Information Note on the Court’s case-law 65

June 2004

Ždanoka v. Latvia - 58278/00

Judgment 17.6.2004 [Section I]

Article 3 of Protocol No. 1

Stand for election

Ineligibility to stand for Parliament on account of involvement in a party which previously backed a coup d’Etat : violation

Article 11

Article 11-1

Freedom of association

Ineligibility to stand for Parliament and termination of mandate as local councillor : violation

[This case was referred to the Grand Chamber on 10 November 2004]

Facts : During the Soviet period, the applicant was a member of the Communist Party of Latvia (CPL), a regional branch of the Communist Party of the Soviet Union. The restoration of the Republic of Latvia’s independence was proclaimed in May 1990. A period of transition was introduced with a view to gradual restoration of genuine State sovereignty. This period ended on 21 August 1991 with the proclamation of the country’s absolute and immediate independence. On account of its participation in two attempted coups d’état during the transition period, on 13 January and in August 1991, the CPL was declared unconstitutional and dissolved in September 1991. In 1994 and 1995 the Latvian Pa rliament adopted two laws on municipal and parliamentary elections respectively, which stated that persons who had actively participated in the CPL’s activities after 13 January 1991, the date of the first coup d’état supported by that party, could not sta nd for election. Such participation was to be established by the courts on an application by the Prosecutor-General. In 1997 the applicant was able to stand in local elections and was elected to the Riga City Council. The applicant was obliged to withdraw her candidacy for the 1998 parliamentary elections. In 1999, on an application by the Prosecutor-General’s office, the national courts held that the applicant had personally been involved in the CPL’s activities after the critical date of 13 January 1991. The applicant was automatically disqualified from standing for election and lost her seat on the Riga City Council. An appeal on points of law by the applicant was declared inadmissible in February 2000. The applicant’s name was removed from the list of ca ndidates submitted for the 2002 parliamentary elections.

Law : Preliminary objection – the Government argued that the matter had been resolved within the meaning of Article 37 § 1 ( b) since the applicant could legally stand in the European elections. However, the respondent State had neither acknowledged nor afforded redress for the measures taken against the applicant in the past, namely her disqualification from standing in the 199 8 and 2002 parliamentary elections and the withdrawal of her seat on the City Council in 1999. The applicant was therefore still a “victim” and the matter had not been resolved: objection dismissed.

Article 3 of Protocol No. 1 – The ruling that the applica nt was ineligible to stand had pursued legitimate aims: protection of the State’s independence, the democratic regime and national security. It had been a permanent restriction on her rights in that it was of indefinite duration and would continue until th e relevant legislation was repealed. The applicant had never been convicted of a criminal offence on account of her activities. As there had been no ban prohibiting the CPL’s activities before August 1991, the applicant could not be accused of active parti cipation in an illegal association. The Court considered that, contrary to what was argued by the Government, the applicant’s personal conduct in 1991 had not reached such a level of seriousness as to justify her continuing ineligibility in the present. Th e ineligibility procedure introduced by the law was very strongly focused on the past and did not allow for adequate assessment of the current danger posed by the persons concerned. The Court examined the applicant’s present behaviour and considered that, among the criticisms levelled at the applicant by the respondent Government, none of her ideas or political activities appeared to be incompatible with the fundamental values of the Convention. In addition, the activities for which the respondent Governmen t criticised the applicant were not prohibited by Latvian law and the applicant had never been placed under investigation or convicted of an offence. In short, the Government had supplied no information about any specific act by the applicant after 1991 th at was capable of endangering the Latvian State, its national security or its democratic regime. Consequently, the applicant’s permanent disqualification from standing for election to the Latvian Parliament, imposed on account of her activities within the CPL after 13 January 1991, had not been proportionate to the legitimate aims pursued and had curtailed her electoral rights to such an extent as to impair their very essence; in addition, its necessity in a democratic state had not been established.

Concl usion : violation (five votes to two).

Article 11 – The applicant’s disqualification from standing for election to parliament and to municipal councils had amounted to an interference with her right to freedom of association. This interference had been prescribed by law and had pursued a legiti mate aim, namely protection of national security. As to the measure’s proportionality, the party of which the applicant had been a militant member could not have been regarded as “illegal” between 13 January 1991 and August 1991 and the 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 applicant’s ineligibility was based on her past political activity and not on her present conduct, and her c urrent public activities did not indicate any failure to respect the fundamental values of the Convention. Consequently, the applicant’s ineligibility to stand for election to parliament or to municipal councils on account of her active participation in th e CPL, which was still in force more than ten years after the events for which that party had been held responsible, seemed disproportionate to the aim pursued and accordingly unnecessary in a democratic society.

The Court pointed out that the second sent ence of Article 11 § 2 of the Convention, authorising “lawful restrictions” with regard to “members of the armed forces, of the police or of the administration of the State” did not apply to members of parliament or to members of elected assemblies of loca l authorities.

Conclusion : violation (five votes to two).

The Court held that it was unnecessary to examine separately the complaint under Article 10.

Article 41 – The Court made an award in respect of the pecuniary damage suffered by the applicant as a r esult of the loss of her seat on the City Council, and an award in respect of the non-pecuniary damage resulting from her disqualification from standing as a candidate in the parliamentary elections and the loss of her City Council seat. It also made an aw ard in respect of cost and expenses.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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