Communicated on 30 November 2020 Published on 21 December 2020

FIFTH SECTION

Application no. 19854/13 Arkadiy Oleksiyovych KORNATSKYY against Ukraine lodged on 4 March 2013

STATEMENT OF FACTS

The applicant, Mr Arkadiy Oleksiyovych Kornatskyy , is a Ukrainian national, who was born in 1953 and lives in Kyiv.

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

During the parliamentary elections of 28 October 2012, the applicant stood as a candidate from the “ Batkivshchyna ” opposition party in single-seat constituency no. 132 in Mykolayiv Region.

According to the results established by the constituency election commission (“the ConEC”) on the basis of the original results sheets (referred to as “protocols”) from the precinct election commissions (“the PECs”), the applicant won the elections having received 29,678 votes. The candidate nominated by the ruling party (“the Party of Regions”), T., arrived the second, with 25,511 votes.

The ConEC transmitted those results electronically to the Central Election Commission (“the CEC”) immediately after having processed all the PECs ’ protocols. The CEC published them on its website for information purposes early in the morning on 30 October 2012.

However, later that day the CEC unexpectedly modified the results on its website, without any decision having been taken to that effect by the ConEC: while the number of votes for the applicant remained unchanged, those for T. increased to 29,910 at the expense of several candidates with a minor score (including P., a self-nominated candidate, whose initial result of 1.5% had dropped to 1.4%). As a result, T. was indicated as the winner, with 232 votes ahead of the applicant.

In the results tabulation protocol drawn up shortly thereafter, the ConEC relied on the modified results published by the CEC instead of those in the original PECs ’ protocols. Four of the ConEC members (out of eighteen) wrote a dissenting opinion in that regard.

On 1 November 2012 the Mykolayiv Circuit Administrative Court (“the Mykolayiv Court”) directed the ConEC to provide it with the originals or duly certified duplicates of all the PECs ’ protocols. It intended to examine them as evidence in the proceedings brought by P. against the ConEC. No details regarding his claim are available in the case file before the Court.

On the same date the ConEC decided that it would be appropriate to provide duplicates rather than originals to the Mykolayiv Court. Accordingly, a duplicate of the “first original” of each PEC ’ s protocol (see “Relevant domestic law” below for the term ’ s explanation) was prepared to that effect. The accuracy of duplicates was certified by the chairman ’ s signature and the ConEC stamp.

However, during the night of 1 to 2 November 2012, the State Bailiffs Service, assisted by t he heavily numbered special police unit, withheld the first and the second originals of all the PECs ’ protocols (see “Relevant domestic law” below) from the ConEC with a view to delivering them to the Mykolayiv Court.

According to the applicant, the duration of the transportation was inexplicably long (four hours for 170 km).

As reported by the Mykolayiv Court ’ s administrative office, the protocols arrived there in a damaged packaging and “were in disorder”.

The applicant subsequently discovered (through a representative of the “ Batkivshchyna ” party involved in the proceedings as a third party) that, after the delivery of all the PECs ’ protocols to the court, the blanks ’ serial numbers in thirty-four of them no longer corresponded to those in the “first originals” as recorded, in particular, by the ConEC chairman in the duplicates produced on 1 November 2012. The voting results were also modified in those protocols with a view to inflating T. ’ s score.

On 5 November 2012 the CEC found it impossible to establish the election results in single-seat constituency no. 132, along with four other constituencies. Its reasoning was limited to a generally-worded reference to “numerous statements from participants of the electoral process about the impossibility to accurately establish the voting results” in the constituencies in question. The CEC applied to the Parliament for putting in place the legal frameworks for repeat elections.

The applicant brought an administrative claim against the CEC submitting that he should have been declared the rightful winner of the election. He complained, notably, that the ConEC ’ s protocol had not accurately reflected the voting results, that thirty-four PECs ’ protocols had subsequently been falsified, and that the CEC had had no grounds for invalidating the election in his constituency in spite of having conclusive evidence of his victory. According to him, that was proved by a significant number of the original PECs ’ protocols in the possession of the PECs ’ members, duly certified duplicates of the PECs ’ protocols in the official observers ’ possession, as well as the additional duplicate of “the first original” of all the PECs ’ protocols certified by the ConEC chairman on 1 November 2012.

On 9 and 12 November 2012 the Kyiv Administrative Court of Appeal and the Higher Administrative Court, respectively, found against the applicant. They held that the CEC ’ s decision was related to numerous complaints received by it rather than to any issues with the ConEC ’ s protocol.

Under Section 91 of the Parliamentary Elections Act (as worded at the material time), each PEC drew up its protocol on voting results in a number of originals exceeding the number of the PEC members by four: the first and the second originals were to be transferred to the ConEC, the third one was kept with the PEC secretary, the fourth one was publicly displayed at the PEC premises, whereas the remaining originals were distributed among the PEC members. All the originals had equal legal validity. Candidates and their representatives, as well as official observers present during the count, were entitled to a duly certified duplicate of the protocol. All the protocols were drawn up on pre-printed blanks, each of which had its unique serial number.

COMPLAINT

The applicant complains under Article 3 of Protocol No. 1 that there was an infringement of his right to stand as a candidate in free elections.

QUESTION TO THE PARTIES

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?