JURGILEVIČA AND POĻAKOVS v. LATVIA

FIFTH SECTION

DECISION

Applications nos. 8430/16 and 54460/16
Žanna JURGILEVIČA against Latvia
and Nikolajs POĻAKOVS against Latvia

The European Court of Human Rights (Fifth Section), sitting on 14 November and 12 December 2023 as a Chamber composed of:

 Georges Ravarani, President,
 Lado Chanturia,
 Carlo Ranzoni,
 Mārtiņš Mits,
 Stéphanie Mourou-Vikström,
 Mattias Guyomar,
 Kateřina Šimáčková, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the applications (nos. 8430/16 and 54460/16) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 8 February and 9 September 2016 by two Latvian nationals, Ms Žanna Jurgileviča (“the first applicant”) and Mr Nikolajs Poļakovs (“the second applicant”);

the decision to give notice to the Latvian Government (“the Government”) of the applicants’ complaints concerning the statutory prohibition on practising their profession as teachers and to declare the remainder of the complaints lodged by the second applicant inadmissible;

the parties’ observations;

Having deliberated, decides as follows:

INTRODUCTION

1.  The case concerns a statutory prohibition barring anyone who has been convicted of a serious or especially serious crime from working as a teacher. It raises issues under Article 8 of the Convention.

THE FACTS

2.  The first applicant was born in 1978 and lives in Riga. She was represented by Mr J. Dzanuškāns, a lawyer practising in Riga. The second applicant was born in 1958 and lives in Saldus. He was represented by Ms D. Vārna, a lawyer practising in Bigauņciems.

3.  The Government were represented by their Agent, Ms K. Līce.

4.  The facts of the case may be summarised as follows.

5.  The first applicant worked as a teacher in school A from 2000 to 2006. On 3 October 2007 she was convicted of aiding and abetting a fraud scheme with a view to drawing social security benefits from the State. She pleaded guilty and entered into a plea bargain with the prosecution. In view of the limited extent of her involvement in the offence, together with the fact that she was pregnant at the time of the trial, her cooperation with the investigating authorities and her guilty plea, the prosecution proposed a penalty which was below the statutory minimum and the trial court imposed that penalty (namely a suspended prison sentence of two years with a probationary period of one year). That judgment became final on 16 October 2007. In 2008 the first applicant resumed her work, this time in school B. Her criminal record was “cleared” (sodāmība dzēsta) after the expiry of the sentence; it was not expunged (sodāmība nav noņemta) – it remained recorded as a “cleared criminal record” in the relevant domestic register.

6.  On 20 January 2015, following legislative changes (see paragraphs 26‑27 below), the first applicant requested the State Education Quality Service (“the Service”) to grant her permission to work as a teacher.

7.  On 12 February 2015 the Service replied, stating that the first applicant had been convicted of an especially serious crime. By law, she did not have the right to work as a teacher. School B was instructed to ensure compliance with section 50(1) of the Education Law by 19 February 2015 at the latest. On 16 February 2015 the first applicant and school B signed an agreement terminating her employment.

8.  The first applicant brought a constitutional complaint. On 2 June 2015 the Constitutional Court held that she had not substantiated the interference with her rights. In particular, she had failed to specify (i) the grounds for termination of her employment at school B, given that her employment had been terminated by mutual agreement, and (ii) the grounds for termination of her employment at school A, and when it had been terminated. The Constitutional Court refused to institute proceedings on the grounds that the first applicant had not complied with all the requirements laid down in law (section 20(5)(3) of the Law on the Constitutional Court).

9.  The first applicant brought another constitutional complaint. In addition to all the elements necessary for the Constitutional Court to carry out its analysis of constitutionality (see paragraph 19 below), she provided precise details of her dates of employment at schools A and B. She also noted that she had received a positive assessment and numerous commendations for her good work. The only reason for the termination of her employment at school B had been the instruction given by the Service. She submitted that the interference with her rights had taken place on 12 February 2015, when the Service had instructed school B to ensure compliance with section 50(1) of the Education Law. Consequently, school B had invited the first applicant to sign an agreement terminating her employment. She had agreed to sign it for personal reasons. By doing so, she could receive unemployment benefit earlier, which was important because she was caring for a child. Had she not agreed, she would have been dismissed in any event, which could have had adverse consequences for her employment prospects. Her signing the agreement had no impact on the fact that her rights had been interfered with – the Service had expressly stated that section 50(1) of the Education Law applied to her. She considered that the interference with her rights had occurred when the prohibition on her working as a teacher – which emanated from the domestic law – had been applied in respect of her.

10.  Furthermore, the first applicant addressed the question of general remedies. Although two remedies were available, they were not effective. Firstly, she could have lodged a complaint with the administrative courts about the instruction issued by the Service. However, in view of the clear wording of section 50(1) of the Education Law and of Regulation no. 195(2014) (see paragraphs 26-27 below), the outcome of those proceedings would not have provided any relief. Secondly, she could have instituted civil proceedings in relation to the termination of her employment. However, in a similar case already examined by the domestic courts, no relief had been provided to the claimant (the first applicant referred to case no. SKC-478/2011). She added that in the context of those civil proceedings, the Senate of the Supreme Court had applied to the Constitutional Court, but the latter had refused to institute proceedings. The first applicant referred to the interpretation of section 50(1) of the Education Law by the Senate of the Supreme Court in the case referred to (see paragraph 25 below). Moreover, such civil proceedings were lengthy. Lastly, citing a domestic legal scholar, she argued that she was not required to exhaust ineffective domestic remedies before applying to the Constitutional Court.

11.  On 20 August 2015 the Constitutional Court refused to institute proceedings, as the reasoning had not substantially changed (section 20(5)(5) of the Law on the Constitutional Court). It noted that the first applicant considered 12 February 2015 to be the date of the interference. However, given that the disputed provision had come into force in 2012, she had not explained why she had not applied to the Service until 2015. Nor had she explained why she had considered that the Service would carry out an assessment as to whether she should be allowed to work as a teacher. The Constitutional Court “could not verify whether the facts stated in the application had occurred and when the interference with the [first] applicant’s fundamental rights had taken place”.

12.  The Constitutional Court added that the first applicant’s arguments had to be examined in their entirety. The manner of and grounds for the termination of her employment were directly related to the effectiveness of the general remedies available. Although the first applicant had stated that no general remedies had been available to her, the domestic case-law cited by her was not fully applicable as it concerned the disputed provision in its wording before the 2012 amendments. In addition, the first applicant’s allegations about the length of proceedings were not sufficient as such to consider that the general remedies were not effective. The Constitutional Court held that the first applicant had not explained why she had not pursued the general remedies and whether the manner in which her employment had been terminated had had any impact on the availability of the general remedies. The Constitutional Court “could not verify that the [first] applicant could have effectively defended her rights using the general remedies, or that there were no such remedies”.

13.  Following legislative changes and a positive assessment by the Service (see paragraph 29 below), on 14 January 2019 the first applicant resumed her work as a teacher.

14.  The second applicant was convicted of hooliganism in 1976. At the time of the offence he was 17 years old. In 1981 the second applicant began his teaching career as a sports teacher.

15.  On 21 August 2015, following legislative changes (see paragraphs 26‑27 below), the second applicant requested the Service to grant him permission to work as a teacher.

16.  On 2 October 2015 the Service replied, stating that the second applicant had been convicted of a serious crime. The domestic law did not allow the Service to carry out an assessment of his individual case and take a decision permitting him to work as a teacher. By law, he did not have the right to work as a teacher.

17.  On 8 October 2015 he was dismissed from both schools he worked for.

18.  The second applicant brought a constitutional complaint; he noted that no general remedies were available to him since civil proceedings concerning his dismissal would not solve the problem given that there was no dispute as to how the impugned provision should be interpreted or as to the facts of the case; rather, the case concerned an interference with his fundamental rights emanating from the provision in issue.

19.  On 3 February 2016 the Constitutional Court accepted that no general remedies were available with respect to the second applicant’s claim. However, it refused to institute constitutional proceedings on the grounds that the legal reasoning provided was manifestly insufficient for the complaint to be allowed (section 20(6) of the Law on the Constitutional Court). It noted that the rights guaranteed in Article 106 of the Constitution (the right to choose a profession) could be restricted. When examining the constitutionality of such a restriction, the Constitutional Court had to examine: (1)  whether such interference was provided for by law; (2)  whether it had a legitimate aim; and (3)  whether the interference was proportionate to that legitimate aim. In order to establish the proportionality of the interference, it had to be determined: (a)  whether the chosen measure was appropriate for achieving the legitimate aim; (b)  whether the measure was necessary, that is, whether the legitimate aim could not be achieved by less restrictive measures; and (c)  whether the benefit to society outweighed the restriction on the individual’s rights.

20.  The Constitutional Court held that the second applicant had failed to provide reasons as to: (i)  whether the less restrictive measures proposed by him (that is (to say), differentiating between offences on the basis of their individual circumstances, such as the age of the offender at the time and the time that had elapsed since conviction) would achieve the goals of the restriction at least to the same extent as the regulation in force at that time (it also noted that the law did not provide for a blanket ban); and (ii)  whether the benefit to society outweighed the restriction on the individual’s rights (criteria 3(b) and (3)(c) referred to in paragraph 19 above).

21.  With regard to compliance with the principle of legal certainty emanating from Article 1 of the Constitution, the Constitutional Court held that the second applicant had failed to provide reasons as to whether his relying on that principle was reasonable and justified in the circumstances, which were also the elements that the Constitutional Court had to examine. It refused to institute constitutional proceedings on the grounds that the applicant had not complied with all the requirements laid down in law (section 20(5)(3) of the Law on the Constitutional Court).

22.  The second applicant brought another constitutional complaint, expanding on his reasoning. On 29 April 2016 the Constitutional Court refused to institute proceedings since the reasoning had not substantially changed (section 20(5)(5) of the Law on the Constitutional Court). As regards compliance with Article 106 of the Constitution, he had failed to provide reasons as to: (i)  whether the less restrictive measure would achieve the goal at least to the same extent as the regulation in force at that time; and (ii)  whether the benefit to society outweighed the restriction on the individual’s rights (criteria 3(b) and (3)(c) referred to in paragraph 19 above). Moreover, his complaint still lacked legal reasoning with regard to compliance with Article 1 of the Constitution.

23.  According to the second applicant, following his dismissal (see paragraph 17 above) he remained unemployed until 3 February 2017. On 4 February 2017 he took up employment as a private security guard. There is no information as to whether, following legislative changes (see paragraph 29 below), he resumed work as a teacher.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

24.  The relevant provisions of the Law on the Constitutional Court have been summarised in Ēcis v. Latvia (no. 12879/09, §§ 28-31, 10 January 2019).

25.  Section 50(1) of the Education Law at the time of its enactment in 1998 provided that “persons who had been convicted of an intentional criminal offence and who had not been rehabilitated” could not work as teachers. On 5 October 2011 the Senate of the Supreme Court, in the context of proceedings brought by a certain L.C., who had been convicted of a less serious offence, with a view to contesting his dismissal from work, interpreted that prohibition as applying to persons whose criminal record had been “cleared” (case no. SKC‑478/2011). In the context of those proceedings, the Senate of the Supreme Court had applied to the Constitutional Court with a view to having proceedings instituted regarding the compatibility of section 50(1) of the Education Law with Article 1 (legal certainty) and Article 106 (the right to choose a profession) of the Constitution, but its application was refused by a decision of 20 April 2011.

26.  In 2012 L.C. brought proceedings in the Constitutional Court by himself (case no. 2012-11-01); however, while those proceedings were ongoing, Parliament amended section 50(1) of the Education Law as follows:

“The following persons shall not be allowed to work as teachers:

(1)  persons who have been convicted of an intentional offence (regardless of their criminal record having been cleared or expunged), save for persons who have committed misdemeanours and less serious offences and in respect of whom, following the clearing or expunging of their criminal record, a designated governmental body has carried out an assessment to verify that their working as teachers would not harm the interests of pupils and has granted them permission to work as teachers. The Cabinet of Ministers shall determine the procedure for [that assessment].”

27.  The amended provision came into force on 1 October 2012 and the Constitutional Court discontinued the proceedings. The procedure for the above-mentioned assessment was adopted on 15 April 2014 and came into effect on 1 January 2015 (Regulation no. 195(2014) of the Cabinet of Ministers). It was to be carried out by the Service.

28.  On 24 November 2017, in proceedings brought by a certain R.V., who had been convicted of a serious offence and who had contested his dismissal in civil courts prior to bringing proceedings for review of constitutionality (case no. 2017-07-01), the Constitutional Court found that the blanket ban prohibiting persons convicted of serious and especially serious crimes from working as teachers was incompatible with Article 106 of the Constitution (the right to choose a profession) and declared the amended section 50(1) of the Education Law null and void as of 1 June 2018.

29.  On 18 October 2018 a new regulation came into force, which provided that the assessment had to be carried out in respect of anyone who had been convicted of an intentional criminal offence.

COMPLAINT

30.  The applicants complained, in essence, under Article 8 taken alone or in conjunction with Article 14 of the Convention that the absolute prohibition on their working in the teaching profession had been disproportionate. The first applicant submitted that the absence of an individualised assessment for persons convicted of especially serious crimes had no justification. The second applicant emphasised that the relevant legal regulations had made no provision for any distinction whatsoever – either with respect to the time that had elapsed since the commission of the offence, or with respect to the offender’s juvenile status.

THE LAW

31.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

32.  The parties agreed in principle that the disputed restriction on access to a specific profession emanated directly from a legislative provision and that the relevant domestic remedy was a complaint to the Constitutional Court. As the Court has consistently held, where the source of an alleged breach of a Convention right is a provision of Latvian law, proceedings should, in principle, be brought before the Constitutional Court prior to being brought before the Court (see, for example, Grišankova and Grišankovs v. Latvia (dec.), no. 36117/02, ECHR 2003-II (extracts), and Larionovs and Tess v. Latvia (dec.), nos. 45520/04 and 19363/05, §§ 142-43 and 167, 25 November 2014).

33.  The parties disagreed, however, as to whether the applicants had in fact availed themselves of that remedy. The Government emphasised that the applicants’ constitutional complaints had been rejected on procedural grounds, namely for failure to provide sufficient legal reasoning (see paragraphs 8-12 and 18-22 above). The first applicant considered that she had raised all the relevant issues with the Constitutional Court properly. The second applicant noted that he had twice attempted to lodge constitutional complaints and that they had been rejected for formalistic reasons. He argued that the requirement to provide sufficient legal reasoning was unreasonably prohibitive for a person such as himself who had been dismissed from his job and had limited resources to instruct a lawyer.

34.  According to the Court’s case-law, if the applicant has expressly and in substance raised before the Constitutional Court the complaint subsequently brought before the Court, and the Constitutional Court has rejected it for lack of legal reasoning, the Court will assess the reasoning provided in the decision (see Ēcis, cited above, §§ 50-55). Where the application is rejected for failure to comply with the Constitutional Court’s admissibility criteria, the Court will consider that the applicant has not exhausted the available domestic remedies (see Gubenko v. Latvia (dec.), no. 6674/06, §§ 9 and 25, 3 November 2015, and Svārpstons and Others v. Latvia (dec.), no. 14976/05, §§ 26 and 51, 6 December 2016). Where, however, the Constitutional Court has, at least partly, expressed its position on the substance of the applicant’s complaint, the Court will consider that the applicant provided the national authorities with an opportunity to put right the violations alleged against them (see Ēcis, cited above, §§ 20 and 53).

35.  The Court reiterates that it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. Unless the interpretation is arbitrary or manifestly unreasonable, the Court’s role is confined to ascertaining whether the effects of the interpretation are compatible with the Convention (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 149, 20 March 2018).

(a)   The first applicant

36.  The Court refers to the summary of its case-law regarding the exhaustion requirement in proceedings before the Constitutional Court (see paragraph 34 above). In the present case, however, the Constitutional Court did not reject the first applicant’s complaint for lack of legal reasoning (contrast the decisions adopted in response to the second applicant’s complaint – see paragraphs 18-20 above; see also Liepiņš v. Latvia (dec.) [Committee], no. 24827/16, § 16, 31 March 2022). Nor does it appear that the Constitutional Court expressed its position on the substance of the first applicant’s complaint (contrast Ēcis, cited above, §§ 20 and 53). Nevertheless, the Court observes that the Constitutional Court refused to institute proceedings on the grounds that the first applicant had not complied with all the requirements laid down in law (see paragraphs 8 and 11‑12 above). Normally, in such circumstances, the Court would consider that an applicant had failed to properly exhaust the available domestic remedies (see paragraph 34 above).

37.  The Court observes that the first applicant’s initial complaint to the Constitutional Court was rejected on the grounds that she had not substantiated the interference with her rights and, accordingly, had failed to comply with all the requirements laid down in law (see paragraph 8 above). The Court can accept that conclusion. Further, the Court notes that in her second complaint to the Constitutional Court she provided more arguments as to the alleged interference and details about her employment as a teacher, gave reasons as to why she had consented to sign the mutual agreement with school B, and argued that the alleged interference emanated from the application of the impugned legal provision in respect of her. The first applicant also provided reasons as to why she considered that the general remedies were not effective in her case (see paragraphs 9-10 above). Nevertheless, the Constitutional Court rejected the first applicant’s second complaint on the grounds that she had failed to substantiate the interference with her rights and the reasons for not pursuing the general remedies and, accordingly, that the reasoning had not substantially changed (see paragraphs 11-12 above). In doing so, the Constitutional Court stated that it was unable to verify the facts and establish when the alleged interference had taken place and whether there were effective domestic remedies available in her case. In other words, the Constitutional Court did not provide a clear answer to the issues which had been raised by the first applicant. In view of this and taking into account that the national courts are obliged to examine with particular care and rigour cases involving the rights and freedoms guaranteed by the Convention or its Protocols (see, mutatis mutandis, Paun Jovanović v. Serbia, no. 41394/15, § 108, 7 February 2023), the Court in the present case has to assess the arguments raised by the first applicant and the Constitutional Court’s decision in more detail.

38.  The Court notes that the first applicant considered that her rights had been interfered with – her employment had been terminated on the basis of an instruction issued by a State authority on 12 February 2015. Accordingly, she could no longer work as a teacher. However, the Court observes that the prohibition to work as a teacher for “persons who had been convicted of an intentional criminal offence and who had not been rehabilitated” had been applicable since the enactment of the Education Law in 1998. The 2012 amendments clarified the impugned prohibition – it applied to any person convicted of an intentional offence “regardless of their criminal record having been cleared or expunged”. Those amendments also established an individual assessment procedure for persons who had committed misdemeanours or less serious offences. That procedure did not apply in respect of the first applicant who had been convicted of an especially serious crime (see paragraphs 26-27 above). Therefore, the first applicant could not have any legitimate expectation that following the 2012 amendments she could work as a teacher.

39.  The Service, accordingly, did not have competence to grant her permission to work as a teacher; it only reiterated that by law she did not have such a right (see paragraph 7 above). While the Constitutional Court did not clarify whether there had been an interference with the first applicant’s rights and, if so, when it had taken place, its conclusion that the first applicant had failed to substantiate her submissions in that respect does not appear to be arbitrary or manifestly unreasonable (see paragraph 35 above).

40.  Furthermore, while the first applicant put forward the reasons why she considered that the general remedies were not effective in her situation (see paragraph 10 above), the Court reiterates that the impugned provision was enacted in 1998 and that following the 2012 amendments the first applicant could not have any legitimate expectation that she could work as a teacher.

41.  The Court shares the Constitutional Court’s view that the first applicant’s arguments had to be examined in their entirety and that the manner and grounds for termination of her employment were relevant when deciding on the effectiveness of the general remedies. The Constitutional Court did not clarify whether effective remedies were available to the first applicant in the circumstances. Nor did it examine the consequences, under the relevant domestic-law provisions, of the termination of an employment contract on the grounds of a mutual agreement or dismissal.

42.  The first applicant admitted that she could have instituted civil proceedings but she was not convinced that the outcome of such proceedings would bring her any relief because in another case, already examined by the domestic courts, no such relief had been provided (see paragraph 10 above). The Constitutional Court pointed out, in response, that the invoked domestic case-law was not fully applicable as it related to the legal regulation before the 2012 amendments. Moreover, the manner of and the grounds for the termination of the first applicant’s employment contract were directly relevant to the question of effectiveness of the available remedies and the first applicant had failed to elaborate on that point (see paragraph 12 above).

43.  The Court observes that it seems to be a well-established domestic practice that in the event of a dismissal from work, general remedies before the civil courts have to be exhausted prior to instituting proceedings before the Constitutional Court (see paragraphs 25-26 and 28 above). The Court is also mindful of the fact that the Constitutional Court later ruled that there were no general remedies available in the second applicant’s case (see paragraph 19 above). However, the first applicant’s situation was different in that her employment contract had been terminated on the basis of a mutual agreement. While the Court has some doubts about the effectiveness of the civil remedy in such circumstances, it cannot speculate on this point in the absence of an assessment by the Constitutional Court, a situation which, as noted above, was the result of the first applicant’s failure to elaborate on this specific legal question.

44.  To conclude, even though the Constitutional Court did not use the opportunity to thoroughly respond to all the issues raised by the first applicant, in the circumstances of the present case, she failed to lodge a proper constitutional complaint and, when invited to correct the deficiencies identified by the Constitutional Court, failed to do so; thus, she has failed to exhaust domestic remedies.

(b)   The second applicant

45.  The Constitutional Court indicated a list of points in respect of which the second applicant’s constitutional complaints lacked the necessary legal reasoning (see paragraphs 18-22 above). The Court can accept, in view of the Constitutional Court’s reasoning and being mindful of its own subsidiary role, that the constitutional complaints lodged by the second applicant did not comply with the procedural requirements as laid down in law and interpreted by the Constitutional Court. In particular, the Constitutional Court found that the second applicant had failed to analyse whether the less restrictive measure proposed by him would achieve the goal at least to the same extent as the regulation in force at that time and whether the benefit to society outweighed the restriction on the individual’s rights – two elements of the analysis which, according to the Constitutional Court’s established case-law, applicants are obliged to include when lodging constitutional complaints (see paragraph 18 above). Moreover, he did not indicate the relevant elements necessary for the assessment of compliance with the principle of legal certainty (see paragraph 21 above). The second applicant thus failed to provide legal reasoning in line with the requirements set forth in the Constitutional Court’s case-law (see Liepiņš, cited above, § 16).

46.  Accordingly, the second applicant failed to lodge a proper constitutional complaint, and to correct the deficiencies identified by the Constitutional Court; thus, he has failed to exhaust domestic remedies. Moreover, the second applicant has failed to substantiate that the level of his income preceding his dismissal was so low as not to allow any consultation with a lawyer or other specialists.

(c)   Conclusion

47.  In view of the above-mentioned considerations, the Court upholds the Government’s objection as regards the exhaustion requirement with respect to both applicants. It follows that their complaints must be declared inadmissible in accordance with Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 18 January 2024.

 Martina Keller Georges Ravarani
 Deputy Registrar President