ITEMID: 001-59121
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF KINGSLEY v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 8. Between 1984 and 1992 the applicant was the sole managing director of London Clubs Limited (“LCL”), a company which owned and controlled six of the twenty casinos licensed to operate in London. LCL was a subsidiary company of London Clubs International plc (“LCI”) of which the applicant was also managing director. Both companies will hereafter be collectively referred to as London Clubs.
9. In June 1991 a raid took place at the various premises of LCL. The raid was carried out by the police in the presence of officials of the Gaming Board for Great Britain (“the Gaming Board”), a statutory body which inspects and monitors the gaming industry. A large quantity of documents were seized. In March 1992 the Gaming Board lodged objections with the clerk to the Licensing Magistrates, with regard to LCL’s annual application for renewal of the licences it held in respect of each of its casinos. The Gaming Board also made cancellation applications in respect of the existing licences held by LCL.
A meeting was held between the Gaming Board and the non-executive directors of LCL and their legal advisors on 26 March 1992. As a result of this meeting, the applicant and the other executive directors (with the exception of the finance director) resigned with effect from 30 April 1992, on the understanding that such resignation was involuntary and constituted dismissal by London Clubs.
Subsequently an agreement was reached between the Gaming Board and London Clubs, whereby LCL would apply for new licences for the casinos, via re-constituted operating companies, to which application the Gaming Board would not object. If the applications were successful and new licences were granted by the Licensing Magistrates, LCL would undertake to surrender its existing licences, thereby avoiding the necessity for the applications for cancellation or renewal to be heard.
The Gaming Board issued LCL with certificates of consent, which LCL were statutorily obliged to obtain from the Gaming Board as a pre-requisite to making an application to the Licensing Magistrates for new licences. Objections to the issuing of new licences were made by a rival casino owner. However these objections were rejected and new licences were granted in October 1992, after a three day hearing before the Licensing Magistrates. The Gaming Board was represented at the hearing and expressed to the Licensing Magistrates its support for the application of LCL, explaining the grounds on which the Gaming Board itself had granted LCL certificates of consent in the following terms:
“In determining that it should issue certificates of consent the Board took into consideration, amongst other relevant factors, the degree to which LCI had addressed the Board’s grave concerns at the matters of complaint referred to above, and in particular had in mind the following:
Those executive directors of LCI and of [LCL] who in the Board’s view carried the principal responsibility for the matters of complaint ... [the applicant was named along with nine others] have left the company and relinquished their management shares: (.....)
The Board and Police viewed the matters raised in their cancellation applications extremely seriously. However they are satisfied that the practices that were unacceptable have now been eradicated and that those individuals responsible for encouraging or tolerating them have been removed.”
10. In November 1992 the Chairman of the Gaming Board, Lady Littler, addressed the British Casino Association at their annual luncheon. Her speech referred to London Clubs and commented:
“We [the Gaming Board] satisfied ourselves that the practices we and the Police had regarded as unacceptable had ceased, that persons regarded by the Board and Police as not fit and proper had been removed ... .”
11. As a result of this speech, the applicant’s legal advisors entered into correspondence with the Gaming Board’s solicitors, on the basis that the speech was defamatory. The Gaming Board alleged that the “persons” referred to were minority shareholders and no reference to the applicant was intended. The applicant did not accept this explanation, however defamation proceedings were not commenced.
12. By a letter of 22 December 1992, the applicant’s legal advisors received written notice that the Gaming Board was considering whether the applicant personally was a fit and proper person to hold the Board’s certificate of approval, as required by Section 19 of the Gaming Act 1968, in order to hold a management position in the gaming industry. By a letter dated 23 April 1993, the Gaming Board informed the applicant formally that it was “minded to revoke” the applicant’s Section 19 certificates and that the applicant would be given the opportunity to state his case against revocation either in writing or orally at an interview before the Gaming Board (“a Section 19 hearing”).
The letter detailed the matters which the Gaming Board wished to discuss with the applicant and also referred to the particulars of the Gaming Board’s complaints in the application for cancellation of LCL’s licences (the hearing of which had, in fact, never taken place). The complaints, numbered B1 to B9, claimed, inter alia, that there had been breaches of Section 16 of the Gaming Act 1968, in that cheques had been accepted without any expectation that they would be met promptly (B1); that the applicant had been involved in granting cheque cashing facilities to members without proper investigation of their creditworthiness (B2); that cheques had been accepted which exceeded the authors’ cheque cashing facility (B3); that third party cheques had been accepted in a way which would permit circumvention of 1984 Guidelines of the British Casino Association (B4); that Japanese players had been assisted in breaching Japanese exchange control regulations (B5); that gifts or hospitality had been made to substantial players in breach of further 1984 Guidelines (B7); and that the method for computing the “cash drop” in casinos produced inaccuracies, and was open to abuse (B9). Examples were given.
13. The applicant’s legal advisors objected to the Gaming Board presiding over the Section 19 hearing, suggesting that an independent tribunal be set up as an alternative. The applicant’s principal objection was based on the fact that the Gaming Board had already publicly expressed the view (at the hearing before the Licensing Magistrates) that the applicant was not a fit and proper person to remain as an executive director of London Clubs. As such, the applicant contended, the Gaming Board could not be considered an impartial tribunal appropriate to consider the issue of whether the applicant’s Section 19 certificates should be revoked.
14. The Gaming Board rejected the request for an independent tribunal and a Section 19 hearing commenced on 11 April 1994 before a panel of three, all members of the Gaming Board (“the Panel”). The hearing was conducted in private and lasted for seven and a half days. The applicant was represented by senior counsel. The Gaming Board’s solicitors, a senior Gaming Board official and a representative of the Gaming Board’s accountants also attended the hearing.
By a letter dated 28 May 1994, the applicant was informed that the Gaming Board did not consider the applicant to be a fit and proper person to continue to hold the Board’s certificates of approval and that, accordingly, the Board would revoke his Section 19 certificates within 21 days of receipt of the letter. This letter detailed the matters which had concerned the Gaming Board and the complaints that it deemed were established against the applicant.
15. The effect of the revocation of the Section 19 certificates was that the applicant was unable to obtain employment in any sector of the gaming industry in the United Kingdom or in any jurisdiction which had a relationship with the United Kingdom gaming authorities.
16. By an application dated 23 August 1994, the applicant sought leave to apply for judicial review of the decision of the Gaming Board to revoke his Section 19 certificates. The decision was challenged on the grounds that the Panel was biased, or had the appearance of bias, and that its findings were vitiated by errors of law and were irrational.
17. In the course of the judicial review proceedings a document entitled “Confidential Annex to Minutes of the 281st Board Meeting of the Gaming Board for Great Britain,” dated 21 January 1993, was exhibited to an affidavit sworn by the Chairman of the Gaming Board. This document recorded that the Gaming Board had taken a decision at its meeting on 21 January 1993 that it had:
“sufficient evidence before it to conclude that [the applicant] ... was not a fit and proper person to be a director of a casino company.”
18. All the members of the Panel who presided over the Section 19 hearing were present at the Board meeting and were parties to this decision, which was made prior to the hearing itself.
19. The application for judicial review was dismissed on 11 January 1996 by Mr Justice Jowitt after a hearing lasting over 16 days. He delivered three separate judgments in respect of the applicant’s appeal. The first judgment dealt with the scope of the phrase “a fit and proper person” in Schedule 5 of the Gaming Act 1968. The second judgment considered the applicant’s claim that he had a “legitimate expectation” that the Gaming Board would be precluded from taking account of any breaches of its guidelines unless the breaches were unlawful. The third judgment which dealt with “Wednesbury” challenges and allegations of bias runs to 165 pages. The judgment of Jowitt J. stated that the ambit of judicial review was such that he was not concerned to review findings of fact as on an appeal, but rather to assess whether the findings of the Panel disclosed illegality, irrationality (referred to as “Wednesbury unreasonableness”) or procedural impropriety.
20. On pages 28 to 93 of the third judgment, Jowitt J. dealt with the applicant’s “Wednesbury” challenges to the findings in respect of the various complaints made of him.
21. By way of example, it was accepted that cheques drawn by one player, a Mr S, on a Spanish and a Swiss bank were not cleared within 21 days after payment into a British bank, as would be the normal course of events. Rather, the average time for clearance was 179 days. The Board found that this practice breached Section 16 of the 1968 Act, which prohibits credit betting save when a cheque is exchanged for tokens. The applicant alleged that the cheques he accepted were not shams, as none of the Spanish cheques was ever dishonoured. The judge found that the Board’s conclusion - that what took place amounted to an agreement between Mr S and LCL, such that Section 16 was breached - was a conclusion it was entitled to reach.
22. 57 pages of the third judgment were devoted to the issue of bias. Jowitt J. described the test of bias under English law in the following terms (pp. 93-96 of the judgment):
“[Counsel for the applicant] submits that the decision to revoke the applicant’s Section 19 certificates of approval should be quashed because the Panel was biased. The grounds on which leave to move for judicial review were granted asserted firstly that the Board could not and did not approach its decision with objectivity and impartiality. Secondly, it was asserted that whether or not there was actual bias the applicant reasonably believed there was and that the Board should have had regard to the appearance of bias which had been created by its actions ...
There was no disagreement between the parties as to the approach the court should adopt when bias is alleged. It is a two stage test. The applicant has first to show from the evidence that there is an appearance of bias. R. v. Inner West London Coroner Ex parte Dallaglio [1994] 4 All ER 139. [Counsel for the Gaming Board] properly and realistically accepts that in the light of the available evidence the applicant has surmounted this hurdle. Having done so, he has to go on to show that on a proper examination by the court of the evidence before it there is demonstrated a real danger of injustice having occurred as a result of bias ... [The analysis in that case of] the decision of the House of Lords in R. v. Gough [1993] AC 646 ... illuminates my task in relation to this second stage.
‘(1) Any court seized of a challenge on the ground of apparent bias must ascertain the relevant circumstances and consider all the evidence for itself so as to reach its own conclusion on the facts. ...
(3) In reaching its conclusion the court ‘personifies the reasonable man’.
(4) The question on which the court must reach its own factual conclusion is this: is there a real danger of injustice having occurred as a result of bias? By ‘real’ is meant not without substance. A real danger clearly involves more than a minimal risk, less than a probability. One could, I think, as well speak of a real risk or a real possibility.
(5) Injustice will have occurred as a result of bias if ‘the decision-maker unfairly regarded with disfavour the case of a party to the issue under consideration by him’. I take ‘unfairly regarded with disfavour’ to mean ‘was pre-disposed or prejudiced against one party’s case for reasons unconnected with the merits of the issue’.
(6) A decision-maker may have unfairly regarded with disfavour one party’s case either consciously or unconsciously. Where, as here, the applicants expressly disavow any suggestion of actual bias, it seems to me that the court must necessarily be asking itself whether there is a real danger that the decision-maker was unconsciously biased.
(7) ... the court is [not] concerned strictly with the appearance of bias but rather with establishing the possibility that there was actual although unconscious bias. …
(9) It is not necessary for the applicant to demonstrate a real possibility that the ... decision would have been different but for the bias; what must be established is the real danger of bias having affected the decision in the sense of having caused the decision-maker, albeit unconsciously, to weigh the competing contentions, and so decide the merits, unfairly’.”
23. Jowitt J. then applied the test of bias which he had set out to the facts of the case, and concluded that, on the evidence before him, he could not say that the applicant had established that there was a real danger of injustice having occurred as a result of bias. He concluded that there was no unconscious bias on the part of any of the Panel members.
24. Jowitt J. stated, further, that if, contrary to his finding, there was unconscious bias on the part of the Panel, the “doctrine of necessity” fell to be considered. He said:
“When a body is charged by statute with the power or duty, which cannot be delegated, to make a decision in circumstances in which a question of bias arises because:
(i) in pursuance of that statutory power or duty an initial view has been formed upon a matter affecting the interests of someone in respect of whom the body in the exercise of its statutory power or duty has thereafter to make a decision, or final decision, after receiving and considering representations which he is entitled to make or
(ii) in the exercise of a statutory power or duty to make a decision a conflict arises between the interests of another or others which have to be taken into account and the body’s own interests:
the decision will not be liable to be impugned on account of bias provided that:
(i) if only some of those charged with the power or duty to decide are potentially affected by bias such of them as can lawfully withdraw from the decision making do so and
(ii) those of the decision makers who are potentially affected by bias but cannot lawfully withdraw use their best endeavours to avoid the effect of bias and, consistently with the purpose for which its decision has to be made the body takes what reasonable steps are open to it to minimise the risk of bias affecting them …”
Jowitt J. indicated that if, contrary to his finding, there was unconscious bias on the part of the Panel, the doctrine of necessity would apply, and the decision of the Panel would stand. Counsel for the applicant submitted before Jowitt J. that the Board had failed to take the reasonable step of appointing an independent panel to hear evidence and report to the Panel. Jowitt J. rejected the submission, on the grounds that no useful reference could have been made to an independent tribunal which did not involve an impermissible delegation.
25. In respect of all other allegations brought by the applicant, Jowitt J. concluded that the applicant had failed to establish that the Panel’s decision was irrational or unreasonable or to make out any sufficient ground for judicial review. Jowitt J. noted that, by trying to frame his allegations in the context of Wednesbury unreasonableness, the applicant was in fact making an impermissible attempt to re-argue the case as though on appeal in order to re-examine the factual merits of the case.
26. The Court of Appeal, after an oral hearing on 4 July 1996, refused an application for leave to appeal from Jowitt J.'s decision. Morritt L.J. (with whom Hobhouse L.J. agreed) held, on the “doctrine of necessity,” as follows:
“I am prepared to assume in favour of [the applicant] that he would have an arguable case sufficient to justify leave to appeal, that there was a real risk that the decision of the Tribunal had been actuated by bias even though they were not in fact biased against him. That would leave the question of how the doctrine of necessity would be applied to the facts of the case.
[Counsel for the applicant] did not seek to suggest that the propositions of law which Jowitt J enunciated, and which I have quoted, were not accurately formulated by him, but he sought to challenge the final conclusion, to which I have just referred, that there could have been a useful reference to an independent Tribunal which did not involve an impermissible delegation. The question of bias, therefore, depends on the very limited point on whether it is arguable that Jowitt J was wrong in that respect. I am bound to say that, on that limited point, I think he was manifestly right. The decision for the Board was, at the end of the day, whether or not Mr Kingsley was a fit and proper person. That could not be delegated to an independent panel and if they were actuated by bias, apparent or real, then the decision would still have to be made by them. Therefore, on the doctrine of necessity, which is accepted, there could have been no meaningful independent panel and the decision would stand because the decision has to be made by the Board and could not be delegated to the independent tribunal. It seems to me that there is no arguable point, susceptible on this part of the case, which would justify giving leave to appeal.”
27. The Gaming Board for Great Britain (“the Gaming Board”) is a statutory body, established under Section 10 of the Gaming Act 1968 (“the 1968 Act”) to inspect and monitor the gaming industry. In order for any company to obtain the requisite gaming licence for premises, a certificate must first be issued by the Gaming Board consenting to the company applying for such a licence (Schedule 2, paragraph 3 (1) of the 1968 Act).
28. Under Section 19 of the 1968 Act the Gaming Board issues certificates to individuals in order that they be permitted to hold certain positions in the gaming industry. A certificate, once issued, continues in force unless and until it is revoked. The Gaming Board may revoke the certificate at any time if it appears to the Board that the person to whom it relates is not a fit and proper person to perform the specified function or act in the specified capacity (Schedule 5, paragraph 6 of the 1968 Act). Twenty one days’ written notice of the revocation must be given to the certificate holder. The Gaming Board has developed a procedure whereby an individual is sent a letter in which the Board states that it is minded to revoke his certificate. This is followed by the submission of written representations and/or an oral hearing.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-110997
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: SLIWA v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano
TEXT: 1. The applicant, Mr Robert Śliwa, is a Polish national who was born in 1969 and lives in Jarosław. He was represented before the Court by Mr P. Blajer, a lawyer practising in Jarosław. The Polish Government (“the Government”) are represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
1. The facts of the case, as submitted by the parties, may be summarised as follows.
2. The applicant, a former customs officer, was charged with accepting a bribe from another customs officer, P.D., in 2004.
3. On 29 August 2006 P.D. was convicted by the Przemyśl Regional Court of, inter alia, offering a bribe to the applicant in 2004. The court was composed of Judge A.S., and two lay judges, D.B. and C.J.
4. Subsequently, on 9 November 2006, the same court, in the same composition, convicted the applicant of accepting the same bribe from P.D.
5. On an unspecified date the applicant’s lawyer appealed against the firstinstance judgment. In his appeal he did not raise a complaint regarding the composition of the court.
6. On 26 April 2007 the Supreme Court adopted a resolution and held that in circumstances such as those in the present case, where evidence which had constituted the basis for the conviction of one of the perpetrators of a crime was also to be the basis for the conviction of another perpetrator of the same offence, the judge who had examined the evidence against the convicted perpetrator should be withdrawn from examining the cases against the remaining perpetrators (see “Relevant domestic law and practice” below).
7. On 17 August 2007 the applicant’s lawyer sent a letter to the secondinstance court and, relying on the Supreme Court’s resolution of 26 April 2007 submitted that the judges who had convicted the applicant should have been withdrawn from the proceedings. He furtheredings (“the Code”) (see below).
8. On 18 October 2007 the Rzeszów Court of Appeal dismissed the appeal and upheld the first-instance judgment. It admitted that the three judges should not have examined the applicant’s case. However, it found that the complaint had not been raised in the appeal and therefore could not be taken into account as one of the bases of the appeal. It also considered that the shortcoming in the proceedings before the first-instance court did not constitute one of the specific grounds for appeal referred to in Article 439 of the Code, which the court of appeal had to take into account ex officio. The Court of Appeal further noted that the only way to amend the first-instance judgment was to apply Article 440 of the Code; however, it found no grounds to do so.
9. Article 41 § 1 of the Code provides as follows:
“A judge shall be withdrawn from the examination of a case if there are circumstances which may give rise to justified doubts as to his or her impartiality in a particular case.”
10. Article 440 of the Code provides as follows:
“If upholding a first-instance judgment would be manifestly unjustified, the judgment shall be amended in favour of the accused person or quashed, notwithstanding the complaints raised in an appeal.”
11. Article 433 of the Code provides as follows:
“The appellate court shall examine the case within the framework of an appeal. It shall examine the case beyond the framework of an appeal if it is provided for by law.”
12. Article 439 of the Code, in so far as relevant, provides as follows:
“Irrespective of the framework of an appeal, the complaints raised and the influence of a shortcoming on the contents of a decision, the appellate court shall quash the challenged decision if:
(1) the decision was issued by or with the participation of a judge who should have been withdrawn pursuant to Article 40 of the Code (...).”
13. On 26 April 2007 the Supreme Court adopted a resolution in which it stated as follows:
“If evidence which has constituted the basis for the conviction of one of the perpetrators of a crime is also to be the basis for the conviction of another perpetrator of the same offence, the judge who examined the evidence against the convicted perpetrator should be withdrawn from examining the cases against the remaining perpetrators, on account of a justified suspicion regarding his or her impartiality within the meaning of Article 41 § 1 of the Code of Criminal Procedure.”


ITEMID: 001-98428
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: GRANDCHAMBER
DATE: 2010
DOCNAME: CASE OF TĂNASE v. MOLDOVA
IMPORTANCE: 1
CONCLUSION: Preliminary objection joined to merits and dismissed (ratione materiae);Preliminary objections dismissed (victim, non-exhaustion of domestic remedies);Violation of P1-3
JUDGES: Corneliu Bîrsan;Dean Spielmann;Elisabeth Steiner;Françoise Tulkens;George Nicolaou;Giovanni Bonello;Ireneu Cabral Barreto;Isabelle Berro-Lefèvre;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä;Peer Lorenzen;Rait Maruste;Sverre Erik Jebens;Vladimiro Zagrebelsky;Zdravka Kalaydjieva
TEXT: 10. The applicant was born in 1971 and lives in Chişinău. He is ethnically Romanian and is a Moldovan politician.
11. The Principality of Moldavia first emerged as an independent State in 1359. Its territory covered the area between the Eastern Carpathian Mountains, the Dniester River and the Black Sea; today, this area encompasses Moldova, part of Romania and part of Ukraine. Its population spoke the same language and was of the same descent as the populations of Wallachia and Transylvania (both part of modern-day Romania).
12. In the fifteenth century, Moldavia accepted the suzerainty of the Ottoman Empire.
13. Following the Russo-Turkish war of 1806 to 1812, the eastern part of the Principality of Moldavia, bounded by the Dniester River on the east and the River Prut on the west, was annexed by the Russian empire. It was renamed Bessarabia.
14. In 1859, the western part of the Principality of Moldavia united with Wallachia and formed a new State. From 1861, the new State was known as Romania. In 1877, Romania gained independence from the Ottoman Empire.
15. In early 1918, Bessarabia declared its independence from Russia and, on 27 March 1918, united with Romania. The population of Bessarabia became Romanian citizens.
16. The Soviet Union did not recognise the unification of Bessarabia and Romania. On 28 June 1940, following the Molotov-Ribbentrop Pact with Nazi Germany, the Soviet Union re-annexed the territory of Bessarabia.
17. Following the conclusion of the Second World War, approximately 70% of the territory of Bessarabia, inhabited by some 80% of its population, became the Moldavian Soviet Socialist Republic (changed to the Soviet Socialist Republic of Moldova in 1990). The remaining territory of Bessarabia became part of the Ukrainian Soviet Socialist Republic. Those residing in Bessarabia lost their Romanian nationality and became Soviet citizens. Romania became a Soviet Union satellite State.
18. Following the collapse of the Soviet Union, in the Declaration of Independence of 27 August 1991, the Parliament of the Republic of Moldova condemned, inter alia, the Russian annexation of the territory from the Principality of Moldavia in 1812 and the Soviet annexation of the territory from Romania in 1940 and proclaimed the independence of the country within the boundaries of the former Moldavian Soviet Socialist Republic. Shortly thereafter, Moldova joined the United Nations and was recognised by the international community.
19. In 1991 the Parliament of the Republic of Moldova adopted a Law on citizenship and proclaimed as its citizens, inter alios, all persons who had lived in the territory of the former Moldavian Soviet Socialist Republic before the Soviet annexation and their descendants.
20. The applicant obtained Moldovan nationality as a descendant of persons living on the territory of the Republic of Moldova before 28 June 1940.
21. Also in 1991, the Romanian Parliament adopted a new Law on citizenship, making it possible for persons who had lost their Romanian nationality before 1989, for reasons not imputable to them, and their descendants to reacquire Romanian nationality.
22. Initially, under Article 18 of the Moldovan Constitution adopted on 29 July 1994, which entered into force on 27 August 1994, nationals of Moldova were not permitted to hold the nationality of any other State other than in exceptional cases. However, the prohibition was ineffective in practice as many Moldovans of Romanian descent used the provisions of Romanian law to reacquire their lost Romanian nationality. At the same time, many Moldovans of other ethnic backgrounds acquired other nationalities such as Russian, Ukrainian, Bulgarian and Turkish.
23. In 2002 the Moldovan constitutional provisions prohibiting multiple nationalities were repealed.
24. On 5 June 2003, following the repeal of the constitutional prohibition on multiple nationalities, the Moldovan Parliament amended the Law on citizenship, repealing the restriction preventing Moldovan nationals from holding other nationalities (see paragraph 74 below). The new provisions provided that the holders of multiple nationalities had equal rights to those holding only Moldovan nationality, without exception (see paragraph 75 below).
25. On an unspecified date the applicant obtained Romanian nationality. His current Romanian passport was issued in December 2005. Subsequently, he made public his holding of Romanian nationality.
26. The total number of Moldovans who have obtained Romanian citizenship since 1991 is unknown as the Romanian government have never made this information public. However, it has been estimated that between 95,000 and 300,000 Moldovans obtained Romanian nationality between 1991 and 2001. On 4 February 2007 the President of Romania stated in an interview that there were some 800,000 Moldovans with pending applications for Romanian nationality and that his government expected the number to reach 1,500,000, of the total of 3,800,000 Moldovan citizens, before the end of 2007.
27. As to the number of Moldovans holding a second nationality other than Romanian, this figure is also unknown. However, it appears to be considerable and it seems that Russian nationality is the second most popular, after Romanian. On 16 September 2008 the Russian Ambassador to Moldova stated in a televised interview that there were approximately 120,000 Moldovans with Russian passports on both banks of the Dniester River (i.e. in the whole of Moldova).
28. The Moldovan Government indicated in their observations before the Chamber that one-third of the population of Transdniestria had dual nationality, while a communist member of parliament (MP), Mr V. Mişin, advanced during Parliament’s debates concerning Law no. 273 (see paragraphs 78-81 below) the number of 500,000 as an approximate total number of Moldovans with dual nationality.
29. During the last decade and prior to the elections of 2009, the Communist Party of Moldova was the dominant political party in the country with the largest representation in Parliament.
30. Besides the Communist Party, there were over twenty-five other political parties in the country with considerably less influence. Their exact number was difficult to ascertain because of constant fluctuation. Because of their weaker position, very few of them managed to clear the 6% electoral threshold required in past legislative elections to enter Parliament.
31. In the 2001 elections the Christian Democratic People’s Party was the only party aside from the Communist Party, from the twenty-seven parties participating in the elections, which succeeded in clearing the electoral threshold alone by obtaining some 8% of the vote. Six other parties merged into an electoral bloc (a common list) and in this way were able to obtain some 13% of the vote. The Communist Party obtained some 50% of the vote and, after the proportional distribution of the wasted votes, obtained 71 of the 101 seats in Parliament.
32. In 2002 the electoral legislation was amended. The 6% electoral threshold for a single party was retained but a new 9% threshold was introduced for electoral blocs composed of two parties, rising to 12% for three or more parties.
33. In the 2005 elections, out of twenty-three participating parties, the Christian Democratic People’s Party was again the only party, besides the Communist Party, which managed to clear the electoral threshold by itself with some 9% of the vote. Three other parties, united into an electoral bloc, obtained some 28% of the vote, while the Communist Party obtained almost 46% of the vote. After the proportional distribution of the wasted votes, the Communist Party obtained 56 of the 101 seats in Parliament.
34. In July 2005, following persistent criticism by international observers and the Council of Europe, Parliament again amended the Electoral Code, setting the electoral threshold for individual parties at 4% and for electoral blocs composed of any number of parties at 8%. The European Commission for Democracy through Law of the Council of Europe (the Venice Commission) and the Organization for Security and Cooperation in Europe (OSCE) praised the lowering of the electoral threshold for individual parties and suggested a similar threshold for electoral blocs, which, in their view, were to be encouraged in order to provide more cooperation and stable government.
35. In the local elections of June 2007, the Communist Party obtained some 40% of the vote in the local legislative bodies. As there is no electoral threshold in local elections, it became an opposition party in the majority of the local councils. The applicant became a member of the Chişinău Municipal Council following these elections.
36. The applicant was subsequently elected Vice-President of the Liberal Democratic Party, an opposition party created in January 2008.
37. On 10 April 2008 the Moldovan Parliament passed a reform consisting of three major amendments to the electoral legislation: an increase of the electoral threshold from 4% back to 6%; a ban on all forms of electoral blocs and coalitions; and a ban on persons with dual or multiple nationality becoming MPs.
38. The amendment banning those with dual or multiple nationalities becoming MPs was introduced by way of Law no. 273 (see paragraphs 78-80 below). This Law was approved in its first reading by Parliament on 11 October 2007. The draft, prepared by the Ministry of Justice, provided that only persons having exclusively Moldovan citizenship were entitled to work in senior positions in the government and in several public services and be candidates in legislative elections (see paragraph 78 below). It contained a specific provision relating to Transdniestria (see paragraphs 80-81 below).
39. In an explanatory note to the draft law, the Deputy Minister of Justice stated:
“Having analysed the current situation in the country in the field of citizenship, we observe that the tendency of Moldovans to obtain citizenships of other countries is explained by their desire to obtain privileges consisting of unrestrained travel in the European Union, social privileges, family reunion, employment and studies.
At the same time, persons holding other nationalities have political and legal obligations towards those States. This fact could generate a conflict of interest in cases in which there are obligations both towards the Republic of Moldova and towards other States, whose national a particular person is.
In view of the above, and with a view to solving the situation created, we consider it reasonable to amend the legislation in force so as to ban holders of multiple nationalities from public functions ...
This will not mean, however, that those persons will not be able to work in the Republic of Moldova. They will be able to exercise their professional activities in fields which do not involve the exercise of State authority ...”
40. During the debates in Parliament numerous opposition members requested that the draft law be sent to the Council of Europe for a preliminary expertise. However, the majority voted against this proposal. Instead, the opposition was invited to challenge the new Law before the Constitutional Court of Moldova. No such challenge was made at that time (but see paragraphs 54-58 below). Numerous MPs from the opposition argued that the proposed amendment banning multiple nationals from sitting as MPs was contrary to Article 17 of the European Convention on Nationality (see paragraphs 83-85 below) but the Deputy Minister of Justice expressed a contrary view and argued that, in any event, it was open to Parliament to denounce that Convention if there were any incompatibility.
41. On 7 December 2007 the draft law was approved by Parliament in a final reading (see paragraph 78 below). Following its adoption by Parliament, however, the President refused to promulgate the Law and returned it to Parliament for re-examination.
42. The draft law was accordingly further amended and the list of positions in the government and in the public service closed to holders of multiple nationalities was reduced. The provisions concerning legislative elections were also amended to allow persons with dual or multiple nationality to be candidates in legislative elections; however, they were obliged to inform the Central Electoral Commission about their other nationalities before registering as candidates and to renounce them, or initiate a procedure to renounce them, before the validation of their MP mandates by the Constitutional Court (see paragraph 79 below).
43. On 10 April 2008 the new draft law was again put before Parliament by the Law Commission of Parliament. As noted above, it was adopted on that date. In the light of the amendments made by Law no. 273, an exception was introduced to the provision in the Law on citizenship concerning equality of citizens to allow different treatment where provided for by law (see paragraphs 24 above and 75 below)
44. On 29 April 2008 the President promulgated the Law adopted by Parliament on 10 April 2008. On 13 May 2008 the Law was published in the Official Gazette, thus entering into force. The other two amendments to the electoral legislation (see paragraph 37 above) were also enacted and entered into force in May 2008.
45. On 29 April 2008 the Council of Europe’s European Commission against Racism and Intolerance (ECRI) made public a report adopted on 14 December 2007. In its report, ECRI expressed concern about the amendments concerning dual and multiple nationalities:
“16. ECRI notes with interest that section 25 of the Law on citizenship, in full accordance with Article 17 of the European Convention on Nationality, which has been ratified by Moldova, provides that Moldovan citizens who are also citizens of another State and who have their lawful and habitual residence in Moldova enjoy the same rights and duties as other Moldovan citizens. In this respect, ECRI would like to express its concern about a draft law on the modification and completion of certain legislative acts adopted in its first reading by Parliament on 11 October 2007. According to this draft law, only persons having exclusively Moldovan citizenship are entitled to work in senior positions in the government and in several public services. From the information it has received, ECRI understands that if this draft law enters into force as it stands, Moldovan citizens with multiple citizenship would be seriously disadvantaged compared with other Moldovan citizens in access to public functions. It thus appears that, if the law enters into force as such, this could lead to discrimination, i.e. unjustified differential treatment on the grounds of citizenship. ECRI understands that a wide-ranging debate is occurring within Moldova at the time of writing this report as far as this draft law is concerned and that many sources both at the national and international level have stressed the need to revise the text thoroughly before its final adoption in order to ensure its compatibility with national and international standards.
...
18. ECRI strongly recommends that the Moldovan authorities revise the draft law of 11 October 2007 ... in order to ensure that it neither infringes the principle of non-discrimination on the grounds of citizenship nor undermines all benefits of the recent changes made to the Law on citizenship and allowing for multiple citizenship.”
46. In a report dated 14 September 2007, entitled “Honouring of obligations and commitments by Moldova”, the Parliamentary Assembly’s Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (“the Monitoring Committee”) noted the following:
“20. The Assembly appreciates the efforts made by the Moldovan authorities in order to assess the degree of implementation of the recommendations made by Council of Europe experts. However, all new draft legislation in areas relating to the commitments to the Council of Europe must be submitted to expertise and discussed with Council of Europe experts prior to adoption.”
47. In its subsequent report of 9 June 2008, entitled “The state of democracy in Europe: the functioning of democratic institutions in Europe and progress of the Assembly’s monitoring procedure”, the Monitoring Committee stated, inter alia, that:
“80. In their 2007 report on the ‘Honouring of obligations and commitments by Moldova’ (Doc. 11374), the co-rapporteurs of the Committee on Moldova welcomed the changes made to the Electoral Code in 2005. In particular, the threshold for party lists was lowered to 4% for lists presented by individual political parties and 8% for coalitions of political parties ...
...
82. The Monitoring Committee was ... alarmed by the recent legislative developments with regard to the Electoral Code. In April 2008, the Moldovan Parliament amended the Electoral Code again to raise the threshold for party lists up to 6%. Moreover, the establishment of ‘electoral blocs’ – joint lists submitted by a coalition of political parties – was prohibited. These measures have raised concern and the Committee decided at short notice to hold an exchange of views with the Moldovan delegation on 15 April [2008]. The electoral legislation should not be changed every two or three years according to political imperatives. It should allow a wide spectrum of political forces to participate in the political process to help build genuinely pluralistic democratic institutions. The co-rapporteurs will closely examine the recent amendments as well as the reasons behind the recent legislative developments during the observation of the preparation of the forthcoming parliamentary election to be held in spring 2009.”
48. Concern was also expressed by the Parliamentary Assembly in its Resolution 1619 (2008) on the state of democracy in Europe, adopted on 25 June 2008:
“5.3. ... [T]he Assembly ... regrets the recent decision of the Moldovan Parliament to raise this threshold for party lists to 6%.”
49. In Resolution 1666 (2009) on the functioning of democratic institutions in Moldova, the Parliamentary Assembly expressed its serious concern:
“3. The Assembly is seriously concerned about the Moldovan authorities’ partial compliance with its earlier recommendations regarding the improvement of the electoral process and the strengthening of the State’s democratic institutions before the parliamentary elections of 5 April 2009. The amendments introduced to the Electoral Code in April 2008 raised the electoral threshold from 4% to 6%, did not provide for electoral coalitions of political parties and socio-political organisations and introduced a ban on the exercise of elevated public functions by Moldovan citizens holding multiple nationality. The combined effect of these amendments was to restrict the opportunities for a number of political forces to participate effectively in the political process, thus weakening pluralism.”
50. It called on Moldova to do the following:
“8.1. resume reform of the electoral legislation, in cooperation with the European Commission for Democracy through Law (Venice Commission), in order to lower the electoral threshold for political parties, thus opening up the political process for more pluralism; ...
8.2. suspend the application of Articles of the Electoral Code prohibiting people who hold multiple citizenship from exercising elevated public functions, while awaiting the judgment of the Grand Chamber of the European Court of Human Rights in the case of Tănase and Chirtoacă v. the Republic of Moldova.”
51. On 23 October 2008 the Venice Commission made public a report adopted on 17 to 18 October 2008 (Opinion no. 484/2008) concerning the amendments to the Electoral Code made in April 2008. The report expressed critical views in respect of all the aspects of the reform. As to the amendments concerning holders of multiple nationalities it stated the following:
“30. A new paragraph to Article 13 § 2 denies the right to ‘be elected’ in parliamentary elections to ‘persons who have, beside the Republic of Moldova nationality, another nationality for the position of deputy in the conditions of Article 75’. Article 75 § 3 states that a person may stand as a candidate with multiple citizenship, provided he/she upon election denounces other citizenships than the Moldovan. This must be considered as an incompatibility.
31. Beyond the mere question of the wording, restrictions of citizens’ rights should not be based on multiple citizenship. The Code of Good Practice in Electoral Matters quotes the European Convention on Nationality, ratified by Moldova in November 1999, which unequivocally provides that ‘Nationals of a State Party in possession of another nationality shall have, in the territory of that State Party in which they reside, the same rights and duties as other nationals of that State Party’.
32. Moreover, this restriction could be a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms, Articles 3 of [Protocol No. 1] and 14 of the Convention.”
52. On 27 May 2008, at a meeting of the European Union-Moldova Cooperation Council in Brussels, the Slovenian Minister for Foreign Affairs, the then President of the European Union General Affairs and External Relations Council, stated that it was important that Moldova conduct its parliamentary elections in 2009 in line with international standards and expressed concern at the latest amendments to the electoral law, which increased the electoral threshold to 6%.
53. Concerns about the electoral reform were also raised on 9 July 2008 by the President of the Parliamentary Assembly of the Council of Europe in a speech to the Moldovan Parliament:
“... I strongly encourage you to obtain the approval by the Venice Commission in respect of the recent amendments to the legislation which will apply in the next elections, namely in what concerns the electoral threshold, the electoral blocs and the dual nationality. These are delicate problems and it is necessary to find the right balance between the preoccupations which guided you to make these amendments and the concern of the international community that these amendments are compatible with the principles of the Council of Europe.”
54. On 9 December 2008, Mr Vlad Filat, President of the Liberal Democratic Party, addressed a complaint to the Constitutional Court alleging that Law no. 273 was unconstitutional.
55. On 26 May 2009 the Constitutional Court delivered a judgment on the constitutionality of Law no. 273. It found the Law to be constitutional and valid in its entirety. It held that the provisions of the Law were clear and unambiguous, that they were accessible in that they were published in the Official Gazette and that they were foreseeable as they enabled, with sufficient precision, Moldovan citizens wishing to stand for Parliament but holding another nationality to adopt appropriate social-minded conduct to ensure that their rights were not curtailed. It emphasised that Law no. 273 did not prevent dual nationals from becoming MPs as it offered them the possibility of complying with the law. It further considered the provisions of the Law to be in conformity with norms of international law, concluding that the various international instruments permitted States to stipulate incompatibilities relating to the holding of multiple nationalities by public officials.
56. The court also found Law no. 273 to be in pursuit of a legitimate aim, namely loyalty to the Moldovan State, in the light of the importance of State sovereignty and the need for a permanent political and legal link between an elector and the State. It considered that for Moldovan citizens holding the nationality of another State, the significance of Moldovan citizenship was substantially diminished as such a person might not be guided only by the constitutional requirements of Moldova and the interests of the Moldovan people but also by the interests of a foreign State. Accordingly, allowing MPs to hold dual nationality was contrary to the constitutional principle of the independence of the mandate of MPs, State sovereignty, national security and the non-disclosure of confidential information. In this regard, the court insisted that ensuring national security and consolidating Moldovan statehood had become an urgent necessity in the light of movements to undermine the Moldovan State.
57. The court also considered the interference to be proportionate since it did not affect the substance of electoral rights but merely made the exercise of the right to be an MP conditional upon holding exclusive Moldovan citizenship. Citizens could choose between holding a job which required single citizenship and retaining their multiple citizenships but working in a different post.
58. As regards the argument that Law no. 273 resulted in unequal treatment of Moldovan citizens, the court considered that the principle of equality should not be confused with the principle of uniformity. Those holding multiple nationalities were not in the same position as those holding single Moldovan nationality and the two cases were therefore not comparable.
59. On 5 April 2009 legislative elections were held. The Communist Party obtained 60 seats in Parliament. The three opposition parties gained 41 seats altogether: the Liberal Democratic Party and the Liberal Party obtained 15 seats each; and the Our Moldova Alliance obtained 11 seats. Of the 101 MPs elected, 21 held more than one nationality or had pending applications for a second nationality and were therefore affected by the provisions of Law no. 273. All 21 MPs were members of opposition parties.
60. In the April elections, the applicant was elected to the Moldovan Parliament. In order to be able to take his seat, he was required to initiate a procedure to renounce his Romanian nationality. He did this by way of a letter addressed to the Romanian embassy in Chişinău announcing that he was forced to initiate the renunciation of his Romanian nationality, but indicating that he reserved his right to withdraw the letter after the judgment of the Grand Chamber in the present case.
61. On 22 April 2009 the Constitutional Court validated the applicant’s mandate, taking into consideration his letter to the Romanian embassy.
62. The Communist Party subsequently sought to elect a president of the Republic. However, on two separate occasions they failed to obtain the 61 Parliamentary votes required for the election of the president. Accordingly, on 15 June 2009, Parliament was dissolved. Fresh parliamentary elections were called for 29 July 2009.
63. Prior to the dissolution of Parliament, it once again amended the electoral legislation, lowering the electoral threshold from 6% to 5% and lowering the mandatory rate of participation from 51% to one-third of registered voters. The opposition expressed concern about the amendments, arguing that they were intended to help the Christian Democratic People’s Party, an ally of the Communist Party in the previous Parliament, clear the electoral threshold and enter Parliament.
64. In the meantime, a prominent figure from the Communist Party and Speaker of the previous Parliament, Mr Marian Lupu, quit the Communist Party and became the leader of a small party, the Democratic Party, which had not cleared the electoral threshold in the April 2009 elections.
65. In the elections of 29 July 2009, five parties cleared the electoral threshold: the Communist Party obtained 48 seats; the Liberal Democratic Party obtained 18 seats; the Liberal Party obtained 15 seats; the Democratic Party obtained 13 seats; and the Our Moldova Alliance obtained 7 seats. The latter four parties formed a coalition called the Alliance for European Integration. The coalition had 53 seats in total and thus a majority in Parliament.
66. The applicant was re-elected. His mandate was subsequently confirmed by the Constitutional Court, upon production of the documents showing that he had initiated a procedure to renounce his Romanian nationality (see paragraph 60 above).
67. The majority elected Mr Mihai Ghimpu as Speaker on 28 August 2009. On 11 September 2009 the President of Moldova, Mr Vladimir Voronin, resigned. Under the Moldovan Constitution, Mr Ghimpu, in his capacity as Speaker, assumed the role of acting President until the election of a president in due course.
68. Since 25 September 2009 Moldova has been governed by the Alliance for European Integration coalition. On that date, Mr Vlad Filat was formally appointed Prime Minister and a number of ministers were also formally appointed. The applicant was appointed Minister of Justice. Under Moldovan law, the applicant will retain his mandate as an MP for six months following his appointment as Minister.
69. On 10 November 2009 Parliament made a first attempt to elect Mr Marian Lupu as President. Mr Lupu was not elected as the required 61 votes in favour were not obtained. The Communist Party refused to participate in the vote. A second attempt to elect a president was made on 7 December 2009. Again, the attempt was unsuccessful as a result of the failure to obtain the 61 votes required.
70. Under the Moldovan Constitution, in the light of the failure of the coalition to elect a president, fresh parliamentary elections will have to be held.
71. Article 4 of the Constitution of the Republic of Moldova reads:
“1. Constitutional provisions for human rights and freedoms shall be understood and implemented in accordance with the Universal Declaration of Human Rights, and with other conventions and treaties to which the Republic of Moldova is a party.
2. Wherever inconsistencies appear between human rights conventions and treaties signed by the Republic of Moldova and its own national laws, international regulations shall prevail.”
72. Article 8 of the Constitution provides that:
“1. The Republic of Moldova is obliged to respect the United Nations Charter and the treaties to which it is a party ...”
73. The relevant provisions of Law no. 595-XIV on international treaties of the Republic of Moldova read:
“International treaties shall be complied with in good faith, in accordance with the principle pacta sunt servanda. The Republic of Moldova cannot invoke the provisions of its internal legislation as a justification for non-compliance with an international treaty to which it is a party.”
“The provisions of the international treaties which, according to their wording, are susceptible to be applicable without there being need for enactment of special legislative acts, shall have an enforceable character and shall be directly applied in the Moldovan law system. For the realisation of other provisions of the treaties, special normative acts shall be adopted.”
74. According to section 24 of the Law on citizenship of the Republic of Moldova (Law no. 1024 of 2 June 2000), as amended on 5 June 2003, multiple nationalities are permitted in Moldova and the acquisition by a Moldovan national of another nationality does not entail loss of the Moldovan nationality.
75. Section 25 provides that Moldovan citizens who reside lawfully and habitually in the territory of Moldova and hold the nationality of another State shall enjoy the same rights and duties as the other citizens of Moldova. Law no. 273 inserted an exception to the principle in section 25 of equal treatment of all citizens “in cases provided for by law”.
76. Section 39 provides for an oath of allegiance to be sworn by those granted citizenship of Moldova through naturalisation or reacquisition of nationality. The oath states:
“I (surname, first name), born (time and place of birth), swear to be a faithful citizen of the Republic of Moldova, to respect its Constitution and other laws and not to take any actions that would prejudice the interests and territorial integrity of the State.”
77. On the right to vote and to be elected, the relevant parts of the Constitution provide:
“...
3. The right to be elected is guaranteed to Moldovan citizens who enjoy the right to vote, within the conditions of the law.”
“1. The citizens of Moldova shall have the right to participate in the administration of public affairs in person or through their representatives.
2. Every citizen shall have access, in accordance with the law, to public functions.”
78. Law no. 273 set out amendments to the electoral legislation. Section 10 of the draft law adopted by Parliament on 7 December 2007 but not promulgated by the President, proposed that the Electoral Code be amended to include the following:
“Candidates for the office of MP shall be at least 18 years old on the day of the elections, shall have exclusively Moldovan citizenship, shall live in the country and shall fulfil the conditions provided for in the present code.”
79. Section 9 of the final version of Law no. 273, which came into force on 13 May 2008, introduces the following provisions into the Electoral Code:
“(1) Candidates for the office of MP shall be at least 18 years old on the day of the elections, shall have Moldovan citizenship, shall live in the country and shall fulfil the conditions provided for in the present code.
(2) At the moment of registering as a candidate, any person holding the citizenship of another country shall declare that he or she holds another citizenship or that he or she has applied for another citizenship.
(3) At the time of validation of the MP mandate, the person indicated in paragraph (2) shall prove with documents that he or she has renounced or initiated the procedure of renunciation of the citizenship of other States or that he or she has withdrawn an application to obtain another citizenship.
(4) A failure to declare the fact of holding another citizenship at the moment of registering as a candidate for the office of MP or the fact of obtaining another citizenship during the exercise of an MP mandate, shall be sufficient grounds for the Constitutional Court to annul the MP mandate at the request of the Central Electoral Commission.”
80. The position of Transdniestria is set out in section 21 of the Law:
“ ...
(3) The incompatibilities provided for in the present Law shall apply to persons living in Transdniestria only in so far as they are stipulated in the legislation concerning the special legal status of Transdniestria.”
81. Limited parliamentary debate took place on this particular provision of the Law. The only relevant extract, from the plenary parliament debates on 7 December 2007, is as follows:
“Vladimir Braga, MP:
The citizens who are citizens of the Republic of Moldova and live in Transdniestria will continue to have double nationality and then the effectiveness of the Law is marginalised, or, to put it better, we reject the citizens from Transdniestria, who are also citizens of the Republic of Moldova.
Vladimir Ţurcan, MP:
Not at all. There is one thing which has to be understood: firstly, this Law does not apply to all citizens. Secondly, it refers only to those who have positions in public authorities. Thirdly, we deliberately inserted here a clause in the final and transitional provisions: I draw your attention to the fact that the third paragraph refers to persons who live and work in the respective authorities of the left bank, in Transdniestria, that this Law does not apply in this case to the said persons and that it will only be applied [to them] in so far as this is provided for in the Law concerning the special status of Transdniestria.”
82. According to Article 38 of the Code of Constitutional Jurisdiction of the Republic of Moldova, the Constitutional Court may be seized only by the President of the country, the government, the Minister of Justice, the Supreme Court of Justice, the Economic Court, the Prosecutor General, the MPs, the parliamentary factions and the Ombudsman.
83. The Preamble to the Council of Europe European Convention on Nationality (“the ECN”), which came into force in general and in respect of Moldova on 1 March 2000, explains the purpose of the ECN. The relevant parts of the Preamble provide:
“Recognising that, in matters concerning nationality, account should be taken both of the legitimate interests of States and those of individuals;
...
Noting the varied approach of States to the question of multiple nationality and recognising that each State is free to decide which consequences it attaches in its internal law to the fact that a national acquires or possesses another nationality;
...”
84. Article 15 of the ECN sets out possible cases of multiple nationality other than those which arise where individuals acquire multiple nationalities automatically at birth or a second nationality automatically upon marriage. It provides as follows:
“The provisions of this Convention shall not limit the right of a State Party to determine in its internal law whether:
a. its nationals who acquire or possess the nationality of another State retain its nationality or lose it;
b. the acquisition or retention of its nationality is subject to the renunciation or loss of another nationality.”
85. On the rights and duties related to multiple nationality, Article 17 provides:
“Nationals of a State Party in possession of another nationality shall have, in the territory of that State Party in which they reside, the same rights and duties as other nationals of that State Party.
The provisions of this chapter do not affect:
a. the rules of international law concerning diplomatic or consular protection by a State Party in favour of one of its nationals who simultaneously possesses another nationality;
b. the application of the rules of private international law of each State Party in cases of multiple nationality.”
86. The Venice Commission has adopted a Code of Good Practice in Electoral Matters. The relevant parts of the explanatory report to this code read as follows:
“6b. [U]nder the European Convention on Nationality persons holding dual nationality must have the same electoral rights as other nationals.
...
63. Stability of the law is crucial to credibility of the electoral process, which is itself vital to consolidating democracy. Rules which change frequently – and especially rules which are complicated – may confuse voters. Above all, voters may conclude, rightly or wrongly, that electoral law is simply a tool in the hands of the powerful, and that their own votes have little weight in deciding the results of elections.
64. In practice, however, it is not so much stability of the basic principles which needs protecting (they are not likely to be seriously challenged) as stability of some of the more specific rules of electoral law, especially those covering the electoral system per se, the composition of electoral commissions and the drawing of constituency boundaries. These three elements are often, rightly or wrongly, regarded as decisive factors in the election results, and care must be taken to avoid not only manipulation to the advantage of the party in power, but even the mere semblance of manipulation.
65. It is not so much changing voting systems which is a bad thing – they can always be changed for the better – as changing them frequently or just before (within one year of) elections. Even when no manipulation is intended, changes will seem to be dictated by immediate party political interests.”
87. On the basis of the information available to the Court, it would seem that, apart from Moldova, three countries (Azerbaijan, Bulgaria and Lithuania) clearly ban dual nationals from being elected to Parliament. In Azerbaijan and Lithuania, it is in any event prohibited to hold dual nationality; in Bulgaria, holding dual nationality is permitted. The Constitution of a fourth country, Malta, provides that a person shall not be qualified for election to the House of Representatives “if he is a citizen of a country other than Malta having become such a citizen voluntarily or is under a declaration of allegiance to such a country”; it is not entirely clear whether the provision applies to non-nationals or to multiple nationals. In any case, there are no known examples of the provision being enforced and it is not clear whether it was intended that the limitation remain in force after the law was amended to permit dual nationality in Malta in 2000. Romania, which permits dual nationality, lifted its ban on dual nationals becoming MPs in 2003.
88. In Latvia, there is no prohibition on MPs having dual nationality but a person with dual nationality cannot be elected president. It should be noted that dual nationality is prohibited in principle under Latvian law, although it is allowed in certain limited circumstances. Monaco restricts citizens from becoming members of the Conseil National if they hold public or elected office in another State. Portugal prohibits non-resident dual nationals from becoming MPs for the constituency covering the territory of their other nationality.
89. In short, three member States of the Council of Europe – Bulgaria, Malta and Moldova (subject to the ambiguity outlined above) – currently allow dual nationality but prohibit dual nationals from becoming MPs. In addition, Azerbaijan and Lithuania, which prohibit dual nationality, also prohibit dual nationals becoming MPs. Of these four other countries, Azerbaijan and Lithuania have not signed the ECN; Bulgaria has lodged a reservation in respect of Article 17 of the ECN; and Malta has signed, but not ratified, the ECN.
90. Twenty-seven States other than Moldova allow dual nationality. In nineteen member States, dual citizenship is prohibited in principle. Dual nationality is prohibited in Ukraine.
91. Estonia, Latvia and Lithuania prohibit dual nationality. According to the census for the year 2000, there were around 200 dual nationals in Estonia. There are around 700 dual nationals in Lithuania. No figures are available for Latvia. Around a quarter of the population of Estonia and Latvia is ethnically Russian.
92. In the States of the former Yugoslavia, Croatia, Serbia, Slovenia and “the former Yugoslav Republic of Macedonia” allow dual citizenship, although Croatia and Slovenia seek to exclude it for naturalised citizens. In Bosnia and Herzegovina and Montenegro, dual nationality is permitted only in respect of States with which a bilateral agreement has been concluded. The populations of most of these States are ethnically mixed. Montenegro (43% Montenegrin; 32% Serb; 8% Bosniak; 17% other) and Bosnia and Herzegovina (48% Bosniak; 37.1% Serb; 14.3% Croat; 0.6% other) have the most ethnically mixed populations, followed by “the former Yugoslav Republic of Macedonia” (64.2% Macedonian; 25.2% Albanian; 10.6% other). The numbers of dual nationals in these countries is not known. None of these States prohibit dual nationals from standing for Parliament.
93. In the twenty-seven member States of the European Union, sixteen allow dual nationality, five prohibit it or allow it only in exceptional circumstances (the Czech Republic, Denmark, Greece, Lithuania and Poland) and six (Austria, Estonia, Germany, Latvia, the Netherlands and Spain) allow it in certain circumstances, to varying extents. Two States – Bulgaria and Lithuania – prohibit the election of dual nationals to Parliament. Further limitations exist in three States (Latvia, Malta and Portugal – see paragraphs 87-88 above).


ITEMID: 001-90448
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF FİLİZ UYAN v. TURKEY
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 3 (substantive aspect)
JUDGES: Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 4. The applicant was born in 1966 and at the time of the events was serving a prison sentence in the Buca Prison in İzmir.
5. She had been convicted of being a member of a terrorist organisation and sentenced to twenty-two years’ imprisonment.
6. On 12 November 2001, following the prison doctor’s referral, the applicant was taken to İzmir-Yesilyurt Atatürk Training and Research Hospital, escorted by three male security officers (two gendarmes and a male prison guard) and one female prison guard, in order to undergo an ultrasound scan by a gynaecologist.
7. In the hospital the applicant was taken to a consultation room located on the ground floor. The bottom of the consulting room windows was only 50 cm above floor level and the windows were unprotected. The applicant’s handcuffs were not removed and the male security officers refused to leave the consultation room for security reasons. They stated that they would wait behind a folding screen. The applicant refused to be examined in such conditions. Accordingly, the gynaecologist issued a medical report stating that she had not been able to perform the requested ultrasound scan as the patient had not given her consent.
8. On 14 November 2001 the applicant’s representative applied to the İzmir Public Prosecutor’s Office, accusing the gendarmes and the male prison guard of misconduct, arbitrary treatment and insulting the applicant.
9. On 15 November 2001 the İzmir Public Prosecutor’s Office separated the investigation file in respect of the accused gendarme officers, noting that, pursuant to Law no. 4483 on the Prosecution of Civil Servants and Public Officials, permission to prosecute had to be sought from the District Governorship.
10. On 28 December 2001 the Buca District Governor decided not to authorise the prosecution of the gendarme officers, stating that the applicant’s allegations were unsubstantiated.
11. The applicant did not file an appeal and the decision became final on 30 January 2002.
12. On 26 and 27 November 2001 respectively, the İzmir public prosecutor took statements from the male prison guard and the applicant as the complainant.
13. On 3 December 2001 the public prosecutor decided not to prosecute the prison guard. Referring to the doctor’s note dated 12 November 2001, in which it was stated that no examination had been performed as the applicant had not given her consent, the prosecutor decided that the applicant’s allegations were unsubstantiated.
14. On 29 July 2002 the Karşıyaka Assize Court dismissed the applicant’s appeal against that decision.
15. In the meantime, on 23 January 2002, the applicant’s lawyer filed a complaint with the İzmir Medical Association (İzmir Tabip Odası) against the doctor who had not asked the male security officers to leave the room or remove the applicant’s handcuffs.
16. On 8 April 2002 the İzmir Medical Association found it unnecessary to initiate criminal proceedings against the doctor, holding that she had not treated the applicant disrespectfully.
17. The applicant objected and on 5 October 2002 the Turkish Medical Association (Türk Tabipleri Birliği) quashed that decision.
18. On 23 January 2003 the İzmir Medical Association examined the file once again and decided to issue the doctor with a warning for professional misconduct, namely for not taking the initiative to request the male security officers to leave the consultation room or remove the applicant’s handcuffs, as required by ethical rules.
19. The Protocol for Prisons signed by the Ministries of Justice, Health and the Interior (6 January 2000) provides:
“...during the medical examination at the hospital of those who are remanded or convicted in connection with terror-related crimes, the gendarmerie will wait in the consultation room to secure the area, at a distance so as not to hear the conversation between the doctor and the patient. Where women prisoners are remanded or convicted in connection with terror-related crimes, if the consultation room has protection the gendarme officers will wait outside the consultation room. If the room does not have protection the gendarme officers will wait in the room at a distance so as not to hear the conversation between the doctor and the patient.”
“Remand and convicted prisoners who are transferred to health institutions from Closed Prisons and Detention Centres and who are to be examined or hospitalised in these health institutions will be accompanied by an adequate number of guards, appointed by the prison administration, and the remanded and convicted prisoners’ administrative formalities in the hospital will be carried out by these guards.”
20. The Regulation on the External Protection of Prisons and Transfer Procedures provides insofar as relevant as follows:
“...handcuffs are not removed unless they hinder the treatment/examination and as long as their removal is not requested by the doctor.”
21. The CPT Standards (the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment) concerning health care services in prisons (see the CPT standards, document no. CPT/Inf/E (2002) 1- Rev. 2006, pages 31 and 34) provide as follows:
“... All medical examinations of prisoners (whether on arrival or at a later stage) should be conducted out of the hearing and - unless the doctor concerned requests otherwise - out of the sight of prison officers...
If recourse is had to a civil hospital, the question of security arrangements will arise. In this respect, the CPT wishes to stress that prisoners sent to hospital to receive treatment should not be physically attached to their hospital beds or other items of furniture for custodial reasons. Other means of meeting security needs satisfactorily can and should be found; the creation of a custodial unit in such hospitals is one possible solution.”
VIOLATED_ARTICLES: 3


ITEMID: 001-5971
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: OKTA v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Palm;Gaukur Jörundsson
TEXT: The applicant, Abdulhalim Okta, is a Turkish national of Kurdish origin, born in 1970 and living in Leiden (the Netherlands). He is represented before the Court by Mrs G.E.M. Later, a lawyer practising in the Hague.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 23 March 1994, the applicant applied for asylum in the Netherlands or a residence permit for compelling reasons of a humanitarian nature. On 29 August 1994, he was questioned by an immigration official for the reasons of his request for asylum. On 31 August and 28 September 1994, the applicant submitted corrections and additions to the report drawn up by the immigration official. He stated that he feared persecution for political motives.
On 4 April 1995, the State Secretary of Justice (Staatssecretaris van Justitie) rejected the applicant's requests. He was ordered to leave the Netherlands within four weeks. On 15 May 1995, the applicant filed an objection (bezwaar) with the State Secretary against this decision.
On 16 January 1996, the applicant was arrested in The Hague and detained on remand on suspicion of participation in the commission of assault on a Turkish national. On 18 June 1996, the public prosecutor informed the applicant that, for lack of evidence, no criminal proceedings would be taken against him.
On 24 June 1996, the applicant was heard before the Advisory Commission for Aliens' Affairs (Adviescommissie voor Vreemdelingenzaken) in relation to his objection.
On 29 November 1996, the State Secretary rejected the applicant's objection. On 23 December 1996, the applicant filed an appeal against this decision with the Hague Regional Court (Arrondissementsrechtbank). The State Secretary granted the applicant's appeal suspensive effect as to his expulsion to Turkey.
The Hague Regional Court, following a hearing held on 22 May 1997, rejected the applicant's appeal on 4 July 1997, including his complaint under Article 3 of the Convention. This decision was notified to the applicant on 17 July 1997.
In his letters of 6, 14 and 18 August, 11 and 19 September, and 29 October 1997, the applicant requested the State Secretary to reconsider his case and to grant him asylum.
By letter of 6 November 1997 the State Secretary informed the applicant that the proceedings on his asylum request had ended with the decision taken on 4 July 1997 by the Hague Regional Court and that it was open for him to file a fresh asylum request insofar as he considered that there were new facts and circumstances that had not been examined in the initial asylum proceedings and on the basis of which the outcome could be different.
On 20 November 1997, the applicant filed an objection with the State Secretary against the letter of 6 November 1997, which he considered to be a decision for the purposes of administrative law proceedings.
On 10 July 1998 the State Secretary declared the applicant's objection of 20 November 1997 inadmissible, holding that the contents of the letter of 6 November 1997 were merely of an informative nature and did not constitute a decision for administrative law purposes. The applicant was ordered to leave the Netherlands immediately.
The applicant filed an appeal with the Hague Regional Court. In the course of the appeal proceedings before the Hague Regional Court, the State Secretary withdrew the challenged decision and allowed the applicant to await the outcome of his request for reconsideration in the Netherlands. Consequently, the applicant withdrew his appeal before the Regional Court.
On 28 August 2000, noting that the State Secretary had not yet taken a decision on his request for reconsideration of his case, the applicant requested the State Secretary to grant him a residence permit as the proceedings had lasted longer than three years which, according to an established policy, would make him eligible for a residence permit. In this context, the applicant further submitted that also his wife had filed an asylum request in the Netherlands and that the appeal proceedings before the Hague Regional Court against the State Secretary's negative decision of 19 January 1998 on her request had been adjourned on 11 August 1999 on the basis of the decision that was to be taken in the case of the applicant.


ITEMID: 001-86089
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: FISCHER v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova
TEXT: The applicant, Mr František Fischer, is a Czech national who was born in 1953 and lives in Lysá Nad Labem. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
In a judgment of 20 October 1987 the Nymburk District Court (okresní soud) dismissed the applicant’s action against a certain R. seeking to vacate parcel no. 420/3 situated in Lysá nad Labem. It found that the applicant was not the owner of the land as he had neither inherited it nor acquired it by prescription. On 29 March 1988 the Prague Regional Court (krajský soud) upheld this judgment, which then became effective on 24 June 1988.
On 5 May 1992 a motion to determine the ownership title to plot no. 420/3 in the Lysá nad Labem cadastral area was drawn up together with R. and filed in the court’s records.
It appears that the proceedings are still pending.
On 7 November 2006 the applicant claimed compensation under Act no. 82/1998 as amended before the Ministry of Justice. In a letter of 23 February 2007 the Government notified the Court that the applicant’s claim for compensation had not, in fact, satisfied the formal requirements laid down by Act no. 82/1998 as amended.
The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).


ITEMID: 001-82863
LANGUAGEISOCODE: ENG
RESPONDENT: ALB
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF GJONBOCARI AND OTHERS v. ALBANIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1 (failure to enforce a final judgment);Violation of Art. 6-1 (length of the third set of proceedings);Not necessary to examine Art. 13+6-1 (failure to enforce a final judgment);Violation of Art. 13+6-1 (length of the third set of proceedings);Remainder inadmissible;Damage - Government to secure the enforcement of the domestic court's final judgment;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (Convention and domestic proceedings) - claim dismissed
JUDGES: Nicolas Bratza
TEXT: 5. The applicants, who are all siblings, were born in 1939, 1927, 1934, 1931, 1924, 1949 and 1949, respectively. They live in Tirana and Vlora.
A. Proceedings pursuant to the Property Act
6. During the communist regime several plots of land owned by the applicants’ parents had been confiscated by the authorities without compensation. The property measuring in total 132 hectares was situated in the Vlora region on the southern Albanian coast.
7. On 30 March 1994, pursuant to the Property Act, the applicants lodged a request with the Vlora Commission on Restitution and Compensation of Properties (Komisioni i Kthimit dhe Kompensimit të Pronave, “the Vlora Commission”) seeking the allocation of the original property to them.
8. On 27 August 1996 the Vlora Commission assigned to the applicants jointly, as co-owners, 14 hectares (2 hectares per person) of the property (“relevant property”). The decision was signed by four out of the seven members of the Vlora Commission.
9. Notwithstanding this, and based on the Commission’s decision, on an unspecified date the applicants registered the relevant property with the Vlora Land Registry.
10. On 28 December 1998 they applied to the Vlora Commission requesting the issuance of a new document complying with formal legal requirements, namely, a document duly signed by all of the Commission’s members.
11. On 6 January 1999, by document no. 76, the President of the Vlora Commission replied to the applicants, informing them that the Commission had already confirmed their title in its decision of 27 August 1996. In any event, pursuant to the laws in force at the material time, competence for any formal correction of the Commission’s documents lay with the courts.
B. Proceedings with the Ministry of Tourism as a party
12. On 25 November 1996 the Ministry of Tourism, by decree no 20/2, (“the decree”), leased a plot of land (part of the applicants’ property) to A.L., for tourism purposes.
13. On 29 December 1997 the applicants brought an action before the Tirana District Court to quash the decree.
14. On 17 February 1998 the Tirana District Court annulled the decree on the ground that the transaction concerned private property.
15. On 16 June 1998 the Tirana Court of Appeal quashed the District Court’s decision and upheld the validity of the decree, stating that the Commission’s decision of 27 August 1996 had been invalid in that it had not complied with formal requirements. Consequently, the applicants could not claim title to the relevant property.
16. On 10 June 1999, following an appeal by the applicants, the Supreme Court quashed the Court of Appeal’s judgment of 16 June 1998 on the ground that it had been illogical and sent the case back to the Court of Appeal for re-hearing.
17. On 10 November 1999 the Tirana Court of Appeal, following a re-hearing, rejected the applicants’ action on the ground that it had been lodged with the District Court after the one-month time-limit stipulated by law had expired.
18. On 17 January 2001 the Supreme Court upheld the Court of Appeal’s judgment.
C. Proceedings on the restitution of the property to K.B.
19. Meanwhile, on 9 October 1997 the Vlora Commission allocated to K.B. - A.L.’s mother - as compensation, the same plot of land that the Ministry had previously leased to her son.
20. On an unspecified date K.B donated the land to her son.
21. Following a request by A.L., by order no. 3 dated 11 June 1999, the Vlora Land Registry cancelled the applicants’ title to this plot of land and registered A.L. as the owner.
D. Proceedings with A.L. as a party
22. On 13 December 1999, following a civil action brought by A.L., the Vlora District Court declared null and void the Vlora Commission’s decision of 27 August 1996 which had allocated the ownership of the plot of land to the applicants on the ground that it had not been issued in compliance with formal requirements (see the findings of the Tirana Court of Appeal decision of 16 June 1998).
23. On 17 March 2000 the Vlora Court of Appeal upheld the District Court’s decision and reasoning, adding that the Vlora Commission had exceeded its jurisdiction in taking decisions about properties which the State had assigned for tourism purposes.
24. On 17 January 2001 the Supreme Court confirmed that the Vlora Commission’s decision was null and void, on the ground that it had not been issued in compliance with formal requirements. It was consequently of no effect as regards the applicants or other third parties. Notwithstanding this, it quashed the judgments given at first and second instance and discontinued the proceedings.
E. Proceedings with the Vlora Commission as a party
1. Ordinary proceedings
25. On 18 April 2000 the applicants initiated proceedings with the Vlora District Court seeking the annulment of the decision of the Vlora Commission in K.B.’s favour. On 6 February 2001 the Vlora District Court dismissed the applicants’ request on the ground that the Vlora Commission’s decision in their favour had been declared null and void by the Vlora District Court’s decision of 13 December 1999.
26. On 25 May 2001 the Vlora Court of Appeal, having examined the applicants’ appeal, rejected the applicants’ argument as to the nullity of the Commission’s decision allocating the land to K.B. on the ground that it was unsubstantiated. It also rejected their second request, holding that an irregular act, even if not considered formally invalid, as in this case, should not have any legal effect.
27. On 6 March 2003 the Supreme Court quashed the first and second instance decisions in part. It dismissed the applicants’ request for a declaration that the Vlora Commission’s decision allocating the plot of land to K.B. was null and void, on the ground that its nullity could only be determined once a valid decision determining the applicants’ rights over the land had been taken. It accordingly ordered the Vlora Commission to issue a decision vis-a-vis the applicants in compliance with the formal requirements.
2. Enforcement proceedings
28. On 14 April 2004 the Vlora District Court, upon a request by the applicants, issued an enforcement order instructing the Vlora Commission to comply with the Supreme Court’s judgment of 6 March 2003.
29. On 10 May and 2 September 2004 the Commission informed the Bailiffs’ Office that they had not issued the decision ordered in the Supreme Court judgment due to the fact that the applicants had failed to submit the documents necessary to enable a legally correct decision to be taken.
30. On 27 August 2004 the Bailiffs’ Office once again brought to the Vlora Commission’s attention the enforcement order issued on 14 April 2004.
31. On 12 May and 6 September 2004 the Bailiffs’ Office invited the applicants to comply with the Commission’s requests and to submit the documents relating to their property claims.
32. The applicants then informed the Bailiffs’ Office and the Vlora Commission that they had already submitted the necessary documents at the time the Commission had decided in 1996. Moreover, they were reluctant to submit the requested documents since they disagreed with any suggestion that their case had to be decided ex novo. In their opinion, the Supreme Court’s judgment only required the formalisation of the decision of 1996.
33. On 29 May 2006 the Vlora Commission decided not to consider the case for apparent insufficiency of documentation and on 30 November 2006 it sent the case for further consideration to the National Committee for the Restitution and Compensation of properties.
34. On 5 April 2007 the National Committee, now known as the Agency for the Restitution and Compensation of properties (“the Agency”) informed the applicants that, notwithstanding that the Commission file was in fact complete, it had decided to stay the proceedings until the Government had issued the appropriate plans for the properties’ valuation.
35. The Albanian Constitution, in so far as relevant, reads as follows:
“1. The right of private property is protected by law 2. Property may be acquired by gift, inheritance, purchase, or any other ordinary means provided by the Civil Code. 3. The law may provide for expropriations or limitations in the exercise of a property right only in the public interest. 4. The expropriations or limitations of a property right that are equivalent to expropriation are permitted only against fair compensation. 5. A complaint may be filed in court to resolve disputes regarding the amount/extent of compensation due.”
“In the protection of his constitutional and legal rights, freedoms and interests, and in defence of 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.”
“State bodies shall comply with judicial decisions.”
“The Constitutional Court shall decide: ... (f) 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.”
“1. Within two to three years from the date when this Constitution enters into force, The Assembly, guided by the criteria of article 41, shall issue laws for the just resolution of different issues related to expropriations and confiscations done before the approval of this Constitution,.
2. Laws and other normative acts that relate to the expropriations and confiscations, adopted before the entry into force of this Constitution, shall be applied provided they are compatible with the latter.”
36. The Property Restitution and Compensation Act (Ligji për kthimin dhe kompensimin e pronës) underwent several amendments during the past fourteen years. The main changes to the first Property Act of 1993 came about as a result of two laws which entered into force respectively in 2004 and 2006. Thus, hereinafter they will be referred to as the “Property Act 1993”, the “Property Act 2004” and the “Property Act 2006”, respectively.
The relevant provisions of each of these laws are abridged as follows:
37. According to the Act of 1993 the former owners of properties expropriated by the relevant regime and their legal heirs had the right to claim the ownership over the original properties. Upon ownership being determined they were entitled either to have allocated the original immovable property or to be awarded compensation in kind (in a maximum of 10,000 sq. m) or in value if one of the following conditions was met: the alleged property (1) was pasture, meadow, forestry land, or agricultural or non-agricultural land; (2) was not subject to Law no. 7501 of 19 July 1991; (3) was currently State-owned; (4) had been designated as suitable for construction and is situated within the boundaries of a city.
Section 16 of the Act provided for the following forms of compensation in respect of property which could not be restituted: (a) State bonds, equivalent to the compensation owed, and with a first option of acquiring shares in State enterprises being privatised by the Government or in other activities carried out through the granting of loans; (b) an equivalent plot of land or building site near to an urban area, in accordance with the general urban-development regulations; and (c) an equivalent plot of land in a tourist zone, in accordance with the general urban-development regulations.
The Council of Ministers had the authority to define detailed rules for determining the methods and time-limits for such compensation to take place.
38. Moreover, the 1993 Act instituted the Commission on Restitution and Compensation of Properties (Komisioni i Kthimit dhe Kompensimit të Pronave) as the competent administrative body to deal with former owners’ restitution and compensation of property claims. However, it omitted to provide a time-limit within which a decision could be appealed, thus preventing it from even becoming binding.
39. The Property Act enacted in 2004, repealing the previous one, provided for two forms of restitution of immovable properties, namely the return, under certain circumstances, of the original property and compensation in the event of the impossibility for the authorities to return the original property. The restitution was not limited in size. The Act provided for five forms of compensation: (a) property of the same kind; (b) property of any other kind; (c) shares in State-owned companies; (d) the value of a State-owned property in the privatisation process, and (e) a sum of money corresponding to the value attributed to the property at the time of the decision (section 11). The Act instituted the State Committee for Property Restitution and Compensation (Komiteti Shteteror per Kthimin dhe Kompensimin e Pronave), composed of five members elected by Parliament. Its role was to decide on the lawfulness of district committees’ decisions on restitution and compensation claims (sections 15 and 17). The Council of Ministers was to establish the rules and the criteria of these (sections 13).
40. Section 19 provided for the enforcement of the decisions awarding compensation within the first six months of each financial year. On its entry into force, persons entitled to claim restitution or compensation had to lodge applications with the District Committee by 31 December 2007. The Act granted the Committee discretion to decide which form of compensation should be granted, but applicants could express in writing their preferred type of compensation. The District Committee’s decision could be appealed to the State Committee (section 20) and to the district courts within thirty days of the date of issue of the Committee’s decision.
41. On 28 April 2005 Parliament adopted an Act, setting down the method by which immovable property would be valued for compensation purposes. Its implementation was left to the State Committee for the Compensation and Restitution of Properties, which was to issue the appropriate maps for the properties’ valuation.
42. In order to comply with the committees’ decisions awarding pecuniary compensation, section 23 of the 2004 Act provided for the establishment of a ten-year Property Compensation Fund, whose aim was to provide financial support for such awards. The 2004 Act was examined by both the Constitutional and the Supreme Courts.
On 24 March 2005 the Supreme Court, Joint Colleges, concluded that the Property Act of 2004 had no retroactive effect and that its provisions, could therefore, not have any impact on property rights recognised by administrative or court decisions given before its entry into force.
43. On 17 July 2006 Property Act of 2004 was amended by means of the Property Act 2006 which entered into force on 17 August 2006. It provided, inter alia, for the establishment of the Agency for the Restitution and Compensation of Properties, a new body competent to decide restitution and compensation claims (section 15). The new law repealed sections 11 § 2; 19 and 20 of the previous law which, inter alia, provided for the procedure for the enforcement of decisions that awarded compensation.
VIOLATED_ARTICLES: 13
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VIOLATED_PARAGRAPHS: 6-1