Here’s a breakdown of the European Court of Human Rights’ decision in the case of Tomenko v. Ukraine:
**1. Essence of the Decision:**
The European Court of Human Rights (ECtHR) ruled that Ukraine violated Article 3 of Protocol No. 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms (right to free elections). The case concerned the early termination of Mr. Tomenko’s mandate as a member of parliament (MP) after he withdrew from his political party’s faction. The Court found that the measure was not foreseeable, lacked a clear legal framework, and disproportionately interfered with the free expression of the people in choosing their legislature. The decision highlights the importance of protecting the passive electoral right of elected officials from abuse and ensuring a clear and predictable legal framework for any limitations on that right.
**2. Structure and Main Provisions:**
* **Introduction:** Briefly introduces the case, focusing on the applicant’s complaint regarding the early termination of his mandate as an MP.
* **Facts:** Details the applicant’s political background, his election to parliament, his withdrawal from the party faction due to disagreements, and the subsequent decision by the party to terminate his mandate. It also highlights the lack of consistent application of this rule to other MPs who had withdrawn from the same faction.
* **Relevant Legal Framework and Practice:** Outlines the relevant Ukrainian constitutional and legal provisions concerning the termination of an MP’s mandate, including amendments to the Constitution, the Status of MPs Act, and decisions of the Constitutional Court of Ukraine. It also references relevant documents from the Council of Europe, including resolutions from the Parliamentary Assembly (PACE) and opinions from the Venice Commission, which have consistently criticized the “imperative mandate” (the ability of political parties to terminate the mandate of MPs who leave their factions).
* **The Law:** This section contains the legal reasoning of the Court.
* **Alleged Violation of Article 3 of Protocol No. 1:** States the applicant’s complaint that the early termination of his mandate breached Articles 8 and 10 of the Convention, as well as Article 3 of Protocol No. 1, and Article 13 of the Convention.
* **Admissibility:** Addresses the admissibility of the application, including the applicant’s victim status, the State’s responsibility, and the exhaustion of domestic remedies. The Court rejects the Government’s objections regarding these issues.
* **Merits:** Examines the merits of the case, focusing on whether the interference with the applicant’s rights was lawful, pursued a legitimate aim, and was proportionate. The Court finds that the interference was unlawful because it was not foreseeable and lacked a clear legal framework. It also finds that the measure was disproportionate and thwarted the free expression of the people in the choice of the legislature.
* **Application of Article 41 of the Convention:** Discusses the application of Article 41 of the Convention, which provides for just satisfaction to the injured party. The Court dismisses the applicant’s claim for pecuniary damage but awards him EUR 3,000 in respect of non-pecuniary damage, plus any tax that may be chargeable. It also awards him EUR 500 in respect of costs and expenses, plus any tax that may be chargeable to the applicant.
* **Separate Opinion of Judge Serghides:** Judge Serghides dissented in part, arguing that the Court should have separately examined the complaints under Articles 8, 10, and 13 of the Convention, rather than absorbing them into the complaint under Article 3 of Protocol No. 1.
**3. Main Provisions for Use:**
* **Unlawfulness of the Interference:** The Court found that the early termination of the applicant’s mandate was unlawful because it was not foreseeable. This is a key point for assessing similar cases where an elected official’s mandate is terminated.
* **Disproportionality:** The Court emphasized that the measure was disproportionate and thwarted the free expression of the people in the choice of the legislature. This highlights the importance of balancing party discipline with the rights of elected officials to represent their constituents.
* **Importance of a Clear Legal Framework:** The Court stressed the need for a clear and predictable legal framework for any limitations on the passive electoral right of elected officials. This is a crucial consideration for states when enacting laws that may affect the tenure of elected officials.
* **Rejection of the Imperative Mandate:** The Court reiterated the position of the Venice Commission and other Council of Europe bodies that the imperative mandate or similar practices are contrary to the principle of a free and independent mandate. This reinforces the idea that elected officials should represent the people, not just their political parties.
**** This decision has implications for Ukraine, as it highlights the need to reform its laws regarding the termination of mandates for members of parliament. The decision reinforces the importance of protecting the rights of elected officials to represent their constituents and to act in accordance with their conscience, even if it means disagreeing with their political parties.
