PARTLY DISSENTING OPINION OF JUDGE COSTA JOINED BY JUDGES TSOTSORIA AND BAKA

(Translation)

1 . I disagree with the opinion of the majority of the Grand Chamber as expressed in the above judgment . My dissent is only partial but concerns two issues I consider important. I shall begin with some general observations.

2 . The case is a political one . The applicant , Mr Roland as Paksas, was elected President of the Republic of Lithuania by direct universal suffrage and held office as head of State from 26 February 2003 to 6 April 2004. On the latter date, the Lithuanian Parl iament (the Seimas) removed him from office as President for gross violations of the Constitution as established by the Constitutional Court . The case is not only political but is also unusual because impeachment proceedings are rarely instituted in Europe and elsewhere in the world and are hardly ever carried through to completion; for example, Richard Nixon, the thirty -s eventh President of the United States , resigned i n August 1974 to avoid impeachment, which had become likely as a result of the Watergate scandal. More recently , i n 2004 the South Korean Parliament impeached the country ' s President but the impeachment proceedings were declared void by the Constitutional Court two months later .

This conception of impeachment as both exceptional in nature and normally deterrent in effect has a very long history. In their work Droit constitutionnel (PUF, Thémis, Paris, 2004 , p. 47 ), Profess o rs Vlad Constantinesco and Stéphane Pierré-Caps point out that in 1742 the British Prime Minister Robert Walpole and his ministers resigned under threat of impeachment, as did Lord North and his ministers in 1782 ; of course, this British institution, dating back to the fourteenth century , inspir ed the United States , which nevertheless had (and still has) a presidential rather than parliamentary system .

3 . The majority, rightly in my opinion, dismissed several complaints as incompatible ratione materiae with the Convention and its Protocols. In particular, they applied the well-known case-law deriving from Pierre-Bloch v. France ( 21 October 1997, Reports of Judgments and Decisions 1997-VI) in declaring Article 6 § 1 inapplicable to Constitutional Court proceedings; and they held that Article 3 of Protocol No. 1, concerning the right to free elections – which the case-law of the European Commission and Court of Human Rights has extended to the right to vote and to stand in elections ( as, indeed, seems to follow from the State ' s obligation to ensure “ the free expression of the opinion of the people in the choice of the legislatur e ” ) – applies only to the e lection of the “legislature”: accordingly, it does not apply to the President ' s removal from office, or to eligibility to stand for election as President (or indeed to referendums, an issue not arising here) .

4 . Finding that the applicant ' s disqualification from standing for election to the Seimas thus fell within the scope of Article 3 of Protocol No. 1 , the majority went on to hold that this complaint was admissible and well-founded. I am unable to a gree on either point.

5 . Firstly , the judgment considers that both the admissibility criteria set forth in Article 35 § 1 of the Convention were satisfied . It takes the view that the applicant exhausted domestic remedies or did not have any available (which amounts to the same thing), and that his complaint was not lodged outside the six-month time-limit. These two findings are of unequal accuracy and to my mind are contradictory.

6 . Following impeachment proceedings as provided for by the Constitution, the Seimas removed M r Paksas from office on 6 April 2004. Fresh pre sidenti al elections were called for 13 June . The applicant a pplied to be registered as a candidate, but his candidacy was refused on 10 May by the Central Electoral Committee and on 28 May the Supreme Administrative Court dismissed his complaint against that decision . All this is mentioned as a reminder of the context, since the complaints concerning the applicant ' s removal from office and the presidential election are inadmissible ratione materiae .

As to the applicant ' s eligibility to stand for election to the Seimas , it was ruled out by an Act passed by the Seimas on 15 July 2004, further to the Constitutional Court ' s ruling of 25 May 2004 to the effect that a person who had been removed from office as head of State for a gross violation of the Constitution , such as Mr Paksas, could never again be (re-) elected as President or even as a member of the Seimas . As far as the latter disqualification is concerned, the decision forming the basis of the alleged violation of Article 3 of Protocol No. 1 is either the Constitutional Court ' s ruling on the disqualification, or at the very la test the Act implementing that ruling and giving it statutory effect .

7 . I can accept that the applicant did not have an effective remedy in respect of any of those measures . The Constitutional Court ' s ruling is final by virtue of Article 107 of the Constitution ( see paragraphs 41 and 76 of our judgment) . Moreover, any remedy used in an attempt to have the Act of 15 July 2004 declared unconstitutional would logically have been bound to fail , since the Constitutional Court would have no plausible reason to find fault with a legislative provision enacted by way of implementing its own ruling. Accordingly, I do not con test the conclusion reached by the majority in paragraph 78 of the judgment , while having some reservations as to the underlying reasoning, although it is unnecessary for me to express them.

8 . On the other hand, I cannot accept in all legal conscience the finding that the application is not out of tim e, at least in respect of the only admissible complaint. Since no judicial (or other) remedy was available, the final domestic decision was, at the la test and at best from the applicant ' s perspective, the Act of 15 July 2004. That date constitutes the starting-point, the dies a quo , for the six-month period . Being unable to apply to any national court, M r Paksas would not have breached the principle of subsidiarity by applying to the European Court of Human Rights; quite the contrary. In paragraph 81 , however, the judgment observes, as the Government did, that in his application ( lodged on 23 September 2004 , within the time-limit ) the applicant did not raise , even in substanc e, th e complaint concerning his ineligibility to stand for election to the Seimas . Although the applicant – who, moreover, was well informed and represented by qualified lawyers – could and should have done so, he did not raise that complaint until 30 September 2005, one year later, in a supplement to his application .

9 . To counter this unassailable argument that this complaint is out of time, the majority resort to the notion of a continu ing situation . In my view, the assistance thus offered to an applicant who has displayed a manifest lack of diligence is ingenious but artificial, and in any event I must say that I am not convinced . Admittedly, the provisions prescribing or governing Mr Pak sas ' s inability to stand for el ection have a permanent effect . But that is the case with most instantaneous acts; they rarely have a tempora ry effect . When Article 2 ( still in force ) of the Civil Code of 30 V entôse Year XII (21 March 1804) states that “the law provides only for the future; it has no retrospective effect” , the words “for the future” mean “on a permanent basis”, unless, of course, a subsequent law repeals or amends the initial law ( lex posterior derogat priori ).

Whether the disqualification from elected office is permanent or subject to a time-limit – an issue which may have a bearing on its compatibilit y with the substantive right guaranteed by Article 3 of Protocol No. 1 – this has nothing to do with the concepts of an instantaneous act or a continuing situation . O therwise, nearly all legal measures would give rise to situations that could be described as such, and the six-month rule would scarcely ever be applicable.

10 . The criterion of a time-limit is to be taken seriously. It does not reflect empty formalism. Time-limits for appealing exist for all national courts; they are generally shorter than the six-month period laid down in the Convention, which takes into account the difficulties for certain applicant s ( surely not the case for Mr Pak sas) to obtain inform ation about the Convention and to institute proceedings in Strasbourg. Time-limits for appealing pursue several legitimate aims, among them the proper administration of justice and, even more importantly, legal certainty and stability. In the case-law this admissibility criterion has been construed without excessive rigidit y , but it must be applied rigorously. Rigidity and rigorousness are not synonymous , and any slackness would in my view be danger ous , not least for the future of the European human-rights protection s y stem. As to the notion of a continuing situation, it does not stem from the text of the Convention but is a judge-made construct that has developed in a quite different environment from the present case, for example in cases of disappearances. According it too much significance in the case-law would likewise be dangerous in my opinion, for while a sometimes legitimate exception to a rule explicitly laid down in the Convention may mitigate the effects of the rule, it should not render it nugatory; the case-law may interpret the text of the Convention , but should not take its place .

11 . I therefore have no hesitation in finding that the complaint was out of time. I could leave it at that . Just to make things clear, however, I wish to add, not without some doubt, that if the complaint had been submitted in time, I would probably have concluded that it was ill-founded.

12 . The judgment as a whole appears mod erate and balanced, if I may express an opinion . I t finds only a “narrow” violation. The conviction of the majority is that lifelong disqualification from standing for election is excessive and thus unacceptable. This view is all the more understandable because the penalty is severe ( although in politics , nothing is ever final, not even electoral legislation; but one should not speculate on this point ). And the case-law generally takes a strict approach to prohibitions of this type, as in the case of permanent exclusion orders against foreign nationals ( see Mehemi v. France , 25 September 1997, Reports 1997-VI). However, the allegations against the applicant were not trivial either, and it was the national parliament which, following a ruling by a high-level court, removed him from office and passed the impugned Act. In such a specific and delicate field as electoral law, and in a case involving the complex relations between the different public authorities, subject to the ultimate scrutiny of the electorate, and thus the sovereign people , I would advocate restraint; the State has a wide discretion, and therefore it seems to me that the legitimate European supervision in this case should be restricted or limited . For that reason, I would probably have voted against point 5 of the operative provisions even if the facts could have led me to vote in favour of point 3 ; it seems more honest for me to say so.