CASE OF IVANOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

1. The case originated in an application (no. 29908/11) against “the former Yugoslav Republic of Macedonia” lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Macedonian national, Mr Trendafil Ivanovski (“the applicant”), on 9 May 2011.
2. The applicant was represented by Mr S. Pavleski, a lawyer practising in Skopje. The Macedonian Government (“the Government”) were represented by their Agent, Mr K. Bogdanov.
3. Mirjana Lazarova Trajkovska, the judge elected in respect of the former Yugoslav Republic of Macedonia, withdrew from sitting in the case (Rule 28 of the Rules of Court). On 6 November 2015 the President of the Chamber decided to appoint Ledi Bianku, the judge elected in respect of Albania to sit as an ad hoc judge (Rule 29).
4. The applicant alleged that the domestic authorities ’ decisions in the lustration proceedings against him had violated his right to respect for private life, and that those proceedings had been unfair.
5. On 27 November 2012 the application was communicated to the Government.
I. THE CIRCUMSTANCES OF THE CASE
6. The applicant was born on 14 July 1946 and lives in Skopje.
7. On 22 January 2008 the Parliament of the respondent State passed the Additional Requirement for Public Office Act ( Закон за определување дополнителен услов за вршење на јавна функција – hereafter “the Lustration Act”), which entered into force eight days later.
8. The Lustration Act introduced non-collaboration with the State security services in the period between 2 August 1944 and 30 January 2008, the date of the Act ’ s coming into force (hereafter “the screening period”), as an additional requirement for the holding of public office. In other words, collaboration with the State security services in that period became an impediment to holding public office.
9. All incumbent public officials and candidates for public office were required to submit a statement that they had not collaborated with the State security services in the above screening period (hereafter “the declaration ”). The Lustration Act was to apply for five years from its entry into force (hereafter “the temporal scope”).
10. The Lustration Act also provided for the establishment of a Facts Verification Commission ( Комисија за верификација на факти – hereafter “the Lustration Commission” or “the Commission” ), which had to be set up within sixty days of the Act ’ s entry into force. Its task was to examine the veracity of the public officials ’ declarations. The members of the Commission were elected by Parliament on 15 January 2009. The Commission became operational in late March 2009.
11. On 22 May 2009 amendments to the Lustration Act entered into force, adding several provisions primarily in respect of the functioning of the Lustration Commission and the status of its members. Also, the temporal scope of the Lustration Act was extended, from the five years initially envisaged following the Act ’ s entry into force, to ten years following the election of the Commission.
12. On 27 January 2010, following petitions for abstract constitutional review, the Constitutional Court accepted the initiative and decided to institute proceedings to review the constitutionality of several provisions of the Lustration Act, including the one extending the screening period (see paragraph 8 above) beyond the date of adoption of the current Constitution of the respondent State (17 November 1991). It also suspended application of those provisions until it had decided on their compatibility with the Constitution.
13. Fierce debate ensued, in which a number of politicians severely criticised the Constitutional Court ’ s decision in the media (see the European Commission ’ s Progress Report of 9 November 2010 in paragraph 1 0 9 below). For example, on 29 January 2010 the coordinator of the ruling party ’ s Parliamentary group made the following statement:
“Having in mind that the Constitutional Court ’ s current composition was appointed during the political zenith [of the former President of the Republic], [the ruling party] believes that cancelling lustration ’ s scope of application after 1991 has one goal only: to prevent the Lustration Commission and the citizens of Macedonia from learning whether [the former President of the Republic and his party] officials, who controlled the secret services, actually used those structures against their political opponents.”
14. On 4 March 2010 the same MP stated:
“We are convinced that the Constitutional Court wants to harness Macedonian democracy and keep it hostage [ bound up ] in the web woven by secret service collaborators. People from the secret services are striking back, together with their collaborators who continued to ‘ snitch ’, violate human rights, destroy people ’ s lives and wage war against political opponents, even after 1991.”
15. By a decision of 24 March 2010 the Constitutional Court invalidated certain provisions of the Lustration Act as unconstitutional. In particular, that court held that to extend the screening period beyond 17 November 1991, the date of adoption of the present Constitution, was unconstitutional. In other words, it was incompatible with the Constitution to provide collaboration with the State security services after that date as an impediment to the holding of public office.
16. Some other provisions were also held contrary to the Constitution, namely those providing for the publication of collaborators ’ names in the Official Gazette, automatic lustration in cases where no declaration had been submitted, and those making it possible to introduce collaboration as an impediment to membership of governing bodies of political parties, civic organisations and religious communities by internal regulations of such non-State entities (see paragraphs 69-71, 78 and 81 below).
17. On the same date, 24 March 2010, the applicant, as the President of the Constitutional Court at the time, made the following statement to the media, in which he, inter alia, commented on the Parliament ’ s written response to the petitions for constitutional review in the proceedings before the court:
“The response is seventeen pages long and provides arguments on the necessity to pursue lustration, motives behind the [Lustration] Act ’ s adoption, implementation procedure and the like, but my impression is that no legal arguments were presented ... I believe that the response should be made public. For example, Parliament, in its response, states ‘ in constitutional and legal terms, one cannot contest the Act ’ s temporal scope ’ .... That cannot be considered a legal argument.”
18. By a decision of 29 September 2010 the Lustration Commission established that the applicant had submitted a false declaration and that accordingly he did not meet the additional requirement for public office (the course of the proceedings in the applicant ’ s case and the surrounding circumstances are described in detail in paragraphs 2 4 -58 below).
19. On 25 February 2011 the Lustration Act was amended for the second time, and certain provisions that were similar to the invalidated ones were reintroduced. The provision delimiting the screening period in which the collaboration with the State security services was an impediment to the holding of public office was re-worded in such a way that the end-date remained open. The personal scope of the application was extended to cover former officials and officers in organisations performing duties of a public nature requiring them to submit declarations of non-collaboration.
20. On 2 8 March 20 12 the Constitutional Court again invalidated several provisions of the Lustration Act, as amended by the 2011 Amendments (see the preceding paragraph 19 above ). In so doing, the Constitutional Court held that its earlier decision (see paragraph 1 5 above) had been circumvented in view of the content of those amendments.
21. On 17 July 2012 the Lustration Act was repealed by the entry into force of the new Lustration Act ( Закон за определување на услов за ограничување за вршење на јавна функција, пристап на документи и објавување на соработката со органите на државната безбедност ). In 2014 the Constitutional Court refused to institute proceedings for abstract constitutional review of the new legislation.
22. While the 2008 Lustration Act was in force the Lustration Commission established in a total of eleven cases that the declarations on non-collaboration were false, and that therefore the person who had submitted them did not meet the additional requirement for public office. Apart from the applicant, who was the only incumbent official whose declaration was found to be false, those cases concerned eight former officials and two journalists.
23. On 1 September 2015 the Act Repealing the 2012 Lustration Act ( Закон за престанување на важење на законот за определување на услов за ограничување за вршење на јавна функција ) entered into force. According to the Act the Lustration Commission is allowed to complete, within two years, any ongoing proceedings in which a decision has already been issued, but may no longer institute new ones. Pending lustration proceedings in which the Commission has not issued a decision must be discontinued. Section 3 of the Act provides that a person in respect of whom the Commission has established that he or she has collaborated with the State security services is banned from holding public office for the period of five years from the time the Commission ’ s decision to that effect becomes final.
B. The proceedings in the applicant ’ s case and the surrounding circumstances
24. The applicant was a judge of the Constitutional Court between 2003 and 2011, when he was dismissed as a result of the lustration proceedings described below (see paragraphs 2 5 -58 ). The applicant ’ s case was the first lustration case in the respondent State. During the lustration proceedings and at the time of his removal from office (see paragraph 56 below) the applicant was also the President of the Constitutional Court.
25. On 3 September 2009, the applicant, as a public official, submitted to the Lustration Commission a declaration of non-collaboration with the security services, as prescribed by section 6 of the Lustration Act (see paragraph 67 below).
26. On 5 July 2010 the Commission, by a letter classified as confidential, requested the State Archive to provide it with direct access to all the data, files and documents available in respect of the applicant.
27. On 12 and 22 July 2010 the State Archive informed the Commission that a personal record of the local branch of the secret police of the former Yugoslavia ( hereafter “ SFRY ” ) existed in respect of the applicant, and invited the Commission to consult the documentation.
28. On and around 15 September 2010, various media, despite the confidential nature of the proceedings before the Lustration Commission, reported that the Commission had allegedly identified a judge of the Constitutional Court as a collaborator with the State security services. In the following days the media continued to speculate that the identified collaborator was actually the President of the Constitutional Court.
29. During its deliberations held in private on 16 September 2010, the Lustration Commission found that the applicant ’ s declaration had not been in conformity with the evidence at its disposal. The applicant was notified of the Commission ’ s findings on 21 September 2010 with a note classified as “strictly confidential” ( строго доверливо). He was also instructed that, under the Lustration Act, he could, within five days, submit oral or written observations to the Commission ’ s findings. The applicant replied and requested a public session on 24 September 2010.
30. On 22 September 2010 the daily Utrinski vesnik published an article entitled ‘ Judge asks to speak publicly about being a ‘ snitch ’’. The relevant part of the article reads as follows:
“ Utrinski ‘ unofficially ’ learns that a Constitutional Court judge allegedly sinned during his high-school days, in the capacity of a member of a branch of an organisation called ‘ United for Macedonia ’ that was advocating unification of ethnic Macedonian territories. Once discovered, under pressure from the police, he was forced to disclose the names of the organisers.”
31. On 23 September 2010 the Commission notified the applicant that the session would be held on 27 September, that it would be public “ when classified information was not being used” and that he could access the entirety of the classified documentation at the Commission ’ s disposal for one hour before the session.
32. On 24 September 2010, in an open letter broadcast in the media and addressed to “opponents of the lustration”, the Prime Minister of the respondent State (signed in his capacity as president of the governing party) stated, inter alia, that the Commission had publicly revealed that a member of the Constitutional Court had been a collaborator with the State security services and that it was now crystal clear that the collaborator sitting in the Constitutional Court, nominated by the former president of the Republic, and controlled by other centres of power, had invalidated a number of the legislative reforms of his Government. The letter was a response to his political opponents, who claimed that he was hindering the lustration process. The Prime Minister described their strategy in the following terms :
“ Attack the [ruling party] to [protect] the Constitutional Court, whose member the [Lustration] Commission had publicly declared a collaborator with the secret services. Accuse [the Prime Minister] of hindering the lustration [process] so that [ he ] would not accuse you of it becoming crystal clear that the secret services ’ collaborator in the Constitutional Court scrapped a whole range of [the Prime Minister ’ s] reforms, and that [the Prime Minister] would not pose a question why [the former President of the Republic] nominated as judge of the Constitutional Court that person who was a collaborator with the [ secret ] services, and what is that centre of power which still controls the ‘ collaborator ’. ”
“ Нападни го ВМРО-ДПМНЕ, за да го затскриеш Уставниот суд за чиј член Комисијата јавно се изјасни дека бил соработник на тајните служби. Обвини го Груевски дека ја кочи лустрацијата, за да не те обвини Груевски дека стана кристално јасно дека соработник на тајни служби од Уставниот суд му сруши цела палета на реформи и за да не постави прашање зошто Бранко Црвенковски го предложи за судија на Уставен суд тоа лице кое било соработник на службите и кој е тој центар на моќ кој се уште го диригира ‘ соработникот ’. ”
33. On 24 September 2010 the applicant objected to the imposed time constraints regarding his access to the classified documents in the possession of the Commission (see paragraph 3 1 above). The Commission, in its turn, immediately informed him that he could consult his personal record compiled by the secret police of the SFRY at the State Archive as well as the documents at the disposal of the Commission, in the coming days until the session. The applicant consulted the documents at the Commission on the same day.
34. Those were the documents forming the applicant ’ s personal record compiled by the local branch of the SFRY secret police. The record contains around fifty pages of typed reports and forms. It appears from the record that the applicant was on 27 and 28 March 1964 interrogated by the secret police in connection with his involvement in a high-school nationalist group, and was registered as a collaborator under the pseudonym “ Lambe ”. The “proposal for registration” of 19 May 1964, signed by an inspector, I.K., states that the applicant was approached about collaboration with the secret police and that “he gladly agreed to it, [saying] that he would do anything for the [security] service, as long as his father and the school do not find out ”. A “questionnaire” with a handwritten date of 10 February 1965, states, inter alia, that the applicant was recruited on the ground of “compromising material” and that he had not received any material benefit in exchange for his collaboration. That the applicant was recruited on the ground of compromising material is also noted in another questionnaire of 10 January 1968 where, next to the pseudonym “ Lambe ”, there is a handwritten note “ and Lamda ”. The record contains a number of reports of various dates between 1964 and 1966, composed mostly by the inspector who relied on “ Lambe ” as a source of information, about conversations and statements of some high-school and university students on certain political and social issues at the time. “ Lambe ” provided the information mostly verbally; only a few reports in the file are based on his letters (which were not in the file). There are also copies of two payment receipts dated May and December 1 965 and a proposal of 1983 for deregistration of the collaborator “ Lamda ”. The deregistration referred to a person with the applicant ’ s name but who in the 1970s was a student at the Technical Faculty, and who in 1983 was working in the municipal branch of the Communist Party.
35. On 27 September 2010 the Commission held a public session on its premises, in a meeting room of around twenty square metres. A large number of media representatives were present.
36. During the session, the applicant denied the Commission ’ s initial findings, calling into question the veracity of his declaration. He disputed the authenticity of the documents the Commission relied on, as he had neither composed nor signed them, and claimed that the reports contained therein had been forged, or taken from others ’ and added to his personal record. He further denied the authenticity of the signatures on the two payment receipts, which indicated that he had received money for his collaboration. He alleged a confusion regarding the two different collaboration pseudonyms (“ Lambe ” and “ Lamda ”) appearing in the file, and the identity behind them. He also claimed that the episode from the time when he had still been a minor and had been coerced into having contact with the secret police, due to his involvement with a high-school nationalist group, had been misused.
37. On 28 September 2010 the Constitutional Court responded to the Prime Minister ’ s statement of 24 September 2010 (see paragraph 3 2 above) by means of an open letter. The relevant part of that letter reads as follows:
“ The Constitutional Court finds that this attack is the culmination of the continual attacks on the Constitutional Court. The court therefore points out that the Prime Minister went beyond powers conferred on him by the Constitution, because he has no right to assess the legitimacy of decisions taken by the Constitutional Court, but rather [ was obliged ] to ensure their unhindered implementation. The court considers that his actions indicate [either] profound ignorance, or total disrespect for the constitutional order, to the point of undermining it.
Using a single [ pending ] case ... to stigmatise a collective body reminds us of events from the past that must not be repeated in a democratic society.”
38. By a decision of 29 September 2010 the Commission held that the applicant ’ s objection to its initial findings of 16 September 2010 (see paragraph 29 above) was not in accordance with the information available, and that consequently he did not fulfil the additional requirement for holding public office. The decision was based on the applicant ’ s personal record, and contains a list of twenty-two documents. It summarised the contents of the documents and stated that the applicant had begun collaborating in 1964 and had been deregistered in 1983, that he had provided information on students whose activities were monitored by the security service for political reasons and that, as evident from the two payment receipts, he had in 1965 been paid for the collaboration. The relevant part of the Commission ’ s decision reads as follows:
“ ... From the data available in the personal record compiled by the [secret police of the SFRY] it was established that in the rubric ‘ collaboration relationship ’ it is stated that [the applicant] is a collaborator of the [secret police] recruited on the ground of compromising material. It was further established that [ the applicant ] started his collaboration with the [ secret police] as early as 1964 as a high-school student who, when it was proposed to him that he be registered in the collaborators ’ network, stated that ‘ he gladly accepted the collaboration and would do anything for the service ’, and that he was allocated a pseudonym under which he later delivered all the information to the [secret police]. In 1965 he officially became a collaborator of the [secret police]. In the documentation, in ten reports drafted by the Internal Affairs Unit in Strumica, on a number of pages, [ the applicant ] under his pseudonym appears as a source giving information about his schoolmates, which [information] was used by the [secret police] as operational material on the activities of high-school youth in Strumica. From four reports, it is apparent that also later on, as a student in Skopje, he gave information about students of various faculties, of which in the personal record there are five reports concerning a number of individuals whom the [secret police] monitored and had information that they were dissatisfied with the authorities in view of their weak interest in the situation of the Macedonians in the Aegean [in Greece] and Pirin [in Bulgaria] Macedonia, as well as for various wrongs committed against Macedonians in the western part of Macedonia. From the personal record it was also established that in 1965 the sums of 10,000 and 20,000 [Yugoslav] dinars had been paid to him. His collaboration officially ended in 1983 when he was employed in the Municipality of Karpoš and was deregistered from the active collaboration network.
The Commission took into account the oral observations provided by [the applicant ], in which he expressed his disagreement with the Commission ’ s findings.
The Commission considers all this information and the files and documents contained in the [applicant ’ s] record relevant. [It further] considers that that the [applicant ’ s] declaration [ of non-collaboration ] submitted to the Commission is not in line therewith [ the information, files and documents] and that therefore [ the applicant ] does not meet the additional requirement for public office in accordance with section 2( 1 ) [and] section 4( 4 ) of the [Lustration] Act.”
39. The Commission ’ s decision was served on the applicant on 30 September 2010 and classified as “strictly confidential”.
40. In an exchange of correspondence on 1 October 2010 the applicant requested that the Commission provide him with a copy of the file for the purposes of seeking a judicial review of its decision. The Commission informed him that they only had copies ( препис ), but that the originals were available in the State Archive; they advised him to look for them there. Upon the applicant ’ s request of the same day, the State Archive, either on the same day or on 4 October 2010, provided him with a copy of his personal record.
41. On 5 October 2010 the applicant pointed out inconsistencies between the files provided to him by the State Archive, the inventory of the documents contained in his record, and the documentation the Commission relied on in its decision. The State Archive responded that they had simply received the personal record as it was, and had listed the documents therein by title without inspecting their contents, as they had not been authorised to do so. Finally, they invited the applicant to consult the contents of his personal record under their supervision.
42. On 8 October 2010 the applicant brought an action for judicial review in the Administrative Court against the Commission ’ s decision. He complained that the proceedings before the Commission had been unfair and of errors of fact and law. In particular, he complained that the session before the Commission had been held without Rules of Procedure having been adopted, which the Commission should have done ex lege before commencing the proceedings. The public session had not been, as initially planned, followed by proceedings in camera (see paragraphs 3 1 and 3 5 -3 6 above), and he therefore had not had an opportunity to fully present his arguments concerning the classified information in the file.
43. The applicant further objected that the time-limit for the preparation of his appeal had been effectively reduced, since he had received the copies of the documents from the State Archive only on 5 October 2010 (see paragraphs 4 0 -4 1 above), and that there had been obvious discrepancies between the files of the State Archive and the ones of the Commission that he had earlier had access to. The applicant denied the authenticity of the documents in his personal record and suggested obtaining an opinion from an expert in graphology ( графолошко вештачење ) as regards the signatures on the two payment receipts by comparing them with the letters he had allegedly sent to the inspector of the secret police, to which letters reference was made in the record but which were not available in the file. He also submitted that his identity had been confused with that of the person behind the pseudonym “ Lamda ”, given that in 1983 he was already a law graduate and was working for the Skopje City administration and thus was not working at the municipal branch of the Communist Party, nor had he ever studied at the Technical Faculty as the record indicated (see paragraph 3 4 above). He proposed additional evidence, asked that a public hearing be held, and requested leave to invite an expert assistant ( стручен помагач ), in particular, a certain Mr I.B., a university professor of State security and intelligence and retired staff member of the SFRY secret police, with a view to clarifying the methods and practices of those police concerning the opening and the maintenance of records.
44. In its reply, the Commission firstly listed and made reference to twenty-two documents, and then also mentioned “forty-seven written documents”, on which it based its decision. The Commission ’ s reply was classified as “strictly confidential”.
45. On 26 October 2010 the Administrative Court held a public hearing in the presence of the applicant and the President of the Commission. The Commission lodged an objection about the Administrative Court ’ s competence ratione materiae to examine the case.
46. On 2 November 2010 the court held another hearing, at which the Commission withdrew its objection regarding the court ’ s jurisdiction (see the preceding paragraph 4 4 above), the expert assistant I.B. (see paragraph 43 above) gave his testimony and the evidence was examined. The public was excluded from the part of the hearing in which confidential material (the applicant ’ s personal record) was under consideration.
47. By a judgment of 8 November 2010 the Administrative Court dismissed the applicant ’ s action. In its judgment, this court listed twenty-seven documents, and found the Commission ’ s files identical to the originals received from the State Archive. The Administrative Court held that the Commission had neither been authorised nor obliged to determine the authenticity of certain evidence that could only be established by an expert opinion ( вештачења ) in criminal proceedings. It also held that the Commission did not conduct any adversarial proceedings and could admit as fact only the records compiled by the State security services. The applicant ’ s proposal to obtain an expert opinion with a view to checking the authenticity of the signatures on the payment receipts was rejected. The Administrative Court concluded that it had been immaterial ( беспредметно ) to determine whether the payments had been received by the applicant, as other (non-pecuniary) benefits could suffice for someone to be deemed a collaborator in terms of the Lustration Act. The judgment also took into account the testimony of the expert assistant I.B. Parts of the judgment were classified as “strictly confidential”.
48. The presiding judge was a certain Ms L.K., who was shortly afterwards, in March 2011, promoted to the newly established High Administrative Court.
49. The relevant part of the Administrative Court ’ s judgment reads as follows:
“ ... The plaintiff ’ s [the applicant ’ s] representative reiterated the arguments advanced in his action for judicial review, and expanded on them by stating that the Commission ’ s decision was ill- founded ... [He argued that] the Commission had not assessed the written evidence, because there was none. [ In particular, ] there was no statement from the plaintiff that he had agreed to collaborate with the [secret police], there was no written consent from him in this regard, and there was no written decision of the [secret police] in which the plaintiff ’ s consent to collaboration was accepted. Moreover, the Commission had made only a mechanical analysis by quoting and paraphrasing the documents available in personal record no. 12736 and on that basis had reached the wrong conclusion, failing to establish the facts ...
In view of the complexity of the case and for the purposes of clarification, the [Administrative] court, upon a proposal of the plaintiff, heard I.B. from Skopje in the capacity of an expert assistant ( стручен помагач ). The court also consulted ( изврши увид ) and compared the plaintiff ’ s personal record available in the State Archive with the copy of the same record delivered to the plaintiff.
The court, having assessed the [plaintiff ’ s] arguments in the statement of claim, the [Commission ’ s] reply [thereto], and the submissions made by the expert assistant I.B., [and] having examined the impugned decision within the scope of the action and in terms of section 37 of the Administrative Disputes Act, found:
According to section 10 of the [Administrative Disputes] Act, the administrative decision could be contested if the law was wrongly applied ... or if the proceedings which preceded the contested decision were not conducted in accordance with the rules of procedure, and in particular, if the facts were not established correctly, or if the facts were established correctly but assessed wrongly ...
According to section 4( 4 ) of the [Lustration] Act, collaboration, within the meaning of that Act, is conscious, secret, organised and continuous cooperation and activity with the State security services, established by a written document, in the a capacity of a secret collaborator or secret informant (hereafter ‘ secret collaborator ’ ) with a view to collecting information ... regarding certain persons, in violation of [their] basic rights and freedom on ideological-political grounds, as a result of which a material gain or other benefits in employment or career advancement had been obtained [by the collaborator] ...
Relying on the above, the court found that the Commission, acting within its competence ... and after having correctly conducted the fact- verification proceedings, made a lawful decision ...
It appears from the files that the plaintiff, on the basis of a written document, consciously, secretly, continuously and in organised way collaborated with the [ secret police], which collected information that were subject to processing, storage and use ... Such collaboration is apparent from the reports ... which could be found in the original personal record kept at the State Archive. Having in mind that the Commission only checks the facts concerning collaboration or non-collaboration with the State security services, and given that this [fact- verification procedure] is not an adversarial procedure, the records created by the services and their legal predecessors are to be accepted as facts [ thus as reliable evidence ] ...
In this court ’ s assessment, the argument that the plaintiff was prevented from active participation in the proceedings before the Commission ... is ill-founded, since the Commission provided him with access to all the evidence.
Regarding [the plaintiff ’ s] argument that ... the Commission ’ s session had been held without Rules of Procedure [having been adopted beforehand] ... this court finds it irrelevant ... The Rules are an internal regulation of the Commission and [thus only] regulate its internal functioning ... and not the fact - verification procedure [which] is prescribed by the [Lustration] Act.
This court finds ill-founded [the plaintiff ’ s] complaint that he had not been given an opportunity to contest the [factual findings of the Commission]. [He argued in particular that] ... the [Commission ’ s] session had ended after its first part, at the moment when he had expressed his disagreement with the ‘ facts ’ [underlying] the [Commission ’ s] findings ... in respect of which he had [also] made written submissions. [In his view] the Commission was obliged to hold a hearing, and not to treat the case as if no observations had been provided in accordance with section 29. [Such complaints] have no support in the evidence available in the file. As evident from the file, the Commission on 27 September 2010 held a public session in the part in which no classified information was under consideration. Having in mind that earlier, on 24 September 2010, the plaintiff had consulted the files and familiarised himself with their content, he had had the opportunity to provide his own observations at the session.
The court also finds ill-founded the plaintiff ’ s argument that the reports [contained in his personal record], in legal terms, could not be relied on to establish the facts, since they had many shortcomings, both formal and substantive, in particular none of the ten reports had been signed by an authorised person of the [secret police], no letter allegedly sent by the plaintiff had been appended to the reports, ... none of these reports had been entered in the official records of the [secret police], and all reports quote ‘ Lambe ’ as a source of information, while the Commission [ cites ] another pseudonym, ‘ Lamda ’. [The court finds that argument by the plaintiff ill-founded because ] the operation of the [secret police] was clarified by the expert assistant at the public hearing, who explained that it had had its own operational methodology for the purpose of gathering information, that was then subject to further processing, collection and use ... The court finds that assessment of the methodology of the [former secret police] is not in the competence of the Commission.
The court did not accept the plaintiff ’ s complaints that he was recruited as a collaborator while still a minor, because it is apparent from the evidence that he entered into collaboration and gave reports as an adult.
The court finds ill-founded the [plaintiff ’ s] arguments about errors of fact, [ in particular those where he complains] that the Commission did not take any evidence to establish whether the signatures on the payment receipts were identical with each other as well as with the plaintiff ’ s signature, which could have been easily established by obtaining an opinion from an expert in graphology, those whereby he calls into question the authenticity of the reports he received from the State Archive and [the veracity of] of their content, those [where he argues] that ... the [ secret police] registered him as a collaborator on the basis of bogus ( спакувани ) reports which were planted ( подметнати ) in his file and that he was not aware of nor had he consented to that [registration], as well as that there were obvious misinterpretation of the facts, since the file on a minor oppressed for his Macedonian nationalism had been transformed into the personal record of a secret collaborator. This [the court ’ s dismissal of these complaints] comes as a result of the fact that the Commission, after checking and verifying the data that was made available to it, correctly established that the plaintiff ... had been registered as a secret collaborator ... The Commission was establishing the facts was neither authorised nor legally bound to take evidence to establish the facts that could be established only through expert reports in criminal proceedings. ... The procedure is not adversarial and the records of the services of the former system are to be accepted as genuine [, meaning as reliable ] evidence. The plaintiff in his submissions pointed to possible criminal offences which, in addition to the Criminal Code, are also sanctioned by sections 36 and 37 of the [Lustration] Act. The proceedings before the Commission do not bar the plaintiff from initiating other proceedings in which he could prove his allegations.
On the other hand, after checking the plaintiff ’ s personal record, the court established that only a few reports were delivered in writing, and that most of the reports were provided through direct contacts.
In view of the above the court did not grant the request ... for the letters written by the plaintiff mentioned in [some] reports drafted by the inspector of the State security service to be obtained with a view to obtaining an opinion from an expert in graphology on the signatures and the handwriting on the payment receipts.
It is also immaterial whether payments were made or not, since this is only one of the conditions for establishing that collaboration took place, bearing in mind that section 4( 4 ) of the [Lustration] Act, when stipulating what is considered collaboration, states that [not only] material gain [but also] other benefits or career advancement [may suffice]. ”
50. In his appeal of 25 November 2010 to the Supreme Court, the applicant reiterated his earlier arguments and expressed misgivings about the overall fairness of the proceedings and errors of fact and law. He pointed out that the number of pages and the inventory of the documentary evidence quoted in various acts produced by the State authorities had differed. He further complained that the Administrative Court had completely misinterpreted the submissions made by the expert assistant, and annexed an additional written statement by I.B. He also objected to the Administrative Court ’ s finding on the Commission ’ s powers, and complained that the Administrative Court had therefore failed to fully establish the facts, and had not ordered any expert opinion to establish or otherwise the authenticity of the documents and signatures on the payment receipts. The Commission submitted a reply to the applicant ’ s appeal, whereupon the applicant provided a response to the Commission ’ s reply.
51. By a judgment of 2 March 2011 the Supreme Court dismissed the applicant ’ s appeal and upheld the judgment of the Administrative Court. The Supreme Court stated, inter alia, that it had checked the “original documentation” and concluded that the facts had been correctly established. It further addressed and analysed the applicant ’ s remaining complaints, and concluded that they were of no relevance and could not produce a different outcome. As for the authenticity of the documents, including the signatures on the receipts, the Supreme Court dismissed the applicant ’ s arguments, finding that no formal procedures existed at the time when these documents were produced.
52. Judge V.S. – who would later be appointed a judge of the Constitutional Court to fill the vacancy caused by the applicant ’ s dismissal (see paragraph 5 7 below) – sat in the panel and, according to the applicant, also acted as a rapporteur (известител ) in the case.
53. The relevant part of the Supreme Court ’ s judgment reads as follows:
... From the evidence taken during the proceedings, primarily the reports in the personal record established in respect of the appellant, it can be indisputably concluded that he, on the basis of a written document, consciously, secretly, continuously and in an organised manner collaborated with the [former secret police]. Relying on the statements of the secret collaborator – the appellant – the [secret police] gathered information that was processed, stored and used by the [secret police] ... In such a way, the human rights of those people [who were then followed by the State security service] were violated on political or ideological grounds.
Bearing in mind the definition of collaboration contained in the [Lustration] Act, the Administrative Court correctly concluded that the appellant had at the material time the status of a secret collaborator or informant.
The arguments adduced in the appeal regarding discrepancies between the data obtained from the State Archive and those relied on by the Commission, whereby the appellant disputes the authenticity of the evidence, are ill-founded.
In the Supreme Court ’ s opinion, the facts established by the first-instance court are correct and complete, as they are based on careful and thorough assessment of every piece of evidence separately and of all the evidence taken together ... Assessing the complaints regarding the facts, the Supreme Court also checked the original documentation and finds these complaints ill-founded, since the appellant did not submit any evidence that could call into question the facts as established by the first-instance court.
The Supreme Court finds irrelevant in respect of the possibility of a different outcome the complaints that the applicant was not a collaborator but an oppressed person on whom a political file was opened because of ideas he had, as a minor during high-school days, on the independence of the Macedonian people.
Specifically, the appellant was as a high-school student initially registered by the [secret police] for hostile activities and Macedonian nationalism. However, he continued to collaborate with the service and was approached about being registered in the network of collaborators. In 1965 the appellant was officially registered as a collaborator, when he had already reached the age of eighteen. From the documents available it is apparent that the applicant collaborated with the State security services as an adult.
The appellant ’ s submissions that he never consented to collaboration and that there is no evidence of registration or deregistration, could not lead to factual findings different from those already established by the first-instance court.
According to the expert assistant ’ s statement at the public hearing before the Administrative Court, the consent of the collaborator was in no way needed, given the secrecy of the procedure. The proposal for deregistration is in the name of Trendafil Ivanovski, with an identical file number to that under which he had been registered as collaborator. These data correspond with what is already recorded in various documents and about which there is no doubt that they refer to the appellant. According to the Supreme Court, these data could not be disregarded just because the pseudonyms do not match.
The complaints that the reports composed by the [secret police], based on the information provided by the appellant, could not be regarded as [reliable evidence], are ill-founded. The Supreme Court finds that the procedure for receiving information was not strictly formalised. The reports were, as clarified by the expert assistant, usually given verbally. From the above, it is apparent that to be considered as genuine, it was not necessary that the content of the record, or of the report composed by an authorised person of the [secret police], be supported by a written statement by the collaborator.
The appellant denies the authenticity of his signature on the payment receipts.
The Supreme Court finds that, in a situation in which no rules ( правилник ) for payment existed, given that, as stated by the expert assistant, the payments were usually made in cash, it would suffice to have the name of the collaborator mentioned as a recipient [of the money], to conclude that material gain was obtained.
As the first-instance court correctly and fully established the decisive facts it also correctly applied the substantive law when it dismissed the appellant ’ s action. ”
54. The applicant was served with the Supreme Court ’ s judgment on 9 March 2011.
55. On 11 March 2011, the Commission concluded that its decision of 29 September 2010 had become final.
56. On 11 April 2011, relying on the Lustration Act and the Commission ’ s conclusion of 11 March 2011, the Parliament acknowledged that the applicant had not fulfilled the additional requirement, and accordingly dismissed him from the office of judge of the Constitutional Court, despite the experts ’ debates about the constitutionality of such an action. On the same day, the Parliament ’ s decision was published in the Official Gazette.
57. On 14 April 2011, during its last session before early elections, the Parliament appointed Judge V.S. (see paragraph 52 above) as a judge of the Constitutional Court to the position vacated by the applicant ’ s dismissal.
58. The proceedings were closely followed by the international community present in the respondent State, and were referred to in various reports, most notably the European Commission ’ s Progress Report of 9 November 2010, which states that the ongoing lustration proceedings against the applicant “have raised concerns about pressure on the independence of the judiciary” (see paragraph 1 0 9 below). The United States Department of State Human Rights reports of 2010 and 2011 also made references to the applicant ’ s case and the tensions between the Government and the Constitutional Court.
59. Meanwhile, on 8 March 2011 the Commission filed a criminal complaint with the Skopje Public Prosecution Office against the applicant alleging that by submitting a false declaration of non-collaboration with the State security services he had committed the criminal offence of submitting false evidence defined in Article 366a of the Criminal Code (see paragraphs 79 and 97 below ).
60. On 29 April 2011 the public prosecutor dismissed the criminal complaint, finding no elements of the offence in question. In her reasoning, the public prosecutor held in particular that in the proceedings before the Commission evidence was not taken or assessed in an adversarial manner or in accordance with the principle of immediacy, as only the official records of the State security services were used as relevant for the outcome of the proceedings. The applicant ’ s declaration thus did not constitute evidence but an act giving rise to the lustration proceedings.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Lustration Act and related subordinate legislation
61. Relevant provisions of the Additional Requirement for Public Office Act ( Закон за определување дополнителен услов за вршење на јавна функција, Official Gazette nos. 14/2008 and 64/2009 ), as applicable at the material time, provided as follows:
62. Section 1 stipulated that the Act regulated the additional requirement for holding a public office, the composition and the functioning of the Fact Verification (Lustration) Commission as well as the verification procedure before the Commission and the courts.
63. Section 3 effectively banned from holding public office officials (order-issuers) of the secret services of the former regime by stating that the additional requirement was also fulfilled if the holder or candidate for public office had not ordered the collection of information or used information collected by secret collaborators or secret informants.
64. Section 2 banned from holding public office those who had collaborated with the secret services of the former regime by providing that the additional requirement for public office was fulfilled if the holder or candidate for public office (hereafter “the person concerned”) had not been, between 2 August 1944 and the date of the Act ’ s entry into force, registered as a secret collaborator or secret informant in the files of the State security services maintained for the collection of information on individuals, in violation of human rights on political or ideological grounds.
65. Section 4 defined collaboration as conscious, secret, organised and continuous cooperation, established by a written document, with the State security services, in the capacity of secret collaborator or secret informant, in the course of collection of information regarding an individual in violation of human rights on ideological-political grounds in return for material gain for the collaborator/informant, employment privileges or career advancement.
66. Section 5 contained a list of public offices subject to the additional requirement, which included the President of the Republic, members of Parliament, ministers and the Prime Minister, mayors and municipal councillors, all public officials appointed by the Parliament, judges and members of the Judicial Council, prosecutors and members of the Public Prosecutor ’ s Council, the Ombudsman and his deputies, the directors of all administrative bodies, the Public Attorney and his deputies, the Governor, Vice-Governor and members of the Council of the National Bank, secretaries-general and their deputies of all institutions, civilian and military staff in the Ministry of the Interior, Ministry of Defence, Army and prison authorities, members of the Macedonian Academy of Science and Art, founders and academic staff of public and private universities, managers and board members of public enterprises, institutions and State funds, notaries, bailiffs, practising advocates, mediators, civil servants, diplomats, persons appointed to international organisations, and holders of public office or those vested with public powers in other public services.
67. Section 6 provided that the person concerned had to submit to the Commission a written statement, made before a notary, of his or her non-collaboration (“the declaration”) with the State security services. This section also defined the exact wording of the declaration.
68. Section 7 stipulated that in verification proceedings the person concerned was relieved of the obligation to keep secret the classified information they had become aware of during their collaboration with the State security services.
69. Section 8 envisaged that the Commission had to, of its own motion and without discussion, acknowledge any failure on the part of the person concerned to submit the declaration and publish his or her name in the Official Gazette.
70. Section 10 stated that failure to submit the declaration amounted to non-fulfilment of the requirement for the holding of public office.
71. Section 13 stipulated that the name of the person concerned who had been identified by the Commission as a collaborator had to be published in the Official Gazette.
72. Section 14 established the Commission as an independent authority financed from the State budget. Section 15 stipulated that the Commission was to be composed of a president, a deputy president and nine other members, elected by the Parliament by a qualified two-thirds majority for a five-year term. The Parliament, from among the Commission members, also elected the president and deputy president of the Commission, with a six-month term of office. Members of the Commission had to be persons of high moral and professional integrity. Membership of the Commission was a professional function incompatible with other professional activity or duties.
73. Section 17 regulated the functioning of the Commission. The Commission were to deliberate on a session in the presence of two-thirds of its members; its decisions had to be adopted by a majority of its members. The Commission had to adopt Rules of Procedure.
74. Section 19 provided that membership of the Commission was incompatible with membership of a governing body of a political party, with a conviction attracting a prison term of more than six months, with a sanction banning the exercise of a profession or activity, and also with being a former president of the Republic, the Parliament or the Government, Deputy Speaker of the Parliament or Deputy Prime Minister, minister, staff member of, or appointed official in the State security services.
75. Section 22 obliged the Department of Security and Counter-Intelligence within the Ministry of the Interior, the Department of Security and Counter-Intelligence within the Ministry of Defence, the Intelligence Agency, and the State Archive, to make available to the Commission all relevant data, files and other documents in accordance with the conditions prescribed in separate legislation.
76. Sections 24 to 29 regulated the procedure before the Commission. According to these sections, the Commission had to notify the person concerned that his or her statement was not in accordance with the information made available to the Commission, and had to invite him or her to provide written or oral observations within five days. The session of the Commission had to be held in private. However, if the person concerned so requested, a public session had to be held except when classified information was being examined. Within three days, the Commission had to adopt a decision that the objection of the person concerned was not in accordance with the available information and that the additional requirement had accordingly not been fulfilled.
77. Section 27 stipulated that the person concerned who disputed the Commission ’ s initial findings or the information delivered to the Commission by the relevant authority could, within eight days of service of the decision, initiate proceedings before a competent court. Such court proceedings were based on the principles of priority and urgency. The competent court had to commence the proceedings within five days.
78. Sections 30 to 35 set out the additional requirement for founders and employees of legal entities performing various activities of public interest, such as media, law firms, and academic institutions. Section 34, in particular, also provided for the possibility of introducing, by internal regulations, the additional requirement in respect of members of the governing bodies and employees of political parties, civic (non-governmental) organisations, and religious communities.
79. Sections 36 to 38 contained penal provisions regarding destruction, deletion, modification or publication of information related to collaboration with the State security services. It was also envisaged here that a person who had made a false declaration of non-collaboration would bear the consequences in accordance with the Criminal Code.
80. Section 42 provided that the Act would be applicable for ten years after the election of the Commission.
81. On 24 March 2010 the Constitutional Court invalidated the part of section 2 concerning the screening period for lustration purposes in so far as it extended beyond the date of adoption of the current Constitution of the respondent State (17 November 1991). It also invalidated parts of sections 8 and 13 concerning the publication of collaborators ’ names in the Official Gazette, and section 34, which provided for the possibility of prescribing non-collaboration with the State security services as an additional requirement for membership of governing bodies of some non-State entities such as political parties, civic organisations and religious communities (see paragraphs 15-16 above).
2. Commission ’ s Rules of Procedure
82. The Commission ’ s Rules of Procedure adopted on 14 July 2009 ( Деловник на Комисијата за верификација на фактите ), as available on the Commission ’ s website, regulate the internal organisation and functioning of the Commission. The Rules were not published in the Official Gazette, and on an unknown date were made available on the Commission ’ s website.
83. Rule 2 stipulates that the Commission shall deliberate in public session. Exceptionally, sessions shall be held in private only when the concerned person provides his or her observations (unless he or she has requested in writing that that session be held in public) and when classified information is under consideration. Rule 6 sets out that the agenda for the Commission session, together with the accompanying materials, shall be distributed three days in advance. Rule 9 says that the session shall be chaired by the president of the Commission. Rule 10 sets out that the Commission ’ s session may be attended by national or foreign experts, as well as by others, whose expert opinion may be asked for only if they have been invited to the session. Rule 13 states that the Commission deliberates the items on the session ’ s agenda and that the rapporteur for each item provides additional clarifications. Rule 14 sets out the possibility of postponing certain items on the agenda for additional experts ’ consultations. Rule 19 stipulates that the Commission shall institute proceedings of its own motion or upon a written and reasoned civic initiative. Rule 21 states that the Commission shall make initial findings and invite the person concerned to provide their observations within five days. Rule 22 stipulates that after the concerned person has been heard, the Commission shall within three days either stop the proceedings or decide that the concerned person ’ s objection was not in accordance with the information available and therefore the additional requirement was not fulfilled.
84. Relevant provisions of the Administrative Disputes Act ( Закон за управните спорови, Official Gazette no. 62/2006) provide as follows:
85. Section 1 states that for the purposes of ensuring judicial review, the Administrative Court shall decide in administrative-dispute (judicial review) proceedings on the lawfulness of decisions (“administrative acts”) of administrative authorities, the Government and other State or public authorities ( hereafter “ public entities ”) when, in the exercise of their public powers, they decide on rights and obligations of individuals or legal entities in administrative matters.
86. Section 9 stipulates that administrative- dispute proceedings cannot be instituted if another judicial avenue of redress has been secured.
87. Section 10 provides that administrative acts may be contested for: (a) misapplication of substantive law, ( b) lack of jurisdiction, or (c) procedural errors or incorrect findings of fact.
88. Section 19 stipulates that administrative dispute shall be instituted by bringing an action for judicial review.
89. Section 26 stipulates that the Administrative Court shall declare an action for judicial review inadmissible if, inter alia, the contested decision does not constitute an administrative act, or the law rules out the possibility of instituting an administrative dispute in the particular case.
90. Section 31 provides for a party to be given leave to have an expert assistant ( стручен помагач ) in matters where particular expertise is needed.
91. Section 36 determines that the Administrative Court shall decide cases, as a rule, on the basis of the facts established in the administrative proceedings before the public entity whose decision is being contested, or on the basis of the facts established by the court itself. The Administrative Court shall quash the contested decision and remit the case if it finds that the facts have not been correctly established, or for procedural errors. When the evidence suggests that the facts are different from those established by the public entity in the administrative proceedings, the Administrative Court may establish the facts and decide the case itself. In such cases the facts are determined at a hearing in the presence of the parties.
92. Section 39 prescribes that the Administrative Court shall either (a) dismiss the administrative action, or (b) quash the contested decision and remit the case to the public entity. The judgment may be appealed against.
93. Section 40 enumerates several situations in which the Administrative Court, if it finds the action well-founded, does not have to remit the case but may decide the case on the merits by a decision entirely replacing the contested decision of the public entity.
94. Section 43 sets out the possibility of having the proceedings reopened upon a judgment of the European Court of Human Rights.
95. Section 44 stipulates that reopening could be sought within thirty days of the party becoming aware of the ground for reopening. Reopening may not be sought after five years have passed since the decision became final.
96. Section 51 provides that if the Administrative Disputes Act does not contain specific provisions on the administrative-dispute procedure, the provisions of the Civil Procedure Act should apply mutatis mutandis.
97. The relevant provision of the Criminal Code ( Кривичен законик, Official Gazette no. 37/1996 with subsequent amendments) reads as follows:
Submitting false evidenceArticle 366a( 1)
“Anyone who, in proceedings before a court or in administrative proceedings, submits evidence they know to be false shall be punished by imprisonment of one to three years.”
D. Processing of Personal Files of the State security Service Act
98. Processing of Personal Files of the State security Service Act ( Закон за постапување со досиеја за лица водени од Службата за државна безбедност, Official Gazette no. 52/2000), regulated the procedure for obtaining information and access to personal files maintained by the Ministry of the Interior from 1945 until this Act ’ s entry into force in 2000.
99. Section 2 defined a personal file as a documentary folder created and maintained by the State security services in respect of a particular individual, on ideological and political grounds. Section 3 provided for the opportunity for every Macedonian national who believed that a personal file had been opened on him or her to seek access to that file. Section 7 set out that access could be sought within a year of the Act ’ s entry into force (hereafter “ the access period”). Sections 16 and 17 stipulated that the files had to be sorted by a special commission and those of cultural, historical or scientific relevance transferred to the State Archive within six months of the expiry of the access period (Section 7). The transferred files were no longer classified information and their storage was regulated in accordance with the provisions of the Archived Materials Act.
E. The Archived Materials Act and related subordinate legislation
100. The Archived Materials Act ( Закон за архивската граѓа, Official Gazette nos. 36/90, 36/95 and 86/2008) regulates the protection, storage and use of the archived materials. It defines the archiving of materials as a matter of public interest. Section 2 defines the archived materials as original or reproduced (written, printed, taped, filmed or otherwise recorded) documents of permanent value and relevance for the State, science or culture. Section 7 provides that the State Archive shall be in charge of the protection, storage and use of the archived materials. Section 8 stipulates that the archived materials shall be publicly accessible under the terms prescribed by this Act, the rules on access to public information, and other relevant legislation.
101. Section 20 states that archived materials shall be accessible for scientific, research and other needs of the citizens as well as in the exercise of the public powers of the State or public authorities.
102. According to section 21, the archived materials shall be made accessible after the time-limits set, but no longer than twenty years after the creation of a particular item. However, longer time-limits, of up to 150 years, may be set by the Government.
103. Section 34 enumerates the duties of the State Archive, in particular receiving, record- keeping, sorting, storing and preserving archived materials.
2. Government Decree on the criteria for longer time-limits for the use of archived materials
104. The Government Decree on the criteria for longer time-limits for the use of archived materials ( Уредба за утврдување критериуми за подолги рокови за користење на архивската граѓа, Official Gazette no. 31/96) derogates from the general time-limit in section 21 of the Archived Materials Act (see paragraph 1 0 2 above ), and fixes longer periods for the access and use of archived material. The Decree prescribes longer periods for, inter alia, documents which are sensitive in connection with the State ’ s territorial integrity, sovereignty, independence, defence and security ( seventy-five years), for materials which may adversely affect and limit human rights, personal and family integrity, in particular national feelings, religious or political beliefs, incite discrimination or national hatred ( twenty years from the person ’ s death or 100 years from the date of the person ’ s birth if the date of death is unknown) as well as for personal files (up to 100 years from the date of the person ’ s birth).
105. Section 177 of the Civil Procedure Act ( Закон за парничната постапка, Official Gazette nos. 79/2005, 11/2008 and 83/2009 states that a plaintiff may bring an action asking the civil court merely to establish the existence or non-existence of a right or legal relationship, or the authenticity or inauthenticity of a document. Such an action may be brought when foreseen by special provisions or when the plaintiff has a legal interest in doing so.
III. RELEVANT COUNCIL OF EUROPE DOCUMENTS
A. Parliamentary Assembly Resolution 1096 (1996) on measures to dismantle the heritage of former communist totalitarian systems
106. On 27 June 1996 the Parliamentary Assembly of the Council of Europe adopted Resolution 1096 (1996) on measures to dismantle the heritage of former communist totalitarian systems (hereafter “ the PACE Resolution”). The relevant part of that Resolution reads as follows :
“1. The heritage of former communist totalitarian systems is not an easy one to handle. On an institutional level this heritage includes (over)centralisation, the militarisation of civilian institutions, bureaucratisation, monopolisation, and over ‑ regulation; on the level of society, it reaches from collectivism and conformism to blind obedience and other totalitarian thought patterns. To re-establish a civilised, liberal state under the rule of law on this basis is difficult - this is why the old structures and thought patterns have to be dismantled and overcome. ...
4. Thus a democratic state based on the rule of law must, in dismantling the heritage of former communist totalitarian systems, apply the procedural means of such a state. It cannot apply any other means, since it would then be no better than the totalitarian regime which is to be dismantled. A democratic state based on the rule of law has sufficient means at its disposal to ensure that the cause of justice is served and the guilty are punished - it cannot, and should not, however, cater to the desire for revenge instead of justice. It must instead respect human rights and fundamental freedoms, such as the right to due process and the right to be heard, and it must apply them even to those people who, when they were in power, did not apply them themselves. A state based on the rule of law can also defend itself against a resurgence of the communist totalitarian threat, since it has ample means at its disposal which do not conflict with human rights and the rule of law, and are based upon the use of both criminal justice and administrative measures ...
7. The Assembly also recommends that criminal acts committed by individuals during the communist totalitarian regime be prosecuted and punished under the standard criminal code. If the criminal code provides for a statute of limitations for some crimes, this can be extended, since it is only a procedural, not a substantive matter. Passing and applying retroactive criminal laws is, however, not permitted. On the other hand, the trial and punishment of any person for any act or omission which at the time when it was committed did not constitute a criminal offence according to national law, but which was considered criminal according to the general principles of law recognised by civilised nations, is permitted. Moreover, where a person clearly acted in violation of human rights, the claim of having acted under orders excludes neither illegality nor individual guilt. ...
9. The Assembly welcomes the opening of secret service files for public examination in some former communist totalitarian countries. It advises all countries concerned to enable the persons affected to examine, upon their request, the files kept on them by the former secret services. ....
11. Concerning the treatment of persons who did not commit any crimes that can be prosecuted in accordance with paragraph 7, but who nevertheless held high positions in the former totalitarian communist regimes and supported them, the Assembly notes that some states have found it necessary to introduce administrative measures, such as lustration or de-communisation laws. The aim of these measures is to exclude persons from exercising governmental power if they cannot be trusted to exercise it in compliance with democratic principles, as they have shown no commitment to or belief in them in the past and have no interest or motivation to make the transition to them now.
12. The Assembly stresses that, in general, these measures can be compatible with a democratic state under the rule of law if several criteria are met. Firstly, guilt, being individual, rather than collective, must be proven in each individual case - this emphasises the need for an individual, and not collective, application of lustration laws. Secondly, the right of defence, the presumption of innocence until proven guilty, and the right to appeal to a court of law must be guaranteed. Revenge may never be a goal of such measures, nor should political or social misuse of the resulting lustration process be allowed. The aim of lustration is not to punish people presumed guilty - this is the task of prosecutors using criminal law - but to protect the newly emerged democracy.
13. The Assembly thus suggests that it be ensured that lustration laws and similar administrative measures comply with the requirements of a state based on the rule of law, and focus on threats to fundamental human rights and the democratisation process. Please see the ‘ Guidelines to ensure that lustration laws and similar administrative measures comply with the requirements of a state based on the rule of law ’ as a reference text.
14. Furthermore, the Assembly recommends that employees discharged from their position on the basis of lustration laws should not in principle lose their previously accrued financial rights. In exceptional cases, where the ruling elite of the former regime awarded itself pension rights higher than those of the ordinary population, these should be reduced to the ordinary level. ...”
B. Guidelines to ensure that lustration laws and similar administrative measures comply with the requirements of a state based on the rule of law
107. The Council of Europe Guidelines referred to in the above Resolution read as follows:
“ To be compatible with a state based on the rule of law, lustration laws must fulfil certain requirements. Above all, the focus of lustration should be on threats to fundamental human rights and the democratisation process; revenge may never be a goal of such laws, nor should political or social misuse of the resulting lustration process be allowed. The aim of lustration is not to punish people presumed guilty — this is the task of prosecutors using criminal law — but to protect the newly-emerged democracy.
a. Lustration should be administered by a specifically created independent commission of distinguished citizens nominated by the head of state and approved by parliament;
b. Lustration may only be used to eliminate or significantly reduce the threat posed by the lustration subject to the creation of a viable free democracy by the subject ’ s use of a particular position to engage in human rights violations or to block the democratisation process;
c. Lustration may not be used for punishment, retribution or revenge; punishment may be imposed only for past criminal activity on the basis of the regular Criminal Code and in accordance with all the procedures and safeguards of a criminal prosecution;
d. Lustration should be limited to positions in which there is good reason to believe that the subject would pose a significant danger to human rights or democracy, that is to say appointed state offices involving significant responsibility for making or executing governmental policies and practices relating to internal security, or appointed state offices where human rights abuses may be ordered and/or perpetrated, such as law enforcement, security and intelligence services, the judiciary and the prosecutor ’ s office;
e. Lustration shall not apply to elective offices, unless the candidate for election so requests — voters are entitled to elect whomever they wish (the right to vote may only be withdrawn from a sentenced criminal upon the decision of a court of law — this is not an administrative lustration, but a criminal law measure);
f. Lustration shall not apply to positions in private or semi-private organisations, since there are few, if any, positions in such organisations with the capacity to undermine or threaten fundamental human rights and the democratic process;
g. Disqualification for office based on lustration should not be longer than five years, since the capacity for positive change in an individual ’ s attitude and habits should not be underestimated; lustration measures should preferably end no later than 31 December 1999, because the new democratic system should be consolidated by that time in all former communist totalitarian countries;
h. Persons who ordered, perpetrated, or significantly aided in perpetrating serious human rights violations may be barred from office; where an organisation has perpetrated serious human rights violations, a member, employee or agent shall be considered to have taken part in these violations if he was a senior official of the organisation, unless he can show that he did not participate in planning, directing or executing such policies, practices, or acts;
i. No person shall be subject to lustration solely for association with, or activities for, any organisation that was legal at the time of such association or activities (except as set out above in sub-paragraph h ), or for personal opinions or beliefs;
j. Lustration shall be imposed only with respect to acts, employment or membership occurring from 1 January 1980 until the fall of the communist dictatorship, because it is unlikely that anyone who has not committed a human rights violation in the last ten years will now do so (this time-limit does not, of course, apply to human rights violations prosecuted on the basis of criminal laws);
k. Lustration of ‘ conscious collaborators ’ is permissible only with respect to individuals who actually participated with governmental offices (such as the intelligence services) in serious human rights violations that actually harmed others and who knew or should have known that their behaviour would cause harm;
l. Lustration shall not be imposed on a person who was under the age of 18 when engaged in the relevant acts, in good faith voluntarily repudiated and/or abandoned membership, employment or agency with the relevant organisation before the transition to a democratic regime, or who acted under compulsion;
m. In no case may a person be lustrated without his being furnished with full due process protection, including but not limited to the right to counsel (assigned if the subject cannot afford to pay), to confront and challenge the evidence used against him, to have access to all available inculpatory and exculpatory evidence, to present his own evidence, to have an open hearing if he requests it, and the right to appeal to an independent judicial tribunal. ”
C. Venice Commission amicus curiae brief of 17 December 2012
108. The Venice Commission has reached the following main conclusions in its amicus curiae brief in the abstract constitutional review proceedings before the Constitutional Court of the respondent State concerning the new Act on Determination of a Criterion for Limiting the Exercise of Public Office, Access to Documents and Publishing on Cooperation with State security Bodies:
“a) Introducing lustration measures a very long time after the beginning of the democratization process in a country risks raising doubts as to their actual goals. Revenge should not prevail over protection of democracy. Cogent reasons are therefore required.
As the purpose of lustration is to bar people with an anti-democratic attitude from office, and as the possibility of positive changes in the attitude and conduct of a person should not be underestimated, applying lustration measures to acts dating back to 21 to 68 years (or even 31-78 years by the time the Lustration Law will expire) may – if at all – be justified on the basis of the most serious forms of crime, in particular massive and repeated violation of fundamental rights which would also give rise to substantial custodial sentence under criminal law.
Applying lustration measures in respect of acts committed after the end of the totalitarian regime may only be justified in the light of exceptional historic and political conditions, and not in a country with a long-established framework of democratic institutions, as a democratic constitutional order should defend itself directly through the implementation of the rule of law and the safeguards of human rights protection. Political, ideological and party reasons should not be used as grounds for lustration measures, as stigmatization and discrimination of political opponents do not represent acceptable means of political struggle in a state governed by the rule of law.
As concerns the duration of the lustration measures, it should depend on the one hand on the progress in establishing a democratic state governed by the rule of law and on the other hand on the capacity for a positive change in attitude and habits of the subject of lustration. A fixed duration for each lustration measure should be provided in order to avoid discriminatory treatment of persons in comparable situation on the basis of when the lustration measures are adopted.
b) The application of lustration measures to positions in private or semi-private organisations goes beyond the aim of lustration, which is to exclude persons from exercising governmental power if they cannot be trusted to exercise it in compliance with democratic principles.
The contested connection with the totalitarian regime must be defined in a very precise manner.
c) The absence of the person concerned from the procedure before the Commission on Verification of the Facts is at variance with his or her defence rights, notably the right to equality of arms. The procedure before the Verification Commission and the appeal procedure should be regulated in great detail in order to comply with the principles of the rule of law and due process of law.
d) The name of the person who is deemed to be a collaborator should only be published after the final decision by a court, as only in case collaboration is finally proven may the adverse effects of publication on that person ’ s reputation be considered to be a proportionate measure necessary in a democratic society.”
IV. RELEVANT EUROPEAN UNION DOCUMENTS
109. The relevant part of the European Commission ’ s Progress Report of 9 November 2010 reads as follows:
“The Prime Minister, the Minister of Justice, the Speaker and several MPs [of the ruling party] openly criticised the work and the decisions of the Constitutional Court, considering them to be politically motivated. The President of the Constitutional Court defended the Court and called on the political parties to respect the Court ’ s authority. The implementation of the 2008 Law on lustration resulted in a first case when the lustration committee found that the President of the Constitutional Court cooperated with the secret services. The President of the Constitutional Court denied these allegations. These developments have raised concerns about pressure on the independence of the judiciary.”
I. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION
110. The applicant complained under Article 6 of the Convention about the overall unfairness of the lustration proceedings.
111. He further complained that the Commission and the courts lacked impartiality and independence, given the functioning and the composition of the Commission, the promotions of certain judges who had been sitting in his case, and the public statement made by the Prime Minister, which reflected the political influence exerted by the Government.
112. Under that Article, the applicant also complained that the principles of equality of arms and adversarial proceedings had been violated. This was so, on the one hand, because of the continuous pressure exerted on him not to reveal classified information, the short time-limits for the preparation of arguments, and his limited access to the files, and, on the other hand, because of unauthorised and unlimited access by others to those files.
113. The applicant further complained of lack of access to court, since the courts had not established full jurisdiction over the facts of the case, and had erred on the facts. Moreover, he argued that he could not have effectively challenged the decisive evidence against him, which had put him in a disadvantaged position vis-à-vis the State.
114. The applicant also alleged arbitrariness in assessing the evidence and a lack of reasoning in the decisions.
115. Lastly, the applicant complained of a violation of the presumption of innocence under Article 6 § 2, and of his defence rights under Article 6 § 3 (b) and (d).
116. The relevant part of Article 6 of the Convention reads as follows:
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights ...
(b) to have adequate time and facilities for the preparation of his defence ...
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him ...”
117. The Court notes that there was no dispute between the parties that Article 6 was applicable to the lustration proceedings complained of. They however disagreed on the issue of whether that Article was applicable under its civil or criminal head. Whereas the Government submitted that Article 6 was applicable under its civil head, the applicant, relying on the Matyjek case (see Matyjek v. Poland (dec.), no. 38184/03, §§ 43-59, ECHR 2006), suggested that the said Article was applicable under its criminal head.
118. The Court reiterates that applicability of Article 6 to lustration-related proceedings depends on the specific circumstances of each case. For example, in the case of Sidabras and Džiautas v. Lithuania ((dec.), nos. 55480/00 and 59330/00, ECHR 1 July 2003), the Court found that Article 6 was inapplicable to such proceedings. In the case of Rainys and Gasparavičius v. Lithuania ((dec.), nos. 70665/01 and 74345/01, ECHR 22 January 2004), the Court found Article 6 to be applicable under its civil head only, whereas in the Matyjek case (cited above, loc. cit.) and a number of follow-up cases against Poland (see, for example, Bobek v. Poland, no. 68761/01, 17 July 2007, and Mościcki v. Poland, no. 52443/07, 14 June 2011 ) it held that this Article was applicable under its criminal head.
119. In the present case, the direct consequence of the lustration proceedings was that the applicant was dismissed from the office of judge of the Constitutional Court and banned from practising law or holding public office until March 2016 (see paragraphs 10-11, 2 3, 56, 64 and 66 above).
120. The Court notes that its case-law has evolved after its decision in the Sidabras and Džiautas case (cited above) and that, in particular, the criteria enunciated in its judgment in the case of Vilho Eskelinen and Others v. Finland ([GC], no. 63235/00, § 62, ECHR 2007 ‑ II) resulted in wider applicability of Article 6 under its civil head to disputes concerning public (civil) servants. The Court, having regard to that case-law (see, for example, Olujić v. Croatia, no. 22330/05, § § 31-44, 5 February 2009, and Juričić v. Croatia, no. 58222/09, § § 51-57, 26 July 2011 ) and the fact that the applicant ’ s case was examined by both the Administrative Court and the Supreme Court, finds it evident that the civil limb of Article 6 is applicable to the lustration proceedings in the present case.
121. On the other hand, the Court considers that there are no sufficient elements to find that Article 6 is applicable under its criminal head. There are indeed certain similarities between this case and the above-mentioned cases against Poland (see paragraph 118). However, the key difference lies in the predominantly criminal character of the lustration proceedings in Poland (see Matyjek, §§ 49-52) and the administrative character of the lustration proceedings in the present case. In addition, in this case the applicant was lustrated for having collaborated with the communist-era secret police and not, like in the Polish cases, for submitting a false declaration in that regard (which the Court considered to be analogous to, inter alia, the criminal offence of perjury, see Matyjek, § 52). Lastly, any doubts as to whether those subject to lustration could be held criminally liable for submitting false declarations (see paragraph 79 in conjunction with paragraph 97 above ) were dispelled by rather general findings of the public prosecutor in the applicant ’ s case, who made it clear that such conduct could not constitute a criminal offence (see paragraph 60 above).
122. The Court further notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
1. Alleged violation of Article 6 § 1 of the Convention on account of the lack of access to court
123. The Government submitted that in support of his misgivings about the authenticity of the files, the applicant had proposed to obtain an opinion from an expert as regards the signatures on the payment receipts and examination of I.B. as expert assistant (see paragraphs 43 and 50 above). The expert evaluation of the signatures had not been within the Administrative Court ’ s province and this issue could have been resolved only in separate proceedings before a civil court. Furthermore, the applicant had suggested expert examination of the signatures by way of comparison with the letters that had been mentioned in his personal record (see paragraph 3 4 above) but which had not been in the possession of the parties. The expert assistant proposed by the applicant had been examined by the Administrative Court and his submissions taken into account (see paragraphs 46 and 49 above). The Government submitted that the applicant could have proposed other evidence, such as examination of individuals whose names had been mentioned in the files. They also submitted that the applicant should have relied on section 36 of the Administrative Disputes Act (see paragraph 91 above).
124. The applicant argued that the refusal to have expert examination of the signatures on the payment receipts had been a purposeful attempt to run away from the truth. He submitted that the statements of the expert assistant had been misinterpreted and that I.B. had made a written statement in this regard, which the applicant had attached to his appeal to the Supreme Court (see paragraph 50 above).
125. The Court reiterates that Article 6 § 1 of the Convention embodies the “right to court”, of which the right of access constitutes one aspect (see Golder v. the United Kingdom, 21 February 1975, § 36, Series A no. 18). The decisions taken by administrative or other authorities which do not themselves satisfy the requirements of Article 6 must be subject to subsequent control by a “judicial body that has full jurisdiction”, including the power to quash in all respects, on questions of fact and law, the challenged decision (see Bistrović v. Croatia, no. 25774/05, §§ 48 and 53, 31 May 2007, and Merot d.o.o. and Storitve Tir d.o.o. v. Croatia (dec.), nos. 29426/08 29737/08, § 49, 10 December 2013).
126. In this connection, the Court first observes that under the Administrative Disputes Act, as in force at the material time, the Administrative Court ’ s examination of the lawfulness of the decision of the public entity contested by an action for judicial review was not restricted to points of law but also extended to factual issues, including the assessment of evidence. If the Administrative Court disagreed with the factual findings in the contested decision, it had the power to quash the decision and remit the case or, exceptionally, adopt its own decision in lieu of the contested one (see paragraphs 91 and 93 above). The Court is therefore satisfied that the Administrative Court was a court of “full jurisdiction” for the purposes of Article 6 § 1 of the Convention (see Bistrović, cited above, § 53, and Merot d.o.o. and Storitve Tir d.o.o., cited above, § 50, 10 December 2013 ).
127. The Court further notes that in the lustration proceedings in the applicant ’ s case the decision of the Commission was reviewed by the Administrative Court, and subsequently by the Supreme Court. A hearing was held before the Administrative Court and an expert assistant was invited at the applicant ’ s suggestion (see paragraphs 43 and 46 above). The courts therefore had and did exercise full jurisdiction over the facts and law in addressing the substance of the case. It follows that in the lustration proceedings the applicant had access to court.
128. The applicant ’ s arguments to the contrary concern the taking and assessment of evidence (see paragraph 12 4 above) rather than access to court. However, from the perspective of Article 6 § 1 of the Convention assessment of evidence is not in the province of the Court, as it is primarily for the national courts to assess the evidence before them. On the other hand, the way evidence is taken is an element that can be relevant in the context of the overall fairness of the proceedings (see, for example, Elsholz v. Germany [GC], no. 25735/94, § 66, ECHR 2000 ‑ VIII), which issue is, in the present case examined further below (see paragraphs 13 1 - 15 1 ).
129. Accordingly, there has been no violation of Article 6 § 1 of the Convention on account of lack of access to court.
130. In view of this finding, the Court does not find it necessary to address the issue of whether the Commission was a tribunal within the meaning of that Article.
2. Alleged violation of Article 6 § 1 of the Convention on account of unfairness of the proceedings
131. The Government submitted that the lustration proceedings in the applicant ’ s case had been in line with the requirements of Article 6 of the Convention. The applicant had been represented during the proceedings, had the right to appeal, and the Commission and the courts had given reasons for their decisions. He had had full access to all the documents available in the file, which had been examined at the hearing before the Administrative Court in his presence. Given the small size of the applicant ’ s personal record of around forty to fifty pages and its relatively simple content, the imposed time-limits had been sufficient for him to prepare his arguments in the case.
132. The Government further argued that there was no ground for doubt about the objective or subjective impartiality of the Administrative and the Supreme Court. Cases in those courts had been assigned to individual judges through an automated case-allocation system. The applicant had not raised any particular concerns as regards the judges ’ impartiality and had not requested the withdrawal of any judge in the course of the domestic proceedings. The Government claimed that Judge V.S. had not been at all involved in the proceedings before the Administrative Court (see paragraph 52 above and paragraph 13 4 below ). Lastly, they submitted that the Prime Minister ’ s letter could not have influenced the lustration proceedings in any way, as it had been published after the Commission ’ s initial finding and, upon the applicant ’ s request, once the Commission ’ s public session had already been scheduled (see paragraphs 29 and 3 1 -3 2 above).
133. The applicant submitted that lustration in the respondent State was being conducted in bad faith: instead of pursuing its moral dimension, lustration had acquired a retributive character. It was politically motivated and, in reality, directed mostly against individuals who had actually been oppressed by the communist regime and who were at present for various reasons not favoured by the ruling political elite. In his case the lustration had been arbitrary and based on a fabricated collaborator ’ s file.
134. Contrary to the Government ’ s argument (see paragraph 1 3 2 above), he claimed that in the course of the lustration proceedings he had sufficiently voiced his concerns about judges ’ lack of impartiality and independence. He linked the career advancement of the judges sitting in his case with the outcome of the proceedings. He submitted, in particular, that Judge V.S. had worked for the Government before becoming a judge of the Administrative Court in 2007 (see paragraph 52 above). Only few months after his promotion to the Supreme Court in 2010, Judge V.S. had been elected by the Parliament in its last session before an early election, as a judge of the Constitutional Court where he had filled the position vacated by the applicant ’ s dismissal (see paragraph 57 above). Furthermore, Judge L .K., who had been the presiding judge in the panel of the Administrative Court which had on 8 November 2010 dismissed the applicant ’ s action for judicial review, had some four months later been promoted to the newly established High Administrative Court (see paragraphs 47-48 above ). The applicant also cast doubts on the courts ’ independence and impartiality, in view of the public statement by the Prime Minister, whose letter, published in the early and confidential stage of the proceedings while they were still pending before the Commission (see paragraphs 29 and 32 above), had also openly violated his presumption of innocence.
135. The applicant further argued that, given the unclear situation about the content and location of his personal record, he had not had sufficient time to prepare his defence, because the time-limits had effectively been shortened. He had not had full access to the file and had been limited in fully arguing his case in public as he had been under pressure not to reveal any classified information from his personal record. Furthermore, the proceedings had not been adversarial, and he could not have effectively challenged the content of documents produced by the State security services decades before.
136. The Court considers that in cases such as the present one, where the applicant complains about unfairness of the proceedings and supports his allegations by several mutually reinforcing arguments touching on various aspects of Article 6 § 1 of the Convention, an appropriate approach would be to examine the fairness of proceedings complained of taken as a whole. In such cases the Court may find a breach of Article 6 § 1 of the Convention if the proceedings taken as a whole did not satisfy the requirements of a fair hearing, even if each procedural defect, taken alone, would not have convinced the Court that the proceedings were unfair (see, for example, Kinský v. the Czech Republic, no. 42856/06, § § 83-84, 9 February 2012).
137. The Court reiterates that Article 6 of the Convention requires courts to be independent and impartial. According to the Court ’ s settled case-law, the existence of impartiality for the purposes of Article 6 § 1 must be determined according to a subjective test, where regard must be had to the personal conviction and behaviour of a particular judge, that is, whether the judge held any personal prejudice or bias in a given case; and also according to an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality (see, for example, Morice v. France [GC], no. 29369/10, § 7 3, 2 3 April 2015 and the cases cited therein ).
138. As to the subjective test, the personal impartiality of a judge must be presumed until there is proof to the contrary (see Morice, cited above, § 74 ).
139. As to the objective test, it must be determined whether, quite apart from the judge ’ s conduct, there are ascertainable facts which may raise doubts as to his or her impartiality. This implies that, in deciding whether in a given case there is a legitimate reason to fear that a particular judge or a body sitting as a bench lacks impartiality, the standpoint of the person concerned is important but not decisive. What is decisive is whether this fear can be held to be objectively justified. In this respect even appearances may be of a certain importance or, in other words, “justice must not only be done, it must also be seen to be done”. What is at stake is the confidence which the courts in a democratic society must inspire in the public (see Morice, cited above, § § 76 and 78)
140. However, there is no watertight division between subjective and objective impartiality, as the conduct of a judge may not only prompt objectively held misgivings as to his or her impartiality from the point of view of the external observer (the objective test) but may also raise the issue of his or her personal conviction (the subjective test) (see Kyprianou v. Cyprus [GC], no. 73797/01, § 119, ECHR 2005 ‑ XIII ). Thus, in some cases where it may be difficult to procure evidence with which to rebut the presumption of the judge ’ s subjective impartiality, the requirement of objective impartiality provides a further important guarantee (see Pullar v. the United Kingdom, 10 June 1996, § 32, Reports 1996 ‑ III).
141. Likewise, the concepts of independence and objective impartiality are closely linked (see, for example, Findlay v. the United Kingdom, 25 February 1997, § 73, Reports 1997 ‑ I), and it is sometimes difficult to dissociate them (see, for example, Bochan v. Ukraine, no. 7577/02, § 68, 3 May 2007).
142. Turning to the present case, the Court notes, as regards subjective impartiality, that there was nothing to indicate any prejudice or personal bias on the part of the judges dealing with the applicant ’ s case.
143. As regards the objective test, it is clear from the applicant ’ s submissions that in his mind the timing of the promotion of two judges who had sat in his case, taken in conjunction with the public statement made by the Prime Minister, objectively gave rise to doubts about the independence and impartiality of the courts that adjudicated his case (see paragraph 134 ).
144. The Court notes that the present case concerns lustration of the Constitutional Court ’ s president, and reiterates that the recent history of the post-communist countries shows that the files created by the former security services can be used in an instrumental way for political or other ends (see Joanna Szulc v. Poland, no. 43932/08, § 88, 13 November 2012 ).
145. In this connection the Court notes that before and during the lustration proceedings against the applicant there was an exchange of harsh statements between the Government and some MPs from the ruling party on the one side, and the Constitutional Court on the other (see paragraph 13-14, 17, 3 2 and 3 7 above). From their content it seems that the statements critical of the Constitutional Court were prompted by its decisions to first suspend and then invalidate certain provisions of the Lustration Act (see paragraphs 12 and 15-16 above). This would appear to have reinforced the preconceived opinion of the ruling party ’ s leaders that the court was against them because the majority of its judges had been appointed during the term of the former President of the Republic, whose party had been in opposition since July 2006, and because it had invalidated some other reform legislation of their Government.
146. Among those statements the Court attaches particular importance to the Prime Minister ’ s open letter published on 24 September 2010, that is, while the lustration proceedings against the applicant were still pending before the Commission and before they had reached the judicial stage. In that letter, which was directed at the opponents of lustration, the Prime Minister used the initial findings of the Commission to denounce the applicant as a collaborator of the secret police of the former regime, who, still controlled by a certain “ centre of power”, was the one behind the Constitutional Court ’ s decisions invalidating a number of legislative reforms of his Government (see paragraph 3 2 above).
147. The Court reiterates that Article 6 of the Convention is not concerned with the outcome of proceedings, but guarantees fairness in the proceedings themselves (see Kinský, cited above, § 112 ). It thus sees no reason to speculate on what effect the Prime Minister ’ s statement may have had on the course of the lustration proceedings (see, mutatis mutandis, Sovtransavto Holding, cited above, § 80, and Kinský, cited above, §§ 94 and 112 ). It is sufficient to note that the lustration proceedings ended in the applicant ’ s disfavour and that, in view of its content and the manner in which it was made, the Prime Minister ’ s statement was ipso facto incompatible with the notion of an “independent and impartial tribunal” within the meaning of Article 6 § 1 of the Convention (see, mutatis mutandis, Sovtransavto Holding, loc. cit.), it being understood that what is at stake here is not actual proof of influence or pressure on judges but the importance of the appearance of impartiality (see Kinský, cited above, § 98 ).
148. Seen against the backdrop of the said statement, the Court considers the applicant ’ s concerns as to the independence and impartiality of the Administrative Court and the Supreme Court in his case were not unreasonable, subjective or unjustified (see Sovtransavto Holding, loc. cit.; and Kinský, cited above, §§ 94 and 99 ).
149. This finding of the Court is further reinforced by the opinion of the European Commission, which in its Progress Report of 9 November 2010 observed that the lustration proceedings against the applicant “have raised concerns about pressure on the independence of the judiciary” (see paragraph 109 above).
150. The above considerations are sufficient for the Court to conclude that the proceedings in question, taken as a whole, did not satisfy the requirements of a fair hearing. It therefore does not find it necessary to address the applicant ’ s further arguments as regards the lack of independence and impartiality, in particular those related to career advancements of judges who participated in decision-making in his case (see paragraph 134 above).
151. It follows that there has been a violation of Article 6 § 1 in the present case.
3. Other alleged violations of Article 6 of the Convention
152. In view of the above findings (see paragraphs 13 6 -15 1 ), the Court considers that there is no need to examine the applicant ’ s remaining complaints under Article 6 of the Convention (see, mutatis mutandis, Kinský, cited above, § 115 ), in particular those concerning the equality of arms and adversarial hearing (see paragraph 11 2 above).
II. ALLEGED VIOLATIONS OF ARTICLE 8 OF THE CONVENTION
153. The applicant complained that the domestic authorities ’ decisions in the lustration proceedings had a complex impact on his reputation, dignity and moral integrity. He also complained that he had remained registered in the records of the State security services and that there had been unauthorised access to those records. Article 8 of the Convention reads as follows:
“1. Everyone has the right to respect for his private and family life...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
154. The Government disputed the admissibility of these complaints by arguing that the applicant had not exhausted domestic remedies and that they were, in any event, manifestly ill-founded. [1]
1. As regards the complaint concerning the lustration proceedings
155. The Government objected that the applicant had failed to exhaust domestic remedies. In particular, they argued that section 27 of the Act provided for two remedies: before a civil court by challenging the data delivered to the Commission on the one hand, and before the Administrative Court by disputing the Commission ’ s decision on the other (see paragraph 77 above). In view of the nature of his grievances, the applicant should have availed himself of the civil avenue of redress by bringing an action under section 177 of the Civil Proceedings Act, before an ordinary (civil) court, whereby he could have asked for a declaratory judgment establishing the authenticity or otherwise of the data in his file (see paragraph 105 above). The Government added that once thereby obtained, the declaratory judgment could serve as a ground to seek reopening of the lustration proceedings. The applicant had instead pursued only the administrative avenue of redress, and had asked the Administrative Court to adjudicate on the authenticity of the files as well as on the veracity of his statement (see paragraph 43 above). This claim had fallen short of the competency of the Administrative Court, which was empowered to review only the lawfulness of administrative acts (see paragraph 85 above).
156. The applicant contested the Government ’ s position. He argued that the Government had narrowly interpreted the term “competent court” contained in section 27 of the Lustration Act (see paragraph 77 above). He further submitted that he could not be expected to start additional civil proceedings with a view to challenging the contents and authenticity of decades-old files and papers. The Administrative Court had acknowledged that it had ratione materiae jurisdiction to examine the case, and he had thus not been required to pursue the civil remedy suggested by the Government.
157. The Court first reiterates that the applicant challenged the Commission ’ s decision by bringing an action for judicial review, which was examined by the Administrative Court and the Supreme Court. Neither court declined jurisdiction in the matter, but examined the case on the merits (see paragraphs 43, 47, 49, 51 and 53 above).
158. The Court further refers to its findings under Article 6 above according to which the applicant had access to court in judicial review proceedings because both domestic courts exercised full jurisdiction over the facts and law in addressing the substance of the case (see paragraphs 125-129 above). In particular, those courts did examine and assess whether the applicant ’ s personal record was reliable evidence for lustration purposes by, examining, notably, an expert assistant he had proposed (see paragraphs 43, 46-47 and 49 above).
159. The Court is therefore not persuaded that bringing a civil action would have led to a different, more profound, examination of the reliability of that piece of evidence. In fact, the Administrative Court suggested that if a more thorough examination could have been effected this could have been done only in criminal (and not civil) proceedings where the applicant ’ s allegations that his personal record had been doctored and/or tampered with would be examined (see paragraphs 47 and 49 above).
160. That being so, and since the Government did not argue that the applicant should have lodged a criminal complaint, the Court reiterates that where several potentially effective remedies are available, an applicant is only required to pursue one of them (see, for example, Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, ECHR 2005 ‑ XII (extracts), and Moreira Barbosa v. Portugal (dec.), no. 65681/01, ECHR 2004 ‑ V).
161. Therefore, even assuming that the declaratory action under section 177 of the Civil Procedure Act was an effective remedy, the Court considers that the applicant was not required to use the civil avenue of redress as well in order to comply with the requirements of Article 35 § 1 of the Convention.
162. Lastly, as asserted by the Government, the declaratory judgment thereby obtained could only serve as a ground for reopening of the lustration proceedings. However, pursuant to the Court ’ s constant case-law a petition for reopening of a case, as a rule, is not an effective remedy to be used for the purposes of Article 35 § 1 of the Convention (see Galstyan v. Armenia, no. 26986/03, § 39, 15 November 2007).
163. In view of the above, the Court concludes that the applicant, by pursuing solely the administrative avenue of redress, did what was reasonably expected of him and thus complied with the requirements of Article 35 § 1 of the Convention. The Government ’ s objection of non-exhaustion of domestic remedies must therefore be rejected.
164. The Court further notes that this part of the applicant ’ s Article 8 complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
2. As regards the complaint that the applicant remained registered in the records of the State security services and the unauthorised access thereto
165. The Government also submitted that in 2000 around 14,700 files had been transferred from the Ministry of the Interior to the State Archive in accordance with the provisions of the Processing of Personal Records of the State security Service Act (see paragraphs 98-99 above). Access to and storage of these personal records was regulated at the time by the Archived Materials Act as well as other applicable legislation, namely the Government Decree on the criteria for longer time-limits for the use of archived materials (see paragraphs 100-104 above). No unauthorised persons had had access to the applicant ’ s personal record.
166. The applicant complained that he had been, and remained, registered as a collaborator without his knowledge or agreement, that his personal information had been collected and continuously stored in the registries of the State security services, and that unauthorised persons had had access to his personal information.
167. The Court has already held that lustration measures pursued the legitimate aims within the meaning of Article 8 § 2 of the Convention, namely of the protection of national security, public safety, the economic well-being of the country and the rights and freedoms of others (see Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, § 55, ECHR 2004 ‑ VIII, and, mutatis mutandis, Ždanoka v. Latvia [GC], no. 58278/00, § 118, ECHR 2006 ‑ IV). It follows that keeping the records of the security services of the former regime for the purposes of lustration cannot per se be considered contrary to the Convention.
168. It follows therefore that this part of the applicant ’ s Article 8 complaint is inadmissible under Article 35 § 3 (a) of the Convention as manifestly ill-founded, and must be rejected pursuant to Article 35 § 4 thereof.
169. Lastly, the Court considers that the applicant ’ s complaint that unauthorised persons had access to his personal record (see paragraph 153 above) is absorbed by his complaint regarding the lustration proceedings where before the domestic authorities he complained, inter alia, that his personal record had been tampered with and that this had resulted in an unfavourable outcome for those proceedings (see paragraphs 36, 43 and 5 6 above).
170. The Government argued that the interference in the form of the Commission ’ s decision of 29 September 2010 had been lawful, had pursued a legitimate aim, and had been proportionate.
171. In this connection they first submitted that the interference had been lawful because it had been based on the Lustration Act.
172. As regards the aim, the Government relied on the PACE Resolution (see paragraph 106 above) and the need for democratisation of society after the collapse of the communist regime. They submitted that the purpose of the Lustration Act was not to punish but only to temporarily exclude from the exercise of public office those who had served as collaborators of the communist regime and who thus could not be trusted in a democratic society.
173. As regards proportionality, the Government maintained that that States enjoyed wide margin of appreciation in lustration matters, and that the Lustration Act regulated lustration proceedings in a manner compatible with the applicant ’ s privacy, as the public interest had been well balanced vis-à-vis the private interest of an individual. They further submitted that the applicant had himself chosen to have the proceedings conducted publicly (see paragraphs 29 and 43 above).
174. As to the procedural safeguards, the Government argued that they had been in line with the procedural requirements of Article 6 of the Convention, and referred to their above arguments under that Article (see paragraphs 131-132 ).
175. The applicant contested the Government ’ s position. He reiterated that the lustration proceedings had had a complex impact on his reputation, dignity and moral integrity. He added that as a result of those proceedings certain events from his early youth had been publicly revealed and discussed. The applicant otherwise reiterated his above arguments under Article 6 of the Convention.
(a) Whether there was an interference with the applicant ’ s right to respect for his private life
176. The Court notes at the outset that it was not disputed between the parties that the Commission ’ s decision of 29 September 2010 finding that the applicant had been a collaborator of the secret police of the past regime and that, consequently, he had not fulfilled the additional requirement for public office (see paragraph 38 above), constituted an interference with his right to respect for his private life. Having regard to its case-law on the matter (see, for example, Leander v. Sweden, 26 March 1987, § 48, Series A no. 116; Rotaru v. Romania [GC], no. 28341/95, § 46, ECHR 2000-V; Sidabras and Džiautas, cited above, § § 48- 49; and Turek v. Slovakia, no. 57986/00, § 91, ECHR 2006 ‑ II (extracts)), the Court sees no reason to hold otherwise.
177. Indeed, the Commission decision has had effects on the applicant ’ s private life. He was not only dismissed from the office of judge of the Constitutional Court (see paragraph 56 above). He was for the period of five years also banned from taking any employment in the public service or academia while the opportunities for him finding a job as a private-sector lawyer that would correspond to his professional qualifications and experience have been reduced to an extent which made practising his profession nigh impossible (for example he was prohibited from practising law as an advocate, see paragraph 66 in conjunction with paragraph 23 above). Apart from these wide-ranging employment restrictions, a further consequence of the Commission ’ s decision is that in the eyes of society the applicant was and continues to be stigmatised as informer of the secret police of the former oppressive regime, and thus inherently unworthy of performing any public function in a democratic State based on the rule of law. This affected his ability to develop relationships with the outside world – be they employment-related or other – to a very significant degree and has created serious difficulties for him leading a normal personal life and earning his living. The decision in question has therefore undoubtedly affected more than just his reputation. Rather, it has had a profound impact on his private life (see, mutatis mutandis, Sidabras and Džiautas, loc. cit.).
(b) Lawfulness and legitimate aim
178. The Court notes that the Commission ’ s decision of 29 September 2010 was based on the relevant provisions of the Lustration Act, which meet the qualitative requirements of accessibility and foreseeability. It is therefore satisfied that this interference with the applicant ’ s private life was in accordance with the law, as required by Article 8 § 2 of the Convention.
179. As regards the legitimate aim, the Court reiterates that lustration measures are to be regarded as pursuing the legitimate aims of the protection of national security, public safety, the economic well-being of the country and the rights and freedoms of others (see paragraph 1 67 above and the cases cited therein ). It also notes that lustration was introduced in the respondent State some sixteen years after it had adopted its democratic Constitution (see paragraphs 7 and 12 above). Although the introduction of such measure so many years after the historical changes could raise doubts as to its real purpose, the Court is, having regard to the margin of appreciation left to the States, ready to accept that the interference in the present case pursued the legitimate aim of protection of national security.
(c) “Necessary in a democratic society”
180. Any interference with the right to respect for private life will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are “relevant and sufficient” (see, for example, Fernández Martínez v. Spain [GC], no. 56030/07, § 124, ECHR 2014 (extracts)).
181. In the present case, as explained by the Supreme Court (see paragraph 53 above), under the applicable domestic law the competent domestic authorities, when adopting and reviewing the impugned lustration measure, were not required to take into account whether the applicant had been blackmailed into collaborating with the secret police. This was in particular because section 4 of the Lustration Act defined collaboration as conscious, secret, organised and continuous cooperation, established by written document, with the State security services (see paragraph 65 above), consent or absence of constraint thus not being a requisite condition. As a result, in the ensuing legal proceedings the evidence relied on and the arguments adduced by the applicant in connection with his alleged lack of consent were dismissed as legally irrelevant by the domestic courts.
182. Having regard to the relevant European standards (see point l. of the Guidelines quoted in paragraph 107 above), the Court considers that in order to for a lustration measure interfering with private life to be “necessary in a democratic society” within the meaning of Article 8 § 2 of the Convention, it should in some manner be a qualifying condition for the imposition of such a measure that the person being lustrated was not acting under compulsion. It is not the Court ’ s task to say what weight should have been attached to that element in the present case. It suffices to note that it constitutes an essential factor in the exercise of balancing the interests of national security and the protection of the affected individual ’ s rights. However, the domestic authorities, including the courts, were not called on by the terms of the applicable domestic law to address that issue, since, as the Supreme Court intimated, given the statutory definition of collaboration (see the preceding paragraph), the presence or absence of compulsion was not relevant for the adoption and legality of the contested decision. It follows that the domestic authorities ’ analysis in the applicant ’ s case was not, and could not be, sufficiently thorough to satisfy the test of “necessity in a democratic society”. In other terms, the reasons adduced for their decisions cannot be regarded as “sufficient” for the purposes of paragraph 2 of Article 8 of the Convention.
183. In any event, the Court considers that the interference with the applicant ’ s Article 8 right such as resulted from the lustration proceedings was disproportionate to the legitimate aim sought to be achieved. The Court has already emphasised the severe nature of the interference with the applicant ’ s private life (see paragraph 177 above). The Government stated that the purpose of the Lustration Act had been to temporarily exclude from the exercise of public office those who had served as collaborators of the communist regime and who thus could not be trusted in a democratic society (see paragraph 17 2 above ).
184. The Court is not convinced that this purpose is furthered by such wide-ranging employment restrictions which, inter alia, made it virtually impossible for the applicant to practice his profession (see paragraph 17 7 above). In this connection the Court reiterates that State-imposed restrictions on a person ’ s opportunity to find employment within private sector for reasons of lack of loyalty to the State cannot be justified from the Convention perspective in the same manner as restrictions on access to their employment in the public service (see Sidabras and Džiautas, cited above, § 58; Rainys and Gasparavičius v. Lithuania, nos. 70665/01 and 74345/01, § 36, 7 April 2005; and Žičkus v. Lithuania, no. 26652/02, § 31, 7 April 2009).
185. Furthermore, the Lustration Act was enacted some sixteen years after the respondent State had adopted its democratic Constitution (see paragraphs 7, 12 and 179 above). Although the Act ’ s belated timing is not in itself decisive it may nonetheless be considered relevant when assessing the proportionality of the interference (see Sidabras and Džiautas, cited above, § 60; Rainys and Gasparavičius, cited above, loc. cit.; and Žičkus, cited above, § 33 ), given that any threat those being lustrated could initially pose to the newly created democracy must have considerably decreased with the passage of time (see Sõro v. Estonia, no. 22588/08, § 62, 3 September 2015 ).
186. For the same reason, the Court cannot overlook the fact that the applicant ’ s recruitment process with the former secret police had commenced while he was still a minor although he may have officially become a collaborator when he already reached the age of eighteen (see paragraphs 6 and 34 above, and point l. of the Guidelines quoted in paragraph 107 above). While it is true that the findings of the domestic authorities suggest that he had continued to collaborate as an adult, his contact with the secret police ceased at the latest in 1983, if not earlier (see paragraphs 34 and 38 above). That was some twenty seven years before the lustration proceedings were instituted against him ( see, a fortiori, Sidabras and Džiautas, cited above, § 60, and Žičkus, cited above, § 33 ). Therefore, and having regard to the nature of his involvement with the former secret police, the Court is not persuaded that after twenty seven years the applicant posed such a threat, if any, to a democratic society as would justify an interference in the form of five-year long wide-ranging restrictions on his professional activities and the related stigma of a collaborator which he would continue to carry even longer. That is especially so because the domestic authorities did not make any assessment of the possible threat posed by the applicant (see Sõro, cited above, loc. cit.).
187. In view of the foregoing (see paragraphs 17 6 -18 6 above), the Court finds that the interference with the applicant ’ s right to respect for his private life was not justified in terms of Article 8 § 2 of the Convention.
188. There has accordingly been a violation of that Article in the present case.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
189. The applicant complained that he de facto had not had available to him an effective legal remedy to protect his rights guaranteed under the Convention. He relied on Article 13 of the Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority, notwithstanding that the violation has been committed by persons acting in an official capacity.”
190. The Court notes that this complaint is linked to the complaint examined under Article 8 above, and must therefore likewise be declared admissible.
191. Having regard to its findings under Article 6 § 1 (see paragraphs 117-122, 125-130 and 136-151 above), the Court considers that it is not necessary to examine whether in the present case there has also been a violation of Article 13, since its requirements are less strict than, and are here absorbed by, those of Article 6 § 1 (see, for example and mutatis mutandis, O. v. the United Kingdom, 8 July 1987, § § 67 and 69, Series A no. 120).
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
192. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
193. The applicant claimed 30,000 euros (EUR) in respect of pecuniary damage. This amount corresponded to the income that he would have earned if had not been prematurely dismissed as a judge of the Constitutional Court. He supported his claim with a certificate from the Constitutional Court which stated that the applicant ’ s employment ceased on 30 April 2011, that his last salary for April was 75,776 Macedonian Denars (MKD), equivalent to approximately EUR 1,250, and that that amount would have also been his salary on 30 May 2012 when his term of office would have expired. The applicant also claimed EUR 30,000 for non-pecuniary damage, and submitted medical certificates concerning his psychological state during the proceedings.
194. The Government disputed these claims, and submitted that there was no causal link between the applicant ’ s claims and the finding of any violation. They further argued that finding a violation would be sufficient redress for the applicant and that during the proceedings, in the period from which the medical certificates dated, the applicant was working in full capacity as a judge and the president of the Constitutional Court.
195. As regards the applicant ’ s claim for pecuniary damage, the Court does not discern any causal link between the violations found and the pecuniary damage alleged. In particular, it cannot speculate as to what the outcome of the lustration proceedings would have been if the violation of Article 6 § 1 of the Convention had not occurred (see, for example, Mitrinovski v. the former Yugoslav Republic of Macedonia, no. 6899/12, § 56, 30 April 2015 ). Furthermore, the Court did not find a violation of Article 8 of the Convention because the applicant had been dismissed from the office of judge of the Constitutional Court but because the lustration measure imposed had adversely affected his career prospects (see Rainys and Gasparavičius, cited above, § 46, explaining the award of pecuniary damages in Sidabras and Džiautas, cited above, § 78 ). The Court therefore rejects this claim.
196. On the other hand, the Court finds that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, the Court awards him EUR 4,500 under that head, plus any tax that may be chargeable on that amount.
197. The applicant also claimed EUR 4,000 for costs and expenses incurred before the domestic courts and “a lump sum” for those incurred before the Court, without specifying their amount.
198. The Government contested these claims.
199. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum.
200. As regards the applicant ’ s claim for costs and expenses in the domestic proceedings, the Court notes that he failed to submit itemised particulars of this claim or any relevant supporting documents, as required by Rule 60 § 2, although he was invited to do so. In these circumstances, the Court makes no award under this head (Rule 60 § 3). On the other hand, the Court considers it reasonable to award the sum of EUR 850 for costs and expenses incurred in the proceedings before it, plus any tax that may be chargeable on the applicant.
201. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.