CASE OF YABLOKO RUSSIAN UNITED DEMOCRATIC PARTY AND OTHERS v. RUSSIA
Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Stand for election);No violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Vote)
Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
5. The Republic of Karelia (“Karelia”) is a subject (constituent region) of the Russian Federation. Under Article 73 of the Constitution of the Russian Federation, subjects of the Federation possess the full authority of the Russian State in all matters other than those that come within the sole jurisdiction of the federal government or within the shared jurisdiction of federal subjects and the federal government to the degree of the latter’s scope of authority. 6. At the relevant time, the Legislative Assembly of Karelia (hereinafter “the LA”) had fifty members elected by universal direct suffrage for a five-year term. Twenty-five seats were allocated on a proportional representation basis to registered party lists receiving at least 7% of the region-wide vote, while the remaining seats were allocated to the winners of twenty-five single-mandate constituencies, determined by majority vote. There was no minimum turnout for the election to be valid, and each voter could only vote for one party and one candidate in the electoral constituency in which he or she resided. 7. The regional branch of the Yabloko political party was registered by a competent State authority (at that time the regional department of the Ministry of Justice) in 2002. 8. On 26 April 2006 the regional council of the applicant party called for a regional party conference to be held in two sessions on 27 May and 12 August 2006, respectively. The aim was to prepare for the LA elections that were to take place in autumn 2006. 9. Between 27 April 2006 and 26 May 2006 local party branches throughout Karelia held assemblies and conferences in accordance with the Yabloko party’s articles of association (hereinafter, “the charter”) and selected delegates to attend the regional party conference. At the time, the regional party had over 3,800 members, of whom 474 were so-called “registered party members”, that is, members who had specifically asked to be registered with the local party bodies in order to participate more actively in the party’s work, such as regional conferences. As a result, the 474 registered members elected forty-seven delegates to the regional conference. 10. On 27 May 2006 thirty-seven delegates present at the conference expressed their desire to participate in the upcoming LA elections. The nomination of candidates to the party list and electoral circuits was left to the second session scheduled for 12 August 2006. 11. On 10 and 11 June 2006 the Yabloko party at national level held its Thirteenth Party Congress, which adopted several amendments to the party’s charter. The charter maintained the division between party members and registered party members. In accordance with paragraph 9.1.14 of both versions the right to elect and be elected to the party’s governing and controlling bodies was reserved to registered members. The 2006 version specified, additionally, that party members who did not register automatically delegated the right to elect and be elected within the party to the registered party members of the relevant local branch. 12. On 4 July 2006 the LA set an election date of 8 October 2006. 13. On 27 July 2006 the amendments to the Yabloko national party charter were registered with the Federal Registration Service, upon which date they came into force. 14. On 12 August 2006 the regional party conference resumed. Thirty-seven of the forty-seven party delegates were present, and a quorum was declared. In accordance with the party’s charter, the conference nominated a 25-member party list and candidates for three electoral constituencies by secret ballot. The second and third applicants were chosen to run for office in two single-mandate constituencies. 15. The conference was attended by two representatives from the Karelia Directorate of the Federal Registration Service of the Ministry of Justice, and two members of the Central Electoral Commission of the Republic of Karelia (“the Electoral Commission”). At that time they did not report any irregularities in the conduct of the regional party conference. 16. On 16 August 2006 the applicant party submitted documents to the Electoral Commission in order to participate in the forthcoming election. On 21 August 2006 it paid the requisite deposits (150,000 Russian roubles (RUB) in respect of the party list and RUB 60,000 in respect of each of the three single-mandate candidates). 17. On 17 and 22 August 2006, after reviewing the documents, the Electoral Commission issued Orders nos. 65/343-3 and 66/352-3, by which it registered the applicant party’s three candidates, including the second and third applicants, and the party list. 18. On 31 August 2006 the Karelia Directorate of the Federal Registration Service wrote to the Electoral Commission and informed it that the party conference of 12 August 2006 had been based on the participation of registered party members, and not party members in general. It referred to the provisions of the legislation on political parties (see below) which guaranteed equal rights of participation in party activities for all members. It argued that the party could not make a distinction between registered and other party members for the purposes of internal activities. As such, the conference of 12 August 2006 had been held in breach of the applicable legislation. 19. On 8 September 2006 the Electoral Commission applied to the Supreme Court of the Republic of Karelia (hereinafter the Karelia Supreme Court) to annul its own decision to register the party list and single-mandate candidates. Referring to the letter of 31 August 2006, the Commission referred to the provision of the Basic Guarantees Act allowing the judicial annulment of the registration of individual candidates and party lists where “new facts” had come to light showing a violation of federal or regional law regulating the nomination of candidates. 20. In the meantime, on 11 September 2006 the Electoral Commission wrote to the head of the Federal Registration Service and informed him of the application lodged with the court. It also enquired which version of the charter should be applicable to the party conference of 12 August 2006 since the party had submitted the 2004 version to the Commission. 21. On 12 September 2006 the Federal Registration Service replied to the Electoral Commission that the new charter had been registered by that service on 27 July 2006 and that on the same day the old version of the document had ceased to be valid. The regional party should therefore have submitted the new version as the one applicable to their conference of 12 August 2006. At the same time, the Service stated that in June 2006 Yabloko had received a warning from it in connection with its differentiating between registered and other party members, and that the new version of the charter had contained provisions designed to correct that. In view of those considerations, the decision of the regional conference of 12 August 2006, which had been based on the previous version and had taken only registered members into account, could be seen as being in breach of the relevant legislation. 22. On 15 September 2006 the Karelia Supreme Court allowed the application of the Electoral Commission and annulled the decisions of 17 and 22 August 2006 to register the applicant party’s list and candidates. It referred to the conclusions of the Federal Registration Service and found that the procedure whereby only registered members had taken part in the decision-making process had contradicted the legislation on elections and on political parties. It also noted that the party had submitted an invalid version of its charter. 23. More specifically, the court concluded that the annulment decision was justified because the participation of a minority of the party’s regional membership in the nomination process had thwarted “the will of the majority”, finding as follows: “If one takes a formal approach to the problem it seems that all the requirements governing the nomination of the lists of candidates were observed. At the same time the court believes that the procedure for the nomination of the lists of candidates [to the LA] was breached. It was established at the court hearing that only so-called ‘registered members of the party’ participated and nominated the lists of candidates [to the LA] at the regional conference. What is the difference between ‘registered members of the party’ and ‘unregistered members’? Let us turn to section 7 of the party’s charter... The practice of applying these provisions of the charter in the party’s regional division in the Republic of Karelia is such ... that members of the party determine themselves whether to actively participate in the work of the regional branch of the party or to participate [only] as needed ... Accordingly, they decide whether to register with the regional branch or not. If a party member asks to be registered, one of the local branches, or the regional one, registers him with the [relevant] branch. From that moment the party member obtains the rights provided for by p. 9.1.14 of the charter... It is impossible to agree with applying the party’s charter in such a way. ... Section 8.4 of the [Political Parties Act] states that political parties should provide an equal opportunity for representation in a party’s governing bodies, in election lists and other positions ... Section 23.4 and 5 of the [Political Parties Act] establish that members of political parties take part in its functioning, have rights and bear obligations in line with the charter. Members have the right to elect and be elected to the party’s governing bodies, ... receive information about the party’s activities and the work of its governing bodies. However, this right, under p. 9.1.14 of the [Yabloko] charter, is reserved to a limited number of persons – ‘registered members’ – which in turn breaches the principle of the equality of party members as set out in Section 8.1 of the [Political Parties Act]. As a result, while the number of party members in Karelia was 3,824 (1 April 2006), the Conference was attended by 37 delegates who represented 394 registered members (15% of the total number of members). ... A democratic regime is characterised by the wide participation of the population in forming the organs of State authority and a wide spectrum of political rights and freedoms for citizens governed by the rule of law, the protection of the rights and legal interests of citizens and others. One can imagine that those exact same elements should appear in the activities of any democratic party. The Constitutional Court of the Russian Federation has emphasised the significance of the principle of the mandatory will of the majority, pointing out that ‘...elections as a means of determining the will of the people and forming the corresponding legitimate organs of State authority and local government, on whose behalf they exercise public authority, is based on the priority of the will of the majority of voters taking part in the vote’ (ruling of the Constitutional Court of 5 November 1998...). This principle applies with equal measure to the nomination of lists of candidates to [the legislature], since the basis for forming the representative bodies are the [candidates] nominated by political parties. In this specific case the principle of the ‘will of the majority’ was violated. In such circumstances, the court believes that the order for submitting electoral lists of candidates to the Karelia LA has been breached.” 24. The court dismissed the applicant party’s argument that interpreting the law in such a way constituted interference by the State authorities with the party’s internal organisation. The court responded by saying that it had been the conference’s duty to ensure compliance with the applicable legislation. 25. Lastly, the court noted that the party had submitted an invalid version of its charter. As a consequence, the court cancelled the registration orders of 17 and 22 August 2006. 26. The applicant party lodged an appeal against that decision with the Supreme Court of the Russian Federation. It stressed that the difference in treatment between registered and other party members could not be regarded as a “newly discovered fact” since it had been based on the party’s charter of 2004, which had been registered with the relevant service. A record of the entire proceedings of the conference had been submitted to the Karelia Registration Service, together with a copy of the charter on which both stages of the conference had been based. The party also pointed out that the Service had had two members present at the conference in August 2006, and therefore should have been fully aware of the procedure applied. 27. On 29 September 2006 the Supreme Court of the Russian Federation dismissed the applicant party’s appeal, with reasoning that was similar to that of the Karelia Supreme Court. 28. As a result of the annulment order coming into force the applicant party lost its election deposits. 29. On 8 October 2006 elections to the Fourth Legislative Assembly took place. The party list and the single constituency candidates nominated by the applicant party were not present on the ballot. The fourth applicant submitted that she had cast a ballot for the Yabloko party list, but that her choice had not been counted in the election results. 30. The Government submitted the following information about the elections which took place on 8 October 2006. Seven parties competed for places in the regional assembly: the Karelia branch of the Communist Party of the Russian Federation (KPRF) (obtained 12.77% of the votes cast), the Party of National Resurrection “People’s Will” (1.58%), the regional branch of the Patriots of Russia party (4.39%), the regional branch of United Russia (38.92%), the regional branch of the Liberal-Democratic Party of Russia (LDPR) (8.86%), the regional branch of the Russian Party for Life (16.19%) and the regional branch of the Russian Pensioners’ Party (12.06%). The total number of people who voted in the elections was 183,503, or 32.98% of the electorate. 31. The Government also presented information about the subsequent election to the Karelia LA, in which Yabloko candidates had participated. That election took place on 4 December 2011 and had five parties competing. Yabloko obtained 7.13% of the votes and had deputies elected to the LA. A total of 50.03% of voters took part.