CASE OF LYKOUREZOS v. GREECE
Violation of P1-3;Not necessary to examine Art. 8;Pecuniary damage - financial award;Costs and expenses partial award - Convention and domestic proceedings
Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Françoise Tulkens;Khanlar Hajiyev;Loukis Loucaides;Sverre Erik Jebens
9. The applicant has been a member of the Athens Bar since 1960. He stood in the parliamentary elections of 9 April 2000 in the first constituency of Athens as a candidate on the Nea Dimorkatia party’s list. He obtained 44,387 votes and was elected as a member of parliament for a four-year term by decision no. 799/2000 of the Athens Court of First Instance. 10. On 18 February 2003 Mrs Apostolou, a voter in that constituency, lodged a complaint against the applicant with the Special Supreme Court, the judicial body which, under Articles 58 and 100 of the Constitution, had jurisdiction, inter alia, to remove a member of parliament from office in the event of disqualification. Mrs Apostolou referred, in particular, to the incompatibility between the office of a member of parliament and the fact that the applicant was practising as a lawyer. This incompatibility had been enshrined in the Constitution for the first time on the occasion of a constitutional revision in 2001. The new Article 57 of the Constitution now states that the duties of a member of parliament are incompatible with all professional activity, although it does provide for the introduction of exceptions through legislation. However, the implementing legislation was never enacted, since, according to information submitted by the applicant, the Chamber of Deputies voted against the draft law in February 2003. Article 115 § 7 of the revised Constitution indicated that the rule on disqualification in question would come into force once the implementing legislation provided for in Article 57 had been enacted and, at the latest, on 1 January 2003 (see paragraph 16 below). 11. The hearing before the Special Supreme Court was held on 7 May 2003. Before that court, the applicant alleged, inter alia, that there had been a violation of Article 3 of Protocol No. 1 and argued that, until such time as the implementing legislation provided for in Article 57 of the Constitution had been enacted, the disqualification could not be applied. He also claimed that the disqualification could not be applied to members of parliament who had been elected prior to the revision of the Constitution. Submitting several documents in evidence, he added that he had ceased receiving fees as of 1 January 2003 and that he was carrying out his activities free of charge, with the result that he could not be deemed to be practising a profession within the meaning of Article 57. 12. On 3 July 2003, by judgment no. 11/2003, the Special Supreme Court allowed Mrs Apostolou’s complaint and ruled that the applicant had forfeited his seat. In particular, the court dismissed the applicant’s argument that he could not be deemed to be practising his profession because he had not received fees for his services since the rule on disqualification had come into force. However, three members of the court considered that “the concept of practising a profession is very closely linked to receipt of an income, particularly through a systematic and long-term activity carried out for the purpose of ensuring [the individual’s] livelihood”. With regard to the other arguments raised by the applicant, the Special Supreme Court found as follows: “... [A]s is clear from Articles 115 § 7 and 57 § 1, paragraph 3, of the Constitution, the constituent body, in adopting the rule whereby the duties of a member of parliament are incompatible with the exercise of any profession, did so not only with a view to ensuring the independence of members of parliament, but also to ensure that the latter are able to carry out their duties in the best possible conditions and without distraction ... At the same time, the Constitution delegated to Parliament the power to introduce exceptions to the [general] rule of professional disqualification, in other words, the power to list those professional activities which would be compatible with the duties of a member of parliament ... In addition, [the same provisions state that] the rule establishing the incompatibility between the duties of a member of parliament and the practising of any profession was to come into force, at the latest, on 1 January 2003 ..., even if the law indicating the professional activities that are compatible with the duties of a member of parliament had not been enacted by that date ... The only consequence of the failure to enact this legislation ... is that the rule on disqualification for members of parliament is applicable, without exception, from 1 January 2003 ... Further, the argument put forward by the applicant in his submissions to the effect that the disqualification is not applicable to members of the current Chamber of Deputies, since this would be contrary to the constitutional principle of legitimate expectation, must be dismissed as unfounded, especially since a constitutional provision cannot be set aside on the ground that it is contrary to another provision or principle of the same Constitution. This follows from the formal equality of all provisions of the Constitution and the principles arising from them, which requires that each constitutional provision be applied in a binding manner with regard to the specific area which it governs ...” 13. In July 2003 the applicant was replaced as a member of the Chamber of Deputies by the first substitute on his party’s list for the first constituency of Athens. 14. At the time of the parliamentary elections of 9 April 2000 in which the applicant was a candidate, Article 57 § 1 of the Constitution was worded as follows: “The duties of a member of parliament are incompatible with the functions or position of a member of a board of directors, chairperson or director general or their deputies, or of an employee of a commercial firm or enterprise enjoying special privileges or public service concessions or receiving a regular State subsidy.” 15. The new Article 57 of the revised Constitution provides: “1. ... [paragraph 3] The duties of a member of parliament are also incompatible with the exercise of any profession. Activities compatible with parliamentary office, as well as matters relating to insurance and pension issues and to the manner in which members of parliament return to their profession at the end of their parliamentary term, shall be specified by law. ... [paragraph 4] Violation of the provisions of the present paragraph shall result in forfeiture of parliamentary office and shall render related contracts or other acts null and void, as specified by law. ...” 16. The transitional provision of Article 115 § 7 of the Constitution provides: “The incompatibility of parliamentary office with the exercise of any profession, provided for by the penultimate paragraph of Article 57 § 1, shall come into force upon promulgation of the law provided for in the same provision and on 1 January 2003 at the latest.” 17. In December 2005 the present government announced its intention to carry out a further revision of the Constitution. On 17 January 2006 Mr Karamanlis, the current Prime Minister, presented the broad outlines of the proposed revision to his party’s parliamentary group. He stated, inter alia: “recent experience shows that it is necessary to amend the constitutional provision on the professional disqualification of members of parliament; we propose lifting the absolute prohibition and replacing it with a partial prohibition.” 18. During the sittings of 13 and 20 January 1998 of the parliamentary committee responsible for preparing the revision of the Constitution, members of the opposition expressed their views as follows (extracts): Mr Souflias: “I suggest adding a provision to Article 57 which would read as follows: the duties of a member of parliament are incompatible with the exercise of any professional activity.” Mr Panagiotopoulos: “Constitutional provision: a member of parliament may not exercise any other profession.” Mr Varvitsiotis: “I believe that a member of parliament should not exercise any other professional activity during his or her term of office.” In its final report of 30 March 1998, the above-mentioned parliamentary committee proposed that Article 57 of the Constitution be amended, and expressed its opinion as follows: “It is proposed, by a large majority, to revise Article 57 in order to redefine the work, powers and activities which are incompatible with the duties of a member of parliament in order to take account of current information about the State’s role in the economy. Forfeiture of one’s parliamentary seat is also foreseen as a sanction for exceeding the limit set on election expenditure.” In its report of 23 October 2000, the parliamentary committee responsible for preparing the revision of the Constitution after the elections of 9 April 2000 made no mention of the introduction of an absolute professional disqualification. 19. At the sitting of 28 February 2001, Mr Yannopoulos, a member of the majority parliamentary party and a former Minister of Justice, spoke as follows (extract): “What type of Parliament do you want? Do you want to exclude scientists and well-known figures? ... This prohibition exists in no other country ... You will find yourselves in the dock at the European Court of Human Rights, since a legislative prohibition on being elected to Parliament on the ground of one’s profession amounts to a breach of every citizen’s personality rights ...” 20. At the sitting of 6 April 2001, Mr Pavlopoulos, a member of parliament, then spokesperson for the opposition and currently Minister of the Interior, stated (extract): “... The initial philosophy underlying the revision of this Article was that members of parliament could exercise professional activities with the exception of those prohibited by the Constitution; this is the logic of the decision [that we adopted within the revision committee]. Yet now, before a plenary sitting of the Chamber, you are putting forward a position that is the exact opposite of that ... All of a sudden, in the middle of the procedure, you are introducing an amendment which, in reality, completely overturns the content of the revision of Article 57 ... This is not a simple amendment, but a total reversal of the logic underlying the revision of Article 57.” 21. Several legislative systems make it incompatible to hold a seat in Parliament and simultaneously to hold senior office in the executive branch (Head of State, Prime Minister, Minister or Minister of State) or high office within the judiciary (president or member of a constitutional or supreme court, of an administrative court, of the Conseil d’Etat or of another specialised senior court, such as the Audit Court). This is the case, for example, in Austria (Articles 61, 92 § 2, 122 § 5, 134 § 4 of the Federal Constitutional Law), Belgium (Article 50 of the Constitution), Spain (Article 70 of the Constitution and section 6 of the 1985 implementing Law on the general electoral system), Estonia (section 7 of the Parliamentary Rules of Procedure Act), Finland (Article 27 of the Constitution), France (Chapter IV of the Electoral Code), Luxembourg (Article 54 of the Constitution), “the former Yugoslav Republic of Macedonia” (section 9 of the Status of Members of Parliament Act 2005), the Netherlands (Article 57 § 2 of the Constitution) and Portugal (section 5 of the Assembly of the Republic (Elections) Act and section 20(1) of the Status of Members of Parliament Act). In some countries, however, government ministers take part in parliamentary work (Spain, Poland, Romania). 22. Certain disqualifications from holding a parliamentary seat concern positions which could jeopardise parliamentarians’ independence as a result of hierarchical relations within the government. 23. In the majority of countries, disqualifications of this type concern judges and prosecutors, police officers and members of the armed forces, and all diplomatic and consular staff. This is the case, for instance, in Bosnia and Herzegovina (section 1(8) of the Elections Act), Spain (Constitution), France (Chapter IV of the Electoral Code), Ireland (section 41 of the 1992 Elections Act), Italy (sections 7, 8 and 9 of the Elections Act), Malta (Article 54 of the Constitution), the United Kingdom (section 1(1) of the 1975 House of Commons Disqualifications Act) and Slovakia (Article 77 of the Constitution). 24. In general, such disqualifications concern civil servants or contract workers employed in the State administration or in regional bodies, autonomous State entities or institutions such as the social security service, or in public companies. This is the case, for example, in Germany (section 8 of the Members of the Bundestag Act), Andorra (section 17 of the 1993 Electoral System and Referendums Act), Belgium (Disqualifications Act of 6 August 1931), Bulgaria (Article 68 of the Constitution), Spain (section 157 of the 1985 implementing Law), Estonia (Article 63 of the Constitution), Hungary (Article 9 of the Status of Members of Parliament Act 1990), Portugal (Article 157 of the Constitution), the Czech Republic (section 12(a) of the Conflict of Interests Act) and the Russian Federation (Article 97 of the Constitution). 25. In the majority of countries, individuals affected by those disqualifications must resign if they wish to stand for election (as in Bosnia and herzegovina). In other countries (such as Austria or Belgium) they may merely request to be suspended from their professional duties during their term of office. 26. As a general rule, the disqualifications in this category concern managers or heads of companies, corporations or public or private institutions which have interests in State activities or which receive State aid or grants. They may also concern the chairpersons, general managers or members of the boards of directors of private companies involved in public construction or in property or credit operations (among many other countries, Bulgaria, Spain, France and Italy have such rules). 27. In some countries, members of parliament may not practise any professional or commercial activity or paid employment during their terms of office, except in the educational sphere, and then only in very exceptional circumstances (Spain, Lithuania, Russia). 28. The majority of countries do not lay down, in their constitutional or ordinary legislation, an incompatibility with freely practising the profession of lawyer (for example, Andorra, Austria, the Czech Republic, Bosnia and Herzegovina, Estonia, Finland, Hungary, Ireland, Italy, the Netherlands, Poland, the United Kingdom, Serbia and Montenegro, the Slovak Republic, Sweden, Switzerland). 29. However, restrictions or conditions may be imposed on a member of parliament who practises as a lawyer, based on the requirements of independence, professional ethics and availability. Thus, despite the absence of a legislative prohibition in this regard, the German Federal Court of Justice stated in a judgment of 26 June 1978 that the timetable of Bundestag sittings enabled a member of parliament to practise as a lawyer, subject to the prohibitions concerning conflicts of interest set out in the Lawyers Act and the legal profession’s Code of Ethics. 30. This specific concept of conflict of interest exists in several countries’ legislative provisions. Thus, in France, Article 149 of the Electoral Code prohibits any lawyer registered with the Bar who is a member of parliament from carrying out, directly or indirectly through an associate or colleague (except before the Haute Cour de justice or the Court of Justice of the Republic), any professional act in criminal cases concerning certain crimes or offences against the State or the areas of finance or the press, or to plead in civil proceedings for companies which receive State grants, financial companies or companies which use savings, companies engaged in civil engineering, construction or property development, or against the State, State-owned companies, local authorities or public establishments. 31. Similar provisions exist in the legislation of other civil-law countries, such as Italy (section 10 of the Elections Act), Portugal (section 21 of the Statute of Members of the Assembly of the Republic), Romania (section 82 of the Exercise of Public Duties (Transparency Measures) Act (Law no. 161/2003), Title IV on members of parliament, as amended by the Status of Lawyers Act) and Turkey (section 3 of the Disqualifications of members of the Grand National Assembly Act 1984 (Law no. 3069)). 32. In the common-law countries, the codes of ethics of members of parliament guarantee parliamentarians’ independence vis-à-vis possible conflicts of interest by means of administrative and procedural measures. In the United Kingdom, members of parliament must declare any work or paid employment and have this declaration entered in the register of members’ interests. Failure to register an interest may result in sanctions (Code of Conduct for Members of Parliament and Guide to the Rules relating to the Conduct of Members of Parliament). Similar provisions exist in Ireland (sections 5, 6 and 7 of the Ethics in Public Office Act 1995) and in Malta (Article 5 of the 1995 Code of Ethics of Members of the House of Representatives). 33. Those procedures for declaring and registering the assets and financial interests of members of parliament have also been adopted in some countries of continental Europe. Thus, the Rules of the Italian Chamber of Deputies provide for a similar system to determine cases of incompatibility: within thirty days of the Chamber’s first sitting, each member must submit a declaration to the speaker concerning the functions occupied by him or her at the time of standing for election, and those commercial or professional activities which he or she continues to carry out. In Switzerland, members of parliament are also obliged to notify their financial interests and any other professional activity carried out by them when they take up their duties (section 11 of the 2002 Federal Assembly Act). 34. Other more practical limitations and restrictions have been added to those cited above, which are based on the concept of independence and conflict of interest. Various regulations on the status of members of parliament require that they give their parliamentary activities priority over any other private work, whether remunerated or not. In Finland, Parliament may, by a two-thirds majority, require that a member of parliament forfeit his or her seat, permanently or for a specific period, if the individual concerned neglects his or her duties in a significant and repeated manner. In practice, this obligation is reflected in a significant reduction in the time spent working in other professions, or withdrawal from them (as in Sweden). 35. In Spain, the requirement to carry out parliamentary duties on a full-time basis results in very restrictive rules on disqualification (section 157 of the 1985 implementing Law on the general electoral system); holding a parliamentary seat is incompatible with the direct or indirect exercise of any private or public profession or activity, remunerated by way of wages, salaries, dues, fees or other means (an exception is made for university lecturers). However, section 159(3) of the 1985 implementing Law permits interested parties to apply to the relevant chamber’s disqualification committee for leave to conduct private activities which do not concern public bodies or services, public companies, companies which are financed from public funds or credit or insurance companies. 36. Parliamentary committees exist in several countries. They may authorise professional activity, including in the public sector, which would otherwise be considered incompatible with the holding of a parliamentary seat (see section 6a(1) and (2) of the Austrian Disqualification Act). In certain cases, those activities must be carried out without remuneration. 37. A blanket prohibition on exercising any profession, trade or remunerated form of employment, similar to that laid down in the Greek or Spanish legislation, also exists in a more or less rigid form in other countries, especially those of central and eastern Europe, such as Lithuania (Article 6 of the Constitution), “the former Yugoslav Republic of Macedonia” (section 9 of the Status of Members of Parliament Act), the Russian Federation (Article 97 of the Constitution) and Moldova (Article 70 of the Constitution). As in Spain, however, exceptions exist for teaching, scientific research and creative activities.