Georgios Papadopoulos v. Cyprus, decided by the European Court of Human Rights (First Section) in 2025, is part of the case law relating to the protection of the right to free elections under Article 3 of Protocol No. 1 to the European Convention on Human Rights (ECHR). The case offers an important clarification on the relationship between electoral legality, democratic representation, and the State's positive obligation to ensure the proper functioning of representative institutions.

The case originates from the Cypriot parliamentary elections of May 2016. The applicant, who was standing as a candidate for the Solidarity Movement, was the first person in his constituency not to be elected. The seat allocated to the party was awarded to the leader of the movement, who was also elected to the European Parliament at the same time. However, she decided not to take up her national parliamentary seat before the start of the legislative term, preferring to retain her European seat instead. This created an anomalous situation not expressly regulated by Cypriot law, which did not provide a procedure for replacing an elected candidate who renounced their seat before the start of their term.

In the absence of a clear legal basis, the authorities repeatedly appointed the applicant as the successor, since he had received the next highest number of votes. However, the Electoral Court annulled these decisions systematically in 2017, 2018 and 2020 on the basis that there was no constitutional or legislative basis for replacing an elected candidate before the start of their term of office. Meanwhile, the legislature attempted to address this issue by amending the electoral law and the Constitution. However, these measures were subsequently censured by the Electoral Court as they involved allocating the seat through ad hoc legislation rather than a general or by-election, which violates the principle of popular sovereignty.

This institutional stalemate resulted in the seat remaining vacant for an extended period, with the issue remaining unresolved for nearly the entire duration of the legislature. The applicant brought the case before the ECtHR, complaining that the repeated annulment of his mandate and the absence of a legally valid solution had compromised his right to stand for election and voters' right to have their choice at the ballot box respected, in violation of Article 3 of Protocol No. 1.

When ruling on the case, the Court first clarified that the 2016 electoral process had never been deemed irregular. International observers, such as the OSCE, had also expressed full confidence in the integrity of the elections. Therefore, the violation complained of did not concern the electoral phase in the strict sense, but rather the subsequent phase relating to the allocation of a seat already validly assigned to a political party.

The core of the violation was identified as the absence of an appropriate legal mechanism to regulate a foreseeable situation, such as the renunciation of a seat before the start of the legislative term. Neither the appointment of a replacement candidate nor the calling of a by-election was provided for by law. This legislative gap resulted in a veritable institutional deadlock, leaving both the applicant and the electorate without effective protection.

According to the Court, this situation had the practical effect of frustrating the will of the people, as expressed in the 2016 elections, and undermining the proper functioning of the representative system. The interference with the right guaranteed by Article 3 of Protocol No. 1 could not be considered 'provided for by law', since the regulatory framework was incomplete and inconsistent, and unable to offer a clear and predictable solution in accordance with the principles of the rule of law. Although aware of the problem, the state authorities had failed to remedy it effectively, either through constitutionally compliant legislative intervention or a jurisprudential interpretation capable of ensuring continuity of democratic representation.

The Court therefore unanimously concluded that there had been a violation of Article 3 of Protocol No. 1 to the Convention. The Court stated that the State's inertia and inability to fill the regulatory gap in a timely manner had affected the very essence of the right to free elections.

The Papadopoulos v. Cyprus judgment reiterates that the right to free elections encompasses not only the regularity of the vote, but also the State's positive obligation to ensure that election outcomes have tangible effects and that parliamentary representation is not undermined by regulatory gaps or institutional conflicts. While recognising States' wide margin of appreciation in organising their electoral systems, the Court reaffirms that this discretion reaches an insurmountable limit when the absence of rules compromises popular sovereignty and the functioning of representative democracy.

Another important aspect of the judgment concerns the principle of political pluralism, which is one of the essential elements of a 'democratic society' as defined in the Convention. The prolonged vacancy of the seat allocated to the Solidarity Movement affected not only the individual rights of the applicant and the will of the electorate, but also weakened the political representation of a legitimately elected parliamentary force. Therefore, the lack of a replacement or by-election mechanism altered Parliament's composition compared to the ballot box outcome, affecting the balance between different political options and reducing the degree of pluralism in the representative assembly. While not expressly referring to Articles 10 and 11 of the Convention, the Court implicitly reaffirmed that the right to free elections protects not only the electoral process itself, but also the systemic function of elections as an instrument of political pluralism. From this perspective, the Papadopoulos v. Cyprus judgment confirms that regulatory gaps capable of neutralising the representation of a political party are incompatible with the values of a pluralist democracy based on effective respect for the will of the people, even in the absence of explicit discriminatory intent.

 

(Comment by Edin Skrebo)