The case concerns the alleged breach of the applicant\u2019s passive electoral right under Article 3 of Protocol No. 1.<\/p>\n
FIFTH SECTION This judgment is final but it may be subject to editorial revision.<\/p>\n In the case of Kornatskyy v. Ukraine,<\/strong><\/p>\n The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:<\/p>\n Ivana Jeli\u0107, President, Having regard to:<\/p>\n the application (no.\u00a019854\/13) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) on 4 March 2013 by a Ukrainian national, Mr Arkadiy Oleksiyovych Kornatskyy, born in 1953 and living in Kyiv (\u201cthe applicant\u201d) who was represented by Mr S.I. Rokhmanov, a lawyer practising in Kyiv;<\/p>\n the decision to give notice of the application to the Ukrainian Government (\u201cthe Government\u201d), represented by their then Agent, Mr\u00a0Ivan Lishchyna;<\/p>\n the parties\u2019 observations;<\/p>\n Having deliberated in private on 7 April 2022,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n SUBJECT-MATTER OF THE CASE<\/strong><\/p>\n 1. The case concerns the alleged breach of the applicant\u2019s passive electoral right under Article 3 of Protocol No. 1.<\/p>\n 2. The applicant stood as a candidate for the main opposition party, \u201cBatkivshchyna\u201d, in the parliamentary elections of 28\u00a0October 2012 in single-seat electoral constituency no. 132 in Mykolayiv Region.<\/p>\n 3. According to the results established by the Constituency Election Commission (\u201cthe ConEC\u201d) on the basis of the original results sheets (referred to as \u201cprotocols\u201d) from the Precinct Election Commissions (\u201cthe\u00a0PECs\u201d), the applicant won the elections[1], whereas Mr T., the candidate for the government party, \u201cParty of Regions\u201d, arrived second[2]. Once the ConEC transmitted those results electronically to the Central Election Commission (\u201cthe CEC\u201d), they were published on the CEC website for information purposes early in the morning on 30\u00a0October 2012. However, later that day the CEC unexpectedly modified the results on its website, allegedly without any decision having been taken to that effect by the ConEC: while the number of votes for the applicant remained unchanged, those for Mr\u00a0T. increased to 29,910 at the expense of several candidates with a minor score[3]. As a result, Mr T. was indicated as the winner, with 232 votes ahead of the applicant.<\/p>\n 4. The above-mentioned changes on the CEC website were noted in the observation mission report of the Office for Democratic Institutions and Human Rights of the Organisation for Security and Co-operation in Europe (\u201cthe OSCE\/ODIHR\u201d) published in January 2013.<\/p>\n 5. In the results tabulation protocol drawn up shortly thereafter, the ConEC allegedly relied on the modified results published by the CEC instead of those in the original PECs\u2019 protocols. Four of the ConEC members[4] wrote a dissenting opinion in that regard.<\/p>\n 6. Following Mr P.\u2019s administrative claim challenging the ConEC\u2019s protocol on the grounds of some alleged isolated irregularities in four polling stations, on 1 November 2012 the Mykolayiv Circuit Administrative Court (\u201cthe Mykolayiv Court\u201d) instructed the ConEC to provide it with the originals or duly certified duplicates of all the PECs\u2019 protocols.<\/p>\n 7. Under Section 91 of the Parliamentary Elections Act (as worded at the material time), each PEC drew up its protocol on voting results in a number of originals exceeding the number of the PEC members by four: the first and the second originals were to be transferred to the ConEC, the third one was kept with the PEC secretary, the fourth one was publicly displayed at the PEC premises, whereas the remaining originals were distributed among the PEC members. All the originals had equal legal validity. Candidates and their representatives, as well as official observers present during the count, were entitled to a duly certified duplicate of the protocol. All the protocols were drawn up on pre-printed blanks, each of which had its unique serial number.<\/p>\n 8. The ConEC decided that it would be appropriate to provide duplicates rather than originals to the Mykolayiv Court. Accordingly, a duplicate of the \u201cfirst original\u201d of each PEC\u2019s protocol (see paragraph 7 above) was prepared. The accuracy of duplicates was certified by the chairman\u2019s signature and the ConEC stamp. However, during the night of 1 to 2 November 2012, the State Bailiffs Service, assisted by the heavily numbered special\u00a0police unit, withheld the first and the second originals of all the PECs\u2019 protocols from the ConEC with a view to delivering them to the Mykolayiv Court.<\/p>\n 9. The applicant alleged that the duration of the transportation was inexplicably long \u2013 four hours for 170 km. As\u00a0reported by the Mykolayiv Court\u2019s administrative office, the protocols arrived in a damaged packaging and \u201cwere in disorder\u201d. According to a representative of the \u201cBatkivshchyna\u201d party, involved in the proceedings as a third party, after the delivery of the PECs\u2019 protocols to the court, the blanks\u2019 serial numbers in thirty-four of them no longer corresponded to those in the \u201cfirst originals\u201d as recorded, in particular, by the ConEC chairman in the duplicates produced on 1\u00a0November 2012 (see paragraph 7 above). The voting results were allegedly modified in those protocols with a view to inflating Mr\u00a0T.\u2019s score.<\/p>\n 10. Although the Mykolayiv Court attached the received protocols as evidence, it did not mention them in its decision of 3 November 2012 rejecting Mr P.\u2019s claim as unsubstantiated. On 4 November 2012 it also rejected the applicant\u2019s claim in respect of the alleged falsifications at the tabulation stage, having held that it was the CEC\u2019s competence to deal with that matter.<\/p>\n 11. On 5 November 2012 the CEC found it impossible to establish the election results in constituency no.\u00a0132. Its reasoning was limited to a broad reference to \u201cnumerous statements from participants of the electoral process about the impossibility to accurately establish the voting results\u201d. The CEC applied to the Parliament for putting in place the necessary modalities for organising partial repeat elections.<\/p>\n 12. The applicant brought an administrative claim against the CEC submitting that he should have been declared the winner of the election. He complained, notably, that the ConEC\u2019s protocol had not accurately reflected the voting results, that thirty-four PECs\u2019 protocols had subsequently been falsified, and that the CEC had had no grounds for invalidating the election results in his constituency in spite of having conclusive evidence of his victory. According to him, that was proved by a significant number of the original PECs\u2019 protocols in the possession of the PECs\u2019 members, duly certified duplicates of the PECs\u2019 protocols in the official observers\u2019 possession, as well as the additional duplicates of \u201cthe first original\u201d of all the PECs\u2019 protocols certified by the ConEC chairman on 1\u00a0November 2012 (see paragraph 8 above).<\/p>\n 13. On 9 and 12 November 2012 the Kyiv Administrative Court of Appeal and the Higher Administrative Court, respectively, found against the applicant. They held that the CEC\u2019s decision was related to numerous complaints received by it rather than to any issues with the ConEC\u2019s protocol.<\/p>\n THE COURT\u2019S ASSESSMENT<\/strong><\/p>\n 14. The applicant complained under Article 3 of Protocol No. 1 that his right to stand as a candidate in free elections had been infringed on account of: the arbitrary review by the ConEC of the initial results, according to which he had won; the subsequent falsification of the PECs\u2019 protocols in order to legitimise the above-mentioned review; the arbitrary invalidation of the election results in his constituency; and the authorities\u2019\u00a0failure to effectively address his complaints concerning those\u00a0irregularities.<\/p>\n 15. The Government observed that the applicant had run as a candidate in the partial repeat parliamentary elections of 15 December 2013, which he had lost. Referring to the applicant\u2019s failure to inform the Court thereof, the Government submitted that he had abused the right of application. They also noted that the invalidation of the election results by the CEC had been an adequate response to the applicant\u2019s allegations of falsifications.<\/p>\n 16. The applicant submitted that the invalidation of the election results in his constituency had been arbitrary and that he should have been declared the winner. In so far as the Government\u2019s reference to the partial repeat parliamentary elections was concerned, the applicant argued that it was of no relevance for his application.<\/p>\n 17. Given that the applicant\u2019s omission to inform the Court about his participation in the partial repeat parliamentary elections does not concern \u201cthe very core of the case\u201d and in the absence of any indication of the applicant\u2019s intention to mislead the Court, the Government\u2019s objection must be dismissed (compare Beg S.p.a. v. Italy, no. 5312\/11, \u00a7\u00a7\u00a074-81, 20\u00a0May 2021). The application being neither manifestly ill\u2011founded within the meaning of Article 35 \u00a7 3 (a) of the Convention nor inadmissible on any other grounds, the Court declares it admissible.<\/p>\n 18. The general principles of relevance can be found in Davydov and Others v.\u00a0Russia (no. 75947\/11, \u00a7\u00a7 271-77 and 283-88, 30\u00a0May 2017) and Mugemangango v.\u00a0Belgium [GC], no. 310\/15, \u00a7\u00a7 67-73, 10 July 2020). The Court has held, in particular, that a mere mistake or irregularity in the electoral process would not,\u00a0per se, signify unfairness of the elections, if the general principles of equality, transparency, impartiality and independence in the organisation and management of elections were complied with (see\u00a0Davydov and Others, cited above, \u00a7\u00a0287). The concept of free elections would be put at risk only if there was evidence of procedural breaches that would be capable of thwarting the free expression of the opinion of the people, and where such complaints received no effective examination at the domestic level (ibid., \u00a7\u00a7\u00a0283-88).<\/p>\n 19. There is no doubt that the irregularities alleged by the applicant in the present case were serious enough to thwart the free expression of the people in the choice of the legislature. The domestic authorities, however, dismissed his allegations in a formalistic manner, without any meaningful attempt to establish what had really happened or to examine any primary evidence submitted by the applicant in support of his statement that he had been the rightful winner of the elections (see paragraphs 9-10 above). Discounting all the votes cast in the entire electoral constituency on vaguely formulated grounds only added to the applicant\u2019s concerns rather than provided any response to them.<\/p>\n 20. The Court therefore concludes that the applicant was arbitrary prevented from exercising effectively his right to stand for election (see Hajili v.\u00a0Azerbaijan, no. 6984\/06, \u00a7\u00a7 49-58, 10 January 2012).<\/p>\n 21. There has accordingly been a\u00a0violation of Article 3 of Protocol No.\u00a01.<\/p>\n APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/strong><\/p>\n 22. The applicant claimed 10,000 euros (EUR) in respect of pecuniary damage. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1. Declares the application admissible;<\/p>\n 2. Holds that there has been a violation of Article 3 of Protocol No. 1;<\/p>\n 3. Rejects the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 20 September 2022, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Martina Keller \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 Ivana Jeli\u0107 __________<\/p>\n [1] With 29,678\u00a0votes.
\nCASE OF KORNATSKYY v. UKRAINE<\/strong>
\n(Application no. 19854\/13)<\/em>
\nJUDGMENT
\nSTRASBOURG
\n20 September 2022<\/p>\n
\nGanna Yudkivska,
\nArnfinn B\u00e5rdsen, judges,
\nand Martina Keller, Deputy Section Registrar,<\/p>\n
\nDeputy Registrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 President<\/p>\n
\n[2] With 25,511 votes.
\n[3] Including Mr P., a self-nominated candidate, whose initial result of 1.5% had dropped to 1.4%.
\n[4] Out of eighteen.<\/p>\n