5.  The applicant was born in 1974 and lives in Bucharest. 1.  At the material time the applicant was the Executive Chair of the Partidul Verde ecological party, a political movement affiliated with the European Green Party. 2.  Partidul Verde had put up candidates for the 2008 general elections but failed to win any seats. In 2009 the applicant was the party’s candidate in the presidential elections. He won about 60,000 votes, or some 0.6 % of the total validly cast votes. 3.  The 2008 general elections had been governed by Law no. 35/2008 on elections to the Chamber of Deputies and the Senate, amending Law no. 67/2004 on local authority elections, Law no. 215/2001 on local public authorities and Law no. 393/2004 on the status of local elected representatives (“Law no. 35/2008”; see paragraph 17 below). In 2009 Parliament amended Law no. 35/2008 under Law no. 323/2009 approving Emergency Order no. 97/2008 (“Law no. 323/2009”; see paragraph 18 below). That amendment made it impossible for parties not represented in Parliament, as well as independent candidates, to put up candidates for or stand in parliamentary by-elections. 4.  Parliamentary by-elections were scheduled for 17 January 2010 in order to fill a vacant seat in a Bucharest constituency. According to information available to the Court, that seat had fallen vacant in October 2009. 6.  On 29 December 2009 the Electoral Board rejected the candidacy on the grounds that Partidul Verde was not represented in Parliament. 7.  Partidul Verde, represented by the applicant, challenged that rejection before Bucharest County Court (“the County Court”) and requested the acceptance of the applicant’s candidacy. It entered an objection of unconstitutionality under section 48 (17) of Law no. 35/2008 (see paragraph 18 below). It alleged in particular that the ban on candidates from parties not represented in Parliament and independent candidates infringed the right to free elections and amounted to unjustified discrimination as compared with parties represented in Parliament. The party added that, contrary to the recommendations of the European Commission for Democracy through Law (“the Venice Commission”; see paragraphs 20 and 21 below), Law no. 35/2008 had been amended less than one year before the by-elections. 8.  By interlocutory decision of 30 December 2009 the County Court deferred its ruling so that the Constitutional Court could consider the objection of unconstitutionality. 9.  By Decision no. 61/2010 of 14 January 2010, the Constitutional Court dismissed the objection of unconstitutionality. Having reiterated that Parliament’s political structure was defined by general elections, the Constitutional Court rejected Partidul Verde’s arguments as follows:
“The [Constitutional] Court observes that the reason for the holding of the parliamentary by-elections was the fact that a parliamentary seat had fallen vacant. Such by-elections are held in order to assign seats in Parliament while simultaneously respecting the structure of Parliament as it emerged from the latest general elections. In order to respect the sovereignty and the will of the electorate as expressed in the framework of general elections, it is necessary that the by-election stage, which is subsidiary and complementary to the general elections, should observe the electoral threshold criterion which allows political parties to be represented in Parliament. To allow candidates to stand in by-elections for political parties which are not represented in Parliament would alter the latter’s political structure, [which is] incompatible with the votes cast by the electorate during the general elections which led to the constitution of the Romanian people’s supreme representative body, with a specific political make-up, which can only be modified in the cases and conditions determined by law.
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Moreover, allowing a person who does not belong to a party represented in Parliament to obtain a parliamentary mandate further to by-elections would be tantamount to allowing something which had not been obtained in the framework of general elections to be obtained by the ‘devious means’ of a by-election.” 10.  As regards the plea based on the recommendations of the Venice Commission, the Constitutional Court assessed it “with reservations”. It noted that the said recommendations advised against amending the electoral law less than one year before any elections, but that they also comprised the hypothesis that such amendments “should be adopted at the level of the Constitution or at a level higher than that of ordinary law” (see paragraph 20 below). In the present case the Constitutional Court ruled that the recommendation had been complied with because the amendment to Law no. 35/2008 had been effected under an organic law, which met the criterion of a “level higher than that of ordinary law” (see paragraph 16 below). 11.  By judgment of 30 March 2010 the County Court dismissed the party’s challenge, referring to the reasoning of the Constitutional Court in its aforementioned decision of 14 January 2010, to the effect that since Partidul Verde had failed to pass the electoral threshold in the general elections it could not put up candidates for the by-elections. The County Court further noted that the elections had already been held and that the challenge had therefore become devoid of purpose. 12.  Fresh parliamentary by-elections were scheduled for 25 April 2010 in Bucharest to fill another vacant seat. 13.  The applicant stood as an independent candidate. His candidacy was rejected by the Electoral Board pursuant to section 48 (17) of Law no. 35/2008. The applicant appealed to the County Court against the rejection of his candidacy, and lodged a fresh objection of unconstitutionality. 14.  By Decision no. 503/2010 of 20 April 2010, the Constitutional Court allowed the objection of unconstitutionality lodged by the applicant and declared the part of the impugned section prohibiting independent candidacies unconstitutional on the grounds that it infringed the right to stand for election. The relevant parts of that decision read as follows:
“Although, as regards political parties which are not represented in Parliament, the Constitutional Court’s Decision no. 61 of 14 January 2010 set out the reasons justifying, in the light of constitutional standards, the elimination of such parties from by-elections, as regards independent candidates no reason was given for subjecting them to the same legal treatment. Thus the electoral threshold means that political parties must be representative, to some extent, of the electorate, as required by the sovereignty principle. in the case of independent candidates, however, such a criterion would be absurd; ... they are asked to submit support lists comprising the signatures of a minimum 4% of all the voters registered in the permanent electoral lists of the boards to which they submit their candidacies, [and the total number should not be lower that] 2,000 electors in the case of the Chamber of Deputies and 4,000 electors in the case of the Senate. Consequently, for general elections, the legislature had laid down this precondition, which is necessary in order to stand as an independent candidate, and simultaneously in order to exercise the right to be elected. Nevertheless, in relation to by-elections, the legislature failed to lay down the requisite conditions for this category of persons standing for election, providing that the category of candidates for by-elections comprised only political parties and organisations of citizens belonging to national minorities having passed the legal electoral threshold at the general elections, whether individually or in the framework of a political or electoral alliance. That being the case, it is a case not of setting limits on or circumscribing the manner of exercising the right to be elected, but of annulling that right by failing to recognise it, [by an] unlawful absence of regulation.
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In conclusion, the Electoral Law may specify the conditions in which an individual may stand for election as an independent (financial deposit, a specific number of supporters, etc.), but it can in no way exclude from the electoral process, in the case of by-elections, the candidacy of a person [standing as an] independent candidate without thereby infringing the fundamental right enshrined in Article 37 of the Constitution – the right to be elected.” 15.  The applicant stood in the 2012 general elections and obtained a seat in the Chamber of Deputies for a four-year mandate.