4.7. Political participation: freedom of expression, assembly and association, and free elections

Handbook on European non-discrimination lawContents

EU law confers a limited range of rights in this respect. Article 10 (3) of the TEU provides that every citizen shall have the right to participate in the democratic life of the Union and decisions shall be taken as openly and as closely as possible to the citizen. Article 11 of the TEU[408] obliges the institutions to give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action. Article 20 of the TFEU provides, in particular, the right for EU nationals to vote and stand as a candidate in municipal elections and European Parliament elections. The EU Charter guarantees freedom of expression and information (Article 11),[409] freedom of assembly and of association (Article 12), and political rights regarding the European Parliament and municipal elections (Articles 39 and 40).

Example: In Spain v. United Kingdom,[410] the CJEU held, as regards Arti- cle 20 (2) (b) of the TFEU, that that provision is confined to applying the principle of non-discrimination on grounds of nationality in exercising the right to vote in elections to the European Parliament, by providing that every citizen of the Union residing in a Member State of which he or she is not a na- tional is to have the right to vote in those elections in the Member State in which he or she resides, under the same conditions as nationals of that state.

Example: In Delvigne,[411] a French national contested domestic provisions automatically and permanently stripping him of electoral rights, including the right to vote and stand for elections to the European Parliament, following his conviction for murder and the imposition of a custodial sentence of 12 years. Unable to benefit from subsequent changes to the law, Mr Delvigne continued to be deprived of his civic rights, as that deprivation resulted from a conviction that had become final before the new Criminal Code entered into force. He therefore alleged unequal treatment. The CJEU found that the French law was a permissible limitation on the rights contained in the Charter: a limitation such as that at issue is proportionate, in so far as it takes into account the nature and gravity of the criminal offence committed and the duration of the penalty. Furthermore, the new Code provided for the possibility of a person in Mr Delvigne’s situation to apply for, and obtain, the lifting of the ban.

One of the main goals of the CoE is the promotion of democracy. This is reflected in many of the rights in the ECHR, which facilitate the promotion of political participation. The ECHR contains broad guarantees creating not only a right to vote and stand in elections (Article 3 of Protocol No. 1),[412] but also flanking rights of freedom of expression (Article 10) and the right to freedom of assembly and association (Article 11).

Example: In Pilav v. Bosnia and Herzegovina,[413] a Bosnian politician was deprived of the right to stand for election for the national presidency because of his place of residence. The state Bosnia and Herzegovina is composed of two political entities: the Federation of Bosnia and Herzegovina and Republika Srpska. To effectively exercise the right to participate in elections to the Presidency, the applicant was required to move from Republika Srpska to the Federation of Bosnia and Herzegovina. Therefore, while theoretically eligible to stand for election to the Presidency, in practice, he could not use this right as long as he lived in Republika Srpska. The ECtHR found that the applicant was subjected to discriminatory treatment by the national authorities because of his place of residence and his ethnic origin. Consequently, it concluded that there had been a violation of Article 1 of Protocol No. 12 to the Convention.

Example: In Identoba and Others v. Georgia,[414] the applicants had organised a peaceful demonstration in Tbilisi to mark the International Day against Homophobia. The demonstration had been interrupted by a violent counter- demonstration and the applicants had suffered verbal and physical assaults. In light of the fact that the national authorities had failed to ensure that the march took place peacefully, the ECtHR found a violation of Article 14 in conjunction with Article 11.[415]

Example: In Partei Die Friesen v. Germany,[416] the applicant party had failed to obtain a minimum of 5 % of votes required to obtain a parliamentary mandate. The ECtHR had to decide whether a 5 % threshold violated the right of minority parties to participate in elections. It noted that the applicant’s disadvantage in the electoral process resulted from only representing the interests of a small part of the population. Examining whether, as a national minority party, the applicant party should have enjoyed special treatment, the ECtHR concluded that, even interpreted in the light of the Framework Convention for the Protection of National Minorities, the ECHR did not require the state to exempt national minority parties from electoral thresholds.

The aim of the said Framework Convention was to promote the effective participation of persons belonging to national minorities in public affairs. It provided for the exemption from the minimum threshold as an instrument for enhancing national minority participation in elected bodies, but did not establish an obligation to exempt national minority parties from electoral thresholds. Therefore there had been no violation of Article 14 in conjunction with Article 3 of Protocol No. 1.

The right to freedom of association has also been taken to include protection for the formation of political parties, for which the ECtHR has accorded a high level of protection against interference.[417] Similarly, as noted in Section 5.11, any interference with the right to free speech in the context of political debate is scrutinised very closely.[418]

Under international law, pursuant to Article 29 of the CRPD, states are required to ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others, including by guaranteeing their right to vote. According to Article 12 (2) of the CRPD, states should recognise and uphold the legal capacity of persons with disabilities “on an equal basis with others in all aspects of life”, including political life. The Committee recognised that an exclusion of the right to vote on the basis of a psychosocial or intellectual disability constitutes discrimination on the basis of disability.[419]

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408. See, for example, CJEU, T-754/14, Michael Efler and Others v. European Commission, 10 May 2017, where the CJEU concluded that the Commission infringed, inter alia, Art. 11 (4) of the TEU by refusing to register the proposed European citizens’ initiative entitled ‘Stop TTIP’.

409. See, for example, CJEU, C-547/14, Philip Morris Brands SARL and Others v. Secretary of State for Health, 4 May 2016.

410. CJEU, C‑145/04, Kingdom of Spain v. United Kingdom of Great Britain and Northern Ireland [GC], 12 September 2006.

411. CJEU, C-650/13, Thierry Delvigne v. Commune de Lesparre Médoc and Préfet de la Gironde [GC], 6 October 2015.

412. CoE, ECtHR (2016), Guide on Article 3 of Protocol No. 1 to the European Convention on Human Rights – Right to free elections.

413. ECtHR, Pilav v. Bosnia and Herzegovina, No. 41939/07, 9 June 2016.

414. ECtHR, Identoba and Others v. Georgia, No. 73235/12, 12 May 2015.

415. See also ECtHR, Bączkowski and Others v. Poland, No. 1543/06, 3 May 2007.

416. ECtHR, Partei Die Friesen v. Germany, No. 65480/10, 28 January 2016.

417. See for example ECtHR, Party for a Democratic Society (DTP) and Others v. Turkey, Nos. 3840/10, 3870/10, 3878/10, 15616/10, 21919/10, 39118/10 and 37272/10, 12 January 2016.

418. ECtHR, Karácsony and Others v. Hungary [GC], Nos. 42461/13 and 44357/13, 17 May 2016.

419. See for example, UN, Committee on the Rights of Persons with Disabilities (2013), Communication No. 4/2011, CRPD/C/10/D/4/2011, 9 September 2013, para. 9.2 ff.

Contents

4. Selected areas of protection

4.1. Employment

4.2. Access to welfare and social security

4.3. Education

4.4. Access to supply of goods and services, including housing

4.5. Access to justice

4.6. The ‘personal’ sphere: private and family life, adoption, home and marriage

4.7. Political participation: freedom of expression, assembly and association, and free elections

4.8. Criminal law matters

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