JOINT CONCURRING OPINION OF JUDGES BOŠNJAK AND DERENČINOVIĆ

1. While we agree with the substance of the judgment, as well as with the second and third arguments concerning freedom of choice and the secrecy of the ballot, there are some parts of the reasoning we cannot support. This is the reasoning with respect to the threshold requirement for a national minority in the context of Article 3 of Protocol No. 1 to the European Convention on Human Rights (hereafter “the Protocol”) and the almost complete lack of reasoning when it comes to the violation of Article 14 of the Convention.

2. Regarding the threshold requirement, it has been correctly pointed out that “the Convention does not require States to adopt preferential thresholds in respect of national minorities” (see paragraph 58 of the judgment). However, this is contradicted by the part that follows, which stresses that “when setting up a quorum for national minority groups, consideration needs to be given whether that threshold requirement makes it more burdensome for a national minority candidate to gather the requisite votes for a national minority seat than it is to win a seat in Parliament from the regular party lists” (ibid.). This line of reasoning does not stop there but continues along the same path by stating that, even though “as the Court held before, not all votes must necessarily have equal weight as regards the outcome of the election, and no electoral system can eliminate ‘wasted votes’..., the national legislator needs to assess whether the statutory scheme creates a disparity in the voting power of members of national minorities, as the applicants, in order to avoid that the potential value of votes that might be cast for national minority lists becomes diluted” (see paragraph 59 of the judgment).

3. The said reasoning seems to go well beyond the guarantees established by the Protocol. It must not be forgotten that States’ margin of appreciation in this regard is very broad, and that a violation of the Protocol will be found only in cases where the freedom of choice of the voters or the secrecy of the ballot were at stake. Such a restrictive approach in drafting the Protocol is understandable, bearing in mind the lack of consensus and the diversity of legislative approaches governing elections in member States. Therefore, suggesting that the implementation of a measure concerning something that is not a human right per se may amount to a violation in the context of freedom of elections cannot reasonably be justified. A domestic policy concerning minority groups’ participation in elections, including the issue of the preferential threshold, may be subjected to scrutiny and criticism by the relevant international actors (such as the Advisory Committee on the Framework Convention and the Venice Commission), but to hold that such a policy amounts to a violation of the Protocol seems to be quite far-fetched.

4. The reasoning concerning the preferential threshold for national minorities clearly departs from the standards of interpretation adopted by the Court in the case of the Frisian political party Die Friesen against Germany (see Partei die Friesen v. Germany , no. 65480/10, 28 January 2016). In that case, in which the Court found no violation, the applicant argued that the electoral system of the German Land of Lower Saxony was discriminatory under Article 14 taken in conjunction with Article 3 of Protocol No. 1 to the Convention, in so far as it applied a 5% threshold to the 2008 parliamentary elections (ibid., § 24). The Court observed that the party Die Friesen had attained merely 0.3% of the overall votes and therefore had not received sufficient votes to claim a parliamentary seat (ibid., § 34).

5. In Partei Die Friesen , the Court reached several conclusions that are relevant to this case also:

- the Framework Convention for the Protection of National Minorities (hereafter “the Framework Convention”) emphasises the participation of national minorities in public affairs;

- States enjoy a wide margin of appreciation in how to approach the Framework Convention’s aim of promoting the effective participation of members of national minorities in public affairs;

- the European Convention does not compel States to provide for positive discrimination in favour of minorities;

- no clear and binding obligations can be derived from the Framework Convention to exempt national minority parties from electoral thresholds.

6. Although the Protocol does not oblige States to provide for positive discrimination in favour of minorities, Hungary introduced such positive discrimination through a preferential quota system in the domestic legislation, meaning that the threshold for minority lists and candidates is one-quarter of that for ordinary party lists. By establishing this more favourable threshold for minorities, the authorities went beyond the current requirements under the relevant international legal standards.

7. Indeed, the system as it now stands does not guarantee the political representation of minorities in the form of a seat in Parliament. However, this is not a requirement under the relevant international standards, including the Framework Convention. Instead, the requirement is simply to promote the effective participation of members of national minorities in public affairs (Article 15). This effective participation is ensured, as was highlighted in the Government’s observations, through the spokespersons in Parliament. Section 18 of the Election Procedure Act provides that 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. That being so, the authorities do not fall short of their obligations under the relevant international law, which provides a very broad margin of appreciation in election-related matters.

8. As to the “wasted votes” argument, it is to be noted that the members of national minorities are free to choose whether to vote for the party list or the minority list. In this regard, if they think that voting for the minority list would be a waste of their vote, they can always opt to vote for the party list. Moreover, even assuming that once the members of a given minority decide to vote for their minority list, their freedom of choice is de facto somehow restricted, there is nothing in the Protocol that requires the Contracting Parties to provide for all votes, including those of minorities, to be given equal weight as regards the outcome of the election. Furthermore, the reality of “wasted votes” is a feature of almost any election system, and a requirement to eliminate or even reduce such votes would not only run contrary to the strict scope of the Protocol but would also place an unreasonable, if not impossible, burden on the authorities.

9. In the present case, a violation was found unanimously with regard to the two major issues. The first is the lack of choice of the members of national minorities once they decide to vote for the minority list (because they can only cast their vote for the candidate(s) of their respective national minority, and not for the other list(s)). The second issue is the secrecy of their votes. The fact that members of national minorities do not have a meaningful choice when they decide to vote for the minority list de facto implies that their vote could be indirectly known to the public, a situation that is in contravention of the Protocol. In our opinion, these two arguments, to which we fully subscribe, were quite well reasoned and sufficient to establish a violation of the Protocol. Therefore, the part of the reasoning concerning the issues of electoral thresholds and “wasted votes”, for the reasons explained above, seems to be quite far-fetched and, in our opinion, not really necessary in the context of this case.

10. Regarding Article 14, we support the finding on the merits because it seems to us that there was no justified reason to differentiate the position of national minority voters (lack of choice, secrecy of the ballot) from that of the electorate as a whole. However, the reasoning of the judgment lacks any analysis of the application of the general principles to the facts of the case. We note this with concern, given that a finding of a violation of that provision requires careful balancing and in-depth analysis as to the possible difference in treatment, the existence of a comparable group, the subject matter, and other relevant elements. A failure to provide at least elementary reasoning makes it very difficult to understand how fundamental safeguards against discrimination in the election context have been applied in this case.