AS TO THE ADMISSIBILITY OF
Application no. 13716/02
by Anatoliy Yosypovych SUKHOVETSKYY
The European Court of Human Rights (Second Section), sitting on 1 February 2005 as a Chamber composed of:
Mr J.-P. Costa, President,
Mr I. Cabral Barreto,
Mr R. Türmen,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs A. Mularoni,
Ms D. Jočienė, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application lodged on 5 March 2002,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Anatoliy Yosypovych Sukhovetskyy, is a Ukrainian national, who was born in 1939 and lives in Kyiv.
A. The circumstances of the case
On 30 January 2002 the Electoral Committee of the electoral district No. 11 refused to register the applicant as a candidate for the parliamentary elections due to his failure to pay the election deposit of sixty times the tax-free monthly income1 (UAH 1,0412). On 8 February 2002 the Central Electoral Committee upheld this decision, noting, inter alia, that the applicant had submitted to the local Electoral Committee all the relevant documents, but had failed to pay the election deposit as required by the Law on Parliamentary Elections of 18 October 2001.
The applicant challenged these decisions before the Supreme Court, stating that he was unable to pay the deposit as his annual income (approximately UAH 9603) was less than this sum.
By judgment of 15 February 2002, the Supreme Court rejected the applicant's complaint. In particular, the court found that the applicant was free to stand as a candidate for the parliamentary elections on condition that he paid the election deposit. The court also referred to the decision of the Constitutional Court of Ukraine of 30 January 2002 whereby the deposit requirement was declared to be in conformity with the Constitution.
B. Relevant domestic law and practice
1. Constitution of Ukraine
“... There shall be no privileges or restrictions based on ... political ... and other beliefs..., [or] place of residence ...”
“... A citizen of Ukraine, who has attained the age of twenty-one on the date of elections, has the right to vote and, if that citizen has resided in the territory of Ukraine for the past five years, may be a national Member of Parliament...”
2. The Law on Parliamentary Elections of 18 October 2001
Article 8 § 1 of the Law establishes that a Ukrainian citizen who has reached the age of 21 by the date of an election, has been residing in Ukraine for five years before the elections and has the right to vote, shall be eligible for election to the Parliament.
By Article 38 § 2 of the Law, a citizen of Ukraine, who is eligible for election to Parliament, may propose his/her own candidature by lodging an application with the competent District Electoral Committee.
Pursuant to Article 43 § 2 a candidate running for elections is required personally to pay the district Electoral Committee a deposit of sixty times the aforementioned, fictional, tax-free monthly income. The deposit is returned to the successful candidate and the money deposited by the unsuccessful candidates is forfeited.
Article 51 provides for State funding of a part of the expenses incurred by a registered candidate during an electoral campaign. The candidates have equal access to the State funding.
According to Article 52, the relevant District Electoral Committee publishes 2,000 copies of electoral posters for each registered candidate, the cost being borne by the State budget.
Under Article 54 the State-run local television and radio broadcasting companies provide registered candidates each with ten minutes free air-time to present themselves to the electors. The cost is borne by the State budget.
3. The decision of the Constitutional Court of 30 January 2002
The Constitutional Court held that the election deposit was not a direct or indirect limitation of the right to stand for election as it did not predetermine the citizen's right to vote or to stand for election. The deposit was no more than a pre-condition for the candidate's registration by the Electoral Committee. All candidates had to pay the same amount irrespective of their financial situation. The election deposit was intended both to encourage a responsible attitude on the part of possible candidates towards elections and to prevent an abuse of electoral rights and excessive or unreasonable expenditure from the State budget.
The applicant complained under Article 3 of Protocol No. 1 to the Convention, separately and in conjunction with Article 14, about the refusal to register him as a candidate for parliamentary elections. He maintained that the refusal was based on his financial status and therefore his right to participate in the elections was limited in comparison with other “wealthy” candidates.
He also referred to Articles 17 and 18 of the Convention, without any particular substantiation.
1. Complaints under Article 3 of Protocol No. 1 and Article 14 of the Convention
The applicant complained under Article 3 of Protocol No. 1 and Article 14 of the Convention that it was impossible for him to stand for parliamentary election on account of his inability to raise the money to pay the election deposit. Article 3 of Protocol No. 1 and Article 14 of the Convention read as follows:
Article 3 of Protocol No. 1
“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.”
“The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The respondent Government maintained in their observations that the election deposit encouraged a responsible attitude by possible candidates towards elections and was aimed at preventing an abuse of electoral rights and excessive or unreasonable expenditure from the State budget. In particular, they referred to the provisions of the Law of 18 October 2001 which provided for State funding for a part of the expenses incurred by a registered candidate during an electoral campaign (publishing of electoral posters, free air-time on local broadcasting media, etc.). The Government also stressed that all candidates had to pay the same amount irrespective of their financial situation. They further pointed out that a similar pre-condition for registration of candidates for parliamentary elections existed in other Contracting States. The Government also stated that the sum to be deposited was not excessive and that the applicant could have raised it by, for example, mortgaging his apartment.
The applicant maintained that any limitation of the right set out in Article 3 of Protocol No.1 impaired the conduct of free elections and that the introduction of the deposit deprived him of an opportunity to stand for election. He also alleged that the impugned measure was disproportionate to the aims pursued.
The Court considers, in the light of the parties' submissions, that the complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination on the merits. The Court concludes therefore that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.
2. Complaints under Articles 17 and 18 of the Convention
The applicant also complained about a violation of Articles 17 and 18 of the Convention, without any particular substantiation. These provisions read as follows:
“Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”
“The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”
However, the Court finds that the applicant's complaints do not disclose any appearance of a violation of the Convention or its protocols and rejects this part of the application in accordance with Article 35 § 3 and 4 of the Convention as being manifestly ill-founded (see Strizhak v. Ukraine (dec.), no. 72269/01, 15 June 2004).
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicant's complaints under Article 3 of Protocol No.1 and Article 14 of the Convention.
Declares inadmissible the remainder of the application.
S. Dollé J.-P. Costa
1 At the material time the amount of the tax-free monthly income (UAH 17.00) was fixed by Presidential Decree no. 519/94 of 13 September 1994, and constituted a fictional rate used for the determination of wages, taxes, fines, etc.
SUKHOVETSKYY v. UKRAINE DECISION
SUKHOVETSKYY v. UKRAINE DECISION