NGOs under European Convention on Human Rights / Tymofeyeva

right to stand as a candidate in an election, which is guaranteed by Article 3 of Protocol No. 1 and is inherent in the concept of a truly democratic regime, would only be illusory if one could be arbitrarily deprived of it at any moment. Consequently, while it is true that States have a wide margin of appreciation when establishing eligibility conditions in the abstract, the principle that rights must be effective requires the finding that this or that candidate has failed to satisfy them to comply with a number of criteria framed to prevent arbitrary decisions (see Podkolzina , cited above, § 35, and Melnychenko v. Ukraine , no. 17707/02, § 59, ECHR 2004-X).” 1204 This case shows that although the right to stand for election is indispensable under the Convention, nevertheless, the states enjoy a wide margin of appreciation to place restrictions and conditions in this matter. Article 3 of Protocol No. 1 contains no specific list of legitimate aims that a state must have in restricting or limiting this right. The state may decide the reason on its own, but the aim pursued by the governmental authorities must be in compliance with the spirit of the Convention. While there is no separate ‘lawfulness’ test as seen in the matters of Articles 8-11 of the Convention, the Court verified under Article 3 of Protocol No. 1 1205 that any restriction must be based on a clear and foreseeable domestic law and there could be no arbitrariness in its application. 1206 However, negative presumptions or shifts in the burden of proof may be applied in procedures restricting election rights. 1207 An electoral commission lacking independence from the executive does not raise an issue under this Article, unless there is evidence of abuse of power by this electoral commission in the facts of a particular case. 1208 The requirement for ‘individualisation’, which is the domestic courts’ supervision of proportionality by taking into account the specific features of the case, is not a precondition , but becomes more important when the legislation is too wide. 1209 Restrictions on the right to stand as a parliamentary candidate would be compatible with Article 3 of Protocol No. 1, provided the legislation is sufficiently clear and precise and its application is not arbitrary, despite restrictions on official language proficiency, 1210 residence requirements 1211 or the requirements to declare a candidate’s sources of income. 1212 Most violations to date concerned a lack of clarity and foreseeability or arbitrariness in applying the rules. 1213 The main issues invoked by Article 34 NGOs in their applications may be summarised as complaints concerning the introduction of new

1204 Russian Conservative Party , cited above, §§ 47-50. 1205 VITKAUSKAS, Dovydas. Inclusiveness in the electoral process. Article 3 of Protocol No. 1 of the EuropeanConvention onHumanRights. London, 22-23 June 2010. URL:

konf_220610/electoral_process.pdf> accessed 20 July 2015. 1206 Melnychenko v. Ukraine , no. 17707/02, ECHR 2004-X. 1207 Ždanoka v. Latvia [GC], no. 58278/00, ECHR 2006-IV. 1208 Georgian Labour Party , cited above. 1209 Ādamsons v. Latvia , no. 3669/03, 24 June 2008. 1210 Podkolzina v. Latvia , no. 46726/99, ECHR 2002-II. 1211 Melnychenko , cited above. 1212 Russian Conservative Party , cited above. 1213 VITKAUSKAS, cited above.

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