EHRC 2017/58, EHRM 20-12-2016, , 14737/08 (met annotatie van J.L.W. Broeksteeg)

I. Alleged violation of Article 3 of Protocol No. 1 to the Convention

76. The applicant complained that he had been unable effectively to take part in the electoral campaign in the Dzūkija single-member constituency during the parliamentary elections of 2007, particularly because of his house arrest and negative opinion by the media. He relied on Article 3 of Protocol No. 1 to the Convention, which reads as follows:

“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”

A. Admissibility

1. The parties’ arguments

77. The Government argued that the applicant had failed to exhaust the available domestic remedies by not having appealed against the prosecutor’s decision of 19 October 2007. They also submitted that the applicant could have started civil court proceedings for damages, if he considered that the authorities had breached his right to take part in the parliamentary elections.

78. The applicant stated having appealed against all the decisions regarding his house arrest. He also submitted that he had not received the prosecutor’s decision of 19 October until 26 October 2007. Given that the second round of voting took place on 21 October 2007 and that electoral campaigning was prohibited thirty hours before the beginning of an election and on election day (see paragraph 67 in fine above), it would have been futile to have appealed against the aforementioned decision by the prosecutor.

2. The Court’s assessment

79. The Court observes that the applicant indeed did not appeal against the prosecutor’s decision of 19 October 2007 (see paragraph 40 above). Nonetheless, it shares the applicant’s view that by that time contesting that decision would have been devoid of purpose, given that the second round of voting took place on 20 October 2007 and active electoral campaigning was prohibited thirty hours before the beginning of voting (see paragraphs 41 and 67 in fine above). Similarly, the Court does not consider that a civil claim for damages was a remedy to be exhausted, in the light of the fact that the applicant pursued a criminal-law avenue to contest his house arrest, which he saw as interference with his right to compete in parliamentary elections on equal basis. The Government’s objection must therefore be dismissed.

80. The Court also notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ arguments

(a) The applicant

81. The applicant argued that because of his house arrest, he had been unable to take part on equal grounds in parliamentary elections in the Dzūkija single-member constituency. Without the appropriate direct communication with voters, the electoral campaign had not been effective and his right to stand for elections had only been declarative and illusory (the applicant relied on Podkolzina v. Latvia, no. 46726/99, § 35, ECHR 2002-II). He asserted that he had had all the relevant opportunities to win the election, but because of his inability to meet voters he had come second. For the applicant, permission to meet voters could easily have been reconciled with the purpose of the pre-trial investigation. The scheduled meetings with voters, of which the authorities had been informed in advance, did not automatically mean that the applicant would avoid the criminal proceedings. Moreover, the authorities did not consider the fact that the applicant had returned from Russia of his own free will, and there were no circumstances to suggest that he would attempt to evade the criminal proceedings. However, the ongoing pre-trial investigation in his case became a convenient way to restrict his electoral rights.

82. The applicant also insisted that the State’s fears that because of his business connections in Russia he was dangerous to Lithuanian democracy were unfounded and speculative. The nature of the criminal acts of which he was suspected bore no relation to the instant case, which concerned breach of his electoral rights. During the election campaign the media, influenced by the State authorities’ will, formed a negative opinion about the applicant and his political party. As a result of his house arrest, he had been unable to explain his situation directly to the voters in order to defend his good name. Furthermore, once the parliamentary elections were over, the prosecutor permitted him to temporarily depart from the conditions of his house arrest. For the applicant, that was proof of prior political manipulation by the Lithuanian authorities. The applicant also argued that he was “a well-known politician, whose main activity was to participate in elections and to represent the voters”. He disputed the Government’s suggestion that he had taken part in the elections only to obtain immunity, because the immunity was not absolute. It could always be lifted.

(b) The Government

83. The Government considered it crucial to note the general context and “exceptional nature” of the criminal acts of which the applicant, among others, had been suspected and with which he had been charged. This was a major case of political corruption by one of the biggest political parties in Lithuania at that time. The Council of Europe had clear recommendations and guidelines on the States’ obligation to deter and combat such crime. Democratic principles required the State to ensure the right to free elections. At the same time, they also required politicians standing for election to act in good faith, but not to weaken or destroy the ideals and values of a democratic society.

84. The Government acknowledged that the applicant’s house arrest had constituted an interference with his electoral rights during the parliamentary elections of October 2007. Even so, the facts justifying the house arrest spoke for themselves. Facing serious charges of corruption where sums unaccounted for by the applicant’s political party amounted to millions of Lithuanian litai, the applicant had fled to Russia. Upon his return, there was a legitimate aim to ensure that a pre-trial investigation could take place without hindrance. The restrictions were also in compliance with the domestic law, namely Article 49 of the Law on the Elections to the Seimas.

85. The Government also argued that house arrest had been imposed without arbitrariness and was a proportionate remand measure. The pre-trial investigation in the applicant’s case had started well before his political party had decided to put forward his candidature in the parliamentary elections. Above all, meeting the voters was not the only way for the applicant to conduct his electoral campaign. He could have used the media and outdoor advertising, and could have communicated his electoral message through his party representatives. On this last point, the Government submitted that many members of the Labour Party had actively assisted the applicant to run his campaign by visiting voters at their homes and distributing printed material. It was also pertinent to stress that the applicant’s inability to meet his voters during the campaign for the municipal elections, which had taken place earlier the same year, did not prevent him from being elected.

86. In reply to the applicant’s suggestions that the Lithuanian authorities’ had made concerted efforts to prevent him from effectively running for the Seimas, the Government argued that in fact it was the applicant whose conduct was inherently contradictory to the principles and values of democratic constitutional order. Facing criminal charges for political corruption, the applicant was striving to hide by exploiting the very measures which were applied to ensure free and unhindered democratic elections, namely, a parliamentarian’s immunity from prosecution. Taking into account all the circumstances of the case, one could not exclude the possibility that the applicant might have exploited the passive electoral right in this case to acquire immunity from prosecution. On this point, the Government indicated that the applicant had taken part in the parliamentary elections of October 2007 immediately after being elected to the municipal council in February 2007. He refused the post of municipal councillor, presumably because members of municipal councils do not enjoy immunity from prosecution. The Government lastly pointed out that Lithuania was one of a few countries with such an extensive safeguard regulation – immunity for parliamentary candidates – whereas the immunity of electoral candidates was rarely accepted in Europe.

2. The Court’s assessment

87. The general principles regarding Article 3 of Protocol No. 1 to the Convention have been set out in Namat Aliyev v. Azerbaijan (no. 18705/06, §§ 70-73, 8 April 2010). The Court has constantly held that democracy constitutes a fundamental element of the “European public order”, and that the rights guaranteed under Article 3 of Protocol No. 1 are crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law (see, among many other authorities, Zdanoka v. Latvia [GC], no. 58278/00, §§ 98 and 103, ECHR 2006-IV; Tanase v. Moldova [GC], no. 7/08, § 154, ECHR 2010; Karácsony and Others v. Hungary [GC], no. 42461/13, § 141, ECHR 2016 (extracts)).

88. The Court considers that what is at stake in the present case is not the applicant’s right to win the parliamentary election in the Dzūkija single-member constituency, but his right to stand freely and effectively for it, this right being inherent in the concept of a truly democratic regime (see Gahramanli and Others v. Azerbaijan, no. 36503/11, § 68, 8 October 2015). The applicant was entitled under Article 3 of Protocol No. 1 to stand for election in fair and democratic conditions, regardless of whether ultimately he won or lost. In the present case, Article 3 of Protocol No. 1 therefore requires the Court to verify that the applicant’s individual right to stand for election was not deprived of its effectiveness and that its essence was not impaired (see Namat Aliyev, cited above, § 75; also see Sitaropoulos and Giakoumopoulos v. Greece [GC], no. 42202/07, § 64, ECHR 2012).

89. The Court shares the Government’s preliminary argument that the State was under an obligation to act once the authorities came across information that the Labour Party could have doctored its accounts (see paragraph 8 above; also see the Council of Europe guidelines on the fight against political corruption, cited in paragraph 72 above). As later indicated by the prosecutor and noted by the Central Electoral Commission, it was suspected that the damage done to the State budget amounted to millions of Lithuanian litai. The Central Electoral Commission refused, on the basis of auditors’ evidence and the charges in that respect, to allocate appropriations to the Labour Party (see paragraphs 13 and 17 above; also see point 12 in paragraph 72 above). The Court further observes that the Committee of Ministers has stressed the need to tackle corruption in order to reinforce public confidence in the political process. This includes the requirement for political parties to keep proper books and accounts, precisely the crimes with which the applicant and his political party had been charged (see paragraph 73 above).

(a) As to the applicant’s possibility to effectively take part in the Seimas’ electoral campaign

90. Turning to the particular situation of the applicant, the Court observes that once the Lithuanian authorities opened a criminal investigation on suspicion of financial fraud by the Labour Party, of which the applicant was the chairman, the applicant, facing suspicions of political corruption, fled to Russia. The Lithuanian prosecutors’ attempts to obtain his extradition to Lithuania were to no avail (see paragraphs 8-10, 12 and 16 above). Although the applicant argued that in September 2007, just before the parliamentary elections, he had voluntarily returned to Lithuania, thus making himself available to the prosecutors, the Court is not called upon to attempt to determine the applicant’s motives. The Court however considers it established that in July 2007, when the applicant’s political party named him as a candidate in the parliamentary elections (see paragraph 24 above), the applicant must have been clearly aware that he was a suspect in a criminal investigation. Even more importantly, the applicant must have known that a court order for his arrest and detention had been issued (see paragraph 14 above). Accordingly, he could not have reasonably expected to take part in those elections without any constraints, on equal terms with any other candidate, which was not an object of the criminal proceedings.

91. The Court further observes that following the applicant’s return from the Russian Federation, pre-trial detention was immediately replaced by a milder remand measure, house arrest, thus improving his situation (see paragraphs 30 and 31 above). It is not unreasonable to say that the applicant was therefore permitted to run his electoral campaign from his home, for example, by discussing that campaign with members of his political party, who in turn could spread his message to the voters (see paragraph 36 above). Any such opportunities would hardly have been available to the applicant had the Lithuanian authorities kept him in detention. Moreover, taking into account that the applicant was, in his own words, a well-known politician (see paragraph 82 above) and that the members of his political party took part in meetings with the voters in person (see paragraph 36 above), the Court does not find the restriction particularly burdensome on the applicant’s right to participate in the elections to the extent that it would be decisive for its ultimate result.

92. Finally, without disregarding the fact that in Lithuania the electoral system in municipal elections differs from that in parliamentary single-member constituencies – in the former, voters vote for a party list, whereas in the latter they vote directly for a candidate when electing half of the Seimas – the Court gives certain weight to the Government’s argument that in February 2007, while he was abroad in the Russian Federation and thus without being able to meet voters, the applicant took part in the municipal elections and was elected on the Labour Party’s list (see paragraphs 18 and 21 above).

(b) As to the applicant’s ability to challenge the remand measure in the context of his complaint under Article 3 of Protocol No. 1

93. Having regard to the principles developed by its case-law on Article 3 of Protocol No. 1, the Court has held that the existence of a domestic system for effective examination of individual complaints and appeals in matters concerning electoral rights is one of the essential guarantees of free and fair elections. Such a system ensures an effective exercise of individual rights to vote and to stand for election, maintains general confidence in the State’s administration of the electoral process and constitutes an important device at the State’s disposal in achieving the fulfilment of its positive duty under Article 3 of Protocol No. 1 to hold democratic elections. Indeed, the State’s solemn undertaking under Article 3 of Protocol No. 1 and the individual rights guaranteed by that provision would be illusory if, throughout the electoral process, specific instances indicative of failure to ensure democratic elections were not open to challenge by individuals before a competent domestic body capable of effectively dealing with the matter (see Namat Alijev, cited above, § 81). The Court therefore must examine whether the decisions of the domestic courts in the instant case were compatible with the applicant’s right to stand for election (see Melnychenko v. Ukraine, no. 17707/02, § 60, ECHR 2004-X and the case-law referred to therein).

94. The Court observes that Lithuanian law provides for a system of examination of individual election-related complaints and appeals, consisting of the Central Electoral Commission and the courts. The applicant made full use of that system. As to the municipal elections of February 2007, the applicant’s argument that the remand measure imposed on him would unjustifiably interfere with his electoral rights was dismissed firstly by the Central Electoral Commission and then by a reasoned decision of the Supreme Administrative Court. Although, for reasons attributable only to the applicant, he did not take part in those proceedings in person, his interests were defended by a lawyer of his choice (see paragraphs 18, 19 and 20 above). Thereafter, in the parliamentary elections of 2007, the applicant had the opportunity to appeal to the Central Electoral Commission against the decisions to place him under house arrest, as well as to the administrative and criminal courts, where he also relied on Article 3 of Protocol No. 1 (see paragraphs 28, 29, 32 and 34 above). There is nothing in the facts brought to the Court’s knowledge to indicate that, in assessing the reasonableness of the remand measure of house arrest, the Central Electoral Commission or the Lithuanian courts acted arbitrarily. To the contrary, they relied on their earlier decisions and maintained that it was still in the public interest to keep applying remand measures in respect of the applicant, whilst balancing that restriction against his right to stand for election (see paragraphs 19, 20, 29, 34 and 74 above). Last but not least, the absence of any political basis in the criminal charges against the applicant was noted more than once by the European Parliament, which the applicant had all the possibilities to persuade otherwise (see paragraphs 57, 61, and 62 above; also principle 20 in paragraph 72 above, and paragraph 98 below).

95. As to the decision-making process regarding the applicant’s electoral rights, the Court also notes that the Central Electoral Commission refused the Labour Party’s request to interfere with the court order for the applicant’s detention, on the grounds that any such attempt would be in breach of the principle of separation of powers. This also seems consistent with the States’ duty to ensure that those in charge of prosecution and adjudication of corruption offences enjoy independence and autonomy (see paragraph 35 above, also see point 3 in paragraph 72 above). The Court likewise has had occasion to emphasise that it is important for the authorities in charge of electoral administration to function in a transparent manner and to maintain impartiality and independence from political manipulation (see, mutatis mutandis, The Georgian Labour Party v. Georgia, no. 9103/04, § 101, ECHR 2008).

96. The applicant also insisted that after the parliamentary elections were over, the Lithuanian authorities loosened their grip on him. However, this does not appear to be based on the facts of his criminal case. It is true that between November 2007 and January 2008 the prosecutor granted several requests by the applicant to visit medical establishments in Kaunas and Vilnius, which were outside the area designated in the court order of 8 October 2007 setting out the conditions for the applicant’s house arrest (see paragraph 34 above and paragraphs 45 and 49 above). That being so, the Court does not consider that the State should be blamed for granting those requests, for it is clear that it would not have been in the applicant’s best interests to have refused them. Furthermore, refusing to allow the applicant to see doctors could alternatively have led to his lodging complaints that the authorities had prevented him from obtaining medical care, which, in turn, could have raised an issue under Article 3 of the Convention. It is also pertinent to stress that some of the other requests granted by the prosecutor concerned the applicant visiting places such as the Kedainiai sports school to take part in the Labour Party congress, that school being on the border of Kedainiai town and thus within the area specified in the court ruling for his house arrest (see paragraph 44 above). On the other hand, the prosecutor did not allow the applicant to leave Lithuania for Belgium, or to take part in the television show “Dancing with the Stars”, because the first event was to take place outside Lithuania, and the second was to take place outside the hours set by the court for him to be in his home (see paragraphs 46 and 47 above). Lastly, the Court notes that the applicant was released from house arrest once the pre-trial investigation was terminated and the applicant had been able to acquaint himself with the criminal case file (see paragraphs 49, 20, 52 and 53 above). In conclusion, no inconsistency can be established in the manner in which the prosecutor examined the applicant’s requests to travel within Lithuania after the parliamentary elections of 2007.

(c) As to the attention of the press to the applicant’s and the Labour party’s case

97. The applicant was also dissatisfied with the attention his and the Labour Party’s case had received in the press pending the criminal proceedings (see paragraphs 51 and 82 above). On this point the Court cannot but reiterate its constant position that the press plays an essential role in a democratic society. Although it must not overstep certain bounds, regarding in particular protection of the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest, including those relating to justice. Not only does it have the task of imparting such information and ideas, but the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog” (see Perna v. Italy [GC], no. 48898/99, § 39, ECHR 2003-V, and the case-law cited therein). Having regard to the Government’s argument about the “exceptional nature” of criminal case concerning political corruption (see paragraph 83 above; also see principle 16 in paragraph 72 above), as well as noting that the sums unaccounted for by the Labour Party amounted to millions of Lithuanian litai (see paragraph 13 above), the Court finds nothing with which to reproach the State on this point.

(d) As to the applicant’s immunity from prosecution

98. In the light of the applicant’s argument about alleged breach of his electoral rights despite his intention to pursue his “main activity to participate in elections and to represent the voters” (see paragraph 82 above), the Court does not overlook the question of the applicant’s immunity from prosecution. The guarantees offered by the different forms of parliamentary immunity serve to ensure the independence of Parliament in the performance of its tasks (see Karácsony and Others, cited above, § 138). That being so, the Court nevertheless notes that when persecuting corruption offences, the States are encouraged to limit immunity to the degree necessary in a democratic society (see principle 6 in paragraph 72 above). On the facts of the case the Court observes that during his political career the applicant held a number of elected posts. However, each time his immunity expired or was lifted, he would refuse the post. In particular, in February 2007, after being elected to the Kedainiai city municipal council, given that municipal council members do not enjoy immunity from prosecution, the applicant refused his mandate, choosing just months later to run for the Seimas (see paragraphs 18, 21 and 22 above). When he was elected to the Seimas on the Labour Party’s list in autumn 2008, and his immunity was soon lifted by the Seimas, the applicant again did not spend much time in the Lithuanian Parliament. In summer 2009 he was elected to the European Parliament, and resigned from the Seimas (see paragraphs 54 and 56 above). In 2010 the European Parliament rejected the applicant’s plea to shield him from prosecution in Lithuania (see paragraph 57 above). He was then elected to the Seimas in 2012, and resigned his seat in the European Parliament. It was for the Seimas then to permit the applicant’s prosecution (see paragraph 58 above), which again were perturbed when he was re-elected to the European Parliament two years later (see paragraph 61 above). This sequence of the applicant sidestepping the system lasted until the European Parliament again lifted his immunity in 2015, and terminated with the applicant’s conviction being upheld by the Court of Appeal (see paragraphs 62 and 63 above). The Government’s argument that the applicant sought each time to take part in elections to a different elected body and then moved on once he lost immunity in order to avoid prosecution does not appear to be without basis. This argument was also endorsed by the Central Electoral Commission and the Supreme Administrative Court (see paragraph 19 above).

99. The Court lastly reiterates that the States are required to provide appropriate measures to prevent legal entities from being used to shield corruption offences (see principle 5 in paragraph 72 above). In the present case, however, it transpires that the applicant’s political party, which itself avoided prosecution by formally changing its status (see paragraph 60 above), indeed shielded him from prosecution by systematically presenting him as a candidate in municipal, parliamentary and European Parliament elections, all of which meant that at least for a certain time the applicant could enjoy immunity from prosecution (see paragraphs 18, 24, 56, 58, 61 and 63 above).

(e) Conclusion

100. In the light of the foregoing, the Court does not find that in this case there were irregularities capable of thwarting the applicant’s right to stand for election effectively. There has accordingly been no violation of Article 3 of Protocol No. 1 to the Convention.

For these reasons, the Court, unanimously,

1. Declares the application admissible;

2. Holds that there has been no violation of Article 3 of Protocol No. 1 to the Convention.