CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 11 juin 2024

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font-family:Arial } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .sC2E086EB { width:36.89pt; display:inline-block } .s88AD0518 { width:147.76pt; display:inline-block } .s5A65B3DC { width:46.56pt; display:inline-block } .s44B8752F { width:177.11pt; display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s9167BAAD { font-family:Arial; color:#0d0d0d } .sA85548BA { font-family:Arial; font-style:italic; color:#0d0d0d }   THIRD SECTION CASE OF KOKËDHIMA v. ALBANIA (Application no. 55159/16)     JUDGMENT   Art 3 P1 • Stand for election • Termination of Member of Parliament’s mandate by the Constitutional Court on the ground that it was incompatible with his involvement in business activities through a company of which he was the sole shareholder and that drew income from contracts with State bodies • No issue as to the accessibility of the applicable laws and practice • Applicant did not take all measures necessary to terminate ongoing conflict of interest at the time of assuming his mandate • Impugned measure sufficiently foreseeable and not arbitrary   Prepared by the Registry. Does not bind the Court.   STRASBOURG 11 June 2024   FINAL   11/09/2024   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Kokëdhima v. Albania, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Jolien Schukking , President ,   Georgios A. Serghides,   Darian Pavli,   Peeter Roosma,   Andreas Zünd,   Oddný Mjöll Arnardóttir,   Diana Kovatcheva , judges , and Milan Blaško, Section Registrar, Having regard to: the application (no.   55159/16) against the Republic of Albania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Albanian national, Mr Koço Kokëdhima (“the applicant”), on 15 September 2016; the decision to give notice to the Albanian Government (“the Government”) of the complaints under Article 8 of the Convention and Article 3 of Protocol No. 1 to the Convention, concerning the termination of the applicant’s mandate as a Member of Parliament, and to declare inadmissible the remainder of the application; the parties’ observations; Having deliberated in private on 21 May 2024, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The application concerns the Constitutional Court’s decision terminating the applicant’s mandate as a Member of Parliament (MP) on the grounds that it was incompatible with his involvement in business activities through a company, Abissnet SHA. The applicant complained that his removal from office violated his right to carry out his parliamentary role, contrary to the guarantees under Article 3 of Protocol No. 1 to the Convention, and that it tarnished his reputation in violation of Article 8 of the Convention. THE FACTS 2.     The applicant was born in 1959 and lives in Tirana. He was represented by Mr A. Hajdari, a lawyer practising in Tirana. 3.     The Government were represented by their Agent, Mr   O.   Moçka, General State Advocate. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. 5.     The applicant was the sole shareholder of the private joint-stock company Abissnet SHA between 29 October 1999, when the company was registered in Tirana, and 6 February 2014, when he sold his shares. Between 3 January and 2 August 2013 the company concluded contracts with numerous public authorities to provide internet and fixed telephony services. 6.     On 23 June 2013 general parliamentary elections were held in Albania in which the applicant stood as a candidate. 7.     On 25 July 2013 the applicant asked the High Inspectorate for the Declaration and Audit of Assets and Conflicts of Interest (“the High Inspectorate”) for advice under section 42 (1) (f) of Law no. 9367 of 7   April   2005, ‘ On the prevention of conflicts of interest in the exercise of public functions’ (“Law no. 9367/2005”), about the potential conflict of interest that might arise from his being the shareholder of the company Abissnet SHA if he were to be elected as an MP. 8.     On 31 July 2013 the applicant resigned from the position of manager at Abissnet SHA. 9.     On 2 August 2013 the election of the applicant was certified by the Electoral College. 10 .     In a letter of 7 August 2013, the High Inspectorate instructed the applicant that it was his responsibility to prevent any conflict of interest, and that he could seek advice from Parliament, which assessed each case of a possible conflict of interest and advised what measures should be taken. The High Inspectorate also instructed the applicant that if he wished it to carry out an administrative investigation of his position he would have to provide it with a written authorisation for that purpose. The High Inspectorate informed the applicant that, in accordance with well-established legal procedure, he would be audited by the High Inspectorate for any conflict of interest, regardless of any checks carried out by the parliamentary authorities. Audits of officials would take place within one year of the submission of their declarations of private interests and those of persons related to them. 11.     On an unspecified date the applicant approached the Speaker of Parliament about his situation. 12.     In a letter of 18 October 2013, the Speaker of Parliament informed the applicant that the Human Resources and Management of Members of Parliament Service was the right body to deal with the issues he had raised. The letter stated that the Service had not previously handled cases concerning the investigation of conflicts of interest. The Parliamentary Legal Service provided guidance on the law on prevention of conflicts of interest which might be useful for the declaration of his assets and interests which the applicant would have to make before he began his mandate as an MP. It also informed the applicant that he could seek advice from the High Inspectorate about what constituted a conflict of interest, as provided in section   42   (1)   (f) of Law no. 9367/2005. 13.     On 6 February 2014 the applicant sold his shares in Abissnet SHA to another company and on 7 February 2014 the sale contract was registered with the National Business Centre. 14 .     In February 2015 the Democratic Party’s Parliamentary Group, to which more than one-tenth of MPs belonged, submitted a request to Parliament under Article 73 of the Constitution, asking it to refer the question of whether the applicant’s position as an MP was incompatible with his having been the shareholder of Abissnet SHA to the Constitutional Court. 15.     On 10 March 2016 Parliament referred the case to the Constitutional Court. 16.     In its judgment no. 32/2016 of 3 June 2016, the Constitutional Court declared the applicant’s position as an MP incompatible with his prior position as the sole shareholder of Abissnet SHA. The Constitutional Court found that the applicant had acted contrary to Article 70 (3) of the Constitution, which provided that MPs were not allowed to engage in any profit-making activities that generated income from public assets. The Constitutional Court took issue with the applicant’s six-month delay in resolving the conflict of interest and noted that even though 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 under pre-existing contracts. It concluded that there had been a conflict of interest within the meaning of Article 70 § 3 of the Constitution between the applicant’s position as an MP and his position as a shareholder of the company. The court rejected the applicant’s arguments that (i)   the relevant test should have been whether the company had entered into new contracts with public authorities after 2 August 2013, which it had not; (ii) he had divested himself of 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 six-month period under examination; (iii) any profits had been made only by the company, which was a distinct legal entity from the applicant; and (iv) his removal from office would damage his reputation, amounting to a breach of Article 8 of the Convention and would interfere with his right to sit as an MP and the voters’ rights to be represented by a candidate chosen by them. 17.     The relevant part of the Constitutional Court’s judgment reads as follows: “The provision regulating MPs’ conflicts of interest (...) guarantees that the principles of the separation of powers, independence in the exercise of the parliamentary mandate and the avoidance of conflict of interest are observed. The constitutional legislator has decided that the regulation of conflicts of interest should be governed by special laws whereas Article 70 § 3 of the Constitution itself provides that the function of an MP is incompatible with carrying out a profit-making activity which generates revenue from State assets. This prohibition has been clearly and unequivocally expressed by the constitutional legislator, who aimed to eliminate all situations that might lead an MP to see his position as (...) a good opportunity to increase his private income (see the Constitutional Court’s Judgment no. 7 of 24 February 2016). The incompatibility has two principal aspects: firstly, there is a prohibition on [simultaneously] exercising two public functions; and, secondly, there is a prohibition on [simultaneously] exercising a public function and a private one of an economic nature (or otherwise). In both cases the prohibition on exercising two functions is aimed at preventing one person or body having overlapping powers, thus avoiding the violation of the principle of separation and balance of powers and, consequently, the rule of law. The prohibition on exercising more than one function also serves as a guarantee of the full and unreserved engagement of an official in the performance of the task undertaken by him, which could be reduced or made impossible by the commitment required by the simultaneous performance of another function by that official. [Rules on] conflicts of interest protect the exercise of an MP’s mandate and guarantee the impartiality of elected members (see the Constitutional Court’s Judgment no. 44 of 7   October 2011). The concept of incompatibility entails a prohibition on the holding of more than one duty or function, and it is irrelevant whether the official concerned [obtains] benefits because of his position or [there is] a conflict between his duty [as an official] and his private interests. The mere fact of exercising two functions or duties (public-public, public-private) is sufficient for him to be in violation of this prohibition. The [Constitutional] Court has emphasised that at the core of Article 70 § 3 of the Constitution lies one of the basic principles of exercising public functions, based on the principle: one salary or reward for one duty or function. Even when an official is allowed to hold two public duties/functions, he is still entitled to receive [only] one salary/reward. If an MP, in addition to his salary, were to receive any other income from the State budget for his primary profession, then this principle would be breached. The principle of the best possible service to the people and the principle of democracy are served where every public official gives all his attention and time to fulfilling the role to which he has been elected or appointed and which he has freely accepted. The opposite of this carries, naturally, [a risk of raising] reasonable doubts in the mind of the public about the quality of its representation (see the Constitutional Court’s Judgment no.   44 of 7   October 2011). The Constitutional Court found as follows with regard to the date at which the conflict of interest began: As to the starting point of an MP’s mandate, the [Constitutional] Court has held that the legal consequences of a [member’s] mandate come into effect at the moment when the candidate is declared an MP by the Central Election Commission (CEC). From that moment on he is required to meet all the constitutional and legal requirements entailed by the prohibition on carrying out other activities and the obligation to disclose his financial interests, as provided in Article 70 of the Constitution and in other laws. An MP’s powers and duties are related to the function of Parliament, as the member must be an MP as a precondition for the mandate itself, but an MP’s position is not won in Parliament: it is won during the election process where voters freely express their preferences among the candidates. The moment when an MP takes the parliamentary oath marks the date of the beginning of the exercise of his duty as an MP and not the beginning of his powers and functions. The [Constitutional] Court, ruling on Article 70 § 3 of the Constitution, held that the requirement not to draw any profits/revenues from State assets derives directly from this provision, which explicitly prohibits not only the exercise of profit-making activities connected with the property of the State or local government, but also acquiring ownership of such property, regardless of how it is acquired. The [Constitutional] Court notes that the contracts concluded between the parties for the provision of internet and fixed telephony services were contracts which would not be fully executed immediately but which would be carried out over time. Consequently, the obligations of the parties under these contracts continued even after the [applicant] started sitting as an MP. The [Constitutional] Court finds that despite the facts that these contracts were concluded before the announcement [of the election results] and that the company Abissnet SHA has not participated in any procurement procedure and has not concluded any other contracts with State institutions since 2 August 2013, these facts do not, from the constitutional standpoint, simply exempt the MP concerned from any responsibility, since it has been accepted and proved in the present proceedings that, regardless of the point at which legal relations between the parties were created or began operating, the company of which MP Koço Kokëdhima was the sole shareholder continued to receive income from State assets, including when he was sitting as an MP. Even after 2 August 2013 when Koço Kokëdhima was declared elected, the company continued to obtain income from the contracts it had previously concluded, including payments made to the company by State institutions. Article 70 § 3 of the Constitution cannot be read in isolation from the content of Article 70 in its entirety, which is essentially aimed at avoiding conflicts of interest in the exercise of public functions and sets out rules, means, methods, procedures, responsibilities and competencies for the identification, declaration, registration, treatment, resolution and punishment of [those responsible] in cases of conflicts of interest, with reference to law no. 9367/2005. The [Constitutional] Court emphasises that even though it is not for it to determine or provide guidelines as to the specific measures or actions that should be taken by MPs before taking office in order to avoid conflicts of interest in the future, it considers it appropriate to stress that it is the duty of MPs, in accordance with the entire constitutional and legal framework, to take the necessary measures to comply with the obligations they have as MPs.” As to the applicant’s conduct after being elected, the Constitutional Court made the following findings: “The [Constitutional] Court notes that at the time he became an MP, Koço   Kokëdhima, as a shareholder of the company Abissnet SHA and despite being aware of all the contracts concluded between that company and State institutions and the benefits deriving from those contracts, did not take the steps necessary to avoid conflicts of interest before starting to sit as an MP. The company continued to receive income while he was exercising that mandate, up until 6 February 2014. The applicant’s claim that Article 70 § 3 of the Constitution refers to ‘benefits’ to an MP and not to the receipts of a legal person other than him, and that he, while he was an MP, did not receive any direct or indirect benefit as a shareholder of the company, since the company did not declare any dividends from the profits it made from payments made by State institutions, is also constitutionally inadmissible. The [Constitutional] Court finds that Article 70 § 3 of the Constitution and the constitutional jurisprudence do not make a distinction between legal and natural persons or between activities carried out separately by these legal persons, nor have they made it a requirement for the prohibition at issue to operate that there be a direct benefit to an MP from the activity concerned. Even if the applicant did not directly benefit from the contracts concluded by the company of which he was a shareholder, as the income thus obtained was not deposited in the account he held as a natural person, he nevertheless indirectly profited from that income since it increased the capital of the company and, consequently, the value of the shares he owned, which meant that, directly or indirectly, the company’s activities were profitable for its shareholder. Whether an economic activity is exercised by an MP as a natural person or in some other form within a company in which he participates, it is constitutionally important that the activity does not generate income originating from the assets of the State or local government, and that the MP does not acquire State assets, regardless of the purpose for which the assets might be used or the final destination of the revenue thus obtained. In view of the above, the Constitutional Court finds that the actions of the MP Koço   Kokëdhima were in conflict with his role as an MP, contrary to Article 70 § 3 of the Constitution.” 18.     In accordance with the judgment of the Constitutional Court, which is the sole and final instance in such cases, the applicant was debarred from remaining an MP. RELEVANT LEGAL FRAMEWORK AND PRACTICE DOMESTIC LAW The Constitution 19.     The relevant provisions of the Constitution read as follows: “Article 70 1. Members of Parliament represent the people and are not bound by any obligatory mandate. 2. Members of Parliament shall not simultaneously exercise any other public duty, with the exception of that of a member of the Council of Ministers. Other cases of incompatibility are specified by law. 3. Members of Parliament shall not carry out any profit-making activity that stems from the property of the State or local government, nor shall they acquire property from them. 4. For every violation of paragraph 3 of this Article, on the referral of the Speaker of the Assembly or one-tenth of its members, the Assembly decides on sending the case to the Constitutional Court, which decides on the incompatibility.. Article 71 1. The mandate of a member of parliament starts on the day he is declared elected by the respective electoral commission. 2. The mandate of a member of parliament ends, or is invalidated, as the case may be: (...) c) when one of the conditions of ineligibility or incompatibility provided in Articles   69 and 70 (2) and (3) [of the Constitution] is established (...).” Law no. 9367 “On the prevention of conflicts of interest in the exercise of public functions” of 7 April 2005, as amended ( “ Law no.   9367/2005”) 20 .     The relevant provisions of Law no. 9367/2005 read as follows: “Section 3 - Definitions   1. A ‘conflict of interest’ is a situation of conflict between the public duty and the private interests of an official, insofar as his direct or indirect private interests affect, might affect or might seem to affect, in an inappropriate manner, the performance of his public duties and activities. (...) A ‘continuing conflict of interest’ is a situation in which a conflict of interest might occur repeatedly and/or frequently in the future. (...) Section 6 – Performance of Public Duties and the Obligation to Prevent Conflicts of Interests 1. On his election or appointment and on a continuing basis, an official has a duty to prevent any situation of conflict of interest arising and, if one should arise, to resolve it himself as soon as possible and in the most effective way. In cases where the official is not certain whether a conflict of interest concerning him exists, he should consult his supervisor as soon as possible. 2. Every supervisor and higher authority should take all necessary measures to prevent and resolve cases of conflict of interest. [...]   Section 21 - Prohibition on Contracting 1. Where officials exercise one of the functions defined in Chapter III, subchapter 2 of this law [including that of Member of Parliament], ..., commercial companies, partnerships or simple partnerships of which the official actively or passively owns shares or capital of whatever amount may not contract or sub-contract with any public entity. (...) Section 28 - Restrictions on the activities of Members of Parliament A Member of Parliament: a) may not be a manager or member of the management bodies of profit-making organisations; b) may not exercise income-generating private activities as an entrepreneur, in partnership with entrepreneurs of any type [ personit fizik tregtar, ortakëri personash fizikë tregtarë të çdo forme ], or as an advocate, notary public, licensed expert or consultant, agent or representative of the organisations defined in paragraph “a” of this section and may not be employed full-time to perform any other duty; c) may not hold, in an active manner, any share or capital in a commercial company, if that company has a dominant position in the market. [...] Section 37 - The basic means of addressing and resolving conflict of interest For the earliest and most effective prevention of every conflict of interest of any kind: 1. The official himself must, in the exercise of his functions and in advance if the circumstances require it, take steps to prevent or resolve every situation of conflict of interest arising in any form and in proportion to the importance of the situation in, as the case may be and as appropriate, one or more of the following ways: a) transferring or selling private interests [to third parties]; (...) (...) c) cancelling private engagements, duties or functions that are in conflict with his public function; ç) resigning from his public position, especially where continuing conflicts of interest emerge. 2. The official must inform his superior or superior body, as the case may be, of the solution suggested or implemented by him/her and provide the reasoning and justification of that solution. 3. Notwithstanding that he/she carries out the requirements in paragraphs 1 and 2 of this section, the official is not released from responsibility for being in a situation of conflict of interest if the measures taken by him are not effective in eliminating the conflict of interest. (...) Section 38 - Resolution of Particular Cases of Continuing Conflict of Interest 1. For the categories of officials defined in chapter III subdivision 2 of this law [including Members of Parliament], when the treatment and resolution of a continuing conflict of interest cannot be achieved through the means provided for in section 37 of this law, in order for the official to continue to stay in the same position, he/she shall: [...] c) transfer active ownership of the shares or capital that he/she owns to another person... 3. A transfer in accordance with paragraph “c” of sub-section 1 of this section or [the selling of the shares to another person] [ tjetërsim ]... shall be carried out as soon as possible, but no later than two months from when the obligation arises. The official must make known and document the fulfilment of this obligation immediately, and no later than 15 days from the performance of this action. .... 4. The time periods defined in paragraph 3 of this section may be extended by a superior or a superior institution when the official presents reasonable grounds for an extension. In every case, the reasons for the extension and the new time periods must be recorded and documented, but these time periods may never be more than twice the time periods defined above, with the exception of cases when the extension is dictated by the procedural time periods specified by the Constitution, procedural laws, commercial legislation and/or the rules under which public institutions issue official documents and/or judicial acts are performed, or when the time period is extended because of an assessment by the Competition Authority that the company holds a dominant market position. [...] 7. If the official or related person is not willing to comply with the requirements of the [preceding] paragraphs of this article, then the official must resign from the office within the time periods defined in this section. [...] Section 42 - Powers of the High Inspectorate for the Declaration and Audit of Assets and Conflicts of Interests 1. The High Inspectorate, in its capacity as the central authority responsible for the implementation of this law, performs the following duties and has the following responsibilities: ...   f) advising particular officials, superiors, and superior institutions, at their request, about specific cases where there appears to be a conflict of interest and questions of ethics related to those cases, as well as on the periodical registration of interests.” Law no. 9901 “On entrepreneurs and companies” of 14   April 2008, as amended 21.     The relevant provisions of Law no. 9901 “On entrepreneurs and companies” of 14 April 2008, as amended, read as follows: “Section 76 - Profit Distribution 1. Members are entitled to a share of the profit declared in the annual profit and loss account, unless otherwise provided by the Statute. 2. The profit shall be distributed among the members in proportion to their shares, unless otherwise provided by the Statute.” Domestic case-law The Constitutional Court case-law on Article 70 of the Constitution 22 .     In its decision no. 44 of 7 October 2011, the Constitutional Court found that I.B.’s position as an Member of Parliament was incompatible with his being a shareholder of a company which had concluded contracts with public authorities in the period between his election and his taking of the parliamentary oath, which had been delayed for a significant time. The relevant part of that decision reads as follows: “The [Constitutional] Court considers that: (i) [the mandate of] a Member of Parliament runs from the moment when the final result of the election is announced and continues until the constitution of the next parliament, that is, its first session; (ii) a Member [of Parliament] begins to exercise his mandate immediately after taking the oath of office, from which time he begins to enjoy certain rights and duties relating to his term of office; (iii) the term of office of a new Parliament begins with its first session after the final results of the elections are announced, and continues until the first meeting of the next Parliament. The [Constitutional] Court finds that candidates for election are not necessarily expected to give up any source of livelihood before being elected, as this would be contrary to their individual right to a private life and respect for their personal dignity. Nevertheless, an MP must take all measures to avoid any situation of incompatibility or conflict of interest that may arise at the beginning of a term of office and for as long as that mandate lasts. Concrete actions for this purpose need to be taken no later than the time when the final results of elections are announced, when the MP also has security and clarity as regards his financial income. The [Constitutional] Court emphasises that the legal consequences of the MP’s mandate begin at the point when the candidate is declared a Member of Parliament by the Central Election Commission. From this moment, the MP must comply with all constitutional and legal requirements related to the prohibition on carrying out other activities and making disclosures related to his financial interests, as provided in Article   70 of the Constitution and in other relevant laws.   The concept of conflict of interest is regulated across various legal systems partly by their constitutions and partly by special laws. If an activity conflicts with the function of a Member of Parliament, that will mean that he may not exercise that other function, only that of a Member of Parliament or of the Government. The main focus of the provisions relating to conflicts of interest has two aspects: the first relates to the prohibition on holding two public offices, whereas the second relates to the prohibition on exercising public and private functions at the same time. In both cases, the prohibition on retaining double functions is intended to prevent the overlapping of powers where they are conferred on the same person or body and so not to disturb the principle of the separation of powers and, consequently, the rule of law. In addition, the prohibition on the performance of more than one function also serves to ensure the full and unreserved commitment of an official to the performance of the duties he is entrusted with, which could be diminished or made impossible because of the particular commitment which the performance of more than one function simultaneously might require. The principle of incompatibility protects the exercise of the mandate and guarantees the impartiality of elected representatives. It consists of the legal impossibility of keeping the function for which the person concerned has been elected and [at the same time] carrying out certain activities considered by the legislator to be incompatible with the mandate of an MP. The [Constitutional] Court emphasises that the definition of a conflict of interest is based primarily on the principle of the separation of powers, but also on the principle of State neutrality, according to which State bodies or their agents should not be linked to or dependent on economic interests. As regards treating holding more than one office as a conflict of interest, it is not necessary for a public servant to make a profit because of his [other] position, or that he is in a conflict of interest as regards his official function and his private interests. That prohibition comes into play as soon as [the same person] exercises both functions (public-public, public-private). Given that the question under consideration raises the need to establish the incompatibility between the public service and the private activity of a profit-making nature deriving from State assets, the [Constitutional] Court holds that it must consider only this aspect. The prohibition of a Member of Parliament from engaging in private activity in general is not absolute. Some European legal systems allow such a possibility, with certain restrictions. Allowing a Member [of Parliament] to hold a licence to practise his primary profession is based on the principle that an MP should not be completely separated from the labour market or deprived of the possibility of practising his primary profession merely because he undertakes to represent the interests of the people in representative bodies. On the other hand, the prohibition to exercise a profession is based on the fact that the function of a member of parliament is a full-time job and must be treated as such in all laws of the State. It is necessary to consider not only the “time” element but also the “salary” element. The function of an MP is remunerated in accordance with the general economic and financial level of the country. The purpose is that an MP should not worry about his income during the term of office, so to be able to better serve the office to which he is elected. Article 70 § 2 of the Constitution prohibits the exercise of other functions by an MP. Article 70 § 3 also provides that the exercise of “profit-making activity that stems from the property of the State or the local government and acquiring State assets” is incompatible with the function of an MP. Other prohibitions are provided for in special laws. It follows from these provisions that our Constitution delegates [the regulation of] conflicts of interest to specific laws (Article 70 § 2). The ban on MPs carrying out profit-making activities where the incomes comes from State resources is constitutionally imposed by the Constitution itself. This prohibition is clearly and unequivocally expressed by the legislator, whose objective has been the complete elimination of any possibility of using the office of MP as a good opportunity to [accumulate] private income because of the favourable position of a member of the highest representative body.” As to why I.B.’s position as a Member of Parliament was untenable, the Constitutional Court held as follows: “The [Constitutional] Court considers that the point when an MP takes the oath marks the beginning of the exercise of his duties as a Member of Parliament, and not the time when he is declared to be a Member of Parliament [after the constitution of parliament]. Under Article 71 § 1 of the Constitution, even though I.B. took the oath as an MP on 25 February 2010, his mandate had been acquired at the time of the announcement by the CEC of his election to Parliament, therefore, on 1 August 2009 and not on the day when he took the oath. Having examined the facts and circumstances of the case at issue as a whole, the [Constitutional] Court finds that as an MP I.B. had a conflict of interest within the meaning of Article 70 § 3 of the Constitution when he participated in the call for tenders organised by the Durrës Municipality and when he signed a contract with its representatives (...), since he had already been elected and declared to be an MP. When his election as an MP was certified by the CEC, I.B. had an obligation to avoid any form of conflict of interest. His principal argument, that at that time he was not a Member of Parliament since he had not yet taken the oath, is unfounded. Firstly, his mandate had begun on 1 August 2009, and he received income from the Municipality of Durrës on 17 February 2010 and 21 May 2010. Secondly, his failure to take the oath promptly cannot be presented as a legitimate ground since it was the result of his personal decision based on political motives which were made public after the final election result. The fact that he took the oath several months after the certification of the election results by the CEC did not exempt him from the responsibility of fulfilling the obligations that derived from that mandate, which had begun months earlier.” 23.     In its decision no. 7 of 24 February 2016, the Constitutional Court gave its interpretation of Article 70 § 4 of the Constitution as follows: “When the Speaker of Parliament or one tenth of its Members ask Parliament to refer a request concerning an MP who has a conflict of interest under paragraph 3 of Article 70 of the Constitution, Parliament should send the case to the Constitutional Court, which is the only body competent to assess a conflict of interest between an MP’s [activities] and his mandate as an MP.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL N o . 1 TO THE CONVENTION 24.     The applicant complained about the manner in which the Constitutional Court had interpreted the legislation relevant to assessing his alleged conflict of interest, resulting in the termination of his mandate. He relied on Article 3 of Protocol No. 1, which reads as follows:   “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature”. Admissibility 25.     The Government objected that the applicant no longer had victim status because the consequences of the Constitutional Court’s judgment had concerned only his term of office between 2013 and 2017, and he had been able to register and stand as a candidate in the next elections. 26.     The applicant argued that he was directly affected by the Constitutional Court’s finding that his activities were incompatible with his mandate, breaching his rights guaranteed under Article 3 of Protocol No. 1. 27.     The Court reiterates that to deprive an applicant of victim status the authorities must fulfil two conditions: they must acknowledge, at least in essence, a violation of the Convention, and they must provide the applicant with “sufficient redress” (see   Amuur v. France , 25 June 1996, § 36,   Reports of Judgments and Decisions   1996-III;   Dalban v. Romania   [GC], no.   28114/95, §   44, ECHR 1999-VI; and   Rotaru v. Romania   [GC], no.   28341/95, §   35, ECHR 2000-V). 28.     The Court notes that the Albanian authorities, notably the Constitutional Court, have neither acknowledged the breach of the applicant’s Convention rights nor afforded him redress for that breach. Consequently, the applicant has not lost his status of victim within the meaning of Article   34 of the Convention. 29.     Therefore, the Court rejects the Government’s objection that the applicant no longer has standing as a victim under Article   34 of the Convention. 30.     The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article   35 of the Convention. It must therefore be declared admissible. Merits The parties’ submissions (a)    The applicant 31.     The applicant stressed at the outset that he did not question the aims pursued by the domestic legislation which made certain activities incompatible with the mandate of an MP, in fulfilment of Article 70 of the Constitution, nor did he object to the severity of the sanction in a case of such incompatibility – the termination of the MP’s mandate. However, he argued that the Constitutional Court’s interpretation of that legislation in his case had been overly broad and not foreseeable. 32.     He argued that there had been only one previous decision of the Constitutional Court interpreting Article 70 of the Constitution (see paragraph 22 above). In that decision the Constitutional Court had held that the mandate of an MP began when the election results were announced by the Central Electoral Commission. The applicant in that case had been a partner in a company that had concluded contracts with local government agencies for computer services after he had been declared elected as an MP. The applicant argued that his own mandate had been certified by the Judicial Electoral College on 2 August 2013 whereas the contracts that the Constitutional Court found put him in a situation of conflict of interest had been concluded before that date. The judgment of the Constitutional Court in his case had therefore not been foreseeable to him or in accordance with the law. From the date when his election as MP had been declared, he had prevented Abissnet SHA from participating in any public procurement or concluding any contracts with public institutions in order to avoid any conflict with his new position. Furthermore, he had sold his shares in Abissnet SHA in February 2014, not because of any perceived conflict of interest but to ensure that the company’s activities would no longer be hindered by his constitutional constraints. 33.     The applicant also argued that the High Inspectorate’s Legal Commentary No. 4 was the only official guide on situations of conflict of interest for public officials under Law no. 9367/2005 and did not treat pre-existing contracts with public authorities which had been concluded prior to the person assuming a governmental position as conflicts of interest that had to be resolved before taking office. 34.     The applicant stressed that on registering as a candidate for the parliamentary elections he had taken all necessary precautions and had showed a high level of diligence in order to avoid any conflict of interest. He had written to the High Inspectorate on 25 July 2013 to seek advice on his shareholding in a company (Abissnet SHA) that was carrying out pre-existing contracts for the provision of internet services to certain public institutions. The applicant argued that the High Inspectorate had a statutory duty, under section 42 (1) (f) of Law no. 9367/2005, to provide the advice sought; instead, the Inspectorate had instructed him to seek advice from Parliament. When he did so, the parliamentary administration had referred him back to the High Inspectorate. 35.     In the absence of any clear official advice, the applicant had taken steps to prevent Abissnet SHA from entering into any further contracts with public bodies. His reading of section 21 (1) of Law no. 9367/2005 had been that the relevant prohibition became applicable from the moment a person standing for election as an MP was declared to have won a parliamentary seat. 36.     The Constitutional Court had held that the purpose of Article   70   § 3 of the Constitution was to ensure that MPs did not use their position as a means of advancing their private interests and obtaining additional financial benefits. The applicant argued that he had in no way used his position for any such purposes. All Abissnet SHA’s income after 2 August 2013 had come from contracts it had concluded prior to that date, when he was a private citizen. The Constitutional Court’s finding in his case had therefore run contrary to the purposes the Constitutional Court had previously attributed to the constitutional legislator in enacting the provision. 37.     What was more, he had not earned any income from any of the Abissnet SHA contracts that had been concluded prior to 2 August 2013 since the company had not distributed any dividends to its shareholders between 2   August 2013 and 6   February 2014, the day when he sold his shares. 38.     He further argued that it had not been legally possible for Abissnet SHA to withdraw from the contracts it had previously entered into with State bodies. 39.     Given the applicable constitutional and legislative provisions, their legislative history, and the practice of the High Inspectorate at the relevant time, the manner in which the Constitutional Court had interpreted Article 70 § 3 of the Constitution therefore could not have been foreseeable to the applicant at the time. (b)    The Government 40.     The Government subm