SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 61473/00 by Ancel FARRUGIA MIGNECO against Malta

The European Court of Human Rights (Second Section) , sitting on 12 April 2001 as a Chamber composed of

Mr C.L. Rozakis , President , Mr A.B. Baka , Mr G. Bonello , Mrs V. Strážnická , Mr P. Lorenzen , Mr M. Fischbach , Mr A. Kovler , judges , and Mr E. Fribergh , Section Registrar ,

Having regard to the above application introduced on 8 March 1999 and registered on 4 October 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Maltese national, born in 1973 and living in Marsaxlokk. He is represented before the Court by Mr P. J. Galea and Mr M. Sciriha, two lawyers practising in La Valletta.

The facts of the case, as submitted by the applicant , may be summarised as follows.

1. The General Elections of 5 September 1998

On 5 September 1998, the applicant took part in the General Elections for the House of Representatives of Malta. He was a candidate of the Malta labour party.

In his electoral district, the quota for election was 3,402 votes. The applicant obtained 1,591 first preference votes, and was therefore not elected. After the fifteenth count of votes, the applicant had 2,399 votes. At the sixteenth count of votes, the Electoral Commission declared elected another candidate, Mr V., with a count of 3,110 votes.

On an unspecified date, the applicant instituted proceedings before the First Hall of the Civil Court. He alleged that according to the relevant provisions of the General Election Act of 1991, he should have been declared “eliminated” at the sixteenth count of votes. Under Maltese law, the consequence of the “elimination” of a candidate is that another candidate could benefit from the preferences given to him, and that the votes of that candidate should in a subsequent Causal Election be re-transferred to the first candidate. The applicant observed that had his elimination taken place, he would have benefited from the votes of Mr V. He therefore requested the Civil Court to order the correction of the electoral results with all consequences.

In a decision of 22 September 1998, the Civil Court rejected the applicant’s claim. It held that it had jurisdiction to consider the merits of the case, which concerned a matter of interpretation of the electoral law. However, it observed that according to Article 12 of the General Election Act, when only two candidates remain after the elimination of the others, no transfer of votes should occur and the candidate having more votes is elected, without a quota. As this provision should be applied notwithstanding any other provision of the same Act, the Civil Court concluded that the Electoral Commission had correctly applied the law and given a proper interpretation of the Electoral Regulations.

The applicant lodged an appeal before the Constitutional Court. He alleged, in particular, that Article 12 of the General Election Act was not applicable in his case, which did not concern the election of a candidate, but the procedure before the declaration that a candidate was elected.

The Electoral Commission lodged an incidental appeal, requesting the Constitutional Court to declare that the applicant had failed to comply with the procedure prescribed by law to contest the results of the election.

In a judgment of 22 September 1998, the Constitutional Court accepted the Electoral Commission’s incidental appeal. It observed that according to Article 16 of the General Election Act, “if any question shall arise in relation to any transfer of votes, the decision of the [Electoral] Commission ... shall be final unless an objection is made in writing by any candidate or agent before the declaration of the poll ...”. The Civil Court had held that this provision was not applicable, as it referred to a transfer of votes that had been made, while the applicant was complaining about a transfer which had not been made. However, the Constitutional Court could not subscribe to this opinion, as Article 16 regulated any question about transfer of votes and made no distinction between votes which had already been transferred and votes which had not been transferred. Article 16 was thus applicable to the present case. As it was not disputed that the applicant failed to contest in writing the decision and performance of the Electoral Commission, it was clear that he had side-stepped an essential and statutory-established procedure, with the consequence that the Constitutional Court could not take the matter into consideration.

2. The “Causal Elections” of 23 September 1998

In the meanwhile, the applicant had submitted his candidature to the so-called Causal Elections. This expression indicates the elections to the House of Representatives consequent to the vacancy of electoral seats by candidates which, having been elected in two electoral districts, should retain one seat and vacate the other.

The Causal Elections took place on 23 September 1998. The applicant was not elected.

He subsequently filed an electoral petition before the Constitutional Court, challenging once again the procedure followed by the Electoral Commission. He reiterated the objections concerning the General Elections raised before the Civil Court and alleged that contrary to the relevant internal provisions, the Electoral Commission failed to take into account, at the beginning of the counting, the votes he had obtained during the General Elections of 5 September 1998. The applicant moreover stressed that he had been discriminated vis-à-vis the candidates who, having been eliminated in the General Elections, had re-acquired the first preferences they had passed on to the elected candidate Mr V.

In a judgment of 20 October 1998, the Constitutional Court dismissed the applicant’s plea. Interpreting the relevant national regulations, it concluded that the first count of votes in the Causal Elections was a process completely independent from the General Elections. As concerned the discrimination alleged by the applicant, the Constitutional Court observed that the difference in treatment was justified by the fact that the candidates who were eliminated in the General Elections, and therefore could re-acquire the preferences they had passed over to Mr V., had contributed to the election of the latter, who subsequently vacated his post. As the applicant had not been eliminated in the General Elections, he had not contributed to the election of Mr V.

COMPLAINTS

1. Invoking Articles 3 of Protocol No. 1 and 14 of the Convention, the applicant alleges that the relevant internal rules were interpretated and applied in an erroneous way and that he was given different treatment from that afforded to other candidates.

2. The applicant complains under Articles 9 and 10 of the Convention that he was precluded from receiving the expression of voters.

THE LAW

1. The applicant alleges that the relevant provisions of the General Election Act had been interpretated and applied in an erroneous way . He invokes Articles 3 of Protocol No. 1 and 14 of the Convention. These provisions read as follows:

Article 3 of Protocol No. 1

“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

“The enjoyment of the rights and freedoms set forth in this 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.”

According to the applicant, the interpretation given by the national courts precluded the free expression of the people in their choice of the legislature and gave him different treatment from that afforded to other candidates. He observes, in particular, that as he was not declared eliminated during the counting process, he was discriminated vis-à-vis other candidates who received the benefit of their elimination.

The Court reiterates that Article 3 of Protocol No. 1 implies subjective rights to vote and to stand for election (Gitonas and others v. Greece judgment of 1 July 1997, Reports of judgments and decisions 1997-IV, p. 1233, § 39). However, this provision does not create any obligation to introduce a specific electoral system. In this field, Contracting States enjoy a wide margin of appreciation, provided that they ensure the equality of treatment of all citizens. It does not follow, however, that all votes must necessarily have equal weight as regards the outcome of the election or that all candidates must have equal chances of victory. Thus no electoral system can eliminate “wasted votes” (see the Mathieu-Mohin and Clerfayt v. Belgium judgment of 2 March 1987, Series A no. 113, pp. 23-24, § 54).

In the present case, the applicant does not challenge, as such, the provisions of the General Election Act, but confines himself in contesting the way in which these provisions were interpreted and applied.

The Court points out that it is primarily for the national authorities, and in particular the courts of first instance and of appeal, which are specially qualified for the task, to construe and apply domestic law (see the aforementioned Gitonas and others judgment, pp. 1235-1236, § 44). It notes that the applicant’s electoral petitions were aimed at demonstrating that he should have been declared eliminated in the General Elections and should have benefited, in the subsequent Causal Elections, of the votes obtained on 5 September 1998. However, the Constitutional Court, which in the Maltese system is the body entitled to decide disputes concerning electoral results, after analysing and interpreting the applicable legislation, held that the first petition was inadmissible because the applicant failed to contest in writing the decision and performance of the Electoral Commission; it further found that the second petition could not be accepted by reason that the Causal Elections was a process completely independent from the General Elections.

The Court considers that there is nothing in the judgments of the Constitutional Court to suggest that the rejection of the applicant’s pleas was contrary to Maltese legislation, arbitrary or disproportionate, or of such a nature as to taint the applicant’s right to stand for election or to thwart "the free expression of the opinion of the people in the choice of the legislature" (see, mutatis mutandis , the aforementioned Mathieu-Mohin and Clerfayt judgment, p. 25, § 57).

As concerns the discrimination alleged by the applicant, the Court observes that, as the Constitutional Court rightly pointed out, the difference in counting the votes obtained in the General Elections was justified by the fact that, unlike candidates who were eliminated at an earlier stage, the applicant had not contributed to the election of Mr V.

Having regard to the margin of appreciation enjoyed by the national authorities in interpreting the domestic legislation in this field, the Court considers that no violation of Article 3 of Protocol No. 1, whether taken separately or in conjunction with Article 14 of the Convention, can be discerned in this case.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicant complains that he was precluded from receiving the expression of voters. He invokes Articles 9 and 10 of the Convention, which, in so far as relevant, read as follows:

Article 9 of the Convention

“ Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance ...”

Article 10 of the Convention

“ Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers...”

The Court recalls that these provisions of the Convention do not confer a right to take part in elections or to receive the expression of voters (Luksch v. Italy, application no. 27614/95, Commission decision of 21 May 1997, DR 89-B, pp. 76-77). The Court finds no appearance of a violation of these provisions.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Erik Fribergh Christos Rozakis Registrar President