1 1 February 2010

SECOND SECTION

Application no. 41683/06 by Goran PAUNOVI Ć and Ksenija MILIVOJEVIĆ against Serbia lodged on 5 October 2006

STATEMENT OF FACTS

THE FACTS

The applicants, Mr Goran Paunovi ć (“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. They are represented before the Court by Ms T. Lali ć , a lawyer practising in Be lgrade .

A. The circumstances of the case

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

1. The applicants ’ parliamentary mandates

In 2003 the applicants were elected as members of the National Parliament of the Republic of Serbia (“the Parliament”) on behalf of a political party called “G17PLUS”.

Before the elections, however, all candidates, including the applicants, were required by their party to sign letters of resignation which were not dated and to hand them over to the latter. These documents also authorised the party to appoint other candidates in their stead, when needed.

Following an earlie r political dispute between the applicants and their party, on 5 May 2006 the first applicant signed a separate, officially certified statement wherein he declared his prior resignation to be null and void. The first applicant informed the G17PLUS, the President of the Parliament, and the general public of this statement.

The second applicant, subsequently, also advised Parliament, the party and the public that she too considered her earlier resignation as null and void.

On 15 May 2006 the Head of the G17PLUS caucus in Parliament dated the applicants ’ resignation letters and submitted them to the President of the Parliament.

On the same day, the first applicant addressed the Parliamentary Committee on Administrative Affaires, explaining that he had no intention of resigning and that he wished, instead, to keep his seat as an independent member of Parliament. The first applicant provided the committee with his certified statement of 5 May 2005. Ultimately, however, the committee concluded that both applicants had resigned and held, therefore, that their parliamentary mandates were to be deemed terminated.

On 16 May 2006 the plenary session of Parliament confirmed this decision and accepted another two candidates proposed by the G17PLUS as members in the applicants ’ stead.

On 25 May 2006 the applicants filed two separate complaints with the Supreme Court and Constitutional Court , respectively, seeking annulment of the parliamentary decisions to terminate their mandates and replace them with other candidates.

On 29 May 2006 the Supreme Court rejected this complaint on procedural grounds, stating that the impugned parliamentary decisions were not “administrative acts” and could not, as such, be subject to judicial review.

On 29 May 2008 the Constitutional Court likewise ruled against the applicants without considering the merits of their case. It stated that new parliamentary elections had been held in January 2007, which is why the applicants ’ request had effectively become moot, and noted that their complaint could not have been considered as a constitutional appeal, envisaged under the Constitution adopted in November 2006, since the parliamentary decisions at issue had themselves been rendered several months earlier (see at B.4 below).

2. Other relevant facts

Parliamentary elections in Serbia are held on the basis of a proportional representation system, where candidates for members of parliament are included on lists put forward by political parties or coalitions. The voters may thus chose between these lists, but do not get to vote for any individual candidate directly.

B. Relevant domestic law and practice

1. The Constitution of the Republic of Serbia 1990 ( Ustav Republike Srbije ; published in the Official Gazette of the Republic of Serbia - OG RS - no. 1/90)

Article 2 § 2 provides, inter alia , that citizens exercise their sovereignty through their “freely elected representatives”.

Article 42 provides, inter alia , that a citizen who has reached the age of eighteen shall have the right to vote for and be elected to Parliament, that parliamentary elections shall be “direct”, and that a candidate “may be nominated by a political party”.

Article 76 provides that a member of parliament represents the citizens of the district in which he or she was elected.

This Constitution was repealed in November 2006, which is when the new Constitution, published in OG RS no. 98/06, entered into force.

2. The Election of Members of Parliament Act ( Zakon o izboru narodnih poslanika ; published in OG RS nos. 35/00, 69/02, 57/03, 72/03, 18/04, 85/05 and 101/05)

Article 88 § 1(2) provides that a parliamentary term of office shall end before its expiration if the member in question submits his or her resignation.

3. The Parliamentary Rules of Procedure ( Poslovnik Narodne skupštine Republike Srbije ; published in OG RS nos. 32/02, 57/03, 12/04, 29/04 and 53/05)

Article 230 provides that a member of Parliament, tending his or her resignation, shall do so “in writing” and shall “hand it” to the President of the Parliament, who shall then “forward” it to all other members of parliament.

4. The Constitution of the Republic of Serbia 2006 ( Ustav Republike Srbije ; published in OG RS no. 98/06)

Article 52, inter alia , provides that e very citizen of age and working ability shall have the right to vote and stand for election, that elections shall be direct, and that e lection right s shall be protected in accordance with the law.

Article 102 § 2 provides that, “u nder the terms stipulated by l aw, a member of parliament shall be free to irrevocably put his or her term of office at the disposal of the political party on whose initiative he or she has been elected ”.

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”.

This Constitution entered into force in November 2006.

5. The Constitutional Court ’ s case-law

On 27 May 2003, whilst reviewing the constitutionality of election legislation in abstracto , this court held that the mandate of an elected member of parliament belongs to the member personally, not to the political party on whose list he or she was elected. Should a member of parliament have political disagreements with his or her party, or even be expelled therefrom, he or she would therefore not have a constitutional obligation to resign (see IU no. 197/2002).

COMPLAINTS

The applicants rely on Articles 6, 9, 10, 13 and 14 of the Convention, as well as Article 1 of Protocol No. 12. In substance, however, they complain about: (a) the allegedly unlawful deprivation of their parliamentary mandates; (b) the fairness of the subsequent proceedings before the Supreme Court and the Constitutional Court; (c) the ultimate lack of an effective domestic remedy for the breach of their passive electoral rights; and (d) having been discriminated against/punished for holding and freely expressing their political opinions in opposition to the majority view held by the G17PLUS.

QUESTION S TO THE PARTIES

1. Has there been a breach of the applicants ’ rights under Article 3 of Protocol No. 1? In particular, did the termination of their parliamentary mandates amount to a violation of their right to, once elected, sit as members of the national legislature (see, mutatis mutandis , Selim Sadak and Others v. Turkey , nos. 25144/94, 26149/95 to 26154/95, 27100/95 and 27101/95, § 33 , ECHR 2002 ‑ IV ; see also Gaulieder v. the Slovak Republic , no. 36909/97, Commission report of 10 September 1999)?

2. Did the applicants have at their disposal an effective domestic remedy for their complaints under Article 3 of Protocol No. 1, as required by Article 13 of the Convention?