SOBERANÍA DE LA RAZÓN AND OTHERS v. SPAIN
Inadmissible
Branko Lubarda;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra
1. The first applicant, Soberanía de la Razón, is a Spanish political party registered with the Ministry of Internal Affairs in September 2011. The second and the third applicants, Ms. Encarnación Martínez Segado and Mr. José Luis Mazón Costa, are Spanish nationals who stood as two of the first applicant’s candidates for the 2011 elections to the Congress of Deputies. The applicants are represented before the Court by the third applicant, Mr. J. L. Mazón Costa, a lawyer in Murcia. A list of the applicants is set out in the appendix. 2. 3. The procedure to present candidates in general elections was regulated by Organic Law no. 5/1985 of 19 June 1985 of the General Electoral Provisions Implementing Act (hereinafter, the Electoral Act). Section 169 (3) of the Electoral Act provided that political parties which were not represented either in the Congress of Deputies or in the Senate must receive the supporting signatures of at least 0.1% of those registered to vote in the constituency. Voters were only allowed to register support for one candidate. The aforementioned requirement had been introduced by the Electoral Act by Organic Law 2/2011 of 28 January 2011 that entered into force on 30 January 2011. 4. On 15 September 2011 the Central Electoral Commission issued Order 7/2011, section 5 of which provided that the period to collect the signatures started running from the date on which the elections were announced. 5. On 27 September 2011 the Royal Decree 1329/2011 of 26 September ordered elections to the Congress of Deputies and the Senate for 20 November 2011. 6. On 12 October 2011 the first applicant announced before the Murcia Electoral Commission its intention to stand for elections for the Congress of Deputies for the Murcia constituency. The first applicant submitted a list of ten candidates, among them the second and the third applicants. The first applicant did not submit the supporting signatures, for it considered that the new requirements under the abovementioned electoral provisions violated its fundamental rights. 7. On 21 October 2011 the Murcia Electoral Commission instructed the first applicant to submit the supporting signatures as provided by section 169 (3) of the Electoral Act. The first applicant did not comply with the instruction. 8. On 24 October 2011 the Murcia Electoral Commission rejected the first applicant’s list by reference to section 169 (3) of the Electoral Act. The three applicants brought judicial administrative proceedings (procedimiento contencioso administrativo) against that decision. 9. On 26 October 2011 the Murcia administrative judge (juez de lo contencioso-administrativo) no. 7 upheld the Electoral Commission’s decision on the ground that the applicants had failed to fulfil the requirements of section 169 (3) of the Electoral Act. He further found that the Order 7/2011 was according to law, in that it had been issued by a competent body and established a procedure that could be considered reasonable to serve the purposes of section 169 (3) of the Electoral Act. 10. On 27 October 2011 the applicants lodged an amparo appeal with the Constitutional Court. They complained that the restrictions under section 169 (3) of the Electoral Act and section 5 of the Order 7/2011 amounted to a violation of their rights to free elections and of the prohibition of discrimination. They also complained that they could have started collecting signatures only on the date when the elections were announced, giving them only twenty days to fulfil the obligation. They had not done so as they considered this period insufficient. They invoked section 14 (equality before the law), section 16 (freedom of ideology), section 18 (right to personal privacy), section 22 (1) (right of association) and section 23 (1) (2) (right to participate in public affairs and right of access to public office on equal terms) of the Spanish Constitution. 11. The Constitutional Court’s decision (auto) of 3 November 2011 declared the applicants’ appeal inadmissible for lack of a violation of a fundamental right. It relied on the reasoning of its previous judgment of 2 November 2011 in an analogous case. The Constitutional Court found that the obligation to collect a minimum number of supporting signatures constituted a legitimate limitation on the right to present candidates in elections guaranteed by section 23 (2) of the Spanish Constitution. It served the purpose of rationalisation and optimisation of the electoral process. The Constitutional Court pointed out that the proper functioning of the electoral process might be adversely affected by an excessive proliferation of candidatures without a minimum of support. In particular, the limitation was aimed at optimising the allocation of public resources to organise the electoral process. Lastly, it served the aim of avoiding the dispersion of votes and could help sufficiently representative currents of thought reach the threshold for parliamentary representation. 12. The Constitutional Court also underlined that the obligation to collect a specific number of supporting signatures was a common practice in the European countries and within the Spanish electoral system. Section 220 (3) (4) of the Electoral Act required parties, federations, coalitions and groups of voters wishing to present candidates in elections to the European Parliament to obtain either 15,000 supporting signatures of voters or 50 supporting signatures of elected representatives. Furthermore, section 169 (3) of the Electoral Act imposed analogous requirements on groups of voters wishing to present candidates in elections to the Congress of Deputies and the Senate, those groups of voters being obliged to receive the supporting signatures of at least 1% of those registered to vote in the constituency. As regards the latter, the Constitutional Court recalled that in the case Serqueda v. Spain, 9 May 1994, no. 23151/94 the Commission had considered that that restriction was not contrary to the Convention. 13. The Constitutional Court added that, in view of the minimum number of signatures requested in the aforementioned cases, the percentage of 0.1% under section 169 (3) of the Electoral Act must be considered proportionate. 14. As regards the applicants’ complaint of discriminatory treatment, the Constitutional Court noticed that the obligation was indeed imposed only on non-represented parties. However, such a difference of treatment had an objective and reasonable justification, since non-represented parties ought to demonstrate a minimum of support that could be presumed in the case of represented parties. 15. As regards the time-limit to collect the signatures, the Constitutional Court recalled the findings of its judgment of 2 November 2011. The Constitutional Court noticed that the time-limit could be insufficient under certain special circumstances, which were not present in the instant case. Consequently, in general terms, the time-limit was proportionate in the light of the legitimate aim pursued by section 169 (3) of the Electoral Act as well as of the number of signatures required. 16. The relevant provisions of the Spanish Constitution read as follows: “Spaniards are equal before the law and may not in any way be discriminated against on account of birth, race, sex, religion, opinion or any other personal or social condition or circumstance.” “1. Citizens have the right to participate in public affairs, directly or through representatives freely elected in periodic elections by universal suffrage. 2. They likewise have the right to access on equal terms to public office, in accordance with the requirements to be provided by law.” 17. The relevant Spanish electoral law provides as follows: “1. The Electoral Commission is competent for all matters foreseen in Title I, Chapter VI, Section II of the present law concerning the presentation and designation of candidates for the general elections to the Congress of Deputies and to the Senate. 2. A list of candidates shall be presented in order to stand for elections. 3. Groups of voters wishing to present candidates in the elections must receive the supporting signatures of at least 1% of those registered to vote in the constituency. Parties, federations or coalitions that were not represented either in the Congress of Deputies or in the Senate must receive the supporting signatures of at least 0.1% of those registered to vote in the constituency. Voters are only allowed to register support for one candidate.” 18. The obligation to collect a specific number of signatures for those parties which were not represented either in the Congress of Deputies or in the Senate was firstly introduced by the Organic Law 2/2011 of 28 January 2011, which entered into forced on 30 January 2011. (...) “2. In every electoral process, the period to collect the supporting signatures shall start running after the publication of the order determining the date on which the elections will take place (...).” “I. Principles of Europe’s electoral heritage (...) 1.3. Submission of candidatures i. The presentation of individual candidates or lists of candidates may be made conditional on the collection of a minimum number of signatures. ii. The law should not require collection of the signatures of more than 1% of voters in the constituency concerned. iii. Checking of signatures must be governed by clear rules, particularly concerning deadlines. iv. The checking process must in principle cover all signatures; however, once it has been established beyond doubt that the requisite number of signatures has been collected; the remaining signatures need not be checked. v. Validation of signatures must be completed by the start of the election campaign.” “I. The underlying principles of Europe’s electoral heritage (...) 1. Universal suffrage (...) 1.3. Submission of candidatures 8. The obligation to collect a specific number of signatures in order to be able to stand is theoretically compatible with the principle of universal suffrage. In practice, only the most marginal parties seem to have any difficulty gathering the requisite number of signatures, provided that the rules on signatures are not used to bar candidates from standing for office. In order to prevent such manipulation, it is preferable for the law to set a maximum 1% signature requirement.”