Selygenenko and Others v. Ukraine (European Court of Human Rights)

Information Note on the Court’s case-law 255
October 2021

Selygenenko and Others v. Ukraine – 24919/16 and 28658/16

Judgment 21.10.2021 [Section V]

Article 1 of Protocol No. 12
General prohibition of discrimination

Discriminatory refusal to allow internally displaced persons to vote in local elections at their place of actual residence: violation

Facts – The four applicants had lived respectively in Crimea (application no. 24919/16) and Donetsk (application no. 28658/16) and had had their registered places of residence there. After Crimea came under de facto Russian jurisdiction and the conflict in Eastern Ukraine started, the applicants moved to Kyiv on various dates in 2014 and 2015 prior to the local elections held in October-November 2015. They registered there as internally displaced persons (IDPs) and were issued with IDP certificates that indicated Kyiv as the place of their actual residence. All of them maintained that their respective registered places of residence continued to be located in Crimea and Donetsk, as was indicated in their “internal passports” (identity documents for use in Ukraine). They all lodged applications to be included in the lists of voters who would participate in the local elections, but their applications were dismissed on the grounds that their respective registered places of residence were not in Kyiv. The applicants unsuccessfully challenged the domestic decisions.

Law – Article 1 of Protocol No. 12: The applicants had a general right set forth by the Constitution – namely the right to vote – and they met the general conditions for the exercise of that right. They had been treated in the same way as any other person residing outside their registered place of residence, in so far as the right to vote in local elections was concerned. The domestic law and practice that applied at the material time clearly provided that persons who did not have a registered place of residence and, hence an electoral address, in the constituency where they actually lived were not allowed to participate in local elections, regardless of any other factors or circumstances.

The participation of IDPs in local elections had been guaranteed by the IDP Act but subject to the proviso that they changed the place of voting without changing the electoral address. This was not fully in line with the relevant legislation on local elections which consistently provided that the mentioned procedure of changing a voting address did not apply to such elections. In practice, therefore, IDPs were not treated in this respect any differently from any other group of people who lived outside their registered places of residence and could not participate in local elections at the places of their actual residence. The question was therefore whether the applicants, as IDPs, had been in a significantly different situation and therefore required treatment that would put them, de facto, on an equal footing with other citizens of Ukraine in respect of the enjoyment of their right to vote in local elections, as guaranteed by the national law. The Court replied in the affirmative finding as follows:

The Court took note of the applicants’ arguments as to why they had to be allowed to keep their registered places of residence and the fact that they would have risked losing their IDP status if they had changed their registered residential addresses. Further, the applicants had been forced to leave their registered places of residence where no local elections had been held, those territories being outside of the Government’s control. Therefore, despite the provisions of the IDP Act, in practice they had not been entitled to participate in local elections without changing their electoral addresses which had been linked exclusively to their registered places of residence at the material time. Thus, the applicants, as well as any other IDPs, had been in a significantly different situation from citizens living at their registered places as well as other mobile population groups who could come back to their registered places of residence and vote in local elections there.

As to the measures taken in order to avoid discriminating against them, despite the enactment of the IDP Act aiming to guarantee, inter alia, the right of IDPs to participate in local elections, that Act had not been supported at the material time by further amendments to the relevant local election legislation, which required that the citizens should “belong” to a local community in order to be able to participate in local elections. As a result, the intended guarantee did not materialise. In these circumstances, the requirement of “belonging” to a local community, which was undoubtedly legitimate in principle, could only be satisfied via the registration of one’s place of residence as being located within the local community in question. There was no exception to this rule and no alternative means existed of proving that the person in question was sufficiently integrated into the local community and “belonged” to it. Therefore, the adoption of the IDP Act did not in itself put the applicants on an equal footing as others in the enjoyment of the right to vote in local elections.

As a result, even though the applicants had resided in Kyiv for about a year or more, had been payers of local taxes and consumers of local services and were thus concerned with the community’s day to day problems and had sufficient knowledge of them, they had had no possibility to participate in the local affairs of their new communities for the period of their enforced absence from their permanent homes. This had been despite the fact such participation had been deemed to constitute an important element of IDPs’ integration.

The amendments to the relevant legislation unlinking the electoral address from the registered place of residence upon a voter’s request and thus allowing IDPs to be included in the voters’ list for local elections, could not affect the above findings as they had taken place more than four years after the impugned events.

In sum, at the material time, by failing to take into consideration the applicants’ particular different situation, the authorities had discriminated against them in the enjoyment of their right to vote in local elections.

Conclusion: violation (unanimously)

Article 41: EUR 4,500 to each of the applicants in respect of non-pecuniary damage.

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