By Pieter Cannoot, academic assistant and doctoral researcher of constitutional law (Ghent University)
On 28 January 2016 the European Court of Human Rights declared the complaint by the regional Frisian political party “Die Friesen” against Germany unfounded. The party argued that the electoral system of the German Land of Lower Saxony (Niedersachsen) was discriminatory in conjunction with Article 3 of Protocol No. 1 to the ECHR, in so far as it applied a 5% threshold to the 2008 parliamentary elections.
The party Die Friesen was founded in 2007 to represent the interests of the Frisian minority in Germany and more specifically in the Land of Lower Saxony. Under the Land’s electoral law parliamentary seats are allocated on the basis of the D’Hondt system of proportional representation, but only to parties that obtain a minimum threshold of 5% of the total of votes validly cast. In the 2008 parliamentary elections Die Friesen attained approximately 0,3% of all votes validly cast and therefore did not meet the required 5% threshold. Even irrespective of the minimum threshold the number of votes received would not have been sufficient to obtain a parliamentary seat. It is important for this case to note that the electoral laws of the Länder of Brandenburg and Schleswig-Holstein, as well as the federal electoral law provide for exemptions regarding the minimum threshold for parties of national minorities. Both Länder also include special rights for national minorities in their respective constitutions. No such provisions can be found in the constitution of Lower Saxony.
In 2007 the applicant party had asked both the Prime Minister of Lower Saxony, and the President of the Lower Saxony Parliament to be exempted extra legem from the minimum threshold, which was refused. The party lodged an objection against the validity of the 2008 elections, complaining that the minimum threshold resulted in its factual exclusion from participating in the parliamentary elections and amounted to discrimination vis-à-vis other small political parties which were, at least theoretically, capable of reaching that threshold. Die Friesen relied on Article 14 in conjunction with Article 3 of Protocol No. 1 to the ECHR. On 19 February 2009 the Lower Saxony Parliament rejected the party’s objection. It considered that an exemption from the minimum threshold could neither be derived from the constitution, nor from federal or international law. The applicant party appealed against the parliamentary decision to the Constitutional Court of Lower Saxony to declare the results of the 2008 elections invalid or alternatively to declare the electoral law unconstitutional. On 30 April 2010 the Constitutional Court rejected the complaint, observing that the relevant provisions of the electoral law did not allow for an exemption from the minimum threshold for national minorities. Although the threshold interfered with the principle of equality of the vote, this interference was justified because it pursued the legitimate aim of safeguarding the functioning of parliament. Moreover, there was no obligation under the federal Basic Law to exempt parties of national minorities from the minimum threshold. The Federal Constitutional Court also had emphasized – in a different case – the margin of appreciation of the regional legislator in this respect. According to the Lower Saxony Constitutional Court the ECHR does not contain any special rights for national minorities.
The Court commences by observing that the party Die Friesen merely attained 0,3% of the overall votes and therefore did not obtain sufficient votes to claim a parliamentary seat. However, the Court acknowledges the chilling effect of the 5% threshold on potential voters who might not have wanted to “waste” their votes on a political party unable to pass the threshold. The electoral law thus interfered with the applicant’s right to stand for election, falling within the scope of Article 3 of Protocol No. 1 and accordingly Article 14.
In this regard the ECtHR first addresses the applicant’s complaint of indirect discrimination through the application of the 5% threshold. In so far as the applicant party claims that its situation is analogous to that of the national minority parties in Brandenburg and Schleswig-Holstein, the Court states that although under federal election law all national minority parties enjoy the same privileges in federal elections, the Lower Saxony Constitutional Court found that there was no obligation under the constitution of Lower Saxony to exempt parties of national minorities from electoral thresholds regarding regional elections. Indeed, in the German federal system the Länder have sovereignty to autonomously regulate certain matters. The applicant’s situation is therefore not analogous to that of parties of national minorities participating in the regional parliamentary elections in other Länder.
Secondly the Court analyses whether the situation of the applicant party is significantly different from that of other political parties in Lower Saxony. The Court observes that it is undisputed that Die Friesen has not been treated differently to any other small political parties standing for elections in Lower Saxony. It accepts that the situation of the applicant in this respect is basically similar to the situation of other parties which concentrate on the representation of numerical small interest groups defined by criteria such as age, religious belief and profession. The disadvantage Die Friesen faces in the electoral process is therefore based on the chosen concept of only representing the interests of a small part of the population, even though the number of Frisians in Lower Saxony is not high enough to reach the electoral threshold even if all Frisian voters were to cast their vote for the applicant party. According to the Court, a Contracting State cannot be held responsible for this choice.
However, the Court also examines whether national minority parties should be treated differently to other special interest parties, taking into account that the forming of an association in order to express and promote its identity may be instrumental in helping a minority to preserve and uphold its rights (Gorzelik and Others v. Poland, § 93). The former Commission found in a comparable case that the ECHR did not compel the States to provide for positive discrimination in favour of minorities. The Court however notes that the Framework Convention for the Protection of National Minorities puts an emphasis on the participation of national minorities in public affairs. Even though the Frisians are recognised as a national minority in Germany, the 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 (Article 15). The Constitutional Court of Lower Saxony correctly stated that there are no clear and binding obligations to be derived from the Framework Convention to exempt national minority parties from electoral thresholds. Consequently the Court concludes that the ECHR does not require a different treatment in favour of minority parties in this context.
Comment: federalism vs. uniform protection of minority rights
The Court’s judgment in this case offers two important – and intertwined – insights on the protection of the rights of national minorities in electoral processes. The ECtHR confirmed the wide margin of appreciation for the Contracting States to give form to the right of participation in public affairs of members of national minorities (1), subsequently leading to the precedence of the principles of federalism over the uniform protection of national minority rights on the territory of the Contracting States (2).
The Court refers to the opinions of the Advisory Committee on the Framework Convention and the (Venice) Commission for Democracy through Law, which point at the potential negative impact of minimum thresholds on the participation of national minorities in the electoral process. Exemptions from threshold requirements had proved useful for enhancing national minority participation in elected bodies, such as Parliament. The ECtHR nevertheless considers exemptions to be merely presented as one of many options in this context. This statement of the Court stands in stark contrast to the observation that the application of the 5% threshold had a chilling effect on potential voters in the 2008 parliamentary elections in Lower Saxony. Moreover the Court oddly places national minority parties in the same category as other special interest parties, for instance focusing on age, religion or profession, that have to bear the electoral consequences of their chosen political ideologies. Article 15 of the Framework Convention nevertheless calls for special rights of participation in public affairs for members of national minorities. Assigning the responsibility for dealing with negative electoral consequences to parties of national minorities could amount to a high burden.
The Court explicitly addresses the constitutional autonomy of the German Länder to regulate the electoral process for their parliamentary elections. It therefore accepts the sovereign power of federated entities to include or exclude exemptions for national minorities in their electoral law. The principles of federalism thus lead to a territorial differentiation in the protection of national minority rights, even though the German Federal Government – at the central level – declared the rights applicable to Frisians of German citizenship. In other words: federalism trumps the uniformity of human rights protection.