Case-law Information Note 261
Advisory opinion requested by the Lithuanian Supreme Administrative Court
Request no. P16-2020-002
Article 3 of Protocol No. 1
Stand for election
Advisory opinion on the assessment of the proportionality of a general prohibition on standing for election after removal from office in impeachment proceedings
Background and questions – The request of the Lithuanian Supreme Administrative Court for an Advisory Opinion arose in the context of proceedings brought by Ms N.V. challenging the Central Electoral Commission’s refusal to register her as a candidate in the Seimas elections of October 2020 because in 2014 she had been removed from her position as a member of the Seimas in impeachment proceedings on account of her non-participation without excuse in the Seimas’ meetings owing to her fleeing Lithuania in view of pending criminal proceedings. Under domestic law this meant that she could never again hold a parliamentary mandate. The legal ban preventing her registration was the direct consequence of the Lithuanian constitutional and statutory regulations on impeachment, which the Court in its Grand Chamber judgment of 6 January 2011 in Paksas v. Lithuania had found to be in breach of Article 3 of Protocol No. 1 on the ground that a general and unlimited ban, as laid down in those regulations, amounted to a disproportionate sanction. In that case, the law on impeachment had been applied to Mr Paksas, a former President of the Republic. The execution of this judgment was still pending before the Committee of Ministers on the date of adoption of the present advisory opinion.
The questions asked by the Supreme Administrative Court in the request for an advisory opinion were worded as follows:
“1. Does a Contracting State overstep the margin of appreciation conferred to it by Article 3 of Protocol No. 1 to the Convention, if it does not guarantee the compatibility of the national law with the international obligations arising from the provisions of Article 3 of Protocol No. 1 to the Convention, which results in preventing a person, who has been removed from office of a Member of the Seimas under the impeachment proceedings, from implementing their “passive” right to elections for six years?
In case of affirmative response, could such situation be justified by the complexity of the existing circumstances, directly related to providing an opportunity to the legislative body to align the national provisions of the constitutional level with the international obligations?
2. What are the requirements and criteria implied by Article 3 of Protocol No. 1 to the Convention, which determine the scope of the application of the principle of proportionality, and which the national court should take into account and verify whether they are complied with in the existing situation at issue?
In such situation, when assessing the proportionality of a general prohibition restricting the exercise of the rights provided for in Article 3 of Protocol No. 1 to the Convention, should not only the introduction of the time-limit, but also the circumstances of each individual case, related to the nature of the office from which a person has been removed and the act which resulted in impeachment, be held crucial?”
Preliminary considerations – The Court had regard to the most recent decision by the Committee of Ministers in which the Deputies had noted the Government’s initial intention to wait for the delivery of the Court’s advisory opinion before proceeding with further steps for the execution of the Paksas judgment and to resume the examination of its execution after the delivery of the advisory opinion. Consequently, the questions raised by the Supreme Administrative Court remained pertinent and had to be addressed. However, the Court also stressed that Protocol No. 16 had not been envisaged as an instrument to be used in the context of execution.
The Court considered it appropriate to first answer the second question, which related to the case pending before the Supreme Administrative Court, this circumstance being a requirement of Article 1 § 2 of Protocol No. 16.
The second question – This, in substance, concerned which criteria were to be applied by a competent Lithuanian court for the assessment of whether in the concrete circumstances of a given case the ban preventing an impeached former Member of the Seimas to stand for election to the Seimas had become disproportionate with the consequence that it breached Article 3 of Protocol No. 1.
The Supreme Administrative Court considered, in the light of the case-law of the Constitutional Court, that the law on impeachment which had been applied to Mr Paksas was equally applicable to the situation of Ms N.V. because both their functions had required the taking of an oath under the Constitution. However, the Court understood the second question as implying that the national court considered itself seized of the question whether, having regard to all relevant circumstances, the impact of the unlimited ban on the personal situation of Ms N.V. had become disproportionate or not for the purposes of Article 3 of Protocol No. 1. Against this background, it was thus a request for guidance on the criteria which were relevant for the purpose of that determination. In keeping with the object and purpose of Protocol No. 16, the Court’s reply was from the perspective of the requesting Court, this being without prejudice to any legislative initiatives by the Seimas with a view to remedying the problem created by the failure to execute the Paksas judgment.
The Court first recapitulated its case-law relating to the issues involved in the case at hand, in the light of which the requirements flowing from the Court’s judgment in Paksas were to be understood. This included its findings in the aforementioned judgment but also its case-law concerning the right to stand for election under Article 3 of Protocol No. 1, the concept of “implied limitations”, the principle of a legitimate aim, the impact of the political and historical context and the requirement of procedural safeguards.
In this connection and with regard specifically to the facts relating to the present opinion, the Court recalled its finding in Paksas according to which in assessing the proportionality of a general measure restricting the exercise of the rights guaranteed by Article 3 of Protocol No. 1, decisive weight should be attached to the existence of a time-limit and the possibility of reviewing the measure in question. The need for such a possibility was linked to the fact that the assessment of that issue must have regard to the evolving historical and political context in the State concerned. Further, while States enjoyed considerable latitude to establish in their constitutional order rules governing the status of parliamentarians, these rules should not be such as to exclude some persons or groups of persons from participating in the political life of a country and in the choice of the legislature. The Court has also recognised that, with the passage of time, general restrictions on electoral rights became more difficult to justify, thus requiring restrictive measures to be individualised.
It followed from this that the reference in Paksas to the weight to be attached to the existence of a time-limit and the possibility of reviewing the ban in question was not necessarily to be understood as requiring these two elements to be combined. Nor did it specify whether the time-limit applicable in a given case should be set in the abstract or on a case-by-case basis. What mattered in the end was for the ban in question to remain proportionate within the meaning of the Paksas judgment. This could be achieved by way of an appropriate legislative framework or judicial review of the duration, nature and extent of such a ban as applicable to the person concerned, performed on the basis of objective criteria and having regard to the particular circumstances of that person as they presented themselves at the time of the review. In this context the findings in Paksas that a life-long disqualification, due to its permanent and irreversible nature, was a disproportionate restriction did not in itself imply that a decision to refuse a person to stand for elections, at the time of such a refusal, would necessarily amount to a disproportionate restriction. Whether that was the case would depend on an individual assessment of the refusal and the specific circumstances of the case based on objective criteria.
These criteria had to be objective in nature and allow relevant circumstances connected not only with the events which led to the impeachment of the person concerned, but also – and primarily – with the functions sought to be exercised in the future by that person, to be taken into account in a transparent way. This was because the purpose of the impeachment and the subsequent ban was not primarily to impose another sanction on the person concerned in addition to a criminal sanction which might already have been imposed, but to protect parliamentary institutions. The relevant criteria should therefore be identified mainly from the perspective of the requirements of the proper functioning of the institution of which that person sought to become a member, and indeed of the constitutional system and democracy as a whole in the State concerned.
This came down to evaluating the objective impact which that person’s potential membership of the institution concerned would have on the latter’s functioning, having regard to such considerations as the past and contemporary behaviour of the person who had been removed from office in impeachment proceedings, the nature of the wrongdoing which had led to his or her impeachment, but also – and more importantly – the institutional and democratic stability of the institution concerned, the nature of the latter’s duties and responsibilities, and the likelihood of the person in question having the potential to significantly disrupt the functioning of that institution, or indeed of democracy as a whole in the State concerned. Aspects such as that person’s loyalty to the State, encompassing his or her respect for the country’s Constitution, laws, institutions and independence, might also be relevant in this respect. It was in the light of all those aspects that a determination should be made as to the appropriate and proportionate length of a ban precluding persons who had been removed from office in impeachment proceedings from being eligible for any function to which the ban applied.
Lastly, the procedure leading to such a determination in an individual case should be surrounded by sufficient safeguards designed to ensure respect for the rule of law and protection against arbitrariness. This would include the need for the procedure to be held before an independent body and for the person concerned to be heard by the latter and be provided with a reasoned decision.
The first question – In the light of its answer to the second question, the Court understood the first question essentially as asking whether the Supreme Administrative Court should take into account the difficulties encountered by the Lithuanian authorities in executing the judgment given in the Paksas case. In this connection, the Court noted the recent developments within the Seimas as regards the constitutional amendment process: the draft amendment to the Constitution would be scheduled for a second voting during the Seimas’ spring session, beginning on 10 March 2022. Taking these elements into account, as well as the limitations inherent in the system of advisory opinions provided under Protocol 16 when it came to issues relating to the execution of the Court’s judgments, it was not appropriate to give an answer to the first question.
Conclusion (unanimously): The criteria which were relevant in deciding whether or not a ban on the exercise of a parliamentary mandate in impeachment proceedings had exceeded what was proportionate under Article 3 of Protocol No. 1 should be objective in nature and allow relevant circumstances connected not only with the events which led to the impeachment of the person concerned but also – and primarily – with the functions sought to be exercised by that person in the future, to be taken into account in a transparent way. They should therefore be identified mainly from the perspective of the requirements of the proper functioning of the institution of which that person sought to become a member, and indeed of the constitutional system and democracy as a whole in the State concerned.
(See Gitonas and Others v. Greece, 18747/91 et al, 1 July 1997, Legal Summary; Aziz v. Cyprus, 69949/01, 22 June 2004, Legal Summary; Ždanoka v. Latvia [GC], 58278/00, 16 March 2006, Legal Summary; Ādamsons v. Latvia, 3669/03, 24 June 2008, Legal Summary; Tănase v. Moldova [GC], 7/08, 27 April 2010, Legal Summary; Paksas v. Lithuania [GC], 34932/04, 6 January 2011, Legal Summary; Abil v. Azerbaijan, 16511/06, 21 February 2012; Mugemangango v. Belgium [GC], 310/15, 10 July 2020, Legal Summary; Selahattin Demirtaş v. Turkey (no. 2) [GC], 14305/17, 22 December 2020, Legal Summary. See also Advisory opinion concerning the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother, P16-2018-001, French Court of Cassation, 10 April 2019, Legal Summary)