Постановление ЕСПЧ <Дело Давыдов и другие (Davydov and Others) против России> (жалоба N 75947/11) [англ.] Часть 7

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Recounts

  1. It is not disputed by the parties that the votes were recounted in many precincts after the initial count had been conducted by the PECs and once the results protocols, duly signed and attested by the relevant precinct officials, had been transferred to the electoral commission at the territorial level (see paragraphs 158 – 167 above).
  2. To be more specific, it follows from the above-mentioned table compiled by the Government that there were recounts in at least some of the precincts challenged by each applicant in the elections to the LA. For the first five applicants complaining about global and individual precinct results in electoral division no. 19, of twenty-one precincts where they had submitted the “original” protocols there were recounts in fourteen, including the precincts challenged by applicants two to five (nos. 651, 652, 654 and 661). The same applies to applicants six (precinct no. 637 in electoral division no. 18), nine (eight precincts recounted of the twelve challenged in electoral division no. 17), ten (eleven precincts recounted of the eighteen challenged, electoral division no. 33) and eleven (five recounted of the twenty, electoral division no. 15). In the Duma elections, challenged by applicants two to five, there were recounts in three precincts (nos. 651, 652 and 654).
  3. From the summary document presented by the Government, it appears that of the ninety-nine precincts challenged initially by the applicants in the present case, there were recounts in almost half, namely forty-eight precincts (forty-five in the LA elections and three in the Duma elections). These recounts concerned over 50,000 votes cast. The reasons for such a high percentage of recounts were indicated in a standard and summary manner, mostly as “doubts about correctness and complaints” (see paragraph 158 above).
  4. The Court notes the Government’s argument that the possibility of recounts as such could be essential to ensure adequate reflection of the voters’ intention and to prevent the distortion of results, for example by errors and irregularities. Indeed, an exceptional application of this procedure does not necessarily lead to suspicion of electoral fraud, provided that the reasons for it are clearly indicated, they appear sufficiently serious to place in question the outcome of the electoral commission’s work and transparency and careful adherence to the procedure accompany both the decision-making process and the recount itself.
  5. In the present case, the Court finds it difficult to accept, without any additional explanation, that the scope of errors and irregularities in almost half the electoral precincts concerned were such that their results should have been declared void by the higher commissions and assessed anew, with widespread discrepancies between these two counts (see paragraph 167 above). The recounting of votes on such a massive scale in itself points to a serious dysfunction in the electoral system and is capable of throwing serious doubts on the fairness of the entire process. The Court observes in this respect that the Venice Commission Code recommends in p. 3.2 of its Guidelines that “counting should preferably take place at polling stations”; the Explanatory Report adds in p. 45 that “this arrangement obviates the need to transport the ballot boxes and accompanying documents, thus reducing the risk of substitution” (see paragraph 196 above). Where the result of every second voting station is subsequently declared void and replaced with a new one, the whole procedure risks appearing compromised.

Reasons for recounts

  1. The reasons leading to invalidation of the initial results protocols and the procedures to follow in case of a recount are enshrined within the national legislation (see paragraphs 185 – 187 above). It is difficult to assess in the abstract whether these provisions provide sufficient guarantees against possible abuses. Thus, it might appear that the reasons for conducting recounts were formulated rather broadly, and referred simply to “errors or discrepancies”, or even merely to doubts about the correctness of the results protocols (see the Basic Guarantees Act, the Duma Elections Act and similar provisions of the St Petersburg Elections Act). On the other hand, the decision-making process and recounts should be characterised by the same guarantees of transparency and openness as in the initial counting of votes, and should require notification of the voting members of both the precinct and territorial commissions concerned, assurances of their presence, as well as observers and other interested parties, and immediate notification of the final results to all concerned.
  2. In the present case, part of the applicants’ allegation concerns precisely the absence of transparency and notification at the level of territorial commissions. The Court finds that these allegations are supported by a number of weighty arguments which are not disputed by the parties. Thus, the decisions of the territorial commissions to invalidate the precinct protocols were similarly worded and referred to general and unspecified reasons (see paragraph 154 above). Such deficient reasoning renders it difficult to evaluate whether there existed a real need to set at naught the outcome of the process reached by so many polling stations and, in its turn, reinforces the suspicion of unfair play.

Procedure and guarantees for the conduct of recounts

  1. As to the transparency and safeguards of the process, it is apparent from the documents submitted by the Government that when the decisions to conduct recounts were taken at the territorial level, of the five TECs concerned (nos. 3, 4, 7, 21 and 27), a representative of the SR was present only in one (no. 21), and a representative of the KPRF also only in one (no. 4), while all other members were present on all the other occasions, with one exception (see paragraph 155 above). This signifies that at the time when the decisions were taken to scrap the initial results and conduct a new count, three territorial commissions out of five had no representation at all from the parties considered as opposition (the SR and the KPRF), and only reduced representation in two others.
  2. Wherever the recounts were conducted by the PECs, the members appointed by the SR and KPRF were also systematically absent (see paragraph 156 above). This mirrored the problem noted above in respect of TECs which had ordered and conducted recounts. Such frequent and widespread absence of observers and voting members from the opposition parties at the crucial stage of ascertaining the election results contributes to the well-foundedness of the allegations of unfairness made by the applicants.
  3. It is further not disputed by the parties that the decisions of the territorial commissions to cancel the results of the precinct commissions and to order new counts were not communicated to those applicants who had been members of the PECs concerned, and that they learned of those decisions only subsequently, during the appeals.
  4. Wherever the territorial commissions declared the precinct commission results void they either conducted the recounts themselves or required the PECs to do so. It follows from the copies of the protocols and the documents submitted by the Government that of the forty-eight precincts where recounts had been ordered the territorial commissions had conducted recounts in twenty-six, while the rest had been dealt with by the PECs (see paragraphs 158 – 167 above). As to the recounts conducted by the territorial commissions, in addition to the absence of the members of the SR and the KPRF from some of the commissions (see the preceding paragraph), the Court notes that a number of other elements that are not disputed by the parties raise further doubts as to the adherence to the rather strict requirements of the domestic legislation (see paragraphs 185 – 187 above).
  5. For example, it is difficult to reconcile the speed of the recounts in some of the TECs with the amount of work they had to carry out and the feasibility of complying with the applicable procedural requirements. Thus, as the results protocols indicate, in TEC no. 7 the recounts in three precincts (about 4,700 ballot papers) were carried out in less than one hour; in TEC no. 21 recounts in eleven precincts (over 11,300 ballot papers) were carried out in three hours and forty-five minutes; and in TEC no. 4 recounts in six precincts (about 6,600 ballot papers) were concluded in a record forty-five minutes (see paragraphs 160, 161, and 163 above). Even if the Government’s argument that the recount should have been easier than the initial count because the ballots were already bundled together (presumably, according to the results marked – see paragraph 268 in fine above), it still should have involved manual verification of each single ballot, in order to reach the results that would be different from the initial ones.

Results of the recounts

  1. Wherever the Government presented such figures, it generally followed that as a result of recounts ER gained votes. In the twenty-three precincts where the Government submitted these data, the recounts concerned over 24,000 votes; in this group ER gained 5,155 votes. In other words, the parties do not dispute that as a result of recounts more than one fifth of votes cast were reassigned in favour of the ruling party. The same documents show that, as a result of this exercise, the opposition parties (SR, KPRF and Yabloko) lost votes by a large margin (see paragraph 167 above).
  2. The Court remarks here that the Government have challenged the value of the evidence presented by the applicants in the form of the “initial results protocols” obtained from the precinct commissions at the conclusion of the vote count. It finds that this question will be best addressed in the following sub-section on the effective examination of the applicants’ complaints, since the domestic authorities have devoted a significant amount of attention to it. However, it notes that the overall evaluation of the applicants’ claim as serious is reinforced by the absence of proper copies of the “initial results protocols” wherever a recount has taken place, lack of information what happened to them, and the incomplete picture of the results of the recounts presented by the Government.

OSCE report

  1. Finally, the Court notes that the OSCE observation mission reported irregularities and frequent procedural violations at the stage of the counting of votes and tabulation of results. They assessed vote counting as “bad or very bad” at every third station observed; they noted frequent breaches of procedure, lack of transparency and poor organisation, among other problems (see paragraphs 197 – 198 above).

Conclusion as to the seriousness of the irregularities alleged

  1. To recapitulate, the Court finds that the following elements of the applicants’ complaints of unfairness of the elections are not disputed by the parties: the results in almost half the initially challenged precincts in the elections to the LA (and three of the four challenged in the Duma elections) were declared void by the territorial commissions and recounts were ordered; these decisions were summarily and similarly worded, making it difficult to assess whether they were justified; the composition of the TECs which had taken the decisions to conduct recounts excluded the members from both opposition parties in a majority of cases; not all the members of the PECs concerned had been notified of the decisions taken and thus did not take part in the recounting; the recounts at the territorial commissions were carried out in such a short time that it placed in question their ability to comply with the procedural requirements of the national legislation; the members of the opposition parties were systematically absent from the recount process both at the territorial and precinct levels; and as a result of the recounts the Government party overwhelmingly gained and the opposition parties lost. Moreover, the applicants’ allegations are indirectly supported by an independent and credible international observer mission, which identified the counting and tabulation of the results as the most problematic stages of the elections in question.
  2. In view of the evidence summarised above, the Court finds that the applicants have presented, both to the domestic authorities and to the Court, an arguable claim that the fairness of the elections was seriously compromised by the procedure in which the votes had been recounted. The irregularity of this sort would be capable of leading to gross distortion of the voters’ intent, in respect of each of the precincts challenged by the applicants. It will now see if the applicants have obtained an effective examination of these complaints at the domestic level.

(iv) Effective examination of the applicants’ complaints

  1. As noted above, the applicants put forward an arguable claim that the fairness of the elections to the LA of St Petersburg (and the State Duma, where applicable) in the precincts concerned was seriously compromised to the extent of grossly distorting the voters’ intent. In particular, the recounting of votes raised serious doubts as to the adherence of this procedure to the applicable national legislation, including the guarantees of transparency, openness and equal participation of all political actors. This complaint was raised before the national authorities. Between them, the applicants tested all the remedies available under the domestic legislation and seen by the Government as effective and accessible. The Court has already decided that in view of the parties’ arguments the question of exhaustion of domestic remedies should be joined to the merits (see paragraph 237 above). It will now proceed to examine whether in any of the procedures the applicants obtained an adequate and effective review of their complaints of serious irregularities by an independent authority.

Electoral commissions

  1. The Court will start this examination with the procedure before the electoral commissions. Under the law, higher electoral commissions have the authority to consider complaints against decisions of the lower commissions. This procedure is equipped with some important procedural guarantees, such as the right of the complainant to be notified of the consideration of his complaint and to be present. The commissions can overturn decisions of the lower electoral commissions and order new counts, but only in the short time preceding the official approval of the election results (see paragraphs 189 – 190 above).
  2. In the present case, applicants two, three and four lodged administrative complaints with the City Electoral Commission on 6 December 2011, as soon as the results of the elections were announced (see paragraphs 48 – 58 above). Each of the three applicants, in their capacity as voting members of the PECs, complained about the announced results of the precincts concerned, namely nos. 651, 652 and 654. The complaints indicated that the results announced by the City Commission differed from the results given in the copies of the results protocols obtained by them at the close of the count. The third applicant, in addition, alleged that the results for precinct no. 651 had been announced before the chairman of the precinct commission had transferred the results protocol to the territorial commission and provided a record of the telephone conversation to prove it.
  3. The documents submitted by the parties indicate that the City Electoral Commission did not consider the applicants’ complaints in substance; upon receipt they were forwarded to the prosecutor’s offices. On 12 December 2011 the election results for St Petersburg were officially approved by the Commission, making further complaints to the electoral commissions impossible. The applicants appealed against the conduct of the City Commission to the Oktyabrskiy District Court, which in separate but similar decisions confirmed that the complaint fell within the competence of the prosecutor’s office (see paragraphs 56 and 59 above). In such circumstances, the Court finds that the complaints to the higher electoral commission proved ineffective, since that body had refused to consider the complaints in substance, and this decision had been endorsed by the courts.

Criminal investigation

  1. As stated in the preceding paragraphs, the complaints lodged by the second, third and fourth applicants to the City Electoral Commission were viewed by the latter body as indicating a criminal offence and, as such, were forwarded to the prosecutor. These three applicants also lodged separate complaints with the investigative committee – the second applicant on 5 December 2011, and the third and fourth applicants on 6 December 2011 (see paragraphs 64, 67 above). A complaint about alleged falsification in precinct no. 646, submitted by the first applicant, was lodged with the Kolpino Prosecutor’s Office on 20 December 2011 (see paragraph 60 above). Also in December 2011, the sixth applicant lodged a complaint with the Kolpino District Investigative Committee (see paragraph 71 above). In this way, the law-enforcement authorities were made aware of the substance of the applicants’ complaints in the days immediately following the elections. The third applicant’s complaint was particularly detailed: he insisted that the results in precinct no. 651, which differed from those contained in the “original” results protocol, had been announced prior to their transmission to the territorial commission. Other applicants gave fewer details, but also suggested that the difference between the figures obtained at the conclusion of vote counting in the five PECs concerned (nos. 637, 646, 651, 652 and 654) and the results announced by TEC no. 21 on 5 December 2011 was indicative of fraud.
  2. As confirmed by the court decisions and other documents, the counts conducted by the six PECs were declared void by the territorial commission in the late on 5 December 2011 and a recount was ordered. The law-enforcement authorities were of the opinion that the applicants’ complaints pointing to the difference in results related to the outcome of the elections, and invited them to challenge those results before competent courts. Wherever this procedure had previously been employed the authorities had relied on court decisions to dismiss the allegations as unsubstantiated (see paragraphs 70 and 74 above). The inquiries carried out by the prosecutors and the investigative committee concluded that as the results of the elections had been approved by the electoral commissions and confirmed by the competent courts there were no indications of criminal offences (see paragraphs 66, 70, 61 – 63 and 74 above). It does not appear that any independent action was taken to verify the applicants’ allegations: no one was questioned, and no additional documents or information were reviewed. It appears from one investigator’s decision not to conduct an investigation that the possibility of seeking graphological expertise was considered at some point, however it does not seem that this was commissioned or carried out (see paragraph 62 above).
  3. To sum up, the prosecutor’s office and the investigating committee saw no reasons to take any procedural steps aimed at verifying the allegations of fraud in the six precincts concerned, and opened no criminal investigation. None of the applicants was granted the status of victim in the proceedings, and thus they had very little opportunity to influence their course. The law-nforcement authorities were at one in the view that the matter fell into the domain of the courts competent to deal with complaints about the procedural decisions by the relevant electoral commission, which, in their turn, served to validate the results of the recount without any objections. It is difficult to see how the applicants could overturn this presumption in the absence of any pertinent action by the investigators.
  4. The Government supplemented their argument about the effectiveness of criminal proceedings in cases concerning alleged electoral fraud by reference to a number of criminal convictions rendered by courts in various regions and in several types of elections (see paragraph 193 above). It is certainly not in dispute that the State can, in principle, investigate, prosecute and bring to justice those guilty of breaking the rules of elections. However, the Court is not convinced that these examples bear a direct relevance to the conclusion that the investigation was ineffective in the present case. First, it notes that the participation of individuals lodging complaints in this type of case is not necessary, and the nature of the offence is such that they can be dealt with without, or with little participation, of the victims. Second, and closely linked to this, is the particular role of the investigating authorities, who are supposed to take action to address breaches in the organisation of the democratic process as such, which is not necessarily linked to an identified individual’s right. Third, none of the examples point to a situation in which the applicants was challenging the results of a recount presumed valid by the electoral commissions, as in the case at hand.
  5. In so far as the Government claimed that the applicants had failed to further challenge the decisions not to open criminal investigations, they seem to imply that criminal investigation was the remedy to be exhausted. However, both the prosecutor’s office and the investigating committee consistently indicated to the applicants that this type of complaint should have been lodged with the courts; it would therefore appear reasonable for the applicants to assume the same.
  6. On the strength of the above assessment, the Court dismisses the Government’s objection of non-exhaustion of domestic remedies through the applicants’ failure to appeal against the decisions not to open a criminal investigation. It also concludes that this procedure did not provide a venue for effective evaluation of the circumstances in which the recount had been carried out.

Judicial review

  1. National courts at several levels examined the alleged violations associated with the recounts. The parties disagreed as to whether the applicants had received an adequate and effective examination of their allegations in these proceedings. In the context of establishing the factual circumstances constituting an alleged breach of Article 3 of Protocol No. 1 to the Convention, the Court considers that it should first ensure that the review was not arbitrary or manifestly unreasonable (see paragraph 288 above; and Communist Party of Russia and Others, cited above, §§ 116 – 17).
  2. Turning to the applicants’ situation, their encounters with the courts could be summarised as follows. First, the interpretation of the national law at the relevant time did not empower voters to challenge the outcome of elections (see paragraphs 75 – 79 above). As a result, for those applicants who complained solely in their capacity as voters, judicial review of the election results was not guaranteed, although the national courts’ practice does not appear to be uniform (see paragraph 116 above). The Russian Constitutional Court found the interpretation which excluded individual voters from the range of subjects authorised to appeal to be contrary to the Constitution and recommended legislative changes (see paragraphs 80 – 88 above). This extensively reasoned judgment opened the way for judicial review for future voters, but the results of the elections held in December 2011, of which the applicants were complaining, remained unaffected.
  3. The St Petersburg City Court refused to consider the complaints lodged by individual applicants against the decision of the St Petersburg Electoral Commission in both the Duma and the LA elections (applicants one to six) on the merits. In a number of procedural decisions, all of them upheld on appeal, the City Court concluded essentially that it had no jurisdiction over the matter, since the precinct commission results had been reviewed and ascertained by the territorial commission; the City Commission did not even have copies of the protocols in question (see paragraphs 98 and 106 above).
  4. The St Petersburg City Court examined the complaint lodged by one political party concerned – the SR – against the results in several electoral divisions during the elections to the LA, including those contested by the applicants (see paragraphs 108 – 111 above). The Government pointed out that where the complaints had been lodged by the SR and not by individual applicants those proceedings could not count for exhaustion purposes (see paragraph 218 above). However, given the uncertainty about the access of individual voters to judicial review in these matters, the applicants cannot be reproached for relying on the results of the procedure initiated by the SR.
  5. The Court finds that the proceedings initiated by the SR at the St Petersburg City Court could have been central in the examination of the allegations of large-scale violations of the electoral legislation, as raised by all the applicants. If the applicants’ complaint can be viewed as a sample, nearly half of the ninety-nine precincts originally challenged by them were subject to a recount. The Court concluded above that recount conducted on such a massive scale in itself raises strong doubts as to the integrity of the process (see paragraph 299 above). This was accompanied by a number of serious, repeated and unexplained procedural shortcomings, such as unclear reasons for recounts, systematic failure to inform and ensure the presence of representatives of “opposition” parties in the commissions ordering and carrying out the recounts, and questionable conditions under which they had been carried out. The City Court appears to have been best placed to carry out a review of these recurrent and similar allegations that extended over several electoral territories and to ensure an independent and impartial evaluation of well-founded complaints.
  6. However, the City Court limited its examination to reviewing procedural aspects of the City Electoral Commission’s adjudication of complaints that had been submitted to it earlier. As is apparent from the judgment, the only question that the City Court examined at some length was whether the City Commission had properly notified the party representatives about the hearing and whether they had had an opportunity to attend. Having satisfied itself that this procedure had not been seriously breached, it concluded that the Commission had been correct in rejecting the complaints. This conclusion served the City Court, and then the Supreme Court, as an opportunity to refrain from examining the substance of the complaints about the procedural justifications and reasons that could explain discrepancies of results between dozens of precinct commissions and the final figures (see paragraphs 108 – 111 above).
  7. Procedurally, this approach does not tally well with the provisions of the national legislation which confer on judges independent and wide-reaching powers to oversee the results of elections upon complaints by authorised subjects (see paragraphs 188 and 190 above). The electoral commissions review complaints over a very tight timeframe, only until the official endorsement of the election results (see paragraph 189 above). This presupposes limitations on the procedure, where the decisions need to be taken quickly, and the scope of review would necessarily be restricted. The courts, on the other hand, are not bound by the decisions of the electoral commissions, and can overturn their decisions about the results and outcome of elections if the violations alleged are so serious that they put in question proper reflection of the electorate’s will. It therefore appears surprising that in a case raising such serious, widespread and well-documented allegations going to the heart of the electoral system’s credibility, the courts limited themselves to reviewing procedural aspects of the City Commission’s adjudication of complaints concerning the same matter. In effect, the claimants – including the applicants whose complaints about the results in their respective precincts in the LA elections were covered by this procedure – had been denied an examination of the substance of their complaint by a competent and independent authority. This outcome appears to be arbitrary and manifestly unreasonable.
  8. In view of this approach chosen by the St Petersburg Court in its judgment of 27 February 2012, and later endorsed by the Supreme Court, it is not surprising that the procedures initiated by individual applicants and the SR in district courts were unsuccessful. The courts’ examinations were mostly limited to purely formal issues, principally whether the copies of the results protocols obtained from the precinct commissions following the conclusion of the count had complied with numerous requirements applicable to such documents. The courts routinely dismissed documents attested to by signatures of PEC competent officials and stamps as invalid evidence for trivial reasons, such as failure to indicate the running number of the copy from which the copy in question had been made, absence of indication of the address of the precinct commission, or inscription that it was an authentic copy (see, for example, paragraphs 118, 134, 143, 147 above). The Court does not want to deny the importance of adherence to the rules of procedure in the matters of election administration and recording. At the same time, national courts have at their disposal other means of establishing the authenticity of documents and of ensuring examination of complaints in substance, even where certain documents may raise questions as to their authenticity. The central issue of the complaints concerned the reasons for and procedural safeguards for recounts, as well as the results to the detriment of the SR and the benefit of ER. These aspects were not addressed by the district courts, which regularly referred to the official endorsement of the final results by the electoral commissions as the principal reason to dismiss the allegations as unfounded (see, for example, paragraphs 120 and 136 above).
  9. It seems that only rarely did the courts find it necessary to call additional witnesses, in order to ascertain the reasons for and conditions of recounting of results in the elections. Thus, in the proceedings concerning fifty-four precincts in electoral divisions nos. 18 and 19 (the same precincts as those challenged by applicants one to six), the Kolpino District Court called a number of officials and observers from the PECs concerned. The witnesses supported the claimant’s assertions about the discrepancies between the figures obtained in precinct commissions and the official results, systematic lack of notification of precinct officials about the decisions to recount, and the fact that they had not been able to attend the process (see paragraph 118 above).
  10. The testimony by one member of TEC no. 21, which had ordered and conducted a recount, strongly indicated that at least some of the provisions of the national legislation applicable to the procedure had not been complied with: the reasons for ordering it were not clearly spelled out, the persons authorised to be present were not informed, and the counting took place in a different room, which was not freely accessible to the observers and other officials (see paragraphs 137 and 138 above). The same witness stated that the recount had been conducted by two people-herself and the TEC deputy chairman – in a basement room containing virtually no furniture except two chairs, and where all the ballot papers deposited with the TEC were stored; while the results protocols drawn up by TEC no. 21 indicated that the recount of over 11,300 votes in division no. 19 was conducted in just three hours and forty-five minutes (see paragraph 162 above). Apart from anything else, it is very difficult to reconcile such rudimentary physical conditions for a recount with the speed with which it was carried out. However, even this weighty evidence in favour of the allegation of serious breaches of the procedure did not lead the District Court, or the St Petersburg City Court on appeal, to question the validity of the results.
  11. In the remaining sets of proceedings initiated by various actors before the district courts (see section H of the Circumstances of the case), as in the procedures described above, the courts systematically failed to seek and admit additional evidence in order to dispel doubts about the authenticity of the “original” results protocols, refused to call witnesses asked for by the applicants, and satisfied themselves with endorsement of the election results as announced by the election commissions. The examples of judgments rendered by other district courts in St Petersburg following similar complaints (see paragraph 192 above) strongly point to the existence of a practice, in respect of this set of elections, whereby such complaints, however common and well-documented, were dismissed on purely formal grounds.
  12. To sum up, the complaints about alleged violations in LA and Duma elections by the recount procedure and the ensuing results in the precincts concerned have been duly put before the courts, by the applicants in their personal capacity as voters, members of the electoral commissions and candidates, and branches of political parties. The courts were competent, under both federal and regional legislation, to perform independent and effective evaluations of allegations of breaches of the right to fair and free elections. However, they generally refrained from going into the substance of the allegations, limiting their analysis to trivial questions of formalities and ignoring evidence pointing to serious and widespread breaches of procedure and transparency requirements. In essence, they endorsed the electoral commissions’ decisions, without engaging in any real examination of the reasons for the challenges.
  13. In view of this, the Court finds that the Government’s objection of non-exhaustion by failure to seek further judicial review by some applicants should be dismissed. It also finds that the domestic courts have not ensured a procedure which could comply with the requirement of providing sufficient guarantees against arbitrariness in the review of an arguable claim of serious violations of electoral rights.

(v) Conclusion

  1. The Court confirms that individual voters’ right to appeal against the results of voting may be subject to reasonable limitations in the domestic legal order. Nevertheless, where serious irregularities in the process of counting and tabulation of votes can lead to gross distortion of the voters’ intent, such complaints should be effectively examined by the domestic authorities. Failure to ensure effective examination of such complaints would constitute violations of individuals’ right to free elections guaranteed under Article 3 of Protocol No. 1 to the Convention, in its active and passive aspects.
  2. The applicants in the present case made an arguable claim that the fairness of the elections both to the St Petersburg LA and the State Duma in the precincts concerned was seriously compromised by the procedure in which the votes had been recounted. In particular, the extent of recounting, unclear reasons for ordering it, lack of transparency and breaches of procedural guarantees in carrying it out, as well as the results whereby the ruling party gained votes by large margins, strongly support the suspicion of unfairness. This complaint was raised before different State authorities that could, at least potentially, be regarded as effective and accessible remedies. In particular, the courts were empowered to consider complaints from the participants of the electoral process, to obtain and examine relevant evidence and, if the irregularities were sufficiently serious, to overturn the decisions of the relevant electoral commissions. However, none of the avenues employed by the applicants afforded them a review which would provide sufficient guarantees against arbitrariness.
  3. There has accordingly been a violation of Article 3 of Protocol No. 1 to the Convention in respect of each applicant, in so far as they have been denied effective examination of their complaints about serious irregularities in the procedure in which the votes had been recounted.
  4. In the light of this finding, the Court concludes that it is not necessary to examine separately the applicants’ remaining complaints under Article 3 of Protocol No. 1 to the Convention.

 

  1. Alleged violation of Article 34 of the Convention

 

  1. Two applicants complained of hindrance of their right to individual petition as enshrined in Article 34 of the Convention, which reads:

“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

  1. On 27 October 2014 the first applicant informed the Court, through Ms Napara, that he had received a telephone call inviting him to attend a meeting with an investigator at the St Petersburg Department of the Investigative Committee. He perceived the invitation as connected to the complaint lodged with the Court and aimed at dissuading him from supporting it. He did not attend the meeting.
  2. In February 2015 Ms Napara informed the Court that in September 2014 the second applicant, Ms Andronova, had not received appropriate medical aid in St Petersburg, which could be linked to her complaint.
  3. The Government submitted that only the first applicant, Mr Davydov, had expressly notified the Court about his contact with the investigator. The Government further argued that the applicant had been able to exercise his right to individual petition without any hindrance. He ignored the invitation and the investigator, having collected sufficient information by other means, issued a decision not to open a criminal investigation, acting at the request of the CEC chairman (see paragraphs 169 – 172 above).
  4. The Court agrees that only the first applicant made a corroborated complaint of hindrance. The allegations by the second applicant do not seem to raise prima facie issues under Article 34 of the Convention, and are therefore rejected.
  5. In respect of the contact made by the investigator with the first applicant, which is not disputed by the parties, the Court reiterates that applicants should be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints. The expression “any form of pressure” must be taken to cover not only direct coercion and flagrant acts of intimidation of applicants or their legal representatives but also other improper indirect acts or instances of contact designed to dissuade or discourage them from pursuing a Convention remedy or having a “chilling effect” on the exercise of the right of individual petition by applicants and their representatives (see Fedotova v. Russia, no. 73225/01, § 48, 13 April 2006; Mechenkov v. Russia, no. 35421/05, § 116, 7 February 2008; and Yefimenko v. Russia, no. 152/04, § 164, 12 February 2013). At the same time, Article 34 does not prevent the State from taking measures to improve an applicant’s situation or even from solving a problem which is at the heart of the Strasbourg proceedings (see Vladimir Sokolov v. Russia, no. 31242/05, § 81, 29 March 2011).
  6. The Court reiterates that the inquiry in question was initiated at the request of the head of the CEC, to check the authenticity of the documents relied upon by the applicants, both in the domestic proceedings and before the Court. It does not appear that the State officials tried to persuade the applicant, directly or indirectly, to withdraw his complaint, or that being summoned in this connection to the investigative committee in itself amounted to a breach of the right of individual petition.
  7. The parties agree that the first applicant ignored the summons and that the relevant complaint was eventually rejected for lack of evidence of any crime. In such circumstances, there is insufficient factual basis to enable the Court to conclude that any undue pressure or any form of coercion was put on the first applicant as a result of the case before the Court (see Alpatu Israilova v. Russia, no. 15438/05, §§ 95 – 98, 14 March 2013, and Lyapin v. Russia, no. 46956/09, § 40, 24 July 2014).
  8. In such circumstances, the Court finds that the respondent State has not failed to comply with its obligations under Article 34 of the Convention in respect of the first two applicants.

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