DISSENTING OPINION OF JUDGE LOUCAIDES

The applicant ’ s complaint is that he was arbitrarily denied registration on the Socialist Party of Ukraine ’ s list of candidates for election to the Verkhovna Rada , the Ukrainian parliament . The national authorities refused to register him as a candidate for the election in question on the ground that he had submitted inaccurate info rmation about his habitual residence or stay for the past five years. The applicant argued that he had g iven the relevant authorities the info rmation relating to his registered place of official residence in Ukraine (the “ propiska ” , as it was called at the time). The propiska was an integral and fundamental aspect of the Ukrainian administrative system and was widely used for many official purposes. According to the applicant, as long as his propiska indicated that Ukraine had been his registered place of residence for the last five years before the date of submission of his application to be a candidate (12 January 2002), he should not be considered as having provided false info rmation. As a consequence, he should not be excluded as a candidate on the ground that he did not satisfy the relevant residence condition, even though the fact that he was not actually residing in Ukraine during the period in question was undisputed.

According to Article 76 of the Constitution of Ukraine :

“... A citizen of Ukraine who has attained the age of 21 on the date of elections has the right to vote and, if that citizen has resided in the territory of Ukraine for the past five years , may be come a member of the Verkhovna Rada ...” (emphasis added)

Moreover, section 8 of the Law “on e lections” provides as follows:

“ ( 1 ) A citizen of Ukraine who has attained the age of 21 on the day of the election has the right to vote, and, [if he or she] has resided i n the territory of Ukraine for the past five years , may be elected as a member of parliament.” (emphasis added)

It was common knowledge that the applicant left Ukraine on 26 November 2000 and took up residence as a refugee in the United States by virtue of a decision of the U nited S tates authorities of 27 April 2001 . He did not return to Ukraine . In actual fact, therefore, he was not a resident of Ukraine “for the past five years” before his application. As already pointed out, the applicant disputes that and argues that , as his propiska indicated that his registered place of official residence was Ukraine, he must be taken to have satisfied the residence requirement .

Withi n the administrative system of Ukraine , the propiska was a formal designation of a person ’ s residence and was used, obviously for practical purposes, as formal evidence of residence. It could not conceivably be treated as conclusive confirmation of a person ’ s residence in Ukraine in cases where the latter ’ s real residence was acknowledged to be outside Ukraine . In other words, it was not in my opinion unreasonable for the authorities in this case to base themselves on the applicant ’ s real residence rather than close their eyes and rely only on the propiska .

Consequently, I consider that the fact that the national authorities, in deciding whether or not the relevant qualifications for parliamentary elections had been complied with in the applicant ’ s case, chose to rely on his undisputed actual residence rather than on the formal registration of such residence and then concluded that his reliance on the formal rather than the real residence was an untruthful statement which justified his disqualification, cannot be considered an arbitrary or even a wrong decision.

This was at the heart of the applicant ’ s complaint and it was this matter that we had to examine in the light of the provisions of Article 3 of Protocol No. 1. The political background and political features of the case were not our concern to the extent that they were not fully relied on or established by the applicant by way of substantiation of his specific complaint under the said provisions.

In the circumstances, I find that there has been no violation of Article 3 of Protocol No. 1 in this case.

[1] . In force at the material time.

[2] 1. In full: D eclaration of property and income of a candidate for election to the Verkhovna Rada and the members of his or her family for 2001, and r ecommendation on the method for its completion, as approved by the Ministry of Finance of Ukraine in Order n o. 611 o f 28 December 2001, registered with the Ministry of Justice on 2 January 2002 ( n o. 1/6289 ).