May 12, 2010
To be honest, our team’s first reaction when discussing the recent Grand Chamber judgment in the case of Tănase v. Moldova was rather dismissive. We had the feeling that the Court was teaching Moldova the basics of what it means to be a democracy; a thing they would hardly do in a case concerning, say, Belgium, France or the Netherlands.
The case concerns Moldovan Law no. 273, which prohibits people with multiple nationalities sitting as Member of Parliament. This law was introduced a year before the general elections and was the third aspect of an electoral reform package, whose other measures consisted of raising the electoral threshold and banning electoral blocks. As the Court notes, “All the measures proposed had a detrimental impact on the opposition” (par. 168). This makes that the Court is not satisfied that the aim of the law was to secure loyalty of MP’s, as Moldova maintained (par. 170).
The Court puts it politely, but it is quite clear what the judges think of such exclusionary practices as adopted by the governing party. The Grand Chamber rules unanimously that article 3 of Protocol 1 (the right to free elections) is violated. By the way, it is somewhat puzzling why the Grand Chamber had granted the referral request; as the Chamber (Fourth Section) which dealt with this case back in 2008 had also unanimously come to the same conclusion…
But now to the point. This case is not just relevant for Moldova and other states that have become independent only in recent years (and therefore might expect to have certain transitional justice issues).
In the Netherlands, Belgium (link in Dutch) and France (link in French) voices have been raised that propose exactly the same thing as the Moldovan government. In the Netherlands this issue came to the forefront when Nebahat Albayrak (Dutch and Turkish) and Ahmed Aboutaleb (Dutch and Moroccan) were appointed members of cabinet in 2007. The politician Geert Wilders, known for his anti-Islamic polemics and peroxide hair, subsequently submitted a motion of no-confidence. The motion was turned down, but the discussion concerning the permissibility of politicians having multiple nationalities is still going on.
What kind of leadership is the Court showing in this debate? It is a pity that the Court relies so much on the detrimental effect on the opposition in its reasoning. The Court seems to imply that strict scrutiny will prevail in cases were measures like this operate principally to the disadvantage of the opposition parties (par. 179). Tănase v. Moldova puts up a warning flag for Geert Wilders cum suis, but not more. On rereading this case, the conclusion is that not just Moldova needs a lesson in democracy.