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year 2005
Zhdanok v. Republic of Latvia

17.06.2004. Press release issued by the Registrar
 
CHAMBER JUDGMENT IN THE CASE OF ZHDANOK v. LATVIA

 

The European Court of Human Rights has today notified in writing a judgment[1][1] in the case of Zhdanok v. Latvia (application no. 58278/00).

 

The Court held by five votes to two

 

                  that there had been a violation of Article 3 of Protocol No. 1 to the European Convention on Human Rights (right to free elections);

                  that there had been a violation of Article 11 of the Convention (freedom of assembly and association); and

                  that it was not necessary to examine separately a complaint under Article 10 of the Convention (freedom of expression).

 

Under Article 41 of the Convention (just satisfaction), the Court awarded the applicant, by five votes to two, 2,236.50 Latvian lati (approximately 3,421 euros (EUR)) for pecuniary damage, EUR 10,000 for non-pecuniary damage and EUR 10,000 for costs and expenses.

 

(The judgment is available only in French.)

 

1.  Principal facts

 

The applicant, Tatjana Zhdanoka, is a Latvian national who was born in 1950 and lives in Riga. She led the list of the electoral alliance known as the PCTVL (Par cilvēka tiesībām vienotā Latvijā For Human Rights in a United Latvia) in the European elections of June 2004. Her application concerned the fact that she had been ruled ineligible in Latvia on account of her former membership of a political party declared unconstitutional and her activities within it.

 

In 1971 Mrs Zhdanoka became a member of the Communist party of Latvia (the CPL), a regional branch of the Communist Party of the Soviet Union (the CPSU). In 1990 she was elected a member of the Supreme Council (Augstākā Padome) of the Soviet Socialist Republic of Latvia (her term of office ending in 1993). After the restoration of Latvias independence the CPL, which according to the Government had taken part in two attempted coups détat, was declared unconstitutional and was dissolved by the Supreme Council on 10 September 1991.

 

In 1993 the applicant became the president of the Movement for social justice and equal rights in Latvia (Kustība par sociālo taisnīgumu un līdztiesību Latvijā), which later turned itself into a political party called Līdztiesība (Equal rights). She was elected to Riga City Council in 1997 and attempted to stand as a candidate in the 1998 parliamentary elections. However, the Central Electoral Commission ruled that her candidature was incompatible with the electoral legislation making persons who had actively participated (darbojušās) in the CPLs activities after 13 January 1991 ineligible. Not wishing to cause the entire list to run the risk of being refused registration, the applicant withdrew her candidature.

 

On an application by the Procurator Generals office the Riga Regional Court gave a judgment in which it held that the applicant had participated in the CPLs activities after the critical date. On 15 December 1999 the judgment was upheld on appeal by the Civil Affairs Division of the Supreme Court. As it was directly enforceable, the applicant became ineligible and lost her seat on the City Council. She then appealed on points of law to the Cassation Division of the Supreme Court, which declared her appeal inadmissible.

 

The applicant attempted to stand as a candidate in the 2002 parliamentary elections; her party formed with two other parties an electoral alliance called the PCTVL. However, referring to the 1999 judgment of the Civil Affairs Division, the Central Electoral Commission removed her name from the list of candidates.

 

2.  Procedure and composition of the Court

 

The application was lodged with the Court on 20 January 2000 and declared partly admissible on 6 March 2003. A hearing in the case was held on 15 May 2003

 

Judgment was given by a Chamber of 7 judges, composed as follows:

 

Christos Rozakis (Greek), President,
Peer Lorenzen (Danish),
Giovanni Bonello (Maltese),
Françoise Tulkens (Belgian),
Egil Levits (Latvian),
Anatoli Kovler (Russian),
Vladimiro Zagrebelsky (Italian), judges,

and also Søren Nielsen, Section Registrar.

 

3.  Summary of the judgment[2][2]

 

Complaints

 

Relying on Article 3 of Protocol No. 1 to the Convention, the applicant complained of an infringement of her right to stand as a candidate in elections as a result of the ruling that she was ineligible. She further submitted that her ineligibility as regards both the Latvian Parliament and district councils had been contrary to Articles 10 and 11 of the Convention.

 

Decision of the Court

 

Article 3 of Protocol No. 1 to the Convention

 

The Court reiterated that in their internal legal orders States party to the Convention had a wide margin of appreciation in subjecting the rights to vote and stand for election to prescribed conditions. In the present case it accepted that the ruling that the applicant was ineligible pursued at least three legitimate aims, namely protection of the States independence, the democratic regime and national security.

 

Such a type of ineligibility could be a punitive measure, punishing a person for his or her past uncivic conduct, or a preventive measure where the present conduct of the person concerned was likely to endanger democracy and where his or her election might create an imminent danger for the States constitutional order.

 

Punitive aspect of ineligibility

The Court accepted the legitimacy of a punitive measure, but considered that in general such a measure should be temporary in order to be proportionate. In the present case the restriction imposed on the applicant was permanent in that it was of indefinite duration and would continue until the relevant legislation was repealed.

 

Preventive aspect of ineligibility

As regards the applicants conduct in 1991, the Court noted that, as there had been no ban prohibiting the activities of the CPL or CPSU before August 1991, the applicant could not reasonably have foreseen the adverse consequences that might result from her personal commitment or militancy within those organisations. She could therefore not be accused of active participation in an illegal association.

 

The Court considered that it was not its task to take sides in the historical controversy between the parties about the events of 1991, but took the view that the totalitarian and anti-democratic nature of the ruling communist parties in the States of central and eastern Europe before 1990 was a well-known historical fact. It did not exclude the possibility that the restriction in issue could have been justified and proportionate during the first years after the re-establishment of Latvias independence, but as time went on it was necessary to ascertain whether other factors, in particular the applicants participation in the events concerned, continued to justify her ineligibility.

 

In that connection, the Court noted that the ineligibility procedure introduced by Latvian legislation and its interpretation by the Constitutional Court did not allow the courts to assess whether a person really represented a threat to the current democratic regime. It considered that such rigidity was striking, in that it deprived the domestic courts of the power to rule whether the candidates ineligibility remained proportionate as time went by. It noted that the applicant had never been convicted of a criminal offence on account of her activities within the CPL and that after an inquiry into the participation of certain MPs in a coup détat no sufficiently serious wrong was attributed to her. Admittedly, the applicant had held high office in the CPL, but there was no evidence that she herself had committed acts aimed at the destruction of the Republic of Latvia or restoration of the former regime.

 

Moreover, the Court failed to see why, if parliament considered former active members of the CPSU and CPL so dangerous for democracy, it had not enacted the legislation providing for the ineligibility complained of in 1993 scarcely two years after the relevant events but had waited until the following elections in 1995.

 

Having regard to the observations of the parties and the information supplied by them, the Court concluded that the applicants individual conduct in 1991 had not reached such a level of seriousness as to justify her continued ineligibility in the present.

 

As to the applicants present conduct, the Court noted that the criticisms levelled at her mainly concerned the fact that she defended and disseminated ideas diametrically opposed to the official policy of the Latvian authorities and were disapproved of by a large proportion of the population. With regard to the applicants ideas concerning the Russian-speaking minority in Latvia and the legislation on language matters, the Court could not discern any sign of anti-democratic leanings or incompatibility with the fundamental values of the Convention. The same conclusion was inescapable as regards the means the applicant used to attain her political objectives. In short, the Government had not supplied information about any specific act by the applicant capable of endangering the Latvian State, its national security or its democratic order.

 

Consequently, the Court considered that the applicants permanent ineligibility to stand for election to the Latvian parliament was not proportionate to the legitimate aims it pursued, that it curtailed her electoral rights to such an extent as to impair their very essence and that its necessity in a democratic society had not been established.

 

Article 11 of the Convention

 

The Court noted that there had been interference with the applicants exercise of her right to freedom of association and that this interference had been prescribed by law. The measure complained of had pursued a legitimate aim, namely protection of national security. As to whether it met a pressing social need, the Court noted that the party of which the applicant had been a militant member could not have been regarded as illegal at the material time, and that the Latvian Government had not supplied information about any specific act by the applicant aimed at destroying the newly-restored Republic of Latvia or its democratic order.

 

The applicants ineligibility to stand for election to parliament or the district councils on account of her active participation in the CPL, which was still in force more than ten years after the events for which that party had been held responsible, was disproportionate to the aim pursued and accordingly not necessary in a democratic society.

 

Article 10 of the Convention

 

The finding of a violation of Article 11 made it unnecessary for the Court to rule separately on the question of compliance with the requirements of Article 10.

 

Judge Bonello and Judge Levits expressed dissenting opinions, which are annexed to the judgment.



[1][1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17‑member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.

[2][2] This summary by the Registry does not bind the Court.





Comments
michael, 2005-05-26 23:44:14 michael.johnstone@neret.com
You betcha Georg!!! Zdanok isnt normal!!! Shes an animal!!!

georg, 2005-05-20 27:10:27 georg@e-munchen.de
Zdanok is insane!!!

Total:2 | Shown: 1 - 2





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