"Наши мертвые нас не оставят в беде.
Наши павшие - как часовые"
OF HUMAN RIGHTS
“_____” ___________________ 2013
Application no. 75947/11
Davydov and Others v. Russia
Dear Mr. Nielsen,
In reply to your letter dated March 7, 2013 concerning the request of the Court to submit additional factual information on complaint № 75947/11 Davydov and Others v. Russia we submit on behalf of the Applicants the following additional information.
On April 22 the Constitutional Court of the Russian Federation passed Ruling 8-П2013 (Appendix №121 – the next number of the Appendix after the last Appendix sent, Appendix №122 – the same text in English) in respect of the claim of the Applicants (part 7 of the reply dated April 3, 2013 to the Court request dated March 7, 2013 to submit certain documents and information under Claim № 75947/11Davydov and Others v. Russia (hereinafter the Reply dated April 3, 2013)).
Performing their duty to inform the Court on all rulings passed in the framework of the case considered the Claimants hereby forward the respective Ruling and provide additional clarifications on the subject matter of the document and its affect on the case:
In its Ruling 8-П2013 dated April 22, 2013 the года The Constitutional Court of the Russian Federation ruled a number of provisions of the civil procedure law:
1. as not inconsistent with the Constitution of the Russian Federation to the extent these provisions in their constitutional legal sense provide for the right of voters to seek judicial protection of their electoral rights in respect of the voting held;
2. as inconsistent with the Constitution of the Russian Federation to the extent these provisions, in giving the voters the right to seek judicial protection of their electoral rights, along with that by virtue of vague regulatory content in respect of subjects, procedure and conditions of applying to court to appeal the election results – in the sense given to the by the existing legislative and regulatory compliance practices– exclude the right of citizens who participated in the elections as voters to appeal the decisions and actions (inaction) of election commissions in connection with establishing the voting results at the polling station where these citizens participated in the elections.
The Constitutional Court of the Russian Federation also ruled that the federal lawmaker shall introduce amendments in legal regulation of judicial protection of citizens’ electoral rights aimed at clarifying the procedure of judicial appeal of the decisions and actions (inaction) of election commissions in connection with establishing the voting, election results.
According to the Ruling of the Constitutional Court, until such amendments are introduced into the current legal regulation courts of general jurisdiction shall not dismiss applications of citizens who participated in the elections as voters to protect their electoral rights violated in the course of establishing the voting results at the polling station where these citizens participated in the elections.
As long as under subart. 3 paragraph 4 art. 392 of the CPC of the RF, the fact that the Constitutional Court of the Russian Federation ruled unconstitutional the law applied in the specific case in respect of decision on which the claimant applied to the Constitutional Court of the Russian Federation gives grounds to review the case upon discovery of new facts, the Claimants consider necessary to give the following clarification:
1. The Ruling of the Constitutional Court of the Russian Federation gives evidence of the fact that at the moment the results of the elections were established the procedure of appealing of the respective results, means of protection of electoral rights was not clearly provided for in the legislation of the Russian Federation.
The abovementioned circumstance did not allow the Claimants to define in due time what procedure they shall apply to appeal the falsifications committed. For the reason of the absence of the appealing procedure and considering that the law stipulated the common right to appeal, the Claimants appealed the violations in the way they saw as the most effective, i.e. the First, Second, Third, Fourth and Sixth Claimants applied to the Supreme Court of the Russian Federation to appeal the wrong establishment of the elections results on account of falsifications.
Dismissal of the Supreme Court of Russian Federation (Appendix №28 to the Reply dated April 03, 2013) had universal character, depriving the Claimants of the right of access to justice to full extent, as allegedly the falsifications at the elections did not violate their rights.
Basing on the experience of the Eighth (art. 4.12 – 4.2 section 4 of the Reply dated April 3, 2013) and the Ninth Claimants (section 5 of the Reply dated April 3, 2013), and considering the overall denial of the Supreme Court of the RF to consider the cases of such nature, the abovementioned claimants decided not to apply to district courts to appeal falsifications directly at polling stations. The Claimants reasoned that the logics of the Supreme Court of the RF would be applied.
2. In its Ruling dated April 22, 2013 the Constitutional Court of the RF, stating that voters have a right to appeal the election results, stipulated its suggested procedure and limits: appeal is possible only at polling stations, i.e. in district courts.
3. At present, taking into consideration the period of prescription, the Claimants (here and elsewhere the Second, Third, Fourth and Sixth Claimants) cannot appeal the election results at polling stations.
4. On the account that at the moment the Claimant applied to courts there were no abovementioned limits and procedure of appeal, provided now by the Constitutional Court of the RF, the Claimants chose another way they saw more effective then.
5. The set of circumstances at present does not allow the Claimants to demand review of the case upon discovery of new facts.
At the same time the Claimants emphasize that the only reason they cannot resort to such remedy as review upon discovery of new facts, as well as the reason immediately after the elections they appealed in the Supreme Court the overall results of the election and not election results at specific polling stations in district courts, was failure of the state to perform its obligation to provide the citizens with effective remedy stipulated in art. 13 of the Convention, which in fact was affirmed by the Constitutional Court of the Russian Federation.
Summarizing the aforesaid, the Claimants still consider that violation of the right to free elections was committed and the damage done to the Claimants is not in any way restored by the Ruling of the Constitutional Court of the Russian Federation dated April 22, 2013, as the aim of the Claimants’ applying both to the state government bodies of the RF and the European Court - restitutio in integrum – has not been achieved and there is still no way to achieve it.
Approved by the Claimants.
Attorney-in-fact of the Claimants
Appendix №121. The Ruling of the Constitutional Court of the Russian Federation dated April 22, 2013 ;
Appendix №122. Ruling of Constitutional Court of RF from 22 April 2013 in translation into English.