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ŽDANOKA v. Latvia


Wednesday 1 June 2005.

The Grand Chamber hearing


Representatives of the parties

Government:    Inga Reine, Agent

                           Emils Plaksins, Adviser;


Applicant:         William Bowring, Counsel.


Extracts of the Submissions of the Applicant

The subject-matter of the Applicant’s case has not changed. She asks the Grand Chamber to recall that she is to this date still excluded by Article 5(6) the Saeima Election Law of the Republic of Latvia, of 25 May 1995, from participating as a candidate in national elections.

The Applicant will refer later in these submissions to the First Section’s evaluation of the “striking rigidity” of the impugned legislation and the task set for the Latvian courts, which was a major factor in the finding of disproportionality. Despite the passage of a long period of time, almost fifteen years since Latvian independence, the Government show no signs of modifying their intransigent position with regard to the Applicant.

Thus, there is no indication that the Government intends to amend the legislation so as to remove this restriction, which appears to have been specifically designed to exclude the Applicant. Indeed, she respectfully reminds the Grand Chamber that when, in October 2004, the opposition parties (including hers) put forward proposals to remove the identical restrictions for city and district councils, these were rejected by the majority of votes in Parliament, including those of the ruling parties.

It is beyond doubt that the Government parties had every intention of imposing a similar restriction to prevent the Applicant from standing as a candidate for the European Parliament. Their proposals which would have excluded her from standing for the European Parliament were rejected, but by two votes only.

The Applicant has all along maintained, on the basis of her own experience, that when the people of Latvia are given the chance to vote for her candidature, a substantial proportion do so. On Saturday 12 June 2004, shortly before the decision of the First Chamber, the Applicant was elected as one of 9 MEPs from Latvia. Standing for the party she leads, “For Human Rights in a United Latvia”, she received the third highest vote, 10.7% of those voting – participation was 41.23%.

The Applicant therefore appears before you today as someone who is proud to have been elected as a Member of the European Parliament in order to represent her large constituency.

She contends that in this case she is not so much complaining of a violation of her own rights, but of a violation of the rights of the electors of Latvia. She respectfully urges the Grand Chamber to place at the forefront of their considerations the fundamental principle underlying article 3 of Protocol 1, “the free expression of the opinion of the people in the choice of the legislature”

Her case is that removal of the restrictions is long overdue. Indeed, the Government’s rigid adherence to these restrictions has, with respect, become an absurdity, which is not only disproportionate but can no longer serve any legitimate purpose, even if such a purpose ever existed.

As stated in her Memorial, the Applicant supports the findings and reasoning of the First Section of the Court, which in its decision of 17 June 2004 found that there had in her case been a violation of article 3 of Protocol 1 to the Convention, as well as a violation of article 11, with no separate consideration to be given to article 10. She asks the Grand Chamber to uphold that decision.

The Applicant’s remaining submissions to your excellencies this morning are divided into three parts.

First, the Applicant refutes the Government’s arguments as to the margin of appreciation in cases such as hers.

Second, the Applicant submits that in the particular circumstances of her own conduct, the Grand Chamber has even more reason to reject the contentions of the Government, and to uphold the decision of the First Section.

Third, the Applicant seeks to identify and define the key issue at stake in her application, that is, the issue of proportionality.


I        The margin of appreciation


The Applicant contends that the Government are in reality seeking to argue that in the particular case of the rights protected by article 3 of Protocol 1, and given the particular recent history of Latvia, they should have the benefit of an extraordinarily wide margin of appreciation. In effect, the Government wish to assert that the European Court of Human Rights has no business interfering with their political decisions regarding the Applicant’s candidature in elections in Latvia.

The Applicant does not agree. In her respectful submission, the starting point for the Court should be the following passage from paragraph 41 of the decision in Hirst v UK (No.2) (decision of  30 March 2004):

“The right to vote for those elected representatives must also be acknowledged as being the indispensable foundation of a democratic system. Any devaluation or weakening of that right threatens to undermine that system and it should not be lightly or casually removed.”

That is, the European elections demonstrated that the Applicant has the confidence and support of a significant section of the electorate of Latvia, and the effect of the Government’s continuing restriction in respect of her participation has the primary effect not of excluding her but of disenfranchising her supporters.

This principle should be combined with the Court’s remarks at paragraph 35 of the decision in Podkolzina v Latvia (decision of 9 April 2002) to the effect that:

“… article 3 must be interpreted in the light of the principle of the effectiveness of rights which applies to the whole Convention system: this article must be interpreted in such a way as to make its stipulations not theoretical or illusory but practical and effective.”

Therefore, as the Applicant submitted in her Memorial (paragraph 32), the Government are in effect seeking to argue that the margin of appreciation enjoyed by a Contracting State with regard to article 3 of Protocol 1 is not to be limited in the way recognised by the First Section; or indeed is to be so wide as to render the rights set out in it “theoretical or illusory”.


II    The Applicant’s conduct


The Applicant respectfully adopts the reasoning of the First Section, which, in paragraph 98 of the decision, underlined the importance of the principle that there can be no democracy without pluralism. A person or organisation can promote a change of legislation or even of legal or constitutional structures of the State on condition first, that the methods used are legal and democratic, and second, that the changes proposed are compatible with fundamental democratic principles.

The Applicant submits that this has been precisely the nature of her contribution to Latvian politics, to her promotion of human rights and the effective use of available human rights mechanisms, and her collaboration with bodies such as the FIDH and the Council of Europe. There are grounds for concluding that she has in many ways contributed to the prevention of conflict in Latvia.

The First Section held that taking into account all the ideas defended by the Applicant on the subject of the Russophone minority in Latvia and the linguistic legislation, it could not find even a trace of anti-democratism or incompatibility with the fundamental values of the Convention on her part.

The Government do not seek to contest this finding. They could not do so.

Furthermore, the First Section reached the same conclusion with regard to the means used by the Applicant in order to attain her political objectives. In particular, she has never been accused of having undertaken clandestine activity for the Communist party of Latvia after its dissolution, and still less has she been accused of having tried to restore this party in its old totalitarian form.

The Government do not seek to contradict this finding. They could not do so.

Again, as to the Applicant’s various activities which the Government denounce, the First Section recalled that these were not prohibited by Latvian law, and that the Applicant had never been investigated let alone convicted for any violation of the law.

This finding is unchallenged by the Government. There would be no grounds for such a challenge.

Finally, the First Section noted that the Government had not identified a single concrete action of the Applicant capable of putting the Latvian State, its national security or its democratic order in danger.

Despite the voluminous pleadings and documents placed before the Court, the Government have not and could not find the evidence on which to upset this crucial finding.


III       Proportionality


The Applicant asks the Grand Chamber to recall that, as stated in Aziz v Cyprus at paragraph 25, the Court “must determine in the last resort whether the requirements of article 3 of Protocol 1 have been complied with; it has to satisfy itself that the conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate.”

The First Section noted in paragraph 93 that the Law of 1995, as interpreted by the Constitutional Court, gives the courts only a very limited power to assess the real dangerousness of a candidate for the actual democratic regime.

The First Section continued that “... In the eyes of the Court, such rigidity is striking, insofar as it strips from the domestic jurisdiction the competence to say whether the ineligibility in question remains proportionate with the passage of time.” The First Section was therefore obliged itself to assess whether the behaviour of the Applicant more than 10 years on could still be a sufficient reason to exclude her from parliamentary elections.

The First Section properly took into consideration first, the fact that the Applicant, in contrast to some other individuals, had never been punished by the criminal law for her activities in the CPL, and second, that the special commission of the Supreme Council had not included the Applicant with the 15 deputies who were stripped of their mandates as a result of its enquiries. The Court was able to deduce that no sufficiently serious offence had ever been demonstrated with regard to the Applicant.

This is not challenged by the Government. There could be no grounds for challenge.

Furthermore, the First Section was able to conclude, in paragraph 96, that the individual behaviour of the Applicant in 1991 did not reach the level of seriousness to justify her ineligibility to the present day.

The Applicant submits that the First Section was entirely correct in describing the Government’s position as one of “striking rigidity”, maintained now for more than 10 years. The Grand Chamber is invited to take the view that this is the very essence of disproportionality, and that the law and practice of Latvia with regard to the Applicant has been disproportionate in a way which amounts to a clear violation of article 3 of Protocol 1.

The Applicant submits, in conclusion, as follows.

First, it would appear that her real crime in the eyes of the Government is to be a political leader of the Russophone population of Latvia. No other relevant concrete allegation is made or proven against her.

Second, it was always – and remains - a matter of deep concern that a law should be enacted in 1995, with relevance to events in 1991, with the apparent express purpose of excluding the Applicant from the legislature.

Third, the fact that the Government shows no sign of ameliorating the law impugned in this case despite the passage of time, and despite the results of the European elections, shows that the Government is committed to this day to a manifest violation of a fundamental principle of the Convention, and also to an absurdity.


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