Communicated on 27 August 2020 Published on 14 September 2020

FIFTH SECTION

Application no. 66811/13 Igor Olegovych MARKOV against Ukraine lodged on 18 October 2013

STATEMENT OF FACTS

The applicant, Mr Igor Olegovych Markov, is a Ukrainian national, who was born in 1973. At the time of the introduction of his application he lived in Odesa. He is represented before the Court by Mr O.L. Kazarnovskyy , a lawyer practising in Odesa.

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

The applicant ran as a self-nominated candidate for the parliamentary elections of 28 October 2012 in single-seat constituency no. 133.

According to the protocol of the constituency election commission (“the ConEC”) of 31 October 2013, he won the elections having obtained 22,349 votes, whereas the candidate who arrived next had 17,189 votes.

On 8 November 2012 the Central Election Commission (“the CEC”) announced the election results, according to which the applicant was elected to Parliament. Two CEC members wrote a dissenting opinion in respect of the election results in constituency no. 133. They stated that there had been a significant number of “artificial” candidates who had in fact been used by major “real” candidates in order to increase their influence in election commissions. Furthermore, the integrity of the electoral process had been undermined by cases of vote buying and administrative pressure. Lastly, the dissenters noted, the police had not duly reacted to mass-media reports of election-related irregularities.

On 23 November 2012 the CEC registered the applicant as the elected Member of Parliament (“MP”) from single-seat constituency no. 133. It had not received any complaints regarding the elections in that constituency.

On 12 December 2012 the applicant took the oath as a parliamentarian.

On 11 July 2013 an MP complained to the Prosecutor General ’ s Office (“the PGO”) that the elections in constituency no. 133 had been criticised in various media outlets, in particular, on account of the alleged election fraud, use of pens with ink turning invisible, conflicts and fights during the E-day at some polling stations and so on. The MP sought the initiation of a criminal investigation in respect of falsification of electoral documents by unspecified persons. He maintained that the only manner to investigate those allegations was by the way of inspection of all the ballots in that constituency with a view to verifying whether they had any indications of falsification.

On the same date the criminal investigation was launched.

On 29 August 2013 the investigator of the Ministry of the Interior in charge of the investigation wrote to the CEC that, as established by expert examination reports, 6,038 ballots with votes for the applicant had in fact been falsified. Namely, initially marks had been made in front of other candidates ’ names, but they had been erased and a new mark had been put in front of the applicant ’ s name.

On 30 August 2013 the CEC replied to the investigator that there was nothing it could do.

On the same date three individuals (including the MP who had complained to the PGO) brought an administrative claim against the CEC seeking: a judicial declaration that it had committed an illegal omission by not reacting to the electoral breaches brought to its attention; invalidation of the election results in constituency no. 133; divesting the applicant of his MP mandate; and delivering a decision on the impossibility to establish the election results in the constituency in question.

The applicant who was involved in the proceedings as a third party contested the above claim. He submitted, in particular, that one of the expert reports on which the investigator had relied in his letter to the CEC of 29 August 2013 had in fact been finalised only one day later. Furthermore, the applicant listed a number of polling stations, in which the expert examination reports had not revealed any irregularities, whereas the investigator had stated the contrary. In some other polling stations, according to the applicant, there was no evidence that the expert had inspected the ballots cast in his favour. The applicant also observed that, as confirmed by the examination reports, the expert had spent less than fifteen seconds to inspect each ballot. The applicant therefore argued that the evidence presented as expert reports could not be regarded as reliable. It could not be ruled out, he maintained, that the ostensibly falsified ballots in his favour had in fact been t a mpered with during the investigation-related inspection: the erased marks in front of other candidates ’ names could have been put and erased post-factum at that stage to undermine the ballots ’ validity.

On 12 September 2013 the Higher Administrative Court allowed the claim in part. It invalidated the election results in constituency no. 133, quashed the applicant ’ s registration as the elected MP by the CEC and held that it was impossible to establish the election results in that constituency. The Higher Administrative Court noted that the applicant ’ s references to certain inconsistencies did not prove that the ballots had not been falsified.

On 20 September 2013 the applicant ’ s parliamentary mandate was cancelled.

COMPLAINT

The applicant complains that the invalidation of election results in his constituency was arbitrary and unlawful.

QUESTIONS TO THE PARTIES

Has there been a breach of the applicant ’ s rights under Article 3 of Protocol No. 1?

In particular:

Did the invalidation of the election results in single-seat constituency no. 133 and stripping the applicant of his parliamentary mandate amount to a violation of his right to, once elected, sit as a member of the national legislature (see Sadak and Others v. Turkey (no. 2) , nos. 25144/94 and 8 others, § 33, ECHR 2002 ‑ IV)?

Was the procedure which had led to the impugned invalidation characterised by procedural fairness and legal certainty (see Orujov v. Azerbaijan , no. 4508/06, § 42, 26 July 2011 , with further references)?

Did the manner of review of the outcome of the elections and the invalidation of the election results comply with the principle requiring prevention of arbitrariness (see Kerimova v. Azerbaijan , no. 20799/06, § 44, 30 September 2010 , with further references)?