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16.03.2006   Press release on Grand Chamber judgement in case ŽDANOKA v. LATVIA

16.3.2006

 



Press release issued by the Registrar



 

GRAND CHAMBER JUDGMENT ŽDANOKA v.
LATVIA

 

The European Court of Human Rights has today delivered at a public hearing its Grand Chamber judgment[1] in the case of Ždanoka v. Latvia (application no. 58278/00).

 

The Court held:

·          by thirteen votes to four, that there had been no violation of Article 3 of Protocol No. 1 (right to free elections) to the European Convention on Human Rights;

·          by thirteen votes to four, that it was not necessary to examine separately the applicant’s complaints under Article 11 (freedom of assembly and association) of the Convention;

·          unanimously, that it was not necessary to examine separately the applicant’s complaints under Article 10 (freedom of expression).

 

(The judgment is available in English and French.)

 

1.  Principal facts

 

The applicant, Tatjana Ždanoka, is a 55-year-old Latvian national who lives in Riga. She is currently a member of the European Parliament.

 

Her application concerned the fact that she had been ruled ineligible to stand for election in Latvia on account of her former membership of a political party which had been declared unconstitutional, and her activities within it.

 

In 1971 Mrs Ždanoka became a member of the Communist party of Latvia (“the CPL”), a regional branch of the Communist Party of the Soviet Union (“the CPSU”). In 1990 she was elected a member of the Supreme Council (Augstākā Padome) of the Soviet Socialist Republic of Latvia. After the declaration of Latvia’s independence in May 1990, the CPL, which had taken part in two attempted coups d’état, was declared unconstitutional and was dissolved by the Supreme Council on 10 September 1991.

 

In 1993 the applicant became the president of the “Movement for social justice and equal rights in Latvia” (Kustība par sociālo taisnīgumu un līdztiesību Latvijā), which later turned itself into a political party called Līdztiesība (Equal rights). She was elected to Riga City Council in 1997 and attempted to stand as a candidate in the 1998 parliamentary elections. However, the Central Electoral Commission ruled that her candidature was incompatible with the electoral legislation making persons who had “actively participated” (darbojušās) in the CPL’s activities after 13 January 1991 ineligible. Not wishing to cause the entire list to run the risk of being refused registration, the applicant withdrew her candidature.

 

On an application by the Procurator General’s office the Riga Regional Court gave a judgment in which it held that the applicant had participated in the CPL’s activities after 13 January 1991. On 15 December 1999 the judgment was upheld on appeal by the Civil Affairs Division of the Supreme Court. As it was directly enforceable, the applicant became ineligible and lost her seat on the City Council. She then appealed on points of law to the Cassation Division of the Supreme Court, which declared her appeal inadmissible.

 

The applicant attempted to stand as a candidate in the 2002 parliamentary elections; with two other parties, her party formed an electoral alliance called the PCTVL (Par cilvēka tiesībām vienotā Latvijā – “For Human Rights in a United Latvia”). However, referring to the 1999 judgment of the Civil Affairs Division, the Central Electoral Commission removed her name from the list of candidates.

 

Mrs Ždanoka led the list of the PCTVL electoral alliance in the European elections of June 2004, in which she was elected to the European Parliament.

 

2.  Procedure and composition of the Court

 

The application was lodged with the Court on 20 January 2000 and declared partly admissible on 6 March 2003. A public hearing in the case was held in the Human Rights Building, Strasbourg, on 15 May 2003.

 

In a Chamber judgment of 17 June 2004 (see press release no. 303 of 2004), 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 Government requested that the case be referred to the Grand Chamber under Article 43 (referral to the Grand Chamber) and on 10 November 2004 the panel of the Grand Chamber accepted that request. A Grand Chamber hearing was held in public in the Human Rights Building, Strasbourg, on 1 June 2005.

 

Judgment was given by the Grand Chamber of 17 judges, composed as follows:

 

Luzius Wildhaber (Swiss), President,
Christos Rozakis (Greek),
Jean-Paul Costa (French),
Nicolas Bratza (British),
Boštjan M. Zupančič (Slovenian),
Loukis Loucaides (Cypriot),
Riza Türmen (Turkish)
Josep Casadevall (Andorran),
András Baka (Hungarian),
Rait Maruste (Estonian),
Javier Borrego Borrego (Spanish),
Elisabet Fura-Sandström (Swedish),
Alvina Gyulumyan (Armenian),
Ljiljana Mijović (citizen of Bosnia and Herzegovina),
Dean Spielmann (Luxemburger),
Renate Jaeger (German), judges,
Jautrite Briede (Latvian), ad hoc judge,

and also Lawrence Early, Deputy Grand Chamber Registrar.

 

3.  Summary of the judgment[2]

 

Complaints

 

The applicant complained of an infringement of her right to stand as a candidate in elections as a result of the ruling that she was ineligible. She alleged a violation of Article 3 of Protocol No. 1 to the Convention since, pursuant to section 5 (6) of the 1995 Parliamentary Elections Act, she was precluded from standing for election to the Latvian Parliament on the ground that she had “actively participated” in the activities of the CPSU (CPL) after 13 January 1991.

 

The applicant further submitted that her ineligibility as regards both the Latvian Parliament and district councils had been contrary to Articles 10 and 11 of the Convention.

 

Decision of the Court

 

Article 3 of Protocol No. 1

The Court considered that the impugned electoral legislation was not primarily intended to punish those who had been active within the CPL, but rather to protect the integrity of the democratic process by excluding from participation in the work of a democratic legislature those individuals who had taken an active and leading role in a party which was directly linked to the attempted violent overthrow of the newly-established democratic regime.

 

In view of the critical events for the survival of democracy in Latvia which occurred after 13 January 1991, it was reasonable for the Latvian legislature to presume that the leading figures of the CPL had held an anti-democratic stance, unless by their actions they had rebutted this presumption, for example by actively dissociating themselves from the CPL at the material time. However, the applicant had not made any statement distancing herself from the CPSU/CPL at the material time, or indeed at any time thereafter.

 

In the Court’s opinion, the Latvian authorities’ view that even today the applicant’s former position in the CPL, coupled with her stance during the events of 1991, still warranted her exclusion from standing as a candidate to the national Parliament, could be considered to be in line with the requirements of Article 3 of Protocol No. 1.

 

The Court considered that section 5 § 6 of the 1995 Act, providing for the ineligibility of individuals who had actively participated in the CPL’s activities between 13 January 1991 and that party’s dissolution, as applied to the applicant, had not been found to be arbitrary or disproportionate. Furthermore, Mrs Ždanoka’s current or recent conduct was not a material consideration, given that the disputed measure related only to her political stance during the crucial period of Latvia’s struggle for “democracy through independence” in 1991.

 

While such a measure could scarcely be considered acceptable in the context of one political system, for example in a country which had an established framework of democratic institutions going back many decades or centuries, it could nonetheless be considered acceptable in Latvia, in view of the historico-political context which had led to its adoption and given the threat to the new democratic order posed by the resurgence of ideas which, if allowed to gain ground, might be likely to lead to the restoration of a totalitarian regime. The Court took account of the context of the instant case. In particular, it noted that Latvia, together with the other Baltic States, had lost its independence in 1940 in the aftermath of the partition of central and eastern Europe agreed by Hitler’s Germany and Stalin’s Soviet Union by way of the secret protocol to the Molotov-Ribbentrop Pact, an agreement contrary to the generally recognised principles of international law.

 

The Court therefore accepted in the present case that the national authorities of Latvia, both legislative and judicial, were better placed to assess the difficulties faced in establishing and safeguarding the democratic order. Those authorities were therefore to be left sufficient latitude to assess the needs of their society in building confidence in the new democratic institutions, including the national Parliament, and to answer the question whether the impugned measure was still needed for these purposes, provided that the Court had found nothing arbitrary or disproportionate in such an assessment. In this respect, the Court also attached weight to the fact that the Latvian Parliament had periodically reviewed section 5(6) of the 1995 Act, most recently in 2004. In addition, the Court noted that the Constitutional Court had carefully examined, in its decision of 30 August 2000, the historical and political circumstances which had given rise to the enactment of the law in Latvia, finding the restriction to be neither arbitrary nor disproportionate at that point in time, i.e. nine years after the events in question.

 

It was to be noted that the Constitutional Court had observed in its decision of 30 August 2000 that the Latvian Parliament was to establish a time-limit on the restriction. In the light of this warning, even if Latvia could not currently be considered to have overstepped its wide margin of appreciation under Article 3 of Protocol No. 1, it was nevertheless the case that the Latvian Parliament had a duty to keep the statutory restriction under constant review, with a view to bringing it to an early end. Such a conclusion seemed all the more justified in view of the greater stability which Latvia now enjoyed, inter alia, by reason of its full European integration. Hence, failure by the Latvian legislature to take active steps in this connection could result in a different finding by the Court.

 

The Court concluded that there had been no violation of Article 3 of Protocol No. 1.

 

Articles 10 and 11

In the circumstances of the case, the Court considered that no separate examination of the applicant’s complaints under Article 11 was necessary. Furthermore, the Court could find no argument that would require a separate examination of the applicant’s complaints concerning her inability to stand for election from the point of view of Article 10.

 

Judge Rozakis and Judge Zupančič expressed dissenting opinions. Judges Gyulumyan and Mijović expressed a joint dissenting opinion. Judge Wildhaber expressed a partly dissenting opinion and Judges Spielmann and Jaeger jointly expressed a partly dissenting opinion. The texts are annexed to the judgment.

 

  

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