EHRM, 16-03-2006, nr. 58278/00

On 23 August 1939 the foreign ministers of Germany and the Union of the Soviet Socialist Republics (‘USSR’) signed a non-aggression treaty (the ‘Molotov-Ribbentrop Pact’). The treaty included a secret additional protocol, approved on 23 August 1939 and amended on 28 September 1939, whereby Germany and the Soviet Union agreed to settle the map of their ‘spheres of influence’ in the event of a future ‘territorial and political rearrangement’ on the territories of the then—independent countries of central and eastern Europe, including the three Baltic States of Lithuania, Latvia and Estonia. After Germany's invasion of Poland on 1 September 1939 and the subsequent start of World War II, the Soviet Union began exerting considerable pressure on the governments of the Baltic States with a view to taking control of those countries pursuant to the Molotov-Ribbentrop Pact and its additional protocol.

Following an ultimatum to allow an unlimited number of Soviet troops to be stationed in the Baltic countries, on 16-17 June 1940 the Soviet army invaded Latvia and the other two independent States. The Government of Latvia was removed from office, and a new government was formed under the direction of the Communist Party of the Soviet Union (hereafter ‘the CPSU’), the USSR's only party. From 21 July to 3 August 1940 the Soviet Union completed the annexation of Latvia, which became part of the USSR under the name ‘Soviet Socialist Republic of Latvia’ (‘Latvian SSR’).

The applicant was born in Riga into a Russian-speaking family. In 1971 she joined the Communist Party of Latvia (hereafter ‘the CPL’) while studying at the University of Latvia in Riga. The CPL was in reality a regional branch of the CPSU. From 1972 to 1990 the applicant worked as a lecturer at the University of Latvia. Throughout this period she was a member of the CPL.

In the late 1980s there was considerable social pressure in Latvia, as in other east European countries, for the democratisation of political life. As a result of the newly-introduced freedom of expression on the territory of the Soviet Union, mass political movements were formed in Latvia, as well as in the other Baltic States, condemning the annexation of the country, asserting the need to construct a new society based, inter alia, on Latvian identity and values, and emphasising the need to restore State independence.

The first independent elections under the Soviet regime took place on the territory of Latvia in March 1990. The applicant was elected to the Supreme Council (Augstākā Padome) of the Latvian SSR as a representative for the Plavnieki constituency in Riga. She subsequently joined the CPL's local branch. In April 1990 this branch selected her to attend the CPL's 25th Congress, where she was elected to the party's Central Committee for Supervision and Audit. According to copies of that Committee's minutes, the applicant was a member of a sub-committee responsible for supervising the implementation of decisions and activities arising from the CPL programme.

At the same congress, a group of delegates expressed their disagreement with the CPL's general policy, which remained loyal to the Soviet Union and the CPSU. According to those delegates, the CPL was opposed to any democratisation of public life and sought to maintain the status quo of the Soviet rule. These delegates publicly announced their withdrawal from the CPL and established a new party, the ‘Independent Communist Party of Latvia’, which immediately declared its support for Latvian independence and for a multi-party political system. The applicant did not join the dissident delegates and remained within the CPL.

On 4 May 1990 the Supreme Council adopted a Declaration on the Restoration of the Independence of the Republic of Latvia, which declared Latvia's incorporation into the USSR unlawful and void and restored legal force to the fundamental provisions of the Latvian Constitution (Satversme) of 1922. However, paragraph 5 of the Declaration introduced a transition period, aimed at a gradual restoration of genuine State sovereignty as each institutional tie with the USSR was severed. During that transition period, various provisions of the Constitution of the Latvian SSR would remain in force. A special governmental commission was given responsibility for negotiating with the Soviet Union on the basis of the Russo-Latvian Peace Treaty of 11 August 1920.

The above-mentioned Declaration was adopted by 139 out of a total of 201 Supreme Council members, with one abstention. 57 members of the "Lidztiesiba" parliamentary bloc ("Equal Rights", in reality the CPL group), including the applicant, did not vote. On the same day, 4 May 1990, the Central Committee of the CPL adopted a resolution strongly criticising the Declaration and calling on the President of the Soviet Union to intervene.

On 7 May 1990 the Supreme Council approved the Government of the independent Republic of Latvia.

On the evening of 12 January 1991 the Soviet army launched military operations against the neighbouring country of Lithuania, whose Government had been formed in the same way as the Latvian Government. Soviet troops entered the TV tower of Vilnius and the headquarters of the Lithuanian public TV, and also tried to take the seat of the Lithuanian Parliament and other authorities. Massive crowds, made up of Lithuanian citizens, came to the protection of the institutions of the newly-independent Lithuania. 13 Lithuanian civilians were killed and hundreds injured as a result of the conflict involving the Soviet army.

The parties disagree as to who was responsible for the deaths during the events in Vilnius on 12-13 January 1991. According to the respondent Government, the Communist Party of the Soviet Union was directly responsible for those deaths, in that the CPSU had full and effective control of the Soviet troops. The applicant contested the Government's version, stating that the Soviet army's aggression against the Lithuanian Government and the Lithuanian people was not a proven fact; in this connection, she submitted a copy of a Russian newspaper article which alleged that it had been the Lithuanian independence supporters themselves who fired into the crowd with the aim of discrediting the Soviet army.

At the same time, an attempted coup was launched in Latvia. On 13 January 1991 the Plenum of the CPL Central Committee called for the resignation of the Latvian Government, the dissolution of the Supreme Council and the assumption of full powers by the Latvian Public Rescue Committee (Vislatvijas Sabiedriskās glābšanas komiteja), set up on the same date by several organisations including the CPL. On 15 January 1991 this committee announced that the Supreme Council and the Government were stripped of their respective powers and declared that it was assuming full powers. After causing the loss of 5 civilian lives and injuries to 34 persons during armed confrontations in Riga, this attempted coup failed.

According to the respondent Government, it was absolutely clear that the attempted coup in Latvia was launched by the CPL against the background of the Vilnius events, in the expectation that Soviet troops would also invade Riga to support the pro-Soviet coup. The applicant submitted that, at the material time, a series of public demonstrations had been held in Latvia to protest against the rise in food prices introduced by the Latvian Government; those demonstrations were thus the main reason for the events of January 1991. The applicant also emphasised that, in their respective statements of 13 and 15 January 1991, the Plenum of the CPL Central Committee and the Latvian Public Rescue Committee had not only called for and announced the removal of the Latvian authorities, but had also stated that early elections would be held for the Supreme Council.

On 3 March 1991 a national plebiscite was held on Latvian territory. Electors had to reply to a question worded as follows: ‘Do you support a democratic and politically independent Republic of Latvia?’ According to figures supplied by the Government, 87.5 % of all residents registered on the electoral roll voted: 73.6 % of them responded in the affirmative. According to the Government, this was a genuine national referendum, confirming the support of the overwhelming part of the Latvian population for the idea of national independence. The applicant maintains that it was a simple consultative vote, and contests the above-mentioned turnout rate and thus the very legitimacy of the plebiscite.

On 19 August 1991 there was an attempted coup in Moscow. The self-proclaimed ‘National State of Emergency Committee’ announced that Mr Gorbachev, President of the USSR, was suspended from his duties, declared itself the sole ruling authority and imposed a state of emergency ‘in certain regions of the USSR’.

On the same day, 19 August 1991, the Central Committee and the Riga Committee of the CPL declared their support for the National State of Emergency Committee and set up an ‘operational group’ to provide assistance to it. According to the Government, on 20 August 1991 the CPL, the ‘Līdztiesība’ parliamentary bloc and various other organisations signed and disseminated an appeal called ‘Godājamie Latvijas iedzīvotāji!’ (‘Honourable residents of Latvia!’), urging the population to comply with the requirements of the state of emergency and not to oppose the measures imposed by the National State of Emergency Committee in Moscow. According to the applicant, the CPL's participation in all those events has not been proved; in particular, the members of the ‘Līdztiesība’ bloc were taking part in parliamentary debates over two consecutive days and were not even aware that such an appeal was to be issued.

This coup also ended in failure. On 21 August 1991, the Latvian Supreme Council enacted a constitutional law on the state status of the Republic of Latvia and proclaimed the country's immediate and absolute independence. Paragraph 5 of the Declaration of 4 May 1990, concerning the transition period, was repealed.

By a decision of 23 August 1991 the Supreme Council declared the CPL unconstitutional. The following day, the party's activities were suspended and the Minister of Justice was instructed ‘to investigate the unlawful activities of the CPL and to put forward … a motion on the possibility of authorising its continued operations’. On the basis of the proposal by the Minister of Justice, the Supreme Council ordered the party's dissolution on 10 September 1991.

In the meantime, on 22 August 1991 the Supreme Council set up a parliamentary committee to investigate the involvement of members of the ‘Līdztiesība’ bloc in the coup. On the basis of that committee's final report, the Supreme Council revoked fifteen members' right to sit in parliament on 9 July 1992; the applicant was not one of those concerned.

In February 1993 the applicant became chairperson of the ‘Movement for Social Justice and Equal Rights in Latvia’ (‘Kustība par sociālo taisnīgumu un līdztiesību Latvijā’), which later became a political party, ‘Līdztiesība’ (‘Equal rights’).

On 5 and 6 June 1993 parliamentary elections were held in accordance with the restored Constitution of 1922. For the first time since Latvian independence had been regained, the population elected the Parliament (Saeima), which took over from the Supreme Council. It was at that point that the applicant's term of office as a member of parliament expired. As a result of the Latvian authorities' refusal to include her on the residents' register as a Latvian citizen, she was unable to take part in those elections, in the following parliamentary elections held in 1995, or in the municipal elections of 1994. Following an appeal lodged by the applicant, the courts recognised her as holding Latvian nationality by right in January 1996, on the ground of her being a descendant of a person who had possessed Latvian nationality before 1940. The courts therefore instructed the electoral authorities to register the applicant and to supply her with the appropriate documents.

By way of a final judgment of the Supreme Court of 27 July 1995, AR and OP, formerly the most senior officials in the CPL, were found guilty of attempting to overthrow the legitimate authorities of independent Latvia by violent means. The judgment accepted inter alia the following circumstances as historical facts:

The relevant provisions of the Constitution (Satversme) of the Republic of Latvia, adopted in 1922 and amended by the Law of 15 October 1998, are worded as follows:

The relevant provisions of the Parliamentary Elections Act (Saeimas vēlēšanu likums) of 25 May 1995 provide:

The Law of 13 January 1994 on elections to municipal councils and city councils (Pilsētas domes un pagasta padomes vēlēšanu likums) contains similar provisions to the provisions of the Parliamentary Elections Act cited above. In particular, section 9(5) is identical to section 5(6) of that Act.

The procedure for obtaining a judicial statement attesting to an individual's participation or non-participation in the above-mentioned organisations is governed by Chapter 23-A of the Code of Civil Procedure (Civilprocesa kodekss), which was inserted by a Law of 3 September 1998 and is entitled ‘Examination of cases concerning the attestation of restrictions on electoral rights’. The provisions of that chapter read as follows:

The applicant requested that the Chamber's judgment be upheld. She considered that the reasons given for her disqualification should be examined in the light of the principles and conclusions identified by the Court in the United Communist Party of Turkey and Others v. Turkey judgment of 30 January 1998 (Reports 1998-I, pp. 21–22, §§ 45–46). The applicant contested the allegations regarding the CPL's allegedly totalitarian and dangerous nature with reference to the party's official programme adopted in April 1990, which advocated ‘constructive cooperation between different political forces favourable to the democratic transformation of society’ and ‘a society based on the principles of democracy [and] humanism’. Moreover, at the time of the CPL 25th Congress, the party had had no intention of restoring the former totalitarian communist regime. She further pointed out that the CPL was declared unconstitutional only on 23 August 1991 and that the party's activities had remained perfectly legal until that date, including in the period after the events of January 1991.

The applicant further argued that the very facts of her membership in the CPL and her position in the structure of the party did not suffice to prove a lack of loyalty towards Latvia. Indeed, of the 201 members of the Supreme Council, 106 had originally been members of the CPL and the division of members of parliament into two main camps had been based solely on their attitude to the Declaration of Independence, and not on whether they had been members of that party. Equally, the CPL could not be accused of having attempted to overthrow the democratic regime. With regard to the events of January 1991, the applicant repeated her own version of events (see paragraphs 21, 23–24 above). She submitted a copy of the appeal by the CPL parliamentary group, published on 21 January 1991, containing a denial that the party had been involved in organising the armed incursions and deploring ‘political provocation … misleading world opinion’. In any event, the applicant herself had never been a member of the Latvian Public Rescue Committee. As to the events of 19 August 1991, she contended that there was evidence exculpating the CPL.

The applicant considered that the Republic of Latvia's ambiguous constitutional status during the period in question was an important factor to be taken into consideration. In that connection, she noted that the Declaration of Independence of 4 May 1990 had established a transition period so that institutional links with the USSR could be gradually severed. In reality, it had been a period of diarchy, during which Soviet and Latvian constitutional and legislative texts, and even some Soviet and Latvian institutions, coexisted and functioned in parallel throughout the national territory. The applicant acknowledged that the Constitutional Law of 21 August 1991 had ended the transition period; however, it was impossible to declare null and void the very existence of that period. Since the legitimacy of the institutions which were then functioning on the territory of Latvia was not clearly established, it was not correct to speak of a coup d'état in the proper meaning of this expression.

Nor could the CPL be criticised for having taken a pro-Soviet and anti-independence stance during the transition period. While acknowledging that the CPL and she herself had declared their firm support for a Latvia which enjoyed greater sovereignty but remained an integral part of the USSR, the applicant observed that, at the material time, there was a very wide range of opinions on how the country should develop politically, even among those members of parliament who supported independence in principle. In addition, leaders of foreign States had also been divided on this subject: some had been very sceptical about the liberation of the Baltic States and had preferred to adopt an approach based on non-interference in the Soviet Union's internal affairs. In short, in supporting one of the possible avenues for development, the CPL had in fact exercised its right to pluralism of political opinions, a right which was inherent in a democratic society.

The applicant considered ill-founded and unsubstantiated the Government's argument that to allow persons who had been members of the CPL after 13 January 1991 to become members of the national Parliament would be likely to compromise national security. She pointed out that the impugned restriction had not existed before 1995 and that, in the first parliamentary elections following restoration of the 1922 Constitution, three individuals in the same position as herself had been elected to the Latvian Parliament. In those circumstances, the applicant could not see how her election could threaten national security such a long time after the facts held against her.

In so far as the Government referred to the Constitutional Court's judgment of 30 August 2000, the applicant referred to the dissenting opinion signed by three of the seven judges who had examined the case and found that the restriction was disproportionate. With regard to the Constitutional Court's restrictive interpretation of the electoral law, which presupposed an evaluation of the individual responsibility of each person concerned, the applicant argued that nothing in her personal conduct justified the disputed measure, since she had never attempted to restore the totalitarian regime or to overthrow the legitimate authorities. On the contrary, she had campaigned for democratisation and reform within the CPSU, the CPL and society as a whole.

The applicant also argued that nothing in her personal conduct justified the restriction imposed on her electoral rights. Subsequent to January 1990, she had campaigned in a non-governmental organisation, ‘Latvijas Cilvēktiesību komiteja’ (‘Latvian Committee for Human Rights’), and had co-chaired that organisation until 1997. Working within the committee, she had become very well known for her activities in providing legal assistance to thousands of individuals; she had helped to promote respect for human rights in Latvia and she had been responsible for implementing three Council of Europe programmes.

Finally, and contrary to the Government's submissions, the applicant considered that the impugned restriction was not provisional. In that connection, she pointed out that, although Parliament had indeed re-examined the electoral law before each election, this re-examination had always resulted in an extension rather than a reduction in the number of circumstances entailing disqualification. Consequently, it had to be acknowledged that the disqualification of individuals who had been active within the CPL after 13 January 1991 was likely to continue. In conclusion, the applicant emphasised that the Government's restoration of her ability to stand as a candidate to the Latvian Parliament was long overdue, in particular in view of her recent election as a member of the European Parliament, a fact which confirmed that she had the confidence and support of a significant part of the Latvian electorate.

The Government requested the Grand Chamber to find no violation of Article 3 of Protocol No. 1. They submitted a detailed description of the historical events leading to the restoration of Latvian state independence. They stated that the Chamber had failed to take due account of these events in reaching its conclusions. In addition, they referred to the historical facts established by the Latvian judicial and parliamentary authorities, confirming the CPL's responsibility for the unconstitutional attempted coups between January and August 1991 (see paragraphs 20–29, 32, 37–44, 54–55 above). The Government emphasised that the applicant had been fully aware of the scale of the events, but she had nevertheless chosen to remain a CPL activist rather than dissociate herself from that organisation's clearly subversive activities.

The Government acknowledged that a national Parliament was not part of the ‘civil service’ in the same way as the police or the armed forces. However, they emphasised that Parliament was a public institution and, in enacting legislation, MPs were participating directly in the exercise of powers conferred on them by the Constitution and other laws. Consequently, the criteria identified by the Court under Articles 10 and 11 of the Convention with regard to restrictions on the political activity of civil servants were applicable by analogy to candidates for parliamentary office as well as elected representatives. The Government therefore disagreed with the Chamber's finding that the criteria of political loyalty had no relevance to the right to stand as a candidate for election.

With regard to the aim pursued by the impugned restriction, the Government observed that the disqualification from standing for election applied to those persons who had been active within organisations which, following the declaration of Latvia's independence, had openly turned against the new democratic order and had actively sought to restore the former totalitarian communist regime. It was therefore necessary to exclude those persons from exercising legislative authority. Having failed to respect democratic principles in the past, there was no guarantee that they would now comply with such principles. Relying on the Ahmed and Others v. the United Kingdom judgment of 2 September 1998 (Reports 1998-VI, p. 2395, § 52), the Government argued that the disputed disqualification was preventative in nature and did not require proof of actual dangerous or undemocratic actions on the part of those persons. The Government therefore disagreed with the Chamber's finding on the allegedly punitive nature of the impugned restriction.

With reference to the above-mentioned Rekvényi v. Hungary judgment (loc. cit., § 41), the Government underlined that the principle of a ‘democracy capable of defending itself’ was compatible with the Convention, especially in the context of the post-communist societies of central and eastern Europe.

Furthermore, the above-mentioned Vogt judgment could not be relied on in support of the applicant's submissions. Mrs Vogt's activities within the German Communist Party had been legal activities within a legal organisation. In contrast, in the present case the enactment on 4 May 1990 of the independence declaration had created a new constitutional order for Latvia, of which that declaration had become the basis. Accordingly, during the period from 4 May 1990 to 6 June 1993, the date on which the 1922 Constitution was fully re-established, any action against the said declaration or against the state system founded by it had to be considered unconstitutional. The Government also disputed the applicant's assertion regarding the existence of a constitutional diarchy during the events of 1991.

In addition, the applicant's disqualification had the aim of protecting the State's independence and national security. Referring in that connection to the resolutions adopted in April 1990 by the CPL 25th Congress, the Government noted that that party had always been hostile to the restoration of Latvia's independence and that one of its main aims had been to keep the country within the Soviet Union. Accordingly, the very existence of a State Party to the Convention was threatened in the instant case, and granting access to the bodies of supreme state power to individuals who were hostile to that State's independence would be likely to compromise national security.

Furthermore, the restriction in question was proportionate to the legitimate aims pursued. The impugned disqualification was not applicable to all those individuals who had officially been members of the CPL after 13 January 1991, but only to those who had ‘acted’ or ‘actively participated’ in the party's operations after the above-mentioned date, i.e. to persons who, in their administrative or representative functions, had threatened Latvia's democratic order and sovereignty. This restrictive interpretation of the electoral legislation had in fact been imposed by the Constitutional Court in its judgment of 30 August 2000.

In the present case, the applicant's hostile attitude to democracy and to Latvia's independence had been clear since the CPL 25th Congress, during which she chose not to align herself with the dissident progressive delegates, opting instead to remain with those who supported the ‘hard-line’ Soviet policy (see paragraph 10 above). Equally, the Central Committee for Supervision and Audit had a leading position in the CPL's internal structure and the applicant was a member of a sub-committee responsible for supervising implementation of the party's decisions and policies. The majority of decisions taken by CPL bodies reflected an extremely hostile attitude to the re-establishment of a democratic and independent republic. In that connection, the Government referred once again to the statement issued by the CPL's Central Committee on 13 January 1991, establishing the Latvian Public Rescue Committee and aimed at usurping power, even though they admitted that the applicant herself had not been present at the Central Committee's meeting on that date. In short, as one of those responsible for supervising implementation of the CPL's decisions, the applicant could not have failed to oppose an independent Latvia during the period in question.

Although the applicant's position within the CPL sufficed in itself to demonstrate her active involvement in that party's activities, the domestic courts had nonetheless based their reasoning on the extent of her personal responsibility rather than on a formal finding regarding her status in the party's organisational structure. The Government therefore disagreed with the Chamber's finding that the review of the applicant's case by the domestic courts had been excessively formal or insufficient.

Moreover, the applicant's current conduct continued to justify her disqualification. Relying on numerous press articles, they submitted that the applicant's political activities were part of a ‘carefully scripted scenario’ aimed at harming Latvia's interests, moving it away from the European Union and NATO and bringing it closer to the Commonwealth of Independent States. The Government referred to certain critical statements recently made by the applicant about the State's current policy towards the Russian-speaking minority and the new Language Act; they also criticised the applicant's role in the organisation of public meetings on the dates of former Soviet festivals.

They stressed that since the reinstatement of the 1922 Constitution, each successive Parliament had examined the need to maintain the disqualification of individuals who had been active members of the CPSU or the CPL after 13 January 1991. This periodic re-examination constituted an established parliamentary practice and showed that the restriction in question was provisional in nature. The Chamber had failed to give sufficient weight to that fact.

Finally, the Government emphasised the fact that the CPSU, through its subordinate sections within the Soviet Union and elsewhere in central and eastern Europe, had to be seen as the only party having control of all branches of power, as well as of the ‘lives and minds’ of the people, for a period of many decades following the Second World War. The former communist States of central and eastern Europe were thus to be distinguished from other countries where a political party might be considered as posing a threat to national security and other vital interests within the context of the established framework of democratic institutions. The new democracies of central and eastern Europe were more sensitive than other European countries to the threat to the democratic regime presented by the resurgence of ideas akin to those espoused by the CPSU and CPL. In view of these special circumstances, the Government considered that the Latvian authorities were best placed to evaluate the steps needed to protect the democratic regime, including by means of measures such as those at issue in the present case.

The Court observes, in the first place, that a number of historical events are disputed between the parties. Thus, the applicant contests the Government's version of events with regard to the origin and nature of the first attempted coup in January 1991, the plebiscite of March 1991 and the CPL's collaboration with the perpetrators of the second attempted coup in August 1991 (see paragraphs 20–29, 32, 37–44 and 55–56 above). However, in exercising its supervisory jurisdiction, the Court's task is not to take the place of the competent national authorities but rather to review the decisions they delivered pursuant to their power of appreciation. In so doing, it has to satisfy itself that the national authorities based their decisions on an acceptable assessment of the relevant facts, and did not reach arbitrary conclusions (see, for example, Vogt v. Germany, cited above, p. 26, § 52; Socialist Party and Others v. Turkey, judgment of 25 May 1998, Reports 1998-III, p. 1256, § 44; Freedom and Democracy Party (ÖZDEP) v. Turkey[GC], no. 23885/94, § 39, ECHR 1999-VIII). Furthermore, the Court will abstain, as far as possible, from pronouncing on matters of purely historical fact, which do not come within its jurisdiction; however, it may accept certain well-known historical truths and base its reasoning on them (see Marais v. France, no. 31159/96, Commission decision of 24 June 1996, DR 86, p. 184, and Garaudy v. France (dec.), no. 65831/01, ECHR 2003-IX).

In the present case, there is no indication of arbitrariness in the way in which the Latvian courts evaluated the relevant facts. In particular, the CPL's participation in the events of 1991 has been established by a Supreme Court judgment in the context of a criminal case brought against two former senior officials of the party (see paragraph 32 above). Equally, the Court does not see any reason to dispute either the findings of fact made by the Riga Regional Court and the Civil Division of the Supreme Court with regard to the events of 1991 and the applicant's standing in the CPL at the material time, or the reasons given by the Supreme Council to justify the suspension of the CPL's activities in September 1991. It accepts the facts concerning the CPL's role during the events of January and August 1991, as well as its activities in the wake of these events, as established by the Latvian judicial and parliamentary authorities (see paragraphs 20–29, 32, 37–44 and 55–56 above).

Turning to the circumstances of the present case, the Court notes that the applicant alleges a violation of Article 3 of Protocol No. 1 in view of her exclusion from standing as a candidate for election to the Latvian Parliament pursuant to section 5(6) of the Parliamentary Elections Act 1995 on the ground that she had ‘actively participated’ in the activities of the CPSU (CPL) after 13 January 1991.

The Court points out in the first place that the criterion of political loyalty which may be applied to public servants is of little, if any, relevance to the circumstances of the instant case, which deals with the very different matter of the eligibility of individuals to stand for Parliament. The criterion of ‘political neutrality’ cannot be applied to members of Parliament in the same way as it pertains to other State officials, given that the former cannot be ‘politically neutral’ by definition.

The Court further finds that the impugned restriction pursued aims compatible with the principle of the rule of law and the general objectives of the Convention, namely the protection of the State's independence, democratic order and national security.

It remains to be established whether the restriction was proportionate. It is to be observed in this connection that Latvia, together with the other Baltic States, lost its independence in 1940 in the aftermath of the partition of central and eastern Europe agreed by Hitler's Germany and Stalin's Soviet Union by way of the secret protocol to the Molotov-Ribbentrop Pact, an agreement contrary to the generally recognised principles of international law. The ensuing annexation of Latvia by the Soviet Union was orchestrated and conducted under the authority of the Communist Party of the Soviet Union (CPSU), the Communist Party of Latvia (CPL) being a satellite branch of the CPSU. In the late 1980s, a feeling of discontent with the Soviet regime among the Latvian population led to a movement in favour of State independence and democratisation of the political system, which was confirmed in a national plebiscite.

In March 1990, the newly elected Parliament (the Supreme Council) adopted a declaration re-establishing Latvia's independence. As the Court has observed (see paragraphs 96–97 above), it sees nothing arbitrary in the domestic courts' findings that the unsuccessful attempted coups in the Baltic States in January 1991 and then in August 1991 were organised and conducted under the direction of the CPSU and its regional branches, including the CPL. The applicant referred to the CPL's official programme in order to exonerate the party from any responsibility for the events of 1991. In her opinion, the programme showed that this organisation had chosen the path to democratisation since 1990. However, the intentions of a party must be judged, above all, by the actions of its leaders and members rather than by its official slogans.

The impugned restriction introduced by the Latvian legislature by way of section 5(6) of the 1995 Act, precluding persons from standing for Parliament where they had ‘actively participated’ in the activities of the CPL between 13 January 1991 and the date of that party's dissolution in September 1991, must be assessed with due regard to this very special historico-political context and the resultant wide margin of appreciation enjoyed by the State in this respect (see paragraph 115 (c) above).

The parties disagree as to whether the impugned restriction constituted a preventive or punitive measure. In the Court's opinion, what was at the heart of the impugned legislation was not an intention to punish those who had been active in the CPL. Rather, it was to protect the integrity of the democratic process by excluding from participation in the work of a democratic legislature those individuals who had taken an active and leading role in a party which was directly linked to the attempted violent overthrow of the newly-established democratic regime. It is true that it is not stated in the legislation that the disqualification is unlimited in time, but nor does it appear that it is temporary. Notwithstanding this ambiguity, the intention of the legislature was clearly motivated by prevention rather than by punishment. The Constitutional Court's conclusions of 30 August 2000 and the subsequent periodic review of the legislation at the national level confirm this conclusion (see paragraphs 61–62 above).

In the Refah Partisi case (cited above, § 115) the Court held that acts of leaders of a party were imputable to the party unless it distanced itself from them. The corollary may be equally true in circumstances such as those of the instant case, namely that the acts of a party are imputable to its members, particularly those who are leading figures in it, unless those members distance themselves from those acts. A politician's conduct usually includes not only actions or speeches but also omissions or a lack of response, which can equally constitute acts indicating that politician's stance. In view of the critical events surrounding the survival of democracy in Latvia which occurred after 13 January 1991, it was reasonable for the Latvian legislature to presume that the leading figures of the CPL held an anti-democratic stance, unless by their actions they had rebutted this presumption, for example by actively dissociating themselves from the CPL at the material time. However, the applicant has not made any statement distancing herself from the CPSU/CPL at the material time, or indeed at any time thereafter (see paragraphs 21, 23 and 120 above).

Criminal proceedings were never brought against the applicant. If this had been the case, she would have benefited from safeguards such as the presumption of innocence and the resolution of doubts in her favour in respect of such proceedings. The disqualification imposed under section 5(6) of the 1995 Act constitutes a special public-law measure regulating access to the political process at the highest level. In the context of such a procedure, doubts could be interpreted against a person wishing to be a candidate, the burden of proof could be shifted against him or her, and appearances could be considered of importance. As observed above, the Court is of the opinion that the Latvian authorities were entitled, within their margin of appreciation, to presume that a person in the applicant's position had held opinions incompatible with the need to ensure the integrity of the democratic process, and to declare that person ineligible to stand for election. The applicant has not disproved the validity of those appearances before the domestic courts; nor has she done so in the context of the instant proceedings.

It should also be recalled that the Convention does not exclude a situation where the scope and conditions of a restrictive measure may be determined in detail by the legislature, leaving the courts of ordinary jurisdiction only with the task of verifying whether a particular individual belongs to the category or group covered by the statutory measure at issue. This is particularly so in matters relating to Article 3 of Protocol No. 1. The Court's task is essentially to evaluate whether the measure defined by Parliament is proportionate from the standpoint of this provision, and not to find fault with the measure simply on the ground that the domestic courts were not empowered to ‘fully individualise’ the application of the measure in the light of an individual's specific situation and circumstances (see paragraphs 112–115 above).

It is to be observed in this respect that section 5(6) of the 1995 Act is worded in relatively narrowly terms. The very fact that the restriction relates only to those having ‘actively participated’ in CPL activities at the material time confirms that the legislature clearly distinguished between the various forms of involvement in the party of its former members, as correctly pointed out in the Constitutional Court's decision of 30 August 2000.

Further, the Act conferred on individuals affected by the provisions of section 5(6) the right to have determined by a court the issue of whether they belonged to the category defined by the legislature, that is to say whether they could be deemed to have been ‘active participants’. It is clear that this was not an illusory right (see paragraph 45 above). The applicant does not allege that the proceedings in her case were not adversarial. The Court also recalls that it has accepted the domestic courts' findings that the applicant was more than a formal member of the CPL, that she had participated in the party's activities after the critical date of 13 January 1991, and that the CPL itself had taken an active role in the events of 1991, including the abortive coup (see paragraph 97 above). The procedures applied in the applicant's case, or indeed the conclusions reached by the domestic courts in applying the relevant domestic legislation, could not be considered arbitrary (see, by contrast, the Podkolzina and Melnychenko cases referred to paragraphs 107–108 above).

In view of the above considerations, the Court considers that the impugned legislation was clear and precise as to the definition of the category of persons affected by it, and it was also sufficiently flexible to allow the domestic courts to examine whether or not a particular person belonged to that category. In the present case, a sufficient degree of individualisation as required by Article 3 of Protocol No. 1 was thus effected by the Latvian Parliament in adopting section 5(6) of the 1995 Act, and thereafter by the domestic courts in establishing that the impugned statutory measure applied to the applicant. There was no obligation under Article 3 of Protocol No. 1 for the Latvian Parliament to delegate more extensive jurisdiction to the Latvian courts to ‘fully individualise’ the applicant's situation so as to enable them to establish as a fact whether or not she had done anything which would justify holding her personally responsible for the CPL's activities at the material time in 1991, or to re-assess the actual danger to the democratic process which might have arisen by allowing her to run for election in view of her past or present conduct (see, by way of contrast, paragraph 75 above).

Furthermore, it is not of central importance, for the purpose of justifying the applicant's inability to run for the national Parliament, that she was never prosecuted for a criminal offence and was not one of the 15 members of Parliament who were stripped of their seats (see paragraphs 29 and 75 above). On the contrary, by choosing to bring a criminal prosecution only against the two former leaders of the CPL (see paragraph 32 above) and imposing more lenient restrictions on the political rights of other CPL activists such as the applicant, the Latvian authorities demonstrated a certain flexibility towards the latter group of persons.

Moreover, the Court considers irrelevant the question whether the CPL could be regarded as a legal or illegal organisation during the period after 13 January 1991, given that the subversive nature of its activities was obvious at least from that date (see paragraphs 96, 97 and 120 above). It is clear that the applicant chose to support the CPL's anti-democratic stance, and her silence in the face of the events at the material time was just as telling as any overt action in support of the CPL's activities (see paragraphs 123–124 above).

Finally, the fact that the impugned statutory measure was not introduced by Parliament immediately after the re-establishment of Latvian independence does not appear in this case to be crucial, any more than it was in the above-mentioned Rekvényi v. Hungary case, where the provision excluding police officers from political activities became effective almost four years after Hungary's transition to a democratic system (ibid.). It is not surprising that a newly-established democratic legislature should need time for reflection in a period of political turmoil to enable it to consider what measures were required to sustain its achievements. This is all the more so in the case of Latvia, where troops of a foreign country, Russia, remained until 1994 (see the above-mentioned Slivenko case). Furthermore, the fact that the Latvian Parliament enacted the statutory measure only in 1995 cannot be equated with the much more far-reaching restriction of personal rights barring former KGB officers in Lithuania from access to various spheres of employment in the private sector, which were introduced almost a decade after the re-establishment of Lithuanian independence, and which were considered, partly for this reason, disproportionate from the point of view of the Convention (see the Sidabras and Džiautas case cited above, ibid.). It cannot therefore be concluded that the fact of Latvia having introduced the measure only in 1995 showed that the State itself did not deem such a restriction to be necessary to protect the democratic process in the country.

The Latvian authorities' view that even today the applicant's former position in the CPL, coupled with her stance during the events of 1991 (see, in particular, paragraphs 123–124 above), still warrant her exclusion from standing as a candidate to the national Parliament, can be considered to be in line with the requirements of Article 3 of Protocol No. 1. The impugned statutory restriction as applied to the applicant has not been found to be arbitrary or disproportionate. The applicant's current or recent conduct is not a material consideration, given that the statutory restriction in question relates only to her political stance during the crucial period of Latvia's struggle for ‘democracy through independence’ in 1991.

While such a measure may scarcely be considered acceptable in the context of one political system, for example in a country which has an established framework of democratic institutions going back many decades or centuries, it may nonetheless be considered acceptable in Latvia in view of the historico-political context which led to its adoption and given the threat to the new democratic order posed by the resurgence of ideas which, if allowed to gain ground, might appear capable of restoring the former regime.

The Court therefore accepts in the present case that the national authorities of Latvia, both legislative and judicial, are better placed to assess the difficulties faced in establishing and safeguarding the democratic order. Those authorities should therefore be left sufficient latitude to assess the needs of their society in building confidence in the new democratic institutions, including the national Parliament, and to answer the question whether the impugned measure is still needed for these purposes, provided that the Court has found nothing arbitrary or disproportionate in such an assessment. In this respect, the Court also attaches weight to the fact that the Latvian Parliament has periodically reviewed section 5(6) of the 1995 Act, most recently in 2004. Even more importantly, the Constitutional Court has carefully examined, in its decision of 30 August 2000, the historical and political circumstances which gave rise to the enactment of the law in Latvia, finding the restriction to be neither arbitrary nor disproportionate at that point in time, i.e. nine years after the events in question (see paragraphs 61–63 above).

It is to be noted that the Constitutional Court observed in its decision of 30 August 2000 that the Latvian Parliament should establish a time-limit on the restriction. In the light of this warning, even if today Latvia cannot be considered to have overstepped its wide margin of appreciation under Article 3 of Protocol No. 1, it is nevertheless the case that the Latvian Parliament must keep the statutory restriction under constant review, with a view to bringing it to an early end. Such a conclusion seems all the more justified in view of the greater stability which Latvia now enjoys, inter alia, by reason of its full European integration (see paragraph 51 above). Hence, the failure by the Latvian legislature to take active steps in this connection may result in a different finding by the Court (see, mutatis mutandis, Sheffield and Horsham v. the United Kingdom, judgment of 30 July 1998, Reports 1998-V, § 60; see also the follow-up judgment to that case, Christine Goodwin v. the United Kingdom[GC], no. 28957/95, §§ 71–93, ECHR 2002-VI).

The Court concludes that there has been no violation of Article 3 of Protocol No. 1 to the Convention.