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E.C.H.R.
Mathieu-Mohin and Cleyrfat v Belgium, 2 March 1987.
According to the Preamble to the Convention, fundamental human rights and freedoms are best maintained by "an effective political democracy". Since it enshrines a characteristic principle of democracy, Article 3 of Protocol No. 1 (P1-3) is accordingly of prime importance in the Convention system.
As regards the method of appointing the "legislature", Article 3 (P1-3) provides only for "free" elections "at reasonable intervals", "by secret ballot" and "under conditions which will ensure the free expression of the opinion of the people". Subject to that, it does not create any "obligation to introduce a specific system" ("Preparatory works", vol. VII, pp. 130, 202 and 210, and vol. VIII, p. 14) such as proportional representation or majority voting with one or two ballots.(…)
Electoral systems seek to fulfil objectives which are sometimes scarcely compatible with each other: on the one hand, to reflect fairly faithfully the opinions of the people, and on the other, to channel currents of thought so as to promote the emergence of a sufficiently clear and coherent political will. In these circumstances the phrase "conditions which will ensure the free expression of the opinion of the people in the choice of the legislature" implies essentially - apart from freedom of expression (already protected under Article 10 of the Convention) (art. 10) - the principle of equality of treatment of all citizens in the exercise of their right to vote and their right to stand for election.
United Communist Party v. Turkey, 30 January 1998, Case 133/1996/752/951.
Dissolution of a political party by the Constitutional Court
(…)even more persuasive than the wording of Article 11, in the Court's view, is the fact that political parties are a form of association essential to the proper functioning of democracy. In view of the importance of democracy in the Convention system, there can be no doubt that political parties come within the scope of Article 11.
The Commission took the view that freedom of association not only concerned the right to form a political party but also guaranteed the right of such a party, once formed, to carry on its political activities freely.
The Court reiterates that the Convention is intended to guarantee rights that are not theoretical or illusory, but practical and effective (…) The right guaranteed by Article 11 would be largely theoretical and illusory if it were limited to the founding of an association, since the national authorities could immediately disband the association without having to comply with the Convention. It follows that the protection afforded by Article 11 lasts for an association's entire life and that dissolution of an association by a country's authorities must accordingly satisfy the requirements of paragraph 2 of that provision (…)
The fact that their activities form part of a collective exercise of freedom of expression in itself entitles political parties to seek the protection of Articles 10 and 11 of the Convention.
In the political sphere that responsibility means that the State is under the obligation, among others, to hold, in accordance with Article 3 of Protocol No. 1, free elections at reasonable intervals by secret ballot under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature. Such expression is inconceivable without the participation of a plurality of political parties representing the different shades of opinion to be found within a country's population. By relaying this range of opinion, not only within political institutions but also - with the help of the media - at all levels of social life, political parties make an irreplaceable contribution to political debate, which is at the very core of the concept of a democratic society (…)
Democracy is without doubt a fundamental feature of the European public order (…)In addition, Articles 8, 9, 10 and 11 of the Convention require that interference with the exercise of the rights they enshrine must be assessed by the yardstick of what is "necessary in a democratic society". The only type of necessity capable of justifying an interference with any of those
rights is, therefore, one which may claim to spring from "democratic society". Democracy thus appears to be the only political model contemplated by the Convention and, accordingly, the only one compatible with it. (…)
Consequently, the exceptions set out in Article 11 are, where political parties are concerned, to be construed strictly; only convincing and compelling reasons can justify restrictions on such parties' freedom of association. In determining whether a necessity within the meaning of Article 11 § 2 exists, the Contracting States have only a limited margin of appreciation, which goes hand in hand with rigorous European supervision embracing both the law and the decisions applying it, including those given by independent courts.
Matthews v UK, 18 February 1999.
The United Kingdom stands accused of not having organised European Parliamentary elections in Gibraltar. The European Court of Human Rights acknowledges its competence in recognising that the European Parliament is a "legislative body" in compliance with the terms of Article 3 of the first Protocol annexed to the ECHR.
The Court makes it clear at the outset that the choice of electoral system by which the free expression of the opinion of the people in the choice of the legislature is ensured - whether it be based on proportional representation, the "first-past-the-post" system or some other arrangement - is a matter in which the State enjoys a wide margin of appreciation. However, in the present case the applicant, as a resident of Gibraltar, was completely denied any opportunity to express her opinion in the choice of the members of the European Parliament. The position is not analogous to that of persons who are unable to take part in elections because they live outside the jurisdiction, as such individuals have weakened the link between themselves and the jurisdiction. In the present case, as the Court has found (…), the legislation which emanates from the European Community forms part of the legislation in Gibraltar, and the applicant is directly affected by it.
In the circumstances of the present case, the very essence of the applicant's right to vote, as guaranteed by Article 3 of Protocol No. 1, was denied.
Hirst v. UK, 30 March 2004.
The applicant was, as a convicted offender, deprived of his right to vote in legislative or local elections. The appeals he filed in national courts, with a view to declaring the relevant provisions of the law on representation of the people incompatible with the Convention, were dismissed. He invokes the provisions of Article 3 of Protocol No. 1 ECHR, and of Article 14 ECHR in combination with Article 3 of Protocol No. 1, arguing that he is a victim, as convicted offender, of discrimination in the enjoyment of the right to vote.
Even from the viewpoint of the great diversity of limits on offenders’ right to vote in various countries, of which some may be considered more draconian than the British regulation (§§ 40 et 48), the Court holds that an ‘absolute prohibition on voting imposed in all circumstances on all offenders serving their sentence’ exceeds the limits of an acceptable margin of appreciation (§ 51), and holds that there has been a violation of Article 3 of Protocol No. 1 ECHR.
The case was referred to the Grand Chamber at the request of the Government.
Aziz v. Cyprus, 22 June 2004.
The Applicant, a citizen of Cyprus of Turkish origin and residing in Nicosia, was refused registration on the electoral lists because, according to Article 63 of the Constitution, members of the Turkish Cypriot community may not be registered on the Greek Cypriot electoral list. He refers to Article 3 of Protocol No. 1 ECHR and Article 14 ECHR, arguing that he is a victim of discrimination in the exercise of his right to vote as a Turkish Cypriot national.
Noting that the contentious provision of the Cypriot Constitution has been of no effect since participation by Turkish Cypriot Members of Parliament was suspended in 1963 making it impossible to implement representation quotas of the two communities within the Parliament, the Court observes that no provision was taken by the authorities to resolve the problems flowing from this situation (§ 29). The Applicant being completely deprived of any opportunity to express his opinion in the choice of members in the Chamber of Representatives of the country of which he is a national and where he has always lived, the Court holds there is a ‘denial of the substance itself’ of his right to vote, which implies a violation of Article 3 of Protocol No. 1 ECHR.
The different treatment of the Applicant as Turkish Cypriot ‘cannot justify this difference on reasonable and objective grounds, particularly in the light of the fact that Turkish Cypriots in the applicant's situation are prevented from voting at any parliamentary election’ (§ 37). The result is a ‘clear inequality in the treatment of the enjoyment of the right in question’, which the Court considers a ‘fundamental aspect in the case’, and which constitutes a violation of Article 14 ECHR combined with Article 3 of Protocol No. 1 (§ 38).
Santoro v. Italy, 1 July 2004.
The applicant, who was suspected of concealment of stolen goods, was placed under police supervision for one year. This measure was served on the applicant in March 1994, but the police did not draft the document setting out the obligations imposed on the applicant and the restrictions on his freedom of movement until July 1995. The special supervision measure nevertheless resulted in the applicant's being stricken off the electoral register in January 1995. The applicant maintained that he had not been allowed to vote in the national parliamentary elections or those of the regional council and alleged that the supervision measures had been illegally prolonged.
'In the present case the order imposing the preventive measure was forwarded for enforcement to the Brindisi Prefect on 7 April 1994 (...). However, it was only on 10 January 1995 that the Ostuni Municipal Electoral Committee decided to strike the applicant off the electoral register (...).
The Court accepts that some delay in accomplishing the administrative tasks relating to the enforcement of a domestic court's decision is often inevitable; however, it must be kept to a minimum (...).
In the present case more than nine months elapsed between the date on which the order imposing the preventive measure was forwarded to the Prefect and the date on which the applicant was disenfranchised. In the Court's view, such delay is excessive. No explanation for it has been provided by the Government.
Moreover, the delay at issue adversely affected the applicant's ability to vote both in the parliamentary and the regional elections. In fact, had the disenfranchisement been applied in due time and for the statutory period of one year, this measure would have ceased before 23 April 1995, the date of the regional elections, and long before 21 April 1996, the date of the parliamentary elections. In any case, as far as the latter elections are concerned, the Court reiterates its finding that the prolongation of the special police supervision after 2 May 1995 was neither in accordance with law nor necessary (...). The same applies to a measure which, like the disenfranchisement, was merely an ancillary and automatic consequence of the police supervision.
There has therefore been a violation of Article 3 of Protocol No. 1.' (§§ 56-60).
C.J.E.C.
Parti écologiste "Les Verts" v European Parliament, 23 April 1986, Case 294/83.
A political grouping which, unlike its rivals, is not represented in the European Parliament but which is able to put up candidates in the direct elections to the Parliament must, in order to avoid inequality in the protection afforded by the court to groupings competing in the same elections, be regarded as being both directly and individually concerned, within the meaning of the second paragraph of Article 173 of the Treaty, by measures adopted by the Parliament for the purpose of allocating appropriations entered in its budget for the financing of the information campaign preceding those elections, notwithstanding the fact that it could not be identified when the measures concerned were adopted.
Roger Wybot v Edgar Faure and others, 10 July 1986, Case 149/85.
For the purposes of the application of Article 10 of the Protocol of 8 April 1965 on the privileges and immunities of the European Communities, under which the members of the European Parliament enjoy, ' during the sessions of the assembly... In the territory of their own State, the immunities accorded to members of their parliament ', the duration of sessions of the European Parliament can be determined only in the light of Community law. To refer to national law in order to interpret the concept of a session of the European Parliament would be incompatible not only with the wording of the Protocol but also with the very objective of that provision, which is intended to ensure immunity for the same period for all members of the European Parliament, whatever their nationality
Hans-Joachim Miethke v European Parliament, 27 January 1993, Case C-25/92.
Although the duration of the mandate of representatives in the European Parliament may be shortened under Article 12 of the Act concerning the election of the representatives of the Assembly by direct universal suffrage by reason of circumstances giving rise to a vacancy, and particularly in the situation, mentioned in Article 6(3) of that Act, where there is incompatibility with the office of representative in the Parliament, no provision exists under which the Parliament may declare that the mandates of its Members are no longer valid by reason of an event, subsequent to and independent of the election, which causes no incompatibility, on the part of its Members, with the office of representative in the Parliament. Consequently, the Parliament was not in a position to act on the request that it verify, following the attainment of German unification in October 1990, the credentials of the German representatives in the Parliament who were elected in June 1989.
In those circumstances, a letter of the President of the Parliament informing an individual that his objections concerning the elections had to be rejected cannot be construed as an act giving rise to the right to bring an action for annulment.
Jean-Claude Martinez, Charles de Gaulle, Front national and Emma Bonino and Others v European Parliament, 2 October 2001, Joined cases T-222/99, T-327/99 and T-329/99.
Action against the European Parliament for its refusal to recognize the formation of the "Groupe technique des députés indépendants"(TDI) on the ground that the condition for political affiliation provided for in Article 29(1) of the Regulation is not satisfactory.
(…)the dual requirement for the organisation of Members into political groups, namely that the members of a political group must share political affinities and come from more than one Member State, enables local political particularities to be transcended and promotes the European integration sought by the Treaty. Thus the political groups contribute to the attainment of the political objective pursued by Article 191 EC, that is to say the emergence of political parties at European level as a factor for integration within the Union, contributing to forming a European awareness and to expressing the political will of the citizens of the Union. Such a role could not be performed by a technical or mixed group made up of Members abjuring any political affinity amongst themselves.
Nevertheless, even if that principle were intended to apply to the internal organisation of the Parliament, it should be stressed that it is not absolute. Restrictions may be imposed, for legitimate reasons, on the exercise of freedom of association, provided that those restrictions do not constitute, with regard to the aim pursued, disproportionate and unreasonable interference undermining the very substance of that right
In the present case, the principle of freedom of association does not preclude the Parliament in the context of its power of internal organisation from making formation of a group of Members of the Parliament subject to a requirement of political affinity dictated by the pursuit of legitimate objectives (see paragraphs 145 to 149 above) and from prohibiting, as in the act of 14 September 1999, the formation of a group which, like the TDI Group, is in patent breach of that requirement. Such measures, which are based on legitimate grounds, do not affect the right of Members concerned to organise themselves into a group provided that the conditions laid down in that connection by the Rules are observed.
In those circumstances the principle of freedom of association cannot effectively be relied on by Messrs Martinez and De Gaulle in order to challenge the validity of the interpretation of Rule 29(1) of the Rules of Procedure adopted by the Parliament and its refusal to recognise the TDI Group.
Willy Rothley and Others v European Parliament, 26 February 2002, Case T-17/00.
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