Realist views in dissenting opinions of Lithuanian justices on the impeachment of President Paksas, 8/2012

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The purpose of this blog is not only making advertising for my private legal practice, but also a development of a critical scholarship empirically analyzing judicial reasoning (that I call judicial shamanism). Therefore, it is sometimes interesting to take look at how the critical legal scholarship develops in dissenting opinions of Lithuanian justices, for instance, in the impeachment case of Lithuanian President Rolandas Paksas.

The story could be summarized as follows. Twice former Prime Minister Paksas got 55 % of votes and became a President of Lithuania in 2003. On 31/03/2004 the Constitutional Court found him guilty of corruption, disclosure of State secret, and abusing his office for the benefit of a friend. He was impeached, but then stood for election, and it became obvious he would be re-elected. Therefore, on 25/05/2004 the Constitutional Court interpreted that “the Spirit of the Constitution” forbids him to stand for parliamentary and presidential election for life, and then the lifelong prohibition was extended even to the office of Prime Minister or Minister. On 06/01/2011 we partially won the case: the European Court of Human Rights found that the lifelong prohibition to stand for parliamentary elections was breaching the right to free elections. On 22/03/2012 the Lithuanian Parliament amended the Law on Parliamentary Elections, and allowed the impeached President to stand. However on 05/09/2012 the Constitutional Court declared that amendment unconstitutional, since the execution of the ECtHR judgment would alter the "value system of the Lithuanian Constitution" in a too extreme manner. In June 2011 we started an action against Lithuania before the UN Human Rights Committee, and it is currently pending.

As with politicians, you may never be sure what the judges think when they get alone. Nonetheless, from time to time dissenting opinions make a contribution to the development of critical legal scholarship.

I really smiled when I saw that justice Egidijus Šileikis, PhD, and justice Gediminas Mesonis, PhD, attempt to calm down the majority of justices in their dissenting opinions (respectively § 2.7 and § 7.1). They try to convince the colleagues that executing the Strasbourg judgment will not deny the supremacy of the Lithuanian Constitutional Court. However the majority of justices are not that naïve.

Justice Šileikis pointed out that the Constitutional Court had amended its case law on application of the ECtHR judgments. Previously those judgments were considered as a binding source for Lithuania, but in the Paksas case the Constitutional Court decided to re-establish its independence. Justice Sileikis qualifies this decision as “case Although”, since the case law amendment was introduced with the word “although” (§ 3.9). Dr Šileikis also uses the concept of “magic words” from the heritage of legal realism in order to express his critical approach (§ 3.2).

Justice Šileikis describes the refusal of the Constitutional Court to apply the Strasbourg judgment as “excessive ambition vis-à-vis the European Court of Human Rights and excessive activism vis-à-vis the Lithuanian Parliament” (§ 2.1).

In general, I do not like the concept of “activism”, since it is difficult to define it in operational term. I remember the course of constitutional law that I had many years ago. Prof Egidijus Kuris, President of the Lithuanian Constitutional Court, explains that “activism” and “passivism” have certain positive and negative aspects. As far as the Lithuanian Constitutional Court is concerned, it stands “in between”. This is a bullshit that has no practical meaning.

Therefore, I prefer using the conception of “judicial shamanism”, since it embraces both, activism and passivism, and moves towards an empirical description of judicial practice in recognising that possibly all the spirits (principles, articles, rules, etc.) are alive, and possibly they really live in certain amulets (case law, Constitution, legal acts, etc.). However the variety of different techniques of entering into a contact with those spirits in order to see their interaction makes it impossible, in most cases, to establish an objective or in some way “reasonable” judicial practice.

UN HRC registers case Paksas v. Lithuania, 2155/2012

On 06/06/2012 the United Nations Human Rights Committee registered the case of my client Rolandas Paksas, impeached President of Lithuania, versus Lithuania. The President was impeached on 06/04/2004. On 25/05/2004 the Lithuanian Constitutional Court prohibited him to stand for elections for life. This lifelong prohibition also covers the right to be nominated Prime Minister or minister (he is twice former Prime Minister).

We partially won this case before the European Court of Human Rights on 06/01/2011, but the Strasbourg judges interpreted that the European Convention of Human Rights covers only the right to stand for parliamentary elections. Moreover, they did not find a violation of presumption of innocence and of the principle of impartiality during the national proceedings. Therefore, the former President took a decision to continue before the UN HRC.

Financial supporter of impeached Lithuanian President Rolandas Paksas and the key person of the impeachment, lost his case

Another interesting point was made in the impeachment of Lithuanian President Rolandas Paksas story by the Strasbourg Court in case Borisov v Lithuania, 9958/04. Mr. Jurij Borisov, owner of Avia Baltika company, made a contribution of € 349 000 to the Paksas election campaign, and the latter was elected President of Lithuania on 05/01/2003.

Due to business interests, Mr Borisov took the Russian citizenship, which meant annulment of his Lithuanian citizenship. However he also had business interests in Lithuania. Then President Paksas granted him Lithuanian citizenship for “merits to Lithuania” (ECtHR tries not to mention the merits notion in the judgment), since Mr Borisov had the Medal of Darius & Girenas for merits to Lithuania, for the efforts to glorify the name of Lithuania in the World and assisting the State in its integration into the World Community of States. Other “merits” were the fact of spending € 1 740 000 for charity, paying € 5 million of taxes, creating 200 jobs directly, and 600 indirectly.

The Lithuanian Constitutional Court declared the grant of citizenship for merits to Lithuania unconstitutional. As a result, President Paksas was impeached on 06/04/2004. A lifelong prohibition to stand for presidential, parliamentary, and local elections, as well as a lifelong prohibition to become Prime Minister (Paksas is a twice former Prime Minister) or a minister was imposed on the impeached President of the Republic.

Mr Borisov was fined about € 2 900 for threatening the President. He would disclose certain information about the President, if the President did not appoint him his voluntary adviser (contrary to what the ECtHR writes in § 30, there is a difference between “voluntary adviser” and “adviser”). This provoked the desire of the Lithuanian Ministry of Interior to deport Mr Borisov from Lithuania due to “threat to national security”. On 28/06/2006 the President of the Lithuanian Parliament, Mr Viktoras Muntianas, addressed the General Assembly of Judges and stated that it would be “bad” if the Lithuanian Courts decided not to deport Mr Borisov from Lithuania.

The proceedings for deportation of Mr Borisov lasted for 6 years and 7 months until 13/08/2010 when he got a permanent residence permit, and he tried to argue that this was interference with his normal family life, since his parents, wife and children were Lithuanian citizens and lived in Lithuania (Article 8 of the Convention). However the ECtHR refused to consider the compatibility of the very change of style of family life as an interference, and argued that from 13/08/2010 there was no longer any justification for examining the merits of the case (§ 106).

The ECtHR expressed a “deep concern that the decision making in [Borisov] case was politicised”, pointed that “neither can the Court fail to observe that the Supreme Administrative Court chose to remit the case for fresh examination two times on somewhat contrived izobret grounds, thus continuing to keep [Borisov] and his family in a state of uncertainty” (§ 112). The 7 judges “regretted” that Borisov proceedings were that long (§ 112). However Borisov did not get any practical advantage from this moral consideration.

Impeachment of President Paksas of Lithuania after the victory in Strasbourg

On 06/01/2011 we won the case of impeached President Paksas of Lithuania before the ECtHR, where I had the honor to be a legal representative. Following the impeachment he had been disqualified from standing for elections for life, and the ECtHR found this to be disproportional.

The Lithuanian Government lawyers proposed to alter the lifelong sanction with 15 or 20 years prohibition.

It is remarkable that the United Nations Human Rights Committee found in case Dissanayake v Sri Lanka that 7 years ban to stand was unreasonable and disproportional. I don't see how to re-conciliate the Lithuanian vision with the case law of the UN HRC.

ECHR introduces common standards for parliamentary immunity, Onorato v Italy, 26218/06

ECHR de facto waived immunity of Marcello Dell’Utri, Member of Italian Parliament from political party “The People of Liberty”, and senior adviser to Prime Minister Silvio Berlusconi. The Italian Court of Cassation condemned him for fiscal fraud. The judge-reporter Pierluigi Onorato was a former Member of Parliament from the Communist Party. Therefore, Dell’Utri declared in the press that it was a political judgment. The judge-ex-communist started a civil action for defamation.

The Italian Parliament did not waive the immunity of Dell’Utri, so the issue (right to court) was forwarded to Strasbourg. ECHR 7 judge chamber, with one dissident opinion, provided the following reasons for the waiver of immunity:

1) After the refusal to waive parliamentary immunity, judge Onorato lost any possibility of effective access to court on this issue (§§ 45, 54).
2) It is correct that parliamentary immunity is a long practice having the aim to protect the freedom of expression of Members of Parliament from political persecution (§ 48), however the words of Dell’Utri did not have an “obvious” link with the legislative process (§§ 50, 52).
3) The accusation made by Dell’Utri did not concern the relations between the legislative and judicial branches of power (§ 51).
4) Therefore, the denial of the right to court is disproportional (§ 52).
5) Therefore, it violates the “fair balance” between the “imperative of fundamental rights” (right to court) and the general interest of the community (freedom of expression of the people’s representative) (§ 53).

An interesting point of this legal strategy was that judge Onorato did not stop after the refusal of the Italian Parliament to waive immunity but continued the legal proceedings.

Towards a client-friendly judicial deadline policy, and fair trial in corporate law, TATRY Poprad, 7261/06

7 judges chamber of the European Court of Human Rights unanimously decided to correct the deadline policy of the Slovak Constitutional Court in case TATRY Poprad s.r.o. v Slovakia, 7261/06. The mistake of that Constitutional Court was that:

* first, it held that the company had to appeal to the Appeals on Points of Law Chamber of the Supreme Court before coming to the Constitutional Court with a complaint against the Appellate Chamber of the Supreme Court;
* second, after the declaration of inadmissibility by the Appeals on Points of Law Chamber, the Constitutional Court refused to accept the action, since the company had missed the judicial deadline to be calculated from the first judgment of the Supreme Court (§ 44).

However what is interesting even more for me is the fact that Strasbourg declared applicability of the right to court to the proceedings before the Constitutional Court (§ 37). For instance, in impeachment judgment Paksas v Lithuania of 06/01/2011 the interpretation was contrary.

The essence of the TATRY Poprad s.r.o. was that this company completed its construction works about 2 months after the date agreed in the contract, and according to the terms of contract lost 20 % of the agreed price. The construction company argued that its director K didn't have the standing to sign the contract:

- on 26/04/1996 the Supervisory Board approved him as a director;
- on 12/04/1996 the General Meeting took an unknown decision on his appointment (positive according to the Supreme Court, and negative according to the company;
- on 22/04/1996 he signed the contract as a "director";
- on 28/05/1996 his name as the name of "director" was communicated to the Register of Comapanies.