Information Note on the Court’s case-law 238
March 2020
Cegolea v. Romania - 25560/13
Judgment 24.3.2020 [Section IV]
Article 14
Discrimination
Lack of judicial scrutiny to protect against arbitrariness regarding an eligibility requirement which disadvantaged national minority organisations not yet represented in Parliament: violation
Facts – The Romanian Parliament has some seats reserved for representatives of national minorities. They are exempt from the electoral threshold applicable to political parties.
The applicant, the president of a foundation representing the Italian minority, wished to stand as a candidate in the December 2012 parliamentary elections on the foundation’s behalf.
In May 2012 the applicant applied to the Government for her foundation to be granted charitable status. The Government’s Secretariat General (“the SGG”) forwarded the application simultaneously to two different administrative authorities for examination: the Department for Inter-ethnic Relations (“the DRI”) and the Ministry of Culture.
In June 2012 the DRI refused the applicant’s application and confirmed that decision following an appeal by the applicant, on the grounds that her foundation’s activities did not concern inter-ethnic relations.
In July 2012 an amendment to the legislation on associations and foundations entered into force, introducing more stringent conditions for the granting of charitable status.
In October 2012 the Central Electoral Bureau refused to register the applicant’s candidature because her foundation did not have charitable status. She lodged appeals against that decision which were rejected later the same month. At the end of the month the deadline for the submission of candidatures expired.
After the elections the Ministry of Culture informed the applicant that although her foundation had satisfied the criteria at the time of the application, it did not satisfy the new conditions introduced by the above-mentioned reform.
The applicant alleged that she had been placed at a disadvantage compared with the outgoing member of parliament representing the Italian minority (who belonged to a different organisation), as he had not been required to complete any of these formalities in order to stand for re-election.
Law
Article 14 read in conjunction with Article 3 of Protocol No. 1:
Unlike the organisations already represented in Parliament, the foundation of which the applicant was a member had been required to obtain charitable status in order for her to stand in the parliamentary elections on the foundation’s ticket.
The present case was to be distinguished from the case of Danis and the Association of Ethnic Turks only with regard to one formal aspect, namely the scope of the statutory conditions for obtaining charitable status, as these had been amended in 2012. The conclusions reached by the Court in that case regarding the existence of a two-tier system for approving candidates put forward by national minority organisations therefore continued to be valid. Unlike in the case of Danis and the Association of Ethnic Turks, the applicant in the present case had not been taken by surprise by a new condition being imposed. Accordingly, the Court had to ascertain whether the procedure for the granting of charitable status as governed by the subsequent legislative amendments was transparent and not arbitrary, and whether the applicant had had an adequate opportunity to challenge the refusal of her application before the courts.
Decision-making powers – According to the wording of the legislation, the power to grant an association or foundation charitable status lay with the “Romanian Government”, that is to say, with the executive. Nevertheless, the SGG had forwarded the application in question to two separate administrative authorities, which had each dealt with it differently.
Response times – The legislation laid down time-limits (60 and 90 days respectively) within which the competent administrative authority and then the Government had to deal with applications. The issue whether these time-limits were indicative or binding had not been made clear in the proceedings before the Court. However, this was an important issue in this case, since the decision on the granting of charitable status was needed before the deadline for the submission of candidatures. While the applicant had obtained a reply from the DRI ahead of the deadline in question, she had not been notified of the Ministry’s reply until after the elections.
Criteria to be satisfied – The replies which the applicant received from the two administrative authorities had differed in this regard. The reason given by the DRI for its refusal appeared to suggest that the applicant had not satisfied the statutory criteria (even before they had been amended). For its part, the Ministry had expressed the view that the foundation had satisfied all the conditions in force at the time the application had been submitted, but that the application was to be dealt with in accordance with the newly introduced criteria, which the foundation did not satisfy. Furthermore, the Ministry did not appear to have considered allowing the applicant an opportunity to complete her initial application in the light of the new criteria.
Legal status of the replies – The law provided that the administrative authority was to furnish the person making the application with a “reply giving reasons” within thirty days from the date of “the decision being taken”. However, in the present case the SGG had requested the DRI and the Ministry to give their “opinion”. This information was insufficient to establish with certainty whether those opinions were mere preparatory acts or full-blown administrative decisions. Nevertheless, the replies from the DRI and the Ministry had signalled the end of the administrative procedure in this case, as, unlike in cases where the competent administrative authority proposed that charitable status be granted, in cases where the application was rejected the law made no provision for the proposal to be sent back to the Government for a formal decision.
Scrutiny by the courts – In view of the factors outlined below, the applicant had not had an effective remedy in respect of the DRI’s reply or that of the Ministry.
The discretion left to the executive – According to the case-law of the High Court of Cassation and Justice, the executive retained the power to refuse charitable status even if the entity in question satisfied all the statutory criteria. In other words, the final decision was based on expediency rather than on legal criteria. Accordingly, any scrutiny by the courts of the DRI’s decision would have been confined to ascertaining whether the foundation met the statutory requirements for obtaining charitable status, and the courts would not have been empowered to grant it such status had they found that to be the case.
The lack of possibility to appeal in good time – As the applicant had not been informed of the Ministry’s reply until after the elections in question, an appeal against that reply would not have been capable of remedying her complaint in time for her to submit her candidature.
In view of these shortcomings regarding the possibility of judicial scrutiny, which did not afford sufficient safeguards against arbitrariness, and notwithstanding the wide margin of appreciation left to the State in this regard, the difference in treatment compared with national minority organisations already represented in Parliament had been insufficiently justified in relation to the legitimate aim pursued, namely to ensure that organisations were properly representative and to encourage only serious candidates to apply.
Conclusion: violation (unanimously).
Article 41: finding of a violation sufficient in respect of non-pecuniary damage; claim for pecuniary damage dismissed.
(See also Danis and the Association of Ethnic Turks v. Romania, 16632/09, 21 April 2015, Information Note 184; Grosaru v. Romania, 78039/01, 2 March 2010, Information Note 128).
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This summary by the Registry does not bind the Court.
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