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The ECHR is referred for the interpretation of the provisions of the Convention in the case of Mrs. N. Venckiene

The ECHR is referred for the interpretation of the provisions of the Convention in the case of Mrs. N. Venckiene
2020-11-25

The Supreme Administrative Court of Lithuania (SACL) decided to suspend the administrative case and apply to the European Court of Human Rights (ECHR) for an advisory opinion in the election case regarding the legality and validity of the decision of the Central Electoral Commission (CEC) to refuse the registration of the candidate of the political party “Drąsos kelias” for members of the Seimas.

This is the first time such a referral is made in the history of Lithuanian courts. The SACL applies for the clarification whether Lithuania, by failing to ensure the harmonisation of international obligations arising from the provisions of national law and the Convention for the Protection of Human Rights and Fundamental Freedoms (Convention), as a result of which a person removed from office of a member of the Seimas in the impeachment proceedings is prevented from exercising the ‘passive’ right to vote for 6 years, exceeds the freedom of discretion granted by the Convention. The ECHR is asked whether such a situation can be justified by the complexity of the situation arisen, which is directly related to the possibility for the legislator to harmonise national provisions at the constitutional level with international obligations.

The SACL also applies for an answer to the question of what requirements and criteria of the Convention define the limits of the application of the principle of proportionality, which the national court should take into account and verify whether they are met in the given situation. Furthermore, whether in assessing the proportionality of a general prohibition restricting the exercise of the rights provided for in the Convention in such a situation, decisive weight must be given not only to the determination of the term but also to the individual circumstances of the case related to the nature of the office from which the person was removed and the nature of the act for which the impeachment was committed.

The ruling of the SACL published today draws attention to the fact that the panel of judges has no grounds to interpret the failed harmonization of the provisions of national law and the provisions of the Convention differently than in the ruling of the Constitutional Court of 5 September 2012.

According to the panel of judges hearing the case, the doubts arisen are exclusively related to the situation of legal uncertainty, to which Mrs. N. Venckienė finds herself, and which could be clarified by the interpretation of the Convention. The applicant, as a former member of the Seimas, removed from office in the impeachment proceedings, belongs to the category of persons who were directly affected by the failure to harmonise the provisions of national law and the provisions of the Convention. In the case of the applicant, this legal uncertainty was strengthened by the fact that, despite specific legislative initiatives, no term limiting the validity of the prohibition to stand for election to the Seimas has been established in national law so far.

The administrative case is suspended until an advisory opinion of the European Court of Human Rights is received.

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