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GRAND
CHAMBER
CASE OF SITAROPOULOS AND GIAKOUMOPOULOS v. GREECE
(Application
no. 42202/07)
JUDGMENT
STRASBOURG
15 March
2012
This
judgment is final but may be subject to editorial revision.
In the case of Sitaropoulos and Giakoumopoulos v. Greece,
The
European Court of Human Rights, sitting as a Grand
Chamber composed of:
Nicolas
Bratza,
President,
Jean-Paul
Costa,
Françoise
Tulkens,
Josep
Casadevall,
Boštjan
M. Zupančič,
Lech
Garlicki,
Egbert
Myjer,
David
Thór Björgvinsson,
Ján
Šikuta,
Ineta
Ziemele,
Luis
López
Guerra,
Nona
Tsotsoria,
Ann
Power,
Zdravka
Kalaydjieva,
Vincent
A. de Gaetano,
Angelika
Nußberger,
judges,
Spyridon
Flogaitis,
ad hoc judge,
and
Johan Callewaert,
Deputy
Grand Chamber Registrar,
Having
deliberated in private on 4 May 2011 and on 18 January 2012,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 42202/07)
against the Hellenic Republic lodged with the Court
under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by
three Greek nationals, Mr
Nikolaos Sitaropoulos, Mr Stephanos Stavros and Mr Christos
Giakoumopoulos (“the applicants”),
on 20 September 2007.
- The
applicants were represented by Mr Y. Ktistakis, a member of the
Athens Bar. The Greek Government (“the Government”)
were represented by their Agent’s Delegates, Ms K.
Paraskevopoulou, Adviser at the State Legal Council, and Ms Z.
Hatzipavlou, Legal Assistant at the State Legal Council.
- The
applicants alleged that their inability to vote from their place of
residence amounted to disproportionate interference with the exercise
of their right to vote in parliamentary elections enshrined in
Article 3 of Protocol No. 1.
4. The
application was allocated to the First Section of the Court (Rule 52
§ 1 of the Rules of Court). Christos Rozakis, the judge elected
in respect of Greece, withdrew from sitting in the case. The
Government accordingly appointed Spyridon Flogaitis to sit as an ad
hoc judge (former Article 27 § 2 of the
Convention, and Rule 29 § 1).
5. On
8 July 2010 a Chamber of that Section, composed of Nina Vajić,
President, Anatoly Kovler, Elisabeth Steiner, Khanlar Hajiyev,
Dean Spielmann, Sverre Erik Jebens, judges, and Sypridon
Flogaitis, ad hoc judge,
and also of Søren Nielsen, Section Registrar, delivered a
judgment in which it decided to strike the application out of the
list of cases in respect of the second applicant. The Chamber held,
by five votes to two, that the application was admissible in respect
of the first and third applicants and that there had been a violation
of Article 3 of Protocol No. 1 to the Convention.
- On
22 November 2010, following a request from the Government dated 7
October 2010, a panel of the Grand Chamber decided to refer the case
to the Grand Chamber under Article 43 of the Convention.
7. The
composition of the Grand Chamber was determined according to the
provisions of Article 26 §§ 4 and 5 of the Convention and
Rule 24.
8. The
applicants and the Government each filed written observations (Rule
59 § 1), as did the Hellenic League for Human Rights, which had
been given leave by the President to intervene in the written
procedure (Article 36 § 2 of the Convention and Rule 44 §
3).
9. A
hearing was held in public in the Human Rights Building, Strasbourg,
on 4 May 2011 (Rule 59 § 3).
There appeared before the Court:
(a) for the respondent Government
Ms K.
Paraskevopoulou, Adviser, State Legal Council,
Ms Z. Hatzipavlou,
Legal Assistant, State
Legal Council, Agent’s Delegates;
(b) for the applicants
Mr I. Ktistakis,
lawyer, Counsel;
Ms A. Terzis, lawyer, Adviser.
The
Court heard addresses by Mr Ktistakis and Ms Hatzipavlou.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicants were born in 1967 and 1958 respectively
and live in Strasbourg. They are officials of the Council of Europe.
- By
Presidential Decree no. 154/2007 of 18 August 2007, the Greek
Parliament was dissolved and a general election was called for
16 September 2007.
- In
a faxed letter dated 10 September 2007 to the Greek Ambassador in
France, the applicants, who are permanently resident in France,
expressed the wish to exercise their voting rights in France in the
elections to be held on 16 September 2007.
- On
12 September 2007 the Ambassador, relying on the instructions and
information provided by the Ministry of the Interior, replied as
follows:
“[The Greek State] confirms its wish –
frequently expressed at the institutional level – to enable
Greek citizens resident abroad to vote from their place of residence.
However, it is clear that this necessitates statutory rules which do
not currently exist. In fact, such rules cannot be introduced by a
simple administrative decision, as special measures are required for
the setting-up of polling stations in embassies and consulates ... In
the light of the above and despite the wish expressed by the State,
your request concerning the forthcoming elections cannot be granted
for objective reasons.”
- The
general election took place on 16 September 2007. The applicants, who
did not travel to Greece, did not exercise their right to vote.
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE
A. Domestic law and practice
1. The Greek Constitution of 1975
- The
relevant provisions of the Constitution read as follows:
Article 1
“ ...
2. Popular sovereignty shall be the
foundation of government.
3. All powers shall derive from the people
and exist for the people and the nation; they shall be exercised as
specified by the Constitution.”
Article 51 (before the 2001 revision of the
Constitution)
“1. The number of members of Parliament
shall be defined by law. It shall not be below two hundred or above
three hundred.
2. The members of Parliament shall represent
the nation.
3. The members of Parliament shall be elected
through direct universal suffrage and by secret ballot, by those
citizens who have the right to vote, as specified by law. The law
shall not curtail citizens’ right to vote except in cases where
the statutory minimum age has not been attained, in cases of legal
incapacity or in connection with a final criminal conviction for
certain offences.
4. Parliamentary elections shall be held
simultaneously throughout the country.
The conditions governing
the exercise of the right to vote by persons outside the country may
be specified by statute.
5. The exercise of the right to vote shall be
mandatory. Exceptions and criminal sanctions shall be specified in
each case by law.”
Article 54
“1. The electoral system and
constituencies shall be specified by a law which will apply to the
elections immediately following the forthcoming elections unless an
explicit provision, adopted by a majority of two thirds of the total
number of members of Parliament, stipulates that it is to apply as of
the forthcoming elections.
2. The number of members of Parliament
elected in each constituency shall be specified by presidential
decree on the basis of the population of the constituency for legal
purposes, derived, according to the latest census, from the number of
persons registered on the relevant municipal rolls, as provided for
by law. The results of the census for this purpose shall be those
published on the basis of the data held by the relevant department
one year after the last day of the census.
3. Part of the Parliament, comprising not
more than one twentieth of the total number of its members, may be
elected on a uniform nationwide basis in proportion to the total
votes won by each party throughout the country, as specified by law”.
Article 108
“1. The State must be attentive to the
situation of emigrant Greeks and to the maintenance of their ties
with the Homeland. The State shall also attend to the education and
the social and professional advancement of Greeks working outside the
State.
2. The law shall lay down arrangements
relating to the organisation, operation and competences of the World
Council of Hellenes Abroad, whose mission is to allow the full
expression of Hellenism worldwide.”
The
second paragraph of Article 108 was added during the 2001 revision of
the Constitution.
- In
2001, Article 51 § 4 was amended as follows:
“4. Parliamentary elections shall be
held simultaneously throughout the country. The conditions governing
the exercise of the right to vote by persons living outside the
country may be specified by statute, adopted by a majority of two
thirds of the total number of members of Parliament. Concerning such
persons, the principle of holding elections simultaneously does not
rule out the exercise of their right to vote by postal vote or other
appropriate means, provided that the counting of votes and the
announcement of the results are carried out at the same time as
within the country.”
2. The electoral legislation in force at the material
time
- At the time of the parliamentary elections in issue,
Presidential Decree no. 96/2007, which was the electoral legislation
then in force, provided as follows:
Article 4 – Right to vote
“1. Any Greek national aged 18 or over
shall be entitled to vote. ...”
Article 5 – Forfeiture of the right
“The following persons shall lose the right to
vote:
(a) persons who have been placed under
guardianship, in accordance with the provisions of the Civil Code;
(b) persons whose final conviction for one of
the offences provided for in the Criminal Code or the Military
Criminal Code is accompanied by a measure disqualifying them from
voting for the duration of their sentence.”
Article 6 – Exercise of the right
“1. The right to vote in a constituency
shall be reserved to those persons registered on the electoral roll
of a municipality or local authority area within that constituency.
2. The exercise of the right to vote shall be
mandatory.”
3. Bill entitled “Exercise of the right to vote
in parliamentary elections by Greek voters living abroad”
- The
report on this Bill placed before Parliament by the Ministers of the
Interior, Justice and the Economy on 19 February 2009 indicated that
the purpose of the Bill was to fulfil “one of the Government’s
major historical obligations, one which undeniably reinforces Greek
expatriates’ ties with the homeland”. The report stated
that voting rights for Greek nationals living abroad arose out of
both Article 108 and Article 51 § 4 of the Constitution. It
pointed out in particular that Article 108 “affords Greek
expatriates a ‘social right’. This provision obliges the
Greek State to take all necessary measures to maintain Greek
expatriates’ ties with Greece, to ensure that they have access
to Greek education and to make provision, as a matter of State duty,
for the social and professional advancement of Greeks working outside
Greece. Regulating the conditions for the exercise by Greek
expatriates of their right to vote in Greek parliamentary elections
will undeniably contribute to real ties being forged between Greek
expatriates and their homeland”. Moving on to the
constitutional provision on this specific subject, namely Article 51
§ 4, the report characterised the statute to which that Article
referred as a law implementing the Constitution. Lastly, the report
considered that “in these times of globalisation, it is
self-evident that Greek expatriates should have a decisive say in the
development of their own country”.
- The
Scientific Council (Επιστημονικό
Συμβούλιο)
of Parliament is a consultative body reporting to the Speaker of
Parliament. It comprises ten members, including professors of law,
political science, economics, statistics and information technology
and an expert in international relations. It produced a report dated
31 March 2009 on the aforementioned Bill. The report noted that, in
the past, some legal authorities had argued that Article 51 § 4
of the Constitution imposed upon the legislature an obligation to
permit expatriate Greeks to exercise the right to vote from outside
Greece. However, referring to other legal authorities and to the
preparatory work for Article 51 § 4 of the Constitution, it
asserted that it was an option rather than a duty for the legislature
to permit the exercise of voting rights from abroad. It also took the
view that the optional nature of the aforementioned provision of the
Constitution had not been affected by the 2001 constitutional
revision.
- On
7 April 2009 the Bill was rejected by Parliament since it failed to
secure the majority of two thirds of the total number of members of
Parliament required under Article 51 § 4 of the Constitution.
The members of Parliament, especially those on the opposition
benches, referred in particular to the number of Greek citizens
living abroad compared with the numbers resident in Greece, and to
the implications this would have for the composition of the
legislature.
B. International law and practice
1. Texts adopted by the Parliamentary Assembly of the
Council of Europe
- The
relevant texts adopted by the Parliamentary Assembly of the Council
of Europe read as follows:
(a) Resolution 1459 (2005) of the
Parliamentary Assembly of the Council of Europe
“ ...
2. In accordance with the opinion of the European
Commission for Democracy through Law (Venice Commission) adopted in
December 2004, [the Parliamentary Assembly] ... invites the member
and observer states of the Organisation to reconsider all existing
restrictions to electoral rights and to abolish all those that are no
longer necessary and proportionate in pursuit of a legitimate aim.
3. The Assembly considers that, as a rule, priority
should be given to granting effective, free and equal electoral
rights to the highest possible number of citizens, without regard to
their ethnic origin, health, status as members of the military or
criminal record. Due regard should be given to the voting rights of
citizens living abroad.
...
7. Given the importance of the right to vote in a
democratic society, the member countries of the Council of Europe
should enable their citizens living abroad to vote during national
elections bearing in mind the complexity of different electoral
systems. They should take appropriate measures to facilitate the
exercise of such voting rights as much as possible, in particular by
considering absentee (postal), consular or e-voting, consistent with
Recommendation Rec(2004)11 of the Committee of Ministers to member
states on legal, operational and technical standards for e voting.
Member states should co-operate with one another for this purpose and
refrain from placing unnecessary obstacles in the path of the
effective exercise of the voting rights of foreign nationals residing
on their territories.
...
11. The Assembly therefore invites:
i. the Council of Europe member and observer states
concerned to:
...
b. grant electoral rights to all their citizens
(nationals), without imposing residency requirements;
c. facilitate the exercise of expatriates’
electoral rights by providing for absentee voting procedures (postal
and/or consular voting) and considering the introduction of e-voting
consistent with Recommendation Rec(2004)11 of the Committee of
Ministers and to co-operate with one another to this end;
...”
(b) Recommendation 1714 (2005) of the
Parliamentary Assembly of the Council of Europe – Abolition of
restrictions on the right to vote
“1. Referring to its Resolution 1459 (2005) on the
abolition of restrictions on the right to vote, the Parliamentary
Assembly calls upon the Committee of Ministers to:
i. appeal to member and observer states to:
a. sign and ratify the 1992 Council of Europe
Convention on the Participation of Foreigners in Public Life at Local
Level (ETS No. 144) and to grant active and passive electoral rights
in local elections to all legal residents; and
b. reconsider existing restrictions on electoral
rights of prisoners and members of the military, with a view to
abolishing all those that are no longer necessary and proportionate
in pursuit of a legitimate aim;
ii. invite the competent services of the Council of
Europe, in particular the European Commission for Democracy through
Law (Venice Commission) and its Council for Democratic Elections, to
develop their activities aimed at improving the conditions for the
effective exercise of election rights by groups facing special
difficulties, such as expatriates, prison inmates, persons who have
been convicted of a criminal offence, residents of nursing homes,
soldiers or nomadic groups;
iii. review existing instruments with a view to
assessing the possible need for a Council of Europe convention to
improve international co-operation with a view to facilitating the
exercise of electoral rights of expatriates.”
2. Texts adopted by the European Commission for
Democracy through Law (“the Venice Commission”)
(a) Code of Good Practice in Electoral
Matters (Opinion no. 190/2002)
- The
Code states that “the right to vote and to be elected may be
accorded to citizens residing abroad” (point I.1.1.c.v.). The
explanatory report makes the following indication in this regard:
“... the right to vote and/or the right to stand
for election may be subject to residence requirements, residence in
this case meaning habitual residence. ... Conversely, quite a few
states grant their nationals living abroad the right to vote, and
even to be elected. This practice can lead to abuse in some special
cases, e.g. where nationality is granted on an ethnic basis.”
- The
other relevant parts of the Code provide:
“ ...
3.2 Freedom of voters to express their wishes and
action to combat electoral fraud
i. voting procedures must be simple;
ii. voters should always have the possibility of voting
in a polling station. Other means of voting are acceptable under the
following conditions:
iii. postal voting should be allowed only where the
postal service is safe and reliable; the right to vote using postal
votes may be confined to people who are in hospital or imprisoned or
to persons with reduced mobility or to electors residing abroad;
fraud and intimidation must not be possible;
iv. electronic voting should be used only if it is safe
and reliable; in particular, voters should be able to obtain a
confirmation of their votes and to correct them, if necessary,
respecting secret suffrage; the system must be transparent;
v. very strict rules must apply to voting by proxy; the
number of proxies a single voter may hold must be limited;
...”
(b) 2006 report on electoral law and
electoral administration in Europe (Study no. 352/2005)
- The
report notes, among other things, the following:
“Voting rights for citizens abroad
57. External voting rights, e.g. granting nationals
living abroad the right to vote, are a relatively new phenomenon.
Even in long-established democracies, citizens living in foreign
countries were not given voting rights until the 1980s (e.g. Federal
Republic of Germany, United Kingdom) or the 1990s (e.g., Canada,
Japan). In the meantime, however, many emerging or new democracies in
Europe have introduced legal provisions for external voting
(out-of-country voting, overseas voting). Although it is yet not
common in Europe, the introduction of external voting rights might be
considered, if not yet present. However, safeguards must be
implemented to ensure the integrity of the vote ... .
...
152. Postal voting is permitted in several established
democracies in Western Europe, e.g. Germany, Ireland, Spain,
Switzerland ... . It was also used, for example, in Bosnia and
Herzegovina and the Kosovo in order to ensure maximum inclusiveness
of the election process (CG/BUR (11) 74). However, it should be
allowed only if the postal service is secure and reliable. Each
individual case must be assessed as to whether fraud and manipulation
are likely to occur with postal voting.
...”
(c) 2010 report on out-of-country voting
(Study no. 580/2010)
- The
conclusions of this report read as follows:
“91. National practices regarding the right to
vote of citizens living abroad and its exercise are far from uniform
in Europe.
92. However, developments in legislation, such as the
judgment delivered recently by the European Court of Human Rights in
a case concerning Greece, which is not yet final, point to a
favourable trend in out-of-country voting, in national elections at
least, as regards citizens who have maintained ties with their
country of origin.
93. That is true at least of persons who are temporarily
out of the country. But definitions of the temporary nature of a stay
abroad vary greatly and if this criterion is adopted, it should be
clarified.
94. Distinctions should also be drawn according to the
type of elections. National, single-constituency elections are easier
to open up to citizens resident abroad, while local elections are
generally closed to them, particularly on account of their tenuous
link with local politics.
95. The proportions of citizens living out of the
country may also vary greatly from one country to another. When there
are a large number of them, they may have a decisive impact on the
outcome of the election, which may justify the implementation of
specific measures.
96. It is perfectly legitimate to require voters living
abroad to register to be able to vote, even if registration is
automatic for residents.
97. The obligation to vote in an embassy or consulate
may in practice severely restrict the right to vote of citizens
living abroad. This restriction may be justified on the grounds that
the other means of voting (postal vote, proxy voting, e-voting) are
not always reliable.
98. To sum up, while the denial of the right to vote to
citizens living abroad or the placing of limits on that right
constitutes a restriction of the principle of universal suffrage, the
Commission does not consider at this stage that the principles of the
European electoral heritage require the introduction of such a right.
99. Although the introduction of the right to vote for
citizens who live abroad is not required by the principles of the
European electoral heritage, the European Commission for Democracy
through Law suggests that states, in view of citizens’ European
mobility, and in accordance with the particular situation of certain
states, adopt a positive approach to the right to vote of citizens
living abroad, since this right fosters the development of national
and European citizenship.”
3. International Covenant on Civil and Political Rights
- The
right to vote is enshrined in Article 25 of the Covenant, the
relevant parts of which read as follows:
“Every citizen shall have the right and the
opportunity, without any of the distinctions mentioned in article 2
and without unreasonable restrictions:
...
(b) To vote and to be elected at genuine periodic
elections which shall be by universal and equal suffrage and shall be
held by secret ballot, guaranteeing the free expression of the will
of the electors;
...”
During
the drafting of the General Comment on Article 25 of the Covenant,
which was published on 12 July 1996 by the Human Rights Committee
(HRC), a proposal was made calling on States to enable their
nationals residing overseas to make use of absentee postal voting
systems where such systems were available. However, as the HRC could
not agree on the proposal, it was not included in the General
Comment.
4. American Convention on Human Rights
- Article
23 of the American Convention on Human Rights provides as follows:
“1. Every citizen shall enjoy the following rights
and opportunities:
a. to take part in the conduct of public affairs,
directly or through freely chosen representatives;
b. to vote and to be elected in genuine periodic
elections, which shall be by universal and equal suffrage and by
secret ballot that guarantees the free expression of the will of the
voters; and
c. to have access, under general conditions of equality,
to the public service of his country.
2. The law may regulate the exercise of the rights and
opportunities referred to in the preceding paragraph only on the
basis of age, nationality, residence, language, education, civil and
mental capacity, or sentencing by a competent court in criminal
proceedings.”
- The
right to vote under Article 23 is not absolute and may be subject to
restrictions on the grounds expressly laid down in the second
paragraph, which include “residence”. However, not every
restriction of the right to vote based on residence is justified.
- In
the case Statehood Solidarity Committee v. United States
(Case 11.204, Report no. 98/03 of 29 December 2003), the
Inter-American Commission on Human Rights held that the approach to
the interpretation and application of the right guaranteed under
Article 23 of the American Convention was consistent with the
case-law of the other international systems of human rights
protection whose treaties provided similar guarantees. It referred in
that regard to the case-law of the European Court of Human Rights and
the UN Human Rights Committee:
“93. ... Like the European Court and this
Commission, the UN Human Rights Committee has recognized that the
rights protected under Article 25 of the ICCPR are not absolute, but
that any conditions that apply to the right to political
participation protected by Article 25 should be based on ‘objective
and reasonable criteria’. The Committee has also found that in
light of the fundamental principle of proportionality, greater
restrictions on political rights require a specific justification.
...”
5. Human rights protection system based on the African
Charter
- Article
13 § 1 of the African Charter on Human and Peoples’ Rights
is worded as follows:
“1. Every citizen shall have the right to
participate freely in the government of his country, either directly
or through freely chosen representatives in accordance with the
provisions of the law.”
- Taking
the view that this provision was similar in substance to Article 25
of the International Covenant, the African Commission on Human and
Peoples’ Rights interpreted Article 13 of the Charter in the
light of the Human Rights Committee’s General Comment on
Article 25. It therefore held that any conditions applicable to the
exercise of Article 25 rights should be based on objective and
reasonable criteria established by law (see Purohit and Moore v.
The Gambia, Communication No. 241/2001, § 76).
C. Comparative law
- According
to the comparative-law materials available to the Court on the
legislation of member States of the Council of Europe concerning the
right to vote from abroad, the majority of the countries concerned
authorise and have implemented procedures to allow their nationals
resident abroad to vote in parliamentary elections. However, the
situation varies greatly and the different scenarios do not lend
themselves to classification into neat categories. A distinction can
nevertheless be made between two broad categories: those member
States which permit their citizens to vote from abroad, on the basis
of a variety of arrangements, and those which, as a general rule, do
not. Lastly, most of the member States which allow voting from abroad
lay down administrative procedures for the registration of
expatriates on the electoral roll.
1. Arrangements for voting from abroad in the countries
which authorise it in principle
- Thirty-seven
member States fall into this category: Austria, Belgium, Bosnia and
Herzegovina, Bulgaria, Croatia, the Czech Republic, Denmark, Estonia,
Finland, France, Georgia, Germany, Hungary, Iceland, Italy, Latvia,
Liechtenstein, Lithuania, Luxembourg, Moldova, Monaco, the
Netherlands, Norway, Poland, Portugal, Romania, Russia, Serbia,
Slovakia, Slovenia, Spain, Sweden, Switzerland, “the former
Yugoslav Republic of Macedonia”, Turkey, Ukraine and the United
Kingdom.
- The
above-mentioned countries provide either for voting in polling
stations abroad or postal voting, or both. The following seventeen
countries allow voting in embassies or consulates or in polling
stations set up elsewhere: Bulgaria, Croatia, the Czech Republic,
Denmark, Finland, France, Georgia, Hungary, Iceland, Moldova, Norway,
Poland, Romania, Russia, Serbia, “the former Yugoslav Republic
of Macedonia” and Ukraine.
Eight
countries (Austria, Germany, Italy, Liechtenstein, Luxembourg, the
Netherlands, Portugal and Slovakia) allow their citizens living
abroad to vote by post only, either through an embassy or consulate
or by writing directly to the competent national authority. The
possibility of voting either at an embassy (or consulate) or by post
is provided for in Belgium, Bosnia and Herzegovina, Estonia, Latvia,
Lithuania, Slovenia, Spain and Sweden. A handful of countries –
Belgium, France, the Netherlands, Switzerland and the United Kingdom
– also allow voting by proxy. In Monaco, proxy voting is the
sole means by which nationals of that country can vote from abroad.
A few
States (the Netherlands and Switzerland) allow Internet voting. This
type of voting is already enshrined in law and in operation in
Estonia, while it is under consideration in Spain.
- In
five member States (Bosnia and Herzegovina, Denmark, Hungary,
Liechtenstein and “the former Yugoslav Republic of Macedonia”),
only persons temporarily resident outside the country have the right
to vote from abroad. In the last-mentioned country, the law refers
explicitly to persons living and working abroad temporarily. In some
countries, expatriates lose the right to vote after a certain period
of time (fifteen years in the United Kingdom and twenty-five years in
Germany).
- Certain
countries such as Austria, Hungary, Slovenia and Ukraine allow
external voting only with the permission of the host country.
- In
four countries – Croatia, France, Italy and Portugal –
expatriates may elect their own representatives to the national
parliament in constituencies set up outside the country. In Portugal,
each of the two constituencies elects a member of Parliament. French
citizens living abroad participate in the election of twelve members
of the Senate via the 150 strong Assembly of French Expatriates.
From 2012, they will also be able to elect eleven members to the
National Assembly. In Croatia and Italy, the number of parliamentary
seats allocated to expatriate constituencies depends on the number of
votes cast.
2. Countries which do not grant the right to vote from
abroad or impose significant restrictions on it
- Eight
member States – Albania, Andorra, Armenia, Azerbaijan, Cyprus,
Malta, Montenegro and San Marino – do not allow voting from
abroad in parliamentary elections. In particular, in Albania, the
electoral code in force contains no provisions concerning voting from
abroad. In Ireland, strict rules are laid down, with postal voting
for expatriates being confined to members of the police and armed
forces and to Irish diplomats and their spouses. The right is
therefore limited to a specific, very small group of individuals.
Under the legislation in Montenegro and San Marino, persons resident
abroad may vote only in their own country.
3. Administrative procedures for registration of
expatriates on the electoral roll
- In
at least twenty-two of the member States which allow voting from
abroad, persons wishing to avail themselves of this facility must
apply by a certain deadline to be registered on the electoral roll,
either to the authorities in their country of origin or to the
diplomatic or consular mission abroad.
- In
Bosnia and Herzegovina an application for registration must be made
before each election to the country’s central electoral
commission. In Denmark, persons eligible to vote have to submit an
application to the last municipality in which they lived. In Hungary,
voters may request registration at the diplomatic or consular
mission, by filling out an application to the local electoral bureau
within the specified time-limit. In Germany and Luxembourg, the
request must be made to the local authorities. In Slovakia, voters
living abroad must request registration on a special electoral roll
held by the municipal authorities of Bratislava PetrZalka. In
Slovenia, persons voting abroad must notify the national electoral
commission, while in Serbia they must request registration on the
electoral roll as foreign residents. Spanish voters must apply to the
provincial branch of the electoral bureau for registration on the
special list of absentee voters. In the United Kingdom, overseas
voters must re-register each year with their local electoral
registration office.
- In
some countries, the request must be sent to the diplomatic mission or
consulate, which either draws up the list of voters itself or
forwards requests to the competent authority in the country of
origin. Belgian citizens included on the population register held by
the diplomatic mission or consulate must complete a form indicating
the municipality in which they wish to be registered and the voting
method they will use. The form is then sent to the municipality
concerned and the person’s name is added to the list of
expatriate voters.
- In
Bulgaria, the Czech Republic, Poland and Russia, the list of
expatriate voters is drawn up by the diplomatic or consular mission
on the basis of requests from voters. Croatian citizens wishing to
vote abroad must register with the Croatian embassy or consulate.
Latvian voters who wish to vote by post have to apply to the
diplomatic mission or consulate concerned, where they are registered
on a special list. In the Netherlands, expatriates eligible and
wishing to vote must request registration on the electoral roll of
Dutch nationals living abroad by applying to the head of the consular
mission, who forwards the request to The Hague. In Portugal, voting
abroad entails prior registration on a consular list of voters. Swiss
citizens living abroad must apply to the diplomatic or consular
mission with which they are registered. The application is forwarded
to the municipality in which the person concerned habitually voted,
and he or she is registered on the electoral roll there. In “the
former Yugoslav Republic of Macedonia” expatriate voters are
registered on the country’s electoral roll after applying to
the diplomatic mission or consulate. In Turkey, expatriate voters
must register on a special electoral roll by submitting a declaration
of residence to the nearest consulate.
- In
other countries, expatriate voters do not have to complete any
formalities in order to register, as the authorities register them
automatically on the basis of the existing lists of voters. This is
the case in Estonia, Finland, France, Georgia, Iceland, Italy,
Lithuania, Moldova, Norway, Romania, Sweden and Ukraine. Voters who
are not on the electoral roll may register on request (for instance
in France, Georgia, Italy and Ukraine).
- In
Iceland, voters must re-register on the national electoral roll after
eight years’ residence abroad; in Norway and Sweden, the
time-limit is ten years.
- In
some countries which have automatic registration expatriates must
complete certain formalities in order to vote in their country of
origin. For instance, Italian voters resident abroad who wish to vote
in Italy must inform the relevant consular authority in writing.
French expatriates must request registration on the electoral roll in
France if they wish to vote there.
THE LAW
ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL No. 1
- The
applicants alleged that their inability to vote from their place of
residence amounted to disproportionate interference with the exercise
of their right to vote in the 2007 parliamentary elections, in breach
of Article 3 of Protocol No. 1, which provides:
“The High Contracting Parties undertake to hold
free elections at reasonable intervals by secret ballot, under
conditions which will ensure the free expression of the opinion of
the people in the choice of the legislature.”
A. The Chamber judgment
- In
its judgment of 8 July 2010 the Chamber held that there had been a
violation of Article 3 of Protocol No. 1 to the Convention. It took
the view that the present case did not concern the recognition of the
applicants’ right to vote as such, which was already recognised
under the Greek Constitution, but rather the conditions governing the
exercise of that right by Greek nationals living abroad. On this
point the Chamber noted that Article 51 § 4 of the Greek
Constitution, adopted in 1975 and clarified during the 2001
constitutional revision, empowered the legislature to specify the
conditions in question. Although the applicants still had the option
of travelling to Greece in order to vote, in practice this
complicated significantly the exercise of that right, as it entailed
expense and disruption to their professional and family lives.
- The
Chamber acknowledged that Article 3 of Protocol No. 1 to the
Convention did not impose any obligation to secure voting rights in
parliamentary elections to voters living abroad. However, the
constitutional provision in question (Article 51 § 4) could not
remain inapplicable indefinitely, depriving its content and the
intention of its drafters of any normative value. Thirty-five years
(at the time of the judgment) after the enactment of Article 51 §
4, the Greek legislature had still not given effect to its content.
- The
Chamber also held that the failure to enact legislation giving
practical effect to voting rights for expatriates was likely to
constitute unfair treatment of Greek citizens living abroad –
particularly those living at a considerable distance – in
comparison with those living in Greece, despite the fact that the
Council of Europe had urged member States to enable their citizens
living abroad to participate to the fullest extent possible in the
electoral process. On the basis of a comparative study of the
domestic law in thirty-three member States of the Council of Europe,
the Chamber observed that the great majority had implemented
procedures towards that end, and concluded that Greece fell short of
the common denominator among member States in that regard.
B. The parties’ submissions
1. The applicants
- The
applicants submitted that the right of Greek citizens to vote from
abroad had been first recognised in 1862 in the election of members
to the Second National Assembly, when Greek citizens had been able to
vote from their places of residence abroad. A significant section of
academic opinion on Greek constitutional law, and also the Greek
courts, were of the view that a constitutional provision guaranteeing
a right of such importance as the right to vote could not remain
inapplicable indefinitely. The applicants pointed out in particular
that, when faced with the same issue concerning Article 24 § 6
of the Constitution, which provided for the enactment of a law on
measures restricting ownership rights for the purposes of protecting
the cultural environment and on the manner in which owners were
compensated, the full Supreme Administrative Court had held that, in
so far as the legislature had not enacted the implementing law in
question, “the authorities were under the obligation, arising
directly out of the Constitution, to ensure the continuing protection
of the monument and, simultaneously, to compensate the affected
owner”. In the applicants’ view, the requirement for the
Greek legislature to pass legislation in accordance with Articles 108
and 51 § 4 of the Constitution was binding and not
optional. They submitted that the delay of thirty-six years,
imputable to the Greek State, in giving effect to a specific
provision of the Constitution and making effective the right of
expatriates to vote from abroad amounted to a violation of Article 3
of Protocol No. 1.
- In
the applicants’ view, the stance taken by the Court in Hilbe
v. Liechtenstein ((dec.), no. 31981/96, ECHR 1999 VI)
was not relevant in the instant case. Unlike the applicant in that
case, they were already registered on the electoral roll and their
right to vote was explicitly recognised in domestic law. Hence, they
were not complaining about a restriction on their right to vote as
such, but about the failure to adopt the arrangements needed to give
effect to that right.
- The
applicants stated that they followed political developments in their
country of origin with particular interest and wished to maintain
close ties with Greece. In particular, they pointed out that they
were registered on the electoral roll in Greece, held valid Greek
passports, owned immovable property in Greece on which they paid
income tax and were still authorised to practise as lawyers in
Greece. They maintained that being unable to vote in the Greek
parliamentary elections from their State of residence constituted
interference with their voting rights, in breach of both the Greek
Constitution and the Convention. That interference arose out of the
fact that they would have to travel to Greece in order to exercise
their right to vote. The applicants acknowledged that they could fly
to Samos and Thessaloniki, their respective home towns, for
parliamentary elections. However, that possibility did not alter the
substance of their claim, namely that they would thereby incur
significant expense and that their professional and family life would
be disrupted since they would be obliged to be away from their work
and families for a few days.
- In
the applicants’ view, it was clear from the Council of Europe
instruments, and in particular Parliamentary Assembly Resolution 1459
(2005) and Recommendation 1714 (2005) and the Venice Commission’s
Code of Good Practice in Electoral Matters, that member States were
under an obligation to make the right to vote effective. They noted
that, according to the study to which the Chamber referred in its
judgment of 8 July 2010, at least twenty-nine Council of Europe
member States guaranteed in practice the right of expatriates to vote
from abroad in parliamentary elections.
2. The Government
- The
Government argued that the constitutionally recognised possibility of
enacting legislation governing the exercise of the right to vote by
voters living outside Greece could not be a decisive factor in
determining whether there had been a violation of Article 3 of
Protocol No. 1 in the present case. In particular, they stressed that
Article 51 § 4 of the Constitution, far from imposing
any obligation on the legislature, was optional in nature. Moreover,
the Court’s case-law on Article 3 of Protocol No. 1 recognised
that Contracting States had a wide margin of appreciation when it
came to organising their electoral systems. The Government added
that, in accordance with Article 51 § 4 of the Constitution,
voting arrangements for Greek nationals outside Greece had to be
adopted by a majority of two thirds of Parliament; this confirmed the
need to secure very broad political consensus on the subject in
Greece. Furthermore, the Greek Government had already attempted to
pass a law in 2009 on voting rights for Greek expatriates, a fact
which demonstrated the political will to find a solution to the
problem. In the Government’s view, defining these arrangements
was an extremely complex and delicate political issue. Blanket
recognition of the right of expatriates to vote in parliamentary
elections from their place of residence could give rise to
considerable political and economic problems, not just in Greece but
also in other member States of the Council of Europe.
- The
Government referred to the case-law of the Court and the former
European Commission of Human Rights regarding the compatibility with
Article 3 of Protocol No. 1 of measures making the right to vote
subject to a residence requirement. They contended that, according to
that case-law, imposing such a requirement was justifiable. They
referred to the legitimate concern of the legislature to limit the
influence of citizens living abroad in parliamentary elections, which
focused primarily on issues affecting citizens living in the country.
In the Government’s view, expatriates could not legitimately
argue that they were affected by the decisions of the country’s
political institutions to a greater extent than Greek citizens living
in Greece.
- Referring
in particular to the parliamentary input into the 2001 revision of
the Constitution, the Government observed that the legislation
referred to in Article 51 § 4 of the Constitution continued to
be optional. Although Article 51 § 4 made reference for the
first time to postal voting, the latter was purely optional.
Furthermore, the exercise of postal voting had to comply with the
constitutional principle of simultaneous conduct of parliamentary
elections. The Government also reiterated the reasons for requiring
an enhanced two-thirds majority for enactment of the implementing
legislation referred to in Article 51 § 4 of the Constitution,
namely the need for political consensus in view of the considerable
numbers of Greek citizens living abroad (some 3,700,000 persons
compared with a population of 11,000,000 living in Greece). For
instance, there were around 1,850,000 Greek citizens living in the
United States and some 558,000 in Australia. Hence, according to the
Government, the broadest possible consensus among the political
parties was needed in order to prevent political tensions arising out
of the de facto increase in the electorate.
- The
Government argued that Greek citizens who had their permanent
residence abroad developed social, economic, political and cultural
ties in their host country and that the main centre of their
interests lay there. In addition, any comparison between Greece and
other countries which had granted expatriates the right to vote from
their place of residence had to take into account the specific
features of each case, in particular the number of citizens living
outside their country of origin, the socio-political context in each
country and the electoral system in place.
- The
Government further submitted that the participation of expatriate
Greeks in parliamentary elections could not be compared to the
exercise of the right to vote in elections to the European
Parliament. In the latter case, it was merely a matter of granting
voting rights to a section of expatriate Greeks, namely those
resident in Member States of the European Union, an obligation
arising directly out of European Union law and specifically provided
for in domestic legislation.
- To
sum up, the Government pointed out that the applicants satisfied the
requirements laid down by the electoral legislation for the purposes
of exercising their right to vote in Greece. The issue of granting
expatriates the right to vote from their place of residence fell
within the margin of appreciation of the domestic authorities, who
could decide how and when to grant that right.
3. The third-party intervener
- The
Hellenic League for Human Rights, established in 1953, is the oldest
non-governmental organisation in Greece and a member of the
International Federation for Human Rights. It noted the paradoxical
situation with regard to voting rights for expatriates from their
place of residence. While the right of expatriates to participate in
the political decisions of the “motherland” was not
disputed, the principle in question, which had acquired
constitutional value, appeared to be ineffective: although ten years
had elapsed since the constitutional revision of 2001, the
constitutional requirement to adopt “postal voting” for
Greeks resident abroad had not yet been enforced.
- The
debate on expatriates’ political rights hinged on two opposing
ideas and the majority of positions and practices of States, with
different variants and nuances, fell within the two extremes. The
first was the idea of a political community based entirely on
territory while the second was that of a community beyond territory,
formed by links of solidarity which united the nation. The
third-party intervener cited J. Habermas, according to whom the
notion of the democratic self-determination of a community
“require[d] that those who [were] subject to the law and those
to whom the law [made] reference should consider themselves to be the
creators of the law”. This quotation reflected a notion of the
status of citizen that primarily viewed residence on a territory as
the decisive criterion but took objective account of the fact that it
was not absolutely necessary for individuals to reside on the
territory of a State in order for them to feel that they had vital
links with that State. There was an increasing realisation that “it
[was] possible to live at home and far from home”. This
transnational approach to citizenship rendered obsolete a debate on
voting rights for expatriates based solely on a territorial
understanding of citizenship. The fact that electoral campaigns were
now conducted principally via computer-based social networks (such as
Facebook and Twitter) proved that the argument of “distance”
between the expatriate and his or her country of origin was no longer
as relevant as it had been a few years previously.
- In
the view of the third-party intervener, the response to the dilemma
of whether to grant political rights to expatriates could not be an
“all or nothing” one. There was a need to define an
objective criterion by which to assess whether or not expatriates had
meaningful links with the Greek State and thus decide whether they
should be included in the electorate. The League observed that in
most Member States of the European Union which provided for electoral
rights for expatriates, the usual precondition was registration on
the electoral roll of the State concerned at the embassy or consulate
located in the region in question. Accordingly, the only objectively
reliable criterion for the granting or otherwise of “a postal
vote or other appropriate means” would appear to be whether or
not electoral rolls existed at the overseas consulate. The response
to the demands of the Greek diaspora to participate in Greek
elections should be graduated in order to take account, in a
proportionate and balanced manner, of the way in which the democratic
process in the country of origin influenced the lives of expatriates.
C. The Court’s assessment
1. General principles
- The Court reiterates that Article 3 of Protocol No. 1
enshrines a characteristic principle of an effective political
democracy and is accordingly of prime importance in the Convention
system (see Mathieu Mohin and Clerfayt v. Belgium, 2
March 1987, § 47, Series A no. 113). This Article would
appear at first to differ from the other provisions of the Convention
and its Protocols, as it is phrased in terms of the obligation of the
High Contracting Parties to hold elections under conditions which
will ensure the free expression of the opinion of the people rather
than in terms of a particular right or freedom. However, having
regard to the travaux préparatoires of Article 3 of
Protocol No. 1 and the interpretation of the provision in the context
of the Convention as a whole, the Court has held that it also implies
individual rights, including the right to vote and the right to stand
for election (see Mathieu-Mohin and Clerfayt, cited above, §
51). It has also held that the standards to be applied for
establishing compliance with Article 3 of Protocol No. 1 must be
considered to be less stringent than those applied under Articles 8
to 11 of the Convention (see Zdanoka v. Latvia [GC], no.
58278/00, § 115, ECHR 2006 IV).
- The
concept of “implied limitations” under Article 3 of
Protocol No. 1 is of major importance for the determination of
the relevance of the aims pursued by the restrictions on the rights
guaranteed by this provision (see Mathieu-Mohin and Clerfayt,
cited above, § 52). Given that Article 3 of Protocol No. 1 is
not limited by a specific list of “legitimate aims” such
as those enumerated in Articles 8 to 11 of the Convention, the
Contracting States are free to rely on an aim not contained in such a
list to justify a restriction, provided that the compatibility of
that aim with the principle of the rule of law and the general
objectives of the Convention is proved in the particular
circumstances of a case (see Zdanoka, loc. cit.).
Nevertheless, it is for the Court to determine in the last resort
whether the requirements of Article 3 of Protocol No. 1 have been
complied with; it has to satisfy itself that the conditions to which
the right to vote and the right to stand for election are made
subject do not curtail the rights in question to such an extent as to
impair their very essence and deprive them of their effectiveness;
that they meet the requirements of lawfulness; that they are imposed
in pursuit of a legitimate aim; and that the means employed are not
disproportionate (see Tănase v. Moldova [GC], no. 7/08, §
162, ECHR 2010 (extracts), and Mathieu-Mohin and Clerfayt,
cited above, § 52).
- As
regards, in particular, the choice of electoral system, the Court
reiterates that the Contracting States enjoy a wide margin of
appreciation in this sphere. In that regard, Article 3 of Protocol
No. 1 goes no further than prescribing “free” elections
held at “reasonable intervals” “by secret ballot”
and “under conditions which will ensure the free expression of
the opinion of the people”. Subject to that reservation, it
does not create any “obligation to introduce a specific system”
such as proportional representation or majority voting with one or
two ballots (see Mathieu-Mohin and Clerfayt, cited above, §
54).
- There are numerous ways of organising and running
electoral systems and a wealth of differences, inter alia, in
historical development, cultural diversity and political thought
within Europe which it is for each Contracting State to mould into
its own democratic vision (see Hirst v. the United Kingdom (no. 2)
[GC], no. 74025/01, § 61, ECHR 2005 IX). For the purposes
of applying Article 3 of the Protocol, any electoral legislation must
be assessed in the light of the political evolution of the country
concerned, so that features that would be unacceptable in the context
of one system may be justified in the context of another, at least so
long as the chosen system provides for conditions which will ensure
the “free expression of the opinion of the people in the choice
of the legislature” (see Yumak and Sadak v. Turkey [GC],
no. 10226/03, § 111, 8 July 2008). Furthermore, since the
Convention is first and foremost a system for the protection of human
rights, the Court must have regard to the changing conditions within
the respondent State and within Contracting States generally and
respond, for example, to any emerging consensus as to the standards
to be achieved. In this regard, one of the relevant factors in
determining the scope of the authorities’ margin of
appreciation may be the existence or non-existence of common ground
between the laws of the Contracting States (see Glor
v. Switzerland, no. 13444/04, § 75, ECHR 2009-...).
- It
should also be noted that, in the context of Article 3 of Protocol
No. 1, the primary obligation is not one of abstention or
non-interference, as with the majority of civil and political rights,
but one of adoption by the State of positive measures to “hold”
democratic elections (see Mathieu Mohin and Clerfayt,
cited above, § 50). In this regard the Court also takes into
consideration the fact that the right to vote, the “active”
element of the rights under Article 3 of Protocol No. 1, is not a
privilege. In the twenty first century, the presumption in a
democratic State must be in favour of inclusion (see Hirst (no.
2), cited above, § 59).
- Accordingly,
the exclusion from the right to vote of any groups or categories of
the general population must be reconcilable with the underlying
purposes of Article 3 of Protocol No. 1 (see Zdanoka, cited
above, § 105). The Court has held, inter alia, that
domestic legislation making the right to vote subject to a minimum
age or to residence conditions is, in principle, compatible with
Article 3 of Protocol No. 1 (see Hirst (no. 2), cited above, §
62, and Hilbe v. Liechtenstein, (dec.), no. 31981/96,
ECHR 1999-VI). It has acknowledged that any general, automatic and
indiscriminate departure from the principle of universal suffrage
risks undermining the democratic validity of the legislature thus
elected and the laws it promulgates (see Hirst (no. 2), loc.
cit.).
- As
regards restrictions on expatriate voting rights based on the
criterion of residence, the Convention institutions have accepted in
the past that these might be justified by several factors: firstly,
the presumption that non-resident citizens are less directly or less
continually concerned with their country’s day-to-day problems
and have less knowledge of them; secondly, the fact that non-resident
citizens have less influence on the selection of candidates or on the
formulation of their electoral programmes; thirdly, the close
connection between the right to vote in parliamentary elections and
the fact of being directly affected by the acts of the political
bodies so elected; and, fourthly, the legitimate concern the
legislature may have to limit the influence of citizens living abroad
in elections on issues which, while admittedly fundamental, primarily
affect persons living in the country (see Hilbe, cited above;
see also X and Association Y. v. Italy, application no.
8987/80, Commission decision of 6 May 1981, Decisions and Reports
(DR) 24, p. 192, and Polacco and Garofalo v. Italy,
no. 23450/94, Commission decision of 15 September 1997, DR 90-A,
p. 5). More recently, the Court has taken the view that having to
satisfy a residence or length-of-residence requirement in order to
have or exercise the right to vote in elections is not, in principle,
an arbitrary restriction of the right to vote and is therefore not
incompatible with Article 3 of Protocol No. 1 (see Doyle v.
the United Kingdom (dec.), no. 30158/06, 6 February 2007).
2. Application of these principles to the present case
- The Court observes at the outset that the applicants
complained that the Greek legislature had not to date made the
necessary arrangements enabling Greek expatriates to vote in
parliamentary elections from their current place of residence.
Accordingly, the complaint does not concern the recognition of
expatriates’ right to vote as such, the principle of which is
already recognised by Article 51 § 4 of the Greek Constitution
in conjunction with Article 4 of Presidential Decree no. 96/2007, but
rather the conditions governing the exercise of that right. Like the
Chamber, the Grand Chamber is therefore of the view that its task
consists in examining whether, despite the failure to enact
legislation on the conditions for exercising the right to vote, the
Greek electoral system, in the instant case, nevertheless permitted
“the free expression of the opinion of the people” and
preserved “the very essence of the ... right to vote”, as
required by Article 3 of Protocol No. 1 (see Matthews v. the
United Kingdom [GC], no. 24833/94, § 65, ECHR
1999 I). It will conduct its examination in the light of the
broader question as to whether Article 3 of Protocol No. 1 places
States under an obligation to introduce a system enabling expatriate
citizens to exercise their voting rights from abroad.
- In
general terms, Article 3 of Protocol No. 1 does not provide for the
implementation by Contracting States of measures to allow expatriates
to exercise their right to vote from their place of residence.
Nevertheless, since the presumption in a democratic State must be in
favour of inclusion (see Hirst (no. 2), cited above, §
59), such measures are consonant with that provision. The question
is, however, whether Article 3 of Protocol No. 1 goes so far as to
require them to be taken. In answering that question, Article 3
should be interpreted with reference to the relevant international
and comparative law (see Yumak and Sadak, cited above, § 127,
and Demir and Baykara v. Turkey [GC], no. 34503/97, §§
76 and 85, 12 November 2008) and to the domestic law of the country
concerned.
- Firstly,
with regard to international law, the Court notes that neither the
relevant international and regional treaties – such as the
International Covenant on Civil and Political Rights, the American
Convention on Human Rights and the African Charter on Human and
Peoples’ Rights – nor their interpretation by the
competent international bodies provide a basis for concluding that
voting rights for persons temporarily or permanently absent from the
State of which they are nationals extend so far as to require the
State concerned to make arrangements for their exercise abroad (see
paragraphs 26-31 above).
- It
is true that, in order to give greater effect to the right to vote in
parliamentary elections, the institutions of the Council of Europe
have, inter alia, invited member States to enable their
citizens living abroad to participate to the fullest extent possible
in the electoral process. Hence, Resolution 1459 (2005) of the
Parliamentary Assembly of the Council of Europe (see paragraph 21
above) states that member States should take appropriate measures to
facilitate the exercise of voting rights to the fullest extent
possible, in particular by means of postal voting. Furthermore, in
Recommendation 1714 (2005), the Parliamentary Assembly invited the
Council of Europe to develop its activities aimed at improving the
conditions for the effective exercise of election rights by groups
facing special difficulties, including expatriates. The Venice
Commission, for its part, observed that since the 1980s the
recognition of external voting rights had gained ground in Europe.
While it also recommended that member States facilitate the exercise
of expatriates’ voting rights, it did not consider that they
were obliged to do so. Rather, it viewed such a move as a possibility
to be considered by the legislature in each country, which had to
balance the principle of universal suffrage on the one hand against
the need for security of the ballot and considerations of a practical
nature on the other (see, in particular, paragraph 25 above).
- Furthermore,
a comparative survey of the legislation of Council of Europe member
States in this sphere shows that, while the great majority of them
allow their nationals to vote from abroad, some do not (see paragraph
38 above). However, as regards those States which do allow voting
from abroad, closer examination reveals that the arrangements for the
exercise of expatriates’ voting rights are not uniform, but
take a variety of forms. By way of example, some countries allow
voting in polling stations set up abroad, and/or postal voting, proxy
voting and e-voting (see paragraph 34 above). The length of residence
abroad is another factor taken into consideration by member States.
Some grant voting rights only to nationals temporarily resident
outside the country, while in others, expatriates lose the right to
vote after a certain period of time (see paragraph 35 above).
Furthermore, some Contracting States make provision for expatriates
to elect their own representatives to the national parliament, in
electoral constituencies set up outside the country (see paragraph 37
above). Lastly, in the majority of member States which allow voting
from abroad, persons wishing to avail themselves of this facility
must register by a certain deadline on the electoral roll with the
authorities in their country of origin or the diplomatic or consular
authorities abroad (see paragraphs 39-45 above).
- In
short, none of the legal instruments examined above forms a basis for
concluding that, as the law currently stands, States are under an
obligation to enable citizens living abroad to exercise the right to
vote. As to the arrangements for exercising that right put in place
by those Council of Europe member States that allow voting from
abroad, there is currently a wide variety of approaches.
- Secondly,
with regard to the domestic legislation in issue in the present case,
the Court observes that Article 51 § 4 of the Constitution
provides that “[t]he conditions governing the exercise of the
right to vote by persons outside the country may be specified by
statute...”. The Scientific Council of Parliament, for its
part, stated in its report of 31 March 2009 on the Bill concerning
the exercise of the right to vote in parliamentary elections by Greek
voters living abroad that permitting the exercise of the right to
vote from abroad was an option rather than a duty for the
legislature, while stressing that legal opinion was not unanimous on
the subject (see paragraph 19 above). In conclusion, it would appear
that while Article 51 § 4 of the Constitution allows the
legislature to give effect to the exercise of voting rights for
expatriate Greeks from their place of residence, it does not oblige
it to do so. Accordingly, and having regard to the considerations
outlined above (see paragraph 75), the Court is of the view that it
is not its task to indicate to the national authorities at what time
and in what manner they should give effect to Article 51 § 4 of
the Constitution.
- Furthermore,
since 2000, the Greek authorities have made several attempts to give
effect to the provisions of Article 51 § 4. During the 2001
constitutional revision, for instance, the content of these
provisions was clarified and it was stated that the principle of
simultaneous voting did not rule out the exercise of voting rights by
postal vote or other appropriate means, provided that the counting of
votes and the announcement of the results were carried out at the
same time as within the country (see paragraph 16 above).
- Mention
should also be made of the initiative taken in 2009 aimed at enacting
the legislation provided for by Article 51 § 4 of the
Constitution, in the form of a Bill placed before Parliament on
19 February 2009 by the Interior, Justice and Economics
Ministers laying down the arrangements for the exercise of voting
rights in parliamentary elections by expatriate Greek voters. The
Bill was not passed as it failed to secure the two thirds
majority of the total number of members of Parliament required by
Article 51 § 4 of the Constitution as amended following the 2001
constitutional revision.
- Lastly,
as regards the specific situation of the applicants, the Court has no
reason to doubt their assertion that they maintain close and
continuing links with Greece and follow political, economic and
social developments in the country closely, with the aim of playing
an active part in the country’s affairs. The presumption that
non resident citizens are less directly or less continually
concerned with the country’s day-to-day problems and have less
knowledge of them (see paragraph 69 above) does not therefore apply
in the instant case. Nevertheless, in the Court’s view, this is
not sufficient to call into question the legal situation in Greece.
In any event, the competent authorities cannot take account of every
individual case in regulating the exercise of voting rights, but must
lay down a general rule (see Hilbe, cited above).
- As
to the disruption to the applicants’ financial, family and
professional lives that would have been caused had they had to travel
to Greece in order to exercise their right to vote in the 2007
parliamentary elections, the Court is not convinced that this would
have been disproportionate to the point of impairing the very essence
of the voting rights in question.
3. Conclusion
- Having
regard to the foregoing considerations, it cannot be said that the
very essence of the applicants’ voting rights guaranteed by
Article 3 of Protocol No. 1 was impaired in the instant case.
Accordingly, there has been no breach of that provision.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been no violation of Article 3 of
Protocol No. 1 to the Convention.
Done in English and in French, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 15 March 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Johan Callewaert Nicolas
Bratza Deputy to the Registrar President
