Постановление ЕСПЧ <Дело Давыдов и другие (Davydov and Others) против России> (жалоба N 75947/11) [англ.] Часть 5

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THE LAW

  1. Alleged violation of Article 3 of Protocol No. 1 to the Convention and Article 13 of the Convention

 

  1. The applicants claimed a violation of Article 3 of Protocol No. 1 to the Convention and a violation of Article 13 of the Convention. The Court has recently explained the difference between cases where the applicants’ complain about post-electoral disputes that have not been the subject of judicial review, and where a separate issue under Article 13 might arise (see Grosaru v. Romania, no. 78039/01, §§ 55 – 56, ECHR 2010), and, by contrast, where the national legislation and practice include judicial supervision of such disputes. In the latter case, the Court has limited its examination to Article 3 of Protocol No. 1 to the Convention (see Namat Aliyev v. Azerbaijan, no. 18705/06, §§ 57 and 81, 8 April 2010; Kerimova v. Azerbaijan, no. 20799/06, §§ 31 – 32, 30 September 2010, and Riza and Others v. Bulgaria, nos. 48555/10 and 48377/10, §§ 94 – 95, 13 October 2015).
  2. In the present case, regard being had to the domestic judicial procedures, the Court considers that this complaint falls to be examined only under Article 3 of Protocol No. 1 to the Convention, and that no separate examination is necessary under Article 13 of the Convention. Article 3 of Protocol No. 1 to the Convention 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.”

  1. The Government contested the allegations.

 

  1. Procedural issues and admissibility

 

  1. Requests to withdraw applications

 

  1. The Court notes that after the complaint was communicated two applicants submitted requests to withdraw their applications. On 4 April 2014 Ms Napara informed the Court that the seventh applicant (Mr Yakushenko) wished to withdraw his complaint. On 12 May 2014 the eighth applicant (Mr Payalin) signed a request to the Court to withdraw his complaint, citing personal reasons.
  2. The Court takes note of the applicants’ requests. Having regard to Article 37 of the Convention, it finds that the seventh and eighth applicants do not intend to pursue their applications, within the meaning of Article 37 § 1 (a) of the Convention. The Court also finds no reasons of a general character, affecting respect for human rights as defined in the Convention, which require further examination of their complaints by virtue of Article 37 § 1 of the Convention in fine. It therefore strikes out these two complaints.
  3. The Court is therefore prevented from examining the complaints brought by these two applicants and the facts on which their complaints were based. The facts cited by the seventh and eighth applicants will appear in the Court’s analysis below in so far as they are relevant to the remaining applicants’ complaints.

 

  1. The Government’s question as to representation

 

  1. In the observations of 24 October 2012 the Government questioned the representatives’ authority to represent all applicants. They were of the opinion that the Court should apply the Rules of Practice direction on Institution of Proceedings strictly and accept that Ms Moskalenko and Ms Napara were at any given moment the representatives only of those applicants who had presented valid powers of attorney, and only then if this was done within eight weeks of receipt of the Registry’s letter acknowledging their initial application. They argued that this situation should have been considered by the Court as a ground for inadmissibility, and referred to inadmissibility decisions against the Netherlands (see Post v. the Netherlands (dec.), no. 21727/08, 20 January 2009; Kemevuako v. the Netherlands (dec.), no. 65938/09, § 22, 1 June 2010; and Kaur v. the Netherlands (dec.), no. 35864/11, §§ 17 – 18, 1 June 2010).
  2. The Court notes that all the applicants who did not withdraw their applications are represented by both Ms Moskalenko and Ms Napara (see Appendix for details). At the time of the submission of the initial application forms, in December 2011 and in January 2012, the applicants had submitted at least one valid power of attorney each. It therefore distinguishes the situation from the one faced in Post, cited above, where no authority form was submitted. For the same reason, the Court does not find that the decisions where belated submission of duly signed authority forms had a bearing on the calculation of the six-month limit (see Kemevuako and Kaur, both cited above), are relevant to the present case.
  3. It therefore finds that no issues arise under the above-mentioned Rules of Court that need to be examined.

 

  1. The Government’s preliminary objection as to the Court’s competence ratione materiae

 

(a) The parties’ submissions

  1. The Government were of the opinion that the applicants had raised before the Court the question of the results of the elections to the State Duma and the LA. Such questions should not be considered by the Court as falling outside of the ambit of the right to free elections guaranteed by Article 3 of Protocol No. 1 to the Convention. Referring to the case of Namat Aliyev (cited above, § 77), the Government invited the Court to follow the same line of argument and to refrain from evaluating each piece of evidence produced by the applicants which had not been confirmed by thorough domestic investigation in the judicial procedure.
  2. Under the same heading, the Government argued that in so far as the Court could be understood to enquire whether the domestic courts had carried out an effective review of the applicants’ claims, such a complaint was inadmissible ratione materiae under Article 6 § 1 of the Convention, in line with the Court’s well-established practice (they referred, inter alia, to Cherepkov v. Russia (dec.), no. 51501/99, 22 January 2000, and Gorizdra v. Moldova (dec.), no. 53180/99, 2 July 2002).
  3. The applicants retorted that their claim was brought under Article 3 of Protocol No. 1 to the Convention and thus fell into the Court’s jurisdiction.

(b) The Court’s assessment

  1. The Court has previously established that the rights guaranteed by Article 3 of Protocol No. 1 to the Convention cover not only the process of organisation and management of the voting process, but also the manner of review of the outcome of elections and disputes concerning validation of election results (see Kovach v. Ukraine, no. 39424/02, § 55 et seq., ECHR 2008; Namat Aliyev, cited above, § 72; and Kerimova, cited above, § 54). In view of the above, it dismisses the Government’s objection as to its competence ratione materiae.

 

  1. The Government’s preliminary objection as to exhaustion of domestic remedies

 

(a) The parties’ submissions

(i) The Government

  1. The Government asked for the application to be declared inadmissible for non-exhaustion of domestic remedies. The Government put forward several arguments in this respect.

. General legal framework

  1. The Government pointed out that the applicants had been free to employ a number of legal remedies under the domestic legislation which could have provided them with an effective mechanism for the consideration of their claims.
  2. First, the Government indicated that the applicants could have sought the opening of criminal proceedings under Article 142.1 of the Criminal Code (see paragraph 191 above). They cited examples of convictions for fraud of members of electoral commissions (see paragraph 193 above), and argued that the same procedure was available to the applicants in the present case. Similarly, some breaches of electoral law could be classified as administrative offences. The relevant practice demonstrated that electoral officials could be sanctioned in such a procedure (see paragraph 194 above).
  3. The Government then noted that the courts were empowered to adjudicate complaints about alleged violations by the electoral commissions. The courts could declare the election results in constituencies void if the violations were sufficiently serious. At the time, the applicants were entitled to seek judicial review of the election results within one year of the date on which the results of the relevant elections had been made public. The court was obliged to take a decision within a period of two months after the complaint was launched. Again, the Government referred to successful examples of such procedures (see paragraph 194 above).
  4. Next, the Government observed that the higher-ranking electoral commissions were capable of adjudicating complaints and, where necessary, could invalidate the results or order a recount. As an example, the Government referred to the decisions issued by TEC no. 27 in St Petersburg to declare void the results in electoral precincts nos. 1071, 1091, 1099 and 1113 (challenged by the tenth applicant, see paragraph 42 above). The TEC reacted to the complaints brought by voters, observers and candidates and conducted a recount. As a result, it concluded that since the number of ballot papers contained in the ballot boxes exceeded the number of ballot papers issued by the relevant PECs, the outcome of the elections could not be ascertained. The election result was therefore void.
  5. As a general comment, the Government remarked that the remedies should have been exhausted by the time the application was lodged. Since most of the applicants had lodged their complaints on 8 December 2011, the judicial and administrative proceedings had not yet taken place.

. Objections in respect of each individual applicant

  1. The Government then detailed their arguments in respect of individual applicants, pointing that not all of them had lodged complaints with the competent domestic courts. Instead, the results in some of the precincts concerned had been challenged by the St Petersburg branch of SR. SR, in its last application to the St Petersburg City Court, had asked for the election results in St Petersburg to be declared void as a whole, and not in the individual constituencies raised by the applicants before the Court (see paragraphs 108 – 111 above). Furthermore, wherever the complaints had been lodged, they had not been pursued with the courts at cassation level; therefore the applicants had failed to exhaust the domestic remedies available to them.
  2. Finally, the Government argued that after 22 April 2013, the date of the ruling No. 8-P by the Constitutional Court (see paragraphs 80 – 88 above), the applicants concerned could re-submit their complaints to courts as individual voters. Their failure to do so should be regarded as a failure to exhaust domestic remedies.

(ii) The applicants

  1. The applicants insisted that the electoral fraud constituting the basis of this complaint had been reported by them to various Russian authorities. Among themselves, they had employed each avenue of domestic remedy suggested by the Government, but had received no effective review of their complaints. In the applicants’ view, the violations alleged had been of a systemic and persistent nature, which made each and every remedy ineffective, because no State authority was prepared to expose the systemic falsifications in favour of the ruling party.

. Proceedings before the electoral commissions

  1. In so far as the Government could be understood to have stated that the applicants should have challenged each decision of a PEC or TEC before the superior electoral commission, they pointed out that the City Electoral Commission had treated their complaints as falling into the domain of the prosecutor’s office. As a result of the ensuing delays, the City Commission had validated the election results and the applicants were advised to bring their complaints to the courts (see paragraphs 48 – 59 above). The applicants stressed that the way in which their complaints had been considered displayed lack of consistency in drawing boundaries between the jurisdiction of the electoral commissions, courts and law-enforcement authorities, which had forwarded their complaints from one to another. As a result, none of the remedies employed had been effective in practice.

. Criminal investigation

  1. In so far as the Government argued that the applicants could have relied on the criminal investigation, the applicants reiterated that the alleged breaches of electoral legislation had been raised by the second, third, fourth and eighth applicants with the competent authorities, namely the prosecutor’s office and the investigative committee. These complaints had concluded with decisions not to open criminal investigations (see section E above). The law-enforcement authorities uniformly referred to the validation of the election results by the CEC and by the district courts, and refused to consider any further evidence brought by the applicants.
  2. The applicants stressed, in particular, that their complaints to the Investigative Committee had contained all the necessary elements of a request to open criminal investigation. Despite that, the Committee had treated the complaints by the second, third and fourth applicants as “information about a breach of legislation” and had forwarded them to the prosecutors (see paragraphs 64 – 70 above). The sixth applicant’s similar complaint was forwarded to the City Electoral Commission (see paragraph 71 above). The attempts to obtain judicial review of the investigative committee’s actions had not led to any results (see paragraph 72 above).
  3. As a specific example, the third applicant stressed that his application to the investigative committee had contained specific indications of fraud in respect of PEC no. 651, since the results in that constituency were allegedly published before the relevant protocol had been transmitted to TEC no. 21. Despite detailed submissions made by the third applicant in this respect, including an audio recording of telephone conversations, he was informed by the Kolpino District Prosecutor’s Office that no breaches of legislation had been detected (see paragraphs 49 and 53 above). The Kolpino District Investigative Committee’s decision of 21 May 2013 simply referred to the validity of the TEC no. 21 decision to conduct a recount and the correct reflection of the results of that recount on the City Commission’s site (see paragraph 74 above). The investigating authority had thus refrained from any evaluation of the evidence indicating fraud. The applicants invited the Court to regard this example as characteristic of the attitude of the domestic law-enforcement authorities, who had withdrawn from any in-depth analysis of the evidence raised by the applicants.

. Complaints to the courts

  1. The applicants disputed the Government’s assertion that they had failed to use the proceedings before the relevant domestic courts in charge of considering complaints against the electoral commissions. They explained that they had challenged the electoral commissions’ decisions at all levels of the judicial system, but had obtained no real review. The courts, using formal pretexts, had refrained from giving an answer to the substance of their complaints of electoral fraud and redistribution of votes, essentially in favour of ER.
  2. More specifically, the first five applicants had lodged a complaint with the Supreme Court, which had refused to consider it on the merits citing lack of standing for individuals to challenge the results of voting along party lists (see paragraphs 75 – 79 above).
  3. The first six applicants in their capacity as individual voters and members of the PECs had seized the St Petersburg City Court on two occasions, seeking to challenge the decisions of the City Electoral Commission concerning both the State Duma and the LA, but that court had refused to consider the issues on the merits (see paragraphs 89 – 106 above).
  4. Other applicants (the ninth, tenth and eleventh) had stood as SR candidates in the LA elections. In view of the scope of falsifications, the St Petersburg SR branch had lodged a complaint with the St Petersburg City Court challenging the results in the city as a whole (see paragraphs 108 – 111 above). The City Court refrained from analysing the substance of the complaints, choosing to focus on the procedure the City Electoral Commission had used to review their complaints. Finding that there had been no serious breaches of that procedure, the courts had endorsed the official results of the elections.
  5. As to the district courts, the Kolpino District Court had examined individual voters’ complaints about alleged irregularities. Two rounds of proceedings, one of them covering the entire Kolpino District, had resulted in dismissal of their complaints despite, in the applicants’ view, ample evidence of serious breaches of electoral legislation. Rendering its judgment of 24 May 2012, confirmed by the St Petersburg City Court on 16 August 2012, the District Court declined to call additional witnesses or to clarify the procedure and reasons for recounting of votes in PEC no. 637 (see paragraphs 117 – 121 above). As to the proceedings which concerned the results of the electoral divisions 18 and 19, the Kolpino District Court had called a number of witnesses, including members of several PECs and one member of TEC no. 21. However, it ignored the evidence of breaches of the procedure for recounts, and endorsed the TEC decision as to the “corrected” results of the elections (see paragraphs 126 – 141 above).
  6. In the same vein, when the St Petersburg branch of the SR had challenged in the courts the results of elections in the precincts cited by those applicants who complained in their capacity as candidates, the courts had refused to enter into the substance of their submissions. Instead, they systematically focused on “insignificant” defects in the copies of the “original” protocols submitted by the claimants and dismissed dozens of duly certified copies as invalid evidence. By contrast, the final results given by the TECs had been endorsed without any in-depth analysis of their lawfulness and conformity to the procedure. The courts also systematically refused to seek and obtain additional evidence which could have shed light on the substance of the claim, such as the “original” protocols where recounts had taken place, witness statements by the officials involved, and so on (see paragraphs 142 – 150 above).

. Application to the Constitutional Court

  1. The applicants disagreed with the Government that, following the Constitutional Court ruling of 22 April 2013, in order to exhaust domestic remedies they should have sought reopening of the judicial proceedings in their capacity as individual voters.
  2. They stressed that while the said ruling had found unconstitutional the practice which had excluded individual voters from challenging the election results, it had invited the federal legislator to amend the legislation accordingly. Before this finding, they had had no guaranteed access to courts with such claims and could not therefore demand reopening on grounds of newly discovered circumstances.

(b) The Court’s assessment

  1. The Court reiterates that Article 35 § 1 of the Convention, which sets out the rule on exhaustion of domestic remedies, provides for a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say that it was accessible, was capable of providing redress in respect of the applicant’s complaints, and offered reasonable prospects of success (see Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports of Judgments and Decisions 1996-IV, and Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999-V). The Court further emphasises that the domestic remedies must be “effective” in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that has already occurred (see v. Poland [GC], no. 30210/96, § 158, ECHR 2000-XI). Where several remedies are available, an applicant who has exhausted a remedy that is apparently effective and sufficient cannot be required also to have tried others that were available but probably no more likely to be successful (see Aquilina v. Malta [GC], no. 25642/94, § 39, ECHR 1999-III). An applicant cannot be regarded as having failed to exhaust domestic remedies if he or she can show, by providing relevant domestic case-law or any other suitable evidence, that an available remedy which he or she has not used was bound to fail. For example, the applicants who have not pursued the same remedy that had proven ineffective for the other applicants in the same position can be reasonably absolved from doing so (see, mutatis mutandis, Kleyn and Others v. the Netherlands [GC], nos. 39343/98 and 3 others, § 156, ECHR 2003-VI).
  2. The Court first remarks that although the applicants’ complaints were made in different capacity and to various domestic authorities, there is a clear similarity between them. Their common complaint was that there existed a difference between the results recorded initially by the precinct commissions and the official outcome published by the City Electoral Commission. Next, the applicants submitted that the domestic authorities had not effectively reviewed this allegation.
  3. Turning to exhaustion, the first six applicants tried several remedies before applying to the Court. The complaints in respect of each of the constituencies challenged by them had been submitted for examination to at least one of the national authorities suggested by the Government. Between them, they exhausted each of those remedies and maintained that no effective review has been provided. In so far as the Government suggested that the applicants should have had recourse to the cassation procedure, it is true that the Court ruled in May 2015 that the two-tier cassation in civil procedure introduced in January 2012 constituted a domestic remedy to be exhausted (see Abramyan and Others v. Russia (dec.), nos. 38951/13 and 59611/13, §§ 76 – 96, 12 May 2015). However, this requirement could not be applied to applications lodged before 12 May 2015, since the effectiveness of that remedy had not previously been recognized in the Court’s case-law (see Kocherov and Sergeyeva v. Russia, no. 16899/13, §§ 64 – 69, 29 March 2016, with further references). This part of the Government’s objection should, therefore, be dismissed.
  4. The situation of applicants ninth, tenth and eleventh is slightly different. As candidates on the SR list, they did not bring domestic proceedings in their individual capacity, but relied on the proceedings initiated by that party in respect of the electoral divisions concerned (see paragraphs 144 – 150 above) and the elections to the LA in St Petersburg City as a whole (see paragraphs 108 – 111 above). The Court notes that the position of the Russian Supreme Court, as expressed in its decision of 9 February 2012 and before the matter was reversed by the Constitutional Court in its ruling of 22 April 2013, was that the violations complained of affected the interests of the political parties whose candidates had stood for elections, and not of individual voters or candidates, who had no standing to challenge them in courts (see paragraph 79 above). In view of this, the three applicants in question could reasonably conclude that they had no standing before the domestic courts and rely, instead, on the party to raise such complaints on their behalf. In these circumstances, they could be reasonably absolved from the obligation to pursue the remedy that had proved inaccessible to other persons in the same position.
  5. The Court further notes that that the question of whether they had obtained review of their similar allegations of a breach of the Convention rights is precisely what is in dispute between the parties. In such circumstances, it is impossible to address the question of compatibility of the applicants’ complaints with the admissibility criteria raised by the Government under Article 35 § 1 of the Convention without addressing the substance of their complaints under Article 3 of Protocol No. 1 to the Convention. It follows that this objection should be joined to the merits.

 

  1. The Government’s preliminary objection as to the well-foundedness of the complaint and abuse of the right of petition

 

(a) The Government

  1. The Government argued that the applicants had submitted invalid documents to the Court in support of their claims. The CEC had denied that the documents on which the applicants had relied as the basis of their claims had been authentic copies of the PEC protocols. They referred to a table enumerating procedural defects in these documents. The most common defects were absence of a reference to the running copy of the original from which the copy had been taken; absence of reference to the date and time and address of the PEC; failure to record the figures numerically; absence of one or more signatures of the PEC members; lack of a stamp to attest to the signatures; and lack of certification of the copy as “correct”. According to the Government, some of the copies had been signed by people who were not members of the PECs concerned (see paragraph 157 above).
  2. The Government also mentioned that in July 2014 an expert centre of the Ministry of the Interior had concluded that the copies of the protocols relied upon by the tenth applicant (PECs nos. 1089 and 1104) had been certified by stamps which differed from the original stamps used by those PECs (see paragraph 169 above).
  3. The Government stressed that where the votes in a given electoral precinct had been recounted, the initial protocol of the results bore no legal value as regards the establishment of the results of the election. Therefore, wherever there had been a recount only the second protocol was submitted to the City Electoral Commission.
  4. As to the document compiled by the applicants, reuniting data on all the precincts concerned (see paragraph 152 above), the Government pointed out that the applicants had not challenged with the Court the entirety of these results, but only the selected ones as enumerated by them. On the other hand, not all the precincts where the results were challenged by the applicants had had recounts.
  5. Finally, the Government pointed out that in some of the polling stations recounts had led to either confirmation of the initial results (PECs nos. 1084 and 1126) or to a reduction in the ER vote (PECs nos. 1098, 1127) (see paragraphs 164 and 167 above).
  6. On the strength of the above, the Government pointed to the Court’s practice of dismissing applications which were knowingly based on untruths or where they had submitted to the Court documents that had knowingly been forged (they referred to Bagheri and Maliki v. the Netherlands (dec.), no. 30164/06, 15 May 2007, and Poznanski and Others v. Germany (dec.), no. 25101/05, 3 July 2007).

(b) The applicants

  1. The applicants disagreed. They stressed that the very fact of the existence of the “original” election results communicated to them by the members and chairpersons of the PECs, observers and other candidates was not in dispute by the Government, at least in respect of those precincts where there had been recounts. However, no “authentic” copies of such original documents have been provided by the Government either. In such circumstances, this objection was unfounded.

(c) The Court’s assessment

  1. Unlike in the above cases cited by the Government, the question of forgery or knowing misrepresentation of key facts – in the present case, the “original” election results as noted by various observers, candidates and members of the electoral commissions – was never resolved by any domestic authority. The crux of the applicants’ complaints is precisely the absence of an effective domestic inquiry into the allegations raised by them. In such circumstances, the Court cannot agree with the Government that the complaint should be treated as an abuse of the right of petition under Article 35 §§ 3 (a) and 4 of the Convention, or that it should be dismissed on this ground as manifestly ill-founded.

 

  1. Conclusion as to admissibility

 

  1. The Court notes that the application raises serious issues of facts and law and that it is not inadmissible on any grounds. It must therefore be declared admissible.

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