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KOVACH v. UKRAINE - 39424/02 [2008] ECHR 125 (7 February 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/125.html
Cite as:
[2008] ECHR 125
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FIFTH
SECTION
CASE OF KOVACH v. UKRAINE
(Application
no. 39424/02)
JUDGMENT
STRASBOURG
7
February 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Kovach v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Karel
Jungwiert,
Volodymyr
Butkevych,
Margarita
Tsatsa-Nikolovska,
Javier
Borrego Borrego,
Renate
Jaeger,
Mark
Villiger,
judges,
and Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 15 January 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 39424/02) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Mr Mykola Mykolayovych
Kovach (“the applicant”), on 17 October 2002.
The
applicant was represented by Mrs N. Petrova, a lawyer practising
in Kyiv. The Ukrainian Government (“the Government”) were
represented by their Agent, Mr Yuriy Zaytsev.
On
14 February 2006 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
1. Events giving rise to the applicant's subsequent
complaints
The
applicant stood as a candidate in the parliamentary elections of
31 March 2002 in the single-seat electoral constituency no. 72
in the Zakarpattya region (Одномандатний
виборчий округ
№ 72).
Among
the candidates registered in that constituency was Mr G., who, at the
material time, occupied the post of Head of the Beregovo District
State Administration of the Zakarpattya region (Берегівська
державна
адміністрація
Закарпатської
області).
On
13 and 28 March 2002 the local Hungarian-language newspapers
Bereginfo and Karpati Igaz Szo published the following
appeal to voters:
“We firmly believe that anyone who honours [Mr G.]
with their support on Sunday can do so with a clear conscience,
placing their faith and trust in him to ensure the best possible
future for our country. He is the only candidate who respects all our
interests and is capable of representing and defending those
interests at the highest level. He is a man of action who will never
abuse your trust in him and who will do his utmost to retain the full
support of voters in the future.”
The
appeal was followed by a large number of signatures, including those
of Mrs D., secretary of the Electoral Commission
of constituency no. 72 (Окружна
виборча комісія)
and Mr O., the chairperson of the same electoral commission.
On
31 March 2002 the parliamentary elections were held. During the
elections an observer, acting on behalf of Mr G. in electoral
division no. 14 of constituency no. 72 drew up a report (акт)
stating that she had witnessed an unknown person depositing several
(she believed there were seven) ballots in the ballot box. The report
was signed by two voters. The observers sent by Mr G. to
electoral divisions nos. 45 and 58 drew up similar reports of such
breaches of electoral law, stating that they had seen respectively
five and ten ballots being cast in the ballot box unlawfully.
According
to the first results generated by the computerised system, the
applicant had obtained 33,567 votes, compared with 33,524 for his
main opponent, Mr G. In electoral division no. 14 the applicant had
obtained 537 and Mr G. 291 votes out of 1,570 votes cast. In division
no. 45, out of 1,244 voters 711 had voted for the applicant and 372
for his opponent. In division no. 58 there had been 830 votes,
of which 475 had been cast for the applicant and 219 for Mr G. In
division no. 67, of 1,480 voters 765 cast their ballots for the
applicant and 387 for his opponent. In total, in the above four
electoral divisions the applicant had obtained 2,488 votes, against
1,269 for Mr G.
By
decision no. 36 of 2 April 2002 the Electoral Commission of
constituency no. 72, on the basis of the observers' reports above,
declared the results in electoral divisions nos. 14, 45 and 58
invalid on the grounds of serious breaches of electoral law. It was
also established that on the night of 1 April 2002, after the close
of polls and the count, the members of the Electoral Commission of
division no. 67 had unlawfully opened the sealed polling station and
retrieved the originals of the voting records and several invalid
ballots. The next day the chairperson of that division's Electoral
Commission had brought those voting records and ballots to the
Electoral Commission of constituency no. 72. No reason had been given
for these actions. Therefore, the results of the elections in
division no. 67 were also declared invalid. On the same date the
applicant appealed against this decision to the Central Electoral
Commission (Центральна
виборча комісія,
hereafter “the CEC”).
By
decision no. 37, the Electoral Commission of constituency no. 72
announced the final results of the ballot, according to which the
applicant had obtained 31,079 votes compared with 32,255 for Mr G.
This result corresponded to that set out in the first voting record,
referred to above, after deduction of the votes in divisions nos. 14,
45, 58 and 67. Mr G., therefore, was declared elected as a Member of
Parliament for the constituency.
2. Proceedings concerning the annulment of the vote in
the four electoral divisions
On 3 April 2002 the chairpersons and members of the
Electoral Commissions of divisions nos. 14, 45, 58 and 67 sent
statements to the chairperson of the CEC to the effect that none of
the official observers had drawn their attention to any breach of
electoral law during the voting or the count, and that the documents
submitted by the observers complaining of irregularities had been
drawn up after the count, “the results of which did not suit
one of the candidates”.
By
decision no. 750 of 5 April 2002 the CEC, following the applicant's
complaint of 2 April 2002, set aside decision no. 36 and instructed
the Electoral Commission of constituency no. 72 to give a reasoned
decision on the results of the vote in the four divisions in
question. Referring to the first paragraph of Section 70 of the
Parliamentary Elections Act, the CEC observed that the impugned
decision had not been duly reasoned and that there was no conclusive
evidence of the alleged irregularities or the allegation that the
number of ballots deposited unlawfully had exceeded ten per cent of
the votes cast in each electoral division.
At
a meeting of 6 April 2002 the Electoral Commission of constituency
no. 72, by a majority of nine votes to two with three abstaining,
adopted decisions nos. 40 and 41, whereby the vote in electoral
divisions no. 14, 45, 58 and 67 was declared invalid for the same
reasons as before. In these decisions the Commission noted that the
twelfth paragraph of Section 72 of the Parliamentary Elections Act
allowed a vote to be declared invalid on account of “other
circumstances making it impossible to establish the results of the
expression of the electorate's wishes”, in addition to those
enumerated in Section 70 of the Act. The Commission further noted
that, since Section 72 did not list these “other
circumstances”, the matter fell within its exclusive
competence. Lastly, the Electoral Commission of constituency no. 72
concluded that the irregularities which it had established and those
noted by the observers could be considered as “other
circumstances” making it impossible to establish the
electorate's wishes.
On
9 April 2002 the applicant lodged a complaint challenging decisions
nos. 40 and 41 of 6 April 2002. He submitted that the Electoral
Commission of constituency no. 72 had not followed the instructions
given by the CEC in its decision of 5 April 2002 concerning the need
to give sufficient reasons.
By
decision no. 858 of 12 April 2002 the Central Electoral Commission
rejected the applicant's complaint of 9 April 2002 on the ground
that, in accordance with Section 72 of the Parliamentary Elections
Act, the task of establishing the existence of “other
circumstances” causing the vote to be declared invalid fell to
the constituency electoral commission.
The
applicant appealed against this decision to the Supreme Court, which,
in a judgment of 24 April 2002, upheld the findings of the CEC,
including that concerning the exclusive competence of the
constituency Electoral Commissions to establish the “other
circumstances” provided for in Section 72 of the 2001
Parliamentary Elections Act.
3. Proceedings concerning the remainder of the alleged
breaches of electoral law
On
3 April 2002 Mr V., the applicant's observer, in the presence of the
observers of other candidates and the chairperson and two members of
the Electoral Commission of constituency no. 72, drew up a report
alleging a breach of electoral law. According to the authors, the
conditions in the office of the electoral commission located in the
basement of the State Administration building in Beregovo were not
adequate to ensure that the ballots were kept secure and intact; in
particular, they alleged that the doors and filing cabinets had not
been sealed, and that one of the doors did not even have a lock on
it.
On
5 April 2002 the applicant lodged a complaint with the CEC
challenging decision no. 37 of 2 April 2002 whereby Mr G.
had been announced the winner of the elections in constituency no. 72
On
7 April 2002, after the CEC's decision no. 750 (see paragraph 13
above), a recount of the votes in the electoral divisions nos. 14,
45, 58 and 67 was held. After the recount, the Electoral Commission
of constituency no. 72 issued a detailed voting record dated 7 April
2002 setting out the results of the ballot in the constituency, which
repeated those stated in its decision no. 37.
On
the same day a member of the constituency Electoral Commission,
together with two observers of two of the unsuccessful candidates,
prepared a memorandum, addressed to the CEC, alleging that the
packages containing the ballot papers had not been sealed by the
Electoral Commission of division no. 67, that some of the ballot
papers had been damaged and that, in view of these factors, access to
the ballots by third parties before the recount could not be ruled
out.
On
14 April 2002 the Electoral Commission of constituency no. 72 drew up
the corrected voting record (see paragraph 27 below) setting out the
results of the vote.
On
the same date the deputy chairperson and three members of the
Electoral Commission of division no. 67 drew up a memorandum,
addressed to the CEC, in which they stated that, in breach of the
law, the deputy chairperson and secretary of the constituency
Electoral Commission, accompanied by four officials of the municipal
council and the State Administration acting as observers appointed by
Mr G., had come to their homes asking them to sign the corrected
voting record. The signatories of the document expressed doubts as to
the accuracy of the figures given in the record of 14 April 2002.
On
15 April 2002 the corrected voting records were sent to the CEC.
On
16 April 2002 the applicant lodged a complaint with the CEC seeking
to have the record of 14 April 2002 declared invalid. Referring to
the appeal to voters published on 13 and 28 March 2002 in the
newspapers Bereginfo and Karpati Igaz Szo, he
criticised the fact that the chairperson and the secretary of the
commission had engaged in election campaigning for his opponent. He
also noted that the conditions in which the ballot materials had been
kept and the new voting record produced cast doubt on the accuracy of
the results of the vote obtained after the recount on 7 April 2002.
In
a letter of 18 April 2002 the Electoral Commission of constituency
no. 72 informed the CEC that, in accordance with the instructions of
the Zakarpatiya Regional Police Department (ГУ
МВС України
в Закарпатський
області),
the commission's office had been properly protected and that no
illegal entry had been found to have occurred.
By
decision of 18 April 2002 the CEC examined and rejected the
applicant's complaints of 5 and 16 April 2002. It noted that the
voting record drawn up after the recount of 7 April 2002 did not
contain certain data, namely the number of invalid ballots, and that
the amended record of 14 April 2002 had corrected that error. The CEC
further noted that the decision no. 37 of 2 April 2002 had been
lawful and valid given that, according to the corrected voting
record, Mr G. had obtained the highest number of votes. Moreover, no
indication was found that the way in which the recount had been
organised had affected the accuracy of the results of the vote. The
CEC referred in this regard to the letter of 18 April 2002
of the Electoral Commission of constituency no. 72 concerning the
security of its office. Lastly the CEC found that the applicant had
failed to indicate any ground provided by the Parliamentary Elections
Act for the dismissal of the chairperson and the secretary of the
Electoral Commission of constituency no. 72.
The
applicant challenged this decision before the Supreme Court, which,
in a judgment given on 22 April 2002, rejected his complaint. It held
that the decision of 18 April 2002 had been taken within the CEC's
competence and in a manner prescribed by the applicable domestic law.
II. RELEVANT DOMESTIC LAW
A. Constitution of Ukraine
The
relevant Article of the Constitution provides:
“Article 76
“...A citizen of Ukraine who has attained the age
of twenty-one on the date of elections, has the right to vote and, if
that citizen has resided in the territory of Ukraine for the past
five years, is eligible to be elected a member of Parliament...”
B. The Parliamentary Elections Act of 18 October 2001
(in force at the material time)
At
the material time the Ukrainian electoral system was governed by
Section 1 of this Act. It was based on a mixed-member proportional
system, where 225 of the 450 members of the Verkhovna Rada
(the Ukrainian unicameral parliament) were elected from the
single-seat constituencies by simple plurality (“first past the
post”) (see Sukhovetskyy v. Ukraine, no. 13716/02,
ECHR 2006 ...) and another 225 seats were reserved for
candidates from party lists (see Melnychenko v. Ukraine,
no. 17707/02, ECHR 2004 X).
In
accordance with Section 18 of the Act, the system of electoral
commissions included the CEC, commissions of electoral constituencies
and electoral divisions. Each electoral constituency consisted of
several divisions.
Section
29 of the Act provided that the candidates for election were entitled
to challenge the decisions, actions and omissions of the electoral
commissions before the higher electoral commissions or the
courts. The higher electoral commission, following such an
application, the decision of the court or of its own motion, could
set aside the decision of the lower commission and either take a new
decision or oblige the commission concerned to reconsider the matter.
Decisions, actions and omissions of the CEC could be challenged
before the Supreme Court.
Section
70 of the Act determined the procedure for having the vote in an
electoral division declared invalid by the electoral commission of
that division.
Paragraph
1 of this Section stipulated:
“An electoral commission of a division may declare
the vote in the division invalid in the event of a breach of this Act
making it impossible to establish the results of the expression of
the electorate's wishes. The electoral commission of a division may
declare the vote invalid only in the following circumstances:
1. if actual unlawful voting has been
established (depositing of a ballot in the ballot box by a person
other than the one to whom it has been issued; voting by persons who
have no right to vote; voting by persons who are not included in the
electoral lists of the relevant electoral division or by persons who
have been wrongly included in the lists; multiple voting by one
voter) if the number of fraudulent votes exceeds 10% of the total
votes cast;
2. if a ballot box has been damaged or
destroyed so that it is impossible to establish the content of the
ballots deposited, and if the number of damaged ballots exceeds 10%
of the total votes cast.
3. if the number of ballots deposited exceeds
the number of voters who voted by 10% or more.”
Section
72 of the Act regulated the procedure for examination by the
constituency commissions of voting records issued by the division
commissions.
Paragraph
12 of this Section provided:
“If the electoral commission of a constituency
establishes the existence of the circumstances enumerated in
paragraph 1 of Section 70 or of other circumstances which make it
impossible to establish the wishes of the voters in the division, it
may declare the vote in the division concerned invalid.”
The
Parliamentary Elections Act 2004 (as amended on 7 July 2005),
provides for proportional representation in
elections. Section 90 of the 2004 Act retains the power for
commissions of electoral divisions to declare a ballot inadmissible
if the number of fraudulent votes exceeds 10% of the total votes
cast. Section 92 provides that, after a recount, commissions of
electoral constituencies are entitled to annul the vote in an
electoral division if the circumstances set out in Section 90 have
been established, or if intentional acts have been made out which
wrongfully interfered with the work of the members of the electoral
commissions or the candidates' observers.
THE LAW
I. SCOPE OF THE CASE
The
Court observes that after communication of the application to the
respondent Government and in response to the Government's objections
as to the admissibility and merits of the application, the applicant
submitted further complaints, alleging that during the election
campaign the applicant and his supporters had been constantly
oppressed by the authorities. The applicant also complained that his
main opponent Mr G. had used his post of Head of the Beregovo
District State Administration to influence the campaign and the
outcome of the elections.
The
Government made no comments.
In
the Court's view, the new complaints are related in a general sense
to the present case, but do not constitute an elaboration of the
applicant's original complaint to the Court, which is limited to the
alleged unfairness of the count procedure at constituency no. 72
during the 2002 parliamentary elections. The Court considers,
therefore, that it is not appropriate now to take these matters up
separately in the context of the present application (see, inter
alia, Piryanik v. Ukraine, no. 75788/01, § 20,
19 April 2005, and Lyashko v. Ukraine, no. 21040/02,
§ 29, 10 August 2006).
II. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL NO. 1
The
applicant complained that the conditions in which the elections had
been conducted in constituency no. 72 had not ensured the free
expression of the opinion of the people in the choice of the
legislature. In particular, he complained about the invalidation of
the votes cast in electoral divisions nos. 14, 45, 58 and 67, and the
alleged unfairness of the subsequent recount. He also complained that
the chair and secretary of the constituency had made an appeal to
voters in a local newspaper, thereby indicating their lack of
impartiality. He invoked Article 3 of Protocol No. 1, which
provides:
“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.”
A. Admissibility
The
Government argued that the applicant had generally failed to exhaust
domestic remedies as required by Article 35 § 1 of the
Convention. Although the Convention and its Protocols constituted a
part to the law of Ukraine, the applicant never raised either before
the CEC or the Supreme Court any complaints of a violation of the
Convention provisions.
The
applicant disagreed.
The
rule of exhaustion of domestic normally requires that the complaints
intended to be made subsequently at the international level should
have been aired before the domestic courts, at least in substance and
in compliance with the formal requirements and time-limits laid down
in domestic law (see Azinas v. Cyprus [GC], no. 56679/00,
§ 38, ECHR 2004 III). It is undisputed that the
applicant raised his complaints about the invalidation of the vote
cast in electoral divisions nos. 14, 45, 58 and 67 and the alleged
unfairness of the recount of 7 April 2002 before the CEC and,
subsequently, before the Supreme Court. Those issues were therefore
fully before the national authorities. The Government have not
suggested that any domestic rules required reference to the
Convention, nor have they claimed that additional reference to
Article 3 of Protocol no. 1 of the Convention would have affected the
examination or outcome of the case before the CEC or the Supreme
Court. The Court therefore finds that the applicant adequately raised
these complaints before the domestic authorities, and rejects the
objection.
The
Court finds that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that these complaints are not inadmissible on any other
grounds. They must therefore be declared admissible.
As
to the applicant's complaint about the publication in a local
newspaper of the appeal to the voters signed by the chairperson and
the secretary of the Electoral Commission of constituency no. 72, the
Government claimed that the applicant had failed to exhaust domestic
remedies in that he had failed to raise this complaint before the CEC
and the Supreme Court. The applicant submitted that this issue had
been addressed in his application to the CEC of 16 April 2002. If the
application concerned solely this issue, the Court has doubts as to
whether an application to the CEC without a subsequent appeal to the
Supreme Court could be regarded as sufficient for the exhaustion of
domestic remedies. However, on the facts of the present case, in
which the allegation of bias on the part of the chair and secretary
of an Electoral Commission is closely linked to the other aspects of
the applicant's complaint about a violation of his right to free
elections, the Court considers it appropriate to join the
Government's objection to the merits of the application. The
complaint is not inadmissible on any other ground, and it must
therefore be declared admissible.
B. Merits
1. Parties' submissions
The
applicant claimed that he had received more votes than his rival
candidate, but was denied the seat in parliament owing to the unfair
counting procedure, on the basis of the unfettered discretion of the
constituency Electoral Commission.
The
Government maintained that there had been no serious violations of
electoral law during the elections in constituency no. 72 and the
irregularities which did occur had been duly and promptly reported
and remedied by the CEC.
The
Government maintained that that the margin between the two main
candidates, the applicant and Mr G., was slim and even a handful of
votes could tip the balance. They argued that the fact that so called
“wasted votes”, a phenomenon which is not unique to
Ukraine and pertains to other electoral systems, influenced the
outcome of the elections in the constituency no. 72 could not be
attributed to the State's failure “to ensure the free
expression of the opinion of the people in the choice of the
legislature”. The Government next stated that the Electoral
Commission of constituency no. 72 had come to the reasonable
conclusion that the breaches of the electoral law which had occurred
during the vote in the four divisions at issue constituted an
impediment to the establishment of the voters' wishes. This
conclusion had been reviewed by the CEC and the Supreme Court and had
been found to be lawful and reasonable.
2. The Court's assessment
Article
3 of Protocol No. 1 appears at first sight to differ from the other
rights guaranteed in the Convention and protocols, as it is phrased
in terms of the obligation of the High Contracting Party to hold
elections which ensure the free expression of the opinion of the
people rather than in terms of a particular right or freedom.
However, having regard to the preparatory work to Article 3 of the
Protocol and the interpretation of the provision in the context of
the Convention as a whole, the Court has established that it
guarantees individual rights, including the right to vote and to
stand for election (see, among many other authorities, Mathieu-Mohin
and Clerfayt v. Belgium, judgment of 2 March 1987, Series A no.
113, pp. 22-23, §§ 46-51; Hirst v. the United Kingdom
(No. 2) [GC], no. 74025/01, § 56-57, ECHR 2005-IX;
and, more recently, Zdanoka v. Latvia [GC], no. 58278/00,
§ 102, 16 March 2006). Furthermore, the Court has
considered that this Article guarantees the individual's right to
stand for election and, once elected, to sit as a member of
parliament (see Lykourezos v. Greece, no. 33554/03,
§ 50, ECHR 2006 ...).
The
rights guaranteed under Article 3 of Protocol No. 1 are crucial to
establishing and maintaining the foundations of an effective and
meaningful democracy governed by the rule of law. Nonetheless, those
rights are not absolute. There is room for “implied
limitations”, and Contracting States must be given a margin of
appreciation in this sphere. In this field, Contracting States enjoy
a wide margin of appreciation, provided that they ensure the equality
of treatment for all citizens. It does not follow, however, that all
votes must necessarily have equal weight as regards the outcome of
the election or that all candidates must have equal chances of
victory. Thus no electoral system can eliminate “wasted votes”
(see the Mathieu-Mohin and Clerfayt, cited above, § 54).
It
is, however, for the Court to determine in the last resort whether
the requirements of Article 3 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 Labita v. Italy [GC] no. 26772/95, §
201, ECHR 2000-IV). Any departure from the principle of universal
suffrage risks undermining the democratic validity of the legislature
thus elected and the laws which it promulgates. Exclusion of any
groups or categories of the general population must accordingly be
reconcilable with the underlying purposes of Article 3 of Protocol
No. 1 (see Sukhovetskyy v. Ukraine, no. 13716/02, § 52,
ECHR 2006-...).
The
applicant's complaints in the present case were focused on the way
the count was carried out in the electoral constituency where he was
registered as a candidate. In particular he contended that the
decisions to declare the vote in electoral divisions nos. 14, 45, 58
and 67 invalid were unfair and unreasonable.
The
Government, referring to the impossibility of avoiding “wasted
votes”, contended that the impugned decisions of the Electoral
Commission of constituency no. 72 were aimed at eliminating the
detrimental impact of breaches of electoral law on the free choice of
voters. The Court has doubts as to whether a practice discounting all
votes at a polling station at which irregularities have taken place,
regardless of the extent of the irregularity and regardless of the
impact on the outcome of the result in the constituency, can at all
be seen as pursing a legitimate aim for the purposes of Article 3 of
Protocol no. 1. However, the Court is not required to take a final
view on this issue in the light of its findings below.
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, for
example, United Communist Party of Turkey and Others v. Turkey,
judgment of 30 January 1998, Reports 1998-I, pp. 18-19, §
33, and Chassagnou and Others v. France [GC], nos. 25088/94,
28331/95 and 28443/95, § 100, ECHR 1999 III).
In
the case of Podkolzina v Latvia, the Court reiterated that 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. In particular, such a finding must be
reached by a body which can provide a minimum of guarantees of its
impartiality. Similarly, the discretion enjoyed by the body concerned
must not be exorbitantly wide; it must be circumscribed, with
sufficient precision, by the provisions of domestic law. Lastly, the
procedure for declaring a candidate ineligible must be such as to
ensure a fair and objective decision and prevent any abuse of power
on the part of the relevant authority (Podkolzina v. Latvia,
no. 46726/99, § 35, ECHR 2002 II).
The
present case concerns not eligibility conditions as such, but the way
in which the outcome of elections was reviewed by the
responsible domestic authorities. The State's latitude remains broad
in this field, too, but cannot oust the Court's review of whether a
given decision was arbitrary.
By
way of example, in two previous cases, I.Z. v. Greece (see
I.Z. v. Greece, no. 18997/91, Commission decision of 28
February 1994, Decisions and Reports (DR)) and Babenko v. Ukraine
(see Babenko v. Ukraine (dec.), no. 43476/98, 4 May
1999), the Convention bodies examined
the complaints of unsuccessful candidates about the unfairness of the
electoral procedures. Those complaints were rejected because, in the
absence of genuine prejudice to the outcome of the elections at
issue, the situation complained of did not amount to an interference
with the free expression of the people. This approach, however,
cannot be applied in the present case as, and the Government accepted
this in their observations, the annulment of the vote in the four
divisions concerned led directly to the declaration of Mr G, and not
the applicant, as successful candidate.
The 2001 Parliamentary Elections Act provided that the
vote in the electoral divisions could be declared invalid on the
basis of the grounds laid down in Section 70 or, alternately, on the
basis of “other circumstances” which made the
establishment of the voters' wishes impossible, provided for in
Section 72 (see paragraphs 33 and 34 above).
Section
70 of this Law addressed specifically the situation of multiple
voting by one person, stipulating that the vote in the division may
be declared invalid only if the number of spoilt ballots reached the
threshold of ten percent of the total vote cast. As regards Section
72, it is to be noted that there was no legal provision or domestic
practice capable of giving an explanation as to which factors may be
regarded as “other circumstances”. In particular it was
unclear whether the “other circumstances” had to be
circumstances which were not foreseen by Section 70, or whether they
opened the possibility for the Electoral Commissions and, on appeal,
the courts, to circumvent the wording of Section 70 by interpreting
“other circumstances” as including those matters covered
by that provision. Further, whilst Section 70 enumerated events
during elections which could result in a vote being declared invalid,
Section 72 was expressed to regulate the procedure for examination of
voting records, rather than dealing directly with the events.
This
lack of clarity of Section 72 of the 2001 Parliamentary Elections Act
and the potential risks to the enjoyment of electoral rights inherent
in its interpretation by the domestic authorities called for
particular caution on their part. The constituency Electoral
Commission, however, in its decisions nos. 40 and 41, simply referred
back the previous decisions, and claimed that the irregularities
established and noted by observers constituted “other
circumstances” which made it impossible to establish the will
of the electorate. The previous decision no. 36 to which reference
was made stated that the deposition of several invalid ballots, as
witnessed by Mr G.'s observers to electoral divisions nos. 14,
45 and 58, and the fact that members of the Electoral Commission of
division no. 67 had opened the sealed polling station and retrieved
voting records and several invalid ballots (see paragraph 10 above)
were sufficient to declare all of the votes cast in these divisions
invalid.
In
none of these decisions, nor in the subsequent decisions of the
Central Election Commission or the Supreme Court was there a
discussion of the conflict between Sections 70 and 72 of the
Parliamentary Elections Act 2001, nor was there a discussion of the
credibility of the various actors in the elections. In addition, none
of the decisions contained any explanation as to why (particularly in
the light of Section 70) the perceived breaches obscured the outcome
of the vote in divisions nos. 14, 45, 58 and 67 to such an extent
that it became impossible to establish the wishes of voters.
Having
regard to all the foregoing considerations, the Court concludes that
the decision to annul the vote in the four electoral divisions must
be considered as arbitrary, and not proportionate to any legitimate
aim pleaded by the Government. It follows that in this case there has
been a violation of Article 3 of Protocol No. 1.
That
being so, the Court considers that it is not necessary to rule on the
applicant's complaints that the members of the Electoral Commission
of constituency no. 72 lacked required impartiality as they published
an appeal to voters, that the recount of 7 April 2002 had been
tainted with breaches of domestic electoral law and that the security
of the ballot boxes had been compromised. It is further not necessary
to examine the Government's non-exhaustion plea in respect of the
complaints of bias on the part of the officers of that Electoral
Commission.
III. 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. Pecuniary damage
The
applicant submitted that his claim in respect of pecuniary damage
related to the loss of salary due to him as a member of the Verkhovna
Rada. He claimed 144,000 United States dollars (USD) (107,250
euros (EUR)) in compensation, which was based on the approximate
salary of a member of parliament, and which he would have received
had he been elected.
The
Government noted that there was no causal link between the
applicant's compensation claims and the violation found.
As noted at paragraph 55 above, the annulment of the vote in the four
divisions led directly to the declaration of Mr G, and not the
applicant, as a member of Parliament. It is true that, if elected,
the applicant would have received a salary as a member of Parliament.
That is not, however, sufficient to award the sums claimed, because
the sums claimed would have to be set off against other income which
he may have been receiving and which he would have had to forego if
elected, as in the case of Lykourezos v. Greece (cited above,
§ 64, in which the applicant was prevented from continuing
to exercise his mandate). The applicant has given details of the
salary he would have received as a member of Parliament, but has not
specified what his net loss would have been. The Court accordingly
dismisses the applicant's claims under this head.
B. Non-pecuniary damage
The
applicant claimed USD 56,000 (EUR 41,715) in compensation for the
anguish and distress which he had allegedly suffered on account of
the violation of his electoral rights.
The
Government considered the sum claimed by the applicant
unsubstantiated and excessive.
The
Court acknowledges that the applicant suffered non-pecuniary damage
as a result of the violation found. Consequently, ruling on an
equitable basis and having regard to all the circumstances of the
case, it awards him EUR 8,000 under this head.
C. Costs and expenses
The
applicant did not submit any claim under this head within the set
time-limit; the Court therefore makes no award in this respect.
D. 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
Joins to the merits the
Government's contention concerning the exhaustion of domestic
remedies in respect of the applicant's complaint of bias on the part
of officers of an Electoral Commission, and finds that it is not
necessary to examine it;
2. Declares the remainder of the application admissible;
Holds that there has been a violation of Article
3 of Protocol No. 1;
Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 8,000
(eight thousand euros) in respect of non-pecuniary damage, to be
converted into the national currency of the respondent State at the
rate applicable on the date of settlement, plus any tax that may be
chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 7 February 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Peer
Lorenzen
Registrar President
