Prohibition of a person to hold the position of a forensic expert declared unconstitutional
On Tuesday, 17 December, the Constitutional Court delivered a judgement in Case No. 2023-47-01. The Court declared that the restriction to hold the position of a forensic expert as provided for in the Law on Forensic Experts that is applied to a person who has been held criminally liable, but the criminal proceedings whereof initiated for committing the intentional criminal offence have been terminated for reasons other than exoneration, is unconstitutional. The Constitutional Court has already concluded in its previous judgments that the fact of a committed criminal offence as such should not necessarily have an impact on the rest of the life of a person.
The Constitutional Court initiated the case based on an application submitted by the Senate. An administrative case is pending before the Senate in which the Council of Forensic Experts refused to perform recertification of a forensic expert and terminated the operation of the forensic expert certificate on the basis of Section 6, Paragraph three, Clause 5 of the Law on Forensic Experts which is also the contested norm in the case. The Senate holds that the restriction on fundamental rights contained in the contested norm is disproportionate and the contested norm fails to conform to Article 101, Paragraph one and the first sentence of Article 106 of the Constitution.
After initiation of the case before the Constitutional Court, the Saeima amended the contested norm. Therefore, the Constitutional Court assessed the constitutionality of the legal regulation which prevented, and still prevents, a person who has been held criminally liable, but the criminal proceedings whereof initiated for committing the intentional criminal offence have been terminated for reasons other than exoneration, from holding the position of a forensic expert. The Court recognised that the fundamental issue in the case was the compatibility of the restriction with the right to freely choose their employment and workplace contained in the first sentence of Article 106 of the Constitution.
The Constitutional Court concluded that the restriction was necessary in order to promote public confidence in the work of forensic experts and in the judicial process. In particular, such a restriction is imposed in order to protect the rights of others and a democratic system of government and is appropriate for the achievement of those objectives. However, the Court emphasised that, considering the functions and competences entrusted to forensic experts, there may be circumstances, for instance, the degree of harm of a criminal offence and the resulting adversely affected interests, the period of time passed after committing the offence, the attitude, as well as behaviour and actions of the person after the offence which, taken together, may indicate that the previous criminal conduct of the person would not impair the performance of the functions of a forensic expert. Therefore, the Constitutional Court recognised that the legitimate objectives of the restriction could be achieved to the same degree by other, more lenient measures. Consequently, the contested regulation fails to conform to the first sentence of Article 106 of the Constitution.
The Constitutional Court declared that the contested norm in the wording effective from 2 March 2024 shall no longer be in force as of 1 June 2025, whereas with regard to the applicant in the administrative case pending before the Senate, the contested norm shall cease to be valid from the moment of adoption thereof. However, with regard to the contested norm in the wording effective until 1 March 2024 in respect of the applicant in the administrative case pending before the Senate, the Constitutional Court recognised invalidation of the contested norm from the moment when the infringement of fundamental rights occurred in respect of the applicant. As regards other persons who had initiated the protection of their fundamental rights by means of general judicial remedies, the Constitutional Court declared that the contested norm in the wording effective from 2 March 2024 shall no longer be in force from the moment when the infringement of fundamental rights occurred in respect of those persons.
The judgement of the Constitutional Court is final and not subject to appeal; the judgment shall enter into force as of the date of its publication in the official gazette Latvijas Vēstnesis.
Linked case: 2023-47-01