CASE OF PAUNOVIĆ AND MILIVOJEVIĆ v. SERBIA
Remainder inadmissible;Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Right to free elections);Violation of Article 13+P1-3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 of Protocol No. 1 - Right to free elections;Right to free elections-{general});Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova
5. The applicants, Mr Goran Paunović (“the first applicant”) and Ms Ksenija Milivojević (“the second applicant”), are Serbian nationals who were born in 1965 and 1975 and currently live in Novi Sad and Belgrade, respectively. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. Parliamentary elections in Serbia are held on the basis of a proportional representation system in which candidates for Parliament are included on lists put forward by political parties or coalitions. Voters choose between these lists, without voting directly for individual candidates. 8. In 2003 the applicants were elected as members of parliament (MPs) for a political party called G17PLUS. 9. Before the elections, however, all candidates, including the applicants, had been required by their party to sign undated letters of resignation and hand them in to the party. The documents also authorised the party to appoint other candidates in their place if necessary. 10. Following political differences between the applicants and their party, on 5 May 2006 the first applicant signed a separate, officially certified statement, in which he declared his prior resignation letter to be null and void. The first applicant informed G17PLUS and the President of Parliament of this statement and made it public. 11. The second applicant also subsequently told Parliament, the party and the public that she considered her earlier resignation letter to be null and void. 12. On 15 May 2006 the head of the G17PLUS party group in Parliament dated the applicants’ resignation letters and submitted them to the President of the Parliament. 13. On the same day, the first applicant addressed the Parliamentary Committee on Administrative Affairs, explaining that he did not intend to resign and that he wished to keep his seat as an independent MP. He provided the committee with his certified statement of 5 May 2006. However, the committee concluded that both applicants had resigned and held that their parliamentary mandates were deemed to be terminated. 14. On 16 May 2006 a plenary session of Parliament confirmed that decision and accepted two other candidates proposed by G17PLUS as MPs in place of the applicants. 15. On 25 May 2006 the applicants filed two separate complaints with the Supreme Court and the Constitutional Court, seeking the annulment of Parliament’s decisions to terminate their mandates and replace them with other candidates. 16. On 29 May 2006 the complaint made to the Supreme Court was dismissed on procedural grounds. The court stated that the impugned parliamentary decisions had not been “administrative acts” and could not, as such, be subject to judicial review. 17. On 29 May 2008 the Constitutional Court also ruled against the applicants, without considering the merits of their case. It stated that new parliamentary elections had been held in January 2007, which was why the applicants’ complaint had effectively become moot. It noted that their complaint could not have been treated as a constitutional appeal, as envisaged under the Constitution adopted in November 2006, since the parliamentary decisions at issue had been made several months before the new Constitution had been adopted (see B.4 below). 18. Article 2 § 2 of the 1990 Constitution provided, inter alia, that citizens exercised sovereignty through their “freely elected representatives”. 19. Article 42 provided, inter alia, that a citizen who had reached the age of eighteen had the right to vote for Parliament and be elected; that parliamentary elections were direct, and that political parties, as well as other bodies, had the right to nominate candidates. 20. Article 76 provided that an MP represented the citizens of the district in which he or she had been elected. 21. The 1990 Constitution was repealed in November 2006 and the new Constitution, published in OG RS no. 98/06, entered into force. 22. Article 88 § 1(1) provided that the term of office of a member of parliament would end before it was due to expire officially if the person ceased to be a member of the political party or coalition on whose list he or she had been elected. On 27 May 2003 this provision was declared unconstitutional by the Constitutional Court of Serbia and was effectively removed from the Act (see paragraph 34 below). 23. Article 88 § 1(2) provides that a parliamentary term of office ends before its official expiry if a member submits his or her resignation. 24. On 25 May 2011 Article 88 was amended with the insertion of a provision requiring an MP to tender his or her resignation in person, in an officially certified document, and hand it to the President of Parliament within three days of the date of official certification. 25. Article 230 provides that an MP, when tendering his or her resignation, must do so in writing and hand it to the President of Parliament, who must then forward it to all other MPs. 26. Articles 111 and 112 provide that a contract can be declared null and void if it was concluded by a party acting with limited legal capacity or if it was concluded as a result of shortcomings in the intentions of the parties (mane volje). 27. Articles 199 and 200 provide, inter alia, that anyone who has suffered fear, physical pain or mental anguish as a consequence of a breach of his or her personal rights (prava ličnosti) is entitled, depending on the duration and intensity of the breach, to sue for financial compensation in the civil courts and, in addition, to request other forms of redress capable of affording adequate non-pecuniary satisfaction. 28. Article 376 §§ 1 and 2 provide that a claim based on the above-mentioned provisions may be brought within three years of the date on which the injured party learnt of the damage in question and identified the person responsible, but must in any case be brought within five years of the event itself. 29. Article 377 § 1 further provides that if the damage at issue has been caused as the result of the commission of a criminal offence, the civil limitation period may be extended so as to correspond to the applicable criminal statute of limitations. 30. Article 52 provides, inter alia, that every citizen who is of age and of working ability has the right to vote and stand for election; that elections are direct; and that election rights are protected in accordance with the law. 31. Article 102 § 2 provides that, “under the terms prescribed by law, an MP shall be free to put his or her mandate irrevocably at the disposal of the political party on the proposal of which he or she was elected”. 32. Article 170 provides that “a constitutional appeal may be lodged against individual decisions or actions of State bodies or organisations exercising delegated public powers which violate or deny human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies for their protection have already been exhausted or have not been prescribed”. 33. The new Constitution entered into force in November 2006. 34. On 27 May 2003, whilst reviewing the constitutionality of election legislation in abstracto, the Constitutional Court held that the mandate of an elected MP belonged to the MP personally, and not to the political party on whose list he or she was elected. In its reasoning, the court emphasised that once elected, MPs should be accountable primarily to the voters who elected them, not to their political party. This flows from the fact that they hold a mandate from the people, not from their party. The fact that an MP has resigned from the party or been expelled should not therefore lead to their expulsion from parliament. There is no constitutional obligation on MPs to resign if they have political disagreements with their party, even if they are expelled from it (decision IU no. 197/2002). 35. The Parliamentary Assembly of the Council of Europe (“the Assembly”) has adopted a number of resolutions and recommendations regarding the issue of the recall of peoples’ representatives by political parties. 36. On 25 June 2008 the Assembly adopted Resolution 1619 (2008) entitled “State of democracy in Europe. The functioning of democratic institutions in Europe and progress of the Assembly’s monitoring procedure”, which stated, inter alia: “... constitutional and legislative provisions providing for the recall of peoples’ representatives by the political parties (the so-called ‘imperative mandate’) should be abrogated in the Russian Federation, Serbia and Ukraine; ... the recall of peoples’ representatives by the political parties (the so-called ‘imperative mandate’) is unacceptable and contrary to the principles of the rule of law and the separation of powers.” 37. On 23 June 2010 the Assembly adopted Resolution 1747 (2010) entitled “State of democracy in Europe and the progress of the Assembly’s monitoring procedure”, which stated, inter alia: “... the Assembly urges ... the Parliaments of the Russian Federation, Serbia and Ukraine to abrogate constitutional and legislative provisions providing for the recall of peoples’ representatives by the political parties (the so-called ‘imperative mandate’) ...” 38. On 25 January 2012 the Assembly adopted Resolution 1858 (2012) entitled “The honouring of obligations and commitments by Serbia”, which stated, inter alia: “9.4. [The Assembly] congratulates Serbia for adopting, in 2011, the Act on Altering and Amending the Act on Election of Members of Parliament of the Republic of Serbia in accordance with the Joint Opinion of the European Commission for Democracy through Law (Venice Commission) and the OSCE/ODIHR, which has brought the system of allocation of mandates in the parliament into line with European standards; it abolished the ‘party-administrated mandates’ and the ‘blank resignations’, as requested by the Assembly in its Resolution 1661; ... The Assembly notes, however, that the Serbian Constitution still contains a provision allowing for “imperative mandates”; ... 9.10. [The Assembly] therefore calls on the Serbian authorities to: 9.10.1. eliminate from the constitution the provisions establishing the imperative mandate of members of parliament; ... ” 39. The Venice Commission, the Council of Europe’s advisory body on constitutional matters, adopted an Opinion at its 70th plenary session (document CDL-AD(2007)004 of 19 March 2007), the relevant part of which reads: “ ... [Section 2 of Article 102 of the Serbian Constitution] ... states that ‘Under the terms stipulated by the Law, a deputy shall be free to irrevocably put his/her term of office at the disposal [of] a political party upon which proposal he or she has been elected a deputy’. It seems that its intent is to tie the deputy to the party position on all matters at all times. This is a serious violation of the freedom of a deputy to express his/her view on the merits of a proposal or action. It concentrates excessive power in the hands of the party leaderships.” 40. The Report on the Imperative Mandate and Similar Practices adopted by the Council for Democratic Elections at its 28th meeting (Venice, 14 March 2009) and by the Venice Commission at its 79th Plenary Session (document CDL-AD(2009)027 of 16 June 2009) reads, in so far as relevant, as follows: “3.2.1. Obligation of Members of the parliament to resign if they change their political affiliation – the case of Serbia. ... 39. At present, imperative mandate stricto sensu and recall are unknown in practice in Europe. Moreover, there are very few countries among the Council of Europe member States which have legislation giving the power to political parties to make members of the elected bodies resign if they change their political affiliation. The mechanisms of control of individual representatives proposed in the Serbian or Ukrainian cases cannot be equalled to ‘imperative mandate’ which is a practice forbidden in virtually all European countries. These mechanisms come closer to the model of ‘party administered mandate’ which is or has been characteristic in countries such as India or South Africa with the objective of preventing massive turn round of voters’ decision by means of party switching. Whilst in these countries these practices have [been] considered consistent with their own constitutions, the Venice Commission has consistently argued that losing the condition of representative because of crossing the floor or switching party is contrary to the principle of a free and independent mandate. Even though the aim pursued by this kind of measures (i.e. preventing the ‘sale’ of mandates to the top payer) can be sympathetically contemplated, the basic constitutional principle which prohibits imperative mandate or any other form of politically depriving representatives of their mandates must prevail as a cornerstone of European democratic constitutionalism.”