Ždanoka v. Latvia (No. 2) [2024]

Background:

The applicant in the case, a Latvian politician named Ms Tatjana Ždanoka, joined the Communist Party of Latvia (CPL) in 1971 and remained a member of it even after Latvia declared its independence in 1990. After the CPL was linked to a failed coup attempt in 1991, Latvia declared its independence and proclaimed the CPL unlawful. The party dissolved consequently. Nevertheless, the applicant continued to hold office until 1993, when she was appointed to the Riga City Council.

According to a 1999 court ruling, upheld by the Supreme Court of Latvia, her post-1991 engagement with the CPL disqualified her from public office. While she was elected to the European Parliament in 2004 and continued to serve until 2024, she was expelled from the City Council and was not permitted to contest any national elections. In 2006, the applicant objected to this disqualification, claiming that this decision had violated her right to free elections under Article 3 of Protocol No.1 of the European Convention on Human Rights (ECHR), which Latvia ratified in 1997.

In the 2018 Latvian parliamentary elections, Ždanoka tried challenging the decision of the Central Electoral Commission again, and in August of the same year, another hearing was held to determine whether the applicant’s present-day actions would still be considered dangerous for national security and preservation of democratic order of the Republic of Latvia. The applicant declined to express her opinion on the matter, and the Commission took her off the list of candidates. In 2019 she, once again, filed an application with the European Court of Human Rights (ECtHR), and the final judgement was delivered in 2024.

Legal Issues:

Ždanoka invoked her right to free election under Article 3 of Protocol No. 1 of the ECHR, which is essential to a functioning democracy. Nevertheless, this right is not absolute and under specific circumstances the member states can contravene it. Under the ECHR, interference is permitted where lawful, foreseeable, and proportionate to a legitimate aim:

Regarding the legality and foreseeability of restrictions, they must be grounded in the domestic law in a clear, foreseeable, and accessible way, meaning that individuals have to be able to understand what the law states. The restriction cannot be vague or arbitrary, to provide sufficient precision to enable citizens to guide their conduct accordingly; this is one point the ECtHR was called to consider in the present case. Furthermore, the state can limit certain rights pursuant to legitimate aims. However, these restrictions have to be proportionate to the aims pursued. It can be regarded as disproportionate if it goes beyond what is necessary. Finally, adequate procedural safeguards must be instituted to enable individuals whose ECHR rights are subject to restrictions to access legal channels to challenge any such restrictions imposed. The ECtHR then looks closely at whether the person affected was afforded sufficient procedural protections or safeguards, such as the right to access evidence against them or to have their case reviewed by an independent, impartial body.

Parties:

Ždanoka represented by Mr W.S.B. Bowring instituted proceedings in the ECtHR against the State of Latvia represented by Agent, Ms K. Līce. The judges at the 2024 instance sitting as a Chamber are listed as follows: Mattias Guyomar, Carlo Ranzoni, Mārtiņš Mits, María Elósegui, Kateřina Šimáčková, Mykola Gnatovskyy, Stéphane Pisani, and Victor Soloveytchik.

Proceedings:

The applicant’s submission begins with the claim of lack of foreseeability, arguing that there were no clear grounds for the legal decision of disqualification provided and that the interpretation of the law was unfair. She also raised the issue of failure to review the restriction, accusing the Latvian government of disregarding the guidance issued by the ECHR to review the limitations imposed on her. Ms Ždanoka then emphasised the disproportionality of her disqualification, particularly considering the passage of time and Latvia’s current stability in their democratic beliefs. Furthermore, she claimed that her recently expressed political beliefs were protected under the principle of freedom of speech, which meant that no crime had been committed. Finally, the applicant questioned the validity and fairness of the process, especially since it relied on classified material that she was not able to fully access.

On the other hand, the government’s submission firstly focused on the lawfulness of the applicant’s disqualification, highlighting that it was, indeed, lawful, particularly in the light of the Constitutional Court’s interpretation of section 5(6) of the Parliamentary Elections Act. They argued that the restrictions imposed were justified by legitimate aims, such as protecting Latvia’s independence, democratic order, and national security. This was particularly relevant in the current geopolitical environment, including concerns over Russia. The government emphasised the principle of proportionality by referencing the Grand Chamber’s 2006 judgement, which found no violation of the applicant’s rights under Article 3 of Protocol No. 1 and called attention to the fact that both Parliament and the Constitutional Court had reviewed the restrictions to ensure their continued relevance. In addition, the government questioned Ms Ždanoka’s political activities, particularly her support for Russia’s aggression in Georgia in 2008 and the annexation of Crimea. Lastly, they asserted that the applicant was given sufficient procedural safeguards throughout the process, including the opportunity to review classified information. They also noted that neither the applicant nor her lawyer put forward any objections regarding the fairness of the procedure at the time.

Judgment:

The ECHR applied general principles in order to assess the case and applicant’s submissions. Firstly, the duty of loyalty of MPs implies that even though Members of the European Parliament have full rights to advocate for differing political programs, they must not harm democracy, as per Tănase v. Moldova [2010]. This includes respecting the constitution of the Member State, and its laws. Secondly, electoral rights and procedural safeguards. Article 3 of Protocol No. 1 obliges the states to conduct a fair and impartial system for handling electoral complaints in the most effective way (according to Mugemangango, Selahattin Demirtaş v. Turkey [2020]).

The Court then reviewed the removal of the applicant’s name from the list of candidates, which allegedly interfered with her electoral rights, and applied the previously mentioned principles. The reasons for this interference being lawful are such:

Firstly, the applicant questioned the requirement of lawfulness and argued that the Constitutional Court’s interpretation was unforeseeable, shifting focus from her political activity in 1991 to her current one, making it prejudicial. She also argued that the law was not accessible to her, hence, she was not able to assess how she was going to be affected by it. Both arguments were discarded, and the ECHR concluded that the interference on behalf of the domestic court was lawful and foreseeable. Thus, the requirement of lawfulness was met.

The requirement of a legitimate aim had been satisfied, as the Grand Chamber determined that the contested restriction, “pursued aims compatible with the principle of the rule of law and the general objectives of the Convention”. This included the protection of the State’s independence, democratic order, and national security. In this instance, the Court saw no basis to reach a different conclusion.

Lastly, the criterion of proportionality was also satisfied. The ECtHR found that the applicant’s recently expressed political views do, in fact, threaten the democratic order, especially in Latvia’s post-Soviet context. Additionally, the geopolitical tensions regarding Russia’s actions against other countries justified continued caution. Since Latvia had been regularly reviewing the restriction imposed, narrowing it down to very specific individuals who were still seen as a threat, it had been granted a wide margin of appreciation, without overstepping it. Lastly, since the restriction was consistent with similar laws in Latvia, and the applicant had many opportunities to challenge the decision of the court, no major issues were found in the judicial process or judgements. The criterion of proportionality has been, too, satisfied.

The Court reached a unanimous conclusion that the Latvian authorities did not, in fact, overstep their margin of appreciation, hence the applicant’s disqualification from the list of the parliamentary election candidates was not inconsistent with Article 3 of Protocol No. 1. The impugned restriction on behalf of the Latvian authorities has been foreseeable and thus lawful, based on the principles of protection of national independence, security, and democratic order.

Commentary:

As yet, no major legal implications have flown from this case due to the recent nature of the judgment. As the ECtHR concurred with the Latvian government, no major changes in Latvia’s domestic law or procedure are noticeable either. Overall, it might seem at first glance that a person’s views tend to change over time, and the fact that she is still not allowed to run for office after more than 30 years may appear somewhat unreasonable. Nevertheless, many additional details about the politician’s life give reason for greater concern upon closer inspection. The applicant is seen as one of the most pro-Russian politicians in the European Parliament. Even though her political views ultimately do not hold any crucial influence, taking into account the described geopolitical situation in Latvia and the strong division of opinions of the citizens of the state, the Latvian authorities did not overstep their margin of appreciation. Their actions were imposed onto the politicians as a way to protect and preserve the national security and democratic order based on the present-day conditions.

Written by Elena Kirakozova