The right answer without a reasonable argument? The shortcomings of Bakirdzi and E.C. v. Hungary

by Balázs Majtényi

On 10 November 2022, the European Court of Human Rights (ECtHR) published its decision in the case of Bakirdzi and E.C. v. Hungary. According to the judgment, the representation of national minorities in the Hungarian Parliament violates the right to free elections (Article 3 of Protocol No. 1 to the Convention) in conjunction with the prohibition of discrimination (Article 14 of the Convention). A summary of the judgment has already been published on Strasbourg Observers and Verfassungsblog, so this post will not seek to introduce the judgment, but rather focus on its shortcomings.

I claim that the quality of the court’s argumentation is doctrinally weak and demonstrates an inadequate knowledge of the Hungarian law. In order to underline this, I give examples of the court either ignoring the law in force, or summarising the relevant legal provisions without addressing them in the reasoning. When I criticise the decision, I do not mean that the ECtHR was mistaken about the conclusion that the Hungarian rules on the representation of minorities in parliament are in breach of the Convention. Instead, such a finding should have been based on consistent reasoning and proper knowledge of the Hungarian political system and legislation.

The real problems of the minority electoral system cannot be understood without putting it into context, i.e. without taking into account the fact that the court is examining the rules of an electoral autocracy, in which votes of ethnic Hungarians beyond the border and that of national minorities from Hungary are used to secure the parliamentary majority of the Fidesz-KDNP.  After 2010, the Hungarian authoritarian regime created a strong dependence system for minority self-governments and Hungarian kin-minority organizations. In the case of national minorities, this is largely based on the followings: registration as a national-minority voter is based on self-identification, people belonging to the majority can also decide to register and vote for minority lists. This dysfunction effectively hinders the self-representation of minorities and has a long history in minority self-government elections in Hungary. The operation of minority self-government institutions, their financing and control depend to a significant extent on the government. Minority lists are put together by the minority self-governments. Just an example to illustrate this strong dependence system: the leader of the National Roma Self-government’s list for the 2014 elections was Félix Farkas, a member of Lungo Drom, a Roma political party, being an electoral ally of the Fidesz-KDNP. 

The following post intends to highlight the broader context of the Hungarian electoral rules which might provide a better understanding of the problems of the minority voting system. In this sense, it aims to complement the judgment.

Parliamentary representation of minorities and voters’ free political choice

The Court lacks sufficient knowledge of Hungarian law and the functioning of the political system. When listing the relevant provisions of the constitution, the judgment fails to mention the Article of the Fundamental Law that deals specifically with the parliamentary representation of minorities. Article 2 (2) of the Fundamental Law states: “The participation of national minorities living in Hungary in the work of the National Assembly shall be regulated by a cardinal Act.” Article XXIX (2) which was quoted in the decision deals with the self-governments of national minorities.

The Court’s summary of Hungarian electoral law is misleading, as it states “National minority voters can only vote for the minority list of the national minority they belong to and for single-member district candidates, whereas other voters (emphasis is mine) vote for a candidate in a single-member district and for a party list” (para. 6). In reality, ethnic Hungarians living outside the borders (non-resident Hungarian citizens) cannot vote for individual candidates in single member districts, but only for the party lists. The half vote of non-resident citizens violates the “one person, one vote” principle and that of the equal weight of all votes. This is also problematic because citizenship in constitutional democracies also means equal membership in a political community.

Paragraph 61 also misconstrues Hungarian law when it says that those who have registered as a member of a minority “had neither the choice between different party lists nor any influence on the order in which candidates were elected from the national minority lists.” In fact, everyone is free to choose whether to register as a member of a minority, and may even opt out any time before the polling day in order to vote for the party list. Furthermore, the Court also disregards that it is the minority self-government – elected by members of the minority – that decides on drawing up national lists and determines the candidates as well as their order (for example, in the last parliamentary elections in 2022, the Roma minority self-government decided not to draw up a list). Drawing up the minority list requires the recommendation of at least 1% of the persons registered as voters of the given nationality, but no more than 1500 recommendations. Therefore, unlike in the case of majority voters, minority voters and local minority self-governments decide on the existence and composition of the minority list.

The Court falsely claims that “the number of minority voters belonging to the same national minority in Hungary was not high enough to reach the preferential electoral threshold even if all voters belonging to that national minority were to cast their vote for the respective minority list” (para. 57). The judgment does not address at all what has happened in the last eight years, e.g. that the German minority list gained enough votes to send an MP to the Parliament in both 2018 and 2022. The Court seems to be unaware that the German minority elected an MP who, by the way, used to be a FIDESZ member of a local council before, and has since then voted with the FIDESZ government in almost every question. As the example of the parliamentary representation of the German minority shows, the statement of the Court cannot be generalised to all the 13 recognized national minorities in Hungary.

Furthermore, a legal provision cited by the judgment is later not addressed in the reasoning part. Namely, that any national minority which drew up a national minority list but failed to win a mandate shall be represented by its non-voting spokesperson in the parliament. If the court argues that the current rules of minority voting fail to guarantee real parliamentary representation, it should have also added that the institution of the spokesperson does not constitute genuine representation either.

Secrecy of votes and anonymity

The court finds that the secrecy of the votes had been violated too: “all present in the polling station at the relevant time, especially members of the relevant election commissions, would come to know that the elector had cast a vote for the candidates on the national minority list” (para. 70). The court here finds a real problem, but for the wrong reasons as it explains in the same paragraph: “As is apparent, the arrangement put in place for minority voters allowed for the details of how a national minority voter had cast his or her ballot to be known to everybody, and for information to be gathered about the electoral intention of minority voters as soon as they registered as such” (para. 70). This is simply false. Data on minority affiliation is subject to special protection, so even minority self-governments do not have access to minority voters’ data after the elections, and election documents including ballots are destroyed after the elections. Making the ballots public to everyone would be a serious breach of data protection rules.

In any case, the court’s argumentation on data protection and secrecy is not strengthened by the fact that the Court itself publishes even a number of personal data of the applicant requesting anonymization. The judgment includes the initials of the name of the applicant who requested anonymity and the full name of the other applicant, the applicants’ year of birth and place of residence, the national minority to which they belong, and the minority list they voted for, and also their sex. If one fears the misuse of her/his personal data, it would be desirable if personal data did not appear in the judgment. The data disclosed in the judgment could be used to identify someone, in particular if this person is active in minority public life, given that he is from a very small national community. The obvious point of anonymity would be to delete the personal data altogether.

Judge Ktistakis argues confusingly in his partly dissenting opinion that the applicants should have been awarded non-pecuniary damages. One of his arguments is that the Armenian applicant requested anonymity and the court’s reluctance to make an award for non-pecuniary damage is likely to discourage him and other members of the Armenian minority from fighting for law enforcement. However, members of minorities can fear from publicity in general, both in the context of voting and in the context of litigation, i.e. there is no necessary correlation between the two types of fears. It is unclear why anonymity is a relevant factor in awarding damages in this case. If the Court finds the same human rights violation in relation to the Armenian and Greek applicants, it cannot make a difference between them whether they are awarded non–pecuniary damages or not.

Lack of reasoning regarding the violation of discrimination

Furthermore, the Joint Concurring Opinion of Judges Bošnjak and Derenčinović rightly criticises the judgment because of “the almost complete lack of reasoning” regarding violation of Article 14 (para. 1). The court’s reasoning links the violation of the prohibition of discrimination to the electoral threshold for minorities and to wasted votes in a way that is difficult to follow. According to the law, the threshold for candidates on minority lists is one-quarter of that of ordinary party lists. As the concurring opinion states: “Indeed, the system as it now stands does not guarantee the political representation of minorities in the form of a seat in Parliament. However, this is not a requirement under the relevant international standards” (para. 7). Minority representation is difficult to be established without preferential parliamentary threshold, since it is difficult to argue, for example, that two minority voters or a hundred minority voters, even if active politically, should have parliamentary representation. A regulation that requires a certain number of votes from minorities to reach the parliamentary threshold is of much less concern than representation regardless of the number of votes. In the case of preferential parliamentary representation, the minority should by definition achieve less votes than the majority, but a legitimate differentiation is essentially a national-political decision.

Finally, the argument that the preferential representation of national minorities would be in violation of the prohibition of discrimination is particularly surprising because this type of parliamentary representation which exists mainly in Eastern and Central Europe, was introduced by these countries to comply with international standards (e.g. article 15 of the Framework Convention for the Protection of National Minorities) under pressure from the European institutions, including the Council of Europe.

In a previous electoral case from Hungary (Application no. 48145/14 Zsófia Vámos against Hungary) in 2015, the Court examined the rules of voting from abroad, and it did not find any violation of the Convention. The challenged rules grant the possibility to vote by post only for ethnic Hungarians residing beyond the border, but not for Hungarians working and living abroad while keeping a permanent address in Hungary, these latter ones are not eligible to cast their ballots by mail, but only at – often far away – embassies/consulates. While the Court argued that “having a permanent address in the country is an objective criterion” and a difference in treatment pursues the “legitimate aim of organising the voting system in a rational manner” (para. 19), it again failed to take into account the legal and political environment. Namely, that the current system of postal voting was introduced to secure the parliamentary majority of the incumbent government, and it lacks transparency and prone to electoral fraud in several ways. While the overwhelming majority of ethnic Hungarians beyond the border vote for FIDESZ, Hungarians working mainly in Western countries, who can cast their ballots only in embassies, are not (in the 2014 elections Fidesz-KDNP gained 95.5 percent of voters of ethnic Hungarians beyond the borders). Taking all these into account would have resulted in the finding that the system of voting from abroad violates the prohibition of discrimination on the basis of political opinion.

Conclusion

Every judicial body is expected to be able to find the relevant legislation and interpret it properly. If a court aspires to be a European Constitutional Court as the conscience of Europe, it is important that this ambition is matched by high quality judgments, even in cases where the electoral rules of an electoral autocracy are being decided on.