AS TO THE ADMISSIBILITY OF
Application no. 9103/04
by THE GEORGIAN LABOUR PARTY
The European Court of Human Rights (Second Section), sitting on 22 May 2007 as a Chamber composed of:
Mr I. Cabral Barreto,
Mr R. Türmen,
Mr M. Ugrekhelidze,
Mr V. Zagrebelsky,
Mrs A. Mularoni,
Mr D. Popović, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the partial decision of 20 June 2006,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the observations submitted by the respondent Government,
Having deliberated, decides as follows:
The applicant, the Georgian Labour Party, is a political party represented before the Court by Mr Sh. Natelashvili, its Chairperson. The applicant’s initial representative, Ms L. Mukhashavria, was replaced on 20 February 2007 by Mr G. Mamporia, Ms K. Utiashvili and Ms M. Tsutskiridze, lawyers practising in Georgia. The respondent Government are represented by their Agent, Mr B. Bokhashvili of the Ministry of Justice.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Parliamentary elections
On 2 November 2003 the regular parliamentary election was held under both the majority (single-mandate constituencies) and proportional systems. In the second of these voting systems, finalised by the vote tally of the Central Electoral Commission (“the CEC”) of 20 November 2003, the applicant party received 12.04% of the votes cast, which corresponded to 20 out of the 150 seats in Parliament reserved for candidates from party lists.
On 22 November 2003 the newly elected Parliament convened, but discontinued its first session shortly afterwards due to the irruption of revolutionary forces.
On 25 November 2003 the Supreme Court of Georgia annulled the CEC vote tally of 20 November 2003 in the part concerning the election results under the proportional system. The results in single-seat constituencies remained in force.
In view of this partial annulment, on 2 December 2003 the CEC issued an Ordinance (no. 167/2003), under Article 106 § 4 of the Electoral Code (“the EC”), setting the date of the repeat election for 25 January 2004. On the same day, however, the CEC applied to the Interim President of Georgia (Decree no. 50/2003), requesting that a later date be set for the repeat election, arguing that it would hardly be possible to ensure the proper administration of the election within such a short time-limit. This application was granted on 9 January 2004 and the repeat election was scheduled for 28 March 2004 by the Interim President (“the repeat parliamentary election”).
The applicant challenged CEC Ordinance no. 167/2003 in court, claiming that the CEC had erroneously relied on Article 106 § 4 instead of Article 105 § 17 of the EC when setting the date for the repeat election. By a judgment of 8 December 2003, the Tbilisi Regional Court dismissed the claim, reasoning that the applicant lacked victim status. That judgment was quashed on 26 December 2003 by the Supreme Court, which noted that, since the applicant was running for election, there was a direct and consequential link between its interests and the decisions of the CEC. However, the Supreme Court refused to examine the claim, finding it manifestly ill-founded.
As the Parliament elected in November 2003 had been ousted by the revolutionary forces at its first session, the interim leadership recalled the previous Parliament, elected in 1999 (see Article 50 § 4 of the Constitution) until such time as a new Parliament was elected. After the interim Parliament failed to amend the EC with regard to the rules on the composition of electoral rolls, the CEC passed Decrees on 7, 9 and 12 December 2003, according to which voters were expected to attend the electoral precincts and fill out special forms which would enable them to cast their ballots during the presidential election of 4 January 2004 (see below).
The applicant, along with other opposition parties, challenged the lawfulness of those rules in court. On 15 December 2003 the Tbilisi Regional Court dismissed the claim as unsubstantiated. With regard to the applicant, the court stated that it lacked victim status as it had failed to show what direct and specific harm the preliminary voter registration for the presidential election could possibly have caused to its interests. It is not clear if the applicant appealed against this judgment. In any case, it appears from the case file that none of the impugned CEC Decrees were ever annulled.
For the purposes of the repeat parliamentary election, the CEC passed another Decree on 27 February 2004 (no. 30/2004), pursuant to which Precinct Electoral Commissions (“the PECs”) had to post in their bureaux preliminary lists of voters, data which had been gathered in the course of the preliminary registration of voters for the presidential election. Between 8 and 21 March 2004, voters had to attend the electoral precincts again to check that their names were on the lists. If a voter found that he or she was missing from the list, the petition for correction was to be filed with the relevant PEC. On 21 March 2004 the PECs were supposed to send corrected versions of the preliminary electoral rolls to the relevant District Electoral Commission (“DEC”), which was required to produce final electoral rolls and remit them to the PECs for another public examination. Between 23 and 27 March 2004, voters were to re-check the final lists and request corrections if necessary. The Decree also envisaged adding the names of voters who had failed to be included in the preliminary registration to the lists on election day itself.
In its application, the applicant complained for the first time about the following statement by the CEC Chairperson, allegedly made with regard to the system of voters’ registration: “If a voter does not want to participate in the election, does not engage in politics, does not want to cooperate with the State, then the State is also under no obligation to ensure that this voter is on the unified electoral roll”.
As decided on 9 January 2004, the repeat parliamentary election, based on party lists, was held on 28 March 2004. According to the applicant, on the eve of that election, the new President of Georgia, elected on 4 January 2004, declared through the mass media that he would not allow the presence of the Labour Party in Parliament.
Following different complaints filed with the CEC about irregularities in the Kobuleti and Khulo electoral districts (nos. 81 and 84) in the Autonomous Republic of Ajaria (“the ARA”), the CEC annulled on 2 April 2004 the election results for those two districts (Ordinance no. 82/2004). The CEC considered that, due to the nature of the violations committed, the opening of packages and re-counting of ballots, the measures provided for in Article 105 § 13 of the EC would not be sufficient to determine the results correctly and that it was therefore necessary to hold a second repeat election in the Khulo and Kobuleti districts, as mandated by Article 105 § 12 of the EC. The new date was set for 18 April 2004.
On 6 April 2004 the CEC issued rules of procedure (Decree no. 45/2004) for the posting of electoral rolls in the various precincts of the Khulo and Kobuleti districts. Voters were expected to pay preliminary visits to the precincts, as before the presidential election (see below), in order to ensure that their names were on the lists.
On the election date, 18 April 2004, polling stations in the Khulo and Kobuleti districts failed to open. On the same day, however, the CEC tallied the 28 March repeat parliamentary election votes. It stated that 1,498,012 votes had been cast, while 2, 343,087 voters had registered. The applicant received 6.01% of the vote, which was not enough to clear the 7% threshold (Article 105 § 6 of the EC) and thus to obtain seats in Parliament.
According to the minutes of the CEC meeting of 18 April 2004, the applicant’s representative, as one of the 15 members of the CEC, objected to the finalisation of the election results. He argued that the CEC could not lawfully end the country-wide election without first having held an election in the Khulo and Kobuleti districts. The Chairperson of the CEC replied that the fact that the polling stations had not opened in those districts was the fault of the local authorities. He also added that, even had the election been conducted there, this fact would not have affected the final results. By a majority vote, the Chairperson’s proposal to approve the vote tally was accepted and the relevant Ordinance (no. 94/2004) was issued.
(a) Proceedings before the Supreme Court
On 20 April 2004 the applicant appealed to the Supreme Court against Ordinance no. 94/2004. Alongside the main claim for annulment of the Ordinance, the applicant asked the court to apply an interim measure whereby Parliament would be forbidden from convening for its first session until the dispute had been resolved. The applicant argued that if Parliament convened, it would become impossible to enforce the judgment if the court found in the applicant’s favour. On 20 April 2004 the Supreme Court declared the claim admissible but refused to apply the requested interim measure. It reasoned that the claim could not have any suspensive effect under Article 77 § 3 of the EC and recalled that, pursuant to Article 51 of the Constitution, the first sitting of a newly elected Parliament was to be held within 20 days of the finalisation of the election results.
On 22 April 2004 the new Parliament held its first session.
The applicant submitted four major arguments to the Supreme Court, which dismissed its claim on 26 April 2004.
Firstly, the applicant challenged the rules on the composition of electoral rolls. It claimed that many eligible voters who had failed to comply with the procedure for preliminary registration had been refused the right to cast their votes on election day. At the same time, the obligation to register in advance had permitted a kind of carousel, namely ballot fraud whereby some voters could register in different electoral precincts and thus cast their vote more than once. As a result of those irregularities, the applicant claimed that it had lost votes. It also complained that the CEC had had no competence to change the rules on the composition of electoral rolls, this prerogative being reserved solely for Parliament, which was entitled to make the relevant legislative amendments to the EC. In the applicant’s view, the fact that many voters had been refused the right to vote because of the new rules, and that the Government had total control over the electoral administration, had allowed the election results to be rigged. Based on statistical data about high voting activity across the country at particular times, provided by its representatives in the electoral commissions of the Kvemo Kartli, Meskhet-Javakheti and Ajarian regions, the applicant claimed that vote-riggers had fraudulently cast around 500,000 ballots in favour of the presidential and pro-presidential parties at noon, 5 p.m. and 8 p.m. on election day.
The Supreme Court found the latter allegation unsubstantiated, considering that the applicant had submitted no relevant evidence in support of it. As to the voter registration rules, the court noted that the CEC had issued Ordinance no. 30/2004 by which it had remedied the deficiency of Article 9 § 12 of the EC, the effect of which had been suspended by the Constitutional Court on 26 December 2003 (see below). The Ordinance allowed voter registration on the day of election. The allegation that the voters who had missed preliminary registration deadlines were subsequently denied the right to vote was therefore ill-founded.
Secondly, the applicant complained that its representatives at various levels in the electoral commissions had been prevented by other members from fulfilling their duties properly. They had been threatened and instructed not to write complaints about violations observed, namely when the votes cast in favour of the Labour Party were attributed to the presidential and pro-presidential parties. The applicant complained that such permissive conduct was due to the composition of the electoral commissions, since, in every commission at all levels, 8 out of the 15 members were representatives of the presidential and pro-presidential parties.
Thirdly, the applicant argued that the impugned Ordinance of 18 April 2004 was contrary to Article 105 § 19 of the EC, since it did not specify the total number of voters and the number of votes cast in each district.
With regard to these arguments, the Supreme Court reasoned that the applicant should first have complained about the threats to its representatives before a district court. However, it gave no response to the complaint about the pro-presidential composition of the electoral commissions. As to the CEC’s failure to include information about the total number of voters and the number of votes cast in each district in the Ordinance, the court stated that this was not a gross violation of the electoral legislation and could not therefore be regarded as grounds for invalidating this administrative act.
Finally, the applicant claimed that the finalisation of the country-wide election results without elections being held in the Khulo and Kobuleti districts had been unlawful. In view of the fact that there were at least 60,000 voters in those districts and that the applicant party needed only 16,000 votes in order to clear the 7% legal threshold, it complained that it had been unlawfully deprived of a genuine chance to obtain seats in Parliament. It recalled that the Labour Party was, by and large, supported in the Ajarian constituency. In response, the Supreme Court reasoned as follows:
“It is true that, in the Khulo and Kobuleti electoral districts, the repeat parliamentary election results were annulled and the CEC called a new repeat election by its Ordinance of 18 March 2004. However, due to well-known events [tensions between the central and local authorities], the election was not held...in those districts on account of factual circumstances, this being a ground for the annulment of an administrative act according Article 60 § 1 (g) of the General Administrative Code of Georgia.”
However, relying on Article 105 § 3 of the EC, the Supreme Court decided that the repeat parliamentary election could be considered as having been held, since, according to the vote tally, more than a third of the total number of voters took part in it.
(b) Constitutional proceedings
The chairperson of the applicant party, challenged, as a private person, CEC Decree no. 30/2004 of 27 February 2004 (rules on the composition of electoral rolls) and Ordinance no. 94/2004 of 18 April 2004 (the vote tally) before the Constitutional Court. He claimed that the system of preliminary voter registration, the disfranchisement of the Kobuleti and Khulo constituencies and the governmental control of the electoral administration had infringed the constitutional principle of free and fair elections.
On 25 May 2004 the Constitutional Court declared the claim inadmissible. It reasoned that, as the disputed Ordinance was not a normative act, it could not be challenged before the Constitutional Court. As to the impugned Decree, it considered that, first, the claimant had failed to substantiate how this normative act had infringed any of his constitutional rights. Secondly, it stated that the claimant, as a private person, did not have standing to challenge the constitutionality of the election, this right being reserved by Article 37 of the Law on the Constitutional Court to the President of Georgia and a specific number of Members of Parliament.
2. Presidential elections
As President Shevardnadze had resigned on 23 November 2003 following the “Rose Revolution”, a presidential election was held on 4 January 2004.
No member from the applicant party stood as a candidate in that election.
The vote tally of 15 January 2004 was approved by CEC Ordinance no. 20/2004 and Mr M. Saakashvili was elected President of Georgia. The applicant immediately requested the invalidation of the election results before the Supreme Court. It appears from the case file that this claim was dismissed on 22 January 2004 as unsubstantiated.
B. Relevant domestic law and practice
1. Constitution of Georgia (as it stood prior to 6 February 2004)
“The Parliament of Georgia is the supreme representative body of the country; it exercises legislative power, determines the main directions of domestic and foreign policy and exercises general control over the Cabinet of Ministers and other functions within the framework determined by the Constitution.”
Article 50 § 4
“The mandate of the previous Parliament ceases immediately after the first meeting of the newly elected Parliament.”
“The first sitting of the newly elected Parliament shall be held within 20 days of the elections. The day of the first sitting is determined by the President. The Parliament will begin its work when the election of two-thirds of the Members of Parliament has been confirmed.”
Article 63 § 1
“To introduce a motion to impeach the President of Georgia, a third of the Members of Parliament must agree... The case is submitted to the Supreme Court or the Constitutional Court for judgment.”
Article 65 §§ 1 and 3
“The Parliament of Georgia ratifies treaties and international agreements, and denounces or abrogates them by a majority of the total number of its members.
The Parliament must be immediately notified of the conclusion of other treaties and international agreements [... which do not require ratification].”
Article 67 §§ 1 and 2
“The right to initiate legislation is vested in the President, a Member of Parliament, a Parliamentary faction, a committee of Parliament, the supreme representative bodies of the Autonomous Republic of Abkhazia and of the Autonomous Republic Ajaria, or not less than 30,000 electors.
A bill submitted by the President shall be considered as a priority.”
Article 68 §§ 1, 2, 3, 4 and 5
“A bill adopted by the Parliament shall be submitted to the President of Georgia within five days.
The President shall either sign and promulgate the law within ten days or shall return it to Parliament with reasoned observations.
If the President returns the bill to Parliament, Parliament shall vote on the President’s observations... If the observations are adopted, the President shall sign and promulgate the law within seven days.
If Parliament votes against the President’s observations, the bill as originally passed by Parliament and submitted to the President shall be voted on again. The law or organic law is considered passed if supported by not less than three-fifths of the total number of deputies or by not less than two-thirds of the total number of deputies in the case of constitutional amendments.
If the President does not promulgate the law within the determined period, it shall be signed and promulgated by the Speaker of Parliament.”
Article 69 §§ 1, 2 and 3
“The President of Georgia is the Head of State and Head of the Executive.
The President of Georgia directs and implements the domestic and foreign policies of the State. He guarantees the unity and integrity of the country and the activity of the State bodies in accordance with the Constitution.
The President of Georgia is the supreme representative of Georgia in foreign relations”.
“1. The President of Georgia:
a. concludes international agreements and treaties, negotiates with foreign States...;
b. appoints members of the Government (ministers) with the consent of the Parliament;
c. dismisses ministers;
d. receives the resignation of ministers and other officials...; is authorised to require them to perform their duties until a new government is formed;
e. submits the draft of the State budget to Parliament after its main data and directions are agreed on with the Parliamentary committees;
f. presents officials to Parliament and appoints and dismisses them in the cases envisaged by the Constitution and legislation...;
h. in the event of war, massive disorder, violation of the territorial integrity of the country, military coup, armed insurrection, ecological disaster or epidemic, or in any other situation when the State organs are unable to exercise normally their constitutional authority, declares a state of emergency ... and submits this decision to Parliament within ... forty-eight hours for approval. During the state of emergency, the President legislates by issuing decrees (dekreti) and takes special measures... The decrees shall be submitted to Parliament when it re-convenes...;
j. issues edicts (brZanebuleba) and ordinances (gankarguleba), on the basis of the Constitution and the law;
k. signs and promulgates laws following the procedure established by the Constitution...
2. The President sets the date for parliamentary elections...in accordance with the law.
3. The President is authorised to abrogate acts emanating from the bodies of the Executive accountable to him.”
Article 74 §§ 1 and 2
“Upon a request of not less than 200,000 electors, or on his own initiative, the President may decide to hold a referendum on the issues determined by the Constitution and law...
It is prohibited to hold a referendum in order to adopt or abrogate a law, on the issues of amnesty and pardon or on ratification or denunciation of...international agreements and on questions which restrict the human rights and freedoms secured by the Constitution.”
On 6 February 2004 the Constitution was amended. The amendment changed the above constitutional framework and significantly increased the President’s powers.
2. Law of Georgia of 15 April 1997 “On the Structure and Activity of the Executive”, as it stood until 11 February 2004
Article 2 §§ 1, 2 and 4 - “The President of Georgia”
“The President of Georgia shall be the head of the Executive.
The President of Georgia shall exercise executive powers either directly or through the institutions of the Executive.
The competence of the President of Georgia [concerning his executive powers] is defined by the Constitution of Georgia, this Law and other laws of Georgia.”
3. General Administrative Code, in force at the material time
Article 60 § 1 (c) - “A void legal-administrative act”
“A legal-administrative act shall be void as from its adoption if its implementation is impossible for factual reasons.”
4. Electoral Code (“EC”), as amended on 28 August 2003
Article 3 §§ (b), (c), (u), (w), (x), (y) and (y(1)) - “Definition of Terms”
“b) An election conducted under the proportional electoral system is an election of Members of Parliament... based on party lists;
c) An election conducted under the majority electoral system is an election of Members of Parliament... in single-mandate or multi-mandate electoral districts;
u) An early election (riggarSe) is an ... election held on account of the early cessation of the mandate of a representative body or of an official...;
w) A repeat election (xelaxali arCevnebi) is an election held throughout the whole constituency where the initial election was not held or was held but the candidate failed to obtain the required number of votes, and where the law does not envisage a second ballot or another round of elections; also, where the election returns in a constituency were annulled and the law does not envisage a second ballot in particular precincts;
x) A second ballot (ganmeorebiTi kenWisyra) is a repeat ballot held in a precinct... where the election returns were annulled...;
y) Second round of elections – voting in the cases prescribed by the present law... if the first round of elections had failed to determine the winner;
y (1) The end of the election is the date on which the final protocol, disclosing the vote tally approved by the appropriate electoral commission, is published.”
Article 9 - “General electoral roll and the procedure for its compilation”
“1. The general electoral roll is a list of persons with active electoral rights, who are registered in accordance with the law...
5. The general list of voters shall be compiled...on the basis of the data available at the territorial agencies of the Georgian Ministry of Internal Affairs..., data available at the corresponding agencies of the Ministry of Justice..., data from local self-government and/or administrative agencies..., data on internally displaced persons communicated by the Ministry of Refugees and Settlement or by its territorial agencies,... data communicated by the Ministries of Defence, Internal Affairs and State Security, the State Department of State Border Protection and the Special State Protection Service..., data communicated by Georgian consular authorities ...
7. A registered party ... and voters, shall be entitled to consult the public version of the general list available at the Central, District and Precinct Electoral Commissions (an elector having the right to consult only the data concerning his/her person and his/her family members...) and, in the event of any inaccuracy, to request not later than 23 days prior to the date of the election that the appropriate amendments be made to the voters’ data and the electoral roll...
8. The electoral administration shall, on its own initiative or following an application under paragraph 7 of this Article, review the general electoral roll... A decision by the district electoral commission rejecting amendments to the voters’ data and electoral roll shall be reasoned and, if requested, transmitted to the applicant from the day following its adoption.
12. [The above-mentioned decision] can be appealed against in the competent district/city court within 2 days of its adoption. Where the court rules in favour of the applicant, the ruling shall, within 3 days but no later than by the 13th day prior to the election date, be delivered to the District Electoral Commission which shall immediately furnish the relevant information to the Central Electoral Commission... Electoral commissions shall immediately make the appropriate amendments to the electoral rolls...
It is prohibited to make amendments to the electoral roll in the last 10 days prior to the election date; from the 19th to the 10th day before, amendments shall be made only by a court ruling.”
The application of paragraph 12 was suspended on 26 December 2003 and the provision was invalidated on 24 January 2005 by the Constitutional Court (see below).
Article 10 – “Special List of Voters”
Pursuant to Article 10 § 1, the special list of voters includes (a) electoral administration officers who, on election day, are working in an electoral precinct other than that of their residence; (b) voters who, on election day, are being treated in hospital or another in-patient centre; (c) voters who, on election day, are being held in police custody or pre-trial detention; (d) voters who are at sea on election day (they are enrolled at the relevant vessel’s port of registration); and (e) voters who are abroad on election day and registered at the relevant Georgian consulate; and also voters who are not on the consular registry, but register in a PEC formed abroad or in a consulate.
Article 10 §§ 2, 3, 4, 5, 6 and 7 stipulates that the head of the appropriate institution, responsible for the voters referred to Article 10 § 1, shall compile the special list, be responsible for the accuracy of the data entered on it, which is to be attested by his/her signature, and shall deliver it to the competent electoral commission.
Pursuant to Article 10 § 10, voters who are entered in the special list can take part (a) in both the majority and proportional elections if he/she changes location within the territory of the same electoral district, or of the same local electoral district in the case of local elections; (b) in parliamentary elections held under the proportional electoral system, and in presidential and local elections if he/she votes in the territory of another electoral district.
Article 11 – “Supplementary Voters List (Mobile Ballot Box List)”
Pursuant to Article 11 §§ 1 and 2, the supplementary voters list is compiled on the basis of the general and special lists of voters where: (a) due to limited physical ability or his or her health, the voter is unable to go to the polling station; (b) a voter is held in police custody or pre-trial detention; (c) the voter is being treated in hospital or other in-patient centre where no polling precinct exists; (d) the voter is a military serviceman, serving in a military unit located on a State border which is far from an electoral precinct and where no polling station exists; and (e) the voter is within the electoral precinct but at a location that is hard to access. The supplementary list is to include only those incapacitated voters who are unable to come to the polling station independently.
Article 17 - “Status and system of the electoral administration of Georgia”
“1. The electoral administration of Georgia is a legal entity of public law, which is established in accordance with this Law and exercises public authority within the limits specified by it. ...
3. The electoral administration is independent, within the limits of its competence, from other State institutions.
4. The electoral administration is a centralised system composed of the Central Electoral Commission of Georgia [“CEC”]..., District Electoral Commissions [DECs], Precinct Electoral Commissions [PECs]... The CEC is the supreme body of the electoral administration of Georgia. ...
6. The CEC is accountable to the Parliament of Georgia...”
Article 18 - “Composition of the electoral administration”
“3. A member of the electoral administration may not join a party, and if he or she was a party member, [that person] must withdraw from the party or suspend his [or her] membership for the term of office in the electoral administration. ...
5. CEC employees, except for auxiliary employees and employees who are not part of the permanent staff, are civil servants.
51. In terms of official rights, duties and responsibilities, the work in the electoral administration is regarded as civil service.
6 (j) Only eligible voters may be appointed/elected as members of the CEC and DECs, with the exception of electoral subjects and their representatives.”
Article 22 - “The working rules of electoral Commissions”
“...7. The decision of an electoral commission is considered to have been adopted if it is supported by the majority of the votes cast (unless the Law requires a higher quorum), but not less than one third of the commission members.
8. If the vote is tied, the vote of the Chairperson of the session is decisive. ...
13. The CEC adopts Decrees by two-thirds of its members. No Decree shall be adopted less than 4 days before the election date.”
Article 64 - “Consolidation of the election results at the CEC of Georgia”
“1. No later than 18 days after the date of the election, the CEC, based on the protocols received from the DECs and PECs, consolidates the results of the parliamentary and presidential elections... and approves by its ordinance the final protocol of the vote tally.
1(1). The CEC is prohibited from finalising the election results before the resolution of election-related disputes in the courts of general jurisdiction and without consideration of the outcome of those disputes.
3. The CEC consolidates the election results and determines: (a) the total number of voters; (b) the turnout of voters; (c) the number of ballots deemed invalid;...(e) the number of votes received by candidates.”
Article 77 § 3 - “Time-limits and Procedure for the Consideration of Disputes”
“Lodging appeals with a court does not have a suspensive effect on the decision.”
Article 105 - “Consolidation of the election results at the CEC of Georgia”1
“... 3. An election held under the proportional system is considered to have been held if at least a third of the total number of voters took part in it. ...
6. Seats in Parliament are awarded only to party lists that receive no less than 7% of the votes cast.
7. In order to determine the number of seats received by a party list, the number of votes received by this list must be multiplied by 150 and divided by the total number of the votes received by the parties [which cleared the 7% threshold] ...
12. If, due to gross violation of the present law, the voting results are deemed invalid in more than half of the electoral precincts, or in ... precincts where the total number of voters represents more than 50% of the total number of voters in the electoral district concerned, the election results for the entire electoral district shall be deemed invalid and the CEC shall set a date for a repeat election.
13. If any application, complaint or dissenting opinion by a DEC member is submitted requesting revision or invalidation of the voting results, the CEC shall make a decision by passing an ordinance for or against the opening of packages and the re-counting of ballot papers (special envelopes) received from the relevant PEC. The CEC is empowered to collate the election results based on the PEC protocols. ...
16. A second ballot under the proportional system is held when the total number of voters in the precincts [where the voting results were invalidated] is more than 10% of the total number of voters in Georgia. In such cases, the second ballot is held within 2 weeks of the general elections.
17. If the proportional election is declared to have been held but none of the parties or electoral blocs have managed to clear the required threshold, a repeat election shall be held within 2 weeks of the general election, by ordinance of the CEC.
18. Only those parties and electoral blocks which received 2% of the votes in the general election shall have the right to take part in the repeat election. The party lists...remain unchanged. Amendments to them may be introduced only in accordance with the general rules established by this Law.
19. The summary protocol of the final election returns must disclose the names and numbers of those electoral districts and precincts, in which the election was declared invalid, as well as the number of voters in them, the reason for declaring the election invalid, the total number of voters in each electoral district, the turnout of voters, the number of Members of Parliament elected and their names listed in alphabetical order.”
Article 106 §§ 3, 4, 7 and 7(1) - “...Mid-Term and Other Elections...Procedure for the Succession of MPs”
“3. If the election is declared ‘not held’, or if the election results are deemed invalid in a multi-seat electoral district, a repeat election shall be held. If the mandate of the parliamentarian elected in this district is suspended before its term, a mid-term election shall be held.
4. The repeat election shall be held within two months... The CEC shall set the election date and time-limits for electoral arrangements by ordinance no later than 7 days after the initial election...
7. If a Member of the Parliament who resigns was elected through the party list of a party participating independently in the elections, the seat of such an MP shall be occupied within one month by the next candidate on the same list, if that candidate agrees to become a Member of Parliament, within 15 days of the creation of the vacancy. Otherwise, the vacant seat shall be occupied by the next candidate on the list, etc. If there is no other candidate named in the party list, the parliamentary mandate shall be deemed cancelled.
7(1). If a Member of Parliament who resigns was elected through the party list of an electoral bloc and it was specified in the party list that that person was a member of one of the parties in the electoral bloc, that member’s seat shall be occupied within one month by the next candidate from the same party on the list, if that candidate agrees to become a Member of Parliament within 15 days of the creation of the vacancy. Otherwise, the vacant seat shall be occupied by the following candidate from the same party on the list, etc. If it was not specified in the party list that that person was a member of one of the parties of the electoral bloc, his/her successor shall be appointed according to the procedure established by paragraph 7 of this Article.
An amendment to the EC, introducing provisional Articles 127(1), 128, 128(1) and 128(2), was enacted on 5 August 2003 for the specific purpose of setting up the CEC for the regular parliamentary election of 2003.
Pursuant to Article 128 § 2, the CEC was to be composed of 15 members and its sessions were considered to be valid if attended by more than half of the members. Article 128 § 3 initially stated that the Chairperson of the CEC was to be appointed by Parliament following his nomination by the Organisation for Security and Cooperation in Europe (OSCE). However, this provision was amended on 28 November 2003 and, under the new rule, the Chairperson was to be appointed by the President of Georgia, with the approval of Parliament. Article 128 § 4 further established that five members of the CEC were also to be appointed by the President.
Pursuant to Article 128 § 5, the remaining nine members of the CEC were to be appointed as follows:
(a) three members - by the party/electoral bloc which came second in the parliamentary election of 1999;
(b) two members - by the party/electoral bloc which came third in the parliamentary election of 1999;
(c) one member - by each of four parties/electoral blocs which obtained the best results in the 2002 local election in Tbilisi, held under the proportional electoral system, unless that that party/electoral bloc was entitled to appoint a commission member under the preceding sub-paragraphs (a) and (b).
Pursuant to Articles 128(1) § 2 and 128(2) § 2, the composition of the DECs and PECs was similar to that of the CEC. The Chairperson of the DEC was appointed by the President of Georgia with the approval of Parliament (Article 128(1) § 3), while the Chairperson of the PEC was appointed by the Chairperson of the corresponding DEC (Article 128(2) § 3). Five members of the DECs were appointed by one of the members of the CEC who had been appointed by the President of Georgia and granted this power by him or her (Article 128(1) § 4). Five members of the PECs were appointed by one of the five members of the corresponding DEC, appointed in accordance with Article 128(1) § 4.
By an amendment of 22 April 2005, the provisional rules under Articles 127(1), 128, 128(1) and 128(2), described above, were annulled.
5. Law on Normative Acts of 29 October 1996 (as amended on 14 August 2003), as it stood at the material time
Pursuant to sections 2(2) and 4(1), while a legal act can be either “normative” or “individual”, a Presidential Ordinance (prezidentis gankarguleba) is an “individual” legal act. A “normative” act prescribes a general rule of conduct for permanent or temporary and recurrent applications (section 2(3)). Pursuant to section 2(4), an “individual” legal act is valid for one specific purpose and must conform to a normative act. The individual legal act can only be issued on the grounds envisaged by a normative act and within the limits prescribed by the latter. Its scope and force are comparable to an administrative directive.
According to Section 5 §§ 1 and 2, a presidential decree (dekreti) is a legislative act, while a presidential edict (brZanebuleba) is a subsidiary legislative act (kanonqvemdebare aqti). Only these two categories of legal acts have the status of Georgian legislation (Section 5 § 3). Pursuant to Sections 11 § 2 and 12 § 2, the President of Georgia, as the Supreme Commander-in-Chief of the armed forces, issues orders (brZaneba) which can be either normative or individual legal acts, within the scope of his or her competence, as defined by the Constitution, organic law and statutes. According to Section 13, a presidential decree is a normative act having the same legal force as the law and is issued only in time of emergency (war, military coup, violation of the country’s territorial integrity, etc.). It may not contravene the Constitution of Georgia and constitutional law.
According to Section 5 § 2, a Decree (dadgenileba) of the CEC is a subsidiary legislative act.
6. Constitutional Court judgment of 24 January 2005
Following an application by two voters, the Constitutional Court suspended the effect of Article 9 § 12 of the Electoral Code on 26 December 2003 and invalidated this provision on 24 January 2005. It found:
“Registration of voters through the unified electoral roll is what provides citizens with the basis for exercising their right to vote. Consequently, under the disputed provision, the right to vote is being denied to those citizens who do not find their names on the roll and are not able to register during the last 10 days before the election date, while a court ruling is necessary for registration between the 19th and 10th day before the election.”
Registration of voters is the responsibility of the relevant State authorities. When a citizen’s name is not found on the electoral roll, this is [the State authorities’] omission and should not limit the citizen’s right to vote. The Electoral Code should secure not merely formal but real mechanisms that would enable the exercise of the constitutional right.”
C. Resolution 1363 (28 January 2004) of the Parliamentary Assembly of the Council of Europe (“PACE”) - “Functioning of Democratic Institutions in Georgia”
“... 7. The Assembly asks the Georgian authorities to adopt without delay a number of measures, which must be fully implemented when the forthcoming parliamentary elections are held on 28 March 2004, in particular:
i. to amend the Electoral Code and all other electoral legislation and regulations,...so as to:
a. modify the composition of the Central Electoral Commission and the electoral commissions at lower levels, in order to promote the principle of balanced, fair and equal representation of all political forces; ...
c. ensure a clear segregation between governmental structures and the electoral authorities, and introduce a principle that the latter must be completely impartial; ...
ii. to revise the electoral rolls, and create as soon as possible a single, centralised and computerised register of electors, and to put an end to the practice of registering voters’ names on supplementary lists on election day itself, a practice which entails a considerable risk of fraud.
8. The Assembly also declares its concern about the current reshaping of Georgian political life and the risk of the disappearance of all parliamentary opposition after the forthcoming elections and, in consequence, of any true institutional counterweight. If the elections were to culminate in the sole representation in Parliament of the ruling coalition, the Assembly might fear for the future of democratic pluralism in Georgia. It therefore recommends that the Georgian authorities amend the corresponding legislation so as to reduce the electoral threshold in the proportional representation system from 7% to at least 5%.”
D. European Commission for Democracy Through Law (“the Venice Commission”)
The Code of Good Practice in Electoral Matters was adopted by the Venice Commission) at its 51st Plenary Session (5-6 July 2002) and submitted to the PACE on 6 November 2002:
2. “Regulatory levels and stability of electoral law”
“a. Apart from rules on technical matters and detail – which may be included in regulations of the executive –, rules of electoral law must have at least the rank of a statute.
b. The fundamental elements of electoral law, in particular the electoral system proper, membership of electoral commissions and the drawing of constituency boundaries, should not be open to amendment less than one year before an election, or should be written in the constitution or at a level higher than ordinary law.”
3.1. “Organisation of elections by an impartial body”
“a. An impartial body must be in charge of applying electoral law.
b. Where there is no longstanding tradition of administrative authorities’ independence from those holding political power, independent, impartial electoral commissions must be set up at all levels, from the national level to polling station level.
c. The central electoral commission must be permanent in nature.
d. It should include:
i. at least one member of the judiciary;
ii. representatives of parties already in parliament or having scored at least a given percentage of the vote; these persons must be qualified in electoral matters.
It may include:
iii. a representative of the Ministry of the Interior;
iv. representatives of national minorities.
e. Political parties must be equally represented on electoral commissions or must be able to observe the work of the impartial body. Equality may be construed strictly or on a proportional basis (...).
f. The bodies appointing members of electoral commissions must not be free to dismiss them at will.
g. Members of electoral commissions must receive standard training.
h. It is desirable that electoral commissions take decisions by a qualified majority or by consensus.”
E. Organisation for Security and Cooperation in Europe, Office for Democratic Institutions and Human Rights (OSCE/ODIHR) Election Observation Mission Report on the Repeat Parliamentary Election of 28 March 2004 (Part 2, Warsaw, 23 June 2004)
Selected passages from the summary of the Report provide as follows:
“Conditions in the Autonomous Republic of Ajaria were once again not conducive to democratic elections. Intimidation and physical abuse of opposition supporters and journalists underlined the democratic deficit in Ajaria evident during this election process, effectively creating a dual standard for elections in Georgia.
The CEC administered these elections in a credible and professional manner. However, at times the CEC appeared to exceed its authority, for example, by extending legal deadlines or modifying other legal provisions through decrees. Several aspects of the election process were improved over previous elections, although some CEC decisions in the post-election period cast doubts about its impartiality.
The lack of political balance on election commissions remained a source of concern. Some DECs and PECs failed to maintain appropriate distance from the ruling parties, and some local authorities interfered in the work of lower-level election commissions. President Mikheil Saakashvili’s offer to reduce the number of his appointees on DECs and PECs from five to three addressed some of these concerns. However, these changes came late in the electoral process and should have been extended to the CEC.
Significant irregularities occurred, once again, in Kvemo Kartli. Counting was assessed less positively than voting, with 15% of observers assessing it as poor or very poor.
The tabulation of results at district level was marred by irregularities in a number of DECs. In some cases, election material was delivered unsealed or inadequately secured, protocols were completed or changed at the DEC level, and in at least one case, DEC members “negotiated” the results. The handling of election-related complaints at some DECs was also inadequate.
An analysis of PEC results made available by the CEC showed a number of anomalous or implausible results in a significant minority of districts. Such anomalies included: rapid increase in voter turnout during the last three hours of voting; implausible voter turnout, in some cases exceeding 100%, and sometimes coupled with a share of the vote for the ruling parties in excess of 95%; and instances of an unusually high percentage of invalid votes.
A total of 52 polling stations were invalidated by DECs due to irregularities. The CEC cancelled the results in two districts in Ajaria (Kobuleti and Khulo) and ordered repeat elections for 18 April, which did not take place due to security reasons. The CEC’s decision to cancel the results and repeat elections in entire districts appeared to be based on questionable legal arguments...
Overall, the following elements marked positive developments for the election process:
• Improvements to the administration of the election process;
• Enhanced professionalism and openness of the CEC;
• Commendable efforts to improve, computerize and consolidate the voter lists, although they remain incomplete;
• With the exception of Ajaria, a peaceful and free pre-election period, although there was a late and very limited campaign;
• Freedom of expression enjoyed by the media, with the exception of Ajaria;
• Efforts made to increase the participation of national minorities in the elections, including the printing of bilingual ballot papers and voter information materials; and
• Improved training for lower-level election officials.
However, some aspects of the process need to be addressed in order to remedy issues of concern and continue forward progress, including:
• The continuing lack of a clear separation between State administration and political party structures, and the ongoing potential for misuse of State administrative resources;
• Inability to ensure the balanced composition of election commissions at all levels;
• The interference by some local authorities in the functioning of a number of lower-level commissions, thereby lessening their independence;
• Continuing irregularities in some polling stations, as indicated by implausible and anomalous results;
• Irregularities at a relatively high number of DECs during the tabulation process, and the failure of some DECs to properly address complaints after election day;
• The adoption of some decisions by the CEC, such as the cancellation of results in two entire districts, which seem of questionable legality and could be perceived as politically motivated;
• The failure of the State TV to provide a balanced coverage of the election campaign, and a forum for political debates with exchange of views;
• The unwillingness to lower the 7% threshold for seat allocation when constitutional amendments were adopted; and
• In contrast to the 2 November Parliamentary elections, a reduced scrutiny by domestic observers in the pre-election period. However, on election day domestic observers were present in substantially more polling stations than in the previous election.”
With regard to the new system of voter registration, the Report noted:
“The number of registered voters under-represented the number of eligible voters, partly because an active system of voter registration was instituted in December and again in March. Under an active system, citizens unwilling or unable to register are excluded from the lists. “
In complaining about the repeat parliamentary election of 24 March 2004, the applicant relies in substance on Article 3 of Protocol No. 1.
In particular, it challenges the system of preliminary voter registration and the rules on the composition of electoral rolls, as set out in CEC Decree no. 30/2004 of 27 February 2004. It maintains that those rules and principles, coupled with the fact that the authorities kept the electoral commissions under complete control, enabled ballot fraud to occur, as a result of which many citizens lost their right to participate in fair elections, while the applicant was deprived of the votes cast in its favour. In the applicant’s view, the election results were rigged in favour of the presidential and pro-presidential parties.
The applicant also complains of the fact that, in the electoral commissions at every level, 8 out of the 15 members were representatives of the ruling political forces. The applicant contends that, due to that composition, its numerous protests against electoral irregularities were ignored by the CEC, which took its decisions by a simple majority vote.
The applicant further complains that the country-wide election was finalised by the vote tally of 18 April 2004, without the election having been held in the Khulo and Kobuleti electoral districts. This fact not only deprived around 60,000 voters of their right to cast a vote but also barred the applicant, which received 6.01% of the votes cast, of a real chance to clear the 7% threshold and be allocated seats in Parliament. The applicant complains that the Ordinance of 18 April 2004 lacked data about the total number of voters and the number of votes cast, in breach of the electoral legislation.
The applicant also complained about the presidential election of 4 January 2004 and submitted similar arguments to those made in respect of the repeat parliamentary election.
Under Article 14 of the Convention, the applicant party complained that the authorities, by monopolising the electoral administration, had discriminated against it because it did not belong to and did not support the ruling political forces.
On 20 June 2006 the Court decided to communicate to the Government the applicant’s complaints concerning the repeat parliamentary and presidential elections under Article 3 of Protocol No. 1 and Article 14 of the Convention (Rule 54 § 2 b) of the Rules of Court) and declared inadmissible the remainder of the application. The Court also decided, under Rule 54 § 2 (a) of the Rules of Court, to invite the applicant to produce by 18 September 2006 copies of various documents.
On 26 September 2006 the Court addressed the Chairman of the applicant party, Mr Natelashvili, with regard to his statements made soon after the receipt of the communication letter and published in the Georgian periodical “Asaval-Dasavali” (No. 38 (628), 18-26 September 2006). Mr Natelashvili was reproached for calling into question the impartiality of the Court by “knowingly distorting the facts with regard to the proceedings before the Court in the above case, misinterpreting the contents of the Court’s letters and publicly disseminating groundless information about ... a member of the Registry”. He was informed that were he to reiterate such statements, or persist with any similar conduct, the Court could find that the purpose of his party’s application flouted the right of individual petition, as provided for in Articles 34 and 35 of the Convention, and, consequently, it could reject the case as an abuse, pursuant to Article 35 §§ 3 (b) in fine and 4 of the Convention.
On the same day, Mr Natelashvili replied with apologies. Regretting that his statements had been misinterpreted by the journalist, he pledged to respect “all the rules of the Court” and “not to communicate with the press”, whom he accused of being influenced by the Government.
On 9 October 2006 the Court received the Government’s observations and forwarded them to the applicant.
Due to its representative’s conduct, the applicant party failed to submit its observations in reply to those of the Government within the extended time-limit, which expired on 4 December 2006. However, in view of the applicant’s intention to pursue the proceedings, the Court decided on 18 December 2006 to proceed with the examination of the application as the case file stood at hand.
The applicant challenges national electoral mechanisms. It complains about various violations of its right to stand for election and of discriminatory treatment during the repeat parliamentary and presidential elections of 2004. Article 3 of Protocol No. 1 and Article 14 of the Convention read 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 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.”
1. As to the Government’s objection of abuse
a) The Government’s arguments
The Government consider that Mr Natelashvili has abused the right of application by making provocative and offensive public statements, which mislead society about the proceedings before the Court and undermine the latter’s authority. They further contend that Mr Natelashvili is unnecessarily politicising the fact that his party’s application is pending before the Court. In support of their assertion, the Government submit the following material, including two video recordings.
According to a press release of the information agency “Medianews”, dated 19 July 2006, Mr Natelashvili misinformed the public, declaring that the Court was to hold “a first hearing” on his case on 18 September 2006 (cf. the Relevant Procedure above).
Furthermore, during an interview given to the local television channel “Kavkasia”, Mr Natelashvili, resorting to exaggerated assessments, described the subject matter of his party’s application and accounted for the correspondence with the Court after the communication of the complaints. He stated that, dissatisfied with the length of the proceedings, he was about to send “an offensive letter” to the Court, when the Court’s letter of communication suddenly arrived. This new stage in the proceedings stood, in his opinion, for the fact that the Court had doubts “about the legitimacy of the [Georgian] President”. He further elaborated: “Can you imagine that, before the Court reaches a decision, the sitting judges would not consult their sending Governments? [No,] in other words, the Court’s doubts about the legitimacy of the [Georgian] Government translate into the fact that all the European States are fed up with Saakashvili [...] The dismantling of the Saakashvili regime has thus begun, and this dismantling was authorised by the signatures of nine judges”. Mr Natelashvili also stated: “we are summoned to appear before the Court on 18 September 2006”, and “unlike the domestic courts, the [Court] proceedings are always open and transparent.”
The Government also submit a video recording of Mr Natelashvili’s appearance in a TV talk-show “the Debates” (the date of the program and the name of the broadcasting channel are unknown). In reply to the program anchor’s question as to why he was invited to appear before the Court on 18 September 2006, Mr Natelashvili answered: “the [judicial] process has started. The European Court has placed the President and his Parliament in the dock”. Then, after having acquainted the public with the partial inadmissibility decision and other documents sent by the Court, Mr Natelashvili stated: “Europe has expressed its vote of ‘no confidence’ to Saakashvili [...] that stands for the beginning of an overthrow”. Subsequently, along with the program anchor, Mr Natelashvili concluded that, in the event the Court found the current ruling forces illegitimate, this would automatically result in the annulment of all “their statutes, acts and decisions [...] and new elections”.
According to the Government, during the above-mentioned talk-show, Mr Natelashvili complained about the delays in the proceedings before the Court by stating that the Court dealt “with cases of every dog and cat in Europe”. However, the relevant footage disclose that his statement was, in fact, as follows: “[The reason why the proceedings usually take so long] is that the Court has a very heavy workload [...] There are many applicants, mostly from Eastern Europe, who would complain about trivial things, such as, for example, that his or her cat has been bitten by the neighbour’s dog”.
The Government also request the Court to find the application abusive on the ground that the complaints concerning the repeat parliamentary election were not corroborated by evidence.
b) The Court’s assessment
At the outset, the Court emphasises that it is not its role to examine disputes over internal politics (mutatis mutandis, Assanidze v. Georgia [GC], no. 71503/01, § 149, ECHR 2004-II) and that the parties should use the machinery of the Convention only for the purposes for which it has been established.
The Court further recalls that, in principle, an application, even if it uses offensive language, may only be rejected as abusive under Article 35 §§ 3 and 4 of the Convention if it was knowingly based on untrue facts (see Keretchashvili v. Georgia (dec.), no. 5667/02, 2 May 2006; Varbanov v. Bulgaria, judgment 5 October 2000, no. 31365/96, § 36, ECHR 2000-X; Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, §§ 53-54). However, the persistent use of insulting or provocative language by an applicant may be considered an abuse of the right of individual petition (see Manoussos v. the Czech Republic and Germany (dec.), no. 46468/99, 9 July 2002; Duringer and Others v. France (dec.), nos. 61164/00 and 18589/02).
The Court also considers that the application is not an abuse merely because of the fact that it is motivated by the desire for publicity or propaganda (cf. McFeeley v. the UK, no. 8317/78, Commission decision of 15 May 1980). Nor could the applicant be said to have flouted the right of individual petition for having used exaggerations or provocative expressions when discussing the Court proceedings, unless such statements are made regularly and either call into question the impartiality of the Court, constitute a gratuitous attack upon the Government agency responding in the proceedings or otherwise make it intolerable for the Court to handle his or her application (mutatis mutandis, Řehák v. the Czech Republic (dec.), no. 67208/01, 18 May 2004; Chernitsyn v. Russia, no. 5964/02, §§ 24-28, 6 April 2006).
Turning to the present case, the Court shares the Government’s view that some of the impugned public statements of the applicant party’s leader were deliberately untrue statements of fact, apparently motivated by political considerations, and therefore could hardly amount to a legitimate exercise of the right to freedom of expression (cf. Stamoulakatos v. Greece, no. 32857/96, Commission decision of 3 December 1997). Furthermore, the Court considers that Mr Natelashvili’s interviews in the program “the Debates” and on the “Kavkasia” channel were vexing manifestations of irresponsibility and a frivolous attitude towards the Court, in general, and his party’s application, in particular. Some of Mr Natelashvili’s observations even came close to contempt of court.
However, the Court does not find that those statements, assessed as a whole, have yet surpassed the degree of tolerance. They cannot be considered especially abrasive (a contrario, Řehák (dec.), cited above), nor do they constitute an attack upon the Government responding in the present proceedings, since they were rather aimed at those State institutions – the President and the Parliament – the disputed elections of which represent the very subject matter of the present application (a contrario, Chernitsyn, §§ 16-28, cited above). The Court also takes into account that such expressions are, so far, of rare occurrence and that, after his letter of 26 September 2006, in which Mr Natelashvili made an apology and pledged to show due respect towards the Court (see the Relevant Procedure above), no other comparable statements are known to have been made (ibid, § 27).
In these circumstances, the Court finds that the grounds which might have led to the rejection of the present application as an abuse of the right of individual petition are insufficient. The Government’s objection should therefore be dismissed. However, this finding does not preclude the Court from reaching another conclusion at any stage of the proceedings, were the applicant party’s leader to persist with any similar conduct in the future.
As to the Government’s argument that the application is also abusive because the complaints concerning the repeat parliamentary election are not supported by evidence, the Court considers that this issue goes to the merits of the case.
2. As to the presidential election
The Government consider that this part of the application is incompatible ratione materiae with the provisions of the Convention, as, in the light of the relevant constitutional provisions, the Georgian President could not be said to be part of “the legislature” within the meaning of Article 3 of Protocol No. 1. They refer in this regard to the fact that the President could not adopt or veto Parliamentary statutes, did not possess the power to dissolve Parliament and that the Presidential acts were mainly aimed at the implementation of the statutory legislation.
The Court reiterates that, although Article 3 of Protocol No. 1 is concerned only with the “choice of the legislature”, 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 (see Mathieu-Mohin and Clerfayt v. Belgium, judgment of 2 March 1987, Series A No. 113, p. 23, § 53).
Having regard to the relevant provisions of the Georgian Constitution (Articles 48 and 68) in force at the material time, the Court observes that legislative power in Georgia was exercised by Parliament. Pursuant to Article 69 of the Constitution and section 2 of the Law on the Structure and Activity of the Executive, the President of Georgia is the Head of State and of the Executive.
However, in order to ensure “effective political democracy”, a characteristic enshrined in Article 3 of Protocol No. 1, regard must be had not only to the strictly legislative powers which a body has, but also to that body’s role in the overall legislative process (see Matthews v. the United Kingdom [GC], no. 24833/94, §§ 42 and 49, ECHR 1999-I). Should it be established that the office of the Head of the State had been given the power to initiate and adopt legislation or enjoyed wide powers to control the passage of legislation or the power to censure the principal legislation-setting authorities, then it could arguably be considered to be a “legislature” within the meaning of Article 3 of Protocol No. 1 (see Boškoski v. the former Yugoslav Republic of Macedonia (dec.), no. 11676/04, ECHR 2004-...).
Turning to the present case, the Court observes first that, although the President had the power to initiate legislation (Article 67 § 1 of the Constitution), he or she did not have power to enact it. The President was entitled to call a referendum, but not on the issues of the enactment or abrogation of laws, amnesties, or the ratification or rejection of treaties and international agreements (Article 74 §§ 1 and 2), which were the prerogatives of Parliament. The President, as the supreme representative of Georgia in foreign relations (Article 69 § 3), was empowered to negotiate with foreign States and to conclude international agreements (Article 73 § 1) but Parliament could either ratify or reject such agreements and was to be notified immediately of the conclusion of any other treaty which did not require ratification (Article 65).
Secondly, as noted by the Government, the President had not been given, in law or in practice, the right to veto the legislation enacted by Parliament. The President enjoyed only limited discretion to suspend, on a provisional basis, promulgation of the statutes passed by Parliament (Article 68 §§ 3, 4 and 5). Nor was the President vested with the power to dissolve Parliament, which could only be dissolved at the end of its mandate (Article 50 § 4). On the contrary, it was Parliament which was empowered, under Article 63 § 1 of the Constitution, to impeach the President. The President did not enjoy the power of unlimited discretion to appoint or dismiss Government members or other officials without Parliament having a final say on the matter (Articles 48 and 73 § 1 (b) and (f)).
As to the nature of the acts issued by the President, the Court observes that Presidential ordinances (gankarguleba) constituted “individual legal acts”, valid for one occasion only and not intended to prescribe a general rule of conduct for recurrent applications (Sections 2 and 4 of the Law on Normative Acts). They did not therefore have legislative force (see, mutatis mutandis, Amat-G Ltd and Mebaghishvili v. Georgia, no. 2507/03, §§ 28 and 61, 27 September 2005).
As to presidential edicts (brZanebuleba), they could not contravene or supersede laws enacted by Parliament but were, in accordance with Section 5 of the Law on Normative Acts, part of Georgian legislation as subsidiary legislative acts of a normative character. The domestic law does not define on which matters exactly the President could issue that type of act, nor did the Government provide the Court with any clarification in this regard.
The presidential orders (brZaneba) and decrees (dekreti) were acts of an extraordinary character (Article 73 § 1 (h) of the Constitution and Sections 11-13 of the Law on Normative Acts). The order, issued by the President in his or her capacity as the Supreme Commander-in-Chief of armed forces, could be of normative, that is prescribing a general rule for recurrent application, or of individual character, but it did not constitute either a legislative or a subsidiary legislative act. The presidential decree was, in the normative hierarchy, on the same footing as an ordinary statute, yet it could not contravene any organic law passed by Parliament. The President could issue decrees only in time of emergency (war, military coup, violation of the country’s territorial integrity, etc.), when the State organs were unable to exercise their authority, and, in any case, they were to be submitted to Parliament for approval immediately after the latter reconvened. In other words, the President could exercise an interim legislative power of extraordinary character.
The Court, however, does not deem it necessary to decide in the present case whether or not the Georgian President constituted part of “the legislature”, as, in any event, the applicant party cannot validly claim to be a victim under Article 34 of the Convention of the violations alleged with respect to the presidential election.
The Court notes, in this regard, that the applicant party, being a corporate entity, could not run for the presidential election; nor did its Chairperson or any other ordinary party member. Consequently, the applicant was not actually affected by the contested electoral mechanisms and results of the presidential election (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A, no. 25, §§ 239-240; Klass and Others v. Germany, judgment of 6 September 1976, Series A, no. 28, § 33). This fact was also duly noted by the Tbilisi Regional Court in its decision of 15 December 2003. The Court observes that the applicant’s complaints about the electoral mechanisms of the presidential election rather express concern on behalf of the electorate at large and constitutes therefore a clear instance of actio popularis, the institution of which is not provided for under the Convention system (see Norris v. Ireland, judgment of 26 October 1988, Series A, no. 142, § 31; Sanles Sanles v. Spain (dec.), no. 48335/99, 26 October 2000).
The Court further considers that no separate issues arise under Article 14 of the Convention in so far as this part of the application is concerned.
It follows that the applicant’s complaints concerning the presidential election of 4 January 2004 are incompatible ratione personae with the provisions of the Convention and must be rejected in accordance with its Article 35 §§ 3 and 4.
3. As to the repeat parliamentary election
The Government state that the applicant’s complaints about the repeat parliamentary election are manifestly ill-founded. They maintain in this regard that the right to stand for election is not absolute and that a wide margin of appreciation is to be allowed to the Contracting States in determining the conditions in which the above right could be exercised.
Contending that the repeat parliamentary election was compatible with Article 3 of Protocol No. 1, the Government refer to a number of international observers who positively assessed the challenged electoral mechanisms. The Government assert that the CEC amendment to the voter registration system was aimed at ensuring that every person was able to cast a vote. As regards the complaint about the disfranchisement of two electoral districts, the Government submit that the applicant has failed to substantiate with evidence that it could have received from those districts the number of votes sufficient to overcome the 7 % threshold. Finally, the Government consider that the applicant party should have complained before the domestic courts about the composition of the electoral commissions during the election process itself and not after its finalisation.
The Court recalls that Article 3 of Protocol No. 1 enshrines a fundamental principle for effective political democracy, and is accordingly of prime importance in the Convention system (see Melnychenko v. Ukraine, no. 17707/02, § 53, ECHR 2004-X).
In the light of the parties’ submissions in the present case, the Court finds that the applicant party’s complaints about the repeat parliamentary election raise complex questions of fact and law, the determination of which should depend on an examination of the merits. This part of the application cannot therefore be rejected as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
Declares admissible, without prejudging the merits, the applicant’s complaints concerning the repeat parliamentary election of 24 March 2004;
Declares inadmissible the remainder of the application.
S. Dollé F. TULKENS
2 THE GEORGIAN LABOUR PARTY v. GEORGIA (No.2) – NEW CASE
THE GEORGIAN LABOUR PARTY v. GEORGIA (No.2) – NEW CASE