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28.03.2006   The European Court of Human Rightsthe case of Ždanoka v. Latvia

 

The European Court of Human Rights

the case of Ždanoka v. Latvia (application no. 58278/00)

 

 

The application of Tatjana Ždanoka  to the European Court of Human Rights concerned the fact that she had been ruled ineligible to stand for election to the Latvian Parliament and to municipal elections on account of her former membership of a political party which had been declared unconstitutional, and her activities within it.

 

 

The applicant was represented by Mr Bill Bowring, professor of International Law and Human Rights, London Metropolitan University. The application was lodged with the Court on 20 January 2000 and declared partly admissible on 6 March 2003. In a Chamber judgement of 17 June 2004 the Court held by five votes to two, that there had been a violation of Article 3 of Protocol No. 1 (right to free elections) to the European Convention on Human Rights, and of Article 11 (freedom of assembly and association).

 

The Government of Latvia (represented by their Agent, Ms I. Reine, of the Foreign Ministry) requested that the case be referred to the Grand Chamber, and on 10 November 2004 the panel of the Grand Chamber accepted that request. In a Grand Chamber judgement of 16 March 2006 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) and that it was not necessary to examine separately the applicant’s complaints under Article 11.

 

Commenting on the Grand Chamber judgement, Mr Bowring said: "it was not only a thoroughly political and politicised decision, but also completely illogical... My colleagues too are really shocked by the very poor legal reasoning".

 

 

Principal facts

 

Tatjana Ždanoka was born in Riga into a Russian-speaking family. In 1971 she joined the Communist Party of Latvia (hereafter “the CPL”) while studying at the Mathematics faculty at the University of Latvia in Riga. From 1972 to 1990 she worked as a lecturer at the University of Latvia. Throughout this period she was an ordinary member of the CPL.

 

The first independent elections under the Soviet regime took place on the territory of Latvia in March 1990. Ms Ždanoka was elected to the Supreme Council of the Latvian SSR as a representative for the Pļavnieki constituency in Riga. She subsequently joined the CPL’s local branch. In April 1990 this branch selected her to attend the CPL’s 25th Congress, where she was elected to the party’s Central Committee for Supervision and Audit.

 

On 4 May 1990 the Supreme Council adopted a Declaration on the Restoration of the Independence of the Republic of Latvia, which declared Latvia’s incorporation into the USSR unlawful and void and restored legal force to the fundamental provisions of the Latvian Constitution (Satversme) of 1922. However, paragraph 5 of the Declaration introduced a transition period, aimed at a gradual restoration of genuine State sovereignty as each institutional tie with the USSR was severed. During that transition period, various provisions of the Constitution of the Latvian SSR would remain in force. The above-mentioned Declaration was adopted by 139 out of a total of 201 Supreme Council members, with one abstention. 57 members of the “Equal Rights” parliamentary bloc, including Ms Ždanoka, did not vote.

 

On 21 August 1991, the Latvian Supreme Council enacted a constitutional law on the state status of the Republic of Latvia and proclaimed the country’s immediate and absolute independence. Paragraph 5 of the Declaration of 4 May 1990, concerning the transition period, was repealed.

 

By a decision of 23 August 1991 the Supreme Council declared the CPL unconstitutional and ordered the party’s dissolution on 10 September 1991.  In the meantime, the Supreme Council set up a parliamentary committee to investigate the involvement of members of the “Equal Rights” bloc in the events of January-August 1991. On the basis of that committee’s final report, the Supreme Council revoked fifteen members’ right to sit in parliament on 9 July 1992; Ms Ždanoka was not one of those concerned.

 

In February 1993 Ms Ždanoka became chairperson of the “Movement for Social Justice and Equal Rights in Latvia”, which later became a political party, “Equal rights”.

 

On June 1993 parliamentary elections were held in accordance with the restored Constitution of 1922. Only those residents who had possessed Latvian nationality before 1940, and their descendants, were eligible to participate in these elections. As a result of the Latvian authorities’ refusal to include Ms Ždanoka on the residents’ register as a Latvian citizen, she was unable to take part in those elections, in the following parliamentary elections held in 1995, or in the municipal elections of 1994. Following an appeal lodged by Ms Ždanoka, the courts recognised her as holding Latvian nationality by right in January 1996, on the ground of her being a descendant of persons who had possessed Latvian nationality before 1940. These persons, i.e. her grand grandmother and grand grandfather, have been thrown to Riga ghetto in 1941 and then murdered by local nazi together with thousands of Latvian Jews.

 

In 1997 Mrs Ždanoka was elected to Riga City Council 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 1995 Parliamentary Elections Act making persons who had “actively participated” 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 Ms Ždanoka had participated in the CPL’s activities after 13 January 1991. Consequently, Ms Ždanoka became ineligible and lost her seat on the City Council on December 1999.

 

Ms Ždanoka has lodged her application to the European Court of Human Rights on 20 January 2000. She alleged a violation of Article 3 of Protocol No. 1 to the Convention.

 

While feeling that the forthcoming Court decision will be favourable to Ms Ždanoka, legislator have decided not to declare persons who had “actively participated” in the CPL’s activities after 13 January 1991 ineligible for the European Parliament Elections to be held on June 2004.

 

Mrs Ždanoka led the list of the electoral alliance called “For Human Rights in a United Latvia” in the European elections of 12 June 2004, in which she was elected to the European Parliament.

 

 

Summary of the Grand Chamber judgment

 

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.

 

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 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.

 

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

 

 

Summary of the dissenting opinion of Judge Zupančič

 

I do not believe for a moment that the Latvian authorities would have prevented Mrs Ždanoka from standing in national elections in Latvia were it only for her Communist past. Neither is the true reason her present unwillingness to recant and repudiate her Communist views. The domestic Latvian point of view concerns no more (and no less) than Mrs Ždanoka’s future political dangerousness. This has to do with the demographic fact that thirty per cent of the existing Latvian population speaks Russian. Presumably, this puts in jeopardy the pro-autonomy rule of the autochthonous majority in whose name the separation of Latvia (and the other two Baltic states) from the Soviet Union was carried out in the first place.

 

Now that we have reached the stage where we can, without legalistic smokescreens, call a spade a spade, we can finally address the real question. The large Russian-speaking minority in Latvia is a demographic by-product of the long-term illegal occupation by the Soviet Union. Does the historical fact that the occupation was illegal – and it is probably not an accident that the majority opinion emphasizes the early illegality of the Molotov-Ribbentrop pact – imply that the residence of the Russian-speaking population in Latvia is itself illegal?

 

Yet the majority opinion, like the domestic decisions concerning Mrs Ždanoka, rightly treats her situation as representative not merely of her private predicament. Obviously, the right to stand for election – for this reason considered in a separate Protocol – affects the individual (Mrs Ždanoka) and the collectivity (the Russian-speaking minority) he or she has the ambition to represent politically. The majority opinion, however, implicitly amalgamates the two aspects. The consequence of this mingling of issues is explicit endorsement of the denial of the right to stand for election. The reason for this denial was that Mrs Ždanoka had a real chance of being elected. So much for democracy.

 

The dilemma is not specific to the Baltic States. In fact the whole of European history, not to speak of its horrific colonial cruelties, is replete with the recurrent “movement of nations” – usually by means of wars and violent takeovers. Needless to say, in terms of international law – in so far as its criteria applied at all – most of these takeovers were utterly “illegal”. It is for the historians to assess the end results of this mixing of populations, determining who in any particular case were the victors and who the vanquished.

 

This intolerance is the European scourge. Because European history is replete with instances of aggression deriving from regressive nationalism, the European Court of Human Rights must take an unambiguous and unshakable moral stand on this predicament. Inter-ethnic tolerance is a categorical imperative of modernity. From intolerance derive too many violations of human dignity and human rights.

 

 

Summary of the dissenting opinion of Judge Rozakis

 

Coming now to the findings of the majority which are pertinent to the concrete case before us, my main observation concerns the nature of a parliamentarian’s functions in a democratic society. Indeed, the role of a parliamentarian is totally different from all the other roles played by those involved in public matters, including the members of the executive when they exercise their administrative function. In a representative democracy parliamentarians represent, by definition, the opinions and the positions of their electorate – that is, those who have voted for them. There are at least two safeguards which secure the direct accountability of parliamentarians in faithfully expressing their electorate’s broad wishes: first, the safety valve of the democratic election (candidates are elected on the basis of their personality, ideas and opinions as revealed to the public before the elections), and, second, the safety valve of post-electoral scrutiny: if an elected representative does not stand up to the expectations of his or her electorate, he or she will probably lose their confidence, and, in the end, his or her seat in Parliament. For these reasons prohibitions on eligibility to stand for election should be very exceptional and very carefully circumscribed.

 

The applicant was not allowed to take part in the elections, not because of the imminent threat that she posed to the democratic governance of Latvia at the time when the 1995 Act came into force, but because of her past attitude, and mainly her participation in the 1991 events.

 

But even if we accept – and this is my second observation – that in the circumstances of Latvia’s transition to democracy and its efforts to be disentangled from its recent past, such a harsh measure could have been justified during the first difficult years of adapting to the new regime and for the sake of democratic consolidation, the restrictions have nevertheless not been abolished to date, and this despite the fact that in the meantime Latvia has become a member State of NATO and, more importantly, of the European Union. We are now eleven years away from the date of the Act prohibiting the applicant from standing for election, fifteen years from the events which led to the belated promulgation of the Act, five years from the Constitutional Court’s decision, and almost two years from the election of the applicant to the European Parliament.

 

 

Summary of the joint dissenting opinion of Judges Mijovič and Gyulumyan

 

In the case of Ždanoka v. Latvia a Latvian politician was disqualified from standing for election on account of her former membership of the Communist Party of Latvia (CPL), which during the time of the USSR was a regional branch of the Communist Party of the Soviet Union.

 

Although we are aware that this case concerns very sensitive circumstances, we consider that it was not the Court’s task to take sides in the historical and political controversies, but rather to examine the legality of the applicant’s ineligibility in the context of punitive measures – in other words, to assess whether the lack of a fixed duration for the applicant’s ineligibility was appropriate in view of the (temporary) nature of punitive measures.

 

We have no difficulties in accepting the legitimacy of a punitive measure, since we cannot exclude the possibility that the restriction in issue could have been justified and proportionate during the first few years after the restoration of Latvia’s independence. On the other hand, we strongly believe that such restrictive measures should be temporary in order to be proportionate. In this case the restriction imposed on the applicant seems permanent in that it is of indefinite duration and will continue until legislation putting an end to it is adopted.

 

Furthermore, the applicant had never been convicted of a criminal offence, she was not one of the fifteen members of Parliament who were removed from their seats and there was no evidence that she herself had committed any acts aimed at undermining the new regime.

 

Having regard to all the above, we strongly believe that the permanent restrictions on standing for election to the Latvian Parliament imposed on the applicant on account of her former membership of the Latvian Communist Party violated her right to free elections.

 

 

 

 

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