Information Note on the Court’s case-law No. 105
February 2008
Kovach v. Ukraine - 39424/02
Judgment 7.2.2008 [Section V]
Article 3 of Protocol No. 1
Free expression of opinion of people
Arbitrary invalidation of votes obtained by the leading candidate in several electoral divisions of a parliamentary constituency, resulting in victory for his opponent: violation
Facts: The applicant stood as a candidate in the 2002 parliamentary elections in a single-seat electoral constituency. According to the first results, he had obtained a narrow majority of votes. His main opponent was the Head of the District State Administration. The observers acting on behalf of the latter drew up reports stating that several additional ballot papers (less than ten) had been unlawfully deposited by unknown persons in three electoral divisions. On this basis, the constituency electoral commission declared the results in those divisions invalid. It also declared invalid the results in another division on the grounds that the members of the competent electoral commission had unlawfully opened the sealed polling station and retrieved the originals of the voting records and several invalid ballots. In the four divisions in question the applicant had obtained a vast majority of the votes. As a result of the annulment of the vote in these divisions, the applicant’s main opponent was declared to have been elected as a Member of Parliament for the constituency. Upon a complaint by the applicant, the Central Electoral Commission set aside the decision to annul the vote since there was no conclusive evidence of the alleged irregularities or allegation that the number of ballots deposited unlawfully had exceeded 10% of the votes cast in each electoral division, as required by section 70 of the Parliamentary Elections Act (the “Act”) in order to invalidate a vote. Shortly afterwards, the constituency electoral commission declared the vote in the four electoral divisions invalid for the same reasons as before, noting that the irregularities which it had established and those noted by the observers could be considered “other circumstances which make it impossible to establish the wishes of the voters”, within the meaning of section 72 of the Act. This decision was upheld by the Central Electoral Commission and the Supreme Court, which found that it was within the exclusive competence of the constituency electoral commissions to establish the “other circumstances” provided for in the aforementioned legal provision.
Law: The present case concerned the way in which the outcome of elections had been reviewed by the responsible domestic authorities. The State’s latitude remained broad in this field, but could not oust the Court’s review of whether a given decision had been arbitrary. The competent authorities had relied on section 72 of the Act when deciding to annul the vote in four electoral divisions. However, there was no legal provision or domestic practice capable of giving an explanation as to which factors could be regarded as “other circumstances which make it impossible to establish the wishes of the voters” and whether they included or not those covered by section 70 addressing specifically the situation of multiple voting by one person. The lack of clarity of the legal provision at issue and hence the potential risks to the electoral rights called for particular caution on the part of the domestic authorities. However, in none of the decisions of the constituency electoral commission, nor in the subsequent decisions of the Central Election Commission or the Supreme Court, had there been a discussion of the conflict between sections 70 and 72 of the Act, or of the credibility of the various actors in the elections. In addition, none of the decisions had contained any explanation as to why the perceived breaches had obscured the outcome of the vote in the four divisions to such an extent that it had become impossible to establish the wishes of the voters (particularly in the light of section 70 of the Act). Therefore, the decision to annul the vote in the four electoral divisions had to be considered as arbitrary and not proportionate to any legitimate aim pleaded by the Government.
Conclusion: violation (unanimously).
Article 41 – EUR 8,000 for non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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