Realist views in dissenting opinions of Lithuanian justices on the impeachment of President Paksas, 8/2012

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The purpose of this blog is not only making advertising for my private legal practice, but also a development of a critical scholarship empirically analyzing judicial reasoning (that I call judicial shamanism). Therefore, it is sometimes interesting to take look at how the critical legal scholarship develops in dissenting opinions of Lithuanian justices, for instance, in the impeachment case of Lithuanian President Rolandas Paksas.

The story could be summarized as follows. Twice former Prime Minister Paksas got 55 % of votes and became a President of Lithuania in 2003. On 31/03/2004 the Constitutional Court found him guilty of corruption, disclosure of State secret, and abusing his office for the benefit of a friend. He was impeached, but then stood for election, and it became obvious he would be re-elected. Therefore, on 25/05/2004 the Constitutional Court interpreted that “the Spirit of the Constitution” forbids him to stand for parliamentary and presidential election for life, and then the lifelong prohibition was extended even to the office of Prime Minister or Minister. On 06/01/2011 we partially won the case: the European Court of Human Rights found that the lifelong prohibition to stand for parliamentary elections was breaching the right to free elections. On 22/03/2012 the Lithuanian Parliament amended the Law on Parliamentary Elections, and allowed the impeached President to stand. However on 05/09/2012 the Constitutional Court declared that amendment unconstitutional, since the execution of the ECtHR judgment would alter the "value system of the Lithuanian Constitution" in a too extreme manner. In June 2011 we started an action against Lithuania before the UN Human Rights Committee, and it is currently pending.

As with politicians, you may never be sure what the judges think when they get alone. Nonetheless, from time to time dissenting opinions make a contribution to the development of critical legal scholarship.

I really smiled when I saw that justice Egidijus Šileikis, PhD, and justice Gediminas Mesonis, PhD, attempt to calm down the majority of justices in their dissenting opinions (respectively § 2.7 and § 7.1). They try to convince the colleagues that executing the Strasbourg judgment will not deny the supremacy of the Lithuanian Constitutional Court. However the majority of justices are not that naïve.

Justice Šileikis pointed out that the Constitutional Court had amended its case law on application of the ECtHR judgments. Previously those judgments were considered as a binding source for Lithuania, but in the Paksas case the Constitutional Court decided to re-establish its independence. Justice Sileikis qualifies this decision as “case Although”, since the case law amendment was introduced with the word “although” (§ 3.9). Dr Šileikis also uses the concept of “magic words” from the heritage of legal realism in order to express his critical approach (§ 3.2).

Justice Šileikis describes the refusal of the Constitutional Court to apply the Strasbourg judgment as “excessive ambition vis-à-vis the European Court of Human Rights and excessive activism vis-à-vis the Lithuanian Parliament” (§ 2.1).

In general, I do not like the concept of “activism”, since it is difficult to define it in operational term. I remember the course of constitutional law that I had many years ago. Prof Egidijus Kuris, President of the Lithuanian Constitutional Court, explains that “activism” and “passivism” have certain positive and negative aspects. As far as the Lithuanian Constitutional Court is concerned, it stands “in between”. This is a bullshit that has no practical meaning.

Therefore, I prefer using the conception of “judicial shamanism”, since it embraces both, activism and passivism, and moves towards an empirical description of judicial practice in recognising that possibly all the spirits (principles, articles, rules, etc.) are alive, and possibly they really live in certain amulets (case law, Constitution, legal acts, etc.). However the variety of different techniques of entering into a contact with those spirits in order to see their interaction makes it impossible, in most cases, to establish an objective or in some way “reasonable” judicial practice.

Will your lawyer accuse you of money laundering behind your back? Michaud, 12323/11

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The EU legislated three directives (nos. 91/308/CEE, 2001/97/CE, 2005/60/CE) requiring attorneys to accuse their clients on a suspicion of money laundering without informing them about this (§§ 9-10). The French law requires your attorney to observe you permanently and denounce every suspicion (§ 13). On 06/12/2012 the European Court of Human Rights found this compatible with the right to private correspondence with an attorney (Article 8 of the European Convention of Human Rights).

French tax attorney Patrick Michaud tried to prove contrary. He argued that the notion of “suspect” was not defined clearly (§ 59). The Court replied that it is impossible to arrive to “absolute certainty”, since this would produce “excessive rigidity”, and that the concepts must be “more or less vagues” (§ 96). The ECtHR continued that it had already been recognised in case law that sometimes the attorney’s freedom of expression is more important than professional secret (§ 123).

The attorney argued that the function of counselling in business transaction and defending before tribunals could not be easily divided (§§ 59, 117.2), but it didn’t work. The ECtHR replied that the duty to accuse is strictly limited to business transactions that are clearly defined (§ 127), and that there is a filter of the Bar (§ 129).

In 2010, French attorneys 20 252 times accused their clients but only in 404 cases the clients became prisoners at the bar. Mr Michaud says that this means that the system is not efficient, and waists time that could be invested in fighting crime (§ 65). The Court replies that according to the intergovernmental body Financial Action Task Force it is good that the French attorneys were among the best in the World in accusing their clients behind the back (§ 125).

Mr Michaud presented an analysis of the situation in Italy, Estonia, Belgium, Netherlands, Ireland, the USA and Canada (§ 68). Do not choose France.

ECJ gives the green light for the European Stability Mechanism, Pringle, C-370/12

The European Council took Decision 2011/199/EU of 25/03/2011 amending Article 136 of the Treaty on the Functioning of the European Union (TFEU) with § 3 providing that the Eurozone Member States may establish a stability mechanism (§ 6). The Decision is accompanied with the European Stability Mechanism (ESM) Treaty that establishes the respective mechanism with a maximum lending capacity fixed at € 500 billion in order to help Member States threatened by severe financing problems (§ 11).

Thomas Pringle, left-wing independent Member of Irish Parliament, sued Ireland for implementing this initiative before the Irish Supreme court that made a reference to the EU Court of Justice (§ 2). The latter decided to judge in full Court of 27 judges, and on 27/11/2012 dismissed the action.

Mr Pringle claimed that Article 136 TFEU might not be amended pursuant to the simplified revision procedure provided by Article 48(6) TEU, since this amendment would directly encroach on the exclusive competence of the Union in relation to monetary policy (§ 25). Article 3(1)(c) TFEU states that the Union is to have exclusive competence in the area of monetary policy for the Eurozone. Thus, according to Pringle, the amendment would give Member States back the respective competence (§ 52).

The 27 judges replied in 2 steps. First, the TFEU contains no definition of monetary policy, and refers to the objectives, not to the instruments (§ 53). Second, under Articles 127(1) and 282(2) TFEU, the primary objective of the EU monetary policy is to maintain price stability, which is pretty different from safeguarding the stability of the euro (§§ 54 and 56). Thus the grant of financial assistance does not fall within monetary policy.

Mr Pringle argues that Article 48(6) TEU provides that the European Council can act in monetary area only after consulting the European Central Bank. In this case the European Central Bank gave its opinion on 17/03/2011, and this means that this is a monetary policy procedure. The ECJ replied that the Bank was consulted on the European Council’s own initiative, and not due to any legal obligation (§ 61).

Mr Pringle continues that the competence of establishing this kind of mechanism has been transferred to the Union level by Article 352 TFEU, and cannot be forwarded to a new institution called European Stability Mechanism by the simplified revision procedure. The full Court replies that the Union has not used powers under that Article and that, in any event, that provision does not impose on the Union any obligation to act (§ 67). I like this point because this is a bright case of indeterminacy in the EU case law. In this case, the Court followed Commission v Council, 22/70, § 95, but there are other cases (such as UK v Ireland) where this kind of reasoning was unambiguously dismissed.

The final point makes us smile. Mr Pringle says that the ESM Treaty may not be signed or ratified before the entry into force of Decision 2011/199 amending Article 136 TFEU (§ 183). The ECJ replies that this amendment is a simple confirmation of the legal order that has existed before (§ 184). In other words, the Court makes the completed amendment procedure senseless because anyway it always was like this.

ECtHR: 7 days of police detention without window and a proper toilet cost € 3 000, Kasperovicius, 54872/08

On 20/11/2012 the European Court of Human Rights awarded non-pecuniary damages of € 3 000 to Mr Aleksandras Kasperovicius who spent 7 days in Anyksciai Police Detention Facility (§§ 6, 7, 47), since the cell did not have a window, neither a toilet and a sink. During the day he had to knock the cell door to ask a police officer to let him to toilet, and in the night he had a bucket (§ 10).

The Lithuanian Government argued that 4 days over 7 he was alone in the cell (§ 32), the artificial light and the cell microclimate met the legislative requirements, and the police detention did not cause any adverse health effect (§ 33). However the judges pointed that these facts have no influence on the access to toilet and the absence of a window, which was also confirmed by the Lithuanian Ombudsman and the UN Committee for the Prevention of Trture and Inhuman or Degrading Treatment (§§ 23, 42).

Broken seal leads to a fine of € 38 million for E.ON Energie AG, C-89/11 P

The European Commission suspecting E.ON Energie AG in an anti-competitive agreement sent them an inspection in Munchen, which sealed a door at the end of the day in order to continue in the morning. The seal was measuring 90 mm by 60 mm. In the morning, the white adhesive, by means of which the seal had been fixed to the substrate, remained on the latter in the form of “VOID” message about 5 mm high, distributed over the whole surface of the adhesive label. The seal became transparent, so that the “VOID” message was visible on the seal (§ 8). Thus, the European Commission presumed that the company people broke the seal in order to enter the room and destroy proofs.

However the shelf life of the seal itself had been expired, and there was no damage to the very letters of the seal. Therefore, E.ON Energie asked for a measure of inquiry to that matter, but the EU General Court denied the motion (§§ 109-110). The EU Court of Justice replies that this denial is not a subject to appeal (§ 115).

The ECJ held that the fine of € 38 million representing 0.14 % of E.ON Energie’s annual turnover could not be considered as disproportional due to the need to ensure deterrent effect. The maximum fine in the case of broking the seal could go up to 1 % of annual turnover. 

As I already wrote in previous posts, it is sad that the deterrent effect principle is never applied when the European Commission of the European Parliament themselves breach EU law and fundamental human rights.

ESRC forbids reduction of social rights during economic crisis, GENOP-DEI v Greece, 65/2011

Due to the economic crisis, Greece issued new law allowing dismissal of a person with indefinite contract during a probation period of 12 months without notice (§§ 8, 14). The European Social Rights Committee reminded the Greek Government that in the general introduction to its Conclusions XIX-2 (2009) the Committee dismissed any possibility of reducing social rights during an economic crisis, since it is the time when the beneficiaries need the protection most (§ 16).

The Greek Government tried to maintain that the trial nature of the period justifies the initial instability of employment (§§ 23-24), but the Committee replied that the concept of trial period may not be interpreted so broadly that the notice and severance pay guarantee would become ineffective (§ 26).

Thus, Greece violated Article 4(4) on the right to reasonable dismissal notice of the European Social Charter.

Covering legal costs before the EFTA Court, Konkurrenten.no v ESA, E-14/10 COSTS

Previously I already wrote about the case Konkurrenten.no. Now the matter of legal costs to be covered by the EFTA Surveillance Authority came back to Luxembourg. The parties finally agreed on hourly rate of € 340 (§ 29) but disagreed on the number of hours. We have the following picture:

Task	Konkurrenten.no appraisal (§§ 5, 10)	EFTA Surveillance Authority appraisal (§ 18)	EFTA Court decision
Drafting the application for annulment	137.50 h	56 h	105 h
Drafting reply to the defense	84.25 h	40 h	55 h
Application for measures of organization leading to the calling of the first witness	29 h	14 h	18 h
Observations on intervention from KTP/Unibuss	4.25 h	4.25 h	4.25 h
Preparation and attendance of oral hearing	31 h	12 h	26 h
Application for the taxation of costs	5 h	0 h	5 h
Total hours:	291 h	126.25 h	189 h
Total lawyers fee:	€ 102 130	€ 42 925	€ 69 360

The EFTA Court explained its deduction with the statement that the case does not raise new points of EEA law (§ 31). Moreover, the Konkurrenten.no lawyer did not represent it in the administrative procedure, and thus needed more time (§ 32).

It is interesting that the EFTA Court decided that the EEA law does not forbid disclosing of a letter headed “without prejudice” in the proceedings for the taxation of recoverable costs (§ 25).

UN HRC: denial of UN HRC competence breaches UN law, Korneenko v Belarus, 1226/2003

On 25/01/2002, Viktor Korneenko, chairman of the Gomel regional association Civil Initiatives, was fined $ 615 for use of “untied foreign aid” (computer equipment. 5 computers and 2 printers of his NGO were confiscated (§ 2.7). After the exhaustion of domestic remedies, he addressed the UN Human Rights Committee.

The Belarusian Government declares that under the Optional Protocol the State parties have no obligation to recognise the Committee’s Rules of Procedure and its case law (§ 6.2). The Committee replies that Article 39(2) of the Covenant authorizes it to establish the Rules of Procedure. Any State party to the Optional Protocol transfers the respective competence to the Committee (Preamble and Article 1). This kind of declaration breaches Article 1 of the Optional Protocol to the Covenant.