CEDH · CASELAW;CLIN;ENG — 18 novembre 2008

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Moldova - 7/08 Judgment 18.11.2008 [Section IV] Article 3 of Protocol No. 1 Stand for election Inability of persons with multiple nationality to stand as candidates in parliamentary elections: violation [This case was referred to the Grand Chamber on 6 April 2009] Facts : The applicants are both well-known Moldovan politicians: Mr   Chirtoacă is the Vice-President of the Liberal Party and the Mayor of Chişinău; and, Mr   Tănase the Vice-President of the Liberal Democratic Party and a member of the Chişinău Municipal Council. The Republic of Moldova is situated on territory which used to be part of Romania before World War II. That territory's population lost its Romanian citizenship after the territory's annexation by the Soviet Union in 1940. Following Moldova's declaration of independence in August 1991, a new law was adopted on Moldovan nationality. All those who had lived in the territory of the former Moldavian Soviet Socialist Republic before annexation were proclaimed citizens of Moldova. As descendants of those persons, both applicants obtained Moldovan nationality. In 1991 the Romanian Parliament also adopted a new law on citizenship: former Romanian nationals and their descendants who had lost their nationality before 1989 were   allowed   to re-acquire Romanian nationality. As in 2003 the restriction on Moldovan nationals holding other nationalities had been repealed, the applicants requested and obtained Romanian nationality. In 2008 the Moldovan Parliament reformed the electoral legislation, notably by introducing a ban on those with dual or multiple nationality from becoming members of Parliament (Law   no. 273). Other important amendments included the increasing of the electoral threshold and a ban on all forms of electoral blocks and coalitions. These amendments were enacted and entered into force in May 2008. The next general elections in Moldova will be held in the spring of 2009. It was estimated that, out of the total of 3,800,000 Moldovans, between 95,000 and 300,000 had obtained Romanian nationality between 1991 and 2001; in February 2007 some 800,000 Moldovans had applications pending for Romanian nationality. There also were approximately 120,000 Moldovans with Russian passports. Law : Admissibility – Mr   Chirtoacă had been quite clear in his statements to the press that he would actively participate in the elections, but, even if he was elected to parliament, he did not intend to cumulate the functions of Mayor and an MP. Therefore, he was not affected by Law no. 273 and could not claim to be a victim. Accordingly, the Court declared inadmissible the application in respect of Mr   Chirtoacă. Mr   Tănase, on the other hand, was directly affected by the new electoral law because, if elected, he would have to make the difficult choice between sitting as an MP and renouncing his dual nationality. Indeed, awareness of that difficult choice could have an adverse effect on the applicant's electoral campaign, both in terms of his personal investment and effort and in terms of the risk of losing votes with the electorate. His complaint was therefore declared admissible. Merits – The ban preventing Moldovan nationals holding other nationalities from being elected to Parliament had interfered with Mr Tănase's right to stand as a candidate in free elections and to take his seat in Parliament if elected. A question could arise as to the overall lawfulness of the disputed restriction, given that there was an apparent inconsistency between the provisions of Law no. 273 and the European Convention on Nationality, which   was part of the internal legal order and, as a duly ratified international instrument, took precedence over national legislation. However, it was not for the Court to resolve that perceived conflict of norms. The Court was prepared to accept the Government's submission that the impugned interference had pursued the legitimate aim of ensuring the loyalty of MPs to the State of Moldova. As regards the proportionality of the interference, Moldova was apparently the only European country which allowed individuals to have multiple nationalities but prohibited them from being elected to Parliament. However, in a democracy, loyalty to a State did not necessarily mean loyalty to the actual government of that State or to a particular political party. There were other methods available to the Moldovan Government to ensure loyalty of MPs to the nation, such as requiring them to take an oath. Such measures had been adopted by other European countries. Moreover, ECRI and the Venice Commission had underlined the incompatibility between certain provisions of the new electoral law and the undertakings Moldova had accepted when ratifying the Council of Europe's European Convention on Nationality, which in particular guaranteed to all those holding multiple nationality and residing on the territory of Moldova equal treatment with other Moldovans who hold exclusively Moldovan nationality. The Court was struck by the fact that in 2002 and 2003 the Moldovan Parliament had actually adopted legislation allowing Moldovans to hold dual nationality. At that time the authorities had not apparently had any concerns about the loyalty of those opting for dual nationality. Nor had the Government mentioned that the political rights of those who had decided to acquire another nationality would be impaired. Since 2003, and no doubt encouraged by the new policy, a large section of the Moldovan population had obtained dual or multiple nationality in the legitimate expectation that their existing political rights would not be curtailed. Since 2008 that sizeable proportion of the population of Moldova had not   only found itself banned from actively participating in senior positions in the administration of the State,   failing renunciation of an acquired additional nationality, but would also face limitation on its choice of representatives in the supreme forum of the country. While the Court's case-law had distinguished between the “active” and “passive” rights guaranteed by Article 3 of Protocol No. 1, it could not be overlooked that both of those aspects made up, mutually, the decisive components of the guarantee underlying that Article, namely the free expression of the people in the choice of the legislature. For that reason, it was essential to take a holistic approach to the impact which restrictions on either right might have on the securing of the aforesaid guarantee. In other words, there was an interdependence and the Court had to be vigilant so as to ensure that impediments to the right to be elected to parliament did not rebound negatively on citizens' rights to vote in accordance with their perception of which candidate would best promote their interests in Parliament. The possible negative consequences for the free expression of the will of the people and the value of pluralism could not be discounted. In the specific context of Moldova's political evolution, the Court was not satisfied that Law no. 273 could be justified, particularly in view of the fact that such a far-reaching restriction had been introduced approximately a year or less before the general elections. Such practice was at odds with the recommendations by the Venice Commission concerning the crucial nature of the stability of the law for the credibility of the electoral process. Those in favour of the electoral reform had even categorically rejected the opposition's proposal to have the draft submitted to the Council of Europe for expertise. Nor had the Government reacted in any way to the unequivocal concern expressed by the Council of Europe. Therefore, the means employed by the Moldovan Government had been disproportionate to the aim pursued. Conclusion : violation (unanimously).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. 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