"Íàøè ìåðòâûå íàñ íå îñòàâÿò â áåäå.
Íàøè ïàâøèå - êàê ÷àñîâûå"
OF HUMAN RIGHTS
“_____” ___________________ 2013
Application no. 75947/11
Davydov and Others v. Russia
Applicants on claim no.75947/11 Davydov and Others v. Russia would like to inform the Court that on May 21, 2013 the State Duma of the Federal Assembly of the Russian Federation in the first reading passed draft law ¹ 246960-6 – the Code of Administrative Court Procedure of the Russian Federation (Appendix ¹123 (Appendices are numbered continuously in respect of the document submitted to the Court on May 6, 2013), which inter alia specifies the scope of citizens’ electoral rights.
Thus, according to paragraph 1 art. 31 of the Code of Administrative Court Procedure of the Russian Federation (hereinafter the Code), ”citizens being subjects of the electoral process or the process of preparation and holding a referendum, have a right to contest in court decisions, actions (inaction) of state government officials, local authorities, another government body, an election commission, a referendum commission, members of such commissions, officials, which violate these citizens’ electoral rights or their right to participate in the referendum”.
At the same time, paragraph 14 of the article limits the circle of persons holding the right to demand repeal of election results. This category includes persons duly registered and having participated in the election as candidates, election associations, which participated in the lection and nominated a candidate or a list of candidates to elective offices, pressure groups on holding the referendum and/or its authorized representatives, and in cases stipulated by law, a prosecutor.
The Claimants would like to remind the Court that according to the position of the Constitutional Court of the Russian Federation stated in Ruling Ï-8/2013 dated April 22, 2013 (Appendices ¹121 and ¹122), «…legal protection shall be available to voters and effective on …. the stages of electoral process aimed at defining the election results» (page 23 Ruling of the CC RF);
«in defining the legal protection mechanism of electoral rights the federal lawmaker shall provide for the voters’ right to appeal in court decisions and actions (inaction) of election commissions related first of all to the vote count and establishing election results, … and in determining the facts confirming impossibility to define the real expression of the voters’ will the court shall be able to rule the voting, election results invalid on the respective territory”;
The CC RF was guided by the assumption that at present there is no piece of the current legislation which would “…provide for direct limitations or bans in respect of the right of … voters to appeal decisions and actions (inaction) of election commissions which violate citizens’ electoral rights, connected with vote count and establishing the voting, election results.
Interconnected provisions of paragraphs 2 and 3 art. 77 of the Federal law “On Basic Guarantees of electoral rights and right to participate in referendums for citizens of the Russian Federation” and sections 4 and 5 art. 92 of the Federal Law “On election of deputies of the State Duma of the Federal Assembly of the Russian Federation” , which stipulate an open (non-exhaustive) list of grounds for the court to repeal the decision of a respective election commission on voting, elections result do not contain regulatory legal barriers for courts to consider applications on violated electoral rights of citizens in vote count and establishing voting, election results as well, insomuch as to accordingly repeal the decisions of election commissions in case the violations committed do not allow to define the real will of voters”.
Thus, the CC RF stated that in the legislation there is no ban on voter’s appeal of decisions and actions (inaction) of authorities in this respect. Moreover, the Court stipulated that in case such voter’s claim is legally valid, he or she can demand, and the court rule to repeal the election result. The absence of the comprehensive appealing procedure was ruled unconstitutional.
However, in legitimizing the Code the legislature of the Russian Federation is trying to break the causative-consecutive link between the court’s decision brought forward on a voter’s application to rule the decisions, actions (inaction) of a respective authority as invalid, including in connection with the fact that such decision, actions (inaction) substantially violate electoral rights, and subsequent repeal of election results on a respective territory.
In contradiction with the judicial power, the legislature deprived the voter of the right to somehow influence the illegitimate election results, as while de jure it grants the voter the right to appeal the decisions, actions (inaction) of respective authorities, de facto it does not define the matter of such appeal, which results in lack of legal consequences meaningful for protection of electoral rights.
More simply, even in case the actions of an election commission are ruled illegal, e.g. on the grounds of falsification of election protocols at a polling station, the voter is not guaranteed restoration of electoral rights, as the further steps of the voter are not stipulated. In case of establishing the fact of violations which do not allow to define the real will of voters the Court cannot by its own decision repeal election results, and the voter cannot demand such ruling from the Court. Other subjects of the electoral process are granted the right to repeal election results (paragraph 14 art.231), for example on the grounds of falsification of the protocols, but no such duty is stipulated, insomuch as no duty to protect citizens’ electoral rights is stipulated.
According to Ruling Ï-8/2013 dated April 22, 2013 of the CC RF, «Enjoying a broad enough appreciation in performing the respective legal regulation, the federal lawmaker is bound by constitutional principles of equality and commensuration, and the resulting requirements of formal certainty, adequacy and proportionality of the legal arrangements used. As the Constitutional Court of the Russian Federation pointed out on several occasions, in cases when a federal lawmaker limits constitutional rights and liberties under provisions of art. 55 (section 3) of the Constitution of the Russian Federation, they cannot exercise regulation which would infringe the very nature of such right and lead to the loss of its real meaning; even with the aim to prevent abuse of the right they shall not apply excessive measures, but only those conditioned by necessity to protect constitutionally crucial value”.
The Claimants consider the current situation in the sphere of protection of electoral rights, as well as definition of their scope and content, as critical.
The Claimants assume that besides the aforesaid, the Russian Federation is in violation of art.13 of the Convention, depriving voters of the possibility to defend the right to free elections which provide for free expression of popular will in the course of election to legislatures.
Appendix ¹123: Extracts from Draft law ¹ 246960-6 – the Code of Administrative Court Procedure of the Russian Federation. (full text of the Draft law may be seen at http://asozd2.duma.gov.ru/main.nsf/%28SpravkaNew%29?OpenAgent&RN=246960-6&02 in Internet).
Approved by all Claimants.
Attorney-in-fact of the Claimants
Legal counsel E. Napara ____________
Appendix ¹123. Ïðîåêò ÊîÀÑ;