The Norm Prohibiting Border-guards to Unite in Trade Unions is Incompatible with the Satversme
On 23 April 2014 the Constitutional Court adopted a judgement in Case No. 2013-15-01 “On Compliance of the Words “Joining in Trade Unions” of Section 49(1) of Border Guard Law with Article 102 and the second sentence of Article 108 of the Satversme of the Republic of Latvia”.
The prohibition to border-guards from joining in trade unions places disproportional restrictions upon fundamental rights
The Contested Norm (in italics)
Section 49(1) of Border Guard Law envisages that border-guards are prohibited from joining in trade unions.
The Norm of Higher Legal Force
Article 102 of the Satversme: “Everyone has the right to form and join associations, political parties and other public organisations.”
The second sentence of Article 108 of the Satversme: “The State shall protect the freedom of trade unions.”
The Facts
The case was initiated having regard to the application submitted by the Ombudsman of the Republic of Latvia. The Ombudsman holds that the restriction to rights, envisaged by the contested norm, i.e., the prohibition to border-guards from establishing trade unions, is disproportional and that there is no need for such a restriction in society.
Court Findings and Ruling
On the legislator’s obligation to protect the freedom of trade unions
The Constitutional Court noted that the legislator has the obligation to adopt such regulatory enactments that would allow persons to unite in trade unions and, thus, exercise their freedom of association. The wording of the second sentence in Article 108 of the Satversme – “the State shall protect” – imposes a special obligation upon the State to implement measures with the aim of ensuring the freedom of trade unions. [9]
At the same time the Court recognised that the State has comparatively broader discretion in defining the rights and obligations of persons who are in public service relationships than, for example, in regulating legal labour relations, which are founded upon an employment contract. The persons, who have been entrusted with fulfilment of State tasks, are in public legal relationships with the State, and the principle of equality of parties does not operate in this legal relationship. The relationship of public service is not established by concluding an employment or any other contract, but it is established by the competent state authorities appointing a person to an office. In view of the role and tasks of the public service, the State has the right to regulate unilaterally the rights and obligations of persons who are in public service. [10]
However, in regulating the legal relationship in public service the legislator has the right to establish only such restrictions to the fundamental rights, which are necessary in service relations. [10]
On the content of fundament right – the freedom of trade unions
The Constitutional Court recognised that the fundamental right included in the second sentence of Article 108 of the Satversme had both substantial law and procedural law aspect. The right to unite in trade unions creates the substantial law aspect of the said fundamental right. Such right of the border-guards, per se, does not create threat to the security interests of the State or society. However, some procedural manifestations of exercising the freedom to trade unions, as, for example, the right to organize strikes and participate in them, may have an impact upon the security interests of the State or society. [11]
On the validity of restriction
The Constitutional Court recognised that the contested norm had a legitimate aim – the protection of public safety. To safeguard the independence of the State, its constitutional order and territorial integrity accurate and unimpeded functioning of the State Border-guard must be ensured. [14]
At the same time the Constitutional Court admitted that the legitimate aim could be attained by other means, less restrictive to person’s rights and legitimate interests. [16.4] For example, unimpeded functioning of the State Border-guard can be ensured by the absolute prohibition included in Section 49(1) to the border guards to organize strikes and participate in them. [16.1]
Thus, the Constitutional Court recognised that the contested norm placed disproportional restrictions upon fundamental rights and therefore was incompatible with Article 108(2) 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: 2013-15-01