Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque

The applicant, Ms Aldona Falkauskienė, is a Lithuanian national who was born in 1929 and lives in Girkalniai, Klaipėda Region. She was represented before the Court by Mr V. Falkauskas, a lawyer practising in Joniškis.

The Lithuanian Government (“the Government”) were represented by their Agent, Ms K. Bubnytė.

The facts of the case, as submitted by the parties, may be summarised as follows.

The historical background to the case relating to the Soviet occupation and annexation of Lithuania from 1940-1990 is summarised in Vasiliauskas v. Lithuania ([GC], no. 35343/05, §§ 11-14, ECHR 2015). The historical background relating to the circumstances of the re-establishment of the Lithuanian independence is summarised in Kuolelis and Others v. Lithuania (nos. 74357/01 and 2 others, §§ 9-25, 19 February 2008).

On 11 March 1990 the Supreme Council (Parliament) elected in the first free parliamentary elections in Lithuania under Soviet rule adopted the Act on the Re-establishment of the State of Lithuania. That Act declared the Republic of Lithuania to be an independent and sovereign State and declared that Lithuania’s incorporation into the Soviet Union had been null and void. On the same day the Supreme Council adopted the Provisional Fundamental Law (a provisional constitution) which set out the constitutional principles of the newly re-established State of Lithuania and permitted any earlier laws and other legal instruments to remain in force provided that they were not incompatible with the Provisional Fundamental Law.

On 13 March 1990 the Supreme Council adopted Regulation No. I-18 “On the status of enterprises, institutions and organisations of the Union, or of the Union and its republics, located on the territory of Lithuania” (Dėl Lietuvos teritorijoje esančių sąjunginio ir sąjunginio-respublikinio pavaldumo įmonių, įstaigų ir organizacijų statuso) which declared that all such enterprises, institutions and organisations henceforth came within the jurisdiction of Lithuania, and that issues relating to their takeover would be decided through negotiation with the Soviet Union (see paragraph 38 below).

On 16 March 1990 the Government of Lithuania adopted Regulation No. 73 “On the banks of the Republic of Lithuania” which was designed to implement aforementioned Regulation No. I-18 with respect to territorial branches of Soviet banks operating in Lithuania (see paragraph 6 above). Amongst other things, it provided that the Lithuanian branch of the Bank of Foreign Economic Affairs of the USSR (also known as “Vneshekonombank”, TSRS ekonominių ryšių su užsieniu bankas) was to be restructured and transformed into the Lithuanian Bank of Foreign Economic Affairs (Lietuvos ekonominių ryšių su užsieniu bankas). The Regulation established a special commission for taking over the relevant assets, liabilities, funds and reserves from the Soviet banks concerned, and ordered it to promptly begin negotiations with those banks concerning the takeover (see paragraph 39 below).

On 11 March 1992 the Bank of Foreign Economic Affairs of the former USSR issued Order No. 16 “On the termination of operations and subsequent liquidation of the branches of the Bank of Foreign Economic Affairs of the USSR located on the territories of the former republics of the USSR”, which liquidated its branches in “sovereign States – the former republics of the USSR” and included Lithuania. It ordered the heads of the territorial branches to terminate banking operations. The Lithuanian branch of the bank terminated its activities on 15 March 1992.

On 2 April 1992 the Government of Lithuania adopted Regulation No. 223 “On the protection of currency deposits” (amended on 30 April 1992) which required the Lithuanian branch of the Bank of Foreign Economic Affairs of the former USSR, which was then being liquidated, to transfer, by 1 May 1992, to the Bank of Lithuania (the central bank) the remainder of the funds which had been deposited with it by Lithuanian residents. Regulation No. 223 also provided that deposits transferred to the Bank of Lithuania would be guaranteed by the budget funds of the Republic of Lithuania (see paragraph 40 below).

On 25 October 1992 the Constitution of the Republic of Lithuania was adopted in a referendum. It entered into force on 2 November 1992.

In April 1993 the Ministry of Finance and the Bank of Lithuania informed the Government that the Lithuanian Bank of Foreign Economic Affairs had not been registered as an independent bank in Lithuania (see paragraph 37 below) and that it had not taken over the debts and obligations of the Bank of Foreign Economic Affairs of the former USSR. They expressed the view that the question of the return of foreign currency deposits to Lithuanian nationals should be decided via negotiations between the Lithuanian and Russian governments.

On 25 June 1993 the currency of the Republic of Lithuania – Lithuanian litas (LTL) – entered into circulation (it was replaced by the euro (EUR) on 1 January 2015). From 1 April 1994 until 1 February 2002 the LTL was pegged to the US dollar (USD) at the exchange rate of 4 LTL to 1 USD.

On 20 June 1995 the Convention and its Protocol No. 1 entered into force in respect of Lithuania.

On 30 November 1995 the Bank of Foreign Economic Affairs of the former USSR sent a letter to its Lithuanian branch stating that on 14 March 1992 (that is, the day before the latter terminated its operations see paragraph 8 above), the Lithuanian branch had had at its disposal approximately USD 1,100,000, and that the debt owed by the Bank of Foreign Economic Affairs of the former USSR to its Lithuanian branch for the funds which had been deposited therein amounted to approximately USD 9,200,000. On 15 June 1995 the representatives of the Soviet bank and its Lithuanian branch signed a joint liquidation balance declaration.

Between March 1993 and March 1999 the Lithuanian authorities adopted several legal instruments providing for partial compensation to citizens who had deposited funds with the Lithuanian branch of the Bank of Foreign Economic Affairs of the former USSR and had been unable to recover them (see paragraphs 42-43 below).

As submitted by the respondent Government, the bilateral Lithuanian-Russian working group on the return of the funds deposited with the Lithuanian branch of the Bank of Foreign Economic Affairs of the former USSR held its first meeting in October 1997. In June 1999, during its third meeting, the working group adopted a draft procedure for the return of those deposits. In October 2011, during the eighth meeting of the working group, it was agreed that the technical and financial questions relating to the implementation of the draft procedure needed to be resolved more speedily; however, no further meetings have been held since then. According to the respondent Government, the Russian Government has failed to take any concrete action, and some of the positions which it expressed in the negotiations were not acceptable to Lithuania (see paragraph 41 below).

In May 1991 the applicant received an inheritance of USD 15,800 from the USA. On 12 September 1991 she submitted a written request to the Lithuanian Bank of Foreign Economic Affairs to open a bank account in US dollars. Following her request, an account was opened and a record of the inheritance was made in that account.

The Government submitted that the applicant’s inheritance had been actually transferred to the Bank of Foreign Economic Affairs of the USSR and not to the Lithuanian bank (see their observations in paragraph 53 below; see the applicant’s observations in reply in paragraph 56 below).

In February 1992 the applicant went to the Lithuanian Bank of Foreign Economic Affairs and asked to withdraw the entire amount from her account. She was informed by the bank’s management that it did not have sufficient funds to satisfy all requests for cash withdrawal, so any such requests could be satisfied only in part. The applicant was given USD 2,000.

In April 1993 the applicant received compensation of USD 400 in line with the Government’s regulation on this matter. In August 1994 she received additional compensation of USD 500, and in April 1996 additional compensation of LTL 2,000 (see paragraphs 15 above and 42 below). The total compensation received by the applicant pursuant to the regulations in question amounted to LTL 5,600, or USD 1,400 when converted at the currency exchange rate applicable at that time (see paragraph 12 above).

The applicant subsequently sent written requests to various State institutions and officials enquiring about the possibility of recovering the remainder of her currency deposit. On 10 May 2001 the Ministry of Finance informed her that the Lithuanian and Russian authorities had agreed on a procedure for returning foreign currency deposits which had been deposited with the since-liquidated Bank of Foreign Economic Affairs of the former USSR (see paragraph 16 above) and that the Lithuanian Government would adopt appropriate decisions concerning the return of expropriated deposits to its citizens once the Russian Federation – the successor to the USSR returned them. The letter also noted that the applicant had already received compensation in line with the Government’s regulations of 1993, 1994 and 1996 (see paragraph 19 above). On 26 April 2002 the Ministry of Finance informed the applicant that the negotiations with the Russian authorities were ongoing, and that it had addressed the question of returning residents’ deposits to the Ministry of Finance of the Russian Federation “many times”, but had not received any official response. The applicant sent further letters to the authorities, but received essentially the same response on 5 December 2002 and 15 January 2003.

In October 2001 the applicant sent a letter to the Russian bank “Vneshekonombank” (formerly known as the Bank of Foreign Economic Affairs of the USSR) asking about her deposit, but on 8 November 2001 the bank replied that the applicant’s account had been “nationalised by the Lithuanian authorities” and that she should address her requests to them.

On 7 December 2006 the applicant brought a civil claim against the Lithuanian State demanding the return of her deposit, together with the interest payable since 1991 ‒ which the applicant estimated at between 7.5% and 50% per annum for different periods ‒ and compensation for nonpecuniary damage. Her claim amounted to LTL 467,000 (approximately EUR 135,000) in total.

In its response to the applicant’s claim, the Ministry of Finance submitted that the applicant’s deposit had been taken over not by the Lithuanian authorities but by the USSR because the Lithuanian Bank of Foreign Economic Affairs had never been de facto established as an independent bank and it had not taken over any assets or liabilities of the Bank of Foreign Economic Affairs of the USSR. The Ministry also submitted that the negotiations with the Russian authorities concerning the return of all such expropriated deposits were still ongoing.

On 11 February 2008 the Vilnius Regional Court dismissed the applicant’s claim. It found that the Lithuanian branch of the Bank of Foreign Economic Affairs of the USSR had never been de facto restructured as an independent Lithuanian bank because the Soviet bank had never transferred its assets, liabilities, funds and reserves to the Lithuanian authorities; furthermore, the Lithuanian Bank of Foreign Economic Affairs had never been registered as an independent bank with the Bank of Lithuania, as required by domestic law (see paragraph 37 below). Accordingly, the court held that in September 1991 the applicant’s inheritance had been transferred to the Soviet bank and not to a Lithuanian bank. Relying on the submissions of the Ministry of Finance, the court also held that during its liquidation the Soviet bank had not complied with the Lithuanian Government’s requirement to transfer all the deposits of Lithuanian nationals to the Bank of Lithuania, and deposits which had not been transferred were not guaranteed by the Lithuanian budget funds (see paragraph 9 above). The court therefore concluded that the Lithuanian State was not under an obligation to repay to the applicant the full amount of her deposit, nor the interest or the compensation for non-pecuniary damage. The court also observed that the Government had already fulfilled its obligation to partly compensate the applicant for her lost deposit (see paragraph 19 above).

The applicant appealed against that judgment, arguing that the Vilnius Regional Court had erred in finding that the Lithuanian Bank of Foreign Economic Affairs had not been established as an independent bank and that her deposit had not been taken over by the Lithuanian authorities. She submitted that legal instruments adopted by the Lithuanian authorities had unequivocally established that the Lithuanian Bank of Foreign Economic Affairs came within the jurisdiction of Lithuania (see paragraphs 6, 7 and 9 above), and Lithuania was therefore under an obligation to return the applicant’s deposit.

On 7 November 2008 the Court of Appeal dismissed the applicant’s appeal and upheld the first-instance judgment. The court reiterated that, despite various legal instruments providing for the restructuring of the Bank of Foreign Economic Affairs of the USSR as a Lithuanian bank, no such Lithuanian bank had actually been established. The court also observed that until 15 March 1992 the Soviet bank had continued to provide cash withdrawals to its depositors (see paragraph 8 above) ‒ including the applicant (see paragraph 18 above). The Soviet bank subsequently acknowledged that it was indebted to individuals who had deposited their funds with its Lithuanian branch (see paragraph 14 above), and the questions relating to those debts were being addressed in the ongoing negotiations between the Lithuanian and Russian authorities (see paragraph 16 above). The court therefore dismissed the applicant’s claim that the Lithuanian State was under an obligation to pay to her the full amount of her deposit, together with interest and compensation for nonpecuniary damage.

The applicant submitted an appeal on points of law, but on 14 April 2009 the Supreme Court dismissed it and upheld the findings of the lower courts in their entirety. It reiterated that, having established that the Lithuanian authorities had not de facto taken over the assets of the Soviet bank, no obligation to return to the applicant deposit kept in the latter bank could arise. The Supreme Court also observed that the fact that the negotiations between the Lithuanian and Russian authorities had not yet produced a positive result could not constitute grounds for obliging the Lithuanian State to pay to the applicant the amount she claimed.

The applicant initially submitted her claim of 7 December 2006 (see paragraph 22 above) to the Vilnius Regional Administrative Court. In line with domestic law, such a claim was not subject to any court fees (see paragraph 46 below). On 16 May 2007 a panel of judges specialising in the determination of jurisdictional disputes ruled that the applicant’s case related to a pecuniary claim and should therefore have been brought before a court of general jurisdiction and not before an administrative court (see paragraph 45 below). The applicant’s claim was therefore transferred to the Vilnius Regional Court.

On 24 May 2007 the Vilnius Regional Court ordered the applicant to pay court fees which, in line with domestic law (see paragraph 47 below), amounted to LTL 8,670 (approximately EUR 2,510).

The applicant asked the court to exempt her from the obligation to pay court fees. She submitted that she had lodged her claim before an administrative court and that the claim had been transferred to a court of general jurisdiction against her will. She also argued that applying different rules concerning court fees in administrative and civil court proceedings was unfair and discriminatory. However, the Vilnius Regional Court refused to examine the applicant’s request on the grounds of failure to comply with the formal requirements.

The applicant was subsequently granted State-guaranteed legal aid, whereby 50% of her legal expenses were covered by the State. As a result, on 21 June 2007 the Vilnius Regional Court reduced the court fees payable by the applicant by 50% and ordered her to pay LTL 4,330 (approximately EUR 1,250). The applicant appealed against that decision, asking to be completely exempted from paying court fees. She raised the same arguments as in her previous request (see paragraph 30 above) and also submitted that the fees were excessively high and restricted her right of access to court, but she did not make any reference to, or provide any details about her financial situation. The Court of Appeal dismissed her appeal, and the applicant subsequently paid the amount demanded.

After the Vilnius Regional Court had dismissed the applicant’s civil claim, the latter lodged an appeal (see paragraphs 24-25 above). In line with domestic law, the court fees for the submission of an appeal were calculated in the same way as those for the initial claim (see paragraph 47 below). The applicant was therefore ordered to pay LTL 4,330 (approximately EUR 1,250).

The applicant paid half of the court fees and asked the court to allow her to defer payment of the remaining half until after examination of her appeal, as provided in Article 84 of the Code of Civil Proceedings (hereinafter “the CCP”; see paragraph 48 below). She submitted that she was retired, that her retirement allowance was her only income, and that the total cost of the court fees was nearly equal to her annual income. On 27 March 2008 the Vilnius Regional Court allowed the applicant’s request and postponed the payment of half of the court fees until after the examination of the appeal. After the Court of Appeal had adopted its judgment in the civil proceedings (see paragraph 26 above), the applicant paid the remaining half of the court fees.

When the applicant submitted an appeal on points of law to the Supreme Court (see paragraph 27 above), she asked to be exempted from the obligation to pay court fees, or to defer payment until after the examination of her appeal on points of law. The applicant argued that court fees constituted an unjustified and discriminatory restriction on her right to access to court. She also submitted that her income was insufficient to afford the court fees demanded of her in the present proceedings. On 13 February 2009 the Supreme Court postponed the payment of the court fees. After dismissing the applicant’s appeal on points of law (see paragraph 27 above), the Supreme Court noted that the domestic law did not enable it to completely exempt the applicant from paying court fees (see paragraph 48 below). However, because of her difficult financial situation, the Supreme Court decided to reduce the amount demanded and ordered the applicant to pay LTL 100 (EUR 29). The applicant paid that amount.

Article 44 of the Provisional Fundamental Law, adopted on 11 March 1990 and in force until 2 November 1992, provided, in its relevant parts:

“The Republic of Lithuania guarantees to all holders of property rights the opportunity to independently manage and use their possessions in line with the Lithuanian laws ...

All holders of property rights are entitled to equal legal remedies.

The Republic of Lithuania shall protect the rights of property holders in other states.”

Article 23 of the Constitution of the Republic of Lithuania, in force since 2 November 1992, provides:

“Property shall be inviolable.

The rights of ownership shall be protected by law.

Property may be taken only for the needs of society according to the procedure established by law and shall be justly compensated for.”

Article 16 of the Law on the Bank of Lithuania, entitled “Establishing credit institutions”, in force from 13 February 1990 (i.e. before the restoration of the independence of Lithuania) until 23 December 1994, provided, in relevant parts:

“Any credit institution in the Republic [of Lithuania] can be established only with the permission of the Bank of Lithuania ...

All established credit institutions shall be registered in the registration book of the Bank of Lithuania. On the day of the registration, the credit institution becomes a legal entity and acquires the right to conduct banking operations.”

Regulation No. I-18 of the Supreme Council of the Republic of Lithuania of 13 March 1990 “On the status of the enterprises, institutions and organisations of the Union, or of the Union and its republics, located on the territory of Lithuania” (Dėl Lietuvos teritorijoje esančių sąjunginio ir sąjunginio-respublikinio pavaldumo įmonių, įstaigų ir organizacijų statuso) provides, in relevant parts:

“The Supreme Council of the Republic of Lithuania hereby decides:

To establish that all State enterprises, institutions and organisations of the Union, or of the Union and its republics, located on the territory of Lithuania on the day of the adoption of the present Regulation, henceforth come within the jurisdiction of Lithuania (pereina Lietuvos Respublikos jurisdikcijai);

To resolve the issues related to the takeover of the entities indicated in paragraph 1 by negotiations with the USSR.”

Regulation No. 73 of the Government of the Republic of Lithuania of 16 March 1990 “On the banks of the Republic of Lithuania” provides, in relevant parts:

“Implementing the Regulation No. I-18 of the Supreme Council of the Republic of Lithuania of 13 March 1990 ... the Council of Ministers of the Republic of Lithuania hereby decides:

To restructure the following Lithuanian republican banks (Lietuvos respublikiniai bankai) together with their institutions and organisations, leaving the latter subordinate to the restructured banks:

e) the Bank of Foreign Economic Affairs of the USSR – into the Lithuanian Bank of Foreign Economic Affairs;

In order to take over the assets, liabilities ... other material resources ... of the banks listed in paragraph 1 from the USSR, to create the following commission ... The commission must promptly begin negotiations with the boards of the Soviet banks concerning the takeover of the assets, liabilities, funds and reserves indicated in this paragraph.

Regulation No. 223 of the Government of Lithuania of 2 April 1992 “On the protection of currency deposits” (amended on 30 April 1992) provides, in relevant parts:

“Having regard to the fact that, at the order of the Bank of Foreign Economic Affairs of the former USSR, the Lithuanian branch of that bank (the Lithuanian Bank of Foreign Economic Affairs) is being liquidated, the Government of Lithuania hereby decides:

By 1 May 1992, the Lithuanian Bank of Foreign Economic Affairs shall transfer to the Bank of Lithuania the remaining part of the currency deposits of natural persons (fizinių asmenų indėlių likučiai) and open bank accounts for them.

The currency deposits of natural persons transferred from the Lithuanian Bank of Foreign Economic Affairs to the Bank of Lithuania shall be guaranteed by currency funds (the budget funds) of the Republic of Lithuania. ...

The Bank of Lithuania shall immediately begin negotiations with the Bank of Foreign Economic Affairs of the former USSR – the successor – concerning the return of the expropriated funds (nusavintos valiutinės lėšos) of Lithuanian natural persons and legal entities which had been deposited with the Lithuanian branch of the latter bank (in the Lithuanian Bank of Foreign Economic Affairs).”

On 19 June 2007 the Parliamentary Ombudsperson issued Conclusion No. 4D-2007/1-648 concerning a complaint by N.J.G. that she had not been able to recover her funds which had been deposited with a Soviet bank. It stated:

The restructuring of the Lithuanian branch of the Bank of Foreign Economic Affairs of the former USSR was not conducted in accordance with the procedure provided in [domestic] legislation. During its liquidation, the Lithuanian Bank of Foreign Economic Affairs did not transfer any deposits to the Bank of Lithuania, and for that reason the Bank of Lithuania was unable to take any related actions. The Bank of Lithuania refused to become the successor of the debts and obligations of [the Lithuanian Bank of Foreign Economic Affairs].

The Parliamentary Ombudsperson was informed [by the Ministry of Finance] that the question of returning funds which had been deposited with the [Lithuanian branch of the Bank of Foreign Economic Affairs of the former USSR] was being constantly raised in meetings between Lithuanian and Russian officials.

During the meeting of the Intergovernmental Commission of the Republic of Lithuania and the Russian Federation which took place on 10-12 November 2005, the Lithuanian delegation proposed that the draft procedure, agreed upon in 1999, would be implemented from 1 January 2006, but the Russian delegation was of the view that the question of returning the funds deposited with [the Soviet bank] to natural persons could be resolved only after the Lithuanian and Russian governments settled the issue of external debts and assets of the former USSR. The Parliamentary Ombudsperson was told that the Lithuanian delegation considered that the debt of [the bank] was a credit institution’s debt to its creditors, and therefore debts of natural persons should not be linked to the question of the external debt and assets of the former USSR.

The applicant’s complaints ... that the officials of the Ministry of Finance failed to adequately address the questions concerning the return of currency deposits have proved to be unfounded – the officials dealt with the applicant’s problems within the limits of their authority and in accordance with applicable legislation.”

On 5 March 1993 the Government of Lithuania adopted Regulation No. 140 “On partial compensation for the losses to the citizens and permanent legitimate residents of the Republic of Lithuania who had deposited their foreign currency deposits with the liquidated Lithuanian branch of the Bank of Foreign Economic Affairs of the USSR”, which established that each depositor was entitled to partial compensation of up to USD 400, but not exceeding 90% of the total amount of the deposit, from the State’s budget. On 16 March 1994 the Government adopted Regulation No. 176 which provided for additional compensation of up to USD 500 for each depositor, and on 2 February 1996 it adopted Regulation No. 174 which provided for further compensation of up to LTL 2,000 for each depositor.

On 5 June 1997 the Lithuanian Parliament enacted the Law on the Restoration of Residents’ Deposits, which set out the order of priority and conditions for refunding deposits which had been kept in “State banks of Lithuania” (indėliai, sukaupti Lietuvos valstybiniuose bankuose). On 30 March 1999 that Law was amended to also provide for compensation for deposits which had been deposited with the Lithuanian branch of the Bank of Foreign Economic Affairs of the former USSR. According to its Article 3 § 5, the maximum refundable amount was set at LTL 6,000, after deducting the compensation already paid in accordance with other legal instruments (see paragraph 42 above).

On 25 November 2010 the Lithuanian Parliament enacted the Law on Repealing the Law on the Restoration of Residents’ Deposits and its Amendments (see paragraph 43 above), Article 2 § 6 of which provides that funds which had been deposited with the Lithuanian branch of the Bank of Foreign Economic Affairs of the former USSR would be returned to the depositors once they had been recovered from the Russian Federation.

Article 36 § 3 of the CCP and Article 22 § 3 of the Law on Administrative Proceedings provide that when it is not clear whether a case should be examined by an administrative court or by a court of general jurisdiction, the question of jurisdiction is to be decided in written proceedings by a special panel of judges composed of the chairperson of the Civil Section of the Supreme Court, the deputy chairperson of the Supreme Administrative Court, and two other judges appointed by them.

Article 36 § 1 (10) of the Law on Administrative Proceedings provides that claims concerning damage caused by unlawful actions on the part of public administration entities are not subject to any court fees.

At the material time, Article 80 § 1 (1) of the CCP provided that court fees for monetary claims exceeding LTL 300,000 amounted to LTL 7,000, plus 1% of that part of the respective claim in excess of LTL 300,000. Article 80 § 4 provided that court fees for the submission of an appeal, including an appeal on points of law, were calculated in the same way as those for the initial claim.

Article 83 § 3 of the CCP provides that a person may be partly exempt from paying court fees because of his or her financial situation, and Article 84 provides that the payment of court fees may be deferred for the same reason. A person wishing to obtain such an exemption or deferment must submit a properly reasoned request to the court examining the case.

Article 20 § 4 of the Law on State-Guaranteed Legal Aid provides that the granting of legal aid does not preclude its recipient from requesting other exemptions provided for in laws governing civil and administrative proceedings.


Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time)

Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in 1939 and lives in Vienna. He is a former lawyer who was admitted to the bar in 1969.

On 26 January 1999 the applicant renounced his right to practise as a lawyer because he had, as a result of his gambling addiction, committed criminal offences. On 28 June 1999 the applicant was convicted of aggravated fraud and embezzlement and sentenced to seven and a half years’ imprisonment.


Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Yonko Grozev

The applicant, Mr Krstan Simić, is a citizen of Bosnia and Herzegovina, who was born in 1948 and lives in Banja Luka.

On 5 June 2007 the applicant was elected a judge of the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”).

Before becoming a judge the applicant was the vice-president of the Alliance of Independent Social Democrats (Savez nezavisnih socijaldemokrata; “SNSD”), a political party established in 1996 and based in Banja Luka, and a member of the National Assembly of the Republika Srpska.

On 30 November 2009 a local non-governmental organisation, Parents’ Forum of the Republika Srpska (Forum Roditelja Republike Srpske), informed the Constitutional Court of a letter (and sent three pages thereof) which had been written by the applicant and sent to Mr Milorad Dodik, the president of the SNSD and the then prime minister of the Republika Srpska. The letter was not dated, but according to its contents and the applicant’s own later admission it had been written and sent in May 2009.

In the letter the applicant discussed the work of the Constitutional Court and made comments concerning the work of one employee of the Republika Srpska Government. The relevant part of the letter reads (the translation has been provided by the Constitutional Court):

“I am not certain when it comes to the strategic (political) decisions that the international judges cannot be influenced by the OHR [Office of the High Representative for Bosnia and Herzegovina], but the individual judges are in no position to carry out any kind of lobbying as concerns the international judges, while in the cases such as Malbašić, the Bosniacs or Croats are not to be lobbied either, as they only have the Federation interest on their mind ...

In any event, I am always at your disposal but in the hassle and bustle that surrounds you I am afraid that you do not use my experience and opportunities sufficiently enough. My attitude is not to impose as I am aware of the problems you are in ...

[...] high average, passed the bar exam, computer proficient, possesses knowledge of English and is a member of the SNSD party.

However, in the systematization of the work duties, it should be foreseen that she retains her present duties ( ...lawsuits, has significant experience, has raised that position to high level in the Government, when she has any major problem she consults me) and also receives new assignments along with the present duties.”

The contents of the letter were subsequently published in different media.

On 3 December 2009 the Constitutional Court asked the applicant to submit his comments concerning the impugned letter.

On 31 December 2009 an interview with the applicant was published in Slobodna Bosna, the local weekly magazine, in which he said, inter alia:

“I will share, when the time comes, with the readers of Slobodna Bosna whatever I have learned during my term which could seriously compromise the work of the Constitutional Court, its judges and also certain high-level politicians.”

Another interview with the applicant was published in the same magazine on 7 January 2010, the relevant part of which reads as follows:

“I shall explain who works in the Constitutional Court of Bosnia and Herzegovina and how, and to what extent the crime has settled within the highest judicial instance of the state. And I have evidence for everything.

I am tired of keeping quiet about someone else’s criminal activities, tired of talking about how the Constitutional Court operates, which always ends up with corruption, tired of interference of the crime and politics with our work.

There is no state in the world like Bosnia and Herzegovina. We have no other institution, except the one in which I work, to protect the law and justice. Unfortunately, it has failed to do so.”

On 8 January 2010, without the knowledge and approval of the Constitutional Court, the applicant held a press conference in Banja Luka at which he made comments concerning the impugned letter. He also discussed certain cases and remarked on the impartiality of the Constitutional Court.

On 29 January 2010 the Constitutional Court held an extraordinary plenary session at which it discussed its position concerning the applicant’s conduct and decided to prepare a proposal for his removal from office.

At the Constitutional Court’s session of 25 March 2010 the applicant confirmed that he was the author of the impugned letter.

On 8 May 2010 at the extraordinary plenary session the Constitutional Court held unanimously that the applicant had breached the Rule 94 (2) of its Rules by knowingly damaging the reputation of the Constitutional Court and the reputation of a judge and decided to remove him from office. By virtue of Article VI of the Constitution, that decision was final and binding. The relevant part of the decision reads as follows (the translation has been provided by the Constitutional Court):

“1. Based on the Conclusion of the Constitutional Court of Bosnia and Herzegovina (‘the Constitutional Court’) reached at the Extraordinary plenary session held on 29 January 2010, the President of the Constitutional Court, on behalf of the Constitutional Court, submitted on 4 March 2010 a Proposal for Dismissal of the Judge of the Constitutional Court Mr Krstan Simić no. K-I-15/10 on account of a violation of Rule 94 paragraphs 1 and 2 of the Rules of the Constitutional Court.

II. Procedure before the Constitutional Court

On 30 November 2009 the Constitutional Court received a letter from the Parents’ Forum of RS-BiH from Banja Luka, accompanied by another letter (pages 1, 2 and 4) composed by Mr Krstan Simić, judge of the Constitutional Court of BiH, addressed to the president of the Independent Social-Democrats Coalition political party (‘SNSD’) and the prime minister of the Republika Srpska, Mr. Milorad Dodik.

After the contents of the referenced letter were published in the media, the President of the Constitutional Court had consultations with the national judges of the Constitutional Court. It was concluded that the issue of the public appearance of Judge Krstan Simić [was] to be discussed at the separate plenary session in terms of Rule 95 of the Rules of the Constitutional Court. It was also concluded that it should be requested from Judge Krstan Simić to submit his written statement on the Parents’ Forum letter and the letter he had addressed to the president of the SNSD Political Party and the prime minister of the Republika Srpska.

Based on the previous conclusion, on 3 December 2009, the Constitutional Court requested Judge Krstan Simić to submit his written statement concerning the Parents’ Forum letter and the controversial letter addressed to the president of the SNSD and the prime minister of the Republika Srpska.

On 14 January 2010, Judge Krstan Simić submitted his written statement.

On 29 January 2010 the Constitutional Court held an extraordinary plenary session and preliminary deliberation about the following item of the Agenda: ‘The Information and Taking a Position on the Public Appearances of Mr Krstan Simić, Judge of the Constitutional Court of Bosnia and Herzegovina’. The Constitutional Court concluded that before it resumed its extraordinary plenary session, all relevant evidence, materials and documentation should be obtained and, based on that, a proposal for the conceivable dismissal of Judge Krstan Simić drafted, to enable the Constitutional Court to deliberate and decide whether there are any reasons for his dismissal. In addition, the Constitutional Court concluded that the Proposal for Dismissal, together with the copies of all the evidence, materials and documentation should be communicated to Judge Krstan Simić to respond to, with an invitation to do so within 14 days at the latest.

On 4 February 2010 pursuant to Rule 33 of the Rules ... the Constitutional Court requested from the prime minister of the Republika Srpska to submit a copy of the third page of the aforementioned letter. The prime minister of the Republika Srpska failed to respond to the request ...

Also, on 4 February 2010, pursuant to Rule 33 of the Rules ..., the Constitutional Court requested from Alternative Television Banja Luka and the Radio-Television of the Republika Srpska and, on 12 February 2010, from the Public Broadcasting Service of Bosnia and Herzegovina and Public Broadcasting of the Federation of Bosnia and Herzegovina, to submit the complete recording of the press-conference held by Judge Krstan Simić in Banja Luka on 8 January 2010.

On 4 February 2010, pursuant to Rule 33 of the Rules ..., the Constitutional Court requested from the weekly magazine Slobodna Bosna ..., to submit the complete recording of an interview with Judge Krstan Simić, which was the subject of articles of this magazine dated 31 December 2009 and 7 January 2010 and, in case of unavailability of this tape recording, a written statement by the journalist on the authenticity of the quoted statements of Judge Krstan Simić.

Within the period from 12 February through 25 March 2010, Alternative Television Banja Luka, Radio-Television of the Republika Srpska, and the Public Broadcasting Services of Bosnia and Herzegovina and the Federation of Bosnia and Herzegovina submitted their available materials ...

On 16 February 2010 the Constitutional Court received a written statement by a journalist of Slobodna Bosna N. D., confirming the authenticity of the quoted statements of Judge Krstan Simić which were published in the articles of this magazine of 31 December 2009 and 7 January 2010.

The Proposal for Dismissal was communicated to Judge Krstan Simić on 8 March 2010. However, Judge Simić failed to submit his written statement within the given time-limit of 14 days.

On 25 March 2010 the Constitutional Court resumed its Extraordinary plenary session at which it deliberated about the item of the Agenda: ‘Consideration of the Proposal for Dismissal of Mr. Krstan Simić, Judge of the Constitutional Court of Bosnia and Herzegovina’. The Constitutional Court established that the procedure for dismissal of a judge of the Constitutional Court may be defined as an ad hoc procedure of a sui generis nature, for which there are no detailed Rules on how to conduct the procedure. For that reason and by application of Rule 79 of the Rules of the Constitutional Court, the Constitutional Court concluded that a fair hearing must be guaranteed to Judge Krstan Simić, including all the principles stipulated under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the European Convention’). Furthermore, the Constitutional Court afforded an opportunity to Judge Simić to state his position in respect of all the allegations contained in the Proposal for Dismissal before all the judges of the Constitutional Court during the proceedings at the session. The Constitutional Court then proceeded to discuss the preliminary issues, arriving at the conclusion to adjourn the session until 8 May 2010, so that the Constitutional Court could communicate, in the meantime, to Judge Krstan Simić, upon his request, the documentation he requested, render him an opportunity to access and inspect specific documents of the Constitutional Court and afford him enough time to engage a legal representative of his choice. A time-limit of 15 days was set to Judge Simić to submit his written statement in response to the Proposal for Dismissal. Also, the Constitutional Court concluded that it should resume its deliberations on 8 May 2010 even in the case that Judge Simić [failed] to appoint a legal representative, submit his written statement or attend the scheduled session. Judge Simić was notified of these conclusions orally and he agreed to them.

By letters no. K-I-16/10 of 26 March and 5 April 2010 respectively, the aforementioned conclusions were also communicated to Judge Simić in writing.

On 4 May 2010, Judge Simić submitted his written statement in which, among other things, he informed the Constitutional Court that he would not be attending the resumed extraordinary plenary session for private reasons. He also failed to appoint a legal representative or to examine the case-files of the Constitutional Court.

The Constitutional Court resumed its extraordinary plenary session on 8 May 2010 in the absence of Judge Simić.

In his responses of 14 January and 4 May 2010, Judge Krstan Simić states that the letter to the president of the SNSD and the prime minister of the Republika Srpska was sent to his friend, that it was a private letter and that he had not given his consent for that letter to be used. He, further, finds that all the media articles relating to him and the letters addressed to the Constitutional Court concerning him have been deliberately orchestrated with a view of his dismissal. He claims that the interview with journalist N.D. was not authorized and that he held the press-conference on 8 January 2010 because he was put under pressure. He also stated that all the statements given in public had been given within the scope of the freedom of expression.

VII. Position of the Constitutional Court

During the course of its extraordinary plenary session, the Constitutional Court discussed the preliminary issues, examined all available evidence, materials and documentation .... It then conducted deliberations and reached a decision on the merits by consensus that Judge Simić had to be dismissed from the office of the Judge of the Constitutional Court pursuant to Article VI(1)(c) of the Constitution of Bosnia and Herzegovina in conjunction with Rule 101 paragraph 1 line 5 of the Rules of the Constitutional Court due to the violation of Rule 94 paragraph 2 of the Rules of the Constitutional Court for the following reasons:

VII.1. Contents of the letter of Judge Krstan Simić

In accordance with the constitutional principle of the rule of law, the Constitutional Court must be an independent and impartial constitutional authority. That, in principle, primarily defines its relation to the executive authority. The independence and impartiality of the Constitutional Court implies that its judges are free, that they do not have to be accountable to anyone and that they are not bound by anyone’s instructions (cf. the Judgment of the European Court of Human Rights Ringeisen v. Austria, Series A, No. 13, of 16 July 1971, paragraph 95; Schiesser v. Switzerland, Series A, No. 34, of 4 December 1979, paragraph 29). Furthermore, it is not only required that the judges of the Constitutional Court are truly independent but also to appear to be so, which is subject to an objective test (cf. the Judgment of the European Court of Human Rights, Campbell and Fell v. the United Kingdom, Series A, No. 80, of 28 June 1984, paragraph 77 and ff).

It clearly follows from the contents of the letter that the president of the SNSD, Mr Milorad Dodik, had been in contact with Judge Krstan Simić (first page of the letter) even before the controversial letter was ever written. Judge Simić responded to those contacts by written communication. Furthermore, Judge Simić states in his letter that he is ‘always at disposal’ of the president of SNSD, offering him openly ‘his experience and opportunities’ (page 2 paragraph 7). Moreover, his letter contains an unsolicited request for a higher degree of cooperation, which clearly follows from the statement: ‘I am afraid that you do not use my experience and opportunities sufficiently enough’. In addition, Judge Simić openly discusses the possibility of employing someone from the SNSD personnel in the executive authorities of the Republika Srpska, giving his opinion and recommendations in respect of those persons and stating that those persons are in consultations with him whenever there appears any major problem (page 4, paragraph 2). According to this, Judge Simić is in the habit of giving advice to the officials of the executive authorities of one of the Entities.

Given the contents of the controversial letter and taking into account the fact that Judge Simić held the office of the first vice-president of the SNSD, prior to taking the office of the judge of the Constitutional Court, an objective observer gets an inevitable impression that Judge Simić did not sever relations with his former political party and its president and that he is prepared to continue maintaining such contacts which are useful to that political party. As a matter of fact, he is even initiating them. That may be clearly concluded from the statements made in the letter, offering his expertise and experience, a higher degree of cooperation, and rendering his own opinions and advice to one of the members of his former party ‘wherever he has a major problem’ in the Government of the Republika Srpska.

Such ties between a judge of the Constitutional Court and political parties, i.e. executive authorities of one of the Entities, may be defined as liaisons incompatible with the institutional and operative independence of the Constitutional Court, which all judges must endeavour to strengthen. In the public eye, such relations are damaging to the reputation of the Constitutional Court, in particular as concerns the perception of its independence and impartiality, i.e. the prohibition of preferential treatment of specific parties.

Accordingly, Judge Simić, by such statements, has deliberately endangered and inflicted damage on the independence of the Constitutional Court, thereby undermining both his reputation as a judge of the Constitutional Court and the reputation of the Constitutional Court itself, in terms of Rule 94 paragraph 2 of the Rules of the Constitutional Court.

The fact that the controversial letter was not of business but of private nature does not affect this conclusion of the Constitutional Court and neither does the fact that Judge Simić and the president of SNSD and the prime minister of the Republika Srpska, Mr Milorad Dodik, are friends as indicated by Judge Simić. The obligation of a judge of the Constitutional Court, as the holder of the judicial authority to safeguard the independence of the court as an institution and his own independence in relation to the holders of the other authority, is in effect in both private and professional relations. Therefore, even if the letter was of private nature, it may still endanger the independence of a judge of the Constitutional Court and the Constitutional Court itself as an institution.

VII.2. Public appearances of Judge Krstan Simić

Furthermore, in the interviews given to the weekly magazine Slobodna Bosna on 31 December 2009 and 7 January 2010 and at the press conference held on 8 January 2010 in Banja Luka, Judge Simić presented serious accusations against the judges of the Constitutional Court and the Constitutional Court itself as an institution, associating them with (a) crime (b) corruption (c) interference of politics with the work of the Constitutional Court and (d) failure to perform the constitutional function it has been entrusted with. Moreover, Judge Simić claimed he had evidence to substantiate his allegations.

Judge Simić did not deny the quoted allegations, pursuant to the applicable Defamation Act, or in any other manner. On the other hand, on 16 February 2010, the Constitutional Court received a written statement by the journalist of the weekly magazine Slobodna Bosna, N. D., confirming the authenticity of the quoted statements of Judge Simić. The Constitutional Court, therefore, considers the statements given in public by Judge Krstan Simić to be accurately quoted.

Judge Simić invoked freedom of expression as guaranteed under Article II (3) (h) of the Constitution of BiH and Article 10 of the European Convention. In his opinion the freedom of expression allows him to express his opinion publicly and in the manner as he has done. Finally, he stated that pressure was applied on him as a judge, on account of which he found it necessary and justified to state his opinion in public.

The Constitutional Court emphasizes that freedom of expression is extremely important for democracy and democratic processes in a society. The state must pay special attention to this particular freedom ...This Article not only protects the information and ideas perceived as positive or considered hazardless or those on which no position has been taken, but also those that offend, shock and disturb. That is what tolerance and pluralism require and without that there is no democratic society (cf. AP 1819/07 of 11 November 2009, the judgment of the European Court of Human rights, Handyside v. the United Kingdom, Series A, No 24, of 7 December 1976, paragraph 49). This is particularly the case when it concerns the public personalities or institutions of authority since the threshold of tolerance must be raised to a higher level (cf. judgment of the European Court of Human Rights, Castells v. Spain, Series A, No 236, of 23 April 1992, paragraph 46).

Nevertheless, the freedom of expression under Article II (3) (h) of the Constitution and Article 10 of the European Convention is not absolute ... according to Article 10 paragraph 2 of the European Convention, freedom of expression ‘may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests [...] or for maintaining the authority and impartiality of the judiciary’.

The Constitutional Court finds that the sanction of dismissal of a judge from office of the Judge of the Constitutional Court, under Article VI (1) (c) of the Constitution of Bosnia and Herzegovina in conjunction with Rule 101 paragraph 1 line 5 of the Rules of the Constitutional Court, i.e. on account of a severe violation of Rule 94 paragraph 2 of the Rules of the Constitutional Court, may be a justified measure for non-compliance with the restrictions of the freedom of expression.

Therefore, as previously stated, every judge of the Constitutional Court must be aware that by accepting his/her judicial office he/she also accepts certain restrictions in terms of public appearances. The goal of such restrictions is to protect public interest – the confidence of the public in respect of the judiciary, protection of its independence and impartiality, the integrity, reputation and honour of judges. When a judge appears in public, his/her main concern must be the protection of that public interest.

Judge Krstan Simić appeared in public on his own initiative, through written media and by organising the press conference. Judge Simić was aware that organising a press conference in such a manner was unprecedented as far as the Constitutional Court is concerned, as he himself stated prior to the press conference. He pointed out that his appearance was contrary to the position of the Constitutional Court concerning public relations. The Constitutional Court, further, holds that the purpose of those public appearances was to seriously discredit and raise charges against the other judges of the Constitutional Court and the Constitutional Court as an institution and their disqualification. Finally, Judge Simić publicly presented his claim that the Constitutional Court did not protect the law and justice, i.e. that it did not perform its duties in a proper and professional manner. Judge Simić publicly promised that these grave charges against the Constitutional Court and its judges would be substantiated by evidence, stating: ‘I have all the evidence’.

The Constitutional Court holds these appearances to be completely contrary to the high judicial standards of behaviour of judges. Indeed, even if those statements of Judge Simić were founded, his conduct was completely unprofessional and inconsistent with the principles of a fair hearing. Namely, a judge, even if he or she claims to be in a possession of evidence for the alleged criminal activity of the individual judges, must not act outside the institution, present his of her position in public and prejudge a conceivable outcome ... (presumption of innocence) but must use relevant state system, provided for by the positive regulations of Bosnia and Herzegovina which makes possible the examination of such claims in accordance with its jurisdiction, relevant procedure and substantive legal grounds. Judge Simić, prior to presenting his positions and claims in public, did not even attempt to tackle these issues within the Constitutional Court, although prior to his public appearances he knew that the Constitutional Court, sitting in a plenary session, would give him the opportunity to discuss the issue of his position in the Constitutional Court, where he could have presented his allegations and positions. Moreover, according to what the Constitutional Court learned about this matter, Judge Simić did not even attempt to submit any evidence to the competent prosecutor’s offices in Bosnia and Herzegovina.

Due to aforesaid, the public appearances of Judge Simić have brought into question the confidence of the public in respect of the constitutional-judicial authority as well as the Constitutional Court as an institution ... Judge Simić thereby inflicting damage to the dignity of the Constitutional Court and its judges. This is best illustrated by the introductory notes of the journalist of Slobodna Bosna in the article dated 31 December 2009 ‘The highest judicial institution of the state, the Constitutional Court of Bosnia and Herzegovina, is dangerously shaken up these days under the burden of insinuations, corruption charges, political set-ups and party conflicts!’.

According to the established facts, it is not possible to find any reasons which could justify Judge Simić in his actions. The Constitutional Court does not find his claim of having been under pressure to be well-founded.

On the basis of the established facts, the Constitutional Court concludes that Judge Simić had consciously overstepped the allowed restriction on freedom of expression of a judge, thereby undermining the reputation and dignity of a judge of the Constitutional Court in contravention with Rule 94 paragraph 2 of the Rules of the Constitutional Court. In that manner, Judge Simić inflicted damage to his own reputation and dignity as a judge as well the reputation of the other judges and the Constitutional Court as an institution.

VII.3. Conclusion

The Constitutional Court emphasizes first and foremost that it operates in highly complex legal and political circumstances. At this stage of the constitutional development of Bosnia and Herzegovina, the role of the Constitutional Court is very important and difficult while, objectively, its decisions have a significant impact on political processes within the state. The Constitutional Court resolves, amongst other things, complicated constitutional issues with far-reaching implications, often involving legislative or executive authorities at the state- or entity-level as direct participants. This very fact shows that there exists an undeniable public interest for the Constitutional Court to build and maintain its reputation, independence and impartiality and not to allow these principles to be endangered or violated. Otherwise, the authority of the Constitutional Court as an institution and the authority of its decisions shall be lost. The Judges of the Constitutional Court, as the distinguished jurists of the highest moral standing, must be aware of these principles at any given moment.

... With his actions, Judge Simić inflicted great damage on the Constitutional Court, reflected in undermining of the confidence of the public and the authorities in respect of the independence, impartially and professional work of the Constitutional Court as well as degrading of the achieved results.

The Constitutional Court holds that it will have to bear the consequences of the aforementioned actions of Judge Krstan Simić for a long time and that it will have to make an extra effort to regain the undermined confidence of the public and public authorities in its autonomy, independence, impartiality and professionalism.

... The Constitutional Court holds that the conditions have met to take the decision on dismissal of Judge Krstan Simić from his office, in pursuance of Article VI(1)(c) of the Constitution of BiH.

Pursuant to Article VI ... of the Constitution of Bosnia and Herzegovina, this decision of the Constitutional Court shall be final and binding and shall not be subject to any review before any legislative, judicial or administrative authority.”

The decision was not served on the applicant but was published in the Official Gazette of Bosnia and Herzegovina on 6 July 2010.

On 28 June 2010 the applicant initiated proceedings before the Court of Bosnia and Herzegovina (“the State Court”) seeking to annul the Constitutional Court’s decision of 8 May 2010.

On 9 December 2010 the State Court declared that it lacked jurisdiction to examine the case as the Constitutional Court had exclusive jurisdiction in all matters concerning the status of its judges.

On 24 January 2011 the Appeals Chamber of the State Court upheld the decision of 9 December 2010.

The Constitution of Bosnia and Herzegovina (Annex 4 to the General Framework Agreement for Peace in Bosnia and Herzegovina) entered into force on 14 December 1995. The Constitutional Court was set up pursuant to Article VI of the Constitution, which, in so far as relevant, reads as follows:

“The Constitutional Court of Bosnia and Herzegovina shall have nine members.

a) Four members shall be selected by the House of Representatives of the Federation, and two members by the Assembly of the Republika Srpska. The remaining three members shall be selected by the President of the European Court of Human Rights after consultation with the Presidency.

b) Judges shall be distinguished jurists of high moral standing. Any eligible voter so qualified may serve as a judge of the Constitutional Court. The judges selected by the President of the European Court of Human Rights shall not be citizens of Bosnia and Herzegovina or of any neighbouring state.

c) The term of judges initially appointed shall be five years, unless they resign or are removed for cause by consensus of the other judges. Judges initially appointed shall not be eligible for reappointment. Judges subsequently appointed shall serve until age 70, unless they resign or are removed for cause by consensus of the other judges.

The Constitutional Court shall uphold this Constitution.

a) The Constitutional Court shall have exclusive jurisdiction to decide any dispute that arises under this Constitution between the Entities or between Bosnia and Herzegovina and an Entity or Entities, or between institutions of Bosnia and Herzegovina, including but not limited to:

- Whether an Entity’s decision to establish a special parallel relationship with a neighbouring state is consistent with this Constitution, including provisions concerning the sovereignty and territorial integrity of Bosnia and Herzegovina.

- Whether any provision of an Entity’s constitution or law is consistent with this Constitution.

b) The Constitutional Court shall also have appellate jurisdiction over issues under this Constitution arising out of a judgment of any other court in Bosnia and Herzegovina.

c). The Constitutional Court shall have jurisdiction over issues referred by any court in Bosnia and Herzegovina concerning whether a law, on whose validity its decision depends, is compatible with this Constitution, with the European Convention for Human Rights and Fundamental Freedoms and its Protocols, or with the laws of Bosnia and Herzegovina; or concerning the existence of or the scope of a general Rule of public international law pertinent to the court’s decision.

Decisions of the Constitutional Court shall be final and binding.”

The relevant provisions of the Rules of the Constitutional Court (Official Gazette of Bosnia and Herzegovina, nos. 60/05, 76/05, 64/08, 51/09, 22/14 and 57/14) read as follows (the translation has been provided by the Constitutional Court):

Rule 38

(Attendance of the sessions)

“The sessions of the Constitutional Court shall be attended by the judges, the Secretary General, the Registrar, the Heads of Departments and the person responsible for public relations.

The President of the Constitutional Court may decide for other qualified persons to attend the session.”

Rule 46

(Public hearing)

“When necessary to directly deliberate on an issue relevant for taking a decision during the proceedings before the Constitutional Court, the plenary Court shall hold a public hearing.

The Constitutional Court shall take a decision on the need to hold a public hearing, on a proposal of a Judge Rapporteur or another judge”.

“The judges of the Constitutional Court shall be selected in accordance with Article VI(1) of the Constitution.

The judges shall be distinguished lawyers of high moral standing...”

Rule 82 (former Rule 85)

(Solemn declaration)

“Before taking up office each elected judge shall, at the first sitting of the plenary Court at which the judge is present, or in case of need before the President of the Constitutional Court, take the following oath or make the following solemn declaration:

I solemnly declare that in exercising my functions as a judge of the Constitutional Court of Bosnia and Herzegovina, I will uphold the Constitution and laws of Bosnia and Herzegovina and that I will exercise my functions as a judge conscientiously and impartially.”

“The judges shall perform the function of a judge conscientiously.

The judges shall uphold the reputation and dignity of the Constitutional Court and the reputation and dignity of a judge.”

“The position of a judge shall be incompatible with:

a) a membership in a political party or a political organization in Bosnia and Herzegovina ...”

“(1) A judge may be dismissed from office before the end of his or her term in the following cases:

e) if he or she fails to perform the function of a judge in accordance with Rule 91 of these Rules.

(2) The Constitutional Court shall establish the existence of reasons referred to in paragraph 1 of this Article and it shall dismiss the judge from office on the basis of a consensus of other judges and inform the body which elected that judge.”


Violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence)

Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1967 and until his conviction lived in Ivdel, a town in the Sverdlovsk Region.

In April 2000 the applicant was arrested on charges of murder and arson.

On 24 July 2000, as the investigation unfolded, the local official newspaper the North Star printed an interview with a deputy town prosecutor about a spike in murder rates. The prosecutor said:

“In the first half of 2000 our town reported fourteen murders – a historic high, it seems. Twelve of them have already been solved, thanks to the industry of the police department and the investigators from the prosecutor’s office....

The fingerprint identification of ex-convict [N.B.] (whose body was found in [a river]) has allowed to discover his enemies and to prove that he was beaten by three inhabitants of Ivdel seeking [...] to settle scores for his murder of [another man] for which [he] had served almost nine years. It has been established that [N.B.’s] two murderers – [the applicant’s codefendant] and S. Turyev, both ex-convicts – were complicit in the earlyMarch murder of [L.R.] who had dared to report them to the police for past wrongs. [Her] body was dumped in a wood near the airport and was found only in May. As those crimes were not solved in time, [the applicant’s codefendant] rampaged on and on 20 April killed [another woman] who had witnessed the night-time arson at Vizhayskaya Street that had killed five.

By the way, both [L.R.] and [the other woman] (whose body was found in a well next to the sports centre) had been garrotted with a wire. All three persons arrested in this multicount case will undergo forensic psychiatric observation because of the gravity of the crimes committed, which carry up to twenty years or life in prison. But even after these downright senseless murders, the crime wave in the town continued.”

When the case came to trial before the Sverdlovsk Regional Court, the applicant moved to disqualify the prosecutor for the prejudice apparent in that interview. On 4 October 2002 the court refused the motion because the prosecutor had only cited facts from the investigative file, had affirmed the applicant’s complicity but not his guilt, and was not personally interested in the outcome of the trial.

On 22 January 2003 the court sentenced the applicant to twenty years’ imprisonment for arson and the murders of N.B. and L.R. On 23 October 2003 the Supreme Court upheld the sentence, leaving unanswered the applicant’s complaint about the press interview.

In reply to a post-conviction complaint brought by the applicant, in December 2004 the Sverdovsk Regional Prosecutor’s Office found that the interview had breached the agency’s ethics policy as it had preceded the trial without, however, tangibly redressing the applicant.