Information Note on the Court’s case-law No. 109
June 2008
Adamsons v. Latvia - 3669/03
Judgment 24.6.2008 [Section III]
Article 3 of Protocol No. 1
Stand for election
Ineligibility for election of a former member of a military unit affiliated to the KGB: violation
Facts: The applicant was an officer in the Border Guard Forces of the former Soviet Union, an armed corps placed under the supervision of the KGB. During his service, which was mainly in the Far East, he was promoted to the rank of Commander. After the break-up of the USSR all the Soviet Armed Forces came under the jurisdiction of the Russian Federation. In 1992 the applicant left the Russian Border Guard Forces and returned to Latvia, where he was appointed to important posts in the command of the army. He became Vice-Commander of the Navy and then Commander of the Latvian Border Guard Forces. Finally, he abandoned his military career to go into politics. After having been Minister of the Interior, he was elected to Parliament in 1995. The applicant left the party then in power (“The Latvian Way”) and joined the ranks of the Social Democrat opposition. The Parliamentary Record Office took measures to have him formally recorded as having collaborated with the KGB. In a judgment given at the request of the prosecutor’s office, a court found that the applicant had been a “serving officer of the KGB Border Guard Forces” and not a “KGB officer” as the prosecution had maintained. On the basis of that judgment a number of members of parliament attempted to have the applicant’s parliamentary mandate revoked. They referred to a section of the Parliamentary Elections Act which disqualified citizens who were or had been serving officers of organs of public security or intelligence or counter-espionage services of the USSR, the SSR of Latvia or a foreign State from elected office. However, the parliamentary commission found that the judgment drew a clear distinction between a “KGB officer” and an “officer of the KGB Border Guard Forces”, even if the latter was subordinate to the KGB. The restriction in question applied only to the first category. In 2002 the applicant stood in the parliamentary elections as a candidate for the Workers’ Social Democratic Party of Latvia. Under the above-mentioned section of the Parliamentary Elections Act, however, the Central Electoral Commission struck him out of the list. The applicant appealed to the Central District Court. His appeal was dismissed and that ruling was upheld by the Senate of the Supreme Court. In 2006 the applicant was not able to stand for election.
Law: Article 3 of Protocol No. 1 – In order to be compatible with the Convention, a lustration procedure had to meet certain conditions.
a) Lawfulness: The applicant had been prevented from standing for election in application of the sub-section of the Parliamentary Elections Act which disqualified citizens who were or had been serving officers of organs of public security or intelligence or counter-espionage services of the USSR, the SSR of Latvia or a foreign State from elected office. In its final judgment upholding the decision to dismiss the applicant’s appeal the Senate of the Supreme Court had refused to entertain the distinction drawn by the applicant between a KGB officer and an officer of the KGB Border Guard Forces, thereby acknowledging that the provisions of the law concerned applied to him. The judgment therefore appeared sufficiently well-reasoned and the conclusions were not arbitrary.
b) Legitimate aim: Having regard to the situation Latvia had experienced under the Soviet yoke and the active role played by the KGB, the main State security organisation of the former USSR, in keeping the totalitarian regime in place and combating all political opposition to that regime, the impugned Elections Act had served the legitimate purpose of protecting the independence of the State, its democratic order, its institutional system and its national security.
c) Proportionality: In the light of the particular socio-historical background to the applicant’s case, the Court could accept that during the first years after Latvia had regained independence electoral rights could be substantially restricted without this infringing Article 3 of Protocol No. 1. However, with the passing of time, a mere general suspicion regarding a group of persons no longer sufficed and the authorities had to provide further arguments and evidence to justify the measure in question. The legal provision applied in this case targeted former officers of the KGB. Having regard to the wide-ranging functions of that agency, that concept was too broad: taken at face value it could be understood to include all those who had served in the KGB, regardless of the period concerned, the actual tasks they had been assigned and their individual conduct. The Constitutional Court had expressly mentioned this problem. The present case was fundamentally different from the Ždanoka case. Unlike in that case, it was not sufficient here simply to find that the person belonged to the group concerned. As that group was defined in terms which were too general, any restriction on the electoral rights of its members should take a case-by-case approach which would allow their actual conduct to be taken into account. The need for such a case-by-case approach grew greater over the years, as the period when the impugned acts were supposed to have taken place grew more distant in the past. The applicant had never been accused of having been directly or indirectly involved in the misdeeds of the communist totalitarian regime, such as repression of political and ideological opposition, informing against people or taking any other measure against them. There appeared to be nothing in the applicant’s past to suggest that he had opposed or expressed hostility to the recovery of Latvia’s independence and democratic order. Moreover, the applicant had not officially been declared disqualified from standing in elections until much later, after a remarkable ten-year military and political career in Latvia as re-established. Indeed, from his return he had held very important posts before embarking on a parliamentary career. Only the most compelling reasons could justify disqualifying the applicant in such conditions. In the absence of any information revealing new facts about the applicant, his disqualification was clearly at odds with the principle of legitimate trust. The ten-year period during which restrictions provided for in other legal instruments could be applied to former KGB officers was to expire in June 2004. Shortly afterwards, however, Parliament had extended it by another ten years. As neither Parliament nor the Government had explained the reasons for the extension, in spite of the passage of time and the stronger stability now enjoyed by Latvia thanks to its full integration into the European fold, the only possible conclusion was that the extension of the ban had been clearly arbitrary in respect of the applicant. Moreover, the facts of the present case revealed that the Constitutional Court of Latvia had found it possible to adopt a case-by-case approach in respect of another former KGB officer. It followed that the authorities had exceeded their acceptable margin of appreciation and the interference complained of was incompatible with the requirements of Article 3 of Protocol No. 1.
Conclusion: violation (six votes to one).
Article 41 – EUR 10,000 in respect of non-pecuniary damage.
See also the Ždanoka v. Latvia [GC] judgment, no. 58278/00, 16 March 2006, Information Note no. 84.
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This summary by the Registry does not bind the Court.
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