Communicated on 3 May 2017
THIRD SECTION
Application no. 65744/13
Gennadiy Vladimirovich GUDKOV
against Russia
lodged on 11 October 2013
STATEMENT OF FACTS
The applicant, Mr Gennadiy Vladimirovich Gudkov, is a Russian national who was born in 1956 and lives in Moscow. He is represented before the Court by Mr V. Prokhorov, a lawyer practising in Moscow.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
Between 2001 and 2011 the applicant was elected to the lower chamber of the Russian Parliament (the State Duma) on three occasions. He performed his duties until the end of his mandate each time and was re‑elected on 4 December 2011.
Between December 2011 and July 2012 he made comments in public which criticised irregularities in the Duma elections of 4 December 2011, including the procedure for counting votes.
On 13 July 2012 the applicant made the following remarks in a speech to the lower chamber:
“It is impossible to work in this parliament. It has never been as bad as it is today; it has never been so snobbish from the point of view of the ruling party, it has never been so absolutely wooden. We will demand fresh elections, the dissolution of this parliament.”
On 6 August 2012 the Investigative Committee of the Russian Federation sent material to the State Duma and the General Prosecutor’s Office stating that the applicant was engaged in business activities, in breach of the legislation on the status of Duma members. In particular, it stated that in 2008 the applicant and his wife had founded a number of companies and that the applicant was a member of the management bodies of those firms. According to the applicant, he always provided that information in the documents necessary for registration as a parliamentary candidate.
On 5 September 2012 Parliament’s commission for overseeing members’ income and property declarations (Комиссия Государственной Думы по контролю за достоверностью сведений о доходах, об имуществе и обязательствах имущественного характера, представляемых депутатами Государственной Думы, “the Income Commission”) commenced an inquiry into the applicant.
On 10 September 2012 the commission examined material relating to the applicant’s business activities. It included a copy of a document of 5 July 2012 on appointing a director of a certain company, which had been signed by the applicant and his wife. The applicant denied the authenticity of the document, stating that neither he nor his wife, who had been abroad at the time, had signed it. Two other documents included in the material examined by the commission were a decision by the investigating authorities of 24 August 2012 not to institute criminal proceedings against the applicant in connection with allegedly unlawful business activities and one of 7 September 2012 which set that decision aside.
On the same date the commission decided by eight votes to five that “the material submitted to it [contained] sufficient evidence that [the applicant had not observed] the limitations and prohibitions established [in the relevant legislation on the status of a member of the State Duma]” and that therefore “there [were] grounds ... for the early termination of [the applicant’s status as a member of the State Duma]”.
On 11 September 2012 the Committee on the Internal Regulations and Procedures of the State Duma (Комитет по регламенту и организации работы Государственной Думы) decided that the question of the early termination of the applicant’s status as a member of the State Duma should be examined in the light of the Income Commission’s findings.
At a session of 14 September 2012 the State Duma, by 291 votes to 150 with 3 abstentions, took a decision on the early termination of the applicant’s status as a member of the State Duma.
On 12 February 2013 the Supreme Court of Russia examined a complaint by the applicant about the decision of 14 September 2012. The court noted that the applicant, although fully aware of the restrictions and limitations imposed by the relevant legislation on members of the Russian Parliament, including, in particular, a total ban on any business activities, had been involved in such activities as a member of the management bodies of commercial firms during his previous terms as a Duma member and had continued those activities after re-election on 4 December 2011. The court based its findings on the statements of witnesses examined in court and on the adduced documentary evidence. It established that the applicant had been a co-owner of a number of commercial firms and rejected as unreliable his argument that the document of 5 July 2012 had been forged. The court went on to observe that the procedure before the State Duma on terminating his parliamentary mandate had not been tainted by arbitrariness. In particular, the Income Commission had had sufficient evidence to start an internal inquiry; the applicant had been given ample opportunity to appear before the commission and present his arguments; the results of the inquiry had been discussed at a Duma session; and the decision to withdraw his mandate had been taken by a majority of members following an open ballot. The Supreme Court thus concluded that the State Duma’s decision of 14 September 2012 had not breached the relevant legislation and dismissed the applicant’s complaint.
On 11 April 2013 the Supreme Court’s appellate instance upheld the judgment of 12 February 2013, stating that the applicant’s arguments had been carefully and fully examined at first instance and that the court’s conclusions had been correct, well-reasoned and based on the evidence.
B. Relevant domestic law and practice
The Russian Constitution, in so far as relevant, provides as follows:
Article 97
“...
3. Members of the State Duma shall perform their duties on a permanent, professional basis. Members of the State Duma shall not be employed in the service of the state or be engaged in other paid activities, except for teaching, scientific and other creative work.”
Article 98
“1. ... members of the State Duma shall possess immunity throughout the term of their mandate ...
2. The question of the stripping of immunity shall be decided at the request of the Prosecutor General ... by the relevant chamber of the Federal Assembly.”
Federal Law no. 3-FZ “On the Status of being a Member of the Federation Council and on the Status of being a Member of the State Duma of the Federal Assembly of the Russian Federation” of 8 May 1994 (Федеральный закон “О статусе члена Совета Федерации и статусе депутата Государственной Думы Федерального Собрания Российской Федерации” от 08.05.1994 N 3-ФЗ – “the State Duma Member’s Status Act”), as in force at the relevant time, provided, as follows:
Section 4
“1. The status of ... being a member of the State Duma shall be terminated early in situations where:
...
(c) ... a member of the State Duma ... becomes a member of the management of a company or any other commercial organisation ...
5. A decision on the early termination of the status of being a member of the State Duma on the grounds set out in subsection 1 ... (c) of the present section shall be taken by the State Duma and shall give the date of termination of such a status. Such a decision shall be taken no later than thirty days from when the grounds for the early termination of the status of being a member of the State Duma arose ...”
Section 6. Conditions for the exercise of the powers of ... a member of the State Duma
“...
2 ... a member of the State Duma shall not ...
(d) be a member of the management of a company or any other commercial organisation ...”
On 11 September 2012 a group of State Duma members challenged section 4 (1)(c) and section 5 of the State Duma Member’s Status Act before the Constitutional Court of Russia. They argued, in particular, that those provisions vested the State Duma with the power to terminate a member of parliament’s mandate in an extrajudicial procedure by a simple majority. If one party was dominant in Parliament such provisions could lead to abuses and arbitrary decisions and were thus incompatible with several constitutional provisions.
In ruling no. 34-P of 27 December 2012, the Constitutional Court found the impugned legal provisions compatible with the Constitution. They were also necessary to exclude conflicts of interest, ensure the independence of members of the State Duma in the performance of their duties, protect them from undue influence and prevent them from using their official position to obtain benefits for themselves or others. The court confirmed that in order to meet the requirements of Article 97 of the Russian Constitution a member of the State Duma should not be a member of the management board of any company.
The court also stated that the early termination of a State Duma member’s mandate, as a statutory measure for the failure of such a member to comply with the requirements of Article 97 of the Constitution, was not, of itself, incompatible with any other requirements of the Russian Constitution. It observed that such a practice had been adopted in a number of states in Europe and the rest of the world, although there was no consensus in Europe as regards the procedure for terminating a member of parliament’s mandate ahead of time. The Russian Constitutional Court noted that the procedure adopted by the State Duma, where Parliament itself could terminate a member’s mandate by a simple majority, was in place in many parliaments around the world. It also stated that the relevant procedure in Russia was attended by sufficient safeguards as a decision by the State Duma on the early termination of a member’s mandate was subject to review by the Supreme Court, which was competent to establish the facts in the light of the evidence and to set aside Parliament’s decision if it considered it appropriate to reinstate the member.
COMPLAINTS
The applicant complains under Article 3 of Protocol No. 1 to the Convention that the early termination of his status as a member of the State Duma violated his right to stand for election.
QUESTIONS TO THE PARTIES
1. Regard being had to the termination of the applicant’s status as a member of the State Duma by a decision of the State Duma of 14 September 2012 (hereinafter “the measure complained of”), has there been a breach of the applicant’s right under Article 3 of Protocol No. 1 to the Convention to stand as a candidate in free elections which ensure the free expression of the opinion of the people in the choice of the legislature (see Sadak and Others v. Turkey (no. 2), nos. 25144/94, 26149/95 to 26154/95, 27100/95 and 27101/95, § 33, ECHR 2002‑IV)?
2. Did the measure complained of curtail the applicant’s right to stand for election secured by Article 3 of Protocol No. 1 to the Convention to such an extent as to impair its very essence and deprive it of its effectiveness?
3. Was the measure complained of imposed in pursuit of a legitimate aim?
4. Were the means employed proportionate to that aim? In particular:
(a) was the applicant afforded sufficient safeguards to protect him against arbitrary decisions?
(b) did the applicant have an ample opportunity effectively to challenge the factual findings that led to the measure complained of?
(c) could, and if so, was the applicant allowed an opportunity to rectify the breaches imputed to him and to comply with the relevant requirements of the domestic law to retain his status as a member of the State Duma?
5. Were there sufficient safeguards in place to prevent the arbitrary termination of a State Duma member’s mandate in a situation where one of the parties represented in the State Duma had the majority of votes?
6. Were any other members of the State Duma elected on 4 December 2011 engaged in business activities? If so, was the measure applied to the applicant also applied to any other such members?
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