Wednesday, November 24, 2004

Curtea Europeana a Drepturilor Omului - update-drepturi politice

Desi azi nu au fost anuntate cazuri romanesti(se mai intimpla si asa), citeva cazuri pe care le redau mai jos mi se par interesant de urmarit si din perspectiva noastra. Citindu-le prezentarea veti intelege de ce.

MELNYCHENKO v. UKRAINE(application no. 17707/02)-(sau despre tehnica juridica a comunistilor-interesant ca si judecatorul din tara respectiva a votat impotriva "interpretarii" propriilor autoritati)

The Court held:

-by six votes to one, that there had been a violation of Article 3 of Protocol No. 1 (right to free elections) to the European Convention on Human Rights because the applicant was arbitrarily denied registration as a parliamentary candidate, and,

-unanimously, that it was not necessary to examine separately the applicant’s complaint under Article 14 (prohibition of discrimination) of the Convention.

Under Article 41 (just satisfaction), the Court awarded the applicant 5,000 euros for non-pecuniary damage. (The judgment is available only in English.)

1. Principal facts

The applicant, Mykola Ivanovych Melnychenko, is a Ukrainian national, who was born in 1966 and is currently living in the United States of America, where he has refugee status.

Mr Melnychenko was in charge of guarding the office of the Ukrainian President, Leonid Kuchma. In the course of his work he allegedly made tape recordings of the President’s personal conversations relating to his possible involvement in the disappearance of Georgiy Gongadze, editor-in-chief of the “Ukrayinska Pravda” internet journal and leading opposition journalist known for his criticism of Mr Kuchma.

On 26 November 2000 the applicant left Ukraine, fearing political persecution following the public disclosure of the audiotapes. At the time, he held an internal passport which gave an address in Kiev as his “propiska” (his registered address for administrative purposes).

The applicant applied for political asylum in the United States of America and, on 27 April 2001 was recognised as a refugee. He was granted the right to stay in the USA indefinitely.

On 12 January 2002 he was nominated as a Socialist Party parliamentary candidate. A requirement for candidacy was residence in the Ukraine for five years. In his application for registration as a candidate Mr Melnychenk gave his propiska address as his place of residence for the previous five years.

Registration was rejected, however, on the grounds that Mr Melnychenko had submitted false information about his place of residence and that he had not been resident in the Ukraine over the full five years.

2. Procedure and composition of the Court

The application was lodged on 23 April 2002 and declared partly admissible on 4 November 2003.

Judgment was given by a Chamber of seven judges, composed as follows:

Jean-Paul Costa (French), President,
András Baka (Hungarian),
Loukis Loucaides (Cypriot),
Corneliu Bîrsan (Romanian),
Karel Jungwiert (Czech),
Volodymyr Butkevych (Ukrainian),
Mindia Ugrekhelidze (Georgian), judges,

and also Laurence Early, Deputy Section Registrar.

3. Summary of the judgment


The applicant maintained that, in rejecting his application for registration as a parliamentary candidate, the domestic authorities had acted arbitrarily, because Ukrainian electoral law did not specify whether the requirement of five years “residence” in Ukraine meant legal or habitual residence. He relied on Article 3 of Protocol No. 1 to the Convention.

He also complained of discrimination, prohibited by Article 14, in that another nominee who had not lived in Ukraine for a continuous period of five years had been registered as a parliamentary candidate.

Decision of the Court

Article 3 of Protocol No. 1

The Court considered that neither the relevant Ukrainian legislation nor practice contained a direct eligibility requirement of “habitual” or “continuous” residence in the territory of Ukraine for parliamentary candidates. Neither was a distinction made in the law between “legal” and “habitual” residence. It was clear that the applicant’s “habitual residence” was partly outside Ukraine during the relevant period, as he had left the country on 26 November 2000, against his will, in fear of persecution, and had taken up residence as a refugee in the United States. However, the propiska in his internal passport remained unchanged.

The Court observed that the only proof of legal registration of residence in Ukraine at the relevant time was in an ordinary citizen’s internal passport, which did not always correspond to the person’s habitual place of residence. The Court further noted that the propiska was an integral and fundamental aspect of the Ukrainian administrative system and was widely used for a number of official purposes (such as, registration of the citizen’s current place of residence, conscription, voting and various property issues).

The Court found particularly significant that, in the declaration of means submitted for registration, parliamentary candidates were required to give “their propiska or temporary propiska (registration) as contained in the ordinary citizen’s passport”. The Court considered therefore that the applicant was only under an obligation to provide information concerning his propiska in that document.

The Court found understandable the applicant’s hasty flight from Ukraine and that his intention to leave permanently was left undefined. The applicant could rely on his fear of persecution, given his employment, the suspicious events surrounding the disappearance and murder of the journalist Georgiy Gongadze, and the foreseeable audiotape scandal. Moreover, he was rapidly recognised as a legitimate asylum seeker in the USA. The Court found that the applicant was in a difficult position: if he had stayed in Ukraine his personal safety or physical integrity might have been seriously endangered, rendering the exercise of any political rights impossible, whereas, in leaving the country, he was also prevented from exercising such rights.

The Court therefore found that the decision to refuse the applicant’s candidacy on the ground that he had submitted untrue information about his place of residence and that he was not resident in the Ukraine over the full five years, although he retained a valid registered place of legal residence in Ukraine (as denoted in his propiska), was in breach of Article 3 of Protocol No. 1.

Article 14

The Court considered that it was not necessary to examine separately the applicant’s complaint under Article 14.

Judge Loucaides expressed a dissenting opinion, which is annexed to the judgment.

Tot la acest capitol,alte cazuri interesante de urmarit, pentru ca merg "in apel"...
Ždanoka v. Latvia (no. 58278/00)(legat de lustratie)... Mai jos, comunicatul Curtii.
The case concerns the prohibition on the applicant’s standing for parliamentary and local elections on account of her active participation in the Communist Party of Latvia. In a judgment of 17 June 2004 (see press release no. 303), the Court held that there had been a violation of Article 3 of Protocol No. 1 (right to free elections) and of Article 22 (freedom of assembly and association), and considered that there was no need to examine separately the complaint under Article 10 of the Convention (freedom of expression). The case was referred to the Grand Chamber at the Government’s request.

Hirst v. the United Kingdom (no. 2) (application no. 74025/01).
The case concerns the bar on the applicant’s voting in parliamentary or local elections on account of his status as a prisoner. In a judgment of 30 March 2004 (see press release no. 157), the Court held that there had been a violation of Article 3 of Protocol No. 3 to the Convention (right to free elections) and considered that no separate issue arose under Articles 14 (prohibition of discrimination) and 10 (freedom of expression). The case was referred to the Grand Chamber at the Government’s request


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