CEDH · PRESS;GCJUDGMENTS;ENG — 27 avril 2010

.s800EAC49 { font-size:12pt } .sA678F94A { margin-top:0pt; margin-bottom:0pt; text-align:right; font-size:11pt } .s29100277 { font-family:Arial; font-weight:bold } .s33951A44 { margin-top:0pt; margin-left:396pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s7ED160F0 { text-decoration:none } .s8304C6AF { font-family:Arial; font-size:7.33pt; font-weight:bold; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sBB9EE52A { font-family:Arial } .sA36B60A1 { font-family:Arial; font-style:italic } .sE32676A1 { margin-top:0pt; margin-bottom:0pt; text-align:center; page-break-after:avoid; font-size:11pt } .sEE1EDB13 { font-family:Arial; font-weight:normal; font-style:italic } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4BAE41EE { font-family:Arial; font-size:11pt } .sE208486F { font-family:Arial; color:#ff0000 } .s99A63BFE { margin-top:0pt; margin-bottom:0pt; text-align:left; font-size:11pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBACB3E60 { font-family:Arial; font-size:11pt; text-decoration:underline; color:#800080 } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sF6A12959 { width:33%; height:1px; text-align:left } .s5FFF0A7F { margin-top:0pt; margin-bottom:0pt; font-size:9pt } .sBACB86A2 { font-family:Arial; font-size:6pt; vertical-align:super; color:#0069d6 } 343 27.04.2010   Press release issued by the Registrar   Grand Chamber judgment [1]   Tănase v. Moldova ( application no. 7/08)   BAN ON MPs HOLDING TWO OR MORE NATIONALITIES UNJUSTIFIED   Unanimously   Violation of Article 3 of Protocol No. 1 (right to free elections) to the European Convention on Human Rights     Principal facts   The applicant, Alexandru Tănase, is a Moldovan and Romanian national, born in 1971, and lives in Chişinău. He is a member of the Moldovan Liberal Democratic Party and currently holds the office of Minister of Justice in the coalition government. In the legislative elections in April 2009 and July 2009 he was elected as a member of Parliament (MP).   The case concerned the introduction in 2008 (law No. 273) of a prohibition on Moldovan nationals holding other nationalities who had not started a procedure to renounce those nationalities taking their seats as members of Parliament following their election. The application was originally lodged by Mr Tănase and another politician.   The Republic of Moldova is situated on territory which was part of Romania between 1918 and 1940, when it was annexed by the Soviet Union. That territory’s population lost its Romanian citizenship after the annexation. 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 a descendant of those persons, the applicant 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. The applicant requested and obtained Romanian nationality, the restriction on Moldovan nationals holding other nationalities having been repealed in June 2003.   In April 2008, the Moldovan Parliament reformed the electoral legislation, notably by introducing Law no. 273. Other important amendments included the raising of the electoral threshold and a ban on all forms of electoral blocks. The reform was enacted and entered into force in May 2008.   Both the Council of Europe’s Commission against Racism and Intolerance (“ECRI”) and the Venice Commission expressed concern about the amendments to the Moldovan electoral code. In particular, both bodies pointed out that the provisions of the new law were incompatible with the European Convention on Nationality (ECN), which required equal treatment of multiple and single nationals and was ratified by Moldova in November 1999.   The president of the Liberal Democratic Party brought a constitutional complaint against Law no. 273. In May 2009, the Constitutional Court delivered a judgment finding the law to be constitutional, holding in particular that that it did not prevent dual nationals from becoming MPs, as it offered them the possibility of complying with it by renouncing their other nationalities.   Following his election to Parliament in April 2009, the applicant initiated a procedure to renounce his Romanian nationality in order to be able to take his seat. In his letter to the Romanian Embassy, he announced that he was forced to initiate the renunciation of his Romanian nationality, but indicated that he reserved his right to withdraw the letter after the judgment of the Grand Chamber in the present case. Having regard to his letter, the Constitutional Court validated his mandate. In the new elections in July 2009, held after Parliament had failed to elect a President of the Republic, the applicant was re-elected as an MP and his mandate was again confirmed after he had shown that a procedure to renounce his second nationality was pending.   It is estimated that between 95,000 and 300,000 Moldovans obtained Romanian nationality between 1991 and 2001; in February 2007 some 800,000 Moldovans had applications pending for Romanian nationality.     Complaints, procedure and composition of the Court   The applicant complained that Law no. 273 interfered with his right to stand as a candidate in free elections and to take his seat in Parliament if elected, thus ensuring the free expression of the opinion of the people in the choice of legislature. He relied on Article 3 of Protocol No. 1. He also complained under Article 14 (prohibition of discrimination) taken together with Article 3 of Protocol No. 1 that he had been subjected to discrimination.   The application was lodged with the European Court of Human Rights on 27   December 2007. The Romanian Government was granted leave to intervene in the proceedings as a third party.   In a judgment of 18   November 2008, the Court unanimously held that there had been a violation of Article   3 of Protocol No.   1 in respect of Mr   Tănase. At the same time, by a majority, it declared the application in respect of the other applicant in the case, the politician Dorin Chirtoacă, inadmissible.   On 6   April 2009 the case was referred to the Grand Chamber under Article 43 of the Convention at the Government’s request. On 16 September 2009 a hearing was held in public in the Human Rights Building in Strasbourg.   Judgment was given by the Grand Chamber of 17 judges, composed as follows: Peer Lorenzen (Denmark), President , Françoise Tulkens (Belgium), Josep Casadevall (Andorra), Ireneu Cabral Barreto (Portugal), Corneliu Bîrsan (Romania), Rait Maruste (Estonia), Vladimiro Zagrebelsky (Italy), Elisabeth Steiner (Austria), Dean Spielmann (Luxembourg), Sverre Erik Jebens (Norway), Ján Šikuta (Slovakia), Dragoljub Popović (Serbia), Isabelle Berro-Lefèvre (Monaco), Päivi Hirvelä (Finland), George Nicolaou (Cyprus), Zdravka Kalaydjieva (Bulgaria), Mihai Poalelungi (Moldova), judges , and also Michael O’Boyle , Deputy Registrar .     Decision of the Court   Noting that all parties had invoked the concept of ensuring loyalty as the aim pursued by Law no. 273, the Court reiterated that in a democracy only loyalty to the State, not to the Government, could constitute a legitimate aim justifying restrictions on electoral rights. It was clear that members of Parliament, in particular those from opposition parties, had the role of ensuring the accountability of the government in power and that the pursuit of different, sometimes opposite, goals was necessary to promote pluralism.   While members of Parliament in principle were required to respect the country’s Constitution, laws, institutions, independence and territorial integrity, this respect had to be limited to requiring that any wish to bring about changes to any of these aspects had to be pursued in accordance with the laws of the State. Any other view would undermine the ability of MPs to represent the views of their constituents, in particular minority groups. The fact that Moldovan MPs with dual nationality might wish to pursue a political programme considered by some to be incompatible with the current principles of the Moldovan State did not make it incompatible with the rules of democracy.   The Court observed that Law no. 273 and the other measures of the electoral reform had had a harmful effect on opposition parties and that all MPs who were negatively affected by Law no. 273, because they held more than one nationality or had pending applications for a second nationality, were from opposition parties. Therefore the obligation on the Government to demonstrate that the amendments were introduced for legitimate reasons was all the more pressing. However, the Government had been unable to provide any example of an MP with dual nationality showing disloyalty to the State of Moldova. The Court was therefore not fully satisfied that the aim of the measure was to secure the loyalty of MPs to the State.   As regards the proportionality of the measure, a review of practice across Council of Europe member States revealed a consensus that where multiple nationalities were permitted, the holding of more than one nationality should not be a ground for ineligibility to sit as an MP. Nonetheless the Court considered that a more restrictive practice might be justified, in particular by special historical or political considerations. Moldova’s history made it likely that there was a special interest, at the time when it declared its independence, in taking measures to limit any threats to the independence and security of the State.   However, the ban on MPs with multiple nationalities had been put in place some 17 years after Moldova had gained independence and some five years after it had relaxed its laws to allow dual citizenship. In this light, the Court found the argument that the measure was necessary to protect Moldova’s laws, institutions and national security to be far less persuasive. The Government had not provided an explanation of why concerns had recently emerged regarding the loyalty of dual citizens and why such concerns were not present when the law was first changed to allow dual citizenship.   The Court acknowledged that a significant number of MPs held or were in the process of applying for a second citizenship. It was not convinced, however, that these numbers justified the approach taken, as the Government submitted, since a large proportion of citizens also held dual nationality and these citizens had the right to be represented by MPs who reflected their concerns. The Court moreover considered that there were other, more specific measures to protect Moldova’s laws, institutions and national security, in particular sanctions for conduct that threatened national interests and security clearance for access to confidential documents.   The Court further dismissed the Government’s objection that the right to multiple nationalities and the right to acquire a nationality were not rights guaranteed by the Convention, and that the Court in its Chamber judgment had attached too much significance to Moldova’s obligation under the ECN. The Court emphasised that it did not seek to examine the applicant’s right to hold dual nationality but rather the right of Moldova to introduce restrictions on his right to take his seat following his election as a result of his dual nationality and the compatibility of any such restriction with the Convention. As regards the references to the ECN and the activities of other Council of Europe bodies, the Court underlined that it had consistently held that it must take into account relevant international instruments and reports, and in particular those of other Council of Europe organs, in order to interpret the guarantees of the Convention and to establish whether there is a common European standard in the field.   It attached importance to the fact that international reports, in particular by ECRI and the Venice Commission, had been unanimous in their criticism, expressing concerns as to the law’s discriminatory impact. The Court finally recalled that according to its case-law, no restriction on electoral rights should have the effect of excluding groups of persons from participating in the political life of the country.   In the light of these considerations, the Court found the provisions preventing elected MPs with multiple nationalities from taking seats in Parliament to be disproportionate and unanimously held that there had been a violation of Article 3 of Protocol No. 1.   Given this finding, the Court unanimously held that there was no need to examine separately the applicant’s complaint under Article 14.   ***   The judgment is available in English and French. This press release is a document produced by the Registry. It does not bind the Court. Further information about the Court is available on its   website ( http://www.echr.coe.int ).   Press contacts Nina Salomon (tel: + 33 (0)3 90 21 49 79) or Stefano Piedimonte (tel: + 33 (0)3 90 21 42 04) Tracey Turner-Tretz (tel: + 33 (0)3 88 41 35 30) Kristina Pencheva-Malinowski (tel: + 33 (0)3 88 41 35 70) Céline Menu-Lange (tel: + 33 (0)3 90 21 58 77) Frédéric Dolt (tel: + 33 (0)3 90 21 53 39)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Grand Chamber judgments are final (Article 44 of the Convention).