AS TO THE ADMISSIBILITY OF
by Viktor CHEREPKOV
The European Court of Human Rights (Third Section) sitting on 25 January 2000 as a Chamber composed of
Sir Nicolas Bratza, President,
Mr J.-P. Costa,
Mrs F. Tulkens,
Mr W. Fuhrmann,
Mr K. Jungwiert,
Mr M. Ugrekhelidze,
Mr A. Kovler, judges,
and Mrs S. Dollé, Section Registrar;
Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 16 August 1999 by Viktor Cherepkov against Russia and registered on 1 October 1999 under file no. 51501/99;
Having regard to the report provided for in Rule 49 of the Rules of Court;
Decides as follows:
The applicant is a Russian national, born in 1942. He lives in Vladivostok.
A. Particular circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 5 July 1993 the applicant was elected mayor of the city of Vladivostok, an administrative centre of the Maritime Territory of Russia.
The mandate of the previous Vladivostok Municipal Council (hereinafter referred to as the “VMC”) expired in 1993. From 1994 to 1996 elections to the VMC were fixed and postponed several times. The elections took place in 1996 and 1997, but were found invalid because of certain informalities, including insufficient participation by the electorate and a disputed outcome.
In 1997 and 1998 the VMC was not elected as the local executive and law enforcement authorities were involved in a number of court disputes as to the proper manner in which to hold the elections. During those proceedings a number of administrative decisions were taken, but subsequently quashed. In late 1998 and early 1999 the elections took place several times, but were found invalid because of various informalities including, once more, insufficient participation by the electorate and a disputed outcome.
On 5 July 1998 the applicant’s mandate as the mayor of Vladivostok expired. On 26 September 1998 the Maritime Territory Electoral Registry refused to register him as a candidate in the next mayoral elections. The elections took place on 27 September 1998, but were found invalid due to various informalities. Upon the applicant’s appeal against the decision preventing his candidacy, on 5 October 1998 the Maritime Territory Regional Court upheld that decision. The applicant appealed to the Supreme Court. The applicant contends that the appeal is currently pending.
By a decree of 11 December 1998 the President of Russia authorised the Governor of the Maritime Territory to appoint an acting mayor of Vladivostok on the ground that the applicant’s mandate had expired. On 14 December 1998 the Governor appointed an acting mayor. The applicant applied to court, contesting the lawfulness of that appointment. He stated in particular that his term continued as long as his successor was not elected. On 19 January 1999 the Maritime Territory Regional Court confirmed the lawfulness of the Governor’s decision. On 4 February 1999 the Supreme Court rejected at first instance the applicant’s action whereby he had alleged that the presidential decree of 11 December 1998 had been null and void. On 15 April 1999 the Appellate Chamber of the Supreme Court upheld that decision. On 14 May 1999 the Supreme Court dismissed the applicant’s appeal against the judgment of 19 January 1999.
It appears that to date neither the Vladivostok Municipal Council nor the mayor has been elected.
B. Relevant domestic law
The Constitution of the Russian Federation
Pursuant to Article 5 of the Constitution, the Russian Federation consists of “federal subjects” (субъекты федерации) which can have their own constitutions, statutes and legislation.
Under Article 11 § 1, “State authority” is exercised by the President of Russia, the Parliament, the Government and courts. Pursuant to Article 11 § 2, State authority which is vested in the federal subjects is also exercised by the competent authorities of those entities.
Legislative power is exercised by the Parliament (Article 94).
Under Article 12, local authorities are not considered as having State authority (i.e. legislative, executive or judicial powers) within the meaning of the Constitution.
Federal subjects enjoy a number of autonomous rights, including inter alia the right to exercise, jointly with the competent federal authorities, legislative power in various political, economic, social and legal fields (Articles 72 and 76). Articles 73 and 76 of the Constitution entitle the federal subjects to exercise legislative power in those areas which do not relate to the exclusive competence of the Federation or the joint competence of the Federation and “federal subjects”.
The Maritime Territory is a “federal subject” of Russia (Article 65).
Laws of the Maritime Territory
The status of the Maritime Territory is defined in the Constitution of the Russian Federation and the Statute of the Maritime Territory. The Statute was passed by the Duma of the Maritime Territory (hereinafter referred to as the “DMT”) on 12 September 1995.
Under Article 9 of the Statute, legislative power in the Maritime Territory is exercised by the local residents by way of referendum, and by the DMT. The DMT is the only legislative organ in the territory, and consists of 39 representatives elected for a period of four years (Article 46 of the Statute). The Governor is the head of the executive in the Maritime territory (Article 56 of the Statute).
Under Article 11 of the Statute, the local authorities do not exercise “State authority” (i.e. legislative, executive or judicial powers).
The mandate, functions, powers and controls of the local authorities, including municipal councils and mayors, are defined in the Maritime Territory Local Government Act (hereinafter referred to as the “Act”), which was adopted by the DMT on 26 December 1995. Municipal councils and mayors are elected by local residents (Articles 24 and 26 of the Act), and election procedures are specifically governed by special laws passed by the DMT. Pursuant to Article 29 of the Act, local authorities can adopt regulations and by-laws in the areas in which the Act confers such competence upon them.
1. The applicant complains about the inadequate local legislative provisions governing the election procedures to the Vladivostok Municipal Council and the office of mayor. He alleges that flaws in the legislation resulted in various disputes between the candidates, the executive and the law enforcement authorities. As a consequence of those statutory defects and the lack of competence by the domestic courts, all the local elections in Vladivostok were held back or found invalid; the VMC elections failed sixteen times and the Vladivostok mayoral elections failed four times. As the mandates of the previously elected local representatives expired long ago, Vladivostok has no legitimate local government. The applicant therefore complains that his active and passive election rights were violated. He also complains about the allegedly unlawful appointment of a new acting mayor of Vladivostok and the refusal to register him as a candidate to run in the next mayoral election. The applicant invokes Article 3 of Protocol No. 1 to the Convention.
2. Under Article 6 of the Convention the applicant complains that the above circumstances also disclose breaches of access to a court and violations of the principle of a fair hearing.
1. The applicant alleges violations of his active and passive election rights under Article 3 of Protocol No. 1 to the Convention, 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 Court observes that Article 3 of Protocol No. 1 guarantees the “choice of the legislature”. It is true that the word “legislature” does not necessarily mean the national parliament: it has to be interpreted in the light of the constitutional structure of the State in question. In the case of Mathieu-Mohin and Clerfayt v. Belgium, the 1980 constitutional reform had vested in the Flemish Council sufficient competence and powers to make it, alongside the French Community Council and the Walloon Regional Council, a constituent part of the Belgian “legislature”, in addition to the House of Representatives and the Senate (see, the Mathieu-Mohin and Clerfayt v. Belgium judgment of 2 March 1987, Series A no. 113, p. 23, § 53; also see the Matthews v. the United Kingdom judgment of 18 February 1999, to be published in Reports of Judgments and Decisions, § 40).
The Commission found that organs of local authority, such as the municipal councils in Belgium and the metropolitan county councils in the United Kingdom, do not form part of the “legislature” within the meaning of Article 3 of Protocol No. 1 (see, Eur. Comm. HR, no. 10650/83, Clerfayt, Legros v. Belgium, Dec. 17.5.1985, D.R. 42, p. 212; no. 11391/85, Booth-Clibborn v. the United Kingdom, Dec. 5.7.1985, D.R. 43, p. 236).
In Russia, legislative power is exercised by the Parliament (Article 94 of the Constitution). The Constitution also confers this power to the parliaments of its “federal subjects” (Articles 11, 72, 73 and 76). The Maritime Territory is a federal subject of Russia (Article 65). Pursuant to Article 46 of the Statute of the Maritime Territory, the DMT is the only legislative organ in the Maritime Territory.
The Court notes however that the applicant complains about local elections, i.e. the VMC and the Vladivostok mayoral elections. Although possessing powers conferred upon them by law, the municipal council and the mayor do not exercise legislative power within the meaning of the Constitution of the Russian Federation (Article 12) and the Statute of the Maritime Territory (Article 11).
Court considers that the power to make regulations and by-laws which
is conferred on the local authorities in many countries is to be distinguished
from legislative power, which is referred to in Article 3 of Protocol
No. 1 to the Convention, even though legislative power may not be restricted
to the national parliament alone (see the
Mathieu-Mohin and Clerfayt and Matthews judgments cited above, loc. cit.).
The Court concludes that Article 3 of Protocol No. 1 to the Convention is not applicable in the present case.
It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3, and must be rejected pursuant to Article 35 § 4.
2. The applicant also alleges breaches of Article 6 of the Convention, which provides, insofar as relevant, as follows:
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
As regards the complaint involving the mayoral candidacy proceedings, the Court notes that the applicant alleges that these proceedings appears still to be pending. Accordingly, the applicant cannot at this stage claim to be a “victim” of a violation of the Convention within the meaning of Article 34, and it would be premature for the Court to deal with this part of the application.
In any event, the Court notes that all the proceedings invoked by the applicant involved the determination of his rights to stand as a candidate or to choose his representatives in the local elections, or to occupy the post of mayor. The Court considers that the disputes in question determined the applicant’s political rights, not his “civil” rights within the meaning of Article 6 of the Convention (see, in the context of parliamentary elections, the Pierre-Bloch v. France judgment of 21 October 1997, Reports of Judgments and Decisions 1997-VI, § 50, p. 2223).
Accordingly, Article 6 does not apply in the present case.
It follows that this part of the application is also incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3, and must be rejected pursuant to Article 35 § 4.
For these reasons, the Court, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
S. Dollé N. Bratza
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