The norm that prohibits a judge to be an assistant to his or her own child is incompatible with the Satversme
On 23 November 2015 the Constitutional Court passed the judgement in Case No. 2015‑06‑01 “On Compliance of Section 7(3) of the Law “On Prevention of Conflict of Interest in Activities of Public Officials” with the First Sentence of Article 91 and Article 110 of the Satversme of the Republic of Latvia.”
The Contested Norm
The third part of Section 7 of the law “On Prevention of Conflict of Interest in Activities of Public Officials” defines those offices and types of activities that an office of a public official (also that of a judge) may be combined with. Inter alia, an official may perform the work of a teacher, may engage in scientific or creative work, combine the status of a public official with an office that he or she assumes in compliance with law or an international agreement, do the work of an expert, etc.
The Norms of Higher Legal Force
The first sentence in Article 91 of the Satversme: “All human beings in Latvia shall be equal before the law and the courts.”
Article 110 of the Satversme: “The State shall protect and support marriage – a union between a man and a woman, the family, the rights of parents and rights of the child. The State shall provide special support to disabled children, children left without parental care or who have suffered from violence.”
The Facts
The constitutional complaint has been submitted by a judge, who is bringing up a disabled child. He requires special care. The Cabinet of Ministers Regulation “The Procedure for Granting and Funding the Services of an Assistant in Local Government” envisages that a child in such a case is entitled to an assistant’s services that are paid for, which may be provided also by one of the child’s parents. The contested norm prohibits the submitter of the complaint to become an assistant to her disabled child, since it is not allowed to combine the office of a judge with the provision of such service. Thus, the applicant holds that the rights of a family and the rights of a disabled child to special protection guaranteed in Article 110 of the Satversme are being violated. The applicant also holds that the contested norm is incompatible with the principle of equality included in Article 91 of the Satversme; i.e., all parents who are bringing up a disabled child should have equal rights to provide assistant’s services to his or her child and to receive for it payment established by the State.
The Court Findings and Rulings
The Constitutional Court reviewed the constitutionality of the contested norm insofar it applied to a judge as a state official, who needed to provide assistant’s services to her disabled child. [12.2]
The Constitutional Court recognised that a positive obligation of the State to set up and to maintain such system of social and economic support that would ensure that the rights of a disabled child were realised and would be appropriate for a family bringing up a disabled child followed from Article 110 of the Satversme. [13] The State has established and is maintaining such a system. [14.1] Thus, the contested norm has been recognised as being compatible with Article 110 of the Satversme. [14.2]
The Constitutional Court recognised that, essentially, the contested norm was neutral with regard to all judges. However, it places a judge in a different situation, if he or she needs to provide assistant’s services to his or her own disabled child. [17.2] The Constitutional Court recognised that also a neutral regulation or criterion might create a differential treatment of a group of individuals that could be identified by a particular feature. The principle of equality established in the first sentence of Article 91 of the Satversme applied also to such cases. [15]
The Constitutional Court recognised that the contested norm had a legitimate aim; i.e., by restricting the areas of a judge’s occupations, the norm ensured transparency and responsibility before society of a judge’s activities as a public official, as well as independence of the judicial power in a democratic state. Thus, the norm protects other persons’ rights and the democratic structure of the state. [17.3] However, in a situation, when the norm prohibits the judge from providing assistant’s services to his or her own disabled child, the contested norm is not appropriate for reaching the legitimate aim. [18.3]
The Constitutional Court found that the Saeima had not provided arguments regarding the reasons, why the provision of an assistant’s services to one’s own child would place a judge in a conflict of interest situation or would subject the independence of a judge to a greater risk than the combing of a judge’s office with other types of activities permitted by the contested norm. [18.1]
Thus, the Constitutional Court recognised the contested norm as being incompatible with the first sentence of Article 91 of the Satversme.
The judgement by the Constitutional Court is final and not subject to appeal. The judgement enters into force on the day of its publication in the official journal “Latvijas Vēstnesis”.
Linked case: 2015-10-01