The Norm Prohibiting Judges to Take Membership in Political Parties Complies with the Satversme
On 10 May 2013 the Constitutional Court pronounced Judgement in Case No. 2012-16-01 “On Compliance of Section 86(3) of the Law “On Judicial Power” with Article 102 of the Satversme of the Republic of Latvia.”
The prohibition to the judge to take membership in political parties strengthens the authority of the judicial power
The Contested Norm
Section 86 (3) of the Law “On Judicial Power”: “The office of a judge may not be combined with membership in a party or other political organisation.”
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 Facts
The constitutional complaint was submitted by Jānis Neimanis, Judge of the Senate Department of Administrative Cases of the Supreme Court. He was confirmed in this office on 13 December 2007. The applicant notes that in the course of time he has understood that it is important that his political views on the processes in society were appropriately voiced and represented. Therefore he would like to take membership in a political party. However, the contested norm restricts his right to join a political party.
The Saeima notes that the contested norms ensure the independence of a judge. Moreover, essentially the norm is the canon of judges’ professional ethics, which the legislator has included in the law. Thus, amendment or revoking of the contested norm as such would not grant the applicant the right to join a political party.
Court Findings and Rulings
On the request to terminate judicial proceedings
The Saeima has noted that the judicial proceedings should be terminated. The applicant has not indicated the moment, when the infringement to his right has occurred, neither has he submitted evidence proving the existence of such infringement. Thus, doubt exists, whether the Applicant has abided by the term for submitting the constitutional complaint, as set out in the Constitutional Court Law, which is six months as of the moment when the infringement of fundamental rights occurs. [15]
The Constitutional Court, in assessing, whether the judicial proceedings in the case should be continued, examined:
1) whether the contested norm affects such right of the Applicant, which is set out in Article 102 of the Satversme;
2) whether direct and concrete violations of the Applicant’s fundamental rights exist;
3) whether the requirement of the law concerning the use of general judicial remedies and the term for submitting the constitutional complaint have been abided by. [16.4]
The Constitutional Court recognised that everyone’s right to unite in a political party is an essential pre-condition for the existence of a democratic state order [18.3]. Uniting in a political party is persons’ participation in an organisation, the main purpose of which is gaining political power. [19] Since Article 012 of the Satversme notes that everyone has these rights, the Applicant’s right; affected by the contested norm, fall within the scope of Article 102 of the Satversme [20].
In concrete cases a person may submit a constitutional complaint about such legal norm, unfavourable to him or her, which directly and immediately applies to this person, but has not been applied yet. [22] However, the person has to provide credible substantiation, why the adverse consequences caused by the legal norm create an infringement of his or her fundamental rights. [22.1]
The moment, when the infringement arises, should not be indicated formally and be limited to mentioning a specific date. The person must indicate objectively verifiable facts, characterising the infringement and allowing establishing the moment of its occurrence, a person’s subjective view is not sufficient grounds for identifying infringement. The main purpose of the six month’s term is to ensure legal stability and, thus, to safeguard the legal certainty of other persons. [22.3]
If the law envisages serious adverse consequences to the Applicant for violating the prohibition set by a legal norm, than this situation, under certain conditions, must be recognised as such, which potentially or in the future would be an infringement of fundamental rights, to which the six months’ term for submitting the constitutional complaint, as envisaged by the Constitutional Court Law, cannot be applied. [22.4]
The Constitutional Court recognised that if the Applicant were to joint a political party, he would have to take into consideration the removal from the judge’s office, which is the strictest form of disciplinary liability. Thus, the Applicant’s complaint regarding infringement of fundamental rights might occur only with the application of the contested norm. Thus, it could potentially occur in the future. [23.1]
Hence, the Court recognised that the judicial proceedings must be continued [23.3]
On restricting the freedom of association
The Constitutional Court examined, whether the restriction of the fundamental rights is admissible, by assessing, whether: 1) it has been established by law; 2) is justifiable with a legitimate aim; 3) is proportional to this aim. [25]
The Court recognised that the restriction has been set out by law [26] and that it has a legitimate aim – safeguarding the democratic order of State and other persons’ rights, i.e., the contested norm allows ensuring the functioning of fair, independent and unbiased judicial power [27].
On the compliance of the contested norm with the principle of proportionality
The Constitutional Court noted that the principle of justice is one of the principles of democratic state. Only independent judicial power can ensure fair result of the judicial process. Everybody, with regard to whom justice is administered, is interested in ensuring the independence of judges [29.2] The contested norm does not allow the possibility that a judge is connected with a political party. This means that the judge is not subject to the discipline of a political party and does not have to abide by the party program. Thus, the contested norm creates certainty in society that a judge does not represent the opinion of a political party. This allows preventing cases, when doubts might arise concerning judges’ ability to administer justice objectively and independently. [29.3]
Likewise the Court recognised that Article 102 of the Satversme should be examined in interconnection with Article 101 of the Satversme, i.e., to participate in the work of the State and of local government, and to hold a position in the civil service. [31.1] The Constitutional Court noted that the Applicant has a number of possibilities to voice his position regarding important issues in the work of the State and the local governments, for example, to participate in and run for elections, to address State and local government institutions. [31.2] Thus, the Court recognised that the Applicant can, according to the procedure set out by law, participate in the work of the State and local governments, but the restriction set out by the contested norm and which the Applicant had resigned to for a long period of time, does not inflict serious damage to his rights and lawful interests. [31.3]
The Constitutional Court recognised that contested norm serves to strengthen the authority of the judicial power, and the restriction set out by it is a benefit to society. [31.4]
The Court holds that the contested norm complies with the principle of proportionality.
On the future need of the restriction to fundamental rights
The Constitutional Court noted that the legislator is obliged to monitor, whether the legal norm meets its objective effectively, whether the legal regulation continues to be effective, suitable and necessary and whether it cannot be improved in any way. Even though the contested norm complies with the principle of proportionality, in the future the legislator may assess continuous need of the restriction in a democratic society. [31.5]
The Constitutional Court recognised Section 86 (3) of the Law “On Judicial Power” as being compatible with Article 102 of the Satversme of the Republic of Latvia.
The Judgement is final and not subject to appeal, it comes into force as of the day of its pronouncement.
Linked case: 2012-16-01