Communicated on 7 November 2016
THIRD SECTION
Application no. 43329/16
Lev Markovich SHLOSBERG
against Russia
lodged on 13 July 2016
STATEMENT OF FACTS
The applicant, Mr Lev Markovich Shlosberg, is a Russian national who was born in 1963 and lives in Pskov.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Events leading to applicant’s loss of MP status
On 4 December 2011 the applicant was elected a member of the Pskov regional parliament. Two weeks later he was appointed deputy chairman of the parliament’s committee on legislation, economic policy and local governance.
On 15 September 2015 the Pskov regional prosecutor informed the president of the Pskov regional parliament in a letter that the applicant had violated the Regional Governance Act and the regional Pskov Parliament Members Act by representing a non-profit organisation in courts on several occasions.
A parliamentary commission conducted an internal inquiry. The applicant was allowed to make written observations.
On 17 September 2015 the commission issued a report in which it concluded that the prosecutor’s allegations were true. It was established that on 1 April 2015 the applicant had represented the non-profit organisation in a first-instance hearing, that he had filed an appeal on the NGO’s behalf and that on 16 July 2015 he had tried to represent the organisation during the appeal hearing. However, the appeal court had dismissed the applicant from the proceedings after establishing that he was an MP.
Following a secret vote on 24 September 2015, the regional parliament adopted a decision to strip the applicant of his MP status and dismiss him as deputy chairman of the committee.
2. Administrative proceedings
On 28 September 2015 the applicant lodged an administrative complaint with the Pskov Town Court, challenging the decision of 24 September 2015. He argued that the Regional Governance Act contained an exhaustive list of grounds on which a member of parliament could be stripped of his status and that representing someone in court was not one of them. That sanction was only provided for in the regional Pskov Parliament Members Act, which ran counter to the federal legislation. The applicant also stated that sanctions against him should have been time-barred.
On 21 October 2015 the Pskov Town Court dismissed the applicant’s complaint. The relevant parts of the judgement read as follows:
“A thorough analysis of federal and regional legislation discloses that ... owing to a lack of federal regulation of regional MPs’ status, the constituent entities of the Russian Federation are allowed to regulate that matter themselves.
Section 4 of the Pskov Parliament Members Act lays down grounds for the early termination of a parliamentary mandate ...
In particular, according to section 4(1)(b) of the Pskov Parliament Members Act an MP can be stripped of that status if he or she has failed to observe the limitations [set for members of the parliament].
Section 7 [of the Pskov Parliament Members Act] provides an exhaustive list of those limitations.
Under section 7(3) of the Pskov Parliament Members Act ... a member of the parliament is not allowed to act as a defender or a representative (save for representation based on the law) in civil, criminal or administrative cases.
...
Furthermore, the court finds untenable [the applicant’s] argument that the Regional Governance Act contained an exhaustive list of breaches for which a member of the parliament could be stripped of his status.
...
The court considers that this list is not exhaustive and that the regional legislative body is allowed to define the scope of MPs’ responsibilities ... (a similar position has been expressed ... by the Supreme Court of the Russian Federation ...).
...
[The applicant’s] argument that [the Pskov regional parliament] missed the deadline to strip him of his MP status ... contradicts the facts of the case.
According to section 7(6) of the Pskov Parliament Members Act, a decision to terminate someone’s MP status should be adopted no later than 30 days after the relevant grounds have arisen or no later than three months if the parliament was not in session.
...
By acknowledging that [the applicant] participated [on 16 July 2015] as a representative on the basis of a power of attorney in the appeal proceedings ..., the court concludes that the [Pskov regional parliament] was not time-barred from adopting the disputed decision.
Furthermore, the court agrees ... that the period should not be calculated from the appeal hearing [in which the applicant participated] but from the date when the Pskov regional prosecutor’s letter was received [by the parliament]...”
On 14 January 2016 the Pskov Regional Court upheld the judgement of 21 October 2015, fully endorsing the Town Court’s reasoning.
On 29 April 2016 the Presidium of the Pskov Regional Court dismissed a cassation appeal by the applicant.
3. Civil proceedings
At the end of October 2015 the applicant and two of his former assistants challenged the decision of 24 September 2015 in court, seeking reinstatement, compensation for loss of earnings and non-pecuniary damage.
On 5 November 2015 the Pskov Town Court suspended the proceedings until the judgement of 21 October 2015 had become final.
On 12 February 2016 the proceedings were discontinued as the applicant’s challenge to the parliament’s decision of 24 September 2015 had already been resolved in the administrative proceedings.
On 10 May 2016 the decision to discontinue the proceedings was upheld on appeal by the Pskov Regional Court.
B. Relevant domestic law and practice
1. Regional Governance Act
The Regional Governance Act, Law No. 184-FZ of 6 October 1999 (Федеральный закон от 06.10.1999 № 184-ФЗ «Об общих принципах организации законодательных (представительных) и исполнительных органов государственной власти субъектов Российской Федерации»), regulates the organisation of local governance in the constituent entities of the Russian Federation.
Section 12(5)(1) of the Act provides that a member of a parliament is not allowed to act as a defender or a representative (save for representation based on the law) in civil, criminal or administrative cases. A decision to terminate an MP’s mandate should be adopted no later than thirty days after the relevant grounds have arisen or no later than three months if the parliament was not in session (section 12(5)(2)).
The Regional Governance Act does not contain a specific provision listing the grounds for the early termination of a parliamentary mandate.
2. Pskov Parliament Members Act
The Pskov Parliament Members Act, Law No. 670-oz of 16 May 2007 (Закон Псковской области от 16.05.2007 № 670-оз «О статусе депутата Псковского областного Собрания депутатов») is a regional act adopted by the Pskov parliament.
Section 4(1) of the Act lists seven grounds for the early termination of a parliamentary mandate. An MP can be stripped of his or her status as a member of parliament for failing to observe the limitations set on members of the parliament in federal and regional legislation (section 4(1)(b)).
The present Act duplicated the provisions of the Regional Governance Act in so far as they provided for a prohibition on MPs to act as representatives in legal proceedings (section 7(3) and section 6).
3. Position of the Supreme Court of the Russian Federation
In a decision of 7 August 2013, no. 47-APG-13-3, the Supreme Court stated that the Regional Governance Act did not contain an exhaustive list of grounds for the early termination of a parliamentary mandate. Consequently, a regional parliament was allowed to regulate matters concerning the responsibilities of regional MPs, which are an integral part of their status.
COMPLAINT
The applicant complained under Article 3 of Protocol No. 1 to the Convention that he had been arbitrarily deprived of his status as an MP.
QUESTIONS TO THE PARTIES
1. Was there an interference with the applicant’s rights under Article 3 of Protocol No. 1 to the Convention? In particular, did the decision of the Pskov regional parliament, stripping the applicant of his mandate, violate his right to stand for elections (see Sadak and Others v. Turkey (no.2), nos. 25144/94, 26149/95 to 26254/95, 27100/95 and 27101/95, § 33, ECHR 2002-IV)?
2. If so, did the measure pursue a legitimate aim and respect the principle of legitimate expectations (see Grosaru v. Romania, no. 78039/01, §§ 54-57, 2 March 2010, and Lykourezos v. Greece, no. 33554/03, §§ 53-58, 15 June 2006)?
3. Did the parliamentary procedure leading up to the decision to strip the applicant of his mandate provide sufficient safeguards against arbitrariness?
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