Постановление ЕСПЧ <Дело Давыдов и другие (Davydov and Others) против России> (жалоба N 75947/11) [англ.] Часть 2

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  1. Judicial review proceedings before the Supreme Court and the Constitutional Court

 

  1. Applications to the Supreme Court for judicial review

 

  1. On 12 December 2011 the first five applicants lodged a complaint with the Supreme Court of Russia seeking quashing of the decision of the СEC whereby the results of the elections had been officially approved. Their complaint concerned the results of the elections to the LA and to the Duma in the Kolpino district of St Petersburg (i.e., electoral divisions nos. 18 and 19). According to the first five applicants, the official results published by the CEC did not correspond to the real results (see paragraphs 18 – 34 above).
  2. In their complaint the applicants explained in what capacity they had participated in the elections. The first applicant indicated that he had stood as an SR candidate at the elections, and the other applicants that they were either members of the electoral commission, observers, or voters.
  3. The applicants explained that the results of the elections published by the City Electoral Commission on its website and then reproduced by the CEC did not correspond to the protocols they had obtained from the relevant PECs, and that the overall difference between the figures in those protocols and the final results for Kolpino was close to 8,000 votes. The applicants produced copies of the “original” protocols and print-outs of the final results from the website of the City Electoral Commission and asked for the latter results to be declared void, along with the decision of the City Electoral Commission and the decision of the CEC approving them.
  4. On 23 December 2011 a Supreme Court judge refused to consider that complaint. The judge decided that the court had no competence to examine such a complaint, since the alleged violations did not affect the rights of the voters, but may have affected the rights of the parties which had participated in the elections.
  5. The applicants appealed, but on 9 February 2012 their appeal was dismissed. The Supreme Court of Russia, sitting as a court of appeal, noted that under the Duma Elections Act, section 92(4) and (5), the quashing of a decision of the CEC whereby the results of elections were approved was possible only where the violations complained of affected the interests of the political parties participating in the elections. Section 77 of the Basic Guarantees Act contained a similar provision. The court held that the violations complained of could have affected the interests of the parties whose candidates had stood in those elections, but not the rights of the voters.

 

  1. Proceedings before the Constitutional Court

 

  1. Having obtained the Supreme Court’s decision of 9 February 2012, the same applicants brought a complaint before the Russian Constitutional Court. They complained about the interpretation given by the Supreme Court to the Code of Civil Procedure (the CCrP), the Basic Guarantees Act and the Duma Elections Act. According to the Supreme Court, those acts did not give the voters standing to complain about incorrect counting of the votes: only the political parties had that standing. In the applicants’ opinion, such an interpretation contradicted the Constitution.
  2. On 22 April 2013 the Constitutional Court delivered a judgment on the applicants’ complaint (judgment no. 8-P/2013). It held that an individual voter had a legitimate interest that his vote in support of a political party or candidate be counted correctly. Thus, the “active electoral right” was not limited to the right to cast a vote freely at the polling station; it also included the process of counting votes and obtaining a correct final result which reflected the real will of the electorate. The voter should have the right to check the validity of the counting process. In addition, the interests of the parties participating in the elections and the voters might be different. The fact that the process of casting votes was secret did not preclude voters from complaining about incorrect recording of the results, since this affected the election process as a whole and could potentially undermine the legitimacy of the elected body. Therefore, it did not matter for which party the particular voter had voted at the elections. The Constitutional Court concluded that voters should have the right to lodge complaints about the process of counting votes (point 2.1 of the judgment).
  3. As to the judicial avenue for such complaints, the Constitutional Court noted that although it was not the only legal mechanism, it existed in many European countries. Referring to PACE Resolution 1897 (2012), to the principles developed by the Venice Commission, and to the case of X v. Germany, Commission Decision of 7 May 1979, no. 8227/78, the Constitutional Court noted that the law might create certain procedural barriers to such complaints: for example, it might establish short time-limits for complaints or set a minimum number of voters needed for such complaints to be brought.
  4. The Constitutional Court concluded that judicial protection of electoral rights should be available to voters not only in connection with complaints about electoral campaigns and the process of voting, but also in respect of irregularities in the process of counting votes. At the same time, the exercise of the right to judicial protection must not disturb the stability of the functioning of elected bodies. Therefore, in order to prevent abuse of rights, only substantial violations in the process of the counting of votes could lead to a reconsideration of the results of the elections.
  5. In point 2.4 of the judgment the Constitutional Court invited the federal legislature to secure the right to judicial review of the process of counting votes and determination of the final results of elections. The Constitutional Court added that courts conducting such reviews must be capable of declaring the results of elections in a particular constituency void. The exercise of the right to obtain judicial review of vote-counting could be subject to rules and procedures established by a federal law.
  6. The Constitutional Court then examined provisions of the legislative acts referred to by the applicants (point 3.1 of the judgment). In the opinion of the Constitutional Court those acts, if interpreted in compliance with the spirit of constitutional provisions, did not prevent voters from complaining about the process and results of the counting of votes by the electoral commissions, and allowed the courts, where the violations complained of prevented the correct determination of the will of the electorate, to declare the results of the elections void. In point 3.3 of the judgment the Constitutional Court held that a regional branch of a political party participating in the elections had standing to bring a complaint about violations of electoral law at the regional level.
  7. The Constitutional Court further held that voters should not be put in a situation of uncertainty as to the scope of their right of access to court and the procedure of exercising that right. It held that the federal legislature, having proclaimed that the courts were competent to examine complaints about breaches of the electoral law, must adopt special norms to ensure that voters can exercise their right of access to court. The law must introduce rules to prevent competing political forces from abusing the right to bring judicial proceedings and from employing them as a tool for political manipulation. The rules of the CCrP and the other acts under examination by the Constitutional Court, as they were formulated at the time, implied that all participants in elections, irrespective of their status and the type and scale of the violation concerned, had equal rights to bring complaints to court about any violation of their electoral rights. However, such a lack of differentiation was prejudicial to the stability of the democratic system and created an opportunity for abuse. The procedure for judicial review of irregularities in election procedures was unified at all levels of the electoral system; however, the interest of the voter in having his vote counted accurately was stronger at the level of the precinct where he voted (as opposed to higher levels of the electoral system).
  8. In the concluding paragraphs of the judgment, the Constitutional Court noted that the courts of general jurisdiction often interpreted the CCrP and other applicable acts differently, as if those acts gave the right to bring a complaint about inaccuracies in the counting of votes only to political parties, but not to voters themselves. In part, this was due to the wording of point 20 of Supreme Court Decree no. 5 of 31 March 2011, where the Supreme Court held that the courts could not examine complaints about breaches of the electoral law where those breaches did not affect the rights of the complainant.
  9. The Constitutional Court concluded that such practices were related to the uncertainty of the underlying legislative provisions. Such practices were declared to be incompatible with the Constitution (point 4.3). The Constitutional Court ordered the federal legislature to enact a law which would define the procedure and conditions of voters’ exercise of their right to judicial review of the electoral process at the stages of vote-counting and summing up the results. In the meantime the courts of general jurisdiction were ordered to accept for examination on the merits complaints by voters concerning the counting process at the level of the electoral precincts where they had voted.

 

  1. Judicial review proceedings before the St Petersburg City Court

 

  1. The first five applicants (LA and Duma elections in the Kolpino district as a whole)

 

  1. On 12 December 2011 the first five applicants lodged a complaint with the St Petersburg City Court seeking to have overturned the decision of the City Electoral Commission of 12 December 2011 whereby the results of the elections to the LA and Duma were officially approved. This complaint was very similar to the one lodged with the Supreme Court (see section F above).
  2. On 23 December 2011 a judge of the City Court refused to consider the complaint on the substance for procedural reasons. First, the judge observed that the City Court had jurisdiction over complaints lodged against the electoral commission at city level. However, in the opinion of the judge, the applicants’ complaint was directed against the actions of the lower commissions – precinct and territorial. Consequently, the City Court had no jurisdiction to examine those claims. Second, the judge found that the applicants alleged that the officials of the electoral commissions were guilty of electoral fraud, which was a criminal act and could not be examined in civil proceedings. Third, in their complaint the applicants had not fulfilled certain formal requirements. The judge invited the applicants to amend their complaint accordingly, attach the missing documents, and resubmit it before 11 January 2012.
  3. The applicants appealed. They indicated that they had not asked the court to bring anybody to criminal liability; the only object of their complaint was to have overturned the decision of the City Electoral Commission whereby it had approved the official results of the elections published on its website on 5 December 2011. Under Article 26 of the CCrP and section 75(2) of the Basic Guarantees Act the City Court was competent to examine complaints against the City Electoral Commission.
  4. On 22 February 2012 the decision of 23 December 2011 was upheld on appeal by the Supreme Court. The Supreme Court confirmed that the City Court had no jurisdiction over the claim. The applicants claimed that they had not been informed about the decision of the Supreme Court but had learned about it from the Supreme Court’s website some time later.
  5. In parallel to this appeal, on 10 and 11 January 2012 the applicants resubmitted their complaint, having made the modifications suggested by the City Court.
  6. On 12 and 13 January 2012 the City Court refused to consider the complaint on the merits. The judge of the City Court found that the applicants were trying to contest the results of the elections in the Kolpino district, electoral divisions nos. 18 and 19 (TEC no. 21). However, under section 74(2) of the Basic Guarantees Act such complaints fell within the jurisdiction of the corresponding district courts. As to the role of the City Electoral Commission, the judge observed that its duty was to summarise data received from the lower commissions. The court reiterated that the main subject of the applicants’ complaint was the data which had emanated from the precinct and territorial commissions; therefore, the applicants had to contest the actions of those commissions before the relevant district courts, and not before the City Court.
  7. The applicants appealed. They insisted that they had not challenged the PECs’ decisions. Quite to the contrary, their case fully relied on the protocols issued by the PECs, which they had appended to their complaint. As to TEC no. 21, the applicants only knew that the TEC had received the protocols from the PECs, but not what had happened to them later and how the TEC had processed the data. The applicants had not participated in the process of calculating results at the territorial level and did not know what figures TEC no. 21 had sent to the City Commission. They had learned about the incorrect figures from the official publication of the City Commission of 5 December 2011, as approved by its decision of 12 December 2011. Consequently, it was the decision of the City Commission which they contested.
  8. In their appeal the applicants reiterated that they were simply comparing the data contained in the PEC result sheets and deemed to be correct and the “incorrect” data published by the City Commission. They did not know and could not know at what level the “correct” figures had turned into “incorrect” ones. However, the City Court was equally unable, without examining the case on the merits, to infer that the applicants’ complaint concerned allegedly unlawful actions on the part of the TEC.
  9. The applicants contended, with reference to section 26 of the Duma Elections Act, that the City Commission’s role was not limited to a mechanical summing up of the data received from the lower commissions. The City Commission had a general duty to “coordinate the operations” of the lower commissions, ensure respect for electoral rights, guarantee that a uniform procedure was applied in the calculation of votes, and so on. It was also responsible for announcing and approving the final results of the elections. Therefore, the applicants contested the decision of the City Commission, and not the individual decisions of each PEC or TEC. On the strength of the above, the applicants concluded that their complaint, as directed against the actions of the City Commission, was within the jurisdiction of the St Petersburg City Court.
  10. On 7 February 2012 the St Petersburg City Court, sitting in a three-judge formation, dismissed the appeal against the decision of 13 January 2012, repeating the findings of the lower court as to the question of jurisdiction. It confirmed that the City Commission merely summarised data received from the lower commissions. The City Court also indicated that point 39 of the Supreme Court Plenary Ruling no. 5 of 31 March 2011 provided that if a complaint about a decision approving election results referred to alleged violations on the part of the PECs, the object of the complaint was in fact the decision of the PEC, and such cases were to be examined by the relevant district courts. A similar decision was reached by the City Court on 19 March 2012 upon appeal against the decision of 12 January 2012 (see paragraph 94 above).

 

  1. The sixth applicant (LA elections in precinct no. 637)

 

  1. The sixth applicant (Mr Belyakov) lodged a complaint with the St Petersburg City Court against the decision of the City Electoral Commission approving the final results of the voting. His complaint was similar to those of the first five applicants, but concerned only electoral precinct no. 637 and only the elections to the LA. He brought his complaint in the capacity of an individual voter in that precinct. The applicant claimed that according to the copy of the protocol he had received from a voting member of the electoral commission, the KPRF and Yabloko had received 200 and 128 votes respectively; however, according to the official results those parties had received only 14 and four votes. By contrast, the results of ER grew from 380 to 804 (see paragraph 35 above). The applicant did not vote for either ER or SR. He believed that as a result of the falsification his vote had been effectively “stolen”, and given to a party which had benefitted from the falsification. He asked the City Court to overturn the decision of the City Electoral Commission in the part concerning the precinct in question.
  2. The applicant produced a copy of the protocol issued by PEC no. 637. This copy bore the official stamp of the PEC; it was signed by the head of the commission and eight members thereof. The document specified that there had been no incidents during the voting and that no complaints about the voting process had been received.
  3. In addition, the applicant submitted a copy of the protocol issued by TEC no. 21, and a print-out of a screenshot of the webpage of the City Electoral Commission. The City Electoral Commission was indicated in the text of the complaint as “the interested party”.
  4. On 25 January 2012 a judge of the St Petersburg City Court ruled that it was impossible to consider the applicant’s complaint without additional clarifications and documents. He noted that the applicant challenged actions of the City Electoral Commission which were not decisions, records of results, or similar. Therefore, the judge invited the applicant to specify to which action of the City Electoral Commission his challenge applied. The applicant was also invited to identify the decision of the City Electoral Commission approving the results in precinct no. 637, and to submit a copy of that decision “with another copy for the interested party”. The applicant was invited to explain what specific breach of the electoral legislation he was contesting and who was responsible for that breach, and to specify in what respect the City Electoral Commission had not acted in accordance with the law.
  5. On 3 February the sixth applicant, having provided additional material to supplement his complaint, resubmitted it to the City Court.
  6. On 9 February 2012 a judge of the City Court refused to consider the complaint on the merits, finding that the applicant had failed to submit the clarifications and additional documents requested on 25 January 2012. He ruled as follows:

“[In accordance with the law] the protocol issued by the PEC in respect of [a particular] polling station has to be drawn up in two original copies;… the PEC sends copy no. 1… to the Territorial Commission, which then forwards it to the St Petersburg City Commission.

The photocopy of the protocol from precinct no. 637 submitted by the claimant did not indicate which original copy [had served to make the photocopy]; thus, there are no grounds to believe that the interested party [the City Commission] has a copy of that document.

While the claimant’s complaint is based on the argument that the [official] results of the voting in precinct no. 637 are different from those which are reflected in the protocols of PEC no. 637, and while the claimant relied on that item of evidence and produced it to the court, he was required [by law]… to submit, for the [use of the] interested party, a second copy of the document he had at his disposal”.

  1. The applicant appealed. He argued that he had submitted a copy of the protocol to the court. He had received that copy from a member of the PEC, who had obtained it after the counting of votes was over. The City Electoral Commission (the interested party) had the original PEC protocol, so it was absurd to require him to submit anything more than he had already submitted to the court.
  2. On 5 March 2012 the St Petersburg City Court, on appeal, upheld the decision of 9 February 2012. It noted that the copy which the applicant had submitted did not indicate whether it was a copy of the original document, no. 1 or 2. As can be understood from the appeal decision, the applicant should have submitted to the district court a copy made from the original document, either no. 1 or no. 2, so that that copy could be transmitted to “the interested party” (that is, the City Electoral Commission) and that without such a document the applicant’s complaint could not be examined.
  3. The Government specified in their memorandum of 14 October 2014 that copy no. 1 of the original document drawn up by the PEC contained a number of annexes, such as separate opinions of the commission’s members and complaints received during the voting. This copy was transferred to the relevant TEC. Copy no. 2 was kept at the precinct office and made available to the public; following this it too was transferred to the territorial commission. No copies of this document were forwarded to the City Electoral Commission, since the TECs summarised for it the information received from the relevant precinct commissions; therefore the City Electoral Commission had no copies of the original protocols from the precincts.

 

  1. Complaint lodged by the St Petersburg branch of SR (LA elections in St Petersburg City as a whole)

 

  1. On 19 December 2011 the St Petersburg branch of SR lodged a complaint with the St Petersburg City Court. The complaint concerned several electoral divisions, in particular nos. 15, 17, 22 and 33. The party complained, in particular, about the difference between the official results and the results contained in the copies of the documents received by the observers and members of the PECs in those divisions. They also indicated that the City Electoral Commission had failed to examine properly eighteen complaints lodged by SR and eighty-seven complaints lodged by others.
  2. On 27 February 2012 the St Petersburg City Court dismissed the complaint. It found that all the administrative complaints to the City Electoral Commission had been properly discussed and addressed. The City Court further found that the City Commission’s decision approving the results of the elections had been adopted unanimously and in accordance with the procedure set out by the law. An employee of the City Commission had informed the complainants about the time and the date of the meeting of the Commission, so they had been given the chance to attend. Some of those attending the meeting had been affiliated to SR. Section 30(1) of the Basic Guarantees Act did not require that every person on the list established in that provision be notified. The Commission had an obligation to notify them “within the bounds of feasibility” (“в пределах возможностей”). Some representatives of SR had been informed about the meeting and could have passed that information on to others. In fact, information about the meeting of 12 December 2012 had not been published in the media or on the “Vybory” (“Elections”) database, but this was immaterial. The City Court concluded that the City Electoral Commission had not committed any breach of law which would affect the results of the election.
  3. The SR appealed. On 23 May 2012 the Supreme Court upheld the City Court’s judgment. In addition to the City Court’s arguments, it noted that although the City Commission had not taken individual decisions on each and every complaint it had received between 4 and 12 December 2012, that could not affect the lawfulness of its final decision to approve the results of the elections. The members of the Commission had been informed about the complaints received by the Commission, and that had been enough to satisfy the requirements of the law. In particular, it was perfectly acceptable that all those complaints had been examined by a special working group created within the Commission, and not the Commission itself. The Supreme Court also noted that, in breach of the law, the individuals who had lodged the complaints with the City Commission had not been invited to be present for the examination of their complaints; however, that was not sufficient ground to declare the final decision of the City Commission unlawful. The Supreme Court also held that the “consolidated protocols” containing the election results at city level had been approved in accordance with the correct procedure and were therefore lawful. The failure of the City Commission to notify all interested parties in accordance with section 30(1) of the Basic Guarantees Act did not constitute a ground for invalidating the results of the elections, since “it had not prevented the actual will of the voters from being determined”.
  4. The Supreme Court also held that the claimants had failed to prove that the complaints which the City Commission had received could have affected the results of the voting. In essence, those complaints challenged the results of the voting in certain electoral precincts. However, the decisions of the PECs had to be challenged before the district courts. The Supreme Court concluded that “since it has not been established that there have been any breaches of electoral law which would affect [the determination of] the will of the voters”, the lower court had been correct to dismiss the complaint.

 

  1. Judicial review proceedings before the district courts

 

  1. The sixth applicant (LA elections in precinct no. 637)

 

  1. On 25 January 2012 the sixth applicant (Mr Belyakov, precinct no. 637) lodged a complaint against the actions of TEC no. 21 before the Kolpino District Court (see paragraph 35 above).
  2. On 27 January 2012 the District Court returned the complaint to the applicant. It noted that the applicant had failed to submit a sufficient number of copies of his complaint and annexes – in particular, he had not submitted a copy for the prosecutor’s office. Furthermore, the copy of the document on which he had relied was signed by the secretary of the TEC but not by its chairman, and the TEC protocols had not been signed by all of its members. The District Court invited the applicant to add the missing documents and resubmit his complaint.
  3. On 7 February 2012 the applicant resubmitted the complaint.
  4. On 1 March 2012 the Kolpino District Court decided that it had no jurisdiction to examine the complaint. It noted that the applicant had complained as a voter about a breach of his “active electoral right” (the right to vote). However, in the opinion of the District Court the actions of the TEC which the applicant contested and which concerned the allegedly incorrect distribution of votes among the political parties might have affected the interests of those parties but not the interests of the individual voters. The applicant had participated in the elections as a candidate, but for a different precinct. The court concluded that the applicant’s rights had not been affected by the impugned acts of the TEC, and discontinued the examination of the case.
  5. The applicant appealed. On 12 April 2012 the St Petersburg City Court ordered the lower court to examine the case on the merits, disagreeing with its conclusion that the actions of TEC no. 21 had not affected the applicant’s rights as a voter.
  6. On 24 May 2012 the Kolpino District Court examined the complaint. According to the applicant, he requested the examination of a number of witnesses, in particular members, chairmen and observers of the electoral commissions concerned. The District Court refused to call any witnesses; it only heard the applicant, representatives of TEC no. 21, the City Electoral Commission, and a prosecutor. The latter recommended dismissing the applicant’s complaint as unfounded.
  7. The District Court dismissed the applicant’s complaint. The relevant part of its decision reads as follows:

“…In support of his arguments… the claimant submitted a copy of the protocols from PEC no. 637, the protocols from TEC no. 21… and the consolidated protocols… of the election as a whole.

However, those documents were drawn up in breach of the mandatory formal requirements established by the Basic Guarantees Act. [Namely], in breach of [the relevant provision of the Act] the copy of the protocols does not indicate the running number of the original copy it was made from. In breach of [the relevant provision of the Act] numerical data in the protocol are not written out in words. [In breach of the provisions of the law] the copy of the protocol did not contain the entries “true copy” or “exact [copy]”, and did not indicate the date and the time the copy was issued.”

  1. Furthermore, the District Court observed that the PEC protocol contained incoherent data. For example, the number of valid ballot papers noted in the table amounted to 1,276, and the aggregate number of votes for all candidate parties was indicated as 1,246, whereas that number should correspond to the number of valid ballot papers. The aggregate number of ballot papers deposited in the stationary boxes, those deposited in the mobile boxes, and “cancelled ballot papers”, which should correspond to the number of ballot papers received by the precinct commission, was higher (1,630 instead of 1,600). The District Court concluded that the copy of the PEC protocol relied upon by the claimant was inadmissible in evidence.
  2. The District Court further established that on 5 December 2011 the TEC had overturned the decision of PEC no. 637 approving the election results and had ordered a full recount. The applicant did not contest that decision. The City Commission submitted to the District Court “copy no. 2” of the PEC protocols with the mention “recount”. Data contained in that copy, drawn up following the recount, corresponded to the officially approved results of the elections. That copy had all the necessary entries and fully met the formal requirements. Under the law, if the original protocols contained incoherent data the PEC was entitled to conduct a recount and issue a new return. The court refused to grant the applicant’s requests for a number of witnesses to be called, including the chairman of the PEC and observers, having concluded that the documents submitted had provided sufficient evidence about the outcome of the results.
  3. The District Court referred again to the applicable legislation, which provided for a revision of the results of an election only where breaches of the law were such as to prevent the real opinion of the voters from being established. The court concluded that the applicant’s complaint did not reveal any such breach. It dismissed the applicant’s complaint and refused to declare void the official results of the elections in precinct no. 637.
  4. The applicant appealed. He claimed that, according to his information, no recount had been conducted. The law required the mandatory presence of all the PEC members and observers at any recount; however, they had not been invited for that purpose. Even if a recount had taken place, it would have been unlawful. The fact that the copy of the protocols submitted by the applicant to the court did not correspond to the copy of the protocols at the disposal of the City Commission had not been contested by the first-instance court. The very reference to a version for the “recount” confirmed the existence of two different results. In the course of the hearing the applicant had repeatedly asked the District Court to ascertain whether the recount had had any lawful basis, but the Court had failed to address that argument. The applicant claimed that the witnesses whose appearance he had sought would have been able to confirm that no recount had taken place. The alleged incoherencies in the original table were immaterial; what mattered was that the original results calculation had been replaced with a new one, and that this second document was a concoction.
  5. According to the applicant’s statement of appeal, the alleged recount was carried out in response to a complaint by a voter, a Mr L. However, the “original” document indicated that the PEC had received no complaints from voters or observers. Furthermore, according to the letter of 26 December 2011 from the TEC chairman in reply to the applicant’s complaint, before finally signing the protocols the commission had received “no complaints from the representatives of the political parties”. The applicant concluded that the “complaint by Mr L.”, which had served as a pretext for the secret recount, was a fake.
  6. The applicant argued that he had been unable to challenge the decision of the TEC to conduct a recount, because that decision had been concealed from the public and representatives of the parties and had become apparent only from the documents submitted by the City Commission to the court.
  7. On 16 August 2012 the City Court of St Petersburg, sitting as a court of appeal, dismissed the sixth applicant’s appeal, endorsing the reasons adduced by the District Court. The appeal court did not comment on the Kolpino court’s refusal to call witnesses. It noted that the evidence produced by the applicant was unreliable, whereas the evidence produced by the TEC and the City Commission was in conformity with the formal requirements, and the District Court had found it convincing. The City Court concluded that the applicant had failed to prove his allegations.

 

  1. The seventh applicant complaint (LA elections in Kolpino district as a whole)

 

  1. On 14 December 2011 the seventh applicant (Mr Yakushenko) lodged a complaint with the Kolpino District Court about falsification of the results of voting in Kolpino taken as a whole (electoral divisions nos. 18 and 19). His complaint concerned the following 54 precincts: nos. 623, 625, 626, 627, 628, 629, 630, 631, 632, 633, 634, 635, 636, 637, 638, 640, 641, 642, 643, 644, 645, 646, 647, 648, 649, 650, 651, 652, 653, 654, 655, 657, 658, 661, 662, 663, 664, 666, 667, 668, 669, 670, 671, 672, 673, 675, 678, 680, 681, 682, 683, 684, 685 and 687. These proceedings therefore concerned the precincts challenged by the first six applicants in the domestic proceedings and before this Court (see paragraphs 18 – 36 above).
  2. On 19 December 2011 the Kolpino District Court returned the complaint to the seventh applicant unexamined and informed him that it should have been submitted to the City Court.
  3. On 28 December 2011 the applicant resubmitted the complaint to the City Court, but on 29 December 2011 it was returned unexamined. The City Court was of the opinion that the complaint fell within the jurisdiction of the Kolpino District Court. The applicant appealed, but on 26 January 2012 the City Court, sitting as a court of appeal, confirmed that it had no jurisdiction to examine such a case.
  4. On 19 January 2012 the applicant resubmitted his complaint to the Kolpino District Court.

(a) Judgment of 16 July 2012 by the Kolpino District Court

  1. On 16 July 2012 the Kolpino District Court examined the complaint. A copy of the transcript of these proceedings has been submitted by the Government.
  2. According to the decision and the transcript, the District Court heard the prosecutor, who recommended dismissing the complaint. The applicant lodged several requests for certain witnesses to be examined and documents disclosed; some of those requests were refused and others were granted. Thus, the court heard twenty-three witnesses whose appearance had been requested by the applicant, namely observers and members of electoral commissions (including some of the applicants in the present case). They described their role in the elections, and explained how they had received copies of the protocols with the results. Most of the witnesses testified that the data in the protocols which they had received at the polling stations significantly differed from the official results published by the CEC, that they had not been notified of any recounts and had not witnessed a recount at the TEC, although some of them had been there to deliver the PEC protocols.
  3. The judgment of the District Court started with a summary of the applicable electoral legislation and witness statements. The court further observed that “[the applicant] did not indicate in his statement and additional submissions how his rights [to elect and to be elected] had been violated”. Furthermore, the court observed that the copies of the protocols submitted by the applicant did not meet certain formal requirements.
  4. On the basis of the witness statements the court concluded that none of them had given their copies of the protocols personally to the seventh applicant (Mr Yakushenko). Furthermore, at three polling stations (nos. 640, 644 and 653) the copies of the protocols obtained from the PECs contained data which did not correspond to the data in the “original” protocols submitted by the claimant.
  5. The District Court stressed that it was its duty to ascertain whether an official document had been issued by a body which had been entitled to do so, whether it had been signed by a duly authorised person and had other requisite entries, how it had been copied and stored, whether the copy submitted to the court was identical to the original, and so on. The court observed that it could not rely on copies where the originals had been lost, the copies produced by the parties were not identical, or it was impossible to establish the actual content of the document on the basis of other evidence.
  6. On the strength of the above the court concluded that the copies of protocols submitted by the claimant could not be admitted in evidence. It also found that the claimant had not submitted other evidence to show that the will of the voters had not been properly reflected.
  7. The District Court refused to declare unlawful the “recount” of votes ordered by TEC no. 21 on 5 December 2011 in polling stations nos. 627, 630, 633, 635, 637, 638, 641, 646, 651, 652, 654, 657, 661, 662, 664, 665, 666, 667, 668, 675, 678, 680, 681 and 682. According to the court, the supervising electoral commission had the power to order a recount if the protocols received from the lower commissions contained “errors [or] discrepancies” or if there were “doubts as to whether the protocols had been drawn up correctly”. The law also entitled the superior commission to conduct the recount itself and issue a new protocol. The District Court referred to the following reasons for the recount: “doubts as to whether the protocols of the precinct commissions were drawn up correctly, complaints about breaches of law committed by the PECs during the counting of the votes, as well as a complaint by Mr L., a candidate on the SR list”.
  8. The court referred to a witness statement by Ms S., a member of TEC no. 21. According to Ms S., the TEC had decided to conduct recounts; she had personally recounted votes with the commission’s deputy chairman, Mr R. Observers and members of the lower commissions were entitled to observe the recount. The TEC included members from different parties. An SR member of the TEC, Ms Sh., “was very often present” during the recount. In addition, observers were present at the TEC and supervised the process of counting and decision-making. All complaints were read out by the TEC chairman and discussed. Most of the complaints related to the difference between the results reported in the copies of the protocols received by the observers and “the data in the possession of the TEC”. The protocols which were submitted to the TEC differed from the protocols which were given to the observers; this was why the TEC had decided to recount the votes. As a result, the information which was in the possession of the TEC was confirmed. When the recount was being conducted the chairmen of the PECs concerned were not present, but the candidates were. The observers were not informed of the recount, but they were in any event present at the TEC; all the actions of the TEC were visible to them. As a result of the recount the TEC drew up new protocols.
  9. Ms S.’s witness statement, made on 28 May 2012 and reflected in the transcript of the hearing, gave additional details compared to what was cited in the District Court’s judgment. In particular, the actual recount had taken place in the basement room of the district administration building where the TEC was located, and that room had remained closed since it contained sealed bags with the ballot papers delivered from the PECs. Mr R. had opened the bags in her presence, breaking the seals which had been placed by the PECs. That room contained no furniture, and they had brought only two chairs into it. The recount had been carried out by her and Mr R., and each precinct had taken about two hours to count. This work had lasted almost the entire day on 5 December 2011. While no one else had been specifically invited to that room, the observers, other members of the TEC and others had been able to enter it and observe the recount. The new protocols were then drawn up in the main room used by the TEC, upstairs. Ms S. was unable to say what had happened to the “original” protocols.
  10. The District Court concluded that by holding a recount TEC no. 21 had acted within its powers, and there was no reason to declare those actions unlawful. PEC members had the right to be present during a recount, but their absence during the recount “did not constitute a ground for declaring the recount unlawful”. On the basis of the above, the District Court dismissed the applicant’s complaint.
  11. The applicant appealed.

(b) Decision by the court of appeal of 18 October 2012

  1. On 18 October 2012 the St Petersburg City Court dismissed the applicant’s appeal. Its reasoning, which is almost identical to the judgment of the District Court, can be summarised as follows. First, the first-instance court had been correct not to take into account the copies of protocols submitted by the applicant, since the witnesses questioned in the court did not confirm that they had given their copies directly to him. The copies submitted by the applicant did not meet the formal requirements. In addition, copies of the protocols concerning precincts nos. 640, 644 and 653 did not correspond to the copies which were in the archives of the three respective PECs. The applicant had failed to prove that the elections had been tainted with violations of the electoral law which prevented the will of the voters from being established. According to the decisions issued by TEC no. 21 on 5 December 2011, the results were declared void in the following precincts: nos. 667, 666, 646, 641, 668, 665, 664, 662, 657, 654, 652, 651, 641, 638, 635, 637, 681, 680, 678, 675, 630, 682, 627 and 629. In all those precincts the TEC had conducted recounts, on the basis of “doubts as to whether the protocols were drawn up correctly”, “complaints about violations of the law”, and “a complaint by Mr L.” The TEC actions had been lawful. The TEC members had had the right to be present during the recount, but they were not obliged to be there; consequently, their absence did not affect the lawfulness of the recount.

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