Legal summary
July 2025
Tomenko v. Ukraine - 79340/16
Judgment 10.7.2025 [Section V]
Article 3 of Protocol No. 1
Choice of the legislature
Free expression of the opinion of the people
Right to free elections
Early termination of applicant’s mandate as member of parliament ordered by his political party following his withdrawal from its parliamentary faction: violation
Facts – The applicant was a well-known Ukrainian politician, who had been elected to the Parliament (Verkhovna Rada) of Ukraine on several occasions between 2002 and 2014. The applicant stood as a candidate in the early parliamentary elections of October 2014 and was elected from the list of the political party “Bloc of Petro Poroshenko “Solidarity”. He subsequently became deputy head of that party’s parliamentary faction.
In December 2015 the applicant submitted to the Head of the Parliament a written statement about his withdrawal from the faction. In March 2016 the party amended its charter so as to empower its congress to terminate a parliamentary mandate early “on the grounds envisaged by law” and then terminated the parliamentary mandate of the applicant and another parliamentarian with reference to Article 81 § 2 (6) of the Constitution of Ukraine (that is, for the reason of their withdrawal from the parliamentary faction of the political party, on the list of which they had been elected). This was the first time a withdrawal from parliamentary factions had entailed the early termination of an MP’s mandate by a political party. The Central Election Commission subsequently declared two other candidates from the party list as elected to the Parliament. The applicant unsuccessfully lodged a claim with the Higher Administrative Court challenging the early termination of his mandate as an MP.
Law – Article 3 of Protocol No. 1:
The early termination of the applicant’s mandate as an MP had constituted an interference with his rights protected under Article 3 of Protocol No. 1 and had been based on Article 81 §§ 2 (6) and 6 of the Constitution.
In accordance with the consistent approach of the Constitutional Court, constitutional provisions were directly applicable, irrespective of the existence of any supporting legislation. The Constitutional Court had explicitly stated that the procedure of and the grounds for early termination of an MP’s mandate had to be determined exclusively by legislation, noting however, that the issue of legislative regulation was beyond its competence. In line with the principle of the direct applicability of the constitutional provisions, it had held that the issues of early termination of an MP’s mandate were to be regulated by the pertinent constitutional provisions pending the legislative regulation of the requirements set out therein and that such termination was possible only on the basis of a law determining the relevant conditions and procedures.
At the time of the impugned interference the legal regulation of the issue of early termination of an MP’s mandate for the MP’s failure to join or remain in the parliamentary faction corresponding to the political party (or electoral bloc) on whose list the MP had been elected had not gone beyond the relevant Constitutional provisions merely stating the existence of such a possibility. In other words, there was no legal framework indicating the scope of discretion conferred on the political parties under those constitutional provisions and the manner of its exercise; nor had there been any rules on the procedures to be followed or safeguards to be put in place against abuse. It was also relevant that the text of the oath to be taken by MPs before assuming office stated that they were supposed to represent the Ukrainian people and to carry out their duties in the interests of all the compatriots – a principle reaffirmed in the Status of MPs Act, which explicitly stated that MPs held their mandate from the people. The list of grounds for early termination of an MP’s mandate under that Act did not mention the failure to join or the withdrawal from a parliamentary faction of a political party by an [MP]. Despite numerous instances of MPs withdrawing from the parliamentary faction in which they had been elected, the constitutional provisions providing for early termination of an MP’s mandate on that ground had never been applied in practice prior to the present case. It was also noteworthy that the party “Bloc of Petro Poroshenko “Solidarity” had decided to terminate the mandate of two out of the ten MPs elected from its list who had withdrawn from its parliamentary faction. It remained unknown by which criteria the party had been guided in selecting those two MPs (including the applicant).
In the circumstances, the applicant could not have reasonably been expected to foresee that his withdrawal from the parliamentary faction of the political party would have led to early termination of his mandate as an MP. Moreover, there was no legal framework, let alone an adequate one, which would ensure effective substantive protection of his passive electoral right against abuse. Indeed, the situation where a political party enjoyed unfettered discretion to choose whether and, if so, when, to put an end to the mandate of an MP who had left its parliamentary faction, with no explanations to give and no procedures to follow, could only be interpreted as effectively removing such decisions from the remit of the law. It had been therefore incompatible with the rule of law.
Accordingly, the interference with the applicant’s passive electoral right had been unlawful.
Although, the above conclusion would in principle be sufficient for the Court to find a violation of Article 3 of Protocol No. 1, the case-circumstances also raised a serious question of proportionality. The Court considered that without addressing that question its analysis would be incomplete and would risk sending a wrong message that early termination of an MP’s mandate by a political party would be otherwise acceptable.
The Court had no reason to take a different position to that consistently expressed by the Venice Commission and shared by the Parliamentary Assembly of the Council of Europe and the Office for Democratic Institutions and Human Rights of the Organisation for Security and Cooperation in Europe, according to which the imperative mandate or similar practices were contrary to the principle of a free and independent mandate, which formed part of the European constitutional tradition. Furthermore, in Paunović and Milivojević v. Serbia which concerned the “imperative mandate” in Serbia, although not having found it necessary to analyse the proportionality aspect, the Court had explicitly upheld the position of the Serbian Constitutional Court, according to which “MPs held a mandate from the people, not from their party”. Undoubtedly, strengthening party discipline and preventing the fragmentation of parliamentary blocs were important for ensuring effective functioning of Parliament. The Court shared the Venice Commission’s conclusion that, where cross-party defections were common, the will of the voters was thwarted, so it was legitimate to introduce counter-measures preventing the “sale” of mandates or votes. However, it would be unacceptable, under the pretext of such counter-measures, to place political parties above the electorate and to give them the power to annul electoral results, as had been de facto done in the present case.
In sum, the impugned measure had been not only unlawful but had been also clearly disproportionate and had thwarted the free expression of the people in the choice of the legislature.
Conclusion: violation (unanimously).
Article 41: EUR 3,000 in respect of non-pecuniary damage; claim for pecuniary damage dismissed.
(See Paunović and Milivojević v. Serbia, 41683/06, 24 May 2016)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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