Information Note on the Court’s case-law 68
October 2004
Melnychenko v. Ukraine - 17707/02
Judgment 19.10.2004 [Section II]
Article 3 of Protocol No. 1
Stand for election
Refusal to register a candidate in parliamentary election: violation
Facts: The applicant worked in the Department of Security of the President of Ukraine and was responsible for guarding his office. In the course of his duties he allegedly tape-recorded conversations of the President which revealed the possible involvement of the latter in the disappearance of the well-known political journalist (see Gongadze v. Ukraine, N° 34056/02). When the tape recordings were publicly disclosed, the applicant left Ukraine for fear of political persecution and was granted refugee status in the United States. Criminal proceedings were instituted by the General Prosecutor’s Office against the applicant on charges of defamation of the President, forgery, disclosure of State secrets and abuse of power. A warrant for his arrest and detention pending trial was issued by the District Court. The facts which gave rise to the applicant’s complaints were related to his subsequent nomination by the Socialist Party as a candidate for the Verkhovna Rada (Parliament). The Central Electoral Commission (CEC) rejected his registration given that he had not resided in the country for the last five years, as required by electoral legislation, and had submitted untrue data regarding his place of residence in the registration documents. When fleeing to the United States the applicant had kept his internal passport (propiska), a document which stated that he was formally a resident in Ukraine, and had used it for his electoral registration request. He appealed to the Supreme Court against the refusal of his registration, but the complaint was dismissed on the same grounds as those given by the CEC.
Law: Article 3 of Protocol No. 1 – The domestic rules and legislations on eligibility to become a Member of Parliament, which were very diverse across Council of Europe member States, had to be evaluated in the light of the political evolution in a given country. The Court had never expressed its opinion on the specific question of a residency requirement in relation to the right to stand for elections, but accepted that strict conditions on eligibility to stand for parliamentary elections could be justified. Thus, the imposition of a five-year continuous residency requirement for parliamentary candidates could not be precluded outright. However, in the instant case, the Court found that domestic legislation and practice did not contain an explicit requirement of “continuous” residence in Ukraine. The only proof of legal registration at the material time was the internal passport of a person, which did not always correspond to that person’s habitual place of residence. Parliamentary candidates were only under the obligation to provide information based on their internal passport (propiska). The applicant had left Ukraine for an objective fear of persecution after his involvement in the release of tapes which incriminated the President in the disappearance of the journalist and was therefore in a difficult situation: had he stayed, his physical integrity might have been endangered and rendered the exercise of his political rights impossible, whereas in leaving he was also prevented from exercising such rights. Thus, the refusal of his candidacy to the Verkhovna Rada as untruthful, although he still held a valid registered place of legal residence in Ukraine, was in breach of Article 3 of Protocol No. 1.
Conclusion: violation (six votes to one)
Article 41 – The Court awarded the applicant 5,000 euros 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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