THIRD SECTION
DECISION
Application no. 30537/12
SOBERANÍA DE LA RAZÓN and others
against Spain
The European Court of Human Rights (Third Section), sitting on 26 May 2015 as a Chamber composed of:
Josep Casadevall, President,
Luis López Guerra,
Ján Šikuta,
Johannes Silvis,
Valeriu Griţco,
Iulia Antoanella Motoc,
Branko Lubarda, judges,
and Stephen Phillips, Section Registrar,
Having regard to the above application lodged on 2 May 2012,
Having deliberated, decides as follows:
THE FACTS
1. The first applicant, Soberanía de la Razón, is a Spanish political party registered with the Ministry of Internal Affairs in September 2011. The second and the third applicants, Ms. Encarnación Martínez Segado and Mr. José Luis Mazón Costa, are Spanish nationals who stood as two of the first applicant’s candidates for the 2011 elections to the Congress of Deputies. The applicants are represented before the Court by the third applicant, Mr. J. L. Mazón Costa, a lawyer in Murcia. A list of the applicants is set out in the appendix.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. The procedure to present candidates in general elections was regulated by Organic Law no. 5/1985 of 19 June 1985 of the General Electoral Provisions Implementing Act (hereinafter, the Electoral Act). Section 169 (3) of the Electoral Act provided that political parties which were not represented either in the Congress of Deputies or in the Senate must receive the supporting signatures of at least 0.1% of those registered to vote in the constituency. Voters were only allowed to register support for one candidate. The aforementioned requirement had been introduced by the Electoral Act by Organic Law 2/2011 of 28 January 2011 that entered into force on 30 January 2011.
4. On 15 September 2011 the Central Electoral Commission issued Order 7/2011, section 5 of which provided that the period to collect the signatures started running from the date on which the elections were announced.
5. On 27 September 2011 the Royal Decree 1329/2011 of 26 September ordered elections to the Congress of Deputies and the Senate for 20 November 2011.
6. On 12 October 2011 the first applicant announced before the Murcia Electoral Commission its intention to stand for elections for the Congress of Deputies for the Murcia constituency. The first applicant submitted a list of ten candidates, among them the second and the third applicants. The first applicant did not submit the supporting signatures, for it considered that the new requirements under the abovementioned electoral provisions violated its fundamental rights.
7. On 21 October 2011 the Murcia Electoral Commission instructed the first applicant to submit the supporting signatures as provided by section 169 (3) of the Electoral Act. The first applicant did not comply with the instruction.
8. On 24 October 2011 the Murcia Electoral Commission rejected the first applicant’s list by reference to section 169 (3) of the Electoral Act. The three applicants brought judicial administrative proceedings (procedimiento contencioso administrativo) against that decision.
9. On 26 October 2011 the Murcia administrative judge (juez de lo contencioso-administrativo) no. 7 upheld the Electoral Commission’s decision on the ground that the applicants had failed to fulfil the requirements of section 169 (3) of the Electoral Act. He further found that the Order 7/2011 was according to law, in that it had been issued by a competent body and established a procedure that could be considered reasonable to serve the purposes of section 169 (3) of the Electoral Act.
10. On 27 October 2011 the applicants lodged an amparo appeal with the Constitutional Court. They complained that the restrictions under section 169 (3) of the Electoral Act and section 5 of the Order 7/2011 amounted to a violation of their rights to free elections and of the prohibition of discrimination. They also complained that they could have started collecting signatures only on the date when the elections were announced, giving them only twenty days to fulfil the obligation. They had not done so as they considered this period insufficient. They invoked section 14 (equality before the law), section 16 (freedom of ideology), section 18 (right to personal privacy), section 22 (1) (right of association) and section 23 (1) (2) (right to participate in public affairs and right of access to public office on equal terms) of the Spanish Constitution.
11. The Constitutional Court’s decision (auto) of 3 November 2011 declared the applicants’ appeal inadmissible for lack of a violation of a fundamental right. It relied on the reasoning of its previous judgment of 2 November 2011 in an analogous case. The Constitutional Court found that the obligation to collect a minimum number of supporting signatures constituted a legitimate limitation on the right to present candidates in elections guaranteed by section 23 (2) of the Spanish Constitution. It served the purpose of rationalisation and optimisation of the electoral process. The Constitutional Court pointed out that the proper functioning of the electoral process might be adversely affected by an excessive proliferation of candidatures without a minimum of support. In particular, the limitation was aimed at optimising the allocation of public resources to organise the electoral process. Lastly, it served the aim of avoiding the dispersion of votes and could help sufficiently representative currents of thought reach the threshold for parliamentary representation.
12. The Constitutional Court also underlined that the obligation to collect a specific number of supporting signatures was a common practice in the European countries and within the Spanish electoral system. Section 220 (3) (4) of the Electoral Act required parties, federations, coalitions and groups of voters wishing to present candidates in elections to the European Parliament to obtain either 15,000 supporting signatures of voters or 50 supporting signatures of elected representatives. Furthermore, section 169 (3) of the Electoral Act imposed analogous requirements on groups of voters wishing to present candidates in elections to the Congress of Deputies and the Senate, those groups of voters being obliged to receive the supporting signatures of at least 1% of those registered to vote in the constituency. As regards the latter, the Constitutional Court recalled that in the case Serqueda v. Spain, 9 May 1994, no. 23151/94 the Commission had considered that that restriction was not contrary to the Convention.
13. The Constitutional Court added that, in view of the minimum number of signatures requested in the aforementioned cases, the percentage of 0.1% under section 169 (3) of the Electoral Act must be considered proportionate.
14. As regards the applicants’ complaint of discriminatory treatment, the Constitutional Court noticed that the obligation was indeed imposed only on non-represented parties. However, such a difference of treatment had an objective and reasonable justification, since non-represented parties ought to demonstrate a minimum of support that could be presumed in the case of represented parties.
15. As regards the time-limit to collect the signatures, the Constitutional Court recalled the findings of its judgment of 2 November 2011. The Constitutional Court noticed that the time-limit could be insufficient under certain special circumstances, which were not present in the instant case. Consequently, in general terms, the time-limit was proportionate in the light of the legitimate aim pursued by section 169 (3) of the Electoral Act as well as of the number of signatures required.
B. Relevant domestic law
16. The relevant provisions of the Spanish Constitution read as follows:
Article 14
“Spaniards are equal before the law and may not in any way be discriminated against on account of birth, race, sex, religion, opinion or any other personal or social condition or circumstance.”
Article 23
“1. Citizens have the right to participate in public affairs, directly or through representatives freely elected in periodic elections by universal suffrage.
2. They likewise have the right to access on equal terms to public office, in accordance with the requirements to be provided by law.”
17. The relevant Spanish electoral law provides as follows:
1. Organic Law no. 5/1985 of 19 of June 1985 of General Electoral Provisions Implementing Act
Section 169
“1. The Electoral Commission is competent for all matters foreseen in Title I, Chapter VI, Section II of the present law concerning the presentation and designation of candidates for the general elections to the Congress of Deputies and to the Senate.
2. A list of candidates shall be presented in order to stand for elections.
3. Groups of voters wishing to present candidates in the elections must receive the supporting signatures of at least 1% of those registered to vote in the constituency. Parties, federations or coalitions that were not represented either in the Congress of Deputies or in the Senate must receive the supporting signatures of at least 0.1% of those registered to vote in the constituency. Voters are only allowed to register support for one candidate.”
18. The obligation to collect a specific number of signatures for those parties which were not represented either in the Congress of Deputies or in the Senate was firstly introduced by the Organic Law 2/2011 of 28 January 2011, which entered into forced on 30 January 2011.
2. Central Electoral Commission’s Order 7/2011 of 15 September 2011
Section 5: Procedure for the collection of supporting signatures
(...)
“2. In every electoral process, the period to collect the supporting signatures shall start running after the publication of the order determining the date on which the elections will take place (...).”
C. Relevant Council of Europe documents
Code of Good Practice in Electoral Matters: Guidelines and Explanatory Report - Adopted by the Venice Commission at its 52nd session (Venice, 18-19 October 2002)
Guidelines on Elections
“I. Principles of Europe’s electoral heritage
(...)
1.3. Submission of candidatures
i. The presentation of individual candidates or lists of candidates may be made conditional on the collection of a minimum number of signatures.
ii. The law should not require collection of the signatures of more than 1% of voters in the constituency concerned.
iii. Checking of signatures must be governed by clear rules, particularly concerning deadlines.
iv. The checking process must in principle cover all signatures; however, once it has been established beyond doubt that the requisite number of signatures has been collected; the remaining signatures need not be checked.
v. Validation of signatures must be completed by the start of the election campaign.”
Explanatory Report
“I. The underlying principles of Europe’s electoral heritage
(...)
1. Universal suffrage
(...)
1.3. Submission of candidatures
8. The obligation to collect a specific number of signatures in order to be able to stand is theoretically compatible with the principle of universal suffrage. In practice, only the most marginal parties seem to have any difficulty gathering the requisite number of signatures, provided that the rules on signatures are not used to bar candidates from standing for office. In order to prevent such manipulation, it is preferable for the law to set a maximum 1% signature requirement.”
COMPLAINTS
19. Relying on Article 3 of Protocol No. 1 the applicants complain that the requirements under section 169 (3) of the Electoral Act and section 5 of the Central Electoral Commission’s Order 7/2011 benefited the two parties most firmly established in the Congress of Deputies and interfered with the right of citizens to participate in political life -to vote and to stand for election- on equal terms.
20. Under Article 14 of the Convention in conjunction with Article 3 of Protocol No. 1 and Article 1 of Protocol No. 12 the applicants complain that the aforementioned restrictions violated their right to stand for elections under the same conditions as to represented parties.
THE LAW
A. Alleged violation of Article 3 of Protocol No. 1
21. The applicants complain that the requirements established in section 169 (3) of the Electoral Act and in section 5 of the Central Electoral Commission’s Order 7/2011 amounted to an arbitrary and disproportionate restriction of their rights under Article 3 of Protocol No. 1.
22. Article 3 of Protocol No. 1 reads as follows:
“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”
23. Although Article 3 of Protocol No. 1 is phrased in terms of the obligation of Contracting Parties to hold elections which ensure the free expression of the opinion of the people, the Court has established that this provision guarantees individual rights, including the right to vote and the right to stand for election (see Yumak and Sadak v. Turkey [GC], no. 10226/03, § 109, ECHR 2008 and Matthews v. the United Kingdom [GC], no. 24833/94, § 51, ECHR 1999).
24. The rights enshrined in Article 3 of Protocol No. 1 are not absolute. There is room for “implied limitations”, and Contracting States must be given a wide margin of appreciation in this sphere. However, it is for the Court to determine in the last resort whether the requirements of Article 3 of Protocol No. 1 have been complied with. It has to satisfy itself that limitations do not curtail the rights in question to such an extent as to impair their very essence, and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim and that the means employed are not disproportionate (see Yumak and Sadak, cited above, § 109, Matthews v. the United Kingdom, cited above, § 63, Labita v. Italy [GC], no. 26772/95, § 201, ECHR 2000‑IV and see Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987, § 52, Series A no. 113).
25. The Court has accepted that stricter requirements may be imposed on eligibility to stand for election to parliament, as distinguished from voting eligibility (see Yumak and Sadak, cited above, § 109 and Melnychenko v. Ukraine, no. 17707/02, § 57, ECHR 2004‑X). Furthermore, Article 3 of Protocol No. 1 does not imply that all political parties must necessarily have equal chances to stand for elections or equal chances of victory (see mutatis mutandis Yumak and Sadak, cited above, § 112).
26. In the present case, the applicants asserted that the requirements under section 169 (3) of the Electoral Act had prevented them from standing for election. The Court notes in this connection that in considering the applicants’ amparo appeal, the Constitutional Court examined the basis for such requirements and found that they had an objective and reasonable aim, namely to maintain and improve the well-functioning of the electoral system. The obligation to receive the supporting signatures of at least 0.1% of voters in the constituency avoided the proliferation of political parties without a minimum of support. That limitation also served the optimization of the allocation of public resources to organise the electoral process and avoided the confusion of the electorate by groups that could not assume political responsibility. In this regard, the Courts considers that the obligation to have a minimum of support encourages sufficiently representative currents of thought and makes it easier to reach parliamentary consensus (see, mutatis mutandis, Yumak and Sadak, cited above, § 112). The Court also recalls its findings in the case of Mihaela Mihai Neagu v. Romania (dec.), no. 66345/09, 6 March 2014, § 34, where it found that the aim of the obligation imposed on independent candidates to submit a number of signatures of support was to make a reasonable selection from among the candidates, in order to ensure their representative character in the European Parliament and to eliminate possible frivolous candidates. The Court considered that this was the result of a choice made by the legislature, and grounded on political and institutional criteria.
27. With regard to the proportionality of the means employed, even a system which fixes a relatively high threshold (e.g. as regards the number of signatures required in order to stand for election or a minimum percentage of votes in the national level) may be regarded as not exceeding the margin of appreciation permitted to States in the matter (see Federación nacionalista Canaria v. Spain (dec.), no. 56618/00, ECHR 2001‑VI). In any event, the percentage of signatures required under section 169 (3) of the Electoral Act amounted to 0.1% of the voters registered in the Murcia constituency. This percentage is considerably lower than the maximum of 1% indicated by the 2002 Venice Commission Guidelines on Electoral Law. In the case of Miahela Mihai Neagu cited above, the Court found that the obligation to have collected a number of signatures representing about 0.55% of the total number of citizens of the electoral rolls could not be considered excessive, for the percentage of signatures required was lower than the maximum 1% threshold recommended by the Venice Commission (see Miahela Mihai Neagu, cited above, § 37). In this regard, the Venice Commission has stated that only the most marginal parties seem to have any difficulty gathering the requisite number of signatures. Additionally, it must be recalled that, according to the findings in the case of Asensio Serqueda, the signatures required of groups of voters under section 169 (3) of the Electoral Act (which amounted to 1% of voters in the constituency) did not constitute a hindrance to the free expression of the people in the choice of the legislature (see Asensio Serqueda v. Spain, no. 23151/94, Commission decision of 9 May 1994, Decisions and Reports 7-B, p. 122).
28. As regards the requirement that voters were only allowed to register support of one party established in section 169 (3) of the Electoral Act, the Courts finds that such a requirement reasonably serves the legitimate purpose of ensuring that the contending parties have a specific and basic support of part of the electorate and therefore, it cannot be considered arbitrary or disproportionate.
29. Lastly, the applicants complain of a lack of proportionality of the obligation to collect the signatures within the time-limit established by section 5 (2) of the Central Electoral Commission’s Order 7/2011. However, the applicants have failed to give reasons why the time provided was been insufficient for them to comply with the obligation within the Murcia constituency in the light of the number of signatures requested.
30. It follows that the applicants’ complaint is manifestly ill-founded and must be rejected in accordance with Article 35 § 3 (a) and 4 of the Convention.
B. Alleged violation of Article 14 of the Convention in conjunction with Article 3 of Protocol No. 1 and alleged violation of Article 1 of Protocol No. 12 to the Convention
31. Under Article 14 of the Convention in conjunction with Article 3 of Protocol No. 1 and under Article 1 of Protocol No. 12, the applicants claim to be the victims of a difference of treatment in comparison with those parties represented in the Congress of Deputies, which were not subject to the obligation to receive a minimum of support.
32. Article 14 of the Convention and Article 1 of Protocol No. 12 provide:
Article 14
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
Article 1 of Protocol No. 12
“1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.”
33. The Court reiterates that discrimination means treating differently, without an objective and reasonable justification, persons in similar situations. “No objective and reasonable justification” means that the distinction in issue does not pursue a “legitimate aim” or that there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see, among many other authorities, Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 42, ECHR 2009). The scope of a Contracting Party’s margin of appreciation in this sphere will vary according to the circumstances, the subject matter and the background (see Andrejeva v. Latvia [GC], no. 55707/00, § 82, ECHR 2009).
34. In the present case, the Court notes that only non-represented parties were subject to the obligation to receive a minimum of support. However, as it was underlined by the Constitutional Court, that different treatment had and objective and reasonable justification in the light of the aim pursued by section 169 (3) of the Electoral Act, in that non-represented parties can be required to demonstrate a minimum of support which can be presumed in the case of represented parties.
35. It follows that the applicants’ complaint is manifestly ill-founded and must be rejected in accordance with Article 35 § 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Done in English and notified in writing on 18 June 2015.
Stephen PhillipsJosep Casadevall
RegistrarPresident
Appendix SOBERANÍA DE LA RAZÓN is Spanish political party registered with the Ministry of Internal Affairs and represented by J.L. MAZÓN COSTA Encarnación MARTÍNEZ SEGADO is a Spanish national, lives in Murcia and is represented by J.L. MAZÓN COSTA José Luis MAZÓN COSTA is a Spanish national, lives in Murcia
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