The Saeima insists on terminating the case initiated by Lembergs in the Constitutional Court
Neatkarīgā has already reported that the court panel headed by the Chairwoman of the Constitutional Court Sanita Osipova has recognized as substantiated and legally correctly reasoned Aivars Lembergs' application to initiate a case regarding the non-compliance of the Law on the Election of Local Government Councils with the Constitution, which prohibits most detainees from participating in municipal elections.
As you know, A. Lembergs has been in detention since February 22 this year, based on the decision of the Riga Regional Court, which does not even have a real justification for the need to apply the harshest security measure.
On the other hand, on June 5 of this year, municipal elections took place, but A. Lembergs was not allowed to vote in them, i.e., to exercise active voting rights. However, by using the right to stand for election (respectively - by running for the position of Ventspils City Council deputy), A. Lembergs won a brilliant victory in this election, gaining the most votes.
The norms of the law contested in court prohibit persons who have been detained as a security measure to vote in municipal elections, provided that these persons are in a place of deprivation of liberty which is not in the territory of the district where the person is registered as a voter.
A.Lembergs is registered in the Ventspils City electoral register, while according to the law, only the Riga City electoral register applies to Riga Central Prison. Consequently, taking into account that no elections took place in Riga, those who were in Riga Central Prison could not vote in municipal elections.
Hasn't exhausted all possibilities?
The explanation to the Constitutional Court signed by the Speaker of the Saeima Ināra Mūrniece (National Alliance, Nacionālā apvienība) indicates that A. Lembergs had to exhaust all other possibilities to achieve justice before applying to the Constitutional Court, for example, by applying to the administrative court.
The explanatory memorandum of the Saeima to the Constitutional Court states that the application of A. Lembergs “does not comply with the requirements of Section 19.2, Paragraph two of the Constitutional Court Law” and therefore the proceedings in the case must be terminated: "The second part of Section 19.2 of the Constitutional Court Law determines: 'A constitutional complaint (application) may be submitted only if all the options have been used to protect the specified rights with general remedies for protection of rights (a complaint to the higher authority or higher official, a complaint or statement of claim to a general jurisdiction court, etc.) or if such do not exist.' The Constitutional Court has acknowledged that an applicant must observe the principle of subsidiarity. Observing this principle, before applying to the Constitutional Court, a person needs to exhaust real and effective possibilities to defend their violated fundamental rights with general means of legal protection. A constitutional complaint is mainly an additional mechanism for the protection of a person's fundamental rights in cases when it is not possible to prevent the violation of fundamental rights by other means of legal protection (see Paragraph 15.1 of the Constitutional Court decision of October 7, 2019, on termination of proceedings in case No. 2018-19-03)."
The document emphasizes that the Saeima cannot agree with the opinion of the applicant that the only way to defend the right to vote while in custody is to apply to the Constitutional Court: “The issue to be evaluated is the person's right to vote in the electoral district this person is registered, if the said person has been subjected to detention as a security measure in the territory of another constituency, that is, in the territory of the constituency in which the person is not registered. We draw attention to the fact that in another case the administrative court has already resolved the issue in the present case, concluding that a person who has been subjected to detention as a security measure has the right to vote in the constituency in which he is registered, even if this person is located in the territory of another constituency (see the judgment of the Administrative District Court of December 22, 2014, in case No. A420278914 and the judgment of the Administrative District Court of July 7, 2016, in case No. A420278914).
Pursuant to Section 31, Paragraph two of the Administrative Procedure Law, an application may be submitted to an administrative court, except in cases specified by law, by an individual whose rights or legal interests have been or may be infringed.
Imperative norm of law
On the other hand, A. Lembergs' lawyer, Dr. iur. Inese Nikuļceva believes that there is no basis for this statement of the Saeima.
Asked whether the Constitutional Court should terminate the proceedings because A. Lembergs had not applied to the Administrative Court, I. Nikuļceva explained: “The Constitutional Court has repeatedly pointed out that if the restriction of fundamental rights arises directly from an imperative norm of law, which is formulated unambiguously, the applicant is in a situation typical of the scope of this norm and there is no doubt about the application of the norm in the particular case,
the Constitutional Court Law does not require exhaustion of all formally existing possibilities, including recourse to an administrative court.
In the specific case, the Law on the Election of Local Government Councils prohibits all detained persons who are in a place of deprivation of liberty outside the district in which the person is registered to vote in municipal elections. Aivars Lembergs is imprisoned in Riga, but is registered in the Ventspils, which is a typical situation provided for in the Law on the Election of Local Government Councils, where voting in municipal elections is prohibited. The regulation of the law is unambiguous. As the Constitutional Court Law does not require exhaustion of formal possibilities, there is no reason to say that not all possibilities to defend one's rights have been exhausted and that therefore the proceedings should be terminated. In accordance with Section 85 of the Constitution and the laws of the Constitutional Court, the assessment of compliance with the Constitution is the exclusive competence of the Constitutional Court, the Administrative Court does not have such competence. According to the Administrative Procedure Law, if the Administrative Court has doubts about the non-compliance of a legal norm with the Constitution or a norm (act) of international law, it suspends the proceedings in the case and sends the application to the Constitutional Court, but then decides the case based on the Constitutional Court's judgment. If in a particular administrative case, such as case no. A420278914, the Administrative Court itself has decided the issue of non-compliance of the law with the Constitution (has indicated that the fourth part of Section 32 of the Law on the Election of Local Government Councils contradicts the right to participate in local elections and the principle of equality enshrined in Section 91 of the Constitution), it does not change the above-mentioned division of competence between the Constitutional Court and Administrative Courts and does not give grounds to assume that the Administrative Court will also act in the field of competence of the Constitutional Court in other cases.”
Duty to prevent violations of fundamental rights
The lawyer also drew attention to the chronology of events and the resulting legal consequences. Namely, A. Lembergs filed a complaint with the Constitutional Court on May 5, 2021, which initiated the case on June 4, 2021, but local elections took place on June 5, 2021: "So Aivars Lembergs appealed to the Constitutional Court regarding the violation of rights expected in the future. If the violation of fundamental rights is expected in the future, the requirement to exercise general judicial remedies does not apply. This is also indicated in the decision of the Constitutional Court regarding the initiation of the case.” I. Nikuļceva emphasized: “In a state governed by the rule of law, all public institutions, including the Saeima, have an obligation to act within the scope of their competence in order to prevent the violation of the fundamental rights of an individual. This follows from Section 89 of the Constitution, which provides: "The State shall recognise and protect fundamental human rights in accordance with this Constitution, laws and international agreements binding upon Latvia." If an individual indicates that the fundamental rights guaranteed to them by the Constitution have been violated, the legislator is obliged to make an objective assessment and, if necessary, amend the law himself, not to seek procedural excuses in order to avoid a judgment of the Constitutional Court by which a norm of law would be recognized as inconsistent with the Constitution.”