CEDH · CASELAW;CLIN;ENG — 22 mai 2007

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Georgia (dec.) - 9103/04 Decision 22.5.2007 [Section II] Article 3 of Protocol No. 1 Free expression of opinion of people Alleged misadministration of electoral rolls, presidential control over electoral commissions and finalisation of country-wide vote tally without elections having been held in two districts: admissible   Article 35 Article 35-3 Abuse of the right of petition Leader of applicant party apologises to the Court for having distorted information about the Strasbourg proceedings: Government's objection dismissed   Ratione personae Political party not actually affected by contested elections: inadmissible   In November 2003 regular parliamentary elections were held under both majority (single-mandate constituencies) and proportional systems. In the second of these voting systems, finalised by the vote tally of the Central Electoral Commission, the applicant party received 12% of the votes cast, which corresponded to 20 out of the 150   seats in Parliament reserved for candidates from party lists. The newly elected Parliament convened, but was ousted by the “Rose Revolution” forces at its first session. Later on, the Supreme Court annulled the vote tally as far as the election results under the proportional system were concerned. The results in single-seat constituencies remained in force. Repeat elections were scheduled for March 2004. According to the applicant party, on the eve of those elections, the newly elected President of Georgia declared in mass media that he would not allow its presence in Parliament. Following different complaints about irregularities, the Central Electoral Commission annulled the election results for the two electoral districts in the Autonomous Republic of Ajaria and ordered second repeat elections to be held there. On the election date in April 2004 polling stations in those two districts failed to open. On the same day, the Central Electoral Commission tallied the country-wide parliamentary election votes cast in March and formally confirmed that the applicant party had received 6% of the vote. This was not enough to clear the 7%   threshold and thus to obtain seats in Parliament. The applicant party's appeal to the Supreme Court was dismissed. In proceedings before the Constitutional Court the chairperson of the applicant party later challenged the election results as a private person, but his complaint was declared inadmissible. Before the European Court the applicant party complains inter alia about various violations of its right to stand for election and of discriminatory treatment during the repeat parliamentary elections in 2004. It alleges in essence that the election results were rigged in favour of the presidential and pro-presidential parties. In particular, the finalisation of the country-wide election results without second repeat elections actually having been held in two districts in the Autonomous Republic of Ajaria had been unlawful and had prevented the applicant party from clearing the legal threshold for obtaining seats in Parliament. The applicant party also complained about the presidential election of January 2004 and submitted similar arguments to those made in respect of the repeat parliamentary election.   The Government's objection of abuse of the right of petition : An application, even if it uses offensive language, may only be rejected as abusive if it was knowingly based on untrue facts. However, the persistent use of insulting or provocative language by an applicant may be considered an abuse of the right of individual petition. The Court shared the Government's view that some of the impugned public statements of the applicant party's leader were deliberately untrue statements of fact, apparently motivated by political considerations, and therefore could hardly amount to a legitimate exercise of the right to freedom of expression. Furthermore, two of his interviews in different media were vexing manifestations of irresponsibility and a frivolous attitude towards the Court, in general, and his party's application, in particular. Even though some of those observations had come close to contempt of court, assessed as a whole they had not surpassed the degree of tolerance. Moreover, after his letter of September 2006, in which the party leader made an apology and pledged to show due respect towards the Court, no other comparable statements are known to have been made. In these circumstances, the grounds which might have led to the rejection of the present application as an abuse of the right of individual petition were insufficient.   Inadmissible ( presidential elections of January 2004 ):Although Article   3 of Protocol No.   1 is concerned only with the “choice of the legislature”, the word “legislature” does not necessarily mean the national parliament; it has to be interpreted in the light of the constitutional structure of the State in question. The Court did not deem it necessary to decide in the present case whether or not the Georgian President constituted part of “the legislature”, as, in any event, the applicant party could not validly claim to be a victim under Article   34 of the Convention of the violations alleged with respect to the presidential election: as a party, it could not as such run for President; nor had its Chairperson or any other party member stood in those elections. Consequently, the applicant party was not actually affected by the contested electoral mechanisms and the results of those elections. Those complaints rather expressed concern on behalf of the electorate at large and constituted therefore a clear instance of actio popularis which is not provided for under the Convention system: incompatible ratione personae . Repeat parliamentary elections of March 2004 : admissible .   © 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