FIRST SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Applications nos. 17864/04 and 21396/04
by KRASNOV and SKURATOV
against Russia
The European Court of Human Rights (First Section), sitting on 14 December 2004 as a Chamber composed of:
MrC.L. Rozakis, President,
MrP. Lorenzen,
MrsN. Vajić,
MrsS. Botoucharova,
MrA. Kovler,
MrsE. Steiner,
MrK. Hajiyev, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above applications lodged on 17 and 11 May 2004,
Having deliberated, decides as follows:
THE FACTS
The first applicant, Mr Aleksandr Viktorovich Krasnov, is a Russian national who was born in 1956 and lives in Moscow. He is represented before the Court by Mr J. Boedels, a lawyer practising in Paris. The second applicant, Mr Yuriy Ilyich Skuratov, is a Russian national who was born in 1952 and lives in Moscow. He is represented before the Court by Mr K. Eckstein, 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.
1. General information
On 7 December 2003 the general elections to the State Duma of the Federal Assembly of the Russian Federation, the lower chamber of the Russian bicameral legislature, were held to elect 450 members for a term of four years. Of these, one half, that is 225 persons, were elected by a majority vote from single-member district constituencies. The other 225 seats were allocated on a proportional basis to federal rolls submitted by political parties or electoral blocs that gained more than 5 per cent of the valid votes cast in a single federal constituency ballot.
In certain Russian regions, regional elections were scheduled for the same date, including the elections of the Moscow mayor.
2. The first applicant, Mr Krasnov
(a) Mr Krasnov's employment history
On 29 August 2001 Mr Krasnov was elected the head of the district council of the Presnenskiy district of Moscow (глава районной управы Пресненского района г. Москвы).
On 6 November 2002 the Moscow City Duma adopted the law “on the organisation of local self-government in the city of Moscow” (no. 56). Section 10 determined that the bodies of local self-government in Moscow would include a municipal assembly (муниципальное собрание) as the representative body and a municipality (муниципалитет) as the executive body. Pursuant to transitional provisions of the law (section 43 § 2), heads of district councils who had been appointed or elected to their position before the law were to remain in power until the appropriate body had been formed, and its officials appointed or elected, in accordance with the law.
On 29 May 2003 the municipal assembly of the Presnenskiy district passed a decision to rename the district council of the Presnenskiy district of Moscow as the municipality “Presnenskiy” (муниципальное учреждение – муниципалитет «Пресненский»). On the same day the assembly adopted the regulation on the municipality “Presnenskiy” and appointed Mr Klubkov as its director.
On 16 June 2003 the director of the municipality “Presnenskiy” ordered the dismissal of the first applicant on the ground that he had not been re-elected to his position.
(b) Elections of the Moscow mayor
On 13 October 2003 the first applicant submitted his self-nomination application for the Moscow mayor's elections to the Moscow City Election Commission. He attched an application form, tax and property declarations, and copies of his passport, diploma and employment record (трудовая книжка). Both the application form and the property declaration indicated that he was currently employed as “the head of the district council of the Presnenskiy district of Moscow”.
On 21 October 2003 the first applicant paid the election deposit of 4,500,000 Russian roubles (“RUR”, approximately EUR 128,600).
On 30 October 2003 the Moscow City Election Commission issued a decision refusing the first applicant's registration as a candidate for the mayoral elections. It determined that he had submitted untrue information about his employment. According to the information from the state register of legal entities maintained by the Tax Ministry, the legal entity named “District council of the Presnenskiy district of Moscow” did not exist on 1 September 2003. Moreover, the property declaration was printed on the letterhead, and stamped with the seal, of that non-existing legal entity and signed by persons who were not employed by that legal entity.
The first applicant appealed to a court.
On 3 November 2003 the Moscow City Court refused his appeal and upheld the decision of the Moscow City Election Commission. It noted, in particular, that the first applicant had been dismissed from his position on 16 June 2003 and that he had not appealed against his dismissal.
On 17 November 2003 the Supreme Court of the Russian Federation upheld, on the applicant's appeal, the judgment of 3 November 2003.
The first applicant did not take part in the elections of the Moscow mayor and the election deposit was not returned to him, even though he made a written request to that effect on 18 November 2003.
(c) Elections to the State Duma
On 24 September 2003 the first applicant submitted his self-nomination application for the elections to the State Duma, to the district election commission of central single-member constituency no. 202 (in Moscow). He indicated that he was employed as “the head of the district council of the Presnenskiy district of Moscow”. On the same day the first applicant paid RUR 900,000 (approximately EUR 25,700) by way of the election deposit.
On 9 October 2003 the district election commission registered the first applicant as a candidate in the elections.
On 31 October 2003 the district election commission examined the materials concerning verification of the information submitted by the first applicant and decided to apply to the Moscow City Court with a request to quash its own decision of 9 October 2003 in the light of newly discovered circumstances.
On 6 November 2003 the Moscow City Court granted the request of the commission and annulled the first applicant's registration as a candidate for the Duma elections. It established that the first applicant had submitted untrue information about his employment as the head of the district council of the Presnenskiy district of Moscow.
On 21 November 2003 the Supreme Court of the Russian Federation dismissed the first applicant's appeal against the judgment of 6 November 2003, finding as follows:
“The [first-instance] court correctly applied the substantive law... [I]t determined that, once it was established that the information submitted by a candidate about himself, including the place of his employment, had been untrue and if such circumstance became known after the registration, a court... may annul the decision on registration.
Having examined the evidence obtained by the district election commission after the registration of Mr Krasnov, the court established that on 28 August 2001 Mr Krasnov had been elected the head of the Presnenskiy district council and that on the basis of a decision... of 29 May 2003... the district council was renamed as the municipality 'Presnenskiy' and Mr [Klubkov?] was appointed its director, whereas Mr Krasnov was dismissed... because he had not been re-elected... It follows that at the time of self-nomination Mr Krasnov was not the head of the district council of the Presnenskiy district of Moscow.
The arguments in the appeal to the effect that the re-organisation of the district council had been carried out in flagrant breach of the law and that Mr Krasnov's dismissal had been unlawful cannot be the grounds for quashing of the judgment and declaring Mr Krasnov's registration valid as the examination of these issues falls outside the scope of the present proceedings. Neither the re-organisation of the district council nor Mr Krasnov's dismissal were... appealed against or annulled.
Mr Krasnov's argument that his continued employment as the head of the district council is confirmed by the entry in his employment record, has been examined and rejected by the court. It follows from the case-file that on 23 June 2003 a letter was sent to Mr Krasnov's address whereby he was invited to take cognizance of the dismissal order. The claimant did not make use of his procedural right to prove the circumstances on which his claims were based... For instance, he did not produce a certificate of the human resources department about his position at the moment of self-nomination or any orders (regulations) which he adopted after June 2003 as the head of the district council or any other proof of his employment in that period.”
The first applicant did not take part in the elections to the State Duma and his request for the return of the election deposit was refused.
3. The second applicant, Mr Skuratov
(a) Elections in the single-member constituency
On 20 October 2003 the second applicant submitted the documents concerning his nomination by the Communist Party of the Russian Federation (“CPRF”) for the elections to the State Duma, to the district election commission of the Buryatskiy single-member constituency no. 9. According to the list signed by Ms Sidorenko, the secretary of the commission, the second applicant enclosed an application form, copies of his passport, diplomas and employment record, tax and property declarations and a copy of a certificate showing the membership of the candidates to the State Duma elections of the Communist Party, signed by Mr Zyuganov, Chairman of the Central Committee of the Communist Party, and addressed to the Central Election Commission of the Russian Federation (“the CEC”). The second applicant was listed no. 9 in the certificate; on the same line it was indicated that he was standing for elections in constituency no. 9 and that he was a member of the Communist Party.
On 27 October 2003 the district election commission refused registration of the second applicant, invoking the following three grounds:
“In the application written by the candidate Skuratov himself, his position is indicated as the 'acting head of the department of constitutional, administrative and international law of the Moscow state social university'. However, according to the entries in the candidate's employment record, his appointment as the acting head of the department... occurred at the same time as his transfer to the position of a professor of the same department... In fact, Mr Skuratov simultaneously performs the duties of the acting head of the department and those of a professor of [that] department, which does not correspond to the information that he provided about his employment.
Having indicated his membership of the Communist Party of the Russian Federation, the candidate... did not provide a document showing his membership of the CPRF and his status within the party, addressed to the District election commission and ratified by the standing management of the party. Instead, there was submitted a copy of a certificate concerning membership of candidates for the State Duma elections and their status within the party, addressed to the Central Election Commission...”
The third ground for the refusal was that the copies of the second applicant's diplomas had been certified by a non-governmental organisation rather than by a competent authority.
On 29 October 2003 the second applicant complained to the Central Election Commission.
On 4 November 2003 the Central Election Commission determined that the district election commission had no solid grounds to consider that the second applicant had submitted untrue information. The CEC requested the district commission to reconsider the second applicant's registration immediately.
On 11 November 2003 the district election commission issued a new decision to refuse the second applicant's registration. It modified the first two grounds for refusal and added a new one. As to the second applicant's employment, it stated that, according to a certificate of 29 October 2003 signed by the pro-rector of the Moscow state social university and enclosed with the second applicant's complaint to the CEC, Mr Skuratov was a professor of the department. Since a copy of that certificate had not been made available to the district election commission, the second applicant was considered to be in breach of the election laws in that he had failed to inform the commission of a change in his employment. As to the second applicant's membership in the CPRF, the commission noted that he had been in possession of an appropriate document and enclosed it with his complaint to the CEC, however, he had only done so on 29 October 2003, i.e. after the time-limit for registration had expired. As a new ground for refusal, the commission found that the second applicant had printed certain campaigning materials which had not been paid from his election fund.
The second applicant complained once again to the CEC.
On 20 November 2003 the Central Election Commission rejected his complaint. It determined that the second applicant had omitted to state that he had been also a professor in the university and that a document showing his membership in the CPRF had been incorrectly addressed.
The applicant appealed to a court, seeking protection of his electoral rights.
On 25 November 2003 the Supreme Court of the Buryatia Republic dismissed his claim, upholding the first two grounds for refusal invoked by the district election commission. It found that the second applicant failed to inform the commission of his appointment to the position of a professor and to submit an appropriate document confirming his party membership.
On 29 November 2003 the Supreme Court of the Russian Federation upheld, on the applicant's appeal, the judgment of 25 November 2003. It found as follows:
“It has been established that in the application form... of 2 October 2003 the candidate... Skuratov indicated his position as acting head of the department... However, it transpires from a copy of Skuratov's employment record... that he was appointed the acting head of the department... by the order... of 30 May 2003. Pursuant to the order... of 28 May 2001 Skuratov had been elected for three years as a professor of the department of constitutional law... and, by an order... of 30 May 2003, he was transferred to the position of a professor of the department of constitutional, administrative and international law. Skuratov failed to submit information... concerning his transfer to the position of a professor of the department of constitutional, administrative and international law.
The court cannot agree with his argument that he had no intention to mislead the election commission... because he did not see any substantial discrepancy in the submitted information. The [first-instance] court correctly determined that he should have indicated, as his current position, that of the professor... Because it is precisely that position that defines, in the spirit of the labour law, the substance of the labour contract between [Skuratov] and the educational institution, corresponds to its organisation chart and determines the nature of his work duties... At the same time, the acting in another position may only be of a temporary nature, that is until the person has been approved to that position or come back to his old one...
The Supreme Court also considers that, as the right of a candidate to indicate his party membership and status in his application form has a corresponding obligation to submit a document confirming that information... officially certified by the standing governing body of the political party, such document cannot be replaced by the list of that party's candidates in single-member constituencies signed and sealed by the Chairman of the party central committee and addressed to the Central Election Commission...
Pursuant to section 47 § 8(3) of the federal law “on the elections of the members of the State Duma”... a failure to submit documents required for registration of a candidate under that law is a ground to refuse registration of that candidate...”
(b) Exclusion from the party roll
On 6 September 2003 the Communist Party of the Russian Federation nominated the federal roll of candidates to the State Duma elections. On 13 October 2003 the roll was registered by the Central Election Commission. The second applicant was candidate no. 5 in the Urals regional group.
On 25 November 2003 Mr Kishenin, Chairman of the general council of the electoral bloc “Russian Pensioners' Party and Party of Social Justice”, made an application to the Supreme Court of the Russian Federation, seeking exclusion of the second applicant from the federal roll of the Communist Party. Referring to the decisions of the district election commission of the Buryatskiy district, he claimed that the submission of untrue information by the second applicant had violated the rights of other political parties and electoral blocs standing in the elections, including his bloc.
In its observations of 28 November 2003, the Central Election Commission objected to the granting of the application. In its view, the claimants failed to show how the registration of the second applicant had impaired their rights. It submitted that at the moment of registration of the federal roll, the CEC had no doubts as to the accuracy and authenticity of the information submitted by the CPRF about its nominees and that the circumstances invoked by the claimants could not be a ground for curtailing the second applicant's right to stand for elections.
On 28 November 2003 the Supreme Court of the Russian Federation granted Mr Kishenin's application, finding that the personal information submitted by the second applicant had been untrue because the position of the “acting head of a department” was not among those listed in the Russian Labour Code and the federal law “on graduate and post-graduate professional education”.
Both the second applicant and the CPRF appealed.
On 4 December 2003 the Appeals Division of the Supreme Court of the Russian Federation upheld the judgment of 28 November 2003, relying on the following reasons:
“Having indicated in his application form... that his position was the acting head of the department... while he permanently held the position of a professor of the department, Mr Skuratov thereby submitted inaccurate personal information, which was the ground... to annul his registration... [T]he first-instance court was also justified in referring to the fact that neither the Labour Code nor the federal law 'on graduate and post-graduate education' provided that the office of an acting head of a department was a permanent one...
As the Supreme Court correctly determined in its judgment, the right to apply to a court with an application for annulment of a candidate's registration... is vested... in political parties and electoral blocs... (section 95 § 6 of the federal law 'on election of members...', Article 260 § 1 of the Code of Civil Procedure). As to the specific electoral rights and interests of the claimant (who had also nominated and registered a federal roll of candidates to the State Duma), in the instant case they are affected by the inclusion of the candidate Skuratov in the federal roll of candidates of the CPRF which candidate did not comply with the formal requirements that apply in an equal measure to all candidates, political parties and electoral blocs and make possible the exercise of the right to stand for elections. Such interests of the claimant are envisaged in sections 1 and 3 of the federal law 'on election of members...', according to which members of the State Duma of the Russian Federation are elected by citizens of the Russian Federation in general, equal and direct elections; political parties and electoral blocs stand for elections of the State Duma members on equal grounds in accordance with the procedure established by the present federal law...” (emphasis in the original)
The second applicant did not take part in the elections.
B. Relevant domestic law
The Russian federal law “on election of members of the State Duma of the Federal Assembly of the Russian Federation” (no.175-FZ of 20 December 2002, amended on 23 June 2003) provides as follows:
Pursuant to section 47 § 8 (6), a candidate may not be registered if he or she submitted untrue information in his application form. According to section 38 § 7 (1), an application form of a candidate who nominated himself for the elections must indicate, in particular, his “education, principal place of work or service and the office held (if he has no principal place of work or service – occupation)”. The same information is requested from the candidates nominated to federal rolls by political parties (section 41 § 4 (1)) who may, in addition and without being obliged to, indicate their membership and status in a political party on the condition that they submit a document confirming such information officially certified by the standing governing body of that party. The same requirements apply to the candidates nominated by political parties for elections in single-member constituencies (section 41 § 12).
COMPLAINTS
The applicants complain under Article 6 of the Convention that the judgments of the domestic courts were arbitrary and that the proceedings were unfair. The second applicant also invokes Article 13 of the Convention.
The applicants complain under Article 3 of Protocol No. 1 that the interference with their right to stand for elections did not meet a pressing social need and was disproportionate. Invoking Articles 13 and 14 of the Convention, the second applicant also complains that he was the only one of 163 candidates of the Communist Party whose registration was annulled for the failure to confirm his party membership and status, although all the candidates had submitted identical documents signed by the party Chairman Mr Zyuganov and addressed to the Central Election Commission. He submits that his exclusion from the 2003 elections was a part of the long-standing political campaign against him which had begun with his dismissal from the office of the Prosecutor General in April 1999.
The first applicant complains under Article 1 of Protocol No. 1 about the domestic authorities' refusal to return the election deposits.
THE LAW
1. The applicants complained under Article 6 of the Convention about the findings of the domestic courts in the disputes concerning their right to stand for elections. The relevant part of Article 6 reads as follows:
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing ... by a ... tribunal...”
The second applicant also invoked Article 13 of the Convention which provides 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) Insofar as the applicants relied on Article 6 of the Convention, the Court notes that the proceedings in question concerned their right to stand as candidates in the elections of the Moscow mayor and the elections to the Russian legislature. According to its constant case-law, such right, by its nature, is a political one and falls outside the concept of “civil rights and obligations” within the meaning of Article 6 § 1 of the Convention (see Gorizdra v. Moldova (dec.), no. 53180/99, 2 July 2002; Cherepkov v. Russia (dec.), no. 51501/99, 25 January 2000). Article 6 does not therefore apply in the present case.
It follows that the applicants' complaint under Article 6 is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
(b) Insofar as the second applicant also relied on Article 13 of the Convention, the Court recalls that Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52). The Court has found that the second applicant's complaint under Article 6 is incompatible ratione materiae. It follows that, to the extent that Article 13 applies in connection with Article 6 claims in contexts such as the present, the second applicant does not have an “arguable claim” and his complaint does not attract the guarantees of Article 13.
It follows that the second applicant's complaint under Article 13 is also incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
2. The applicants complain under Article 3 of Protocol No. 1 about a violation of their right to stand for elections in that the first applicant was not permitted to stand for the elections of the Moscow mayor and for the State Duma elections and that the second applicant's registration for the State Duma elections was annulled. Article 3 of Protocol No. 1 reads 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 second applicant also invokes Articles 13 and 14 of the Convention. Article 13 is cited above, and Article 14 provides as follows:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
(a) Insofar as the first applicant complained about a violation of his right to stand as a candidate to the Moscow mayor elections, the Court recalls that Article 3 of Protocol No. 1 guarantees the “choice of the legislature”, whereas the Moscow mayor has the power to make regulations and by-laws which is distinguishable from the legislative power (see, mutatis mutandis, Cherepkov v. Russia (dec.), cited above). The Court considers therefore that Article 3 of Protocol No. 1 is not applicable to the elections of the Moscow mayor.
It follows that the first applicant's complaint about the Moscow mayor elections is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
(b) Insofar as both applicants allege a violation of their right to stand for the State Duma elections, the Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
3. The first applicant complained under Article 1 of Protocol No. 1 about the refusal of the domestic authorities to return the election deposit. Article 1 of Protocol No. 1 reads 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.”
The Court notes that the first applicant did not appeal against the refusal to any domestic court.
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Decides to join the applications;
Decides to adjourn the examination of the applicants' complaints concerning their right to stand for the State Duma elections;
Declares the remainder of the applications inadmissible.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy