The norm on initiating a disciplinary case against a judge and on the accessibility of the disciplinary case materials complies with the Satversme
On 12 November 2015 the Constitutional Court passed the judgement in Case No. 2015-06-01 “On Compliance of Section 116 (1) of the Judicial Disciplinary Liability Law with Article 100 of the Satversme of the Republic of Latvia.”
Retaining the authority of the judicial power is in the interests of society as a whole
The Contested Norm
Section 116 (1) of the Judicial Disciplinary Liability Law provides: “Until the moment when the decision of the Judicial Disciplinary Board in a disciplinary case has entered into force, the decisions on initiating a disciplinary case and the materials of the disciplinary case shall be accessible only to those persons, who have been granted such right by this Law.”
The Norm of Higher Legal Force
Article 100 of the Satversme: “Everyone has the right to freedom of expression, which includes the right to freely receive, keep and distribute information and to express his or her views. Censorship is prohibited.”
The Constitutional Court, in view of the legal reasoning included in the application, examined the compliance of the restriction included in the contested norm to freely receive information, i.e., the compatibility of the norm with the first sentence of Article 100 of the Satversme. [10.]
The Facts
The case has been initiated with regard to the application submitted by the Department of Administrative Cases of the Supreme Court. The Department of Administrative Cases is examining a case that has been initiated on the basis of a judge’s application requesting to recognise as invalid a decision by the Ministry of Justice and to compensate for moral damage. The Administrative Regional Court identified in this case unlawful action by the Ministry of Justice in disclosing information about a disciplinary case against a judge that had been initiated, but had not yet been reviewed. The applicant, in examining the aforementioned case, found that the contested norm was incompatible with Article 100 of the Satversme; i.e., the right to freely receive information, since society was entitled to receive information about the activities of courts; inter alia, also information about possible disciplinary violations committed by judges.
The applicant notes that the restriction that the contested norm comprises has been established by law and has a legitimate aim. I.e., the restriction allegedly protects a judge and the judicial power against unfounded injury to reputation, thus safeguarding the authority of the judicial power.
However, it is alleged that the contested norm does not envisage any mechanisms or principles with regard to when information about a disciplinary case should or should not be disclosed to society. Thus, it is alleged that the aim of the restriction included in the contested norm is not reached and the restriction is incompatible with the principle of proportionality.
Court Findings and Rulings
On the right to freely receive information
The Constitutional Court noted that the rights of all persons to receive information on the activities of the judicial power fell within the scope of the first sentence in Article 100 of the Satversme. [11.2.] Information on the activities of the judicial power must be recognised as being information in the interests of society. [11.1.] Information about the activities of the judicial power must be understood not only as the information about the structure of the system of courts or cases to be heard by courts, but also information about disciplinary cases against judges. [11.2.]
The Constitutional Court also underscored that in a democratic society every person should have the right to freely receive information about the activities of the judicial power. This right should be established in legal acts. Likewise, legal acts should provide for the procedure in which this right is exercised. [11.1.]
On the restriction upon fundamental rights included in the contested norm
The Constitutional Court concluded that the contested norm restricted a person’s right to receive information about initiation of a disciplinary case and disciplinary case materials, as well as judge’s data that it comprises. This restriction applies to the time period starting from the initiation of the disciplinary case until the moment when the final decision in the disciplinary case enters into force. Thus, the contested norm restricts the right established in the first sentence of Article 100 of the Satversme to receive information on the activities of the judicial power. [12.2., 12.3.]
The Constitutional Court drew attention to the fact that the right to freely receive information was not absolute, i.e., it could be restricted, if the restriction had been established by law and it had a legitimate aim, and if the restriction was commensurate with its legitimate aim. [13., 14.]
On the legitimate aim of the restriction and whether the restriction has been established by law
The Constitutional Court recognised that the restriction upon fundamental rights had been established by law, adopted and promulgated in due procedure. [15.]
The contested norm protects a judge from unfounded accusations during the period when the disciplinary case has been initiated, but has not been reviewed yet. This is a way to protect the independence of a judge and to maintain the authority of the judicial power. Until the final decision is adopted, the decision on initiating a disciplinary case and the materials of the disciplinary case are not accessible. The materials of disciplinary case may comprise information on concrete cases that the judge is reviewing, on the private life of parties thereof, commercial secrets and other data that must be protected. Thus, the rights of other persons – parties to the cases reviewed by the concrete judge – are being protected. Hence, the legitimate aim of the restriction is protection of the democratic structure of the state and other persons’ rights. [16.1., 16.2.]
On the criteria for assessing the proportionality of the restriction upon fundamental rights
In assessing, whether the restriction upon fundamental rights complies with the principle of proportionality, the Constitutional Court verifies, whether,
first, the measures applied by the legislator are appropriate for reaching the legitimate aim;
secondly, whether such action is necessary; i.e., whether the aim cannot be reached by other measures, less restrictive upon the rights and lawful interests of an individual;
thirdly, whether the legislator’s actions are commensurate or appropriate; i.e., whether the benefit gained by society exceeds the restriction imposed upon an individual’s rights and lawful interests. [17.]
On the suitability of the measures applied by the legislator for reaching the legitimate aim
The Constitutional Court recognised that the contested norm prevents the probability that information that has not been thoroughly verified regarding a possible disciplinary violation committed by a judge might influence a judge in some legal proceedings and might decrease the authority of the judicial power. Likewise, possible violations of the parties’ to the proceedings right to private life are prevented. [18.]
Therefore, the measures used by the legislator are suitable for reaching the legitimate aim of the restriction. [18.]
On the necessity of the legislator’s action
The restriction established by the contested norm is necessary if no other measures exist that would be as effective and the choice of which would result in lesser restrictions upon persons’ fundamental rights. However, a more lenient measure is not any other measure, but a measure that allows reaching the legitimate aim in at least the same quality. [19.]
The restriction has been established both to safeguard the independence of every judge, as well as to preserve the authority of the judicial power as a united institution. [19.1.] It is in force only and solely during the period before the final decision in a disciplinary case has entered into force, i.e., during the period when a comprehensive review of facts and materials in the disciplinary case is conducted and the judge’s actions are evaluated. Initiation of a disciplinary case does not automatically mean that a judge has committed a disciplinary violation. Therefore the legitimate aim of the restriction included in the contested norm would not be reached if everybody could obtain the decision on initiating a disciplinary case and the materials of the disciplinary case before the final decision in the disciplinary case had entered into force. [19.2.]
Thus, the Constitutional Court concluded that the legitimate aim of the restriction upon fundamental rights could not be reached by other measures, less restrictive upon a person’s rights and lawful interests. [19.2.]
On the proportionality of the legislator’s action
The Constitutional Court holds that a person’s right to receive information about the activities of the judicial power, inter alia, also information on disciplinary cases against judges, is important to ensure society’s trust in the judicial power in general. It is the final decision adopted in a disciplinary case and not the decision on initiating this case, or the materials in the case that should ensure certainty that every judge, who has committed a disciplinary violation, will be made liable, as envisaged. Therefore this final decision should be accessible to everybody. Whereas until the final decision is adopted in a disciplinary case, protection of the judge’s independence and the authority of the judicial power should be reinforced. Information on a possible violation by a judge that had not been fully verified could create doubts regarding the judge’s objectivity or competence. Thus, the authority of the judicial power would be subject to the risk of being under threat. [20.]
The Constitutional Court noted that retaining the authority of the judicial power is in the interests of the society as a whole. The benefit that society gains from retaining the authority of the judicial power in the period when a disciplinary case is heard exceeds the damage inflicted upon an individual by restricting his or her right to receive unverified information about a possible disciplinary violation committed by a judge. [20.]
The Constitutional Court concluded that the restriction upon fundamental rights that the contested norm comprised complied with the principle of proportionality. [20.]
Therefore the Constitutional Court recognised the contested norm as being compatible with the first sentence in Article 100 of the Satversme.
The judgement by the Constitutional Court is final and not subject to appeal. The judgement enters into force on the day of its publication in the official journal “Latvijas Vēstnesis”.
Linked case: 2015-06-01