Information Note on the Court’s case-law 84

March 2006

Ždanoka v. Latvia [GC] - 58278/00

Judgment 16.3.2006 [GC]

Article 3 of Protocol No. 1

Stand for election

Former leading member of Soviet-era Communist party disqualified as a parliamentary candidate: no violation

Facts : The applicant, born in 1950 and currently a member of the European Parliament, joined the Communist Party of Latvia (CPL) – the Latvian branc h of the now-defunct Communist Party of the Soviet Union – in 1971. She remained a member of the CPL even after the emergence in April 1990 of a breakaway faction favouring Latvian independence and a multi-party political system. The Latvian Parliament, of which at that time the applicant was a member, voted in May 1990 to seek Latvia’s independence from the USSR; the parliamentary group to which the applicant belonged did not take part in the vote.

On 13 January 1991 an unsuccessful coup d’état took place; the CPL was involved. On 3 March 1991 a plebiscite, the nature and importance of which are disputed between the parties, resulted in a vote in favour of independence. Latvia declared full independence on 21 August 1991; the CPL was declared unlawful two d ays later and officially dissolved the following month. The applicant, however, continued to sit in parliament until elections were held in June 1993.

In March 1997 the applicant was elected to the Riga City Council for the “Movement for Social Justice and Equal Rights in Latvia”. In July1998 she presented herself as a candidate for election to Parliament, but withdrew after the Central Electoral Commission decided that her candidacy did not meet the legal requirements.

In January 1999 the Office of the Pro secutor General applied to the Riga Regional Court for a finding that the applicant had participated in the CPL after the 1991 coup attempt. On 15 February 1999, following adversarial proceedings, the Riga Regional Court so found. An appeal brought by the applicant against this judgment was dismissed by the Civil Division of the Supreme Court by a judgment of 15 December 1999. From that date onwards, the applicant was disqualified from elective office; she lost her seat as a member of Riga City Council. She applied unsuccessfully to the Senate of the Supreme Court for the Civil Division’s judgment to be quashed.

The applicant made an attempt to stand as an independent candidate in the 2002 parliamentary elections but was refused registration.

Latvia became a member State of the European Union on 1 May 2004. The applicant was allowed to stand as a candidate in the elections to the European Parliament, which were held on 12 June 2004, and was elected.

Law : Loss of victim status – In so far as the Government ref er to the fact that the applicant was entitled to take part in the European Parliament elections, the Court recognises that Article 3 of Protocol No. 1 is applicable in this respect. However, the fact that the applicant is entitled to stand for election to the European Parliament cannot suffice to release the State from its obligation to respect the rights guaranteed in Article 3 of Protocol No. 1 with regard to the national Parliament: preliminary objection dismissed .

Merits : Article 3 of Protocol No. 1 – The applicable principles are the following:

(a) Article 3 of Protocol No. 1 is akin to other Convention provisions protecting various forms of civic and political rights such as, for example, Article 10 or Article 11. There is undoubtedly a link between all of these provisions, namely the need to guarantee respect for pluralism of opinion in a democratic society through the exercise of civic and political freedoms. In addition, the Convention and the Protocols must be seen a s a whole. However, where an interference with Article 3 of Protocol No. 1 is at issue the Court should not automatically adhere to the same criteria as those applied with regard to the interference permitted by the second paragraphs of Articles 8 to 11 of the Convention, and it should not necessarily base its conclusions under Article 3 of Protocol No. 1 on the principles derived from the application of Articles 8 to 11 of the Convention. Because of the relevance of Article 3 of Protocol No. 1 to the insti tutional order of the State, this provision is cast in very different terms from Articles 8 to 11. Article 3 of Protocol No. 1 is phrased in collective and general terms, although it has been interpreted by the Court as also implying specific individual ri ghts. The standards to be applied for establishing compliance with Article 3 of Protocol No. 1 must therefore be considered to be less stringent than those applied under Articles 8 to 11 of the Convention.

(b) The concept of “implied limitations” under Article 3 of Protocol No. 1 is of major importance for the determination of the relevance of the aims pursued by the restrictions on the rights guaranteed by this provision. Given that Article 3 is not limited by a specific list of “legitimate aims” such as those enumerated in Articles 8 to 11, the Contracting States are therefore free to rely on an aim not contained in that list to justify a restriction, provided that the compatibility of that aim with the pri nciple of the rule of law and the general objectives of the Convention is proved in the particular circumstances of a case.

(c) The “implied limitations” concept under Article 3 of Protocol No. 1 also means that the Court does not apply the traditional tes ts of “necessity” or “pressing social need” which are used in the context of Articles 8 to 11. In examining compliance with Article 3 of Protocol No. 1, the Court has focused mainly on two criteria: whether there has been arbitrariness or a lack of proport ionality, and whether the restriction has interfered with the free expression of the opinion of the people. In this connection, the wide margin of appreciation enjoyed by the Contracting States has always been underlined. In addition, the Court has stresse d the need to assess any electoral legislation in the light of the political evolution of the country concerned, with the result that features unacceptable in the context of one system may be justified in the context of another.

(d) The need for individual isation of a legislative measure alleged by an individual to be in breach of the Convention, and the degree of that individualisation where it is required by the Convention, depend on the circumstances of each particular case, namely the nature, type, dura tion and consequences of the impugned statutory restriction. For a restrictive measure to comply with Article 3 of Protocol No. 1, a lesser degree of individualisation may be sufficient, in contrast to situations concerning an alleged breach of Articles 8 to 11 of the Convention.

(e) As regards the right to stand as a candidate for election, i.e. the so-called “passive” aspect of the rights guaranteed by Article 3 of Protocol No. 1, the Court has been even more cautious in its assessment of restrictions in that context than when it has been called upon to examine restrictions on the right to vote, i.e. the so-called “active” element of the rights under Article 3 of Protocol No. 1. Thus, stricter requirements may be imposed on eligibility to stand for electio n to Parliament than is the case for eligibility to vote. In fact, while the test relating to the “active” aspect of Article 3 of Protocol No. 1 has usually included a wider assessment of the proportionality of the statutory provisions disqualifying a pers on or a certain group of persons from the right to vote, the Court’s test in relation to the “passive” aspect of the above provision has been limited largely to a check on the absence of arbitrariness in the domestic procedures leading to disqualification of an individual from standing as a candidate.

Applying these principles, the Court points out in the first place that the criterion of political loyalty which may be applied to public servants is of little, if any, relevance to the circumstances of the in stant case, which deals with the very different matter of the eligibility of individuals to stand for Parliament. The criterion of “political neutrality” cannot be applied to members of Parliament in the same way as it pertains to other State officials, gi ven that the former cannot be “politically neutral” by definition. It further finds that the impugned restriction pursued aims compatible with the principle of the rule of law and the general objectives of the Convention, namely the protection of the State ’s independence, democratic order and national security.

As regards proportionality, the applicant submits that the CPL’s political programme shows that the CPL has chosen the path to democratisation since 1990; however, the intentions of a party must be j udged, above all, by the actions of its leaders and members rather than by its official slogans. The applicant has never distanced herself from the attempted coup d’état of 13 January 1991.

Criminal proceedings were never brought against the applicant. If this had been the case, she would have benefited from safeguards such as the presumption of innocence and the resolution of doubts in her favour in respect of such proceedings. The disqualification imposed on her constitutes a special public-law measure re gulating access to the political process at the highest level. In the context of such a procedure, doubts could be interpreted against a person wishing to be a candidate, the burden of proof could be shifted against him or her, and appearances could be con sidered of importance. The Latvian authorities were entitled, within their margin of appreciation, to presume that a person in the applicant’s position had held opinions incompatible with the need to ensure the integrity of the democratic process, and to d eclare that person ineligible to stand for election. The applicant has not disproved the validity of those appearances before the domestic courts; nor has she done so in the context of the instant proceedings. The Convention does not exclude a situation wh ere the scope and conditions of a restrictive measure may be determined in detail by the legislature, leaving the courts of ordinary jurisdiction only with the task of verifying whether a particular individual belongs to the category or group covered by th e statutory measure at issue. This is particularly so in matters relating to Article 3 of Protocol No. 1. The Court’s task is essentially to evaluate whether the measure defined by Parliament is proportionate from the standpoint of this provision, and not to find fault with the measure simply on the ground that the domestic courts were not empowered to “fully individualise” the application of the measure in the light of an individual’s specific situation and circumstances.

Individuals in the applicant’s pos ition had effective access to a court to have determined the issue of whether they belonged to the category defined by the legislature; the procedures could not be considered arbitrary. The legislation was clear and precise as to the definition of the cate gory of persons affected by it, and it was also sufficiently flexible to allow the domestic courts to examine whether or not a particular person belonged to that category.

It is not of central importance that the applicant was never prosecuted and was not stripped of her seat in parliament after the events of January 1991. The question whether the CPL could be regarded as legal or illegal during the period after 13 January 1991 is irrelevant, given that the subversive nature of its activities was obvious at least from that date and that the applicant plainly chose to support its anti‑democratic stance.

Finally, it does not appear crucial in this case that the impugned measure was introduced only in 1995; it is not surprising that a newly-established democrat ic legislature should need time for reflection in a period of political turmoil to enable it to consider what measures are required to sustain its achievements. This is all the more so in the case of Latvia, where troops of a foreign country, Russia, remai ned until 1994.

The Latvian authorities’ view that the applicant’s exclusion from standing as a candidate to the national Parliament is warranted even today can be considered to be in line with the requirements of Article 3 of Protocol No. 1. The impugned statutory restriction as applied to the applicant has not been found to be arbitrary or disproportionate. The applicant’s current or recent conduct is not a material consideration, given that the statutory restriction in question relates only to her politi cal stance during the crucial period of Latvia’s struggle for “democracy through independence” in 1991. While such a measure may scarcely be considered acceptable in the context of one political system, for example in a country which has an established fra mework of democratic institutions going back many decades or centuries, it may nonetheless be considered acceptable in Latvia in view of the historico-political context which led to its adoption and given the threat to the new democratic order posed by the resurgence of ideas which, if allowed to gain ground, might appear capable of restoring the former regime.

The Court also attaches weight to the fact that the Latvian Parliament has periodically reviewed the legislation in question, most recently in 2004. Even more importantly, the Constitutional Court has carefully examined, in a decision of 30 August 2000, the historical and political circumstances which gave rise to the enactment of the law in Latvia, finding the restriction to be neither arbitrary nor disproportionate at that point in time, i.e. nine years after the events in question, but requiring it to be kept under review by the Latvian Parliament with a view to bringing it to an early end.

Conclusio n: no violation of Article 3 of Protocol No. 1 (th irteen votes to four).

Articles 10 and 11: No separate issues.

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

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