CASE OF PODKOLZINA v. LATVIA
Violation of P1-3;Not necessary to examine Art. 14;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
Nicolas Bratza
8. The applicant, a Latvian national born in 1964 and living in Daugavpils (Latvia), is a member of the Russian-speaking minority in Latvia. 9. By a decision of 30 July 1998 the Central Electoral Commission (Centrālā vēlēšanu komisija) registered the list of the candidates of the National Harmony Party (Tautas saskaņas partija) in the elections to the Latvian parliament (Saeima) of 3 October 1998. The applicant's name appeared on the list as the candidate for the constituency of Latgale. At the time of the registration of its list of candidates the National Harmony Party supplied the Central Electoral Commission with all the documents required by the Parliamentary Elections Act, including a copy of the certificate attesting to the fact that the applicant knew the State's official language – Latvian – issued on 23 January 1997 by the Standing Committee for the Certification of Linguistic Competence in the town of Daugavpils, a body responsible to the State Language Centre (Valsts valodas centrs), an administrative institution which was itself answerable to the Ministry of Justice. 10. On 6 August 1998 an examiner employed by the State Language Inspectorate (Valsts valodas inspekcija), part of the State Language Centre, went to the applicant's place of work and examined her orally to assess her knowledge of Latvian. As the applicant had not been notified of the visit, the examiner approached her while she was conducting negotiations with her business associates. Having informed the applicant of her intention to verify the level of her competence in Latvian, the examiner struck up a conversation with her in that language. During the conversation, which lasted over half an hour, the examiner asked the applicant, among other questions, why she supported the National Harmony Party rather than some other party. The examiner returned next day accompanied by three persons whom the applicant did not know, who were to act as invigilators. The examiner asked the applicant to write an essay in Latvian. The applicant agreed to do so and began to write. However, being extremely nervous, because she had not expected such an examination and because of the constant presence of the invigilators, the applicant stopped writing and tore up her work. 11. The examiner then drew up a report to the effect that the applicant did not have an adequate command of the official language at the “third level”, the highest of the three categories of competence defined in Latvian regulations. 12. On 10 August 1998 the State Language Centre sent the chairman of the Central Electoral Commission a letter certifying the level of knowledge of the official language attained by a number of candidates on the lists registered for the parliamentary elections. Although the letter referred to the report drawn up by the examiner from the State Language Inspectorate, the report was not appended to it. According to the certificate, of the nine candidates actually examined only the applicant did not have a command of Latvian at the “third level”. Twelve other candidates, who had not been required to take an examination, had documents certifying that their knowledge was at the requisite level. 13. By a decision of 21 August 1998 the Central Electoral Commission struck the applicant's name out of the list of candidates. 14. On 27 August 1998 the National Harmony Party, acting on the applicant's behalf, asked the Riga Regional Court to set aside the above decision. In its pleading the party alleged that when the list of candidates in the election was registered a copy of the certificate attesting to the applicant's knowledge of the State language had been supplied to the Central Electoral Commission. It submitted that the Central Electoral Commission should have taken that certificate into account, instead of relying solely on the certificate issued by the State Language Centre, as the two documents contradicted each other. 15. In a final judgment of 31 August 1998 the Riga Regional Court refused the application on the ground that the Central Electoral Commission had acted within the limits laid down by the Parliamentary Elections Act. In its judgment the Regional Court noted that section 11 of the Act made possession of a certificate of knowledge of the official language at the “third level” by all candidates who had not completed their primary or secondary education in Latvian a prerequisite for the registration of a list of candidates. Consequently, the Central Electoral Commission had complied with the requirements of the Act by deciding to register the list on which the applicant's name appeared. On the other hand, section 13 of the Act empowered the Commission to rectify the lists already registered by striking out the names of candidates whose level of knowledge of the official language had proved to be insufficient; in the applicant's case the inadequacy of her linguistic competence had been confirmed by the State Language Centre's certificate. The Riga Regional Court accordingly held that there had been no breach of the law. 16. On 14 September 1998 the National Harmony Party, acting on the applicant's behalf, lodged third-party appeals against that judgment with the President of the Civil Division of the Supreme Court and the Attorney-General, asking for the proceedings to be reopened on account of a serious and manifest breach of the substantive legal rules, resulting from faulty interpretation of the Parliamentary Elections Act. By two letters dated 29 September and 1 October 1998 respectively, the Attorney-General's office and the President of the Civil Division of the Supreme Court dismissed the appeals, ruling that the Regional Court had given reasons for its judgment and that the judgment was in accordance with the law. 17. Article 9 of the Constitution (Satversme) of the Republic of Latvia, adopted in 1922, provides: “Any Latvian citizen in possession of his full civic rights who has reached the age of 21 by the date of an election shall be eligible for election to Parliament.” 18. The relevant provisions of the Law of 25 May 1995 on parliamentary elections (Saeimas vēlēšanu likums – “the Parliamentary Elections Act”) are worded as follows: Section 4 “Any Latvian citizen who has reached the age of 21 by the date of an election shall be eligible for election to Parliament, provided that he is not barred by one of the restrictions set out in section 5 of this Act.” Section 5 “The following persons may not stand as candidates in an election or be elected to Parliament: ... (7) persons who do not have a command of the official language at the third (upper) level of knowledge.” Section 11 “The following documents must be enclosed with the list of candidates: ... (5) a certified copy ... of the certificate of knowledge of the official language at the third (upper) level, where the candidate was not taught in Latvian at school ...” Section 13 “... (2) Once registered, lists of candidates may not be altered, and the only corrections which the Central Electoral Commission may make to them are: 1. striking a candidate's name out of the list where: (a) the candidate is not a citizen in possession of full civic rights (see sections 4 and 5 above); ... (3) ... [T]he candidate's name shall be struck out of the list by virtue of a certificate from the relevant authority or a decision of the court. The fact that the candidate: ... 7. does not have a command of the official language at the third (upper) level of knowledge shall be certified by the State Language Centre; ...” 19. By section 50 of the Law of 28 July 1994 on the rules of parliamentary procedure (Saeimas kārtības rullis – “the Rules of Parliamentary Procedure Act”), Latvian is the sole working language in Parliament and its committees. All draft legislation and decisions, challenges and questions by members, and any documents appended to them must be written in Latvian. 20. The relevant provisions of the Languages Act (Latvijas Republikas Valodu likums), in force at the material time and up to 1 September 2000, were worded as follows: Section 1 “In the Republic of Latvia the official language shall be Latvian.” Section 4 “... [A]ll agents of public institutions ... must be capable of understanding and using the official language and the other languages at the level which is necessary for them to be able to perform their professional duties. The level of linguistic knowledge required of these agents shall be laid down in a regulation approved by the Cabinet ...” Section 6 “[I]n public institutions the official language shall be the language used for information documents and for all working meetings. Persons who do not have a command of the official language may, at working meetings and with the consent of the other participants, use another language. In that case, whenever at least one participant so requests, the organiser shall ensure that a translation into the official language is provided.” Section 7 “In the Republic of Latvia ... institutions and organisations must use the official language in all official information documents and in correspondence with addressees within the country. ...” 21. At the material time the precise levels of knowledge of Latvian were laid down by the regulation of 25 May 1992 on certification of knowledge of the State language (Valsts valodas prasmes atestācijas nolikums). Chapter II of the regulation fixed the limits of the three levels of knowledge of Latvian, of which the third was defined as follows: “Mastery of the spoken and written language is required for agents and employees whose professional tasks entail management of an undertaking and organisation of labour, or ... frequent contact with the public, [and for those] whose duties have to do with the well-being and health of the population (for example, members of parliament, persons managing public or administrative institutions or their structural units, boards of directors, inspectorates or undertakings, their deputies and secretaries, senior specialists, advisers, auditors, employees of Latvian cultural, educational and scientific bodies, doctors, assistant doctors, lawyers and judges). ... This level of knowledge of the official language entails the ability to: (1) converse freely; (2) understand texts chosen at random; and (3) draft texts relating to one's professional duties.” 22. Chapter IV of the regulation provided that examinations to test linguistic competence were to be organised by certification boards of nine, seven or five members, as the case required. Thus a board to verify the linguistic competence of a firm's employees had to have at least five members, including one representative of the trade concerned, one member delegated by the municipal certification board, and specialists in Latvian. Chapter VI of the regulation governed in detail the procedure for assessing the linguistic knowledge of persons required to take the examination. Each examination was to include a written part and an oral part. Each candidate was to have twenty to thirty minutes to prepare answers to the questions asked by members of the board, who could ask supplementary questions, but should, in principle, refrain from interrupting the candidate. The linguistic competence of each candidate was then assessed according to a number of different criteria (his narrative, conversational and writing skills, the breadth of the vocabulary used, and observance of grammatical rules). After the examination, board members deliberated before deciding by a simple majority vote which candidates had passed. Where the municipal certification board's delegate expressed an unfavourable vote, the unsuccessful candidate could appeal against the final decision to the board which had delegated him. A report had to be written on each candidate. 23. Section 51 of the Parliamentary Elections Act (see paragraph 18 above) provides: “An organisation which has submitted a list of candidates, or the candidates themselves, may challenge the decision of an electoral commission within seven days by means of an appeal to the court in whose territorial jurisdiction the electoral commission concerned falls.” 24. Administrative appeals are governed by the provisions of Chapter 24-A of the Latvian Code of Civil Procedure (Latvijas Civilprocesa kodekss), applicable to all relations covered by administrative law, except those for which a special appeals procedure has been laid down by law. In respect of electoral matters the lex specialis is Chapter 23 of the Code, whose relevant provisions provide as follows: Article 230 “... candidates for election to the Parliament of the Republic of Latvia ... may challenge an electoral commission's decisions by means of an appeal to the court in whose territorial jurisdiction the electoral commission concerned falls.” Article 233 “After hearing the appeal, the court shall deliver a judgment, either (1) ruling that the electoral commission's decision was taken in accordance with the law and dismissing the appeal; or (2) upholding the appeal and setting aside the electoral commission's decision. No appeal shall lie against this judgment, which shall take effect on delivery. The court shall immediately serve a copy of it on the Central Electoral Commission ...”