Information Note on the Court’s case-law 207

May 2017

Davydov and Others v. Russia - 75947/11

Judgment 30.5.2017 [Section III]

Article 3 of Protocol No. 1

Free expression of the opinion of the people

Failure by domestic authorities to adequately investigate complaints of serious electoral irregularities: violation

Facts – The case concerned city and federal level elections on 4 December 2011 to the Legislative Assembly of St Petersburg and the State Duma of the Russian Federation (the lower chamber of the Russian parliament). The applicants participated in the elections in different capacities: all were registered voters, some stood as candidates for the Legislative Assembly and others were members of electoral commissions or observers. In the Convention proceedings, the applicants complained of breaches of their right to free elections during the elections and of a failure by the domestic authorities to ensure an effective review of their allegations. They alleged that the electoral commissions had falsified the results of the elections by ordering recounts in which the ruling Yedinaya Rossiya party and its candidates were systematically assigned more votes, while the opposition parties and candidates were stripped of votes. Some of the applicants had complained to the St Petersburg City Electoral Commission, while others had lodged criminal complaints and sued the respective electoral commissions in the domestic courts. However, their claims had been rejected.

Law – Article 3 of Protocol No. 1

(a) Applicability – It was clear that the elections to the State Duma qualified as the elections of a “legislature” within the meaning of Article 3 of Protocol No. 1.

The St Petersburg Legislative Assembly was a democratic government body of one of the subjects of the Russian Federation, vested with a wide range of powers in the constituent territory, based on the constitutional separation of powers between the regions and the Federation. As such, it too fell under the definition of “legislature” within the meaning of Article 3 of Protocol No. 1.

(b) Merits – The detailed recommendations made in the Explanatory Report to the Venice Commission’s Code of Good Practice in Electoral Matters * reflected the importance of technical details which could be crucial in ensuring an open and transparent procedure of ascertaining the voters’ will through the counting of ballot papers and the accurate recording of election results throughout the system, from the local polling station to the Central Electoral Commission. They confirmed that the post-voting stages covering the counting, recording and transfer of the election results form an indispensable part of the election process. As such, they should be achieved with clear procedural guarantees, be open and transparent, and allow observation by all members across the political spectrum, including the opposition.

However, Article 3 of Protocol No. 1 was not conceived as a code on electoral matters designed to regulate all aspects of the electoral process. Accordingly, the level of the Court’s scrutiny would depend on which aspect of the right to free elections was in issue. Tighter scrutiny should be reserved for any departures from the principle of universal suffrage while the States could be afforded a broader margin of appreciation where measures prevented candidates from standing for elections. Still less stringent scrutiny would apply to the more technical stage of vote counting and tabulation: a mere mistake or irregularity at this stage would not, per se , signify unfairness of the elections if the general principles of equality, transparency, impartiality and independence of the electoral administration were complied with. The concept of free elections would be put at risk only if (i) there was evidence of procedural breaches capable of thwarting the free expression of the opinion of the people, for instance through gross distortion of the voters’ intent, and (ii) such complaints had received no effective examination at the domestic level (although the Court confirmed in this connection that an individual voter’s right to appeal could be subject to reasonable limitations such as a requirement for a quorum of voters).

(i) Seriousness of the procedural breaches – The following elements of the applicants’ complaints of unfairness in the elections were undisputed: (i) the results in almost half the initially challenged precincts in the elections to the St Petersburg Legislative Assembly (and three of the four challenged in the State Duma elections) were declared void by the territorial electoral commissions (TECs) and recounts were ordered; (ii) the TECs’ decisions were summarily and similarly worded, making it difficult to assess whether they were justified; (iii) the composition of the TECs which decided to hold recounts excluded the members from both opposition parties in a majority of cases; (iv) some of the members of the precinct electoral commissions (PECs) concerned were not notified of the decisions taken and so did not take part in the recounting; (v) the recounts were carried out in such a short time as to raise questions over their ability to comply with the procedural requirements of the national legislation; (vi) the members of the opposition parties were systematically absent from the recount process both at the territorial and precinct levels; and (vii) as a result of the recounts the Government party had overwhelmingly gained and the opposition parties had lost.

In addition, the applicants’ allegations were indirectly supported by the Organization for Security and Co-operation in Europe (OSCE), an independent and credible international observer mission, which identified the counting and tabulation of the results as the most problematic stages of the elections in question.

The applicants had thus presented, to both the domestic authorities and the Court, an arguable claim that the fairness of the elections had been seriously compromised by the recounting procedure. Such an irregularity was capable of leading to gross distortion of the voters’ intent in each of the precincts concerned. It was therefore necessary to determine whether the applicants had obtained an effective examination of these complaints at the domestic level.

(ii) Effectiveness of the examination of the applicants’ complaints at the domestic level – Between them, the applicants had tested all the remedies available under the domestic legislation and seen by the Government as being effective and accessible. However, the City Electoral Commission had not considered the applicants’ complaints in substance, but had forwarded them to the prosecutor’s offices. For their part, the prosecutor’s office and the investigating committee had seen no reason to take any procedural steps aimed at verifying the allegations of fraud in the precincts concerned, and had not opened a criminal investigation, being of the view that the matter fell into the domain of the competent courts. In turn, though competent under both federal and regional legislation to perform independent and effective evaluations of allegations of breaches of the right to fair and free elections, the courts had generally refrained from going into the substance of the allegations, limiting their analysis to trivial questions of formalities and ignoring evidence pointing to serious and widespread breaches of procedure and transparency requirements. In essence, they had endorsed the electoral commissions’ decisions, without engaging in any real examination of the reasons for the challenges.

There had accordingly been a violation of Article 3 of Protocol No. 1 in so far as the applicants had been denied effective examination of their complaints about serious irregularities in the procedure in which the votes had been recounted.

Conclusion : violation (unanimously).

Article 41: EUR 7,500 to each of the applicants who made a claim in respect of non-pecuniary damage.

(See also Namat Aliyev v. Azerbaijan , 18705/06, 8 April 2010, Information Note 129 ; Kerimova v. Azerbaijan , 20799/06, 30 September 2010, Information Note 133 ; and Riza and Others v. Bulgaria , 48555/10 and 48377/10, 13 October 2015, Information Note 189 )

* Code of Good Practice in Electoral Matters (Guidelines and Explanatory Report) (CDL-AD (2002) 23 rev), adopted by the European Commission for Democracy through Law (“the Venice Commission”)

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

Click here for the Case-Law Information Notes