Communicated on 21 April 2020 Published on 25 May 2020

FIFTH SECTION

Applications nos. 54460/16 and 8430/16 Nikolajs POĻAKOVS against Latvia and Žanna JURGILEVIČA against Latvia lodged on 9 September 2016 and 8 February 2016 respectively

STATEMENT OF FACTS

1 . The applicant in the first case, Mr Nikolajs Poļakovs , is a Latvian national, who was born in 1958 and lives in Saldus novads . He is represented before the Court by Ms D. Vārna , a lawyer practising in Babites novads .

2 . In 1976 he was convicted of hooliganism. At the time of the offence he was 17 years old. In 1981 the applicant commenced his teaching career at the Saldus School of Sports. In 1985 he started working also in Saldus 1 st Secondary School as a sports teacher.

3 . On 21 August 2015, following the legislative changes (see paragraphs 20 - 21 below), the applicant requested the State Education Quality Service to issue him permission to work as a teacher.

4 . On 2 October 2015 the State Education Quality Service replied that the offence the applicant had been convicted of in 1976 qualified as a serious crime. Therefore, the domestic legislation did not allow the State Education Quality Service to carry out an assessment and take a decision permitting him to work as a teacher. By law, he did not have the right to work as a teacher.

5 . On 8 October 2015 he was dismissed from both the Saldus School of Sports and Saldus 1 st Secondary School.

6 . The applicant brought a constitutional complaint. On 3 February 2016 the Constitutional Court refused to institute the proceedings on the grounds that the legal reasoning provided was manifestly insufficient for granting the claim. In particular, the applicant had failed to substantiate whether the less restrictive measure proposed by him (i.e. differentiating the offences on the basis of their individual circumstances, such as a juvenile offender and the lapse of time since the conviction) would achieve the goals of the restriction at least to the same extent. In this decision the Constitutional Court also expressly acknowledged that no general remedies were available and a constitutional complaint should be brought within six month from the date of the interference.

7 . The applicant brought another constitutional complaint in which he expanded his reasoning concerning the less restrictive measures that could achieve the legitimate goals of the restriction. On 29 April 2016 the Constitutional Court again refused to institute the proceedings on the grounds that the legal reasoning provided had not substantially changed.

8 . The applicant in the second case, Ms Žanna Jurgileviča , is a Latvian national, who was born in 1978 and lives in Riga. She is represented before the Court by Mr J. Džanuškāns , a lawyer practising in Riga.

9 . From 2000-2006 the applicant worked as a teacher of Latvian language in Riga 51 st Secondary School.

10 . In 2007 the applicant was convicted of aiding a fraud scheme. In view of the limited extent of the applicant ’ s involvement in the offence, the trial court imposed a sanction below the one provided for by law.

11 . The applicant resumed her work as a teacher in 2008 in Riga 60 th Secondary School.

12 . On 20 January 2015, in view of the legislative changes (see paragraphs 20 - 21 below) the applicant requested the State Education Quality Service to issue her a permission to work as a teacher.

13 . On 12 February 2015 the State Education Quality Service replied that the offence the applicant had been convicted of qualified as a particularly serious crime. Therefore, the domestic legislation did not allow the State Education Quality Service to carry out an assessment and take a decision permitting her to work as a teacher. Accordingly, the applicant did not have the right to work as a teacher.

14 . The State Education Quality Service also notified Riga 60 th Secondary School that they should immediately terminate the employment with the applicant in order to ensure compliance with the Education Law. On 16 February 2015 the applicant and Riga 60 th Secondary School signed an agreement terminating the applicant ’ s employment.

15 . The applicant brought a constitutional complaint. On 2 June 2015 the Constitutional Court refused to institute proceedings on the grounds that the applicant had not substantiated how the contested legal provision had interfered in her rights, considering that the employment had been terminated on the basis of a mutual agreement.

16 . The applicant brought another constitutional complaint. She explained that the only reason for the termination of the employment had been the notification by the State Education Quality Service. A dismissal would have had several negative consequences on its own rights (a delay in the payment of the unemployment benefit, stigma). In view of the unequivocal formulation of domestic law the general remedies could not have yielded a different result. In that respect, the applicant relied on another case put before the Supreme Court (see paragraph 19 below).

17 . The Constitutional Court by its decision of 20 August 2015 refused to institute the proceedings on the grounds that the legal reasoning provided by the applicant had not substantially changed. In particular, the applicant had not explained why she had submitted her request with the State Education Quality Service at that specific time and why she had thought that the State Education Quality Service would carry out an assessment. Hence it could not be established when the interference with her rights had occurred. Furthermore, the Supreme Court case put forward by the applicant concerned the domestic regulation prior to its amendments in 2012 and was not fully applicable to the present case. Thus, the applicant had not explained her reasons for not availing herself of the general remedies. She also had not shown whether in the particular case the manner in which the employment had been terminated had not affected the possibility for her to defend her rights via the general remedies.

18 . Section 50, subsection 1 of the Education Law at the time of its adoption in 1998 provided that a person who had been convicted of an intentional criminal offence and had not been rehabilitated could not work as a teacher.

19 . On 5 October 2011 the Senate of the Supreme Court, sitting in an extended composition of seven judges, adopted a judgment whereby it interpreted this prohibition to also apply to persons whose criminal record had been cleared (case no. SKC-478/2011).

20 . Proceedings were brought before the Constitutional Court (case no. 2012-11-01) but while they were still pending, Parliament amended the disputed provision. In particular, it added that this prohibition would not apply to persons who had committed misdemeanours and minor crimes and with respect to whom, following the clearance of their criminal record, a designated Governmental institution had concluded that if they worked as teachers it would not harm the interests of pupils. The Cabinet of Ministers was to adopt the procedure in which this assessment would be made.

21 . The amended provision took effect on 1 October 2012 and on 12 February 2013 the Constitutional Court terminated the proceedings. The procedure for assessment was adopted by the Cabinet of Ministers on 15 April 2014 and took effect on 1 January 2015.

22 . On 16 March 2017 the Constitutional Court instituted constitutional proceedings concerning the amended provision (case No. 2017-07-01). By its judgment of 24 November 2017, the Constitutional Court found that subsection 1 of section 50 of the Education Law, insofar as it contained an absolute ban on persons convicted of serious and particularly serious crimes to work as teachers, was incompatible with Article 106 of the Constitution that guarantees the right to choose a profession. It annulled the provision as of 1 June 2018.

23 . A new regulation took effect on 18 October 2018 and it provides that an assessment has to be carried out with respect to everyone who has been convicted of an intentional criminal offence.

COMPLAINTS

The applicants complain that the absolute prohibition to work in their profession had been disproportionate.

The applicant in case no. 54460/16 emphasises that the legal regulation had envisaged no distinction whatsoever – neither with respect to the time that had lapsed since the commission of the offence, nor with respect to the offender ’ s juvenile status.

The applicant in case no. 8430/16 submits that the absence of individualised assessment for persons convicted of serious or particularly serious crimes had no justification.

Both applicants invoke Article 14 of the Convention, in essence, in conjunction with Article 8, and the applicant in the case no. 8430/16 also invokes Article 8 alone.

QUESTIONS TO THE PARTIES

1. Has there been a violation of the applicants ’ right to respect for their private life, contrary to Article 8 of the Convention?

2. Have the applicants suffered discrimination in the enjoyment of their Convention rights, contrary to Article 14 of the Convention, taken in conjunction with Article 8?

3. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, did they make the complaint, which has now been brought before the Court, to the appropriate domestic courts, at least in substance and in compliance with the formal requirements laid down in domestic law ?

3.1. Has the applicant in case no. 54460/16 discharged the obligation to exhaust domestic remedies in view of the constitutional complaints lodged by him (see Ēcis v. Latvia , no. 12879/09 , §§ 47-55, 10 January 2019)?

3.2. Has the applicant in case no. 8430/16 discharged the obligation to exhaust domestic remedies, in view of the constitutional complaints lodged by her and the Constitutional Court ’ s finding, made with respect to the applicant in case no. 54460/16, that no general domestic remedies were available for this type of complaint (see paragraph 6 of the Statement of Facts)?