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FIRST
SECTION
CASE OF KRASNOV AND SKURATOV v. RUSSIA
(Applications
nos. 17864/04 and 21396/04)
JUDGMENT
STRASBOURG
19 July 2007
This judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It may be subject to
editorial revision.
In the case of Krasnov and Skuratov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mr P. Lorenzen,
Mrs N.
Vajić,
Mrs S. Botoucharova,
Mr A.
Kovler,
Mr K. Hajiyev, judges,
and Mr S.
Nielsen, Section Registrar,
Having
deliberated in private on 28 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two applications (nos. 17864/04 and 21396/04)
against the Russian Federation lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by two Russian nationals, Mr
Aleksandr Viktorovich Krasnov (“the first applicant”) and
Mr Yuriy Ilyich Skuratov (“the second applicant”), on 17
and 11 May 2004 respectively.
- The
applicants were represented before the Court by Dr K. Eckstein,
a lawyer practising in Rorschach, Switzerland. The Russian Government
(“the Government”) were represented by Mr P. Laptev,
Representative of the Russian Federation at the European Court of
Human Rights.
- The
applicants alleged a violation of their right to stand for election
as guaranteed by Article 3 of Protocol No. 1. The second applicant
also complained that he had been discriminated against in breach of
Article 14 of the Convention.
- On
14 December 2004 the Court decided to join the applications and
declared them partly inadmissible.
- By
a decision of 23 March 2006, the Court declared the applications
admissible.
- The
applicants and the Government filed observations on the merits (Rule
59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
first applicant was born in 1956 and the second applicant in 1952.
They both live in Moscow.
A. General information
- On
7 December 2003 the general elections to the State Duma of the
Federal Assembly of the Russian Federation, the lower chamber of the
Russian bicameral legislature, were held to elect 450 members for a
term of four years. Of these, one half, that is 225 persons, were
elected by a majority vote from single-mandate district
constituencies. The other 225 seats were allocated on a proportional
basis to candidates on federal rolls submitted by political parties
or electoral blocs that gained more than five per cent of the valid
votes cast in a single federal constituency ballot.
B. The first applicant, Mr Krasnov
1. Mr Krasnov's employment history
- On
28 August 2001 Mr Krasnov was elected head of the district council of
the Presnenskiy district of Moscow (глава
районной
управы
Пресненского
района
г. Москвы).
- On
6 November 2002 the Moscow City Duma adopted a law (no. 56) “on
the organisation of local self-government in the city of Moscow”.
Section 10 determined that the bodies of local self-government in
Moscow would include a municipal assembly (муниципальное
собрание)
as the representative body and a municipality (муниципалитет)
as the executive body. Pursuant to transitional provisions of the law
(section 43 § 2), heads of district councils who had been
appointed or elected to their position before the law was adopted
were to remain in power until the appropriate body had been formed,
and its officials appointed or elected, in accordance with the law.
- On
29 May 2003 the municipal assembly of the Presnenskiy district passed
a decision to rename the district council of the Presnenskiy district
of Moscow as the municipality “Presnenskiy”
(муниципальное
учреждение
– муниципалитет
«Пресненский»).
On the same day the assembly adopted the regulation on the
municipality “Presnenskiy” and appointed Mr Klubkov as
its director.
- On
16 June 2003 the director of the municipality “Presnenskiy”
ordered the dismissal of the first applicant on the ground that he
had not been re-elected to his position.
2. Mr Krasnov's bid for election
- On
24 September 2003 the first applicant submitted his self-nomination
application, for the elections to the State Duma, to the District
Election Commission (DEC) of central single-mandate constituency no.
202 (in Moscow). He indicated that he was employed as “the head
of the district council of the Presnenskiy district of Moscow”.
- On
9 October 2003 the District Election Commission registered the first
applicant as a candidate for election.
- On
31 October 2003 the District Election Commission examined materials
concerning verification of the information submitted by the first
applicant and decided to apply to the Moscow City Court with a
request for the annulment of its own decision of 9 October 2003 in
the light of newly discovered circumstances.
- On
6 November 2003 the Moscow City Court granted the Commission's
request and annulled the first applicant's registration as a
candidate for the Duma elections. It established that the first
applicant had submitted untrue information about his employment as
head of the district council of the Presnenskiy district of Moscow.
- On 21 November 2003 the Supreme Court of the Russian
Federation dismissed the first applicant's appeal against the
judgment of 6 November 2003, finding as follows:
“The [first-instance] court correctly applied the
substantive law... [I]t determined that, once it had been established
that the information submitted by a candidate about himself,
including the place of his employment, was untrue and if such
circumstance became known after the registration, a court... could
annul the decision on registration.
Having examined the evidence obtained by the District
Election Commission after the registration of Mr Krasnov, the court
established that on 28 August 2001 Mr Krasnov had been elected
as head of the Presnenskiy district council and that on the basis of
a decision... of 29 May 2003... the district council was renamed as
the municipality 'Presnenskiy' and Mr [Klubkov?] was appointed its
director, whereas Mr Krasnov was dismissed... because he had not
been re-elected... It follows that at the time of self-nomination Mr
Krasnov was not the head of the district council of the Presnenskiy
district of Moscow.
The arguments in the appeal to the effect that the
re-organisation of the district council had been carried out in
flagrant breach of the law and that Mr Krasnov's dismissal had been
unlawful cannot be the grounds for quashing of the judgment and
declaring Mr Krasnov's registration valid, as the examination of
these issues falls outside the scope of the present proceedings.
Neither the re-organisation of the district council nor Mr Krasnov's
dismissal were... appealed against or annulled.
Mr Krasnov's argument that his continued employment as
head of the district council is confirmed by the entry in his
employment record, has been examined and rejected by the court. It
follows from the case-file that on 23 June 2003 a letter was sent to
Mr Krasnov's address whereby he was invited to take cognisance of the
dismissal order. The claimant did not make use of his procedural
right to prove the circumstances on which his claims were based...
For instance, he did not produce a certificate from the human
resources department about his position at the moment of
self-nomination or any orders (regulations) that he may have adopted
after June 2003 as head of the district council, or any other proof
of his employment in that period.”
B. The second applicant, Mr Skuratov
1. Elections in a single-mandate constituency
- On 20 October 2003 the second applicant submitted the
documents concerning his nomination by the Communist Party of the
Russian Federation (“CPRF”) for the elections to the
State Duma, to the District Election Commission of the Buryatskiy
single-mandate constituency no. 9. According to the
acknowledgement-of-receipt coupon signed by the secretary of the
Commission, the second applicant enclosed an application form, copies
of his passport, diplomas and employment record (see paragraph 33
below), tax and property declarations and a copy of a certificate
attesting to the membership status of the Communist Party's
candidates for election to the State Duma, signed by the Chairman of
the Central Committee of the Communist Party and addressed to the
Central Election Commission (CEC) (see paragraph 34 below).
- On 27 October 2003 the District Election Commission
refused registration of the second applicant, invoking the following
three grounds:
“In the application written by the candidate
Skuratov himself, his position is indicated as 'acting head of the
department of constitutional, administrative and international law of
the Moscow State Social University'. However, according to the
entries in the candidate's employment record, his appointment as
acting head of the department... occurred at the same time as his
transfer to the position of a professor of the same department... In
fact, Mr Skuratov simultaneously performs the duties of acting head
of the department and those of a professor of [that] department,
which does not correspond to the information that he provided about
his employment.
Having indicated his membership of the Communist Party
of the Russian Federation, the candidate... did not provide a
document showing his membership of the CPRF and his status within the
party addressed to the District Election Commission and endorsed by
the standing management of the party. Instead he submitted a copy of
a certificate concerning membership of candidates for the State Duma
elections and their status within the party addressed to the Central
Election Commission...”
- The third ground for the refusal was that the copies
of the second applicant's diplomas had been certified by a
non-governmental organisation rather than by the competent authority.
- On
29 October 2003 the second applicant complained to the Central
Election Commission.
- On
4 November 2003 the Central Election Commission determined that the
District Election Commission had no solid grounds to consider that
the second applicant had submitted untrue information. The CEC
requested the District Commission to reconsider the second
applicant's registration immediately.
- On 11 November 2003 the District Election Commission
issued a new decision refusing the second applicant's registration.
It modified the first two grounds for refusal and added a new one. As
to the second applicant's employment, it stated that, according to a
certificate of 29 October 2003 signed by the pro-rector of the
Moscow State Social University and enclosed with the second
applicant's complaint to the CEC, Mr Skuratov was a professor in the
department. Since a copy of that certificate had not been made
available to the District Election Commission, the second applicant
was considered to be in breach of electoral law in that he had failed
to inform it of a change in his employment. As to the second
applicant's membership in the CPRF, the Commission noted that he had
been in possession of an appropriate document and had enclosed it
with his complaint to the CEC, but he had only done so on 29 October
2003, that is after the expiry of the registration period on
22 October 2003. As a new ground for refusal, the Commission
found that the second applicant had printed certain campaign
materials which had not been paid for from his election fund.
- The
second applicant complained once again to the Central Election
Commission. On 20 November 2003 it rejected his complaint. It
determined that the second applicant had omitted to state that he had
also been professor in the university and that a document showing his
membership in the CPRF had been incorrectly addressed.
- The second applicant contested these decisions before
a court. On 25 November 2003 the Supreme Court of the Buryatiya
Republic dismissed his claim, upholding the first two grounds for
refusal relied upon by the District Election Commission. It found
that the second applicant had failed to inform that Commission of his
appointment to the position of professor and to submit an appropriate
document confirming his party membership.
- On 29 November 2003 the Supreme Court of the Russian
Federation upheld, on the second applicant's appeal, the judgment of
25 November 2003. It found as follows:
“It has been established that in the application
form... of 2 October 2003 the candidate... Skuratov indicated his
position as acting head of the department... However, it transpires
from a copy of Skuratov's employment record... that he was appointed
acting head of the department... by the order... of 30 May 2003.
Pursuant to the order... of 28 May 2001 Skuratov had been elected for
three years as a professor of the department of constitutional law...
and, by an order... of 30 May 2003, he was transferred to the
position of professor of the department of constitutional,
administrative and international law. Skuratov failed to submit
information... concerning his transfer to the position of professor
of the department of constitutional, administrative and international
law.
The court cannot agree with his argument that he had no
intention of misleading the election commission... because he did not
see any substantial discrepancy in the information submitted. The
[first-instance] court correctly determined that he should have
indicated, as his current position, that of professor... Because it
is precisely that position which defines, in the spirit of the labour
law, the substance of the employment contract between [Skuratov] and
the educational institution, which corresponds to its organisation
chart and which determines the nature of his professional duties...
At the same time, the fact of acting in another position may only be
of a temporary nature, that is until the person has been approved in
that position or has been reassigned to his old one...
The Supreme Court also considers that, as the right of a
candidate to indicate his party membership and status in his
application form carries a corresponding obligation to submit a
document confirming that information... officially certified by the
standing governing body of the political party, such document cannot
be replaced by the list of that party's candidates in single-mandate
constituencies signed and sealed by the Chairman of the party's
central committee and addressed to the Central Election Commission...
Pursuant to section 47 § 8(3) of the Elections Act,
a failure to submit documents required for registration of a
candidate under that law is a ground to refuse registration of that
candidate...”
2. Exclusion from the Party's federal roll
- On
6 September 2003 the Communist Party of the Russian Federation
submitted its federal roll of candidates to the State Duma elections.
On 13 October 2003 the roll was registered by the Central
Election Commission. The second applicant was candidate no. 5 in the
Urals regional group.
- On
25 November 2003 Mr K., Chairman of the general council of the
electoral bloc “Russian Pensioners' Party and Party of Social
Justice”, made an application to the Supreme Court of the
Russian Federation, seeking exclusion of the second applicant from
the federal roll of the Communist Party. Referring to the decisions
of the District Election Commission of the Buryatskiy district, he
claimed that the submission of untrue information by the second
applicant had infringed the rights of other political parties and
electoral blocs standing in the elections, including his bloc.
- In
its observations of 28 November 2003, the Central Election Commission
objected to the granting of the application. In its view, the
claimants had failed to show how the registration of the second
applicant had impaired their rights. It submitted that at the time of
registration of the federal roll, the CEC had had no doubts as to the
accuracy and authenticity of the information submitted by the CPRF
about its nominees and that the circumstances invoked by the
claimants could not be a ground for curtailing the second applicant's
right to stand for election.
- On
28 November 2003 the Supreme Court of the Russian Federation granted
the application by Mr K., finding that the personal information
submitted by the second applicant had been untrue because the
position of “acting head of a department” was not among
those listed in the Russian Labour Code and in the Graduate and
Post-graduate Professional Education Act. Both the second applicant
and the CPRF appealed.
- On
4 December 2003 the Appeals Division of the Supreme Court upheld the
judgment of 28 November 2003, relying on the following reasons:
“Having indicated in his application form... that
his position was acting head of the department... while he
permanently held the position of professor in that department, Mr
Skuratov thereby submitted inaccurate personal information, which was
the ground... to annul his registration... [T]he first-instance court
was also justified in referring to the fact that neither the Labour
Code nor the Graduate and Post-graduate Professional Education Act
provided that the office of acting head of a department was a
permanent one...
As the Supreme Court correctly determined in its
judgment, the right to apply to a court with an application for
annulment of a candidate's registration... is vested... in political
parties and electoral blocs... (section 95 § 6 of the Elections
Act, Article 260 § 1 of the Code of Civil Procedure). As to the
specific electoral rights and interests of the claimant (who had also
submitted and registered a federal roll of candidates to the State
Duma), in the instant case they are affected by the inclusion of the
candidate Skuratov in the federal roll of candidates of the CPRF
because that candidate had not complied with the formal requirements
that applied in an equal measure to all candidates, political parties
and electoral blocs and made possible the exercise of the right to
stand for election. Such interests of the claimant are envisaged in
sections 1 and 3 of the Elections Act, according to which members
of the State Duma of the Russian Federation are elected by
citizens of the Russian Federation in general, equal and
direct elections; political parties and electoral blocs stand for
election to the State Duma members on equal grounds in
accordance with the procedure established by the present federal
law...” (original emphasis)
3. Documents submitted by the second applicant
- The
second applicant submitted a copy of his employment record (трудовая
книжка)
and a copy of the Communist Party's certificate.
- The relevant entries in his employment record read as
follows:
“28. 24/10/1995. Started fulfilling
duties of Prosecutor General of the Russian Federation...
29. 20/04/2000. Discharged from
the prosecution bodies of his own initiative...
...
34. 31/12/2002. Appointed acting head of the
department of constitutional and administrative law, order no. 3832-l
of 31 December 2002.
35. 01/01/2003. Transferred to the position
of professor of constitutional and administrative law, order no.
856-l of 17 April 2003.
36. 30/05/2003. Transferred to the
position of professor of constitutional, administrative and
international law, order no. 1171a-l of 30 May 2003.
37. 30/05/2003. Dismissed from the
position of professor of constitutional and administrative law, order
no. 1190a-l of 30 May 2003.
38. 01/06/2003. Appointed acting
head of the department of constitutional, administrative and
international law, order no. 1169a-l of 30 May 2003.”
- The relevant parts of the certificate printed on the
letterhead of the Communist Party of the Russian Federation read as
follows:
“To the Central Election Commission of the Russian
Federation:
Certificate concerning membership of candidates to the
State Duma... standing for election in single-mandate
constituencies... in the political party 'Communist Party of the
Russian Federation' and their status in the party.
...
9. Buryatiya Republic, district no. 9 –
Skuratov Yuriy Ilyich – CPRF member.
...
Chairman of the [Central Committee] of the CPRF
[signature, seal] G. Zyuganov”
II. RELEVANT DOMESTIC LAW
- The Election Act (Federal Law “On election of
members of the State Duma of the Federal Assembly of the Russian
Federation”, no.175-FZ of 20 December 2002, as amended on
23 June 2003) provides as follows:
Pursuant
to section 47 § 8 (6), a candidate may not be registered if he
or she submitted untrue information in his or her application form.
According to section 38 § 7 (1), the application form of a
candidate who nominated himself or herself for the elections must
indicate, in particular, his or her “education, principal place
of work or service and the position held (if he has no principal
place of work or service – profession)”. The same
information is required from candidates nominated to federal rolls by
political parties (section 41 § 4 (1)) who may, in addition and
without being obliged to do so, indicate their membership and status
in a political party on the condition that they submit a document
confirming such information and officially certified by the standing
governing body of that party. The same requirements apply to the
candidates nominated by political parties for election in
single-mandate constituencies (section 41 § 12).
III. OSCE ELECTION OBSERVATION MISSION REPORT
- On 27 January 2004 the OSCE Office for Democratic
Institutions and Human Rights released the final Election Observation
Mission Report concerning the elections to the State Duma held on 7
December 2003. The relevant extracts read as follows:
“There were relatively few complaints concerning
registration of parties and candidates, and the CEC adjudicated most
of these in a fair and open manner. However in a number of instances,
courts and lower level election commissions disqualified candidates
in a selective manner for trivial violations...
In a ruling which suggested an inconsistent and
selective application of the registration rules, former Procurator
General Yuriy Skuratov (DEC 9) was refused registration on the basis
that he had failed to mention in his nomination papers that he had a
second job of a professor at Moscow State Social University and had
also failed to provide timely confirmation of his membership of the
[Communist Party]. The DEC's decision was initially revoked by the
CEC. However, when the matter was remitted to the DEC, it again
refused to register Mr Skuratov, on the same grounds. On a second
appeal to the CEC, Mr Skuratov's complaint was rejected on the
grounds that the DEC had provided clearer reasons for its decision.
Mr Skuratov's subsequent appeal to the Supreme Court was also
rejected.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL NO. 1
- The
applicants complained that the decisions of the domestic authorities
preventing them from standing in the elections to the State Duma had
violated Article 3 of Protocol No. 1, which 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.”
- The
Government submitted that the Russian law required all candidates to
submit accurate information about themselves in a timely fashion. The
principle, according to which all candidates were afforded the same
amount of time for submission of the documents, served to reinforce
equality between candidates. Furthermore, the required truthfulness
of information about the candidate enabled voters to make an informed
choice on the basis of complete and accurate information published in
the electoral bulletin. These requirements were proportionate
restrictions on the right to stand for election and they were
necessary in a democratic society to ensure the free expression of
voters. The legitimacy of election is reinforced by sanction for
breaches of electoral law, such as refusal or cancellation of a
candidate's registration. In the cases of both applicants, their
disqualification had not violated their right to stand for election
because it had been the result of their own failure to comply with
electoral law.
A. General principles regarding the right to stand for
election
- Article
3 of Protocol No. 1 enshrines a fundamental principle for effective
political democracy, and is accordingly of prime importance in the
Convention system (see Mathieu-Mohin and Clerfayt v. Belgium,
judgment of 2 March 1987, Series A no. 113, p. 22, § 47).
- The
Court reiterates that implicit in Article 3 of Protocol No. 1 are the
subjective rights to vote and to stand for election. Although those
rights are important, they are not absolute. In their internal legal
orders the Contracting States make the rights to vote and to stand
for election subject to conditions which are not in principle
precluded under Article 3. They have a wide margin of appreciation in
this sphere, but it is for the Court to determine in the last resort
whether the requirements of Protocol No. 1 have been complied with.
It has to satisfy itself that the conditions do not curtail the
rights in question to such an extent as to impair their very essence
and deprive them of their effectiveness; that they are imposed in
pursuit of a legitimate aim; and that the means employed are not
disproportionate (see Sadak and Others (no. 2) v. Turkey,
nos. 25144/94 et al., § 31, ECHR 2002 IV).
- More particularly, States enjoy considerable latitude
to establish in their constitutional order rules governing the status
of parliamentarians, including criteria for disqualification. Though
originating from a common concern – to ensure the independence
of members of parliament, but also the electorate's freedom of choice
– the criteria vary according to the historical and political
factors peculiar to each State. The number of situations provided for
in the Constitutions and electoral legislation of many member States
of the Council of Europe shows the diversity of possible choice on
the subject. None of these criteria should, however, be considered
more valid than any other provided that it guarantees the expression
of the will of the people through free, fair and regular elections
(see Podkolzina v. Latvia, no. 46726/99, § 33,
ECHR 2002 II, and Gitonas and Others v. Greece,
judgment of 1 July 1997, Reports 1997 IV, pp.
1233-34, § 39).
- The
Court further reiterates that the object and purpose of the
Convention, which is an instrument for the protection of human
rights, requires its provisions to be interpreted and applied in such
a way as to make their stipulations not theoretical or illusory but
practical and effective (see United Communist Party of Turkey and
Others, cited above, pp. 18-19, § 33). The right to stand as
a candidate in an election, which is guaranteed by Article 3 of
Protocol No. 1 and is inherent in the concept of a truly democratic
regime, would only be illusory if one could be arbitrarily deprived
of it at any moment. Consequently, while it is true that States have
a wide margin of appreciation when establishing eligibility
conditions in the abstract, the principle that rights must be
effective requires the finding that this or that candidate has failed
to satisfy them to comply with a number of criteria framed to prevent
arbitrary decisions (see Russian Conservative Party of
Entrepreneurs and Others v. Russia, nos. 55066/00 and
55638/00, § 50, 11 January 2007; Podkolzina, cited
above, § 35; and Melnychenko v. Ukraine, no.
17707/02, § 59, ECHR 2004 X).
B. Application of the above principles to the present
case
- Turning
to the present case, the Court notes that both applicants applied for
registration to stand as candidates in the general elections to the
lower chamber of Parliament. Mr Krasnov filed his application in
Moscow and Mr Skuratov in the Buryatiya Republic. Following a round
of domestic proceedings, their applications for registration were
turned down on the ground that they had submitted untrue information
about their employment and that Mr Skuratov, in addition, had failed
to confirm his party membership. Neither applicant took part in the
election. Accordingly, the Court has to examine whether the decisions
to disqualify the applicants from standing in the elections pursued a
legitimate aim and whether it was proportionate to that legitimate
aim, having regard to the State's margin of appreciation.
- As
regards the legitimate aim, the Court reiterates that each State has
a legitimate interest in ensuring the normal functioning of its own
institutional system. That applies all the more to the national
parliament, which is vested with legislative power and plays a
primordial role in a democratic State (see Podkolzina, cited
above, § 33). The Court considers that the requirement to submit
information on the candidate's employment and party membership serves
to enable voters to make an informed choice with regard to the
candidate's professional and political background. The introduction
of such a requirement does not appear arbitrary or unreasonable. It
is also incontestably legitimate to ask the candidates that the
information so submitted be accurate to the best of their knowledge,
lest the voters be misled by false representations. Accordingly, the
Court concludes that requiring a candidate for election to the
national parliament to submit truthful information on their
employment and party affiliation is a legitimate aim for the purposes
of Article 3 of Protocol No. 1.
- The
Court will now turn to an individual analysis of the proportionality
of the disqualification imposed on each of the applicants to the
legitimate aim it pursued.
1. Proportionality of disqualification of the first
applicant, Mr Krasnov
(a) Arguments by the parties
- The
first applicant claimed that his disqualification had not been
founded on relevant grounds and had been, in any event,
disproportionate. He had not submitted any information capable of
misleading the voters. He had acted in good faith by indicating the
position he had previously held in a subsequently re-organised body.
His mandate had not yet expired and his discharge had not been
properly notified to him. In the first applicant's view, the final
choice of candidates should have been left not to the election
commission but rather to voters who would be adequately protected
from undue influence by being given thorough access to the
information on candidates.
- The
Government pointed out that Mr Krasnov had misled the electoral
commission as to his place of work by declaring that he had been head
of the Presnenskiy district council, whereas he had been dismissed
from that position on 16 June 2003. In these circumstances, the
electoral commission's decision to cancel his registration had been
lawful and justified.
(b) The Court's assessment
- The
Court observes that when submitting his nomination form in September
2003, Mr Krasnov indicated that he was the head of the district
council. However, by that time the district council had legally
ceased to exist after being re-organised into a municipality with
another person being appointed its director. It follows that at the
time of the first applicant's self-nomination the position he claimed
to hold no longer existed.
- The
Court is not convinced by the first applicant's claim that he had
erred in good faith about his employment status. It is hardly
conceivable that he should have been unaware of the re-organisation
of the body of which he had once been in charge or of the appointment
of another person as its director. Even assuming that the decision on
his discharge of 16 June 2003 had not been formally notified to him
as he claimed, there is no evidence whatsoever – as pointed out
by the Supreme Court (see paragraph 17 above) – that he had
continued to fulfil his duties after that date. It is also relevant
that the decision on Mr Krasnov's discharge was not contested in any
on-going judicial proceedings which – had they been issued –
could have furnished him with an expectation of being re-instated.
The Court finds that the first applicant knowingly submitted untrue
information on his employment.
- The
first applicant nominated himself as a candidate in a single-mandate
constituency located within the Presnenskiy District of Moscow. The
Court considers that the information whether or not he remained the
head of the Presnenskiy district council was not a matter of
indifference for the voters, all of whom were local residents. By
withholding information on his discharge, Mr Krasnov cloaked himself
in the authority associated in the voters' eyes with a position he no
longer held. The Court accepts that the submission of untrue
information about the first applicant's employment could have
adversely affected their ability to make an informed choice.
- As
Mr Krasnov had deliberately submitted substantially untrue
information capable of misleading the voters, the Court finds that
the decision as to his ineligibility was not disproportionate to the
legitimate aim pursued. There has therefore been no violation of
Article 3 of Protocol No. 1 in respect of the first applicant Mr
Krasnov.
2. Proportionality of disqualification of the second
applicant, Mr Skuratov
(a) Arguments by the parties
- The
second applicant stressed that he had submitted all the required
documents, including those concerning his employment and Communist
Party membership, within the time period laid down in the domestic
law, as attested by the acknowledgment of receipt of 20 October
2003. From that date on, the electoral bodies had continuously been
in possession of all requisite documents. The only purpose of his
enclosing an additional employment certificate from Moscow State
Social University with the complaint of 27 October 2003 had been to
show that no change in his employment had occurred in the intervening
period. The law required him to indicate his principal place of
employment or service, which he had done by mentioning that he was
the acting head of the constitutional law department. That was his
main place of work, according to the employment record. The law did
not require him to indicate all the positions held at the material
time. Besides, it was quite usual and clear to everyone that the head
of a university department also taught in that department as a
professor.
- The
second applicant further submitted that the means chosen by the
national authorities had been disproportionate to whatever legitimate
aim had been pursued. The Government did not explain why the
reference to his main place of work had misled the electorate to such
an extent that his disqualification, the most severe electoral
sanction, should have been applied. He considered that that measure
had been political retribution for his earlier attempts to
investigate, as Prosecutor General, the actions of President Yeltsin
and his team.
- The
Government maintained that Mr Skuratov's registration in the
single-mandate constituency had been refused owing to his failure to
submit the required documents in a timely fashion. If his belated
submission had been accepted, it would have violated the principle of
equality of candidates. As to his exclusion from the federal roll of
the Communist Party, the Supreme Court had assessed the evidence
before it and determined that he had submitted untrue information
about himself. Mr Skuratov had omitted to mention that, in
addition to being the acting head of the department of constitutional
law, he had also been a professor in that department.
(b) The Court's assessment
- The
Court observes at the outset that the grounds invoked by the domestic
authorities for determination of Mr Skuratov's ineligibility were not
consistent throughout the proceedings. Thus, following a second
review of the same set of documents, the District Election Commission
abandoned one of the original grounds for his disqualification
(incorrect certification of diplomas, see paragraph 20 above) and
substituted a new one, namely that certain campaign materials had not
been paid for from the candidate's fund (see paragraph 23 above).
That latter ground was not subsequently upheld by the court (see
paragraph 25 above).
- Furthermore,
in so far as the Government claimed that the second applicant's
disqualification could be explained by the belated submission of
documents, the Court observes that that ground had never been relied
upon in the proceedings before the domestic courts. Moreover, the
Government's contention is rebutted by documentary evidence, namely
the acknowledgment-of-receipt coupon issued to the second applicant
on 20 October 2003 – the final date for submission of
documents having been fixed for 22 October 2003 – which listed,
among others, his employment record and certificate of Communist
Party membership (see paragraph 18 above).
- In
these circumstances, the Court will confine its analysis to the
grounds that were ultimately endorsed in the judicial decisions
upholding the second applicant's disqualification (see paragraphs 25
and 26 above), namely the allegedly untrue information about his
employment and party membership.
- On
the facts, the Court observes that the second applicant submitted to
the District Election Commission that he was employed as acting head
of the constitutional-law department. The most recent entry in his
employment record (no. 38), a copy of which he also produced to the
election commission, confirmed that he had been appointed to that
post on 1 June 2003. A previous entry (no. 36) also recorded his
transfer to the position of professor in that department (see
paragraph 33 above).
- Although
it has never been disputed that the second applicant was indeed the
head of the constitutional-law department, the domestic authorities
gave conflicting reasons as to why they believed that the information
about his employment was untrue. The first decision by the District
Election Commission referred to Mr Skuratov's failure to indicate
that he had simultaneously performed the duties of the
professor. The second decision by the same commission found fault in
his omission to inform the commission of a change in his
employment. The first-instance court held that Mr Skuratov should
have mentioned his transfer to the position of professor.
Finally, the appeal court advanced a new explanation: in its view,
the post of acting head was of a temporary nature whereas the
second applicant should have listed his permanent position,
that of professor.
- The
Court notes with concern that, not only were the findings of the
domestic authorities inconsistent inter se, they were also not
founded on any legal provision or case-law interpreting the
requirements of the Election Act as regards the indication of the
workplace. The District Election Commission and the first-instance
court did not cite any legal authority in support of their
construction of that requirement, whereas the Supreme Court of the
Russian Federation vaguely referred to the “spirit of the
labour law”. In this connection the Court observes that neither
the obligation to list transfers and changes in employment, nor the
duty to distinguish between permanent and temporary posts can be
derived from a literal reading of the Election Act, which only
required an indication of “the principal place of work”
if the candidate had one (see paragraph 35 above). The lack of a
clear legal basis for the domestic authorities' decisions calls for
the conclusion by the Court that they did not meet the Convention
standard of “lawfulness” and foreseeability of the
impugned measure, a standard which requires that all law be
sufficiently precise to allow the person – if need be, with
appropriate advice – to foresee the consequences which a given
action may entail (see, among other authorities, Rekvényi
v. Hungary [GC], no. 25390/94, § 34, ECHR
1999 III).
- It
is relevant in this context that, by contrast with the situation
obtaining in the case of the first applicant, nothing suggests that
Mr Skuratov acted in bad faith. The place of work he listed in
his nomination form matched the most recent entry in his employment
record (no. 38) and he could reasonably have believed that he had to
list the most recent and senior position he held. In these
circumstances, it was the domestic authorities' task to elucidate the
applicable legal requirements and thus give the second applicant
clear notice how to prepare the documents (see, mutatis mutandis,
The Moscow Branch of the Salvation Army v. Russia,
no. 72881/01, § 90, ECHR 2006 ..., and Tsonev
v. Bulgaria, no. 45963/99, § 55, 13 April 2006). This had
not, however, been done. On the contrary, in the view of independent
observers of the election, the ruling on Mr Skuratov's application
“suggested an inconsistent and selective application of the
registration rules” (see paragraph 36 above).
- Finally,
as regards the second applicant's employment situation, the Court
considers that it could not be seriously maintained that the
difference between the positions of professor and acting head of the
same department was capable of misleading the voters. In any event,
the second applicant was a well-known public figure because of his
past employment as the Prosecutor General of the Russian Federation
(see paragraph 33 above), and his current academic position must have
been of lesser relevance.
- As
regards the submission by the second applicant of allegedly incorrect
information on his party membership, the Court observes that his
membership of the Communist Party was never disputed or called into
question. The domestic authorities' decisions were based solely on
the form of the membership certificate and more specifically on the
fact that it had been addressed to the Central Election Commission
rather than to the District Election Commission as they claimed it
should have been (see paragraphs 19, 26 and 34 above).
- The
Court notes that the Election Act, read literally, did not require
any specific form of party membership confirmation and that the
election commissions and the courts did not refer to any other legal
provision establishing a requirement to address that confirmation to
the District Election Commission. In their submissions to the Court
the respondent Government did not point to any such provision either.
The Court finds, as it already has above, that the interpretation
adopted by the domestic authorities did not meet the Convention
standard of “lawfulness” and foreseeability, in that
there was no clear legal guidance allowing the second applicant to
foresee that the submission of a membership certificate addressed to
the Central Election Commission would entail a decision on his
ineligibility.
- In
any event, the Court reiterates that what is relevant for its
assessment is the existence of a reasonable relationship of
proportionality between the measures employed by the domestic
authorities and the legitimate aim sought to be achieved (see Leyla
Şahin v. Turkey [GC], no. 44774/98, § 117,
ECHR 2005 ...). As the Court has found above, the legitimate aim
was to avoid the situation where voters would have been misled by
false representations by candidates. However, it has never been
claimed that the second applicant was not a member of the
Communist Party. In these circumstances, the Court cannot accept that
the decision on Mr Skuratov's ineligibility, in so far as it was
founded solely on the allegedly defective form of the membership
certificate, which however was genuine in substance, was indeed taken
with the aim of preventing voters from forming a misconception of the
second applicant's political leaning. It follows that a reasonable
relationship of proportionality between that measure and the
legitimate aim was lacking.
- Having
regard to the above considerations, the Court finds that the domestic
authorities' decision on the second applicant's ineligibility
grounded on his alleged failure to submit accurate information on his
employment and party membership was not based on relevant and
sufficient reasons and did not accord with the undisputed facts. It
was therefore disproportionate to the legitimate aim pursued. The
Court's finding is applicable both to Mr Skuratov's disqualification
in the single-mandate constituency and to his exclusion from the
party-roll election because the grounds relied upon in the second set
of proceedings repeated those from the first.
- There
has therefore been a violation of Article 3 of Protocol No. 1 in
respect of the second applicant, Mr Skuratov.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
- The
second applicant also complained under Article 14 of the Convention
that he had been the only one of the 163 candidates nominated by the
Communist Party to have been denied registration for a failure to
confirm his party membership, although all the candidates had
submitted identical party certificates signed by the party Chairman
and addressed to the Central Election Commission. Article 14 reads as
follows:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
- The
Court reiterates that Article 14 has no independent existence, but
plays an important role by complementing the other provisions of the
Convention and the Protocols, since it protects individuals placed in
similar situations from any discrimination in the enjoyment of the
rights set forth in those other provisions. Where a substantive
Article of the Convention or its Protocols has been invoked both on
its own and together with Article 14, and a separate breach has been
found of the substantive Article, it is not generally necessary for
the Court to consider the case under Article 14 also, though the
position is otherwise if a clear inequality of treatment in the
enjoyment of the right in question is a fundamental aspect of the
case (see Chassagnou and Others v. France [GC], nos. 25088/94,
28331/95 and 28443/95, § 89, ECHR 1999 III, and Dudgeon
v. the United Kingdom, judgment of 22 October 1981, Series A no.
45, § 67).
- In
the circumstances of the present case the Court considers that the
inequality of treatment, of which the second applicant claimed to be
a victim, has been sufficiently taken into account in the above
assessment that led to the finding of a violation of Article 3 of
Protocol No. 1. It follows that there is no cause for a separate
examination of the same facts from the standpoint of Article 14 of
the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- Mr
Skuratov claimed 42,033 euros (EUR) in respect of compensation for
non-pecuniary damage. He submitted that the unlawful decisions of the
domestic authorities had greatly affected his political and
professional reputation and he undertook to use that amount for
publication of the Court's judgment in three national and three
regional newspapers.
- The
Government submitted that the Court should reject the claim because
there had been no violation of Mr Skuratov's rights.
- The
Court accepts that Mr Skuratov must have suffered frustration and
distress as a result of the domestic authorities' decisions
preventing him from standing in the election. The particular amount
claimed by Mr Skuratov is, however, excessive, irrespective of
its intended use. Making its assessment on an equitable basis, the
Court awards Mr Skuratov EUR 8,000 in respect of non-pecuniary
damage, plus any tax that may be chargeable on that amount.
B. Costs and expenses
- Mr
Skuratov claimed EUR 7,000 in respect of legal fees in the domestic
proceedings and the following expenses in the proceedings before the
Court:
40,233 Swiss francs
(CHF) for 134 hours of work by his representative Dr Eckstein
at CHF 300 per hour;
CHF 1,196.30 for 17
hours of work by an assistant lawyer;
CHF 2,024.50 and CHF
127 for translation expenses;
CHF 356.40 for
secretarial expenses; and
CHF 331.30 in postal
expenses.
- The
Government claimed that no “financial documentation” had
been enclosed with the claim for costs and expenses and that the
expenses had not been necessary and reasonable because they had
exceeded the average cost of representation and standard of living in
Russia.
- The
Court notes that Mr Skuratov did not submit any documents relating to
legal costs in the domestic proceedings and accordingly it rejects
this part of the claim. As regards the Strasbourg proceedings, Mr
Skuratov produced Dr Eckstein's invoice accompanied by a detailed
time-sheet showing, in particular, that Dr Eckstein had prepared his
initial application and two memoranda in the case and conducted
correspondence with the Court. Whereas Dr Eckstein's hourly rate
appears standard for a Swiss lawyer, the Court nevertheless considers
excessive the amount of time claimed. Having regard to the materials
in its possession, the Court awards Mr Skuratov EUR 12,000 in respect
of costs and expenses, plus any tax that may be chargeable on that
amount, and rejects the remainder of his claim.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been no violation of
Article 3 of Protocol No. 1 in respect of the first applicant Mr
Krasnov;
- Holds that there has been a violation of Article
3 of Protocol No. 1 in respect of the second applicant Mr Skuratov;
- Holds that no separate examination of the second
applicant's complaint under Article 14 of the Convention is required;
- Holds
(a) that
the respondent State is to pay the second applicant Mr Skuratov,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, the following amounts, to be converted into Russian
roubles at the rate applicable at the date of settlement:
(i) EUR
8,000 (eight thousand euros) in respect of non-pecuniary damage;
(ii) EUR
12,000 (twelve thousand euros) in respect of costs and expenses;
(iii) any
tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the second
applicant's claim for just satisfaction.
Done in English, and notified in writing on 19 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
