CASE OF TĂNASE v. MOLDOVA
Preliminary objection joined to merits and dismissed (ratione materiae);Preliminary objections dismissed (victim, non-exhaustion of domestic remedies);Violation of P1-3
Corneliu Bîrsan;Dean Spielmann;Elisabeth Steiner;Françoise Tulkens;George Nicolaou;Giovanni Bonello;Ireneu Cabral Barreto;Isabelle Berro-Lefèvre;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä;Peer Lorenzen;Rait Maruste;Sverre Erik Jebens;Vladimiro Zagrebelsky;Zdravka Kalaydjieva
10. The applicant was born in 1971 and lives in Chişinău. He is ethnically Romanian and is a Moldovan politician. 11. The Principality of Moldavia first emerged as an independent State in 1359. Its territory covered the area between the Eastern Carpathian Mountains, the Dniester River and the Black Sea; today, this area encompasses Moldova, part of Romania and part of Ukraine. Its population spoke the same language and was of the same descent as the populations of Wallachia and Transylvania (both part of modern-day Romania). 12. In the fifteenth century, Moldavia accepted the suzerainty of the Ottoman Empire. 13. Following the Russo-Turkish war of 1806 to 1812, the eastern part of the Principality of Moldavia, bounded by the Dniester River on the east and the River Prut on the west, was annexed by the Russian empire. It was renamed Bessarabia. 14. In 1859, the western part of the Principality of Moldavia united with Wallachia and formed a new State. From 1861, the new State was known as Romania. In 1877, Romania gained independence from the Ottoman Empire. 15. In early 1918, Bessarabia declared its independence from Russia and, on 27 March 1918, united with Romania. The population of Bessarabia became Romanian citizens. 16. The Soviet Union did not recognise the unification of Bessarabia and Romania. On 28 June 1940, following the Molotov-Ribbentrop Pact with Nazi Germany, the Soviet Union re-annexed the territory of Bessarabia. 17. Following the conclusion of the Second World War, approximately 70% of the territory of Bessarabia, inhabited by some 80% of its population, became the Moldavian Soviet Socialist Republic (changed to the Soviet Socialist Republic of Moldova in 1990). The remaining territory of Bessarabia became part of the Ukrainian Soviet Socialist Republic. Those residing in Bessarabia lost their Romanian nationality and became Soviet citizens. Romania became a Soviet Union satellite State. 18. Following the collapse of the Soviet Union, in the Declaration of Independence of 27 August 1991, the Parliament of the Republic of Moldova condemned, inter alia, the Russian annexation of the territory from the Principality of Moldavia in 1812 and the Soviet annexation of the territory from Romania in 1940 and proclaimed the independence of the country within the boundaries of the former Moldavian Soviet Socialist Republic. Shortly thereafter, Moldova joined the United Nations and was recognised by the international community. 19. In 1991 the Parliament of the Republic of Moldova adopted a Law on citizenship and proclaimed as its citizens, inter alios, all persons who had lived in the territory of the former Moldavian Soviet Socialist Republic before the Soviet annexation and their descendants. 20. The applicant obtained Moldovan nationality as a descendant of persons living on the territory of the Republic of Moldova before 28 June 1940. 21. Also in 1991, the Romanian Parliament adopted a new Law on citizenship, making it possible for persons who had lost their Romanian nationality before 1989, for reasons not imputable to them, and their descendants to reacquire Romanian nationality. 22. Initially, under Article 18 of the Moldovan Constitution adopted on 29 July 1994, which entered into force on 27 August 1994, nationals of Moldova were not permitted to hold the nationality of any other State other than in exceptional cases. However, the prohibition was ineffective in practice as many Moldovans of Romanian descent used the provisions of Romanian law to reacquire their lost Romanian nationality. At the same time, many Moldovans of other ethnic backgrounds acquired other nationalities such as Russian, Ukrainian, Bulgarian and Turkish. 23. In 2002 the Moldovan constitutional provisions prohibiting multiple nationalities were repealed. 24. On 5 June 2003, following the repeal of the constitutional prohibition on multiple nationalities, the Moldovan Parliament amended the Law on citizenship, repealing the restriction preventing Moldovan nationals from holding other nationalities (see paragraph 74 below). The new provisions provided that the holders of multiple nationalities had equal rights to those holding only Moldovan nationality, without exception (see paragraph 75 below). 25. On an unspecified date the applicant obtained Romanian nationality. His current Romanian passport was issued in December 2005. Subsequently, he made public his holding of Romanian nationality. 26. The total number of Moldovans who have obtained Romanian citizenship since 1991 is unknown as the Romanian government have never made this information public. However, it has been estimated that between 95,000 and 300,000 Moldovans obtained Romanian nationality between 1991 and 2001. On 4 February 2007 the President of Romania stated in an interview that there were some 800,000 Moldovans with pending applications for Romanian nationality and that his government expected the number to reach 1,500,000, of the total of 3,800,000 Moldovan citizens, before the end of 2007. 27. As to the number of Moldovans holding a second nationality other than Romanian, this figure is also unknown. However, it appears to be considerable and it seems that Russian nationality is the second most popular, after Romanian. On 16 September 2008 the Russian Ambassador to Moldova stated in a televised interview that there were approximately 120,000 Moldovans with Russian passports on both banks of the Dniester River (i.e. in the whole of Moldova). 28. The Moldovan Government indicated in their observations before the Chamber that one-third of the population of Transdniestria had dual nationality, while a communist member of parliament (MP), Mr V. Mişin, advanced during Parliament’s debates concerning Law no. 273 (see paragraphs 78-81 below) the number of 500,000 as an approximate total number of Moldovans with dual nationality. 29. During the last decade and prior to the elections of 2009, the Communist Party of Moldova was the dominant political party in the country with the largest representation in Parliament. 30. Besides the Communist Party, there were over twenty-five other political parties in the country with considerably less influence. Their exact number was difficult to ascertain because of constant fluctuation. Because of their weaker position, very few of them managed to clear the 6% electoral threshold required in past legislative elections to enter Parliament. 31. In the 2001 elections the Christian Democratic People’s Party was the only party aside from the Communist Party, from the twenty-seven parties participating in the elections, which succeeded in clearing the electoral threshold alone by obtaining some 8% of the vote. Six other parties merged into an electoral bloc (a common list) and in this way were able to obtain some 13% of the vote. The Communist Party obtained some 50% of the vote and, after the proportional distribution of the wasted votes, obtained 71 of the 101 seats in Parliament. 32. In 2002 the electoral legislation was amended. The 6% electoral threshold for a single party was retained but a new 9% threshold was introduced for electoral blocs composed of two parties, rising to 12% for three or more parties. 33. In the 2005 elections, out of twenty-three participating parties, the Christian Democratic People’s Party was again the only party, besides the Communist Party, which managed to clear the electoral threshold by itself with some 9% of the vote. Three other parties, united into an electoral bloc, obtained some 28% of the vote, while the Communist Party obtained almost 46% of the vote. After the proportional distribution of the wasted votes, the Communist Party obtained 56 of the 101 seats in Parliament. 34. In July 2005, following persistent criticism by international observers and the Council of Europe, Parliament again amended the Electoral Code, setting the electoral threshold for individual parties at 4% and for electoral blocs composed of any number of parties at 8%. The European Commission for Democracy through Law of the Council of Europe (the Venice Commission) and the Organization for Security and Cooperation in Europe (OSCE) praised the lowering of the electoral threshold for individual parties and suggested a similar threshold for electoral blocs, which, in their view, were to be encouraged in order to provide more cooperation and stable government. 35. In the local elections of June 2007, the Communist Party obtained some 40% of the vote in the local legislative bodies. As there is no electoral threshold in local elections, it became an opposition party in the majority of the local councils. The applicant became a member of the Chişinău Municipal Council following these elections. 36. The applicant was subsequently elected Vice-President of the Liberal Democratic Party, an opposition party created in January 2008. 37. On 10 April 2008 the Moldovan Parliament passed a reform consisting of three major amendments to the electoral legislation: an increase of the electoral threshold from 4% back to 6%; a ban on all forms of electoral blocs and coalitions; and a ban on persons with dual or multiple nationality becoming MPs. 38. The amendment banning those with dual or multiple nationalities becoming MPs was introduced by way of Law no. 273 (see paragraphs 78-80 below). This Law was approved in its first reading by Parliament on 11 October 2007. The draft, prepared by the Ministry of Justice, provided that only persons having exclusively Moldovan citizenship were entitled to work in senior positions in the government and in several public services and be candidates in legislative elections (see paragraph 78 below). It contained a specific provision relating to Transdniestria (see paragraphs 80-81 below). 39. In an explanatory note to the draft law, the Deputy Minister of Justice stated: “Having analysed the current situation in the country in the field of citizenship, we observe that the tendency of Moldovans to obtain citizenships of other countries is explained by their desire to obtain privileges consisting of unrestrained travel in the European Union, social privileges, family reunion, employment and studies. At the same time, persons holding other nationalities have political and legal obligations towards those States. This fact could generate a conflict of interest in cases in which there are obligations both towards the Republic of Moldova and towards other States, whose national a particular person is. In view of the above, and with a view to solving the situation created, we consider it reasonable to amend the legislation in force so as to ban holders of multiple nationalities from public functions ... This will not mean, however, that those persons will not be able to work in the Republic of Moldova. They will be able to exercise their professional activities in fields which do not involve the exercise of State authority ...” 40. During the debates in Parliament numerous opposition members requested that the draft law be sent to the Council of Europe for a preliminary expertise. However, the majority voted against this proposal. Instead, the opposition was invited to challenge the new Law before the Constitutional Court of Moldova. No such challenge was made at that time (but see paragraphs 54-58 below). Numerous MPs from the opposition argued that the proposed amendment banning multiple nationals from sitting as MPs was contrary to Article 17 of the European Convention on Nationality (see paragraphs 83-85 below) but the Deputy Minister of Justice expressed a contrary view and argued that, in any event, it was open to Parliament to denounce that Convention if there were any incompatibility. 41. On 7 December 2007 the draft law was approved by Parliament in a final reading (see paragraph 78 below). Following its adoption by Parliament, however, the President refused to promulgate the Law and returned it to Parliament for re-examination. 42. The draft law was accordingly further amended and the list of positions in the government and in the public service closed to holders of multiple nationalities was reduced. The provisions concerning legislative elections were also amended to allow persons with dual or multiple nationality to be candidates in legislative elections; however, they were obliged to inform the Central Electoral Commission about their other nationalities before registering as candidates and to renounce them, or initiate a procedure to renounce them, before the validation of their MP mandates by the Constitutional Court (see paragraph 79 below). 43. On 10 April 2008 the new draft law was again put before Parliament by the Law Commission of Parliament. As noted above, it was adopted on that date. In the light of the amendments made by Law no. 273, an exception was introduced to the provision in the Law on citizenship concerning equality of citizens to allow different treatment where provided for by law (see paragraphs 24 above and 75 below) 44. On 29 April 2008 the President promulgated the Law adopted by Parliament on 10 April 2008. On 13 May 2008 the Law was published in the Official Gazette, thus entering into force. The other two amendments to the electoral legislation (see paragraph 37 above) were also enacted and entered into force in May 2008. 45. On 29 April 2008 the Council of Europe’s European Commission against Racism and Intolerance (ECRI) made public a report adopted on 14 December 2007. In its report, ECRI expressed concern about the amendments concerning dual and multiple nationalities: “16. ECRI notes with interest that section 25 of the Law on citizenship, in full accordance with Article 17 of the European Convention on Nationality, which has been ratified by Moldova, provides that Moldovan citizens who are also citizens of another State and who have their lawful and habitual residence in Moldova enjoy the same rights and duties as other Moldovan citizens. In this respect, ECRI would like to express its concern about a draft law on the modification and completion of certain legislative acts adopted in its first reading by Parliament on 11 October 2007. According to this draft law, only persons having exclusively Moldovan citizenship are entitled to work in senior positions in the government and in several public services. From the information it has received, ECRI understands that if this draft law enters into force as it stands, Moldovan citizens with multiple citizenship would be seriously disadvantaged compared with other Moldovan citizens in access to public functions. It thus appears that, if the law enters into force as such, this could lead to discrimination, i.e. unjustified differential treatment on the grounds of citizenship. ECRI understands that a wide-ranging debate is occurring within Moldova at the time of writing this report as far as this draft law is concerned and that many sources both at the national and international level have stressed the need to revise the text thoroughly before its final adoption in order to ensure its compatibility with national and international standards. ... 18. ECRI strongly recommends that the Moldovan authorities revise the draft law of 11 October 2007 ... in order to ensure that it neither infringes the principle of non-discrimination on the grounds of citizenship nor undermines all benefits of the recent changes made to the Law on citizenship and allowing for multiple citizenship.” 46. In a report dated 14 September 2007, entitled “Honouring of obligations and commitments by Moldova”, the Parliamentary Assembly’s Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (“the Monitoring Committee”) noted the following: “20. The Assembly appreciates the efforts made by the Moldovan authorities in order to assess the degree of implementation of the recommendations made by Council of Europe experts. However, all new draft legislation in areas relating to the commitments to the Council of Europe must be submitted to expertise and discussed with Council of Europe experts prior to adoption.” 47. In its subsequent report of 9 June 2008, entitled “The state of democracy in Europe: the functioning of democratic institutions in Europe and progress of the Assembly’s monitoring procedure”, the Monitoring Committee stated, inter alia, that: “80. In their 2007 report on the ‘Honouring of obligations and commitments by Moldova’ (Doc. 11374), the co-rapporteurs of the Committee on Moldova welcomed the changes made to the Electoral Code in 2005. In particular, the threshold for party lists was lowered to 4% for lists presented by individual political parties and 8% for coalitions of political parties ... ... 82. The Monitoring Committee was ... alarmed by the recent legislative developments with regard to the Electoral Code. In April 2008, the Moldovan Parliament amended the Electoral Code again to raise the threshold for party lists up to 6%. Moreover, the establishment of ‘electoral blocs’ – joint lists submitted by a coalition of political parties – was prohibited. These measures have raised concern and the Committee decided at short notice to hold an exchange of views with the Moldovan delegation on 15 April [2008]. The electoral legislation should not be changed every two or three years according to political imperatives. It should allow a wide spectrum of political forces to participate in the political process to help build genuinely pluralistic democratic institutions. The co-rapporteurs will closely examine the recent amendments as well as the reasons behind the recent legislative developments during the observation of the preparation of the forthcoming parliamentary election to be held in spring 2009.” 48. Concern was also expressed by the Parliamentary Assembly in its Resolution 1619 (2008) on the state of democracy in Europe, adopted on 25 June 2008: “5.3. ... [T]he Assembly ... regrets the recent decision of the Moldovan Parliament to raise this threshold for party lists to 6%.” 49. In Resolution 1666 (2009) on the functioning of democratic institutions in Moldova, the Parliamentary Assembly expressed its serious concern: “3. The Assembly is seriously concerned about the Moldovan authorities’ partial compliance with its earlier recommendations regarding the improvement of the electoral process and the strengthening of the State’s democratic institutions before the parliamentary elections of 5 April 2009. The amendments introduced to the Electoral Code in April 2008 raised the electoral threshold from 4% to 6%, did not provide for electoral coalitions of political parties and socio-political organisations and introduced a ban on the exercise of elevated public functions by Moldovan citizens holding multiple nationality. The combined effect of these amendments was to restrict the opportunities for a number of political forces to participate effectively in the political process, thus weakening pluralism.” 50. It called on Moldova to do the following: “8.1. resume reform of the electoral legislation, in cooperation with the European Commission for Democracy through Law (Venice Commission), in order to lower the electoral threshold for political parties, thus opening up the political process for more pluralism; ... 8.2. suspend the application of Articles of the Electoral Code prohibiting people who hold multiple citizenship from exercising elevated public functions, while awaiting the judgment of the Grand Chamber of the European Court of Human Rights in the case of Tănase and Chirtoacă v. the Republic of Moldova.” 51. On 23 October 2008 the Venice Commission made public a report adopted on 17 to 18 October 2008 (Opinion no. 484/2008) concerning the amendments to the Electoral Code made in April 2008. The report expressed critical views in respect of all the aspects of the reform. As to the amendments concerning holders of multiple nationalities it stated the following: “30. A new paragraph to Article 13 § 2 denies the right to ‘be elected’ in parliamentary elections to ‘persons who have, beside the Republic of Moldova nationality, another nationality for the position of deputy in the conditions of Article 75’. Article 75 § 3 states that a person may stand as a candidate with multiple citizenship, provided he/she upon election denounces other citizenships than the Moldovan. This must be considered as an incompatibility. 31. Beyond the mere question of the wording, restrictions of citizens’ rights should not be based on multiple citizenship. The Code of Good Practice in Electoral Matters quotes the European Convention on Nationality, ratified by Moldova in November 1999, which unequivocally provides that ‘Nationals of a State Party in possession of another nationality shall have, in the territory of that State Party in which they reside, the same rights and duties as other nationals of that State Party’. 32. Moreover, this restriction could be a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms, Articles 3 of [Protocol No. 1] and 14 of the Convention.” 52. On 27 May 2008, at a meeting of the European Union-Moldova Cooperation Council in Brussels, the Slovenian Minister for Foreign Affairs, the then President of the European Union General Affairs and External Relations Council, stated that it was important that Moldova conduct its parliamentary elections in 2009 in line with international standards and expressed concern at the latest amendments to the electoral law, which increased the electoral threshold to 6%. 53. Concerns about the electoral reform were also raised on 9 July 2008 by the President of the Parliamentary Assembly of the Council of Europe in a speech to the Moldovan Parliament: “... I strongly encourage you to obtain the approval by the Venice Commission in respect of the recent amendments to the legislation which will apply in the next elections, namely in what concerns the electoral threshold, the electoral blocs and the dual nationality. These are delicate problems and it is necessary to find the right balance between the preoccupations which guided you to make these amendments and the concern of the international community that these amendments are compatible with the principles of the Council of Europe.” 54. On 9 December 2008, Mr Vlad Filat, President of the Liberal Democratic Party, addressed a complaint to the Constitutional Court alleging that Law no. 273 was unconstitutional. 55. On 26 May 2009 the Constitutional Court delivered a judgment on the constitutionality of Law no. 273. It found the Law to be constitutional and valid in its entirety. It held that the provisions of the Law were clear and unambiguous, that they were accessible in that they were published in the Official Gazette and that they were foreseeable as they enabled, with sufficient precision, Moldovan citizens wishing to stand for Parliament but holding another nationality to adopt appropriate social-minded conduct to ensure that their rights were not curtailed. It emphasised that Law no. 273 did not prevent dual nationals from becoming MPs as it offered them the possibility of complying with the law. It further considered the provisions of the Law to be in conformity with norms of international law, concluding that the various international instruments permitted States to stipulate incompatibilities relating to the holding of multiple nationalities by public officials. 56. The court also found Law no. 273 to be in pursuit of a legitimate aim, namely loyalty to the Moldovan State, in the light of the importance of State sovereignty and the need for a permanent political and legal link between an elector and the State. It considered that for Moldovan citizens holding the nationality of another State, the significance of Moldovan citizenship was substantially diminished as such a person might not be guided only by the constitutional requirements of Moldova and the interests of the Moldovan people but also by the interests of a foreign State. Accordingly, allowing MPs to hold dual nationality was contrary to the constitutional principle of the independence of the mandate of MPs, State sovereignty, national security and the non-disclosure of confidential information. In this regard, the court insisted that ensuring national security and consolidating Moldovan statehood had become an urgent necessity in the light of movements to undermine the Moldovan State. 57. The court also considered the interference to be proportionate since it did not affect the substance of electoral rights but merely made the exercise of the right to be an MP conditional upon holding exclusive Moldovan citizenship. Citizens could choose between holding a job which required single citizenship and retaining their multiple citizenships but working in a different post. 58. As regards the argument that Law no. 273 resulted in unequal treatment of Moldovan citizens, the court considered that the principle of equality should not be confused with the principle of uniformity. Those holding multiple nationalities were not in the same position as those holding single Moldovan nationality and the two cases were therefore not comparable. 59. On 5 April 2009 legislative elections were held. The Communist Party obtained 60 seats in Parliament. The three opposition parties gained 41 seats altogether: the Liberal Democratic Party and the Liberal Party obtained 15 seats each; and the Our Moldova Alliance obtained 11 seats. Of the 101 MPs elected, 21 held more than one nationality or had pending applications for a second nationality and were therefore affected by the provisions of Law no. 273. All 21 MPs were members of opposition parties. 60. In the April elections, the applicant was elected to the Moldovan Parliament. In order to be able to take his seat, he was required to initiate a procedure to renounce his Romanian nationality. He did this by way of a letter addressed to the Romanian embassy in Chişinău announcing that he was forced to initiate the renunciation of his Romanian nationality, but indicating that he reserved his right to withdraw the letter after the judgment of the Grand Chamber in the present case. 61. On 22 April 2009 the Constitutional Court validated the applicant’s mandate, taking into consideration his letter to the Romanian embassy. 62. The Communist Party subsequently sought to elect a president of the Republic. However, on two separate occasions they failed to obtain the 61 Parliamentary votes required for the election of the president. Accordingly, on 15 June 2009, Parliament was dissolved. Fresh parliamentary elections were called for 29 July 2009. 63. Prior to the dissolution of Parliament, it once again amended the electoral legislation, lowering the electoral threshold from 6% to 5% and lowering the mandatory rate of participation from 51% to one-third of registered voters. The opposition expressed concern about the amendments, arguing that they were intended to help the Christian Democratic People’s Party, an ally of the Communist Party in the previous Parliament, clear the electoral threshold and enter Parliament. 64. In the meantime, a prominent figure from the Communist Party and Speaker of the previous Parliament, Mr Marian Lupu, quit the Communist Party and became the leader of a small party, the Democratic Party, which had not cleared the electoral threshold in the April 2009 elections. 65. In the elections of 29 July 2009, five parties cleared the electoral threshold: the Communist Party obtained 48 seats; the Liberal Democratic Party obtained 18 seats; the Liberal Party obtained 15 seats; the Democratic Party obtained 13 seats; and the Our Moldova Alliance obtained 7 seats. The latter four parties formed a coalition called the Alliance for European Integration. The coalition had 53 seats in total and thus a majority in Parliament. 66. The applicant was re-elected. His mandate was subsequently confirmed by the Constitutional Court, upon production of the documents showing that he had initiated a procedure to renounce his Romanian nationality (see paragraph 60 above). 67. The majority elected Mr Mihai Ghimpu as Speaker on 28 August 2009. On 11 September 2009 the President of Moldova, Mr Vladimir Voronin, resigned. Under the Moldovan Constitution, Mr Ghimpu, in his capacity as Speaker, assumed the role of acting President until the election of a president in due course. 68. Since 25 September 2009 Moldova has been governed by the Alliance for European Integration coalition. On that date, Mr Vlad Filat was formally appointed Prime Minister and a number of ministers were also formally appointed. The applicant was appointed Minister of Justice. Under Moldovan law, the applicant will retain his mandate as an MP for six months following his appointment as Minister. 69. On 10 November 2009 Parliament made a first attempt to elect Mr Marian Lupu as President. Mr Lupu was not elected as the required 61 votes in favour were not obtained. The Communist Party refused to participate in the vote. A second attempt to elect a president was made on 7 December 2009. Again, the attempt was unsuccessful as a result of the failure to obtain the 61 votes required. 70. Under the Moldovan Constitution, in the light of the failure of the coalition to elect a president, fresh parliamentary elections will have to be held. 71. Article 4 of the Constitution of the Republic of Moldova reads: “1. Constitutional provisions for human rights and freedoms shall be understood and implemented in accordance with the Universal Declaration of Human Rights, and with other conventions and treaties to which the Republic of Moldova is a party. 2. Wherever inconsistencies appear between human rights conventions and treaties signed by the Republic of Moldova and its own national laws, international regulations shall prevail.” 72. Article 8 of the Constitution provides that: “1. The Republic of Moldova is obliged to respect the United Nations Charter and the treaties to which it is a party ...” 73. The relevant provisions of Law no. 595-XIV on international treaties of the Republic of Moldova read: “International treaties shall be complied with in good faith, in accordance with the principle pacta sunt servanda. The Republic of Moldova cannot invoke the provisions of its internal legislation as a justification for non-compliance with an international treaty to which it is a party.” “The provisions of the international treaties which, according to their wording, are susceptible to be applicable without there being need for enactment of special legislative acts, shall have an enforceable character and shall be directly applied in the Moldovan law system. For the realisation of other provisions of the treaties, special normative acts shall be adopted.” 74. According to section 24 of the Law on citizenship of the Republic of Moldova (Law no. 1024 of 2 June 2000), as amended on 5 June 2003, multiple nationalities are permitted in Moldova and the acquisition by a Moldovan national of another nationality does not entail loss of the Moldovan nationality. 75. Section 25 provides that Moldovan citizens who reside lawfully and habitually in the territory of Moldova and hold the nationality of another State shall enjoy the same rights and duties as the other citizens of Moldova. Law no. 273 inserted an exception to the principle in section 25 of equal treatment of all citizens “in cases provided for by law”. 76. Section 39 provides for an oath of allegiance to be sworn by those granted citizenship of Moldova through naturalisation or reacquisition of nationality. The oath states: “I (surname, first name), born (time and place of birth), swear to be a faithful citizen of the Republic of Moldova, to respect its Constitution and other laws and not to take any actions that would prejudice the interests and territorial integrity of the State.” 77. On the right to vote and to be elected, the relevant parts of the Constitution provide: “... 3. The right to be elected is guaranteed to Moldovan citizens who enjoy the right to vote, within the conditions of the law.” “1. The citizens of Moldova shall have the right to participate in the administration of public affairs in person or through their representatives. 2. Every citizen shall have access, in accordance with the law, to public functions.” 78. Law no. 273 set out amendments to the electoral legislation. Section 10 of the draft law adopted by Parliament on 7 December 2007 but not promulgated by the President, proposed that the Electoral Code be amended to include the following: “Candidates for the office of MP shall be at least 18 years old on the day of the elections, shall have exclusively Moldovan citizenship, shall live in the country and shall fulfil the conditions provided for in the present code.” 79. Section 9 of the final version of Law no. 273, which came into force on 13 May 2008, introduces the following provisions into the Electoral Code: “(1) Candidates for the office of MP shall be at least 18 years old on the day of the elections, shall have Moldovan citizenship, shall live in the country and shall fulfil the conditions provided for in the present code. (2) At the moment of registering as a candidate, any person holding the citizenship of another country shall declare that he or she holds another citizenship or that he or she has applied for another citizenship. (3) At the time of validation of the MP mandate, the person indicated in paragraph (2) shall prove with documents that he or she has renounced or initiated the procedure of renunciation of the citizenship of other States or that he or she has withdrawn an application to obtain another citizenship. (4) A failure to declare the fact of holding another citizenship at the moment of registering as a candidate for the office of MP or the fact of obtaining another citizenship during the exercise of an MP mandate, shall be sufficient grounds for the Constitutional Court to annul the MP mandate at the request of the Central Electoral Commission.” 80. The position of Transdniestria is set out in section 21 of the Law: “ ... (3) The incompatibilities provided for in the present Law shall apply to persons living in Transdniestria only in so far as they are stipulated in the legislation concerning the special legal status of Transdniestria.” 81. Limited parliamentary debate took place on this particular provision of the Law. The only relevant extract, from the plenary parliament debates on 7 December 2007, is as follows: “Vladimir Braga, MP: The citizens who are citizens of the Republic of Moldova and live in Transdniestria will continue to have double nationality and then the effectiveness of the Law is marginalised, or, to put it better, we reject the citizens from Transdniestria, who are also citizens of the Republic of Moldova. Vladimir Ţurcan, MP: Not at all. There is one thing which has to be understood: firstly, this Law does not apply to all citizens. Secondly, it refers only to those who have positions in public authorities. Thirdly, we deliberately inserted here a clause in the final and transitional provisions: I draw your attention to the fact that the third paragraph refers to persons who live and work in the respective authorities of the left bank, in Transdniestria, that this Law does not apply in this case to the said persons and that it will only be applied [to them] in so far as this is provided for in the Law concerning the special status of Transdniestria.” 82. According to Article 38 of the Code of Constitutional Jurisdiction of the Republic of Moldova, the Constitutional Court may be seized only by the President of the country, the government, the Minister of Justice, the Supreme Court of Justice, the Economic Court, the Prosecutor General, the MPs, the parliamentary factions and the Ombudsman. 83. The Preamble to the Council of Europe European Convention on Nationality (“the ECN”), which came into force in general and in respect of Moldova on 1 March 2000, explains the purpose of the ECN. The relevant parts of the Preamble provide: “Recognising that, in matters concerning nationality, account should be taken both of the legitimate interests of States and those of individuals; ... Noting the varied approach of States to the question of multiple nationality and recognising that each State is free to decide which consequences it attaches in its internal law to the fact that a national acquires or possesses another nationality; ...” 84. Article 15 of the ECN sets out possible cases of multiple nationality other than those which arise where individuals acquire multiple nationalities automatically at birth or a second nationality automatically upon marriage. It provides as follows: “The provisions of this Convention shall not limit the right of a State Party to determine in its internal law whether: a. its nationals who acquire or possess the nationality of another State retain its nationality or lose it; b. the acquisition or retention of its nationality is subject to the renunciation or loss of another nationality.” 85. On the rights and duties related to multiple nationality, Article 17 provides: “Nationals of a State Party in possession of another nationality shall have, in the territory of that State Party in which they reside, the same rights and duties as other nationals of that State Party. The provisions of this chapter do not affect: a. the rules of international law concerning diplomatic or consular protection by a State Party in favour of one of its nationals who simultaneously possesses another nationality; b. the application of the rules of private international law of each State Party in cases of multiple nationality.” 86. The Venice Commission has adopted a Code of Good Practice in Electoral Matters. The relevant parts of the explanatory report to this code read as follows: “6b. [U]nder the European Convention on Nationality persons holding dual nationality must have the same electoral rights as other nationals. ... 63. Stability of the law is crucial to credibility of the electoral process, which is itself vital to consolidating democracy. Rules which change frequently – and especially rules which are complicated – may confuse voters. Above all, voters may conclude, rightly or wrongly, that electoral law is simply a tool in the hands of the powerful, and that their own votes have little weight in deciding the results of elections. 64. In practice, however, it is not so much stability of the basic principles which needs protecting (they are not likely to be seriously challenged) as stability of some of the more specific rules of electoral law, especially those covering the electoral system per se, the composition of electoral commissions and the drawing of constituency boundaries. These three elements are often, rightly or wrongly, regarded as decisive factors in the election results, and care must be taken to avoid not only manipulation to the advantage of the party in power, but even the mere semblance of manipulation. 65. It is not so much changing voting systems which is a bad thing – they can always be changed for the better – as changing them frequently or just before (within one year of) elections. Even when no manipulation is intended, changes will seem to be dictated by immediate party political interests.” 87. On the basis of the information available to the Court, it would seem that, apart from Moldova, three countries (Azerbaijan, Bulgaria and Lithuania) clearly ban dual nationals from being elected to Parliament. In Azerbaijan and Lithuania, it is in any event prohibited to hold dual nationality; in Bulgaria, holding dual nationality is permitted. The Constitution of a fourth country, Malta, provides that a person shall not be qualified for election to the House of Representatives “if he is a citizen of a country other than Malta having become such a citizen voluntarily or is under a declaration of allegiance to such a country”; it is not entirely clear whether the provision applies to non-nationals or to multiple nationals. In any case, there are no known examples of the provision being enforced and it is not clear whether it was intended that the limitation remain in force after the law was amended to permit dual nationality in Malta in 2000. Romania, which permits dual nationality, lifted its ban on dual nationals becoming MPs in 2003. 88. In Latvia, there is no prohibition on MPs having dual nationality but a person with dual nationality cannot be elected president. It should be noted that dual nationality is prohibited in principle under Latvian law, although it is allowed in certain limited circumstances. Monaco restricts citizens from becoming members of the Conseil National if they hold public or elected office in another State. Portugal prohibits non-resident dual nationals from becoming MPs for the constituency covering the territory of their other nationality. 89. In short, three member States of the Council of Europe – Bulgaria, Malta and Moldova (subject to the ambiguity outlined above) – currently allow dual nationality but prohibit dual nationals from becoming MPs. In addition, Azerbaijan and Lithuania, which prohibit dual nationality, also prohibit dual nationals becoming MPs. Of these four other countries, Azerbaijan and Lithuania have not signed the ECN; Bulgaria has lodged a reservation in respect of Article 17 of the ECN; and Malta has signed, but not ratified, the ECN. 90. Twenty-seven States other than Moldova allow dual nationality. In nineteen member States, dual citizenship is prohibited in principle. Dual nationality is prohibited in Ukraine. 91. Estonia, Latvia and Lithuania prohibit dual nationality. According to the census for the year 2000, there were around 200 dual nationals in Estonia. There are around 700 dual nationals in Lithuania. No figures are available for Latvia. Around a quarter of the population of Estonia and Latvia is ethnically Russian. 92. In the States of the former Yugoslavia, Croatia, Serbia, Slovenia and “the former Yugoslav Republic of Macedonia” allow dual citizenship, although Croatia and Slovenia seek to exclude it for naturalised citizens. In Bosnia and Herzegovina and Montenegro, dual nationality is permitted only in respect of States with which a bilateral agreement has been concluded. The populations of most of these States are ethnically mixed. Montenegro (43% Montenegrin; 32% Serb; 8% Bosniak; 17% other) and Bosnia and Herzegovina (48% Bosniak; 37.1% Serb; 14.3% Croat; 0.6% other) have the most ethnically mixed populations, followed by “the former Yugoslav Republic of Macedonia” (64.2% Macedonian; 25.2% Albanian; 10.6% other). The numbers of dual nationals in these countries is not known. None of these States prohibit dual nationals from standing for Parliament. 93. In the twenty-seven member States of the European Union, sixteen allow dual nationality, five prohibit it or allow it only in exceptional circumstances (the Czech Republic, Denmark, Greece, Lithuania and Poland) and six (Austria, Estonia, Germany, Latvia, the Netherlands and Spain) allow it in certain circumstances, to varying extents. Two States – Bulgaria and Lithuania – prohibit the election of dual nationals to Parliament. Further limitations exist in three States (Latvia, Malta and Portugal – see paragraphs 87-88 above).