Electoral system which in practice excluded representatives of national minorities from entering the Parliament. Violation of the right to free elections
JUDGMENT
Bakirdzi and E.C. v. Hungary 10.11.2022 (app. no. 49636/14 and 65678/14)
SUMMARY
The European Court of Human Rights found that the system that had been put in place to ensure the
political representation of national minorities in Hungary had ended up limiting their political
effectiveness and threatened to reduce, rather than enhance, diversity and the participation of
minorities in political decision-making. It also doubted that a system in which a vote could be cast
only for a specific closed list of candidates (i.e. without the possibility of expressing a preference for
(a) particular candidate(s)), 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”.
The Court held, unanimously, that the combination of restrictions on the applicants’ voting rights
had constituted a violation of Article 3 of Protocol No.1 to the Convention (right to free elections)
taken in conjunction with Article 14 (prohibition of discrimination) of the European Convention on
Human Rights.
PROVISIONS
Article 3 of the First Additional Protocol
Article 14
PRINCIPAL FACTS
The applicants, Kalliopé Bakirdzi and E.C., are Hungarian nationals born in 1959 and 1990. They live
in Budapest.
There are 13 national minorities in Hungary recognised under the Rights of Nationalities Act.
Ms Bakirdzi belongs to the Greek national minority and E.C. to the Armenian national minority.
Under the Fundamental Law of Hungary, national minorities have to be able to participate in the
work of Parliament. On that basis, the Election Act introduced a system of minority representation
in 2014, whereby self-identified members of national minorities may register as national-minority
voters. They vote for the lists of the national minority they belong to and for single-member district
candidates, whereas other voters vote for a candidate in a single-member district and for a party list.
Each national minority has a closed candidate list on a separate ballot. The minority voter’s only
possibility is to vote or not vote for the single list of his or her national minority (with no influence on
the candidate order). Under the Election Act, the national-minority lists benefit from a preferential
threshold – that is they need fewer votes to gain a seat in Parliament – i.e. one-quarter of the
number needed for the ordinary electoral lists. In the 2014 elections, the threshold to gain a seat for
national-minority candidates was 22,022 votes (dividing the total number of national votes cast by
93 – the number of seats that could be acquired from the national list – then dividing by four).
All 13 recognised national minorities registered lists for the 2014 elections, and a total of 35,289 voters registered as national-minority voters. None of the national-minority lists obtained enough
votes to win a national-minority seat.
THE DECISION OF THE COURT…
The Court noted that the aim of introducing a statutory scheme with a preferential threshold for
minority representatives had been to ensure political representation of national minorities in
Hungary. However, national-minority candidates had to attain the requisite number of votes only
from the ballot of national-minority voters belonging to the same minority group as themselves,
which placed them in a very different situation to other candidates who could obtain votes from the
total eligible electorate. Similarly, other members of the electorate were free to associate with any
other like-minded electors for the advancement of political beliefs, whereas national-minority
candidates and voters were limited to their national community. This disadvantage in the electoral
process was not based on the national-minority candidates’ or voters’ own choice to associate with a
small political interest group of the population but had arisen from a governmental decision.
The Court acknowledged that the preferential threshold for national-minority candidates had been
intended to act as a counterweight to 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 were registered as Greek minority voters and
184 as Armenian minority voters, whereas the required number of votes to gain a seat in Parliament
for a national-minority candidate was 22,000.
The Court considered that, although the Convention did not require States to adopt preferential
thresholds in respect of national minorities, consideration needed to be given, when setting up a quorum for national-minority groups, whether that threshold requirement made it difficult for a
national-minority candidate to reach the required number of votes for a national-minority seat.
Regarding the applicants’ submission that voting for the minority lists deprived them of the
opportunity to cast a meaningful ballot, the Court noted that, as a consequence of being registered
as national-minority voters, they could only vote for their respective national-minority lists as a
whole or abstain from voting for the national-minority list altogether. Therefore, they had no choice
between different party lists nor any influence on the order in which candidates were elected from
the national-minority lists. The Court considered that the right to vote was supposed to give voters
the opportunity 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 did not
support. In practical terms, the applicants could not express their political views or choice at the
ballot box; they could only show that they sought representation in political decision-making as
members of a national-minority group. The Court doubted that a system in which a vote could only
be cast 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”. In addition, it found that, since they
had only one choice as voters, their electoral choice was indirectly revealed, depriving them of the
right to full secrecy.
The Court considered that once it had been decided to set up a system intended to eliminate or
reduce instances of inequality in political representation, it was only natural that that measure
should help to enable national minorities to participate in the choice of the legislature on an equal
footing with others, rather than perpetuate the exclusion of minority representatives from political
decision-making at a national level. In this case, the system that had been put in place limited their
political effectiveness as a group and threatened to reduce, rather than enhance, diversity and the
participation of minorities in political decision-making.
The Court held that the overall effect of the combination of the restrictions on the applicants’ voting
rights constituted a violation of Article 3 of Protocol No. 1 taken in conjunction with Article 14 of the
Convention.
Just satisfaction (Article 41)
The Court held, by six votes to one, that that the finding of a violation constituted in itself sufficient
just satisfaction for any non-pecuniary damage sustained by the applicants. It held, unanimously,
that Hungary was to pay Ms Bakirdzi 7 000 euros (EUR) and E.C. EUR 7 260 euros in respect of costs
and expenses.
Separate opinions
Judges Bošnjak and Derenčinović expressed a joint concurring opinion. Judge Ktistakis expressed a
partly dissenting opinion. These opinions are annexed to the judgment
