Information Note on the Court’s case-law 192

January 2016

Ivanovski v. "the former Yugoslav Republic of Macedonia" - 29908/11

Judgment 21.1.2016 [Section I]

Article 8

Article 8-1

Respect for private life

Constitutional Court president’s removal from public office as a result of lustration proceedings: violation

Article 6

Civil proceedings

Article 6-1

Civil rights and obligations

Fair hearing

Unfairness of lust ration proceedings against Constitutional Court president owing to remarks made by Prime Minister while proceedings were pending: violation

Facts – In 2009 the applicant – who was then the President of the Constitutional Court – submitted a declaration of non-collaboration with the security services to the Lustration Commission, pursuant to the Lustration Act 2008, which made collaboration with the State security services between 1944 and 2008 an impediment to holding public office. On 29 September 2010 the Lustration Commission found on the basis of materials obtained from the State Archives that the applicant did not fulfil the requirement for hol ding public office under the Lustration Act as there was evidence that he had collaborated after being interrogated by the secret police in 1964 in connection with his involvement in a high-school nationalist group. He had been deregistered in 1983.

Both b efore and during the lustration proceedings against the applicant there was a fierce public debate between Government politicians and the Constitutional Court, in which the politicians severely criticised the Constitutional Court’s decisions to review, sus pend and then invalidate certain provisions of the Lustration Act. In particular, on 24 September 2010, while the lustration proceedings were still pending, the Prime Minister published an open letter in which he stated that the Lustration Commission had r evealed that a member of the Constitutional Court had collaborated with the security services and been behind that court’s decisions to invalidate a number of the Government’s legislative reforms.

The applicant sought judicial review of the Lustration Comm ission’s decision of 29 September 2010, but his application was dismissed by the Administrative Court and his appeal to the Supreme Court was rejected. He was removed from office in April 2011 and disqualified from holding public office for a period of fiv e years.

In the Convention proceedings, the applicant complained under Article 6 § 1 of the Convention that he had been denied access to court and that the lustration proceedings had been unfair, and under Article 8 of a violation of his right to respect f or his private life.

Law – Article 6 § 1

(a) Access to court – In reviewing the decision of the Lustration Commission the Administrative Court and the Supreme Court had exercised full jurisdiction over the facts and law in addressing the substance of the applicant’s case. A hearing had been held before the Administ rative Court to which an expert assistant had been invited at the applicant’s suggestion. The applicant had accordingly had had access to court.

Conclusion : no violation (unanimously).

(b) Fairness of the proceedings – As regards the alleged overall unfai rness of the proceedings, the Court attached particular importance to the open letter, published while the lustration proceedings were pending, in which the Prime Minister had used the initial findings of the Lustration Commission to denounce the applicant as a collaborator of the secret police of the former regime. The Court saw no reason to speculate on what effect the Prime Minister’s statement might have had on the course of the proceedings. It was sufficient to note that they had ended in the applicant ’s disfavour and that, in view of its content and the manner in which it was made, the statement was ipso facto incompatible with the notion of an “independent and impartial tribunal”, it being understood that what was at stake was not actual proof of infl uence or pressure on judges but the importance of the appearance of impartiality.

The Court’s finding was further reinforced by the opinion expressed in the European Commission’s Progress Report on “the former Yugoslav Republic of Macedonia” of 9 November 2010 that the lustration proceedings in the applicant’s case “raised concerns about pressure on the independence of the judiciary”.

Those considerations w ere sufficient to conclude that the proceedings, taken as a whole, had not satisfied the requirements of a fair hearing.

Conclusion : violation (unanimously).

Article 8: The decision of the Lustration Commission had constituted interference with the applica nt’s right to respect for his private life. It was based on the relevant provisions of the Lustration Act and was thus “in accordance with the law” and the Court was ready to accept that it pursued the legitimate aim of protecting national security.

As to whether the interference was justified, the Court noted that, having regard to the relevant European standards, * it should in some manner be a qualifying condition for the imposition of a lustration measure that the person being lustrated was not acting un der compulsion when he/she collaborated with the secret police. That was an essential factor in the exercise of balancing the interests of national security against the protection of the affected individual’s rights. However, under the applicable domestic law, the authorities, including the courts, had not been called on to address that issue. As a result, the applicant’s arguments that he had not consented to the collaboration had been dismissed as irrelevant. It followed that the domestic authorities’ ana lysis in the applicant’s case was not, and could not be, sufficiently thorough to satisfy the test of “necessity in a democratic society”.

In any event, the interference with the applicant’s rights under Article 8 had been disproportionate. He had not only been removed from office, he had also been banned from taking any employment in the public service or academia for a period of five years, while the opportunities for him finding a job as a private-sector lawyer that would correspond to his professional q ualifications and experience had been reduced to an extent which made practising his profession nigh impossible. Furthermore, the Lustration Act was enacted some sixteen years after the respondent State adopted its democratic Constitution and any threat wh ich persons being lustrated could initially have posed to the newly created democracy must have considerably decreased with the passage of time.

For the same reason, the Court could not overlook the fact that the applicant’s recruitment process with the fo rmer secret police had commenced while he was still a minor. While it was true that the findings of the domestic authorities suggested that he had continued to collaborate as an adult, his contact with the secret police had ceased at the latest in 1983, so me twenty-seven years before the lustration proceedings were instituted. The Court was not convinced that after such a lapse of time he posed such a threat, if any, to a democratic society as to justify wide-ranging restrictions on his professional activit ies for a period of five years and the related stigma of a collaborator which he would continue to carry even longer.

Conclusion : violation (unanimously).

Article 41: EUR 4,500 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismis sed.

(See also Sidabras and Džiautas v. Lithuania , 55480/00 and 59330/00, 27 July 2004, Information Note 67 ; Matyjek v. Poland , 38184/03, 24 April 2007, Information Note 96 ; Žičkus v. Lithuania , 26652/02 , 7 April 2009; and Sõro v. Estonia , 22588/08, 3 September 2015, Information No te 188 )

*  See point l. of the Council of Europe ‘ Guidelines to ensure that lustration laws and similar administrative measures comply with the requirements of a state based on the rule of law ‘ referred to in the Parliamentary Assembly of the Council of Europe adopted Resolution 1096 (1996) on measures to dismantle the her itage of former communist totalitarian systems.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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