For years the Senate of the Supreme Court have been violating the Constitution applying an unconstitutional provision. The proceedings before the European Court of Human Rights continue.
In the Soviet times it was normal for a state official to file a protest to quash a binding judgment.
One would hope that after Latvia ratified the European Convention of Human Rights in the 90-ties it would no longer be possible. To honour the principle of legal certainty and the adversarial system as such, given the jurisprudence of the European Court of Human Rights in these matters.
It was an illusion. The protest procedure continued and probably would have still continued if not for our constitutional complaint and another complaint to the European Court of Human Rights. In fact, it is surprising that no one had challenged the validity of the protest procedure over these years.
It is the signature of the speaker of the Latvian Parliament, Ms Solvita Aboltina, on various submissions to the Constitutional Court failing to recognise the problem. It was also Ms Solvita Aboltina who announced that the Latvian legal system has become fully integrated into the western legal system and its legal principles and values.
The Constitutional Court has recently ruled that the legal provision allowing the Chairman of the Senate of the Supreme Court to file a protest to quash a binding judgment violates the Constitution because the senators working in the Senate and hearing the protest may seem not to be impartial.
The ruling is satisfactory only in part. On one hand it means that the senators have been violating the Constitution for years, but it will no longer be possible. On the other hand the Constitutional Court has avoided analysing the problem from the aspect of legal certainty (res judicata), the principle of equality of arms and the adversarial procedure as such. It is not the first time that the Constitutional Court renders a ruling that somewhat demonstrates the reluctance to analyse issues potentially bringing shame to the Latvian state and the Supreme Court. How does one reasonably litigate against the administrative boss of all the Civil Division senators of the Supreme Court who does not even come to the hearing to argue his protest, but is supported by a prosecutor from the General Prosecutor’s Office and still call it an adversarial system?
Luckily, our client’s complaint against the Latvian state is already pending before the European Court of Human Rights. The Senate of the Supreme Court have decided to apply the European Convention of Human Rights directly and dismiss the protest. However, it does not change the fact that our clients have been forced into this litigation before the Senate and hence the proceedings before the European Court of Human Rights continue.