CEDH · PRESS;GENERAL;ENG — 19 octobre 2004

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s6B505E72 { margin:0pt; padding-left:0pt } .sD711EC90 { margin-left:31.52pt; padding-left:7.48pt; font-family:serif } .sAEB48DD { margin-top:0pt; margin-bottom:0pt; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s331C3E28 { margin-top:0pt; margin-bottom:6pt } .s48A8B0C6 { margin-top:6pt; margin-bottom:6pt } .s47E2B0C6 { margin-top:6pt; margin-bottom:0pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s9F8EB0C0 { width:18.63pt; display:inline-block } .s9E97F54A { width:85.05pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS   512 19.10.2004   Press release issued by the Registrar   CHAMBER JUDGMENT MELNYCHENKO v. UKRAINE   The European Court of Human Rights has today notified in writing a judgment [1] in the case of Melnychenko v. Ukraine (application no. 17707/02).   The Court held: by six votes to one, that there had been a violation of Article 3 of Protocol No. 1 (right to free elections) to the European Convention on Human Rights because the applicant was arbitrarily denied registration as a parliamentary candidate, and, unanimously, that it was not necessary to examine separately the applicant’s complaint under Article 14 (prohibition of discrimination) of the Convention.   Under Article 41 (just satisfaction), the Court awarded the applicant 5,000   euros for non-pecuniary damage. (The judgment is available only in English.)     1.     Principal facts   The applicant, Mykola Ivanovych Melnychenko, is a Ukrainian national, who was born in 1966 and is currently living in the United States of America, where he has refugee status.   Mr Melnychenko was in charge of guarding the office of the Ukrainian President, Leonid Kuchma. In the course of his work he allegedly made tape recordings of the President's personal conversations relating to his possible involvement in the disappearance of Georgiy Gongadze, editor-in-chief of the “Ukrayinska Pravda” internet journal and leading opposition journalist known for his criticism of Mr Kuchma.   On 26 November 2000 the applicant left Ukraine, fearing political persecution following the public disclosure of the audiotapes. At the time, he held an internal passport which gave an address in Kiev as his “ propiska” (his registered address for administrative purposes).   The applicant applied for political asylum in the United States of America and, on 27 April 2001 was recognised as a refugee. He was granted the right to stay in the USA indefinitely. On 12 January 2002 he was nominated as a Socialist Party parliamentary candidate. A requirement for candidacy was residence in the Ukraine for five years. In his application for registration as a candidate Mr Melnychenk gave his propiska address as his place of residence for the previous five years. Registration was rejected, however, on the grounds that Mr Melnychenko had submitted false information about his place of residence and that he had not been resident in the Ukraine over the full five years.   2.     Procedure and composition of the Court   The application was lodged on 23 April 2002 and declared partly admissible on 4 November 2003.   Judgment was given by a Chamber of seven judges, composed as follows:   Jean-Paul Costa (French), President , András Baka (Hungarian), Loukis Loucaides (Cypriot), Corneliu Bîrsan (Romanian), Karel Jungwiert (Czech), Volodymyr Butkevych (Ukrainian), Mindia Ugrekhelidze (Georgian), judges , and also Laurence Early , Deputy Section Registrar .     3.     Summary of the judgment   Complaints The applicant maintained that, in rejecting his application for registration as a parliamentary candidate, the domestic authorities had acted arbitrarily, because Ukrainian electoral law did not specify whether the requirement of five years “residence” in Ukraine meant legal or habitual residence. He relied on Article 3 of Protocol   No. 1 to the Convention.   He also complained of discrimination, prohibited by Article 14, in that another nominee who had not lived in Ukraine for a continuous period of five years had been registered as a parliamentary candidate.   Decision of the Court   Article 3 of Protocol No. 1 The Court considered that neither the relevant Ukrainian legislation nor practice contained a direct eligibility requirement of “habitual” or “continuous” residence in the territory of Ukraine for parliamentary candidates. Neither was a distinction made in the law between “legal” and “habitual” residence. It was clear that the applicant's “habitual residence” was partly outside Ukraine during the relevant period, as he had left the country on 26 November 2000, against his will, in fear of persecution, and had taken up residence as a refugee in the United States. However, the propiska in his internal passport remained unchanged. The Court observed that the only proof of legal registration of residence in Ukraine at the relevant time was in an ordinary citizen's internal passport, which did not always correspond to the person's habitual place of residence. The Court further noted that the propiska was an integral and fundamental aspect of the Ukrainian administrative system and was widely used for a number of official purposes (such as, registration of the citizen's current place of residence, conscription, voting and various property issues).   The Court found particularly significant that, in the declaration of means submitted for registration, parliamentary candidates were required to give “their propiska or temporary propiska (registration) as contained in the ordinary citizen's passport”. The Court considered therefore that the applicant was only under an obligation to provide information concerning his propiska in that document.   The Court found understandable the applicant’s hasty flight from Ukraine and that his intention to leave permanently was left undefined.   The applicant could rely on his fear of persecution, given his employment, the suspicious events surrounding the disappearance and murder of the journalist Georgiy Gongadze, and the foreseeable audiotape scandal. Moreover, he was rapidly recognised as a legitimate asylum seeker in the USA. The Court found that the applicant was in a difficult position: if he had stayed in Ukraine his personal safety or physical integrity might have been seriously endangered, rendering the exercise of any political rights impossible, whereas, in leaving the country, he was also prevented from exercising such rights.   The Court therefore found that the decision to refuse the applicant's candidacy on the ground that he had submitted untrue information about his place of residence and that he was not resident in the Ukraine over the full five years, although he retained a valid registered place of legal residence in Ukraine (as denoted in his propiska ), was in breach of Article 3 of Protocol No. 1.   Article 14 The Court considered that it was not necessary to examine separately the applicant’s complaint under Article   14.     Judge Loucaides expressed a dissenting opinion, which is annexed to the judgment.     ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Press contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54) Fax: +00 33 (0)3 88 41 27 91     The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court’s judgments. [1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.