AS TO THE ADMISSIBILITY OF
Application no. 42482/02
by Yevgeniy Romanovich ANTONENKO
The European Court of Human Rights (First Section), sitting on 23 May 2006 as a Chamber composed of:
Mr L. Loucaides,
Mrs F. Tulkens,
Mrs N. Vajić,
Mr A. Kovler,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 28 June 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 Yevgeniy Romanovich Antonenko, is a Russian national who was born in 1950 and lives in Moscow. He is represented before the Court by Mr R. Khromchenko. The Russian Government (“the 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.
At the material time the applicant was the head councillor of the Dmitrovskiy administrative district in Moscow.
On 20 July 2001 the Moscow Mayor, by decision no. 714-RM, fixed the election to the Moscow City Duma for 16 December 2001. The Moscow City Duma is the permanent representative and legislative body of the city of Moscow that has 35 members elected for a term of four years.
On 15 November 2001 district electoral commission no. 5 registered the applicant as a candidate in the election.
On 14 December 2001 a private person K. lodged a complaint with a court, asking it to cancel the registration of Mr Antonenko because he had allegedly omitted to report a part of his income on his property declaration and because he had used his official position for electoral campaigning.
At 10.40 p.m. on 15 December 2001 the Moscow City Court delivered judgment. The court found that the applicant’s property declaration had only listed his taxable earnings without mentioning his tax-exempt revenue, that he had organised a meeting with the local residents at the expense of the council budget, and that he had used his acquaintance with a Government minister in order to create the impression that his bid for elections had been supported by the federal executive power. By law, these grounds were sufficient to cancel the registration of the applicant as a candidate in the election. Pursuant to Article 208 of the RSFSR Code of Civil Proceedings, the judgment was final and enforceable with immediate effect.
At 7.45 a.m. on the following day which was the voting day, the district electoral commission no. 5 ordered Mr Antonenko’s name to be struck out of the list of candidates. Whilst his name on the information stand had been crossed out without delay, the manual correction of the voting ballot papers was only completed one hour later.
The applicant did not take part in the election, in which four of his competitors participated.
On 25 December 2001 the Constitutional Court of the Russian Federation, in the proceedings initiated by five private complainants, determined that that Article 208 of the RSFSR Code of Civil Procedure was incompatible with a constitutional right to the effective judicial protection in so far as it provided for finality and immediate effect of judgments concerning violations of electoral rights, without affording the aggrieved party a possibility to lodge an appeal against them (Ruling no. 17-P).
On 14 March 2002 the applicant, relying on the
Constitutional Court’s decision, lodged a notice of appeal against
the judgment of 15 December 2001. He challenged the factual findings
and alleged a number of procedural defects. He claimed, in particular,
that he had not been duly notified of the complaint lodged by K., that
a copy of the complaint had not been communicated to him and that the
court had delivered its judgment at
10.40 p.m., that is in the “night time”, according to the definitions in the Code of Criminal Procedure and the Labour Code.
On 26 March 2002 the Supreme Court of the Russian Federation upheld on appeal the judgment of 15 December 2001, endorsing the reasons exposed by the City Court.
B. Relevant domestic law and practice
1. Constitution of the Russian Federation
The Constitution of the Russian Federation guarantees to the citizens of the Russian Federation the right to elect and to stand for election to State and municipal bodies (Article 32 § 2).
2. The Elections Act (in force at the material time)
The Elections Act (Federal Law on the Fundamental Guarantees of Russian Citizens’ Electoral Rights and of their Right to Participate in a Referendum, no. 124-FZ of 19 September 1997) provided that registration of a candidate could be cancelled at the latest on the day preceding the voting day (section 64 § 1). A similar provision was contained in section 59 § 1 of the Moscow Law on the Election of Members of the Moscow City Duma, Mayor, Vice-Mayor and District Councillors, no. 22 of 7 July 1999.
After the candidate had been registered, if the information he had submitted about himself, including his financial statement, was found to have been substantially untrue, his registration could be cancelled by the electoral commission (no later than sixteen days before the voting day) or by a court of general jurisdiction (from the fifteenth to the last day before the voting day) (section 32 § 10).
3. The RSFSR Code of Civil Procedure (in force at the material time)
A procedural step may be performed until midnight on the last day of the time period within which it must be performed (Article 101).
Judgments concerning complaints about the actions or failures to act of State or municipal authorities, electoral commissions and their officials which violated citizens’ electoral rights, come into force immediately after their delivery, with exception of judgments concerning contestation of the election results (Article 208 § 2). An appeal may only be lodged against the judgments that have not come into force (Article 283).
4. Case-law of the Constitutional Court of the Russian Federation
On 11 June 2002 the Constitutional Court issued a ruling on compatibility of certain provisions of the Elections Act with the Constitution (no. 10-P). It determined, in particular, that whereas cancellation of a candidate’s registration was permitted until and including the day preceding the voting day, a judicial decision ordering cancellation should have become final by that day. The Constitutional Court confirmed this position in its decision no. 185-O of 6 June 2003.
The applicant complained under Article 3 of Protocol No. 1 about a violation of his right to stand for election in that his registration had been cancelled on the day of voting and that some polling stations had opened without any information on his disqualification being available to voters.
The applicant complained about a violation of his right to stand for election under Article 3 of Protocol No. 1 which provides 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 Government submitted that a candidate’s right to stand in the election could be forfeited if a court established legal grounds for cancelling his registration. The date when the decision was issued was not of essence provided that it was made no later than on the day preceding the voting day. As to the applicant’s allegation that in his case the judgment had been issued in the night time, the notions of “day” and “day time” were distinct. A “day” is a twenty-four-hour period of time and a procedural action could be carried out until the twenty-fourth hour of the last day within the period (Article 101 of the Code of Civil Procedure). The definitions of the “night time” contained in the Code of Criminal Procedure and the Labour Code were of no relevance to the civil proceedings. Pursuant to the then effective legislation, the judgment cancelling a candidate’s registration was final and no further appeal lay against it (Article 208 of the Code of Civil Procedure). The district electoral commission implemented it without delay and crossed out the applicant’s name in the ballot papers. Finally, the Government indicated that on 12 June 2002 a new wording of the Elections Act had been enacted. It provided that a judicial decision concerning cancellation of the candidate’s registration should be issued no later than five days before the voting day (section 78 § 5).
The applicant maintained his complaint.
The Court observes at the outset that the crux of the applicant’s complaint was the fact that the decision on his disqualification had been issued on the voting day, allegedly in breach of the domestic law. In his application to the Court he did not contest the domestic court’s findings of fact that had led to his disqualification. Nor did he claim that the eligibility conditions relating to comprehensive financial disclosure or fair electoral campaigning had disproportionately restricted the very essence of his right to stand for election.
The Court notes that the then effective Elections Act provided that cancellation of a candidate’s registration should take place no later than the day preceding the voting day. If the poll was due in fewer than sixteen days, a decision on the candidate’s disqualification could only be made by a court of general jurisdiction. In the present case the judgment cancelling the applicant’s registration was issued by the Moscow City Court on 15 December 2001, that is on the day preceding the poll. Contrary to the applicant’s contention, the election commission had not made a fresh determination of his eligibility but merely implemented the City Court’s judgment.
Where a final date for issuing a decision was fixed, the rules of civil procedure permitted to deliver the decision until midnight on that date. The Moscow City Court had complied with this requirement as it gave judgment before midnight on the last pre-election day. As to the applicant’s discontent with the late-evening delivery of judgment, the Court notes that neither the Convention nor the domestic law impose any specific schedule for the functioning of the courts (see, however, Makhfi v. France, no. 59335/00, § 40, 19 October 2004, where a violation of Article 6 § 1 of the Convention has been found because the hearing in a criminal case lasted more than seventeen hours). It follows that the decision on the applicant’s disqualification was issued within the time period established in the domestic law.
The Court further notes that, under the then effective rules of civil procedure, the City Court’s judgment was final from the moment of its delivery and had immediate effect. No further appeal lay against it and the applicant could not have expected to obtain a new determination of the same issues. Such a possibility emerged only subsequent to the election, following the Constitutional Court’s ruling in unrelated proceedings to which the applicant was not a party. The Court reiterates that in civil matters there is no right to appeal contained in the Convention itself. In any event, the applicant did not complain about the fact that at the material time it had been impossible to lodge an appeal against the City Court’s judgment.
Having regard to the above, the Court finds that the grounds for the applicant’s disqualification were not disputed and that the decision was made within the time period established in the domestic law. In these circumstances, the fact that his disqualification was ordered by a court shortly before the opening of polling stations cannot have violated, in itself, his right to stand for election.
In so far as the applicant complained that insufficient information on his disqualification had been made available to voters, the Court considers that the applicant has not shown how, if at all, the alleged failure to give information to voters could have impinged on his right to stand for election. The Court finds therefore that this part of the complaint does not disclose any appearance of a violation of his rights under Article 3 of Protocol No. 1.
It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to discontinue the application of Article 29 § 3 of the Convention and to declare the application inadmissible.
Søren Nielsen Christos Rozakis
ANTONENKO v. RUSSIA DECISION
ANTONENKO v. RUSSIA DECISION