Communicated on 3 May 2017
THIRD SECTION
Application no 56287/11
Yevgeniy Georgiyevich VOLCHEV
against Russia
lodged on 28 July 2011
STATEMENT OF FACTS
The applicant, Mr Yevgeniy Georgiyevich Volchev, is a Russian national who was born in 1976 and lives in Kaliningrad.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The applicant’s attempt to vote and decisions of electoral commissions at various levels
In 2008 the applicant moved to Russia from Turkmenistan and settled in the Kaliningrad Region, where he has been living ever since. Shortly after moving he obtained Russian nationality by way of naturalisation and was issued with a Russian passport.
On 13 March 2011 the applicant intended to vote in the election of members of the regional legislature, the Kaliningrad Regional Duma. He arrived at a polling station at electoral ward no. 289 in Kaliningrad and showed the Electoral Ward Commission (участковая избирательная комиссия – “the EWC”) his Russian passport and a document confirming his registration at a certain address in Kaliningrad for the period from 16 December 2010 to 16 December 2011. According to the applicant, the president of the EWC refused to include him in the list of voters and allow him to vote, referring to the fact that he did not have permanent registration within the territory of the Kaliningrad Region.
On the same date the applicant lodged a written complaint about the actions of the president of the EWC with the Territorial Electoral Commission (территориальная избирательная комиссия – “the TEC”). He argued that he had been arbitrarily denied the right to vote and discriminated against on account of the temporary nature of his registration in the region. By a decision of 14 March 2011 the TEC dismissed the applicant’s complaint, stating that section 5 of the Kaliningrad Regional Duma Elections Act vested active voting rights in Russian nationals over the age of majority whose “place of residence” (место жительства) was within the territory of the Kaliningrad Region.
On 16 March 2011 the applicant lodged a similar complaint with the Electoral Commission of the Kaliningrad Region (Избирательная комиссия Калининградской области). By a decision of 18 March 2011 it dismissed the applicant’s complaint, observing that on the day of the election he had presented himself at a polling station with his Russian passport which had had no indication of his place of residence, and a certificate confirming his “temporary registration at the place of his stay” (временная регистрация по месту пребывания). Since the Kaliningrad Regional Duma Elections Act only vested voting rights in Russian nationals who had a “place of residence” within the territory of the region, the EWC’s refusal to allow him to vote in the election of the regional legislature had been lawful.
2. Court proceedings
The applicant complained to a court about the EWC’s refusal to allow him to participate in the election on 13 March 2011, as well as about the relevant electoral commissions’ decisions of 14 and 18 March 2011. He argued that the electoral commissions at various levels had breached Article 32 of the Constitution and had violated his voting rights, and that he had been discriminated against because he did not have permanent registration in the Kaliningrad Region. In that connection the applicant pointed out that he was unable to afford to purchase an apartment, which would enable him to obtain permanent registration at the place of his residence in the region; however, he did live there in a rented apartment and had a renewable temporary registration certificate. That fact alone, in the applicant’s view, could not be a legitimate reason for barring him from the election.
On 12 May 2011 the Tsentralny District Court of Kaliningrad rejected his complaint.
Referring to Article 32 of the Russian Constitution and various relevant provisions of federal electoral legislation, it noted that all Russian nationals were entitled to vote in various elections at a polling station at the place of their residence or, in certain cases stipulated by the legislation, at the place of their temporary stay. At the same time, section 5 of the Kaliningrad Duma Elections Act provided that only Russian nationals who were “registered at a place of residence” within the territory of that region were entitled to participate in elections of the regional legislature. The court observed that the registration of Russian nationals at their place of residence was confirmed by a stamp in their passport by the competent authority. The applicant did not have such a stamp in his passport confirming that he had his “place of residence” within the Kaliningrad Region, and was only “temporarily registered at the place of his stay” there, with the result that, under the relevant legislation, he was ineligible to vote in the regional election. The court thus concluded that the EWC’s refusal to allow him to vote in the election of the regional legislature and the ensuing decisions of the other electoral commissions had been lawful and well-founded. There were therefore no grounds for annulling those decisions.
On 29 June 2011 the Kaliningrad Regional Court upheld the above judgment on appeal, largely relying on the reasoning of the first-instance court.
3. Ruling of the Constitutional Court of Russia and further developments
The applicant then challenged the compatibility of a number of provisions of electoral legislation with the Russian Constitution, including section 5 of the Kaliningrad Regional Duma Elections Act, in so far as they limited the right of Russian nationals to vote in elections at various levels in the absence of registration “at a place of residence” confirmed by a stamp in their passport.
In ruling no. 1794-O-O of 8 December 2011 the Constitutional Court of Russia held that the impugned legal provisions were not incompatible with the Russian Constitution, as they did not bar Russian nationals from voting who were not registered “at a place of residence” on the territory where a particular election was being held, but lived within that territory on the basis of their registration at “the place of their stay” there. The court thus confirmed that Russian nationals were entitled to vote in elections at the place where they actually lived, irrespective of whether their registration there was permanent or temporary in nature. The court also observed that it was not competent to examine the particular circumstances of the applicant’s case or rule on the lawfulness of the actions of the electoral commissions. It thus rejected the applicant’s complaint as inadmissible.
The applicant then applied for the proceedings that ended with the decisions of 12 May and 29 June 2011 to be reopened owing to newly discovered circumstances. He argued that the decisions should be reviewed in the light of the interpretation given by the Constitutional Court of Russia in its ruling of 8 December 2011.
By decisions of 28 March, 5 June and 8 October 2012 respectively the domestic courts refused the applicant’s request at three levels of jurisdiction, stating that the Constitutional Court of Russian had refused to entertain his complaint and there were therefore no new circumstances to justify the reopening of his case.
B. Relevant domestic law
The relevant parts of the Russian Constitution provides as follows:
Article 32
“...
2. Citizens of the Russian Federation shall have the right to elect and to be elected to bodies of state governance and bodies of local self-government, as well as to take part in a referendum...”
Section 5 of Law no. 497 of the Kaliningrad Region on the Election of Members of the Kaliningrad Regional Duma of 29 September 2010 (“the Kaliningrad Regional Duma Elections Act”), as in force at the relevant time, provided:
“A Russian national who, on the date of the voting, has reached the age of 18, and whose place of residence is situated within the Kaliningrad Region, has the right to participate in the election of members of the regional Duma...”
Article 20 of the Civil Code defines an individual’s “place of residence” as the place where he or she “permanently or mainly lives”.
COMPLAINT
The applicant complains under Article 3 of Protocol No. 1 to the Convention of a violation of his voting rights on account of the regional authorities’ refusal to include him in the list of voters and allow him to vote in the election of the regional legislature. He also complains that the above‑mentioned limitation was based on the fact that he had no permanent registration in the region and was thus discriminatory, in breach of Article 14, taken in conjunction with Article 3 of Protocol No. 1 to the Convention.
QUESTIONS TO THE PARTIES
1. Regard being had to the refusal of the regional authorities (electoral commissions at various levels) to include the applicant in the list of voters and allow him to vote in the election of the regional legislature (the Kaliningrad Regional Duma) on 13 March 2011 (hereinafter “the measure complained of”), has there been a breach of the applicant’s right under Article 3 of Protocol No. 1 to the Convention to vote in elections which ensure the free expression of the opinion of the people in the choice of legislature? In particular:
(a) Did the measure complained of curtail the applicant’s right to vote secured by Article 3 of Protocol No. 1 to the Convention to such an extent as to impair its very essence and deprive it of its effectiveness?
(b) Did the measure complained of pursue a legitimate aim?
(c) Were the means employed proportionate to that aim? In particular, was the applicant afforded sufficient safeguards to protect him against arbitrary decisions? Did the applicant have ample opportunity to challenge effectively the findings that led to the measure complained of?
2. With regard to his voting rights, has the applicant suffered discrimination on the grounds of the temporary nature of his registration “at the place of his stay” (“other status”) within the territory of the Kaliningrad Region, contrary to Article 14 of the Convention read in conjunction with Article 3 of Protocol No. 1 to the Convention? In particular, was the applicant subjected to a difference in treatment when compared to residents of the Kaliningrad Region with permanent registration “at a place of residence” in that region? If so, did that difference in treatment pursue a legitimate aim and did it have a reasonable justification?
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