CEDH · CASELAW;CLIN;ENG — 10 avril 2008

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Greece - 27863/05 Judgment 10.4.2008 [Section I] Article 3 of Protocol No. 1 Vote Elected parliamentarians deprived of their seats as a result of an unforeseeable departure by the Special Supreme Court from its settled case-law concerning the method for calculating the electoral quotient: violation   Facts : The applicants complained that they had been deprived of their parliamentary seats by a judgment of the Special Supreme Court. They stood for election in the March 2004 general elections and won seats in their respective constituencies. However, a rival candidate of the first applicant lodged an application before the Special Supreme Court, the court responsible for electoral matters, to have the first applicant’s election cancelled. She complained, in particular, that the blank ballot papers cast in the constituency concerned had not been taken into consideration in calculating the electoral quotient and that this had affected the distribution of seats in her local constituency and in the main constituency of Central Macedonia, with the result that the first applicant had been elected in her place. In a final judgment of 9   May 2005, departing from its long-established case-law, the Special Supreme Court held that blank ballot papers should be taken into consideration when calculating the electoral quotient and the distribution of seats. In application of that interpretation of the electoral law, it re-distributed the seats, depriving the three applicants of their seats. In February 2006 the Greek Parliament enacted a new provision (section   1 of Law no.   3434/2006) according to which blank ballot papers were not to be taken into consideration in elections. Law : Article 3 of Protocol No. 1 – The question was whether the manner in which the Special Supreme Court had interpreted, then applied, the electoral law was compatible with the very essence of the applicants’ right to be elected and to hold office. The Court noted first of all that the applicants had stood for election and been elected in compliance with the electoral law in force, as consistently interpreted by the Special Supreme Court and the Council of State, according to which the electoral quotient was calculated without blank ballot papers being taken into account. The applicants had expected that law to apply and the outcome of their election to be based on it, and could not have foreseen that their election would be cancelled following a departure from the case-law. The Court also highlighted the fact that this judgment of the Special Supreme Court was the sole decision in favour of blank ballot papers being included in the total number of valid ballot papers, as the Greek Parliament had subsequently enacted a new provision – to avoid any uncertainty as a result of the judgment – under which blank ballot papers were not to be taken into consideration. Secondly, disregarding various provisions of the electoral law in an election that had already taken place was liable to alter the will of the electorate as expressed in the ballot box. In particular, by opting to cast a blank vote, part of the electorate in the main constituency of Central Macedonia had wished to express their dissatisfaction with all the political parties. However, as a result of the departure from the case-law their blank ballot papers had been interpreted as positive votes in the parties’ favour. Furthermore, in the general elections at issue the main constituency of Central Macedonia was the only one where the electoral quotient had been calculated on the basis of the Supreme Court’s new case-law. In consequence, the court’s judgment had created two categories of members of the Greek Parliament: those who were elected without the inclusion of blank ballot papers, and those who held their seats because such ballot papers had been taken into consideration, to the detriment of the three applicants. The unforeseeable manner in which the Special Supreme Court had interpreted and applied the electoral law had impaired the essence of the rights guaranteed under Article   3 of Protocol No.   1. Conclusion : violation (unanimously). Article 41 – In respect of pecuniary damage, EUR 119,613 to the first applicant, EUR 78,298 to the second and EUR 142,532 to the third. The finding of a violation was sufficient just satisfaction for the non-pecuniary damage sustained.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes