Preferential non-representation? Case of Bakirdzi and E.C. v Hungary

by Péter Kállai

On 10 November 2022, the European Court of Human Rights (ECtHR) decided that the shortcomings of the minority voting system in Hungary constitute a violation of the right to vote under Article 3 of Protocol No. 1 in conjunction with the right to non-discrimination under Article 14 of the European Convention on Human Rights, as the system leads to the disenfranchisement of minority voters.

As declared by the 2011 Hungarian Constitution, national minorities living in Hungary shall participate in the work of Parliament. Based on this provision, the Act on the Election of the Members of the National Assembly introduced an allegedly preferential system of minority representation. However, as the decision also highlights, there are circumstances which make the preferential nature of the system questionable. In the following sections, I present the main elements of the decision and highlight the discriminatory nature of the system. In this way, I go a step further than the decision, and illustrate how the whole system has an exclusionary nature towards members of minorities, and how the whole system deprives them of effective representation.

Facts

In Hungary, each of the national self-governments of the thirteen recognized minorities is to draw up a minority list. In order to obtain a parliamentary mandate for the first candidate on the minority list, it is sufficient if the minority list received only a quarter of the votes typically required for a seat in the list system. This is the so-called preferential quota. In case the preferential quota is not reached, national minorities are ‘represented’ by their national minority advocate (spokesperson), a Member of Parliament (MP) without voting rights, and with limited speaking rights. Registering as a national minority voter (especially for parliamentary elections) is based on self-identification. Generally, voters with residence in Hungary have two votes, one for a single-member candidate and one for a party-list. However, while such a system is applicable to voters of the national majority, national minority voters may cast a vote for a candidate in a single-member constituency and another one for the single, closed list of their national minority.

In 2014, all 13 of the registered minorities’ national self-governments drew up their list, and altogether 35,289 voters registered as national minority voters. The main problem is that the small number of registered minority voters is an obvious indication that none of the minorities will reach the preferential quota. The highest number of registrations, 15,209, was for the German minority, 14,271 for the Roma, and a couple of thousands for the other minorities. In 2014 the preferential quota happened to be 22,022 votes.

The applicants in the case belonged to the Greek minority (Ms Kalliopé Bakirdzi as one of the registered 140 voters) and the Armenian minority (E.C., 184 registered voters). They complained that the whole system of national minority voting constituted a discriminatory interference with their voting rights as established in Article 3 of Protocol No. 1 to the Convention in conjunction with Article 14 of the Convention.

Judgment

The decision is based on three main elements. First, that votes of the minority voters in this system can easily (and most probably) become diluted. Second, that the possibility to only cast a ballot for a closed minority list is not a real choice as the idea of free elections demands. And third, that the restriction in terms of choosing between political ideas, parties, candidates also makes the secrecy of the votes questionable.

First, because of the number of people (and thus voters) belonging to minorities, the adopted system cannot serve any preferential purpose, as most of the minorities do not have a chance to achieve the preferential quota. The Court, based on its jurisprudence, acknowledged that “no electoral system can eliminate “wasted votes”, but in the given case the statutory scheme created the situation when the potential value of minority votes “becomes diluted”.

Second, the Court accepted the applicants’ reasoning that the requirement of free elections should imply a free choice for voters. This part of the infringement consists of two main elements. Minority voters cannot choose from the candidates regarding their political preferences; they can only cast their vote for their respective, closed minority list. They had no chance to influence the order of the candidates or influence the outcome by any other means. Moreover, as a consequence of being registered as national minority voters, the applicants cannot vote for national party lists. As ruled by the Court:

“The Court has doubts that a system in which a vote may be cast only for a specific closed list of candidates, and which requires voters to abandon their party affiliations in order to have representation as a member of a minority ensures ‘the free expression of the opinion of the people in the choice of the legislature” (para. 66).

Third, the Court accepted that the limited electoral choice led to a situation in which all present in the polling station at the relevant time (especially of the elections commission), would come to know that the elector had cast a vote for the given minority list.

The Court pinned down, that while there is no international obligation to set-up a preferential system for minority representation, when a contracting state decides to do so, the adopted measures should contribute to the participation of national minorities and should not have an exclusive effect. The decision states that the Hungarian system limited the opportunity of national minority voters and reduces diversity in the participation of minorities in political decision-making.

Altogether, the Court decided that the combination of these restrictions on the applicants’ voting rights, considering their cumulative effect, constituted a violation of Article 3 of Protocol No. 1 taken in conjunction with Article 14 of the Convention.

Two separate opinions are attached to the ruling. Judges Bošnjak and Derenčinović in their concurring opinion elaborated that as “the Convention does not require States to adopt preferential thresholds in respect of national minorities”, the system as a whole cannot be seen as infringement of the Convention. They also drew attention to the majority decision’s lack of reasoning regarding the discriminative nature of the system. Meanwhile, Judge Ktistakis’ partly dissenting opinion stated that not making an award for non-pecuniary damage may discourage members of minorities from fighting for their rights, thus the finding of a violation does not in itself constitute just satisfaction for the applicants.

Commentary

While there was violation of Article 3 of Protocol No. 1 in conjunction with Article 14 of the Convention, the reasoning of the majority in Bakirdzi and EC is not necessarily substantial regarding the discriminative nature of the system, as Judges Bošnjak and Derenčinović pointed out. While I agree with the findings of the majority, I think that some points of the reasoning should have been more elaborate and clearer. To highlight the discriminative nature of the system, in the following section I introduce the system in terms of possibilities for minority voters compared to voters of the national majority. My aim is to illustrate the exclusive nature of the system towards members of minorities, and highlight that the system does not in any means provide the possibility of effective representation for (at least most of the) minorities in Hungary.

The preferential quota may vary based on electoral turnout, but it is hard to imagine that it will ever be below 20,000 votes. However, more important is that most of the registered minorities never had the chance to aim for an MP; their only chance is to send their advocate to the parliament. Not only is the number of registered voters way below the preferential quota, but also the total number of people belonging to most of the minorities is not enough to reach the quota, even if every single one of them would cast a ballot.

It is true that, as the ECtHR acknowledged, most electoral system cannot avoid wasted votes. For instance, votes in a single-member constituency cast for the losing candidate can be a wasted vote (to be precise, the Hungarian system counts them as compensation votes, but, in a rather twisted logic, even winners can get compensation votes – this is another issue with the Hungarian electoral system). However, in case of the minority voting, wasting votes is pretty much coded in the very nature of the system. It is a consequence of people registering as minority voters according to their identities. How can a system be called preferential, if most of the subjects of the given system are to waste their votes and are to never elect an MP, obviously even before the elections happen?

Furthermore, when a member of a minority decides that they would like to take part in elections as a national minority voter, it automatically means that they will not have the chance to choose between political parties. Thus, their influence on party-politics in Hungary is immediately limited. By the point of registration, their only choice is to actually cast the ballot for the given minority’s closed list (or not to cast the ballot at all). However, the choice of registration is not a question of political preference but more of an identity-based choice. Encouraging members of national minorities to take part in an allegedly preferential system which, in effect, disenfranchises them is the most obvious discrepancy of the whole system.

It is necessary to emphasize that these minority lists are closed. There is no chance to influence the order of the candidates, thus have an effect on choosing between candidates for minority MP (in case of reaching the preferential quota as the German minority have in 2018 and in 2022) or for minority advocate (in case of not reaching the quota which is, again, the only possibility for most of the minorities). Minority voters are excluded not just from party-politics, but also, and I think this is crucial, from electing their own advocate.

According to the Hungarian government, if minorities were to be allowed to vote for both party lists and minority lists, in addition to the single-member constituency voting, this would be inconsistent with the international obligations of equal suffrage (see para. 40 of the judgment). To put it simply, the principle of equal suffrage consists of two main requirements, the equal number, and the equal weight of votes. According to the mainstream understanding of the principle, while the weight of votes may differ in a system (especially in case of preferential minority voting), the number of votes for each voter should be equal. However, first, even within the Hungarian system there are other inequalities regarding the number of votes: voters without permanent residency in Hungary cannot vote for single-member constituency candidates, only for party lists, thus have only one vote, not the generally applied two votes. Second, as the Court also finds, the effect of the votes of minority voters on the outcome of the election is substantially limited. In my view, it is pointless and vitally against the aim of effective participation if the equality in numbers can only be secured at the expense of the values of votes. Guaranteeing the equal number of votes by diluting half of them is hardly a preferential solution.

To put it very simply, members of minorities without the chance of reaching the preferential quota and having a fully-fledged MP should choose not to register as minority voters in order to keep their influence as voters by casting a ballot on party lists. In terms of effective participation, this means that that choosing their minority identities is heavily detrimental to their participation’s effectiveness, which is hardly consistent with a preferential system.

The decision of the Court did not go this far in its text, but I argue that the whole electoral system is exclusionary towards minorities. Those who choose to register as national minority voters for reasons of identity and national belonging have limited possibilities in terms of choosing their own representatives, even though this is the first and foremost condition of minority representation.

It is gratifying that the Court sees it this way as well.

Conclusion

Other than the not sufficiently elaborated argument regarding Article 14, the most problematic element of the decision is its date and the question of just satisfaction of the damage. According to the decision, the rights of the Applicants were infringed in 2014 – eight years ago. Since then, (this element of) the electoral system is unchanged. The same infringement happened systematically to thousands of minority voters in 2014, in 2018 and in 2022. Of course, the applicants and other member of the minorities in Hungary could decide not to register as minority voters, but that in itself assumes that members of any minority should choose not to register in line with their national/ethnic identity in order to completely enjoy their rights in question. The timeframe shows that the process of the ECtHR is slow and needs to be reformed in order to avoid continuous infringements. In connection with this, I have to agree with Judge Ktistakis, who in his partly dissenting opinion states that the finding of a violation does not in itself constitute just satisfaction for any non-pecuniary damage sustained by the applicants.

What is next? It is likely that the Government will request the case to be referred to the Grand Chamber. In case of a similar decision, the consequence should definitely be a wholesale reform of the system. What are the possibilities? Erasing the preferential system in itself? That seems unlikely as the German minority managed to reach the preferential quota in 2018 and in 2022. Also, the German example shows how the system is useful for the political purposes of the Fidesz-government. The German minority’s MP was a member of Fidesz before, and since then in almost every question he sided with the government. The example of the other populous minority, Roma, illustrates how the whole system can be influenced by governmental and other political actors. Thus, it is not necessarily in the interest of the political elite to substantially change the system.

As there is no obligation that minorities with a few thousand members should have parliamentary representation in terms of an MP with voting right, and as most of the minorities in Hungary are unable to reach the mandate, the most honest way to establish (a limited, but still existing) minority representation would be to keep the system of advocates, but guarantee that the advocates are effectively elected by the members of the minorities, and let minority voters vote for party lists as well. In this case, minority voters would have three votes. Though the principle of equal suffrage would be infringed, one of these votes would elect an advocate without any decision-making rights in parliament. However, the obvious downside is that this would make it more difficult to prevent members of the majority to register as minority voters and vote for minority advocates. To visit other possible outcomes, see Anna Unger’s blogpost on the current decision, in which she puts more emphasis on the question of secrecy than I do.

Keeping in mind the Hungarian government’s reluctance to make systemic changes in question of human rights issues (see e.g. the four, almost identical cases of Vajnai against Hungary), a fast but substantive response is unlikely.