FEDERACION NACIONALISTA CANARIA v. SPAIN
Inadmissible
The applicant, Federación Nacionalista Canaria, is a federation of political parties which was founded on 14 August 1998 and is based in Arrecife (Lanzarote). It was represented before the Court by Mr F. Fernández Camero and Ms J.M. Fernández de las Heras, lawyers practising in Lanzarote. On 18 June 1999 general elections to the legislative assembly of the Autonomous Community of the Canary Islands took place. The applicant federation submitted various observations on the results issued by certain polling stations in the constituency of the island of Lanzarote. On 19 June 1999 the applicant federation lodged a complaint on the matter with the Canary Islands Electoral Council, which dismissed the complaint in a decision of 20 June 1999. On 21 June 1999 the applicant federation lodged an ordinary appeal against that decision with the Central Electoral Council, which dismissed the appeal in a decision of 23 June 1999. On 28 June 1999 the Canary Islands Electoral Council announced the names of the candidates who had been elected to the eight seats representing Lanzarote in the regional legislative assembly. The applicant federation, which had obtained 28.13% of the valid votes cast in the Lanzarote constituency, was not awarded any seats in the regional assembly. Nor was it awarded any seats in respect of the other constituencies of the Autonomous Community of the Canary Islands, although it had obtained 4.81% of the valid votes cast in the Autonomous Community as a whole. The applicant federation applied to the Canary Islands High Court of Justice for judicial review of the election results, alleging that there had been irregularities and claiming approximately 100 additional votes, which it maintained had not been counted. In a judgment of 22 September 1999 the court dismissed the application. It stated, firstly, that it had no jurisdiction to rule on the applicant federation’s objections concerning the thresholds for parliamentary representation (barreras electorales) laid down in the Canary Islands’ Statute of Autonomy. Next, it examined the applicant federation’s allegations of irregularities in the vote count and upheld the decisions which the electoral councils had taken to the federation’s detriment. Thirdly, it added that the other alleged irregularities, which had not been sufficiently established, did not form a basis on which the elections could be declared void or the list of elected candidates amended in accordance with the applicant federation’s wishes. The applicant federation lodged an appeal with the Constitutional Court (recurso de amparo) on the basis of Article 23 § 2 of the Constitution. In a decision of 8 October 1999 the Constitutional Court dismissed the amparo appeal. It held: “The application of statutory thresholds or exclusion clauses has been endorsed by this court’s case-law as a means of refining the principle of proportionality, a ‘guiding imperative’ that shapes, but does not predetermine, the decision-making freedom of a democratic legislature, with a view to avoiding the excessive and dysfunctional fragmentation of Parliament, thereby facilitating governance and the work of the parliamentary bodies ... representing the various political forces... Consequently, the imposition of an electoral threshold or barrier – that is to say, a requirement that a fixed percentage of the vote must be obtained for candidates to be eligible to take part in the distribution of seats in accordance with established models – cannot be said to infringe the rights enshrined in Article 23 of the Constitution (the right to participate in public affairs and the right of access to public posts on equal terms). Furthermore, the prior allocation, regardless of population size, of a set number of seats to each constituency of an electoral region, is not unconstitutional... Quite apart from the ‘guiding imperative’ referred to above, other constitutionally valid concerns, such as the need to ensure, for geographical or, indeed, demographic reasons, that all the territorial areas making up the electoral region are adequately represented, serve in themselves as justification for the electoral system in question. The system established by the Statute of Autonomy, whereby the number of residents per seat must lie within specified limits in each of the constituencies, is in no way manifestly disproportionate or arbitrary. The appeal is therefore inadmissible and the reasons given for the application of electoral legislation in the judgment appealed against are sufficient from a constitutional standpoint.” “1. Parliament (Cortes Generales) shall represent the Spanish people and shall be composed of the Congress of Deputies and the Senate. 2. Parliament shall exercise the legislative power of the State...” “By virtue of the ... Constitution, each Autonomous Community shall have as its basic institutional law a Statute, which the State shall recognise and protect as an integral part of its legal system.” “1. The Autonomous Communities may exercise powers in the following areas: (i) organisation of their institutions of self-government; ...” “Responsibilities not expressly conferred on the State by the Constitution may fall to the Autonomous Communities, in accordance with their Statutes. ...” “1. In matters within the State’s field of competence, Parliament may endow all or some of the Autonomous Communities with powers to enact legislative provisions for themselves in accordance with the principles, bases and guidelines set out in national legislation. ... 2. The State may, by means of an institutional Act, transfer or delegate to the Autonomous Communities powers within its own sphere of competence that are, by their very nature, capable of being transferred or delegated. ...” “In the Statutes approved by means of the procedure laid down in the foregoing Article, the institutional organisation of the Autonomous Community shall be based on: a legislative assembly elected by universal suffrage according to a system of proportional representation that also ensures that the various geographical areas of the Community are represented; a Governing Council with executive and administrative functions; and a President, who shall be elected by the assembly from among its members and appointed by the King, and who shall preside over the Governing Council and act as the supreme representative of the Autonomous Community and the ordinary representative of the State within the Community. ...” “1. Parliament, the representative body of the people of the Canary Islands, shall be composed of regional deputies (autonómicos) elected by direct universal suffrage in an equal, free and secret ballot. 2. The electoral system shall be one of proportional representation. 3. The number of deputies shall be neither lower than 50 nor higher than 70. 4. The islands of Hierro, Fuerteventura, Gran Canaria, Gomera, Lanzarote, La Palma and Tenerife shall each form an electoral constituency.” “... 2. ... in accordance with Article 9 of this Statute, and save where a law passed by a two-thirds majority of the members of the Canary Islands’ legislative assembly provides otherwise, the only lists to be taken into account shall be those of the parties or coalitions that have obtained the greatest number of valid votes in each of the constituencies and the other [lists] that have obtained at least 30% of the valid votes cast in a single constituency or, adding together the votes for each constituency, at least 6% of the valid votes cast in the Autonomous Community as a whole.”