AS TO THE ADMISSIBILITY OF
Applications nos. 17864/04 and 21396/04
by Aleksandr KRASNOV and Yuriy SKURATOV
The European Court of Human Rights (First Section), sitting on 23 March 2006 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr P. Lorenzen,
Mrs N. Vajić,
Mrs S. Botoucharova,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above applications lodged on 17 and 11 May 2004,
Having regard to the partial admissibility decision of 14 December 2004,
Having regard to the decision on the joinder of the above applications,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
The first applicant, Mr Aleksandr Viktorovich Krasnov, is a Russian national who was born in 1956 and lives in Moscow. The second applicant, Mr Yuriy Ilyich Skuratov, is a Russian national who was born in 1952 and lives in Moscow. The applicants are represented before the Court by Mr K. Eckstein, a lawyer practising in Moscow. The first applicant is also represented by Mr J. Boedels, a lawyer practising in Paris.
The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. General information
On 7 December 2003 the general elections to the State Duma of the Federal Assembly of the Russian Federation, the lower chamber of the Russian bicameral legislature, were held to elect 450 members for a term of four years. Of these, one half, that is 225 persons, were elected by a majority vote from single-member district constituencies. The other 225 seats were allocated on a proportional basis to federal rolls submitted by political parties or electoral blocs that gained more than 5 per cent of the valid votes cast in a single federal constituency ballot.
2. The first applicant, Mr Krasnov
(a) Mr Krasnov’s employment history
On 28 August 2001 Mr Krasnov was elected head of the district council of the Presnenskiy district of Moscow (глава районной управы Пресненского района г. Москвы).
On 6 November 2002 the Moscow City Duma adopted the law “on the organisation of local self-government in the city of Moscow” (no. 56). Section 10 determined that the bodies of local self-government in Moscow would include a municipal assembly (муниципальное собрание) as the representative body and a municipality (муниципалитет) as the executive body. Pursuant to transitional provisions of the law (section 43 § 2), heads of district councils who had been appointed or elected to their position before the law was adopted were to remain in power until the appropriate body had been formed, and its officials appointed or elected, in accordance with the law.
On 29 May 2003 the municipal assembly of the Presnenskiy district passed a decision to rename the district council of the Presnenskiy district of Moscow as the municipality “Presnenskiy” (муниципальное учреждение – муниципалитет «Пресненский»). On the same day the assembly adopted the regulation on the municipality “Presnenskiy” and appointed Mr Klubkov as its director.
On 16 June 2003 the director of the municipality “Presnenskiy” ordered the dismissal of the first applicant on the ground that he had not been re-elected to his position.
(b) Mr Krasnov’s bid for elections
On 24 September 2003 the first applicant submitted his self-nomination application for the elections to the State Duma, to the district election commission of central single-member constituency no. 202 (in Moscow). He indicated that he was employed as “the head of the district council of the Presnenskiy district of Moscow”. On the same day the first applicant paid RUR 900,000 (approximately EUR 25,700) by way of election deposit.
On 9 October 2003 the district election commission registered the first applicant as a candidate for election.
On 31 October 2003 the district election commission examined the materials concerning verification of the information submitted by the first applicant and decided to apply to the Moscow City Court with a request to quash its own decision of 9 October 2003 in the light of newly discovered circumstances.
On 6 November 2003 the Moscow City Court granted the request of the commission and annulled the first applicant’s registration as a candidate for the Duma elections. It established that the first applicant had submitted untrue information about his employment as the head of the district council of the Presnenskiy district of Moscow.
On 21 November 2003 the Supreme Court of the Russian Federation dismissed the first applicant’s appeal against the judgment of 6 November 2003, finding as follows:
“The [first-instance] court correctly applied the substantive law... [I]t determined that, once it had been established that the information submitted by a candidate about himself, including the place of his employment, was untrue and if such circumstance became known after the registration, a court... could annul the decision on registration.
Having examined the evidence obtained by the district election commission after the registration of Mr Krasnov, the court established that on 28 August 2001 Mr Krasnov had been elected the head of the Presnenskiy district council and that on the basis of a decision... of 29 May 2003... the district council was renamed as the municipality ‘Presnenskiy’ and Mr [Klubkov?] was appointed its director, whereas Mr Krasnov was dismissed... because he had not been re-elected... It follows that at the time of self-nomination Mr Krasnov was not the head of the district council of the Presnenskiy district of Moscow.
The arguments in the appeal to the effect that the re-organisation of the district council had been carried out in flagrant breach of the law and that Mr Krasnov’s dismissal had been unlawful cannot be the grounds for quashing of the judgment and declaring Mr Krasnov’s registration valid as the examination of these issues falls outside the scope of the present proceedings. Neither the re-organisation of the district council nor Mr Krasnov’s dismissal were... appealed against or annulled.
Mr Krasnov’s argument that his continued employment as the head of the district council is confirmed by the entry in his employment record, has been examined and rejected by the court. It follows from the case-file that on 23 June 2003 a letter was sent to Mr Krasnov’s address whereby he was invited to take cognisance of the dismissal order. The claimant did not make use of his procedural right to prove the circumstances on which his claims were based... For instance, he did not produce a certificate of the human resources department about his position at the moment of self-nomination or any orders (regulations) which he adopted after June 2003 as the head of the district council or any other proof of his employment in that period.”
The first applicant did not take part in the State Duma election and his request for return of the election deposit was refused.
3. The second applicant, Mr Skuratov
(a) Elections in the single-member constituency
On 20 October 2003 the second applicant submitted the documents concerning his nomination by the Communist Party of the Russian Federation (“CPRF”) for the elections to the State Duma, to the district election commission of the Buryatskiy single-member constituency no. 9. According to the list signed by the secretary of the commission, the second applicant enclosed an application form, copies of his passport, diplomas and employment record, tax and property declarations and a copy of a certificate showing the membership of the candidates to the State Duma elections of the Communist Party, signed by the Chairman of the Central Committee of the Communist Party, and addressed to the Central Election Commission of the Russian Federation (“the CEC”). The second applicant was listed no. 9 in the certificate; on the same line it was indicated that he was standing for elections in constituency no. 9 and that he was a member of the Communist Party.
On 27 October 2003 the district election commission refused registration of the second applicant, invoking the following three grounds:
“In the application written by the candidate Skuratov himself, his position is indicated as the ‘acting head of the department of constitutional, administrative and international law of the Moscow state social university’. However, according to the entries in the candidate’s employment record, his appointment as the acting head of the department... occurred at the same time as his transfer to the position of a professor of the same department... In fact, Mr Skuratov simultaneously performs the duties of the acting head of the department and those of a professor of [that] department, which does not correspond to the information that he provided about his employment.
Having indicated his membership of the Communist Party of the Russian Federation, the candidate... did not provide a document showing his membership of the CPRF and his status within the party, addressed to the District election commission and ratified by the standing management of the party. Instead, there was submitted a copy of a certificate concerning membership of candidates for the State Duma elections and their status within the party, addressed to the Central Election Commission...”
The third ground for the refusal was that the copies of the second applicant’s diplomas had been certified by a non-governmental organisation rather than by the competent authority.
On 29 October 2003 the second applicant complained to the Central Election Commission.
On 4 November 2003 the Central Election Commission determined that the district election commission had no solid grounds to consider that the second applicant had submitted untrue information. The CEC requested the district commission to reconsider the second applicant’s registration immediately.
On 11 November 2003 the district election commission issued a new decision to refuse the second applicant’s registration. It modified the first two grounds for refusal and added a new one. As to the second applicant’s employment, it stated that, according to a certificate of 29 October 2003 signed by the pro-rector of the Moscow State Social University and enclosed with the second applicant’s complaint to the CEC, Mr Skuratov was a professor of the department. Since a copy of that certificate had not been made available to the district election commission, the second applicant was considered to be in breach of the election laws in that he had failed to inform the commission of a change in his employment. As to the second applicant’s membership in the CPRF, the commission noted that he had been in possession of an appropriate document and enclosed it with his complaint to the CEC, however, he had only done so on 29 October 2003, that is after the registration period had expired on 22 October 2003. As a new ground for refusal, the commission found that the second applicant had printed certain campaigning materials which had not been paid for from his election fund.
The second applicant complained once again to the CEC.
On 20 November 2003 the Central Election Commission rejected his complaint. It determined that the second applicant had omitted to state that he had been also a professor in the university and that a document showing his membership in the CPRF had been incorrectly addressed.
The applicant contested these decisions before a court.
On 25 November 2003 the Supreme Court of the Buryatia Republic dismissed his claim, upholding the first two grounds for refusal invoked by the district election commission. It found that the second applicant had failed to inform the commission of his appointment to the position of a professor and to submit an appropriate document confirming his party membership.
On 29 November 2003 the Supreme Court of the Russian Federation upheld, on the applicant’s appeal, the judgment of 25 November 2003. It found as follows:
“It has been established that in the application form... of 2 October 2003 the candidate... Skuratov indicated his position as acting head of the department... However, it transpires from a copy of Skuratov’s employment record... that he was appointed the acting head of the department... by the order... of 30 May 2003. Pursuant to the order... of 28 May 2001 Skuratov had been elected for three years as a professor of the department of constitutional law... and, by an order... of 30 May 2003, he was transferred to the position of a professor of the department of constitutional, administrative and international law. Skuratov failed to submit information... concerning his transfer to the position of a professor of the department of constitutional, administrative and international law.
The court cannot agree with his argument that he had no intention to mislead the election commission... because he did not see any substantial discrepancy in the submitted information. The [first-instance] court correctly determined that he should have indicated, as his current position, that of the professor... Because it is precisely that position that defines, in the spirit of the labour law, the substance of the labour contract between [Skuratov] and the educational institution, corresponds to its organisation chart and determines the nature of his work duties... At the same time, the acting in another position may only be of a temporary nature, that is until the person has been approved to that position or come back to his old one...
The Supreme Court also considers that, as the right of a candidate to indicate his party membership and status in his application form has a corresponding obligation to submit a document confirming that information... officially certified by the standing governing body of the political party, such document cannot be replaced by the list of that party’s candidates in single-member constituencies signed and sealed by the Chairman of the party central committee and addressed to the Central Election Commission...
Pursuant to section 47 § 8(3) of the Elections Act a failure to submit documents required for registration of a candidate under that law is a ground to refuse registration of that candidate...”
(b) Exclusion from the party roll
On 6 September 2003 the Communist Party of the Russian Federation submitted its federal roll of candidates to the State Duma elections. On 13 October 2003 the roll was registered by the Central Election Commission. The second applicant was candidate no. 5 in the Urals regional group.
On 25 November 2003 Mr K., Chairman of the general council of the electoral bloc “Russian Pensioners’ Party and Party of Social Justice”, made an application to the Supreme Court of the Russian Federation, seeking exclusion of the second applicant from the federal roll of the Communist Party. Referring to the decisions of the district election commission of the Buryatskiy district, he claimed that the submission of untrue information by the second applicant had violated the rights of other political parties and electoral blocs standing in the elections, including his bloc.
In its observations of 28 November 2003, the Central Election Commission objected to the granting of the application. In its view, the claimants failed to show how the registration of the second applicant had impaired their rights. It submitted that at the moment of registration of the federal roll, the CEC had no doubts as to the accuracy and authenticity of the information submitted by the CPRF about its nominees and that the circumstances invoked by the claimants could not be a ground for curtailing the second applicant’s right to stand for elections.
On 28 November 2003 the Supreme Court of the Russian Federation granted the application by Mr K., finding that the personal information submitted by the second applicant had been untrue because the position of the “acting head of a department” was not among those listed in the Russian Labour Code and in the Graduate and Post-graduate Professional Education Act. Both the second applicant and the CPRF appealed.
On 4 December 2003 the Appeals Division of the Supreme Court upheld the judgment of 28 November 2003, relying on the following reasons:
“Having indicated in his application form... that his position was the acting head of the department... while he permanently held the position of a professor of the department, Mr Skuratov thereby submitted inaccurate personal information, which was the ground... to annul his registration... [T]he first-instance court was also justified in referring to the fact that neither the Labour Code nor the Graduate and Post-graduate Professional Education Act provided that the office of an acting head of a department was a permanent one...
As the Supreme Court correctly determined in its judgment, the right to apply to a court with an application for annulment of a candidate’s registration... is vested... in political parties and electoral blocs... (section 95 § 6 of the Elections Act, Article 260 § 1 of the Code of Civil Procedure). As to the specific electoral rights and interests of the claimant (which had also submitted and registered a federal roll of candidates to the State Duma), in the instant case they are affected by the inclusion of the candidate Skuratov in the federal roll of candidates of the CPRF because that candidate had not complied with the formal requirements that applied in an equal measure to all candidates, political parties and electoral blocs and made possible the exercise of the right to stand for elections. Such interests of the claimant are envisaged in sections 1 and 3 of the Elections Act, according to which members of the State Duma of the Russian Federation are elected by citizens of the Russian Federation in general, equal and direct elections; political parties and electoral blocs stand for elections of the State Duma members on equal grounds in accordance with the procedure established by the present federal law...” (emphasis in the original)
The second applicant did not take part in the election.
(c) Documents submitted by the second applicant
The second applicant submitted, inter alia, a copy of his employment record (трудовая книжка) and a copy of the Communist Party’s certificate.
The relevant entries in his employment record read as follows:
“34. 31/12/2002. Appointed the acting head of the department of constitutional and administrative law, order no. 3832-l of 31 December 2002.
35. 01/01/2003. Transferred to the position of professor of constitutional and administrative law, order no. 856-l of 17 April 2003.
36. 30/05/2003. Transferred to the position of professor of constitutional, administrative and international law, order no. 1171a-l of 30 May 2003.
37. 30/05/2003. Dismissed from the position of professor of constitutional and administrative law, order no. 1190a-l of 30 May 2003.
38. 01/06/2003. Appointed the acting head of the department of constitutional, administrative and international law, order no. 1169a-l of 30 May 2003.”
The relevant parts of the certificate printed on the letterhead of the Communist Party of the Russian Federation read as follows:
“To the Central electoral commission of the Russian Federation
Certificate concerning membership of candidates to the State Duma... standing for election in single-member constituencies... in the political party ‘Communist Party of the Russian Federation’ and their status in the party.
9. Buryatiya Republic, district no. 9 – Skuratov Yuriy Ilyich – CPRF member.
Chairman of the [Central Committee] of the CPRF [signature, seal] G. Zyuganov”
B. Relevant domestic law
The Elections Act (Federal Law “On election of members of the State Duma of the Federal Assembly of the Russian Federation”, no.175-FZ of 20 December 2002, as amended on 23 June 2003) provides as follows:
Pursuant to section 47 § 8 (6), a candidate may not be registered if he or she submitted untrue information in his application form. According to section 38 § 7 (1), an application form of a candidate who nominated himself for the elections must indicate, in particular, his “education, principal place of work or service and the position held (if he has no principal place of work or service – profession)”. The same information is required from the candidates nominated to federal rolls by political parties (section 41 § 4 (1)) who may, in addition and without being obliged to, indicate their membership and status in a political party on the condition that they submit a document confirming such information and officially certified by the standing governing body of that party. The same requirements apply to the candidates nominated by political parties for election in single-member constituencies (section 41 § 12).
The applicants complained under Article 3 of Protocol No. 1 that their disqualification in the State Duma election had not met a pressing social need and had been disproportionate. Invoking, in particular, Article 14 of the Convention, the second applicant also complained that he had been the only one of 163 candidates of the Communist Party whose registration had been annulled for the failure to confirm his party membership and status, although all the candidates had submitted identical documents signed by the party Chairman and addressed to the Central Election Commission. He submitted that his exclusion from the 2003 election had been part of a long-standing political campaign against him which had begun with his dismissal from the office of the Prosecutor General in April 1999.
The applicants complained about a violation of their right to stand for election guaranteed by Article 3 of Protocol No. 1 which 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.”
The second applicant also invoked Article 14 of the Convention which provides as follows:
“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 Government submitted that the Russian law required all candidates to submit accurate information about themselves in a timely fashion. The principle, according to which all candidates were afforded the same amount of time for submission of the documents, served to reinforce equality between candidates. On the other hand, the requirement of truthfulness of the information about the candidate enabled the voters to make an informed choice on the basis of complete and accurate information published in the electoral bulletin. These requirements were proportionate restrictions on the right to stand for election and they were necessary in a democratic society to ensure the free expression of the voters. The legitimacy of election is reinforced by sanction for breaches of the electoral laws, such as refusal or cancellation of a candidate’s registration. In case of both applicants, their disqualification did not violate their right to stand for election because it was the result of their own failure to comply with the electoral laws.
As regards the first applicant Mr Krasnov, the Government pointed out that he had misled the electoral commission as to his place of work by declaring that he had been head of the Presnenskiy district council, whereas he had been dismissed from that position on 16 June 2003. In these circumstances, the electoral commission’s decision on cancellation of his registration had been lawful and justified.
As regards the second applicant Mr Skuratov, the Government claimed that his registration in the single-member constituency had been refused owing to his failure to submit the required documents in a timely fashion. If his belated submission had been accepted, it would have violated the principle of equality of candidates. As to his exclusion from the federal roll of the Communist Party, the Supreme Court had assessed the evidence before it and determined that he had submitted untrue information about himself. Mr Skuratov had omitted to mention that, in addition to being the acting head of the department of the constitutional law, he had also been a professor of that department.
The first applicant responded that his disqualification had not been founded on relevant grounds and had been, in any event, disproportionate. He had not submitted any information capable of misleading the voters. He had indicated the position he had previously held in a subsequently re-organised body and his mandate had not yet expired.
The second applicant contended in reply that he had submitted all the required documents, including those concerning his employment and the Communist Party membership, within the time period established in the domestic law which was attested by the acknowledgment of receipt of 20 October 2003. From that date on the electoral bodies had continuously been in possession of all required documents. The only purpose of his enclosing an additional employment certificate the Moscow State Social University with the complaint of 27 October 2003 had been to show that no changes in his employment had taken place in the intervening period. The law required him to indicate the principal place of employment or service which he had done by mentioning that he was the acting head of the constitutional law department. That was his main place of work, according to the employment record. The law did not require him to indicate all the positions held at the material time. Besides, it was quite usual and clear to everyone that the head of a university department also taught at that department as professor.
The second applicant claimed that the means chosen by the national authorities had been disproportionate to whatever legitimate aim that had been pursued. The Government did not explain why the reference to his main place of work had misled the electorate to such an extent that his disqualification, the most severe electoral sanction, should have been applied. He considered that that measure had been political retribution for his earlier attempts to investigate, as the Prosecutor General, the actions of President Yeltsin and his team.
The Court considers, in the light of the parties’ submissions, that the applications raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that they 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.
For these reasons, the Court unanimously
Declares the applications admissible, without prejudging the merits.
Søren Nielsen Christos Rozakis
KRASNOV AND SKURATOV v. RUSSIA DECISION
KRASNOV AND SKURATOV v. RUSSIA DECISION