Partei Die Friesen v. Germany: Federalism trumps uniform protection of national minority rights

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.

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Scoppola v. Italy (no. 3): The Grand Chamber faces the “constitutional justice vs. individual justice” dilemma (but it doesn’t tell)

This guest post was written by Cesare Pitea, Researcher in International Law (Faculty of Law) and Assistant Professor of Interational Law (Faculty of Political Science), University of Parma (Italy).


1.       Judging in a Heated Political Context

In the Scoppola  v. Italy (no. 3) judgment ([GC], no. 126/05, 22 May 2012),  the third chapter of the “Scoppola Saga” (See Scoppola v. Italy, no. 50550/06, 10 June 2008 and Scoppola v. Italy (no. 2) [GC], no. 10249/03, 17 September 2009), the Grand Chamber of the European Court of Human Rights (the Court) had the chance of reassessing the issue of  prisoners’ deprivation of the right to vote under Art. 3 of Prot. No. 1. Indeed, the 2004 Grand Chamber judgment in Hirst v. the United Kingdom (no. 2) ([GC], no. 74025/01, 30 March 2004) on this very same subject had caused an heated debate between defenders of national sovereignty and subsidiarity (see Lord Hoffman’s critical remarks here) and supporters of a more effective and incisive international judicial review by the Court, causing  an on-going (see the post by L. Peroni and M. Burbergs) tension between the Court and one of its “founding fathers”, the United Kingdom. Echoes of this controversy have recently been heard in Brighton, where at the High-level conference convened by the British Government, the idea of narrowing the Court’s powers of review – inter alia by introducing the notion of the margin of appreciation in the text of the Convention – was initially flagged (see the UK Draft Brighton Declaration) and finally dropped (see the adopted Brighton Declaration).

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Hirst Strongly Resonates in Greens … and in Latvia

In what some have considered a “blunt ultimatum”, the Court has just given the United Kingdom a six-month deadline to introduce legislative proposals to amend its laws banning prisoners from voting. At the basis of the Court’s decision, is the government’s 5-year failure to execute the Grand Chamber judgment in Hirst (No. 2), the case concerning prisoners’ voting rights.

The lengthy delay to implement the Hirst judgment, the Court said this week in Greens and M.T. v. the United Kingdom, has resulted in around 2,500 new applications currently pending before the Court. The Court has warned that the number continues to grow with each election that passes noting that there are approximately 70,000 serving prisoners in the UK at any one time, all of whom are potential applicants. So at stake is not only the state’s responsibility under the Convention but also – and more fundamentally – the future effectiveness of the system which the Court rightly views as threatened by the UK government’s continuing non-compliance. Continue reading

A Strasbourg victory for the mentally disabled

The Strasbourg Court (Second Section) came out with a landmark judgment yesterday; Kiss v. Hungary. The applicant, Mr. Kiss, suffers from manic depression. Due to this condition he was placed under partial guardianship in 2005. In 2006, with the elections coming up, he realized that the Hungarian law forbade him to vote, as all persons put under (partial or complete) guardianship were disenfranchised. The Court holds that article 3 of Protocol 1 (right to free elections) is violated.

Kiss v. Hungary is a great case for a few reasons. To begin, this is the first time the Court refers to the recent United Nations Convention on the Rights of Persons with Disabilities (“the Disability Convention”). Thus the door is opened for further and more intensive use of this recent Convention. This will undoubtedly gladden all the proponents of a disability-sensitive case law.

But the part the Court’s reasoning that excites me the most is where they explicitly condemn the stereotyping indulged in by the Hungarian legislators. To my knowledge – and I readily admit I haven’t done thorough research on this topic yet – this is the first case where the Court explicitly employs an anti-stereotyping approach in a disability-context. Even though scholars, like Michael Perlin, have maintained for years that stereotypes pollute all aspects of disability law. Continue reading

Tănase v. Moldova: multiple readings of a case concerning multiple nationality

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. Continue reading

Prisoners’ voting rights and the rule of law

Once again, the Court has been called upon to decide on a case regarding prisoners’ disenfranchisement. In Frodl v. Austria, the applicant, convicted of murder and sentenced to life imprisonment, was denied inclusion in the electoral register on the basis of Section 22 of the National Assembly Election Act which provides that ‘anyone who has been convicted by a domestic court of one or more criminal offences committed with intent and sentenced with final effect to a term of imprisonment of more than one year shall forfeit the right to vote.’

In 2005, the Court had ruled against a blanket restriction on prisoners’ voting rights in Hirst v. the United Kingdom (no. 2). In finding a breach of Article 3 of Protocol No. 1, the Court emphasized that the disenfranchisement in the United Kingdom was a “blunt instrument” applied to all convicted prisoners, irrespective of the length of their sentences and irrespective of the nature or gravity of their offences and their individual circumstances.

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