Gender quotas in combinations of candidates in national elections. Party exclusion due to gender quota violations in accordance with the ECHR
JUDGMENT
Zevnik and others v. Slovenia 5.12.2019 (no. 54893/18)
SUMMARY
Right to Free Elections and Electoral Legislation.
Two of the applicants are political parties that have nominated themselves in the elections. These parties were owned by two of the applicants. Participation in the parties was rejected because there was no required quota of 35% for the combinations with the candidates. Domestic Courts have irrevocably dismissed the parties’ appeals for breach of electoral law.
The Court agreed that the provisions on gender requirements were sufficiently and clearly defined in national law, noting that the promotion of gender equality was a major objective between the Council of Europe States and the applicants were able to foresee that non-compliance would result in the rejection of their combination in the elections. Having regard to the wide discretion accorded to States in the organization and functioning of electoral systems, the Court has found that the rejection of combinations of candidates cannot be considered disproportionate, therefore there has been no violation of Article 3 of the First Protocol.
As regards the infringement of the right to freedom of expression by the television stations’ refusal to allocate free broadcast time to parties, Strasbourg found that the measure criticized by the applicants was based on objective and rational justification because the parties did not found the complaint unfounded.
PROVISIONS
Article 3 of the First Additional Protocol
Article 10
PRINCIPAL FACTS
The applicants are three Slovenian nationals, Metka Zevnik, born in 1946, Aleš Primc, born in 1973,
and Franc Kangler, born in 1965, and two political parties, Lista Franca Kanglerja – Nova ljudska
stranka (Kangler’s New People’s Party) and Glas za otroke in družine (The Voice for Children and
Families).
The fourth and fifth applicants, political parties, formed a coalition in 2018 for early parliament
elections due in June of that year. The coalition submitted lists of candidates to all of Slovenia’s eight
constituencies.
In May 2018 the electoral commissions of the first and sixth constituencies rejected the coalition’s
lists, which included the first and second applicants, as they had not met the required level of 35%
gender representation, in this case for females, as a share of the total actual number of candidates
on each list.
Representatives of the rejected lists appealed to the Supreme Court: they argued that the number of
women on both lists was more than 35% of the total number of candidates as the same female
candidates would run in more electoral districts in the constituencies in question. Alternatively, the
electoral commissions should have given the party time to correct the problem.
The Supreme Court dismissed their appeals. Among other things, it held that the gender quota
requirement in the law was clear and that what mattered was the number of actual candidates
rather than the fact that the same person would stand in several districts.
The representatives of the rejected lists appealed further to the Constitutional Court, which voted by
seven to two against considering the case. It found that election lists had to be submitted in good
time and be in conformity with the law, which was clear on the quota requirements.
THE DECISION FO THE COURT…
Article 3 of Protocol No. 1
The Court noted that the rejection of the lists in the two constituencies could have affected the
coalition’s result at national level and thus the third applicant’s chances of being elected as he had
been on a list which had been accepted. The rejection of the two lists had thus interfered with the
passive electoral rights guaranteed by the Convention.
The applicants had argued that the legislation on gender representation was unclear and ambiguous
but the Court noted that Slovenia’s two highest domestic courts, relying on a literal reading of the
Election Act and on their own case-law, had held that the provisions and the penalties for
non-compliance with them were clear and foreseeable.
The Court agreed that the provisions on gender requirements were indeed sufficiently clearly
defined in national law and that the applicants had been able to foresee that non-compliance would
result in the rejection of their candidate lists.
The Court, noting that the advancement of equality of the sexes was a major goal among Council of
Europe States, also held that the interference in question had pursued the legitimate aim of
strengthening democratic legitimacy by ensuring a better balance of women and men in political
decision-making.
The Court lastly dealt with the question of whether the rejection of the lists had been proportionate
to the legitimate aim pursued. Guidance could be found in Council of Europe documents, which not
only allowed but also encouraged the adoption of gender quotas in electoral systems, with strict
penalties for lack of compliance. The Court also gave weight to the Constitutional Court’s view that
there was a strong impetus for political parties to respect gender representation rules if they knew
beforehand that they could be excluded from elections for failure to observe them.
The domestic courts had also taken account of the reasons for non-compliance, with the outcome of
the balancing of the right to stand for election against the need to ensure observance of the gender
quota rules depending on whether the list had been composed in a diligent manner and whether the
organisation which had drawn it up had knowingly breached the gender rule.
In the applicants’ case, the courts had established that the coalition had acted without due diligence
and had been the only one to blame for the fact that the rules had not been met.
Nor could the courts have arbitrarily excluded male candidates from the lists or given the applicants
more time to correct the shortcomings. The Supreme Court and the Constitutional Court had found
that remedying the issue would have required the necessary electoral tasks being carried out anew.
However, the original lists had been handed in only one day before the end of the deadline, meaning
that the necessary changes would have had to be done after that date.
The Court therefore accepted that the decision not to allow the corrections had been based on the
legislature’s legitimate concern to ensure the timely completion of the electoral process and respect
for the principle of equal suffrage.
Given its considerations in the case and the wide discretion (“margin of appreciation”) given to
States when organising and running electoral systems, the Court found that the rejection of the lists
of candidates could not be considered as disproportionate. The applicants’ complaint was therefore
manifestly ill-founded and had to be rejected.
Article 10 and Article 3 of Protocol No. 1
The Court noted that that the applicants had also complained under Article 3 of Protocol No. 1 about
broadcaster RTV Slovenia’s refusal to give the coalition free airtime at national level because it had
not had electoral lists in all the constituencies.
The Court observed that the broadcaster’s decision had been based on the legislation and rules
which it followed, which gave airtime without distinction between political forces as long as they had
lists of candidates in all eight constituencies, meaning that it was afforded to those who attempted
to cover the electorate as a whole and not just the constituency in which they had their list.
Furthermore, the applicants had not argued that they had not been able to access paid airtime,
prevented from campaigning where their lists had been accepted or hindered from using other
available methods of electioneering.
The Court took the view that the measure criticised by the applicants had been based on an
objective and reasonable justification and it did not discern any exceptional circumstances to
warrant a different conclusion. The complaint was therefore manifestly ill-founded and had to be
rejected.
It made the same finding about the applicants’ near identical complaint under Article 10.
Article 6
The Court reiterated that this provision did not apply to proceedings concerning electoral disputes
and the applicants’ complaint under this heading had to be rejected as inadmissible.
