SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 17707/02 by Mykola Ivanovych MELNYCHENKO against Ukraine

The European Court of Human Rights (Second Section), sitting on 4 November 2003 as a Chamber composed of

Mr J.-P. Costa , President , Mr A.B. Baka , Mr Gaukur Jörundsson , Mr L. Lucaides

Mr K. Jungwiert , Mr V. Butkevych , Mr M. Ugrekhelidze, judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application lodged on 23 April 2002,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Mykola Ivanovych Melnychenko, is a Ukrainian national, who was born on 18 October 1966 in the village of Zapadynka, Vasylkiv District, the Kyiv Region. He currently resides in the United States of America where he has refugee status.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant is a retired major of the State Security Service of Ukraine ( Служба Безпеки України ) . He served in the President of Ukraine’s Administration in the Department of Security. He was in charge of guarding the office of the President. In the course of his work he allegedly made tape recordings of the President’s personal conversations with third persons relating to the possible involvement of the President in the disappearance of the journalist Georgiy Gongadze.

On 26 November 2000 the applicant left Ukraine for Poland, and then for the Czech Republic, being afraid of political persecution following the disclosure of the audiotapes to the public.

On 28 November 2000 the Chairman of the Socialist Party of Ukraine publicly disclosed the content of these tapes during the session of the Parliament of Ukraine, Verkhovna Rada ( Верховна Рада України ) . This disclosure led to a political scandal (“audio-tapes scandal”) and to allegations of the involvement of President Leonid Kuchma in the disappearance of the journalist Georgiy Gongadze, who was known for his critical articles about the President in the Internet newspaper “ Ukrayinska Pravda ” ( Українська Правда ).

During his stay in the Czech Republic the applicant applied for political asylum in the United States of America (“US”/“USA”). On 27 April 2001 the Immigration and Naturalisation Service of the US Department of Justice recognised the applicant as a refugee under the United Nations Convention Relating to the Status of Refugees 1951 ( hereinafter “the Geneva Convention” ) . The US Department of Justice issued a travel document to the applicant and granted him the right to stay in the USA for an indefinite period of time.

On 12 January 2002 the 9 th Congress of the Socialist Party of Ukraine nominated the applicant as candidate no. 15 on the Socialist Party list for election to the national Parliament ( Верховна Рада України ).

On 22 January 2002 the Socialist Party submitted the applicant’s request to the Central Electoral Committee ( Центральна Виборча Комісія ) for formal registration. In the request, the applicant referred to the address of his propyska , an apartment where he had resided since 1992, as his “place of residence” for the purposes of registration.

On 26 January 2002 the Central Electoral Committee of Ukraine adopted its Resolution No. 94 “on the Refusal of the Registration of Candidates for the People’s Members of Parliament of Ukraine on 31 March 2002.”

This Resolution was based on the verbatim record of the discussion of the applicant’s request for registration, and was adopted on the basis of a proposal by Ms Stavniychuk, a member of the Electoral Committee of Ukraine, to refuse registration for the following reasons:

“... It ensues from what has been specified above that the provision of Part II of section 8 of the Law “on the Election of the People’s Members of Parliament of Ukraine”, concerning residence in accordance with the international treaties of Ukraine in force, does not extend to M.I. Melnychenko.

From the legal point of view M.I. Melnychenko’s stay in the USA does not allow him to be recognised as being permanently resident in Ukraine, as prescribed by section 8 of the Law ...

... M.I. Melnychenko remains abroad on other grounds: those grounds are not prescribed by Part II of Section 8 of the Law...

... the reasons to conclude that any break in residence in Ukraine beyond the grounds for residence or stay prescribed by Part II of section 8 of the Law ... rules out the possibility for the person to exercise his right to be elected as a People’s Member of Parliament of Ukraine, since it [any break in residence] cannot constitute residence in Ukraine.

... On account of this factor and due to the fact that M.I. Melnychenko has submitted inaccurate information about his actual residence or stay for the past five years, as established by the Central Electoral Commission, we propose that the Commission refuse M.I. Melnychenko’s registration as a candidate for the People’s Members of Parliament of Ukraine ...”

By virtue of this resolution the Central Electoral Committee of Ukraine adopted the proposal of Ms Stavniychuk and rejected the registration of thirteen potential candidates including the applicant’s. In particular, it decided:

“... 2. To deny the registration as a candidate for membership of the Parliament of Ukraine in the multi-mandate all-State electoral constituency of Mykola Ivanovych Melnychenko, enrolled under number 15 on the electoral list of candidates for the People’s Members of Parliament of Ukraine on 31 March 2002, whose documents submitted to the Central Electoral Committee contained substantially untruthful data about his place and period of residence for the last five years”.

The other 12 candidates were refused registration because of improper completion of the documents necessary for registration.

On 30 January 2002 the Socialist Party lodged an appeal with the Supreme Court of Ukraine against Resolution No. 94 of the Central Electoral Committee of 26 January 2002. It sought to have the resolution declared unlawful and annulled.

On 8 February 2002 the Supreme Court of Ukraine rejected this appeal for the following reasons:

“... the information about M.I. Melnychenko’s actual place of residence for the last five years in Ukraine and referred to in the said documents is contested by the Central Electoral Committee and the court. This information is substantially lacking in truth with respect to a candidate for election as a Member of the Verkhovna Rada of Ukraine, and therefore paragraph 2 of Resolution No. 94 of the Central Electoral Committee of 26 January 2002 conforms to the requirements of Part II of section 8 and sections 41 and 47 of the Law on the Elections of the People’s Members of Parliament of Ukraine.

On the basis of what has been set out and taken into account the above ... the Court

has resolved:

that the complaint of the Socialist Party of Ukraine about paragraph 2 of Resolution No. 94 of the Central Electoral Committee of 26 January 2002 on the refusal of M.I. Melnychennko’s registration as a candidate for membership of the Parliament of Ukraine, in the multi-mandate all-State electoral constituency, be dismissed.”

On 21 November 2002 the applicant informed the Court that he resides in the United States where he has the status of a refugee.

B. Relevant domestic law

1. Constitution of Ukraine

Article 8

“... The Constitution of Ukraine has the highest legal force.

... The norms of the Constitution of Ukraine have direct effect...”

Article 9

“International treaties that are in force and are accepted as binding by the Verkhovna Rada of Ukraine, are part of the national legislation of Ukraine. ...”

Article 22

“... Constitutional rights and freedoms are guaranteed and shall not be abolished. ...”

Article 24

“...There shall be no privileges or restrictions based on ... political ... and other beliefs..., place of residence ...”

Article 38

“Citizens have the right to participate in the administration of State affairs, in all Ukrainian and local referenda, to elect freely and to be elected to bodies exercising State power as well as local self-government bodies.

Citizens enjoy an equal right of access to the civil service and to service in local self-government bodies.”

Article 64

“Constitutional human and citizens’ rights and freedoms shall not be restricted, except in cases envisaged by the Constitution of Ukraine.

In conditions of martial law or a state of emergency, specific restrictions on rights and freedoms may be authorised with an indication of the period of effectiveness of these restrictions.  The rights and freedoms envisaged in Articles 24, 25, 27, 28, 29, 40, 47, 51, 52, 55, 56, 57, 58, 59, 60, 61, 62 and 63 of this Constitution shall not be restricted.”

Article 76

“... A citizen of Ukraine who has attained the age of twenty-one on the date of elections, has the right to vote and, if that citizen has resided in the territory of Ukraine for the past five years, may be a national Member of Parliament...

A citizen who has a criminal record for having committed an intentional crime shall not be elected to the Verkhovna Rada of Ukraine if the record is not cancelled and erased by the procedure established by law...”

Article 77

“ ... The procedure for the election of the People’s Members of Parliament ... is established in accordance with the procedure prescribed by law.”

3. The Law on the Central Electoral Committee of Ukraine, 17 December 1997

Section 1 - The Status of the Central Electoral Committee

“The Central Electoral Committee is a permanent State body which, in accordance with the Constitution of Ukraine, this and other Laws of Ukraine, ensures the organisation, preparation and conduct of the elections of the President of Ukraine, the People’s Members of Parliament of Ukraine and also all-Ukrainian referenda.”

Section 14 (11) - The Powers of the Central Electoral Committee

“The Central Electoral Committee:  ...

(11) registers in accordance with the Laws of Ukraine the lists of candidates for membership of Parliament from the political parties, or electoral groups of parties, and issues to the political parties and electoral groups a copy of its decision on the registration of these lists, and issues to the candidates formal proof of registration.”

4. Civil Code of Ukraine, 18 July 1963

Article 17 (1) - Place of residence

“The place of residence is generally the place where a citizen permanently or temporarily resides.”

5. Law on the Elections, 18 October 2001 (as amended on 17 January 2002)

Section 8 - The Right to be Elected

“1. A citizen of Ukraine who has attained the age of twenty-one on the day of the elections, has the right to vote, and has resided on the territory of Ukraine for the past five years, may be elected a deputy.

2. Residence in Ukraine under this Law means residence in the territory which includes: territory within the state border of Ukraine, seagoing vessels under the State Flag of Ukraine and also the stay of citizens of Ukraine pursuant to the procedure established by legislation and consular institutions of Ukraine, international organisations and their bodies, at polar station of Ukraine as well as the stay of citizens of Ukraine beyond its borders in accordance with the international treaties of Ukraine that are in force.”

Section 41 - The conditions for registration of a deputy, included into the electoral list of the Party

“... 8) autobiographies of the persons, included into the electorate list of the party (block), not more than two thousand characters, that has to be include: the surname, name, patronymic name, date, month, year and place of birth, citizenship, information about education, labour activity, position (occupation), place of work, public employment (including the dates on elected positions), party membership, family status, address of residence with the indication of time of residence in Ukraine , information on absence or presence of convictions; ...”

Section 47- Refusal to register of the candidate (candidates) deputies

“The Electorate Commission refuses registration of candidate deputy in the event:

... 8) finding by the appropriate electorate commission of the substantial untruthfulness of the information about the candidate, submitted in accordance with the law;...”             

6. Code of Civil Procedure of Ukraine (as amended on 7 March 2002)

Article 243-16 - Jurisdiction over complaints, appeals

“Complaints against decisions, actions or omissions by the Central Electoral Committee shall be considered by the Supreme Court of Ukraine.”

Article 243-17 - Lodging a complaint, appeal

“A complaint against a decision, act or omission by the Central Electoral Committee, excluding those determined in Chapters “30-Б” and “30-В” of this Code shall be lodged with the Supreme Court of Ukraine within 7 days from the date of adoption of the decision by the Central Electoral Committee, or performance of the acts or omission. The participants in the electoral process are eligible to lodge their claims with the Supreme Court of Ukraine in the event that their rights or legal interests have been violated by the decision, act or omission of the Central Electoral Committee.”

Article 243-20 - The decision of the [Supreme] Court

“The court delivers a judgment after considering the complaint. In the event that the complaint is substantiated the court declares the act or omission of the Central Electoral Committee unlawful, quashes the decision, allows the claim of the applicant and remedies the violation. In the event that the impugned decision or action of the Central Electoral Committee is in conformity with the law, the court shall adopt a decision rejecting the complaint. The decision of the court is final and is not subject to appeal. ...”

COMPLAINTS

The applicant complains that there has been a violation of Article 3 of Protocol No. 1 to the Convention, separately and in conjunction with Article 14 of the Convention. He maintains that the refusal to register him as a candidate for membership of the national Parliament had no objective or reasonable justification, did not pursue a legitimate aim and that the interference with his rights was not proportionate. The applicant also alleges that a third person in a similar situation was registered as a candidate for election even though the latter effectively resided outside Ukraine.

He further complains, under Article 2 § 2 of Protocol No. 4 to the Convention, that his right “to leave the country” was unlawfully interfered with.

The applicant also complains, under Article 6 § 1 of the Convention, that he was denied a right to a fair hearing in respect of his complaint about the refusal to register him to stand for election.

THE LAW

1. The applicant complains of a violation of Article 3 of Protocol No. 1 to the Convention, separately and in conjunction with Article 14 of the Convention, which provide respectively 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.”

The applicant refers in particular to the fact that he was arbitrarily denied registration on the list of candidates for election to the Parliament. He maintains, firstly, that he had provided truthful information about his place of residence ( propyska ), and, secondly, that he resided in Ukraine in “accordance with the international treaties”, as envisaged by the Law “on Elections”, since he had been accorded refugee status by the US Government.

The Government challenged this view. They stated, in particular, that the applicant had not initially provided the address of his place of residence and did not try to prove that he had been staying abroad in accordance with the international treaties of Ukraine since he did not want to reveal his actual address to the law enforcement authorities of Ukraine. The Government consider that such behaviour was incompatible with the applicant’s wish to acquire the status of a member of Parliament. Furthermore, the Government maintained that the applicant was not staying abroad in accordance with the international treaties of Ukraine, within the meaning of the Elections law. They pointed out that the Geneva Convention 1951 had been signed by Ukraine, but did not enter into force in respect of Ukraine until 8 September 2002, i.e. on the nineteenth day after the deposit of the instrument of ratification by the Government.

The applicant further maintained that the refusal of the Central Electoral Committee, as upheld by the Supreme Court, to register him as a candidate was arbitrary. He contended that he had submitted truthful data about his place of residence and that the Law “on Elections” did not refer to any requirement to show “actual place of residence” or “actual address”, the basis used to reject his registration. He further maintained that he could not stay in Ukraine due to his persecution by the authorities on political grounds.

The Government argued that the applicant could not be regarded as a refugee since he was not persecuted in Ukraine and faced no threat of persecution. They conceded however that the applicant might be detained by the law enforcement bodies of Ukraine if he were to cross the Ukrainian border. They referred in particular to the pending criminal investigation into the disclosure of the tape recordings allegedly made by the applicant in the office of the President of Ukraine.

The Government expressed a general opinion that the grounds for refusing to register the applicant were based on the submission of untrue information and not on the place of residence of the applicant as such. The applicant disagreed, stating that the Central Electoral Committee and the Supreme Court restricted his right to stand for election arbitrarily and thus acted contrary to Article 24 of the Constitution of Ukraine which prohibited discrimination on the ground of residence.

The applicant also complains about the infringement of Article 1 of Protocol No. 3 in conjunction with Article 14 of the Convention on the ground that the refusal to register him as a candidate for elections discriminated against him. The applicant alleges that in a similar situation a private person (Mr Yukhym Zviagilsky) was registered as a candidate for elections in 1998, even though he resided outside Ukraine.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

2.  The applicant next complains that his right “to leave the country” was unlawfully interfered with, contrary to Article 2 § 2 of Protocol No. 4 to the Convention, which provides as follows:

“Everyone shall be free to leave any country, including his own.”

The Court notes that the applicant left Ukraine on 26 November 2000. Having regard to the date of introduction of the application, this part of the application must be rejected for non-compliance with the six-months rule and is therefore inadmissible in application of Article 35 §§ 1 and 4 of the Convention.

3. Finally, the applicant complains that he was denied the right to a fair and impartial hearing in respect of his complaint about the refusal to register him to stand for election. He invokes Article 6 § 1 of the Convention, which insofar as relevant provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The Government proposed to reject this part of the application, stating that it was incompatible ratione materiae with the provisions of the Convention.

The Court recalls its established case-law that procedures concerning the determination of political rights, in particular disputes over the right to stand for election, do not determine “civil rights and obligations” and thus fall outside the scope of the protection of Article 6 § 1 of the Convention (the Pierre-Bloch v. France judgment of 21 October 1997, Reports of Judgments and Decisions, 1997-VI, §§ 49-52).

It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3, and must be rejected under Article 35 § 4.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints concerning the alleged infringement of his right to stand for elections as enshrined in Article 3 of Protocol No. 1 to the Convention;

Declares the remainder of the application inadmissible.

S. Dollé J.-P. Costa Registrar President