Bakirdzi and E.C. v. Hungary (European Court of Human Rights)

Information Note on the Court’s case-law
November 2022

Bakirdzi and E.C. v. Hungary – 49636/14 and 65678/14

Judgment 10.11.2022 [Section I]

Article 14
Discrimination

Shortcomings of the national minority voting system affecting secrecy of vote, voters’ free political choice and making it impossible for a national minority candidate to win a seat in Parliament: violation

Article 3 of Protocol No. 1
Choice of the legislature
Free expression of the opinion of the people
Stand for election

Shortcomings of the national minority voting system affecting secrecy of vote, voters’ free political choice and making it impossible for a national minority candidate to win a seat in Parliament: violation

Facts – The two applicants are members of two national minorities officially recognised in Hungary: Armenian and Greek. With the intention of enhancing the representation of national minorities in Parliament a new system of national minority voting was adopted in 2014. According to it candidates from the national minority lists could gain a seat in Parliament if they reached a preferential threshold, one-quarter of the number of votes required to gain a ‘regular seat’ in Parliament. Members of the officially recognised thirteen national minorities could register as national minority voters. The applicants who registered as national minority voters for the 2014 parliamentary elections could not vote for the national lists of political parties; instead, they cast a ballot on the closed national minority lists. In the 2014 Parliamentary elections, none of the national minority lists obtained enough votes to win a national minority seat.

Law – Article 3 of Protocol No. 1 in conjunction with Article 14 :

The applicants had focused on three features of the minority voting system.

(a) The alleged absence of prospect of attaining the preferential quota system – Quite differently from cases concerning electoral thresholds (Yumak and Sadak v. Turkey [GC]; Federación Nationalista Canaria v. Spain (dec.)), the present case concerned a statutory scheme with a preferential threshold for minority representatives, introduced as a response to the constitutional concern of ensuring the political representation of national minorities in Hungary.

The preferential threshold was part of a system where national minority candidates could attain the requisite number of votes only from the ballot of national minority voters belonging to the same minority group as themselves. This placed them in a significantly different situation compared to other candidates who could obtain votes from the total eligible electorate. Consequently, the statutory scheme also impinged upon the right of the applicants as national minority voters to associate for political purposes through the vote, in that their candidate could only be endorsed by members of the same national minority. In comparison, other members of the electorate were free to associate with any other like‑minded electors for the advancement of political beliefs.

This disadvantage in the electoral process had not been based on the own choice of national minority candidates or voters to associate with a small political interest group of the population (compare and contrast Partei die Friesen v. Germany), but rather the legislature’s decision to restrict who could cast a ballot on national minority lists.

The preferential threshold for national minority candidates was also intended to reduce the effect of this system. Nonetheless, the number of minority voters belonging to the same national minority in Hungary was not high enough to reach the preferential electoral threshold even if all voters belonging to that national minority were to cast their vote for the respective minority list. In fact, in 2014, 140 voters had been registered as Greek minority voters and 184 as Armenian minority voters, whereas the requisite number of votes to gain a seat in Parliament for a national minority candidate had been 22,000.

States might condition access to parliamentary representation upon the showing of a modicum of support and the Convention did not require States to adopt preferential thresholds in respect of national minorities. However, when setting up a quorum for national minority groups, consideration needed to be given whether that threshold requirement made it more burdensome for a national minority candidate to gather the requisite votes for a national minority seat than it was to win a seat in Parliament from the regular party lists and whether – in turn – that electoral threshold had a negative impact on the opportunity of national minority voters to participate in the electoral process on an equal footing with other members of the electorate.

While not all votes must necessarily have equal weight as regards the outcome of the election, and no electoral system could eliminate “wasted votes”, the national legislator needed to assess whether the statutory scheme created a disparity in the voting power of members of national minorities, as the applicants, in order to avoid that the potential value of votes that might be cast for national minority lists became diluted.

(b) The alleged absence of a free choice for national minority voters – As a consequence of being registered as national minority voters, the applicants could only vote for their respective national minority lists as a whole or abstain from voting for the national minority list altogether. Thus, they had neither the choice between different party lists nor any influence on the order in which candidates were elected from the national minority lists.

Closed lists in themselves could not be considered to unduly restrict the political opportunity of voters. Indeed, even if closed lists tended to limit the field of candidates from which voters might choose, they still allowed them to distribute their vote between the different party lists corresponding to their political preferences.

However, the right to vote encompassed the opportunity for voters to choose candidates or party lists which best reflected their political views, and election regulations should not require voters to espouse political positions that they do not support. From this perspective, the fact that national minority voters could only cast their votes for candidates fixed on the national minority list, irrespective of their political viewpoint, distinguished the present situation from electoral systems with closed lists.

While the system set up for national minority voters did not pressure the applicants in the choice of one or more candidates, it did not allow them to genuinely reflect their will as electors, or to cast their ballot in the promotion of political ideas and programmes of political action, or to associate for political purposes through the vote. The applicants, as national minority voters, could not express their political views or choice at the ballot box, but only the fact that they had sought representation in political decision-making as members of a national minority group.

The Court had doubts that a system in which a vote might be cast only for a specific closed list of candidates, and which required voters to abandon their party affiliations in order to have representation as a member of a minority ensured “the free expression of the opinion of the people in the choice of the legislature”.

(c) The alleged violation of the secrecy of vote – A voting system had to ensure that voting was conducted by secret ballot allowing the electorate to exercise their vote for a preferred candidate freely and effectively, in accordance with their conscience and without undue influence, intimidation or disapproval by others. It also served the larger public interest in ensuring free and fair elections. In practical terms, the matter of for whom an elector had cast his or her vote at a given election should not be made known to the public. The voting system had to assure voters that they would not be compelled directly or indirectly to disclose for whom they have voted.

There was no allegation from the applicants that the procedure in the polling stations had not ensured the secrecy of their votes but rather that since they had only one choice as voters, their electoral choice had indirectly been revealed to everybody. In practice, a national minority voter would be given a ballot paper with the candidates of the national minority list, instead of the ballot paper offering a choice between the different candidates of political parties. Hence, all present in the polling station at the relevant time, especially members of the relevant election commissions, would come to know that the elector had cast a vote for the candidates on the national minority list. Similarly, national minority voters could be linked to their votes during the counting procedure, especially at polling stations where the number of registered national minority voters was limited. As was apparent, the arrangement allowed for the details of how a national minority voter had cast his or her ballot to be known to everybody, and for information to be gathered about the electoral intention of minority voters as soon as they had registered as such. The right to full secrecy had not been available for the applicants as national minority voters. However, secrecy was required to be maintained in the same manner for both national minority voters and voters who decided to cast their votes in favour of a political party or an independent candidate.

The applicants had been substantially limited in their electoral choice, with the obvious likelihood that their electoral preferences would be revealed. The system fell with unequal weight on them because of their status as national minority voters.

Any electoral legislation had to be assessed in the light of the political evolution of the country concerned, so that features that would be unacceptable in the context of one system might be justified in the context of another. That consideration had to apply with even greater force when a Contracting State attempted to introduce a fairer system of representation. There was no requirement under the Convention of different treatment in favour of minority parties. Once the legislature decided to set up a system intended to eliminate or reduce actual instances of inequality in political representation, it was only natural that measure should contribute to the participation of national minorities on an equal footing with others in the choice of the legislature, rather than perpetuating the exclusion of minority representatives from political decision-making at a national level. In the present case, the system that had been put in place limited the opportunity of national minority voters to enhance their political effectiveness as a group and threatened to reduce, rather than enhance, diversity and the participation of minorities in political decision-making.

The combination of the above restrictions on the applicants’ voting rights, considering their total effect, had constituted a violation of Article 3 of Protocol No. 1 taken in conjunction with Article 14.

Conclusion: violation (unanimously).

Article 41: finding of a violation sufficient in respect of non-pecuniary damage.

(See also Federación Nationalista Canaria v. Spain (dec.), 56618/00, 7 June 2001, Legal summary; Yumak and Sadak v. Turkey [GC], 10226/03, 8 July 2008, Legal summary; Partei Die Friesen v. Germany, 65480/10, 28 January 2016, Legal summary)

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