Published on 28 November 2022

THIRD SECTION

Application no. 55159/16 Koço KOKËDHIMA against Albania lodged on 15 September 2016 communicated on 7 November 2022

SUBJECT MATTER OF THE CASE

The application concerns the Constitutional Court’s judgment of 3 June 2016 ruling that the applicant had acted contrary to Article 70 § 3 of the Constitution which provides that members of Parliament may not engage in any for-profit activities that benefit (generate income) from public assets.

The applicant was the shareholder of a company which provided internet services to numerous public authorities pursuant to longstanding contracts that pre-dated 2 August 2013, when he was elected member of Parliament. He remained shareholder of the company until 6 February 2014 when he sold the shares.

The Constitutional Court took issue with the applicant’s six-month delay in resolving the conflict of interest (incompatibility) and noted that although the applicant’s company had not entered into any new agreements with public authorities after 2 August 2013, it had nevertheless continued to receive payments from those authorities on the basis of the pre-existing contracts. It accordingly concluded that there had been an incompatibility within the meaning of Article 70 § 3 of the Constitution between the applicant’s position as member of Parliament and his quality of shareholder of the company.

The court rejected the submissions of the applicant who argued that: (i) the relevant test should have been whether the company had entered into new agreements with public authorities after 2 August 2013, which it had not; (ii) he had divested his interests in the company before the end of the relevant financial year and had therefore received no dividend from the company’s activities during the impugned six-month period; (iii) any profits were made only by the company which was a distinct legal entity from the applicant; and (iv) his removal from office would interfere with his reputation amounting to a breach of Article 8 of the Convention as well as his right to sit as a member of Parliament and the people’s right to be represented by a candidate chosen by them.

In accordance with the judgment of the Constitutional Court, which acts as sole and final instance in such cases, the applicant was removed from office.

The applicant complains that his removal from office violated his right to serve his parliamentary mandate under Article 8 of the Convention and Article 3 of Protocol No. 1 to the Convention.

QUESTIONS TO THE PARTIES

1. Did the applicant exhaust effective domestic remedies as required by Article 35 § 1 of the Convention by raising his complaints under the Convention before the Constitutional Court?

2. Has there been a breach of the applicant’s rights under Article 3 of Protocol No. 1 to the Convention (see, for example, Lykourezos v. Greece , no. 33554/03, §§ 50-52, 15 September 2006)? In particular:

(a) was the Constitutional Court’s interpretation of Article 70 § 3 of the Constitution foreseeable in the applicant’s case (see Mugemangango v. Belgium [GC], no. 310/15, § 119, 10 July 2020, and Yabloko Russian United Democratic Party and Others v. Russia , no. 18860/07, § 76, 8 November 2016)? Did the relevant legal framework and/or parliamentary practices provide sufficient guidance for the timely avoidance of conflicts of interests by newly elected members of Parliament?

(b) did the interference with the applicant’s ability to serve his parliamentary mandate to term pursue a legitimate aim?

(c) was the interference proportionate to any legitimate aims pursued in the circumstances of the case (see, for general principles, Paunović and Milivojević v. Serbia , no. 41683/06, § 60, 24 May 2016)?

The parties are invited to provide information on the legislative history and interpretation of Article 70 § 3 of the Constitution, as well as any relevant comparative materials or sources.

3. Has there been a breach of the applicant’s rights under Article 8 of the Convention?