Tănase v. Moldova [GC]

Information Note on the Court’s case-law No. 129

April 2010

Tănase v. Moldova [GC] - 7/08

Judgment 27.4.2010 [GC]

Article 3 of Protocol No. 1

Stand for election

Inability of persons with multiple nationality to stand as candidates in parliamentary elections: violation

Facts – The applicant, a well-known Moldovan politician, is the Vice-President of the Liberal Democratic Party and a member of the Chişinău Municipal Council. The Republic of Moldova is situated on territory which used to be part of Romania before World War II. The local population lost its Romanian citizenship after the territory’s annexation by the Soviet Union in 1940. Following Moldova’s declaration of independence in August 1991, a new law was adopted on Moldovan nationality, whereby persons living on the territory of the former Moldavian Soviet Socialist Republic before annexation became citizens of Moldova. As a descendant of such persons, the applicant obtained Moldovan nationality. In 1991 the Romanian Parliament also adopted a new law on citizenship which enabled former Romanian nationals and their descendants who had lost their nationality before 1989 to re-acquire Romanian nationality. As in 2003 the restriction on Moldovan nationals holding other nationalities had been repealed, the applicant requested and obtained Romanian nationality. In 2008 the Moldovan Parliament reformed the electoral legislation, notably by introducing a ban on those with dual or multiple nationality from becoming Members of Parliament (Law no. 273). Other important amendments included the increasing of the electoral threshold and a ban on all forms of electoral blocks and coalitions. These amendments entered into force in May 2008 and a general election was held in the spring of 2009. The applicant was elected to the Parliament. In order to be able to take his seat, he sent a letter to the Romanian Embassy in Chişinău announcing that he was forced to initiate the renunciation of his Romanian nationality, but indicating that he reserved his right to withdraw the letter after the judgment of the Grand Chamber in the present case. Taking into account this letter, the Constitutional Court validated the applicant’s mandate. In 2009 the Constitutional Court found Law no. 273 to be constitutional.

It was estimated that, out of a total of 3,800,000 Moldovans, between 95,000 and 300,000 had obtained Romanian nationality between 1991 and 2001; in February 2007 some 800,000 Moldovans had applications pending for Romanian nationality. There also were approximately 120,000 Moldovans with Russian passports.

Law – (a) Admissibility

(i) Victim status: The applicant had been directly affected by Law no. 273 as he had been obliged to initiate a procedure which had put him at risk of losing his Romanian nationality. Further, the knowledge that, if elected, he would be required to take steps to renounce his Romanian nationality had undoubtedly affected him throughout the electoral campaign. He might, moreover, have lost votes since the electorate was aware that there was a chance that he would decide not to take his seat if that would mean losing his status as a dual national. Even though the Romanian Government had not yet stripped the applicant of his Romanian nationality, they were free to complete the renunciation procedure at any time. In any event, each time the applicant wished to stand for election to Parliament he would face the uncertainty of not knowing whether the Constitutional Court would validate his mandate and whether the Romanian Government would follow up his request to renounce his Romanian nationality. The measure had therefore had a detrimental impact on him.

Conclusion: preliminary objection dismissed (unanimously).

(ii) Non-exhaustion of domestic remedies: The remedies proposed by the Government were not accessible to the applicant as he was unable to approach the Constitutional Court directly. In any event, as the Constitutional Court had given a ruling on the constitutionality of the law, the remedy proposed had been exhausted.

Conclusion: preliminary objection dismissed (unanimously).

(b) Merits – Article 3 of Protocol No. 1: Following his election, the applicant had been required to initiate a procedure to renounce his Romanian nationality in order to have his mandate confirmed by the Constitutional Court. Accordingly, there had been an interference with his rights under Article 3 of Protocol No. 1. The Court was satisfied that Law no. 273 met the requirements of foreseeability. Although there would appear to be an inconsistency between that law and Article 17 of the European Convention on Nationality, the Court did not find it necessary to resolve the apparent conflict of norms.

As regards the aim of ensuring loyalty to the State, invoked by the parties to justify the introduction of the prohibition, this concept was not clearly defined and no explanation of its content has been provided by the parties. For its part, the Court would distinguish at the outset between loyalty to the State and loyalty to the Government. While the need to ensure loyalty to the State might well constitute a legitimate aim which justified restrictions on electoral rights, the latter could not. In a democratic State, the very role of MPs, and in particular those members from opposition parties, was to represent the electorate by ensuring the accountability of the Government in power and assessing their policies. Further, the pursuit of different, and at times diametrically opposite, goals was not only acceptable but necessary in order to promote pluralism and to give voters choices which reflected their political opinions. Loyalty required from MPs to the State, in principle, encompassed respect for the Constitution, laws, institutions, independence and territorial integrity. Any desire to bring about changes to any of those aspects had to be pursued in accordance with the laws of the State. Any other view would undermine the ability of MPs to represent the views of their constituents, in particular minority groups. The fact that Moldovan MPs with dual nationality might wish to pursue a political programme which was considered by some to be incompatible with the current principles and structures of the Moldovan State did not make it incompatible with the rules of democracy. With this in mind, the Court turned to consider whether the measure in the present case had been genuinely intended to secure loyalty to the State. Law no. 273 was one of the aspects of an electoral-reform package, whose other measures consisted of raising the electoral threshold and banning electoral blocks. All the measures proposed had had a detrimental impact on the opposition, which had previously found it difficult to secure enough votes to meet the threshold to enter the Parliament and had succeeded in doing so only through the formation of electoral blocks. The results of the April 2009 election had demonstrated the disproportionate effect of the new law. The applicant’s allegation that the law exempted from its scope the residents of Transdniestria, a large number of whom held Russian nationality, raised further concerns about the true aim of the legislation. Finally, the Court considered it significant that the amendments had been introduced less than a year before a general election. The Government had been unable to provide a single example of an MP with dual nationality showing disloyalty to the State of Moldova. Other than brief references in the judgment of the Constitutional Court to movements to undermine the State of Moldova, very little explanation at all had been provided for the change in electoral policy. Further, there would appear to be evidence that the law had not been uniformly applied. In the circumstances, the Court was not entirely satisfied that the aim of the measure had been to secure the loyalty of MPs to the State.

As regards the proportionality of the measure, a review of practice across Council of Europe member States revealed a consensus that, where multiple nationalities were permitted, the holding of more than one nationality should not be a ground for ineligibility to sit as an MP, even where the population was ethnically diverse and the number of MPs with multiple nationalities could be high. However, notwithstanding this consensus, a different approach might be justified where special historical or political considerations rendered a more restrictive practice necessary. The Court emphasised the special position of Moldova, which had a potentially high proportion of dual nationals and had only relatively recently become independent. In the light of Moldova’s history, on declaring independence in 1991 a ban on multiple nationals sitting as MPs could have been justified. However, the ban had not been put in place until some seventeen years after Moldova had gained independence and some five years after it had relaxed its laws to allow dual citizenship. The Government had not provided an explanation of why concerns had recently emerged regarding the loyalty of dual nationals and why such concerns had not been present when the law had first been changed to allow dual nationality. The Court acknowledged that the number of MPs holding dual nationality was significant. However, a large proportion of citizens also held dual nationality and they had the right to be represented by MPs who reflected their concerns and political views. In the present case, there had been other means of protecting Moldova’s laws, institutions and national security, such as sanctions for illegal conduct or conduct which threatened national interests, and making access to confidential documents subject to obtaining security clearance. Where an immediate threat to democracy or independence had passed, measures identifying a credible threat to the State’s interests on the basis of specific information should be preferred to a blanket assumption that all dual nationals posed a threat to national security and independence. The Venice Commission, the European Commission against Racism and Intolerance (ECRI), the Parliamentary Assembly of the Council of Europe and the Honouring of Obligations Committee had been unanimous in their criticism of the prohibition. Concerns had been expressed about the discriminatory impact of Law no. 273 and its impact on the ability of a number of political forces to participate effectively in the political process. The Court further took note of Article 17 of the European Convention on Nationality and Moldova’s undertaking pursuant to that provision to ensure that Moldovan nationals in possession of another nationality should have the same rights and duties as other Moldovan nationals.

Finally, any restriction on electoral rights should not be such as to exclude some persons or groups of persons from participating in the political life of the country. In this respect, the Court emphasised the disproportionate effect of the law on the opposition parties at the time of its introduction. The Court had to examine with particular care any measure which appeared to operate solely, or principally, to the disadvantage of the opposition, especially where the nature of the measure was such that it affected the very prospect of opposition parties gaining power at some point in the future. Restrictions of this nature had curtailed the rights guaranteed by Article 3 of Protocol No. 1 to such an extent as to impair their very essence and deprive them of their effectiveness. The introduction of the prohibition in the present case shortly before elections, at a time when the governing party’s percentage of the vote had been in decline, further militated against the proportionality of the measure.

Conclusion: violation (unanimously).

Article 41: No claim made in respect of damage.

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

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