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Гърция осъдена от свои граждани в ЕСПЧ, не е осигурила правото им на гласуване в чужбина

2010.07.09 Няма коментари
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На 8 юли 2010 г. Европейският съд по правата на човека в Страсбург (ЕСПЧ), по делото Ситаропулос и Гиакумопулос срещу Гърция, осъди Гърция за нарушение на Член 3 от Протокол № 1 на Европейската конвенция за правата на човека за нарушаване на тяхното право да гласуват на парламентарните избори през 2007 г. Двамата жалбоподатели са гръцки граждани-служители в Съвета на Европа. С факс до посланика на Гърция във Франция те са поискали да им бъде осигурено право да гласуват на изборите. Посланикът отговорил, че това не може да стане „по обективни причини”, тъй като няма специално законодателство, което да налага създаване на изборни секции в представителствата на Гърция в чужбина.

ЕСПЧ констатира, че Конституцията на Гърция още отпреди 30 години изисква държавата да организира гласуване за своите граждани в чужбина, но това изискване не е въплътено в закон. Съдът прие, че макар гръцките граждани в чужбина да са били в състояние да пътуват до Гърция за да гласуват, това „значително усложнява упражняването на тяхното право, тъй като включва разходи и притеснения за техния професионален и семеен живот”. По тази причина той намира нарушение на Член 3 от Протокол № 1.

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Press release issued by the Registrar
Chamber judgment
Not final1
Sitaropoulos and Giakoumopoulos v. Greece (application no. 42202/07)
By a majority
Violation of Article 3 of Protocol No. 1 (right to free elections)
to the European Convention on Human Rights

Principal facts
The applicants, Nikolaos Sitaropoulos and Christos Giakoumopoulos2, are Greek nationals who were born in 1967 and 1958 respectively and live in Strasbourg, where they are officials of the Council of Europe.
In a fax dated 10 September 2007 to the Greek Ambassador in France, the applicants, being permanent residents in France, expressed the wish to exercise their voting rights in France for the Greek parliamentary elections.
The Ambassador replied that their request could not be granted “for objective reasons”, namely the absence of the legislative regulation that was required to provide for “special measures … for the setting up of polling stations in Embassies and Consulates”.
As a result, the applicants could not exercise their voting rights in the elections of 16 September 2007.
Complaints, procedure and composition of the Court
Relying on Article 3 of Protocol No. 1 the applicants complained that they had been unable to exercise their right to vote at their place of residence, as they were living abroad.
The application was lodged with the European Court of Human Rights on 20 September 2007.
Judgment was given by a Chamber of seven judges, composed as follows:
Nina Vajić (Croatia), President,
Anatoly Kovler (Russia),
Elisabeth Steiner (Austria),
Khanlar Hajiyev (Azerbaijan),
Dean Spielmann (Luxembourg),
Sverre Erik Jebens (Norway), Judges,
Spyridon Flogaitis (Greece), ad hoc Judge,

And also Søren Nielsen, Section Registrar.
Decision of the Court
Article 51 § 4 of the Greek Constitution (“Article 51 § 4”), a provision that was adopted in 1975 and restated when the Constitution was revised in 2001, authorised the legislature to lay down the conditions for the exercise of voting rights for expatriate voters.
Whilst the applicants could always have gone to Greece in order to vote, the de facto obligation to travel considerably complicated the exercise of their right because it entailed expenses and disturbance to their professional and family life.
Article 3 of Protocol No. 1 to the European Convention on Human Rights did not require States to secure voting rights in parliamentary elections for voters living abroad. However, the Greek constitutional provision in question (Article 51 § 4) could not remain inapplicable indefinitely, otherwise its content and the intention of its drafters would be deprived of any normative value. Thirty-five years after it was adopted, the legislature had still not rendered that provision effective. In addition, whilst a bill of February 2009 entitled “Exercise of the right to vote in parliamentary elections by Greek voters living abroad” indicated an intention to legislate on the matter, the Court noted that it had been put before Parliament eight years after the last revision of the Constitution. In addition, since that bill had failed in April 2009, no fresh initiative had been taken.
The lack of legislative implementation in respect of expatriates’ voting rights was likely to constitute unfair treatment of Greek citizens living abroad – especially at a significant distance – in relation to those living in Greece, contrary to the Council of Europe’s texts urging member States to enable their non-resident citizens to participate to the fullest extent possible in elections3. On the basis of a comparative study of the domestic law of 33 member States of the Council of Europe, the Court observed that the vast majority (29) had implemented procedures for that purpose4, and concluded that Greece fell below the common denominator in such matters.
The Court reiterated that the European Convention on Human Rights was intended to guarantee not rights that were theoretical or illusory but rights that were practical and effective. It emphasised that it was more demanding concerning the “active” aspect – restrictions on voting rights – than the “passive” aspect – the right to stand for election – of Article 3 of Protocol No. 1, and that Greece could not rely on the broad margin of appreciation usually afforded to States in such matters under that provision.
Therefore, the absence for over three decades of effective measures to enable Mr Sitaropoulos and Mr Giakoumopoulos to exercise their right to vote in national elections from their place of residence had breached the right to free elections. The Court found, by five votes to two, that there had been a violation of Article 3 of Protocol No. 1.
Just satisfaction
Under Article 41 the Court held that the finding of a violation constituted in itself just satisfaction for the non-pecuniary damage suffered and that Greece had to pay Mr Sitaropoulos and Mr Giakoumopoulos 2,000 euros jointly for costs and expenses.
Separate opinions
Judges Spielmann and Jebens expressed a joint partly dissenting opinion. Judges Vajić and Flogaitis each expressed a dissenting opinion. These opinions are annexed to the judgment.
The judgment is available only in French. This press release is a document produced by the Registry. It does not bind the Court. Decisions, judgments and further information about the Court can be found on its Internet site. To receive the Court’s press releases, you can subscribe to the Court’s RSS feeds.
Press contacts
[email protected] / +33 3 90 21 42 08
Céline Menu-Lange (telephone: + 33 3 90 21 58 77)
Emma Hellyer (téléphone : +33 3 90 21 42 15)
Tracey Turner-Tretz (telephone: + 33 3 88 41 35 30)
Kristina Pencheva-Malinowski (telephone: + 33 3 88 41 35 70)
Frédéric Dolt (telephone : + 33 3 90 21 53 39)
Nina Salomon (telephone : + 33 3 90 21 49 79)
The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.
1 Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on the day the request is rejected.
Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.

2 Stephanos Stavros did not maintain his application, so the Court decided to strike it out of the list (Article 37 § 1 of the Convention) as far as he was concerned

3 see Resolution 1459(2005) of the Parliamentary Assembly of the Council of Europe; and Recommendation 1714(2005) of the Parliamentary Assembly of the Council of Europe.

4 26 countries allow expatriates to vote at their place of residence (Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Estonia, Finland, France, Georgia, Germany, Hungary, Italy, Latvia, Lithuania, Luxembourg, Moldova, Poland, the Netherlands, Romania, Russia, Serbia, Slovakia, Spain, Sweden, Switzerland, Ukraine and the United Kingdom). Three countries limit the right to vote to a certain category of expatriate or to a particular type of election (Ireland, Denmark and the Czech Republic). Lastly, in four countries there is no possibility to cast a vote abroad in parliamentary elections (Albania, Armenia, Azerbaijan and Malta).

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