The Norm of the Civil Procedure Law on the Right of a Judge to Submit a Protest against a Judgement is Incompatible with the Satversme
On 14 May 2013 the Constitutional Court pronounced Judgement in Case No. 2012-13-01 “On Compliance of Section 483 of the Civil Procedure Law insofar as it Establishes the Right of the Chairperson of the Senate Department of Civil Cases to submit a protest with Article 92 of the Satversme of the Republic of Latvia.”
A judge’s right to submit a process may create doubts regarding the objectivity of the court.
The Contested Norm
Section 483 of the Civil Procedure Law (CPL): “A protest regarding a court adjudication that has come into effect may be submitted to the Senate by the Chairperson of the Senate Department of Civil Cases or the prosecutor general, provided that not more than 10 years have elapsed since the adjudication came into effect.”
The norm in this wording was in force until 31 December 2012.
The Norm of Higher Legal Force
The first sentence of Article 92 of the Satversme: “Everyone has the right to defend his or her rights and lawful interests in fair court.” (The Court recognised in its Judgement that essentially the compliance of the contested norm with only the first sentence of Article 92 of the Satversme is being contested).
The Facts
The applicants – Ltd. “IAG”, “IAG Industrieanlagen GmbH”, “Yelverton Investment B.V.” “Yelverton Investments B.V.” – note that the Senate of the Supreme Court accepted for hearing a protest against a judgement by a district court in a case, which they were involved in. The protest to the Senate was submitted by the Chair of the Senate Department of Civil Cases. The applicants hold that a regulation, which envisages that one and the same official both submits the protests and sets the procedure for examining the submitted protests, is incompatible with the right to fair court.
Prior to hearing of the case the applicants submitted a request to assess also the compatibility of Para 63 of the CPL Transitional Provisions with Article 92 of the Satversme. This norm envisages that a complaint, which has been submitted prior to the day when amendments to Section 483 of the CPL came into force, shall be examined in accordance with the regulation, which was in force on the day when the complaint was submitted.
The Court Findings and Rulings
On the request to broaden the scope of claim and on the request to terminate judicial proceedings
The applicants have expressed the request to broaden the scope of claim, i.e., to examine also the compatibility of CPL Transitional Provisions with the Satversme. The Saeima, in its turn, in view of the fact that the contested norm has become invalid, requested termination of judicial proceedings in this case.
As regards the issue of terminating the judicial proceedings, the Constitutional Court noted that it has to take into consideration the need to protect the fundamental rights of persons and to eliminate all those negative consequences, which persons have incurred in connection with the contested norm. [8]
As regards the norm of CPL Transitional Provisions, the Constitutional Court recognised that the case, which has been initiated after the submitted protest, has been already transferred for adjudication, thus, Para 63 of the Transitional Provisions has not been applied to the applicants and cannot cause infringement of their fundamental rights established by Article 92 of the Satversme. [10]
Hence, the Court decided to continue judicial proceedings without broadening the scope of the claim. [10]
On the right to fair court
The Constitutional Court noted that the guarantees of the objectivity of court is one of the elements in Article 92 of the Satversme [12.1] It follows from the case-law of the European Court of Human Rights that the requirement of objectivity or neutrality has two aspects – the subjective and the objective. Firstly, the court must be subjectively neutral, i.e., none of the judges may have private prejudices. Secondly, the court must be objectively neutral. It means that sufficient guarantees should be in place to preclude any grounded or perceived doubts concerning the objectivity of the court among the parties to the case or society. [13.2]
The Constitutional Court recognised that the contested norm may create doubts about the objectivity of the court. [14.1] The contested norm allows the Senate to hear cases, which are initiated by the court itself. A regulation like this contradicts the principle of fair court. [14.2.3.]
Thus, the contested norm is incompatible with the first sentence of Article 92 of the Satversme.
On the request to declare the contested norm invalid as of the moment of its adoption
The applicants request declaring the contested norm invalid as of the date of its adoption or applying. The Constitutional Court, taking into consideration the fact that declaring the norm retroactively invalid, would affect the legal certainty of persons involved in concrete civil cases and the right to fair court. In such a case, the restriction to the fundamental rights of the aforementioned persons might exceed the (perceived) doubts about the objectivity of a court. [15.1]
Balancing the applicants’ right to an objective court and the need to protect the legal certainty of other persons and their right to fair court, the Constitutional Court noted that it is possible to eliminate the infringement of the applicants’ fundamental rights by applying the norms of the Civil Procedure Law in compliance with the first sentence of Article 92 of the Satversme. To prevent any doubt about biasedness of the court, a case initiated in cassation proceedings should be examined by an extended panel, consisting of – at least – seven Senators. [15.3]
The Constitutional Court held:
- to recognise Section 483 of the Civil Procedure Law insofar as it establishes the Right of the Chairperson of the Senate Department of Civil Cases to submit a protest (in the wording, which was in force until 1 January 2013) incompatible with the first sentence of Article 92 of the Satversme of the Republic of Latvia;
- the cases, which have been initiated following a protest submitted by the Chair of the Senate Department of Civil Cases, shall be heard by an expanded panel of the Senate, ensuring to persons the right to objective court guaranteed by Article 92 of the Satversme.
The Judgement is final and not subject to appeal, it comes into force as of the day of its pronouncement.
Linked case: 2012-13-01