RUSSIAN CONSERVATIVE PARTY OF ENTREPRENEURS, ZHUKOV and VASILYEV v. RUSSIA

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Applications nos. 55066/00 and 55638/00
by RUSSIAN CONSERVATIVE PARTY OF ENTREPRENEURS, Aleksandr ZHUKOV and Viktor VASILYEV
against Russia

The European Court of Human Rights (First Section), sitting on 18 March 2004 as a Chamber composed of

MrC.L. Rozakis, President,
MrsN. Vajić,
MrE. Levits,
MrsS. Botoucharova,
MrA. Kovler,
MrV. Zagrebelsky,
MrsE. Steiner, judges,
and Mr S. Quesada, Deputy Section Registrar,

Having regard to the above applications introduced on 8 and 22 February 2000,

Having regard to the decision to join the applications of 3 April 2003,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The first applicant, the Russian Conservative Party of Entrepreneurs (избирательное объединение «Российская консервативная партия пред­при­ни­ма­те­лей», “the applicant party”), is a nation-wide political party registered with the Ministry of Justice of the Russian Federation on 19 December 1998. The second applicant, Mr Aleksandr Anatolyevich Zhukov, is a Russian national, who was born in 1949 and lives in Smolensk. He stood as one of the applicant party's candidates for the 1999 elections to the State Duma (the lower chamber of the Russian parliament). The third applicant, Mr Viktor Sergeyevich Vasilyev, is a Russian national, who was born in 1959 and lives in Moscow. He was a supporter of the applicant party. The applicants are represented before the Court by Mr P. Sklyarov, the applicant party's staff lawyer.

The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. Proceedings concerning the 1999 elections to the State Duma

(a)  Registration of the applicant party for elections

On 24 September 1999 the applicant party nominated 151 candidates for the elections to the State Duma of the Russian Federal Assembly.

On 15 October 1999 the Central Election Commission of the Russian Federation (Центральная избирательная комиссия РФ, “the CEC”) accepted the applicant party's list of candidates. The applicant party transferred to the CEC the election deposit of 2,087,250 Russian roubles (RUR).

On 3 November 1999 the CEC refused registration of the applicant party's list with reference to Sections 24 § 1, 47 § 6 (d), 51 § 11 and 91 § 2 of the Elections Law. The CEC established that seventeen candidates had submitted substantially inaccurate information on their income and property and struck them off the list. One of these candidates was listed under number two on the list. On this ground the CEC held:

“2. To refuse the registration of the federal list of candidates to the State Duma of the Russian Federation nominated by [the applicant party] because of the withdrawal of the candidate listed as number two in the nation-wide part of the accepted federal list of candidates”.

(b)  Judicial examination of the applicant party's complaint

The applicant party appealed against the CEC's refusal to a court.

On 10 November 1999 the Civil Chamber of the Supreme Court of the Russian Federation, acting as a first instance court, upheld the CEC's decision to strike the candidates who had made false representations off the list, but declared unlawful the CEC's refusal to register the list in its entirety. The court interpreted the term “withdrawal” in Section 51 § 11 of the Elections Law as meaning only a voluntary withdrawal of a candidate of his or her own will. The court held therefore that the provision should not apply to a situation where one of the top three candidates had been struck off the list by the CEC.

The CEC appealed against the judgment. The applicant party submitted its observations on the CEC's points of appeal.

On 22 November 1999 the Appellate Collegium of the Supreme Court of the Russian Federation (Кассационная коллегия Верховного Суда Российской Федерации) upheld the judgment of 10 November. The court thoroughly analysed the wording of the Elections Law and agreed that the word “withdrawal” in Section 51 § 11 of the Law should only refer to situations where the candidate's name had been taken off the list of the candidate's own will or at the request of the candidate's electoral union.

On the same date the CEC granted registration to the applicant party's list of candidates.

(c)  Supervisory-review proceedings and quashing of earlier judgments

On 26 November 1999 a deputy Prosecutor General of the Russian Federation lodged an application for supervisory review (протест в порядке надзора) with the Presidium of the Supreme Court of the Russian Federation. The prosecutor argued that “withdrawal” was a generic term which applied to any situation where a candidate was struck off the list, be it the expression of the will of the candidate himself, of his electoral union, or of the CEC. Hence, a candidate's exclusion as a result of the CEC's decision should count as “withdrawal” and render Section 51 § 11 of the Elections Law applicable.

On 8 December 1999 the Presidium of the Supreme Court of the Russian Federation granted the request for review and quashed the judgment of 22 November 1999. The court followed the reasoning suggested by the deputy Prosecutor General. The court emphasised that the exclusion of a candidate from the list by the CEC's decision was only a specific instance of “withdrawal” and, therefore, the CEC's refusal to register the list had been lawful.

On 9 December 1999 the CEC annulled its earlier decisions, refused the registration of the applicant party's list and ordered the applicant party's name to be struck out of voting ballot papers. The applicant party appealed against the CEC decision to the Supreme Court of the Russian Federation. On 18 December 1999 the Supreme Court of the Russian Federation dismissed the applicant party's complaint. The court found that, pursuant to the judgment of the Presidium of the Supreme Court of the Russian Federation, the CEC had no discretion in the matter and it was obliged as a matter of law to refuse the registration of the applicant party's list.

On 19 December 1999 elections to the State Duma took place. The applicant party did not stand for the elections.

(d)  Ruling of the Constitutional Court of the Russian Federation

On 25 April 2000 the Constitutional Court of the Russian Federation, acting on an application of a group of Russian legislators, declared Section 51 § 11 of the Elections Law incompatible with the Russian Constitution in the part which provided for the refusal or cancellation of the registration in the case of withdrawal of one or more of the top three candidates on the list. The Constitutional Court held that the mere possibility to refuse or cancel registration of the list because of withdrawal of one of the top three candidates constituted a disproportionate encroachment on the right of citizens to vote for that party and on the right of other candidates on the list to stand for elections. The Constitutional Court also ruled that the declaration of unconstitutionality of the said provision would be of no consequence in respect of the State Duma elections of 19 December 1999 and could not be relied upon to seek a review of their results.

On 4 May 2000 the Constitutional Court of the Russian Federation disallowed the applicant party's application for review of constitutionality of Section 51 § 11 of the Elections Law because it was essentially the same as the matter already adjudicated on 25 April 2000.

(e)  Request for a review on account of new circumstances

In 2001 the applicant party lodged an application with the Presidium of the Supreme Court of the Russian Federation to review the judgment of 8 December 1999 in the light of a new circumstance, i.e. the ruling of the Constitutional Court.

On 7 February 2001 the Presidium of the Russian Federation Supreme Court refused the applicant party's request. The court ruled that the ruling of the Constitutional Court was not a new circumstance under the domestic law and, in any event, the applicant party had missed the procedural time-limit of three months to lodge its request for review.

2. Proceedings concerning the return of the election deposit

On 30 July 2000 the applicant party sent a request to the CEC to have its election deposit paid back.

On 24 August 2000 the CEC informed the applicant party that the election deposit had been credited to the federal budget and could not be repaid. The CEC maintained that the decision of the Constitutional Court did not apply to the 1999 elections and there was therefore no ground to return the election deposit.

On 26 April 2001 the applicant party brought a civil action against the CEC for the return of the election deposit.

On 6 September 2001 the Basmanniy District Court of Moscow dismissed the applicant party's action. The court grounded its decision on the provision of the Elections Law which stipulated that the election deposit could not be repaid if the party's list had not been registered pursuant to Section 51 § 11 of the Elections Law. The court held that the applicant party's request for the return grounded on the Constitutional Court's ruling was in fact a disguised request for a review of the elections' results which had been expressly prohibited by the Constitutional Court.

On 10 June 2002 the Moscow City Court upheld on appeal the judgment of 6 September 2001. It followed the same reasoning.

B.  Relevant domestic law and practice

Constitution of the Russian Federation

The Constitution of the Russian Federation guarantees to the citizens of the Russian Federation the right to elect and to stand for elections to the state and municipal bodies (Article 32 § 2).

The Elections Law

The Federal Law on Elections of Deputies to the State Duma of the Russian Federation Federal Assembly (no. 121-FZ of 24 June 1999, “the Elections Law”) provided at the material time as follows:

Section 47. Registration of a candidate or of a federal list of candidates

“1. No later than ten days after the submission of the signatures lists ([or] upon the receipt of the election deposit in the special account of the Central Election Commission) and of other documents required for the registration of the federal list of the candidates, the Central Election Commission shall make a decision on registration of the federal list of candidates or a reasoned decision on the refusal to register the said list...

6...  Grounds for the refusal shall include:

(d)  inaccuracy of information submitted by candidates, electoral unions or blocs pursuant to the present Federal Law provided that such inaccuracy is substantial (inaccuracy of information in respect of specific candidates on the federal list of candidates of an electoral union or bloc may only be a ground for the exclusion of the respective candidates from the approved federal list)...”

Section 51. Withdrawal of candidates, registered candidates, electoral unions,
electoral blocs

“11. Should the number of candidates, registered candidates and candidates excluded from the federal list of candidates on their own motion or upon the decision of the electoral union or electoral bloc exceed 25 percent of the total number of candidates in the approved electoral list or should withdrawal of one or more candidates listed on the top three positions of the all-Federation part of the approved federal list of candidates take place (except withdrawal because of compelling circumstances described in paragraph 16 of this Section), the Central Election Commission shall refuse the registration of the federal list of candidates or cancel such registration.

15. ...[If] the registration of the federal list was cancelled pursuant to paragraph 11 of this Section..., all expenses incurred by the electoral commission in connection with preparation and organisation of elections shall be reimbursed by that registered candidate, electoral union or electoral bloc.”

Section 64. Election deposit

“7. ...If... a registered candidate withdraws on his own initiative or a candidate, registered candidate or the federal list is withdrawn by the electoral union or electoral bloc (with the exception of cases described in Section 51 § 15 of this Federal Law) ... [or] registration of a candidate or of the federal list is refused (except the refusal on grounds set out in Section 91 § 2 of this Federal Law)..., the paid election deposit shall be returned by the electoral commission to the appropriate electoral fund no later than ten days after an application (notice) to this effect is submitted to the Central Election Commission ... by the electoral union, electoral bloc, candidate, registered candidate or after the registration is refused.”

Section 91. Grounds for refusal or cancellation of registration of a candidate
or a federal list of candidates

“2. An electoral commission may refuse registration of a candidate or a federal list of candidates, if:

(а) it is established that the information submitted by the candidate, an authorised representative of an electoral union or bloc, pursuant to this Federal Law is substantially inaccurate;...”

Rules of civil procedure

Article 334 of the RSFSR Code of Civil Procedure (effective at the material time) provided that an application for a review of the case on account of a newly discovered circumstance was to be lodged by a party to that case with the same court that had made the original judgment. Such application could be lodged within three months of the establishment of a circumstance which was claimed to be a ground for the review.

Case-law of the Constitutional Court of the Russian Federation

Review of judgments in connection with a ruling of the Constitutional Court

The Federal Constitutional Law on the Constitutional Court of the Russian Federation (no. 1-FKZ of 21 July 1994) provides that laws or individual legal provisions that have been found incompatible with the Constitution shall become ineffective. Court judgments based on the laws or legal provisions which were struck down shall not be enforceable and shall be reviewed in the cases set out in a federal law (Section 79). Legal provisions which were found to be incompatible with the Constitution may not be applied by courts, other State bodies or officials (Section 87 § 2). Section 100 § 2 further provides that a striking-down of a legal provision as unconstitutional shall in all cases entail a review of the matter adjudicated on the basis of that provision.

On 14 January 1999 the Constitutional Court clarified in resolution no. 4‑O that under Section 100 § 2 a review of the case, to which the applicant before the Constitutional Court was a party and which was decided on the basis of the unconstitutional legal provision, could not be time-barred. As to all other persons who were not the applicants before the Constitutional Court but whose cases had also been decided on the basis of the unconstitutional legal provision, the review of judgments in their cases could be performed either by way of supervisory review proceedings, or by re-opening the case on account of a newly discovered circumstance. However, the court pointed out that the compliance with the procedural time-limits for the review in the light of newly discovered circumstances would be determined in accordance with the general rules of civil procedure.

Granting of compensation for violations of the electoral laws

On 15 January 2002 the Constitutional Court delivered a ruling (no. 1-P) in a case where the domestic courts had acknowledged a violation of the appellant's right to stand for elections in the 1999 elections to the State Duma, but refused to annul the results of the elections in that constituency citing the appellant's failure to show that the contested violation had irreparably prejudiced the results of the voting. In the relevant part the ruling read as follows:

“Finding inspiration in that principle [of proportionality], the courts shall seek adequate forms and methods for the protection of the right to stand for elections and the right to vote and, having declared the refusal to register [the appellant] as a candidate unlawful, they shall not restrict [their judgments] to a mere finding of that violation of the electoral rights... The proportionality principle requires to award an appropriate remedy or compensation in each particular case of a violation of the electoral rights that would take into account the particular features [of the electoral rights] which can only be realised in the course of elections... However, the foregoing shall not exclude the award of compensations aimed at the elimination of effects of the established violations...

When the law so provides, the court may declare that the calling of new elections to remedy a citizen's right to stand for elections is impossible. However, in any event, the adverse consequences of unlawful actions (or failures to act) of electoral registries... shall be compensated and the good name of a citizen shall be re‑established, pursuant to the principle of assumption and compensation of any damage caused by the State enunciated in Article 53 of the Constitution...”

The Constitutional Court recommended the legislature to develop “adequate methods of compensation for violations of [electoral] rights that were brought about by an unlawful refusal of registration”.

COMPLAINTS

1.  The applicants complain under Article 3 of Protocol No. 1 about a violation of the applicant party's and the second applicant's right to stand for elections and the third applicant's right to vote. The applicant party also complains under Article 1 of Protocol No. 1 about the refusal of the domestic authorities to return the election deposit and waive the reimbursement of the propaganda expenses.

2.  The applicants complain that they had no effective remedy for the alleged violation of their rights guaranteed by Article 3 of Protocol No. 1.

THE LAW

1.  The applicants complain under Article 3 of Protocol No. 1 about a violation of their right to free elections. The applicant party also alleges that the decision not to return the election deposit and the requirement to pay for the media coverage violated its property rights under Article 1 of Protocol No. 1. 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.”

Article 1 of Protocol No. 1 provides 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.”

A.  Submissions by the parties

Concerning the applicant party's and the second applicant's right to stand for elections

The Government submit that the decision of the Central Election Commission of 3 November 1999 to refuse the registration of the applicant party's list of candidates was grounded not only on Section 51 § 11 of the Elections Law, which was subsequently struck down by the Constitutional Court, but rather on Section 91 § 2 of the Elections Law, which the applicants failed to respect. The Government continue that, after the Constitutional Court had determined the incompatibility of Section 51 § 11 of the Elections Law with the Russian Constitution, “the [subject] matter of the mentioned case was solved in respect of the first and the second applicants... In this connection the first and the second applicant's complaints... [about] the provisions of Section 51 § 11 of the Law [are] unlawful [at] the present time”. The Government submit in the alternative that the applicant party and the second applicant were able to participate in the electoral campaign between 22 November 1999, when the CEC registered the applicant party's list of candidates pursuant to the Supreme Court judgment of the same date, and 9 December 1999 when the CEC annulled its decision of 22 November. According to the Government, the applicant party's participation in the electoral campaign took the following forms: the applicant party's staff lawyer was granted consultative status with the CEC; an amount of RUR 220,000 was transferred by the CEC to the applicant party's account (the purpose of the transfer is not indicated); the applicant party was given free air time on three State television channels which it used.

The applicants submit that neither Section 47 § 6 (d) of the Elections Law nor Section 91 § 2 of that Law may be construed as the legal basis for the applicant party's exclusion: pursuant to these provisions the registration of a party could only be refused if substantially inaccurate information had been submitted about the party as an entity, which was not the case, while the former provision specifically provided for a sanction against individual candidates rather than the entire list. In their opinion, it clearly follows from the wording of the CEC decision of 3 November 1999 that the CEC had established the falseness of representations by individual candidates, but not of those by the applicant party as an entity. Therefore the registration had been refused precisely by virtue of application of Section 51 § 11 of the Elections Law which was subsequently struck down by the Constitutional Court. The applicants challenge the Government's assertions that they had been able to take part in the electoral campaign until 9 December 1999 as baseless. They indicate that an electoral campaign is a special sequence of events defined by law which culminates in the citizens' vote for candidates and parties' lists. Article 2 of the Law on Fundamental Guarantees of Electoral Rights and the Right to Participate in Referenda in the Russian Federation of 19 September 1997 provided at the material time that an electoral campaign lasted from the publication of the decision to call elections until the publication of the results of the elections and the right to stand for elections comprised, in particular, the right to be listed in a voting ballot paper and the right to be elected to State bodies. However, the applicants continue, the applicant party was denied the right to stand for elections on unlawful grounds and its candidates were not listed in voting ballot papers.

Concerning the third applicant's right to vote

The Government submit that the third applicant who could not vote for the applicant party because its registration had been cancelled was nevertheless able to cast his vote against all candidates. According to the CEC report of 29 December 1999, 3.3% of voters voted against all candidates. In the Government's opinion, even assuming that all of these voters had intended to vote for the applicant party, their votes would not have been sufficient for the applicant party to pass into the legislature.[*]

The applicants submit that the intention of the applicant party's supporters, such as the third applicant, was to vote for the applicant party rather than “against all candidates”. The Government's assumption that the number of the applicant party's supporters had been insufficient to clear the electoral 5% threshold is wrong because at present it is impossible to determine the number of votes that could have been cast for the applicant party: as a result of these events, certain supporters could have chosen not to attend the voting – according to the CEC's data, 38.14% of the voters absented from the elections – while others could have voted for other political entities. In the applicants' assessment, the Government's speculations as to the applicant party's electoral potential in the 1999 elections should be confined to the field of political studies, while from the legal point of view, the applicant party's supporters were forced to change their voting preference and this was an interference with their right to vote on the part of Russian authorities.

Concerning repayment of the election deposit and reimbursement of propaganda expenses

The Government submit that the applicant party was not deprived of its property because the election deposit had been payable out of the electoral fund created by the applicant party and under the domestic law the electoral fund was not a part of a political party's assets. Under Section 62 § 7 of the Elections Law the electoral fund was managed by the electoral entity that created it and it could be used for specific purposes, such as gathering of signatures, electoral campaigning and payment of the election deposit. In the Government's opinion, the CEC lawfully complied with its duty under Section 64 § 10 of the Elections Law which provided for the transfer of the election deposit into the federal budget unless any grounds for its return set out in paras. 7-9 of that Section had been established. The Government contend that no such grounds were established and this conclusion was later confirmed by the domestic courts. After the election deposit was irreversibly credited to the federal budget the CEC has had no control over it and the ruling of the Constitutional Court of 25 April 2000 could not bring about any changes in this matter, either.

The applicant party responds that in the instant case the electoral fund was made up of the applicant party's own assets: the applicant party paid 90.7% of the electoral fund, the CEC granted 8.6% of the fund and the remaining 0.6% were individual contributions. The applicant party points out that the election deposit could only be transferred to the budget if the registration of a party's list had been refused, inter alia on the grounds provided for in Section 51 § 11 of the Elections Law, or if the party received less than 3% of the votes. However, in the present case the applicant party was not permitted to take part in the elections and therefore the level of its support remained unknown. In the same vein, the applicant party claims that the obligation to pay for free air time confirmed in the final instance by the Supreme Commercial Court on 12 March 2003 also violated the applicant party's property rights because such obligation was only imposed on parties that received less than 2% of the votes.

B.  The Court's assessment

The Court considers, in the light of the parties' submissions, that these complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that they are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

2.  The applicants complain, without invoking any specific Convention provisions, that they did not have an effective remedy in respect of the alleged violation of the right to free elections. The Court considers that this complaint falls to be examined under Article 13 of the Convention, which reads 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.  Submissions by the parties

The Government submit that the applicants had a number of effective domestic remedies, to which they have resorted. In particular, the applicants contested the CEC decision not to register the applicant party's list (of 3 November 1999) before the Supreme Court of the Russian Federation; they submitted their observations on the CEC's appeal; the Supreme Court of the Russian Federation heard their appeal against the CEC decision of 9 December 1999 and dismissed it as unsubstantiated. As to the applicants' ability to seek redress after 25 April 2000 when the Constitutional Court struck down Section 51 § 11 of the Elections Law, the Government indicate that pursuant to the case-law of the Constitutional Court the applicants could have benefited from a judicial review of their case as it had been decided on the basis on the invalidated provision. They could have applied for a review of the judgment of 8 December 1999 in the light of newly discovered circumstances, under Article 334 of the RSFSR Code of Civil Procedure. However, the applicants failed to comply with three months' time-limit provided in the Code of Civil Procedure for lodging such application and, accordingly, it was dismissed. Finally, the Government rely on the ruling of the Constitutional Court of 15 January 2002 (see in the “Relevant domestic law” above) to indicate that in cases where a violation cannot be remedied, the victims are eligible for compensation.

The applicants do not contest that they have benefited from a determination of their case before the domestic courts of all levels of jurisdiction, which determination culminated in the judgment of the Presidium of the Supreme Court of the Russian Federation of 8 December 1999. However, they contend that the judgment had been based on a legal provision which was later struck down by the Constitutional Court. As neither the Supreme Court nor its Presidium had competence to pronounce on compatibility of legal provisions with the Constitution, the applicants claim that it should have adjourned the examination of the matter and referred it to the Constitutional Court, which had not been done. As regards the period after the ruling of the Constitutional Court was delivered, the applicants allege that Article 53 of the Constitution proclaiming the right to receive compensation for the damage caused by unlawful actions of State authorities is not enforceable in practice.

B.  The Court's assessment

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court by a majority

Declares the application admissible, without prejudging the merits.

Santiago QuesadaChristos Rozakis
Deputy RegistrarPresident

[*] For a political party to be represented in the legislature, it has to receive at least 5% of the total votes.

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