CEDH · CASELAW;CLIN;ENG — 2 mars 2010

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Romania - 78039/01 Judgment 2.3.2010 [Section III] Article 3 of Protocol No. 1 Choice of the legislature Free expression of opinion of people Post-election dispute concerning parliamentary representation of a national minority: violation   Article 13 Effective remedy Post-election dispute concerning parliamentary representation of a national minority: violation   Facts – The applicant was a candidate in the parliamentary elections of 2000, when he stood for the seat allocated to the Italian minority in Romania. One of the organisations representing the Italian minority nominated him as their candidate in nineteen out of forty-two constituencies. Once all the votes had been counted the central election bureau, under the Elections Act, granted the parliamentary seat belonging to the Italian minority to the organisation to which the applicant belonged. Although he was the candidate from that organisation who had obtained the most votes nationally, the seat in Parliament was given to another member of the organisation who had obtained the most votes in a single constituency. Appeals by the applicant were unsuccessful. Law – Article 3 of Protocol No.   1: The case concerned the allocation of a parliamentary seat and therefore an issue of post-electoral law. The Elections Act did not clearly stipulate the procedure to be followed for the allocation of the parliamentary seat reserved for the winning organisation representing a national minority. The central election bureau had to determine the surname and forename of the first candidate on the list of the eligible organisation which had obtained the most votes. The law did not stipulate whether this meant the highest number of votes nationally or for a single constituency. In the present case the central election bureau had opted for a method based on local representation rather than national representation. This lack of clarity in the electoral rules entailed an obligation on the Romanian authorities to be prudent in interpreting them, bearing in mind the direct impact that their interpretation would have on the result of the elections. The central election bureau had not indicated whether it was the first time the rules had been interpreted in that way or whether there was an established practice in such matters. Nor had it explained why the criterion of local representation applied to national minorities when, in other electoral matters, they benefited from special provisions linked to the criterion of national representation. The Government had not provided any further information. Accordingly, the relevant provisions did not, at the material time, satisfy the requirements of precision laid down in the Court’s case-law. However, the Court took note of the legislative amendment concerning the scope of the impugned provision, which now provided that the parliamentary seat of a national minority organisation was allocated to the first candidate in the constituency where the list of candidates had obtained the most votes, even though that amendment had largely post-dated the facts complained of by the applicant and would not have been capable of remedying his situation. Moreover, the central election bureau and the validation commission of the House of Representatives had examined the applicant’s complaint but had rejected it as ill-founded. The rules of membership of those bodies, which were composed of a large number of representatives of political parties, did not appear to offer sufficient guarantees of impartiality. Secondly, neither the Supreme Court of Justice nor the Constitutional Court nor any other national court had ruled on the interpretation of the disputed statutory provision. It was important for the applicant’s allegations to be examined in the context of judicial proceedings. In those circumstances, the lack of clarity in the electoral legislation pertaining to national minorities and the absence of sufficient guarantees as to the impartiality of the bodies responsible for examining the applicant’s complaints had breached the very essence of the rights guaranteed by Article   3 of Protocol No.   1. Conclusion : violation (unanimously). Article 13 of the Convention in conjunction with Article   3 of Protocol No.   1: The applicant’s right to an effective remedy had been breached on account of the lack of judicial review as regards the interpretation of the electoral legislation in question. Conclusion : violation (unanimously). Article 41: EUR 5,000 in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes