Information Note on the Court’s case-law No. 129

April 2010

Tănase v. Moldova [GC] - 7/08

Judgment 27.4.2010 [GC]

Article 3 of Protocol No. 1

Stand for election

Inability of persons with multiple nationality to stand as candidates in parliamentary elections: violation

Facts – The applicant, a well-known Moldovan politician, is the Vice-President of the Liberal Democratic Party and a member of the Chişinău Municipal Council. The Republic of Moldova is situated on territory which used to be part of Romania before World War II. The local population lost its Romanian citizenship after the territory’s annexation by the Soviet Union in 1940. Following Moldova’s declaration of independence in August 1991, a new law was adopted on Moldovan nationality, whereby persons living on the territory of the former Moldavian Soviet Socialist Republic before annexation became citizens of Moldova. As a descendant of such persons, the applicant obtained Moldovan nationality. In 1991 the Romanian Parliament also adopted a new law on citizenship which enabled former Romanian nationals and their descendants who had lost their nationality before 1989 to re-acquire Romanian nationality. As in 2003 the restriction on Moldovan nationals holding other nationalities had been repealed, the applicant requested and obtained Romanian nationality. In 2008 the Moldovan Parliament reformed the electoral legislation, notably by introducing a ban on those with dual or multiple nationality from becoming Members of Parliament (Law no. 273). Other important amendments included the increasing of the electoral threshold and a ban on all forms of electoral blocks and coalitions. These amendments entered into force in May 2008 and a general election was held in the spring of 2009. The applicant was elected to the Parliament. In order to be able to take his seat, he sent a letter to the Romanian Embassy in Chişinău announcing that he was forced to initiate the renunciation of his Romanian nationality, but indicating that he reserved his right to withdraw the letter after the judgment of the Grand Chamber in the present case. Taking into account this letter, the Constitutional Court validated the applicant’s mandate. In 2009 the Constitutional Court found Law no. 273 to be constitutional.

It was estimated that, out of a total of 3,800,000 Moldovans, between 95,000 and 300,000 had obtained Romanian nationality between 1991 and 2001; in February 2007 some 800,000 Moldovans had applications pending for Romanian nationality. There also were approximately 120,000 Moldovans with Russian passports.

Law – (a) Admissibility

(i) Victim status: The applicant had been directly affected by Law no. 273 as he had been obliged to initiate a procedure which had put him at risk of losing his Romanian nationality. Further, the knowledge that, if elected, he would be required to take steps to renounce his Romanian nationality had undoubtedly affected him throughout the electoral campaign. He might, moreover, have lost votes since the electorate was aware that there was a chance that he would decide not to take his seat if that would mean losing his status as a dual national. Even though the Romanian Government had not yet stripped the applicant of his Romanian nationality, they were free to complete the renunciation procedure at any time. In any event, each time the applicant wished to stand for election to Parliament he would face the uncertainty of not knowing whether the Constitutional Court would validate his mandate and whether the Romanian Government would follow up his request to renounce his Romanian nationality. The measure had therefore had a detrimental impact on him.

Conclusion: preliminary objection dismissed (unanimously).

(ii) Non-exhaustion of domestic remedies: The remedies proposed by the Government were not accessible to the applicant as he was unable to approach the Constitutional Court directly. In any event, as the Constitutional Court had given a ruling on the constitutionality of the law, the remedy proposed had been exhausted.

Conclusion: preliminary objection dismissed (unanimously).

(b) Merits – Article 3 of Protocol No. 1: Following his election, the applicant had been required to initiate a procedure to renounce his Romanian nationality in order to have his mandate confirmed by the Constitutional Court. Accordingly, there had been an interference with his rights under Article 3 of Protocol No. 1. The Court was satisfied that Law no. 273 met the requirements of foreseeability. Although there would appear to be an inconsistency between that law and Article 17 of the European Convention on Nationality, the Court did not find it necessary to resolve the apparent conflict of norms.

As regards the aim of ensuring loyalty to the State, invoked by the