The European Court of Human Rights (ECtHR), in the case Bakirdzi and E. C. v. Hungary of 10 November 2022, ruled on the legitimacy of the introduction in the Hungarian electoral law of a threshold for the election of members of recognised national minorities to the national Parliament under Article 3, Protocol No. 1 ECHR.

 

In the present case, the two applicants, members of the Armenian and Greek communities respectively, complained about the absence of an effective possibility for a recognised national minority to obtain a seat in the Hungarian Parliament under the preferential quota system established by the new electoral law. Indeed, the new electoral law was adopted in 2014 with the objective of increasing the representation of national minorities in Parliament. According to this system, candidates from national minorities can obtain a seat in Parliament if they manage to reach a minimum threshold of preferences, namely one-quarter of the number of votes required to obtain a 'regular seat', which is not allocated to minorities. Moreover, the law provides for the registration of a national minority voter as a precondition for exercising active electoral rights. Actually, this precludes the possibility of voting for other lists. Thus, in the 2014 parliamentary elections, none of the national minority lists managed to obtain the necessary number of votes to win a seat in Parliament.

 

The judges of the First Chamber of the ECtHR approached this question from three angles. First, the Court confirmed that states can subject access to parliamentary representation to specific conditions, while the Convention does not require the adoption of preferential thresholds for national minorities. However, when establishing a quorum for national minority groups, it should be evaluated whether: (i) the requirement of such a threshold makes it more burdensome for a candidate from a minority to garner the required votes than it would be to win a seat from the regular party lists; (ii) the electoral threshold has a negative impact on the participation of voters from a national minority on an equal footing with other members of the electorate. In the present case, the electoral system placed members of national minorities in a significantly different situation from other candidates, who could obtain votes, instead, from the entire electorate. Consequently, the scheme set out by the Hungarian electoral law infringed on the electoral rights of the applicants.

Furthermore, the fact that voters of national minorities could only cast their votes for candidates on the national minority list prevented them from effectively both expressing their will for the promotion of political ideas and programs of political action and associating themselves for political purposes through voting.

Finally, the voting expression of national minority voters could be recognised during the counting procedures, as they received a ballot containing the names of the candidates of the national minority list only, instead of a complete ballot containing the names of all candidates. This resulted in the substantial restriction of the applicants’ electoral choice, with the obvious likelihood that their electoral preferences would be revealed. Thus, the system was imposed on the applicants with unequal weight due to their status as national minority voters, limiting their possibility to increase their political effectiveness as a group and threatening to reduce, rather than increase, the diversity and participation of minorities in political decision-making.

 

In the light of the combination of these restrictions on the applicants' right to vote, the Court found a violation of Article 3 of Protocol No. 1, read in conjunction with Article 14 ECHR.

 

(Comment by Edin Skrebo)