‘Abduction of Europa’ (Rembrandt Harmensz. van Rijn, Amsterdam - 1632 - fragment)

Thursday, 11 June 2015

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2015 - week 24

This week in Strasbourg:
  • Pre-trial detention conditions of former Ukrainian Minister of the Interior were degrading
  • Refusal to register independent candidate in the 2010 parliamentary elections in Azerbaijan was arbitrary
Pre-trial detention conditions of former Ukrainian Minister of the Interior were degrading

The case of Lutsenko v. Ukraine (no. 2) concerned several complaints about the conditions of the pre-trial detention of the former Minister of the Interior, Yuriy Lutsenko, from December 2010 to April 2012 and his treatment during court hearings - violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights - The Court found in particular: that for more than four months Mr Lutsenko had been held in a cell which lacked sufficient space; that he had been required to attend long court hearings while in a poor state of health, without sufficient breaks or being provided with appropriate food; and there had been no justification for his placement in a metal cage during court hearings.
"168.  The Court reiterates that a measure of restraint does not normally give rise to an issue under Article 3 of the Convention where this measure has been imposed in connection with lawful detention and does not entail a use of force, or public exposure, exceeding that which is reasonably considered necessary. In this regard it is important to consider, for instance, whether there was a danger that the person concerned might abscond or cause injury or damage (see, e.g., Öcalan v. Turkey [GC], no. § 182, ECHR 2005‑IV).169.  The Court has previously examined the issue of holding a person in a metal “cage” during court hearings in a number of cases (see, lastly, Svinarenko and Slyadnev v. Russia [GC], nos. 32541/06 and 43441/08, §§ 113-139, 17 July 2014), a practice which is still present in a few Member States including Ukraine (cited above, § 75). In those cases, in which the Court found a violation of Article 3, the applicants were accused of non-violent crimes, they had no criminal record, there was no evidence that they were predisposed to violence, and the “security risks” were not supported by any specific facts. Furthermore, those applicants’ trials attracted considerable media attention. Therefore, the reasonable balance between the different interests at stake was upset.170.  In the case at hand, it appears from the documents submitted by the parties that the applicant was held in a cage with metal bars during all the eighty hearings which took place between 23 May 2011 and 27 February 2012 (see paragraph 14 above). It is not for the Court to examine this practice in the abstract, but to assess whether in the applicant’s case the measure was justified in the light of the above criteria.171.  In this connection, the Court notes that no evidence before it attests to the applicant’s having a criminal record. Likewise, he was not suspected of having committed a violent crime. It is therefore not convinced by the Government’s argument that the applicant was placed in the metal cage in the interest of public safety. It emerges that the dock with metal bars was permanently installed in the courtroom, and that the applicant, who was a largely known politician (see also Ashot Harutyunian, cited above, § 126 et seq.; and Khodorkovskiy v. Russia, no. 5829/04, §§ 120 et seq., 31 May 2011), was placed there during all the hearings held before the Pechersk Court from May 2010 to February 2012. The Court further notes that the criminal procedure was closely observed by journalists, and photographs depicting the applicant behind metal bars were published soon after the court hearings (see paragraph 14 above). The Court also takes into consideration that the proceedings against the applicant had gained a high profile. Thus, the applicant was exposed behind bars not only to those attending the hearings but also to a much larger public who were following the proceedings in both national and international media.172.  Although, in contrast with the cases referred above, the applicant was not handcuffed, the Court considers that, given their cumulative effect, the security arrangements in the courtroom were, in the circumstances, excessive, and could have been reasonably perceived by the applicant and the public as humiliating.173.  There has, therefore, been a violation of Article 3 of the Convention, in that the treatment was degrading within the meaning of this provision."
Refusal to register independent candidate in the 2010 parliamentary elections in Azerbaijan was arbitrary
Case of Tahirov v. Azerbaijan - Violation of Article 3 of Protocol No. 1 (right to free elections) to the Convention on Human Rights. The case concerned the complaint of an independent candidate in the 2010 parliamentary elections, Mr Tahirov, that he was arbitrarily refused registration. The Court found in particular that Mr Tahirov had been deprived of the opportunity to challenge the electoral commissions’ conclusion that the signatures supporting his candidacy were not authentic, a situation that seemed to be of a systemic nature. Indeed, after the 2010 elections, the European Court of Human Rights itself had received around 30 applications, including Mr Tahirov’s, by candidates complaining about the registration process and in particular about the invalidation of their supporting signatures. Furthermore, neither the electoral commissions nor the domestic courts had addressed any of the well-founded arguments put forward by Mr Tahirov or motivated their judgments. The Court therefore considered that the refusal of Mr Tahirov’s candidacy had been arbitrary and that the procedure for verifying signatures supporting his candidacy had been conducted in a manner which did not provide sufficient procedural safeguards against arbitrariness, although such guarantees were provided for by the Electoral Code.
“53.  Article 3 of Protocol No. 1 enshrines a characteristic principle of an effective political democracy and is accordingly of prime importance in the Convention system (see Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987, § 47, Series A no. 113). The Court has established that it guarantees individual rights, including the right to vote and to stand for election (ibid., §§ 46-51).54.  The rights bestowed by Article 3 of Protocol No. 1 are not absolute and there is room for “implied limitations”. In their internal legal orders the Contracting States may make the rights to vote and to stand for election subject to conditions which are not in principle precluded under Article 3. While the Contracting States enjoy a wide margin of appreciation in this sphere, it is for the Court to determine in the last resort whether the requirements of Article 3 of Protocol No. 1 have been complied with. In particular, it has to satisfy itself that the conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate (see Mathieu Mohin and Clerfayt, cited above, § 52, and Yumak and Sadak v. Turkey [GC], no. 10226/03, § 109, ECHR 2008). Such conditions must not thwart the free expression of the people in the choice of the legislature – in other words, they must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage (see Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, § 62, ECHR 2005 IX).55.  States have broad latitude to establish constitutional rules on the status of members of parliament, including criteria for declaring them ineligible. These criteria vary according to the historical and political factors specific to each State. For the purposes of applying Article 3, any electoral legislation must be assessed in the light of the political evolution of the country concerned, so that features that would be unacceptable in the context of one system may be justified in the context of another (see Mathieu-Mohin and Clerfayt, cited above, § 54; and Melnychenko v. Ukraine, no. 17707/02, § 55, ECHR 2004 X).56.  The Court observed that stricter conditions may be imposed on the eligibility to stand for election to parliament, as distinguished from voting eligibility (see Melnychenko, cited above, § 57). On that point, it took the view that, while it is true that States have a wide margin of appreciation when establishing eligibility conditions in the abstract, the principle that rights must be effective requires that the eligibility procedure contain sufficient safeguards to prevent arbitrary decisions (see Podkolzina v. Latvia, no. 46726/99, § 35, ECHR 2002 II, and Yumak and Sadak, cited above, § 109 (v)).57.  The Court has also emphasised that it is important for the authorities in charge of electoral administration to function in a transparent manner and to maintain impartiality and independence from political manipulation (see Georgian Labour Party v. Georgia, no. 9103/04, § 101, ECHR 2008) and that their decisions must be sufficiently reasoned (see Namat Aliyev, cited above, §§ 81-90).58.  For the purposes of the present complaint, the Court is prepared to accept the Government’s submission that the requirement for collecting 450 supporting signatures for nomination as a candidate pursued a legitimate aim of reducing the number of fringe candidates.59.  It remains to be seen whether, in the present case, the procedure for verifying the compliance with this eligibility condition was conducted in a manner affording sufficient safeguards against an arbitrary decision.60.  The Court has first had regard to the observations made in the OSCE Report (see paragraph 31 above). In particular, the report notes that the OSCE observers expressed serious concerns regarding the impartiality of ConECs, which generally appeared to favor candidates nominated by the ruling party or incumbent independent candidates, particularly during the candidate registration process where all YAP-nominated candidates were registered while over half of opposition-nominated candidates and many self-nominated candidates were refused registration. With regard to the registration process, they further observed a general lack of openness and transparency in the activity of many ConECs and noted that a number of statutory safeguards were not respected by the electoral commissions. The provisions of the Electoral Code were implemented unfairly restrictively and prospective candidates were denied the right to stand based on minor technical mistakes and without due consideration of the principle of proportional responses to errors, enshrined in domestic legislation.61.  Furthermore, by election day the CEC received around 175 complaints challenging ConEC decisions refusing registration, most of which were dismissed by the CEC as groundless. According to the OSCE Report, the CEC reviewed cases in a hasty manner and adopted the working-group expert’s opinion in all cases, with practically no debate or presentation of the expert’s findings at the CEC session. Despite the Electoral Code’s provisions requiring a complainant to be invited to participate in the examination of his complaint and allowing him to present new evidence, the OSCE observers were informed that those provisions were not respected, even when complainants repeatedly insisted to be present. Furthermore, the OSCE Report notes that both the CEC and the domestic courts declined to examine any evidence suggested by the appellants without any explanation and that their decisions often lacked legal argumentation or comprehensive reasoning.62.  The Court also notes that, after the 2010 elections, around thirty applications have been lodged with it by some of the above-mentioned candidates who had been refused registration owing to invalidation of supporting signatures, including the present application.63.  Turning to the present case, the Court notes that, at both electoral commission levels (the ConEC and the CEC), the applicant’s signature sheets were examined by two working-group experts and it appears that one of them examined the authenticity of signatures themselves, while the other reviewed the accuracy of other information in the signature sheets. In the absence of any other information to suggest otherwise, it appears that the experts of the ConEC and the CEC working groups examining the authenticity of signatures did so solely on the basis of handwriting analysis.64.  Despite a question put by the Court to the Government in this respect, the Government have not provided sufficiently specific information about the qualifications and credentials of the experts in the present case (in particular, expert M.M. of the ConEC working group and expert U.A. of the CEC working group). The Government simply noted that all working group experts had been appointed from among “employees of the Centre of Forensic Science of the Ministry of Justice, the Ministry of Interior, the State Register of Immovable Property and other agencies”, without specifying whether the experts charged with conducting the handwriting analysis were actually qualified to do so by their occupation. The Government further noted that the working-group experts had been trained by other experts with the “appropriate knowledge and experience in the relevant field”, without however specifying what exact type of training had been provided. The CEC regulations on electoral commissions’ working groups, in force at the material time (see paragraph 29 above), also fail to specify any requirements as to the relevant qualifications of prospective working group experts or as to trainings they were to attend. The Court also takes note of the OSCE Report which stated that the fact that many refusals to register candidates resulted from findings of alleged inauthenticity of supporting signatures “was of concern because ConECs as a rule reached their conclusions without having expert opinions of graphologists or other specialists” (see paragraph 31 above). In the Court’s view, lack of clear and sufficient information about the professional qualifications and the criteria for selection and appointment of working-group experts charged with the task of examining signature sheets is a factor that can seriously undermine the overall confidence in the fairness of the procedure of candidate registration and of the elections in general.65.  In any event, the Court notes that both expert M.M. and expert U.A. found in their respective opinions that there was only a probability that a number of signatures were inauthentic, without even specifying how high that probability was. The Court accepts the applicant’s argument that a mere probability that signatures could be inauthentic cannot be taken as constituting a definitively established fact. The applicant’s right to stand for election should not hinge on probabilities and vague opinions; it should be defined by clearly established criteria for compliance with the eligibility conditions. However, as it is apparent from the material in the case file, no further steps were taken by the electoral commissions or their working groups to investigate the matter in order to arrive at a definitive conclusion concerning the authenticity of the impugned signatures. In this connection, the Court notes that section 3 of the CEC regulations on electoral commissions’ working groups laid out some of the steps that could be taken in this regard, such as requesting more information from the nominated candidate, persons collecting signatures, voters or the relevant authorities, and so on (see paragraph 29 above). However, as no such steps were taken, the Court considers that the electoral commissions’ decisions to declare the impugned supporting signatures invalid, without any further investigation into the experts’ inconclusive findings, were arbitrary.66.  Furthermore, as for other procedural guarantees against the arbitrariness, the Court notes that the Government pointed out in their observations that the Electoral Code provided for a number of procedural safeguards designed to protect nominees from arbitrary decisions and expressed an opinion that those safeguards were sufficient. In particular, the Government mentioned such safeguards as the nominee’s right to be present during the process of examination of signature sheets (Article 59.3) and the right to receive the working group’s documents on the results of the examination twenty-four hours before the relevant electoral commission’s meeting (Article 59.13; both provisions cited in paragraph 25 above). However, in the Court’s view, it cannot be seriously argued that the mere fact that those procedural rights were included in the Electoral Code was sufficient to prevent arbitrariness. The Government’s observations were silent in respect of the applicant’s repeated complaints that in the present case those provisions of the Electoral Code had not actually been implemented in practice.67.  In this regard, the Court notes that any safeguard written into a legislative act is meaningless if it merely remains on paper, as it does when the competent domestic authorities, charged with conducting the electoral procedures, systematically fail to abide by those safeguards in situations for which they are designed. It is a fundamental corollary of the rule of law that rights prescribed in legislative acts must be effective and practical, and not theoretical and illusory.68.  The Court notes that, in the present case, neither of the safeguards mentioned by the Government was respected by the electoral commissions. The applicant was not informed of the ConEC working group meeting and the relevant documents were not made available to him within the time period provided by law. As a result, the applicant was deprived of the opportunity to provide relevant explanations, correct any shortcomings in the signature sheets, or to otherwise effectively challenge the findings of the working group in a timely manner, before the decision to refuse registration was made (see also, in this regard, the provisions of Article 60.4 of the Electoral Code cited in paragraph 26 above). The applicant was likewise deprived of the opportunity to benefit from those safeguards at the CEC level after he had appealed against the ConEC decision. As it can be discerned from the OSCE Report, this situation was not particular only to the applicant’s case, but was of a systemic nature.69.  The Court further observes that, even having been deprived of an opportunity to benefit from the above-mentioned procedural guarantees prescribed by law, the applicant made an attempt to challenge the ConEC findings by submitting a number of documents to the CEC with the aim of demonstrating that a number of signatures declared invalid were, in fact, authentic. In particular, among other documents, he submitted statements by ninety-one voters maintaining that their original signatures in support of the applicant belonged to them. However, the CEC ignored those statements, without providing any explanation or reasons for doing so. The CEC decision did not address any of the applicant’s arguments which, in the Court’s view, appeared to be well-founded and serious (see paragraph 13 above). Moreover, it appears that, contrary to the requirements of the electoral law (see Article 112-1.7 of the Electoral Code cited in paragraph 27 above), the CEC failed to ensure the applicant’s presence at its meeting.70.  The domestic courts did not address the applicant’s complaints about any of the above-mentioned deficiencies either, even though the applicant’s appeals contained prima facie well-founded complaints, referred to the relevant provisions of the domestic law, and disclosed an appearance of arbitrariness in the electoral commissions’ decisions. In particular, the Baku Court of Appeal failed to provide any reasoning in its judgment, while the Supreme Court saw no grounds for doubting the electoral commissions’ findings, without explaining its reasons for reaching such a decision. Having regard to the foregoing, the Court considers that the conduct of the electoral commissions and courts in the present case and their respective decisions revealed an apparent lack of genuine concern for upholding the rule of law and protecting the integrity of the election (compare Namat Aliyev, cited above, § 90, and Karimov v. Azerbaijan, no. 12535/06, § 49, 25 September 2014).71.  It follows from the above analysis that, in practice, the applicant was not afforded sufficient safeguards to prevent an arbitrary decision to refuse his registration as a candidate.72.  There has accordingly been a violation of Article 3 of Protocol No. 1 to the Convention.”

Texts are based on the press releases of the European Court of Human Rights. 
This selection covers categories 1 and 2 judgments. 

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