Published on 25 September 2023

THIRD SECTION

Application no. 21454/21 Georgios PAPADOPOULOS against Cyprus lodged on 21 April 2021 communicated on 8 September 2023

SUBJECT MATTER OF THE CASE

In May 2016, Ms E.T., president of the ‘Solidarity Party’ and Member of the European Parliament, was declared elected as a member of the Cypriot Parliament. Before being sworn in, Ms E.T. decided that she did not wish to take the seat in the Cypriot Parliament as she wished instead to maintain her seat as Member of the European Parliament.

The Chief Returning Officer (“CRO”), having consulted the Attorney General, applied by analogy section 35(1) of Law 72/79 (relating to the election of members of parliament) which provided for the event of a ‘vacated seat’, and declared the applicant - who was a runner-up from the same party in the same constituency - as the new member of parliament for the said ‘not ‑ taken’ seat, as it was later characterised.

This decision was challenged in court and was declared null and void. The court acknowledged the legislative gap concerning ‘not-taken’ as opposed to ‘vacated’ seats but disagreed with applying section 35(1) by analogy for filling the said gap.

The applicant was subsequently declared elected as member of parliament on two other occasions following first the amendment of the law, and later, the Constitution, but his election was annulled by the domestic courts on both occasions considering the legislative and Constitutional amendments as unconstitutional.

The applicant complains about a breach of his right to stand for election, as well as the right of the electorate in the choice of the legislature as protected under Article 3 of Protocol No. 1 to the Convention.

QUESTIONS TO THE PARTIES

1. Was the way in which the Electoral Court interpreted and applied the electoral law and Constitution compatible with the very substance of the right to stand for election and once elected to sit as member of parliament recognised to the applicant by Article 3 of Protocol No. 1, and did the Electoral Court’s decisions respect the free expression of the opinion of the people in the choice of the legislature? In particular:

(a) Were the decisions of the Electoral Court in accordance with the law?

(b) Was the annulment of the CRO’s decisions based on a foreseeable interpretation of the electoral law and the Constitution?

(c) Did the decisions of the Electoral Court pursue a legitimate aim and where the means employed proportionate to that aim?

2. The Court invites the parties to provide background information and any doctrinal interpretation or commentary on:

- the purpose and application of Article 66 of the Constitution and the possibility of by-elections in the Cypriot legal system, including information on domestic case-law on this matter;

- the “basic structure doctrine” and its application within the Cypriot legal system, as well as the right of domestic courts to examine constitutional amendments;

- the way that Parliamentary seats are allocated following parliamentary elections.

3. The Government are invited to submit a copy of:

- the declarations issued by the CRO in the official gazette declaring the applicant elected parliamentarian for the seat in question;

- the relevant parliamentary records whereby the applicant took the relevant oath in Parliament in accordance with Article 69 of the Constitution;

- the Attorney General’s advisory opinions to the CRO concerning the filling of the parliamentary seat in question;

- the parties’ pleadings in electoral petitions nos. 2/2016, 1/2017, 1/2019 and in referral no. 4/2018.