Monday 24 November 2008

Dual Nationality and Election Rights

Usually results of past elections are at stake in judgments concerning the right to vote, but last week the European Court issued its judgment in a forward looking case: Tanase and Chirtoaca v. Moldova. The two applicants in the case complained that a law enacted in April of this year, which precluded persons with a dual or multiple nationality from becoming members of Parliament, violated their election rights under Article 3 of Protocol 1 ECHR. This Article obliges states to hold regular and free elections. It has been interpreted by the Court to include both active and passive electoral rights: the right to vote and the light to stand as a candidate for election.

The applicants were two politicians. Chirtoaca is the mayor of Chisinau, Moldova's capital, and Tanase is member of that city's municipal council. Both are leading figures of (different) liberal parties and wanted to stand as candidates in the upcoming parliamentary elections. Chirtoaca and Tanase have a double Moldovan and Romanian nationality, as do hundreds of thousands of their fellow Moldovans. In addition, 120,000 Moldovans (one may assume mostly in the region of Transdnistria) also have Russian nationality. In a country with approximately 4 million inhabitants these are high numbers. Thus, the introduction of a new law on elections in Spring 2008 affected a very considerable group.

The case was dealt with in a particularly quick manner. The application was lodged less than a year ago, on 27 December 2007. In June of this year, the Court decided to give the case priority in view of the Moldovan elections in Spring 2009. See Rule 41 of the Rules of Court.

Mr Chirtoaca's application was declared non-admissible by the Court. Since he had indicated that he would not give up his position as mayor but simply participated to gain votes for his party's list (and since Moldovan law did not allow for double mandates), the European Court held that he was not himself affected by the law at stake. By contrast, Mr Tanase was. He faced, in the wording of the Court, "the difficult choice between sitting as an MP and renouncing his dual nationality". Thus the Court concluded that the new law directly affected him.

It must be noted that in the course of this year, a range of European institutions openly criticised the law: the European Commission against Racism and Intolerance (ECRI), the EU-Moldova Cooperation Council, the Council of Europe's Parliamentary Assembly and the Venice Commission. Amongst others, it was noted that the law directly contravened the European Convention on Nationality, to which Moldova is a party, which explicitly provides that citizens with multiple nationalities shall have the same rights as other nationals in the state concerned.

The Venice Commission, in its report on the law, noted that the nationality issue could be a violation of the ECHR. Indeed, the Court's judgment in this case has now confirmed that. Generally, the Court grants states a large margin of appreciation under Article 3 of Protocol 1 and it assesses cases "in the light of the political evolution of the country concerned." It is interesting that the Court under the legality test mentioned that the law was apparently inconsistent with the Convention on Nationality, which in the Moldovan legal order takes precedence over national legislation. The Court accepted the Government's claim that the law was meant to ensure the loyalty of MPs to Moldova and that this could be considered a "legitimate aim". However, the Court found the particular provision in the law to be disproportionate. The reasoning of the Court is telling: it noted that Moldova is the only country allowing multiple nationalities, but banning such people to stand for national elections. In addition, the Court considers that there are other ways of ensuring loyalty (such as an oath). Let me quote one passage (para. 109): "In this respect the Court wishes to stress that in a democracy, loyalty to a State does not necessarily mean loyalty to the actual government of that State or to a certain political party." Another point by which the Court was struck was that in 2002-2003 Parliament had introduced legislation to allow for dual nationality, as a consequence of which many people had applied for it. The new law deprived these people from standing for national elections ("failing renunciation of an acquired additional nationality"). Also, the Court found that the introduction of the new law less than a year before the new elections went against Council of Europe recommendations on the stability of electoral law. The Court also referred to the Venice Commission's report on the issue and noted that Moldova did "not react in any way to the unequivocal signals of concern from the Council of Europe" (para. 114). Taking all these considerations together, the Court concluded that the law's provision was disproportionate.

One can hardly imagine stronger support for other European organisations working on the issue than this judgment. Nor can one imagine a clearer condemnation of Moldova's actions by a respected international court. The final arbiter has now issued its dictum. It can only be hoped that Moldova will now finally take action to bring its electoral law in line with the European standards it has committed itself to.

The press release in this case can be found here.