Information Note on the Court’s case-law No. 102

November 2007

Partija "Jaunie Demokrāti" and Partija "Mūsu Zeme" v. Latvia (dec.) - 10547/07 and 34049/07

Decision 29.11.2007 [Section III]

Article 3 of Protocol No. 1

Free expression of opinion of people

Irregularities in an election campaign: inadmissible

The Central Electoral Commission took the decision to announce the final results of the 2006 parliamentary elections, in which seven out of nineteen lists won seats in Parliament. Having failed to reach the threshold of 5% of the votes, the applicants’ lists were not among them. They asked the Cassation Division of the Supreme Court to set the above-mentioned decision aside; the second applicant also asked the court to declare the elections unfair and invalidate them. In a judgment delivered following an adversarial hearing, the Cassation Division of the Supreme Court, ruling at first and last instance, joined the appeals and dismissed them. It confirmed the applicants’ factual allegations and found that some of the advertising of two political parties had been financed by corporations whose managers had direct links with the parties concerned; the cost of the advertising was part of their electoral expenditure; that spending had been well in excess of the legal maximum; this was a clear violation of the law on political party funding. However, it found that the infringement was not serious enough to be able to speak of deformation of the will of the people; the press had discussed the matter in the run-up to the elections, so it had been widely known to the public. That being so, there was no reason to doubt the fairness of the elections in general and to invalidate the results. Concerning the policy of the national broadcasting corporation, it noted that the time-slots for free air time were assigned by drawing lots, and that the second applicant’s allegations – that only parties already represented in Parliament or which had the support of 4% of the electorate according to the opinion polls had been invited to take part in television debates, while the other parties had only been offered free air time in off-peak viewing slots – were unfounded. Lastly, it rejected the complaint concerning the 5% election threshold. The judgment was combined with a decision drawing the attention of the Cabinet of Ministers to the shortcomings it had identified and to the need to introduce effective machinery to ensure the integrity of the electoral process. The court stressed that in a modern democratic State elections should not depend directly on party finances.

Inadmissible : (a) Impact of the irregularities identified on the fairness of the elections – Only two of the nineteen parties in the lists were known to have infringed the law on election funding and their transgressions had been widely publicised. Concerning the nature of the offence, namely bypassing and exceeding the limits fixed by law for election expenses, no matter how much advertising there was in a party’s or a candidate’s election campaign, that was not the only factor that influenced the voters’ choice. There were also political, economic, sociological and psychological factors, for example, which made it difficult, if not impossible, to determine the exact impact of excess advertising on the number of votes obtained by a given party or candidate. The reasoning of the Cassation Division of the Supreme Court was well-balanced and the criterion of seriousness it had introduced was by no means unreasonable. There was therefore no reason to challenge its approach, which consisted in limiting the invalidation of elections to exceptional and particularly serious cases where the will of the people was genuinely flouted by a violation. Furthermore, the applicants had taken part in adversarial proceedings in which they had been able to present all the arguments they deemed necessary to defend their interests. In examining the appeal, therefore, the Cassation Division of the Supreme Court had not overstepped the margin of appreciation open to it, the findings announced in its judgment were neither arbitrary nor unreasonable, and there had accordingly been no appearance of an interference with the free expression of the people in the choice of the legislature: manifestly ill-founded .

(b) The 5% threshold – The Court had no authority to determine the constitutionality of a domestic electoral law. Furthermore, all electoral systems sought to fulfil objectives which were sometimes scarcely compatible: on the one hand, to reflect fairly faithfully the opinions of the people and, on the other, to channel currents of thought so as to promote the emergence of a sufficiently clear and coherent political will. It followed that all votes need not necessarily have equal weight as regards the outcome, nor all candidates have equal chances of winning; no electoral system could eliminate wasted votes.Thresholds for parliamentary representation should be considered in the light of the particularly wide margin of appreciation the Contracting States enjoyed. The threshold of 5% could not be considered contrary to the requirements of Article 3 of Protocol No. 1 in so far as it favoured currents of thought which were sufficiently representative and helped to avoid excessive fragmentation of Parliament: manifestly ill-founded .

c) Conduct of the national broadcasting corporation – Article 3 of Protocol No. 1 did not guarantee the right of a political party to air-time on the radio or television in the run-up to elections. It was true that problems could arise in exceptional circumstances, if in an election period, for example, one political party was refused air-time when other parties were not.  However, the second applicant had not demonstrated the existence of such particular circumstances: manifestly ill-founded.

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

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