ITEMID: 001-87446
LANGUAGEISOCODE: ENG
RESPONDENT: GEO
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF GEORGIAN LABOUR PARTY v. GEORGIA
IMPORTANCE: 1
CONCLUSION: No violation of P1-3;Violation of P1-3;No violation of Art. 14+P1-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of a violation sufficient
JUDGES: Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Mindia Ugrekhelidze;Riza Türmen;Vladimiro Zagrebelsky
TEXT: 10. The applicant party is a political party.
11. On 20 November 2003 the Central Electoral Commission (“the CEC”) announced the final results of the votes in the regularly scheduled parliamentary election of 2 November 2003, according to which seven parties had cleared the 7% legal threshold required by Article 105 § 6 of the Electoral Code (“the EC”, see paragraph 44 below). The opposition party, the SaakashviliNational Movement, took third place with 18.04% of the vote (giving them 32 seats in Parliament), followed by the applicant party with 12.04% of the vote (20 seats) and the United Democrats, a coalition led by the President of the Parliament, Ms N. Burjanadze, with 8.79% of the vote (15 seats).
12. On account of numerous instances of ballot fraud reported by election observers, the SaakashviliNational Movement and the United Democrats refused to accept the election results. With general support from the population, they called for President Shevardnadze’s resignation. When the newly elected parliament convened for its first session on 22 November 2003, the opposition forces broke into the parliament building, disrupted the President’s inaugural speech and ousted the members of parliament (MPs).
13. On 23 November 2003 Mr E. Shevardnadze resigned and Ms N. Burjanadze became the interim President of Georgia, as provided for by the Constitution. Those events were later referred to as the “Rose Revolution”.
14. As the parliament elected in November 2003 had been ousted by the revolutionary forces, the interim leadership recalled the previous parliament elected in 1999 (see Article 50 § 4 of the Constitution, paragraph 42 below) until such time as a new parliament was elected.
15. On 25 November 2003 the Supreme Court of Georgia annulled the CEC vote tally of 20 November 2003 in the part concerning the election results under the proportional system. The results in single-seat constituencies remained in force.
16. On 28 November 2003 the Chairman of the CEC, who had been appointed by ex-President Shevardnadze, resigned. On 30 November 2003 the interim President dismissed five members of the CEC who had been appointed by the ex-President, and Parliament elected a new Chairman of the CEC on the basis of a candidature proposed by the interim President.
17. In view of the partial annulment of the election results of the initial parliamentary election of 2 November 2003 by the Supreme Court on 25 November 2003, on 2 December 2003 the CEC Chairman issued Ordinance no. 167/2003 which, under Article 106 § 4 of the EC, set the date of the repeat parliamentary election (“the repeat election”) for 25 January 2004. On the same day, however, the CEC Chairman applied to the interim President of Georgia (Decree no. 50/2003), requesting that a later date be set for the election, arguing that it would hardly be possible to ensure its proper administration within such a short time frame. This application was finally granted on 9 January 2004 and the repeat election was scheduled for 28 March 2004 by the interim President.
18. The applicant party challenged CEC Ordinance no. 167/2003 in court, claiming that the CEC had erroneously relied on Article 106 § 4 instead of Article 105 § 17 of the EC when setting the date for the repeat election. By a judgment of 8 December 2003, the Tbilisi Regional Court dismissed the claim, reasoning that the applicant party lacked victim status. That judgment was quashed on 26 December 2003 by the Supreme Court which noted that, since the applicant party was running for election, there was a direct and consequential link between its interests and the decisions of the CEC. However, the Supreme Court dismissed the claim as manifestly illfounded.
19. On 7, 9 and 12 December 2003 the CEC issued Ordinances by which voters were required to attend electoral precincts and fill out special forms; this would enable them to cast their ballots during the presidential election of 4 January 2004.
20. Along with other opposition parties, the applicant party challenged the lawfulness of those rules in court. On 15 December 2003 the Tbilisi Regional Court dismissed the claim as unsubstantiated. With regard to the applicant party, the court stated that it lacked victim status as it had failed to show what direct and specific harm the preliminary voter registration procedure for the presidential election could possibly have caused to its interests.
21. On 15 January 2004 Mr M. Saakashvili was declared President of Georgia. By an Ordinance of 31 January 2004, the new President appointed five members of the CEC, one of whom was given authority to appoint five members in the District Electoral Commissions (“the DECs”) under Article 128(1) § 4 of the EC.
22. Nineteen political parties and blocs were registered by the CEC on 21 February 2004 as candidates for the repeat parliamentary election, including the applicant party and the ruling coalition of the President’s National Movement and Ms Burjanadze’s United Democrats. The presidential National Movement had previously won the 2002 municipal elections in Tbilisi.
23. For the purposes of the repeat election, the CEC passed another decree on 27 February 2004 (Decree no. 30/2004), pursuant to which the Precinct Electoral Commissions (“the PECs”) had to post preliminary lists of voters in their bureaux, data which had been gathered in the course of the preliminary registration of voters for the presidential election. Between 8 and 21 March 2004, voters were to attend the electoral precincts again to verify that their names were on the lists. If a voter found that he or she was missing from the list, a petition for correction was to be filed with the relevant PEC. On 21 March 2004 the PECs were to send corrected versions of the preliminary electoral rolls to the relevant DEC, which was required to produce final electoral rolls and remit them to the PECs for a further public examination. Between 23 and 27 March 2004, voters were to recheck the final lists and request corrections if necessary. The Decree also envisaged adding the names of voters who had not been included in the preliminary registration to the lists on election day itself.
24. The rationale behind the introduction of this system of voter registration was explained by the CEC Chairman in a public statement: “If a voter does not want to participate in the election, does not engage in politics, does not want to cooperate with the State, then the State is also under no obligation to ensure that this voter is on the unified electoral roll.”
25. The repeat election, based on the system of proportional representation, was held as planned on 28 March 2004. Numerous complaints about irregularities on election day were subsequently filed with electoral commissions, including the CEC, and with the courts.
26. On 2 April 2004 the CEC issued Ordinance no. 82/2004, which annulled the election results for all the PECs in the Khulo and Kobuleti electoral districts (nos. 81 and 84) in the Ajarian Autonomous Republic (“the AAR”), where 42,011 and 17,263 voters were registered respectively. The CEC Ordinance did not explain which legal provision had entitled it to take this annulment decision. It simply noted that complaints had been filed about voting irregularities in these two districts. The complaints requested that the investigative measures envisaged by Article 105 § 13 of the EC be undertaken by the CEC. However, “in view of the nature of the irregularities alleged in the complaints”, there was, according to the CEC, no point in resorting to such measures. Consequently, the challenged election results in the Khulo and Kobuleti districts were to be annulled and, in accordance with Article 105 § 12 of the EC, the polls were to be repeated there. The new date was set for 18 April 2004 (for more details, see paragraphs 50 and 53 below).
27. On 6 April 2004 the CEC issued rules of procedure (Decree no. 45/2004) for the posting of electoral rolls in the various precincts of the Khulo and Kobuleti districts. As before the presidential election of 4 January 2004 and the repeat parliamentary election of 28 March 2004, voters were expected to pay preliminary visits to the precincts in order to ensure that their names were on the lists.
28. On 18 April 2004, election day, the polling stations in the Khulo and Kobuleti districts failed to open (see paragraph 50 below). On the same day, however, the CEC tallied the votes in the repeat election of 28 March 2004. It stated that 1,498,012 votes had been cast, while 2,343,087 voters had registered. The applicant party received 6.01% of the vote, which was not enough to clear the 7% threshold and thus to obtain seats in Parliament.
29. According to the minutes of the CEC meeting of 18 April 2004, the applicant party’s representative, as one of the fifteen members of the CEC, objected to the finalisation of the election results. The representative argued that the CEC could not lawfully end the countrywide election without first having held an election in the Khulo and Kobuleti districts. The Chairman of the CEC replied that the fact that the polling stations had not opened in those districts was the fault of the Ajarian authorities. He also added that, even if the election had been conducted in those districts, this would not have affected the final results. By a majority vote, the Chairman’s proposal to approve the vote tally was accepted and the relevant Ordinance (no. 94/2004) was adopted on the basis of Articles 64 and 105 of the EC.
30. On 22 April 2004 the newly elected parliament convened for its first session. After several weeks of tension, the Head of the AAR, Mr A. Abashidze, stepped down on 6 May 2004, fleeing the country.
31. On 20 April 2004 the applicant party appealed to the Supreme Court against Ordinance no. 94/2004 (see paragraph 29 above). Alongside the main claim for annulment of the Ordinance in question, the applicant party asked the court to apply an interim measure whereby Parliament would be forbidden from convening for its first session until the dispute had been resolved. The applicant party argued that, if Parliament convened, it would become impossible to enforce the judgment should the court find in the applicant party’s favour. On 20 April 2004 the Supreme Court declared the claim admissible but refused to apply the requested interim measure. It reasoned that the claim could not have any suspensive effect under Article 77 § 3 of the EC and noted that, pursuant to Article 51 of the Constitution, the first sitting of a newly elected parliament was to be held within twenty days of the finalisation of the election results.
32. The applicant party submitted four major arguments to the Supreme Court, which dismissed its claim on 26 April 2004.
33. Firstly, the applicant party challenged the rules on the composition of electoral rolls. It claimed that many eligible voters who had failed to comply with the procedure for preliminary registration had been refused the right to cast their votes on election day. At the same time, the obligation to register in advance had created a kind of carousel to facilitate ballot fraud in which some voters could register in different electoral precincts and thus cast their vote more than once. As a result of those irregularities, the applicant party claimed that it had lost votes. It also complained that the CEC had not had competence to change the rules on the composition of electoral rolls, this prerogative being reserved solely for Parliament, which alone was entitled to make the relevant legislative amendments to the EC. In the applicant party’s view, the fact that many voters had been refused the right to vote because of the new rules, and that the Government had total control over the electoral administration, had allowed the election results to be rigged. Based on statistical data about high voting activity across the country at particular times, provided by its representatives in the electoral commissions of the Kvemo Kartli, MeskhetJavakheti and Ajarian regions, the applicant party claimed that vote-riggers had fraudulently cast around 500,000 ballots in favour of the presidential and pro-presidential parties at 12 noon, 5 p.m. and 8 p.m. on election day.
34. The Supreme Court found the latter allegation unsubstantiated, reasoning that the applicant party had submitted no relevant evidence in support of it. As to the voter registration rules, the court noted that the CEC had issued Decree no. 30/2004 (see paragraph 23 above) by which it had remedied the deficiency of Article 9 § 12 of the EC, the effect of which had been suspended by the Constitutional Court on 26 December 2003 (see paragraph 45 below). Since that Ordinance allowed voter registration on the day of election, the allegation that the voters who had missed preliminary registration deadlines were subsequently denied the right to vote was held to be ill-founded.
35. Secondly, the applicant party complained that its representatives at various levels in the electoral commissions had been prevented by other members from fulfilling their duties properly. They had been threatened and instructed not to write complaints about violations observed, namely when votes cast in favour of the Georgian Labour Party were attributed to the presidential and pro-presidential parties. The applicant party complained that such permissive conduct was due to the composition of the electoral commissions, since, in every commission at all levels, eight out of the fifteen members were representatives of the presidential and propresidential parties.
36. Thirdly, the applicant party argued that the impugned Ordinance of 18 April 2004 was contrary to Article 105 § 19 of the EC, since it did not specify the total number of voters and the number of votes cast in each district.
37. In reply to these latter arguments, the Supreme Court reasoned that the applicant party should first have complained about the threats to its representatives before a district court. However, it gave no response to the complaint about the pro-presidential composition of the electoral commissions. As to the CEC’s failure to include information in the Ordinance about the total number of voters and the number of votes cast in each district, the court stated that this was not a gross violation of electoral legislation and could not therefore be regarded as grounds for invalidating that administrative act.
38. Lastly, the applicant party claimed that the finalisation of the countrywide election results without elections being held in the Khulo and Kobuleti districts had been unlawful. In view of the fact that there were at least 60,000 voters in those districts and that the applicant party needed only 16,000 votes in order to clear the 7% legal threshold, it complained that it had been unlawfully deprived of a genuine chance to obtain seats in Parliament. It noted that the Georgian Labour Party was, by and large, supported in the Ajarian constituency.
39. The Supreme Court replied as follows:
“It is true that the repeat parliamentary election results were annulled in the Khulo and Kobuleti electoral districts and the CEC called a new repeat election by its Ordinance ... [of 2 April 2004]. However, due to well-known events [tensions between the central and local authorities], the election was not held ... in those districts on account of factual circumstances, this being a ground for the annulment of an administrative act [the CEC Ordinance of 2 April 2004] under Article 60 § 1 (g) of the General Administrative Code of Georgia.”
Relying on Article 105 § 3 of the EC, the Supreme Court decided that the repeat election could be considered as having been held, since, according to the vote tally, more than a third of the total number of voters had taken part in it.
40. Acting as a private individual, the Chairman of the applicant party challenged CEC Decree no. 30/2004 of 27 February 2004 (the rules on the composition of electoral rolls) and Ordinance no. 94/2004 of 18 April 2004 (the vote tally) before the Constitutional Court. He claimed that the system of preliminary voter registration, the disfranchisement of the Khulo and Kobuleti constituencies and the presidential control of the electoral administration had infringed the constitutional principle of free and fair elections.
41. On 25 May 2004 the Constitutional Court declared the claim inadmissible. It reasoned that, since it was not a normative act, the disputed Ordinance could not be challenged before the Constitutional Court. As to the impugned Decree, it considered that, firstly, the claimant had failed to substantiate how this normative act had infringed any of his constitutional rights. Secondly, it stated that the claimant, as a private person, did not have standing to challenge the constitutionality of the election, this right being reserved by section 37 of the Constitutional Court Act for the President of Georgia and a specific number of MPs.
“The mandate of the previous Parliament shall cease immediately after the first meeting of the newly elected Parliament.”
“The first sitting of the newly elected Parliament shall be held within twenty days of the elections. The day of the first sitting shall be determined by the President. Parliament shall begin its work when the election of two-thirds of the members of parliament has been confirmed.”
Article 60 § 1 (c) – “A void legal-administrative act”
“A legal-administrative act shall be void as from its adoption if its implementation is impossible for factual reasons.”
“1. The general electoral roll is a list of persons with active electoral rights, who are registered in accordance with the law ...
5. The general list of voters shall be compiled ... on the basis of the data available at the territorial agencies of the Georgian Ministry for the Interior, ... data available at the corresponding agencies of the Ministry of Justice, ... data from local selfgovernment and/or administrative agencies, ... data on internally displaced persons communicated by the Ministry of Refugees and Settlement or by its territorial agencies, ... data communicated by the Ministries of Defence, the Interior and State Security, the State Department of State Border Protection and the Special State Protection Service, ... [and] data communicated by Georgian consular authorities ...
7. A registered party ... and voters ... shall be entitled to consult the public version of the general list available at the Central, District and Precinct Electoral Commissions (an elector having the right to consult only the data concerning his/her person and his/her family members ...) and, in the event of any inaccuracy, to request – not later than twenty-three days prior to the date of the election – that the appropriate amendments be made to the voters’ data and the electoral roll ...
8. The electoral administration shall, on its own initiative or following an application under § 7 of this Article, review the general electoral roll ... A decision by the District Electoral Commission rejecting [petitions for] amendments to the voters’ data and electoral roll shall be reasoned and, if requested, transmitted to the applicant from the day following its adoption.
12. [The above-mentioned decision] can be appealed to the competent district/city court within two days of its adoption. Where the court rules in favour of the applicant, the ruling shall, within three days but no later than by the thirteenth day prior to the election date, be delivered to the District Electoral Commission, which shall immediately furnish the relevant information to the Central Electoral Commission ... Electoral commissions shall immediately make the appropriate amendments to the electoral rolls ...
It is prohibited to make amendments to the electoral roll in the last ten days prior to the election date; from the nineteenth to the tenth day before [the election date], amendments shall be made only by a court ruling.”
The application of several provisions of Article 9 regulating the timelimits for compiling and examining electoral rolls, including § 12, was suspended on 26 December 2003 by the Constitutional Court. Finally, § 12 was invalidated on 24 January 2005 by the same court (see paragraph 45 below).
Under Article 10 § 1, the special list of voters included (a) electoral administration officers who, on election day, were working in an electoral precinct other than that of their residence; (b) voters who, on election day, were being treated in hospital or another in-patient centre; (c) voters who, on election day, were being held in police custody or pre-trial detention; (d) voters who were at sea on election day (they are enrolled at the relevant vessel’s port of registration); and (e) voters who were abroad on election day and registered at the relevant Georgian consulate as well as voters who were not on the consular register, but had registered in a PEC formed abroad or in a consulate.
Article 10 §§ 2, 3, 4, 5, 6 and 7 stipulated that the head of the appropriate institution with responsibility for the voters referred to Article 10 § 1 was to compile the special list, be responsible for the accuracy of the data entered on it, which was to be attested by his/her signature, and was to deliver it to the competent electoral commission.
“1. The electoral administration of Georgia is a legal entity of public law, which is established in accordance with this Law and shall exercise public authority within the limits specified by it. ...
3. The electoral administration is independent, within the limits of its competence, from other State institutions.
4. The electoral administration is a centralised system composed of the Central Electoral Commission of Georgia [CEC], ... District Electoral Commissions [DECs], [and] Precinct Electoral Commissions [PECs] ... The CEC is the supreme body of the electoral administration of Georgia. ...
6. The CEC is accountable to the Parliament of Georgia ...”
“A member of the electoral administration may not join a party, and if he [or she] was a party member, [that person] must withdraw from the party or suspend his [or her] membership for the term of office in the electoral administration ...”
“...
7. The decision of an electoral commission shall be considered to have been adopted if it is supported by the majority of the votes cast (unless the Law requires a higher quorum), but not less than one third of the commission members.
8. If the vote is tied, the chairman of the session shall have the casting vote. ...
13. The CEC shall adopt decrees by two-thirds of its members. No decree shall be adopted less than four days before the election date.”
Pursuant to Articles 34 § 2 (f), 61 § 5, 62 and 63 §§ 1 and 4, a DEC was competent to receive, examine and decide on requests for a recount or to annul election results in the relevant precincts, based on allegations of voting irregularities.
“1. No later than eighteen days after the date of the ballot, the CEC, based on the protocols received from the DECs and PECs, shall consolidate the results of the parliamentary and presidential elections ... and approve by its Ordinance the final protocol of the vote tally.
1(1) The CEC is prohibited from finalising the election results before the resolution of election-related disputes in the courts of general jurisdiction and without consideration of the outcome of those disputes. ...
The CEC shall consolidate the election results and determine: (a) the total number of voters; (b) the turnout of voters; (c) the number of ballots deemed invalid; ... and (e) the number of votes received by candidates.”
“Lodging appeals with a court shall not have a suspensive effect on the decision.”
Under Article 100 § 2, a party or bloc could cancel the nomination of one of its candidates even after the latter’s authority as an MP had been officially recognised.
“...
3. An election held under the proportional system shall be considered to have been held if at least one-third of the total number of voters took part in it. ...
6. Seats in Parliament shall be awarded only to party lists that receive no less than 7% of the votes cast.
7. In order to determine the number of seats received by a party list, the number of votes received by this list must be multiplied by 150 and divided by the total number of the votes received by the parties [which cleared the 7% threshold] ...
12. If, due to gross violation of the present law, the voting results are deemed invalid in more than half of the electoral precincts, or in ... precincts where the total number of voters represents more than 50% of the total number of voters in the electoral district concerned, the election results for the entire electoral district shall be deemed invalid and the CEC shall set a date for a repeat election.
13. If any application, complaint or dissenting opinion by a DEC member is submitted requesting revision or invalidation of the voting results, the CEC shall take a decision by passing an Ordinance for or against the opening of packages and the recounting of ballot papers (special envelopes) received from the relevant PEC. The CEC is empowered to collate the election results based on the PEC protocols. ...
16. A second ballot under the proportional representation system shall be held when the total number of voters in the precincts [where the voting results were invalidated] is more than 10% of the total number of voters in Georgia. In such cases, the second ballot shall be held within two weeks of the general election.
17. If the election under the proportional representation system is declared to have been held but none of the parties or electoral blocs have managed to clear the required threshold, a repeat election shall be held within two weeks of the general election, by Ordinance of the CEC.
18. Only those parties and electoral blocs which received 2% of the votes in the general election shall have the right to take part in the repeat election. The party lists ... shall remain unchanged. Amendments to them may be introduced only in accordance with the general rules established by this Law.
19. The summary protocol of the final election returns must disclose the names and numbers of those electoral districts and precincts in which the election was declared invalid, as well as the number of voters in them, the reason for declaring the election invalid, the total number of voters in each electoral district, the turnout of voters, [and] the number of members of parliament elected, with their names listed in alphabetical order.”
“...
3. If an election is declared ‘not held’, or if the election results are deemed invalid in a multi-seat electoral district, a repeat election shall be held. If the mandate of the parliamentarian elected in such a district is suspended before its term, a mid-term election shall be held.
4. The repeat election shall be held within two months ... The CEC shall set the election date and time-limits for electoral arrangements by Ordinance no later than seven days after the initial election ...
7. If an MP who resigns was elected through the party list of a party participating independently in the elections, the seat of such an MP shall be occupied within one month by the next candidate on the same list, provided that that candidate agrees to become an MP within fifteen days of the vacancy arising. Otherwise the vacant seat shall be occupied by the next candidate on the list, etc. If there is no other candidate named in the party list, the parliamentary mandate shall be deemed cancelled.”
Unlike the parliamentary election under the majority system, neither Article 106 nor any other provision of the EC provided for the possibility of conducting mid-term, repeat or other types of interim polls as under the proportional system after the countrywide election results had been finalised by the CEC (see paragraph 118 below).
An amendment to the EC, introducing provisional Articles 128, 128(1) and 128(2), was enacted on 5 August 2003 for the specific purpose of re-forming the CEC for the regular parliamentary election of 2003.
Pursuant to Article 128 § 2, the CEC was to be composed of fifteen members and its sessions were considered to be valid if attended by more than half of the members. Article 128 § 3 initially stated that the chairman of the CEC was to be appointed by Parliament following his or her nomination by the Organisation for Security and Cooperation in Europe (OSCE). However, this provision was amended on 28 November 2003 and, under the new rule, the chairman was to be appointed by the President of Georgia, with the approval of Parliament. Article 128 § 4 further established that five members of the CEC were also to be appointed by the President.
Pursuant to Article 128 § 5, the remaining nine members of the CEC were to be appointed as follows:
(a) three members by the party/electoral bloc which had come second in the parliamentary election of 1999;
(b) two members by the party/electoral bloc which had come third in the parliamentary election of 1999; and
(c) one member by each of the four parties/electoral blocs which had obtained the best results in the 2002 local election in Tbilisi, held under the proportional electoral system, unless that party/electoral bloc was entitled to appoint a commission member under the preceding subparagraphs (a) and (b).
Pursuant to Articles 128(1) § 2 and 128(2) § 2, the composition of the DECs and PECs was similar to that of the CEC. The chairman of the DEC was appointed by the President of Georgia with the approval of Parliament (Article 128(1) § 3), while the chairman of the PEC was appointed by the chairman of the corresponding DEC (Article 128(2) § 3). Five members of the DECs were appointed by one of the members of the CEC who had been appointed by the President of Georgia and granted this power by him or her (Article 128(1) § 4). Five members of the PECs were appointed by one of the five members of the corresponding DEC, appointed in accordance with Article 128(1) § 4.
By an amendment of 22 April 2005, the provisional rules under Articles 128, 128(1) and 128(2), as described above, were annulled.
45. Following an application by two voters, on 26 December 2003 the Constitutional Court suspended the effect of Article 9 §§ 7, 8, 10 and 12 and Article 10 §§ 1 (e) and 6 of the EC in the part regulating the time-limits for adding and revising voters’ names on electoral rolls. On 24 January 2005 the Constitutional Court invalidated Article 9 § 12 of the EC, upholding the constitutionality of the rest of the disputed provisions. The relevant part of the judgment provides as follows:
“... The registration of voters through the unified electoral roll is what provides citizens with the basis for exercising their right to vote. Consequently, under the disputed provision the right to vote is being denied to those citizens who do not find their names on the roll and are unable to register during the ten days preceding the election date, whereas a court ruling is necessary for registration between the nineteenth and tenth day prior to the election ...
The registration of voters is the responsibility of the relevant State authorities. When a citizen’s name is not found on the electoral roll, this is [the State authorities’] omission and should not limit the citizen’s right to vote. The Electoral Code should secure not merely formal but real mechanisms that would enable the exercise of the constitutional right.”
46. The relevant provisions of the Resolution provide as follows:
“...
7. ... [T]he Assembly asks the Georgian authorities to adopt without delay a number of measures, which must be fully implemented when the forthcoming parliamentary elections are held on 28 March 2004, in particular:
(i) to amend the Electoral Code and all other electoral legislation and regulations, ... so as to:
(a) modify the composition of the Central Electoral Commission and the electoral commissions at lower levels, in order to promote the principle of balanced, fair and equal representation of all political forces;
...
(c) ensure a clear segregation between governmental structures and the electoral authorities, and introduce a principle that the latter must be completely impartial; ...
(ii) to revise the electoral rolls, and create as soon as possible a single, centralised and computerised register of electors, and to put an end to the practice of registering voters’ names on supplementary lists on election day itself, a practice which entails a considerable risk of fraud.
8. The Assembly also declares its concern about the current reshaping of Georgian political life and the risk of the disappearance of all parliamentary opposition after the forthcoming elections and, in consequence, of any true institutional counterweight. If the elections were to culminate in the sole representation in Parliament of the ruling coalition, the Assembly might fear for the future of democratic pluralism in Georgia. It therefore recommends that the Georgian authorities amend the corresponding legislation so as to reduce the electoral threshold in the proportional representation system from 7% to at least 5%.”
47. The Code of Good Practice in Electoral Matters was adopted by the Venice Commission at its 51st Plenary Session (5-6 July 2002) and submitted to the PACE on 6 November 2002. Its relevant provisions provide as follows:
2. “Regulatory levels and the stability of electoral law”
“(a) Apart from rules on technical matters and detail – which may be included in the regulations of the executive –, rules of electoral law must have at least the rank of a statute.
(b) The fundamental elements of electoral law, in particular the electoral system proper, membership of electoral commissions and the drawing of constituency boundaries, should not be open to amendment less than one year before an election, or should be written in the constitution or at a level higher than ordinary law.”
3.1. “The organisation of elections by an impartial body”
“(a) An impartial body must be in charge of applying electoral law.
(b) Where there is no long-standing tradition of administrative authorities’ independence from those holding political power, independent, impartial electoral commissions must be set up at all levels, from the national level to polling station level.
(c) The central electoral commission must be permanent in nature.
(d) It should include:
(i) at least one member of the judiciary;
(ii) representatives of parties already in Parliament or having scored at least a given percentage of the vote; these persons must be qualified in electoral matters.
It may include:
(iii) a representative of the Ministry of the Interior;
(iv) representatives of national minorities.
(e) Political parties must be equally represented on electoral commissions or must be able to observe the work of the impartial body. Equality may be construed strictly or on a proportional basis ...
(f) The bodies appointing members of electoral commissions must not be free to dismiss them at will.
(g) Members of electoral commissions must receive standard training.
(h) It is desirable that electoral commissions take decisions by a qualified majority or by consensus.”
48. A selected passage from the Venice Commission’s Report on Electoral Law and Electoral Administration in Europe, issued on 9-10 June 2006, provides as follows:
“34. Although in many countries the influence of the executive government on the composition of the electoral commissions has, in general, greatly been reduced, in a few States still a significant number of commission members are nominated and appointed by the executive government, e.g. the President of the Republic or the Ministry of the Interior or Justice. For example, in Georgia five (out of fifteen) members of the Central Electoral Commission are appointed by the President, not including those members appointed by the governing parties in Parliament. To avoid the risk of governmental interference in the commission’s work, as a rule the number of commission members nominated and appointed by the executive government should, if at all, be very low.”
49. The relevant excerpts from the Report read as follows:
“Preliminary voter registers released in early October contained significant anomalies and errors. The number of voters registered in a number of individual districts showed a wide variation from previous elections ...
Inaccurate lists were of concern not only because errors could deny eligible citizens the right to vote but ... increased the possibility of election fraud.
Reports on errors in voter lists included: omitting entire apartment blocks or streets; voters being listed in the wrong districts; listing many deceased persons; and large numbers of duplicate entries. Despite the enormity of the task, many PECs worked conscientiously to rectify errors. However, some DECs failed to supply the PECs with voter lists, and many PECs appeared unfamiliar with new registration procedures and applied inconsistent methods. Many failed to display lists in a systematic or practical manner ...
Other problems included: a 2,250-page list of deceased persons in Tbilisi that was unusable as it was not broken down by district or precinct; IDP [internally displaced person] voters not being systematically included in lists; and significant numbers of voters lacking ID documents ...
Unexpectedly, on 26 October, the CEC decided to cease work on the central database altogether, thereby jettisoning the effort to improve the accuracy and transparency of voter registers. The PECs were permitted to use either handwritten or computerised lists. This decision dramatically altered the voter registration framework and caused a complete lack of uniformity in the type of list used.”
50. This Report was submitted by the respondent Government as part of their observations. Selected passages from its summary provide as follows:
“Conditions in the Autonomous Republic of Ajaria were once again not conducive to democratic elections. Intimidation and physical abuse of opposition supporters and journalists underlined the democratic deficit in Ajaria evident during this election process, effectively creating a dual standard for elections in Georgia.
The CEC administered these elections in a credible and professional manner. However, at times the CEC appeared to exceed its authority, for example, by extending legal deadlines or modifying other legal provisions through decrees. Several aspects of the election process were improved over previous elections, although some CEC decisions in the post-election period cast doubts about its impartiality.
Voter registers were further improved and consolidated in a computerised database ... However, further efforts are needed to complete voter lists, correct remaining errors, and improve their accuracy.
The lack of political balance on election commissions remained a source of concern. Some DECs and PECs failed to maintain appropriate distance from the ruling parties, and some local authorities interfered in the work of lower-level election commissions. President Mikheil Saakashvili’s offer to reduce the number of his appointees on the DECs and PECs from five to three addressed some of these concerns. However, these changes came late in the electoral process and should have been extended to the CEC. ...
The tabulation of results at district level was marred by irregularities in a number of DECs. In some cases, election material was delivered unsealed or inadequately secured, protocols were completed or changed at the DEC level, and in at least one case, the DEC members ‘negotiated’ the results. The handling of electionrelated complaints at some DECs was also inadequate.
An analysis of the PEC results made available by the CEC showed a number of anomalous or implausible results in a significant minority of districts. Such anomalies included: a rapid increase in voter turnout during the last three hours of voting; an implausible voter turnout, in some cases exceeding 100%, and sometimes coupled with a share of the vote for the ruling parties in excess of 95%; and instances of an unusually high percentage of invalid votes.
A total of fifty-two polling stations were invalidated by the DECs due to irregularities. The CEC cancelled the results in two districts in Ajaria (Khulo and Kobuleti) and ordered repeat elections for 18 April, which did not take place due to security reasons. The CEC’s decision to cancel the results and repeat elections in entire districts appeared to be based on questionable legal arguments.
Overall, the following elements marked positive developments for the election process:
• improvements in the administration of the election process;
• the enhanced professionalism and openness of the CEC;
• commendable efforts to improve, computerise and consolidate the voter lists, although they remain incomplete;
• with the exception of Ajaria, a peaceful and free pre-election period, although there was a late and very limited campaign;
• freedom of expression enjoyed by the media, with the exception of Ajaria; ...
However, some aspects of the process need to be addressed in order to remedy issues of concern and continue forward progress, including:
• the continuing lack of a clear separation between State administration and political party structures, and the ongoing potential for misuse of State administrative resources;
• the inability to ensure the balanced composition of election commissions at all levels;
• the interference by some local authorities in the functioning of a number of lowerlevel commissions, thereby lessening their independence;
• continuing irregularities in some polling stations, as indicated by implausible and anomalous results;
• irregularities at a relatively high number of DECs during the tabulation process, and the failure of some DECs to properly address complaints after election day;
• the adoption of some decisions by the CEC, such as the cancellation of results in two entire districts, which seem of questionable legality and could be perceived as having been politically motivated ...”
51. With regard to the new system of voter registration, the Report noted as follows:
“The CEC implemented a number of recommendations made by the OSCE/ODIHR in previous reports, including: ...
• consolidating the voter list into a central, computerised database;
• providing an additional period for citizens to register to vote and for a periodic display of newly-printed voter lists ...
The number of registered voters under-represented the number of eligible voters, partly because an active system of voter registration was instituted in December and again in March. Under an active system, citizens unwilling or unable to register are excluded from the lists ...
[T]he CEC began the consolidation of handwritten voter lists into a single computerised database. The accuracy of this data was verified, and many errors were eliminated.
The CEC produced voter lists according to the language in which they were originally compiled, which increased the transparency of the process for non-Georgian speaking voters ... While observers expressed increased confidence in the voter lists, particularly compared to November 2003, shortcomings were noted ...
After the election, the CEC announced that some 145,000 voters had registered to vote on election day, bringing the total number of registered voters to 2,343,087.”
52. The Report gave an account of the tensions between the central and Ajarian authorities on the eve of the repeat parliamentary election of 28 March 2004:
“The situation in the [AAR] remained tense, especially after a state of emergency was imposed on 23 November. The state of emergency decreased civil liberties, and consequently limited even further the campaign opportunities for parties in opposition to Ajarian leader Aslan Abashidze. Relations between the Georgian government and the Ajarian authorities deteriorated following the November events. On 14 March, President Saakashvili was denied entry into Ajaria, where he intended to campaign. The Georgian government reacted by imposing economic sanctions on Ajaria, and tensions mounted significantly. The situation seemed to improve after an agreement was reached during a meeting between Saakashvili and Abashidze on 18 March. However, the partial implementation of the agreement did not significantly reduce the tension prior to the elections ...
Opposition gatherings were violently suppressed or attacked by supporters of the Ajarian authorities ... Offices of parties in opposition to the Ajarian authorities and of non-governmental organisations (NGOs) were ransacked, opposition activists and journalists were assaulted or abducted, and members of election commissions were intimidated. While incidents of violence and intimidation also marred previous elections in Ajaria, the intensity and frequency with which they occurred this time was higher. Overall, the environment in Ajaria was once again not conducive to a meaningful democratic contest during this election process.”
53. The Report also commented on the situation surrounding the CEC’s decision of 2 April 2004 to cancel the election results in the Khulo and Kobuleti districts and call for repeat polls in those districts:
“On 2 April, the CEC decided to annul the district-wide election results in Khulo and Kobuleti and repeat polling in these two districts on 18 April. In addition, the CEC dismissed the entire membership of the two DECs and created two temporary groups composed of CEC members and CEC staff members to organise the repeat elections.
On 12 April, the CEC temporary groups were dispatched to Ajaria but they rapidly encountered active resistance. On 13-14 April, the temporary groups were forced to leave the Ajarian territory by crowds of people. On the same day, the CEC Chairman was prevented from entering Ajaria at Choloki checkpoint on the administrative border. On 16 April, at a press conference, the CEC Chairman declared that for security reasons elections in Khulo and Kobuleti would not be held on 18 April. Nevertheless, the elections were not officially cancelled.
The CEC based its decision to annul the district-wide election results in Khulo and Kobuleti and repeat polling in these two districts, respectively on Articles 105 § 13 and 105 § 12 of the EC.
Prior to election day, the EOM [the Election Observation Mission] attempted to clarify with the CEC Chairman whether the CEC had the authority to cancel the DEC results. During these discussions, he [the CEC Chairman] indicated that it was certainly a questionable issue. While EC Article 105 § 13 grants the CEC the right to examine the PEC documentation, recount ballots and sum up results based on PEC protocols, the EC does not specifically grant the CEC the authority to annul the results in an entire district.
In fact, the CEC simply cancelled the entire district results without hearing testimony or investigating the circumstances at each PEC or establishing with any certainty if the number of votes at the annulled polling stations was sufficient to meet the criteria outlined in Article 105 § 12. Furthermore, the CEC did not examine the electoral material. Elsewhere, where results were annulled this was done by DECs or local courts.
Notwithstanding the fact that violations took place in Khulo and Kobuleti districts, the decision to annul their results and call a repeat polling appeared inconsistent with the fact that major violations in other districts did not result in the annulling of the DEC results there. Moreover, the legal arguments used and legal basis were weak. The EOM believes that Article 105 § 12 relates to majoritarian elections rather than the proportional contest. The citing of this article rather than Article 105 § 16 (which specifically mentions its applicability to proportional elections) raises the question as to whether Georgia is a single electoral unit for the proportional election or seventy-five ‘fragments’. This issue is not adequately defined in the EC. ...
Should Article 105 § 16 be applied, then elections should also be repeated elsewhere, as more than 10% of voters within a district were affected by the annulling of results. Thus, it appeared that the CEC adopted different and legally questionable procedures just for these two districts.
[Election observers] appealed the CEC decision to invalidate the election results and to set repeat elections in Khulo and Kobuleti. In the course of the hearing it became apparent that CEC Order 82/2004 was based on a questionable decision-making procedure. The CEC could not prove that it made the decision to annul the district results on a PEC-by-PEC basis. The Tbilisi District Court upheld the CEC decision and challenged the election observers’ authority to bring the case. The court decided that their appeals were [in]admissible because their legitimate rights or interests were not damaged. [The observers] appealed this decision at the Supreme Court, that ruled against [them] in a closed session.
The decision to dismiss the case, based on the plaintiffs not having the legal right to appeal, was highly questionable. The EC does not clearly state that observers can appeal a CEC decision to invalidate the DEC results since there is no provision in the EC that the CEC can overrule a DEC in such cases. Consequently, the decision of the CEC had to be questioned, not the rights of observers. The dismissal of such an important and well-founded case ... contributed to the impression that the [electoral] law was applied in a non-transparent and inconsistent manner.”
54. In one of its working documents, the French Senate examined the systems of voter registration in Belgium, Denmark, Germany, Italy, the Netherlands, Portugal, Spain and the United Kingdom.
55. With the exception of Portugal and the United Kingdom, the initial registration of voters and subsequent amendments to the electoral rolls in these States are automatically carried out by the authorities on the basis of mandatory domiciliary declarations by the population.
56. In Portugal, the compilation and modification of electoral rolls depend on the voters’ individual requests to that end. Portuguese law even envisages individual criminal responsibility for those who fail to take the necessary steps for electoral registration.
57. In the United Kingdom, the system is mixed. The authorities compile electoral rolls automatically, on the basis of domiciliary declarations and the general census of the population. However, all subsequent modifications to the rolls are contingent upon voters’ individual declarations to that end.
60. The International Institute for Democracy and Electoral Assistance (IDEA) has identified three broad types or models of electoral management – the independent, governmental and mixed models (see Electoral Management Design: The International IDEA Handbook). The independent model of electoral management exists in those countries where elections are organised and managed by an electoral management body which is institutionally independent and autonomous from the executive branch of government, and which has, and manages, its own budget. It may be accountable to the legislature, the judiciary, or the Head of State, but not to the government. The governmental model exists in those countries where elections are organised and managed by the executive branch through a ministry (such as the Ministry of the Interior) and/or through local authorities. In the mixed model of electoral management, there are usually two component bodies, and dual structures exist: a policy, monitoring or supervisory body that is independent of the executive branch of government and an implementation body located within a Department of State and/or local government.
61. According to the classification system adopted by the IDEA, among the forty-seven member States of the Council of Europe there are twenty-two countries, mostly from central and eastern Europe, which follow the independent model. There are sixteen States which have adopted the governmental model, and nine the mixed model. Among the thirteen Contracting States considered in the IDEA handbook, four are classified as following the independent model (Bosnia and Herzegovina, Bulgaria, Moldova and Serbia), six the governmental model (Belgium, the Czech Republic, Germany, Italy, Sweden and the United Kingdom) and three the mixed model (Hungary, Portugal and Spain).
62. There are no common standards among Contracting States as regards the composition of electoral commissions and the appointment of their members. As regards the authority which is competent for formally appointing the commission members, there are some countries which provide for a unique institution (the parliament in Bosnia and Herzegovina, Hungary and Serbia; the Head of State in Bulgaria and the United Kingdom; and the government in Sweden). Even in these cases, however, other institutions and actors may intervene in the nomination process. For instance, in Bulgaria the members of the CEC are appointed after consultation with parliamentary parties and coalitions. In Hungary, the members of the National Election Committee are elected on the basis of a motion submitted by the Minister of the Interior, after taking the parties’ recommendations into account. In the United Kingdom, Her Majesty appoints the commission members on an address from the House of Commons, made after consultation with the leaders of registered parties.
63. There are other systems which provide for a mixed appointment by different State organs, including the judiciary. In Moldova, one member is appointed by the President, one by the government and seven by the Parliament. In Portugal, the National Election Commission is composed of a judge appointed by the judiciary, citizens designated by the Parliament and three specialists designated by governmental departments. The Spanish electoral boards have a quasi-judicial composition, since the majority of their members are directly appointed from among sitting judges by the General Council of the Judicial Power, whereas the rest are selected from among experts proposed by the political parties.
64. In systems which can be regarded as governmental from the standpoint of electoral management, such as Belgium or Germany, the majority of the assessors of the electoral boards/committees are appointed by the chairman (a judge in Belgium; the Federal Returning Officer nominated by the Ministry of the Interior in Germany) among electors. In Germany, most of the assessors are proposed by the political parties. In Italy, electoral boards responsible for the lawfulness of the electoral lists and candidates are created within the Court of Cassation and other tribunals. The difference with the countries mentioned above is that, in such countries, electoral bodies are set up for the exclusive purpose of specific elections.
65. In some States, such as Bosnia and Herzegovina, Hungary, Portugal, Spain and Sweden, the electoral commissions may be classified as expertbased. In others, such as Bulgaria, Moldova or Serbia, the commissions are composed of experts and representatives of political parties (combined membership). The electoral legislation in Hungary and Serbia provides for the possibility of expanded membership of the commissions to include representatives of political parties which have submitted electoral lists.
66. The general trend is that decisions are taken by a simple majority (Germany, Hungary, Moldova, Portugal, Serbia, Spain and Sweden). Only in Bosnia and Herzegovina (a two-thirds majority, except for municipal commissions), Bulgaria (a two-thirds majority) and the Czech Republic (an absolute majority), is a qualified majority required. In Bosnia and Herzegovina, if a decision cannot be reached at the first meeting, then at the second meeting the decision is taken by a majority vote.
67. In the case of a tie, the chairman has the casting vote in Germany, Portugal, Spain and Sweden. This helps to avoid eventual obstructions to the decision-making process. By contrast, in the Czech Republic, in the event of a tie, the proposal is deemed to be rejected. The fact that a chairman with the casting vote is directly appointed by the president of the Republic or the executive government, as in Georgia, is of course a relevant factor to be borne in mind for the assessment of the independence of an electoral agency. This can only be compared to the position of the Federal Returning Officer or the Land Returning Officer in the Federal Electoral Committee and the Land Electoral Committees in Germany, whose appointment depends on the Federal Ministry of the Interior or the Land Government. In both cases, the officer is the chairman of the committee and has a casting vote. By contrast, in the majority of the countries examined, the chairman is elected by the electoral commission itself (Bosnia and Herzegovina, Hungary, Moldova, Serbia and Spain).
68. One of the guarantees of election commissions’ independence is that persons who could be involved in an inherent conflict of interests should not be allowed to be appointed to electoral commissions, in particular registered candidates. This kind of rule can be found in the majority of the Contracting States considered (Belgium, Bosnia and Herzegovina, the Czech Republic, Germany, Hungary, Moldova, Portugal, Serbia, Spain and the United Kingdom). Apart from candidates standing for election, incompatibility requirements may apply to members of political parties or organisations nominating candidates (Hungary and Moldova), members or employees of registered parties (the United Kingdom), members of parliament, judges in the Supreme Court, servicemen in the armed forces, officers in the Ministry of the Interior (Bulgaria), the president of the Republic, heads of administrative offices, civil servants, and mayors (Hungary).
69. In order to achieve an adequate balance between political representatives in the commission, there are some systems which provide specific rules. For instance, in Bulgaria and Serbia, no political party or coalition may have a majority within the commission. In Bulgaria, the chairman and the secretary must belong to different political parties. In the Czech Republic, the chairman and the vice-chairman of an electoral board may not be representatives of the same political party or coalition.
NON_VIOLATED_ARTICLES: 14
P1
NON_VIOLATED_PARAGRAPHS: P1-3


ITEMID: 001-109084
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF B. v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: No violation of Article 14+P1-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 1 of Protocol No. 1 - Possessions)
JUDGES: Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1964 and lives in Middlesex.
5.
6. The applicant, who has a severe learning disability, has three children. From May 1990 she was in receipt of two non-contributory state benefits administered by the Secretary of State for Work and Pensions: child benefit and means-tested income support. Her income support personal allowance was assessed on the basis that she was a lone parent. She received an additional amount of personal allowance for each child who was a member of her family and a family premium. The benefits were paid by order book.
7. Pursuant to regulation 32(1) of the Income Support (General) Regulations 1987 (“the 1987 Regulations”), the applicant was under a duty to report any change of circumstance which might affect her entitlement to benefit to the Department of Work and Pensions (“DWP”). A note on the back of her order book advised her that she might break the law if she did not notify the DWP if a dependent or someone living with her moved to a different address. She had also received a Form INF4, which advised her that she should immediately inform the DWP if, inter alia, children that she had claimed for were taken into care.
8. In October 2000 the applicant’s three children were taken into care. She did not report this fact to the DWP. At the time, however, the applicant did not have the services of a social worker and she did not receive any practical help from the local authority disability team. It was accepted that she did not realise that this was a fact which she was required to report.
9. In November 2001 the applicant began to receive support from the Owl Housing Link Project, a charity which provides a range of support services to people with learning difficulties.
10. In December 2001 Owl Housing notified the DWP that the applicant’s children had been taken into care. There followed four separate decisions. First, the Secretary of State decided, pursuant to section 71(5A) of the Social Security Administration Act 1992 (“the 1992 Act”), to supersede her award of income support to reflect the fact that she had been receiving benefit to which she was not entitled. Secondly, a decision was made that the requirements of section 71(1) were satisfied so that the Secretary of State was entitled to recover the overpayment. Thirdly, the Secretary of State decided to exercise his discretion so as to recover the overpayment. Fourthly, the Secretary of State decided to recover the overpayment by reducing the applicant’s future payments of income support by the amount permitted by regulation 16 of the Recovery Regulations.
11. The amount of income support that the applicant had received in respect of her children after they had been taken into care was GBP 6,561.76. However, this amount was reduced by approximately 30 percent to GBP 4,626.74 because during the relevant period the applicant could have claimed, but did not claim, an income support disability premium.
12. The applicant appealed to the Social Security Appeal Tribunal (“the Tribunal”) against the Secretary of State’s decision that she had to repay GBP 4,626.74. She relied on previous decisions of the Social Security Commissioners, in which they held that there would be no failure to disclose unless disclosure was reasonably to be expected. If there was no failure to disclose, the question of recovery of an overpayment would not arise at all. The Tribunal allowed the applicant’s appeal, finding that the relevant test was not what a reasonable man would have thought it appropriate to disclose, but rather what a reasonable man knowing the particular circumstances of the claimant would have expected her to disclose. The Tribunal accepted that the applicant did not understand that the placing of her children in care was a material fact which she needed to disclose to the DWP, and that it was not reasonable to expect her, in the particular circumstances of her case, to have disclosed that fact.
13. The Secretary of State appealed to the Social Security Commissioners (“the Commissioners”). The Commissioners allowed the appeal, holding that if a claimant was aware of a matter which he or she had been required to disclose, there would be a breach of that duty even if, because of mental incapacity, the claimant was unaware of the materiality or relevance of the matter or did not understand an unambiguous request for information. Notwithstanding the settled case-law of the Commissioners, the “reasonableness test” was not a requirement under section 71 of the 1992 Act and did not represent a possible construction of section 71. Capacity was not relevant to the issue of failure to disclose and the applicant was in breach of the obligations imposed on her under the first limb of regulation 32(1) of the 1987 Regulations.
14. The applicant appealed to the Court of Appeal. She submitted that there had been a violation of Article 14 of the Convention read in conjunction with Article 1 of Protocol No. I in that the State’s interference with her possessions discriminated unjustifiably between people who were unable to report facts because they were not aware of them and people who, like the applicant, were unable to report them for some other reason. It was argued in the alternative that the law treated identically people who were capable and people who were incapable of understanding that there was a fact which they were required to report.
15. The Court of Appeal held that the argument fell at the first fence because there were no possessions of the applicant at stake: what the Secretary of State was claiming was an entitlement to recover money which should not have been paid to the applicant in the first place. Although the decision of the Court of Appeal in the case of R. (Carson and Reynolds) v. the Secretary of State for Work and Pensions to the effect that a noncontributory benefit such as income support was not a possession within the meaning of Article 1 was taken as correct by the House of Lords, the underlying issue of principle awaited the decision of the Grand Chamber of the Court in the case of Stec. The recovery of overpaid benefits, however, stood outside this question and by parity of reasoning outside Article 1 of Protocol No. 1.
16. The Court of Appeal went on to reject in any event the applicant’s first alleged ground of discrimination as it did not consider people who were unable to report facts because they were not aware of them to be in an analogous, or relevantly similar, situation to people who were unable to report them for some other reason. The proposition that you could not report something that you did not know was a simple proposition of logic, whereas the proposition that you could not report something you did not appreciate you had to report depended on difficult questions of cognitive capacity and moral sensitivity which varied from person to person.
17. As to the latter ground relied upon by the applicant, namely that the law treated identically people who were capable and people who were incapable of understanding that there was a fact which they were required to report, the Court of Appeal found it unnecessary to determine what was considered to be a difficult question, since the recovery of overpaid benefits could not in any event amount to a deprivation of possessions.
18. On 6 March 2006 the applicant was refused permission to appeal to the House of Lords.
19. At the relevant time, regulation 32(1) of the 1987 Regulations provided that:
“Except in the case of a jobseeker’s allowance, every beneficiary and every person by whom or on whose behalf sums payable by way of benefit are receivable shall furnish in such a manner and at such times as the Secretary of State ... may determine such certificates or other documents and such information and facts affecting the right to benefit or its receipt as the Secretary of State ... may require (either as a condition on which any sum or sums shall be receivable or otherwise) and in particular shall notify the Secretary of State ... of any change of circumstances which he might reasonably be expected to know might affect the right to benefit, or to its receipt, as soon as reasonably practicable after its occurrence, by giving notice in writing (unless the Secretary of State ... determines in any particular case to accept notice otherwise than in writing) of any such change to the appropriate office.”
20. Pursuant to section 10 of the Social Security Act 1998, the Secretary of State for Work and Pensions had power to supersede an award of income support, where there had been a relevant change in circumstances, with retrospective effect from the date when the change occurred.
21. Where there was a failure to disclose a relevant change in circumstances, section 71 of the 1992 Act provided that:
“(1) Where it is determined that, whether fraudulently or otherwise, any person has misrepresented, or failed to disclose, any material fact and in consequence of the misrepresentation or failure—
(a) a payment has been made in respect of a benefit to which this section applies; or
...
the Secretary of State shall be entitled to recover the amount of any payment which he would not have made or any sum which he would have received but for the misrepresentation or failure to disclose.
(2) Where any such determination as is referred to in subsection (1) above is made on an appeal or review, there shall also be determined in the course of the appeal or review the question whether any, and if so what, amount is recoverable under that subsection by the Secretary of State.
(3) An amount recoverable under subsection (1) above is in all cases recoverable from the person who misrepresented the fact or failed to disclose it.
(5) Except where regulations otherwise provide, an amount shall not be recoverable under subsection (1) above unless the determination in pursuance of which it was paid has been reversed or varied on an appeal or revised on a review or has been revised under section 9 or suspended under section 10 of the Social Security Act 1998.
(8) Where any amount paid is recoverable under—
(a) subsection (1) above;
it may, without prejudice to any other method of recovery, be recovered by deduction from prescribed benefits.
(10) Any amount recoverable under the provisions mentioned in subsection (8) above—
(a) if the person from whom it is recoverable resides in England and Wales and the county court so orders, shall be recoverable by execution issued from the county court or otherwise as if it were payable under an order of that court; and
...
(11) This section applies to the following benefits—
(b) income support; ”
22. Regulations 13, 15 and 16 of the Social Security (Payments on account, Overpayments and Recovery) Regulations 1988 (“the 1988 Regulations) provide as follows:
13. In calculating the amounts recoverable ... where there has been an overpayment of benefit, the adjudicating authority shall deduct—
(a) any amount which has been offset under Part III;
(b) any additional amount of income support which was not payable under the original, or any other, determination, but which should have been determined to be payable—
(i) on the basis of the claim as presented to the adjudicating authority, or
(ii) on the basis of the claim as it would have appeared had the misrepresentation or non-disclosure been remedied before the determination;
but no other deduction shall be made in respect of any other entitlement to benefit which may be, or might have been, determined to exist.
...
15.—(1) Subject to regulation 16, where any amount is recoverable ... that amount shall be recoverable by the Secretary of State from any of the benefits prescribed by the next paragraph to which the person from whom it is determined the amount to be recoverable is entitled.
(2) The following benefits are prescribed for the purposes of this regulation—
...
(d) subject to regulation 16, any income support.
16.—
...
(4) Regulation 15 shall apply to the amount of income support to which a person is presently entitled only to the extent that there may, subject to paragraphs 8 and 9 of Schedule 9 to the Claims and Payments Regulations, be recovered in respect of any one benefit week—
(a) in a case to which paragraph (5) applies, not more than the amount there specified; and
(b) in any other case, 3 times 5 per cent. of the personal allowance for a single claimant aged not less than 25, that 5 per cent. being, where it is not a multiple of 5 pence, rounded to the next higher such multiple.
(5) Where the person responsible for the misrepresentation of or failure to disclose a material fact has, by reason thereof, been found guilty of an offence under section 55 of the Act or under any other enactment, or has made a written statement after caution in admission of deception or fraud for the purpose of obtaining benefit, the amount mentioned in paragraph (4)(a) shall be 4 times 5 per cent. of the personal allowance for a single claimant aged not less than 25, that 5 per cent. being, where it is not a multiple of 10 pence, rounded to the nearest such multiple or, if it is a multiple of 5 pence but not of 10 pence, the next higher multiple of 10 pence.
(6) Where, in the calculation of the income of a person to whom the income support is payable, the amount of earnings or other income falling to be taken into account is reduced by paragraphs 4 to 9 of Schedule 8 to the Income Support Regulations (sums to be disregarded in the calculation of earnings) or paragraphs 15 and 16 of Schedule 9 to those Regulations (sums to be disregarded in the calculation of income other than earnings) the weekly amount applicable under paragraph (4) may be increased by not more than half the amount of the reduction, and any increase under this paragraph has priority over any increase which would, but for this paragraph, be made under paragraph 6(5) of Schedule 9 to the Claims and Payments Regulations.
(7) Regulation 15 shall not be applied to a specified benefit so as to reduce the benefit in any one benefit week to less than 10 pence.
...”
23. The Secretary of State’s policy on the recovery of overpaid benefit is set out in the Overpayment Recovery Guide, which contains guidance for decision-makers to adjudicate in overpayment cases. Section 12 of the Guide addresses “abatement by notional entitlement”, which is the exercise of discretion to recover a lower amount on account of the fact that a claimant could have claimed, but did not claim, some other social security benefit during the same period. In those circumstances, recovery is made of the net loss to public funds. Section 12 also addresses the exercise of discretion to waive recovery of overpayments, which is normally considered where there is reasonable evidence available that the recovery of an overpayment would be detrimental to the health and/or welfare of the debtor or their family or that recovery would not be in the public interest.
NON_VIOLATED_ARTICLES: 14
P1
NON_VIOLATED_PARAGRAPHS: P1-1
NON_VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-76453
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF KEEGAN v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Violation of Art. 8;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: Giovanni Bonello;Ján Šikuta;Josep Casadevall;Kristaq Traja;Matti Pellonpää;Nicolas Bratza
TEXT: 7. The applicants are Gerard Keegan, an Irish citizen born in 1955, and Moira Keegan, a United Kingdom national born in 1963, husband and wife, and their children, Carl, Michael, Katie and Sophie, United Kingdom citizens born in 1985, 1996, 1997 and 1997 respectively. They were all resident in Liverpool.
8. In April 1999 the applicants became tenants of a house owned by Liverpool City Council at 19 New Henderson Street. The property had been vacant for six months and the previous tenant had been Anita or Joseph De La Cruz.
9. Meanwhile a series of armed robberies was carried out by a number of armed males: on 29 January 1997, 30 April, and 13 August 1999. On 14 August 1999, the police arrested a certain Heffy, later convicted for the robbery. They also arrested a man who arrived during the arrest. He gave his name as Dean Metcalfe but subsequent investigation revealed that he was Dean De La Cruz, son of Anita De La Cruz. He was not charged and was released. The police were tasked with investigating, and arresting, any further members of the gang and recovering the money from the robberies. The information which came into their possession indicated that Dean De La Cruz had often given 19 New Henderson Street as his address, that saliva taken from a scarf in a car abandoned after a robbery matched that of Dean De La Cruz and that Anita De La Cruz was still on the voters’ register as residing at that address.
10. On 18 October 1999 Detective Constable Wilson went before a Justice of the Peace and applied on oath for a warrant to search 19 New Henderson Street for cash stolen during the robberies. He swore on oath that he had reasonable cause to believe that such stolen cash was in the possession of the occupier of the property. A search warrant was issued permitting a search of the premises for the cash.
11. On 21 October 1999, at 6 a.m., the police officers gathered at police headquarters. It was intended to search eight properties. Sergeant Gamble and four other officers were detailed to go to 19 New Henderson Street. They were briefed that Dean De La Cruz was linked to the robberies and given a photograph of him. They knew that the robberies had involved the use of firearms. They were instructed to obtain forcible entry at 7 a.m. to coincide with the other searches.
12. The police team used a metal ram to make a hole in the door. They experienced some difficulty as a previous tenant had reinforced the door.
13. The noise of the battering ram awoke and frightened the applicants. The first applicant came down the stairs and was told by the police who they were and to open the door. The first applicant complied and the sergeant entered and showed his warrant card and explained that he was looking for Dean Metcalfe. A cursory examination of the house took place to verify that no one save the applicants was present. The sergeant apologised to the first and second applicants and arranged for repairs to be made to the front door. The police left at about 7.15 a.m.
14. The applicants brought proceedings against the Chief Constable of Merseyside Police for the tort of maliciously procuring a search warrant, unlawful entry and false imprisonment. They alleged that they had been caused terror, distress and psychiatric harm. Medical reports indicated that the applicants were suffering from varying degrees of post traumatic stress disorder.
15. On 31 October 2002 the County Court Judge rejected the applicants’ claims. He made a number of findings of fact or inferences:
– that the police made enquiries prior to the search with utility companies and Liverpool County Council Housing Department about 19 New Henderson Street and that the rough police notes of these enquiries had been destroyed or mislaid from which he drew the adverse inference that such checks revealed that Anita De La Cruz was no longer living there but that the applicants were;
– that the police considered covert surveillance of the property but decided that this was not advisable as there were sophisticated criminals living in the area who were skilled at spotting covert police operations;
– that Sergeant Gamble had reasonable grounds, following his briefing, for believing that a person wanted for robbery was to be found on the premises and that he had not been informed that the applicants were now living there.
16. The judge found on the facts that the police, who were investigating serious and violent offences, had not acted with reckless indifference to the lawfulness of their acts, which element was necessary for the tort of maliciously procuring a search warrant. He held that the entry was made subject to a lawful search warrant and also under the powers of section 17 of the Police and Criminal Evidence Act 1984, which allowed entry without warrant where intending to arrest a person for an arrestable offence. He found that the method of forcible entry was justified as the police had foremost in their minds the potential danger from the use of firearms by the suspect robber and in particular that the sergeant had no cause to suspect that innocent people were the only ones on the premises. He found that once on the premises there was no indication that the police had physically detained the applicants or ordered them to remain in one place. He noted that the sergeant had speedily realised the mistake, apologised and shown compassion for the applicants’ plight, in particular by not lengthening the ordeal.
17. He concluded:
“... It will be difficult for the claimants to accept that their innocent occupation of their property was devastated by the events, albeit of only fifteen minutes, which occurred on 21 October 1999. Any system of justice must balance competing interests and this is a classic case of competing interests being balanced. On the one hand, the need to bring to justice violent criminals, on the other the need to try and preserve the sanctity and integrity of a law-abiding family’s home... but in every case of competing interests, the scales will have to come down on one side or the other. In my judgment the scales come down in favour of the defendants and all claims are dismissed.”
18. The applicants appealed, alleging, inter alia, that the judge had failed to consider properly whether the police had reasonable and probable cause to apply for a warrant to search for stolen cash at 19 New Henderson Street.
19. On 3 July 2003 the Court of Appeal dismissed the applicants’ appeal. While Lord Justice Kennedy found that if proper enquiries had been made and the results properly reported there would have been no reasonable or probable cause to apply for a search warrant, he held that the requirement of malice was not made out as there was no evidence of any improper motive (incompetence or negligence did not suffice). He further held that the entry, being made under a warrant which was on the face of it lawful, was itself lawful and that while those responsible for sending Sergeant Gamble and his team to the address had been mistaken that did not deprive them of legal protection. Lord Justice Ward commented that the shoddy detective work did not justify a finding in the police’s favour and that the case caused him concern. However, notwithstanding his anxious consideration and sympathy for the family, he stated:
“That an Englishman’s home is said to be his castle reveals an important public interest, but there is another public interest in the detection of crime and the bringing to justice of those who commit it. These interests are in conflict in a case like this and on the law as it stood when these events occurred, which is before the coming into force of the Human Rights Act 1998, which may be said to have elevated the right to respect for one’s home, a finding of malice on the part of the police is the proper balancing safeguard.
Upon careful reflection, I agree with my Lords that it is inevitable that malice will not be proved in this case.”
20. Counsel advised as follows on the prospects of obtaining leave to appeal to the House of Lords:
“4. Essentially, on the issue of malicious procurement of a search warrant and in trespass, the court has thought that prior to the introduction of the Human Rights Act 1998, proof of malice is a necessary component of such a challenge and that the evidence was not there to prove it. It seems to me that this conclusion will not be displaced by the House of Lords. I also think, on the authorities relating to the Human Rights Act 1998, that there is no question of the House of Lords suggesting that the courts below should have done anything differently in their approach to the case.
5. In my view, therefore, the prospects of seeking leave to appeal from the House of Lords are poor and I do not advise that such leave be sought.”
21. Section 17 of the Police and Criminal Evidence Act 1984 provides for entry and search without a search warrant:
“(1) Subject to the following provisions of this section ..., a constable may enter and search any premises for the purpose–
...
(b) of arresting a person for an arrestable offence;
...”
22. Police can also apply to the magistrates’ court for a warrant. The grant of a warrant is subject to the safeguards in the Police and Criminal Evidence Act 1984. Section 15 provides, inter alia, that the constable must state the ground on which he makes the application and the enactment under which the warrant would be issued; specify the premises to be entered and searched; and identify in so far as practicable the articles or persons sought. Applications are made ex parte and supported by an information in writing. The constable must answer on oath any question put to him by the Justice of the Peace or judge. There is no statutory requirement for the court issuing the warrant to make findings or give reasons for issuing the warrant.
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