Communicated on 1 March 2019
FOURTH SECTION
Application no. 11398/18
Artūras GALAKVOŠČIUS
against Lithuania
lodged on 27 February 2018
STATEMENT OF FACTS
The applicant, Mr Artūras Galakvoščius, is a Lithuanian national, who was born in 1974 and lives in Alytus.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is a director of Alytus City Shelter. He decided to participate in the municipal council elections in 2015.
In accordance with domestic law, the applicant’s position was contrary to that of a member of a municipal council and thus he had to pay a deposit amounting to 1,365 euros (EUR). He paid the deposit for himself and his two colleagues, and the party the applicant belonged to paid an additional EUR 682. The applicant was not elected to the municipality and the deposit was not returned to him because the candidate list the applicant belonged to did not attain three per cent of votes.
The applicant complained to the Equal Opportunities Ombudsman alleging discriminatory conditions of the elections but on 1 September 2015 his complaint was dismissed. The Equal Opportunities Ombudsman stated that it was the candidate’s choice whether to participate in the elections and thus there was no discrimination.
The applicant then lodged a complaint before the domestic courts. He asked to annul the decision of the Central Electoral Commission not to return the deposit and to oblige it to return it.
On 17 November 2015 the Vilnius Regional Administrative Court dismissed the applicant’s complaint. The court stated that domestic law established that the deposit was returned if: a participant of a political campaign, together with a political campaign funding statement, submitted its annexes and documents substantiating expenditure of the political campaign in accordance with the Law on Funding of and Control of Funding of Political Campaigns; the candidate did not violate Article 6 of the Law on Elections to Municipal Councils, or did not grossly violate the Law on Funding of and Control of Funding of Political Campaigns; the candidate or the list of candidates received not less than three per cent of the votes cast by the voters who had participated in the elections. The Law on Elections to Municipal Councils also provided an additional deposit for candidates whose duties were contrary to the duties of a member of a municipal council. The court further held that there was no discrimination because the purpose of a deposit was to ensure that the candidates had serious intentions to participate in the elections. The court concluded that the legal position of the candidates whose duties were contrary to those of a member of a municipal council was not the same for the other candidates.
The applicant appealed. On 12 January 2017 the Supreme Administrative Court allowed the applicant’s claim in part and decided to return the case to the court of first instance for fresh examination. The court held that the first-instance court made statements about the rights and obligations of third persons, and they did not have an opportunity to provide their position.
On 20 April 2017 the Vilnius Regional Administrative Court carried out a fresh examination of the case. The court addressed the applicant’s argument that deposits for candidates whose duties were contrary to those of a member of a municipal council was established in the law when the registration to the elections of 2015 had already started. The court held that the provision at issue had already been established in the Law on Elections to Municipal Councils in 2014. The court also held that the applicant’s request to refer the issue of the deposit to the Constitutional Court was not justified because there were no grounds for such a referral.
The applicant appealed. On 31 October 2017 the Supreme Administrative Court upheld the first-instance decision. It stated that the deposit could not be returned to the applicant in accordance with domestic law. Also, the applicant had only provided abstract arguments regarding his alleged discrimination and there was no need to refer the issue to the Constitutional Court. The court noted that holding elections was an important part of a political process and the requirements were that a candidate should prove that he or she had some support from the public or had been determined to participate in the elections. The court observed that there was no information in the case to show that the applicant had not been aware of the conditions for the deposit to be returned or that he paid the deposit involuntarily. The applicant had accepted the risk that, in the case of failure in the elections, he would lose the deposit.
B. Relevant domestic law and practice
Article 3 § 3 of the Law on Elections to Municipal Councils (the Law) provides that all candidates are equal.
Article 39 § 1 of the Law provides that the deposit for registration of a list of candidates or one candidate is equal to the amount of the most recent average monthly wage. Article 39 § 3 of the Law, which entered into force on 12 July 2014, provides that if the candidates in the list have duties that are contrary to those of a municipal council member, the deposit amounts to two average monthly wages. Such a deposit is returned to the political party, election committee or the candidate in accordance with the requirements established in Article 39 § 5 of the Law. Article 39 § 5 of the Law provides that the deposit is returned if: a participant of a political campaign, together with a political campaign funding statement, submits its annexes and documents substantiating expenditure of the political campaign in accordance with the Law on Funding of and Control of Funding of Political Campaigns; the candidate did not violate Article 6 of the Law (which prohibits the buying of votes) or did not grossly violate the Law on Funding of and Control of Funding of Political Campaigns; the candidate or the list of candidates received not less than three per cent of the votes cast by the voters who had participated in the elections.
On 16 December 2014 an amendment of the Law clarifying the provisions on the return of the deposit for the candidates listed in Article 39 § 3 of the Law entered into force.
On 29 March 2012 the Constitutional Court examined the laws concerning presidential, parliamentary and municipal councils’ elections. It held that elections were a responsible political process. The Constitutional Court examined whether the requirement to pay a deposit and the rule that the deposit was not returned if the candidate had not received seven percent of the votes, established in the law governing presidential elections, was in accordance with the Constitution. The Constitutional Court held that in that sense all the candidates were equal and the provision was necessary to ensure that the candidates’ determination to participate in the presidential elections was strong and found the provision in accordance with the Constitution. As for municipal elections, the Constitutional Court examined whether the requirement to pay the deposit and to provide the authorities with the proof that the deposit had been paid was in accordance with the Constitution. The Constitutional Court decided that the requirement to pay the deposit and to provide the proof concerning the payment was in accordance with the Constitution.
COMPLAINT
The applicant complains under Article 1 of Protocol No. 1 to the Convention that by not returning the deposit, the State unlawfully deprived him of his possessions.
QUESTION TO THE PARTIES
Has there been a violation of Article 1 of Protocol No. 1 to the Convention on account of the authorities’ refusal to return to the applicant the deposit he had paid solely because his party had not attained three per cent of the votes?
Full & Egal Universal Law Academy