SECOND SECTION
DECISION
Application no. 48145/14
Zsófia VÁMOS against Hungary
and 8 other applications
(see list appended)
The European Court of Human Rights (Second Section), sitting on 17 Februray 2015 as a Chamber composed of:
Işıl Karakaş, President,
András Sajó,
Nebojša Vučinić,
Helen Keller,
Egidijus Kūris,
Robert Spano,
Jon Fridrik Kjølbro, judges,
and Stanley Naismith, Section Registrar,
Having regard to the above applications lodged on 26 and 30 June, 15 July, 15 and 30 September and 6 October 2014,
Having deliberated, decides as follows:
THE FACTS
1. 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 applicants, permanently residing in Hungary, are currently working or studying in other countries. In order to vote in the 2014 Hungarian legislative elections, they were expected to appear in person at the Hungarian embassy or consulate in their country of temporary residence, or else in their constituencies in Hungary. As a consequence, they could not exercise their voting rights or only with substantial material difficulties.
4. Other Hungarian citizens living abroad who do not have a permanent registered address in Hungary were statutorily allowed to vote by post, as provided by section 266 of Act no. XXXVI of 2013 on Electoral Procedure. However, this option was not available under the law to citizens with a permanent address in Hungary, such as the applicants.
B. Relevant domestic law
5. Act no. CCIII of 2011 on the Election of Members of Parliament provides as follows:
Section 12
“(1) Voters with residence in Hungary may vote for:
a) one candidate in any single-member constituency and
b) one party list.
...
(3) Voters without residence in Hungary may vote for one party list.”
6. Act no. XXXVI of 2013 on the Electoral Procedure provides as follows:
Section 259(1)
“Enrolment in the foreign representation electoral register may be requested by voters who are registered in the polling district electoral register and will be abroad on the day of the voting.”
Section 266(2)
“The National Election Office shall enrol in the register of postal voters all voters with no Hungarian address who are listed in the central electoral register following a request submitted no later than the fifteenth day before the day of voting. The National Election Office shall indicate in the central electoral register that the voter has been entered into the register of postal voters.”
Section 271(1)
“Voters who vote at a foreign representation shall do so by using the ballot paper of the single-member constituency corresponding to their Hungarian address and the ballot paper of national party lists. ...”
Section 274
“Voters listed in the register of postal voters cast their vote by post.”
COMPLAINTS
7. The applicants complain under Article 14 of the Convention read in conjunction with Article 3 of Protocol No. 1 that they were discriminated against in exercising their voting rights, since they could not vote by post on account of their permanent address in Hungary, whereas other voters living abroad and without a permanent address in Hungary could do so. Moreover, in applications nos. 66577/14 and 67222/14, the applicants also complained under Article 3 of Protocol No. 1 that the impugned rule infringed their right to participate in the legislative elections.
THE LAW
8. In application nos. 66577/14 and 67222/14, the applicants submitted under Article 3 of Protocol No. 1 that the legal provision depriving them of the possibility to vote by post amounted to a breach of their right to participate in the legislative elections.
9. Moreover, all the applicants complained that – by virtue of the law under which they as Hungarian citizens currently residing abroad but with a permanent address in Hungary could not vote by post whereas other citizens without such address could do so – they were discriminated against, in breach of Article 14 of the Convention read in conjunction with Article 3 of Protocol No. 1.
10. Having regard to the similarity of the applicants’ grievances, the Court is of the view that, in the interest of the proper administration of justice, the applications should be joined in accordance with Rule 42 § 1 of the Rules of Court.
11. Article 3 of Protocol No. 1 provides:
“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.”
12. Article 14 of the Convention provides:
“The enjoyment of the rights and freedoms set forth in [the] 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.”
13. With regard to the choice of electoral system, the Court reiterates that the Contracting States enjoy a wide margin of appreciation (see Sitaropoulos and Giakoumopoulos v. Greece [GC], no. 42202/07, § 65, ECHR 2012). In that judgment of the Grand Chamber, the Court recalled, in the context of Article 3 of Protocol No. 1 read alone, that the right to vote might be subject to, inter alia, residence conditions. Restrictions on expatriate voting rights based on the criterion of residence might be justified by several factors: (i) the presumption that non-resident citizens are less directly or less continually concerned with their country’s day-to-day problems and have less knowledge of them; (ii) the fact that non-resident citizens have less influence on the selection of candidates or on the formulation of their electoral programmes; (iii) the close connection between the right to vote in parliamentary elections and the fact of being directly affected by the acts of the political bodies so elected; (iv) the legitimate concern the legislature may have to limit the influence of citizens living abroad in elections on issues which primarily affect persons living in the country. A residence or length-of-residence requirement in order to have or exercise the right to vote in elections is not, in principle, an arbitrary restriction of the right to vote and is therefore not incompatible with Article 3 of Protocol No. 1.
14. Moreover, even where the State does provide for non-residents to vote, Article 3 of Protocol No. 1 cannot be regarded as requiring the Contracting States to implement measures to allow expatriates to exercise their right to vote from their place of residence. Indeed, the question in Sitaropoulos and Giakoumopoulos (cited above) was whether Article 3 of Protocol No. 1 went so far as to require the States to take such measures. The Court considered it appropriate to examine international law and compare the situation in other Member States. As to international law, neither international and regional treaties nor their interpretation by the competent bodies provided any basis for concluding that voting rights for persons temporarily or permanently absent from their country went so far as to require the State concerned to make arrangements for voting abroad. The Council of Europe organs, while they had regarded this as desirable, had not taken a firm position. According to a comparative survey, while the great majority of Member States allow their nationals to vote from abroad, some do not, and even those which do, do so in a variety of ways. There were also differences as to length of residence abroad as a factor to be taken into consideration. Consequently, essentially none of the legal instruments examined formed a basis for concluding that States were under an obligation to enable citizens living abroad to exercise the right to vote. As to the arrangements for exercising that right put in place by those Member States that do allow voting from abroad, there is a wide variety of approaches (see Sitaropoulos and Giakoumopoulos, cited above, §§ 63 to 80).
15. As regards the complaint raised under Article 3 of Protocol No. 1 alone in application nos. 66577/14 and 67222/14, the Court is not convinced that the limits imposed on those applicants on account of the combination of their permanent Hungarian and temporary foreign addresses and the resultant requirement to travel to Hungary or to an embassy or consulate to vote represented a burden disproportionate to the point of impairing the very essence of the voting rights in question (see, mutatis mutandis, Sitaropoulos and Giakoumopoulos, cited above, § 80) – again, having regard to the State’s margin of appreciation in this field, which includes the voting arrangements as well as limits on those living abroad if there is no residence requirement (see, mutatis mutandis, Oran v. Turkey, nos. 28881/07 and 37920/07, §§ 55 to 68, 15 April 2014, and Timurhan v. Turkey (dec.), no. 288807/07, 29 January 2015). The applicants in these two applications were free to exercise their voting rights, if only with some material difficulties.
16. Turning to the applicants’ complaint under Article 14 read in conjunction with Article 3 of Protocol No. 1, the Court notes that the complaint is related to their voting rights in legislative elections and thus undoubtedly falls within the “ambit” of the rights enshrined in Article 3 of Protocol No. 1. Moreover, where the State does permit voting from abroad, even though this is not an obligation under that provision, it must do so in a non-discriminatory manner.
The Court is further satisfied that the fact that the applicants are citizens living abroad who retain permanent addresses in Hungary – as opposed to other expatriate citizens without a permanent address inside the country – can be seen as “other status” for the purposes of Article 14 of the Convention (cf. Carson and Others v. the United Kingdom [GC], no. 42184/05, § 71, ECHR 2010). Article 14 is therefore applicable.
17. The Court moreover considers that the difference in voting arrangements – that is, in person or by post – constitutes differential treatment for the purposes of Article 14.
18. According to the Court’s case-law, a difference of treatment is discriminatory, for the purposes of Article 14, if it “has no objective and reasonable justification”, that is if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised”. Moreover the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see Gaygusuz v. Austria, 16 September 1996, § 42, Reports of Judgments and Decisions 1996‑IV).
19. The Court accepts that having a permanent address in the country is an objective criterion. Moreover, it considers that the legal provision criticised may be regarded as pursuing the legitimate aim of organising the voting system in a rational manner, taking into account the extent to which a voter has demonstrated his or her links to the country. Concerning the reasonable relationship between the means and the aim, it also accepts that the difference in treatment can be considered reasonable in so far as the retention of a permanent address in the country of origin shows a certain connection with the country, creating a continuing link with a particular constituency. Indeed, this is reflected in the fact that those with a permanent address are entitled to vote for a candidate in a single-member constituency as well as for a party list, whereas those without a permanent address can only vote for the latter. Moreover, it can be expected that an expatriate voter who retains such links with the country spends certain periods there and can therefore arrange to be there to vote in person in his or her constituency. Finally, the possibility of voting outside the country, namely in embassies, in any event goes some way to alleviating any burden. The Court reiterates in this connection that no obligation to allow those residing abroad to have the possibility of voting from abroad can be deduced from Article 3 of Protocol No. 1.
20. For the Court, the fact that those without a permanent address can vote by post may be perceived as a privilege but it must be seen in the light of the additional restrictions on the exercise of their vote. The Court notes at this juncture that the lawmaker has created two distinct voting regimes for expatriate voters: (i) domiciled citizens, who vote both in their constituencies (that is, for the individual candidates in the constituencies where they have their addresses in Hungary) and for the party lists, are entitled to do so in person at a foreign representation, whereas (ii) non-domiciled citizens, who can only vote for the party lists (for want of an address in Hungary and consequently for want of a constituency with an individual candidate), may do so by post (see paragraphs 5-6 above). For the Court, the voting arrangements reflecting the distinction between the different situations of voters outside Hungary cannot be regarded as overstepping the State’s margin of appreciation in this field. It is not for the Court to pass judgment on the efficiency of the organisation of a voting system.
21. In these circumstances, the Court is satisfied that the impugned measure has an objective and reasonable justification for the purposes of Article 14.
22. It follows that the applications are manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 19 March 2015.
Stanley NaismithIşıl Karakaş
RegistrarPresident
APPENDIX
No
Application No
Lodged on
Applicant
Date of birth
Place of residence
Nationality
Represented by
48145/14
26/06/2014
Zsófia VÁMOS
07/10/1991
Budapest
Hungarian
Dániel András KARSAI
48244/14
26/06/2014
Fülöp Joel GÁBOR
26/09/1992
Budapest
Hungarian
Dániel András KARSAI
48250/14
26/06/2014
Anna Rozália HARSÁNYI
23/12/1993
Budapest
Hungarian
Dániel András KARSAI
48285/14
26/06/2014
Réka BORBÉLY
01/11/1993
Budapest
Hungarian
Dániel András KARSAI
49885/14
30/06/2014
Tibor Lajos SEPSI
10/09/1976
Nyíregyháza
Hungarian
Csaba TORDAI
51948/14
15/07/2014
Lili PAMMER-ZAGROCZKY
18/04/1993
Budapest
Hungarian
Dániel András KARSAI
63580/14
15/09/2014
Kitti BÁN
06/07/1994
Mezőkövesd
Hungarian
Dániel András KARSAI
66577/14
30/09/2014
Mihály KÁLMÁN
19/06/1984
Budakeszi
Hungarian
Levente BALTAY
67222/14
06/10/2014
Anikó SZILÁGYI
11/03/1985
Budapest
Hungarian
Levente BALTAY
Full & Egal Universal Law Academy