Last Updated on November 2, 2019 by LawEuro
Information Note on the Court’s case-law 215
February 2018
Cernea v. Romania – 43609/10
Judgment 27.2.2018 [Section IV]
Article 14
Discrimination
Exclusion of political party from by-election for failing to reach electoral threshold at last general election: no violation
Facts – In January 2010, after a parliamentary seat had fallen vacant, the applicant applied to stand in the by-election in the constituency in question on a Partidul Verde ticket (an ecologist party which had not passed the electoral threshold at the previous general elections). Owing to a recent change to the Electoral Law, the election was open exclusively to parties represented in Parliament, and his candidature was therefore rejected. The Constitutional Court ruled that the exclusion of parties not represented in Parliament was adequately justified, in respect of the implementation of the electoral threshold, by compliance with the choice of the electorate at the general elections. On the other hand, it ruled the exclusion of independent candidates unconstitutional.
Law – Article 14 of the Convention read in conjunction with Article 3 of Protocol No. 1
(a) Existence and lawfulness of differential treatment – The restriction on independent candidatures was not covered by the present assessment because the applicant had attempted to stand for his party and not as an independent candidate. The differential treatment to be considered therefore exclusively concerned the fact that as 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.
In the present case, the legislative procedure for amending the Electoral Law had been initiated in August 2008 and completed with the enactment of Law No. 323/2009 of 20 October 2009, while the by-election in question had taken place in January 2010. The impugned difference in treatment was therefore prescribed by law.
Complaining of the apparent proximity in date between the enactment of the impugned law and the by-election in question, the applicant relied on the “Code of Good Practice in Electoral Matters” drawn up by the Venice Commission, which recommends: (i) either avoiding amending the electoral law less than a year before any elections; (ii) or writing such amendments “in the constitution or at a level higher than ordinary law”.
That criticism was unfounded. First of all, the impugned amendment had been effected under an organic law. Under the Romanian legal system, organic laws were enacted on a majority vote by the members of both Chambers of Parliament, whereas ordinary legislation was enacted by a majority of members present.
Secondly, by-elections constituted a special case: they were not intended to be held at regular, foreseeable intervals: they were random events which depended on parliamentary seats falling vacant.
(b) Legitimacy of the aim pursued – The applicant submitted that it was illegitimate to apply rules and principles to by-elections different from those which applied to general elections.
Article 3 of Protocol No. 1 did not specify or restrict the aims to be pursued by a given measure. Accordingly, the Court was prepared to accept that the new electoral law had had the aim of enhancing the expression of the people’s views on the choice of the legislature – and more specifically of preserving the structure of Parliament and preventing the fragmentation of the political spectrum represented there following general elections.
(c) Proportionality of the differential treatment – In the first place, the Constitutional Court had justified the restriction imposed during the by-election with the fact that political parties had to pass an electoral threshold in order to enter Parliament (considering that by-elections were not designed to provide parties with a means of circumventing that threshold). The applicant did not explicitly contest the setting of electoral thresholds under 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.
In the second place, since the by-election in issue had been intended to fill only one parliamentary seat which had fallen vacant in one constituency, the restriction on the applicant’s right should be put in perspective, especially since he had stood in the 2008 general elections, when his party had failed to pass the electoral threshold.
Consequently, the impugned restriction had been based on an objective and reasonable justification and had not impaired the very essence of the people’s right to freedom of expression. Nor had it been disproportionate to the legitimate aim pursued.
Conclusion: no violation (unanimously).
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