CEDH · CASELAW;COMMUNICATEDCASES;ENG — 2 novembre 2017

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The applicant in application no.   6599/14 is RODP Yabloko. All applicants are represented before the Court by Mr Ilya Syvoldayev, a lawyer practicing in Moscow, Russia. A.     The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows. 1.     General information about the elections of December 2011 On 4 December 2011 elections took place in Russia. The elections concerned the State Duma of the Russian Federation (the lower chamber of the Russian parliament, hereinafter referred to as “the Duma”) and, in some regions, simultaneously elections to the regional legislative assemblies. Information about the organisation of elections on 4 December 2011, parties and the system of vote counting are outlined in Davydov and Others v.   Russia , no. 75947/11, §§ 10-16, 20, ECHR 2017 (extracts). While the latter case refers to the elections in Saint-Petersburg, the system operated similarly in each constituent entity of the Russian Federation. 2.     Overview of the applicants’ complaints The applicants’ complaints concern, essentially, irregularities with the vote counting, recounting and entering of the results obtained during the Duma elections in the Voronezh Region. The applicants alleged that the electoral commissions had altered the results of the elections by systematically assigning more votes to the ruling Yedinaya Rossiya (ER) party and its candidates, and, sometimes, by stripping the opposition parties (including Yabloko ) of their votes. Their attempts to obtain effective review of these complaints had been futile. (a) Application no.   41982/14 The applicants in application no.   41982/14 challenged the results in eighteen Precinct Electoral Commissions ( участковая избирательная комиссия (УИК) ) (hereinafter the PEC) of the Kalachevskiy District, Voronezh Region: nos. 16/01, 16/02, 16/06, 16/07, 16/08, 16/11, 16/12, 16/13, 16/14, 16/20, 16/21, 16/29, 16/33, 16/34, 16/39, 16/42, 16/43, 16/44. RODP Yabloko brought proceedings to annul the results in the contested constituencies. The Voronezh branch of Yabloko challenged the results in various proceedings (see below). Mr Timoshenko was voter and observer at PEC no. 16/02; Mr Krapivkin was voter and observer at PEC no. 16/06. They also challenged the results in the two respective constituencies. To prove their allegations of irregularities, the applicants submitted copies of the “original” protocols that had been drawn in each of the eighteen PECs after the vote counting was over. Each copy was attested by the chairperson’s or secretary’s signature and stamp of the PEC concerned. Each copy also indicated the exact time when the copy had been made. The applicants obtained information about the exact time of entry of the PEC results into the State-run electronic database “ Vybory ” (“Elections”) at the territorial electoral commission (hereinafter the TEC) for Kalachevskiy District, indicating the PEC representative (chairperson) who had attested the correctness of the entry. They also submitted official results as entered into the database and published. These final results differed from the “original” ones by increasing the overall number of valid votes cast, inflating the results for the ER and, often, diminishing the results for other parties: in each of the eighteen polling stations concerned, the number of votes cast in favour of ER as recorded in the “original” protocol was lower than the figure which appeared in the official results. There were differences between the protocols in two to ten lines out of 25. Line no.   24, where the results of the ER were recorded, differed in all eighteen cases, and in all cases this figure increased. For example, the table below indicates the figures for PEC no.   16/01 (with reference to corresponding line numbers in the results tables). The first column indicates the figures as recorded in the “original” copy of the protocol. This document was attested by the signature of the commission’s chairperson and stamp and indicated the time when it was issued at “0:50” (12:30 a.m.) on 5 December 2011. The second column of figures comes from the official results for the precinct as entered into the “ Vybory ” database and made public.   Line no. Line description “Original” protocol Official result 4 Number of ballots issued at the polling station 1455 1755 6 Number of unused ballots invalidated after the end of voting 807 507 8 Number of used ballots in the stationary ballot boxes 1455 1755 9 Number of invalid ballots 32 12 10 Total number of valid ballots 1625 1946 19 Votes cast for Spravedlivaya Rossiya (the SR) 262 262 20 Votes cast for Liberalno-Demokraticheskaya Partiya Rossii (the LDPR) 170 5 21 Votes cast for Patrioty Rossii (PR) 17 5 22 Votes cast for Kommunisticheskaya Partiya Rossiyskoy Federatsii (the KPRF) 375 375 23 Votes cast for RODP Yabloko 46 6 24 Votes cast for Yedinaya Rossiya (ER) 747 1291 25 Votes cast for Pravoye Delo (PD) 9 2   According to the applicants’ calculation, 4,495 votes were added to the ER in eighteen precincts, or about 12% of the total number of votes cast on that day in the Kalachevskiy District. By the same token, the number of votes cast for Yabloko in the district was reduced by 205 votes. (b) Application no.   6599/14 The applicant challenges the results in fourteen precincts of the Semilukskiy District of the Voronezh Region: nos. 35/13, 35/16, 35/18, 35/21, 35/22, 35/24, 35/25, 35/27, 35/28, 35/29, 35/33, 35/35, 35/36 and 35/50. The applicant did not submit copies of the “original” protocols received by observers and members of the PECs concerned, but presented detailed information in the domestic proceedings as summarised below. According to the applicant, as a result of recounts of ballots in fourteen precincts, the number of invalid ballots decreased by 1921, and the number of valid ballots increased by 1914. Additional votes were assigned to the ER in thirteen out of fourteen polling stations concerned (with the exception of PEC no.   35/36). As a result, the overall result of the ER in the Semilukskiy District grew by 1433 votes. By the same token, the number of votes cast for Yabloko grew by ten votes, and for the SR – by 140 votes. No political party lost votes as a result of the recounts. 3.     Attempts to start a criminal and administrative investigation into the alleged falsification (application no.   41982/14) On 15 February 2012 the regional Voronezh branches of the SR and Yabloko political parties wrote to the Kalachevskiy District Department of the Investigative Committee (the District Investigative Committee), asking them to open criminal investigation into the falsification of the outcome of the elections at polling station no.   16/01. On 16 February 2012 the District Investigative Committee forwarded the request to the Electoral Commission of the Voronezh Region (the Regional Electoral Commission), without taking any action. The two parties challenged the course of action of the District Investigative Committee to the court, and on 5 March 2012 the Kalachevskiy District Court (the District Court) refused to consider the complaint in substance. On 5 April 2012 the Voronezh Regional Court quashed and remitted the decision of 5 March 2012, having found that the District Court had failed to examine the de facto refusal of the District Investigative Committee to carry out an investigation into the situation. As it follows from subsequent documents, in July 2012 the Investigative Committee ruled not to open criminal proceedings. On 21 September 2012 the regional Voronezh branches of Yabloko and SR, as well as all-Russian parties KPRF, Yabloko , and SR asked the Kalachevskiy District Prosecutor’s Office to open proceedings under the Code of Administrative Offences of the Russian Federation, Articles 5.6 and   5.24. On 24 October 2012 the District Prosecutor’s Office concluded that there existed no grounds to open proceedings. The parties appealed, and on 7 December 2012 the District Court found that the prosecutor had failed to carry out a proper investigation into the complaint and quashed the decision of 24 October 2012. On 29 January 2013 the Voronezh Regional Court confirmed the decision of 24 October 2012. 4.     Judicial review of the applicants’ complaints in application no.   41982/14 (a)     Judicial review of the eighteen polling stations On 23 July 2012 the District Court rejected the claim lodged by Yabloko and SR to annul the decisions of the electoral commissions in eighteen polling stations concerned. The two political parties stressed that the number of discrepancies between the “original” protocols and the figures entered into the system on the night of 5 December 2011 indicated that it was not a mistake, but a falsification. The copies of the protocols received by the members of the PECs and observers from different political parties repeatedly indicated figures that were different from the official results. The representative examined the copies of some protocols that were kept at the TEC and stressed that they differed, for example, in indicating the time when they had been produced, and in the number of signatures attesting them. The accuracy of information that had been entered into the computer system was put into question. The difference between the official and “original” protocols should have alerted the members of the TEC and led them to carry out a proper recount. In its absence, the real will of the electorate for these eighteen PECs was seriously distorted and the results should be invalidated. The representatives of the KPRF agreed that the elections results had been falsified in the eighteen polling stations. The KPRF lost about 18% of the votes cast for them, which were reassigned to the ER. The representatives of the PECs and the TEC concerned considered that the claim should be dismissed. They were of the opinion that the claimants had failed to prove that there were any violations of the electoral legislation; the results as entered into the system reflected the real will of the electorate. They also stated that the copies of the protocols submitted by the applicants were not in conformity with the formal rules applicable to such copies. The District Court questioned the secretaries and chairpersons of each PEC. They could not explain how the difference between the figures in the “original” and official protocols came about. Some claimed that they had not checked the originals when the copies were made, others indicated that the work was done late at night and they were tired, yet others said that the observers had asked for copies as soon as possible and had obtained preliminary, rather than final results. For example, the chairman of PEC no.   16/01 explained that their work on 4 December had been done in strict compliance with the legislation. The observers asked to recount the ballots and interfered with their work. The secretary produced a copy of the protocol without properly checking its correctness. The secretary explained that she did not recall whether she had issued to the observers final or intermediary results, she did not remember any details because she had been tired and in a hurry. The members of the PEC and the observers had been nervous and had asked them to come up with the results as soon as possible. The statements were challenged by other witnesses, observers from sixteen polling stations concerned. Most of them stated that while they observed the vote counting had taken place in calm conditions, that there had been no mistakes and no corrections to the protocols. Copies of the protocols issued to them were attested by the responsible persons of the commissions in question; the figures had coincided with those indicated in the protocols produced after the counting was over and with the figures indicated on the large noticeboards displayed at the stations. Most observers specified that they had left the polling stations only once all counting work had been over and the ballots had been placed into boxes and sealed. For example, observer L. was a member of PEC no.   16/01, appointed by the KPRF. He explained that the ballots had been counted several times. After the counting was over, he compared the copy of the protocol issued to him with the noticeboard, and all figures had coincided. He also verified that the observer from the SR had obtained identical document. He took a copy of the protocol to the district KPRF headquarters. He lodged two complaints during the elections day, but they did not concern the difference in the protocols. One witness, member of a different PEC, stated that once the counting had been finished and the protocols had been completed and signed by all members of the commission, the chairperson asked them all to sign a clean blank of the protocol, “in case the TEC would have any questions”. All members of the commission’s had signed the empty blank. Later the witness found the difference in figures as compared to the original protocol. Two members of the TEC testified in court. The deputy chairman explained that the protocol of PEC no.   16/06 had been deficient and he had asked the person in charge to take it back and redraft; the same happened with one or two other protocols. Between 3 and 5 a.m. on 5 December 2011 the computer system blocked and they could not enter any information. By 5 a.m. the computer problem had been resolved and they continued to enter the information. He acknowledged the difference between the protocols issued to the observers at the polling stations and the ones submitted to the TEC, but he was not aware when and how the results had been changed. He also noted that few votes had been cast for Yabloko , SR and LDPR, which he regarded to be strange and inconsistent with his experience as a member of the TEC during previous twelve years. Another member of the TEC confirmed that there had been alterations for the results in eighteen stations. The protocols brought by the members of these PECs had been rewritten in various rooms of the district administration. He was not aware who and how had carried out this falsification. There were computer “glitches” for two hours during the night. The District Court dismissed the claim. It considered that the applicants had not provided sufficient evidence to prove any falsifications. Voting, ballot counting, drawing of protocols, tabulation of results and issuing of copies of the protocols had been carried out in compliance with the applicable legislation. The applicants’ claims were based on conjectures and unverified information and could not serve to invalidate the final results. The documents submitted by the applicants did not constitute proper evidence. The District Court recalled the decision of 2 July 2012 not to open criminal investigation into the falsification of the results at PEC no.   16/01. In the absence of criminal investigation into the actions of the electoral officials there was no indication of any wrongdoing. On 1 November 2012 the Voronezh Regional Court confirmed this judgement. It aligned with the District Court in basing its findings on the official data as entered into the system and in dismissing the evidence inconsistent with the formal requirements. The Regional Court stated that “the witness statements made by the observers and members of the PECs could not be treated as valid evidence [of falsifications]”, since the results of voting were recognised in the proper form of the final protocols. The Regional Court concluded that there was no information that the will of the electorate had been thwarted. (b)     Judicial proceedings to challenge the results in individual polling stations In the course of 2012 different political parties of the Voronezh region, individual voters and the applicants in the present case appealed to the district court the results of each PEC concerned. In each case the District Court refused to consider the issue in substance. Where the claim was launched by individual voters or members of the PEC, the court considered that they had no standing to appeal against the election results, since they had not been affected by them. Where the political parties’ regional branches had launched the proceedings, the Court considered that they had no standing either, because the elections contested concerned federal, and not regional level. The Voronezh Regional Court confirmed these decisions where they were appealed against. 5.     Proceedings before the Constitutional Court in application no.   41982/14 Mr Timoshenko launched proceedings before the Russian Constitutional Court against the interpretation of the legislation which did not give to voters standing to challenge election results. On 22 April 2013 the Constitutional Court delivered a judgment on the joint similar complaints (no. 8-P/2013). It held that an individual voter had a legitimate interest that his vote in support of a political party or candidate be counted correctly. The interpretation of the legislation which excluded the voters’ access to judicial review was found to be incompatible with the Constitution (see, for more details, Davydov and   Others, cited above, §§ 80-88). 6.     Judicial review of the applicant’s complaints in application no.   6599/14 On 3 December 2012 RODP Yabloko and the SR applied to the Semilukskiy District Court of the Voronezh Region (the District Court), seeking to review the results of elections in the fourteen precincts concerned. They submitted detailed information about the changes to the voting results, indicating the alleged breaches of the electoral legislation. Thus, they noted that the recounts that had taken place upon the decision of the relevant TEC were in breach of the requirements of the legislation. The reasons for ordering the recounts had remained unclear; the members of PECs concerned had not been informed of the recounts and the changes to the protocols; varying information had been entered twice into the Vybory system, the second time – more than one day after the end of the voting (on 6 December 2011). The parties pointed out that 68 changes were effectuated to the protocols; in 66 the changes were multiples of 5 (5, 10, 15 and so on). They stressed the disproportionate increase in the number of ballots cast for the ER as compared to other parties. On 14 December 2012 the Semilukskiy TEC destroyed the entire set of ballots and protocols from the December 2011 elections. On 3 April 2013 the District Court ruled to dismiss the claim. During the hearing, the representative of the TEC explained that the Semilukskiy District counted 54 polling stations and, accordingly, PECs. The decision to carry out recounts in fourteen precincts was taken by the TEC after the first set of figures had been entered into the Vybory system, which later necessitated the second entry. While the representatives of the SR and Yabloko had been present at the PECs during the initial counting, their presence during the recounts could not be ensured since they had already left. The District Court decided that the copies of the “original” protocols could not be treated as valid evidence, in view of breaches of the formal requirements. The District Court found that the electoral commissions had issued these copies to the observers before the final results had been drawn up. It concluded: “the differences between the official protocols of the results of voting and the copies submitted by the claimants is explained by the fact that the latter documents had been issued prematurely, without properly verifying whether there had been any technical mistakes; this does not amount to thwarting the real will of the voters, but indicates that the electoral commissions had breached the above mentioned legal norms relating to the issuing of copies of the results protocols”. On appeal, on 16 July 2013 the Voronezh Regional Court confirmed the judgment of 3 April 2013. The Regional Court stressed that the claim concerned, in essence, the results of the elections after they had been declared valid, and the soundness of the protocols indicating these results was inseparably linked to the overall validity of the elections. It confirmed that the copies of the protocols referred to by the claimants had been deficient and could not serve as evidence, contrary to the official results as confirmed by the electoral commissions. On the same day, the Regional Court issued a separate ruling ( частное определение ) directed at the Semilukskiy District TEC. It reminded it of the duty to fully comply with the requirements of the applicable legislation, concerning inter alia , the copies of the protocols with the voting results, and the recounts procedure. The Regional Court found that the PECs and the TEC concerned had not informed all members of the commissions of the recounts and the drawing of new protocols, in breach of the relevant legislation. The TEC concerned was asked to report to the Regional Court within one month of the measures taken to comply with such requirements in the future. B.     Relevant domestic law and practice Relevant domestic law and practice are summarised in Davydov and   Others v. Russia , no. 75947/11, §§ 173-195, ECHR 2017 (extracts). COMPLAINTS The applicants complain under Article 3 of Protocol No. 1 to the Convention about the unfairness of the elections to the State Duma of 4   December 2011 in the Kalachevskiy district. Primarily, they allege that the official results did not reflect the actual results of voting as reflected in the “original” protocols drawn up after the counting of ballots at the voting stations. They also complain that they did not have effective remedies, as guaranteed by Article 13, in respect of the violations of their rights under Article 3 of Protocol No. 1 to the Convention.   QUESTIONS TO THE PARTIES 1.     Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?   2.     Has there been a breach of the applicants’ right under Article 3 of Protocol No. 1 to the Convention to free elections?   In particular, have the applicants put forward arguable allegations that there were serious irregularities in the process of vote counting, recounting, tabulation and recording of the results in the precincts concerned?   If yes, did their complaints receive effective examination at the domestic level? Annex List of applicants   No. Application no. Lodged on Applicant Date of birth Place of residence Represented by Notes   41982/12   ROSSIYSKAYA OBYEDINENNAYA DEMOKRATICHESKAYA PARTIYA YABLOKO and Others v. Russia   20/06/2012 ( 1 ) ROSSIYSKAYA OBYEDINENNAYA DEMOKRATICHESKAYA PARTIYA YABLOKO, Voronezh   ( 2 ) The Voronezh branch of RODP Yabloko, Voronezh   ( 3 ) Timoshenko Vasiliy Alekseyevich 02/11/1958 Kalach, Voronezh region   ( 4 ) Krapivnik Vyacheslav Semenovich 01/01/1949 Kalach, Voronezh Region   Ilya Vladimirovich SIVOLDAYEV, Moscow Challenging the results in 18 PECs of the Kalachevskiy District, Voronezh Region: nos. 16/01, 16/02, 16/06, 16/07, 16/08, 16/11, 16/12, 16/13, 16/14, 16/20, 16/21, 16/29, 16/33, 16/34, 16/39, 16/42, 16/43, 16/44.   6599/14 ROSSIYSKAYA OBYEDINENNAYA DEMOKRATICHESKAYA PARTIYA YABLOKO v. Russia 23/12/2013 ROSSIYSKAYA OBYEDINENNAYA DEMOKRATICHESKAYA PARTIYA YABLOKO, Moscow   Mr Ilya Vladimirovich SIVOLDAYEV, Moscow Challenging the results in 14 PECs of the Semilukskiy District of the Voronezh Region: nos. 35/13, 35/16, 35/18, 35/21, 35/22, 35/24, 35/25, 35/27, 35/28, 35/29, 35/33, 35/35, 35/36 and 35/50.