FIRST SECTION
CASE OF BAKIRDZI AND E.C. v. HUNGARY
(Applications nos. 49636/14 and 65678/14)
 
JUDGMENT
 
Art 3 P1 (+ Art 14) • Free expression of opinion of people • Discrimination • Shortcomings of the national minority voting system affecting secrecy of vote, voters’ free political choice and making it impossible for a national minority candidate to win a seat in Parliament • Rule requiring a national minority candidate to be endorsed by voters of the same minority • National minority candidate unable to win a seat where the total number of voters of the same minority is below the preferential electoral threshold • National minority voters allowed to vote only for their respective national minority lists and not for political party lists • Electoral choice of a national minority voter likely to be indirectly revealed to everybody, especially at polling stations where the number of registered national minority voters is limited • System limiting the opportunity of national minority voters to enhance their political effectiveness as a group and threatening to reduce diversity and participation of minorities in political decision-making
 
STRASBOURG
10 November 2022
FINAL
 
03/04/2023
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Bakirdzi and E.C. v. Hungary,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Marko Bošnjak, President,
Péter Paczolay,
Krzysztof Wojtyczek,
Alena Poláčková,
Erik Wennerström,
Ioannis Ktistakis,
Davor Derenčinović, judges,
and Liv Tigerstedt Deputy Section Registrar,
Having regard to:
the applications (nos. 49636/14 and 65678/14) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Hungarian nationals, Ms Kalliopé Bakirdzi and E.C. (“the applicants”), on the various dates indicated in the appended table;
the decision to give notice to the Hungarian Government (“the Government”) of the applications;
the decision not to have the second applicant’s name disclosed;
the parties’ observations;
Having deliberated in private on 4 October 2022,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the voting rights of the applicants, registered as national minority voters for the 2014 parliamentary elections. It raises issues under Article 3 of Protocol No. 1 to the Convention. THE FACTS
2. The first applicant, Ms K. Bakirdzi, was born in 1959 and lives in Budapest. The second applicant, E.C., was born in 1990 and lives in Budapest. The first applicant was represented by Mr D.A. Karsai, and the second applicant by Mr A. Czech, both lawyers practising in Budapest. 3. The Government were represented by their Agent, Mr Z. Tallódi, of the Ministry of Justice. 4. The first applicant belongs to the Greek national minority and the second applicant to the Armenian national minority. 5. The facts of the case may be summarised as follows. GENERAL BACKGROUND OF THE CASE
6. There are thirteen national minorities in Hungary recognised under Act no. CLXXIX on the Rights of Nationalities (the Rights of Nationalities Act). Under the Fundamental Law of Hungary, national minorities living in Hungary are to participate in the work of Parliament (see paragraph 13 below). On the basis of this provision, Act no. CCIII of 2011 on the Election of Members of Parliament (the Election Act) introduced a system of minority representation in 2014 (see paragraph 14 below). Members of national minorities may register as national minority voters on the basis of self‑identification. The request to be registered as national minority voter must contain the indication of the national minority, the voter’s declaration that he or she belongs to the national minority and an indication that the voter intends to vote as a national minority voter at the national elections (see paragraph 15 below). National minority voters can only vote for the minority list of the national minority they belong to and for single-member district candidates, whereas other voters vote for a candidate in a single-member district and for a party list. 7. For the national minority voting, each national minority has a separate closed candidate list, submitted by the national minority self-governments, that appear on a separate ballot. National minority lists must contain at least three candidates. The names of the candidates and their order are decided by the assembly of national minority self-governments. The list needs to receive supporting signatures from at least one per cent of the voters included in that minority’s register, but not more than 1,500 signatures. 8. The minority voter’s only possibility is to vote or not to vote for the single closed list (without influence on the candidate order) presented in respect of his or her national minority. 9. Under section 16(d) of the Election Act, the national minority lists enjoy a preferential threshold. The threshold is reached at one-quarter of the votes needed for ordinary mandates from the electoral list (standard electoral quota). The preferential quota only applies to the first seat of the national minority in Parliament. The number of seats that can be gained from the national list (országos lista) must be reduced by the number of seats allocated to national minorities. Should the national minority fail to win a seat, the first candidate on the national minority list is appointed as a non-voting parliamentary spokesperson. THE 2014 PARLIAMENTARY ELECTIONS
10. As members of recognised national minorities, both applicants requested registration as national minority voters on the electoral roll before the 4 April 2014 parliamentary elections, by virtue of section 85(1) of Act no. XXXVI of 2013 on Election Procedure (the Election Procedure Act). 11. All thirteen recognised national minorities registered lists for the elections. There were a total of ninety-nine candidates, and a total of 35,289 voters registered as national minority voters, as follows:
 
National minority

Number of registered voters

Number of candidates

Bulgarian

104

5

Greek

140

3

Croatian

1623

9

Polish

133

7

German

15,209

27

Armenian

184

3

Roma

14,271

6

Romanian

647

3

Rusyn

611

11

Serbian

349

7

Slovak

1317

5

Slovenian

199

3

Ukrainian

502

10

 
12. The threshold to gain a seat in Parliament for national minority candidates could be reached in the 2014 elections by obtaining 22,022 votes (dividing the total number of national votes cast by ninety-three – the number of seats that could be acquired from the national list – then dividing by four). None of the national minority lists obtained enough votes to win a national minority seat. RELEVANT LEGAL FRAMEWORK AND PRACTICE
RELEVANT DOMESTIC LAW
13. The Fundamental Law provides:
Article XXIX
“... (2) National minorities living in Hungary shall have the right to establish their self‑government at both local and national level.
...”
Section 26
“(1) Under Article 24 § 2(c) of the Fundamental Law, persons or organisations affected by a particular case may submit a constitutional complaint to the Constitutional Court if, as a result of the application of a law contrary to the Fundamental Law in the court proceedings conducted in their case,
(a) their rights secured under the Fundamental Law were violated; and
(b) the possible remedies have already been exhausted or no possible remedies exist. (2) By way of derogation from subsection (1), Constitutional Court proceedings may, exceptionally, also be initiated where:
(a) as a result of the application of, or the coming into effect of, a legal provision contrary to the Fundamental Law, a violation of the rights [of persons referred to in subsection (1)] has occurred directly, without a court decision; and
(b) no possible remedy to redress the violation exists, or the petitioner has already exhausted the possible remedies.”
14. The Election Act provides as follows:
Drawing up national lists
Section 9
“(1) National self-governments of national minorities may draw up national minority lists. (2) Drawing up any national minority list shall be subject to recommendations by at least one per cent of voters on the electoral register as national minority voters but to not more than one thousand five hundred recommendations. (3) A national minority list may include candidates who are on the electoral register as voters of the particular national minority. (4) A national minority list shall include at least three candidates. (5) Joint national minority lists may not be drawn up by two or more national self‑governments of national minorities.
...”
Voting
Section 12
“(1) Voters with residence in Hungary may vote for
(a) one candidate in any single-member constituency and
(b) one party list. (2) Voters with residence in Hungary who are enrolled on the electoral register as national minority voters may vote for
(a) one candidate in any single-member constituency and
(b) the list of their national minority or, in the absence thereof, one party list. (3) Voters without residence in Hungary may vote for one party list.
...”
Determination of election results
Section 14
“... (3) No mandate may be won from a national minority list which failed to reach the number of votes required for winning a preferential national minority mandate (hereinafter “preferential quota”) determined by section 16(d).
...”
Section 16
“Mandates which may be won from a national list shall be distributed using the following procedure:
(a) Pursuant to section 15, the surplus votes for any political party entitled to win a mandate under section 14(1) and (2) shall be added to the number of party-list votes for the particular political party (hereinafter “number of votes for party lists”);
(b) The number of votes for party lists shall be aggregated (hereinafter “total number of party-list votes”);
(c) The total number of party-list votes and the votes for national minority lists shall be aggregated (hereinafter “total number of national-list votes”);
(d) The total number of national-list votes shall be divided by ninety-three, and the result shall be divided by four; the preferential quota shall be the integer of the resulting quotient;
(e) If the number of votes for a particular national minority list exceeds or is identical to the preferential quota, the particular national minority list shall win one preferential mandate; one national minority list may win one preferential mandate; the number of allocated preferential mandates shall be deducted from the number of mandates which may be won from the national list;
(f) Mandates remaining after the procedure described in subsection (e) shall be distributed among
(fa) party lists entitled to win mandates under section 14(1) and (2), and
(fb) national minority lists which won preferential mandates, where the number of votes reaches the number of votes corresponding to the percentage defined by section 14(1);
...”
National minority spokespersons
Section 18
“(1) Any national minority which drew up a national minority list but failed to win a mandate from that list shall be represented by its national minority spokesperson in Parliament. (2) The national minority spokesperson shall be the candidate who ranked first on the national minority list.”
15. The Election Procedure Act provides as follows:
Section 85
“(1) Voters with a Hungarian address may – with the exception of subsection (2) – request that
a) their belonging to a national minority;
b) their request for assistance in voting; or
c) a prohibition of releasing their personal data
be listed or deleted in the central electoral register.”
41 Request for registration as a national minority voter
Section 86
“A request for registration as a national minority voter shall contain:
a) an indication of the national minority;
b) a declaration by the voter, in which the voter professes to belong to the indicated national minority;
c) an indication of whether the voter also requests to be registered as a national minority voter with effect extending to elections of members of parliament.”
Section 87
“A request for registration as a national minority voter shall be rejected if the voter is already enrolled in the central electoral register as a national minority voter.”
... Chapter XII
Legal remedies
94 Submitting objections
Section 208
“Objections may be submitted by voters listed in the central electoral register, candidates, nominating organisations and natural and legal persons and associations without a legal personality affected by the case, referencing a breach of a legal regulation pertaining to the election or the fundamental principles of election and election procedure (hereinafter: legal violation).”
... Section 218
“(1) The election commission shall decide on the objections based on the available information. (2) If the election commission sustains the objection, it shall
a) establish the fact of the legal violation;
b) order the violator to cease the violation;
c) repeal the election procedure or the part thereof affected by the legal violation and order it to be repeated;
d) have the power to issue a fine in case of violations of the rules of election campaigns and violations of the obligations described in Sections 124 (2) and 155.
...”
Section 220
“If the election commission does not sustain an objection, it shall dismiss it.”
97 Appeals
Section 221
“(1) Affected natural and legal persons and associations not having legal personality may file an appeal against the election commission’s first instance decision. (2) No appeal shall lie against a ruling recorded in minutes, a decision passed by the election commission having proceeded at second instance, and against the decision of the National Election Commission.”
98 Judicial reviews
Section 222
“(1) Affected natural and legal persons and associations not having legal personality may seek the judicial review of the second instance decision of the election commission and the decision of the National Election Commission. (2) Judicial review shall only be conducted if the right of appeal has been exhausted in the election proceedings, or appeal is excluded under this law.”
Adjudication of appeals, requests for judicial review and constitutional complaints related to elections
Section 233
“(1) Constitutional complaints challenging court rulings issued on the basis of this Act in proceedings for legal remedy regarding the resolution of an election body can be submitted to the Constitutional Court within three days from the publishing of the contested resolution.”
RELEVANT COUNCIL OF EUROPE DOCUMENTS
16. The Code of Good Practice in Electoral Matters (Guidelines and Explanatory Report) was adopted by the European Commission for Democracy through Law (the Venice Commission) at its 51st and 52nd Plenary Sessions (5-6 July 2002 and 18‑19 October 2002). The relevant provisions provide as follows:
2.4. Equality and national minorities
“aa. Parties representing national minorities must be permitted.
bb. Special rules guaranteeing national minorities reserved seats or providing for exceptions to the normal seat allocation criteria for parties representing national minorities (for instance, exemption from a quorum requirement) do not in principle run counter to equal suffrage.
cc. Neither candidates nor voters must find themselves obliged to reveal their membership of a national minority.”
4. Secret suffrage
“a. For the voter, secrecy of voting is not only a right but also a duty, non-compliance with which must be punishable by disqualification of any ballot paper whose content is disclosed.
b. Voting must be individual. Family voting and any other form of control by one voter over the vote of another must be prohibited.
c. The list of persons actually voting should not be published.
d. The violation of secret suffrage should be sanctioned.”
Explanatory report
2.4. Equality and national minorities
“22. In accordance with the principles of international law, the electoral law must guarantee equality for persons belonging to national minorities, which includes prohibiting any discrimination against them. In particular, the national minorities must be allowed to set up political parties. Constituency delimitations and quorum regulations must not be such as to form an obstacle to the presence of persons belonging to minorities in the elected body. 23. Certain measures taken to ensure minimum representation for minorities either by reserving seats for them or by providing for exceptions to the normal rules on seat distribution, e.g. by waiving the quorum for the national minorities’ parties do not infringe the principle of equality. It may also be foreseen that people belonging to national minorities have the right to vote for both general and national minority lists. However, neither candidates nor electors must be required to indicate their affiliation with any national minority.”
4. Secret suffrage
“52. Secrecy of the ballot is one aspect of voter freedom, its purpose being to shield voters from pressures they might face if others learned how they had voted. Secrecy must apply to the entire procedure – and particularly the casting and counting of votes. Voters are entitled to it, but must also respect it themselves, and non-compliance must be punished by disqualifying any ballot paper whose content has been disclosed [footnote omitted]. 53. Voting must be individual. Family voting, whereby one member of a given family can supervise the votes cast by the other members, infringes the secrecy of the ballot; it is a common violation of the electoral law. All other forms of control by one voter over the vote of another must also be prohibited. Proxy voting, which is subject to strict conditions, is a separate issue. 54. Moreover, since abstention may indicate a political choice, lists of persons voting should not be published. 55. Violation of the secrecy of the ballot must be punished, just like violations of other aspects of voter freedom.
...”
17. Article 15 of the Council of Europe’s Framework Convention (ETS No. 157), which entered into force on 1 February 1998, reads as follows:
“The Parties shall create the conditions necessary for the effective participation of persons belonging to national minorities in cultural, social and economic life and in public affairs, in particular those affecting them.”
18. The relevant excerpt from the commentary adopted by the Advisory Committee on the Framework Convention on 27 February 2008 reads as follows:
“ ii. Design of electoral systems at national, regional and local levels
80. The participation of persons belonging to national minorities in electoral processes is crucial to enable minorities to express their views when legislative measures and public policies of relevance to them are designed. 81. Bearing in mind that State Parties are sovereign to decide on their electoral systems, the Advisory Committee has highlighted that it is important to provide opportunities for minority concerns to be included on the public agenda. This may be achieved either through the presence of minority representatives in elected bodies and/or through the inclusion of their concerns in the agenda of elected bodies. 82. The Advisory Committee has noted that when electoral laws provide for a threshold requirement, its potentially negative impact on the participation of national minorities in the electoral process needs to be duly taken into account. Exemptions from threshold requirements have proved useful to enhance national minority participation in elected bodies.”
19. In a Report of 15 March 2005 on electoral rules and affirmative action for national minorities’ participation in the decision-making process in European countries, the Venice Commission, having analysed the practices of certain member States, recommended five specific measures to promote the representation of minorities. Two of the measures concerned have a bearing on the question of electoral thresholds:
“68.
...
d. Electoral thresholds should not affect the chances of national minorities to be represented.
e. Electoral districts (their number, the size and form, the magnitude) may be designed with the purpose to enhance the minorities’ participation in the decision‑making processes.”
20. The Joint Opinion of the Venice Commission and the Organization for Security and Co-operation in Europe (OSCE) Office for Democratic Institutions and Human Rights (ODIHR) on the Act on the Elections of Members of Parliament of Hungary was adopted by the Council for Democratic Elections at its 41st meeting (Venice, 14 June 2012) and the Venice Commission at its 91st Plenary Session (Venice, 15-16 June 2012). The relevant parts read as follows:
“... Article 12(2) of the new Election Act stipulates that voters registered in the electoral roll as minority voters may vote for a candidate in a single-mandate constituency and the list of their nationality or, in the absence thereof, for a party list. This provision limits the choice of minority voters in the proportional race on election day, especially when there is only one list competing for the vote of the respective minority. The choice of ballot is done when registering in the nationality register ...”
OTHER RELEVANT INTERNATIONAL MATERIAL
21. General Comment No. 25 of the Human Rights Committee on The right to participate in public affairs, voting rights and the right of equal access to public service (Art.25) (16 June 1996, CCPR/C/21/Rev.1/Add.7) contains the following remarks:
“20. ... States should take measures to guarantee the requirement of the secrecy of the vote during elections, including absentee voting, where such a system exists. This implies that voters should be protected from any form of coercion or compulsion to disclose how they intend to vote or how they voted, and from any unlawful or arbitrary interference with the voting process. Waiver of these rights is incompatible with article 25 of the Covenant ...”
22. The 1999 Lund Recommendations on the Effective Participation of National Minorities and Explanatory Note of the OSCE High Commissioner for National Minorities provides as follows:
B. Elections
“... 9. The electoral system should facilitate minority representation and influence.
 • Where minorities are concentrated territorially, single-member districts may provide sufficient minority representation.
 • Proportional representation systems, where a political party’s share in the national vote is reflected in its share of the legislative seats, may assist in the representation of minorities.
 • Some forms of preference voting, where voters rank candidates in order of choice, may facilitate minority representation and promote inter-communal cooperation.
• Lower numerical thresholds for representation in the legislature may enhance the inclusion of national minorities in governance.”
... Explanatory note
“... 9. The electoral system may provide for the selection of both the legislature and other bodies and institutions, including individual officials. While single member constituencies may provide sufficient representation for minorities, depending upon how the constituencies are drawn and the concentration of minority communities, proportional representation might help guarantee such minority representation. Various forms of proportional representation are practised in OSCE participating States, including the following: “preference voting”, whereby voters rank candidates in order of choice; “open list systems”, whereby electors can express a preference for a candidate within a party list, as well as voting for the party; “panachage”, whereby electors can vote for more than one candidate across different party lines; and “cumulation”, whereby voters can cast more than one vote for a preferred candidate. Thresholds should not be so high as to hamper minority representation.
...”
23. The relevant excerpts from the OSCE/ODIHR Election Observation Mission Report on the Parliamentary Elections of 6 April 2014 (Warsaw, 11 July 2014) read as follows:
“... There are 13 recognized national minorities in Hungary. According to the 2011 census data, the largest minority groups are Roma and Germans. Certain sources suggest that the numerical size of the Roma population is underestimated. Other groups make up less than one per cent of the population. Measures to ensure national minority representation in parliament have long been debated in Hungary. The Elections Act provides for national minorities to vote for a national minority list. In order to take part, citizens had to register as a national minority voter and thus choose between voting on the national minority list proposed by the national minority self-government or the national list. The vast majority of national minority groups the OSCE/ODIHR LEOM [Limited Election Observation Mission] met with expressed dissatisfaction at having to choose between these two lists. Some Roma leaders campaigned against minority registration and created the Hungarian Roma Party to compete in the national list elections. Furthermore, the election of the minority self-governments predates the new Elections Act, thus voters were not aware that these bodies would be given the sole competence to form national minority lists. Given that only one option was available on these ballots, voters’ choice was limited and their secrecy of the vote was undermined [footnote omitted]. While all 13 national minorities registered lists, none obtained enough votes to win a minority seat. As a result, they will each be represented by a spokesperson in parliament with no right to vote and their competence will be limited to discussing minority issues. Authorities should ensure that special measures for national minority representation allow for competition between national minority candidates and meaningful participation of national minorities in parliamentary decision-making, while ensuring the secrecy of the vote. Genuine consultation with national minorities should be sought in this process ...”
24. The relevant part of the OSCE /ODIHR Election Observation Mission Report on the Parliamentary Elections of 8 April 2018 (Warsaw, 27 June 2018) reads as follows:
“...The NEC [National Election Commission] registered 13 national minority lists with a total of 89 candidates, including 48 women. The nomination of candidates for national minority lists lacks transparency, in particular because there are no established and public procedures regarding the manner by which the self-government selects the candidates. Moreover, an individual choosing to participate in the election as a minority voter has no opportunity to choose among alternative national minority candidates or lists. These measures do not guarantee genuine participation of national minorities in political life, contrary to OSCE High Commissioner on National Minorities (HCNM) recommendations [footnote omitted]. Consideration could be given to reviewing legislative and practical measures aimed at achieving genuine participation of national minorities in elected politics...”
25. The relevant part of the OSCE /ODIHR Election Observation Mission Report on the Parliamentary Elections of 3 April 2022 (Warsaw, 29 July 2022) reads as follows:
“...Notably, an individual choosing to participate in the election as a minority voter has no opportunity to choose among alternative national minority candidates or lists. The measures currently in place do not guarantee genuine participation of national minorities in political life, contrary to recommendations made by the OSCE High Commissioner on National Minorities (HCNM) [footnote omitted]. Further efforts should be undertaken by the authorities to ensure that measures for national minority representation promote meaningful participation of national minority representatives. Genuine consultation with national minorities should be sought in identifying effective measures.
...”
THE LAW
JOINDER OF THE APPLICATIONS
26. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. ALLEGED VIOLATIONs OF ARTICLE 3 of protocol no. 1 taken alone and in conjunction with Article 14 of the convention
27. The applicants complained that the system of national minority voting constituted a discriminatory interference with their voting rights. They relied on Article 3 of Protocol No. 1 to the Convention taken alone and in conjunction with Article 14 of the Convention. Article 3 of Protocol No. 1 provides:
“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”
Article 14 of the Convention provides:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
AdmissibilityThe parties’ submissions

28. The Government argued that the applicants should have appealed before the regional election commissions against the decisions of the local election commissions to register them as minority voters. Should the regional election commissions have dismissed their appeals, they could have challenged those decisions before the courts. Under section 26 of the Constitutional Court Act, the applicants could have lodged a constitutional complaint against the decisions of the courts if they had applied an unconstitutional legal provision. 29. The Government also put forward an argument that the applicants could have lodged an objection to the decision of the polling station commission to the relevant election commission, and subsequently to the National Election Commission, concerning alleged election irregularities. The decision of the National Election Commission could have been challenged before the Kúria, whose decision in turn could have been the subject of a constitutional complaint. 30. The applicants disagreed. They contested the argument that their deregistration from the minority voting list could have remedied their grievances. As regards a constitutional complaint under section 26 of the Constitutional Court Act, the applicants submitted that the Government had failed to clarify which legal provision should have been challenged under that procedure. In any event, since an objection to the decision of the polling station commission necessarily concerned the counting of ballots and not the application of an allegedly unconstitutional legal provision, the latter issue could not be challenged before the Constitutional Court under the procedure referred to by the Government.

Outcome for Article 14: violation