CEDH · CASELAW;CLIN;ENG — 8 juillet 2008

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Georgia - 9103/04 Judgment 8.7.2008 [Section II] Article 3 of Protocol No. 1 Free expression of opinion of people Stand for election Introduction of an active system of voter registration shortly before the election in a “post-revolutionary” political context, aimed at remedying the problem of chaotic electoral rolls : no violation No evidence of abuse of power or electoral fraud adduced to back up a complaint of a pro-presidential majority in electoral commissions at all levels: no violation Illegitimate and unjustified exclusion of two electoral districts from the country-wide vote tally: violation   Facts : In November 2003 a general parliamentary election was held in Georgia. Its outcome was to be decided according to two voting systems, majority voting and proportional representation. The Georgian Labour Party obtained 12.04% of the votes cast under proportional representation, which corresponded to   20 of the 150 seats in Parliament reserved for candidates from party lists. Demonstrators protesting that the elections had been rigged and calling for the resignation of Georgian President Eduard Shevardnadze disrupted the newly-elected Parliament’s first session (the so-called “Rose Revolution”). President Shevardnadze resigned and the Supreme Court of Georgia annulled the proportional representation results of the general election. It was subsequently decided to hold a presidential election in   January 2004 and a re-run of the parliamentary election was ultimately scheduled for 28   March 2004. The Central Electoral Commission (CEC) adopted a decree requiring electoral precincts to publish preliminary lists of voters and obliging voters to go there to check that their names were on the lists and make a request for any correction if necessary. Following various complaints about voting irregularities in the election on 28   March, the CEC annulled the results in the Kobuleti and Khulo electoral districts in the Autonomous Republic of Ajaria and set 18   April 2004 as the date for a new vote. On that day, however, the polling stations in those two districts failed to open due to tensions between central and local authorities. The same day, the CEC tallied the votes and announced the results of the 28   March election; the applicant party had received 6.01% of the vote, which was not enough to clear the 7% threshold needed to obtain seats in Parliament. The applicant party appealed unsuccessfully to the Supreme Court and the Constitutional Court. Law : Article 3 of Protocol No. 1 – New system of voter registration : The proper management of electoral rolls was a pre-condition for a free and fair ballot. The effectiveness of the right to stand for election was undoubtedly contingent upon the fair exercise of the right to vote. Thus, if an electoral roll omitted to mention some voters and/or allowed the multi-registration of others, such mismanagement would not only undermine voters’ interests but could also diminish the candidates’ chances to stand equally and fairly for election. Therefore, a sufficiently close causal link existed between the applicant party’s right to stand in the repeat parliamentary election and its complaint about the voter registration system. As acknowledged by the OSCE/ODHIR Election Observation Mission Report, the introduction of a new, “active” system of voter registration had allowed the CEC to eliminate many errors, to consolidate handwritten voter lists into a single computerised database and to enfranchise an additional 145,000 voters. Even though the new system had several shortcomings, in the Court’s view, it was more important that the authorities had spared no effort to make the repeat election fairer. Given that the authorities had had the challenge of remedying the problem of chaotic electoral rolls within very tight deadlines (between 25   November 2003 and 28   March 2004), in a “post-revolutionary” political situation, it would have been an excessive and impracticable burden to expect an ideal solution from them. Consequently, the unexpected change in the rules on voter registration one month before the repeat election did not give rise to criticism under Article   3 of Protocol No.   1. As to whether or not the new system, which partly shifted responsibility for the accuracy of electoral rolls from the authorities onto the voters, was compatible with the Contracting States’ positive obligation to ensure the free expression of the opinion of the people, the Georgian State, which was not alone in opting for such a system, had to be granted a wide margin of appreciation in that regard. In sum, the active system of voter registration could not in itself amount to a breach of the applicant party’s right to stand for election. In the particular circumstances of the instant case, that system had proved not to be the cause of the problem of ballot fraud but a reasonable attempt to remedy it, whilst not providing a perfect solution. Conclusion : no violation (unanimously). Composition of the electoral commissions : The raison d’être of an electoral commission was to ensure the effective administration of free and fair polls in an impartial manner, which would be impossible to achieve if that commission became another forum for political struggle between election candidates. A proportion of seven members out of fifteen-member electoral commissions, including the Chairpersons who had the casting votes and were appointed by the President of Georgia and his party, was particularly high in comparison to other legal orders in Europe. Pro-presidential forces thus had a relative majority vis‑à-vis the representatives of other political parties in electoral commissions at every level. This composition lacked sufficient checks and balances against the President’s power and the commissions could hardly enjoy independence from outside political pressure. However, in the absence of any proof of particular acts of abuse of power or electoral fraud committed within the electoral commissions to the applicant party’s detriment, no breach of the latter’s right to stand for election could be established. The Court could not find a violation of Article 3 of Protocol No. 1 solely on the basis of the allegation, no matter how plausible, that the system created possibilities for electoral fraud. Conclusion : no violation (five votes to two). Disenfranchisement of the Khulo and Kobuleti voters : The Khulo and Kobuleti voters’ inability to participate in the repeat parliamentary election held under the proportional system had to be questioned under the principle of universal suffrage. The applicant party was entitled under Article   3 of Protocol   No.   1 to rely on the electorate of Khulo and Kobuleti, irrespective of its chances of obtaining a majority of their votes. The disenfranchisement of voters, especially if arbitrary, could impede the effective exercise by an election candidate of its right to stand for election. The Court did not call into question the veracity of the Government’s submission that irregularities had taken place at polling stations in Khulo and Kobuleti. Rather, the source of the Court’s concern was that by annulling the election results in those two districts, the CEC had not only apparently exceeded its authority but had also acted without a proper legal basis or the guarantees of due process. Neither the Government, nor the CEC, had adduced relevant and sufficient reasons to explain why, without examining the electoral material from each precinct and hearing witnesses, the CEC had come to the conclusion that all of the results in the two districts merited annulment. In the Court’s view, the CEC’s decision to disregard the investigative measures envisaged by the Electoral Code – the opening of electoral packages and re-counting ballots – and to annul the election results solely in view of allegations of voting irregularities, smacked of arbitrariness. Furthermore, after the failure to open polling stations on 18   April 2004, the CEC had taken a hasty decision to terminate the country-wide election, although the Electoral Code provided for a period of eighteen days for the finalisation of the election results. It would have been more compatible with the fundamental principles of the rule of law for the CEC to cancel the scheduled polls in Khulo and Kobuleti in the form of a clear-cut, formal and reasoned decision. Taking into account the positive obligations of the State and the importance of the principle of universal suffrage, the Court could not accept the legitimate interest of having a fresh Parliament elected “at a reasonable interval” as a sufficient justification for the respondent State’s inability or unwillingness to take further reasonable measures for the purpose of enfranchising 60,000 Ajarian voters (who represented about 2.5% of the registered voters in the country) after 18   April 2004. Conclusion : violation (unanimously). Article 14 in conjunction with Article 3 of Protocol No. 1 – In the light of all the material in its possession, the Court did not find any evidence which might arguably have suggested that either the challenged electoral mechanisms – the system for voter registration and the composition of electoral commissions – or the events which took place in Khulo and Kobuleti, had been exclusively aimed at the applicant party and had not affected the other candidates standing for that election. Conclusion : no violation (unanimously). Article 41 – The finding of a violation constituted in itself sufficient just satisfaction for the non‑pecuniary damage sustained.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes