FIFTH SECTION

Application no. 65480/10 PARTEI DIE FRIESEN against Germany lodged on 1 November 2010

STATEMENT OF FACTS

The applicant, Partei Die Friesen , is a political party founded in 2007 and registered in Germany. The applicant party is represented before the Court by Mr W. Bosse, a lawyer practising in Osnabrück.

A. The circumstances of the case

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

The applicant is a political party claiming to represent the interests of the ethnic group of Frisians in the Land of Lower Saxony. The applicants estimate the number of people of Frisian origin within the territory of Lower Saxony at about 100,000 out of the total population of approximately 7,900,000. They share their own language and cultural identity.

Under the Electoral Law of Lower Saxony (see relevant domestic law, below), parliamentary seats – apart from those seats attributed to the candidates obtaining the majority of the votes in their constituency – are allocated under the D ’ Hondt system of proportional representation. Under section 33 § 3 of the Electoral Law, seats are attributed only to parties which obtained a minimum threshold of 5 % of the total of votes validly cast.

By letter of 27 September 2007 to the P rime M inister of Lower Saxony and by letter of 17 December 2007 to the President of the Lower Saxony Parliament, the applicant party unsuccessfully requested to be granted an exemption from the minimum threshold for the upcoming elections.

In the elections of 27 January 2008, the applicant party attained an overall number of 10,069 votes, amounting to approximately 0,3 % of the overall votes validly cast.

On 6 March 2008 the applicant party lodged an objection against the validity of the election result. The applicant party submitted, in particular, that it represented the interests of the Frisian people residing in Lower Saxony. The Frisian people formed a national minority within the meaning of the Framework Convention for the Protection of National Minorities (“the Framework Convention”, ETS No. 157, see Council of Europe d ocuments, below). The applicant party complained, in particular, that the minimum threshold amounted to their factual exclusion from participation in the parliamentary elections and to discriminatory treatment vis-à-vis other small political parties who were , at least theoretically, capable of reaching that threshold. The applicant party further relied on Article 14 in conjunction with Article 3 of Protocol No. 1 to the European Convention on Human Rights.

On 9 May 2008, the Election Supervisor ( Landeswahlleiter ), jointly with the Ministry of the Interior, submitted written comments on the objection. They considered, firstly, that it was doubtful whether the group of Frisians qualified as a national minority. Under the declaration submitted by the German Government at the occasion of the signing of the Framework Convention (see Council of Europe documents, below), only the Danes of German citizenship and the members of the Sorbian people with German citizenship were recognised as national minorities in the Federal Republic of Germany. Conversely, the declaration merely stated that the Framework Convention was also applied to the ethnic group of Frisians with German citizenship. It was thus clear from the wording of the declaration that the Frisians did not qualify as a national minority.

Even assuming that the ethnic group of Frisians had the status of a national minority, this did not necessarily entail the obligation to exempt the applicant party from obtaining the minimum threshold of 5 % of the votes. There was no such obligation under the Basic Law or under the constitution of the Land of Lower Saxony or under the Framework Convention.

Neither could such an obligation be derived from section 6 § 6 of the Federal Electoral Law, as the Länder were competent to pass their own electoral laws without being bound by the Federal Law. The privileges enjoyed by the Danish Minority Party in the Land of Schleswig-Holstein did not allow any further conclusions, as the protection and promotion of the Danish minority was prescribed by the constitution of the respective Land .

Finally, and again assuming the minority status of the ethnic group of Frisians, it was questionable whether the applicant party would qualify as the party of the Frisian national minority. The assessment of this question did not only depend on the party ’ s self-concept, but on an overall assessment of all factual and legal circumstances.

On 2 February 2009 the Parliamentary Committee on the Scrutiny of Elections ( Wahlprüfungsausschuss ) held a public hearing on the applicant party ’ s objection.

On 19 February 2009 the Lower Saxony Parliament rejected the applicant party ’ s objection as being unfounded. Relying on the submissions made by the Election Supervisor jointly with the Ministry of the Interior, the Parliament considered that an obligation to exempt the applicant party from the minimum threshold could neither be derived from the constitution of Lower-Saxony, nor from Federal or International Law. It followed that the applicant ’ s objection was unfounded.

On 6 April 2009 the applicant lodged a complaint with the Constitutional Court of Lower Saxony ( Staatsgerichtshof) . The applicant party requested the Constitutional Court to quash the parliamentary decision of 19 February 2009 and to declare the result of the elections held on 27 January 2008 invalid; alternatively, to declare section 33 § 3 of the Electoral Law unconstitutional.

On 30 April 2010 the Constitutional Court of Lower Saxony rejected the applicant party ’ s complaint as being unfounded. The Constitutional Court observed, at the outset, that the relevant provisions did not allow for an exemption from the minimum threshold for national minorities. The Constitutional Court further considered that the minimum threshold interfered with the principle of equality of the vote. This interference was justified because it pursued the legitimate aim of safeguarding the functioning of the elected parliament. Parliamentary work within a democracy necessitated that the parliaments remained able to take decisions and that they were not inhibited in their work by the participation of splinter parties. The Constitutional Court further referred to the case-law of the Federal Constitutional Court regarding the 5 % minimum threshold.

There was no obligation under the Basic Law to exempt parties of national minorities from the 5 % threshold. It was true that certain electoral laws provided for such exemptions. This was, in particular, the case with the Federal Electoral Law, which provided an exemption for parties of national minorities, and with the Electoral Laws of the Länder of Brandenburg and Schleswig-Holstein, providing for exemptions for the parties of the Sorbic and the Danish minority, respectively. However, both Länder provided special rights for national minorities in their respective constitutions. No such provisions could be found in the constitution of the Land of Lower Saxony. The Federal Constitutional Court had declared the respective provision in the Federal Electoral Law constitutional, even though the Basic Law did not contain special rights for national minorities. However, the Federal Constitutional Court had also emphasised that the legislator enjoyed a margin of appreciation in this respect.

The Lower Saxony Constitutional Court finally considered that the alleged right could neither be derived from the European Convention on Human Rights nor from the Framework Convention. The European Convention on Human Rights did not contain any special rights for national minorities. Neither could such a right be derived from the Framework Convention. Relying on the wording of Article 15 of the Framework Convention, the court considered that this provision did not contain any obligation to exempt national minorities from the minimum threshold, but left the question undecided as to how to create the conditions necessary for the effective participation of persons belonging to national minorities in public affairs. It followed that the contracting parties enjoyed a wide margin of appreciation in this respect. In Germany, participation of national minorities in public life was already guaranteed by the constitutional system.

By including the 5 % threshold in the constitution of the Land of Lower Saxony without providing for an exemption, the Constitutional Assembly had given precedence to the functioning of the parliament over granting privileges to national minorities.

Accordingly, the Lower Saxony Constitutional Court did not find it necessary to determine whether the Frisians qualified as a national minority and whether the applicant political party qualified as the political party of this national minority.

B. Relevant domestic law

Article 8 § 3 of the Constitution of the Land of Lower Saxony provides:

Parliamentary Elections

“(3) Electoral proposals which obtained less than 5 % of the cast votes do not obtain a parliamentary mandates.”

Section 33 § 3 of the Electoral Law of the Land of Lower Saxony ( Niedersächsisches Landeswahlgesetz ) reads as follows:

“When attributing seats to the electoral lists, only those parties are taken into account which obtained at least 5 % of the validly cast votes”

Section 3 § 1 of the Electoral Law of the Land of Brandenburg ( Wahlgesetz für den Landtag Brandenburg ) provides:

Election of Parliamentarians from Electoral Lists

“(1) When attributing seats to the electoral lists, only those parties, political groups or joint electoral lists are taken into account which obtained at least 5 % of the validly cast votes ... The provisions on the minimum threshold under the first sentence does not apply to the electoral lists submitted by Sorbic politic parties, political groups or joint electoral lists ... ”

Section 3 § 1 of the Electoral Law of the Land of Schleswig-Holstein provides:

“(1) Seats are allocated under the system of proportional distribution among all parties who have submitted an approved electoral list ... provided that they ... obtain an overall result of at least 5 % of the validly cast votes. This restriction does not apply for parties of the Danish minority.”

Section 6 § 6 of the Federal Electoral Law ( Bundeswahlgesetz ) provides:

“(6) When attributing seats to the electoral lists, only those parties are taken into account which obtained at least 5 % of the validly cast votes. The first sentence does not apply to electoral lists submitted by national minority parties.”

C. Council of Europe Documents

Article 15 of the Framework Convention for the Protection of National Minorities (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.”

A declaration submitted by the German Government at the time of signature, on 11 May 1995, and renewed in the instrument of ratification, deposited on 10 September 1997, reads as follows:

“The Framework Convention contains no definition of the notion of national minorities. It is therefore up to the individual Contracting Parties to determine the groups to which it shall apply after ratification. National Minorities in the Federal Republic of Germany are the Danes of German citizenship and the members of the Sorbian people with German citizenship. The Framework Convention will also be applied to members of the ethnic groups traditionally resident in Germany, the Frisians of German citizenship and the Sinti and Roma of German citizenship.”

Excerpt from the commentary adopted by the Advisory Committee on the Framework Convention for the Protection of National Minorities on 27 February 2008:

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.”

For further Council of Europe documents on the question of electoral thresholds, compare Yumak and Sadak v. Turkey [GC], no. 10226/03, §§ 51 ‑ 56 , ECHR 2008.

COMPLAINTS

The applicant party complains under Article 14 in conjunction with Article 3 of Protocol No. 1 to the Convention about the application of the minimum threshold in their case. The applicant party considers, in particular, that the domestic authorities failed to take into account that the Frisians enjoyed the status of a national minority within the meaning of the Framework Convention for the Protection of National Minorities. The applicant party was in a relevantly different situation than other small parties competing in the parliamentary elections in Lower Saxony, as the number of potential voters was limited to members of the Frisian minority. Furthermore, there was no justification for treating the applicant party any differently from parties representing national minorities in the Länder of Schleswig-Holstein and Brandenburg, which were exempt from the minimum threshold.

The applicant party further complains under Article 13 in conjunction with Article 14 of the Convention and Article 3 of Protocol No. 1 to the Convention about having been denied an effective remedy against the violation of their Convention Rights. The applicant party complains, in particular, that the parliament lacked impartiality and independence in proceedings regarding the validity of the electoral result. Furthermore, in the proceedings before the Lower Saxony Constitutional Court, the applicant party did not receive a fair hearing, as the constitutional court had decided its case without an oral hearing and without an intensive examination of the facts of the case.

QUESTIONS TO THE PARTIES

1. Has the applicant party suffered discrimination in the enjoyment of its right to participate in free elections which ensure the free expression of the opinion of the people in the choice of legislature, contrary to Article 14 of the Convention read in conjunction with Article 3 of Protocol No. 1 to the Convention?

2. Does the applicant party qualify as a political party representing the interests of a national minority within the meaning of the Framework Convention for the Protection of National Minorities?