Decision Of The Constitutional Court Of The Russian Federation in the case of verifying the constitutionality of some provisions of Federal Law of June 21. 1995 «On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation»
In the Name of the Russian Federation
The Constitutional Court of the Russian Federation composed of Yu.M. Danilov, the Chairman, judges M.V. Baglai, N.T. Vedernikov, L.M. Zharkova, V.D. Zorkin, V.I. Oleinik, V.G. Strekozov, O.S. Khokhryakova,
with the participation of the representatives of the Saratov Oblast Duma - deputy M.Ya. Sements and V.T. Karbyshev, Dr. Sci. (Law); the representatives of the State Duma - deputies E.B. Mizulina and V.L. Sheinis and also V.B. Isakov, Dr. Sci. (Law); the representatives of the Federation Council - I.B. Vlasenko, Cand. Sci. (Law) and I.N. Shumsky, Cand. Sci. (Law); A.M. Mityukov, the authorized representative of the Russian Federation President in the Constitutional Court of the Russian Federation,
being guided by Article 125 (Para. «a», Part 2) of the Constitution of the Russian Federation; Subpara. «a» Para. 1 Part 1 of Article 3, Subpara. «a» Para. 1 Part 2 of Article 22, Articles 36, 74, 84, 85, 86 and 87 of the Federal Constitutional Law «On the Constitutional Court of the Russian Federation,»
have considered, in an open session, the case of verifying some provisions of the Federal Law «On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation.»
Consideration of the case was initiated by the inquiry of the Saratov Oblast Duma requesting verification of the constitutionality of Article 5, Part 2 of Article 11, Part 6 of Article 14, Articles 17 and 18, Part 3 of Article 36, Articles 37 and 38, Parts 2 and 3 of Article 39, Articles 44, 47, 48, 50, 52, 57, 58, 59, 61, Part 2 of Article 62, Articles 63, 64 and 67 of the said Federal Law.
The reason for the consideration of the case was the uncertainty as to whether the legislative provisions disputed by the inquiry conform to the Constitution of the Russian Federation.
The provisions of the Federal Law «On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation,» including those disputed by the inquiry of the Saratov Oblast Duma have already been a subject of an application to the Constitutional Court of the Russian Federation. On November 20, 1995 the Constitutional Court of the Russian Federation took a decision refusing to accept for consideration the appropriate inquiries of the Supreme Court of the Russian Federation and a group of deputies of the State Duma. The inquires were received by the Constitutional Court more than two months after the commencement of the campaign for the elections of the State Duma, at that important stage of the electoral process when the nomination and registration of candidates had been completed. Holding court proceedings under such conditions would have constituted an impermissible interference in the electoral process and would have contradicted the purpose and principles of the activity of the Constitutional Court of the Russian Federation. Because, at the present time, such circumstances are absent, the Constitutional Court of the Russian Federation have found the inquiry of the Saratov Oblast Duma acceptable and has accepted it for consideration.
Having heard judge-reporter V.G. Strelkov, explanations of the representatives of the sides, opinions of specialists - A.I. Kovler, Dr.Sci. (Law), E.I. Kolyushin, Dr.Sci. (Law), V.A. Nikonov, Dr.Sci. (History), statements of the persons invited to the session - A.Yu. Shipitsin, representing the Ministry of Justice of the Russian Federation, A.A. Belkin representing the Procurator-General's Office of the Russian Federation, M.V. Grishina representing the Central Election Commission of the Russian Federation, and having studied the submitted documents and other material the Constitutional Court of the Russian Federation
has established the following:
1. The Saratov Oblast Duma disputes the constitutionality of the provisions of Article 5; the second paragraph of Article 5 and Part 2 of Article 11; Part 6 of Article 14; Part 3 of Article 36; Part 5 of Article 37; Part 2 of Article 39; Part 3 of Article 39; Part 2 of Article 62; Article 67 of the Federal Law of June 21, 1995 «On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation.» In the applicant's opinion these provisions contradict Articles 3, 13, 19, 32 and 55 of the Constitution of the Russian Federation.
Among the provisions which do not conform to the Constitution of the Russian Federation the inquiry also mentions Articles 17 and 18, Parts 1, 2, 3, 4, and 6 of Article 37, Articles 38, 44, 47, 48, 50, 52, 57, 58, 59, 61, 63, 64 and 65 of this Federal Law but the applicant has presented no arguments to prove their unconstitutionality. At the court session the representatives of the Saratov Oblast Duma stated that these articles as such did not relate to the subject of the inquiry. Consequently, they do not constitute the subject of consideration of the Constitutional Court of the Russian Federation in the given case.
2. Article 5 of the Federal Law under consideration provides that 225 deputies of the State Duma shall be elected in single-mandate electoral districts (one district - one deputy) on the basis of a single quota of voter representation for single-mandate electoral districts (second paragraph) and the other 225 deputies shall be elected in the federal electoral district in proportion to the number of votes cast for the federal lists of candidates nominated by electoral associations, electoral blocs (third paragraph). In the applicant's opinion this provision violates the equality of the electoral rights of citizens and, therefore, contradicts Articles 3, 19, and 32 of the Constitution of the Russian Federation.
The Constitution of the Russian Federation does not directly lay down the type of electoral system for election of deputies to the State Duma. Having declared a two-chamber structure of the Federal Assembly as a representative and legislative body of the Russian Federation, the numerical composition of the State Duma (450 deputies) and the term of its powers (4 years) the Constitution of the Russian Federation established that the procedure for election of deputies to the State Duma shall be laid down by a federal law (Part 2 of Article 96). This law if the Federal Law under consideration, which, as follows from its Article 5, establishes a so-called mixed (majority-proportional) electoral system for election of deputies to the State Duma.
A mixed electoral system exists in a number of democratic states and, as the world experience shows, is basically compatible with the universally accepted principles and norms of international law, which relate to electoral law and are promulgated by the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms (Article 3 of Protocol No. 1 of March 20, 1952) and the 1966 International Covenant on Civil and Political Rights (Article 25). This system conforms to the purpose of elections as a supreme direct expression of the power of the people. It makes it possible, through free elections based on universal, equal and direct suffrage with secret ballot, to reflect convictions held by citizens and adequately express their will in regard of the composition of the parliament as a representative body of the state.
Consequently, the disputed provision of Article 5 of the Federal Law «On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation» does not violate the Constitution of the Russian Federation, including the principle of free elections laid down thereby (Article 3), the right of citizens to participate in running the affairs of the state, both directly and through their representatives, and the right to elect and be elected to the bodies of state power (Parts 1 and 2 of Article 32), the guarantees for the equality of these rights (Article 19) and the equality of public associations under law (Part 4 of Article 13).
3. The second paragraph of Article 5 of the Federal Law under consideration provides that single-mandate electoral districts shall be formed on the basis of a single quota for representation of voters in single-mandate electoral districts, with the exception of electoral districts formed in the subjects of the Russian Federation where the number of voters is smaller than the single representation quota; under Part 2 of Article 11 one electoral district shall be formed in the territory of each subject of the Russian Federation in which the number of voters is smaller than the single representation quota. The applicant believes that the exception from the general rule for the formation of single-mandate electoral districts established by the aforementioned provisions violates the principle of the equality of the electoral rights and, therefore, runs counter to Articles 19 and 32 of the Constitution of the Russian Federation.
The democratic principle of equal elections and the obligation of the state to guarantee the equality of the electoral rights of citizens, on the one hand, and the principles of federalism and the equality of the federation subjects, on the other hand, may, to some extent, come into legal conflict with each other. The experience of modern federative states shows that considering the specifics of the territorial structure and distribution of the population and in order to preserve the national unity and the stability of the constitutional system without which normal exercise of rights and freedoms is impossible the lawmaker allows, as a forced measure, certain departures from the general representation quota, i.e., resorts to restriction of equal suffrage for the benefit of the principles of federalism. Such unbalances in the electoral system cannot be regarded as resulting from lawlessness and abuses.
From Articles 1, 3, 5, 19 and 32 of the Constitution of the Russian Federation taken in their interconnection it follows that the provision relating to the guarantees for the equality of the electoral rights of citizens must be coordinated by the lawmaker with the principles of federalism and the equality of the subjects of the Russian Federation - the fundamental principles of the constitutional system of the Russian Federation.
For the aforementioned reasons the lawmaker is compelled to allow certain departures from the single representation quota. Thus, under Part 1 Article 11 of the Federal Law under consideration single-mandate electoral districts must meet the following requirements: equal number of voters in the electoral districts within one subject of the Russian Federation, with a permissible deviation of not more than 10 percent and in hard-to-reach and remote regions not more than 15 percent; the electoral district must form a single territory: it shall not consist of territories which have no common border. As shown by the practical experience of many countries such departures are not deemed inordinate.
An even greater departure from a single representation quota takes place in the event of realization of the provision contained in the second paragraph of Article 5 and Part 2 of Article 11 of the Federal Law under consideration because in some subjects of the Russian Federation the number of voters is smaller than this single quota. The aim of this provision is to guarantee that subjects of the Russian Federation which have a small population should be represented in the State Duma.
In the applicant's opinion representation of the subjects of the Russian Federation is ensured by the constitutional procedure for the formation of the Federation Council (two representatives from each subject of the Russian Federation) and, therefore, in the election of deputies to the State Duma no exceptions must be made for subjects of the Russian Federation where the number of voters is smaller than the single representation quota.
However, from Article 94 of the Constitution of the Russian Federation in its interconnection with Articles 1 and 5 it follows that it is the parliament as a whole, i.e., the Federation Conical and the State Duma, that is the representative and legislative body of the Russian Federation, particularly because the Russian Federation is a federative state, with their scope of powers being balanced accordingly. If elections to the State Duma were held on the basis of a single representation quota without the exception made by the disputed provision, such elections would result in the fact that subjects of the Russian Federation with a small population would not be represented in this chamber of the parliament. This would call into question the principle of the equality of the subjects of the Russian Federation - one of the fundamental principles of its constitutional system, and the representative nature of the State Duma.
Considering the circumstances which arose during adoption of the Federal Law under consideration, in particular, the position of the Federation Council, proceeding from the historically conditioned features of Russia as a federative state, the specifics of its territorial structure and extremely uneven distribution of the population in different subjects of the Russian Federation, in order to avoid endangering the fundamental principles of the constitutional system and its stability the lawmaker, acting in accordance with Article 55 (Part 3) of the Constitution of the Russian Federation, could include in the given Federal Law a provision establishing departures from the single representation quota.
The provisions of Articles 1, 5, 19, 32 and 55 (Part 3) of the Constitution of the Russian Federation which in their systemic interconnection permit the lawmaker to provide for the aforementioned departures are in accord with the universally accepted principles and norms of international law relating to the organization of the electoral system and to elections based on equal suffrage. Thus, according to the implicit meaning of Articles 25 (Subpara. «b») and 12 (Para. 3) of the International Covenant on Civil and Political Rights equal suffrage cannot be subject to any restrictions, except for those which are provided by law and are necessary for safeguarding the national security, for protection of public health or morality, for ensuring proper recognition of and respect for the rights and freedoms of the others and satisfaction of just requirements of morality, public order and general well-being in a democratic society and which are compatible with other rights recognized in the present acts.
From these provisions it follows that in order to preserve the integrity of a federative state equal suffrage may be restricted by law so as to guarantee equal representation of federation subjects with a small population and thus ensure a proper representative nature and legitimacy of the federal parliament.
Considering the question of equal suffrage and permissible departures therefrom in the light of the provisions of Article 3 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms under which its signatories (which now include Russia) pledge to hold, at reasonable intervals, free elections with secret ballot in conditions that ensure free expression of the people's will in the election of legislative power The European Human Rights Commission came to the following conclusion in its Resolution of December 8, 1981. An electoral system which guarantees definite representation in parliament to residents of sparsely populated areas by reducing the weight of votes in densely populated areas cannot be regarded for this reason as conflicting with Article 3 of Protocol No. 21, which does not require an equal weight of votes cast for each deputy. Consequently, considering the historical context the lawmaker may realize the provisions relating to equal elections and equal suffrage so as to ensure representation in parliament from territorial units with a small population.
Therefore, the disputed provision contained in the first paragraph of Article 5 and Part 2 of Article 11 of the Federal Law «On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation» does not contradict the Constitution of the Russian Federation.
4. According to Part 6 Article 14 of the Federal Law under consideration citizens of the Russian Federation who reside outside the territory of the Russian Federation or stay abroad on business for a long time shall be included in the voter list in an electoral precinct formed outside the territory of the Russian Federation provided they have a foreign passport of a citizen of the Russian Federation. In the applicant's opinion this rule unlawfully restricts electoral rights of the given category of citizens of the Russian Federation and contradicts Articles 32 (Part 2) and 55 (Part 3) of the Constitution of the Russian Federation. The applicant refers to Article 10 of the Russian Federation Law of November 28, 1991 «On Russian Federation Citizenship» under which the documents confirming Russian Federation citizenship are an identity card of a Russian Federation citizen or a passport of a citizen of the Russian Federation and, until their receipt, a birth certificate or some other identity paper which indicates citizenship of a person.
During the 1995 election campaign for election of deputies to the State Duma, pursuant to the clarification issued by the Central Election Commission of the Russian Federation, the disputed provision was used in interconnection with the provisions of Article 10 of the Russian Federation Law «On Russian Federation Citizenship» and, therefore, the electoral rights of Russian Federation citizens who at that time resided outside the territory of the Russian Federation or stayed abroad on business or a long time were not infringed by this provision.
The Federal Law «On Basic Guarantees of Electoral Rights and the Right of Citizens of the Russian Federation to Participate in a Referendum» adopted on September 19, 1997 states that voters who reside outside the territory of the Russian Federation or stay abroad on business for a long time shall be registered on the basis of the fact of their permanent residence in the territory of a foreign state or their prolonged stay abroad on business as established by diplomatic missions or consulates of the Russian Federation (Clause 3 of Article 17).
Upon adoption of the Federal Law «On Basic Guarantees of Electoral Rights and the Right of Citizens of the Russian Federation to Participate in a Referendum», from Clause 7 Article 1 of this Law it follows that the provision of Part 6 Article 14 of the Federal Law under consideration cannot be applied and, therefore, as of the date of the Saratov Oblast Duma's application to the Constitutional Court of the Russian Federation this provision is actually no longer valid. Considering this circumstance and proceeding from the fact that the disputed provision, when it was valid, did not infringe the electoral rights of citizens, pursuant to Article 68 of the Federal Constitutional Law «On the Constitutional Court of the Russian Federation» the proceedings in the case with regard to this matter are hereby ended.
5. The Saratov Oblast Duma maintains that Part 3 Article 36 of the Federal Law under consideration, which states that an electoral association, electoral bloc may nominate candidates to run for the State Duma from among persons who are not members of the public associations comprised in this association or bloc, runs counter to the Constitution of the Russian Federation.
From Articles 19 (Part 2) and 32 (Part 2) of the Constitution of the Russian Federation it follows that the state guarantees the equality of the electoral rights of citizens regardless of membership in public associations. According to the implicit meaning of Article 96 (Part 2) of the Constitution of the Russian Federation, when establishing the rules of elections to the State Duma the lawmaker also establishes the rules for nomination of candidates. The right granted to electoral associations, electoral blocs to nominate candidates for election to the State Duma from among persons who are not members of public associations comprised in them facilitates exercise of the right of citizens to elect and be elected to bodies of state power and does not violate the Constitution of the Russian Federation.
6. According to Part 5 of Article 37 of the Federal Law under consideration the federal list may include candidates running for the State Duma who are also nominated in single-mandate electoral districts by the same electoral association, electoral bloc. In the applicant's opinion this creates a double advantage for candidates nominated by electoral associations (blocs) over candidates nominated directly by voters, i.e., does not conform to the constitutional principle of the equality of the electoral rights.
From the disputed provision in its interconnection with Part 3 of Article 37, Part 3 of Article 36 and Parts 8, 9 and 10 of Article 42 of the Federal Law under consideration it follows that the same person (regardless of whether or not he/she is a member of some public association, including an electoral association which nominated this person as a candidate) may be registered as a candidate on a federal list of candidates and, at the same time, in one of single-mandate electoral districts and thus run for election both on a federal list and in a single-mandate district; no citizen, however, may be registered on more than one federal list of candidates and in more than one single-mandate electoral district; an electoral association, electoral bloc may nominate not more than one candidate in one single-mandate electoral district.
The exercise of the right to be registered on a federal list of candidates and, at the same time, in a single-mandate electoral district as an initial starting possibility for all citizens, which is due to the specifics of a mixed electoral system, assumes, however, that special procedures have to be complied with for nomination (including signature collection) and registration of candidates. The rules established by these procedure are equally applied to all persons wishing to be included on a list of candidates for election to the State Duma.
The principle of equality does not suggest a mandatory need for a single procedure for nomination of candidates in a single-mandate and in the federal electoral district. The important thing is that the relevant procedures should be applied to all citizens on equal grounds. Given compliance with the relevant nomination procedures citizens may, on equal grounds, be registered in a single-mandate electoral district. And given compliance with the relevant procedure any citizen may be registered in the federal district: he/she may be nominated by an electoral association, electoral bloc regardless of membership in the public associations comprised in them or, by forming an electoral association with other citizens, may exercise his/her right to nomination on the federal list of this association.
In fact, a mixed electoral system envisages two independent systems for winning and distribution of deputy mandates: a majority system and a proportional system, with a predetermined number of deputy mandates to be awarded under the one and the other system. Because, given compliance with the relevant nomination and registration procedures, the possibility to run in the federal district and, at the same time, in a single-mandate district (i.e., simultaneously according to a majority and a proportional system) is ensured for all citizens on equal grounds and since, in this case, the award of two deputy mandates is ruled out, the lawmaker may allow such a possibility in a mixed electoral system.
Consequently Part 5 of Article 37 of the Federal Law «On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation» does not contradict the principle of free and equal elections and does not violate the Constitution of the Russian Federation.
7. According to Article 7 of the Federal Law under consideration, an electoral association, electoral bloc which nominated a federal list of candidates must collect not less than 200 thousand voter signatures in its support and, in this case, any one subject of the Russian Federation must account for not more than seven percent of the required number of signatures (Part 2); the signatures collected in support of a candidate nominated by an electoral association, electoral bloc in a single-mandate electoral district and registered by the district election commission are included by the Central Election Commission of the Russian Federation in the number of signatures in support of the federal list of candidates nominated by this electoral association, electoral bloc (Part 3). The applicant believes that these provisions offer advantages to candidates from electoral associations, electoral blocs and thus violate the principle of the equality of the electoral rights of citizens.
When establishing the procedure for nomination and registration of candidates for election to the State Duma the lawmaker may, in the interests of the voters, specify preliminary conditions to eliminate from the electoral process those of its participants who do not enjoy sufficient support on the part of voters. Such conditions include the requirement that not less than 200 thousand signatures should be collected in support of a federal list of candidates (Part 2 of Article 39) and that not less than one percent of voter signatures in respect of the total number of voters of a single-mandate electoral district should be collected in support of a candidate nominated directly by voters (Part 2 of Article 41).
The condition laid down by Part 2 of Article 39 of the Federal Law under consideration is applicable, to an equal extent, to all electoral associations and blocs, to all candidates for election to the State Duma included on federal lists. It does not infringe the equal rights of candidates in single-mandate electoral districts. Because the elections (nomination, registration, voting, determination of election results, distribution of mandates) are administered in the federal district and in single-mandate districts independently and in a different manner (in the former case the competition is between the lists of candidates, in the latter case, between individual candidates) the guarantees of the equality of the electoral rights (including those of candidates in single-mandate districts) are not violated by the fact that different numbers of signatures are required for nomination of lists of candidates and individual candidates. Consequently, Part 2 of Article 39 of the Federal Law «On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation» is in accord with the Constitution of the Russian Federation.
However, the provision of Part 3 of Article 39 establishes unequal conditions both for voters and for candidates. A voter signature in support of a concrete candidate in a single-mandate electoral district does not necessarily mean that the voter supports the federal list on which the given candidate is included. Therefore, the signature of this voter must not be included in the number of signatures in support of the federal list automatically, without appropriate documentary formalities that would reflect the expression of the voter's will. Otherwise, electoral associations which simultaneously nominate its candidates on a federal list and in single-mandate electoral districts will unlawfully gain an advantage. The disputed provision disregards these circumstances and thus violates the active and the passive electoral right of a citizen and, consequently, contradicts Articles 19 (Parts 1 and 2) and 32 (Part 2) of the Constitution of the Russian Federation.
8. According to Part 2 of Article 62 of the Federal Law under consideration the electoral associations, electoral blocs whose lists of candidates have polled less than five percent of voters who took part in the voting are eliminated from the distribution of mandates in the federal electoral district. In the applicant's opinion this provision contradicts Articles 3, 19 and 32 and also Article 13 (Part 4) of the Constitution of the Russian Federation.
The so-called cut-off clause (percentage barrier) which signifies certain restriction of the proportionality of representation is provided for by the legislation of several countries with a mixed system. Such restriction makes it possible to avoid fragmentation of the deputy corps into a multitude of small groups, which may result from a proportional electoral system in the absence of a percentage barrier, so as to ensure normal functioning of the parliament, stability of the legislative power and of the constitutional system as a whole.
The provision of Part 2 of Article 62 of the Federal Law under consideration which establishes a percentage barrier does not restrict the electoral rights of citizens and does not violate the equality before law of public associations provided by Article 13 (Part 4) of the Constitution of the Russian Federation.
From Articles 13, 19 and 32 of the Constitution of the Russian Federation which correspond to Article 26 on the International Covenant on Civil and Political Rights and Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms it follows that the equality of the electoral rights of citizens and also the equality of electoral associations, electoral blocs signify the equality before law and the right to equal and effective protection by law without any discrimination on account of whatever criteria or circumstances. However, equality as applied to suffrage cannot signify the equality of the results because elections offer the voters a possibility to determine their preferences and vote for an appropriate candidate or a list of candidates and, hence, they presuppose the presence of winners and losers. The rules according to which elections are held are the same for all electoral associations, electoral blocs and for all citizens participating in the election of candidates on federal lists: the conditions of election are the same for all federal lists and each voter may vote for any federal list; none of the federal associations which have not polled five percent of votes participate in the distribution of deputy mandates.
This arrangement does not violate Article 3 of the Constitution of the Russian Federation since it does not interfere with the administration of free elections, i.e., with free expression of the will of the people in elections to a body of legislative power. Neither does it distort the essence of popular representation. Citizens who did not vote at all or who voted for candidates other than those who became deputies cannot be regarded as having been deprived of their representation in the parliament. From Article 3, 32, 94, 95 and 96 of the Constitution of the Russian Federation in their interconnection it follows that all lawfully elected deputies of the State Duma are representatives of the people and, consequently, representatives of all citizens who have the right to run the affairs of the state through their representatives. The candidate who won the elections on the conditions defined by law, regardless of whether he/she was elected in a single-mandate electoral district or the federal electoral district, becomes a deputy of the State Duma as a representative body of the Russian Federation, i.e., a representative of the people according to the implicit meaning of Article 3 of the Constitution of the Russian Federation.
Therefore, the Constitution of the Russian Federation does not exclude a possibility for the lawmaker to establish a certain percentage of votes that have to be collected in elections in support of a federal list of candidates nominated by an electoral association, electoral bloc so that the electoral association, electoral bloc receives the right to participate in the distribution of deputy mandates. At the same time, acting within the scope of its authority, dealing only with the questions of law and in order to protect the basic principles of the constitutional system, the fundamental rights and freedoms of a human being and a citizen, and to ensure the supremacy and direct action of the Constitution of the Russian Federation in the entire territory of the Russian Federation the Constitutional Court of the Russian Federation may verify under what constitutionally significant legal conditions the barrier established by the lawmaker is admissible and under what conditions it becomes inordinate.
In countries with a stable multi-party system a five-percent barrier is an average indicator which makes it possible, without distorting the proportionality principle, to accomplish the tasks for the accomplishment of which it is introduced in proportional and mixed electoral systems and, therefore, is not regarded as inordinate. Meanwhile, in the Russian Federation, with its incipient and unstable multi-party system, the five-percent barrier may be either admissible or inordinate, depending on different conditions.
According to the data of the Central Election Commission of the Russian Federation, in the presence of a five-percent barrier in the 1993 elections to the State Duma, all electoral association which overcame this barrier together received 87.06 percent of votes of voters who took part in the voting and in the 1995 elections a total of 50.5 percent of votes. Such a substantial drop in the number of votes cast for electoral associations, electoral blocs which overcame the five-percent barrier is primarily due to a sharp increase in the number of associations which took part in the elections - from 13 in 1993 to 43 in 1995.
From the disputed provision in interconnection with Article 70 of the Federal Law under consideration it follows that electoral associations, electoral blocs which overcame the five-percent barrier receive (through distribution between them) not only the mandates that they would have received along with all associations taking part in the elections in proportion to the number of votes cast for them, but also the other mandates that would have been awarded to other associations in the event of proportional distribution in the absence of a five-percent barrier, i.e., they ultimately receive all mandates in the federal electoral district. By virtue of this fact and proceeding from the universally accepted principles of government by the people the democratic majority on the basis of which, according to the implicit meaning of Articles 1 and 3 of the Constitution of the Russian Federation, it is necessary to determine the will of the people expressed by them in the elections and the presence of which is necessary for recognizing the legitimacy of a body of popular representation, such as the State Duma, cannot be merely a relative majority in the given case.
Because in the 1995 elections the electoral associations which overcame the established barrier received more than a half of votes of voters who took part in the voting the majority principle was not violated. Consequently, the five-percent barrier provided for by Part 2 of Article 62 of the Federal Law under consideration cannot be regarded as inordinate considering its realization in the electoral process in 1995.
However, the five-percent barrier must not be used contrary to the purpose of proportional elections. Therefore, the lawmaker must try to ensure that, when this barrier is applied, the principle of proportional representation should be realized in the maximum possible degree. In any case, application of the five-percent barrier is inadmissible if the electoral associations which overcame this barrier together do not receive at least an absolute majority of the votes (i.e., 50 percent plus one vote) cast by voters who took part in the voting.
In addition to this, it must be taken into account that according to the implicit meaning of Articles 1 and 13 of the Constitution of the Russian Federation democracy based on political diversity and a multi-party system proceeds from the need for opposition and does not allow of monopoly on power. Therefore, if the five-percent barrier has been overcome by one electoral association, electoral bloc, even if this association, bloc has received a majority of votes, all deputy mandates in the federal district cannot be awarded to this association, bloc as this would run counter to the principle of proportional elections in the conditions of democracy and, consequently, makes application of the five-percent clause inadmissible.
For such cases the Federal Assembly must suggest a legal regulation mechanism that would make it possible to observe the requirements stemming from the democratic nature of the basic principles of the constitutional system of the Russian Federation. Elaboration of concrete provisions which establish this mechanism (introduction of a «floating» barrier, formation of blocs of associations, etc) is a prerogative of the lawmaker.
Therefore, the provision of Part 2 of Article 62 of the Federal Law «On the Election of Deputies to the State Duma of the Federal Assembly of the Russian Federation» is in accord with the Constitution of the Russian Federation to the extent that application of the five-percent barrier allows participation of not less than two electoral associations in the distribution of deputy mandates, provided these associations together receive a total of not less than 50 percent of votes of voters who took part in the voting.
9. According to Part 1 of Article 67 of the Federal Law under consideration if a deputy elected on a federal list of candidates as a result of the distribution of deputy mandates between electoral associations, electoral blocs vacates office before expiration of its term, by a resolution of the State Duma his/her mandate is transferred to a candidate who directly follows the elected candidates on the same federal list. The applicant believes that this provision violates the equality of the electoral rights, puts candidates in a single-mandate district and candidates in the federal district in an unequal position because, when a deputy vacates office before expiration of its term in a single-mandate district, the deputy mandate is declared to be vacant and new elections are called.
The difference in the methods of filling deputy vacancies in the federal district and in single-mandate districts is due to the difference between the electoral systems used in them: the proportional and the majority system. In the elections in the federal district the voter casts his/her vote for the whole list of candidates rather than one candidate. The use in a single-mandate district of the method of filling deputy vacancies used in the federal district would inevitably result in the distortion of the will of the voters which they expressed in the elections based on a majority system and thus lead to the infringement of equal suffrage. Therefore, the disputed provision does not violate the Constitution of the Russian Federation, including equal suffrage guaranteed by the Constitution.
Proceeding from the above and being guided by Article 68, Parts 1 and 2 of Article 71, Articles 72, 74, 75, 79, 86 and 87 of the Federal Constitutional Law «On the Constitutional Court of the Russian Federation» the Constitutional Court of the Russian Federation
has decided:
1. To pronounce the provision of Article 5 of the Federal Law of June 21, 1995 «On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation» establishing the procedure for the election of the State Duma whereby one part of deputies is elected in single-mandate electoral districts and the other part in the federal electoral district in proportion to the number of votes cast for the federal lists of candidates nominated by electoral associations, electoral blocs conforming to the Constitution of the Russian Federation
2. To pronounce the provision of the second paragraph of Article 5 and Part 2 of Article 11 of the Federal Law of June 21, 1995 «On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation» relating to the formation of an electoral district in the territory of a subject of the Russian Federation with a number of voters smaller than the single representation quota not to be contradictory to the Constitution of the Russian Federation.
3. To end the proceedings in the case as regards verifying the constitutionality of Part 6 of Article 14 of the Federal Law of June 21, 1995 «On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation» under which Russian Federation citizens who reside outside the territory of the Russian Federation or stay abroad on business for a long time are included on the voter list of an electoral precinct formed outside the territory of the Russian Federation on the basis of a foreign passport of a citizen of the Russian Federation.
4. To pronounce the provision of Part 3 of Article 36 of the Federal Law of June 21, 1995 «On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation» relating to the right of an electoral association, electoral bloc to nominate candidates for election to the State Duma from among persons who are not members of public associations comprised in them conforming to the Constitution of the Russian Federation.
5. To pronounce the provision of Part 5 of Article 37 of the Federal Law of June 21, 1995 «On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation» establishing that a federal list may include candidates for election to the State Duma nominated by the same electoral association, electoral bloc to run for election in single-mandate electoral districts not contradictory to the Constitution of the Russian Federation.
6. To pronounce the provision of Part 2 of Article 39 of the Federal Law of June 21, 1995 «On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation» under which an electoral association, electoral bloc which nominated a federal list of candidates must collect not less than 200 thousand voter signatures in support of the list, with any one subject of the Russian Federation accounting for not more than seven percent of the required total number of signatures conforming to the Constitution of the Russian Federation.
7. To pronounce the provision of Part 3 of Article 39 of the Federal Law of June 21, 1995 «On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation» under which the signatures collected in support of a candidate who has been nominated by an electoral association, electoral bloc in a single-mandate electoral district and registered by the district election commission are included by the Central Election Commission in the number of signatures in support of the federal list of candidates nominated by the given electoral association, electoral bloc not conforming to the Constitution of the Russian Federation, its Articles 19 (Parts 1 and 2) and 32 (Part 2).
8. To pronounce the provision of Part 2 of Article 62 of the Federal Law of June 21, 1995 «On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation» under which electoral associations, electoral blocs whose lists of candidates have received less than five percent of votes of voters who took part in the voting are eliminated from the distribution of mandates for the federal electoral district conforming to the Constitution of the Russian Federation to the extent that application of the five-percent barrier allows of ensuring participation in the distribution of deputy mandates of not less than two electoral associations which together have received more than 50 percent of votes of voters who took part in the voting.
The Federal Assembly must introduce amendments to the Federal Law «On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation» ensuring proper realization of the proportionality principle in the determination of the election results for the federal electoral district, abiding by the Constitution of the Russian Federation and taking into account the first paragraph of this section and Section 8 of the reasoning part of this Decision.
9. To pronounce the provision of Article 67 of the Federal Law of June 21, 1995 «On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation» relating to filling of a vacancy created by a deputy elected on the federal list conforming to the Constitution of the Russian Federation.
10. In accordance of Parts 1 and 2 of Article 79 of the Federal Constitutional Law «On the Constitutional Court of the Russian Federation» this Decision shall be final and not subject to appeal, shall come into force immediately upon its promulgation and shall act directly.
11. Pursuant to Article 78 of the Federal Constitutional Law «On the Constitutional Court of the Russian Federation» this Decision shall be published immediately in Collection of :Laws of the Russian Federation and in the Rossiiskaya gazeta. The Decision shall also be published in Bulletin of the Constitutional Court of the Russian Federation.
Constitutional Court
of the Russian Federation
Seal: Constitutional Court
of the Russian Federation.
Department of Court Sessions
No. 26-P
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