Information Note on the Court’s case-law 192
January 2016
Partei Die Friesen v. Germany - 65480/10
Judgment 28.1.2016 [Section V]
Article 14
Discrimination
Application of 5% threshold in parliamentary elections in Lower Saxony: no violation
Facts – The applicant was a political party representing the interests of the Frisian national minority. The party’s activities were confined to the Land of Lower Saxony (Niedersachsen). Under the Electoral Law of Lower Saxony, parliamentary seats were attributed only to parties which obtained a minimum of 5% of the total votes validly cast. The applicant party asked the Prime Minister and President of Lower Saxony for exemption from this requirement in the 2008 elections, but its request was refused. In those elections it attained approximately 0.3% of all votes validly cast and so did not obtain a parliamentary mandate.
In its application to the European Court, the applicant party complained that the 5% threshold violated its right to participate in elections without being discriminated against, in breach of Article 14 of the Convention read in conjunction with Article 3 of Protocol No. 1.
Law – Article 14 in conjunction with Article 3 of Protocol No. 1: In the 2008 parliamentary elections the applicant party did not receive sufficient votes to obtain a parliamentary mandate irrespective of the 5% threshold. However, the threshold could nonetheless have had a chilling effect on potential voters not wishing to “waste” their votes on a political party that was unable to achieve that score. The application of the 5% threshold had thus interfered with the applicant party’s right to stand for election and the case fell within the scope of Article 3 of Protocol No. 1. Article 14 was therefore applicable.
Although the threshold as such did not raise an issue under Article 14 read in conjunction with Article 3 of Protocol No. 1, the Court had to assess whether its application to the applicant party had violated those provisions. In this regard, it was undisputed that the applicant party had not been treated differently to any other small political parties standing for election in Lower Saxony.
As to whether the applicant party’s situation was, as it alleged, analogous to that of the parties of the Danes and the Sorbs who were standing for election in two other Länder, both of which privileged minority parties, the Court observed that under federal election law all national minority parties enjoyed the same privileges in federal elections. However, as regards participation in elections of the Länder, the Lower Saxony Constitutional Court found that there was no obligation under constitutional law applicable in Lower Saxony to exempt parties of national minorities from electoral thresholds regarding elections in the Land. In the light of the sovereignty accorded to Länder in the German legal system, the decision of Länder legislatures to include exemptions for national minority parties in their electoral law therefore did not have any implications for national minority parties outside their jurisdiction. It followed that the applicant party’s situation was not analogous to that of the parties of the Danes and the Sorbs because they were not standing for election in Lower Saxony.
As to whether the situation of the applicant party was significantly different from that of other political parties in Lower Saxony, the Court accepted that the number of Frisians in that Land was not high enough to reach the electoral threshold even if all Frisian voters were to cast their vote for the applicant party. However, the situation of the applicant party in this respect was similar to the situation of those parties which concentrated on the representation of numerical small interest groups defined by criteria such as age, religious belief and profession. The disadvantages in the electoral process were therefore based on the chosen concept of only representing the interests of a small part of the population, for which a Contracting State could not be held responsible.
The Court lastly examined whether the applicant party had been discriminated against in its capacity as a party representing a national minority. Since forming an association to express and promote its identity could be instrumental in helping a minority preserve and uphold its rights, this issue was linked to the question whether, under the Convention, national minority parties should be treated differently to other special interest parties. In its decision in Magnago and Südtiroler Volkspartei v. Italy (25035/94, 15 April 1996) the European Commission of Human Rights had found that the Convention did “not compel the Contracting Parties to provide for positive discrimination in favour of minorities”. The subsequent 1998 Framework Convention for the Protection of National Minorities put an emphasis on the participation of national minorities in public affairs. Although the possibility of exemption from the minimum threshold was merely presented as one of many options, the interpretation provided by the Advisory Committee on the Framework Convention and the Venice Commission was that the electoral thresholds requirements should be designed so as not to affect national minorities. However, no clear and binding obligation derived from the Framework Convention to exempt national minority parties from electoral thresholds. Consequently, even interpreted in the light of the Framework Convention, the Convention did not call for different treatment in favour of minority parties.
Conclusion: no violation (unanimously).
(See also the Factsheet on the Right to free elections)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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