Removal of a party representative from the polling station without sufficient documentation. Violation of the freedom of expression
JUDGMENT
Timur Sharipov v. Russia 13.09.2022 (app. no. 15758/13)
SUMMARY
The applicant was an election observer, appointed by a political party, at a Moscow polling station in the 2011 parliamentary elections. During the proceedings he videotaped the election process and the counting of votes. The Electoral Commission (PEC) of the electoral division removed him by its decision on the grounds of his behavior during the video recording. He claimed that he was filming serious procedural violations by the members of the Electoral Commission. He appealed to the national courts for his removal but without success.
Relying on Article 10 (freedom of expression) of the ECHR and Article 3 of the First Additional Protocol (right to free elections), the applicant complained that his removal from the electoral division violated his impugned rights.
Given the fundamental importance of parliamentary elections in any democratic society, the Strasbourg Court held that the applicant had exercised his right to freedom of expression as a “public watchdog” in a democratic society and that his activities had a similar importance to that of the press. In addition, the ECtHR found that the decision of the Electoral Commission (PEC) did not contain sufficient reasons for the applicant’s misconduct. The national courts had not remedied the lack of factual evidence. In particular, it had not been proved in what way the applicant had obstructed the work of the PEC.
The ECtHR found a violation of freedom of expression (Article 10 of the ECHR) and awarded 2,000 euros for moral damage.
PROVISIONS
Article 10
Article 3 of the First Additional Protocol
PRINCIPAL FACTS
The applicant, Timur Rustambekovich Sharipov, is a Russian national who was born in 1982 and lives
in Moscow.
The case concerns Mr Sharipov’s removal from a polling station where he was working as an election
observer during the parliamentary elections of 2011. The decision to remove had been on the basis
of his conduct while filming in the polling station, and was later adjudged to have been well-founded
by the domestic courts.
He relies on Article 10 (freedom of expression) of the European Convention and Article 3 of Protocol
No. 1 (right to free elections).
THE DECISION OF THE COURT…
Article 10:
(a) Applicability – The applicant had gathered information by overseeing the election in his capacity as an election observer appointed by a political party to convey that information to the public. It had been an essential part of his duties which had served the important public interest in free and transparent elections. Given the fundamental importance of such elections in any democratic society and the essential role of political parties in the electoral process, the Court considered that the applicant had exercised his freedom of expression as a “public watchdog” in a democratic society and that Article 10 protection therefore applied to his activity, which was of similar importance to that of the press.
(b) Merits – There had been an interference through the applicant’s removal from the polling station, which had prevented him from carrying out his function as an election observer. The Court did not need to determine whether the interference had been prescribed by law, since, even assuming that it had pursued the legitimate aims of preventing disorder and protecting the rights of others, it had not been “necessary in a democratic society”, as shown below.
Given the importance of the applicant’s role as election observer in enhancing the democratic electoral process and promoting human rights protection, his status had conferred on him enhanced protection under Article 10, which was essential for the effective performance of his task of purveyor of information and public watchdog. That protection was not absolute, however, and could not exempt election observers from such “duties and responsibilities” as may follow from Article 10 § 2. The Court therefore had to examine whether the reasons adduced by the authorities had been “relevant and sufficient” to justify the applicant’s removal from the polling station:
– The PEC’s decision had not contained even basic details of the applicant’s misconduct. Although there were objective difficulties on account of the PEC drafting its decision on the spot, that could not exempt them from describing the factual circumstances of the decision taken. Such a description was required for maintaining a clear audit trail, which was an important guarantee against arbitrariness and a necessary precondition for the thorough examination of the case;
– The domestic courts had not made good the lack of factual details. In particular, it had not been shown in what way that applicant had obstructed the PEC’s work. They had also not assessed the degree to which the alleged misconduct had obstructed the process, whether any disruption had been sufficiently serious to justify an observer’s removal, or whether it would have been possible, for example, to simply bar the applicant from filming.
Accordingly, no “relevant and sufficient” reasons for the application of the impugned measures had been put forward by the authorities.
Conclusion: violation (six votes to one).
Article 41: EUR 2,000 in respect of non-pecuniary damage.
