Summary
Limits on those wishing to run for office must be based on objective and reasonable criteria.
Obligations
Issues
Criteria
- Every citizen had the right to be elected, subject only to reasonable restrictions
- The vote-counting process was transparent and observable
- Candidates and their representatives were able to observe polling and counting as means of protecting their right to be elected
- Vote counting and tabulation processes protected the right to be elected
Quotes
- As regards restrictions on expatriate voting rights based on the criterion of residence, the Convention institutions have accepted in the past that these might be justified by several factors: firstly, 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; secondly, the fact that non-resident citizens have less influence on the selection of candidates or on the formulation of their electoral programmes; thirdly, 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; and, fourthly, the legitimate concern the legislature may have to limit the influence of citizens living abroad in elections on issues which, while admittedly fundamental, primarily affect persons living in the country (see Hilbe, cited above; see also X and Association Y v. Italy, no. 8987/80, Commission decision of 6 May 1981, Decisions and Reports (DR) 24, p. 192, and Polacco and Garofalo v. Italy, no. 23450/94, Commission decision of 15 September 1997, DR 90-A, p. 5). More recently, the Court has taken the view that having to satisfy 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 (see Doyle v. the United Kingdom (dec.), no. 30158/06, 6 February 2007).
- Any restrictions on the right to stand for election, such as minimum age, must be justifiable on objective and reasonable criteria.
- 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 the conditions 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 Mathieu-Mohin and Clerfayt, cited above, § 52). In particular, any conditions imposed must not thwart the free expression of the people in the choice of the legislature – in other words, they must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage. Any departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws it promulgates. Exclusion of any groups or categories of the general population must accordingly be reconcilable with the underlying purposes of Article 3 of Protocol No. 1 (see Hirst (no. 2) [GC], cited above, § 62, and Scoppola (No. 3) [GC], cited above, § 84).
- While Article 3 of Protocol No. 1 is phrased in terms of the obligation of the High Contracting Party to hold elections which ensure the free expression of the opinion of the people, the Court's case-law establishes that it guarantees individual rights, including the right to vote and to stand for election. Although those rights are central to democracy and the rule of law, they are not absolute and may be subject to limitations. The Contracting States have a wide margin of appreciation in this sphere, but 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 the conditions 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 Mathieu-Mohin and Clerfayt, cited above, p. 23, § 52; and more recently, Matthews v. the United Kingdom [GC], no. 24833/94, § 63, ECHR 1999-I; Labita v. Italy [GC], no. 26772/95, § 201, ECHR 2000-IV; and Podkolzina v. Latvia, no. 46726/99, § 33, ECHR 2002-II).
- In this regard, the Committee recalls its General Comment on article 25, according to which the exercise of the rights protected by article 25 may not be suspended or excluded except on grounds which are established by law and which are objective and reasonable. The Committee notes that article 68, part 6, of the Electoral Code, gives a right to electoral commissions to refuse registering a candidate when he or she submits data that does not “correspond to reality”, including biographic data and information on income and property.
- Article 23(2) of the American Convention establishes that the law may regulate the exercise and opportunities of such rights only on the basis of “age, nationality, residence, language, education, civil and mental capacity, or sentencing by a competent court in criminal proceedings.” The provision that limits the reasons for which it is possible to restrict the use of the rights of paragraph 1 has only one purpose – in light of the Convention as a whole and of its essential principles – to avoid the possibility of discrimination against individuals in the exercise of their political rights. It is evident that the inclusion of these reasons refers to the enabling conditions that the law can impose to exercise political rights. Restrictions based on these criteria are common in national electoral laws, which provide for the establishment of the minimum age to vote and to be elected, and some connection to the electoral district where the right is exercised, among other regulations. Provided that they are not disproportionate or unreasonable, these are limits that the States may legitimately establish to regulate the exercise and enjoyment of political rights and that, it should be repeated, they refer to certain requirements that the titleholders of political rights must comply with so as to be able to exercise them.
- The Court reiterates that Article 3 of Protocol No. 1 implies subjective rights to vote and to stand for election. As important as those rights are, they are not, however, absolute. Since Article 3 recognises them without setting them out in express terms, let alone defining them, there is room for “implied limitations” (see Mathieu-Mohin and Clerfayt, cited above, p. 23, § 52). In their internal legal orders the Contracting States may make the rights to vote and to stand for election subject to conditions which are not in principle precluded under Article 3. They have a wide margin of appreciation in this sphere, but it is for the Court to determine in the last resort whether the requirements of Protocol No. 1 have been complied with; it has to satisfy itself that the conditions 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.
- As to the condition of residence in relation to the right to stand for elections, as such, the Court has never expressed its opinion on this point. However, in relation to the separate right to vote, the Court has held that it was not per se an unreasonable or arbitrary requirement (see Hilbe v. Liechtenstein (dec.), no. 31981/96, ECHR 1999-VI). The Court considers that a residence requirement for voting may be justified on the following grounds: (1) the assumption that a non-resident citizen is less directly or continuously concerned with, and has less knowledge of, a country’s day-to-day problems; (2) the impracticality and sometimes undesirability (in some cases impossibility) of parliamentary candidates presenting the different electoral issues to citizens living abroad so as to secure the free expression of opinion; (3) the influence of resident citizens on the selection of candidates and on the formulation of their electoral programmes; and (4) the correlation between one’s right to vote in parliamentary elections and being directly affected by the acts of the political bodies so elected (see Polacco and Garofalo v. Italy, no. 23450/94, Commission decision of 15 September 1997, Decisions and Reports 90-A, referring to previous Commission case-law).
- In most of the previous cases under Article 3 of Protocol No. 1 the Court has had to consider a specific legislative provision or a known administrative measure which has somehow limited the electoral rights of a group of the population or of a specific candidate. In those cases the measure complained of lay within the legal field, and, therefore, could be easily identified and analysed (see, for example, the cases concerning electoral thresholds (Yumak and Sadak, cited above), the right of prisoners to vote (Hirst, cited above), criteria of eligibility of candidates on account of their political affiliation or other status (Ždanoka, cited above; Seyidzade v. Azerbaijan, no. 37700/05, 3 December 2009), compositions of electoral commissions (The Georgian Labour Party v. Georgia, no. 9103/04, ECHR 2008), restrictions on reporting on a particular political movement (Purcell and Others v. Ireland, no. 15404/89, 16 April 1991), or impossibility for nationals living abroad to vote (Sitaropoulos and Giakoumopoulos v. Greece [GC], no. 42202/07, 15 March 2012).
- Any conditions which apply to the exercise of the rights protected by article 25 should be based on objective and reasonable criteria.
- The right of persons to stand for election should not be limited unreasonably by requiring candidates to be members of parties or of specific parties.
- The applicant was entitled under Article 3 of Protocol No. 1 to stand for election in fair and democratic conditions, regardless of whether ultimately he won or lost. In the present case, Article 3 of Protocol No. 1 requires the Court not to ascertain merely that the election outcome as such was not prejudiced, but to verify that the applicant's individual right to stand for election was not deprived of its effectiveness and that its essence had not been impaired.
- While this margin of appreciation is wide, it is certainly not all-embracing: the rules governing the electoral system “should not be such as to exclude some persons or groups of persons from participating in the political life of the country and, in particular, in the choice of the legislature, a right guaranteed by both the Convention and the Constitutions of all Contracting States” (ibid.). 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 the restrictions imposed do not thwart the free expression of the opinion of the people.
- The concept of “implied limitations” under Article 3 of Protocol No. 1 is of major importance for the determination of the relevance of the aims pursued by restrictions on the rights guaranteed by this provision (see Mathieu-Mohin and Clerfayt, cited above, § 52; and Sitaropoulos and Giakoumopoulos, cited above, § 64). Given that Article 3 of Protocol No. 1 is not limited by a specific list of “legitimate aims”, the Contracting States can justify a restriction by reference to any aim which is compatible with the principle of the rule of law and with the general objectives of the Convention (see Ždanoka v. Latvia [GC], no. 58278/00, § 115, ECHR 2006-IV; and Sitaropoulos and Giakoumopoulos, cited above, § 64).
- In that connection, the Court reiterates that the object and purpose of the Convention requires its provisions to be interpreted and applied in such a way as to make their stipulations not just theoretical or illusory but practical and effective (see, for example, Artico v. Italy, judgment of 13 May 1980, Series A no. 37, pp. 15-16, § 33; United Communist Party of Turkey and Others, cited above, pp. 18-19, § 33; and Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 100, ECHR 1999-III). The right to stand as a candidate in an election, which is guaranteed by Article 3 of Protocol No. 1 and is inherent in the concept of a truly democratic system, would be illusory if one could be arbitrarily deprived of it at any moment. Consequently, while it is true that States have a wide margin of appreciation when establishing eligibility conditions in the abstract, the principle that rights must be effective requires that the eligibility procedure contain sufficient safeguards to prevent arbitrary decisions.
- The Court accepts that stricter requirements may be imposed on the eligibility to stand for election to parliament, as distinguished from voting eligibility. Hence the Court would not preclude outright a five-year continuous residency requirement for potential parliamentary candidates. Arguably, this requirement may be deemed appropriate to enable such persons to acquire sufficient knowledge of the issues associated with the national parliament’s tasks.
- The rights enshrined in Article 3 of Protocol No. 1 are not absolute. There is room for implied limitations and the Contracting States must be afforded a margin of appreciation in this sphere. The Court has repeatedly affirmed that the margin in this area is wide (see Mathieu-Mohin and Clerfayt, cited above, § 52; Matthews [GC], cited above, § 63; Labita v. Italy [GC], no. 26772/95, § 201, ECHR 2000-IV; and Podkolzina, cited above, § 33). There are numerous ways of organising and running electoral systems and a wealth of differences, inter alia, in historical development, cultural diversity and political thought within Europe which it is for each Contracting State to mould into its own democratic vision (see Hirst (no. 2) [GC], cited above, § 61, and Scoppola (No. 3) [GC], cited above, § 83).
- The Court notes that the summary of its case-law on the right to effectively stand for election, as guaranteed by Article 3 of Protocol No. 1 to the Convention, can be found in, among many other judgments, Orujov v. Azerbaijan (no. 4508/06, §§ 40-42, 26 July 2011). On a more specific note, the Court also reiterates that, while the Contracting States enjoy a wide margin of appreciation in imposing conditions on the right to vote and to stand for election, 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 the conditions 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 or arbitrary (see Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987, § 52, Series A no. 113; Gitonas and Others v. Greece, 1 July 1997, § 39, Reports of Judgments and Decisions 1997-IV; and Yumak and Sadak v. Turkey [GC], no. 10226/03, § 109 (iii), 8 July 2008).
- Given that Article 3 of Protocol No. 1 does not contain a list of “legitimate aims” capable of justifying restrictions on the exercise of the rights it guarantees and does not refer to those enumerated in Articles 8 to 11 of the Convention, the Contracting States are free to rely on an aim not mentioned in those Articles, provided that it is compatible with the principle of the rule of law and the general objectives of the Convention (see, for example, Ždanoka v. Latvia [GC], no. 58278/00, § 115, ECHR 2006-IV).
- The Court notes that a finding that a candidate has engaged in unfair or illegal campaigning methods could entail serious consequences for the candidate concerned, in that he or she could be disqualified from running for the election. As the Convention guarantees the effective exercise of individual electoral rights, the Court considers that, in order to prevent arbitrary disqualification of candidates, the relevant domestic procedures should contain sufficient safeguards protecting the candidates from abusive and unsubstantiated allegations of electoral misconduct, and that decisions on disqualification should be based on sound, relevant and sufficient proof of such misconduct (see Orujov, cited above, § 46).
- The Court recalls that this case is primarily about the applicants’ participation in the elections as candidates, i.e. about the passive electoral right. In the context of the “passive” aspect of the rights guaranteed by Article 3 of Protocol No. 1, the Court has stressed that it would be “even more cautious in its assessment of restrictions in that context than when it has been called upon to examine restrictions on the right to vote, that is, the so-called “active” element of the rights under Article 3 of Protocol No. 1” (see Yumak and Sadak, cited above, § 109).
- It is, however, 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 the conditions 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 Mathieu-Mohin and Clerfayt, cited above, § 52). In particular, any conditions imposed must not thwart the free expression of the people in the choice of the legislature – in other words, they must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage. Any departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws it promulgates. Exclusion of any groups or categories of the general population must accordingly be reconcilable with the underlying purposes of Article 3 of Protocol No. 1 (see, mutatis mutandis, Aziz v. Cyprus, no. 69949/01, § 28, ECHR 2004-V).
- As to the Court’s examination of the compliance of the impugned disfranchisement with the principles of Article 3 of Protocol No. 1, it must focus mostly on whether there was arbitrariness or a lack of proportionality between the restriction in question and the legitimate aim pursued by the respondent State. Given the concept of “implied limitations” under Article 3 of Protocol No. 1, the respondent States are always free to rely on any legitimate aim which could be proved to be compatible, in the particular circumstances of a case, with the principles of the rule of law and the general objectives of the Convention (see Ždanoka, cited above, § 115).
- The rights guaranteed under Article 3 of Protocol No. 1 are crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law. Nonetheless, these rights are not absolute. There is room for “implied limitations”, and Contracting States must be given a margin of appreciation in this sphere. The Court reaffirms that the margin in this area is wide (see Mathieu-Mohin and Clerfayt, cited above, § 52, and, more recently, Matthews v. the United Kingdom [GC], no. 24833/94, § 63, ECHR 1999-I; Labita v. Italy [GC], no. 26772/95, § 201, ECHR 2000-IV; and Podkolzina v. Latvia, no. 46726/99, § 33, ECHR 2002-II). There are numerous ways of organising and running electoral systems and a wealth of differences, inter alia, in historical development, cultural diversity and political thought within Europe, which it is for each Contracting State to mould into its own democratic vision (see Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, § 61, ECHR 2005-IX).
- The Court reiterates that Article 3 of Protocol No. 1 (P1-3) implies subjective rights to vote and to stand for election. As important as those rights are, they are not, however, absolute. Since Article 3 (P1-3) recognises them without setting them forth in express terms, let alone defining them, there is room for ""implied limitations"" (see the Mathieu-Mohin and Clerfayt v. Belgium judgment of 2 March 1987, Series A no. 113, p. 23, para. 52). In their internal legal orders the Contracting States make the rights to vote and to stand for election subject to conditions which are not in principle precluded under Article 3 (P1-3). They have a wide margin of appreciation in this sphere, but it is for the Court to determine in the last resort whether the requirements of Protocol No. 1 (P1) have been complied with; it has to satisfy itself that the conditions 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 (ibid.).
- The rights bestowed by Article 3 of Protocol No. 1 are not absolute. There is room for “implied limitations” and Contracting States have a wide margin of appreciation in the sphere of elections (see Mathieu-Mohin and Clerfayt, cited above, § 52; Matthews v. the United Kingdom [GC], no. 24833/94, § 63, ECHR 1999-I; and Labita v. Italy [GC], no. 26772/95, § 201, ECHR 2000-IV). It is, however, for the Court to determine in the last resort whether the requirements of Article 3 of Protocol No. 1 have been complied with. In particular, it has to satisfy itself that the conditions 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 Mathieu-Mohin and Clerfayt, cited above, § 52, and Gitonas and Others v. Greece, 1 July 1997, § 39, Reports of Judgments and Decisions 1997-IV). Such conditions must not thwart the free expression of the people in the choice of the legislature – in other words, they must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage (see Hirst (no. 2), cited above, § 62).
- Article 3 of Protocol No. 1 enshrines a characteristic principle of an effective political democracy and is accordingly of prime importance in the Convention system (see Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987, § 47, Series A no. 113). This Article would appear at first to differ from the other provisions of the Convention and its Protocols, as it is phrased in terms of the obligation of the High Contracting Parties to hold elections under conditions which will ensure the free expression of the opinion of the people, rather than in terms of a particular right or freedom. However, the Court has established that it guarantees individual rights, including the right to vote and to stand for election (ibid., §§ 46-51).
- The Court points out that Article 3 of Protocol No. 1 does not, like other provisions of the Convention, specify or limit the aims which a restriction must pursue. A wide range of purposes may therefore be compatible with Article 3 (see, for example, Podkolzina, cited above, § 34).
- It is, however, 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 the conditions 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 Mathieu-Mohin and Clerfayt, p. 23, § 52). In particular, any conditions imposed must not thwart the free expression of the people in the choice of the legislature – in other words, they must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage. For example, the imposition of a minimum age may be envisaged with a view to ensuring the maturity of those participating in the electoral process or, in some circumstances, eligibility may be geared to criteria, such as residence, to identify those with sufficiently continuous or close links to, or a stake in, the country concerned (see Hilbe v. Liechtenstein (dec.), no. 31981/96, ECHR 1999-VI, and Melnychenko v. Ukraine, no. 17707/02, § 56, ECHR 2004-X). Any departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws it promulgates. Exclusion of any groups or categories of the general population must accordingly be reconcilable with the underlying purposes of Article 3 of Protocol No. 1 (see, mutatis mutandis, Aziz v. Cyprus, no. 69949/01, § 28, ECHR 2004-V).
- Nonetheless, the rights bestowed by Article 3 of Protocol No. 1 are not absolute. There is room for implied limitations and Contracting States must be allowed a margin of appreciation in this sphere.
- In Podkolzina v. Latvia (no. 46726/99, ECHR 2002-II), the Court reiterated that the right to stand as a candidate in an election, which is guaranteed by Article 3 of Protocol No. 1 and is inherent in the concept of a truly democratic regime, would only be illusory if one could be arbitrarily deprived of it at any moment. Consequently, while it is true that States have a wide margin of appreciation when establishing eligibility conditions in the abstract, the principle that rights must be effective requires the finding that this or that candidate has failed to satisfy them to comply with a number of criteria framed to prevent arbitrary decisions. In particular, such a finding must be reached by a body which can provide a minimum of guarantees of its impartiality. Similarly, the discretion enjoyed by the body concerned must not be exorbitantly wide; it must be circumscribed, with sufficient precision, by the provisions of domestic law. Lastly, the procedure for declaring a candidate ineligible must be such as to ensure a fair and objective decision and prevent any abuse of power on the part of the relevant authority (ibid., § 35).
- It is, however, 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 the conditions imposed on the right to vote and to stand for election 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 Mathieu-Mohin and Clerfayt, cited above, § 52). In particular, any conditions imposed must not thwart the free expression of the people in the choice of the legislature – in other words, they must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage (see Hirst (no. 2), cited above, § 62).
- The Court has consistently highlighted the importance of the democratic principles underlying the interpretation and application of the Convention and emphasised that the rights guaranteed under Article 3 of Protocol No. 1 are crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law (see Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, § 58, ECHR 2005-IX). Nonetheless, those rights are not absolute. There is room for “implied limitations”, and Contracting States are given a margin of appreciation in this sphere (see Matthews v. the United Kingdom [GC], no. 24833/94, § 63, ECHR 1999-I; Labita v. Italy [GC], no. 26772/95, § 201, ECHR 2000-IV; and Podkolzina v. Latvia, no. 46726/99, § 33, ECHR 2002-II). The margin of appreciation is also wide as regards the choice of electoral system (see Mathieu-Mohin and Clerfayt, cited above, § 54). There are numerous ways of organising and running electoral systems and a wealth of differences, inter alia, in historical development, cultural diversity and political thought within Europe which it is for each Contracting State to mould into its own democratic vision (see Hirst (no. 2), cited above, § 61).
- The rights guaranteed under Article 3 of Protocol No. 1 are crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law. Nonetheless, those rights are not absolute. There is room for “implied limitations”, and Contracting States must be given a margin of appreciation in this sphere. In this field, Contracting States enjoy a wide margin of appreciation, provided that they ensure equality of treatment for all citizens. It does not follow, however, that all votes must necessarily have equal weight as regards the outcome of the election or that all candidates must have equal chances of victory. Thus no electoral system can eliminate “wasted votes” (see Mathieu-Mohin and Clerfayt, cited above, § 54).
- The rights bestowed by Article 3 of Protocol No. 1 are not absolute. There is room for “implied limitations” and Contracting States have a wide margin of appreciation in the sphere of elections (see Mathieu-Mohin and Clerfayt, cited above, § 52; Matthews v. the United Kingdom [GC], no. 24833/94, § 63, ECHR 1999-I; and Labita v. Italy [GC], no. 26772/95, § 201, ECHR 2000-IV). It is, however, for the Court to determine in the last resort whether the requirements of Article 3 of Protocol No. 1 have been complied with. In particular, it has to satisfy itself that the conditions 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 Mathieu-Mohin and Clerfayt, cited above, § 52, and Gitonas and Others v. Greece, 1 July 1997, § 39, Reports of Judgments and Decisions 1997-IV). Such conditions must not thwart the free expression of the people in the choice of the legislature – in other words, they must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage (see Hirst (no. 2), cited above, § 62).
- The Court further reiterates that the object and purpose of the Convention, which is an instrument for the protection of human rights, requires its provisions to be interpreted and applied in such a way as to make their stipulations not theoretical or illusory but practical and effective (see United Communist Party of Turkey and Others, cited above, pp. 18-19, § 33). The right to stand as a candidate in an election, which is guaranteed by Article 3 of Protocol No. 1 and is inherent in the concept of a truly democratic regime, would only be illusory if one could be arbitrarily deprived of it at any moment. Consequently, while it is true that States have a wide margin of appreciation when establishing eligibility conditions in the abstract, the principle that rights must be effective requires the finding that this or that candidate has failed to satisfy them to comply with a number of criteria framed to prevent arbitrary decisions (see Russian Conservative Party of Entrepreneurs and Others v. Russia, nos. 55066/00 and 55638/00, § 50, 11 January 2007; Podkolzina, cited above, § 35; and Melnychenko v. Ukraine, no. 17707/02, § 59, ECHR 2004-X).
- As regards the legitimate aim, the Court reiterates that each State has a legitimate interest in ensuring the normal functioning of its own institutional system. That applies all the more to the national parliament, which is vested with legislative power and plays a primordial role in a democratic State (see Podkolzina, cited above, § 33). The Court considers that the requirement to submit information on the candidate's employment and party membership serves to enable voters to make an informed choice with regard to the candidate's professional and political background. The introduction of such a requirement does not appear arbitrary or unreasonable. It is also incontestably legitimate to ask the candidates that the information so submitted be accurate to the best of their knowledge, lest the voters be misled by false representations. Accordingly, the Court concludes that requiring a candidate for election to the national parliament to submit truthful information on their employment and party affiliation is a legitimate aim for the purposes of Article 3 of Protocol No. 1.
- In any event, the Court reiterates that what is relevant for its assessment is the existence of a reasonable relationship of proportionality between the measures employed by the domestic authorities and the legitimate aim sought to be achieved (see Leyla Şahin v. Turkey [GC], no. 44774/98, § 117, ECHR 2005-...).
- The Court points out that implicit in Article 3 of Protocol No. 1, which provides for “free” elections at “reasonable intervals” “by secret ballot” and “under conditions which will ensure the free expression of the opinion of the people”, are the subjective rights to vote and to stand for election. Although those rights are important, they are not absolute. Since Article 3 recognises them without setting them forth in express terms, let alone defining them, there is room for implied limitations (see the Mathieu-Mohin and Clerfayt v. Belgium judgment of 2 March 1987, Series A no. 113, p. 23, § 52). In their internal legal orders the Contracting States make the rights to vote and to stand for election subject to conditions which are not in principle precluded under Article 3. They have a wide margin of appreciation in this sphere, but it is for the Court to determine in the last resort whether the requirements of Protocol No. 1 have been complied with; it has to satisfy itself that the conditions 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 the Gitonas and Others v. Greece judgment of 1 July 1997, Reports 1997-IV, pp. 1233-34, § 39, and Matthews v. the United Kingdom [GC], no. 24833/94, § 63, ECHR 1999-I).
- Article 3 of Protocol No. 1 appears at first sight to differ from the other rights guaranteed in the Convention and its Protocols, as it is phrased in terms of the obligation for the High Contracting Party to hold elections which ensure the free expression of the opinion of the people rather than in terms of a particular right or freedom. However, having regard to the preparatory work to Article 3 of Protocol No. 1and the interpretation of the provision in the context of the Convention as a whole, the Court has established that it guarantees individual rights, including the right to vote and to stand for election (see, among many other authorities, Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987, §§ 46-51, Series A no. 113; Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, § 56-57, ECHR 2005-IX; and, more recently, Ždanoka v. Latvia [GC], no. 58278/00, § 102, ECHR 2006-IV). Furthermore, the Court has considered that this Article guarantees the individual’s right to stand for election and, once elected, to sit as a member of parliament (see Sadak and Others v. Turkey (no. 2), nos. 25144/94, 26149/95 to 26154/95, 27100/95 and 27101/95, § 33, ECHR 2002-IV).
- The rights guaranteed under Article 3 of Protocol No. 1 are crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law. Nonetheless, those rights are not absolute. There is room for “implied limitations”, and Contracting States must be given a margin of appreciation in this sphere. The Court would reaffirm that the margin in this area is wide (see Matthews v. the United Kingdom [GC], no. 24833/94, § 63, ECHR 1999-I; Labita v. Italy [GC], no. 26772/95, § 201, ECHR 2000-IV; and Podkolzina v. Latvia, no. 46726/99, § 33, ECHR 2002-II). There are numerous ways of organising and running electoral systems and a wealth of differences, inter alia, in historical development, cultural diversity and political thought within Europe which it is for each Contracting State to mould into their own democratic vision (see Hirst (no. 2), cited above, § 61).
- It is, however, 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 the conditions imposed in the right to vote and to stand for election 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 Mathieu-Mohin and Clerfayt, cited above, § 52). In particular, any conditions imposed must not thwart the free expression of the people in the choice of the legislature – in other words, they must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage (see Hirst (no. 2), cited above, § 62). Equally, once the wishes of the people have been freely and democratically expressed, no subsequent amendment to the organisation of the electoral system may call that choice into question, except in the presence of compelling grounds for the democratic order.
- The rights in question are not absolute. Since Article 3 (P1-3) recognises them without setting them forth in express terms, let alone defining them, there is room for implied limitations (see, mutatis mutandis, the Golder judgment of 21 February 1975, Series A no. 18, pp. 18-19, § 38). In their internal legal orders the Contracting States make the rights to vote and to stand for election subject to conditions which are not in principle precluded under Article 3 (P1-3) (Collected Edition of the "Travaux Préparatoires", vol. III, p. 264, and vol. IV, p. 24). They have a wide margin of appreciation in this sphere, but it is for the Court to determine in the last resort whether the requirements of Protocol No. 1 (P1) have been complied with; it has to satisfy itself that the conditions 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, amongst other authorities and mutatis mutandis, the Lithgow and Others judgment of 8 July 1986, Series A no. 102, p. 71, § 194). In particular, such conditions must not thwart "the free expression of the opinion of the people in the choice of the legislature".
- The Court recalls that the rights set out in Article 3 of Protocol No. 1 are not absolute, but may be subject to limitations. The Contracting States enjoy a wide margin of appreciation in imposing conditions on the right to vote, but it is for the Court to determine in the last resort whether the requirements of Protocol No. 1 have been complied with. It has to satisfy itself that the conditions do not curtail the right to vote to such an extent as to impair its very essence and deprive it of effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate. In particular, such conditions must not thwart “the free expression of the people in the choice of the legislature” (see the above-mentioned Mathieu-Mohin and Clerfayt judgment, p. 23, § 52).
- The Court reiterates that Article 3 of Protocol No. 1, which provides for “free” elections “at reasonable intervals”, “by secret ballot” and “under conditions which will ensure the free expression of the opinion of the people”, involves the subjective rights to vote and to stand for election. Yet however important they may be, those rights are not absolute. Since Article 3 recognises them without setting them forth in express terms, let alone defining them, there is room for “implied limitations” (see Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987, § 52, Series A no. 113). Under their respective legal systems, the Contracting States enjoy a wide margin of appreciation in imposing conditions on the right to vote, which conditions are not, in principle, precluded by Article 3, but it is for the Court to determine in the last resort whether the requirements of Protocol No. 1 have been complied with. It has to satisfy itself that the conditions do not curtail the right to vote to such an extent as to impair its very essence and deprive it of effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate.
- The Court reiterates that implicit in Article 3 of Protocol No. 1 are the subjective rights to vote and to stand for election. Although those rights are important, they are not absolute. In their internal legal orders the Contracting States make the rights to vote and to stand for election subject to conditions which are not in principle precluded under Article 3. They have a wide margin of appreciation in this sphere, but it is for the Court to determine in the last resort whether the requirements of Protocol No. 1 have been complied with. It has to satisfy itself that the conditions 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 Sadak and Others (no. 2) v. Turkey, nos. 25144/94 et al., § 31, ECHR 2002-IV).
- It is, however, 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 the conditions 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 Labita v. Italy [GC], no. 26772/95, § 201, ECHR 2000-IV).
- The object and purpose of the Convention, which is an instrument for the protection of human rights, requires its provisions to be interpreted and applied in such a way as to make their stipulations not theoretical or illusory but practical and effective (see, among many other authorities, United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 33, Reports 1998-I; Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 100, ECHR 1999-III; and Lykourezos v. Greece, no. 33554/03, § 56, ECHR 2006-VIII). The right to stand as a candidate in an election, which is guaranteed by Article 3 of Protocol No. 1 and is inherent in the concept of a truly democratic regime, would only be illusory if one could be arbitrarily deprived of it at any moment. Consequently, while it is true that States have a wide margin of appreciation when establishing eligibility conditions in the abstract, the principle that rights must be effective requires that the eligibility procedure contain sufficient safeguards to prevent arbitrary decisions (see Podkolzina v. Latvia, no. 46726/99, § 35, ECHR 2002-II). Although originally stated in connection with the conditions on eligibility to stand for election, the principle requiring prevention of arbitrariness is equally relevant in other situations where the effectiveness of individual electoral rights is at stake (see Namat Aliyev v. Azerbaijan, no. 18705/06, § 72, 8 April 2010), including the manner of review of the outcome of elections and invalidation of election results (see Kovach v. Ukraine, no. 39424/02, § 55 et seq., ECHR 2008-...).
- The rights bestowed by Article 3 of Protocol No. 1 are not absolute. There is room for “implied limitations” and Contracting States have a wide margin of appreciation in the sphere of elections (see Mathieu-Mohin and Clerfayt, cited above, § 52; Matthews v. the United Kingdom [GC], no. 24833/94, § 63, ECHR 1999-I; and Labita v. Italy [GC], no. 26772/95, § 201, ECHR 2000-IV). It is, however, for the Court to determine in the last resort whether the requirements of Article 3 of Protocol No. 1 have been complied with. In particular, it has to satisfy itself that the conditions 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 Mathieu-Mohin and Clerfayt, cited above, § 52, and Gitonas and Others v. Greece, 1 July 1997, § 39, Reports of Judgments and Decisions 1997-IV). Such conditions must not thwart the free expression of the people in the choice of the legislature – in other words, they must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage (see Hirst (no. 2), cited above, § 62).
- Article 3 of Protocol No. 1, which enshrines the individual’s capacity to influence the composition of the law-making power, does not therefore exclude that restrictions on electoral rights could be imposed on an individual who has, for example, seriously abused a public position or whose conduct threatened to undermine the rule of law or democratic foundations (see, for example, X v. the Netherlands, cited above, and, mutatis mutandis, Glimmerveen and Hagenbeek v. the Netherlands, nos. 8348/78 and 8406/78, Commission decision of 11 October 1979, DR 18, p. 187, where the Commission declared inadmissible two applications concerning the refusal to allow the applicants, who were the leaders of a proscribed organisation with racist and xenophobic traits, to stand for election). The severe measure of disenfranchisement must not, however, be resorted to lightly and the principle of proportionality requires a discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned. The Court notes in this regard the recommendation of the Venice Commission that the withdrawal of political rights should only be carried out by express judicial decision (see paragraph 32 above). As in other contexts, an independent court, applying an adversarial procedure, provides a strong safeguard against arbitrariness.
- Furthermore, the object and purpose of the Convention, which is an instrument for the protection of human rights, requires its provisions to be interpreted and applied in such a way as to make their stipulations not theoretical or illusory but practical and effective (see, among many other authorities, United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 33, Reports 1998-I; Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 100, ECHR 1999-III; and Lykourezos v. Greece, no. 33554/03, § 56, ECHR 2006-VIII). The right to stand as a candidate in an election, which is guaranteed by Article 3 of Protocol No. 1 and is inherent in the concept of a truly democratic regime, would only be illusory if one could be arbitrarily deprived of it at any moment. Consequently, while it is true that States have a wide margin of appreciation when establishing eligibility conditions in the abstract, the principle that rights must be effective requires that the eligibility procedure contain sufficient safeguards to prevent arbitrary decisions (see Podkolzina v. Latvia, no. 46726/99, § 35, ECHR 2002-II). Although originally stated in connection with the conditions on eligibility to stand for election, the principle requiring prevention of arbitrariness is equally relevant in other situations where the effectiveness of individual electoral rights is at stake (see Namat Aliyev, cited above, § 72), including the manner of review of the outcome of elections and invalidation of election results (see Kovach v. Ukraine, no. 39424/02, § 55 et seq., ECHR 2008-...).
- The Court also reiterates that, while the Contracting States enjoy a wide margin of appreciation in imposing conditions on the right to vote and to stand for election, 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 the conditions 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 or arbitrary (see Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987, § 52, Series A no. 113; Gitonas and Others v. Greece, 1 July 1997, § 39, Reports of Judgments and Decisions 1997-IV; and Yumak and Sadak v. Turkey [GC], no. 10226/03, § 109 (iii), 8 July 2008).
- The Court recalls that Article 3 of Protocol No. 1 implies subjective rights to vote and to stand for election. As important as those rights are, they are not, however, absolute. Since Article 3 recognises them without setting them forth in express terms, let alone defining them, there is room for implied limitations. In their internal legal orders the Contracting States make the rights to vote and to stand for election subject to conditions which are not in principle precluded under Article 3. The Court considers that the restrictions imposed on the applicants’ right to contest seats at elections must be seen in the context of the aim pursued by the legislature in enacting the Regulations, namely, to secure their political impartiality. That aim must be considered legitimate for the purposes of restricting the exercise of the applicants’ subjective right to stand for election under Article 3 of Protocol No. 1; nor can it be maintained that the restrictions limit the very essence of their rights under that provision having regard to the fact that they only operate for as long as the applicants occupy politically restricted posts; furthermore, any of the applicants wishing to run for elected office is at liberty to resign from his post.
- All such restrictions on the right to be elected must be reasonable, non-discriminatory, and must be defined clearly in law or in the constitution.
- Article 25 of the Covenant on Civil and Political Rights, for example, provides that every citizen has the right, without discrimination, to take party in the conduct of public affairs, to be elected, and to have equal access to public service in his or her country. Those rights are not absolute; however, and may be subject to a variety of reasonable limitations.
- it is therefore recommended that technical requirements/rules should be kept to the absolute minimum.
- No unreasonable limitations [should be] placed on a citizen's ability to participate in the political process, including the right to a secret vote and the right to be elected.
- Any language requirements should not present an unreasonable limitation on candidacies and should be clearly provided for by law. Language tests should be transparent, objective, non-discriminatory and administered fairly.
- At the same time, cancellation (“de-registration”) of candidacy is an extraordinary measure that effectively deprives eligible candidates of the right to stand in election. As such, it may only be applied for the most serious violations of the law following a fair EDR process.
- There must be a minimum age for the right to vote and the right to stand for election; however, attainment of the age of majority, entailing not only rights but also obligations of a civil nature, must at least confer the right to vote. A higher age may be laid down for the right to stand for election but, save where there are specific qualifying ages for certain offices (senator, head of state), this should not be more than 25.
- Certain requirements for public office are allowed by the Covenant, but these are limited to reasonable bases, such as minimum age ... Records of discussions held during the drafting of these provisions are clear on this interpretation.