The norms, which prohibit a member of the Saeima, against whom criminal prosecution has been commenced, from participating in the work of the Saeima and receiving remuneration in full amount, are incompatible with the Satversme
On 23 December 2019, the Constitutional Court passed the judgement in case No. 2019‑08‑01 “On Compliance of the Second Part of Article 17 and Article 19 of the Rules of Procedure of the Saeima with the Second Sentence of Article 92 and the First Sentence of Article 101 of the Satversme of the Republic of Latvia”.
The Contested Norms
The second part of Article 17 of the Rules of Procedure of the Saeima:
“If the Saeima agrees that criminal prosecution of a Saeima Member be initiated, the respective Saeima Member shall lose the right to participate in the sittings of the Saeima, meetings of its committees and other institutions to which this Member has been elected or appointed by the Saeima until the charges are dismissed or until the court sentence enters into force. During this time the Prosecutor’s Office and the court have the right to apply any of the coercive measures applicable under the criminal procedure laws.”
Article 19 of the Rules of Procedure of the Saeima:
“If a Member has been suspended from participating in the work of the Saeima on the basis of Article 17 of this Law, he/she shall lose entitlement to the reimbursement prescribed in Article 14, and his/her monthly salary shall be reduced by 50 %. If arrest as a security measure has been applied to a Member, the payment of his/her monthly salary shall be suspended for the period of arrest as well. If the case in a criminal matter has been dismissed and if the Member has been found not guilty or has been acquitted, he/she shall receive the full amount of monthly salary and relevant reimbursement not paid to him/her during the time of his/her suspension from office.”
The Norms of Higher Legal Force
Article 5 of the Satversme of the Republic of Latvia (hereinafter – the Satversme): “The Saeima shall be composed of one hundred representatives of the people.”
The second sentence of Article 92 of the Satversme: “Everyone shall be presumed innocent until his or her guilt has been established in accordance with law.”
The first sentence of Article 101 of the Satversme: “Every citizen of Latvia has the right, as provided for by law, to participate in the work of the State and of local government, and to hold a position in the civil service.”
The Facts
Juris Jurašs, member of the Saeima (hereafter – the Applicant) turned to the Constitutional Court. By the decision of 31 January 2019, the Saeima agreed that criminal prosecution was commenced against him. Hence, as of that moment, the restriction established in the contested norms denied him the right to participate in the work of the Saeima and the right to receive remuneration for working in the Saeima in full. The applicant holds that, thus, the presumption of innocence had been violated and his right to participate in the work of the State, guaranteed in the Satversme, had been disproportionally restricted.
The Court’s Findings
On the limits of the claim
The Constitutional Court found that the second sentence of the second part of Article 17 and the second and the third sentence of Article 19 of the Rules of the Procedure of the Saeima had not been applied to the Applicant and also did not cause direct, inevitable infringement. Therefore, the Court terminated legal proceedings in the case in the part regarding compliance of these norms with the Satversme. [7.]
Hence, in the present case, the Constitutional Court reviewed the constitutionality of the first sentence of the second part of Article 17 and the first sentence of Article 19 of the Rules of Procedure of the Saeima (hereafter – the contested norms). [7.]
On the scope of the first sentence of Article 101 and Article 5 of the Satversme
The Constitutional Court recognised that Article 101 of the Satversme envisaged not only a person’s right to participate in the election of the Saeima but also, in case of being elected, to perform the office of a member of the Saeima without any interference whatsoever in performing the functions of this office, which would be contrary to the general legal principles and the rights established in the Satversme. [10.]
It follows from Article 5 of the Satversme that the status of a deputy is characterised by the mandate of free representation. The main purpose of the mandate of free representation is to protect the deputy against external influence and allow the State’s decisions in the Saeima to develop autonomously. Several rights of a member of the Saeima follow from the principle of the mandate of free representation. The right to participate in the work of the Saeima – in the sittings of the Saeima and its committees, speaking and voting there, as well as to act on behalf of the Saeima in those institutions, to which the Saeima has elected or appointed the deputy, and, finally, to receive remuneration for the performance of his duties, are part of the rights vested in the office of a deputy. [11.]
In exercising the rights granted to the position of the member of the Saeima and exercising his official authorisation, the deputy of the Saeima performs functions of public law and does not act in the status of a private person. However, the members of the Saeima enjoy also the fundamental rights, which, in some cases, may overlap with the official authorisation. Hence, the Constitutional Court recognised that restrictions on the official rights of the deputy should be examined in interconnection of Article 101 and Article 5 of the Satversme. [11.–12.]
On the restriction on the first sentence of Article 101 and Article 5 of the Satversme
Although the contested norms do not provide that the member of the Saeima, after the Saeima has consented to commencement of criminal prosecution against him, loses his office, the member of the Saeima, nevertheless, is denied the most significant rights that are linked to his participation in the work of the Saeima; i.e., the right to participate in the sittings of the Saeima and its committees, exercising his right to vote. Thus, the respective member of the Saeima has the right to perform a deputy’s functions, however, in a significantly reduced scope. The Constitutional Court found that the contested norms established significant restrictions on the deputy’s official rights, were closely connected and should be examined in their interconnection. [13.]
The Constitutional Court noted: the Saeima has the right to establish such internal regulation on its work, inter alia, restrictions for the members of the Saeima, which ensures best of all affective functioning of the Saeima; however, restrictions on a deputy’s right must comply with the general principles of law, in particular, with the principle of proportionality, and other norms of the Satversme. [14.]
On compliance with the first sentence of Article 101 and Article 5 of the Satversme
The Constitutional Court found that the restriction included in the contested norms had a legitimate aim – protecting the order of a democratic state governed by the rule of law. [16.] The restriction included in the restricted norms decreases the possible impact by the respective deputy on the legislative process and, thus, is appropriate for reaching the legitimate aim. [17] Neither did the Constitutional Court found that there were more lenient measures for reaching the legitimate aim of the restriction on rights established in the contested norms – protecting a democratic state governed by the rule of law. [18.]
At the same time, the Constitutional Court found that the contested norms, although did not provided that a member of the Saeima, against who criminal prosecution had commenced, lost his office, they, nevertheless, denied this member of the Saeima the most essential rights that were related to participation in the very legislative process; i.e., the right to participate in the sittings of the Saeima and its committees, exercising his right to vote. [19.]
The Constitutional Court noted that the parliament had an essential role in the political debates of democracy. Members of the parliament, in performing their duties of office, represent electors, draw attention to issues relevant for them and protect their interests. Thus, exercising the deputy’s rights facilitates effective functioning of democracy – legitimisation of the legislator and plurality of views in the composition of the parliament in accordance with the will expressed by the sovereign. The free mandate envisages that the deputy’s rights are exercised not only independently from external influence but also from the influence of other members of the parliament. Moreover, the Constitutional Court took into account that Article 9 of the Satversme did not prohibit from electing to the Saeima a person who had the status of a suspect or an accused in criminal proceedings. [19.]
Hence, the Constitutional Court found that the contested norms interfered excessively with the deputy’s right to the mandate of free representation. The adverse consequences caused by this restriction outweigh the consequences gained by society in general. [19.]
On the principle of presumption of innocence
The Saeima had requested termination of legal proceedings in the case in the part regarding the incompatibility of the contested norms with the principle of presumption of innocence. The Constitutional Court noted that a member of the Saeima, as a person who was held in suspicion and, after the Saeima had adopted the decision on agreeing to the commencement of criminal prosecution, could be charged in criminal proceedings, was protected by the presumption of innocence. [9.]
The Constitutional Court recognised that if a person was suspended from performing his duties of office in connection with criminal proceedings, it had to be assessed whether the suspension, which could be lengthy, due to its nature, did not cause a violation of the presumption of innocence. Pursuant to the contested norms, a member of the Saeima is suspended from exercising the essential right to the mandate of free representation and authorisation for undetermined period of time; i.e., until criminal prosecution is terminated or until a convicting court’s judgement enters into force. Moreover, at the time when the criminal case is terminated, without establishing the deputy’s guilt, or the deputy is exonerated, the term of the respective convocation of the Saeima could have expired already, and this person could not regain the office of the deputy of the respective convocation of the Saeima. The Constitutional Court found that the guarantees envisaged in the law were not sufficient to compensate for the fact that the right to the mandate of free representation and authorisations of a member of the Saeima, who was protected by the presumption of innocence, were disproportionately restricted and substantially denied. [20.]
The Constitutional Court recognised that the contested norms were incompatible with the principle of the presumption of innocence, established in the second sentence of Article 92 of the Satversme. [20.]
On the date as of which the contested norm becomes void
To eliminate the infringement on the Applicant’s rights, with respect to him, the contested norms are recognised as being void as of 31 January 2019. [22.]
The Constitutional Court held:
1. To terminate legal proceedings in the case in the part regarding the compliance of the second sentence of the second part of Article 17 and the second and the third sentence of Article 19 of the Rules of Procedure of the Saeima with the second sentence of Article 92 and the first sentence of Article 101 of the Satversme of the Republic of Latvia.
2. To recognise the first sentence of the second part of Article 17 and the first sentence of Article 19 as being incompatible with Article 5, the second sentence of Article 92 and the first sentence of Article 101 of the Satversme of the Republic of Latvia and, with respect to Juris Jurašs, void as of 31 January 2019.
The judgement by the Constitutional Court is final and not subject to appeal, it shall enter into force on the date it is published. The judgement will be published in the official journal “Latvijas Vēstnesis” within the term set in Section 33 (1) of the Constitutional Court Law.
The text of the judgement in Latvian is available on the homepage of the Constitutional Court: https://www.satv.tiesa.gov.lv/web/viewer.html?file=/wp-content/uploads/2019/04/2019-08-01_Spriedums.pdf#search=j
Linked case: 2019-08-01