City Dome, Region Dome and Rural Council Election Law with Articles 89 and
101 of the Satversme (Constitution), Article 14 of the Convention for the
Protection of Human Rights and Fundamental Freedoms and Article 25 of the
International Covenant on Civil and Political Rights”.
The
On August 21, 1991 the Supreme Council of the Republic
of Latvia (henceforth- the Supreme Council) adopted the Constitutional Law
"On the Republic of Latvia Status as a State", resolving to declare
Latvia as an independent, democratic republic in which the sovereign power of
the State belongs to the People of Latvia and its sovereign state status is
determined by the Republic of Latvia Satversme of February 15, 1922.
On
On August 24, 1991, the Supreme Council issued the
Resolution "On Suspension of Authority of Some Public and Socio Political
Organisations", suspending the authority of the Communist Party of Latvia,
the Working People’s International Front of the Latvian SSR, the United Board
of Working Bodies, Organisation of War and Labour Veterans and the Young
Communist League. It assigned the Minister or Justice of the
On
On
On
On the basis of the conclusion of the Parliamentary
Investigation Committee, which was established on
On May 19, 1994 the Saeima of the Republic of Latvia
(henceforth- the Saeima) passed the Law " On Maintenance and Use of
Documents of the Former State Security Committee and on Stating of Facts about
Persons’ Collaboration with the State Security Committee", which took
effect on June 3, 1994. The Law determined the limitation of statement of fact
of collaboration – 10 years from the date of the Law taking effect.
Article
25 of the Covenant determines that:
"
Every citizen without discrimination (mentioned in Article 2) and any
groundless restrictions shall have the right and possibility:
The
first part of Article 2 of the Covenant, in its turn, envisages that:
"every member state of the above Covenant shall secure to everyone within
its jurisdiction the rights defined in this Covenant without discrimination on
any ground such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status."
On
December 10, 1991 the Supreme Council adopted the Constitutional Law " The
Rights and Obligations of a Citizen and a Person". Article 44 of the Law
establishes that necessary limitation of people’s rights and freedoms may be
determined by law in order to protect the rights, honour, health and morals of
other people, as well as to guarantee State security, public order and peace.
On
June 4, 1997 the Saeima adopted the Law "On European November 4, 1950
Convention for the Protection of Human Rights and Fundamental Freedoms and its
Protocols No. 1, 2, 4, 7 and 11", acceding to the Convention and several
of its Protocols. Besides, Article 4 of the Law states that Latvia considers
jurisdiction of the European Court of Human Rights on issues relating to
interpretation and application of the above Convention and its Protocols to be
binding on Latvia.
In
Latvia Convention for the Protection of Human Rights and Fundamental Freedoms
(henceforth – the Convention) took effect on June 27, 1997. Article 14 of
Convention establishes:" The enjoyment of the rights and freedoms set
forth in this Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other opinion,
national or social origin, association with a national minority, property,
birth or other status."
In
its turn, in accordance with Article 3 of the First Protocol of the Convention:
"The High Contracting Parties undertake to hold free elections at
reasonable intervals by secret ballot, under conditions which will ensure the
free expression of the opinion of the people in the choice of the
legislature."
On
October 15, 1998 the Saeima supplemented the Satversme with Chapter 8
"Fundamental Human Rights", which took effect on November 8, 1998.
Article 89, which is included in the above Chapter, declares that " the
State recognizes and protects the fundamental rights of a person in accordance
with this Constitution, the laws and international agreements binding on
Latvia". Article 101, in its turn, envisages that "every full-fledged
citizen of Latvia has the right, in the manner prescribed by law, to
participate in the activity of the state and local governments as well as to perform
state service."
On
May 25, 1995 the Saeima adopted the Saeima Election Law, which took effect on
June 6, 1995. Items 5 and 6 of Article 5 of the above Law established that:
"
Persons are not to be included in the candidate lists and are not eligible to
the Saeima if they:
..
5)
belong or have belonged to the regular staff of the USSR, Latvian SSR or
foreign state security, intelligence or counterintelligence services;
6)
after January 13, 1991 have been active in CPSU (CP of Latvia), Working
People’s International Front of the Latvian SSR, the United Board of Working
Bodies; Organization of War and Labour Veterans; All-Latvia Salvation Committee
or its regional committees."
On
January 13, 1994 the Saeima adopted "City Dome, District Council and Rural
District Council Election Law". Article 9 Item 4 of the Law established
that: " The following persons shall not be nominated as candidates for the
Dome (Council) election and shall not be elected to the Dome (Councils):
..
4)
persons, who are or have been regular staff or contracted employees of the
former USSR or Latvian SSR State Security Committee, the USSR Ministry of
Defence, the Security Service, Army, the intelligence or counterintelligence
services of Russia and other states, and the residents of these institutions or
holders of apartments used for conspirate meetings."
On
November 6,1996 the Saeima amended Article 9 of the above Law: supplemented it
with a new Item 5 and from that time on, as well as at the moment of initiating
the case, Items 5 and 6 of Article 9 of the City Dome, District Councils and
Rural District Councils Election Law are effective in the following wording:
"The
following persons shall not be nominated as candidates for the Dome (Council)
election and shall not be elected to the Dome (Councils):
..
1
5)
persons who after 13 January 1991 have been active in the CPSU (LCP), the
Working People’s International Front of the Latvian SSR, the United Council of
Working Collectives, the Organization of War and Labour Veterans, the
All-Latvian Salvation Committee or its regional committees;
6)
persons who are or have been regular staff or contracted employees of the
former USSR or the Latvian SSR KGB, the USSR Ministry of Defence, the Security
Service of Russia and other countries, the reconnaissance or
counterintelligence service, or the residents of the above institutions and the
holders of apartments used for secret meetings."
On
December 6, 1996 the Saeima adopted the Law, changing the title of the City
Dome, District Council and Rural District Council Election Law. Henceforward,
also at the time of initiating the case, the title of the Law reads "City
Dome and Rural Council Election Law".
On
April 4, 2000 the Saeima adopted the Law "Amendments to City Dome and
Rural Council Election Law", which took effect on May 4, 2000. The
Amendments express the title of the Law in a new wording – "City Dome,
Region Dome and Rural Council Election Law" (henceforth- Local Election
Law). Item 6 of Article 9 is also changed and reads as follows:
"
The following persons shall not be nominated as candidates for the Dome
(Council) elections and shall not be elected to the Dome (Councils):
..
6)
persons who are or have been regular staff employees of the former USSR,
Latvian SSR or other countries Security Service, as well as intelligence or
counterintelligence service employees."
The
applicants hold that Items 5 and 6 of Article 5 of the Saeima
Election Law and Items 5 and 6 of Article 9 of the City Dome and Rural Council
Election Law (henceforth- the disputable norms) contradict Articles 89 and 101
of the Satversme, Article 14 of the Convention and Article 25 of the Covenant
and request to declare the disputable norms null and void.
The
viewpoint that the above norms, which limit the scope of full-fledged Latvian
citizens who have the right of having access to the Saeima service (including
the right of being nominated as candidates for the Saeima and elected) and to
the Rural Council service (including the right of being nominated as candidates
for the Rural Council and elected), contradict Article 101 of the Satversme,
which does not envisage the above restriction, was expressed in the
applications.
The
applicants stress that the disputable norms forbid to nominate Latvian citizens
as candidates for the Saeima or a Rural Council just because of their political
opinion, because from January 13 to September 10, 1991 none of the
organizations, mentioned in the disputable norms, had been forbidden. Therefore
activities in the organizations at that period should be considered as public
and political activities, creating no elements of criminal offence. Thus, to
their mind, the disputable norms contradict both- Article 14 of the Convention,
which determines that the rights and freedoms set forth in the Convention shall
be secured without discrimination on any ground also political or other opinion
and Article 25 of the Covenant. Article 25 confers on citizens the right to
vote and to be elected at genuine periodic elections on general terms of
equality to elections by secret ballot, which ensure the free expression of the
opinion of the people without any discrimination mentioned in Article 2 of the
Covenant, without groundless restrictions, therefore -–without any distinction
on the ground of political or other opinion.
In
connection with the viewpoint, expressed in the written reply by the Saeima,
that Article 14 of the Convention refers only to implementation of rights and
freedoms mentioned in the Convention, the applicants have supplemented the
legal motivation, indicating to Article 3 of the First Protocol of the European
Convention for Protection of Human Rights and Fundamental Freedoms. In
accordance with it the High Contracting Parties undertake to hold free
elections at reasonable intervals by secret ballot, under conditions which will
ensure the free expression of the opinion of the people in the choice of the
legislature. The applicants hold that one cannot consider elections to be free,
if representatives of a whole group of citizens are denied the possibility of
being elected in the Saeima and local authorities. To the mind of the
applicants it means restriction of the right of freely expressing the opinion
of the people, if they consider the candidates, against whom the restrictions
to passive election rights are applied, to be the only ones to represent them
in the structures of power. Simultaneously, the petitioners have reached the
conclusion that- on the basis of Items 5 and 6 of Article 5 of the Saeima
Election Law- the rights of individual Latvian citizens are being limited just
because of their political opinion and former occupation. To their mind such
restrictions contradict both the Satversme and the International Agreements
binding on Latvia.
Representatives
of the applicants stressed that in accordance with Article 91 of the Satversme fundamental
human rights should be implemented without any discrimination, but the
disputable norms permit discrimination because of political membership.
Besides, without giving a legal motivation, it was pointed out that the
disputable norms were not in compliance with Articles 10 and 11 of the
Convention.
Representatives
of the applicants referred to the viewpoint, which has been expressed in the
practice of the European Court of Human Rights. Namely, the phrase "under
conditions which will ensure the free expression of the opinion of the people
in the choice of the legislature" to their mind "in essence means not
only freedom of expression, protected by Article 10 of the Convention, but also
equality and the right to elect and be elected of all the citizens" (See
the Decision of the European Court of Human Rights in the case of Mathieu-Mohin
and Clerfayt, 1987).
In
its turn, making a reference to the Gitonas and others v. Greece case reviewed
by the European Court of Human Rights, the petitioners expressed a viewpoint
that " the state allows to a certain extent ( under constitutional
procedure) to work out laws managing the status of parliamentarians, including
criteria of disqualification into them. However, the criteria are different and
depend on historical and political peculiarities of every state even though
there exists a common interest to guarantee independence of the deputies and
freedom of choice of the electorate. Number of situations, envisaged in
constitutions and election legislature of many states of the European Union
gives the possibility of choice of different criteria. However, none of the
criteria may be considered as more reasonable than others, ensuring free
expression of the opinion of people at free, just and regular elections."
The
applicants stress that, by determining restrictions in the election laws to
protect the legal interests of the state, and in this case- security of the
state, the Saeima, contrary to the proclaimed objective, has violated much more
important rights, namely, the right to free expression of the opinion. Besides,
determination of the disputable limitation regarding the persons, who after
January 13, 1991 have been active in CPSU (CP of Latvia); Working People’s
International Front of the Latvian SSR; the United Board of Working Bodies;
Organization of War and Labour Veterans, All-Latvia Salvation Committee or its
regional committees to their mind cannot be motivated by the necessity of
guaranteeing security of the state as the limitations have been determined only
after completion of the period of legislation of the 5th Saeima and
local authorities elected in 1994. At that time both in the 5th
Saeima and the Domes (Councils) of municipality many elected persons, who at
the moment are denied passive election rights, worked without causing any
threat to the security of the state.
The
applicants also pointed out that the European Court of Human Rights had renewed
the rights of the Socialist Party of Turkey, without paying any mind to the
fact that the party programme mentions proletarian dictatorship.
The
applicants admit that Article 3 of the First Protocol of the Convention does
not refer to elections of the local authorities, but they point out that
prohibition to be elected in local authorities violates rights established in
Articles 10 and 11 of the Convention in a discriminating way.
The
representative of the applicants maintains that traits of collective
responsibility are felt in the disputable norms as they envisage limitations in
connection with membership in the above organizations and not with nature of
activities of every person. Besides under the Latvian jurisdiction the term
"membership" is interpreted in the way that it is quite enough to
establish the fact of formal membership in an organization to deny the person
the possibility of becoming a candidate.
The
Saeima in its written reply maintains that the disputable
norms do not contradict either Articles 89 and 101 of the Satversme or Article
14 of the Convention, Article 3 of the First Protocol and Article 25 of the
Covenant and requests to declare the applications of the Saeima deputies
ungrounded and reject them.
It
is stressed in the written reply that the right to participate in the activity
of the state and local governments, envisaged in Article 101 of the Satversme
is not absolute as the Article includes a condition " in the manner
prescribed by law". Thus the Satversme as if envisages that enjoyment of
the above right has to be determined by law. Both the Saeima Election Law and the
City Dome and Rural Election Law belong to that group of laws and both-a
certain procedure to implement the right as well as the scope of persons, who
have a limited right of being elected is determined.
The
Saeima expresses a viewpoint that any election system shall be evaluated taking
into account the political development of the state. One should consider the
circumstances under which the limitations have been determined. The Saeima
members state that the disputable norms are not directed against pluralism of
ideas in Latvia, but against the group of persons who quite recently with their
activities tried to hinder foundation of the democratic state of Latvia and
returning of Latvia to the community of democratic states. They stress that the
objective of the limitations is to protect the national security of Latvia and
the democratic system of the state. Taking into consideration the above as well
as the fact that there still exists the necessity to strengthen the state
security and the democratic system, limitations to achieve the above objectives
shall be regarded as reasonable. In essence the above limitations of the
passive election right do not limit democracy and diversity of ideas but- on
the contrary- strengthen democracy and pluralism.
As
to the viewpoint, expressed in the applications, that the prohibition is
directed against persons with different political opinion, the Saeima draws
attention to the fact that only the persons, who with their activities in the
above organizations confirmed that they were against the renewal of national
independence of Latvia, have been denied the right of being included in the
candidate lists.
The
Saeima stresses that by ratifying the First Protocol of the Convention, Latvia
has undertaken to hold free elections at reasonable intervals by secret ballot,
under conditions, which ensure free expression of the opinion of the people in
the choice of the legislature. Article 6 of the Satversme supplements Article 3
of the First Protocol of the Convention, precisely determining the principles
and system of elections in Latvia. Article 9 of the Satversme establishes
general criteria for the person who wants to become a candidate. The Satversme
leaves one of them – competence – to the area of responsibility of the legislator.
The
Saeima draws attention to the essence of the term "discrimination",
which is used in Article 14 of the Convention as well as to the fact that – in
compliance with the practice of the European Court of Human Rights – not any
differences in application of the above right of the Convention shall be
considered discrimination. The principle of equality is violated if the
differences cannot be reasonably and objectively justified, taking into
consideration the particular legal objective and proportionality.
In
the written reply it is pointed out that the right of being elected established
in Article 25 of the Covenant is not absolute. Article 25 of the Covenant shall
be implemented without discrimination and groundless limitations, mentioned in Article
2 of the Covenant. Thus the Covenant allows well-grounded limitations and one
has to take into consideration that not all limitations shall be regarded as
discriminating. Conditions of the disputable norm to the mind of the Saeima
members are directed to protection of the territorial unity, national security
and the democratic state system. They should be regarded as well-grounded and
being in conformity with Article 25 of the Covenant.
Taking
into consideration all the above argumentation, the Saeima holds that the
disputable norms are in compliance with Article 89 of the Satversme, which
establishes that the State recognizes and protects the fundamental rights of a
person in accordance with the Constitution, the laws and international
agreements binding on Latvia.
At
the Court session the Saeima representative expressed the opinion that the
applications were ungrounded and requested the Court to reject them, declaring
the disputable norms to be in compliance with Articles 89 and 101 of the Satversme,
Article 14 of the Convention, Article 3 of the First Protocol and Article 25 of
the Covenant.
The
representative of the Saeima stressed that the right to participate at the
elections was always restricted even in democratic countries. The body of voters
is always smaller than the body of the citizens. It is important to motivate
the limitation. He concluded that theoretically all persons who have the right
of vote might participate at the elections. Limitations of the right are
permissible only if they do not contradict the notion of democracy mentioned in
Article 1 of the Satversme, general essence of elections and other Articles of
the Satversme. Besides, one should take into consideration that
limitations of the right to vote are perceived emotionally and - as exceptions
from the principle - are to be interpreted in the narrow sense.
As
concerns Article 3 of the First Protocol of the Convention the Saeima
representative drew attention to the fact, that in any democratic state
the self-protecting principle of democracy was admitted. It means that, taking
into account proportionality, the democratic system of the state shall be
protected from people who are threats to it or who are not ethically qualified
to become representatives of a democratic state on a political or
administrative level. He expressed the viewpoint that in specific historically
political circumstances many states have adopted certain conditions, not only
to avert urgent threats to national security but also to ensure that the citizens
are not obliged to accept persons, who with their activities have proved not to
be loyal to the democratic state system, as representatives of the state power.
Otherwise trust in the state power and legitimacy, that is an absolute must of
democracy, will be shaken.
The
Saeima representative stressed that any election system should be evaluated by
taking into account the political development of the state. Historically
political circumstances under which the limitations have been determined should
be considered as well.
He
expressed the viewpoint that the disputable limitations are well grounded and
therefore justifying. Prohibition to include in the candidate lists and to be
eligible to the Saeima persons who have belonged to foreign, first of all the
former USSR occupational regime staff as well as former and present employees
of security services results from interests of national security and
territorial unity of Latvia. It concerns not only the present but also the former
staff employees of the institutions, who have not publicly declared the fact
and are therefore subjected to blackmail. Besides the limitation is connected
with public loyalty to the political representatives of the state, which is
quite necessary in a democratic state and which confirms a certain minimum of
democratic political ethics. It cannot be attributed to persons who have worked
to implement the power of the occupational regime – in the institution of
persecution and repression. In their turn, persons, who after January 13, 1991
have been active in CPSU (CP of Latvia), Working People’s International Front
of the Latvian SSR, the United Board of Working Bodies, Organization of War and
Labour Veterans, All-Latvia Salvation Committee or its regional committees,
during the period of restoring of independence, wanted to retain the
totalitarian, undemocratic regime in Latvia and struggled against the process
of regaining independence. In this case the legitimate interest of the
democratic society is to demand from their political representatives a certain
minimum of loyalty and political ethics. Persons, who have actively
participated in the struggle against independent and democratic Latvia, are not
able to present minimum national and democratic loyalty.
Expressing
the statement that the disputable limitations are in compliance with the
principle of proportionality, the Saeima representative pointed out that the
State of Latvia did not apply any criminal sanctions to persons who at the
critical moment with their participation in the activities of the above
organizations and institutions had strengthened the position of those
anti-state powers, who actively fought against this state and the democratic
system. Thus limitations to hold separate positions cannot be regarded as
disproportionate.
Speaking
about limitations established with regard to persons who belong or have
belonged to the regular staff of the USSR, Latvian SSR or foreign state
security, the Saeima representative drew attention to Article 17 of the Law
" On Maintenance and Use of Documents of the Former State Security
Committee and on Stating of Facts of Collaboration with the State Security
Committee" in compliance with which limitations are not termless. Besides
crossing out candidates from the list is not the result of administrative
arbitrariness but it is done on the basis of the individual court decision.
Thus the above persons are guaranteed protection of the just court and the
right to use the services of the advocate.
As
concerns the limitations with regard to persons who after January 13, 1991 have
been active in CPSU (CP of the Latvia), Working People’s International Front of
the Latvian SSR, the United Board of Working Bodies, Organization of War and
Labour Veterans, All-Latvia Salvation Committee or its regional committees, the
Saeima representative stressed that the limitations envisage individual and not
collective responsibility, i.e., the limitations refer to members of the above
organizations who have been active in these organizations after January 13,
1991. In this case crossing the candidates out of the list is likewise not
administrative arbitrariness but it is done on the basis of an individual court
decision.
The
Saeima representative indicated that the State of Latvia has been very liberal
as regards criminal punishment of the representatives of the power of the
former regime, whereas as regards establishing of other limitations –
relatively consequent. He concluded that the principle of proportionality has
been observed and the benefit of the limitations to the society of Latvia on
the whole is much more important than limitation of the rights of some persons.
The
Constitutional Court concluded:
According to the theory of constitutional law,
constitution leaves conditions and boundaries of contents of concrete
fundamental rights for the legislator to make a decision on. "In such a case
fundamental rights become effective in compliance with the standards of law..,
and lastly everything depends on the normal legislator… The regulating
authority of the legislator may be positive or negative: positive as the right
of determining the contents of the fundamental rights, negative- as the
authority to limit fundamental rights". (see Deutches Staatsrecht.
Dr.Theodor Maunz und Dr.Reinhold Zippelius. C.H.Beck’sche Verlagsbuchhandlung,
München, 1991, p. 158-159).
Evaluating the process of adoption of Article 101 by
the Saeima it can be seen that amendments, introduced during the third reading,
shall be interpreted as the legislator’s will not only to advance the criterion
"full-fledged citizen" (the first and second readings) but even more-
to leave the competence of determining that scope of Latvian citizens whom
Article 101 of the Satversme grants the right of participating in the
activities of the state and local authorities in the sector of other laws. By
including the words " in the manner prescribed by the law" the
legislator has determined that in every concrete case the person applying the
right shall interpret the words "every full-fledged citizen of
Latvia" taking into consideration limitations established by laws.
One should take into account also the viewpoint
expressed by the Saeima representative that "the right to participate in
the elections is limited also in democratic states."
As to the disputable norms of the Saeima Election Law,
Article 101 of the Satversme shall be interpreted together with Article 9 of
the Satversme. The way of ensuring implementation of the right of a person to
participate in the activities of the Saeima in case if a person strives to
become the Saeima deputy, shall be in conformity with the condition expressed
in Article 9 of the Satversme " any full-fledged Latvian citizen who is
over twenty- one years of age on the first day of elections may be elected to
the Saeima".
During the process of debating about and adopting
Article 9 of the Satversme, the Constituent Assembly both in its second and
third reading discussed the question of election right limitations. The
Assembly discussed the possibility of incorporating the limitations in the
Satversme. On October 11, 1921 rapporteur Marģers Skujenieks at the
Constituent Assembly pointed out that ”there are certain categories of
citizens, who cannot enjoy the election right, e.g. imbecile persons, who are
under guardianship, criminals etc. In point of fact the majority of the
commission hold that these Articles shall be included in one or the other law:
either in the election law or the Satversme"(Verbatim Report of the
Constituent Assembly of the Republic of Latvia, booklet 14, page 1575). Thus
the viewpoint of the Saeima representative that Article 9 of the Satversme
authorizes the Saeima to specify the contents of the notion "a
full-fledged citizen", which is included in the Saeima Election Law.
Well grounded is also the viewpoint of the Saeima
representative that limitations of this right are permissible only if they do
not contradict the notion of democracy, mentioned in Article 1 of the
Satversme, general essence of elections and other Articles of the Satversme.
Besides, "limitations of the right to vote are perceived emotionally and –as
exceptions from the principle- are to be interpreted in the narrow sense".
Thus the legislator, when passing the disputable
norms, has not violated Article 101 of the Satversme, but on the contrary – has
implemented the task of this Article- that of passing the needed legal norm to
realize the fundamental right.
The Covenant has been included in the UNO Charter of
Human Rights, which contains the most important global instruments in the
sector of human rights adopted by UNO, and the Universal Declaration of Human
Rights is among them.
The first part of Article 21 of the Universal
Declaration of Human Rights determines that "every person has the right to
take part in the government of his country, directly or through freely chosen
representatives", in its turn the third part envisages that "the will
of the people shall be the basis of the state power: this will shall be
expressed in periodic and fair elections which are held on the basis of general
and equal election rights, by secret ballot or any other equivalent forms,
which ensure the free expression of the opinion of the people." At that
time incorporation of the Article in the above Declaration was " a
revolution within a revolution", because it "established not only
equal and inalienable rights of an individual as regards the state but also
minimum demands as regards the structure and functioning of the state: the
authority of its government must be based on the will of the people, besides
there must be a system of democratic participation with equal political rights
for every citizen." (see The Universal Declaration of Human Rights: A
Commentary. Scandinavian University Press, Oslo, 1992, p.299).
Article 21 of the Universal Declaration of Human
Rights shall be interpreted in compliance with the principle of equality fixed
in Articles 1, 2, 4 and 7 as well as provisions determined in Article 29.
Namely, every person has duties to the community and in the exercise of his
rights and freedoms, everyone shall be subject only to such limitations as are
determined by law solely for the purpose of securing due recognition and
respect for the rights and freedoms of the others and of meeting the just
requirements of morality, public order and the general welfare in a democratic
society. And what is more important- implementation of those rights and
freedoms by no means shall contradict objectives and principles of the UNO,
i.e. preclusion and elimination of threats to peace and security and respecting
of the principle of sovereignty and equality of states.
The ideas of the Universal Declaration of Human Rights
are specified in the Covenant. And the norms incorporated in Article 25 of it
determine that every citizen shall have the right and the opportunity without
any of the distinctions mentioned in Article 2 of the Covenant and without
unreasonable restrictions to vote and be elected at genuine, periodic
elections. In compliance with the practice of interpretation of the Covenant,
the norms of Article 25 confer the right not only in the choice of legislature
but also in local Dome (Council) elections. (See The Universal Declaration of
Human Rights: A Commentary. Scandinavian University press, Oslo, 1992, p.307).
Article 25 of the Covenant, although it envisages
inadmissibility of discrimination with regard to implementation of the above
right, also acknowledges the possibility of limiting the right, stressing that
" every citizen without.. unreasonable restrictions shall have the right
and possibility". Thus, determination of reasonable restrictions with
regard to the rights incorporated in Article 25 of the Covenant is admissible.
On November 10, 1989 at its 37th session
the UNO Committee of Human Rights, by accepting the commentary of the UNO High
Commissioner on the essence of discrimination, has acknowledged that not all
types of differential treatment constitute prohibited discrimination.
Determination of reasonable and objective prohibition with an aim, which is
considered as legitimate by the Convention, cannot be regarded as
discrimination. Besides, the General Assembly of the UNO, when evaluating the
adjustment included in Article 25 of the Covenant, has stressed that the
international society, trying to advance efficiency of the principle of
periodic and genuine elections, must not violate the right of every sovereign
state to freely choose and develop its political, social, economic and cultural
system, regardless of the fact if it complies with the choice of other states
(see UNO Resolution A/RES/44/146, December 15, 1989).
This Article includes provisions on elections of the
legislator, but does not contain provisions on local authority elections (see
Frede Castberg. The European Convention on Human Rights. A.W.Sithoff-Leiden
Oceana publications inc.-Dobbs Ferry, N.Y.,1974, page 181). Thus Article 3 of
the First Protocol of the Convention does not refer to the Local Authority
Election Law.
As the European Court of Human Rights has declared in
the case Mathieu-Mohin and Clerfayt, even though the states have " a wide
margin of appreciation in this sphere", any means or claim, restricting
the norms expressed in Article 3 of the First Protocol of the Convention shall
comply with the following preconditions: it must have a legitimate aim and
there must be a reasonable relationship of proportionality between the means
employed and the aim sought to be realised; rights may be restricted "only
in an extent which does not deprive the right of its essence and does not
diminish its efficiency"; the "principle of equality of
treatment" shall be respected and arbitrary restrictions must not be used
(see The Human Rights Act 1998: Enforcing The European Convention in the
Domestic Courts. Page 390).
Therefore the viewpoint of the representative of the
Saeima that the restrictions to election rights, established in Article 3 of
the First Protocol of the Convention, shall be determined in the universal
procedure. One has to evaluate whether the established restriction of the right
has a legitimate aim and whether it is necessary in a democratic society.
The European Court of Human Rights holds that Article
14 of the Convention does not include any prohibition of difference in
treatment with regard to realisation of rights and freedoms envisaged by the
Convention. The principle of equal treatment is considered to be violated only
if the difference of treatment does not have a reasonable and objective
justification and a legitimate aim. Existence of the above justification shall
be appreciated by taking into consideration the aims and consequences of the
issue, which usually dominate in the democratic community (see Decisions of the
European Court of Human Rights: Belgian Linguistic case (1968) and Karlheinz
Schmidt v.Germany (1994)).
One has to agree to the viewpoint expressed by the
Saeima that the Covenant also allows justified restrictions of the election
right and not all restrictions are considered to be discriminating.
The Constitutional Court, after getting acquainted
with the point of view of both – the representatives of the applicant and the
representative of the Saeima, as well as with the practice of application of
the disputable norms by courts of general jurisdiction and the Central Election
Committee hold that it is necessary to clarify the actual meaning and contents
of the term "have been active".
It became clear that " to be active" means
to continuously perform something, to take an active part, to act, to be
engaged in (see Latviešu valodas vārdnīca – the Dictionary of the
Latvian language- Rīga, Avots, 1998, page 168).
When studying the introduction of the term in the
disputable norm, it was found that the Saeima member Māris Grīnblats,
upholding the proposal of the Saeima faction ”To Fatherland and Freedom"
to incorporate the disputable norm in Articles 5 and 6 of the Saeima Election
Law, at the Saeima May 25, 1995 session rejected the objections of the Legal
Committee and pointed out : if " the facts, that he has been, acted or
found himself in one, another or the third organization, become known, then the
facts testify that he has violated the law and given false data about
himself". At the session the Saeima member Māris Budovskis also
interpreted the term in its broader sense, i.e., he expressed the viewpoint
that members of the anti-state organizations ”should not get in the higher
political sectors”.
However, on December 18, 1997, when discussing the
amendments to Articles 5 and 6 of the Saeima Election Law, proposal of
Māris Grīnblats to substitute the phrase ”have been active” with the
wording ” are or have been the members, participants or fellows of the
organizations or boards” was turned down. For example, the Saeima member
Ilmārs Bišers pointed out:” We are not in raptures about the wording ”have
been active”, as we ourselves understand that to prove the above fact is
difficult, but it would be even more difficult and more dangerous to adopt the
amendment of Grīnblats. Why? Because many members of the Communist Party
did not formally end their membership in the party… There are many of them who
just tore their membership cards. I know people who left the party, and, even
if they have discontinued membership in it, we cannot be sure that the
Committees of the CP have reviewed information about it. Perhaps they have just
put the cards in one big heap and in the archives you would find that they have
formally not been excluded from the party."
Thus the legislator has connected restrictions with
the degree of individual responsibility of every person in realisation of the
aims and programme of these organizations. And the restriction to be elected
into the Saeima or the local authority, included in the disputable norms is
connected with the activities of every concrete person in the respective
socio-political organizations.
Formal membership in any of the above organizations
cannot serve as the reason of forbidding a person to be included in the
candidate list and being elected in the Saeima. For example, in accordance with
Article 5 of the Supreme Council August 23, 1991 Resolution " On
Anti-constitutional Activity of the Latvian Communist Party in the Republic of
Latvia" " membership to the Latvian Communist Party is not a reason
for limitation of human rights, discrimination and persecution". The
Supreme Council September 10, 1991 Resolution "On Discontinuation of Some
Public and Socio Political Organizations" in its turn states the fact
about unquestionable activities of the above organizations and their leaders against
national independence of Latvia.
Thus the disputable norms are directed only against
those persons who with their activities after January 13, 1991 and in the
presence of the occupational army tried to renew the former regime. But the
norms are not applied to persons with different political conviction (opinion).
The tendency, characteristic to particular courts, to focus only on
establishing the fact of formal membership and not evaluating the activity of a
person, does not comply with the aim, which the legislator, when adopting the
disputable legal norm has tried to achieve.
In
cases, when there is doubt about the contents of the norms of human rights
included in the Satversme, they should be interpreted in compliance with the
practice of application of international norms of human rights. The practice of
the European Court of Human Rights, which in accordance with liabilities Latvia
has undertaken (Article 4 of the Law "On November 4, 1950 European
Convention for Protection of Human Rights and Fundamental Freedoms and its
Protocols 1, 2, 4, 7 and 11) is mandatory when interpreting the norms of the
Convention. This practice shall be used also when interpreting the respective
norms of the Satversme.
To
establish whether the disputable restrictions comply with Articles 89 and 101
of the Satversme, and are "based on" Article 25 of the Covenant and
Article 3 of the First Protocol of the Convention, one has to evaluate if the
restrictions included in the disputable norms are:
As
the case does not contain the dispute on whether the restrictions have been
determined by the law, adopted under due procedure, the two last issues have to
be evaluated i.e. if the restrictions have a legitimate aim and if they are
needed in a democratic society.
In
its turn, to establish if the disputable norms comply with Articles 89 and 101
of the Satversme, Article 25 (in connection with Article 2) of the Covenant and
Article 3 of the First Protocol of the Convention (in connection with Article
14), one has to evaluate if the disputable norms limit the rights of persons in
a discriminating way. Thus one has to establish if:
Although the democratic state was renewed "the
principle of parliamentarism was alien to the conservative leaders of the
Latvian Communist Party. It was not going to give up the role of the
"leading and ruling force". As it could not win in the elections of
the Supreme Council of the Republic of Latvia, it started anti-state
activities. With the efforts of the Latvian Communist Party and its satellite
organizations: the Young Communist League, the International Front, the United
Board of Working Bodies, Organization of War and Labour Veterans the All-Latvia
Salvation Committee was established. In December 1990 this organization, which
did not represent the legal power of Latvia, addressed the President of the
USSR M.Gorbachev with a request to introduce a direct presidential rule in
Latvia” (V.Blūzma. The Beginnings of Formation of Political Parties in
Latvia.//V.Blūzma and others Renewal of the State of Latvia 1986-1993.
Riga, 1998.pages 268-269).
On January 13, 1991 the 10th Plenum of the
Central Committee of the Latvian Communist Party took place in Riga. At it the
issue of seizing the power by any means, even including bloodshed, was
discussed. Besides the demand to the government, the Supreme Council and local
authorities to resign was expressed. The All-Latvia Salvation Committee was
asked to take over the power in the state (see the July 9, 1992 Decision of the
Parliamentary Committee of the Supreme Council).
On August 20, 1991 the socio political organizations,
named in the disputable norms, circulated the appeal, informing the inhabitants
of the Republic of Latvia that the state of emergency had been declared. All
the inhabitants were asked to turn against everybody who did not obey the
measures of the Committee of the State of Emergency.
As the aims of the activities of these organizations
were connected with destruction of the existing state power, its essence was
anti-constitutional. And the legislator on August 24, adopting the Resolutions
"On Discontinuation of the Activity of Some Public and Socio Political
Organizations" and "On Discontinuation of the Activities of the USSR
Security Service in the Territory of the Republic of Latvia" evaluated it
as anti-constitutional. Activities of the above organizations were directed
against the independence and democracy of the Republic of Latvia.
Thus the aim of the restrictions of the passive
election rights is to protect the democratic state system, national security
and the territorial unity of Latvia. The disputable norms are not directed
against pluralism of ideas in Latvia or political opinion of a person, but
against persons, who with their activities have tried to destroy the democratic
state system and thus have turned against Article 1 of the Satversme. Use of
human rights must not be turned against democracy as such.
In 1990 the Copenhagen OSCE Conference on Human
Dimensions in its document declared that development of the society based on
pluralistic democracy was the required condition to ensure the atmosphere of
durable peace, security and co-operation in Europe.
The states, acceding to the document, among them
Latvia, in accordance with its laws and international liabilities consider
protection of the state democratic order against activities of separate
persons, groups or organizations, using terrorism or violence (or who do not
refuse from terrorism and violence) to destroy the democratic order of the
respective state or democratic system of another member state as its duty.
Even though the specific law, called the lustration
law, has not been adopted in Latvia, experience of post-socialist states,
acquired during the period of overcoming the consequences of the old regime and
transition to a democratic state, was summed up in Resolution No.1096 (1996) of
the Parliamentary Assembly of the Council of Europe "On Measures to
Dismantle the Heritage of Former Communist Totalitarian Systems". On the
one hand this Resolution, referring to the Guidelines No.7568 of the Legal and
Human Rights Committee of the European Council to ensure that lustration laws
and similar administrative measures comply with the requirements of a state
based on the rule of law, stresses that "disqualification resulting from
the lustration process shall not exceed the period of five years, as one need
not underestimate the possibility of positive changes in people’s attitude and
habits. It would be desirable to complete the lustration process to December
31,1999, as up to that time the democratic system in the former communist
totalitarian countries should be stable." However, the socio political
situation of every state should be estimated individually as, on the other
hand, the Resolution also expresses concern that the transition process, the
aim of which is liquidation of the consequences of the heritage of the former
communist totalitarian system, may fail and the result may turn out to be
renewal of a "velvet" totalitarian regime. Besides one should take
into conclusion that the Resolution of Parliamentary Assembly is just a
recommendation (see the Statute of the Council of Europe, to which the Republic
of Latvia acceded with the February 2, 1995 Law "On the Statute of the
Council of Europe").
The essence and efficiency of rights lies also in
ethics. To demand loyalty to democracy from its political representatives is in
the legitimate interests of a democratic society. When determining
restrictions, respect and honour of the candidates legally protected by law is
not questioned. It is just doubted if the respective persons deserve to
represent the people in the Parliament or the respective local authority. The
restrictions concern persons, who have been the staff employees of the
repression apparatus of the occupation regime or after January 13, 1991 have
been active in the organizations, mentioned in the disputable norms, who fought
against the renewed Satversme and the state of Latvia. A similar viewpoint was
expressed also by the Federal Constitutional Court of the GFR:" He, who
has spied on and oppressed his own people, who has deceived, betrayed and
cheated or who is responsible for it all, shall have no place in Bundestag even
if one cannot deprive him of his mandate" (see May 21,1996 Decision in
case 2 BvE 1/95).
Well-grounded is the statement of the Saeima representative
that a democratic state system has to be protected from persons who are
ethically not qualified to become the representatives of a democratic state on
the political or administrative level and who with their activities have
demonstrated that they are not loyal to the democratic state system. The state
should be protected from persons, who have worked in the apparatus,
implementing occupation and repression and persons, who after renewal of
independence in the Republic of Latvia tried to renew the anti- democratic
totalitarian regime and resisted the legitimate state power.
The fundamental values of the society contain a
consensus, which expresses mental traditions and ethical principles of it.
Different world outlook and different systems of value can exist in one and the
same society. However, it is necessary to have unifying, universally recognized
and consolidating basic conceptions on which to base both the rights and the
whole public life of the people and the state. The greater the pluralism, the
more necessary the mutual tolerance of different viewpoints and agreement on
generally recognized values, non-observance of which precludes a tolerant
attitude (see Horn. Introduction in Legal Science and Philosophy of Rights.//
Law and Rights, volume 2, No.2, page 41).
Thus the statement of the applicants, that the
disputable norms violate the principle demanding equal attitude to the
citizens, is groundless as the rights are not violated in such an extent that
the essence of the right has been divested and its efficiency weakened. Rights
should be ethical.
From the disputed norms it follows that restrictions
of the passive election right does not refer to all members of the mentioned
organizations but only to those who had been active in the organizations after
January 13,1991. Crossing out a person from the candidate list, if he had been
active in the organizations is not an administrative arbitrariness, it is based
on individual court decision. In accordance with the law, establishment of individual
responsibility lies in the competence of the court of general jurisdiction.
Both the Civil Code of Latvia and the effective Civil Law determine a specific
procedure of reviewing cases on establishing restrictions of the election law.
Thus the principle, requiring equal attitude to every citizen has not been
violated, as protection by court is guaranteed and the restrictions are not
arbitrary. Consequently the aim of the restrictions is legitimate.
The
disputable norms were really adopted on May 25, 1995 (in the Saeima Election
Law) and on November 6, 1996 (in the Local Authority Election Law). However
similar restrictions have been determined or proposals to establish them expressed.
On
August 22, 1991 the Supreme Council adopted the Resolution "On Formation
of a Parliamentary Investigation Commission to Hold an Inquiry into the Attempt
of the Illegitimate Coup". On July 9, 1992 the Supreme Council confirmed
the Conclusion of the Commission. By the same Decision and on the basis of
Article 5 (its second part, Item 5) of the Law "On the Status of the
Deputy of the Republic of Latvia People’s Deputy" the Supreme Council
nullified mandates of 15 deputies. The above norm, which was adopted in the
wording of June 30, 1992 determines that:" The Supreme Council decides on
the annullment of deputy’s mandate, if the deputy has operated against the
Republic of Latvia Satversme and other laws, Supreme Council Resolutions, which
ensure the existence of Latvia as an independent democratic state, if it is
constituted by the Supreme Council commission conclusion and was confirmed on
the plenary meeting of the Supreme Council".
When
studying the process of adoption of the Law ”On the Elections for the Fifth
Saeima” (verbatim reports of the sessions, proposals by the deputies), one can
see that already on March 11, 1993 the deputy of the Supreme Council Linards
Muciņš submitted a motion on restrictions of the passive election right
for 10 years to the CPSU and CPL city, district, region secretaries and hired
party committee secretaries (whose rights at that time were compared to the
above persons), members of the CPSU and CPL, who operated in the Communist
Party after January 13, 1991, advisors to the President of the USSR, members of
the All-Latvian Salvation Committee or its regional committees, members of the
Working People’s International Front of the Latvian SSR, the United Board of
Working Bodies, Organization of War and Labour veterans. However, taking into
consideration the fact that the deputies of the Supreme Council had been
elected "not only by the citizens of Latvia but also by the citizens of
the USSR, residing in Latvia, among them quite a number of soldiers of the
occupational army” (E.Levits. May 4,1990 Declaration on Renewal of
Independence.//V.Blūzma and others Renewal of the State of Latvia
1986-1993. Riga, 1998, page 217) as well as turning against all the members of
the Central committee of the CPSU and CPL, to their candidates and hired
secretaries of the CP committees in cities, districts and regions, many of whom
had become the deputies of the Supreme Council and deserved it for their
activities in the renewal of independence in Latvia, the proposal was not
adopted.
Besides
the deputies envisaged to determine restrictions on posts, referring also to
the Saeima deputies. Article 21 (its second part) of the Law "On the
Elections for the Fifth Saeima" determines that persons, whose rights to
work in state authority are restricted by other legislative acts may not be
nominated as the candidates. However up to the Elections for the Fifth Saeima
such laws were not adopted.
During
the process of discussing the above draft law, a viewpoint was expressed that
the Fifth Saeima, after estimating the political situation would adopt the
Election law and decide on the necessary restrictions of the election right.
Any
election system should be evaluated by taking into consideration the political
development of the state. As the practice of legislation testifies, after
renewal of the independence of the Republic of Latvia, adoption or amending of
the election law has been topical just before the elections. Therefore it is
understandable that the respective restrictions in the Local Authority Law have
been established only in November 1996. Henceforward the legislator also
evaluated historical and political conditions of the development of democracy
in Latvia and before every election the election laws had been
"opened" again.
To
establish whether the applied measure, i.e., restrictions of the passive
election right is proportional to the aims – to protect, firstly, the
democratic state system, which is ensured also by observing the universally
approved ethical norms, secondly, national security and territorial unity of
Latvia, one has to evaluate the political situation in the state and additional
conditions. As the legislator has repeatedly evaluated the political and
historical conditions of the development of democracy in connection with the
issues of the election right, then – taking into consideration the above
mentioned conclusions – the Court does not hold that at the present moment
there exists the necessity to doubt the proportionality of the applied measure
and the aim.
However,
the legislator, periodically evaluating the political situation in the state as
well as the necessity and validity of the restrictions should decide on determining
the term of the restrictions in the disputable norms, as such restrictions to
the passive election rights may last only for a certain period of time.
On
the basis of Articles 30-32 of the Constitutional Court Law
the
Constitutional Court
DECIDED:
to
declare that Items 5 and 6 of Article 5 of the Saeima Election Law and Items 5
and 6 of Article 9 of the City Dome, Region Dome and Rural Council Election Law
comply with Articles 89 and 101 of the Satversme, Article 14 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms, Article
3 of the First Protocol of this Convention as well as Article 25 of the
International Covenant on Civil and Political Rights.
The
judgement takes effect from the moment of its announcement. The judgement is
final and allowing of no appeal.
The
judgement was announced in Riga, on August 30, 2000.
The
Chairman of the Court session A. Endziņš
Justice
of the Constitutional Court R. Apsītis
Justice
of the Constitutional Court I. Čepāne
Justice
of the Constitutional Court J. Jelāgins
Justice
of the Constitutional Court A. Lepse
Justice
of the Constitutional Court I. Skultāne
Justice
of the Constitutional Court A. Ušacka
DISSENTING OPINIONS
of the Constitutional Court justices Aivars
Endziņš, Juris Jelāgins and Anita Ušacka
in case No.2000 – 03 – 01
"On Compliance of Article 5 (Items 5 and 6) of
the Saeima Election Law and Article 9 (Items 5 and 6) of the City Dome, Region
Dome and Rural Council Election Law with Articles 89 and 101 of the Satversme
(Constitution), Article 14 of the Convention for the Protection of Human Rights
and Article 25 of the International Covenant on Civil and Political
Rights".
When clarifying the notion of Article 1 of the
Satversme, one should take into consideration fundamental values of the State
of Latvia, which have ensured the possibility of establishing the state and its
vital capacity even under extremely critical conditions. November 18, 1918 Act
of Proclamation of the Republic of Latvia states, that "… all the
citizens, without any national distinctions are asked to help, as the rights of
all the ethnicities will be guaranteed in Latvia. It will be a democratic and
just state, without any suppression and injustice…" On May 4, 1990 the
Republic of Latvia Supreme Council, when adopting the Declaration "On the
Accession of the Republic of Latvia to International Instruments Relating to
Human Rights", referred to the above conclusion of the act. Thus, the very
first steps, both at the time of establishing the state of Latvia and the
renewal of its independence, were unequivocally directed to establishment of a
really democratic state system, where human rights and tolerance to diversity
of opinion are respected.
As can be ascertained from the Resolution by the
Supreme Council of the Republic of Latvia "On the Results of March 3, 1991
Opinion Poll of the Residents of the Republic of Latvia", out of 1 902 802
inhabitants, included in the opinion poll lists, 1 666 128 persons (87,56%)
took part in it. They had to give an answer to the question "Are you for a
democratic and independent state of Latvia"? 1 227 562 (73,68% of those
taking part) voted for the answer "yes", thus confirming that the
absolute majority of the inhabitants of the Republic of Latvia supported
establishment of the state system in which democracy and national independence
are mutually and inseparably connected.
When adopting Chapter 8 of the Satversme, the Saeima
consequently and consistently developed the idea of the democratic state, which
had been enclosed in the foundation of formation and renewal of the State of
Latvia. When interpreting the norms, incorporated in Chapter 8 of the
Satversme, contradistinction of the above norms to basic democratic values
included in Article 1 of the Satversme is not admissible.
The common trend of practice of the European Court of
Human Rights, in conformity with which democracy means pluralism, tolerance and
difference of opinion (see the Judgment of the European Court of Human Rights
in Dudgeon case /1981/), has not been taken into consideration. Democratic
society cannot exist without pluralism, tolerance and difference of opinion. It
means that proportionality of the legitimate aim shall be determined to every
"formality", "circumstance", "restriction" or
"punishment", which is applied in a case (see the Judgment of the
European Court of Human Rights in Handyside case /1976/). Besides only
restrictions needed in a democratic society shall be regarded as proportional.
And the adjective "needed" in this case is not a synonym to the word
"binding". Neither has it the flexible variation possibilities of
such words as "admissible", "reasonable" or
"preferable". The word rather means "an urgent social need"
(see the Judgment of the European Court of the Human Rights in Barthold case
/1985/).
The necessity of the particular restrictions,
mentioned in the Judgment of the Constitutional Court, has not been adaptably
evaluated with regard to the democratic society. Besides the component
"socially needed" has not been evaluated at all.
In a democratic society only restrictions, which
comply with the principles of a law – based state, may be regarded as socially
needed. They are to be estimated taking into consideration the particular
historical and political system. However, imperfections in the development of
democracy, pointed out by the Saeima representative at the Court session,
cannot serve as the basis to deviate from the principles of a law – based
state. New democracies, also Latvia, may not regard the present stage of
development of democracy in the state as an absolute criterion. They should
orient themselves to the standards of democracy of the developed Western
states. Groundless restrictions of the human rights do not strengthen democracy
but weaken it. No state should orient itself to the existing situation as
self-sufficient, but take into consideration the experience of member states of
the European Council.
As concerns Items 6 of the disputable Articles, the
fact that they refer only to the activity of persons during the period from
January 13, 1991 to September 1991 has not been disclosed in the Judgment.
Persons, who have been active in the organisations, mentioned in Items 6 of the
disputable Articles after that time, in accordance with the procedure
anticipated by law, should be criminally liable. If in compliance with the
court decision their activity is considered to be criminal, the above persons in
compliance with Article 5 (Items 2 or 3) of the Saeima Election Law or Article
9 (Items 1 or 3) of the Local Dome Election law lose the passive election
rights.
The fact, that, when adopting Article 101 of the
Satversme in the third reading, the Saeima has replaced the criterion
"full rights" with the condition "in the manner prescribed by
law", does not indicate that when interpreting Article 101 of the
Satversme one should not take into account Article 1 of the Satversme and other
constitutional norms, first of all Articles 2, 9, 89 and 91. Thus the manner of
implementation of rights incorporated in Article 101 of the Satversme, which is
determined by law should be in compliance with the principles of a democratic
state, resulting from Article 1 of the Satversme, international liabilities
undertaken by Latvia and Article 91 of the Satversme, determining that
"human rights shall be implemented without any discrimination".
The
decision that the notion shall be determined in the Satversme was adopted with
an insignificant majority of votes. At that time it was connected with the
conviction about the understanding of the then elected representatives on
values of the democratic state and the notion and objective of Article 9 of the
Satversme. On October 11, 1921 at the session of the Constituent Assembly the
deputy Arveds Bergs remarked that "every full – fledged Latvian citizen
has the right to elections. It is the principle, which could have only a few
restrictions. And to incorporate other restrictions on the basis of the above
is not allowed. It would not be in compliance with the spirit of the
Constitution and no Saeima would want to violate the spirit of the
Constitution" (Verbatim reports of the Constituent Assembly of Latvia,
Riga, 1921, booklet 17, page 1576).
The
objective of Article 9 of the Satversme is to ensure as much as possible the
right to elections to all the citizens of Latvia. The notion of the word
"full – fledged" of the Article permits only "some
restrictions", which are in conformity with the "spirit of the
Constitution". An analogous conclusion – reference to the viewpoint of the
Saeima representative – has been expressed also in the Judgment. He pointed out
that restrictions of the right to vote are exceptions from the principle and
should be interpreted in the narrow sense. However, contrary to the above,
disproportionately extensive restrictions have been considered to be
admissible.
Besides,
when interpreting the notion "full – fledged", included in Article 9
of the Satversme, one should also take into consideration the Law on the Saeima
Elections, adopted on June 9, 1922. It incorporated the norms, which were
elaborated for the Satversme draft but had not been included in it. The law determined
that "the right to vote shall not be given to persons, who, in the manner
prescribed by law, have been declared imbecile or persons who are under
guardianship", but Article 3 envisaged that the following persons
"lose their right to vote:
When
discussing the Saeima Election Law, the scientist of the Latvia State Rights
Kārlis Dišlers has stressed that ”the citizens lose their political rights
on the basis of the court decision in four cases, envisaged in Article 3 of the
Election Law. The general principle is that the rights are not forfeited
forever, but only for a certain time."(Dišlers K. Introduction into the
State Rights of Latvia. Riga, 1930, page 94).
Thus,
in compliance with the understanding of the Constituent Assembly on Article 9
of the Satversme, restriction of the right to vote in cases, which are not
connected with a person being under guardianship, is permissible only for a
certain period. The Judgment also states that restrictions of the passive
election rights may exist only for a certain time. However, the decision on
incompatibility of the disputable norms with the Satversme does not follow.
One
should also take into consideration the fact that the Constituent Assembly
adopted the Saeima Election Law only not much more than three years after
proclamation of Latvia as an independent state. It was not only the period
after break – down of the Russian empire and the Civil War, but also after a
period during which side by side with the government of the democratic Latvian
state the government of the Latvian Socialist Soviet Republic was functioning.
However the Constituent Assembly did not consider it necessary to connect the
right to vote with being in one or another position of the previous regime or
during the fighting for freedom. Besides, the norms, included in 1919
Constituent Assembly Election Law adopted by the Nation Council, were
analogous.
There
is no reason to hold that under the present circumstances- ten years after the
renewal of the Independence of Latvia, at the time when Latvia is a
full-fledged member of the UNO, a member – state of the European Council and OSCE,
has started talks on joining the European Union and strives to join the NATO –
the democratic system, national security and territorial unity of Latvia are
more endangered than during the first years after establishment of the state of
Latvia or renewal of the independence of the State of Latvia.
The members of the Constituent Assembly, when
elaborating the draft of the Satversme repeatedly, have referred to the
experience of the democratic states of that time, thus confirming the organic
link of the system to be organised in Latvia with other progressive states.
The deputies of the Supreme Council of Latvia made use
of analogous method of approach when renewing the State of Latvia de facto
and the authority of its Satversme. There is no reason to hold that the notion
of democracy, incorporated in Article 1 of the Satversme, shall be interpreted
separately from the understanding most democratic states have. Quite to the
contrary, it shall be interpreted in compliance with the contents ascertained
by the experience of democratic states.
When starting its talks about joining the European
Union, Latvia has undertaken the obligation to observe the interpretation of
legal norms, acknowledged by democratic states. To observe regulations
expressed in Articles 69 and 70 of the June 12, 1995 Latvia- European Union
Association Treaty, Latvia shall not only approximate the texts of its
normative acts with the texts of legal norms of the European Union, but also
adopt the Western legal theory, namely, the legal thinking. Only then the
legislation, approximated on the content level, will function in the same way
as in the European Union. Unified legal understanding in the European tradition
and legal manner is one of the preconditions of functioning of the European
Union. (see Levits E. Approximation of the Latvian and European Union Legal
Systems and Implementation of principles of A Law-Based State// Latvian and the
European Union, 1997, No.6, pages 30 – 45).
On February 2, 1995 by passing the Law "On the
Statute of the European Council" the Saeima adopted and confirmed the
above statute. Therefore the objective, expressed in Item "a" of the
first Paragraph of the Statute of the European Council – to achieve greater
unity between the members of the European Council "to ensure and implement
those ideals and principles, which form the collective heritage of the states
and favour their economic and social progress" is binding on Latvia. In
conformity with Item "b" of the first Paragraph of the above statute,
this objective shall be realised "with the help of institutions of the
Council, by giving consideration to issues, important to all the members, by concluding
agreements and co-operating in economic, social cultural, scientific,
legislative and administrative sectors as well as by maintenance and further
implementation of human rights and fundamental freedoms". In its turn, in
compliance with the third Paragraph of the Statute of the European Council,
Latvia has taken upon itself to accept the principles "which under
legislature of the Council members ensure legality and possibility of all
persons to fully enjoy the human rights and fundamental freedoms" and to
honestly and efficiently co-operate in implementing the above objective.
At the beginning of the nineties issues, connected
with overcoming the consequences of the totalitarian regime and transition to
the democratic state, have been solved in most post-socialist states, included
in the European Council. The Judgment rightfully informs that the above
experience has been summed up in Resolution No.1096 (1996) of the Parliamentary
Assembly of the Council of Europe " On Measures to Dismantle the Heritage
of Former Communist Totalitarian Systems".
Although the viewpoint expressed in resolutions and
documents of the Parliamentary Assembly of the European Council and its
committees is only a recommendatory one and not binding on Latvia, the above
commitments, undertaken by Latvia when confirming the Statute of the European
Council should be taken into consideration. Besides, the viewpoint, expressed
by the Parliamentary Assembly of the European Council and its committees, is
based on extensive and analytical conclusion of the experience of the member
states. Thus, the documents may be used as a supplementary source of the
rights, when interpreting the notion of democracy and legal principles,
resulting from it, incorporated in Article 1 of the Satversme. Other
Constitutional Courts also make use of the documents when interpreting the
Constitution of their states (see November 10, 1998 Decision of the Polish
Constitutional Tribunal in case No. K 39/97).
5.1. The content of the above Resolution has been
mentioned in the Constitutional Court Judgment, without revealing the whole
viewpoint, expressed in it. With regard to the disputable norms one should take
into consideration not only the necessity to liquidate the heritage of the
former regime and avert its "velvety" renewal but also the fact that
a democratic law – based state "when dismantling the heritage of the
former communist regime, shall apply the procedure of a democratic state. Other
measures are worthless because then the state system will not be better than the
totalitarian regime, which is to be liquidated." Besides the Parliamentary
Assembly has stressed that "the restrictions are conformable with the
principles of the democratic state if certain conditions are observed."
The above conditions are formulated in the Document of the Legal and Human
Rights Committee of the European Council No.7568 "On Ensurance of
Compliance of Lustration Laws and Administrative Measures with the Requirements
of a Law – Based State." The Judgment considers this document incompletely.
It criticises the condition on the term of five years, not taking into
consideration much more important and fundamental conditions: inadmissibility
of applying lustration to elected institutions, inadmissibility of collective
responsibility and the necessity of guaranteeing fair advocacy.
5.2. The above document of the Legal and Human Rights
Committee of the European Council stresses that "lustration shall not be
applied to elected institutions if the candidate himself/herself does not
demand it, as the voters have the right to elect persons they wish to elect
(election rights may be deprived only to a sentenced criminal on the basis of a
court decision – it is not an administrative but a criminal measure)".
This recommendation can be related to the viewpoint of the founders of the
State of Latvia and the authors of the Satversme, who under similar
circumstances did not include in the Election Law of the Constituent Assembly
and the Saeima Election Law any restrictions with regard to officials of the
former regime or persons who had actively fought against formation and
existence of a democratic, independent Latvia.
Reference to the practice of the Federal
Constitutional Court of GFR in the Judgment has been made without going into
the heart of the matter and in an isolated from the context manner. The
quotation "He, who has spied on and oppressed his own people, who has
deceived, betrayed and cheated or who is responsible for it all, shall have no
place in the Bundestag even if one cannot deprive him of his mandate" is
not the viewpoint of the Court but just a fragment from the speech of the
Bundestag deputy Wiefelspütz, which was included in the Decision to illustrate
the objective of the respective norm- self-purification of the Parliament.
There does not exist a prohibition to elect the employees or agents of the
former Security institutions of the German Democratic Republic in the Bundestag
of the German Democratic Republic. When reviewing the case, quoted in the
Constitutional Court Judgment, the Federal Constitutional Court of the GFR
reached the decision on compliance of the procedure determined by the Bundestag
to establish whether a Bundestag member has co–operated with the above
institutions of the GDR with the Fundamental Law. The Court also made the decision
on conformity of the probation procedure with the Fundamental Law. The
probation resulted neither in losing the mandate of the deputy nor in
prohibition to be nominated as a candidate in the next elections. If it is
established that the person had co-operated with the security institutions of
the GDR, the deputy himself/herself on his/her conscience decides whether to
continue his activities at the Bundestag and voters make the decision on work
of the deputy at the next convocation of the Bundestag.
Items
6 of the disputable Articles determine restriction to all the persons who had
been engaged in the enumerated organisations, without evaluating if the
activity of every particular person had been directed against the Republic of
Latvia and how the detriment was expressed. It is rightfully stressed in the
Judgment that "Only formal membership to the above organisations cannot
serve as the reason for forbidding a person to be included in the candidate
list and being elected in the Saeima." However, it is incorrect to state
that "the legislator has connected restrictions with the degree of
individual responsibility of every person in realisation of the aims and
programme of these organisations. And the restriction to be elected into the
Saeima or local authority, included in the disputable norms, is connected with
the activities of every concrete person in the respective socio – political
organisations."
Well–grounded
is the viewpoint of the applicant that traits of collective responsibility are
felt in Items 6 of the disputable Articles. And even though the fact has been
disclosed at the Court, it does not mean that the right of a person to just
legal proceedings has been duly implemented. The person was not given the
possibility of expressing explanations about essence of his/her activities and
the court did not have the possibility of evaluating the extenuating
circumstances with respect to the above activity.
5.4.
The Judgment quotes the recommendation of the Legal and Human Rights Committee:
"Disqualification, resulting from the lustration process, shall not exceed
the period of five years, as one need not underestimate the possibility of
positive changes in people’s attitude and habits. It would be desirable to
complete the lustration process to December 31, 1999, as up to that time the
democratic system in the former communist totalitarian states should be
stable." In this connection it is pointed out in the Judgment that the
socio political situation of every state should be estimated individually. However,
no motivation is given as to why the democratic system in Latvia should be
considered as so very unstable that persons, who were against the independence
in Latvia almost ten years ago could endanger it.
No
motivation about the fact why the legislator precludes the possibility of
positive changes in people’s (who are mentioned in the disputable norms)
attitude and habits just in Latvia has been included in the Judgment.
Pursuant to the comment of the UNO High Human Rights
Commissioner, accepted on November 10, 1989 at the 37th session of
the UNO Human Rights Committee "the Committee holds that the term
"discrimination" used in the Covenant should be applied to every
distinction, exception, limitation or advantage connected on any ground such as
race, colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status, the aim or result of which is
prohibition or worsening of enjoyment of any right or freedom to any of persons
under the same circumstances."
This aspect has been neither analysed nor evaluated in
the Judgment, besides, no motivation is given to the viewpoint that the passive
election rights of the persons, mentioned in the disputable norms have to be
limited.
Even though Article 3 of the First Protocol of the
Convention does not directly refer to the elections of the Dome (Council) of
municipalities, one should take into consideration that the procedure and
criteria envisaged for realisation of rights to elect the legislator – the
Parliament – are interconnected with the procedure of electing the Dome
(Council) of municipalities. If the peculiarities of electing the Dome
(Council) of municipality do not envisage it otherwise, limitations, considered
as well – grounded or groundless with regard to the elections of the
Parliament, should be also considered as such with regard to the Dome (Council)
of municipalities elections. Besides, in compliance with the Law "On the
Accession to the October 15, 1985 European Charter of Local Self –
Governments" and the second part of Article 3 of the above Charter, Latvia
has undertaken the liability to ensure that the rights, determined by the
Charter "shall be realised by Council or representative meetings, whose
members are freely elected by secret ballot on the basis of equal, general and
genuine election rights". Thus, even though Article 3 of the First
Protocol of the Convention does not refer just to the elections of the Dome
(Council) of the municipality, compliance of this Law with Article 14 of the
Convention can be seen. In its turn, the compliance of the Saeima Election Law
with Article 14 of the Convention shall be evaluated together with compliance of
the Law with Article 3 of the First Protocol of the Convention.
The logical development of the Convention i.e.
development of norms, incorporated in Article 14 in Protocol 12 of the
Convention, the project of which has been accepted at the Committee of Ministers
of the European Council and will be signed in Rome in November, 2000 should be
taken into consideration as well. Article 1 of this Protocol envisages general
prohibition of discrimination, i.e. prohibition of discrimination independently
from rights and freedoms, established in the Convention and its Protocols.
It is stated in the Judgment that "the aim of the
restrictions of the passive election rights is to protect the democratic state
system, national security and the territorial integrity of Latvia".
However, no explanations to the contents of the notions is given and it has not
been proved that by electing the persons, mentioned in the disputed norms, in
the Saeima or the Dome (Council) of municipalities, the mentioned values would
be threatened.
Protection of the democratic state system is one of
the legitimate aims of restrictions, mentioned in Article 116 of the Satversme,
as human rights shall not be used against the democratic state system as such.
In compliance with the principle of self – protecting democracy, the democratic
state system shall be protected from attempts to liquidate it or hinder its
functioning faculties.
However, neither at the Court session nor in the
Judgment a statement was expressed in what way the persons, mentioned in the
disputable norms, if they were elected in the Saeima or the Dome (Council) of
the municipality could endanger the state democracy. It was also not proved
that the above persons had any possibility of endangering democracy at this
moment- ten years after adoption of the Declaration "On Renewal of the
Independence of the Republic of Latvia" and nine years after de facto
renewal of the state.
Besides, persons, who had been active in the
organisations, mentioned in Article 6, had experienced the right of being
elected in the Saeima. Many of persons to whom the restrictions are applied had
been elected in the 5th Saeima, as the Law "On the Elections to
the 5th Saeima" did not include analogous restrictions. It does
not matter whether the motion to include analogous restrictions in the Law
"On the Elections to the 5th Saeima" had been expressed in
the Supreme Council. The Constitutional Court should not review the fact what
deputies voted against those restrictions and why. Essential is only the fact
that the particular restrictions were not included in the Law. The wording of
the Law "On the Elections of the City Dome, District Dome and Rural
Councils", which was effective during the 1994 municipal elections, also
did not contain analogous restrictions. Many persons, who in compliance with
Items 6 of the disputable Articles are denied the passive election rights at
the present moment, were engaged in the activities of the 5th Saeima
and the Domes (Councils), elected in 1994, without causing threat to the state
and public security. There are no references in the Judgment about
circumstances, which have changed in such a way that the above persons, whose
activity in the 5th Saeima or Dome (Councils) of municipalities did
not threaten the state security, would cause danger if they were the Saeima or
Dome deputies.
Content of the legitimate aim "public
security" is extensive and includes also the territorial integrity of
Latvia, which is mentioned in the Judgment as one of the objectives of the
restrictions. "Public security" – that means ensurance of the
interests of the society. In a democratic state this notion means protection of
life, liberty, health, honour and possessions of a person.
The text of the Judgment does not state the means and
ways of the potential threat to the public security. At the Court session the
Saeima representative named just the public security (interests of national
security and territorial integrity of Latvia) as the main legitimate aim of
determining the restrictions, incorporated in the disputable norms. However, he
did not explain the content of it. It is not enough to name the legitimate aim
without explaining how and by what means the persons, mentioned in the
disputable norms, are able to threaten the public interests (life, liberty,
health, honour and possessions).
Necessity to protect the democratic state system from
"persons, who are ethically not qualified to become the representatives of
a democratic state on the political or administrative level" has been
named as the legitimate aim. The Saeima representative substantivated the
objective by making references to two cases reviewed at the European Court of
Human Rights. His reference is groundless as both cases had been connected with
restrictions of rights of civil service officials – the teacher and the
policeman (see Decisions of the European Court of Human Rights in cases Vogt
v. Germany, 1995 and Rekvenyi v. Hungary, 1999). Restrictions with regard
to officials – i.e. persons, who are appointed and not elected – established by
the legislator of a democratic state may be more extensive than those,
referring to persons, elected in direct elections.
Groundlessly referring to the publication by N.Horn
"Introduction into the Legal Science and Philosophy of Rights", it is
stated in the Judgment that "rights should be ethical". The Chapter
of the above publication, to which reference has been made, discusses the role
of religion and its problems in the society. Thus its ideas should not be
attributed to restrictions of rights because of ethical aims.
Very often standards of morals are much broader than
the ones determined by norms. "With the help of determined norms, the
rights may implement only a limited part of the norms of morality. And
in the name of freedom of the person, they leave quite a great part of
the norms of morality unregulated." (see Horn N. Introduction into the
Legal Science and the Philosophy of Rights// The Law and the Rights, 2000,
Volume 2, No.2, page 47). Agreeing that the state and the society cannot
exist without universally recognised norms of ethics (morality); it should be
stressed that the norms may not be used to deprive the persons, mentioned in
the disputable norms, from the passive election rights.
It is difficult to incorporate new social and ethical
norms into the juridical normative form. If the normative protection is
exaggerated, it may become undemocratic. As concerns members of elected
institutions, the voter should make a decision on whether the candidate meets
the ethical requirements. Certainly, the voters should have enough information
on activities of the candidate in the organisations, mentioned in the
disputable norms. Besides, the Latvian election system ensures the possibility
of the voters to express their individual attitude to every candidate of the
list they are voting for. Thus, the voters themselves may decide whether the
candidate meets their ethical requirements.
The
viewpoint, expressed in the Judgment, that there is no reason to doubt the
proportionality of the applied measure and the aim, has not been proved. It is
not in conformity with the approach of a law – based state to issues on
restrictions of human rights. Both, the legislator and the Constitutional Court
had to evaluate if proportionality had been observed and whether the
restrictions were socially necessary in the democratic society. Besides it had
to be proved that restrictions to the criteria were in compliance also at the
moment of declaring the Judgment – that is ten years after the Declaration
"On the Renewal of the Independence of the Republic of Latvia" was
adopted.
The
restrictions are proportionate only if they not only serve in achieving the aim
but also are necessary to achieve it. Benefit, gained by the society, when
determining the restrictions to human rights, should be greater than loss
inflicted to interests of an individual. In the Judgment it is not taken into
consideration that the passive election rights to the persons, mentioned in the
disputable norms, have been restricted so far that in fact the above persons do
not enjoy the right at all.
Restrictions
of the fundamental rights are proportionate only then if there are no other
means, which are as effective, but – when choosing – the fundamental rights are
much less limited (see Handbuch des Verfassungsrechts der Bundesrepublik
Deutschland, Berlin, 1995, S.155). To achieve the benefit the society could
gain from the restrictions included in the disputable norms, the legislator had
the possibility of using other "softer" forms, e.g. to apply the
restrictions of the passive election rights only to those persons who in the
established time had not declared their membership to the organisations,
mentioned in the disputable norms. Thus, the restrictions, incorporated in the
disputable norms are not in compliance with the principle of proportionality.
In
a democratic society the restrictions of the human rights are socially
necessary only if without the restrictions the public interests on the whole
could be violated. If the voters are informed about the connection of the
deputy candidates with the organisations, mentioned in the disputable norms,
the interests of the society are not violated, as, on the one hand, the
persons, mentioned in the disputable norms have the right of running for the Saeima
and local authority Dome (Council), but, on the other hand, the voter has the
right to choose whether to trust the above persons. The final choice is in the
hands of the voter. In a democratic state any voter should be trusted to choose
and evaluate the candidates.
The
Judgment does not prove that there exists a necessity to determine restrictions
of the passive election rights to the persons, mentioned in the disputable
norms. To speak of the necessity of determining human rights restrictions,
suspicions, that the person might endanger the public security, should be
substantiated with facts.
Thus,
it is not proved in the Judgment that the restrictions of human rights,
established in the disputable norms are necessary in a democratic society.
Taking
into consideration the above, we, the justices of the Consstitutional Court,
A.Endziņš, J.Jelāgins and A.Ušacka disagree with the viewpoint,
expressed in the Judgment, that Items 5 and 6 of Article 5 of the Saeima
Election Law and Items 5 and 6 of Article 9 of the City Dome, Region Dome and
Rural Council Election Law comply with Articles 89 and 101 of the Satversme,
Article 14 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms, Article 3 of the First protocol of this Convention as
well as Article 25 of the International Covenant on Civil and Political Rights.
Riga,
September 4, 2000.
Justice
of the Constitutional Court A.Endziņš
Justice
of the Constitutional Court J.Jelāgins
Justice
of the Constitutional Court A.Ušacka