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GRAND
CHAMBER
CASE OF
PAKSAS v. LITHUANIA
(Application
no. 34932/04)
JUDGMENT
STRASBOURG
6 January
2011
This
judgment is final but may be subject to editorial revision.
In the case of Paksas v. Lithuania,
The
European Court of Human Rights, sitting as a Grand Chamber composed
of:
Jean-Paul
Costa,
President,
Christos
Rozakis,
Nicolas
Bratza,
Peer
Lorenzen,
Françoise
Tulkens,
Josep
Casadevall,
Ireneu
Cabral Barreto,
Lech
Garlicki,
Dean
Spielmann,
Renate
Jaeger,
Egbert
Myjer,
Sverre
Erik Jebens,
David
Thór Björgvinsson,
Dragoljub
Popović,
Nona
Tsotsoria,
Işıl
Karakaş, judges,
András
Baka, ad
hoc judge,
and
Michael O'Boyle, Deputy
Registrar,
Having
deliberated in private on 28 April and 1 December 2010,
Delivers
the following judgment, which was adopted on the
last-mentioned
date:
PROCEDURE
- The
case originated in an application (no. 34932/04) against the Republic
of Lithuania lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Lithuanian national, Mr Rolandas Paksas (“the
applicant”), on 27 September 2004.
- The
applicant was represented by Mr E. Salpius, a lawyer practising in
Salzburg, Mr V. Sviderskis, a lawyer practising in Vilnius,
Mr F. Matscher, professor of law at the University of
Salzburg, and Mr S. Tomas, researcher at the University of
Paris-Sorbonne. The Lithuanian Government (“the Government”)
were represented by their Agent, Ms E. Baltutytė.
- The
application was allocated to the former Third Section of the Court
and subsequently to the Second Section (Rule 52 § 1 of
the Rules of Court).
- Danutė
Jočienė, the judge elected in respect of Lithuania,
withdrew from the case (Rule 28). The Government accordingly
appointed
András Baka, the judge elected in respect of
Hungary, to sit in her place (Article 27 § 2 of the Convention
and Rule 29 § 1).
- On
1 December 2009 a Chamber of the Second Section, composed of the
following judges: Françoise Tulkens, Ireneu Cabral Barreto,
Vladimiro Zagrebelsky, Dragoljub Popović, Nona Tsotsoria, Işıl
Karakaş and András Baka, and also of Sally Dollé,
Section Registrar, relinquished jurisdiction in favour of the Grand
Chamber, neither of the parties having objected to relinquishment
(Article 30 of the Convention and Rule 72).
- The
composition of the Grand Chamber was determined in accordance with
Article 27 §§ 2 and 3 of the Convention and Rule 24.
- The
applicant and the Government each filed written observations on the
merits.
- A
hearing took place in public in the Human Rights Building,
Strasbourg, on 28 April 2010 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Ms E. Baltutytė,
Agent,
Ms K. Bubnytė-Monvydienė, Head of the
Division of Representation
at the European Court of Human Rights,
Counsel,
Mr E. Smith, Professor, University of Oslo,
Mr D.
Zalimas, Head of the International and European Union Law Institute,
Faculty of Law, Vilnius University, Advisers;
(b) for the applicant
Mr E. Salpius, Counsel.
The
Court heard addresses by Ms Baltutytė, Mr Smith and Mr Salpius.
The applicant was also present at the hearing.
The
Court decided to examine the merits of the application at the same
time as its admissibility (Article 29 § 3 of the Convention and
Rule 54A).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1956 and lives in Vilnius. He is currently a
member of the European Parliament.
- On
5 January 2003 the applicant was elected President of the Republic of
Lithuania. He took office on 26 February 2003, following his
inauguration. On that occasion, in accordance with Article 82 of the
Constitution, he took an oath to be loyal to the Republic of
Lithuania and the Constitution, to fulfil the duties of his office
conscientiously, and to be equally just to all.
- On
11 April 2003 the applicant issued Decree no. 40, countersigned by
the Minister of the Interior, granting Lithuanian citizenship “by
way of exception” (išimties tvarka) to a Russian
businessman, J.B., who had been awarded the Medal of Darius and
Girėnas in 2001 by the applicant's predecessor, Valdas Adamkus,
for services to Lithuania (he was subsequently divested of the medal
following the events outlined below).
A. Proceedings concerning the lawfulness of
Presidential Decree no. 40
- On
6 November 2003 the Seimas (the Lithuanian Parliament) requested the
Constitutional Court to determine whether Presidential Decree no. 40
was in compliance with the Constitution and the Citizenship Act. The
Seimas submitted that the procedure of granting citizenship by way of
exception appeared to have been applied inappropriately in this case.
In particular, it asserted that J.B. had no special merit warranting
his exceptional treatment and that the applicant had in fact granted
him citizenship as a reward for his substantial assistance by
financial and other means to the applicant's election campaign.
- On
10 November 2003 the Constitutional Court accepted the request for
consideration as case no. 40/03. On 10 December 2003 it held a public
hearing and examined witnesses.
- On
12 December 2003 an article was published in a Lithuanian daily
newspaper, Respublika, reporting that the President of the
Constitutional Court had been seen in a coffee bar with the Deputy
Speaker of the Seimas, who had been closely involved in the inquiry
into the applicant's activities. The newspaper implied that during
this informal meeting the two officials had discussed the proceedings
taking place in the Constitutional Court, thus casting a shadow of
suspicion over that court's objectivity. The two men had subsequently
said that they often met professionally and socially, and denied
discussing the merits of the case.
- Referring
to the above-mentioned newspaper article, the applicant's lawyers
challenged the President of the Constitutional Court for bias,
seeking his removal from the examination of case no. 40/03. Their
challenge was dismissed on the ground that the mere fact that the two
officials had met informally did not constitute a basis for the
withdrawal of a judge from proceedings before the Constitutional
Court.
- On
30 December 2003 the Constitutional Court gave its ruling in case no.
40/03, finding that Decree no. 40 was not in compliance with Article
29 § 1, Article 82 § 1 and Article 84 § 21 of the
Constitution, the constitutional principle of the rule of law and
section 16(1) of the Citizenship Act.
- On
the last point, the Constitutional Court observed that citizenship
could be granted by way of exception only to persons who had never
been Lithuanian citizens. It noted in that connection that J.B., a
Russian citizen by birth from a Soviet military family, had acquired
Lithuanian citizenship under the Citizenship Act of 3 November 1989,
by which citizenship could be granted, inter alia, to persons
who on that date had had their permanent residence and permanent
place of work or source of income in Lithuania. In 1994 the
Constitutional Court had ruled that “soldiers of the Soviet
Union who previously served in the Soviet occupying military forces
unlawfully stationed in the territory of Lithuania [could] not be
regarded as permanently residing and working in Lithuania”. On
4 November 1999 the Citizenship Commission (established in 1998
under section 4 of the 1995 Implementing Act for the Citizenship Act)
had found that J.B.'s status was unlawful, since he had served in the
Soviet armed forces. It had nevertheless recommended that his status
be regularised in accordance with the above-mentioned section 4, by
which exceptions could be made for persons who had acquired
citizenship in good faith before 31 December 1993 on that unlawful
ground. On 11 November 1999 the Migration Department of the
Ministry of the Interior had followed that recommendation. However,
in 2000 J.B. had applied for Russian citizenship, which he had been
granted in June 2002; on 18 March 2003 he had been issued with a
Russian passport, thereby losing his Lithuanian citizenship. The
Constitutional Court observed that the applicant had signed Decree
no. 40 on 11 April 2003 even though the Migration Department of the
Ministry of the Interior had reminded him the day before that J.B.
had previously lost his Lithuanian citizenship.
- The
Constitutional Court held that, as a result, Decree no. 40 was also
in breach of Article 84 § 21 of the Constitution – which
provides that the President is to grant citizenship in accordance
with the procedure established by law – and the constitutional
principle of the rule of law.
- The
Constitutional Court went on to note that, although the Lithuanian
authorities had already made an exception in his favour by
regularising his status in 1999, J.B. had acquired Russian
citizenship in 2000. This showed that “citizenship of the
Republic of Lithuania was of less value to [J.B.] than citizenship of
the Russian Federation”. The Constitutional Court further noted
that the Director of the State Security Department had informed the
applicant, prior to 11 April 2003, that an investigation was being
carried out into J.B.'s activities as director of an aviation company
and, on 17 March 2003, that J.B. had threatened to disseminate
information discrediting the applicant if the latter failed to keep
his promise to appoint him as an adviser. In the Constitutional
Court's view, the applicant had knowingly ignored these
circumstances, although they were of crucial importance in deciding
whether or not to grant citizenship to J.B. by way of exception.
Having regard also to the fact that J.B. had made a significant
financial contribution to the applicant's election campaign, it
concluded that the decision to grant him citizenship had been
“determined not by any merit rendering [J.B.] worthy of
becoming a citizen of the Republic of Lithuania, but by his
significant assistance by financial and other means to [the
applicant's] election campaign in 2002”. Thus, “the
granting of citizenship to [J.B.] by way of exception was nothing but
a reward by the President of the Republic R. Paksas to [J.B.] for the
aforesaid support”; consequently, in issuing Decree no. 40, the
President had heeded “neither the Constitution ... nor the law,
nor the interests of the people and the State, but purely his own
interests”. The court therefore concluded that the applicant
had “afforded [J.B.] exceptional treatment and knowingly
disregarded the fundamental principles enshrined in Article 29 § 1
and Article 82 § 1 of the Constitution respectively, whereby all
persons are equal before State institutions or officials, and the
President of the Republic must be equally just to all”.
- In
a public speech on 31 December 2003, and again in his New Year
speech, the applicant declared that “politics [had] taken
precedence over the law” in the Constitutional Court's ruling.
In reply, on 5 January 2004 the Constitutional Court issued a public
statement emphasising its independence and noting, inter alia,
that the applicant had attempted to undermine its authority.
B. Impeachment proceedings
- On
18 December 2003, eighty-six members of the Seimas submitted a
proposal to initiate impeachment proceedings against the applicant.
On 23 December 2003 the Seimas set up a special commission to
investigate the reasonableness and seriousness of certain allegations
about the applicant's conduct, in order to determine whether such
proceedings should indeed be initiated.
- On
19 February 2004 the special investigation commission concluded that
some of the charges levelled against the applicant were founded and
serious. Accordingly, it recommended that the Seimas institute
impeachment proceedings. The State Security Department had apparently
provided the commission with transcripts of secretly taped telephone
conversations involving the applicant. The applicant's lawyers were
not given access to the transcripts by the Department or by the
commission, because it had decided not to rely on them.
- Also
on 19 February 2004 the Seimas decided to follow the special
investigation commission's recommendation and requested the
Constitutional Court to determine whether the specific acts of the
applicant cited by the commission had breached the Constitution. The
impeachment charges submitted to the Constitutional Court included
the following allegations in particular, involving purely private
interests to the detriment of those of the nation, thus discrediting
the institution of the presidency:
–
that the applicant had undertaken to perform a number of actions in
J.B.'s favour in exchange for financial and other forms of support
during his election campaign, and had later acted under J.B.'s
influence;
–
that, as a reward for this support, the applicant had unlawfully
granted Lithuanian citizenship to J.B.;
–
that he had disclosed a State secret by informing J.B. that the
secret services were investigating his activities, notably by
telephone tapping; and
–
that he had exercised undue pressure on the management decisions of a
private company in order to secure pecuniary advantages for certain
people close to him.
- On
1 March 2004 the Constitutional Court accepted the request for
consideration as case no. 14/04.
- The
applicant's lawyers sought the removal of the President of the
Constitutional Court and all its members on grounds of bias, arguing
that they had in effect already determined the case in the previous
ruling of 30 December 2003 in case no. 40/03. The challenge was
dismissed.
- In
a declaration of 25 March 2004 the Seimas unsuccessfully proposed
that the applicant tender his resignation in order to avoid
protracted impeachment proceedings. The declaration alleged that his
actions had become increasingly unpredictable and represented a
danger to the State, its citizens and the prestige of the presidency.
- On
31 March 2004 the Constitutional Court concluded that the applicant
had committed gross violations of the Constitution and a breach of
his constitutional oath on account of the following acts:
–
unlawfully granting citizenship to J.B. by Decree no. 40 as a reward
for the latter's financial and other forms of support, in breach of
section 16(1) of the Citizenship Act and Article 29 § 1, Article
82 § 1 and Article 84 § 21 of the Constitution;
–
knowingly hinting to J.B., in breach of sections 3(7), 9(2) and 14(1)
of the Official Secrets Act and Article 77 § 2 and Article 82 §
1 of the Constitution, that the law-enforcement institutions were
investigating him and tapping his telephone conversations; and
–
exploiting his official status to influence decisions by the
Zemaitijos keliai company concerning the transfer of shares with a
view to defending the property interests of certain private
individuals close to him, in breach of section 3 of the Adjustment of
Private and Public Interests in the Public Service Act and Article 29
§ 1, Article 77 § 2 and Article 82 § 1 of the
Constitution.
- The
applicant sought clarification of these conclusions under section 61
of the Constitutional Court Act, but his request was refused by the
Constitutional Court on 6 April 2004 on procedural grounds.
- On
6 April 2004 the Seimas decided to remove the applicant from the
office of President on account of the gross violations of the
Constitution found by the Constitutional Court. Its decision was
taken by eighty-six votes to seventeen for the first breach,
eighty-six votes to eighteen for the second and eighty-nine votes to
fourteen for the third.
C. Disqualification from elected office
- The
applicant wished to stand as a candidate in the presidential election
called for 13 June 2004. On 22 April 2004 the Central Electoral
Committee (CEC) found that there was nothing to prevent him from
standing. By 7 May 2004 the applicant had gathered the required
number of signatures in support of his candidacy, and submitted them
to the CEC with a view to his registration as a candidate.
- However,
on 4 May 2004 the Seimas amended the Presidential Elections Act by
inserting the following provision:
“A person who has been removed from parliamentary
or other office by the Seimas in impeachment proceedings may not be
elected President of the Republic if less than five years have
elapsed since his removal from office.”
- Following
this amendment, the CEC refused to register the applicant as a
candidate in the forthcoming election. The applicant lodged a
complaint with the Supreme Administrative Court on 10 May 2004,
arguing in particular that that decision thwarted the legitimate
expectations of his supporters and ran counter to the principles of
the rule of law and the prohibition of retrospective legislation.
- On
an unspecified date, a number of members of the Seimas requested the
Constitutional Court to review the constitutionality of the amendment
to the Presidential Elections Act, arguing that barring a
person who had been removed from office from running for election as
President was in itself in breach of the Constitution. The
request was registered as case no. 24/04.
- The
Constitutional Court held on 25 May 2004 that disqualifying a
person who had been removed from office from standing in presidential
elections was compatible with the Constitution,
but that subjecting such a restriction to a time-limit was
unconstitutional. The court held, inter
alia:
“... The Constitutional Court has held that a
breach of the oath is, at the same time, a gross violation of the
Constitution, while a gross violation of the Constitution is, at the
same time, a breach of the oath to the nation (Constitutional Court
ruling of 30 December 2003; Constitutional Court conclusion of
31 March 2004) ...
A gross violation of the Constitution or a breach of the
oath undermines trust in the institution of the presidency and in
State authority as a whole ... Removal from office of a president who
has grossly violated the Constitution or breached the oath is one of
the ways of protecting the State for the common good of society, as
provided for in the Constitution.
It needs to be stressed that, under the Constitution, a
person in respect of whom the Seimas – following a finding by
the Constitutional Court that he, as President, has committed a gross
violation of the Constitution and breached the oath – has
applied the constitutional sanction, namely removal from office, may
not evade constitutional liability through fresh presidential
elections, a referendum or any other means...
The Constitution does not provide that, after a certain
time has elapsed, a president whose actions have been recognised by
the Constitutional Court as having grossly violated the Constitution,
and who has been found to have breached the oath and has been removed
from office by the Seimas [on that account] ..., may [subsequently]
be treated as though he had not breached the oath or committed a
gross violation of the Constitution ... [A person] ... who has been
removed from office by the Seimas, the body representing the people,
will always remain someone who has breached his oath to the nation
and grossly violated the Constitution, and who has been dismissed as
President for those reasons ...
[A person removed from the office of President] may
never again ... give an oath to the nation, as there would always
exist a reasonable doubt ... as to its reliability...
Impeachment is a form of public and democratic scrutiny
of those holding public office, a measure of self-protection for the
community, a ... defence against high-ranking officials who disregard
the Constitution and laws...
Where a person has been removed from the office of
President ... for a gross violation of the Constitution or a breach
of the oath ... he may never again be elected President of the
Republic [or] a member of the Seimas; [he] may never hold office as
... a member of the Government, [or] the National Audit Officer, that
is, [he] may not hold an office provided for in the Constitution for
which it is necessary to take an oath in accordance with the
Constitution ...”
- On
28 May 2004 the Supreme Administrative Court dismissed the
applicant's complaint against the decision of the CEC, referring,
inter alia, to the Constitutional Court's ruling of 25 May
2004. It noted in particular:
“... It appears from the reasoning of the
Constitutional Court that ... the applicant has forfeited the right
to be elected President with effect from 6 April 2004. Therefore, he
... cannot take part in the election announced on 15 April 2004...
Until it was amended on 4 May 2004, the Presidential
Elections Act did not specify the [residual] rights of a person who
had forfeited the right to be elected President.
Article 6 § 1 of the Constitution provides that the
Constitution is directly applicable ... [I]t follows that, from
the moment ... the applicant submitted his candidacy for the
election, his situation was governed by the Constitution, which, as
the Constitutional Court has found, bars [a person removed from the
office of President] from standing in presidential elections. In
these circumstances ... there has been no breach of the principle of
the prohibition of retrospective legislation...”
- On
15 July 2004 the Seimas passed an amendment to the Seimas Elections
Act, to the effect that any official who had been removed from office
following impeachment proceedings was disqualified from being a
member of parliament.
D. Criminal proceedings against the applicant
- In
autumn 2004 the Prosecutor General discontinued the investigation
into allegations that while in office, the applicant had abused his
authority in relation to a private company (Article 228 of the
Criminal Code).
- On
an unspecified date the applicant was charged with disclosing
information classified as a State secret (Article 125 § 1 of the
Criminal Code). On 25 October 2004 the Vilnius Regional Court
acquitted him for lack of evidence. On 1 March 2005 the Court of
Appeal reversed that decision, finding the applicant guilty. It held,
however, that owing to new circumstances, namely the applicant's
removal from office as President and disqualification from elected
office, it was reasonable to discharge him from criminal liability
and to discontinue the criminal proceedings. On 13 December 2005
the Supreme Court quashed the Court of Appeal's judgment, upholding
the acquittal delivered by the Vilnius Regional Court.
E. Criminal proceedings against J.B.
- On
account of his threat to disseminate information discrediting the
applicant if he failed to keep his promise to appoint him as an
adviser
(see paragraph 19 above), J.B. was convicted of having,
for his own benefit and “by means of mental coercion, required
a civil servant or person in a position of public authority to carry
out or refrain from certain actions” (Article 287 § 1 of
the Criminal Code). He was fined 10,000 Lithuanian litai, equivalent
to approximately 2,900 euros (judgments of the Vilnius City 1st
District Court of 22 November 2004, the Vilnius Regional Court of
6 April 2005, and the Supreme Court of 18 October 2005).
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Competence of the Constitutional Court
- The
Constitutional Court has jurisdiction to review the constitutionality
and lawfulness of the acts of the President (Articles 102, 105 and
106 of the Constitution). Acts of the President cease to have legal
effect if the Constitutional Court rules that they are in breach of
the Constitution (Article 107 of the Constitution).
- Decisions
of the Constitutional Court have statutory force and are final
(Article 107 of the Constitution). The power of the Constitutional
Court to declare a legal act unconstitutional may not be circumvented
by the subsequent adoption of a similar legal act (section 72 of the
Constitutional Court Act).
- In
addition, the Constitutional Court may be called upon to determine
whether certain acts of a president against whom impeachment
proceedings have been instituted are in breach of the Constitution
(Article 105 of the Constitution). No appeal lies against the
court's conclusions (section 83(2) of the Constitutional Court Act).
However, the final decision on the sustainability of allegations
giving rise to impeachment proceedings is taken by the Seimas on the
basis of the Constitutional Court's conclusions (Article 107 § 3
of the Constitution; see also below).
- Article
104 of the Constitution provides that, in discharging their duties,
the judges of the Constitutional Court act independently of any other
State institution, person or organisation, and are guided only by the
Constitution.
- Section
48 of the Constitutional Court Act provides that a judge of the
Constitutional Court may withdraw or be removed from a case if he or
she, inter alia, is a relative of one of the parties to the
case or has publicly declared how it should be decided.
B. Impeachment proceedings
- Article
86 of the Constitution provides that the President of Lithuania is
immune from any criminal liability while in office. However, under
Article 74 of the Constitution, he or she may be removed from office
following impeachment proceedings, inter alia for a gross
violation of the Constitution or a breach of the constitutional oath.
The decision is taken by the Seimas (Article 107 § 3 of the
Constitution).
- In
accordance with Articles 227 and 228 of the Statute of the Seimas,
impeachment is a parliamentary procedure aimed at determining the
constitutional liability of the highest-ranking officials, such as
the President of the Republic or members of parliament, for acts
carried out while in office which undermine the authorities'
credibility. Impeachment proceedings may be initiated by a quarter of
the members of the Seimas where such an official is alleged to have
committed a gross violation of the Constitution and/or a breach of
the constitutional oath and/or is suspected of committing a criminal
offence (Articles 229 and 230 of the Statute of the Seimas). They are
to be conducted in accordance with the rules of criminal procedure
(Article 246 § 3 of the Statute of the Seimas).
- Having
received a petition for impeachment, the Seimas sets up a special
investigation commission, which sits in private (Article 238 of the
Statute of the Seimas) and hears evidence from the parties to the
procedure, witnesses and experts, in accordance with the rules of
criminal procedure (Article 239 of the Statute of the Seimas). It
reports its findings to the Seimas as to whether there are grounds to
institute impeachment proceedings (Article 241 of the Statute of the
Seimas). If the Seimas – sitting in public – considers
that such grounds exist, it passes a resolution to initiate the
proceedings, requesting the Constitutional Court to determine whether
the acts of the person indicated in the impeachment charges are in
breach of the Constitution (Article 240 of the Statute of the Seimas
and Article 106 of the Constitution). On the basis of the
Constitutional Court's conclusions (Article 105 of the Constitution),
the Seimas conducts an inquiry (likewise observing the basic rules of
criminal procedure) and ultimately decides whether the person against
whom the proceedings have been brought should be removed from office
for a gross violation of the Constitution, on the basis of the
available evidence and testimony (Articles 246 to 258 and 260 of
the Statute of the Seimas; Article 74 and Article 107 § 3 of the
Constitution).
- In
its ruling of 31 March 2004, in which it set out its conclusions in
case no. 14/04 (see paragraph 27 above), the Constitutional Court
provided the following clarifications:
“... The provision of Article 107 § 2 of the
Constitution whereby decisions of the Constitutional Court on issues
within its competence are final and not subject to appeal also means
that when deciding whether or not to remove the President from
office, the Seimas may not reject, change or question the
Constitutional Court's conclusion that specific acts of the President
are (or are not) in breach of the Constitution. No such powers are
assigned to the Seimas by the Constitution. [Such a] conclusion ...
is binding on the Seimas in so far as the Constitution does not
empower it to decide whether the Constitutional Court's conclusions
are well-founded and lawful; only the [Constitutional] Court can
establish that the actions of the President are (or are not) in
breach of the Constitution.
Under Article 74 of the Constitution, only the Seimas
may remove the President from office for a gross violation of the
Constitution.
Thus, the Constitution assigns the Seimas and the
Constitutional Court different functions in impeachment proceedings,
and confers on them the respective powers necessary to discharge
those functions: the Constitutional Court decides whether specific
acts of the President are in breach of the Constitution and submits
its conclusions to the Seimas (Article 105 § 3, point (4), of
the Constitution), whereas the Seimas, in the event that the
President has committed a gross violation of the Constitution,
decides whether or not to remove him from office (Article 74 of the
Constitution) ... Under Article 107 § 3 of the Constitution, the
Seimas is empowered to decide whether to remove the President from
office, but not to determine whether his acts are in breach of the
Constitution.
It should be noted that this constitutional provision
whereby only the Constitutional Court is empowered to decide (through
its conclusions on the matter) whether specific acts of the President
are in breach of the Constitution represents a further guarantee for
the President that his constitutional liability will not be incurred
unreasonably. Thus, if the Constitutional Court reaches the
conclusion that the President's acts are not in breach of the
Constitution, the Seimas may not remove him from office for a gross
violation of the Constitution ...”
- In
addition to possible constitutional liability, a person removed from
public office may incur ordinary liability (teisinė
atsakomybė).
- According
to the Constitutional Court's ruling of 11 May 1999 on the compliance
of Article 259 of the Statute of the Seimas of the Republic of
Lithuania with the Lithuanian Constitution, “the constitutional
sanction applied in the context of impeachment proceedings is of an
irreversible nature”. In the same ruling the Constitutional
Court also stated that fair-trial principles applied in impeachment
proceedings, meaning that the persons charged “must have the
right to be heard and a legally guaranteed opportunity to defend
their rights”.
C. Election of the President and of members of the
Seimas
- Article
56 of the Constitution provides:
“Any citizen of the Republic of Lithuania who is
not bound by an oath or pledge to a foreign State, and who, on the
date of the election, is at least twenty-five years of age and
permanently resident in Lithuania, may be elected as a member of the
Seimas.
Persons who have not completed a sentence imposed by a
court, and persons declared legally incapable by a court, may not be
elected as members of the Seimas.”
- As
mentioned above, on 4 May 2004 the Seimas amended the Presidential
Elections Act by inserting the following provision:
“A person who has been removed from parliamentary
or other office by the Seimas in impeachment proceedings may not be
elected President of the Republic if less than five years have
elapsed since his removal from office.”
Following
the Constitutional Court's ruling of 25 May 2004
(see paragraph
34 above), the Seimas passed an amendment to the Seimas Elections
Act, to the effect that any official who had been removed from office
following impeachment proceedings was disqualified from being a
member of parliament.
- The
Constitution further provides:
Article 59
“... Newly elected members of the Seimas shall
acquire all the rights of a representative of the nation only after
taking an oath before the Seimas to be loyal to the Republic of
Lithuania.
Members of the Seimas who do not take the oath according
to the procedure established by law, or who take a conditional oath,
shall forfeit their parliamentary office...”
Article 78
“Any person who is a Lithuanian citizen by birth,
who has lived in Lithuania for at least the three years preceding the
election, is at least 40 years old on the date of the election and is
eligible for election as a member of the Seimas may be elected
President of the Republic.
The President of the Republic shall be elected by the
citizens of the Republic of Lithuania for a five-year term by
universal, equal and direct suffrage by secret ballot.
The same person may not be elected President of the
Republic for more than two consecutive terms.”
Article 79
“Any citizen of the Republic of Lithuania who
satisfies the conditions set forth in the first paragraph of Article
78 and has collected the signatures of no fewer than 20,000 voters
shall be registered as a candidate for the office of President.
There shall be no limit on the number of candidates for
the office of President.”
- Article
82 of the Constitution provides:
“The newly elected President of the Republic shall
take office ... after swearing an oath to the nation in Vilnius, in
the presence of the representatives of the people, namely the members
of the Seimas, to be loyal to the Republic of Lithuania and the
Constitution, to fulfil the duties of his office conscientiously, and
to be equally just to all.
A person re-elected President of the Republic shall also
take the oath.
The record of the oath taken by the President of the
Republic shall be signed by him and by the President of the
Constitutional Court or, in the latter's absence, by another judge of
the Constitutional Court.”
- Pursuant
to section 3 of the Presidential Office Act, the newly elected
President takes the following oath:
“I (name and surname)
Swear to the nation to be loyal to the Republic of
Lithuania and the Constitution, to observe and enforce the law, and
to protect the integrity of Lithuanian territory;
I swear to fulfil conscientiously the duties of
[presidential] office, and to be equally just to all;
I swear to strengthen the independence of Lithuania, to
the best of my ability, and to serve my homeland, democracy and the
welfare of the people of Lithuania ...”
D. Other provisions
- Article
29 of the Constitution provides that “[a]ll persons shall be
equal before the law, the courts, and other State institutions and
officials.” Article 84 § 21 of the Constitution states
that the President “shall grant citizenship of the Republic
of Lithuania in accordance with the procedure established by law”.
- Section
16(1) of the Citizenship Act provides that the President may grant
Lithuanian citizenship by way of exception – that is, without
applying the usual eligibility requirements – to foreign
citizens of special merit rendering them worthy of becoming a citizen
of the Republic of Lithuania.
- Articles
68 and 71 of the Constitution read as follows:
Article
68
“The right to initiate legislation in the Seimas
shall be vested in members of the Seimas, the President of the
Republic and the Government.
Citizens of the Republic of Lithuania shall also have
the right to initiate legislation. A Bill may be brought before the
Seimas by 50,000 citizens with the right to vote, and the Seimas must
consider it.”
Article 71
“Within ten days of receiving a law passed by the
Seimas, the President of the Republic shall either sign and
officially promulgate the law, or shall send it back to the Seimas,
with reasoned observations, for reconsideration.
If a law passed by the Seimas is not sent back or signed
by the President within the prescribed period, the law shall enter
into force after it has been signed and officially promulgated by the
Speaker of the Seimas.
The President of the Republic must, within five days,
sign and officially promulgate any laws or other instruments adopted
by referendum.
If such a law is not signed and promulgated by the
President within the prescribed period, the law shall enter into
force after it has been signed and officially promulgated by the
Speaker of the Seimas.”
III. GUIDELINES ON ELECTIONS ADOPTED BY THE VENICE
COMMISSION
- The
relevant passages of the Guidelines on Elections adopted by the
European Commission for Democracy through Law (“the Venice
Commission”) at its 51st session (5-6 July 2002) read as
follows:
“I. Principles of Europe's electoral
heritage
The five principles underlying Europe's electoral
heritage are universal, equal, free, secret and direct suffrage.
Furthermore, elections must be held at regular intervals.
1. Universal suffrage
1.1. Rule and exceptions
Universal suffrage means in principle that all human
beings have the right to vote and to stand for election. This right
may, however, and indeed should, be subject to certain conditions:
a. Age ...
b. Nationality ...
c. Residence ...
d. Deprivation of the right to vote and to be elected:
i. provision may be made for depriving individuals of
their right to vote and to be elected, but only subject to the
following cumulative conditions:
ii. it must be provided for by law;
iii. the proportionality principle must be observed;
conditions for depriving individuals of the right to stand for
election may be less strict than for disenfranchising them;
iv. the deprivation must be based on mental incapacity
or a criminal conviction for a serious offence;
v. furthermore, the withdrawal of political rights or
finding of mental incapacity may only be imposed by express decision
of a court of law. ...”
The
Explanatory Report, adopted by the Venice Commission at its 52nd
session (18-19 October 2002), reads as follows (footnote omitted):
“... provision may be made for clauses
suspending political rights. Such clauses must, however, comply
with the usual conditions under which fundamental rights may be
restricted; in other words, they must:
– be provided for by law;
– observe the principle of proportionality;
– be based on mental incapacity or a criminal
conviction for a serious offence.
Furthermore, the withdrawal of political rights may only
be imposed by express decision of a court of law. However, in the
event of withdrawal on grounds of mental incapacity, such express
decision may concern the incapacity and entail ipso jure
deprivation of civic rights.
The conditions for depriving individuals of the right to
stand for election may be less strict than for disenfranchising them,
as the holding of a public office is at stake and it may be
legitimate to debar persons whose activities in such an office would
violate a greater public interest. ...”
IV. LAW AND PRACTICE REGARDING IMPEACHMENT IN THE MEMBER
STATES OF THE COUNCIL OF EUROPE
- The
term “impeachment” denotes a formal indictment procedure
whereby the legislature may remove from office a head of State, a
senior official or a judge for breaching the law or the Constitution.
The purpose of impeachment is in principle to allow the institution
of criminal proceedings in the courts against the person concerned,
but in practice it does not necessarily produce such an outcome.
- The
legal systems of the majority of the Council of Europe's member
States with a republican system make specific provision for the
impeachment of the head of State (Albania, Austria, Azerbaijan,
Bulgaria, Croatia, Czech Republic, France, Georgia, Germany, Greece,
Hungary, Ireland, Italy, Lithuania, Moldova, Montenegro, Poland,
Romania, Russian Federation, Serbia, Slovakia, Slovenia, “the
former Yugoslav Republic of Macedonia”, Turkey and Ukraine).
Impeachment proceedings may be instituted on the following grounds
(for Lithuania, see paragraph 46 above): breach of the Constitution
or undermining of the constitutional order (Austria, Bulgaria,
Croatia, Georgia, Germany, Greece, Hungary, Moldova, Romania,
Slovakia, Slovenia, “the former Yugoslav Republic of
Macedonia”); high treason (Bulgaria, Cyprus, Czech Republic,
Finland, France, Greece, Italy, Romania, Russian Federation); breach
of the law (Germany, Hungary); an ordinary or serious criminal
offence (Finland, Russian Federation); or immoral conduct (Ireland).
- In
most of these republics, impeachment proceedings have no direct
effects on the electoral and other political rights of a head of
State who is removed from office. However, in Austria, if the Federal
President is removed from office following impeachment proceedings,
the Constitutional Court may order the temporary forfeiture of
“political rights” if there are particularly aggravating
circumstances. Similarly, in Poland the special court with competence
in such matters may, in addition to removing the President from
office, temporarily deprive him or her of certain political rights
(general disqualification from standing for election for a period of
up to ten years, prohibition from occupying certain positions for a
similar period and revocation of orders and other honorary titles).
In Slovakia and the Czech Republic, a person removed from
presidential office as a result of impeachment proceedings
permanently forfeits the right to stand for election as President but
may be a candidate in any other elections; in the Russian Federation
he or she is barred only from standing in the presidential elections
called as a result of his or her removal from office.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 §§
1, 2 AND 3 OF THE CONVENTION, ARTICLE 7 OF THE CONVENTION AND ARTICLE
4 OF PROTOCOL No. 7
- The
applicant alleged a violation of his right to a fair hearing in
connection with the two sets of proceedings in the Constitutional
Court, concerning Decree no. 40 and the merits of the impeachment
charges against him. He submitted that because of collusion between
the court's President and the member of the Seimas who had initiated
the proceedings against him, the Constitutional Court could not be
considered an independent and impartial tribunal, and noted that that
court had subsequently issued a public response to his accusations of
bias on its part; in a supplement to his application, dated 30
November 2006, he added that the Constitutional Court's endorsement
of the conclusions of the declaration of 25 March 2004 by the Seimas
showed that it had been put under considerable pressure by Parliament
as a result of such collusion. He further submitted that he had been
unable to defend himself effectively and that, in the impeachment
proceedings, his lawyers had not had access to certain classified
documents which the special investigation commission had examined and
the Constitutional Court had exceeded its powers by making findings
as to the facts and the issue of “guilt”. He relied on
Article 6 §§ 1 and 3 (b) of the Convention, which provides:
“1. In the determination of his civil
rights and obligations or of any criminal charge against him,
everyone is entitled to a fair ... hearing ... by an independent and
impartial tribunal established by law. ...
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(b) to have adequate time and facilities for
the preparation of his defence; ...”
Furthermore,
in another supplement to his application, dated 30 September
2005, the applicant submitted that by justifying his permanent
disqualification from elected office on the ground that there would
always be reasonable doubt as to the reliability of any
constitutional oath sworn by him in future, the Constitutional
Court's ruling of 25 May 2004 had established a presumption of guilt,
in breach of Article 6 § 2 of the Convention. In the supplement
of 30 November 2006 to his application, he added that the declaration
of 25 March 2004 by the Seimas had breached the same provision, which
provides:
“Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law.”
In
addition, in the supplement of 30 September 2005 to his application
the applicant complained that the sanction imposed on him as a result
of the impeachment proceedings, namely removal from office and a
lifelong ban on standing for election, was more severe than the
penalties envisaged by the criminal law for equivalent offences,
adding that lifelong disqualification from elected office was not
provided for by law and was, to say the least, “bizarre”.
On that account he alleged a violation of Article 7 of the
Convention, which provides:
“1. No one shall be held guilty of any
criminal offence on account of any act or omission which did not
constitute a criminal offence under national or international law at
the time when it was committed. Nor shall a heavier penalty be
imposed than the one that was applicable at the time the criminal
offence was committed.
2. This Article shall not prejudice the trial
and punishment of any person for any act or omission which, at the
time when it was committed, was criminal according to the general
principles of law recognised by civilised nations.”
Lastly,
the applicant submitted that the institution of impeachment
proceedings followed by criminal proceedings in his case amounted to
trying him twice for the same offence. He relied on Article 4 §
1 of Protocol No. 7, which provides:
“No one shall be liable to be tried or punished
again in criminal proceedings under the jurisdiction of the same
State for an offence for which he has already been finally acquitted
or convicted in accordance with the law and penal procedure of that
State.”
- The
Court must determine at the outset whether the provisions relied on
by the applicant are applicable in the instant case.
- With
regard to Article 6 § 1 of the Convention, the Court reiterates
that the fact that proceedings have taken place before a
constitutional court does not suffice to remove them from the ambit
of that provision. It must therefore be ascertained whether the
proceedings before the Constitutional Court in the instant case did
or did not relate to the “determination” of the
applicant's “civil rights and obligations” or of a
“criminal charge” against him (see Pierre-Bloch
v. France, 21 October 1997, § 48,
Reports of Judgments and Decisions
1997 VI).
- The
first set of proceedings concerned the review of the compliance with
the Constitution and the Citizenship Act of a decree issued by the
applicant by virtue of his presidential powers, granting Lithuanian
citizenship to J.B. “by way of exception”. The purpose of
the second set of proceedings was to determine whether, in
discharging his duties as President, the applicant had committed
gross violations of the Constitution or breached his constitutional
oath. It is therefore clear that the proceedings in question did not
concern the determination of the applicant's civil rights or
obligations.
For
the Court to conclude that they likewise did not concern a “criminal
charge”, it is sufficient for it to find that they did not
involve the imposition of a sanction by the Constitutional Court
against the applicant. Admittedly, it notes in this connection that
the second set of proceedings formed a stage of the impeachment
proceedings instituted by the Seimas, the purpose of which was to
determine whether or not the applicant should remain in office as
President and be eligible to stand for election. However, in any
event, in the context of impeachment proceedings against the
President of Lithuania for a gross violation of the Constitution or a
breach of the presidential oath, the measures of removal from office
and (consequent) disqualification from standing for election involve
the head of State's constitutional liability, so that, by virtue of
their purpose, they lie outside the “criminal” sphere.
Furthermore, and above all, the decision to remove the President from
office is taken not by the Constitutional Court but by Parliament.
- The
Court thus concludes that Article 6 § 1 of the Convention is not
applicable in either its civil or its criminal aspect to the
Constitutional Court proceedings in issue.
- It
also follows from the foregoing that the applicant was not “charged
with a criminal offence” within the meaning of Article 6 §
2 of the Convention in those proceedings, or “convicted”
or “tried or punished ... in criminal proceedings” within
the meaning of Article 4 § 1 of Protocol No. 7, and that the
proceedings did not result in his being held “guilty of a
criminal offence” or receiving a “penalty” within
the meaning of Article 7 of the Convention. Those provisions likewise
do not apply in the present case.
- It
follows that this part of the application is incompatible ratione
materiae with the provisions of the
Convention within the meaning of Article 35 § 3 and must be
rejected pursuant to Article 35 § 4.
II. ALLEGED VIOLATION OF ARTICLE 3
OF PROTOCOL No. 1
- In
the supplement of 30 September 2005 to his application the applicant
complained of his lifelong disqualification from elected office,
arguing that permanently denying him the opportunity to stand for
election although he was a politician enjoying considerable popular
support was contrary to the very essence of free elections and was a
wholly disproportionate measure. In the supplement of 30 November
2006 to his application he further submitted that the amendment of
electoral law passed following his removal from office had been
arbitrary and designed to bar him from holding any public office in
future. He relied on Article 3 of Protocol No. 1, which provides:
“The High Contracting
Parties undertake to hold free elections at reasonable intervals by
secret ballot, under conditions which will ensure the free expression
of the opinion of the people in the choice of the legislature.”
A. Admissibility
1. Applicability of Article 3 of
Protocol No. 1
- The
Court reiterates that Article 3 of Protocol No. 1 applies only to the
election of the “legislature”.
- Regard
being had to the constitutional structure of Lithuania, it is not in
doubt that Article 3 of Protocol No. 1 is applicable to the election
of members of the Seimas. The reverse is true, however, as regards
the election of the President of Lithuania. It follows that, in so
far as the applicant complained about his removal from office or
disqualification from standing for the presidency, this part of the
application is incompatible ratione
materiae with the provisions of the
Convention within the meaning of Article 35 § 3 and must be
rejected pursuant to Article 35 § 4.
2. Exhaustion of domestic
remedies
- The
Government submitted that parliamentary elections had been held in
2004 and 2008 and that the applicant had not expressed the wish to be
a candidate in them. Had his candidacy been refused, it would have
been open to him to apply to the administrative courts, which could
then have requested the Constitutional Court to review the
constitutionality of the Seimas Elections Act as amended on 15 July
2004. The Government further noted that, as President of Lithuania,
the applicant could have applied to the Constitutional Court, under
section 61 of the Constitutional Court Act, for an interpretation of
its ruling of 11 May 1999, in which it had held that the
constitutional sanction imposed in the context of impeachment
proceedings was “of an irreversible nature”, and asked it
to clarify whether this meant lifelong disqualification from standing
for election. He would then have had the option of resigning in order
to avoid that outcome. In short, the Government argued, this part of
the application should be declared inadmissible for failure to
exhaust domestic remedies.
- The
applicant submitted in reply that since the Constitutional Court had
very clearly ruled on 25 May 2004 that lifelong disqualification from
standing for election was a consequence of removal from presidential
office, it was certain not only that his registration as a candidate
in the 2004 and 2008 parliamentary elections would have been refused
but also that any subsequent remedies would have had no prospects of
success. He added that an application to the Constitutional Court
under section 61 of the Constitutional Court Act for an
interpretation of the ruling of 11 May 1999 would have been
ineffective, seeing that the meaning of the phrase “of an
irreversible nature” was not open to doubt. Lastly, the
argument that he would have avoided the impeachment proceedings if he
had resigned did not, in his view, call for a response.
- The
Court reiterates that the purpose of Article 35 is to afford the
Contracting States the opportunity of preventing or putting right the
violations alleged against them before those allegations are
submitted to it. Thus, the complaint to be submitted to the Court
must first have been made to the appropriate national courts, at
least in substance, in accordance with the formal requirements of
domestic law and within the prescribed time-limits. Nevertheless, the
only remedies that must be exhausted are those that are effective and
capable of redressing the alleged violation (see, among many other
authorities, Remli v. France,
23 April 1996, § 33, Reports
1996 II). More specifically, the only remedies which Article 35
of the Convention requires to be exhausted are those that relate to
the breaches alleged and at the same time are available and
sufficient; the existence of such remedies must be sufficiently
certain not only in theory but also in practice, failing which they
will lack the requisite accessibility and effectiveness (see, for
example, Selmouni v. France
[GC], no. 25803/94, § 75, ECHR 1999-V). It falls to the
respondent State, if it pleads non-exhaustion of domestic remedies,
to establish that these various conditions are satisfied (see, among
other authorities, Johnston and
Others v. Ireland, 18
December 1986, § 45, Series A no. 112, and Selmouni,
loc. cit.).
- In
the instant case the Court observes that in its ruling of 25 May 2004
the Constitutional Court held that a person who had been removed from
the office of President for a gross violation of the Constitution or
a breach of the oath could never again be elected President of the
Republic or a member of the Seimas or hold an office for which it was
necessary to take an oath in accordance with the Constitution. It
follows from Article 107 of the Lithuanian Constitution that
decisions of the Constitutional Court have statutory force and are
final. Furthermore, as the Government pointed out in their written
observations, the Constitutional Court itself is bound by its own
precedents. An appeal against a refusal to register the applicant as
a candidate for election to the Seimas would therefore have been
bound to fail. Indeed, the Supreme Administrative Court's decision of
28 May 2004 provides an illustration of this point, since it attached
decisive weight to the Constitutional Court's conclusions of 25 May
2004 in dismissing the applicant's complaint against the refusal of
the Central Electoral Committee to register him as a candidate in the
2004 presidential election.
- The
Court also takes note of the Government's argument that the applicant
could have made a prior request to the Constitutional Court for
clarification of whether removal from office entailed lifelong
disqualification from standing for election and that, if that
position were confirmed, he could have resigned before the vote on
whether to remove him from office. Such a request could not, however,
have prompted an examination of the applicant's particular situation
for the purposes of Article 3 of Protocol No. 1. It would also
have required him to resign voluntarily as President and thereby to
accept such a restrictive condition that the remedy in question could
not in any event be regarded as “accessible”. It cannot
therefore be classified as a domestic remedy that had to be used for
the purposes of Article 35 § 1 of the Convention.
- It
follows from the foregoing that the Government have not shown that a
domestic remedy satisfying the requirements of Article 35 § 1 of
the Convention was available to the applicant.
3. Compliance with the six-month time-limit
- The
Government submitted that the applicant had raised his complaint
under Article 3 of Protocol No. 1 for the first time in a supplement
to his application dated 30 September 2005, more than six months
after the final domestic decision (the Constitutional Court's ruling
of 25 May 2004). They accordingly contended that this part of the
application was out of time and, as such, inadmissible.
- The
applicant submitted in reply, in particular, that he had already
raised the complaint under Article 3 of Protocol No. 1 in substance
in his application; as a result, his submissions of 30 September 2005
had simply expanded on an argument he had already submitted to the
Court within the six-month period prescribed by Article 35 § 1
of the Convention. He pointed out in that connection that in the
Ringeisen v. Austria
judgment (16 July 1971, § 90, Series A no. 13) the
Court had accepted that initial applications could be followed by
“additional documents”, the purpose of which was “to
fill the gaps or clarify obscure points”.
- The
Court observes, as the Government did, that the applicant did not
raise this complaint in his application, even in substance. He
mentioned it for the first time in his supplement of 30 September
2005 to the application, more than six months after the
Constitutional Court's ruling of 25 May 2004 to the effect that a
person removed from office as President for a gross violation of the
Constitution or a breach of the constitutional oath could never again
be elected as a member of the Seimas – among other positions
(see paragraph 34 above) – and the Act of 15 July 2004 amending
the Seimas Elections Act accordingly.
- However,
regard should be had to the particular features of the present case.
The Court notes in this connection that, in so far as the right under
Article 3 of Protocol No. 1 to stand in parliamentary elections is in
issue here, the applicant's complaint concerns general provisions
which did not give rise in his case to an individual measure of
implementation subject to an appeal that could have led to a “final
decision” marking the start of the six-month period provided
for in Article 35 § 1 of the Convention. Admittedly, it might at
first sight have appeared conceivable for the applicant to attempt to
register as a candidate in parliamentary elections after his removal
from office and, once his registration was refused, to apply to the
administrative courts on the basis of Article 3 of Protocol No. 1.
However, as noted above, in view of the Constitutional Court's ruling
of 25 May 2004, such a remedy would have been ineffective in the
present case, and an applicant cannot be required to avail himself of
a remedy lacking effectiveness (see paragraph 76 above).
- It
therefore appears that the applicant's complaint does not concern an
act occurring at a given point in time or even the enduring effects
of such an act, but rather the Constitutional Court's ruling of 25
May 2004 that a person removed from office as President for a gross
violation of the Constitution or a breach of the constitutional oath
can never again be elected as a member of the Seimas (among other
positions), and the Act of 15 July 2004 amending the Seimas Elections
Act accordingly. He is therefore complaining of provisions giving
rise to a continuing state of affairs, against which no domestic
remedy is in fact available to him. However, as the European
Commission of Human Rights noted in the De Becker v. Belgium
decision (9 June 1958, no. 214/56, Yearbook 2), the existence of the
six-month period specified in Article 35 § 1 of the
Convention is justified by the wish of the High Contracting Parties
to prevent past judgments being constantly called into question.
Although this represents a “legitimate concern for order,
stability and peace”, it cannot be allowed to stand in the way
of the consideration of a permanent state of affairs which is not a
thing of the past but still continues without any domestic remedy
being available to the applicant; since there is no justification for
the application of the rule, there can be no question of his being
debarred by lapse of time. The Commission added that accordingly,
“when [it] receives an application concerning a legal provision
which gives rise to a permanent state of affairs for which there is
no domestic remedy, the problem of the six months period specified in
Article 26 [of the Convention (current Article 35 § 1)] can
arise only after this state of affairs has ceased to exist; ... in
the circumstances, it is exactly as though the alleged violation was
being repeated daily, thus preventing the running of the six months
period”. The Court itself has subsequently applied this
principle. Thus, it has considered the merits of a number of
applications which concerned statutory provisions that had not given
rise to individual decisions against the applicants but had produced
a permanent state of affairs, and which had been lodged more than six
months after the entry into force of the provisions in question
(see, for example, Hirst v. the United Kingdom (no. 2)
[GC], no. 74025/01, ECHR 2005-IX, and Sejdić and Finci v.
Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06,
ECHR 2009-...).
- In
the instant case no domestic remedy is available to the applicant and
the state of affairs complained of has clearly not ceased. It cannot
therefore be maintained that this part of the application is out of
time.
4. Application of Article 17 of
the Convention
- The
Government submitted that it would be contrary to the general
principles set forth in the Court's case-law concerning protection of
democracy for the applicant to be able to stand in parliamentary
elections after having breached his constitutional oath. They added
that his real aim was to be re-elected President in the election
called for 13 June 2004, and not to become a member of the Seimas. In
their submission, the applicant was seeking to use the Convention
machinery to gain political revenge and regain the highest State
office.
- The
applicant asserted in reply that his aim was to obtain a judgment
from the Court which would have the effect of allowing him to stand
in parliamentary or presidential elections, and that such an aim
could not constitute an abuse of rights for the purposes of Article
17 of the Convention.
- The
Court reiterates, firstly, that “the purpose of Article 17, in
so far as it refers to groups or to individuals, is to make it
impossible for them to derive from the Convention a right to engage
in any activity or perform any act aimed at destroying any of the
rights and freedoms set forth in the Convention; ... therefore, no
person may be able to take advantage of the provisions of the
Convention to perform acts aimed at destroying the aforesaid rights
and freedoms ...” (see Lawless
v. Ireland, 1 July 1961, § 7,
pp. 45-46, Series A no. 3).
Since
the general purpose of Article 17 is, in other words, to prevent
individuals or groups with totalitarian aims from exploiting in their
own interests the principles enunciated in the Convention (see W.P.
and Others v. Poland (dec.),
no. 42264/98, ECHR 2004-VII, and
Norwood v. the United Kingdom,
no. 23131/03, ECHR 2004-XI), this Article is applicable only on an
exceptional basis and in extreme cases, as indeed is illustrated by
the Court's case-law.
- The
Court has held, in particular, that a “remark directed against
the Convention's underlying values” is removed from the
protection of Article 10 by Article 17 (see Lehideux
and Isorni v. France, 23 September
1998, § 53, Reports
1998-VII, and Garaudy
v. France (dec.),
no. 65831/01, ECHR 2003-IX).
Thus, in Garaudy
(ibid.), which concerned, in particular, the conviction for denial of
crimes against humanity of the author of a book that systematically
denied such crimes perpetrated by the Nazis against the Jewish
community, the Court found the applicant's Article 10 complaint
incompatible ratione materiae
with the provisions of the Convention. It based that conclusion on
the observation that the main content and general tenor of the
applicant's book, and thus its aim, were markedly revisionist and
therefore ran counter to the fundamental values of the Convention and
of democracy, namely justice and peace, and inferred from that
observation that he had attempted to deflect Article 10 from its real
purpose by using his right to freedom of expression for ends which
were contrary to the text and spirit of the Convention
(see also Witzsch v. Germany
(dec.), no. 4785/03, 13 December 2005). The Court reached the
same conclusion in, for example, Norwood
((dec.), cited above) and Pavel
Ivanov v. Russia ((dec.), no.
35222/04, 20 February 2007), which concerned the use of freedom of
expression for Islamophobic and anti-Semitic purposes respectively.
In Orban and Others v. France
(no. 20985/05, § 35, 15 January 2005) it noted that
statements pursuing the unequivocal aim of justifying war crimes such
as torture or summary executions likewise amounted to deflecting
Article 10 from its real purpose. In the same vein, the Court
has held that Article 17 of the Convention prevented the founders of
an association whose memorandum of association had anti-Semitic
connotations from relying on the right to freedom of association
under Article 11 of the Convention to challenge its prohibition,
noting in particular that the applicants were essentially seeking to
employ that Article as a basis under the Convention for a right to
engage in activities contrary to the text and spirit of the
Convention (see W.P. and Others,
cited above).
- In
the present case there is no indication that the applicant was
pursuing an aim of that nature. He relied legitimately on Article 3
of Protocol No. 1 to challenge his disqualification from elected
office, seeking to obtain a judgment from the Court whose execution
at domestic level would have the likely effect of allowing him to
stand in parliamentary elections. In other words, he is seeking to
regain the full enjoyment of a right which the Convention in
principle secures to everyone, and of which he claims to have been
wrongly deprived by the Lithuanian authorities, the Government's
allegation that the applicant's real aim is to be re-elected
President of Lithuania being immaterial in this context. Article
17 of the Convention cannot therefore apply.
5. Conclusion
- In
so far as the applicant's complaint concerns his removal from office
or his disqualification from standing for election as President of
Lithuania, this part of the application must be rejected pursuant to
Article 35 § 4 of the Convention.
In
so far as it concerns his inability to stand for election to the
Seimas, it raises complex issues of fact and law which can only be
resolved after examination on the merits. It follows that this part
of the application is not manifestly ill-founded within the meaning
of Article 35 § 3 of the Convention. No other ground
for declaring it inadmissible has been established. Within these
limits, the application must therefore be declared admissible.
B. Merits
1. The parties' submissions
(a) The Government
- The
Government noted in the first place that the principle that a person
removed from office as President for a gross violation of the
Constitution or a breach of the constitutional oath could not stand
in presidential or parliamentary elections resulted from an
interpretation of the Constitution by the Constitutional Court.
However, it was not a new judge-made rule applied for the first time
by the Constitutional Court in the applicant's case, but an
“implicit” provision of the Constitution which that court
had simply confirmed. The Government pointed out that rulings of the
Constitutional Court were final and binding on everyone, including
the court itself, and that, like the actual text of the Constitution,
“implicit” constitutional provisions could be amended
only by changing the Constitution. They also emphasised that the
conclusions reached by the Constitutional Court in the present case
had not been unforeseeable, in particular given that, in a ruling of
11 March 1999 (see paragraph 50 above), that court had stressed that
the constitutional sanction resulting from removal from office was
irreversible; its ruling of 25 May 2004 had thus been consistent with
its previous case-law.
- The
Government further noted that the restriction in question, which
applied only to the passive aspect of the right protected by Article
3 of Protocol No. 1, was not directed at the applicant personally but
at a category of individuals to which he indisputably belonged.
They
added that the purpose of the restriction was to prevent persons who
had committed a gross violation of the Constitution or breached the
constitutional oath from holding an office for which it was necessary
to take an oath in accordance with the Constitution; it therefore
pursued the legitimate aim not only of preserving the democratic
order but also of “protecting national security”.
In
the Government's submission, taking into account what was at stake,
the restriction could not be regarded as disproportionate. In that
connection they emphasised that such conduct on the part of the
highest authorities – especially the head of State –
undermined people's trust in State institutions and posed a serious
and imminent threat to democracy and the constitutional order.
Furthermore, relying on Zdanoka v.
Latvia [GC] (no. 58278/00,
§§ 100 and 103, ECHR 2006-IV), they highlighted the
wide margin of appreciation afforded to States in this sphere and
also, referring to the concept of a “democracy capable of
defending itself”, the need to take account of the evolution of
the political context in which the measure in issue had been taken;
features unacceptable in the context of one country's system could be
justified in another system. On that point, they stressed that
Lithuania had been a democracy only between 1918 and 1940 and after
1990; accordingly, it did not have a long-standing democratic
tradition, society had not completely rid itself of the “remnants
of the totalitarian occupying regime” – including
corruption and a lack of public trust in State institutions –
and there were numerous examples of inappropriate and unethical
conduct in politics. Lithuania's political, historical, cultural and
constitutional situation therefore justified the measure in question,
even though it might appear excessive in a well-established
democracy. That position was all the more compelling in this instance
since the head of State was the institution to which the nation had
entrusted the duties of protecting and defending the constitutional
order and democracy. Lastly, the lack of a European consensus in this
area served to confirm that in deciding that persons dismissed
following impeachment proceedings should be permanently disqualified
from elected office, Lithuania remained within its margin of
appreciation.
- In
addition, relying on Zdanoka
(cited above, §§ 112-14), the Government emphasised that
the categories of persons affected by the prohibition imposed on the
applicant were clearly and precisely defined and that the applicable
rules afforded the highest possible degree of individualisation and
guarantees against arbitrariness. They noted in that connection that
two institutions were involved in impeachment proceedings, namely the
Seimas and the Constitutional Court; only the former could initiate
them, and only the latter could rule on whether there had been a
violation of the Constitution or a breach of the constitutional oath.
Only if the Constitutional Court had established such a violation
could the Seimas remove the person concerned from office (and,
moreover, this required a three-fifths majority of all members of the
Seimas). They also pointed out that impeachment proceedings were
judicial in nature, that the rules of criminal procedure applied,
that in such proceedings the Seimas was presided over not by one of
its members but by a member of the Supreme Court, and that the
decision included reasons and was taken following an objective public
investigation into the circumstances of the case. In the instant
case, moreover, the applicant had had the opportunity to escape
“full” constitutional liability by resigning after the
Constitutional Court's opinion of 31 March 2004; he would thereby
have avoided being removed from office and the resulting
disqualification from standing for election.
(b) The applicant
- In
the applicant's submission, the Constitutional Court's finding that
removal from office for a gross violation of the Constitution or a
breach of the constitutional oath was irreversible – to such an
extent that it could not even be challenged in a popular vote –
was excessive. This was particularly true in his case since, although
the charges forming the basis for his removal from office were
criminal in nature, they had either not given rise to a criminal
prosecution after his immunity had been lifted or they had resulted
in his acquittal. He was therefore subject to a permanent sanction
based on a questionable decision by a court that appeared biased, on
account of acts constituting criminal offences in respect of which he
had either been acquitted or not prosecuted.
- The
applicant – who likewise referred to the principles set forth
by the Court in Zdanoka
(cited above) – submitted that even assuming that the aim
pursued had been legitimate, it was unacceptable for it to have been
attained in his case through violations of the Constitution
resulting, for example, from retrospective application of the law and
denial of a fair trial.
He
further contended that the restriction of his right under Article 3
of Protocol No. 1 was disproportionate in that it was not subject to
a time-limit. Noting in that connection that in the Zdanoka
case the Chamber (judgment of 17 June 2004) had found a violation of
that Article for that reason, he argued that since the authoritative
nature of the Constitutional Court's rulings meant that his
disqualification was permanent, a finding along similar lines was all
the more compelling in his case. Although he nonetheless conceded
that the European Commission of Human Rights had reached the opposite
conclusion in several cases, he pointed out that all those cases had
concerned persons found guilty of particularly serious offences such
as war crimes or acts of high treason, whereas he had not been
convicted of any criminal offence on account of the acts forming the
basis of his disqualification from standing for election.
Furthermore,
in justifying the lack of a time-limit for the disqualification from
elected office of a person who had breached his constitutional oath
as President by saying that there would always be a doubt as to the
reliability of any new oath he would have to take in the event of his
subsequent election, the Constitutional Court had lent that measure a
preventive purpose which, rather than justifying it, made it even
more disproportionate. In the applicant's submission, this amounted
to a “presumption of guilt”.
2. The Court's assessment
(a) General principles
96. The
Court refers to the general principles concerning Article 3 of
Protocol No. 1, as set out in the following judgments in particular:
Mathieu-Mohin and Clerfayt v.
Belgium (2 March 1987, §§ 46-54,
Series A no. 113); Hirst
(cited above, §§ 56-62), Zdanoka
(cited above, §§ 102-15); Ādamsons
v. Latvia (no. 3669/03, §
111, ECHR 2008-...); and Tănase
v. Moldova [GC], no. 7/08, §§
154-162, ECHR 2010-...).
It
follows from the foregoing that Article 3 of Protocol No. 1, which
enshrines a fundamental principle of an effective political democracy
and is accordingly of prime importance in the Convention system,
implies the subjective rights to vote and to stand for election (see
Mathieu-Mohin and Clerfayt,
cited above, §§ 47-51; Hirst,
cited above, §§ 57-58; Zdanoka,
cited above, §§ 102-03; and Tănase,
cited above, §§ 154-55).
Although
those rights are important, they are not absolute. There is room for
“implied limitations”, and Contracting States must be
given a margin of appreciation in this sphere (see Mathieu-Mohin
and Clerfayt, cited above, § 52;
Hirst,
cited above, § 60; and Zdanoka,
cited above, § 103). The margin in this area is wide, seeing
that there are numerous ways of organising and running electoral
systems and a wealth of differences, inter
alia, in historical development,
cultural diversity and political thought within Europe, which it is
for each Contracting State to mould into its own democratic vision
(see Hirst,
cited above, § 61, and Zdanoka,
loc. cit.).
Thus,
for the purposes of applying Article 3 of Protocol No. 1, any
electoral legislation or electoral system must be assessed in the
light of the political evolution of the country concerned; features
that would be unacceptable in the context of one system may
accordingly be justified in the context of another, at least so long
as the chosen system provides for conditions which will ensure the
“free expression of the opinion of the people in the choice of
the legislature” (see Mathieu-Mohin
and Clerfayt, cited above, §
54; Zdanoka,
cited above, §§ 106 and 115; and Tănase,
cited above, § 157).
In
particular, the Contracting States enjoy considerable latitude in
establishing criteria governing eligibility to stand for election,
and in general, they may impose stricter requirements in that context
than in the context of eligibility to vote (see Zdanoka,
cited above, § 115; Ādamsons,
cited above, § 111; and Tănase,
cited above, § 156).
However,
while the margin of appreciation is wide, it is not
all-embracing.
It is for the Court to determine in the last resort whether the
requirements of Article 3 of Protocol No. 1 have been complied with.
It has to satisfy itself that the restrictions imposed do not curtail
the right in question to such an extent as to impair its very essence
and deprive it of its effectiveness; that they pursue a legitimate
aim; and that the means employed are not disproportionate. In
particular, such restrictions must not thwart “the free
expression of the opinion of the people in the choice of the
legislature” (see Mathieu-Mohin
and Clerfayt, cited above, §
52; Hirst,
cited above, § 62; Zdanoka,
cited above, § 104; and Tănase,
cited above, §§ 157 and 161).
(b) Application of these principles in the
present case
- In
the most recent Grand Chamber case concerning Article 3 of Protocol
No. 1 the Court examined whether there had been interference with the
applicant's rights under that Article, adding that such interference
would constitute a violation unless it met the requirements of
lawfulness, pursued a legitimate aim and was proportionate; it then
sought to ascertain whether those conditions were satisfied (see
Tănase,
cited above, §§ 162 and 163 80).
- Proceeding
in the same manner in the instant case, the Court notes at the outset
that the applicant, as a former President of Lithuania removed from
office following impeachment proceedings, belongs to a category of
persons directly affected by the rule set forth in the Constitutional
Court's ruling of 25 May 2004 and the Act of 15 July 2004. Since he
has thereby been deprived of any possibility of running as a
parliamentary candidate, he is entitled to claim that there has been
interference with the exercise of his right to stand for election.
- As
to whether the interference was lawful, the Court observes that the
principle that a person removed from office as President following
impeachment proceedings is no longer entitled to stand for election
to the Seimas is clear from the Constitutional Court's ruling of 25
May 2004 and the Act of 15 July 2004.
The
Court notes that the applicant complained that this rule had been
applied with retrospective effect. It reiterates, however, that under
Article 3 of Protocol No. 1 it is only required to examine the
applicant's inability to stand for election to the Seimas. In any
event, in so far as the rule in question entails ineligibility for
parliamentary office, it was not applied retrospectively in the
applicant's case. In fact, the first parliamentary elections in which
he was barred from standing were held in October 2004, long after the
above-mentioned ruling and legislative enactment.
- As
to the aim pursued, given that Article 3 of Protocol No. 1 does not
contain a list of “legitimate aims” capable of justifying
restrictions on the exercise of the rights it guarantees and does not
refer to those enumerated in Articles 8 to 11 of the Convention, the
Contracting States are free to rely on an aim not mentioned in those
Articles, provided that it is compatible with the principle of the
rule of law and the general objectives of the Convention (see, for
example, Zdanoka,
cited above, § 115).
The
Court accepts that this is the position in the present case. The
prohibition imposed on the applicant is the consequence of his
removal from office following impeachment proceedings, the purpose of
which, according to the Statute of the Seimas, is to determine the
constitutional liability of the highest-ranking State officials for
acts carried out while in office which undermine the authorities'
credibility. The measure thus forms part, according to the reasons
given in the Constitutional Court's ruling of 24 May 2004, of a
self-protection mechanism for democracy through “public and
democratic scrutiny” of those holding public office, and
pursues the aim of excluding from the legislature any senior
officials who, in particular, have committed gross violations of the
Constitution or breached their constitutional oath. As the Government
submitted, the measure is thus intended to preserve the democratic
order, which constitutes a legitimate aim for the purposes of Article
3 of Protocol No. 1 (see, for example, Zdanoka,
cited above, § 118).
- In
assessing the proportionality of the interference, it should above
all be emphasised that Article 3 of Protocol No. 1 does not exclude
the possibility of imposing restrictions on the electoral rights of a
person who has, for example, seriously abused a public position or
whose conduct has threatened to undermine the rule of law or
democratic foundations (see, for example, Zdanoka,
cited above, § 110). The present case concerns
circumstances of this kind. In the context of impeachment
proceedings, the Constitutional Court held that by having, while in
office as President, unlawfully and for his own personal ends granted
Lithuanian citizenship to J.B., disclosed a State secret to the
latter by informing him that he was under investigation by the secret
services, and exploited his own status to exert undue influence on a
private company for the benefit of close acquaintances, the applicant
had committed a gross violation of the Constitution and breached his
constitutional oath. On the basis of that finding, the Seimas removed
the applicant from office, his inability to serve as a member of
parliament being a consequence of that decision.
- Furthermore,
as the Court observed above, the categories of persons affected by
the disqualification are very clearly defined in law, and as a former
President removed from office following impeachment proceedings for a
gross violation of the Constitution or a breach of the constitutional
oath, there is no doubt whatsoever that the applicant belongs to that
group. Indeed, that has never been in dispute. There is therefore a
clear link between the applicant's disqualification from elected
office and his conduct and situation. As a result, the fact that his
disqualification was not based on a specific court decision following
a review of its proportionality in the individual circumstances of
his case is not decisive (see, for example, Hirst,
cited above, § 71; Zdanoka,
cited above, §§ 113 14, 115 (d) and 128; and
Ādamsons,
cited above, §§ 124-25), especially since the finding that
he had committed a violation of the Constitution and breached his
constitutional oath was made by the Constitutional Court, which
offers the guarantees of a judicial body.
More
broadly, the Court observes that in the context of impeachment
proceedings, following which a senior State official may be removed
from office and barred from standing for election, domestic law
provides for a number of safeguards protecting the persons concerned
from arbitrary treatment. Firstly, it appears from the case-law of
the Constitutional Court and the Statute of the Seimas that the rules
of criminal procedure and fair-trial principles apply in impeachment
proceedings (see paragraphs 46 and 50 above). In addition, while the
decision to initiate such proceedings on account of a gross violation
of the Constitution or a breach of the constitutional oath and the
final decision to remove a senior official from office are the
prerogative of a political body, namely the Seimas, it is the task of
a judicial body, namely the Constitutional Court, to rule on whether
there has been a violation of the Constitution; if the court finds no
such violation, the Seimas cannot remove the official from office.
Furthermore, when sitting in impeachment proceedings the Seimas is
presided over not by one of its members but by a judge of the Supreme
Court, and it cannot remove a person from office other than by a
three-fifths majority of its members in a reasoned decision. Lastly,
in the specific circumstances of the present case the Court observes
that the applicant, assisted by counsel, gave evidence to the Seimas
and the Constitutional Court at public hearings.
- Be
that as it may, the Court, while not wishing either to underplay the
seriousness of the applicant's alleged conduct in relation to his
constitutional obligations or to question the principle of his
removal from office as President, notes the extent of the
consequences of his removal for the exercise of his rights under
Article 3 of Protocol No. 1; as positive constitutional law currently
stands, he is permanently and irreversibly deprived of the
opportunity to stand for election to Parliament. This appears all the
more severe since removal from office has the effect of barring the
applicant not only from being a member of parliament but also from
holding any other office for which it is necessary to take an oath in
accordance with the Constitution (see paragraph 34 above).
- Admittedly,
the Government contended that in assessing proportionality in the
present case, regard should be had to the evolution of the local
political context in which the principle of disqualification from
elected office was applied. The Court does not disagree. It takes
note in this connection of the Government's argument that, in a
recent democracy such as (according to the Government) Lithuania, it
is not unreasonable that the State should consider it necessary to
reinforce the scrutiny carried out by the electorate through strict
legal principles, such as the one in issue here, namely permanent and
irreversible disqualification from standing in parliamentary
elections. Nevertheless, the decision to bar a senior official who
has proved unfit for office from ever being a member of parliament in
future is above all a matter for voters, who have the opportunity to
choose at the polls whether to renew their trust in the person
concerned. Indeed, this is apparent from the wording of Article 3 of
Protocol No. 1, which refers to “the free expression of the
opinion of the people in the choice of the legislature”.
Still,
as the Government suggested, the particular responsibilities of the
President of Lithuania should not be overlooked. An “institution”
in himself and the “personification” of the State, the
President carries the burden of being expected to set an example, and
his place in the Lithuanian institutional system is far from merely
symbolic. In particular, he enjoys significant prerogatives in the
legislative process since he has the right to initiate legislation
(Article 68 of the Constitution) and the possibility, when a law is
submitted to him for signature and promulgation, of sending it back
to the Seimas for reconsideration (Article 71 of the Constitution).
In the Court's view, it is understandable that a State should
consider a gross violation of the Constitution or a breach of the
constitutional oath to be a particularly serious matter requiring
firm action when committed by a person holding that office.
- However,
that is not sufficient to persuade the Court that the applicant's
permanent and irreversible disqualification from standing for
election as a result of a general provision constitutes a
proportionate response to the requirements of preserving the
democratic order. It reaffirms in this connection that the “free
expression of the opinion of the people in the choice of the
legislature” must be ensured in all cases.
- The
Court notes, firstly, that Lithuania's position in this area
constitutes an exception in Europe. Indeed, in the majority of the
Council of Europe's member States with a republican system where
impeachment proceedings may be brought against the head of State,
impeachment has no direct effects on the electoral rights of the
person concerned. In the other States in this category, there is
either no direct effect on the exercise of the right to stand in
parliamentary elections, or the permissible restrictions require a
specific judicial decision and are subject to a time-limit
(see
paragraph 62 above).
- The
Court further observes that the circumstances of the present case
differ greatly from those of the Zdanoka
case, to which the Government referred. The central issue in that
case was a statutory provision barring persons who, like the
applicant, had “actively participated after 13 January 1991”
in the Communist Party of Latvia (CPL) from standing in parliamentary
elections. The provision had been enacted by Parliament on account of
the fact that, shortly after the Declaration of Independence of 4 May
1990, the party in question had been involved in organising and
conducting attempted coups in January and August 1991 against the
newly formed democratic regime. After observing in particular that,
in the historical and political context in which the impugned measure
had been taken, it had been reasonable for the legislature to presume
that the leading figures of the CPL held an anti-democratic stance,
the Court concluded that there had been no violation of Article 3 of
Protocol No. 1. It held in particular that while such a measure could
not be accepted in the context, for example, of a country with a
long-established framework of democratic institutions, it might be
considered acceptable in Latvia in view of the historical and
political context which had 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 a
totalitarian regime (see Zdanoka,
cited above, §§ 132-36; see also Ādamsons,
cited above, § 113). However, besides the obvious contextual
differences between that case and the present one, the Court, without
wishing to underplay the seriousness of the applicant's alleged
conduct in relation to his constitutional obligations, observes that
the importance of his disqualification for the preservation of the
democratic order in Lithuania is not comparable.
- The
Court also notes that, in finding no violation in the Zdanoka
case, it attached considerable
weight to the fact that, firstly, the Latvian parliament periodically
reviewed the provision in issue and, secondly, the Constitutional
Court had observed that a time-limit should be set on the
restriction. It further concluded that the Latvian Parliament should
keep the restriction under constant review, with a view to bringing
it to an early end, and added that such a conclusion was all the more
justified in view of the greater stability which Latvia now enjoyed,
inter alia
by reason of its full European integration, indicating that any
failure by the Latvian legislature to take active steps to that end
might result in a different finding by the Court (see Zdanoka,
loc.cit.).
- Thus,
in assessing the proportionality of such a general measure
restricting the exercise of the rights guaranteed by Article 3 of
Protocol No. 1, decisive weight should be attached to the
existence of a time-limit and the possibility of reviewing the
measure in question. The need for such a possibility is, moreover,
linked to the fact that, as the Government noted, the assessment of
this issue must have regard to the historical and political context
in the State concerned; since this context will undoubtedly evolve,
not least in terms of the perceptions which voters may have of the
circumstances that led to the introduction of such a general
restriction, the initial justification for the restriction may
subside with the passing of time.
- In
the present case, not only is the restriction in issue not subject to
any time-limit, but the rule on which it is based is set in
constitutional stone. The applicant's disqualification from standing
from election accordingly carries a connotation of immutability that
is hard to reconcile with Article 3 of Protocol No. 1. This is a
further notable difference between the present case and the Zdanoka
case cited above.
- The
Court observes, lastly, that although it is worded in general terms
and is intended to apply in exactly the same manner to anyone whose
situation corresponds to clearly defined criteria, the provision in
question results from a rule-making process strongly influenced by
the particular circumstances.
In
this connection it notes in particular that the second paragraph of
Article 56 of the Constitution, which specifies the persons who
cannot be elected as members of the Seimas, makes no reference to
persons who have been removed from office following impeachment
proceedings. When the Seimas decided to remove the applicant from
office as President
(on 6 April 2004), no legal provision stated
that he was to be barred from standing for election as a result.
Accordingly, when he informed the Central Electoral Committee of his
intention to stand in the presidential election called for 13 June
2004 following his removal from office, the committee initially found
(on 22 April 2004) that there was nothing to prevent him from doing
so. The Seimas then introduced an amendment to the Presidential
Elections Act to the effect that anyone who had been removed from
office following impeachment proceedings could not be elected
President until a period of five years had elapsed, as a result of
which the committee ultimately refused to register the applicant as a
candidate. Further to an action brought by members of the Seimas, the
Constitutional Court held (on 25 May 2004) that such
disqualification was compatible with the Constitution but that
subjecting it to a time-limit was unconstitutional, adding that it
applied to any office for which it was necessary to take an oath in
accordance with the Constitution. The Seimas subsequently
(on
15 July 2004) introduced an amendment to the Seimas Elections
Act to the effect that anyone who had been removed from office
following impeachment proceedings was ineligible to be a member of
parliament.
The
striking rapidity of the legislative process reinforces the
impression that it was at least triggered by the specific desire to
bar the applicant from standing in the presidential election called
as a result of his removal from office. That, admittedly, is not a
decisive factor for the purposes of Article 3 of Protocol No. 1,
which applies only to the election of the legislature. However, the
Court considers that it constitutes an additional indication of the
disproportionate nature of the restriction of the applicant's rights
under that Article (see, mutatis
mutandis, Tănase,
cited above, § 179).
- Having
regard to all the above factors, especially the permanent and
irreversible nature of the applicant's disqualification from holding
parliamentary office, the Court finds this restriction
disproportionate and thus concludes that there has been a violation
of Article 3 of Protocol No. 1.
III. ALLEGED VIOLATION OF ARTICLE 13
OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 3 OF PROTOCOL
No. 1
- The
applicant complained that he had not had an effective remedy
available in respect of the Constitutional Court's ruling of 25 May
2004. He relied on Article 13 of the Convention taken in conjunction
with Article 3 of Protocol No. 1. Article 13 provides:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- Having
regard to its finding of a violation of Article 3 of Protocol No. 1,
the Court considers that the applicant had an “arguable claim”
calling in principle for the application of Article 13 of the
Convention.
However,
it reiterates that the absence of remedies against decisions of a
constitutional court will not normally raise an issue under this
Article
(see for example, Wendenburg
and Others v. Germany (dec.), no.
71630/01, ECHR 2003-II).
It
further observes that in the instant case the applicant's complaint
concerns his inability to challenge the rule laid down by the
Constitutional Court in its decision on an action for review of
constitutionality, to the effect that a person removed from office as
President for a gross violation of the Constitution or a breach of
the constitutional oath is no longer entitled to hold office as a
member of parliament, among other positions. However, Article 13
of the Convention, which does not go so far as to guarantee a remedy
allowing a Contracting State's laws as such to be challenged before a
national authority on the ground of being contrary to the Convention
(see, for example, James and
Others v. the United Kingdom, 21
February 1986, § 85, Series A no. 98; Christine
Goodwin v. the United Kingdom [GC],
no. 28957/95, § 113, ECHR 2002-VI; Roche
v. the United Kingdom [GC],
no. 32555/96, § 137, ECHR 2005-X; and Tsonyo
Tsonev v. Bulgaria, no. 33726/03,
§ 47, 1 October 2009), likewise cannot require the provision of
a remedy allowing a constitutional precedent with statutory force to
be challenged. In the present case the complaint raised by the
applicant under Article 13 falls foul of this principle, seeing that
his disqualification does not derive from an individual decision
against him but from the application of the above-mentioned rule
(see, mutatis mutandis,
Tsonyo Tsonev,
cited above, § 48).
- It
follows that this part of the application is manifestly ill-founded
and as such must be rejected as inadmissible pursuant to Article 35
§§ 3 and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant sought 50,000 euros (EUR) in compensation for the
non-pecuniary damage caused by the fact that he was deprived for life
of the right to stand for election and by the extensive media
coverage of the proceedings against him.
In
respect of pecuniary damage, he sought an amount corresponding to
forty-seven months' salary as President, making a total of EUR
183,912.88. He submitted in that connection that his monthly salary
had been EUR 3,913.04 and that he had been removed from office
after thirteen months of the five-year term for which he had been
elected. He also sought reimbursement of his “final pension”.
He noted that under Lithuanian law, former presidents were entitled
to a lifetime pension amounting to 50% of their salary; since the
average life expectancy in Lithuania was seventy-seven years and he
would have been fifty-three at the end of his term of office, he
assessed the loss sustained on that account at EUR 586,956.
- The
Government contended that the claim for pecuniary damage was
unfounded, unsubstantiated and excessive. They further argued that
there was no causal link between the pecuniary damage referred to by
the applicant and the alleged violation of Article 3 of Protocol No.
1 and that he had not substantiated his claims under that head
either.
- The
Court would point out that its finding of a violation of Article 3 of
Protocol No. 1 does not relate to the manner in which the impeachment
proceedings against the applicant were conducted or to his removal
from office as President, but solely to his permanent and
irreversible disqualification from standing for election to
Parliament. It thus concludes that there is no causal link between
the alleged pecuniary damage and the violation of the Convention it
has found and dismisses the applicant's claims under this head. In
addition, while finding that the applicant is, on the other hand,
entitled to claim that he has suffered non-pecuniary damage, it
considers, having regard to the particular circumstances of the case,
that such damage is sufficiently compensated by its finding of a
violation of Article 3 of Protocol No. 1.
That
apart, the Court also reiterates that by virtue of Article 46 of the
Convention, the Contracting Parties have undertaken to abide by the
final judgments of the Court in any case to which they are parties.
Furthermore, it follows from the Convention, and from Article 1 in
particular, that in ratifying the Convention the Contracting States
undertake to ensure that their domestic legislation is compatible
with it. This means, inter alia, that a judgment in which the
Court finds a breach of the Convention or its Protocols imposes on
the respondent State an obligation to determine, subject to
supervision by the Committee of Ministers, the general and/or, if
appropriate, individual measures to be taken in its domestic legal
order to put an end to the violation found by the Court and make all
feasible reparation for its consequences, in such a way as to restore
as far as possible the situation existing before the breach (see, for
example, Assanidze v. Georgia [GC], no. 71503/01, §
198, ECHR 2004-II, and Verein gegen Tierfabriken Schweiz (VgT) v.
Switzerland (no. 2) [GC], no. 32772/02, § 85, ECHR
2009 ...).
B. Costs and expenses
- The
applicant also sought reimbursement of the costs of his
representation before the Seimas and the Constitutional Court (EUR
35,000) and before the Court (EUR 39,000), and of the expenses
incurred by him and his lawyer in travelling to Strasbourg for the
Grand Chamber hearing (estimated at EUR 2,500).
- The
Government argued that the applicant had not produced any evidence in
support of those claims. They further contended that he had omitted
to show that the (unreasonable) amount claimed for the costs incurred
in the domestic proceedings had been necessary to prevent the alleged
breach of Article 3 of Protocol No. 1. In addition, they argued that
the claims relating to the proceedings before the Court were
excessive.
- The
Court observes that the proceedings before the Constitutional Court
and the Seimas were not intended to “prevent or redress”
the violation of the Convention which it has found (see, for example,
Zimmermann and Steiner
v. Switzerland, 13 July 1983, §
36, Series A no. 66;
Lallement
v. France, no. 46044/99, §
34, 11 April 2002; and Frérot
v. France, no. 70204/01, §
77, 12 June 2007), since the violation results solely from the
applicant's inability to stand for election to Parliament. The
applicant is therefore not entitled to claim reimbursement of the
costs and expenses relating to those proceedings.
With
regard to those incurred in the proceedings before the Court,
including in connection with the hearing on 28 April 2010, the Court
reiterates that an award can be made in respect of costs and expenses
only in so far as they have been actually and necessarily incurred by
the applicant and are reasonable as to quantum; furthermore, Rule 60
§§ 2 and 3 of the Rules of Court requires the applicant to
submit itemised particulars of all claims, together with any relevant
supporting documents, failing which the Court may reject the claims
in whole or in part (see, for example, Frérot,
loc. cit.).
In the present case, seeing that the applicant did not produce any
documents in support of his claims, the Court decides to dismiss them
in their entirety.
FOR THESE REASONS, THE COURT
- Declares
unanimously the complaints under
Articles 6 and 7 of the Convention and Article 4 of Protocol
No. 7 inadmissible;
- Declares
unanimously the complaint under Article 3 of Protocol No. 1 in so far
as it concerns the applicant's removal from office or his
ineligibility to stand for election as President of Lithuania
inadmissible;
- Declares
by a majority the complaint under Article 3 of Protocol No. 1 in so
far as it concerns the applicant's inability to stand for election to
the Seimas admissible;
- Declares
unanimously the complaint under Article 13 of the Convention, taken
in conjunction with Article 3 of Protocol No. 1
inadmissible;
- Holds
by fourteen votes to three that there has been a violation of
Article 3 of Protocol No. 1 on account of the applicant's
inability to stand for election to the Seimas;
- Holds unanimously that the finding of a
violation constitutes in itself sufficient just satisfaction for the
non-pecuniary damage sustained by the applicant;
- Dismisses unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English and in French, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 6 January 2011.
Michael O'Boyle Jean-Paul Costa
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the partly dissenting opinion of
Judge Costa joined by Judges Tsotsoria and Baka is annexed to this
judgment.
J.-P.C.
M.O'B.
PARTLY DISSENTING OPINION OF JUDGE COSTA JOINED BY
JUDGES TSOTSORIA AND BAKA
(Translation)
- I
disagree with the opinion of the majority of the Grand Chamber as
expressed in the above judgment. My dissent is only partial but
concerns two issues I consider important. I shall begin with some
general observations.
- The
case is a political one. The applicant, Mr Rolandas Paksas, was
elected President of the Republic of Lithuania by direct universal
suffrage and held office as head of State from 26 February 2003 to 6
April 2004. On the latter date, the Lithuanian Parliament (the
Seimas) removed him from office as President for gross violations of
the Constitution as established by the Constitutional Court. The
case is not only political but is also unusual because impeachment
proceedings are rarely instituted in Europe and elsewhere in the
world and are hardly ever carried through to completion; for
example, Richard Nixon, the thirty-seventh President of the United
States, resigned in August 1974 to avoid impeachment, which had
become likely as a result of the Watergate scandal. More recently,
in 2004 the South Korean Parliament impeached the country's
President but the impeachment proceedings were declared void by the
Constitutional Court two months later.
This
conception of impeachment as both exceptional in nature and normally
deterrent in effect has a very long history. In their work Droit
constitutionnel (PUF, Thémis, Paris, 2004, p. 47),
Professors Vlad Constantinesco and Stéphane Pierré-Caps
point out that in 1742 the British Prime Minister Robert Walpole and
his ministers resigned under threat of impeachment, as did Lord
North and his ministers in 1782; of course, this British
institution, dating back to the fourteenth century, inspired the
United States, which nevertheless had (and still has) a presidential
rather than parliamentary system.
- The
majority, rightly in my opinion, dismissed several complaints as
incompatible ratione materiae with the Convention and its
Protocols. In particular, they applied the well-known case-law
deriving from Pierre-Bloch v. France (21 October 1997,
Reports of Judgments and Decisions 1997-VI) in declaring
Article 6 § 1 inapplicable to Constitutional Court proceedings;
and they held that Article 3 of Protocol No. 1, concerning the right
to free elections – which the case-law of the European
Commission and Court of Human Rights has extended to the right to
vote and to stand in elections (as, indeed, seems to follow from the
State's obligation to ensure “the free expression of the
opinion of the people in the choice of the legislature”) –
applies only to the election of the “legislature”:
accordingly, it does not apply to the President's removal from
office, or to eligibility to stand for election as President (or
indeed to referendums, an issue not arising here).
- Finding
that the applicant's disqualification from standing for election to
the Seimas thus fell within the scope of Article 3 of Protocol
No. 1, the majority went on to hold that this complaint was
admissible and
well-founded. I am unable to agree on either
point.
- Firstly,
the judgment considers that both the admissibility criteria set
forth in Article 35 § 1 of the Convention were satisfied. It
takes the view that the applicant exhausted domestic remedies or did
not have any available (which amounts to the same thing), and that
his complaint was not lodged outside the six-month time-limit. These
two findings are of unequal accuracy and to my mind are
contradictory.
- Following
impeachment proceedings as provided for by the Constitution, the
Seimas removed Mr Paksas from office on 6 April 2004. Fresh
presidential elections were called for 13 June. The applicant
applied to be registered as a candidate, but his candidacy was
refused on 10 May by the Central Electoral Committee and on 28 May
the Supreme Administrative Court dismissed his complaint against
that decision. All this is mentioned as a reminder of the context,
since the complaints concerning the applicant's removal from office
and the presidential election are inadmissible ratione materiae.
As
to the applicant's eligibility to stand for election to the
Seimas, it was ruled out by an Act passed by the Seimas on
15 July 2004, further to the Constitutional Court's ruling of
25 May 2004 to the effect that a person who had been removed from
office as head of State for a gross violation of the Constitution,
such as Mr Paksas, could never again be (re-)elected as President or
even as a member of the Seimas. As far as the latter
disqualification is concerned, the decision forming the basis of the
alleged violation of Article 3 of Protocol No. 1 is either the
Constitutional Court's ruling on the disqualification, or at the
very latest the Act implementing that ruling and giving it statutory
effect.
- I
can accept that the applicant did not have an effective remedy in
respect of any of those measures. The Constitutional Court's ruling
is final by virtue of Article 107 of the Constitution (see
paragraphs 41 and 76 of our judgment). Moreover, any remedy used in
an attempt to have the Act of 15 July 2004 declared
unconstitutional would logically have been bound to fail, since the
Constitutional Court would have no plausible reason to find fault
with a legislative provision enacted by way of implementing its own
ruling. Accordingly, I do not contest the conclusion reached by the
majority in paragraph 78 of the judgment, while having some
reservations as to the underlying reasoning, although it is
unnecessary for me to express them.
- On
the other hand, I cannot accept in all legal conscience the finding
that the application is not out of time, at least in respect of the
only admissible complaint. Since no judicial (or other) remedy was
available, the final domestic decision was, at the latest and at
best from the applicant's perspective, the Act of 15 July 2004. That
date constitutes the starting-point, the dies a quo, for the
six-month period. Being unable to apply to any national court, Mr
Paksas would not have breached the principle of subsidiarity by
applying to the European Court of Human Rights; quite the contrary.
In paragraph 81, however, the judgment observes, as the Government
did, that in his application (lodged on 23 September 2004, within
the time-limit) the applicant did not raise, even in substance, the
complaint concerning his ineligibility to stand for election to
the Seimas. Although the applicant – who, moreover, was
well informed and represented by qualified lawyers – could and
should have done so, he did not raise that complaint until 30
September 2005, one year later, in a supplement to his application.
- To
counter this unassailable argument that this complaint is out of
time, the majority resort to the notion of a continuing
situation. In my view, the assistance thus offered to an
applicant who has displayed a manifest lack of diligence is
ingenious but artificial, and in any event I must say that I am not
convinced. Admittedly, the provisions prescribing or governing
Mr
Paksas's inability to stand for election have a permanent
effect. But that is the case with most instantaneous acts; they
rarely have a temporary effect. When Article 2 (still in
force) of the Civil Code of 30 Ventôse Year XII
(21
March 1804) states that “the law provides only for the future;
it has no retrospective effect”, the words “for the
future” mean “on a permanent basis”, unless, of
course, a subsequent law repeals or amends the initial law (lex
posterior derogat priori).
Whether
the disqualification from elected office is permanent or subject to
a time-limit – an issue which may have a bearing on its
compatibility with the substantive right guaranteed by Article 3 of
Protocol No. 1 – this has nothing to do with the concepts of
an instantaneous act or a continuing situation. Otherwise, nearly
all legal measures would give rise to situations that could be
described as such, and the six-month rule would scarcely ever be
applicable.
- The
criterion of a time-limit is to be taken seriously. It does not
reflect empty formalism. Time-limits for appealing exist for all
national courts; they are generally shorter than the six-month
period laid down in the Convention, which takes into account the
difficulties for certain applicants (surely not the case for Mr
Paksas) to obtain information about the Convention and to institute
proceedings in Strasbourg. Time-limits for appealing pursue several
legitimate aims, among them the proper administration of justice
and, even more importantly, legal certainty and stability. In the
case-law this admissibility criterion has been construed without
excessive rigidity, but it must be applied rigorously. Rigidity and
rigorousness are not synonymous, and any slackness would in my view
be dangerous, not least for the future of the European human-rights
protection system. As to the notion of a continuing situation, it
does not stem from the text of the Convention but is a judge-made
construct that has developed in a quite different environment from
the present case, for example in cases of disappearances. According
it too much significance in the case-law would likewise be dangerous
in my opinion, for while a sometimes legitimate exception to a rule
explicitly laid down in the Convention may mitigate the effects of
the rule, it should not render it nugatory; the case-law may
interpret the text of the Convention, but should not take its place.
- I
therefore have no hesitation in finding that the complaint was out
of time. I could leave it at that. Just to make things clear,
however, I wish to add, not without some doubt, that if the
complaint had been submitted in time, I would probably have
concluded that it was ill-founded.
- The
judgment as a whole appears moderate and balanced, if I may express
an opinion. It finds only a “narrow” violation. The
conviction of the majority is that lifelong disqualification from
standing for election is excessive and thus unacceptable. This view
is all the more understandable because the penalty is severe
(although in politics, nothing is ever final, not even electoral
legislation; but one should not speculate on this point). And the
case-law generally takes a strict approach to prohibitions of this
type, as in the case of permanent exclusion orders against foreign
nationals
(see Mehemi v. France, 25 September 1997,
Reports 1997-VI). However, the allegations against the
applicant were not trivial either, and it was the national
parliament which, following a ruling by a high-level court, removed
him from office and passed the impugned Act. In such a specific and
delicate field as electoral law, and in a case involving the complex
relations between the different public authorities, subject to the
ultimate scrutiny of the electorate, and thus the sovereign people,
I would advocate restraint; the State has a wide discretion, and
therefore it seems to me that the legitimate European supervision in
this case should be restricted or limited. For that reason, I would
probably have voted against point 5 of the operative provisions even
if the facts could have led me to vote in favour of point 3; it
seems more honest for me to say so.
