Prohibition of voting in local elections for internally displaced persons in Ukraine! Violation for discrimination because their special situation was not taken into account!
JUDGMENT
Selygenenko and others v. Ukraine 21.10.2021 (app. no. 24919/16 and 28658/16)
SUMMARY
The applicants, who are all internally displaced persons who fled the conflict in Donetsk and the
Crimea, came to Kyiv in 2014-15. The case concerned the alleged discriminatory denial of a vote to
them in the Kyiv local elections in 2015 as, despite their IDP documents showing their place of
residence as being Kyiv, the authorities had held that they were still residents of their towns of
origin.
The Court found in particular that the authorities had failed to take into consideration the particular
situation of the applicants as IDPs and had discriminated against them in the enjoyment of their right
to vote in local elections.
PROVISION
Article 1 of the 12th Additional Protocol
PRINCIPAL FACTS
The applicants, Oleksandra Selygenenko, Anastasiya Martynovska, Darya Svyrydova and Yevgeniya
Terekhova, are Ukrainian nationals who were born in 1986, 1990, 1985 and 1948 respectively. They
live in Kyiv although they are originally from Sevastapol (first two applicants), Alupka (Ms Svyrydova)
and Donetsk (Ms Terekhova), in Ukraine.
After conflict broke out in Donetsk and the Crimea, the applicants moved to Kyiv and were certified
as as internally displaced persons (IDPs) there in 2014-15. Their national identity cards (паспорт
громадянина України) however continued to show them as residents of their towns of origin in
Donetsk and the Crimea.
They registered to vote before the Kyiv local elections of late 2015, but their application was denied.
Ms Terekhova complained to the Central Electoral Commission, which replied that a citizen’s place
of residence was that on his or her national identity card. When elections were again organised in
her hometown, she would be able to vote there.
The applicants went to court, with the first-instance courts holding that the right to vote in local
elections in Ukraine was conferred on citizens of Ukraine who “belonged” (належали) to their
respective local communities and who resided within the respective voting constituencies. That
place of residence was to be found on their national identity card. That decision was upheld by the
appellate courts. The appellate decision could not be appealed against.
Relying on Article 1 of Protocol No. 12 (general prohibition of discrimination), the applicants
complained of being deprived of the right to vote in local elections in Kyiv in a discriminatory
manner.
THE DECISION OF THE COURT…
The Court reiterated that Article 1 of Protocol No. 12 gave protection to “any right set forth by law”.
States had to give reasonable justification in a situation where one person was treated differently to
another, failing which a violation could be found.
It was not in dispute that the applicants had a legal right to vote and that they had been living
outside of their registered place of residence. The Supreme Court had pointed out that the national
identity card served as a means of determining, ultimately, whether someone belonged to a
community and thus could vote in the relevant constituency. Domestic law stated that an individual
could only vote in a place where they had their registered residence. IDPs were not treated
differently to anybody else.
Even though the applicants had not been treated differently to other citizens with regard to
residency, the Court found that they, as IDPs, had been in a clearly different situation to other
citizens: they could not simply go back to the place of residence elsewhere in Ukraine and vote. They
had been in Kyiv for over a year, paying local tax and so forth and therefore had an interest in the
outcome of the elections. Under the law at that time, the applicants had furthermore risked losing
their IDP status had they changed their place of residence.
Overall, the Court found that, by failing to take into consideration the particular situation of the
applicants, the authorities had discriminated against them in the enjoyment of their right to vote in
local elections. There had been a violation of Article 1 of Protocol No. 12 of the Convention.
Just satisfaction (Article 41)
The Court held that Ukraine was to pay the applicants 4,500 euros (EUR) each in respect of nonpecuniary damage.
