ITEMID: 001-84061
LANGUAGEISOCODE: ENG
RESPONDENT: ALB
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF MARINI v. ALBANIA
IMPORTANCE: 2
CONCLUSION: Preliminary objections joined to merits and dismisssed (non-exhaustion of domestic remedies, lack of effective remedy in respect of the length-of-proceedings complaint);No violation of Art. 6-1 concerning the alleged restriction on the applicant's right of access to court in respect of the liquidation order;Violation of Art. 6-1 concerning the denial of the applicant 's right of access to court as a result of the Constitutional Court's failure to take a decision on his constitutional complaint;Violation of Art. 6-1 concerning the non-enforcement of the final decision of 7 July 1993;Violation of Art. 6-1 concerning the excessive length of the first and second sets of proceedings;No violation of Art. 6-1 concerning the excessive length of the third, fourth and fifth sets of proceedings;Violation of Art. 13 concerning the lack of an effective remedy in respect of the applicant's length-of-proceedings complaint;Not necessary to examine the remainder of the complaints under Art. 6;Violation of P1-1;Remainder inadmissible;Pecuniary and non-pecuniary damage - financial award (global);Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 5. The applicant was born in 1936 and lives in Tirana.
6. In 1991 the applicant, an American and Albanian national, and the Albanian Government established a joint-venture company for a period of ten years. It was called “Marini-Albplastik” and specialised in the production of plastic materials. The company’s memorandum, dated 11 March 1991, was validated by a decision of the Council of Ministers on 23 April 1991. The new company was duly registered in the Commercial Register.
7. The assets of the company consisted of a factory with its equipment, of a total value of 1,500,000 Albanian leks (ALL –approximately 12,497 euros (EUR)), which had previously belonged to a State-owned company named Mandimpeks. The applicant’s investment in the company consisted of capital amounting to 1,100,000 United States dollars (USD – approximately EUR 834,098), to be used for the renovation of the factory and the future purchase of new technology. The parties would each hold 50% of the shares.
8. On 30 May 1991, in order to comply with the obligations entered into in the memorandum, the applicant, on behalf of Marini-Albplastik, signed a contract for the purchase of new technology for the production of plastic materials with Edil-Plastic, an Italian company. A lump sum of USD 228,000 (approximately EUR 173,000) was paid by the applicant. A second amount of money was to be invested subsequent to the first stage of the factory’s renovation.
9. When 60% of the renovation of the factory had been carried out, the State terminated the company’s activities and requested the applicant to propose new terms of cooperation. The applicant objected. Subsequently, in a decision of 3 April 1993 the Council of Ministers annulled its decision of 23 April 1991 and unilaterally rescinded the agreement establishing the Marini-Albplastik company.
10. On an unspecified date, in order to obtain redress, the applicant applied to the State Arbitration Commission (Arbitrazhi i Shtetit), which was the competent body at the material time to deal with disputes involving State joint-ventures.
11. On 7 May 1993 the State Arbitration Commission upheld the validity of the Marini-Albplastik company’s memorandum. Moreover, it ordered the State to pay the applicant ALL 41 million (approximately EUR 341,608) for the loss of profit incurred as a result of the cessation of the company’s activities during 1992 and ALL 68,400 (approximately EUR 569) to cover bank interest on the USD 228,000 investment. Furthermore, it ordered the State-owned company to finish the reconstruction work at the factory by 30 October 1993. Lastly, the State Arbitration Commission dismissed the applicant’s request to have his share of the investment refunded, on the ground that it was part of the assets of the company.
12. The State appealed against the above-mentioned decision to the Plenary State Arbitration Commission (Mbledhja e Përgjithshme e Arbitrarëve të Arbitrazhit Shtetëror). On 7 July 1993 the latter upheld the part of the decision of the State Arbitration Commission ordering the State to comply with its obligation to pursue the activities of the joint venture, but quashed the part of the decision awarding the applicant compensation for bank interest and loss of profit and remitted the case to the State Arbitration Commission for a fresh calculation of the loss of profit. The first part of the decision of 7 May 1993 became final on the same date.
13. On 5 November 1993 the State Arbitration Commission, following the guidelines given by the Plenary State Arbitration Commission in its decision of 7 July 1993, ordered the State to pay the applicant a lump sum of ALL 26 million (approximately EUR 217,286) for loss of profit in 1992. The decision became final on the same date.
14. On an unspecified date in 1993 the bailiffs, in compliance with the above-mentioned final decision, froze the assets of the State-owned company and paid the applicant the sum of ALL 26 million due to him.
15. Following the refusal of the Council of Ministers to serve the Plenary State Arbitration Commission’s decision of 7 July 1993 on him, the applicant lodged a complaint with the Constitutional Court in order to obtain redress. On 8 November 1995 the Constitutional Court found a violation of the applicant’s constitutional rights and ordered that he be served with the decision issued by the Plenary State Arbitration Commission.
16. Two years after the decision of the Plenary State Arbitration Commission, the Council of Ministers served the decision on the applicant.
17. On an unspecified date the State-owned company that was the applicant’s partner in the joint-venture applied to the Tirana District Court to have the arbitration decision of 5 November 1993 declared null and void on the ground that it had been issued after the Arbitration Body had ceased to exist as a decision-making body on 4 November 1993. Moreover, it requested the court to annul the bailiffs’ order concerning the freezing of its assets with a view to enforcing the arbitration decision.
18. On 27 November 1996 and 11 June 1997 respectively, the Tirana District Court and the Tirana Court of Appeal dismissed the company’s application and upheld the validity of the State Arbitration Commission’s decision in the applicant’s favour. The judgment became final at the latest on 26 June 1997.
19. On 13 September 1996 and 24 January 1997 respectively, the National Privatisation Agency (Agjensia Kombëtare e Privatizimit) sold to F. the premises of the factory and the plot of land adjacent to it, despite their being the assets of the Marini-Albplastik company.
20. The applicant initiated proceedings contesting the privatisation decisions.
21. On 10 June 1998, 18 December 1998, 1 December 1999, 19 December 2000 and 2 May 2001 respectively, the Tirana District Court, the Tirana Court of Appeal, the Supreme Court Civil Chamber, the Supreme Court Joint Colleges, and the Constitutional Court found the privatisation acts to be null and void and, inter alia, ordered that the factory be treated as part of the assets of the Marini-Albplastik company. Lastly, the domestic courts ordered F. to return possession of the factory and its adjacent plot of land to the partners of the Marini-Albplastik company.
22. Following a request by the applicant, on 17 January 2000 the Tirana District Court issued a writ for the execution of the judgment of 10 June 1998.
23. Notwithstanding the above-mentioned order, on 4 July 2001 the Ministry of Economic Affairs and Finance, without the applicant’s consent, concluded a twenty-year lease agreement with another company, D., which was to operate the factory at issue for the purpose of producing shoes (see the proceedings outlined in section F below). The D. company already occupied and operated the factory under a four-year lease agreement concluded with F. in 1998 (see the proceedings outlined in section D below).
24. In 1998, while the proceedings on the legality of the decisions to privatise the factory were pending, F. concluded a four-year lease agreement with the D. company, on the basis of which the latter would operate the factory for the purpose of producing shoes.
25. With a view to suspending the execution of the writ of 17 January 2000, the D. company lodged an application with the Tirana District Court for a stay of the enforcement proceedings. On 17 February 2000 the court upheld the application.
26. In a decision of 11 May 2000 the Tirana District Court held that the applicant should comply with the terms of the lease agreement entered into by F. and the D. company. On 2 February 2001 the Court of Appeal upheld the above-mentioned decision.
27. The applicant appealed against the decision to the Supreme Court.
28. On 23 December 2002 the Supreme Court found that, since the privatisation decisions had been held to be null and void, F. had been in no position to conclude such an agreement: therefore the lease was null and void. The court quashed the decisions of the District Court and Court of Appeal and discontinued the proceedings.
29. However, by that time the four-year lease agreement had terminated (on 2 October 2002) and the D. company now operated the factory under a new lease agreement, this time concluded with the Government (see the proceedings outlined in section F below).
30. On 1 February 2001, while the proceedings against the D. company concerning the validity of the first lease agreement were pending, the Ministry of Labour and the applicant agreed to establish a new Marini-Albplastik company. The new company was founded on the basis of the memorandum of the first Marini-Albplastik company, dated 11 March 1991, the State Arbitration Commission’s decision of 7 May 1993 and the District Court’s final judgment of 10 June 1998 in the applicant’s favour.
31. By section 9 of the memorandum establishing the new company, “the parties recognised their responsibilities for the failure to comply with the obligations entered into in the first memorandum and agreed to pay the damages due (the State Arbitration Commission’s decision of 7 May 1993 and the Tirana District Court’s judgment of 10 June 1998)”.
32. The parties agreed to joint ownership of the company on a 50-50 basis for a period of 10 years and the applicant was to act as the administrator of the company.
33. In a decision of 18 May 2001 the Tirana District Court registered the new company as Marini-Albplastik Ltd, a plastic-manufacturing company jointly owned by the applicant and a State-owned enterprise that at the material time was under the responsibility of the Ministry of Labour.
34. On 6 September 2001 the partners held the first general meeting of the company in order to quantify their shares in the capital. The representative of the State-owned company submitted that the State would register its share of the capital in the name of the Marini-Albplastik company once the applicant had invested his share. The applicant disagreed on the ground that the law provided that the partners should invest their shares of the capital at the same time.
35. On 4 July 2001, despite the registration of the new company on 18 May 2001 and in breach of the obligations assumed by the Ministry of Labour on 1 February 2001, the Ministry of Economic Affairs and Finance, without the applicant’s consent, concluded a twenty-year lease agreement with the D. company. Under the new agreement, the D. company was to use the factory belonging to the Marini-Albplastik company for the purpose of producing shoes.
36. In the light of the above, on 23 July 2001 the Ministry of Economic Affairs and Finance ordered the removal of Marini-Albplastik’s assets from the Immovable Property Register (Zyra e Regjistrimit të Pasurive të Paluajtshme). As a result, the factory and the adjacent plot of land were registered as State properties.
37. The applicant lodged appeals against the order with the Immovable Property Registry Office, the Tirana District Court and other State bodies. On 6 August 2001 the Tirana District Court ordered a stay of execution of the order.
38. In a letter of 27 July 2001 the Deputy Prime Minister advised the Minister for Labour, the Minister for Economic Affairs and the Immovable Property Registry Office to comply with the courts’ final decisions in the applicant’s favour.
39. Notwithstanding the above, the assets of the applicant’s company were removed from the Immovable Property Register.
40. On an unspecified date the applicant lodged an application with the District Court contesting the lawfulness of such a measure.
41. On 24 June 2002 the District Court ordered the re-entry of the company’s assets in the register.
42. On 14 January 2003 the Court of Appeal quashed the District Court’s decision on procedural points and remitted the case to the District Court for fresh consideration.
43. On 19 March 2004 the Supreme Court dismissed an appeal by the applicant, holding that his grounds of appeal fell outside the scope of Article 472 of the Code of Civil Procedure (CCP).
44. On an unspecified date the Tirana District Court, in the rehearing of the case, called the liquidator of the applicant’s company to intervene in the proceedings as a third party (see the proceedings outlined in section H below).
45. On 27 January 2005 the District Court, in a fresh set of proceedings, dismissed the applicant’s application on the ground that he represented a company in liquidation and thus had no standing before the court. That decision was upheld by the Court of Appeal on 12 May 2005.
46. On 27 January 2006 the Supreme Court dismissed an appeal by the applicant, holding that his grounds of appeal fell outside the scope of Article 472 of the CCP.
47. In the light of the above, the D. company applied to the Tirana District Court for a stay of execution of the writ issued by the same court on 17 January 2000 (see paragraph 24 above). On 14 October 2002 the court allowed that request.
48. The applicant appealed to the Tirana Court of Appeal.
49. On 5 January 2003 the Court of Appeal found that the D. company was not a party to the proceedings that had led to the writ of 17 January 2000 and was therefore not eligible to make such a request.
50. On 10 April and 9 May 2002, and on 23 November 2002 respectively, the Ombudsperson (Avokati I Popullit) and the Ambassador of the United States in Albania called on the authorities to honour the final judgments given in the applicant’s case.
51. In a letter of 27 January 2003 the Minister for Economic Affairs requested the Bailiff’s Office not to enforce the writ of 17 January 2000 since the factory had been entered in the Immovable Properties Register as State-owned property and was therefore no longer an asset belonging to Marini-Albplastik but was subject to a lease agreement concluded with another company.
52. On 5 February 2003 the Bailiff’s Office decided not to proceed with the enforcement of the writ.
53. Following an appeal by the applicant on behalf of the company, the District Court on 28 March 2003 and the Court of Appeal on 5 June 2003 upheld the applicant’s grounds of appeal and ordered the Bailiff’s Office to proceed with the enforcement.
54. The Bailiff’s Office appealed against those decisions before the Supreme Court.
55. On 23 March 2004 the Supreme Court, Joint Colleges, quashed the decisions of the District Court and the Court of Appeal and remitted the case to the District Court for a fresh examination, on the ground that the courts had failed to give notice of the proceedings to the State Advocate’s Office.
56. On an unspecified date, in the new set of proceedings the District Court, having regard to its own decision to liquidate the company, called the liquidator of the Marini-Albplastik company to join the proceedings (see the proceedings summarised in section H below). The applicant contested this on the ground that the dispute concerned his interests and not those of the company in liquidation.
57. On 1 October 2004, at the liquidator’s request, the District Court discontinued the proceedings. The decision was upheld by the Court of Appeal and the Supreme Court on 10 February 2005 and 13 April 2006, respectively.
58. In 2003 the State-owned company on various occasions unsuccessfully requested the applicant, in his capacity as administrator of the Marini-Albplastik company, to organise a general meeting of the company.
59. On 21 February 2003, during a general meeting of the company, the representative of the State-owned company informed the applicant of its decision to rescind the agreement with the Marini-Albplastik company. The applicant contested this. Accordingly, the Ministry of Economic Affairs requested the court to order the winding-up of the Marini-Albplastik company and the liquidation of its assets, on account of the applicant’s lack of interest in the company’s activities.
60. On 8 May 2003 the court appointed a liquidator and confirmed the liquidation of Marini-Albplastik. The District Court’s decision was upheld by the Court of Appeal in a decision of 20 November 2003. The Supreme Court, on 20 July 2004, dismissed a subsequent appeal, holding that the grounds of appeal fell outside the scope of Article 472 of the CCP.
61. On an unspecified date the applicant lodged an appeal with the Constitutional Court, claiming, inter alia, that the proceedings were unfair on the grounds that the Ministry of Economic Affairs, not being a shareholder of the Marini-Albplastik company, had no right to request the winding-up of the company and that the proceedings had been initiated against the applicant and not against the company, since the Ministry of Labour, the other shareholder, had not been given notice of the proceedings.
62. On 14 October 2004 the liquidator of the Marini-Albplastik company requested the applicant, in his capacity as the company’s administrator, to submit the company’s accounts and its stamp. In view of the applicant’s reluctance to participate in the general meetings organised by the liquidator, the latter requested the Tirana District Court to validate the final accounts of the company and to order its removal from the Commercial Register. The applicant requested a stay of the proceedings until the Constitutional Court had determined the case.
63. On 6 January 2005 the Tirana District Court dismissed the applicant’s request, validated the final accounts of the company and ordered the termination of the winding-up proceedings. Moreover, it ordered that the termination of the winding-up proceedings be entered in the Commercial Register. That decision was upheld by the Tirana Court of Appeal on 7 June 2005.
64. On 27 April 2005 the Constitutional Court, in a formation of seven out of the nine judges provided for by the relevant law on its functioning and organisation, dismissed the applicant’s appeal since its vote was tied. The court’s reasoning was limited to the fact that the court could not reach a majority on any of the issues raised in the present case. The applicant was invited by virtue of section 74 of the Constitutional Court Act to lodge a fresh appeal (see paragraph 72 below).
65. The applicant did not lodge a fresh constitutional appeal under section 74 of the Constitutional Court Act.
66. The relevant parts of the Albanian Constitution read as follows:
“In the protection of his constitutional and legal rights, freedoms and interests, or in defending a criminal charge, everyone has the right to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law.”
“The Constitutional Court shall decide: ...
(f) in a ruling that shall be final, complaints by individuals alleging a violation of their constitutional rights to a fair hearing, after all legal remedies for the protection of those rights have been exhausted.”
“(...)
2. The Constitutional Court decides with the majority of all its members.”
“State bodies shall comply with judicial decisions.”
67. The Act provides that the Constitutional Court is the highest authority which guarantees compliance with the Constitution and rules on its final interpretation.
68. The Court is composed of nine members, who are appointed by the President of the Republic with the consent of Parliament (section 7).
69. A preliminary review of complaints lodged by individuals is conducted by a panel of three Constitutional Court judges, including the reporting judge (section 31).
70. The Court decides on individual applications at a plenary session attended by all the judges. The quorum of the plenary session is two-thirds of the elected judges in office (section 32). The Court takes its decisions by a majority of all its members (Article 133 of the Constitution).
71. The decisions of the Constitutional Court are taken by a majority of the judges present and abstentions are not allowed (section 72).
72. Pursuant to section 74 of the Act, in the event of a tied vote the Constitutional Court must dismiss the appeal. The dismissal of an appeal for this reason does not prevent the appellant from resubmitting the complaints to the Constitutional Court, which subsequently adopts a decision provided that a majority of the sitting judges is attained.
73. The State Arbitration Act provided for the organisation and functions of the State Arbitration Commission (Arbitrazhi i Shtetit), which was the body with jurisdiction to determine disputes where the economic interests of the State were at issue. Under section 28 of the Act, its decisions, once final, were binding on the State Treasury or other State financial bodies and the Bailiff’s Office.
74. Proceedings for the enforcement of final adjudications were initiated by filing a decision with the Bailiff’s Office. Under section 30 of the Act, the decisions of the State Arbitration Commission were subject to appeal before the Plenary State Arbitration Commission (Mbledhja e Përgjithshme e Arbitrarëve të Arbitrazhit Shtetëror).
75. Law no. 7801 dated 2 March 1994 repealed the Act and dissolved the State Arbitration Commission.
76. Materials available to the Court describe relevant aspects of the occurrence of tied votes in the upper courts’ decision-making in several Contracting States representing different legal traditions. There is no uniform practice in the contracting States with regard to the occurrence of a tied vote in decision-making before the Supreme and Constitutional Courts. Many States provide for measures to avoid tied votes and to ensure that a majority is obtained, such as establishing formations made up of an uneven number of judges (for example, in Albania, Bosnia and Herzegovina, Poland, Malta and the United Kingdom) and/or prohibiting judges from abstaining (for example, in Albania, Bosnia and Herzegovina and Moldova) and/or providing for an uneven number of judges to make a decision-making quorum (for example, in Italy, Andorra and Austria). Even in these circumstances, however, a tied vote could still occur. With a view to ensuring that a final decision can be reached, even in the event of a tied vote, different legal systems provide for different solutions, such as a casting vote for the president of the court/formation (for example, in Austria, Italy and Spain) or for the judge rapporteur (for example, in Andorra), or giving an interpretation to the tied vote (for example, in Germany, Poland, Slovakia and Moldova). In the event of a tied vote, the Albanian legal system provides for the adjournment of the case for an unspecified period of time until the circumstances that created the tied vote have ceased to exist (see paragraph 72 above).
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-105428
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: JOBE v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano
TEXT: The applicant, Mr Pa Monde Jobe, is an Gambian national who was born in 1980 and lives in Gambia. He was represented before the Court by Mr L. McNulty, a barrister practising in London.
The applicant was arrested on 15 December 2006 in Birmingham. He remained in custody throughout the criminal proceedings against him.
On arrest, he was found to be in possession of a large number of digital files containing extremist Islamist material. This included files entitled “Military Training manual”, “Al Qa’eda Training Manual”, “How Can I Train Myself For Jihad?”, and “39 ways to Serve and Participate in Jihad”. The documents were contained either on a “torrent” file, acquired through a file-sharing system on the internet or, in the case of the “Al Qa’eda Training Manual” document, on a compact disc. On the applicant’s mobile telephone the police found a video of West Midlands police head-quarters, which was alleged to have been taken with view to a possible terrorist attack.
The applicant was charged inter alia with five counts of possessing a document or record containing information likely to be useful to a person committing or preparing an act of terrorism, contrary to section 58(1)(b) of the Terrorism Act 2000. Under section 58(3) it is a defence for a person charged with an offence under section 58 to prove that he had a reasonable excuse for his action or possession.
In his defence statement the applicant explained that he had acquired the torrent file when undertaking research on the internet concerning military training in his native country, Gambia. He was considering returning to Gambia in the future and wished to know what training he would need to perform in his country in order to join the army. For the document “Al Qaeda Training Manual” he said on a number of occasions he had purchased, or was given, material relating to Islamic religious, historic and current affairs. The compact disc was one such item and, at the time of his arrest, he did not know its complete content and was not aware of that particular document. Similar explanations were given for the remaining documents, with the additional explanation that all Muslims were obliged to participate in Jihad. Finally, concerning the video on his mobile telephone, the applicant explained that he had taken it when he had just acquired the phone. While travelling on a bus, he had decided to test the video facility on the telephone. There were no signs to indicate that videoing was prohibited in that area and, indeed, the actual images captured were immaterial to him.
On 12 December 2007 the applicant appeared before Birmingham Crown Court and pleaded not guilty to all the charges. He raised the “reasonable excuse” defence contained in section 58(3) of the Terrorism Act. At the time there was no legal guidance on what a reasonable excuse would be under that section.
On 1 February 2008 the applicant sought an indication from the trial judge as to what sentence he would receive should he change his plea to guilty (see the Goodyear case, relevant domestic law and practice below). The applicant was advised that he would receive a maximum sentence of four years’ imprisonment, which would mean that he would be released soon after conviction since he had already spent a significant period of time on remand. If the applicant did not change his plea and was found guilty by a jury he would face a longer sentence. The applicant therefore changed his plea to guilty, and sentencing was adjourned until 25 February 2008.
On 13 February 2007 the Court of Appeal handed down its judgment in the case of R v. K [2008] EWCA Crim 185, on the defence of “reasonable excuse” in section 58(3). In that case the defendant had argued that section 58(3) was too uncertain in its ambit to satisfy the principle of legal certainty. The court rejected that argument and stated that a reasonable excuse was:
“simply an explanation that the document or record is possessed for a purpose other than to assist in the commission or preparation of an act of terrorism. It matters not that that other purpose may infringe some other provision of the criminal or civil law.”
The applicant believed that the effect of K was that the explanations that he had given concerning the possession of the documents were now a defence to the charges he faced. He therefore made an application for his guilty plea to be withdrawn, which was granted on 19 March 2008. In granting the application, the trial judge also recognised that, at the applicant’s trial, he would now be obliged to direct the jury in line with the decision in K.
The prosecution took an interlocutory appeal against the trial judge’s decision. That appeal was, however, dismissed by the Court of Appeal on 1 May 2008, which found that it was bound by its judgment in K. The prosecution then appealed to the House of Lords, arguing that K had been wrongly decided.
The House of Lords gave judgment on 4 April 2009 ([2009] UKHL 13). It began by setting out what the Crown would be required to prove to establish a case against an accused under section 58, stating:
“The Crown must prove beyond reasonable doubt that the defendant (1) had control of a record which contained information that was likely to provide practical assistance to a person committing or preparing an act of terrorism, (2) knew that he had the record, and (3) knew the kind of information which it contained. If the crown establishes all three elements, then it has proved its case against the defendant and he falls to be convicted unless he establishes a defence under subsection (3).”
It then considered the operation of the “reasonable excuse” defence in section 58(3) and observed:
“It is only where the prosecution has already proved all these elements and so is otherwise entitled to a conviction, that the defendant needs to rely on the defence in section 58(3) in order to avoid conviction. If, applying section 58(3), the jury accept that the defendant had a reasonable excuse for possessing the material, then, because of that additional factor in the circumstances, he is entitled to be acquitted, even though it remains the case that the Crown has proved all the necessary elements of the offence in terms of section 58(1). It necessarily follows that, if the jury do not accept the defence put forward by the defendant under section 58(3), the defence fails and their duty will be to convict him of the offence under section 58(1) (emphasis in original).”
At paragraph 69 of its ruling the House of Lords provided the following example as to how the defence was to operate:
“Suppose, for instance, the Crown proves beyond a reasonable doubt that, when a defendant was stopped and searched, a disk containing the Al Qa’eda Training Manual was found in his pocket and that he knew what was on the disk. The defendant adduces evidence to the effect that he had found it on a train only a few minutes before and was on his way to hand it in to the nearest police station when he was stopped. Assume that this would be a reasonable excuse. The jury would have to find the defence satisfied and acquit the defendant, unless the Crown proved beyond a reasonable doubt that the defence was not satisfied – in the hypothetical example, by proving that the defendant’s story was not true and that, in fact, he was not on his way to hand in the disk when he was stopped. If the Crown proved this, then, in terms of section 118(2) [of the Terrorism Act 2000: see relevant domestic law and practice below], it would have proved that the defence was not satisfied – in other words, that it had not been made out. The supposed defence would then vanish from the scene and the Crown would be entitled to ask for a conviction on the basis of the evidence of the defendant’s possession of the disk.”
The House of Lords rejected the interpretation of the “reasonable excuse” defence adopted by the Court of Appeal in K. It was not correct to interpret the defence as meaning that any non-terrorist purpose would be a reasonable purpose. The Court of Appeal’s construction of “reasonable excuse” was, in the House of Lords’ view, “utterly different” from the construction which had been put on the equivalent defence in other statutes (as those relating to possession of an offensive weapon or failure to provide a blood or urine sample in road traffic cases). It continued:
“More than that, however, the Court of Appeal’s construction robs the adjective “reasonable” in section 58(3) of all substance. Neither the judge nor the jury is left with any room to consider whether the excuse tendered by the accused for, say, his possession of the document or record is actually reasonable. Provided only that he proves that his purpose was not connected with the commission etc of an act of terrorism, the Court of Appeal give him a defence under subsection (3). Indeed they expressly affirm that it matters not that the defendant’s purpose may infringe some other provision of the criminal or civil law. Suppose, for example, that the accused had a document containing information about the security system protecting the Home Secretary’s residence. The interpretation adopted by the Court of Appeal means that, if the defendant proved that he had this document because he was planning to burgle the Home Secretary’s house and steal her jewellery, this would, by definition, be a reasonable excuse since the defendant’s purpose would not be connected with the commission etc of an act of terrorism. The same would apply if the defendant’s purpose was to murder the Home Secretary for purely personal motives. Even if the jury rightly considered that these ‘excuses’ were outrageous rather than reasonable, in each case the judge would have to direct them that the defendant’s purpose amounted to a reasonable excuse in terms of section 58(3) and that they would have to acquit him. In our view, Parliament could not have intended section 58(3) to be interpreted or applied in that way.”
“Unless the judge is satisfied that no reasonable jury could regard the defendant’s excuse as reasonable, the judge must leave the matter for the jury to decide. When doing so, if appropriate, the judge may indicate factors in the particular case which the jury might find useful when considering the issue – such as the defendant’s age, his background, his associates, his way of life, the precise circumstances in which he collected or recorded the information, and the length of time for which he possessed it.”
As to the argument that an over-zealous use of section 58 by the police and prosecution could exacerbate rather than reduce the threat of terrorism, the House of Lords observed that, while prosecutors were very familiar with the need to exercise a wise discretion in deciding whether taking proceedings would ultimately be in the public interest, in section 58 Parliament had enacted the safeguard that proceedings were not to be initiated without the consent of the Director of Public Prosecutions (paragraph 85):
“This can be seen as an acknowledgment that the nature of these offences is such that not all contraventions of the provisions should be prosecuted. More positively, the need for this consent should help ensure that prosecutors do indeed give due consideration to the public interest and do not embark on prosecutions in cases which do not merit it.”
Following the House of Lords’ judgment the applicant considered himself to be in the same position that he had been in prior to the Court of Appeal’s judgment in K. In particular, he considered that he had no means of knowing whether the jury would find his reasons for possession to be reasonable. Accordingly, on 20 April 2009, the applicant sought a further indication of sentence in order to decide whether to once more change his plea to guilty. The indication given by a different trial judge was of a maximum of four and a half years’ imprisonment. In light of the fact that this would mean a virtually immediate release, rather than an uncertain trial after which he might receive a much longer sentence, the applicant pleaded guilty to the charges. He was sentenced to three years and nine months’ imprisonment. He completed his sentence on 8 May 2009 and was deported to Gambia on 15 May 2009.
Section 58 provides as follows:
“Collection of information.
(1) A person commits an offence if—
(a) he collects or makes a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism, or
(b) he possesses a document or record containing information of that kind.
(2) In this section “record” includes a photographic or electronic record.
(3) It is a defence for a person charged with an offence under this section to prove that he had a reasonable excuse for his action or possession.
(4) A person guilty of an offence under this section shall be liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding 10 years, to a fine or to both, or
(b) on summary conviction, to imprisonment for a term not exceeding six months, to a fine not exceeding the statutory maximum or to both.
Section 118 of the Act provides that, if the defendant adduces evidence which is sufficient to raise the issue of a defence of “reasonable excuse”, the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.
In R v. Goodyear [2005] 1 W.L.R. 2532, the Court of Appeal set out the procedure to be followed when a defendant, during the course of criminal proceedings against him, asks the judge for an indication of the maximum sentence he would receive upon a plea of guilty. Any advance indication of sentence to be given by the judge should normally be confined to the maximum sentence if a plea of guilty were tendered at the stage at which the indication is sought. Where appropriate, there must be an agreed, written basis of plea between the defence and prosecution. Where there is a dispute about a particular fact which counsel for the defendant believes to be effectively immaterial to the sentencing decision, the difference should be recorded, so that the judge can make up his own mind. The judge should never be invited to give an indication on the basis of what would be, or what would appear to be, a “plea bargain”.
Whenever an indication of sentence is sought, the defendant’s representative should advise the defendant that he should change his plea to guilty only if he accepts that he is guilty. The defendant should also be informed that the sentence could be increased on appeal by means of an Attorney-General’s reference, if the sentence was considered to be unduly lenient. The representative must also make clear that any indication given by the judge reflects the situation at the time when it is given, and that if a guilty plea is not tendered in the light of that indication the indication ceases to have effect. Prosecution counsel should, inter alia, draw the judge’s attention to any minimum or mandatory statutory sentencing requirements and avoid saying anything that may create the impression that the sentence indication has the support or approval of the Crown.


ITEMID: 001-98296
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: GAZIBARIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: The applicant, Mr Branko Gazibarić, is a Croatian national who was born in 1972 and lives in Vukovar. He was represented before the Court by Mr I. Plavšić, a lawyer practising in Vinkovci. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.
The relevant facts of the case, as submitted by the parties, may be summarised as follows.
Until 1991 the applicant lived in Vukovar, Croatia. Some time in June 1991 he went to Serbia and in October 1991 he was called up by the Yugoslav Peoples’ Army. On 23 May 1992 he returned to Vukovar.
On 31 August 1992 an investigation was opened in respect of the applicant and ten other persons of Serbian origin on suspicion of having taken part in the armed conflict against the Republic of Croatia in 1991. The Osijek Military Court ordered the applicant’s detention. However, this order was not enforced.
In May 1997 the investigation was stayed because the majority of the defendants and witnesses lived in the occupied territories. The investigation was continued in November 2000 before the Vukovar County Court.
On 10 October 2001 Vukovar County Court revoked the applicant’s detention order but ordered that the applicant’s passport be withdrawn. On 21 May 2003 the court terminated the investigation under the General Amnesty Act. However, on 27 May 2003 the same court set aside its previous decision and decided to continue the investigation in respect of the applicant. On 30 July 2003 the investigation gave reasons to belive that the applicant was guilty of a war crime against the civilian population and in particular for having participated in the attacks on the town of Vukovar.
On 10 September 2007 the measure of withdrawing the applicant’s passport was extended by a decision of the investigating judge of the Vukovar County Court. This decision is still in effect and the criminal investigation against the applicant is still pending.
The relevant part of the Croatian Constitution (Ustav Republike Hrvatske, Official Gazette no. 41/2001 of 7 May 2001) reads as follows:
“In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.”
“Everyone lawfully within the territory of the Republic of Croatia shall have the right to liberty of movement and freedom to choose his residence.
Every citizen of Croatia shall be free to leave the State’s territory at any time ...
The right to free movement within the territory of the Republic of Croatia and the right to enter and exit that territory may be exceptionally restricted by law where it is necessary for the protection of the legal order or for the protection of health, rights and freedoms of others.”
The relevant part of the Constitutional Act of the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002 of 3 May 2002 – “the Constitutional Court Act”) reads as follows:
“1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the individual act of a state body, a body of local and regional self-government, or a legal person with public authority, which has determined his or her rights and obligations, or a suspicion or accusation of a criminal act, has violated his or her human rights or fundamental freedoms or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: constitutional right) ...
2. If there is provision for another legal remedy in respect of a violation of the constitutional rights [complained of], a constitutional complaint may be lodged only after this remedy has been exhausted.
...”
“(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the applicant’s rights and obligations or a criminal charge against him or her within a reasonable time ...
(2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the competent court must decide the case on the merits...
(3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date on which a request for payment is lodged.”
The relevant part of the Courts Act (Zakon o sudovima, Official Gazette nos. 150/05 and 16/07), which entered into force on 29 December 2005, reads as follows:
“(1) A party to court proceedings who considers that the competent court failed to decide within a reasonable time on his or her rights or obligations or a criminal charge against him or her, may lodge a request for the protection of the right to a hearing within a reasonable time with the court at the next level of jurisdiction.
(2) If the request concerns proceedings pending before the High Commercial Court of the Republic of Croatia, the High Petty Offences Court of the Republic of Croatia or the Administrative Court of the Republic of Croatia, the request shall be decided by the Supreme Court of the Republic of Croatia.
(3) The proceedings for deciding the request referred to in paragraph 1 of this section shall be treated as urgent.
(1) If the court referred to in section 27 of this Act finds the request well-founded, it shall set a time-limit within which the court before which the proceedings are pending must decide on a right or obligation of, or a criminal charge against, the person who lodged the request, and shall award him or her appropriate compensation for the violation of his or her right to a hearing within a reasonable time.
(2) The compensation shall be paid out of the State budget within three months from the date the party’s request for payment is lodged.
(3) An appeal, to be lodged within fifteen days with the Supreme Court, lies against a decision on the request for the protection of the right to a hearing within a reasonable time. No appeal lies against the Supreme Court’s decision but a constitutional complaint may be lodged.”
The Government submitted the Constitutional Court’s decisions nos. U-IIIA-2193/2003 of 13 December 2005; U-IIIA-4493/2005 of 26 February 2007; and U-IIIA-405/2006 of 4 June 2008 where the Constitutional Court examined the length of the criminal proceedings against the defendants in those proceedings and took into account the duration of the entire proceedings, including the investigation.
The relevant part of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002 and 62/2003) provides as follows:
“(1) A person whose rights have been infringed in a decision adopted by an investigating judge ... may always lodge an appeal where this Act has not expressly excluded the right to an appeal.
...”


ITEMID: 001-102617
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: GRANDCHAMBER
DATE: 2011
DOCNAME: CASE OF PAKSAS v. LITHUANIA
IMPORTANCE: 1
CONCLUSION: Violation of P1-3;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient
JUDGES: András Baka;Christos Rozakis;David Thór Björgvinsson;Dean Spielmann;Egbert Myjer;Françoise Tulkens;Ireneu Cabral Barreto;Jean-Paul Costa;Josep Casadevall;Lech Garlicki;Nicolas Bratza;Nona Tsotsoria;Peer Lorenzen;Renate Jaeger;Sverre Erik Jebens;Vladimiro Zagrebelsky
TEXT: 9. The applicant was born in 1956 and lives in Vilnius. He is currently a member of the European Parliament.
10. 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.
11. 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).
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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.
19. 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”.
20. 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.
21. 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.
22. 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.
23. 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.
24. On 1 March 2004 the Constitutional Court accepted the request for consideration as case no. 14/04.
25. 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.
26. 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.
27. 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 Žemaitijos 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.
28. 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.
29. 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.
30. 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.
31. 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.”
32. 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.
33. 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.
34. 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 ...”
35. 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...”
36. 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.
37. 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).
38. 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.
39. 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).
40. 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).
41. 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).
42. 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).
43. 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.
44. 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.
45. 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).
46. 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).
47. 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).
48. 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 ...”
49. In addition to possible constitutional liability, a person removed from public office may incur ordinary liability (teisinė atsakomybė).
50. 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”.
51. 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.”
52. 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.
53. The Constitution further provides:
“... 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...”
“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.”
“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.”
54. 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.”
55. 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 ...”
56. 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”.
57. 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.
58. Articles 68 and 71 of the Constitution read as follows:
“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.”
“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.”
59. 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. ...”
60. 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.
61. 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).
62. 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.


ITEMID: 001-72135
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: LOVE v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: The applicants (see attached Appendix) are British nationals.
s, may be summarised as follows.
The applicants were, at the material time, serving members of the British armed forces. They claim that, following an investigation into their sexual orientation, they were each discharged from the armed forces pursuant to the policy against homosexuals in the armed forces on the dates listed in the attached Appendix.
The applicants submitted a claim to the employment tribunal (“the ET”) arguing that their dismissal, and the circumstances leading to it, breached the Sex Discrimination Act 1975 (“the 1975 Act”). As a result of the House of Lords' judgment MacDonald (AP) (Appellant) v. Advocate General for Scotland (Respondent) (Scotland) dated 19 June 2003, the ET struck out Mr Bullet's case (14557/05) and dismissed (by consent) the remaining applications on the dates listed in the attached Appendix.
On 27 September 1999 the Ministry of Defence ended its policy of excluding homosexuals from the British armed forces following the delivery of judgments in Lustig-Prean and Beckett v. the United Kingdom (nos. 31417/96 and 32377/96, 27 September 1999) and Smith and Grady v. the United Kingdom (nos. 33985/96 and 33986/96, ECHR 1999-VI).
On 24 January 1996 Mr Perkins, who had also been dismissed from the Royal Navy in 1995 on grounds of his homosexuality, applied to the High Court for leave to take judicial review proceedings on the basis that the Ministry of Defence policy was “irrational”, that it was in breach of Articles 8 and 14 of the Convention and that it was contrary to the EU Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (“the Equal Treatment Directive”).
On 30 April 1996 the European Court of Justice (“the ECJ”) decided that transsexuals were protected from discrimination arising from their gender reassignment under European Community law and, in particular, by the Equal Treatment Directive (P. v. S. and Cornwall County Council [1996] I.R.L.R 347). On 3 July 1996 Mr Perkins was granted leave by the High Court. On 13 March 1997 the High Court referred to the ECJ pursuant to the then Article 177 of the Treaty of Rome the question of the applicability of the Equal Treatment Directive to differences of treatment based on sexual orientation (R. v. Secretary of State for Defence, ex parte Perkins, 13 March 1997).
On 17 February 1998 the ECJ found that the refusal of travel concessions to a worker living with a person of the same sex could not be regarded as discrimination based on sex prohibited by the EU Council Directive 75/117/EEC on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women (“the Equal Pay Directive”) (Grant v. South West Trains Ltd [1998] I.C.R. 449). Consequently, on 2 March 1998 the ECJ enquired of the High Court in the Perkins case whether it wished to maintain the Article 177 reference. After a hearing between the parties, the High Court decided to withdraw the question from the ECJ (R. v. Secretary of State for Defence, ex parte Perkins, 13 July 1998). Leave to appeal was refused.
This Act gave effect in domestic law to the Equal Treatment Directive. Section 1(1)(a) of the 1975 Act provides:
“A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if -
(a) on the ground of her sex he treats her less favourably than he treats or would treat a man.”
Section 2(1) provides that section 1, and the provisions of Part II and III of the Act relating to sex discrimination against women, are to be read as applying equally to the treatment of men, with the requisite modifications.
Section 5(3) of the Act provides:
“A comparison of the cases of persons of different sex ... under section 1(1) ... must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.”
Section 6(2) provides that it is unlawful for a person to discriminate against a female employee by dismissing her or subjecting her to any other detriment. If sexual harassment occurs in an employment context, it is considered “detriment” within the meaning of Section 6(2) of the Act.
4. House of Lords judgment on the 1975 Act
On 19 June 2003 the House of Lords found in MacDonald (AP) (Appellant) v. Advocate General for Scotland (Respondent) (Scotland) that the word “sex” in the 1975 Act meant “gender”. It also found that the correct comparison was between the homosexual male applicant and a homosexual woman. These two conclusions meant that the claim of sex discrimination and sexual harassment before it fell away: in both cases, the applicant would not have been treated any differently to a female homosexual.