Last Updated on November 2, 2019 by LawEuro
FOURTH SECTION
CASE OF CERNEA v. ROMANIA
(Application no.43609/10)
JUDGMENT
STRASBOURG
27 February 2018
FINAL
27/05/2018
This judgment has become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Cernea v. Romania,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Ganna Yudkivska, President,
Vincent A. De Gaetano,
Paulo Pinto de Albuquerque,
Egidijus Kūris,
Iulia Antoanella Motoc,
Georges Ravarani,
Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having deliberated in private on 27 February 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 43609/10) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national, Mr Remus Florinel Cernea (“the applicant”), on 13 July 2010.
2. The Romanian Government (“the Government”) were represented by their Agent, Mrs C. Brumar, of the Ministry of Foreign Affairs. The applicant was given leave, by decision of the Section President, to present his own case to the Court (Rule 36 § 2 of the Rules of Court).
3. The applicant alleged, in particular, a violation of his right to stand,without discrimination, in the by-electionsheld on 17 January 2010.
4. On 17 April 2014 notice of the application was given to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1974 and lives in Bucharest.
A. Background to the case
1. At the material time the applicant was the Executive Chair of the Partidul Verdeecologicalparty, a politicalmovement affiliated with the European Green Party.
2. Partidul Verdehad put up candidates for the 2008 general elections but failed to win any seats. In 2009 the applicant was the party’scandidate in thepresidentialelections. He won about 60,000 votes, or some 0.6 % of the total validly cast votes.
3. The 2008 generalelections had been governed by Law no. 35/2008 on elections to theChamberof Deputiesand theSenate, amending Law no. 67/2004 onlocal authorityelections, Law no. 215/2001 on localpublic authoritiesand Law no. 393/2004 on thestatusof local elected representatives (“Law no. 35/2008”; seeparagraph17below). In 2009 Parliamentamended Law no. 35/2008 under Law no. 323/2009 approving Emergency Order no. 97/2008 (“Law no. 323/2009”; seeparagraph18below). That amendment made it impossible forpartiesnot represented inParliament, as well asindependentcandidates, to put up candidates for or stand in parliamentary by-elections.
B. Parliamentary by-electionsof 17 January 2010
4. Parliamentary by-electionswere scheduled for 17 January 2010 in order to fill a vacant seat in aBucharestconstituency. According to information available to theCourt, that seat had fallen vacant inOctober 2009.
5. Partidul Verdesubmitted the applicant’scandidacy to the Electoral Board on the party’s behalf.
6. On 29 December 2009 the Electoral Board rejected the candidacy on the grounds thatPartidul Verdewas notrepresented inParliament.
7. Partidul Verde, representedby the applicant, challenged thatrejection beforeBucharestCounty Court (“theCounty Court”) and requested the acceptance of the applicant’s candidacy. It entered anobjection of unconstitutionalityunder section 48 (17) of Law no. 35/2008 (see paragraph18below). Italleged in particular that the ban on candidatesfromparties not represented inParliamentandindependentcandidates infringed the right to freeelectionsand amounted to unjustifieddiscrimination as compared withpartiesrepresented inParliament. The party added that, contrary to therecommendationsof theEuropean Commission for Democracy through Law (“theVenice Commission”; seeparagraphs20 and 21below), Law no. 35/2008 had been amended less than one year before the by-elections.
8. Byinterlocutory decisionof 30 December 2009 the County Courtdeferred its ruling so that the ConstitutionalCourt could consider the objection of unconstitutionality.
9. ByDecision no. 61/2010 of 14 January 2010, the Constitutional Courtdismissed the objectionof unconstitutionality. Having reiterated that Parliament’spolitical structure wasdefined bygeneralelections, the ConstitutionalCourtrejectedPartidul Verde’s argumentsas follows:
“The [Constitutional] Courtobserves that the reason for the holding of the parliamentary by-elections was the fact that aparliamentary seat had fallen vacant. Such by-electionsare held in order to assign seats in Parliament while simultaneously respecting the structure ofParliamentas it emerged from the latestgeneralelections. In order to respect thesovereignty and the will of the electorate as expressed in the framework ofgeneralelections, it is necessary that the by-election stage, which is subsidiary andcomplementary to thegeneralelections, should observe the electoralthreshold criterion which allows politicalparties to berepresented inParliament. To allow candidates to stand in by-electionsforpoliticalparties which are not represented inParliamentwould alter the latter’s politicalstructure, [which is] incompatible with the votes cast by the electorate during thegeneralelectionswhich led to the constitution of theRomanian people’s supremerepresentative body, with a specific political make-up, which can only bemodified in the cases and conditions determined by law.
…
Moreover, allowing a person who does not belong to apartyrepresented inParliamentto obtain aparliamentarymandate further to by-electionswould be tantamount to allowing something which had not been obtained in the framework of generalelections to beobtained by the ‘devious means’ of a by-election.”
10. As regards the plea based on the recommendations of the Venice Commission, the ConstitutionalCourtassessed it “with reservations”. It notedthat the said recommendations advised against amending the electoral law less than one year before any elections, but that they also comprised thehypothesis that suchamendments “should beadopted at the level of the Constitution or at a level higher than that of ordinary law” (see paragraph20below). In the present case the Constitutional Court ruled that the recommendation had been complied with because the amendment to Law no. 35/2008 had been effected under an organic law, which met the criterion of a “level higher than that of ordinary law” (see paragraph 16 below).
11. Byjudgmentof 30 March 2010theCounty Court dismissed the party’s challenge,referring to thereasoning of the ConstitutionalCourt in its aforementioneddecisionof 14 January 2010, to the effect thatsince Partidul Verde had failed to pass the electoralthreshold in thegeneralelections it could not put upcandidatesfor the by-elections. The County Court further noted that theelectionshad already been held and that the challenge had therefore become devoid of purpose.
C. Subsequent developments
12. Fresh parliamentary by-elections were scheduled for 25 April 2010in Bucharest to fill another vacant seat.
13. The applicant stood as an independent candidate. His candidacy was rejected by the Electoral Board pursuant to section 48 (17) of Law no. 35/2008. The applicant appealed to the County Court against the rejection of his candidacy, and lodged a fresh objection of unconstitutionality.
14. By Decision no. 503/2010 of 20 April 2010, the ConstitutionalCourtallowed the objection of unconstitutionality lodged by the applicant anddeclared the part of the impugned section prohibitingindependent candidacies unconstitutionalon the grounds that it infringed the right to stand for election. The relevant parts of that decisionread as follows:
“Although, as regardspolitical parties which are not represented inParliament, the ConstitutionalCourt’s Decision no. 61 of 14 January 2010 set out thereasonsjustifying, in the light ofconstitutional standards, theeliminationof such parties from by-elections, as regardsindependent candidates noreasonwas given forsubjecting them to the same legal treatment. Thus the electoral threshold means that politicalpartiesmust be representative,to some extent, of the electorate,as required by the sovereigntyprinciple. in the case of independent candidates, however, such a criterion would be absurd; … they are asked to submit support lists comprising the signatures of aminimum 4% of all the voters registered in the permanent electoral lists of the boards to which they submit their candidacies, [and the total number should not be lower that] 2,000 electors in the case of the Chamber of Deputies and 4,000 electors in the case of the Senate. Consequently, for general elections, thelegislature had laid down this precondition, which is necessary in order to stand as an independent candidate, and simultaneously in order toexercisethe right to be elected. Nevertheless, in relation to by-elections, the legislature failed to lay down the requisite conditions for thiscategory of persons standing for election, providing that the category ofcandidatesfor by-elections comprised only politicalparties and organisations ofcitizensbelonging to nationalminorities having passed the legalelectoralthreshold at thegeneralelections, whether individually or in the framework of a politicalorelectoral alliance. That being the case, it is a case notof settinglimitson orcircumscribing the manner ofexercising the right to be elected, but of annulling that right by failing torecognise it, [by an] unlawful absence ofregulation.
…
In conclusion, the Electoral Law may specify the conditions in which an individual may stand for election as an independent (financial deposit, a specific number of supporters, etc.), but it can in no way exclude from the electoral process, in the case of by-elections, the candidacy of a person [standing as an] independent candidate without thereby infringing the fundamental right enshrined in Article 37 of the Constitution – the right to be elected.”
15. The applicant stood in the 2012 generalelections and obtained a seat in the Chamber of Deputies for a four-year mandate.
II. RELEVANT DOMESTIC LAW
16. UnderArticle 73 of theRomanian Constitution, Parliamentenactsconstitutionallaws, organic laws andordinary laws. Inparticular,organic laws are used in very specific fields, exhaustively listed in Article 73 § 3 of the Constitution. These fields include the electoral systemand the organisation andfunctioning of the permanentelectoral authority. Pursuant to Article 76 § 1 of the Constitution, organic laws are enacted on amajorityof themembersof each ChamberofParliament, unlikeordinary laws, which, under Article 76 § 2, are enacted on amajorityof members present.
17. Law no. 35/2008, which was enacted byParliamenton 13 March 2008 according to the setprocedurefororganic laws, governsparliamentaryelections to theChamberof Deputiesand theSenate. It provides for forty-three constituencies nationwide, each made up of severalwards.TheLawdefines a single-member ward (colegiu uninominal) as a unit of anelectoralconstituency in which one mandateonly is assigned. Section 29 (1) of the Law provides that each entity participating in the election (apoliticalparty, apoliticalorelectoralalliance oran organisation ofcitizensbelonging to a national minority) can put up one candidateonly in an electoralward. Inparticular, section 30 of the Law lays down that anindependentcandidatemustprove that he or she is supported by at least 4% des electorsregistered on the electoral rolls in thewardin which he or she is proposing to stand, provided that this proportion amounts to at least 2,000 voters in the case of the Chamberof Deputiesand 4,000 in the case of theSenate. The Law also provides that by-electionsshould be held where electionsare cancelled in a given constituency or where a deputy’s or senator’s seat has fallen vacant.
Moreover, section 47 (2) of the Law concerns the electoral threshold to be attained by “candidates for political parties, political alliances, electoral alliances or organisations of citizens belonging to national minorities”. The threshold is set, as a generalrule, at 5% ofvotes validly cast at the national level, and there is also a requirement onobtaining at least six single-member wards for theChamberof Deputiesand threesingle-member wards for theSenate. The threshold is slightly higher forpolitical andelectoral alliances, and aspecialthreshold is set for organisations ofcitizensbelonging to nationalminorities. Section 48 of the Law provides that votes should be distributed in two stages. The first distribution of votes takes place at constituency level, according to the individual constituency’selectoralquotient; section 48 (3)provides that that quotient should becalculated on the basis of the number of votes validly cast forpolitical formations which have passed the electoralthreshold and thenumberof Deputiesand Senatorsto be elected in the constituency. Section 48 (4)governs the assignment of seats to independentcandidates. The latter are assigned a seat if they haveobtained amajorityof thevotes validly cast in theward in which they were standing.Under section 48 (5), unused votes and votes falling below the electoralquotient for a given constituency are redistributed at national level during thesecondstage.
18. The Government amended Law no. 35/2008 under an Emergency Order of 27 August 2008. In the framework of its review of that Order, Parliamentenacted Law no. 323/2009 of October 2009 (“Law no. 323/2009”) under theprocedurelaid down fororganic laws. Pursuant to the latter law a new requirement was introduced into Law no. 35/2008 concerning by-elections. That amendment related to section 48 (17), which now provides:
“By-electionsare open only topoliticalparties and organisations of nationalminorities which passed the threshold [for access toParliament] at the general elections …”
19. Law no. 35/2008 wasinforce until 26 July 2015, when it wasreplaced by a new Electoral Law.
III. RELEVANT INTERNATIONAL LAW
20. At its 52nd session the VeniceCommission adopted a Code of Good ConductinElectoralMatters(CDL‑AD (2002) 23 rev.), which comprisesguidelinesand anexplanatoryreport expanding on theprinciplesset out in the latter. The relevant provisionsof the guidelines read as follows:
II. Conditions for implementing these principles
…
2. Regulatory levels and stability of electoral law
“a. Apart from rules on technical matters and detail – which may be included in regulations of the executive – rules of electoral law must have at least the rank of a statute.
b. The fundamental elements of electoral law, in particular the electoral system proper, membership of electoral commissions and the drawing of constituency boundaries, should not be open to amendment less than one year before an election, or should be written in the constitution or at a level higher than ordinary law.”
21. The provisionsof theexplanatoryreport aredescribed in the case ofTănase v. Moldova ([GC], no. 7/08, § 86, ECHR 2010). Inparticular, theexplanatoryreportrecommends avoiding“changing them frequently or just before (within one year of) elections” (see paragraph 65 of theexplanatoryreport).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION READ IN CONJUNCTION WITH ARTICLE 3 OF PROTOCOL No. 1 TO THE CONVENTION
22. The applicant complained of a violation of his right to stand in the by-elections of 17 January 2010 without discrimination. He relied in particular on Article 14 of the Convention read in conjunction with Article 3 ofProtocolNo. 1 to the Convention.
Article 14 of the Convention reads as follows:
“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.”
Article 3 ofProtocolNo. 1 to the Convention 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.”
A. Admissibility
23. The Government raised objections as to the applicant’s lack of victim status and non-exhaustion of domestic remedies. They submitted that all the requisite domestic action had been taken by Partidul Verde but not by the applicant. They considered that the latter had not put forward in his own name before the domestic courts the complaint raised before theCourt. Under those circumstances the Government argued that Partidul Verde should have applied to the Court rather than the individualcandidate.
24. The applicant had made no submissions on the admissibilityof the application.
25. TheCourt observes that the two objections raised by theGovernmentare closely interconnected inasmuch as they both concern the applicant’s locus standi before theCourt. It will therefore consider them together.
26. The Court notes that asuccessful appeal was lodged at the domestic level on behalf of Partidul Verde, of which the applicant was amember. It was specifically the applicant, in his capacity as a private individual, who represented the partyand actively participated in the domesticproceedings (see paragraph 7above). The Government, moreover, did not state that the applicant could have had recourse to a different domestic remedy to secure the examination of the legal issue which arises in the present case or to seek scrutiny of another legal issue or obtain a different outcome. The Courtaccordingly takes the view that the applicant can claim to be thevictimof a violation of his rights and that he exhausted the domestic remedies available to him.
27. Finally, theCourt notes that the implementation of Law no. 323/2009 to the impugned by-electionshad theeffectof excludingcandidatesofpartieswhich are notrepresented inParliament and independentcandidates from the election race (see paragraph18above). It observes, however, that the applicant intended to stand on behalf ofPartidul Verdeand not as an independentcandidate. It will therefore not include the restriction onindependent candidacies in the framework of by-electionsin its assessment of thepresentcase.
28. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
29. Having described the Romanian electoralsystem in detail, characterising it as “themostrestrictiveand leastdemocratic [such system] in Europe”, theapplicant submitted that smallpoliticalparties were discriminated against in parliamentaryelections and found it difficult to pass theelectoralthreshold required by the Electoral Law. He considered that this state of affairs had played against hispartyduring the 2008 generalelections owing to the large sums of money required under the ElectoralLaw as adepositfor eachcandidate. He argued that the version of the Electoral Law as amended before the by-electionsof 17 January2010had been discriminatory to the extent that it excluded candidacies not supported by apartyrepresented inParliament.
30. The applicant contested theGovernment’s argument that the aim of by-electionswas to respect the will of thepeopleas expressed duringgeneral elections. In ademocratic society, voters should be allowed to change their minds. He consideredthat the samerulesandprinciplesshould be applied togeneral elections and by-elections, and that the importance of the right to stand for election took precedence over the need to preserve the political structure of Parliament. The applicant also rejected the argument that independentcandidates could win parliamentary seats because inpractice it was impossible to obtain half of all votes in any one constituency. He concluded that the alleged restriction on his right to stand for election was neitherproportionate norjustified.
31. The Governmentstated that the applicant’sparty had put up candidates at the 2008 general electionsbut had won no seats. They explained that the January 2010 by-elections had beenexceptionalbecause a parliamentary seat had fallen vacant. They discerned two different situations in the aforementionedelections, considering that general elections and by-electionspursued different aims. The Government took the view that thedifferencein the regulations governing by-electionswasjustified by the need to respect the will of the peopleas expressed during generalelections.
32. The Governmentadded that the measurecriticised in the instant case was proportionate. The existence ofspecificconditions for generalelectionswas not such as to infringe the essence of the right to stand for election. The Governmentsubmitted, moreover, that the ConstitutionalCourt had found in the instant case that the ban on independentcandidates standing had not beenjustified and that the Electoral Law had been amended accordingly (Decision no. 503/2010 of 20 April 2010; seeparagraph 14above). They added that themeasure applied in the applicant’s case had been temporary and that in any case he hadbeen elected to Parliament in the 2012 general elections.
2. The Court’s assessment
a) General principles
33. The Court reiterates that discrimination means treating differently, without an objective and reasonable justification, persons in similar situations. “No objective and reasonable justification” means that the distinction in issue does not pursue a “legitimate aim” or that there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see, among many other authorities, Sejdić and Finci v. Bosnia-Herzegovina[GC], nos. 27996/06 and 34836/06, § 42, ECHR 2009). The scope of a Contracting Party’s margin of appreciation in this sphere will vary according to the circumstances, the subject matter and the background (see Andrejeva v. Latvia [GC], no. 55707/00, § 82, ECHR 2009).
34. The Court further reiterates that 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). as regards the method of appointing the “legislature”, Article 3 provides only for “free” elections “at reasonable intervals”, “by secret ballot” and “under conditions which will ensure the free expression of the opinion of the people”. Subject to that reservation, it does not create any “obligation to introduce a specific system” such as proportional representation or majority voting with one or two ballots. Here too the Court recognises that the Contracting States have a wide margin of appreciation, given that their legislation on the matter varies from place to place and from time to time (ibid., § 54).
35. Electoral systems seek to fulfil objectives which are sometimes scarcely compatible with each other: on the one hand, to reflect fairly faithfully the opinions of the people, and on the other, to channel currents of thought so as to promote the emergence of a sufficiently clear and coherent political will. In these circumstances the phrase “conditions which will ensure the free expression of the opinion of the people in the choice of the legislature” implies essentially – apart from freedom of expression (already protected under Article 10 of the Convention) – the principle of equality of treatment of all citizens in the exercise of their right to vote and their right to stand for election. 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”. For the purposes of Article 3 of Protocol No. 1 to the Convention, any electoral system must be assessed in the light of the political evolution of the country concerned; features that would be unacceptable in the context of one system may accordingly be justified in the context of another, at least so long as the chosen system provides for conditions which will ensure the “free expression of the opinion of the people in the choice of the legislature” (ibid., § 54).
36. TheCourtalso reiterates thatthe words “free expression of the opinion of the people” mean that elections cannot be conducted under any form of pressure in the choice of one or more candidates, and that in this choice the elector must not be unduly induced to vote for one party or another (see Yumak and Sadak v. Turkey [GC], no. 10226/03, § 108, ECHR 2008). The word “choice” means that the different political parties must be ensured a reasonable opportunity to present their candidates at elections (see Yumak and Sadak, cited above, § 108).
37. That being said, the rights enshrined in Article 3 of Protocol No. 1 to the Convention are not absolute.There is room for implied limitations, and Contracting States must be given a margin of appreciation in this sphere (see, among other authorities, 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). As regards the right to stand as a candidate for election, which is the so-called passive aspect of the rights guaranteed by Article 3 of Protocol No. 1 to the Convention, the Court has been 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, the so-called active aspect of the rights set out in Article 3 of Protocol No. 1 (see, to the sameeffect, Etxeberria and others v. Spain, nos. 35579/03 and 3 others, § 50, 30 June 2009, andŽdanoka v. Latvia [GC], no. 58278/00, § 115, ECHR 2006‑IV).
38. However, it is for the Court to determine in the last resort whether the requirements of Protocol No. 1 have been fulfilled; 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 thus 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 Ždanoka, cited above, § 104).
b) Application of thoseprinciplesto the present case
i. Existence of adifferenceoftreatment provided for by law
39. TheCourt notes that the applicant complains that he was unable to stand for the by-electionsof 17 January 2010 owing to the amendments to the Electoral Law. It observes thatas the candidate of a party not represented in Parliament, the applicant had not been allowed to stand in the by-election, whereas he would have been permitted to do so if his party had already been represented in Parliament. There was therefore adifferenceoftreatmentin the present case as regards the applicant’s ability to stand for election as arepresentative of apoliticalparty.
40. TheCourtfurther notes that the domestic authoritiesalso replied to the applicant’s plea based on therecommendationsset out in the Venice Commission’s Code of Good Practice in Electoral Matters. In this connection, the ConstitutionalCourtreferred to the provisionsof the guidelinesof that Code, whichrecommend either avoiding amending the electoral law less than a year before any elections or writing such amendments “in the constitution or at a level higher than ordinary law” (see paragraph20above). The ConstitutionalCourt ruled that the VeniceCommission’s recommendation had been complied with because Law no. 35/2008 had been amended under anorganic law, thus satisfying the criterion of a level higher than anordinary law. The Court takes note of the Constitutional Court’s conclusion inasmuch as, under the Romanian system covered by the Venice Commission’s recommendations, organic laws require a broader consensus since they are enacted on a majority of the members of both chambers of Parliament, unlike ordinary laws, which are enacted on a majority of members present (see paragraph 16 above). The Courtalso has regard to theparticularcontext of by-elections,noting that they are notdesigned to be held at regular, foreseeable intervals, are random in nature and depend onparliamentary seats falling vacant. Furthermore, the Court notes that the legislative procedure for amending the Electoral Law began in August 2008 and ended with the enactment of Law no. 323/2009 of 20 October 2009 (see paragraph 18 above), and that the by-elections in issue in the present case were held in January 2010.
ii. Legitimate aim of thedifferenceintreatment
41. It is incumbent on the Court to ascertain, in the light of the above-mentioned principles, whether the system complained of pursued a legitimate aim and whether there was a reasonable relationship of proportionality between the means employed and the aim pursued. Applying these two criteria will enable it to establish whether the impugned measures amounted to discrimination in breach of Article 14 of the Convention and whether they impaired the very essence of the right to the free expression of the opinion of the people within the meaning of Article 3 of Protocol No. 1.
42. TheCourt notes that the parties disagree on whether thedifference in treatmentpursued alegitimate aim. The Government submitted that the restrictions on candidacies during the by-elections had been aimed at ensuring compliance with the will of the people as expressed in the general elections, which view was contested by the applicant on the grounds that the same rules and principles should apply to both general elections and by-elections (see paragraphs 30 and 31 above).
43. Unlike certain other provisions of the Convention, Article 3 of Protocol No. 1 does not specify or limit the aim which a measure must pursue. A wider range of purposes may therefore be compatible with this Article (see Sukhovetskyy v. Ukraine, no. 13716/02, § 62, ECHR 2006‑VI). In the present case, the Court can agree with the Government that by requiring candidates for by-elections to come from political parties that were represented in Parliament and had therefore passed that electoral threshold at the general elections, the new Electoral Law was geared to reinforcing the expression of the people’s will concerning the choice of legislature (see, mutatis mutandis, Yumak and Sadak, cited above, §§ 121-125, as regards electoral thresholds, and Özgürlük ve Dayanışma Partisi (ÖDP) v. Turkey, no. 7819/03, §§ 37-42, ECHR 2012, as regards the public financing of political parties depending on a representation threshold).
44. TheCourt notes that the applicant submitted to the domestic authorities the complaint now before it; he complained, in particular, of the allegeddiscriminatory nature of the ban oncandidatesfromparties notrepresented in Parliamentstanding in by-electionsand of the change to the Electoral Law less than a year before those by-elections, which he claimed had contravened theVeniceCommission’s recommendations(see paragraph7above). The domesticauthoritiesexamined all his pleas and dismissed his appeal by a reasoned decision. The Court observes in particular that in its decision of 14 January 2010 the Romanian Constitutional Court held that the restrictions imposed during the by-elections had been justified by the need to preserve the structure of Parliament as it had emerged from the general elections (see paragraph 9 above). Like theRomanianConstitutionalCourt, theCourtdoes not challenge the aim ofpreserving the structure ofParliamentand preventing the fragmentation ofthepolitical spectrum emerging from the general elections, which aim could justify the restriction on candidatesfrompartiesunrepresented inParliamentwishing to stand in the by-elections.
iii. Proportionalityof thedifferenceintreatment
45. TheCourt reiterates that it has ruled that the setting of electoral thresholds was a discretionary matter for the national authorities since such thresholds were geared to promoting sufficiently representative political views and helped prevent the excessive fragmentation of Parliament (see Yumak and Sadak, cited above, §§ 113-115, and the referencestherein). Inthe instant case, in order to justify the limitation imposed during the by-elections, the Constitutional Court had taken into account the electoral threshold which political parties had to pass in order to enter Parliament. The Court notesthat the applicant did not explicitly contest the setting of electoral thresholds in the Romanian electoral system: in fact he submitted that the same rules and principles should apply to all elections, covering both general elections and by-elections (see paragraph 30above).
46. In that regard, the Court notes that the by-electionsinquestion had had been organised in respect of one single parliamentary seat which had fallen vacant in a Bucharest constituency (see paragraph4above). That being the case, the limitation of Mr Cernea’s right had to be kept in perspective, especially since he had stood in the 2008 general elections, when his party had failed to pass the electoral threshold to enter Parliament (see, mutatis mutandis, Dupré v. France (dec.), no. 77032/12, § 26, 3 May 2016). In that context, the Court takes note of the Constitutional Court’s argument that the aim of by-elections was not to open a backdoor to a parliamentary seat for a party which had failed to obtain seats at the general elections (see paragraph 9 above). It therefore holds that the domestic authorities were objectively and reasonably justified in limiting the right in question and that that limitation was reasonable and proportionate.
iv. Conclusion
47. In conclusion, theCourtconsiders that the amendment to the Electoral Law which led to the restrictionof the applicant’s right to stand in the by-electionsof 17 January 2010 on the grounds that he was not standing for a politicalpartyrepresented inParliamenthad had an objective andreasonable justification, that that amendment did not infringe the very essence of the right to the people’s freedom ofexpression, and that, consequently, it was not disproportionate to thelegitimate aim sought to be achieved.
48. There has accordingly been no violation of Article 14 of the Convention read in conjunction with Article 3 ofProtocolNo. 1 to the Convention.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declaresthe application admissible;
2. Holds that there has been no violation of Article 14 of the Convention read in conjunction with Article 3 of Protocol No. 1 to the Convention.
Done in English, and notified in writing on 27 February 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Andrea Tamietti Ganna Yudkivska
Deputy Registrar President
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