Information Note on the Court’s case-law 184
April 2015
Danis and the Association of Ethnic Turks v. Romania - 16632/09
Judgment 21.4.2015 [Section III]
Article 14
Discrimination
New eligibility requirement applicable solely to candidates of national minority organisations not already represented in Parliament: violation
Facts – The applicant association, which represents the Turkish minority in Romania, had already taken part in the November 2004 parliamentary elections, in which another Turkish minority organisation had polled a slightly higher number of votes and thus won the seat reserved for the Turkish minority. However, when the 2008 elections were held, the newly enacted Law no. 35/2008 entitled the other Turkish minority organisation to stand again without carrying out any further formalities, whereas the applicant association, which was intending to put the first applicant forward as its parliamentary candidate, was required to satisfy a new condition of having been granted charitable status.
Law – Article 14 of the Convention in conjunction with Article 3 of Protocol No. 1: Law no. 35/2008 had introduced a two-tier system for approving candidates put forward by national minority organisations in parliamentary elections. Organisations already represented in Parliament were automatically entitled to field candidates again, being presumed to be representative simply on account of their success in the previous elections, whereas those that were not represented were required to demonstrate their representative nature. It was therefore easier for organisations already represented in Parliament to field candidates. Accordingly, the applicants had been subjected to a difference in treatment in the exercise of their electoral rights under Article 3 of Protocol No. 1 as a result of the enactment of the new electoral law.
The new law had been intended to ensure that organisations not yet represented in Parliament were properly representative and to eliminate frivolous candidates.
As to whether the difference in treatment had been proportionate, Law no. 35/2008 governing elections had come into force on 16 March 2008. Given that candidates’ names had had to be submitted at least forty days before the elections of 30 November 2008, the applicants had had approximately seven months to prepare their candidacy.
Furthermore, the new condition of being granted charitable status included a requirement of “significant previous activity” during the three years prior to the application for such status. The applicants had not applied for the applicant association to be granted charitable status since it did not satisfy that requirement. It thus had to be determined whether this failure to act was attributable to the applicants or was an inevitable consequence of the enactment of the new electoral law. The significant nature of an organisation’s previous activity was assessed on the basis of whether it had “carried out programmes and projects specific to its purpose”. Although the legislation did not define the terms “programmes” or “projects”, these concepts could not apply to an organisation’s statutory requirements, such as submitting its financial reports to the Court of Audit. On the contrary, the pursuit of such programmes and projects was at the discretion of the organisation in question, which was entitled to determine their objectives, duration and associated activities in accordance with its own aims and available resources. The applicant association had stood in the 2004 elections, polling slightly fewer votes than the organisation that had won the seat representing the Turkish minority. The Court thus concluded that in 2004 the applicant association had satisfied all the eligibility criteria under domestic law and that it had organised its subsequent activities on the basis of the statutory provisions applicable at that time. The applicants could therefore not be criticised for failing to foresee that seven months before the 2008 elections they would be asked to fulfil a new criterion, namely that of having carried out specific programmes and projects for at least three years.
By amending electoral legislation seven months before the 2008 parliamentary elections, the authorities had not given the applicants the opportunity to organise their activities in such a way that they could be granted charitable status. As a result, it had been objectively impossible for them to obtain that status and thus satisfy one of the eligibility requirements under the new electoral law.
Accordingly, the new eligibility criterion, which the applicants – unlike national minority organisations that were already represented in Parliament – had had to satisfy in order to be able to stand in the parliamentary elections, had been disproportionate to the legitimate aim pursued.
Conclusion: violation (unanimously).
Article 41: finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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