Exclusion of a candidate from the right to be elected because he had dual citizenship! Violation of the right to free elections
JUDGMENT
Kara–Murza v. Russia 04.10.2022 (app. no. 2513/14)
SUMMARY
Electoral legislation and the necessity of personalizing electoral rights.
The applicant has dual citizenship, he is a British and Russian national. He lives in Russia and ran in the regional elections. He was excluded from the right to be elected by a court decision due to his dual citizenship. He filed an appeal for violation of the right to free elections.
The Court accepted at the outset that although the intervention was aimed at ensuring compliance with electoral law, it was disproportionate and reiterated the standing consensus among States Parties that the possession of more than one nationality should not be a reason for ineligibility of a candidate to participate as a member of parliament.
In this case, it found that the exclusion of the applicant was done without personalizing any particular information such as, for example, that he was a danger to public order and security or that he was previously convictions. Therefore, the ECtHR decided, by majority. that because the applicant’s exclusion was based only on dual nationality, without individualizing specific reasons, Article 3 of the First Protocol was violated.
PROVISON
Article 3 of the First Additional Protocol
PRINCIPAL FACTS
The applicant, Vladimir Vladimirovich Kara-Murza, is a British and Russian national who was born in
1981 and currently lives in Moscow. He has held Russian nationality since birth and was granted
British nationality following his moving to the United Kingdom with his mother at the age of 15. He is
an opposition politician and journalist.
The case concerns the annulment of the applicant’s registration as a candidate in regional elections
in 2013 because he has dual nationality.
Relying on Article 3 of Protocol No. 1 (right to free elections), the applicant alleges in particular that
the domestic courts simply banned him from standing for election because he has dual nationality,
without making an individualised assessment of his situation, and that the ban affected a large
number of Russian nationals, given that many had acquired nationalities of new countries formed
after the dissolution of the Soviet Union.
THE DECISION OF THE COURT…
Article 3 of Protocol No.1
The annulment of the applicant’s registration amounted to an interference with his right to stand for election which met the requirement of lawfulness. Even though the Court might have been prepared to accept that the interference had been aimed at protecting the constitutional order and ensuring compliance with electoral legislation, it was not necessary to decide this question, because in any event the interference had been disproportionate to those alleged aims.
The Court reasserted, as it found in the case of Tănase v. Moldova [GC], that there was a consensus among Contracting States that the holding of more than one nationality should not be a ground for ineligibility for an individual to sit as a member of parliament. However, different approaches might be justified where special historical or political considerations existed which rendered a more restrictive practice necessary. In the present case no such considerations had been put forward by the Government explaining the necessity of the impugned measure.
The ban prohibiting the applicant to stand for election was a particularly restrictive measure, notwithstanding the wide margin of appreciation available to the national authorities in this area. It was formulated in absolute terms and provided for no exceptions for any multiple nationalities or particular circumstances. In that connection, the Court was not satisfied that the interference with the applicant’s right had been justified by the absence of close ties between the United Kingdom and Russia because the ban applied to candidates with any foreign State citizenship or even to those holding a residence permit issued by any foreign state. The ban also affected a large number of Russian nationals.
There was a need to “individualise” the restriction of electoral rights and to take account of the actual conduct of individuals rather than a perceived threat posed by a group of persons. Such individualisation might be achieved by measures taken in the particular circumstances of a case based on specific information, such as sanctions for illegal conduct or conduct which threatened national interests and making access to confidential documents subject to security clearance. This approach was to be preferred to a blanket assumption that all multiple nationals posed a threat to national security and independence. However, the impugned ban had been applied to the applicant automatically.
Conclusion: violation (six votes to one).
Article 41: no claim made in respect of damage.
