31 January, 2022
The provision of the Law “On Judicial Power”, which prohibits from applying for the position of a judge those persons, against whom criminal proceedings have been terminated on a non-rehabilitative basis, complies with the Constitution – such an opinion is provided to the Constitutional Court by the Judicial Council. In the opinion of the Judicial Council, the benefit obtained by this provision for the society is greater than the damage caused to the rights and legitimate interests of the applicant.
The Judicial Council draws attention to the fact that Latvian society is currently not ready to accept that a person who is, in fact, found guilty of a criminal offense could also administer justice. Thus, setting the highest standards for a judge to hold office and perform his or her duties promotes and strengthens the authority of the judiciary and trust in the courts, ensures the protection of human rights, and strengthens the rule of law, which is the basis of a democratic state.
In the opinion of the Judicial Council, the means chosen by the legislator achieve the legitimate aims. The prohibition on becoming a judge for a person who is prosecuted and is not rehabilitated in the course of criminal proceedings is intended to prevent a person who has committed a criminal offense from entering the judicial system, even if the criminal proceedings against that person are terminated on a non-rehabilitative basis. The high standard that is set for judicial office stems from the status of a judge.
The applicant cannot stand for the position of a judge due to the established restriction. However, he or she may hold any office in the public service other than that of judge or prosecutor and may choose to pursue any other legal profession, including that of an advocate. Consequently, the prohibition included in the contested provision to stand for the position of a judge affects a very narrow aspect of the right to participate in the public service.
The Judicial Council is an invited party in the case No 2021-41-01 initiated by the Constitutional Court “On the Compliance of Section 55, Paragraph 3 of the Law “On Judicial Power” with Section 101, Paragraph one and Section 106, First Sentence of the Constitution of the Republic of Latvia”, which include the right to perform public service, as well as to choose an occupation and a job according to one’s abilities and qualifications.
When providing an opinion on the constitutionality of the contested provision, the Judicial Council analyzed whether the restriction of fundamental rights included in the contested provision has been established by law, whether it has a legitimate aim and whether it complies with the principle of proportionality.
Information prepared by
Rasma Zvejniece, the Head of the Division of Communication of the Supreme Court
E-mail: rasma.zvejniece@at.gov.lv, telephone: +371 67020396, +371 286522