Communicated on 27 June 2018
FOURTH SECTION
Applications nos. 65678/14 and 49636/14
E.C. against Hungary
and Kalliopé BAKIRDZI against Hungary
lodged on 1 October 2014 and 4 July 2014 respectively
STATEMENT OF FACTS
The applicant in the first case, Ms E.C., (“the first applicant”) is a Hungarian national who was born in 1990 and lives in Budapest. The President granted the applicant’s request for her identity not to be disclosed to the public (Rule 47 § 4).
The applicant in the second case, Ms Kalliopé Bakirdzi (“the second applicant”), is a Hungarian and Greek national who was born in 1959 and lives in Budapest. She is represented before the Court by Mr D.A. Karsai, a lawyer practising in Budapest.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
There are thirteen recognised national minorities in Hungary. For the 6 April 2014 parliamentary elections, national minority self-governments could submit candidate lists (national minority lists) for ‘minority elections’. Pursuant to section 16 (d) of the Election Act, the national minority lists enjoyed a preferential threshold. The threshold was obtained by dividing the total number of national votes cast by ninety-three, then dividing by four (22.022 votes in the 6 April 2014 elections). All thirteen recognised national minorities registered lists for the elections, with a total of ninety-nine candidates.
The first applicant belongs to the Armenian minority and the second applicant belongs to the Greek minority. As members of recognised national minorities, they both requested registration as national minority voters in the electoral roll before the 4 April 2014 parliamentary elections, by virtue of section 85 § 1 of Act no. XXXXVI of 2013 on the Election Procedure.
Members of national minorities who registered for ‘minority elections’ could only vote for a candidate on the national minority list in a single‑mandate constituency. For the national minority lists only one choice was available on the ballot paper. Minority voters were excluded from voting in the national, proportional list elections.
None of the registered national minorities obtained enough votes to win a minority seat. As a result, they were each to be represented by a spokesperson in parliament, with no right to vote and their competence limited to discussing minority issues.
B. Relevant domestic law
Act no. CCIII of 2011 on Elections of Members of Parliament
6. Drawing up National Lists
Section 7
“A national list may be drawn up as a party list or national minority list.
...”
Section 9
“(1) National self-governments of national minorities may draw up national minority lists.
(2) The drawing up of any national minority list shall be subject to recommendations by at least one percent of voters on the electoral register as national minority voters, but to no more than one thousand five hundred recommendations.
(3) A national minority list may include candidates who are on the electoral register as voters of the particular national minority.
(4) A national minority list shall include at least three candidates.
(5) Joint national minority lists may not be drawn up by two or more national self‑governments of national minorities.
...”
7. Voting
Section 11
“The elections of Members of Parliament shall be held in one round.”
Section 12
“(1) Voters with residence in Hungary may vote for
a) one candidate in any single-member constituency and
b) one party list.
(2) Voters with residence in Hungary who are enrolled on the electoral register as national minority voters may vote for
a) one candidate in any single-member constituency and
b) the list of their national minority or, in the absence thereof, for one party list.
(3) Voters without residence in Hungary may vote for one party list.
...”
8. Determination of Election Results
Section 14
“(3) No mandate may be won by a national minority list which failed to reach the number of votes required for winning a preferential national minority mandate (hereinafter: preferential quota) determined by Section 16d).
...”
Section 16
“Mandates which may be won from a national list shall be distributed in the following procedure:
d) The total number of national list votes shall be divided by ninety-three, and the result shall be divided by four; the preferential quota shall be the integer of the resulting quotient;
...”
9. National minority Spokespersons
Section 18
“(1) Any national minority which drew up a national minority list but failed to win a mandate by such list shall be represented by its national minority spokesperson in Parliament.
(2) The national minority spokesperson shall be the candidate who ranked first on the national minority list.”
COMPLAINTS
The applicants allege that their exclusion from participating in the national, proportional list parliamentary elections and the practice of a minority list with a single choice interfered with the free expression of the opinion of the people in the choice of the legislature. They relied on Article 3 of Protocol No. 1, read alone and in conjunction with Article 14 of the Convention. They further complain that, since the ballot papers for the minority elections contained only once choice, the secrecy of the vote was violated.
QUESTIONS TO THE PARTIES
1. Did the practice of minority elections (excluding the applicants from the national, proportional list elections and the lack of choice on the national minority lists) constitute an interference with “the free expression of the opinion of the people in the choice of the legislature” (see, for instance, Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987, § 52, Series A no. 113; and Ždanoka v. Latvia [GC], no. 58278/00, § 104, ECHR 2006‑IV)?
Alternatively, was the practice of minority elections compatible with the State’s obligation under Article 3 of Protocol No. 1 to the Convention to adopt positive measures to hold elections “under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature” (see, for instance, Yumak and Sadak v. Turkey [GC], no. 10226/03, § 106, ECHR 2008; and Communist Party of Russia and Others v. Russia, no. 29400/05, § 107, 19 June 2012)?
2. Have the applicants suffered discrimination because of their belonging to a national minority in the enjoyment of their right to participate in free elections which ensure the free expression of the opinion of the people in the choice of legislature, contrary to Article 14 of the Convention read in conjunction with Article 3 of Protocol No. 1 to the Convention?
Full & Egal Universal Law Academy