Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-e - Persons of unsound mind);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicant was born in 1956 and lives in Dnipropetrovsk.

He instituted numerous sets of proceedings before the domestic courts at various times.

In July 2009 the Dnipropetrovsk Regional Administrative Court received several letters from the applicant, which contained extremely rude remarks about the judges involved in his cases (including calling one of the judges “a louse [whose recusal was] warranted by his basic knowledge of parasitology”).

On 23 July 2009 the court drew up an administrative offence report in respect of the letters, stating that the applicant was in contempt of court. The case was sent to the Krasnogvardiyskyy District Court of Dnipropetrovsk (“the Krasnogvardiyskyy Court”) for examination.

On the same day the Krasnogvardiyskyy Court, sitting in a single-judge formation, held a hearing with the applicant’s participation. According to the minutes of the hearing, the applicant insisted on his vision of the situation as presented in his letters, which he did not consider to be rude. Having studied the case file and heard the applicant, the court ordered an in-patient forensic psychiatric examination of the applicant with a view to establishing whether he could be held legally accountable. The examination in question was to be carried out by the Forensic Psychiatric Examinations Department of the Dnipropetrovsk Regional Psychiatric Hospital (“the psychiatric hospital”). The judge relied on Article 20 of the Code of Administrative Offences and section 21 of the Psychiatric Assistance Act (see paragraphs 60 and 63 below). The ruling stated that it was not amenable to appeal.

The applicant was taken by the police from the hearing room to the Krasnogvardiyskyy District police station, where he was held for about three hours. He was then taken to the psychiatric hospital.

On the following day, 24 July 2009, the psychiatric hospital informed the Krasnogvardiyskyy Court that it would be unable to conduct a forensic psychiatric examination of the applicant, as ordered by the court, because there were no documents about his collateral history or personality in the case file. The applicant was discharged from the hospital without any documents having been issued concerning his psychiatric condition.

On 31 July 2009 the applicant lodged an appeal against the ruling of 23 July 2009. He submitted, in particular, that it had been in breach of his right to the presumption of good mental health and that such a ruling was not mentioned in the list of rulings a court was entitled to deliver under the Code of Administrative Offences. The applicant also referred to the statement contained in the impugned ruling that it was not amenable to appeal as another indication of its unlawfulness and arbitrariness.

On 4 August 2009 the President of the Krasnogvardiyskyy Court instructed the police to collect information on the applicant’s personality, which was required for the psychiatric hospital to establish his mental state. The police were instructed, in particular, to collect any documentation relating to psychiatric treatment or drug therapy received by the applicant, as well as character references for him from his relatives, neighbours and colleagues.

On the same day two of the applicant’s neighbours wrote quite positive character references about him for the police.

On 6 August 2009 the local hospital informed the police that the applicant had no psychiatric medical history and was not under psychiatric monitoring.

On 14 August 2009 the Dnipropetrovsk Regional Court of Appeal dismissed the applicant’s appeal against the ruling of 23 July 2009 without examining it on the merits. It noted that the contested ruling concerned a procedural issue and was not amenable to appeal.

On 2 September 2009 the Krasnogvardiyskyy Court requested the police to ensure that the applicant attended for his in-patient forensic psychiatric examination.

On 14 September 2009 the police took the applicant back to the psychiatric hospital. The circumstances of the apprehension are unclear.

On 21 September 2009 a senior expert at the forensic psychiatric examinations department of the psychiatric hospital wrote a letter to the Krasnogvardiyskyy Court in which he noted that some additional documents were required in connection with the applicant’s examination: a character reference from his former employer and detailed information about his mental state from his cousin and ex-wife. Without that information it was considered impossible to carry out his examination.

On 2 October 2009 the applicant’s cousin explained the applicant’s character and behaviour, without noting any particularities. He also stated that the applicant had never been married.

On 8 October 2009 the board of experts delivered its report, according to which, “given the complexity of the case and lack of clarity of the clinical picture”, it was impossible to establish a diagnosis and to give an expert conclusion regarding the applicant’s mental state. It was therefore recommended that he undergo another examination.

On the same date the applicant was discharged from the hospital without having received the expert report. According to him, one of the experts had assured him that he was in good mental health.

On 6 November 2009 an official from the psychiatric hospital wrote to the applicant, in reply to his request for a copy of the report of 8 October 2009, stating that he should ask the Krasnogvardiyskyy Court for a copy of the report, as it had been sent there.

On the basis of the material in the case file, on 19 November 2009 the Krasnogvardiyskyy Court ordered that the applicant undergo another in-patient forensic psychiatric examination. The applicant attempted to challenge that decision on appeal but was unsuccessful.

On 1 December 2009 the psychiatric hospital returned the case file to the Krasnogvardiyskyy Court without having conducted the psychiatric examination in question. Referring to the respective order of the Public Health Ministry, it said that the Kyiv City Centre of Forensic Psychiatric Examinations or the Ukrainian Research Institute of Social and Forensic Psychiatrics should carry out any further forensic psychiatric examinations required in such complex cases.

On 18 January 2010 the Krasnogvardiyskyy Court adjourned its hearing with a view to organising the applicant’s further psychiatric examination and its financing.

On 20 January 2010 the Deputy President of the Krasnogvardiyskyy Court enquired with the local Territorial Department of the State Judicial Administration whether the latter could pay for the applicant’s further psychiatric examination. The reply sent on 22 January 2010 was that no such payment would be possible until the annual budget had been approved.

On 25 January 2010 the court ordered the applicant’s outpatient psychiatric examination to be carried out by the Zaporizhzhya Regional Psychiatric Hospital.

Following numerous unsuccessful attempts to ensure the applicant’s attendance, on 16 July 2010 the hospital returned the case file to the Krasnogvardiyskyy Court without having complied with its order.

On 9 August 2010 the Krasnogvardiyskyy Court discontinued the administrative offence proceedings against the applicant as time-barred.

The applicant appealed against that ruling. He sought the termination of the proceedings on the ground that no administrative offence had been committed.

On 17 September 2010 the Dnipropetrovsk Regional Court of Appeal, following a hearing with the applicant’s participation, rejected his appeal by a final ruling.

It appears from the case-file materials that on 9 November 2009 the applicant instituted administrative proceedings in the Zhovtnevyy District Court of Dnipropetrovsk (“the Zhovtnevyy Court”) against the psychiatric hospital. He sought that his hospitalisation and confinement in that hospital be declared unlawful and claimed 500,000 Ukrainian hryvnias (UAH, at the time equivalent to about 41,000 euros) in respect of non-pecuniary damage. The applicant has not submitted a copy of that claim to the Court.

On 7 June 2011 the Zhovtnevyy Court allowed the applicant’s claim in part. Relying, in particular, on Article 5 of the Convention, the court concluded that the applicant’s admission to hospital on 23 July and 14 September 2009, as well as his psychiatric confinement from 23 to 24 July and from 14 September to 8 October 2009, had been unlawful. More specifically, the court considered that the defendant had acted in breach of the presumption of the good mental health of the applicant. Furthermore, the hospital in question was only entitled to conduct forensic psychiatric examinations of detainees, whereas the applicant had not been in detention at the time of the events. The court also noted that, even though the applicant’s examination had been ordered by a judicial decision, the hospital could have refused to carry it out. The applicant’s claim for compensation in respect of non-pecuniary damage was, however, rejected.

On 1 September 2011 the Dnipropetrovsk Administrative Court of Appeal quashed the aforementioned judgment and terminated the proceedings on the ground that the case did not fall to be examined under the administrative procedure.

On 11 October 2011 the Higher Administrative Court dismissed the applicant’s appeal on points of law against the ruling of 1 September 2011 as belated.

On 14 November 2011 the Higher Administrative Court informed the applicant that it remained open for him to lodge a new appeal on points of law together with a request for renewal of the time-limit.

The case file before the Court does not contain copies of the applicant’s appeals on points of law or his requests for renewal of the time-limits for lodging those appeals.

It appears from the case file that on 25 January 2010 the applicant brought another administrative claim against the psychiatric hospital before the Zhovtnevyy Court. He requested that the court recognise as unlawful the hospital’s refusal to provide him with a copy of the examination report of 8 October 2009 (see paragraphs 21-23 above). The applicant also claimed UAH 10,000 (at the material time equivalent to about EUR 880) in respect of non-pecuniary damage. The applicant has not provided the Court with a copy of that claim.

On 5 July 2011 the Zhovtnevyy Court allowed the applicant’s claim in part. It recognised as unlawful the hospital’s refusal to provide him with a copy of the examination report of 8 October 2009 and awarded him UAH 500 (equivalent of about EUR 40) in respect of non-pecuniary damage.

Both the applicant and the defendant appealed. The applicant claimed a higher award. The hospital argued, in particular, that the case did not fall to be examined in the administrative courts.

On 17 October 2011 the Dnipropetrovsk Administrative Court of Appeal upheld the ruling of the first-instance court. It noted that the hospital was a public health establishment and that the administrative courts were thus competent to deal with the case. The appellate court also stated that its ruling could be challenged on points of law before the Higher Administrative Court.

The applicant has not informed the Court whether he appealed on points of law against the ruling.

On 25 January 2010 the applicant brought a civil claim against the psychiatric hospital before the Zhovtnevyy Court, seeking compensation for non-pecuniary damage. He has not submitted a copy of his claim to the Court.

On 12 February 2010 the Zhovtnevyy Court returned that claim to the applicant on the ground that it had no territorial jurisdiction to deal with it. It informed the applicant that he should lodge his claim with the Samarskyy District Court of Dnipropetrovsk, the district in which the respondent hospital was located.

The applicant appealed against the above ruling. He has not submitted to the Court a copy of his appeal.

On 25 May 2010 the Dnipropetrovsk Regional Court of Appeal upheld the ruling of 12 February 2010.

The applicant lodged an appeal on points of law.

On 22 June 2010 the Supreme Court noted that the applicant had failed to pay the court fees and gave him until 29 July 2010 to rectify that omission.

On an unspecified date in July 2010 the applicant requested that the Supreme Court exempt him from the court fees. He has not submitted a copy of his request to the Court. According to a summary of the request in the respective ruling of the Supreme Court (see below), the applicant referred to the Court’s judgment on his earlier case (no. 29875/02, 22 November 2007), in which a violation of Articles 6 and 13 of the Convention, as well as Article 1 of Protocol No. 1, had been found on account of the lengthy non-enforcement of an unrelated final domestic judgment in his favour.

On 10 August 2010 the Supreme Court rejected the aforementioned request and dismissed the applicant’s appeals on points of law.

On 30 November 2009 the applicant complained to the Krasnogvardiyskyy District Prosecutor’s Office against some judicial officials involved in his cases and against the police officers involved in his taking him to hospital for psychiatric examination. The applicant did not provide the Court with a copy of the complaint.

On 29 December 2009 the prosecutor refused to open a criminal case in respect of the applicant’s complaint. The case file does not contain a copy of that ruling.

On 23 March 2010 the Dnipropetrvosk Regional Prosecutor’s Office quashed the prosecutor’s refusal and ordered an additional investigation.

On 9 April 2010 the Krasnogvardiyskyy Prosecutor’s Office once again refused to open a criminal investigation into the matter. It was noted in its ruling, in particular, that the applicant had disregarded numerous written summonses and telephone calls by the investigator.

The applicant alleged that while he had been in hospital, some money had been stolen from his flat. When he had returned home he had allegedly discovered a briefcase there containing personal documents belonging to a person unknown to him. The applicant complained to the police.

On 16 December 2009 the police opened a criminal case in respect of the alleged theft of the applicant’s property.

There is no further information on that investigation in the case file.


CASE OF SAMADBAYLI AND OTHERS v. AZERBAIJAN

Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Stand for election)

The applicants’ years of birth and places of residence are listed in the Appendix.

5Gahramanli and Others v. Azerbaijan (no. 36503/11, §§ 6-32, 8 October 2015).

The applicants were independent self-nominated or opposition candidates in the parliamentary elections of 7 November 2010 (see Appendix). All the applicants lost the elections in their respective constituencies.

After election day, the applicants lodged complaints with the Central Electoral Commission (“the CEC”) concerning a number of irregularities in their respective constituencies that had allegedly taken place during and/or before election day. Some of them also lodged identical complaints with the respective Constituency Electoral Commissions (“the ConECs”). They complained about various types of irregularities, including interference by public officials, illegal campaigning, obstruction and intimidation of election observers, ballot-box stuffing, repeated voting by the same individuals, irregularities in applying election ink, incorrect vote-counting procedures, inconsistencies in precinct election results records indicating a falsely inflated voter turnout, and so on. In support of their allegations, the applicants submitted various types of evidence documenting specific instances of the irregularities complained of, including statements made by election observers, video recordings and photographs.

The applicants who lodged a complaint with the respective ConECs did not receive any reply from them (except in applications nos. 36821/11, 37656/11, 37740/11, 41066/11 and 42360/11). All of the applicants’ complaints were examined by the CEC which, on various dates (see Appendix), issued decisions rejecting the applicants’ claims, providing reasoning similar to that in the CEC decision in Gahramanli and Others (cited above, §§ 21-26).

The applicants lodged further complaints with the Baku Court of Appeal and the Supreme Court which, on various dates (see Appendix), dismissed the applicants’ appeals, providing reasoning similar to that in their respective decisions in Gahramanli and Others (cited above, §§ 2732).

In the meantime, however ‒ and before the Supreme Court delivered its final decision concerning each complaint (except in application no. 42345/11) ‒ on 29 November 2010 the Constitutional Court confirmed the countrywide election results, including the election results in the applicants’ constituencies, as final (ibid., § 30).

At the material time Mr Intigam Aliyev was representing not only the applicants in the present cases, but a total of twentyseven other applicants in cases concerning the 2010 parliamentary elections and a number of applicants in other cases before the Court.

On 8 August 2014 criminal proceedings were instituted against Mr I. Aliyev, these being the subject of a separate application brought by him before the Court (application no. 68762/14). On 8 and 9 August 2014 the investigation authorities seized a large number of documents from Mr I. Aliyev’s office, including all the case files relating to the proceedings pending before the Court which were in Mr Aliyev’s possession, comprising over 100 applications in total. The files relating to the present applications were also seized in their entirety. The facts relating to the seizure and the relevant proceedings are described in more detail in Annagi Hajibeyli v. Azerbaijan (no. 2204/11, §§ 21-28, 22 October 2015).

On 25 October 2014 the investigation authorities returned a number of the case files concerning the applications lodged before the Court, including the files relating to the present applications, to Mr Aliyev’s lawyer.


Preliminary objection dismissed (Article 37-1 - Striking out applications;Article 37-1-b - Matter resolved);Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);Non-pecuniary damage - award

André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicant was born in 1970 and lives in Venissieux.

A. Facts at the time the application was lodged

In the course of 2000 the applicant, a Congolese national, was granted refugee status under the mandate of the United Nations High Commissioner for Refugees in Cameroon (hereafter UNHCR/Cameroon). According to his certificate of refugee status, he was accompanied by his wife, who also held such a certificate, and his children (Vanessa Ntabugi, born in the Democratic Republic of Congo in 1994, and Michelle Tanda-Ngubiri, born in 2001 in Cameroon). The couple had a third child (Benjamin Tanda) who was born in Yaoundé (Cameroon) in 2004, but the applicant was absent when his son was born, having left Cameroon to claim asylum in France.

On 19 July 2004 the French Office for the Protection of Refugees and Stateless Persons (hereafter, the OFPRA) rejected his claim. On 6 August 2004 the applicant appealed against that decision. By a decision of 8 February 2007, the Refugee Appeals Board (the Commission des recours des réfugiés, formerly the National Asylum Tribunal, the Commission nationale du droit d’asile, CNDA) granted the applicant refugee status. He obtained a ten-year residence permit and in April 2007 the OFPRA issued him with a marriage certificate and a family record book (livret de famille), serving as civil-status documents.

By a letter of 26 June 2007, for the purpose of family reunion and on the basis of the “family reunification” procedure for certified refugees (see paragraph 36 below), the applicant applied for long-stay visas for his wife and three children. By a letter of 28 June 2007, the Movement of Aliens Section at the Ministry of Foreign Affairs informed the applicant that it would contact the OFPRA to verify, on the basis of the statements which had enabled him to be granted refugee status, whether those persons were indeed members of the family group, before contacting the French consular services in Yaoundé with a view to compiling an application file for long-stay visas.

By a letter of 13 February 2008, the Visa Section at the Ministry of Immigration informed the applicant that the consular services in Yaoundé would be summoning his family for an interview.

The applicant’s wife was requested to attend an interview at the consulate on 21 February 2008. After she had submitted the necessary documents for compiling the application, the consular authorities asked her to contact the UNHCR/Cameroon delegation to obtain travel papers for herself and her children, in accordance with the Convention of 28 July 1951. She was assured that once she had brought those documents to the consulate she would be issued with an acknowledgement of receipt of the visa application. On 18 March 2008 the applicant’s wife submitted to the consulate a travel document, issued in her name after a favourable opinion had been obtained from the Cameroonian Ministry of External Affairs. This document, which could substitute a national passport, indicated that she was accompanied by her three children. She did not receive an acknowledgment of receipt of her visa application.

Having received no news on examination of his request, the applicant applied to various authorities, including the consulate in Yaoundé, for information as to why the visas had not been issued, and included a copy of all of the documents in his possession, including his residence permit, the reconstituted documents issued by the OFPRA, his wife’s certificate of refugee status, the document serving as his elder daughter’s birth certificate, and the birth certificates of the two other children.

On 30 May 2008 the applicant lodged an appeal with the Appeals Board against Decisions to refuse Entry Visas to France (the CRRV, hereafter the “Appeals Board”), against the consular authorities’ implicit refusal.

By a letter of 3 June 2008, the OFPRA replied to a letter from the applicant dated 24 January 2008 in the following terms:

“I have the honour to inform you that on 23 July 2007 the Office certified your family’s situation to the visa section. You are registered with the Office as the husband of Mrs Julie Ngubiri Zirirane and father of three children (Vanessa Ntabugi, born on 28 December 1994; Michelle Tanda, born on 4 June 2001; and Benjamin Tanda, born on 3 September 2004). I further observe that your family has been or will shortly be invited to lodge an application for a visa with the consular authorities in Yaoundé”.

On 11 June 2008 the applicant lodged an urgent application before the Conseil d’État, requesting a stay of execution of the consular authorities’ implicit decision to refuse the visas.

On 12 June 2008 the Conseil d’État acknowledged receipt of the appeal for abuse of authority lodged by the applicant calling for judicial review of this implicit decision.

By an order of 23 June 2008, the urgent-applications judge at the Conseil d’État dismissed the urgent application for a stay of execution, on the grounds that the Appeals Board had not yet ruled on the matter.

On 30 July 2008, after two months without any reply from the Appeals Board, which amounted to implicit rejection, the applicant lodged a new urgent application for a stay of execution, as well as an urgent application for protection of a fundamental freedom (requête en référé-liberté), dated 3 August 2008.

By an order of 13 August 2008, the urgent-applications judge at the Conseil d’État rejected the urgent application for protection of a fundamental freedom.

By a letter of 13 August 2008, the applicant was summoned to a hearing on the urgent application for a stay of execution, scheduled for 10 September 2008. The applicant, who attended the hearing on that date, learnt of pleadings by the Minister of Immigration, which he received only on 12 September, contesting the birth certificates of his children Michelle and Benjamin. Following this hearing, the applicant submitted a memorandum for the deliberations.

According to the Government’s observations, the transcripts of the certificates obtained on 13 and 23 April 2008 from the relevant local authorities had revealed that birth certificate no. 1271 held by the civil-status authorities of the 4th arrondissement of Yaoundé concerned the birth of a boy and not that of Michelle Tanda, and that birth certificate no. 78/2004, held by the civil-status authorities of the 2nd arrondissement of Yaoundé, concerned the birth of a girl and not that of Benjamin Tanda.

On 16 September 2008, the urgent-applications judge informed the applicant that he had decided to reopen the investigation in the case and that he had communicated the memorandum for the deliberations to the relevant Minister for Immigration.

By an order of 26 September 2008, the Conseil d’État dismissed the urgent application for a stay of execution:

“[the applicant] alleges that ... the criterion of urgency has been met, in that he has been living separately from his wife and children for almost four years; [that the impugned decision] is tainted by error of law, in that by refusing to issue visas on the grounds that certain civil-status documents were absent, it breached Article 11 of Directive (EC) no.200/86 of 22 September 2003 on the right to family reunification; ... that the submitted documents cannot be considered of doubtful authenticity; that he [had] provided evidence establishing his family ties with his wife and his children; that his children’s birth certificates had been registered by the Office of the High Commissioner for Refugees;

... the Minister alleges ... that the criterion of urgency has not been met, in that responsibility for the separation lies with the applicant; that the latter has not established that he has maintained regular written or telephone contact with his family or has contributed to their upkeep since his departure; that the argument alleging a breach of the Directive of 22 September 2003 is ineffective, in so far as it has been correctly transposed into domestic law and cannot therefore have direct effect; that this text does not require the national authorities to issue a visa to an applicant who has not established his or her filiation with the refugee; that the submission of fraudulent documents is a public policy reason justifying the rejection of visa applications submitted in a family context; ...

It appears from the facts of the case ... that visa applications submitted by [the applicant], who has refugee status in France, in respect of his wife Julie B. and his three children, Vanessa C., Michelle D. and Benjamin D., were refused on the grounds that filiation had not been established for the latter two children on account of the doubtful authenticity of the submitted birth certificates; the argument that such a ground could not be a legal basis for the decision to refuse [the visas] is not such, as the evidence stands, to give rise to serious doubts as to the lawfulness of this decision, in view of the outcome of the civil-status verifications carried out by the French Consulate General in Yaoundé and the fact that the fraudulent nature of the request was such as to entail refusal not only of visas applied for in respect of these two children, but also in respect of his wife and his third child...”

On 6 October 2008, in the context of an appeal for judicial review, the relevant Minister filed a memorial concluding that the birth certificates of Michelle and Benjamin Tanda were fraudulent. With regard to the alleged violations of Articles 3 and 8 of the Convention, he responded that it had already been shown that the applicant had abandoned his wife and putative children, that the parent-child relationship had not been established and that the applicant had not shown that he had maintained ties with them. The applicant responded by arguing that an anomaly in the referencing of the birth certificates was not sufficient to establish the doubtful authenticity or fraudulent nature of the documents submitted by his wife. He noted firstly, with regard to Benjamin’s birth certificate, “that it was not certain that the certificate sought by the authorities was related to the document in question, given that the first component of its reference number seemed to be made up of three figures, rather than two (“?78/2004”) (see paragraph 19 above), which would be more coherent, given the date it had been drawn up, in September 2004”. He argued that the Minister did not explain how UNHCR/Cameroon had issued a Family Composition Certificate (dated 26 September 2008, referring to his wife and his three children) and official travel documents permitting his family to travel internationally. He pointed out that he had submitted to the court correspondence from the Cameroonian Ministry for External Relations, dated 11 March and 13 August 2008, drawn up in the context of the checks conducted with a view to issuing those travel documents (travel document for the child Michelle, issued on 26 August 2008 following the favourable opinion of 13 August 2008). He added that the authenticity of the other documents submitted to the court had not been called into question, namely the declaration of Michelle’s birth, issued by the Cité Verte District Hospital in Yaoundé, and the declaration of Benjamin’s birth, issued by the Yaoundé Police Medical Centre, nor that of the travel documents for his first two children, drawn up on 26 August 2008. Lastly, he indicated that other evidence submitted to the court, photographs and bank transfer statements, invalidated the Immigration Ministry’s arguments as to the reality of his ties with his wife and children.

On 7 October 2008 UNHCR/Cameroon drew up a “certifiate of parenthood”, stating that the applicant and his wife were the legitimate parents of the children known as Michelle Tanda-Ngubiri and Benjamin Tanda.

By a letter of 22 May 2009, the applicant’s lawyer informed him that a hearing had taken place before the Conseil d’État on 20 May 2009; the public rapporteur had proposed that his appeal be dismissed and had suggested that judicial rectification of the civil-status documents of the children concerned be carried out in Cameroon.

By a judgment of 8 July 2009, served on 5 August, the Conseil d’État rejected the appeal. It pointed out that the transcripts of the certificates, obtained by the French authorities in the Cameroonian civil-status offices for the purpose of verifying the civil-status documents of the two children born in that country, had shown that two totally different birth certificates had been issued under the same reference numbers, and concerned third parties. It considered that even if the fraudulent nature of one of the two certificates had not been demonstrated, this did not create any doubt as to evidence of the inauthenticity of the second certificate, and concluded that “in those circumstances, neither the submission of declarations of birth from the Yaoundé Maternity Hospital and the Yaoundé Police Medical Centre, not the allegation that this discrepancy originated in dysfunctions within the Cameroonian civil-status authorities, allow for the fraudulent nature of at least one of the documents thus produced to be set aside”. Lastly, it specified that the fraudulent nature of at least one of the submitted documents was such as to entail refusal of all of the requested visas.

On 16 July 2009 a psychologist from the Comité inter-mouvements auprès des évacués (CIMADE) certified that the applicant’s psychological health had deteriorated, and described a worsening state of depression. She submitted that “in addition to the traumatic events experienced in his country, [the applicant] is currently developing reactional depression as a result of the separation from his family, which has lasted for several years... Although he was simultaneously actively engaged in preparing a professional insertion plan, the applicant is finding it increasingly difficult to take the necessary steps and is sliding into a form of apathy”.

In a letter of 17 July 2009, the applicant’s lawyer confirmed that the appeal had been dismissed and informed him that the public rapporteur’s closing arguments were not available in writing.

Following that decision, the applicant contacted the UNHRC/Paris Office and the Director of the OFPRA. By a letter of 18 August 2009, the former replied that, according to the information communicated by the Cameroonian delegation, the French Consulate in Yaoundé was willing to issue a visa to his wife and to two of his children, Vanessa and Benjamin. With regard to the birth certificate for his daughter Michelle, he was advised to submit a request to the Yaoundé tribunal de grande instance for a supplementary judgment relating to a birth certificate. By a letter of 21 August 2009, the Director of the OFPRA wrote to the CIMADE, which had also received the applicant’s file; he was considering transferring his refugee status to another country. In that letter, the Director pointed out that his department, by a memorandum of 23 July 2007, had certified his family situation to the sub-directorate for visas in Nantes, the only administrative body with competence for the family reunification of foreigners.

The applicant’s wife brought proceedings before the Yaoundé Court of First Instance, seeking to obtain a supplementary judgment concerning Michelle’s civil status. By a judgment of 27 October 2009, that court declared that it did not have jurisdiction. On 24 February 2010 she brought proceedings before the Yaoundé tribunal de grande instance for the same purpose.

By a decision of 30 April 2010, following a further request by the applicant’s family, the consular authorities refused to issue long-stay visas.

According to the Government, new checks carried out in 2010 established that it had been possible to authenticate Benjamin’s birth certificate but the doubtful authenticity of the birth certificate produced for Michelle, which had been double-checked, had prompted the consular authorities to maintain their refusal to issue visas to the whole family.

On 18 June 2010 the applicant brought proceedings before the Appeals Board against the decision of 30 April 2010. His request was implicitly refused.

B. Facts which occurred after communication of the application

On 20 September 2010 the applicant applied to the urgent-applications judge at the Nantes Administrative Court seeking an order for a stay of execution of the Appeal Board’s implicit decision to refuse his request. By an order of 28 October 2010, the urgent-applications judge ordered a stay of execution of that decision on the ground that the reasons for the rejection had not been communicated. He added:

“... further, as the evidence stands, although there is uncertainty as to the parent-child relationship in respect of one of the three children, Michelle, [the applicant] refers, without however submitting it, to a supplementary judgment which purportedly substantiates his allegations; having regard to the length of time that the applicant has been separated from his family, the criterion of urgency is met; ... it is appropriate to direct the Minister to re-examine the visa application within one month of notification of the present order”.

According to the applicant, on 19 November 2010 UNHCR/Cameroon’s lawyer forwarded to him, and to the French authorities, the original copy of a judgment delivered by the Yaoundé tribunal de grande instance on 3 June 2010, reconstituting the birth certificate for the child Michelle. That judgment indicates that, on the day following Michelle’s birth, a declaration of birth had been duly drawn up by the doctor at the Yaoundé Cité Verte Hospital and handed to her mother, for the purpose of having the child’s birth certificate issued by the Yaoundé IV district office. However, as the applicant’s wife had been unaware of the rules in force in Cameroon for this administrative procedure, she had entrusted this declaration of birth to a third party, who had demanded and obtained from her the sum of 20,000 Central African francs (CFA) in order to obtain the birth certificate; this third party had given her a document presented as birth certificate no. 1271/2001, allegedly drawn up and signed by the mayor of Yaoundé IV. The tribunal de grande instance specified that since this document was a forgery Michelle’s birth certificate had never been issued, and it ordered that this step be taken.

By a letter of 17 January 2011, the Government informed the Court that on 8 December 2010 the French consular authorities had issued the long-stay visas requested by the applicant’s wife and children. They alleged that, during the period in which the visa applications were re-examined, the applicant had communicated to the consular authorities the judgment of 3 June 2010 to which he had referred but had not produced in the course of the proceedings.


Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Gabriele Kucsko-Stadlmayer

A list of the applicants is set out in the appendix.

The Lithuanian Government (“the Government”) were represented by their former Agent, Ms E. Baltutytė.

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

The applicants were judges and presidents of their respective courts:

- the first applicant at the Biržai District Court;

- the second applicant at the Panevėžys City District Court; and

- the third applicant at the Lazdijai Dictrict Court.

On 6 July 2002 the Lithuanian authorities arrested V.R. and M.R., who were suspected of smuggling a large quantity of cigarettes. V.K., who was also implicated in the ensuing criminal investigation, feared that V.R. and M.R. would disclose information about the other people involved in the smuggling if they were detained.

In July 2002, with the aim of preventing V.R. and M.R. from testifying against him, V.K. contacted the third applicant, at the time president of the Lazdijai District Court and father of the woman V.K. was living with. V.K. asked the third applicant to use his position, personal contacts, authority as a judge and possible influence on other judges to make sure that V.R. and M.R. were released from detention pending trial.

The third applicant, acting in V.K.’s interests, contacted the second applicant by telephone and conveyed V.K.’s request. The second applicant also used his authority and personal contacts and, by telephone, conveyed the message to the first applicant, who on 8 July 2002 refused to grant a prosecution request to remand V.R. and M.R. in custody.

Between July and December 2002 there were four other episodes of V.K. and the second and third applicants, communicating by telephone calls and by themselves or through other judges, successfully preventing or attempting to prevent the suspected smugglers from being detained pending trial. In particular, on 16-18 July 2002, V.K. asked the third applicant to exert his influence on a judge at a higher level court, the regional court, so the judge would reject the prosecutor’s request to remand V.R. and M.R. in custody. Afterwards, on 27-28 November 2002, V.K. and the second and third applicants again attempted to influence the first applicant so that another suspected smuggler, V.P., who was in pre-trial detention, would be released. However, the first applicant refused to continue such criminal activity and neither decided the question of V.P.’s detention herself, nor transmitted the request to other judges. On 29 November 2002 V.K. was placed in pre-trial detention, pending a criminal case for smuggling. Between 29 November and 1 December 2002 the second and third applicants again attempted to exert influence on the first applicant to act in a way that would lead to V.K. being released, but the first applicant did not respond to their request. Lastly, on 1-6 December the third applicant attempted to influence the second applicant to get the latter to exert influence on a higher instance – regional court and have V.K. released from pre-trial detention. However, the second applicant did not respond to that request.

The prosecutors considered that V.K. and the three applicants had by such actions caused serious damage to the State because they had made it more difficult to bring people to justice who had committed crimes. They had also obstructed the course of justice, damaged the authority of the judiciary and discredited the title of judge of the Republic of Lithuania (pažemintas teisminės valdžios autoritetas ir diskredituotas Lietuvos Respublikos teisėjo vardas).

After gathering information about the activities of the three applicants, on 9 July 2003 Deputy Prosecutor General G.J. wrote to the President of the Supreme Court to inform him that the three applicants had possibly seriously violated the ethical rules of the judicial profession and asked that the Judges’ Ethics and Disciplinary Commission initiate proceedings against them. The operational information was based on evidence gathered, inter alia, by the State Security Department.

On 17 and 18 July 2003 the three applicants were charged with abuse of office and perverting the course of justice. The President of the Supreme Court was immediately informed about the charges and that a pre-trial investigation had been going on.

On 17 July 2003 another Deputy Prosecutor General, V.B., who was acting in place of the Prosecutor General A.K. while he was on summer vacation, on the basis of Article 89 of the Law on Courts (see paragraph 62 below), asked the State President at the time, Mr Rolandas Paksas, in writing to consent to lifting the three applicants’ immunity so that criminal proceedings could be started against them in connection with the aforementioned allegations. Materials from the criminal case file were provided to the State President to support the request.

On the same day the President signed two decrees: no. 161, suspending the applicants’ powers as judges, and, on the basis of Article 114 § 2 of the Constitution, decree no. 162, by which he consented to having the three applicants charged with criminal offences and detained if necessary (see paragraph 59 below). Both decrees came into force that day and were published in the Official Gazette (Valstybės žinios) on 23 July 2003.

On 21 July 2003 the Prosecutor General Office informed the President of the Supreme Court in writing that the second and the third applicants had acknowledged carrying out the acts specified in the notice of suspicion (see paragraphs 5-7 and 9 above), however, according to the prosecutor, “they did not regard those actions as criminal deeds, but as violations of the Code of Conduct of Judges and conduct discrediting the title of judge”.

On the same day, 21 July 2003, the State President’s Office asked the Judicial Council (Teismų taryba) for advice on whether the three applicants should be removed from office (on the function of the Judicial Council, see Article 112 § 5 of the Constitution, cited in paragraph 59 below; also see paragraph 60 below). On the same day the Judicial Council, presided over by the President of the Supreme Court, gathered to review the material provided to it by the prosecutor (see paragraph 10 above) and to hear the applicants. The first applicant was notified of the hearing of the Judicial Council; she did not attend it. The second applicant was present and gave an explanation. According to the minutes, the second applicant “agreed that he should not have behaved in such a manner, acknowledged having made telephone calls, but thought that it would be a little too harsh to consider that he had discredited the title of judge (D. Japertas sutinka, kad nederėjo taip elgtis bei pripažįsta, jog skambino, tačiau mano, kad tokia formuluotė, jog pažemino teisėjo vardą, kiek per griežta)”. The third applicant was not present at the hearing; instead he had already submitted a request to be dismissed as a judge and as president of the Lazdijai District Court of his own will, under Article 115 § 1 of the Constitution (see paragraphs 47 and 59 below).

The Judicial Council then decided to advise the President that the three judges should be removed from office for discrediting the title of judge (Article 90 § 1 (5) of the Law on Courts; also see paragraph 60 below).

On 22 July 2003, the State President signed decree no. 164, removing the applicants from their positions as judges and presidents of their respective courts. The decree was based on Articles 84 § 1 (11), 112, and 115 § 1 (5) of the Constitution, and also on the advice of the Judicial Council (see paragraphs 59 and 60 below). The decree came into force on the same day. It was published in the Official Gazette (Valstybės žinios) on 22 July 2003.

On 18 July 2003, in the daily newspaper Lietuvos Rytas, the President of the Supreme Court, in answer to a journalist’s question as to whether the information about the judges helping the smugglers had come as a surprise, stated:

“I very much regret that the judges could have done this. Personally, I am very taken aback, astonished even, by this information. I did not believe that such gross violations occurred. Unfortunately, they do.”

In response to a journalist’s question as to how he would react to the three judges’ actions, he replied:

“A pre-trial investigation is ongoing at this time and I do not wish to talk on that topic ... I have already responded. I think that the State President will ask the Seimas to suspend the powers of those judges. I understand that the State President will also make sure that those judges are removed from office. For that, the approval of the Judicial Council is necessary. Yesterday I again explained the situation to the State President. How did he react? He was decisive. The matter has been discussed with the State President more than once. He [the State President] is for decisive action”.

On 18 July 2003 the daily newspaper Respublika wrote that the President of the Supreme Court had initially thought that disciplinary sanctions would suffice in the applicants’ case, but quoted him as adding:

“However, after looking into the matter more carefully, it was agreed [with the Prosecutor General’s Office] that a criminal investigation must be conducted.”

The same article stated:

“Officials have established that all the judges consciously acted for the benefit of the smugglers and might have received remuneration [from them].”

On 22 July 2003 the Internet site of New Union, one of the ruling political parties at the time, published the following statement by the Speaker of the Seimas:

“The disclosed facts of corruption among the [three] judges have shown that neither big salaries nor good social guarantees ... protect the court system from corruption.”

On 23 July 2003 the newspaper Lietuvos Žinios published an article in which the State President’s press officer outlined the President’s position on the three applicants:

“The court system will not be a safe haven for such judges; the [response of the] President will be categorical in respect of these judges (“Teismų sistema tokiems teisėjams netaps užuovėja, jų atžvilgiu Prezidentas elgsis kategoriškai”).”

The same publication quoted the President of the Supreme Court as stating that “it is very unlikely that those judges [the applicants] will ever work in the justice system again”.

On 24 July 2003, in weekly publication Veidas, the chairman of Seimas’s Anti-corruption Commission, in response to the journalist’s statement that a couple of days earlier three corrupt judges had been exposed, said:

“People say that smuggling without a ‘cover’ is not possible. Consequently, if smuggling took place, there must have been ‘covers’. It was the Commission and myself who first received information about this smuggling, in which ... judges were involved. ... I think that it would be most appropriate to conduct a joint pre-trial investigation in the smuggling case which came to light and to try the [three] judges, like the other suspects, as members of a criminal organisation.”

On 24 July 2003 the news agency BNS cited the head of the State Security Department as saying after a meeting with the State President that the possible connections between the three judges and the smugglers were only “a fragment of a big case”, in which even politicians could be involved.

In summer 2004, Mr Valdas Adamkus was elected as the President of the Republic of Lithuania. In summer 2005, on his proposal, the Seimas appointed the Prosecutor General A.K. to the Supreme Court’s judges.

On 26 April 2004 and 20 October 2004, the first applicant’s lawyer unsuccessfully applied to the Vilnius Regional Court to suspend the criminal proceedings and ask the Constitutional Court whether the State President’s decree no. 162, by which the President had lifted the applicants’ immunity from prosecution, and Article 228 of the Criminal Code were in conformity with the Constitution.

The first applicant’s lawyer did not challenge before the trial court the statements made by State officials in the press.

On 29 November 2004 the Vilnius Regional Court acquitted the applicants of abuse of office and perverting the course of justice.

The court, however, convicted V.K. of attempting to influence a judge.

After the trial court’s judgment, on 30 November 2004 the newspaper Lietuvos Žinios interviewed the former President, Rolandas Paksas, who stated:

“I remember those events very well. It happened last summer, when the Seimas was not in session. I think that my decision was in line with the information that I had received from the President of the Supreme Court and the State Security Department (see paragraphs 8-10 above). I learned the information from the file on the criminal investigation into the crime that had been committed (operatyvinius duomenis apie padarytą nusikaltimą) and I could not have acted otherwise.”

Mr Paksas also stated that when signing the decree to remove the three applicants from office he had not only taken into consideration the fact that they had possibly taken part in a crime, but also emphasised that “Disciplinary liability was also very important (Labai svarbi yra drausminė atsakomybė)”.

The prosecutor, V.K. and the third applicant appealed against the trial court’s judgment. The third applicant argued that his acquittal should have been on a different legal basis. He also challenged decree no. 162 of the State President as the basis for his prosecution.

The two other applicants asked the appellate court to dismiss the prosecutor’s appeal.

It transpires from the Court of Appeal judgment that none of the applicants argued a breach of the principle of the presumption of innocence on account of the statements in the press by State officials.

On 12 April 2005 the Court of Appeal upheld the trial court’s verdict. The appellate court dismissed the third applicant’s argument that decree no. 162 had not given a sufficient basis on which to prosecute the three applicants.

The prosecutor, V.K. and the third applicant lodged appeals on points of law.

The third applicant argued that the criminal proceedings against the three judges had been initiated in breach of the procedural rules applicable when a judge was charged with a criminal offence. He asked the Supreme Court to specify additional grounds for his acquittal, without arguing a breach of his right to the presumption of innocence on account of the public statements by high-ranking State officials.

On 29 November 2005 the Supreme Court, sitting in an enlarged chamber of seven judges, quashed the Court of Appeal’s decision, noting that the latter had not thoroughly examined the prosecutor’s appeal and, as a result, it had committed a substantive breach of criminal procedure. The former Prosecutor General A.K. did not sit on the Supreme Court’s bench.

The third applicant’s appeal on points of law was dismissed.

The case was remitted to the Court of Appeal for fresh examination.

The third applicant made written submissions, arguing that domestic criminal law had been applied erroneously. The other two applicants made oral requests to the appellate court to dismiss the prosecutor’s appeal. They did not raise the matter of the presumption of innocence.

On 9 June 2006 the Court of Appeal found that between July 2002 and December 2002 V.K. and the three applicants had acted jointly, and that the three applicants had used their personal connections and authority as judges to make sure that some of the suspects in the smuggling cases would not be detained on remand. The appellate court therefore found the applicants guilty of abuse of office, under Article 228 § 2 of the Criminal Code. The punishment for abuse of office was either imprisonment for up to six years, or, as an alternative, a prohibition on taking up a particular activity or working in a certain area. When considering the most effective and just punishment to be imposed on the three applicants, the Court of Appeal underlined that they had committed the crime “within the area of their work and professional activity”, and “performed actions discrediting the title of judge”, and that therefore they should be prohibited from working in law-enforcement, law and order and judicial institutions (see paragraph 73 below). The first applicant was barred for one year and three months; the second applicant was barred for two years and three months; and the third applicant was barred for four years.

The criminal charges of perverting the course of justice (Article 298 of the Criminal Code, see paragraph 74 below) against V.K. and the three applicants were dropped as time-barred.

In addition, V.K. was found guilty of organising an act of abuse of office (five episodes). The court sentenced him to two years and six months’ imprisonment, suspended for two years.

The Court of Appeal decision came into force on the day it was pronounced, and the three applicants and V.K. started serving their sentences from that day.

The prosecutor, V.K. and the three applicants lodged appeals on points of law. The three applicants alleged, inter alia, that there had been breaches of procedural requirements when the criminal proceedings had been instituted against them as judges and that the appellate court had wrongly applied and interpreted the provisions of the Criminal Code.

In his appeal on points of law, invoking Article 31 of the Constitution (see paragraph 58 below) and Article 6 § 2 of the Convention, the third applicant further argued that there had been a breach of the right to the presumption of innocence. Firstly, he contended that pending the pretrial investigation some information about the case had been leaked to the media, including transcripts of telephone conversations between the three applicants and comments on those conversations. As a result, an opinion had been formed in advance as to the applicants’ guilt. He had thus not had a fair trial, in breach of Article 6 § 1 of the Convention. Secondly, before the guilty verdict had been reached, high-ranking State officials – the State President and the Speaker of the Seimas – had on many occasions made public statements to the effect that the applicants were guilty. They had also commented on the crimes which the applicants were said to have committed. In the third applicant’s view, the State President had publicly acknowledged in his interviews that he had removed the three applicants from office after he had found that they had committed the crimes in question.

On 6 February 2007 the Supreme Court dismissed the three applicants’ appeals on points of law. As regards the third applicant’s complaint of an alleged violation of the right to the presumption of innocence, the Supreme Court noted that there was no indication that the public disclosure of the facts about the criminal case had had an effect on its outcome. The dismissal of three judges was a noteworthy event, about which society had a right to be informed. The publicity had also been unavoidable because the State President’s decrees dismissing the applicants had been public documents. Nonetheless, there was no proof that any of the public comments on the case had been made by the prosecutors or judges who had been dealing with it.

The Supreme Court observed that the public statements by the State President and other State officials or politicians could not be examined on points of law since those questions had not been raised before the lower courts. The issue of the presumption of innocence had been mentioned only when the case had been examined on points of law a second time, and it was not for the Supreme Court to gather evidence or examine it, because under domestic law its competence was to examine questions of law and to ensure its uniform application. Even assuming that the third applicant had correctly understood the statements by the politicians, there was no reason to find that those statements had prevented the appellate court from impartially and objectively deciding the case and adopting a lawful and reasonable judgment.

Lastly, the Supreme Court dismissed the three applicants’ suggestion that the criminal proceedings against them had been started in breach of domestic law.

The former Prosecutor General A.K. did not sit on the Supreme Court’s bench.

On 14 August 2003 the first applicant started civil proceedings with the Vilnius Regional Court, alleging that she had been unlawfully removed from office by the State President’s decree no. 164 of 22 July 2003 (see paragraph 13 above). She argued that by initially suspending her from her duties by the earlier decree, no. 161 of 17 July 2003 (see paragraph 11 above), the President had already passed judgment on her actions, which had still been the subject of an ongoing criminal investigation. As a result, her removal from office for those actions, before a criminal court had found her guilty, had been a form of political pressure on the criminal courts, and had also been in breach of the right to the presumption of innocence under Article 6 § 2 of the Convention. She asked Vilnius Regional Court to refer questions to the Constitutional Court about whether decree no. 164 had been in breach of the Constitution and the principle of the presumption of innocence.

By a ruling of 9 March 2004 the Vilnius Regional Court suspended the civil proceedings and asked the Constitutional Court to rule on the constitutionality of decree no. 164. It also asked, inter alia, whether the decree in the first applicant’s case, as far as its content and adoption procedure were concerned, had been in conflict with, inter alia, Article 31 § 1 of the Constitution, which establishes the principle of the presumption of innocence, Article 115 of the Constitution on the grounds for a judge’s removal, or with Articles 83, 84 and 86 of the Law on Courts, which regulate judges’ disciplinary liability (see paragraphs 59 and 62 below).

After receiving similar requests in the other two applicants’ cases (see paragraphs 44-51 below), in November 2005 the Constitutional Court joined them in one case.

On 16 January 2007 the Constitutional Court delivered a ruling. It found that decree no. 164 of 22 July 2003, by which the three applicants had been removed from office for discrediting the title of judge, had not been in breach of the Constitution or the Law on Courts. It also held that the first applicant’s removal from office by the same decree of the State President had not been in breach of Article 6 § 2 of the Convention (the Constitutional Court’s reasoning is given in paragraphs 52-55 below).

In March 2007 the first applicant asked the Vilnius Regional Court to discontinue the civil proceedings for unlawful dismissal and reinstatement. The court granted that request on 16 March 2007.

On 17 August 2003 the second applicant brought a civil claim with the Vilnius Regional Court, asking it to quash the State President’s decree no. 164 as regarding this applicant’s dismissal. He argued, inter alia, that there had been a breach of the right to the presumption of innocence because he had been dismissed as a judge while criminal proceedings against him had still been pending.

On 2 April 2007 the Vilnius Regional Court dismissed the second applicant’s claim. The court considered that the criminal charges against the applicant, as indicated by the prosecutor’s report of 17 July 2003 and given to the State President (see paragraph 10 above), had been sufficient to hold that by his behaviour the applicant had discredited the title of judge. The judgment of 9 June 2006 by the Court of Appeal, finding the three applicants guilty (see paragraph 30 above), had only confirmed that there had been grounds to dismiss the second applicant for discrediting the title of judge. The Vilnius Regional Court also relied on the Constitutional Court’s aforementioned ruling regarding the three applicants’ case. The civil court also rejected the argument that the State President’s decree on the applicants’ dismissal had been in breach of the principle of the presumption of innocence. In fact, the decree had specified another ground for his dismissal, which was discrediting the title of judge, and not that a crime had been committed. The State President’s decree had thus had no influence on the subsequent criminal proceedings against the second applicant. Lastly, the civil court found no breaches of law as regards the domestic proceedings for the second applicant’s dismissal.

The Government submitted that the second applicant lodged no appeal against that decision.

The third applicant challenged the lawfulness of the decision of the Judicial Council of 21 July 2003, which had recommended that the State President remove the three applicants from office for having discredited the title of judge (see paragraph 12 above). The third applicant requested that he be allowed to step down voluntarily, under Article 115 § 1 of the Constitution (see paragraph 59 below). He also alleged that the Judicial Council had committed numerous violations of procedural and substantive legal rules when suspending him from his duties and removing him from office. As it transpires from the summary of the third applicant’s lawsuit, he did not argue that statements by State officials in the press had breached his right to the presumption of innocence. However, he argued that the right to the presumption of innocence had been breached because conclusions as to his guilt had been made and he had been dismissed as a judge before the criminal proceedings had finished.

On 2 April 2007 the Vilnius Regional Court dismissed the third applicant’s claims as unfounded. Relying on the Constitutional Court’s ruling of 16 January 2007, the civil court found that the Judicial Council had acted lawfully when recommending that the three applicants be removed from office. The prosecutor’s request to the State President of 17 July 2003, where the three applicants’ actions had been described (see paragraph 10 above), as well as the fact that criminal charges had been brought against them, had been sufficient grounds to hold that the third applicant’s actions had discredited the title of a judge. The court also dismissed the argument that the State President’s decree on the removal of the three applicants had been in breach of the principle of the presumption of innocence. In fact, the decree had not stated that the judges had been removed for committing a crime. In other words, the applicant had been removed from office not for committing a crime, but for discrediting the title of judge. Lastly, the court found that no laws had been broken during the proceedings for the three judges’ removal from office.

The third applicant appealed. He argued, inter alia, that the presidential decree on his dismissal had been in breach of the principle of the presumption of innocence because after the applicants’ acquittal the State President had allegedly acknowledged in the press that he had dismissed the applicants because they had committed a crime. Such statements by the State President had also been in breach of the principle of the independence of courts. The criminal courts had subsequently been obliged to find the applicants guilty. Undue influence on the criminal courts had also been exerted by the statements of other politicians in the press.

On 31 August 2007 the Court of Appeal endorsed the lower court’s reasoning. For the Court of Appeal, the State President’s prerogative to dismiss someone for discrediting the title of judge could not be seen as undue influence on the criminal courts.

By a ruling of 4 December 2007, the Supreme Court refused to examine an appeal on points of law by the third applicant. Even so, the Supreme Court underlined the fact that the third applicant had erred in his appeal on points of law by ignoring the fact that a judge’s removal from office for committing a crime and discrediting the title of judge, as foreseen in Article 115 § 1 (5) and (6) of the Constitution, were two distinct grounds for a judge’s dismissal.

On 16 January 2007 the Constitutional Court issued a ruling regarding the constitutionality of presidential decree no. 164 (also see paragraphs 40-42 above). Firstly, it emphasised that under Articles 112 § 5 and 115 § 1 (5) the State President retained the right to remove a judge from office who had discredited the title of judge, whether or not there had been disciplinary proceedings before the Judges’ Court of Honour, however, on condition that removal had been recommended by the Judicial Council. As that had been the situation in the three applicants’ case, decree no. 164 had not been in conflict with Articles 83, 84 and 90 of the Law on Courts.

The Constitutional Court also underlined the fact that the Law on Courts provided for two separate grounds for removing a judge from office – if a court judgment which has entered into force has established that a judge has committed a crime (Article 90 § 1 (6)), or if a judge has discredited the title of judge (Article 90 § 1 (5)), the latter provision being the relevant legal ground in the applicants’ case. For the Constitutional Court, it was paramount that the disputed decree no. 164 of the State President did not stipulate that the three applicants had committed a crime. Nor did that decree declare that actions for which the three applicants had been removed from office had been a crime.

The Constitutional Court also held that the principle of the presumption of innocence, as enshrined in Article 31 of the Constitution, could not be interpreted as prohibiting the State President from removing a judge, who by his or her actions had discredited the title of judge, until a criminal court had found that person guilty in criminal proceedings. In fact, Article 115 of the Constitution contained distinct grounds for a judge’s dismissal, those being “when their conduct discredits the title of judge” in point 5, and “upon the entry into force of court judgments convicting them”, in point 6 (see paragraph 59 below). Those two grounds could not be considered to be the same (negali būti tapatinami). On the one hand, actions which discredited the title of judge might not necessarily be a crime. On the other hand, conduct discrediting the title of judge might be recognised as a criminal act later by a court conviction. Under point 5 of Article 115 of the Constitution therefore, a judge could be dismissed for discrediting the title of judge, whether or not the conduct in question was later judged by a court to have been a criminal deed, and regardless of whether a corresponding court conviction came into effect. The Constitutional Court further noted:

“ ...the content of the principle of the presumption of innocence which is entrenched in Paragraph 1 of Article 31 of the Constitution cannot be construed that it, purportedly, implies, inter alia, that the President of the Republic cannot dismiss a judge who by his conduct has discredited the title of a judge, until a conviction in regard of that judge has been adopted and come into force. In this context, it should be noted that Article 115 of the Constitution establishes various grounds for the removal of judges from office, that judges may be removed from office also ‘when their conduct has discredited the title of judges’ (point 5), and ‘upon the entry into force of court judgments convicting them’ (point 6). In its ruling of 27 November 2006, the Constitutional Court held that the Constitution does not expressis verbis establish any type of conduct by judges which discredits the title of judges; that the formula ‘conduct discrediting the title of judges’ is wide, and includes not only conduct which discredited the title of a judge while implementing his powers as a judge, but also conduct which discredited the title of a judge which has no relation to the implementation of the powers of the judge; that, under the Constitution, the legislature, as well as the self-governing institutions of the judiciary, have the discretion to establish what conduct should be regarded as that which discredits the title of a judge, however, neither laws nor the decisions of self-governing institutions of the judiciary may establish any thorough (final) list of actions by which a judge discredits the title of a judge. In the said Constitutional Court’s ruling it was also held that when deciding whether the conduct of a judge is such that the title of a judge has been discredited, all the circumstances related to the said conduct and its significance to the case must be assessed each time.”

The Constitutional Court also gave weight to the fact that by its judgment of 9 June 2006 in the applicants’ criminal case the Court of Appeal had acknowledged that within their area of work and professional activity the applicants had performed actions which had discredited the title of a judge and undermined the authority of the judiciary (see paragraph 30 above).

Consequently, there were no grounds to find a violation of the right to the presumption of innocence, as enshrined in Article 31 of the Constitution and in Article 6 § 2 of the Convention, on account of the State President’s decree no. 164 removing the first applicant from office.

By a letter of 5 March 2014, the Government informed the Court that Article 8 of the Law on the Bar had been amended, thus having an impact on the applicants’ eligibility to work as advocates (see paragraph 65 below). The Government submitted that the applicants were therefore no longer prevented from working as advocates, given that their convictions had expired and the period in the law of three years after serving their sentence had passed. The Government also stated that the second and the third applicants had been admitted to the Bar by decisions of the Bar Association on, respectively, 16 January 2014 and 17 October 2013. To the Government’s knowledge, the first applicant had not addressed the Bar Association with a request to be recognised as an advocate.

All three applicants were informed about the Government’s letter but none of them commented on it.

In June 2017 the Lithuanian Bar Association’s website listed the third applicant among the advocates practising in Lazdijai. The other two applicants were not listed among advocates practicing in Lithuania.

Article 31 of the Constitution provides that a person is presumed innocent until proved guilty by a final court judgment and in accordance with a procedure established by the law.

As to the appointment of judges and their removal from office, the Constitution reads as follows:

“The President of the Republic:

11) ...shall appoint the judges and presidents of regional and district courts and change their places of work ...”

The justices of the Supreme Court, and its President chosen from among them, shall be appointed and released by the Seimas upon submission by the President of the Republic.

Judges of the Court of Appeal, and its President chosen from among them, shall be appointed by the President of the Republic with the assent of the Seimas.

The judges and presidents of district, regional, and specialised courts shall be appointed, and their places of work shall be changed, by the President of the Republic.

A special institution of judges, as provided for by law, shall advise the President of the Republic on the appointment, promotion, and transfer of judges, or their release from their duties.

“Interference with the activities of a judge or court by any institutions of State power and governance, Members of the Seimas or other officials, political parties, political or public organisations, or citizens shall be prohibited and lead to liability provided for by law.

Judges may not be held criminally liable or be detained, or have their liberty otherwise restricted, without the consent of the Seimas or, in the period between sessions of the Seimas, without the consent of the President of the Republic of Lithuania.”

“Judges of the courts of the Republic of Lithuania shall be removed from office according to the procedure established by law in the following cases:

1) of their own will;

2) on the expiry of their term of office, or upon reaching the pensionable age established by law;

3) owing to their state of health;

4) on election to another office, or upon transfer, with their consent, to another place of work;

5) when their conduct discredits the title of a judge;

6) on the entry into effect of court judgments convicting them.”

The Law on Courts (Teismų įstatymas) also reads that a judge may be removed from office if the title of judge has been discredited through his or her conduct (Article 90 § 1 (5)). A judge may also be removed from office if a court judgment convicting him or her comes into force (įsiteisėja) (Article 90 § 1 (6)). In such cases, the Judicial Council, a body assuring the independence and self-governance of judges, advises the State President.

The hearings of the Judicial Council are public, and a judge whose removal from office is to be considered at such a hearing has a right to take part in that hearing and to be heard. Should the Judicial Council recommend the State President to remove a judge from office and the State President would pass such a decree, the removal may be appealed against to the civil courts of three instances.

Historically, the Judicial Council has recommended the State President to remove from office judges for having discredited the title of a judge by behaviour such as being drunk at work, drunk driving, swearing in a public place, negligent performance of work duties, undue influence on other judges in order to affect outcome of court proceedings, accepting objects of material value, and sometimes also whilst criminal proceedings had still been pending.

The Law on Courts also reads that disciplinary proceedings may be brought against a judge in the Judges’ Court of Honour if a judge has discredited the title of judge or breached the requirements of the Judges’ Code of Ethics (Articles 83 §§ 1 and 2 and 84 § 6).

The Law on Courts further reads that criminal proceedings against a judge may be started and his or her liberty restricted only with the agreement of the Seimas, or with the agreement of the State President when the Seimas is not in session (Article 89 § 1). Criminal proceedings against a judge can only be initiated by the Prosecutor General (Article 89 § 2).

At the time of the applicants’ conviction on 9 June 2006 (see paragraph 30 above), the Law on the Bar (Advokatūros įstatymas) read that a person who wished to become an advocate must be of high moral character. The law stipulated:

“A candidate is not considered of high moral character and thus cannot be recognised as an advocate, if he or she:

1) has been convicted of a serious or very serious crime (teistas už sunkų ar labai sunkų nusikaltimą), irrespective of whether the conviction has expired, or has been convicted of another crime, until the conviction expires;

2) has been dismissed from the post of judge, prosecutor, advocate, trainee advocate, notary, trainee notary, bailiff ... or dismissed from the civil service ... for professional misconduct ... and less than three years has passed ...”.

On 15 April 2008, which was after the applicants had started serving their sentences (see paragraph 30 above), Article 8 of the Law on the Bar was amended and, as regards the concept of high moral character, stated the following:

“A candidate is not considered to be of high moral character and thus cannot be recognised as an advocate, if he or she:

1) has been convicted of an intentional crime, irrespective of whether the conviction has expired or not; or, alternatively, if a candidate has been convicted of another crime, until the conviction has expired;

2) has been dismissed from the post of judge, prosecutor, advocate, trainee advocate, notary, trainee notary, bailiff ... or dismissed from the civil service ... for professional misconduct ... and less than three years have passed ...”.

After the latest amendments of 2 July 2013, Article 8 of the Law on the Bar reads as follows:

“A candidate is not considered to be of high moral character and cannot be recognised as an advocate, if he or she:

1) has been convicted of a serious or very serious crime and until the conviction has expired ..., and less than four years have passed since serving the sentence or being released from serving the sentence;

2) has been convicted of any other intentional crime and the conviction has not expired ..., and less than three years have passed since serving the sentence, a suspension of the sentence, or release from serving the sentence;

3) has been dismissed from the post of judge, prosecutor, advocate, trainee advocate, notary, trainee notary, bailiff ... or dismissed from the civil service ... for professional misconduct ... and less than three years have passed ...”.

The Law on the Prosecutor’s Office (Prokuratūros įstatymas) currently reads that a person who wishes to become a prosecutor must be of high moral character. Those convicted of a crime by a court judgment that has come into force, or, alternatively, those dismissed from the civil service for a gross professional misconduct and less than five years have passed, may not be considered as being of high moral character (Article 25).

The Law on the Courts currently reads that a person cannot be considered as being of high moral character, and therefore may not be appointed as a judge, if he or she has been convicted by a court judgment which has come into force, or if he or she has been dismissed as a judge, prosecutor, notary, or from the police or civil service for professional misconduct and less than five years have passed (Article 52).

The Government referred to the following domestic court decisions regarding the recognition of a person as an advocate and the concept of high moral character.

By a ruling of 7 February 2000 the Supreme Court held that gross violations of the law (šiurkštūs įstatymų pažeidimai) committed by a judge were incompatible with the high moral character requirement applied to a person who wished to become an advocate. Respect for the law was a particularly important quality for a person who wished to become an advocate. The case concerned a complaint by a former judge who had been disciplined twice for negligence at work and for showing a serious disregard to the rules of court proceedings. He resigned as a judge of his own free will, but afterwards wished to become an advocate.

On 5 September 2000 the Court of Appeal examined a claim by a plaintiff who once had been an advocate but had been convicted for attempting to bribe a judge. The plaintiff complained that the Lithuanian Bar Association had argued that he was not of high moral character and had therefore refused to admit him to the Bar, even though his conviction had expired. The Court of Appeal, however, held that the commission of a crime had a significant impact when assessing a person’s reputation. The fact that a person had served his or her sentence showed that person was no longer a criminal. However, those facts could not be ignored when assessing a person’s character. Even after a criminal conviction had expired, they were still relevant when assessing character. The Court of Appeal therefore dismissed the plaintiff’s claim, noting that he could not be considered as being of high moral character, as required by the Law on the Bar.

The case concerned the personal situation of a plaintiff who in 1992 had been convicted for an intentional but not serious crime (nesunkus tyčinis nusikaltimas) related to his activities as an advocate and had been disbarred. In 1994 the conviction had expired. In 1999 the plaintiff asked to be recognised as an advocate. The Bar Association refused the request, relying on the legal rule that a person who had been dismissed from the Bar for breaches of professional activity could not be considered as being of high moral character. The plaintiff argued that because of that decision he had been punished twice for the same crime.

On 7 February 2001 the Supreme Court held that an advocate who had been convicted of an intentional crime of such severity as in that case could start proving that he was again of high moral character once the conviction had expired.

Article 228 § 2 of the Criminal Code at the relevant time provided for criminal liability for the crime of abuse of office where a State official or a person of similar legal status had abused his or her office for pecuniary or other gain, and that abuse had caused significant damage to the State. The sanction for this crime was a prohibition on taking up a particular activity or working in a certain area or, alternatively, a deprivation of liberty for up to six years. Abuse of office is an intentional crime.

Under Article 11 of the Criminal Code, crimes were put into categories, in accordance with the possible sanction they could attract. Abuse of office did not fall into the categories of serious or very serious crimes (sunkūs arba labai sunkūs nusikaltimai), but was considered to be a crime of medium severity (apysunkis nusikaltimas).

Article 298 § 1 of the Criminal Code at the relevant time provided for criminal liability for an attempt of any kind to influence an investigator, prosecutor or judge with the aim of preventing a pre-trial investigation from being concluded properly and objectively, or preventing the proper examination of the case in court.

Article 320 §§ 3 and 4 of the Code of Criminal Procedure at the material time read that an appellate court could examine a case to the extent it had been asked to do so in the appeal, and only in respect of the persons who or on whose behalf the appeal had been lodged. An appellate court could aggravate the situation of a convicted or acquitted person only if there had been such an application by a prosecutor.

The Code of Criminal Procedure also provides that the court must suspend the criminal proceedings if a question must be referred to the Constitutional Court for interpretation (Article 234 § 5 (3)). Analogous rule and right of a court is set out in Article 3 § 3 of the Code of Civil Procedure.