On
the same date the CEC allowed the registration of the applicant
party's list of candidates.
3. Supervisory-review
proceedings and quashing of earlier judgments
On
26 November 1999 a deputy Prosecutor General of the Russian
Federation lodged an application for supervisory review with the
Presidium of the Supreme Court of the Russian Federation. The
prosecutor argued that “withdrawal” was a generic term
which applied to any situation where a candidate was struck off the
list, be it the expression of will of the candidate himself, of his
electoral union, or of the CEC. Hence a candidate's exclusion as a
result of the CEC's decision should count as “withdrawal”
and thus render section 51(11) of the Elections Act applicable.
On 8
December 1999 the Presidium of the Supreme Court of the Russian
Federation granted the application for supervisory review and quashed
the judgment of 22 November 1999. The court followed the line of
reasoning suggested by the deputy Prosecutor General. The court
emphasised that the exclusion of a candidate from the list as a
result of the CEC's decision was only a specific instance of
“withdrawal” and that the CEC's refusal to register the
list had therefore been lawful.
On 9
December 1999 the CEC annulled its earlier decisions, refused the
registration of the applicant party's list and ordered the applicant
party's name to be removed from the ballot papers. The applicant
party appealed against the CEC's decision to the Supreme Court of the
Russian Federation. On 18 December 1999 the Supreme Court of the
Russian Federation dismissed the applicant party's complaint. The
court found that pursuant to the judgment of the Presidium of the
Supreme Court of the Russian Federation, the CEC had no discretion in
the matter and it was obliged as a matter of law to refuse the
registration of the applicant party's list.
On
19 December 1999 the elections to the State Duma took place. The
applicant party was not listed in the voting papers.
4. Ruling no. 7-P of
the Constitutional Court of the Russian Federation
On 25 April 2000 the Constitutional Court of the
Russian Federation, acting on an application by a group of Russian
MPs, declared unconstitutional the part of section 51(11) of the
Elections Act which provided for the refusal or cancellation of a
party's registration in the event of the withdrawal of one of the top
three candidates on the list.
The
Constitutional Court stressed that the right to stand for election
was an individual rather than a collective right. However, the
contested provision made the exercise of that right conditional on
the consistent presence of the top three candidates on the list,
which amounted to a restriction on the other candidates' right to
stand for election and on the citizens' right to vote for them. It
violated the principle of equality between the candidates because it
only applied in the event of withdrawal of one of the top three
candidates but not of those in lower positions on the list. Such a
restriction could not be justified by the special role played by the
top three candidates, who were usually political heavyweights, in the
electoral campaign and it did not serve any legitimate aim listed in
the Constitution.
Moreover,
withdrawal of one of the top three candidates had a
disproportionately crippling effect on the electoral union or bloc,
which forfeited the right to stand for election through no fault of
its own. On the other hand, it made it difficult for the top three
candidates to leave an electoral union whose platform had changed to
the point of being inconsistent with their own views. It also
encroached on the active voting rights of the electorate, depriving
them of an opportunity to vote for the candidates and impairing the
formation of a representative spectrum of members of Parliament.
Finally,
the Constitutional Court noted that the refusal or cancellation of
registration was essentially a sanction imposed on an electoral union
or bloc. Sanctions could only be inflicted for violations of the
electoral laws and should be proportionate to the violation. However,
the contested provision made it possible to sanction electoral
unions, blocs and other candidates who had not committed any
violation, and this was incompatible with the general principles of
justice and rule of law.
The
Constitutional Court also ruled that the finding that section 51(11)
was unconstitutional was of no consequence for the State Duma
elections of 19 December 1999 and could not be relied upon to seek a
review of their results.
On 4
May 2000 the Constitutional Court of the Russian Federation
disallowed the applicant party's application for review of the
compatibility of section 51(11) with the Constitution, because the
subject-matter of the application was essentially the same as the
matter adjudicated on 25 April 2000.
5. Request for a
review on account of new circumstances
In
2001 the applicant party lodged an application with the Presidium of
the Supreme Court of the Russian Federation to review the judgment of
8 December 1999 in the light of a new circumstance, namely the
ruling of the Constitutional Court.
On 7
February 2001 the Presidium of the Russian Federation Supreme Court
refused the applicant party's application. The court ruled that the
ruling of the Constitutional Court was not a new circumstance under
domestic law and that, in any event, the applicant party had failed
to comply with the procedural time-limit of three months for lodging
its application for a review.
B. Proceedings for the return of the election deposit
On
30 July 2000 the applicant party applied to the CEC to have its
election deposit paid back.
In a
letter of 24 August 2000, the CEC informed the applicant party that
the election deposit had been credited to the federal budget and
could not be repaid. The CEC maintained that the decision of the
Constitutional Court did not apply to the 1999 elections and that
there was consequently no ground for returning the election deposit.
On
26 April 2001 the applicant party brought a civil action against the
CEC for the return of the election deposit.
In a
judgment of 6 September 2001, the Basmanniy District Court of Moscow
dismissed the applicant party's action. The court based its decision
on a provision of the Elections Act to the effect that the election
deposit could not be repaid if the party's list had not been
registered in accordance with section 51(11) of the Act. The court
held that the applicant party's request for the return of the deposit
on the basis of the Constitutional Court's ruling was in fact a
disguised request for a review of the election results, which had
been expressly prohibited by the Constitutional Court.
On
10 June 2002 the Moscow City Court upheld on appeal the judgment of 6
September 2001.
II. RELEVANT DOMESTIC LAW
A. Constitution of the Russian Federation
The Constitution of the Russian Federation guarantees
to the citizens of the Russian Federation the right to elect and to
stand for election to State and municipal bodies (Article 32 §
2).
B. The Elections Act
The
Federal Law on Elections of Deputies to the State Duma of the Russian
Federation Federal Assembly (no. 121-FZ of 24 June 1999 – “the
Elections Act”) provided at the material time as follows:
Section
47. Registration of a candidate or of a federal list of candidates
“1. No later than ten days after the submission of
the lists of signatures ([or] upon receipt of the election deposit in
the special account of the Central Electoral Commission) and of other
documents required for the registration of the federal list of
candidates, the Central Electoral Commission shall make a decision to
register the federal list of candidates or a reasoned decision to
refuse to register the said list...
6 ... Grounds for a refusal shall include:
(d) [“(г)”
in the original] inaccuracy of information submitted by
candidates, electoral unions or blocs in accordance with the present
Federal Law, provided that such inaccuracy is substantial (inaccuracy
of information in respect of specific candidates on the federal list
of candidates of an electoral union or bloc may only be a ground for
the exclusion of the candidates in question from the approved federal
list)...”
Section 51. Withdrawal of candidates, registered
candidates, electoral unions or
electoral blocs
“11. If the number of candidates, registered
candidates and candidates excluded from the federal list of
candidates of their own motion or by virtue of a decision of the
electoral union or electoral bloc exceeds 25 per cent of the total
number of candidates in the approved electoral list or if withdrawal
of one or more candidates listed in the top three positions in the
nationwide section of the approved federal list of candidates occurs
(except in the event of compelling circumstances as described in
subsection 16 of this section), the Central Electoral Commission
shall refuse to register the federal list of candidates or shall
cancel such registration.
15. ...[If] the registration of the federal list was
cancelled pursuant to subsection 11 of this section..., all expenses
incurred by the electoral commission in connection with the
preparation and organisation of elections shall be reimbursed by that
registered candidate, electoral union or electoral bloc.”
Section
64. Election deposit
“7. ...If... a registered candidate withdraws on
his own initiative or a candidate, registered candidate or the
federal list is withdrawn by the electoral union or electoral bloc
(with the exception of cases described in section 51(15) of this
Federal Law) ... [or] registration of a candidate or of the federal
list is refused (except on the grounds set out in section 91(2) of
this Federal Law) ..., the election deposit that has been paid shall
be returned by the electoral commission to the appropriate electoral
fund no later than ten days after an application (notice) to that
effect is submitted to the Central Electoral Commission ... by the
electoral union, electoral bloc, candidate, or registered candidate,
or after the registration is refused.”
Section
91. Grounds for refusal or cancellation of the registration of a
candidate
or a federal list of candidates
“2. An electoral commission may refuse to register
a candidate or a federal list of candidates if:
(а) it is established that the information
submitted by the candidate or an authorised representative of an
electoral union or bloc under this Federal Law is substantially
inaccurate ...”
C. Decree no. 65/764/3 of the Central Electoral
Commission of the Russian Federation on the Approval of the General
Election Results for the State Duma of the Federal Assembly of the
Russian Federation
On 29 December 1999 the CEC approved, by the above
decree, the general election results. It appears from the appendices
to the decree that 28 political parties and blocs took part in the
elections, of which six passed the requisite 5% threshold for
representation in Parliament. 66.8 million voters cast their votes in
the election, representing 61.85% of the voting population. 3.3% of
voters voted “against all candidates”.
III. RELEVANT COUNCIL OF EUROPE DOCUMENTS
A. Resolution of the Parliamentary Assembly on the Code
of Good Practice in Electoral Matters
The relevant parts of Resolution 1320 (2003) adopted
by the Parliamentary Assembly on 30 January 2003, read as follows:
“1. The holding of free, equal, universal, secret
and direct elections at regular intervals remains a sine qua non
[condition] for recognising a political system as democratic...
5. The Assembly considers that the code constitutes a
major step towards harmonising standards for the organisation and
observation of elections and in establishing procedures and
conditions for the organisation of the electoral process...
8. The Assembly considers that, as a reference document
not only for member states but also for itself, the code would
reinforce the impact and the credibility of the electoral observation
and monitoring activities conducted by the Council of Europe.”
B. Declaration by the Committee of Ministers on the
Code of Good Practice in Electoral Matters
The relevant parts of the declaration adopted by the
Committee of Ministers on 13 May 2004 at its 114th Session, read
as follows:
“The Committee of Ministers...
Recalling the importance of the effective implementation
of the principles of Europe's electoral heritage: universal, equal,
free, secret and direct suffrage...
Recognises the importance of the Code of Good Practice
in Electoral Matters, which reflects the principles of Europe's
electoral heritage, as a reference document for the Council of Europe
in this area, and as a basis for possible further development of the
legal framework of democratic elections in European countries;
Calls on governments, parliaments and other relevant
authorities in the member states to take account of the Code of Good
Practice in Electoral Matters, to have regard to it, within their
democratic national traditions...”
C. Code of Good Practice in Electoral
Matters: Guidelines on Elections and Explanatory Report
The
Code of Good Practice was adopted by the European Commission for
Democracy through Law (Venice Commission) at its 51st (Guidelines)
and 52nd (Report) sessions on 5-6 July and 18-19 October 2002
(Opinion no. 190/2002, CDL-AD (2002) 23 rev.).
Guidelines on Elections provide as follows:
I. Principles
of Europe's electoral heritage
“The five principles underlying Europe's electoral
heritage are universal, equal, free, secret
and direct suffrage. Furthermore, elections must be held at
regular intervals.
3.1. Freedom of voters to form an opinion
a. State authorities must observe their duty of
neutrality. In particular, this concerns:
i. media;
ii. billposting;
iii. the right to demonstrate;
iv. funding of parties and candidates.
b. The public authorities have a number of positive
obligations; inter alia, they must:
i. submit the candidatures received to the electorate;
ii. enable voters to know the lists and candidates
standing for election, for example through appropriate posting.
iii. The above information must also be available in the
languages of the national minorities.
c. Sanctions must be imposed in the case of breaches of
duty of neutrality and voters' freedom to form an opinion.
3.2. Freedom of voters to express their wishes and
action to combat electoral fraud
i. voting procedures must be simple;
ii. voters should always have the possibility of voting
in a polling station...
vii. at least two criteria should be used to assess the
accuracy of the outcome of the ballot: the number of votes cast and
the number of voting slips placed in the ballot box...
x. polling stations must include representatives of a
number of parties, and the presence of observers appointed by the
candidates must be permitted during voting and counting...
xiii. counting must be transparent. Observers,
candidates' representatives and the media must be allowed to be
present. These persons must also have access to the records;
xv. the state must punish any kind of electoral fraud.”
Explanatory Report reads as follows:
“3. Free suffrage
26. Free suffrage comprises two different
aspects: free formation of the elector's opinion, and free expression
of this opinion, i.e. freedom of voting procedure and accurate
assessment of the result.
3.1 Freedom of voters to form an opinion
a. Freedom of voters to form an opinion partly overlaps
with equality of opportunity. It requires the state –
and public authorities generally – to honour their duty of
even-handedness, particularly where the use of the mass media,
billposting, the right to demonstrate on public thoroughfares and the
funding of parties and candidates are concerned.
b. Public authorities also have certain positive
obligations. They must submit lawfully presented candidatures to the
citizens' votes. The presentation of specific candidatures may be
prohibited only in exceptional circumstances, where necessitated by a
greater public interest. Public authorities must also give the
electorate access to lists and candidates standing for election by
means, for instance, of appropriate billposting...
3.2. Freedom of voters to express their
wishes and combating electoral fraud
27. Freedom of voters to express their wishes
primarily requires strict observance of the voting procedure. In
practice, electors should be able to cast their votes for registered
lists or candidates, which means that they must be supplied with
ballot papers bearing their names and that they must be able to
deposit the ballot papers in a ballot box. ... Electors must be
protected from threats or constraints liable to prevent them from
casting their votes or from casting them as they wish, whether such
threats come from the authorities or from individuals; the state is
obliged to prevent and penalise such practices.”
IV. RELEVANT INTERNATIONAL DOCUMENTS
The relevant part of the summary of the findings of
the Final Report on the parliamentary elections in the Russian
Federation (19 December 1999), prepared by the Office for Democratic
Institutions and Human Rights of the Organisation for Security and
Cooperation in Europe (OSCE/ODIHR), reads as follows:
“In general, and in spite of episodic challenges
that could have undermined the general integrity of the process as a
whole, the State Duma elections marked significant progress in
consolidating representative democracy in the Russian Federation.
They reflected a political environment in which voters had a broad
spectrum of political forces from which to choose.
A solid turnout demonstrated a respectable level of
public confidence in the process, and the final result showed a
significant increase in the representative share of overall voter
support actually included in the State Duma.
The electoral laws governing the process had improved
significantly with each successive election and were found to be
consistent with commonly recognized democratic principles, including
those formulated in the OSCE Copenhagen Document of 1990. This legal
framework provided a sound basis for the conduct of orderly,
pluralistic and accountable elections.
The law provides the framework for parties and blocs to
enter the political arena on an equal basis and provides a foundation
for maintaining a level playing field for political participants. In
particular, the law provided a basis for equal access to free media
time for all participants, and instituted rigid parameters for
enforcing accountability measures and controlling the use of campaign
funds.
The political campaigns were competitive and pluralistic
with 26 parties and blocs ultimately competing on the federal list
and 3 to 24 candidates appearing on ballots for the single-mandate
constituency races...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL NO. 1
The
applicants complained under Article 3 of Protocol No. 1 to the
Convention that the first and second applicants' right to stand for
election and the third applicant's right to vote had been violated.
Article 3 of Protocol No. 1 provides 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.”
The
Court will consider separately the alleged violation of the applicant
party's and the second applicant's right to stand for election, and
the alleged violation of the third applicant's right to vote.
A. The right to stand for election
1. The parties'
arguments
The
applicants submitted that the Central Electoral Commission had acted
in excess of its jurisdiction. It followed from the CEC's decision of
3 November 1999 that it had uncovered false representations made
by individual candidates rather than by the applicant party as an
entity. Neither section 47(6)(d) nor section 91(2) of the Elections
Act could be construed as a legal basis for the applicant party's
exclusion: the former provision provided for a sanction against
individual candidates rather than against the entire list, whereas
the latter refused registration of a party that submitted
substantially inaccurate information about itself. Neither provision
was applicable to the case at hand. Registration of the applicant
party had been cancelled on the basis of section 51(11), which had
later been struck down by the Constitutional Court because it unduly
restricted voting rights. There had been a violation of the applicant
party's and the second applicant's right to stand for election, which
comprised, in particular, the right to be listed on a ballot paper.
The
Government submitted that there had been no violation because after
the elections the contested section 51(11) had been struck down by
the Constitutional Court. The CEC's decision to refuse to register
the applicant party and the second applicant, subsequently upheld by
the domestic courts, was a consequence of a breach of the requirement
to submit exact information about the property and income of all
candidates on the federal list. That decision had been based not only
on section 51(11), but also on section 91(2), which the applicants
had disregarded. In any event, from 22 November to 9 December
1999 the applicants had participated in the election campaign on a
par with other parties and candidates.
2. The general
principles established in the Court's case-law
Article
3 of Protocol No. 1 enshrines a fundamental principle for effective
political democracy, and is accordingly of prime importance in the
Convention system (see Mathieu-Mohin and Clerfayt v. Belgium,
judgment of 2 March 1987, Series A no. 113, p. 22, § 47).
As to the links between democracy and the Convention, the Court has
made the following observations (see United Communist Party of
Turkey and Others v. Turkey, judgment of 30 January 1998,
Reports of Judgments and Decisions 1998-I, pp. 21-22,
§ 45, cited in Yazar and Others v. Turkey, nos.
22723/93, 22724/93 and 22725/93, § 47, ECHR 2002-II):
“Democracy is without doubt a fundamental feature
of the European public order ... That is apparent, firstly, from the
Preamble to the Convention, which establishes a very clear
connection between the Convention and democracy by stating that the
maintenance and further realisation of human rights and fundamental
freedoms are best ensured on the one hand by an effective political
democracy and on the other by a common understanding and
observance of human rights ... The Preamble goes on to affirm that
European countries have a common heritage of political traditions,
ideals, freedom and the rule of law. The Court has observed that in
that common heritage are to be found the underlying values of the
Convention ...; it has pointed out several times that the Convention
was designed to maintain and promote the ideals and values of a
democratic society ...”
The
Court reiterates that implicit in Article 3 of Protocol No. 1 are the
subjective rights to vote and to stand for election. Although those
rights are important, they are not absolute. In their internal legal
orders the Contracting States make the rights to vote and to stand
for election subject to conditions which are not in principle
precluded under Article 3. They have a wide margin of appreciation in
this sphere, but it is for the Court to determine in the last resort
whether the requirements of Protocol No. 1 have been complied with;
it has to satisfy itself that the conditions do not curtail the
rights in question to such an extent as to impair their very essence
and deprive them of their effectiveness; that they are imposed in
pursuit of a legitimate aim; and that the means employed are not
disproportionate (see Sadak and Others (no. 2) v. Turkey,
nos. 25144/94 et al., § 31, ECHR 2002 IV).
More particularly, States enjoy considerable latitude
to establish in their constitutional order rules governing the status
of parliamentarians, including criteria for disqualification. Though
originating from a common concern – ensuring the independence
of members of parliament, but also the electorate's freedom of choice
– the criteria vary according to the historical and political
factors peculiar to each State. The number of situations provided for
in the Constitutions and the legislation on elections in many member
States of the Council of Europe shows the diversity of possible
choice on the subject. None of these criteria should, however, be
considered more valid than any other provided that it guarantees the
expression of the will of the people through free, fair and regular
elections (see Podkolzina v. Latvia, no. 46726/99, §
33, ECHR 2002 II; and Gitonas and Others v. Greece,
judgment of 1 July 1997, Reports 1997 IV, pp.
1233-34, § 39).
The
Court further reiterates that the object and purpose of the
Convention, which is an instrument for the protection of human
rights, requires its provisions to be interpreted and applied in such
a way as to make their stipulations not theoretical or illusory but
practical and effective (see United Communist Party of Turkey and
Others, cited above, pp. 18-19, § 33). The right to stand as
a candidate in an election, which is guaranteed by Article 3 of
Protocol No. 1 and is inherent in the concept of a truly democratic
regime, would only be illusory if one could be arbitrarily deprived
of it at any moment. Consequently, while it is true that States have
a wide margin of appreciation when establishing eligibility
conditions in the abstract, the principle that rights must be
effective requires the finding that this or that candidate has failed
to satisfy them to comply with a number of criteria framed to prevent
arbitrary decisions (see Podkolzina, cited above, § 35,
and Melnychenko v. Ukraine, no. 17707/02, § 59, ECHR
2004 X).
3. Application of
the above principles to the present case
Turning
to the present case, the Court notes that the applicant party and the
second applicant did not participate in the 1999 elections to the
Russian legislature because the Central Electoral Commission (CEC)
refused registration of the applicant party's list of candidates,
with the result that all candidates on the list, the second applicant
among them, were disqualified.
In
its decision of 3 November 1999 the CEC found that certain candidates
on the list, including the candidate listed second, had provided
incorrect information about their income and property, and ordered
their disqualification in their individual capacity. Paragraph 2 of
the decision additionally refused the registration of the applicant
party's list “because of the withdrawal of the candidate listed
as number two”. Although the decision referred indiscriminately
to a number of sections of the Elections Act, that particular reason
was mentioned only in section 51(11), and paragraph 2 did not give
any other reason for the refusal.
The
Court notes that it is not called upon to examine whether the refusal
to register individual candidates disclosed a violation of Article 3
of Protocol No. 1. Not one of the candidates in question is an
applicant in the present case and the applicants did not complain
about that part of the CEC's decision. Rather, their complaint hinged
on the fact that the applicant party and the other candidates who had
done nothing wrong, such as the second applicant, had been
disqualified in the election through the fault of the number two
candidate.
Section
51(11) provided for disqualification of the entire party's list in
the event of “withdrawal” (выбытия)
of one of the top three candidates on the list. That provision was
interpreted by the CEC as encompassing all instances of “withdrawal”
for whatever reasons: both voluntary withdrawal of the candidate's
own free will, and involuntary withdrawal as a consequence of his or
her registration having been cancelled or refused by an electoral
commission.
Disagreeing
with such an interpretation, the applicant party challenged the CEC's
decision before a court of general jurisdiction. The Supreme Court
found for the applicant party at two instances and rejected the CEC's
appeal. As a result, on 22 November 1999 the applicant party
obtained a final judgment to the effect that section 51(11) applied
only if the “withdrawal” had been voluntary. As in the
applicant party's case the withdrawal had not been voluntary since
the number two candidate had been refused by the CEC, the judgment
was immediately enforced: on the same day the CEC registered the
applicant party and allowed it to carry on its electoral campaign.
The
judgment of 22 November 1999 was final and no ordinary appeal lay
against it. However, on 26 November 1999 a deputy Prosecutor General
lodged an application for supervisory review of the adopted
judgments, requesting the Supreme Court to reopen the proceedings and
to accept the CEC's original broad interpretation of section 51(11).
The Presidium of the Supreme Court acceded to the prosecutor's
request, quashed the earlier judgments by way of supervisory-review
proceedings and upheld the CEC's position. On the following day the
CEC annulled its decision to register the applicant party's list of
candidates.
The
Court has already found a violation of Article 3 of Protocol No. 1
in a case where the procedure for determination of the applicant's
eligibility as a candidate in the election had not satisfied the
requirements of procedural fairness and legal certainty (see
Podkolzina, cited above, § 37).
The
Court further reiterates that the requirement of legal certainty
presupposes respect for the principle of res judicata, that is
the principle of finality of judgments. This principle underlines
that no party is entitled to seek a re-opening of the proceedings
merely for the purpose of a rehearing and a fresh decision of the
case. Higher courts' power to quash or alter binding and enforceable
judicial decisions should be exercised for correction of fundamental
defects. The mere possibility of two views on the subject is not a
ground for re-examination. Departures from that principle may be
justified only when made necessary by circumstances of a substantial
and compelling character (see Ryabykh v. Russia, no.
52854/99, § 52, ECHR 2003 IX). Indeed, as the Court has
noted, “judicial systems characterised by
the objection procedure and, therefore, by the risk of final
judgments being set aside repeatedly ... are, as such, incompatible
with the principle of legal certainty that is one of the fundamental
aspects of the rule of law” (see Sovtransavto Holding
v. Ukraine, no. 48553/99, § 77, ECHR 2002 VII).
Turning
back to the present case, the Court notes that the final and
enforceable judgment of 22 November 1999 which cleared the way for
the applicant party and the second applicant to stand in the
elections was quashed by means of supervisory-review proceedings on
an application by a deputy Prosecutor General, a State official who
was not a party to the proceedings. The purpose of his application
was precisely to obtain a fresh determination of the issue that had
been already settled in the judgment of 22 November 1999, notably
whether section 51(11) of the Elections Act also applied to instances
where the withdrawal of a candidate was involuntary. The Government
did not point to any circumstances of a substantial and compelling
character that could have justified that departure from the principle
of legal certainty in the present case. As a result of the
re-examination, the CEC's point of view prevailed and the applicant
party and the second applicant were prevented from standing for
election.
It follows that by using the supervisory-review
procedure to set aside the judgment of 22 November 1999, the domestic
authorities violated the principle of legal certainty in the
procedure for determining the applicant party's and the second
applicant's eligibility to stand in the elections.
61. Independently
of the issue of legal certainty, the Court has to examine whether the
decision to disqualify the applicant party and the second applicant
from standing in the election was proportionate to the legitimate
aims pursued, having regard to the State's margin of appreciation.
The
Court has accepted as incontestably legitimate the interest of each
State in ensuring the normal functioning of its own institutional
system. That applies all the more to the national parliament, which
is vested with legislative power and plays a primordial role in a
democratic State (see Podkolzina, cited above, § 33). The
requirement to submit information on the candidate's property,
earnings and sources of income serves to enable the voters to make an
informed choice and to promote the overall fairness of elections.
Regard being had to the principle of respect for national specificity
(see paragraph 49 above), the introduction of such a requirement,
which is determined by historical and political considerations
particular to the Russian Federation, does not appear arbitrary or
unreasonable. Accordingly, the Court concludes that requiring a
candidate for election to the national parliament – be it a
person or an electoral bloc or union – to make his or her
financial situation publicly known pursues a legitimate aim.
In a
party-list proportional representation system, where a voter votes
for a party list on the understanding that candidates placed higher
on the list have more chances of obtaining seats in the parliament,
it is not surprising that, as part of their electoral campaigning
strategy, political parties nominate the most well-liked or
charismatic figures at the top of their lists. Legal provisions
reinforcing the bond between the top candidates and the entire party
list are therefore instrumental for promoting the emergence of a
coherent political will, which is also a legitimate aim under the
terms of Article 3 of Protocol No. 1 (see, mutatis mutandis,
Gorizdra v. Moldova (dec.), no. 53180/99, 2 July
2002).
The
Court notes that section 47(6)(d) of the Elections Act provided for
disqualification of candidates or electoral unions if a substantial
discrepancy in their financial submissions was uncovered. That
provision expressly restricted the application of the measure to
individual candidates. Section 51(11) of the Elections Act, however,
provided for disqualification of the entire list of candidates in the
event of the withdrawal of one of the top three candidates.
The
Court observes that neither the applicant party as an entity nor the
second applicant as an individual candidate on the applicant party's
list was found to have been in breach of the electoral laws. Thus, it
was not their own conduct that led to their ineligibility or
disqualification. As noted above, they were prevented from standing
for election because the number two candidate on the party's list had
been withdrawn in connection with his untrue financial declaration.
However, under the domestic law, electoral blocs or candidates on the
list were not required to verify the truthfulness of financial
representations that were not their own. It follows that the
applicant party and the second applicant were sanctioned for
circumstances which were unrelated to their own law-abiding conduct
and were also outside their control. Notwithstanding the considerable
latitude which States are allowed in establishing criteria for
disqualification, the Court considers that the disqualification of
the applicant party and the second applicant for the above reasons
was disproportionate to the legitimate aims pursued, namely ensuring
the truthful disclosure of the candidates' financial position and
promoting the integrity of electoral blocs or unions.
The
Court notes that this was also the view of the Russian Constitutional
Court, which subsequently found section 51(11) of the Electoral Law
to be incompatible with the Russian Constitution in so far as it
disproportionately restricted the party's and other candidates' right
to stand for election (see paragraphs 21 et seq. above). The
Constitutional Court convincingly established that disqualification
of candidates and entire electoral alliances for reasons unrelated to
their conduct unduly impaired their passive voting rights,
irrespective of the grounds for the withdrawal of a top-three
candidate, and was contrary to the legal principle nulla poena
sine culpa. The Court sees no reason to dissent from these
findings.
It
follows that there has been a violation of Article 3 of Protocol
No. 1 in respect of the applicant party and the second
applicant.
B. The right to vote in elections
1. The parties'
arguments
The
applicants submitted that, irrespective of the applicant party's
electoral potential in the 1999 elections, the fact that it was not
allowed to stand for election had forced its supporters, such as the
third applicant, to change their voting preference or not to cast
their vote at all. This represented an unjustified interference with
the third applicant's right to vote.
The
Government responded that there had been no restriction on the third
applicant's right to vote because he had been able to vote for any
lawfully registered candidate or party. The applicant party had not
been registered for elections because of its failure to abide by the
legislation in force at the time. Alternatively, the third applicant
could have cast his vote “against all candidates”, making
use of a special line on the ballot paper indicating that the voter
did not wish to see any of the listed candidates elected. In any
event, the applicant party's low level of popular support would not
have permitted it to gain representation in the legislature.
2. The Convention
institutions' case-law and the Council of Europe's general principles
pertaining to the right to vote
The
common principles of the European constitutional heritage, which form
the basis of any genuinely democratic society, frame the right to
vote in terms of the possibility to cast a vote in universal, equal,
free, secret and direct elections held at regular intervals (see
Resolution of the Parliamentary Assembly on the Code of Good Practice
in Electoral Matters, paragraph 37 above; Declaration by the
Committee of Ministers on the Code of Good Practice in Electoral
Matters, paragraph 38 above; and the Guidelines on Elections,
paragraphs 40 and 41 above). Article 3 of Protocol No. 1
explicitly provides for the right to free elections at regular
intervals by secret ballot and the other principles have also been
recognised in the Convention institutions' case-law.
Freedom
of suffrage is the cornerstone of the protection afforded by Article
3 of Protocol No. 1. The Court considers, as did the Commission, that
the words “free expression of the opinion of the people”
primarily signify that “the elections cannot be made under any
form of pressure in the choice of one of more candidates, and that in
this choice the elector [may] not be unduly induced to vote for one
party or another” (see X. v. the United Kingdom,
no. 7140/75, Commission decision of 6 October 1976, Decisions
and Reports 7, p. 96). In other words, from a voter's
perspective, free suffrage comprises two aspects: freedom to form an
opinion and freedom to express that opinion (see the Explanatory
Report, § 26).
As regards the freedom of voters to form an opinion,
the Court notes that the Council of Europe's institutions have
primarily described it in terms of the State authorities' obligation
to honour their duty of neutrality, particularly where the use of the
mass media, billposting, the right to demonstrate and the funding of
parties and candidates are concerned (see, for example, the
Guidelines on Elections, § 3.1 (a), and the Explanatory
Report, § 26 (a)). In addition, this freedom has been considered
to imply certain positive obligations on the part of the authorities,
such as the obligation to submit the candidatures received to the
electorate and to make information about candidates readily available
(see the Guidelines on Elections, § 3.1 (b), and the
Explanatory Report, § 26 (b)).
The
freedom of voters to express their wishes, on the other hand, has
been understood in terms of strict observance of the voting
procedure. The electors should be able to cast their votes for
registered lists or candidates in conditions shielding them from
threats or constraints liable to prevent them from casting their
votes or from casting them as they wish, whether such threats come
from the authorities or from individuals (see the Guidelines on
Elections § 3.2, and the Explanatory Report, §
27).
3. The Court's
assessment
The
Court notes at the outset that the cases concerning the right to vote
that have come before the Convention institutions in the past have
focused on the possibility for the applicant to exercise his or her
franchise. Thus, the Court has found a violation of Article 3 of
Protocol No. 1 in cases where the voting ban was not proportionate to
the legitimate aim pursued (see Vito Sante Santoro
v. Italy, no. 36681/97, ECHR 2004 VI; Labita
v. Italy [GC], no. 26772/95, ECHR 2000 IV; and Hirst
v. the United Kingdom (no. 2) [GC], no. 74025/01, ECHR
2005 IX) or where the applicants belonged to a disenfranchised
cluster of the population (see Matthews v. the United Kingdom
[GC], no. 24833/94, ECHR 1999 I, and Aziz v. Cyprus,
no. 69949/01, ECHR 2004 V). The Commission extended the
reasoning in respect of a single voter's right to vote to the entire
voting population in Greece and expressed the opinion that there had
been a violation of Article 3 of Protocol No. 1 in that “the
Greek people were... prevented from expressing their political
opinion by choosing a legislature...” owing to the dissolution
of Parliament and the postponement of new elections (see the
Commission report in the Greek case, Yearbook 12, pp. 179-80).
In
the present case it has not been claimed that the third applicant was
disenfranchised because of any restriction on his right to vote
existing in law or in practice. The thrust of his grievance was not
that his right to vote had been taken away but rather that it had
been impossible for him to cast his vote for a party of his choosing
– the applicant party – which had been denied
registration for the election.
The
Court, however, does not consider that an allegedly frustrated voting
intention is capable, by itself, of grounding an arguable claim of a
violation of the right to vote. It notes, firstly, the obvious
problem of laying down a sufficient evidentiary basis for
demonstrating the nature and seriousness of such an intention. An
intention to vote for a specific party is essentially a thought
confined to the forum internum of an
individual. Its existence cannot be proved or disproved until and
unless it has manifested itself through the act of voting or handing
in a blank or spoiled paper (see X v. Austria, Commission
decision of 22 March 1972, Yearbook 15, p. 474). Moreover, a
voter's preference is not static but may evolve in time, influenced
by political events and electoral campaigning. A sudden and sweeping
change in voters' intentions is a well-documented political and
social phenomenon.
The
Court reiterates that an individual applicant should be able to claim
to be actually affected by the measure of which he complains and that
Article 34 may not be used to found an action in the nature of an
actio popularis (see, among other authorities, Norris v.
Ireland, judgment of 26 October 1988, Series A no. 142,
§ 30). The third applicant did not furnish any information
about the way in which he had exercised his right to vote. It is not
known whether he cast a ballot paper or, for that matter, whether he
attended the polling station on the voting day. He did not bring, or
take part in, any domestic proceedings in which the courts could have
established the fact that he had intended to vote for the applicant
party.
On a
more general level, the Court is mindful of the ramifications of
accepting the claim of a frustrated voting intention as an indication
of an interference with the right to vote. Such acceptance would
confer standing on a virtually unlimited number of individuals to
claim that their right to vote had been interfered with solely
because they had not voted in accordance with their initial voting
intention.
In
the light of the above considerations, the Court finds that the right
to vote cannot be construed as laying down a general guarantee that
every voter should be able to find on the ballot paper the candidate
or the party he had intended to vote for. It reiterates,
nevertheless, that the free expression of the opinion of the people
is inconceivable without the participation of a plurality of
political parties representing the different shades of opinion to be
found within a country's population (see Federación
Nacionalista Canaria v. Spain (dec.), no. 56618/00, ECHR
2001-VI). Accordingly, it must have regard to the broader context in
which the right to vote could be exercised by the third applicant.
The
Court notes that more than twenty-five political parties and
electoral blocs representing a broad gamut of political views and
platforms competed in the 1999 elections to the lower chamber of the
Russian Parliament. The elections were acclaimed as competitive and
pluralistic by international observers (see paragraph 42 above). The
observers recognised that the voters' freedom to form an opinion had
a secure basis in domestic law, which laid down “a foundation
for maintaining a level playing field for political participants”
(ibid.). It was not alleged that the voters lacked sufficient or
adequate information about the candidates, and the strict measures
adopted by the CEC in respect of the candidates who had made false
representations about themselves served to reinforce that guarantee.
Nor has it been claimed that the third applicant was subjected to any
form of pressure or undue inducement in his voting choices. Indeed,
if there were no candidates to his taste (assuming that he persisted
in his wish to vote for the applicant party), he could have voted
“against all candidates”, as more than two million other
voters did (see paragraph 36 above). It cannot therefore be said on
the basis of the information available that the third applicant's
right to take part in free elections has been unduly restricted.
There
has therefore been no violation of Article 3 of Protocol No. 1 as
regards the third applicant's right to vote.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicants complained that they had had no effective remedy in
respect of the breach of Article 3 of Protocol No. 1. The Court has
decided to examine this complaint under Article 13 of the Convention,
which reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. The applicant party and the second applicant
1. The parties'
arguments
The
applicants submitted that the Presidium of the Supreme Court should
not have adjudicated on the interpretation issue and should have
referred it to the Constitutional Court, which was the only judicial
body competent to determine the compatibility of the contested
provision with the Constitution. The question to be determined was
not whether any means of appeal had existed but whether the
applicants had had a real opportunity to redress a breach of their
electoral rights in the framework of the electoral campaign.
Furthermore, although the Constitutional Court had received the
applicants' complaint at the time when a similar application by a
group of Russian MPs had been examined, it had not joined the two
applications. Instead, it had disallowed the applicants' complaint as
“substantially the same”. Lastly, the applicants
submitted that Russian law did not provide for a procedure for
granting compensation for breaches of electoral law.
The
Government asserted that the applicants' contention that they had had
no effective remedy was incompatible with the provisions of Russian
law in force at the time and was not based on the facts of the case.
The applicants had had their claims examined by the Supreme Court and
also by the Constitutional Court. In particular, the Supreme Court
had heard their appeal against the CEC's decision of 9 December 1999
and dismissed it as unsubstantiated. After the Constitutional Court
had declared the contested provision invalid, the applicants could
have applied for a review of the Presidium's judgment in the light of
newly discovered circumstances, but had not complied with the
three-month time-limit for lodging that application.
2. The Court's
assessment
The
Court reiterates that Article 13 of the Convention guarantees the
availability at national level of a remedy to enforce the substance
of the Convention rights and freedoms in whatever form they may
happen to be secured in the domestic legal order. The scope of the
Contracting States' obligations under Article 13 varies depending on
the nature of the applicant's complaint; the “effectiveness”
of a “remedy” within the meaning of Article 13 does not
depend on the certainty of a favourable outcome for the applicant.
However, the remedy required by Article 13 must be “effective”
in practice as well as in law in the sense either of preventing the
alleged violation or remedying the impugned state of affairs, or of
providing adequate redress for any violation that had already
occurred (see Balogh v. Hungary, no. 47940/99, § 30,
20 July 2004, and Kudła v. Poland [GC],
no. 30210/96, § 158, ECHR 2000 XI).
In
the instant case the applicant party and the second applicant were
disqualified as candidates in the election as a result of the Central
Electoral Commission's decision of 9 December 1999 (see paragraph 20
above). Accordingly, the Court has to examine whether they had an
effective remedy in respect of the violation of their right to stand
for election.
The
Government argued that the applicant party had been able to appeal to
a court against the decision of 9 December 1999. However, the remedy
they suggested was obviously not an effective one: the appeal failed
because the domestic courts considered that the supervisory-review
judgment of the Presidium of the Supreme Court was final and that no
further examination of the matter was possible.
The
RSFSR Code of Civil Procedure at the time did not provide for any
appeal against a judgment or decision given in supervisory-review
proceedings. It could only be set aside by means of another
supervisory-review judgment or decision. However, the power to
institute supervisory-review proceedings was discretionary, that is
to say it was solely for the State official concerned to decide
whether or not a particular case warranted supervisory review (see
Ryabykh, cited above, § 34). It follows that a new round
of supervisory-review proceedings could not have been set in motion
by a party and that that “remedy” was not accessible to
the applicants.
It
follows that the applicant party and the second applicant were denied
an effective remedy in respect of the violation of their electoral
rights through the use of the supervisory-review procedure. There has
accordingly been a violation of Article 13 of the Convention. In the
light of this finding, the Court does not consider it necessary to
examine whether further developments in the case, such as the
Constitutional Court's refusal to consider the merits of the
applicants' complaint, also disclose a violation of that provision.
B. The third applicant
The
Court reiterates that Article 13 applies only in respect of
grievances under the Convention which are arguable (see Boyle and
Rice v. the United Kingdom, judgment of 27 April 1988, Series A
no. 131, § 52). As it has found above that the third
applicant did not have an arguable claim of a violation of his right
to vote (see paragraph 76 et seq.), Article 13 finds no application
in this situation. There has therefore been no violation of the third
applicant's right under Article 13 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
The
applicant party complained under Article 1 of Protocol No. 1 that the
refusal to return its election deposit and the requirement for it to
pay for the airtime it had used on State television had violated its
property rights. Article 1 of Protocol No. 1 provides as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
A. The parties' arguments
The
applicant party submitted that the election deposit could be credited
to the budget only if registration of the party's list had been
refused, inter alia on the grounds set out in section 51(11)
of the Elections Act, or if the party received less than 3% of the
votes. However, the applicant party had not been allowed to stand for
election and the level of its support had therefore remained unknown.
Likewise, the requirement to pay for airtime had also impaired its
property rights because it only applied to parties that had stood for
election and obtained less than 2% of the votes.
The
Government submitted that the applicant party had obtained State
financial assistance and used free airtime for campaigning in the
same conditions as other parties until the judgment of the Presidium
of the Supreme Court had been given. In any event, the election
deposit was payable out of the electoral fund created by the
applicant party and accordingly did not directly form part of its
assets. The CEC's decision to refuse to return its election deposit
had been justified because there were no legal grounds for returning
it. After the deposit had been credited to the budget, the CEC had
had no control of the money concerned, and the Constitutional Court's
ruling of 25 April 2000 could not change that situation.
B. The Court's assessment
It
has been the Convention institutions' settled case-law that the
requirement to pay an election deposit and the provisions making
reimbursement of the deposit and/or campaigning expenses conditional
on the party's having obtained a certain percentage of votes serve to
promote sufficiently representative currents of thought and are
justified and proportionate under Article 3 of Protocol No. 1, having
regard to the wide margin of appreciation afforded to the Contracting
States in this matter (see Tête v. France, nos. 11123/84
and 11802/85, Commission decisions of 9 December 1987 and 10
March 1988; André v. France, no. 27759/95, Commission
decision of 18 October 1995; and New Horizons and Others
v. Cyprus, no. 40436/98, Commission decision of 10
September 1998).
The
situation in the present case is different. Firstly, the applicant
party complained about a violation of its property rights under
Article 1 of Protocol No. 1 rather than about a violation of its
right to take part in free elections under Article 3 of Protocol No.
1, as the applicants in the above-mentioned cases did. Secondly, and
more importantly, the applicants in those cases did participate in
the election, albeit unsuccessfully, whereas the applicant party in
the present case was prevented from standing for election as a result
of the defective domestic procedure.
The
Court notes that the domestic courts refused the applicant party's
request for the return of its election deposit because it had been
disqualified from standing for election on the basis of section
51(11) of the Elections Act. However, it has already found that the
application of that provision in the present case was incompatible
with the requirements of the Convention. In particular, the Court has
found that the domestic proceedings were conducted in breach of the
principle of legal certainty. That conclusion holds true for the
applicant party's complaint under Article 1 of Protocol No. 1
(see, mutatis mutandis, Brumărescu v. Romania
[GC], no. 28342/95, § 74, ECHR 1999 VII).
It
follows that there has been a violation of Article 1 of Protocol
No. 1 in respect of the applicant party.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicants claimed 2,315,520 Russian roubles (RUR) in respect of
compensation for pecuniary damage. The amount claimed represented
91.3% of the election fund, of which 90.7% represented the applicant
party's own assets and 0.6% represented contributions from private
individuals, which had been used to pay the election deposit. The
applicants further claimed 1,600,000,000 euros (EUR) for the
applicant party and EUR 200,000 for each of the second and third
applicants in respect of non-pecuniary damage.
The
Government considered these claims excessive and “fabulous”.
The
Court refers to its above finding that the election deposit was
forfeited as a consequence of the domestic procedure, which was
incompatible with the principles set forth in the Convention. There
is therefore a causal link between the violation found and the
pecuniary damage claimed. Accordingly, the Court awards the applicant
party the entire amount claimed for the pecuniary damage plus any tax
that may be chargeable on it.
As
regards the claim in respect of non-pecuniary damage, the Court
considers that the finding of a violation would constitute sufficient
just satisfaction in respect of the applicant party and the second
applicant.
B. Costs and expenses
The
applicants claimed RUR 168,306 as reimbursement of the court fees
paid in the domestic proceedings and RUR 28,371 for postal,
translation and notary expenses incurred in the Strasbourg
proceedings. They also submitted that the applicant party had signed
a contingency fee agreement with Mr Sklyarov, according to which
he was to receive EUR 10,000 plus 5% of any amount awarded after the
judgment of the Court had been delivered.
The
Government did not comment on those claims.
The
Court notes that Mr Sklyarov is the head of the applicant party's
legal department. It would therefore be logical to assume that the
representation of the applicant party's legal interests before
judicial bodies is part of his normal professional duties, any
additional pay or bonus in the event of successful litigation being a
matter between him and his employer. It has not been shown that the
second applicant paid him any fee for representing him before the
Court. In these circumstances, the Court makes no award in respect of
Mr Sklyarov's fees.
The
Court is satisfied that the other expenses have been necessarily
incurred by the applicant party and are supported by appropriate
documentation. Accordingly, it awards the entire amount claimed in
respect of the domestic costs, as well as postal, notary and
translation expenses, that is, RUR 196,677, plus any tax that may be
chargeable on it.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been a violation of
Article 3 of Protocol No. 1 in respect of the applicant party
and the second applicant;
Holds that there has been no violation of
Article 3 of Protocol No. 1 in respect of the third applicant;
Holds that there has been a violation of
Article 13 of the Convention in respect of the applicant party
and the second applicant;
Holds that there has been no violation of
Article 13 of the Convention in respect of the third applicant;
Holds that there has been a violation of Article
1 of Protocol No. 1 in respect of the applicant party;
Holds
(a) that
the respondent State is to pay the Russian Conservative Party of
Entrepreneurs, within three months from the date on which the
judgment becomes final in accordance with Article 44 § 2
of the Convention, the following amounts:
(i) RUR
2,315,520 (two million three hundred and fifteen thousand five
hundred and twenty Russian roubles) in respect of pecuniary damage;
(ii) RUR
196,677 (one hundred and ninety-six thousand six hundred and
seventy-seven Russian roubles) in respect of costs and expenses;
(iii) any
tax that may be chargeable on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 11 January 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos
Rozakis
Registrar President
