Arbitrary exclusion of a party 3 days before the parliamentary elections due to alleged use of undeclared foreign funds. Violation of the right to stand for elections

JUDGMENT

Political Party “Patria” and others v. Republic of Moldova 04.08.2020 ( app. no. 5113/15, 14963/15, 15910/15)

see here 

SUMMARY

Right to be elected and to ensure equal and fair conditions for all candidates in an election campaign.

Exclusion of a party three days before the parliamentary elections due to alleged use of undeclared foreign funds for its election campaign.

The Court considered that no evidence had been submitted in support of the party’s exclusion from the national elections, and that the applicant party had not received sufficient procedural guarantees against arbitrariness due to its failure to be informed promptly of a hearing by the competent authorities. Violation of the right to free elections (Article 3 of the First Additional Protocol to the ECHR).

PROVISION

Article 3 of the First Additional Protocol

PRINCIPAL FACTS

The applicants are a Moldovan political party, “Patria”, and 14 candidates on its electoral list, who
are all Moldovan nationals.

The case concerned the disqualification of the applicant party from participating in the 2014 general
elections on the grounds of financial irregularities.

On 27 November 2014, three days before the elections, the domestic courts accepted an application
by the Central Electoral Commission (“the CEC”) to disqualify the applicant party on the grounds
that, contrary to the provisions of the electoral law, it had used undeclared funds, including money
from abroad.

The CEC took this step following a letter received from the chief of the general police inspectorate
alleging that the applicant party had in its electoral campaign used more than eight million
Moldovan lei (MDL) of foreign origin belonging to Mr R. Usatîi, a well-known politician and
businessman and candidate number one on the applicant party’s list. Mr Usatîi had run all his
business from the Russian Federation, returning to Moldova in 2012 and attempting to create two
political parties, which the Ministry of Justice refused to register.

Another argument for disqualifying the applicant party, also accepted by the CEC and the courts, was
that the applicant party had allegedly spent over five million MDL of undeclared money on the
purchase of 11 cars in May 2014, as well as on fuel and mobile communications.

The courts did not address the applicant party’s arguments that the accusations were
unsubstantiated, that the cars had been purchased before Mr Usatîi had brought the eight million
MDL into Moldova and before the electoral campaign, and that all the fuel and mobile
communications had been paid for from the applicant party’s bank account. Nor did they examine
the argument that the CEC had only informed the applicant party 15 minutes in advance of the
hearing on its case on 26 November 2014, in breach of the CEC Rules, making it difficult for it to
prepare its defense.

Relying in particular on Article 3 of Protocol No. 1 (right to free elections), the applicants alleged that
cancelling Patria’s participation in the 2014 elections had been arbitrary and had had an ulterior
motive, namely to remove a competitor with high popular support.

THE DECISION OF THE COURT…

Article 3 of Protocol No. 1

The annulment of the party’s registration constituted an interference both with the rights of the party and of the individual applicants under Article 3 of Protocol No. 1. This interference was based on a foreseeable law and pursued the legitimate aim of observance of the rule of law and the protection of democracy’s proper functioning which implied the assurance of equal and fair conditions for all candidates in the electoral campaign and the protection of free expression of the opinion of the people in elections.

The decision to disqualify the applicant party had been based in the first place on the allegation that it had used for its campaign money of foreign origin belonging to the applicant, leader of the party, without any reserve. However, no evidence for this allegation had been presented by the police, and none had been requested by the Central Electoral Commission (“CEC”) nor by the domestic courts which had accepted this hypothesis, apparently, in the absence of any proof.

Another argument for disqualifying the applicant party, accepted by the CEC and the domestic courts, had been that it had spent undeclared money on the purchase of eleven cars in May 2014, as well as fuel and mobile communications. Again, no evidence had been presented to support these allegations by the police and none had been required by the CEC and domestic courts. Nevertheless, the applicant, leader of the party, had admitted during the proceedings that he had financed the purchase of eleven cars, but that purchase had taken place before the impugned foreign money had been brought into Moldova and before the electoral campaign had commenced, not to mention that it had happened before the creation of the applicant party.

Besides the lack of substantiation of the allegations against the applicant party, the applicant party had not been afforded sufficient procedural safeguards against arbitrariness. In particular, the CEC had informed the applicant party about its hearing only fifteen minutes in advance, instead of the minimum twelve hours required by the CEC rules thus taking the applicant party by surprise and leaving it unprepared for the hearing before the CEC. Moreover, the courts had disregarded all the pertinent arguments brought by the applicant party and had accepted without hesitation what appeared to be unsubstantiated accusations against it.

In sum, the applicant party’s disqualification from participating in the elections had not been based on sufficient and relevant evidence, the procedures of the electoral commission and the domestic courts had not afforded the applicant party sufficient guarantees against arbitrariness, and the domestic authorities’ decisions had lacked reasoning and had been thus arbitrary.

Conclusion: violation (unanimously).

Article 41: EUR 7,500 in respect of non-pecuniary damage for the applicant party; finding of a violation constituted sufficient just satisfaction in respect of non-pecuniary damage for the applicants other than the applicant party; claim for pecuniary damage dismissed.


ECHRCaseLaw

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