1. The applicant, the Latvian National Human Rights Office – asks to recognize the words “for an unlimited term” of the fourth part of Section 7 of the Constitutional Court Law as being non-compliant with Article 83, the first sentence of Article 91 and the first part of Article 101 of the Satversme (Constitution) of the Republic of Latvia (hereinafter – the Satversme). However, the submitted of the constitutional application, Andrejs Lepse, asked to recognize the words “for an unlimited term” of the fourth part of Section 7 of the Constitutional Court Law as being non-compliant with Article 83, Article 91 and the first part of Article 101 of the Satversme.

The fourth part of Article 7 of the Constitutional Court Law provides: “If a person, who pursuant to the Law “On Judicial Power” has been approved to the office of a judge for an unlimited term, is confirmed a justice of the Constitutional Court, he/she, after the expiry of the term of office of a justice of the Constitutional Court, shall have the right to return to his/her previous position, unless he/she has reached the age-limit allowed for a judge to hold office.”

In 1990, the submitter of the constitutional complaint, according to the constitution of the Latvian SSR, was elected a justice of the Supreme Court for the period of ten years. A. Lepse is the only judge from the former justices of the Constitutional Court who was denied the rights to return to the previous position of a judge, by justifying the refusal by the fourth part of Article 7 of the Constitutional Court Law.

The Constitutional Court has established in the Judgment that the words “a person, who pursuant to the Law “On Judicial Power” has been approved to the office of a judge for an unlimited term” of the fourth part of Article 7 of the Constitutional Court Law do not comply with Article 83 and the first sentence of Article 91 of the Satversme and invalid from April 1, 2008. Simultaneously, the Constitutional Court has recognized that until the abovementioned date the fourth part of Article 7 of the Constitutional Court Law shall be applied according to Article 83, Article 83 and the first part of Article 91 of the Satversme. The Court has also established that the fourth part of Article 7 of the Constitutional Court Law shall be applied to submitter of the constitutional complaint in accordance with Article 83, Article 84 and the first sentence of Article 91 of the Satversme.

I agree to what has been established in the Judgment that the Constitutional Court had to eliminate the violation of the rights of A. Lepse that was caused in the result of application of the Contested Provision. However, I do not agree with several arguments and conclusions made in the Judgment.

2. In the Judgment, the Constitutional Court has broadened the limits of the claim included in the application and the constitutional complaint and has assessed compliance of the words “a person, who pursuant to the Law “On Judicial Power” has been approved to the office of a judge for an unlimited term” of the fourth part of Article 7 of the Constitutional Court Law with the Satversme. If the above mentioned provision of the Satversme did not contain the words “for an unlimited term”, but the words “pursuant to the Law “On Judicial Power” has been approved to the office of a judge” were preserved, then the legal regulation of the situation would not change. Throughout the Law, the words “has been approved to the office of the judge” are used only in relation with confirmation of judges to the office for an unlimited term.

However, the Constitutional Court must broaden the limits of the claim so that the limits of application of the norm would be explicit and unambiguous even if a part of the words included in the norm is recognized as non-compatible with the Satversme. By excluding the words “a person, who pursuant to the Law “On Judicial Power” has been approved to the office of a judge for an unlimited term” and leaving the remaining part of the fourth part of Article 7 of the Constitutional Court Law, the wordy meaning of the provision is lost and no explicit limits of application of the norm can be perceived. Taking into consideration the mutual relation of the words of the fourth part of Article 7 of the Satversme, the Court had to assess compliance of the fourth part of Article 7 of the Constitutional Court Law with Article 83, Article 91 and the first part of Article 101 of the Satversme.

3. The Court has justly concluded that compliance of the Contested Provision with Article 91 of the Satversme shall be assessed in the context of the principle of equality, namely, by assessing its compliance with the first sentence of Article 91 of the Satversme. It has been indicated in the Judgment that the justices of the Constitutional Court, whose term of office has expired, can be divided into three categories:

1) justices of the Constitutional Court who before confirmation to this position were justices in a court of general jurisdiction or an administrative court confirmed to the position for an unlimited term according to the second part of Section 60, Sections 61 and 62 of the Law “On Judicial Power”;

2) justices of the Constitutional Court who before confirmation to this position were justices in a court of general jurisdiction or an administrative court confirmed to the position for a definite term according to the first or the second part of the Law “On Judicial Power”;

3) justices of the Constitutional Court who before confirmation to this position were justices in the Supreme Court elected to the position of a justice according to Article 152 of the Constitution of the Latvian SSR before coming into force of the Law “On Judicial Power” and may continue fulfilling their duties after coming into force of the Law “On Judicial Power”.

It is not contested in the case that the rights to return to the previous position of a judge in the court of general jurisdiction or the administrative court are conferred to those judges whose term of office in the Constitutional Court has expired and who have been approved as justices according to the Law “On Judicial Power” for an unlimited term. The fourth part of Article 7 of the Constitutional Court Law guarantees such rights. There is also no doubt that the submitter of the constitutional complaint, A. Lepse, is the only persons in the last of the abovementioned group. It must be assessed in the Judgment whether the judges that fall into all three groups enjoy equal and comparable conditions at the moment when the term of office in the position of a justice of the Constitutional Court expires.

I can not agree to the conclusion made in the Judgment that all justices of the Constitutional Court, whose term of office has expired and who have worked as the judges in a court of general jurisdiction or in an administrative court, enjoy equal and comparable conditions.

One of the groups of persons, the legal situation of whom is assessed in the Judgment, are the judges who have been appointed to the position for the time period of three years and repeatedly for the time period of two years, according to the Law “On Judicial Power”. Appointment of such judges to the position of the justice of the Constitutional Court is unlikely, especially if the justice is nominated from among the judges of the Republic of Latvia by the Plenum of the Supreme Court. Qualification of these judges and their compliance with the position is yet being assessed. Simultaneously, it is possible to agree to the conclusion made in the Judgment that the Constitutional Court Law does not prohibit appointing and confirming such judges as the justices of the Constitutional Court, if they comply with the requirements established for a justice of the Constitutional Court. It has been indicated in the Judgment that the justices who remain in the position for the time period of three years or repeatedly for two years may return to the previous position of a judge for the remaining term of office, if the term of office at the Constitutional Court has expired. Such conclusion is justified by Article 84 of the Satversme, from which it follows that a judge may not be removed before the end of the established term of office.

However, the Court could not make a far-reaching conclusion from the principle of prohibition of removal of judges, namely, that judges that are appointed to the position for the time period of three years or repeatedly for two years may return to the previous position of a judge for the remaining term of office, if the term of office at the Constitutional Court has expired. Such legal solution would be grounded only in the case if the law would permit suspension of the authority of judges in the cases where a judge assumes another office of a judge. Neither the Law “On Judicial Power”, nor other normative enactments include any such institute of rights as suspension of the authority. It falls within the competence of the legislator to pass legal norms regarding suspension of the authority of a judge.

If a judge is appointed to the position for the time period of three years of repeatedly for two years, and during this time he is confirmed as the justice of the Constitutional Court, then the term of office at a court of general jurisdiction or in an administrative court continues. Continuation of the term of office of a judge is manifested by the norm of the third part of Article 5 of the Constitutional Court Law, according to which a judge must not repeatedly take an oath of a judge, as provided in the Law “On Judicial Power”, and he or she start fulfilling the duties of the justice of the Constitutional Court right after appointment. The oath of a judge is one of the symbols of the judicial power mentioned in Section 67 of the Law “On Judicial Power”. The third part of Section 68 of the Law “On Judicial Power” provides that a judge shall start fulfilling the duties of the position only after taking the oath.

Judges who are appointed to the position for the time period of three years of repeatedly for two years and are confirmed the justice of the Constitutional Court at this period, the term of office in a court of general jurisdiction of in an administrative court shall continue and expires during the term of office at the Constitutional Court. If the authority of judges in a court of general jurisdiction or in an administrative court has expired, then they are not entitled to return to the previous position of a judge after the expiry of the term of office at the Constitutional Court. But if the Saeima has confirmed judges, during their term of office, to the position of the justice of the Constitutional Court for an unlimited term, then the fourth part of Article 7 of the Constitutional Court Law ensures their return to the previous position of a judge.

Therefore judges who have been appointed to the position for the time period of three years of repeatedly for two years, and have been confirmed the justice of the Constitutional Court during this term of office, do not constitute a separate comparable group at the point where the term of office at the Constitutional Court expires. In the Judgment, it was not necessary to continue assessing the legal situation of this group of judges.

4. It is possible to partially agree with the conclusion of the Constitutional Court that all those justices of the Constitutional Court, the term of office has expired and who have previously been judges of the court of general jurisdiction or an administrative court, enjoy equal and comparable conditions. Those justices of the Constitutional Court, the term of office has expired and who, according to the Law “On Judicial Power” have been confirmed to the position of the judge for an unlimited term, enjoy equal and comparable conditions. In the Judgment, attention is drawn to the high professional qualification, long and successful carrier, knowledge and experience of A. Lepse. The limited term of office of A. Lepse in the position of the judge of the Supreme Court, where he has been elected according to the legal regulation of the transitional period, may not serve as the basis for the statement that he enjoys different conditions if compared to other judges who have been confirmed to the position for an unlimited term. It is possible to agree with the conclusion that follows from it that the different attitude towards A. Lepse has no objective and reasonable grounds.

5. In the Judgment, the rights of A. Lepse to return to the previous position of a judge for the remaining term of office are, in fact, deduced from Article 84 of the Satversme. I can not agree to what has been indicated in the Judgment that Article 84 after the expiry of the term of office of a justice of the Constitutional Court always requires preserve a possibility for the justice to work in the previous position of a judge for the remaining term of office. Article 84 of the Satversme does not provide for termination of the term of office of judges. Judges shall not be dismissed during their term of office. If the term, for which the judge has been appointed to the position of a court of general jurisdiction of an administrative court, has expired in the position of a justice of the Constitutional court during his or her term of office, then there is no reason to assume that he or she is entitled to return to the previous position of a judge.

When assessing the legal situation of A. Lepse after the expiry of his term of office in the position of a justice of the Constitutional Court, the deciding role was played by the resolution of January 23, 2997 by the Saeima regarding his dismissal from the position of the judge of the Supreme Court. In general it is possible to agree with the assessment of this resolution of the Saeima included in the Judgment, saying that the law did not require passing any. The resolution, in fact, regulated only the labour relationships of A. Lepse with the Supreme Court. By the abovementioned resolution by the Saeima, A. Lepse lost his position of a judge in the Supreme Court, but he still remained a judge since he was holding the office of a justice of the Constitutional Court. Moreover, the wording of Article 84 effective during passing of the decision of the Saeima provided that judges shall be removed from office against their will only based upon a decision of a court.

Although the normative enactments of the Republic of Latvia do not provide for removal of judges from office, the Resolution of January 23, 1997 by the Saeima removed A. Lepse from the office in the Supreme Court. This resolution of the Saeima in particular created the special legal situation where A. Lepse, after the expiry of the term of office in the Constitutional Court, his office in the position of a judge of the Supreme Court continued.

6. The Constitutional Court has established that the words “a person, who pursuant to the Law “On Judicial Power” has been approved to the office of a judge for an unlimited term” of the fourth part of Article 7 of the Constitutional Court Law neither comply with Article 83 of the Satversme, which provides for the principle of independence of judges. The Court justified its decision regarding non-compliance of the Contested Provision with Article 83 of the Satversme by the fact that the legislator has not provided for the order of implementation of rights established in the fourth part of Article 7 of the Constitutional Court Law.

The conclusion included in the Judgment regarding the fact that the legal regulation which ensures return of justices of the Constitutional Court to the previous position is not efficient enough is regarded as grounded. It is also possible to agree that Article 83 of the Satversme provides that the legislator shall establish carried development of judges in the laws on judicial system, while independence of judges can be jeopardized by the absence of such area of regulation or by leaving broad freedom of action to the institutions of executive power when deciding on carrier development of judges.

However, the fourth part of Section 7 of the Constitutional Court Law explicitly and clearly confers the rights to return to the previous position to the justices of the Constitutional Court who, according to the Law “On Judicial Power” have been confirmed to the position of a judge for an unlimited term”. Although the legal regulation of the order of such return is not complete, there is no reason to consider that the Contested Provision itself violates the principle of independence of judges.

7. I do not agree with the decision included in the Judgment that the fourth part of Article 7 of the Satversme shall be applied to the submitter of the constitutional complaint A. Lepse in accordance with Article 83, Article 84 and the first sentence of Article 91 of the Satversme. Consequently, it follows from the Judgment that the legal provision, several words of which are recognized as anti-constitutional, shall be applied in accordance with the Satversme, while the legislator has not concretized this provision and hence has not ensured its compliance with the Satversme.

In the case No. 2006-03-0106 ”On the Compliance of the Words “or Other Attributes” and “Separate Voiced Slogans or Speeches Held” Included in Section 1, Paragraph 4 of the Law “On Meetings, Processions and Pickets”; the First Paragraph of Section 9; the Words “Keepers of Public Order” Included in Section 12, Paragraph 3, Item 1; the Words “and Pedestrians” Incorporated in the Second Paragraph of Section 13; the Second Sentence of Section 14, Paragraph 6; the Words “not Earlier than 10 Days” Included in Section 15, Paragraph 4, as well as Section 16 and Section 18, Paragraph 4 with Section 103 of the Satversme (Constitution) of the Republic of Latvia, Section 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as with Section 21 of the International Covenant on Civil and Political Rights”, the Constitutional Court established that several norms of Chapter III of the Law “On Meetings, Processions and Pickets” do not comply with the Satversme by simultaneously establishing that the provisions of this Chapter shall be applied in accordance with Article 103 of the Satversme of the Republic of Latvia from June 1, 2007.

The Constitutional Court, when adjudicating the case, has justly decided that the provisions of Chapter III of the Law “On Meetings, Processions and Pickets” can be applied in accordance with the Satversme, because separate provisions that did not comply with the Satversme did not hamper application of the entire Chapter in accordance with the Satversme. Moreover, the fourth part of Article 7 of the Constitutional Court Law is a separate legal norm formulated concisely and precisely, application of which according to the order established in the Satversme is questionable from the legal point of view, since the words that form a substantial part of the norm are recognized as being non-compliant with the Satversme. The Constitutional Court had to justify precisely, by means of what methods it arrived at the above conclusion.

In the case No. 2005-18-01 “On the Compliance of the Words “in Paragraph Three” Included in the Fourth Paragraph of Section 449 of the Civil Procedure Law and Nota Bene of Section 98 of the Land Book Law with Section 92 of the Satversme (Constitution) of the Republic of Latvia”, the Constitutional Court recognized the words “in paragraph three” included in the fourth part of Section 449 of the Civil Procedure Law and the note of Section 98 of the Land Register Law as being non-compliant with Article 92 of the Satversme and invalid from July 1, 2006.

The contested provisions provided for a duty of a person to pay a security deposit when appealing against Court Panel decisions in the Civil Cases Department of the Senate. The Constitutional Court also established that up to July 1, 2006, in the category of these cases the general principle of civil procedural rights, which has been fixed in Section 43 (the fourth Paragraph) and Section 458 (the fourth Paragraph) of the Civil Procedure Law, shall be applied by procedural analogy. This gave the Court a possibility to decide on person’s full or partial fine dismissal by observing the property status of the person. Hence, the Constitutional Court, in the abovementioned case, when applying the procedural analogy, has explicitly and justifiably resolved the issues of application of the legal norms during the period when the provisions that do not comply with the Satversme were not yet valid.

8. If a legal norm confers rights to a one group of persons and denies the rights to another group of persons, which enjoys equal on comparable conditions if compared to the first group, then it shall be recognized as non-compliant with the principle of legal equality included in Article 91 of the Satversme and hence non-compliant with the Satversme. However, the particular legal situation of A. Lepse was decisive in the case under review, namely, his is the only judge out of former justices of the Constitutional Court who was denied the rights to return to the previous position of a judge by justifying the denial, among the rest, by the Contested Provision. It was possible to achieve a legally justified solution by recognizing the fourth part of Article 7 of the Constitutional Court Law as being compliant with Article 83, Article 91 and the first part of Article 101 of the Satversme, but without applying the legal consequences established by the norm to A. Lepse who enjoys equal and comparable conditions with those former justices of the Constitutional Court were confirmed to the position of a judge in a court of general jurisdiction or an administrative court for an unlimited term of office.

It is necessary to agree with the opinion of the Ministry of Justice that the objective of the fourth part of Article 7 of the Constitutional Court Law is to ensure return of high-qualified judges to the previous position after the expiry of the term of office at the Constitutional Court disregarding the fact whether he judge has been elected fro the term of ten years before coming into force of the Law “On Judicial Power” or has been confirmed to the position for an unlimited term according to the Law “On Judicial Power”. The legal regulation included in the fourth part of Article 7 of the Constitutional Court Law contains a legal gap, because of which A. Lepse is prohibited to return to the previous position of a judge. The Constitutional Court Law does not prohibit the Constitutional Court to fill legal gaps by means of further development of the rights if needed, by applying legal methods recognized in theory and practice of right. The Constitutional Court shall not interpret its competence in a narrow manner by refusing to assess the consequences caused by insufficient area of application of a legal provision (see: Feldhūne G. “Likumu klusēšana” un Satversmes tiesas kompetence // Likums un Tiesības, No. 3, 2002, pp. 83).

A legal gap shall be regarded as discovered if no positive legal regulation is included in the law regarding a particular group of cases, although such regulation had to be included therein taking into consideration the plan and objective of the Law. The legal gap shall be filled by procedural analogy (see: Kalniņš E. Tiesību tālākveidošana // Privāttiesību teorija un prakse. Rīga: Tiesu namu aģentūra, 2005, pp. 319–320).

The legislator has not regulated, in the fourth part of Article 7 of the Constitutional Court Law, the case when a judge who, according to the normative acts of the transitional period, has been elected to the position of a judge of the Supreme Court, has been confirmed the justice of the Constitutional Court. This legal gap shall be filled by means of further development of the rights by procedural analogy, namely, the most reasonable provision that is to be applied to the case, which is not directly regulated in the Law, shall be deduced from the Contested Provision. Admissibility of the analogy follows from the principle of legal equality, which serves as the constitutional basis of the analogy (see: Tiesību tālākveidošana. Rīga: Latvijas Vēstnesis, 2006, pp. 106).

In order to implement such attitude towards A. Lepse whose term of office in the position of a judge of the Supreme Court till the expiry of the office of the justice of the Constitutional Court has been discontinued by the resolution of January 23, 1997 by the Saeima, which would comply with the principle of legal equality, the fourth part of Article 7 of the Satversme shall be applied to him as well based on the procedural analogy by ensuring him the rights to return to the previous position of a judge for the remaining term of office. Hence, the fourth part of Article 7 of the Constitutional Court Law would be applied to the submitter of the constitutional complaint in the manner that would comply with the Satversme.

Justice of the Constitutional Court K. Balodis