CASE OF SUKHOVETSKYY v. UKRAINE
No violation of P1-3;Not necessary to examine under Art. 14+P1-3
Antonella Mularoni;Ireneu Cabral Barreto;Jean-Paul Costa;Karel Jungwiert;Volodymyr Butkevych;Zoryana Bortnovska
7. The applicant was born in 1939 and lives in the village of Agronomichne, Vinnitsa region. 8. On 30 January 2002 the electoral commission of constituency no. 11 refused to register the applicant as a candidate in the parliamentary elections on account of his failure to pay the electoral deposit, the amount of which was sixty times the tax-free monthly income (1,041 Ukrainian hryvnias (UAH)). On 8 February 2002 the Central Electoral Commission upheld this decision, noting, inter alia, that the applicant had submitted all the relevant documents to the local electoral commission, but had failed to pay the electoral deposit as required by the Parliamentary Elections Act of 18 October 2001. 9. The applicant challenged these decisions before the Supreme Court, stating that he was unable to pay the deposit as his annual income (approximately UAH 960) was less than this sum. 10. By a judgment of 15 February 2002, the Supreme Court dismissed the applicant’s complaint. In particular, the court found that the applicant was free to stand as a candidate for parliamentary elections on condition that he pay the electoral deposit. The court also referred to the Ukrainian Constitutional Court’s decision of 30 January 2002 which stated that the deposit requirement complied with the Constitution. 11. The relevant Articles of the Constitution provide as follows: “...There shall be no privileges or restrictions based on ... political ... and other beliefs ..., [or] property status ...” “... A citizen of Ukraine who has attained the age of 21 on the date of elections has the right to vote and, if that citizen has resided in the territory of Ukraine for the previous five years, may become a member of the national parliament ...” 12. Section 8(1) of the Act as worded at the material time established that a Ukrainian citizen who had reached the age of 21 by the date of the elections, had been resident in Ukraine for the last five years before the elections and was entitled to vote was eligible to stand for election to Parliament. 13. Under section 38(2) of the Act, a Ukrainian citizen who was eligible for election to Parliament could put forward his or her own candidature by lodging an application with the competent district electoral commission. 14. Pursuant to section 43(1) and (2), at the material time a party or block of parties, and independent candidates, were required to pay, respectively, an electoral deposit of 15,000 times and 60 times the tax-free monthly income. The deposits were returned to successful candidates and parties (that is, parties which received at least 4% of the national vote) and money deposited by unsuccessful candidates and parties was forfeited. 15. Section 51 provided for State funding of part of the expenses incurred by registered candidates during an electoral campaign. Candidates had equal access to State funding. 16. According to section 52, the competent district electoral commissions were to print 2,000 copies of electoral posters for each registered candidate, the cost being borne by the State budget. 17. Under section 54, State-run local television and radio broadcasting companies were to provide each registered candidate with ten minutes of free air-time to present their programme to the electors. The cost was borne by the State budget. 18. On 1 October 2005 Parliament amended the Act, replacing the mixed proportional/majority electoral system with party-list proportional representation. 19. Proceedings were initiated before the Constitutional Court following a constitutional petition (конституційне подання) by sixty-three members of parliament, who challenged section 43 of the 2001 Act on the ground that it established a property qualification, which discriminated against less successful citizens and was contrary to Article 24 of the Constitution. The Speaker of Parliament and the President of Ukraine submitted observations on the issue. The Speaker upheld the disputed provision in principle, but expressed his concern as to the actual amount of the required deposit. The President indicated that he had vetoed the original bill during its passage through Parliament on the ground that the proposed amount was excessive. According to the President, once the deposit had been substantially lowered, this measure ceased to violate human rights and freedoms. 20. The Constitutional Court held that the electoral deposit was not a direct or indirect limitation of the right to stand for election, since it did not predetermine the citizen’s right to elect or be elected. The deposit was no more than a precondition for the candidate’s registration by the electoral commission. All candidates had to pay the same amount, irrespective of their financial situation, and thus it could not be considered discriminatory on grounds of property. The electoral deposit was intended both to encourage a responsible attitude towards elections on the part of potential candidates and to prevent an abuse of electoral rights. Moreover, it was aimed at preventing excessive or unreasonable expenditure of the State funds allocated to cover candidates’ costs. 21. The Constitutional Court also indicated that establishment of the actual amount of the deposit fell within the discretionary powers of the political authorities and was thus outside its jurisdiction. 22. The electoral commission of the single-member constituency no. 11 registered twenty candidates for the 2002 parliamentary elections (two subsequently withdrew), twelve of whom were independent candidates, including two professors and a doctor who worked in a public hospital. 23. The electoral laws of at least fourteen member States of the Council of Europe require deposits to be made by candidates for election, although in some this condition applies to electoral lists, not individual candidates. Several democratic States outside Europe have also introduced this requirement (see paragraphs 30-33 below). 24. The sum to be paid is calculated in various ways, for example, by multiplying certain amounts predetermined by law (such as the minimum wage in Armenia, the average wage in Lithuania) or by applying a fixed amount (as in Bulgaria). The actual sum for individual candidates currently varies from EUR 92 (Malta) to EUR 2,600 (Bulgaria). 25. Although registered candidates usually receive various forms of support from public funds (free television air-time, postal services, premises for meetings, etc.), this is not always the case. 26. Deposits are normally refunded if the candidate obtains a certain percentage of the votes cast. Only the laws of Ukraine, Turkey and Lithuania provide that the deposit is forfeited if the candidate does not actually win a seat. 27. In the Redmond case (Redmond v. Minister for the Environment [2001] IEHC 128), the plaintiff argued before the Irish High Court that, since he was unemployed and had virtually no financial resources, he was unable to pay the deposit required for national parliamentary elections and European elections (300 and 1,000 Irish pounds respectively). In his judgment (at paragraph 80), Mr Justice Herbert summarised eight reasons which had been put forward to justify a deposit system or some equivalent filter: “1. Excessively ... large numbers of citizens offering themselves for election to membership of Dáil Eireann would undermine the democratic nature of the State. 2. The presence of a large number of names on a ballot paper would serve to confuse the electorate. 3. Voters would be likely to make a choice before reading a long list of candidates to the end and this would not serve democracy. 4. The more unsuccessful candidates there are in an election the more difficult it is to achieve proportional representation so that a major ... increase in the number of candidates would serve to undermine the proportional representation single transferable vote system of election mandated by Article 16, section 2, subsection (5) of the Constitution. 5. The greater the number of unsuccessful candidates the more difficult it becomes for voters to predict the outcome of the election so that their ability to properly manage their vote is lost or impaired. 6. The counting of votes would take longer as the numbers of candidates increased and with more candidates there was a greater scope for more and longer recounts. 7. With many candidates seeking to persuade the electorate within the maximum period of 30 days allowed by Article 16, section 3, subsection (2) of the Constitution, election campaigns would become disruptive and the electorate could become confused or apathetic. 8. The process of nomination, delivering nominations, and ruling on the validity of nominations would become overwhelmed if large numbers of candidates were to stand for election.” 28. Mr Justice Herbert went on to hold that the deposit system discriminated against persons of reduced means and was thus an attack on their human dignity. Having considered the justifications above, he nevertheless concluded that there was no real evidence that abolishing the deposit system would cause such serious disruption, as those arguments were based on surmise. In conclusion, he ruled that, in the absence of some alternative route to the ballot paper, the deposit system was unjust, unreasonable and arbitrary. 29. The following year, the deposit system was replaced by a nomination and signatures system. 30. In Figueroa v. Canada (Attorney-General), the plaintiff, leader of the Communist Party of Canada, challenged various aspects of Canadian electoral law on the ground that they allegedly discriminated against small, unrepresented parties such as his. 31. In the Ontario Court of Justice, Justice Molloy invalidated the existing deposit rule, according to which the 1,000 Canadian dollars (CAD) required from election candidates was only refunded in full to those who obtained more than 10% of the votes cast. Those who obtained less received only CAD 500 of the original deposit. The judge found this to be in violation of section 3 of the Charter of Rights and Freedoms (active and passive voting rights), and recommended the full reimbursement of the deposit irrespective of the candidate’s score. 32. Before the Ontario Court of Appeal, Justice Doherty did not accept the lower court’s equation of fairness with strict equality of treatment in the matter of electoral law. He held that the essential purpose of section 3 of the Charter was to guarantee the right to effective representation, rather than ensuring absolute parity. Equal treatment was an important consideration, but not the only one. 33. In the third periodic report of Mauritius, the Mauritian delegation stated: “With reference to the recent case in which a political organisation had contested the amount by which electoral deposits had been raised, the Supreme Court had decided that the size of the increase would prevent people from standing for election and was therefore unconstitutional. The Government had originally amended the law to stop people from standing for frivolous reasons and obtaining large amounts of air-time in exchange for a very modest deposit. In the wake of the Supreme Court ruling, electoral deposits had reverted to the previous amount of 250 rupees.” 34. A political debate concerning the electoral deposit is currently under way in the United Kingdom. 35. The deposit was first introduced in 1918 in the Representation of the People Act, and fixed at 150 pounds sterling (GBP). The refund threshold was one-eighth of the votes cast. The Representation of the People Act 1985 reduced the threshold to 5%, but increased the deposit to GBP 500. 36. In 2003 the Electoral Commission, concerned by growing political absenteeism in the United Kingdom, published a report entitled “Voting for change”, in which, inter alia, it advocated the abolition of the deposit system. The Commission considered that this requirement clearly disadvantaged small parties and independent candidates (for example, the Green Party lost all of its deposits in the 1992 and 1997 parliamentary elections). 37. The government did not support this proposal, considering that the elimination of the deposit would allow anyone to stand for election and gain access, for instance, to free leafleting, without any proper safeguards or deterrent. This could lead to a proliferation of candidates causing administrative complexity and frivolous candidatures. Instead it proposed to simplify the system of deposits (keeping the deposit for parliamentary elections at GBP 500) and to reduce the refund threshold to 2% of votes cast. In 2005 a bill to this effect was put before Parliament (SN/SG/3779). 38. The relevant part of the Code of Good Practice in Electoral Matters provides: “Principle I.1.3. Submission of candidatures ... vi. If a deposit is required, it must be refundable should the candidate or party exceed a certain score; the sum and the score requested should not be excessive.” 39. The Venice Commission has offered expert evaluations of the electoral laws of many Council of Europe member States. The issue of electoral deposits was one of the Commission’s concerns when assessing the draft amendments to the Armenian Electoral Code. The draft joint opinion of the Venice Commission and the Office for Democratic Institutions and Human Rights of the Organisation for Security and Co-operation in Europe (the OSCE/ODIHR) stated: “20. The draft amendments eliminate the requirement of collecting signatures supporting a candidate’s nomination and raise the amounts of electoral deposits. This is acceptable in principle. However, the draft (amendments to Articles 71(1), 101(1)(1) and 108(2)), would raise the electoral deposits significantly (in case of presidential elections, from 5,000 to 8,000 [times the minimum salary]; in case of proportional elections, from 2,500 to 4,000 and in case of majority elections from 100 to 150 times the minimum salary). It is recommended that these increased deposit amounts be reconsidered, as it is not apparent that the existing deposit amounts are insufficient to deter frivolous candidates. An unreasonably high electoral deposit also presents a problem under international and European standards. It is an established principle that wrongful discrimination includes discrimination against a person on the basis of social or property status. Thus, the amount of an electoral deposit must be considered carefully to ensure that it does not prevent the candidacy of a serious candidate who happens to be economically disadvantaged.” 40. However, as the Armenian authorities followed the Commission’s recommendations, electoral deposits ceased to be a matter of concern for international experts. The Final Opinion on the Amendments to the Electoral Code of the Republic of Armenia contained the following passage: “17. The amendments eliminate the requirement of collecting signatures supporting a candidate’s nomination. This is acceptable in principle. Contrary to the various previous drafts, the deposits are not raised in the amended Code (Articles 71(1), 101(1)(1) and 108(2)), and remain the same as in previous elections, e.g. in case of presidential elections, at 5,000; in case of proportional elections, at 2,500; and in case of majority elections at 100 times the minimum salary. This corresponds to the previous Venice Commission and OSCE/ODIHR recommendations. Absent evidence of high numbers of potential frivolous candidates, such deposits seem reasonable.” 41. In General Comment no. 25(57), adopted by the United Nations Human Rights Committee under Article 40 § 4 of the International Covenant on Civil and Political Rights, dated 12 July 1996, the Committee referred briefly to the issue of election fees or deposits in the following terms: “16. ... Conditions relating to nomination dates, fees or deposits should be reasonable and not discriminatory.” 42. In its Concluding Observations on the report of the United States of America, the Committee commented on the broader (but related) issue of the substantial financial investment required of election candidates in the United States: “289. The Committee welcomes the significant efforts made in ensuring to everyone the right to vote but is concerned at the considerable financial costs that adversely affect the right of persons to be candidates at elections.”