Communicated on 15 February 2021 Published on 8 March 2021

FIFTH SECTION

Application no. 42221/18 Tatjana ŽDANOKA against Latvia lodged on 1 March 2019

STATEMENT OF FACTS

1 . The applicant, Ms Tatjana Ždanoka , is a Latvian national, who was born in 1950 and lives in Riga. She is represented before the Court by Mr W.S.B. Bowring and Mr A. Kuzmins , lawyers practising in London and Riga.

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

3 . In 1971 the applicant joined the Communist Party of Latvia (“the CPL”), which was the regional branch of the Communist Party of the Soviet Union (“the CPSU”). In March 1990 the applicant was elected to the Supreme Council of the Latvian Soviet Socialist Republic (“SSR”). In April 1990 she became a member of the Central Committee for Supervision and Audit of the CPL. The applicant maintained this position until the dissolution of the CPL in September 1991.

4 . In 1998 and 2002 the applicant was prevented from standing in parliamentary elections on the basis of section 5(6) of the Parliamentary Elections Law, which prevents persons who after 13 January 1991 had “actively participated” in the CPSU (the CPL) from being elected to the national parliament. The applicant ’ s “active participation” in the CPL following the aforementioned date was established by a court. On 30 August 2000 the Constitutional Court found this statutory restriction constitutional. On 16 March 2006 the Grand Chamber concluded that the applicant ’ s rights guaranteed under Article 3 of Protocol No. 1 had not been violated however, it added that this statutory restriction had to be kept under constant review with a view to bringing it to an early end (see Ždanoka v. Latvia [GC], no. 58278/00, § 135, ECHR 2006 ‑ IV).

5 . In 2006 the Constitutional Court reaffirmed the constitutionality of the statutory restriction, while also finding that a similar restriction with respect to the former KGB agents was disproportionate in relation to the person who had brought the particular constitutional complaint. Legislative proposals to repeal the statutory restriction were periodically put before Parliament by the opposition but were persistently dismissed, for the last time in 2010.

6 . In 2004 the applicant was elected to the European Parliament. She has been re-elected in all the subsequent elections and holds the position of a member of the European Parliament to date.

7 . In 2017 the applicant inquired with the Central Election Commission ( Centrālā vēlēšanu komisija ) whether she could now stand for parliamentary elections. After having received a response that the statutory restriction still prevented her from standing for elections, she challenged this restriction before the Constitutional Court.

8 . On 29 June 2018 the Constitutional Court delivered its judgment finding the statutory restriction constitutional. Having reviewed its scope, the Constitutional Court held that the contested provision prevented persons who after 13 January 1991 had actively participated in the CPSU (the CPL) and who “had endangered and still endanger the independence of Latvia and the principles of a democratic State governed by rule of law” from standing in parliamentary elections. Denying the independence of Latvia, fighting against its democratic order, and supporting international crimes were mentioned as actions that could, amongst others, be regarded as endangering Latvia ’ s independence and democratic order. Referring in particular to Russia ’ s aggression in Georgia and in Ukraine, the Constitutional Court found that Latvia ’ s geopolitical context still justified maintaining the restriction. The Constitutional Court also noted that the restriction was sufficiently individualised, as the Central Election Commission would now need to assess whether the particular person still endangered the independence and democratic order of Latvia, and its decision could be challenged before the administrative courts.

9 . The applicant then submitted her candidacy for the 2018 parliamentary election. On 21 August 2018 the Central Election Commission removed the applicant from the list of candidates. On the basis of information obtained from the Latvian intelligence services – the Constitution Protection Bureau ( Satversmes aizsardzības birojs ) and the Security Police ( Drošības policija ) – the Central Election Commission concluded that the applicant was still endangering the independence of Latvia and the principles of a democratic State governed by rule of law. It referred, in particular, to the public support the applicant had expressed for Russia ’ s annexation of Crimea and her participation as an observer in the referendum organised there, as well as her activities that formed part of Russia ’ s compatriot policy, which was aimed at exerting Russia ’ s political and economic influence on its neighbouring States. The responses of the intelligence services were not issued to the applicant.

10 . The applicant challenged this decision before the Administrative Regional Court ( Administratīvā apgabaltiesa ). During the hearing the written responses, which the Constitution Protection Bureau and the Security Police had provided to the Central Election Commission, were issued to the applicant; however, the applicant submits that some further intelligence information was provided to the administrative court and she has not been made aware of the contents. On 3 September 2018 the Administrative Regional Court upheld the applicant ’ s removal from the list of candidates.

11 . The relevant part of section 5 of the Parliamentary Elections Law provides:

“The following may not stand as candidates in elections or be elected to Parliament:

...

(6) persons who after 13 January 1991 have actively participated [ darbojušās ] in the CPSU (CPL), the Internationalist Front of Workers of the Latvian SSR, the United Council of Labour Collectives, the Organisation of War and Labour Veterans or the Latvian Public Rescue Committee, or in their regional committees; ...”

COMPLAINTS

12 . The applicant complains about her disqualification from standing for election to the national parliament. She relies on Article 3 of Protocol No. 1, as well as on Articles 10, 11 and 17 of the Convention.

QUESTIONS TO THE PARTIES

1. Has there been a breach of the applicant ’ s right under Article 3 of Protocol No. 1 to stand as a candidate in free elections which ensure the free expression of the opinion of the people in the choice of the legislature, particularly, in view of the Court ’ s findings in the case of Ždanoka v. Latvia ([GC], no. 58278/00, § 135, ECHR 2006 ‑ IV)?

2. Does the statutory restriction to stand for parliamentary elections that was applied to the applicant meet the requirement of lawfulness? In particular, in view of its interpretation by the Constitutional Court in the judgment of 29 June 2018, does the statutory restriction meet the requirement of foreseeability?

3. What is the legitimate aim of the statutory restriction, as currently formulated by the Constitutional Court? Does it differ from the legitimate aim the restriction was regarded to have prior to the Constitutional Court ’ s judgment of 29 June 2018?

4. Was the applicant ’ s disqualification from the parliamentary elections proportionate to a legitimate aim? Did the applicant ’ s participation in the Communist Party of Latvia in 1991 retain relevance for her electoral rights in 2018? Were the applicant ’ s activities, which were the basis of the conclusion that she continued to endanger the independence and democratic order of Latvia, sufficiently clearly set out by the domestic authorities and did they provide sufficient justification for the disqualification?

5. Is the statutory restriction currently accompanied by sufficient safeguards to prevent arbitrariness? Was the limited access to the information, on which the disqualification decision was based, compatible with the requirement for sufficient procedural safeguards?