The Tomenko v. Ukraine case offers a valuable opportunity to explore the tension between party discipline and parliamentary freedom within the context of the European Convention on Human Rights (ECHR). This issue forms part of the ongoing broader debate in European parliamentary systems on the degree of autonomy that elected representatives can exercise with respect to the political party that nominated them, and conversely, on the extent to which parties can bind their members once they enter Parliament.

In this case, the applicant, Mykola Volodymyrovych Tomenko, a Ukrainian politician with extensive parliamentary experience, was elected in 2014 on the Petro Poroshenko Bloc ‘Solidarity’ list. After voicing his opposition to the government's budgetary policies, which he deemed ‘anti-humanitarian’ and ‘anti-social’, Tomenko decided to leave the party's parliamentary faction. A few months later, the party amended its statutes to introduce a substantially retroactive provision. Invoking the principle of the imperative mandate set out in the Ukrainian Constitution, this provision gave the party congress the power to revoke the mandates of members who had left the political faction. A few months later, the party amended its statutes by introducing a substantially retroactive provision. Invoking the principle of the imperative mandate, as set out in the Ukrainian Constitution, this gave the party congress the power to revoke the mandates of deputies who had left the political faction. Based on this new rule, the congress decided to terminate the mandates of Tomenko and another Member of Parliament (MP) with immediate effect and replace them. Their parliamentary allowances and other benefits associated with their office were also suspended.

Before the Ukrainian Supreme Administrative Court, the applicant challenged the legality of the revocation. They argued that, while the Constitution did allow for an imperative mandate, this could only be applied if there was a law governing the conditions and procedures for doing so. Such a law had never been adopted in this case. However, the national court dismissed the appeal, deeming the constitutional provision to be directly applicable and sufficient to justify the termination of the mandate. Having exhausted domestic remedies, Tomenko appealed to the European Court of Human Rights (ECHR), complaining of, among other violations, a breach of Article 3 of Protocol No. 1 to the Convention. He argued that the termination of his mandate constituted an arbitrary restriction of his right to freely exercise an office elected by the people.

The Strasbourg Court examined the case from the perspective of Article 3 of Protocol No. 1. Firstly, the Court found that Ukraine lacked a clear and predictable legal framework that defined the scope of political parties' powers in applying constitutional provisions on the imperative mandate. Furthermore, Ukraine had failed to establish procedures and safeguards against potential abuses. The absence of implementing legislation, coupled with a lack of consistent practice, created a legal vacuum in which decisions to revoke parliamentary mandates were left to the discretion of the parties, raising the risk of the power being used for political purposes. Recalling European constitutional tradition and its own case law, particularly the Paunović and Milivojević v. Serbia precedent, the Court reiterated that parliamentarians represent the people as a whole, not the party to which they belong. The Court also stated that the loss of a mandate due to a change in political affiliation contravenes the principle of a free mandate, which forms the basis of democratic parliamentarianism.

Upon analysing the specific situation, the Court noted that numerous MPs had previously left the Solidarity faction without having their mandates revoked. This demonstrated the unpredictability of applying this measure to the applicant. The Court also noted that this situation, combined with the total absence of legal procedures and effective remedies against arbitrary decisions, rendered the termination of the mandate contrary to the principles of legality and legal certainty, both of which are essential components of the rule of law. Furthermore, the Court noted that Ukrainian MPs are required by their oath to represent the interests of the Ukrainian people as a whole, rather than those of their party. Therefore, the measure adopted violated the constitutional concept of the parliamentary role itself.

The Court also referred to the views of the Venice Commission, the Parliamentary Assembly of the Council of Europe, and the OSCE. All of these bodies agreed that an imperative mandate was incompatible with representative democracy because it turns an elected representative into a mere party delegate, thereby emptying popular representation of its meaning. While recognising the legitimacy of preserving parliamentary group coherence and preventing political defections or horse-trading, the Court emphasised that these aims cannot justify measures allowing parties to override the electorate's will arbitrarily. In this sense, the party's decision to terminate the applicant's mandate was not only deemed illegal, but also manifestly disproportionate to the stated objectives. This is because it effectively cancelled the election result and altered the composition of Parliament without any legal basis or judicial review.

The Court's reasoning is based on two main points. Firstly, the measure lacks legal basis and predictability, conflicting with the principle of substantive legality. Secondly, it violates the right to free and independent political representation, which is an essential component of the right to free elections. In summary, the Court concluded that revoking Tomenko's mandate had prevented the people from freely expressing their will, and that Ukraine had therefore violated Article 3 of Protocol No. 1.

From a systemic point of view, the decision is of great significance. It reaffirms that in a representative democracy, a parliamentary mandate is not a concession granted by a political party, but rather a title conferred directly by the electorate. Any interference with this mandate is therefore a distortion of popular sovereignty. Furthermore, the Court has strengthened the link between Article 3 of Protocol No. 1 and the principle of the rule of law. It has reiterated that the right to free elections does not end at the moment of voting; it also implies that elected representatives can carry out their duties free from undue political or legal pressure. The judgment in Tomenko v. Ukraine is therefore part of a line of case law aimed at consolidating the protection of parliamentary freedom and countering any authoritarian tendencies that seek to subordinate legislative power to the will of political parties or the executive. This reaffirms the principle that political representation belongs to the people, not the organisations that mediate its expression.

 

(Comment by Edin Skrebo)