Information Note on the Court’s case-law 235

December 2019

Zevnik and Others v. Slovenia (dec.) - 54893/18

Decision 12.11.2019

Article 3 of Protocol No. 1

Stand for election

Lists of candidates rejected en bloc for failure to comply with the minimum quota for each gender: inadmissible

Electoral coalition deprived of free access to national radio and television for failure to present candidates across the entire country following the rejection of its lists in certain constituencies: inadmissible

Facts – In June 2018 early parliamentary elections were held, based on party lists, with the country being divided up into eight constituencies. The electoral legislation laid down a minimum representation requirement according to which each gender had to have a minimum of 35% of the candidates on each list.

The applicants are two political parties and three of their candidates. The two parties formed a coalition which subm itted a list in each constituency. In two constituencies the local electoral commission rejected the list because it did not contain a sufficient proportion of women. The representatives of the rejected lists appealed to the courts against that decision, w ithout success.

The fact that the coalition was not represented in the two constituencies in question meant that it was denied the free airtime granted by the national broadcaster to political groupings which had lists in all constituencies.

Law – Article 3 of Protocol No. 1

(a) Complaint concerning the rejection of the lists of candidates – The Court found at the outset that the applicant who had been on one of the lists that was accepted could also claim victim status, as the rejection of some lists could have influenced the coalition’s election results at national level.

Foreseeability and legitimacy – The Court rejected the applicants’ argument that the legislation on gender representation was unclear and ambiguous.  The two highest courts in Slovenia, basing their findings on a literal reading of the Election Act and their own case-law, had held tha t the provisions of the law and the sanctions for non-compliance with the rules were clear and foreseeable. In the Court’s view, the applicants had been in a position to foresee that non-compliance with the applicable provisions would result in the rejecti on of their lists of candidates.

The interference in question had pursued the legitimate aim of strengthening democratic legitimacy by ensuring a better balance of women and men in political decision-making; the advancement of equality of the sexes was a m ajor goal among Council of Europe member States.

Proportionality – Noting that the relevant instruments adopted by the Council of Europe not only allowed but also encouraged the adoption of gender quotas in electoral systems coupled with strict sanctions f or non-compliance, the Court attached weight to the Constitutional Court’s view that political parties had a strong incentive to comply with gender representation rules if they knew beforehand that they could be excluded from elections for failure to obser ve them.

In balancing the right to stand for election against the need to ensure observance of the gender quota rules, the domestic courts had taken into account the reasons for non-compliance with the rules. In particular, they had examined whether the li st had been composed diligently (finding this not to be the case) and whether or not the coalition had knowingly breached the gender quota (finding in this case that it had been solely to blame).

The Court was not convinced that less severe sanctions would have been possible. The courts could not arbitrarily eliminate individual male candidates from the lists in question. Nor could they allow the applicants more time to remedy the issue: as the cou rts had observed, this would have meant all the electoral tasks being carried out anew, since the problem with the lists was a substantive one. The original lists had been submitted just one day before expiry of the deadline, making it impossible for the n ecessary changes to be made in time.

The refusal to give the coalition more time to correct its lists had been based on the legislature’s legitimate concern to ensure timely completion of the electoral process and respect for the principle of equal suffrag e.

In the light of these considerations and the wide margin of appreciation left to States in organising and running electoral systems, the rejection of the lists of candidates in question could not be said to be disproportionate.

Conclusion : inadmissible (manifestly ill-founded)

(b) Complaint concerning the impact in terms of free airtime on national radio and television – The national broadcaster’s decision had been based on the applicable rules and legislation, which made no distinction in terms of airti me between different political forces, as long as they presented lists of candidates in all constituencies. The underlying idea was that free airtime was afforded to those parties which addressed the electorate as a whole and not just a subset of specific constituencies.

Furthermore, the applicants did not argue that they could not be afforded paid airtime or that they had been prevented from campaigning in the constituencies in which their lists had been accepted or from using any other available methods o f electioneering. Moreover, the report of the OSCE/ODIHR observer mission had confirmed that all the electoral contestants had been provided with various opportunities to present their views through the public and private media.

The same considerations app lied to the identical complaint lodged under Article 10.

Conclusion : inadmissible (manifestly ill-founded)

The Court also rejected a complaint concerning the lack of a public hearing in the Supreme Court, as electoral disputes did not come within the scope of application of Article 6 of the Convention.

(See also the Guide on Article 3 of Protocol No. 1 )

© Council of Europe/European Court of Human Rights This summary by the Re gistry does not bind the Court.

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