CASE OF SITAROPOULOS AND OTHERS v. GREECE
Violation of P1-3;Non-pecuniary damage - finding of violation sufficient
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Flogaitis;Khanlar Hajiyev;Spyridon Flogaitis;Sverre Erik Jebens
6. The applicants were born in 1967, 1961 and 1958 respectively and live in Strasbourg. They are officials of the Council of Europe 7. 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. 8. In a fax dated 10 September 2007 to the Greek Ambassador in France, the applicants, as permanent residents in France, expressed the wish to exercise their voting rights in France in the elections to be held on 16 September 2007. 9. In his reply of 12 September 2007 the Ambassador, relying on the instructions and information provided by the Ministry of the Interior, stated as follows: “[The Greek State] confirms its wish – expressed frequently at the institutional level – to enable Greek citizens resident abroad to vote at their place of residence. However, it is clear that this matter requires regulation by means of legislation which does not currently exist. In fact, such regulation could not be brought about by a simple administrative decision, given that special measures would be 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.” 10. The general election took place on 16 September 2007. The applicants, who did not return to Greece, did not exercise their right to vote. 11. The relevant provisions of the Greek Constitution read as follows: “ ... 2. Popular sovereignty is the foundation of government. 3. All powers derive from the People and exist for the People and the Nation; they shall be exercised as specified by the Constitution.” “ ... 3. The Members of Parliament shall be elected through direct, universal and secret ballot by those citizens who have the right to vote, as specified by law. The law cannot curtail the right to vote except in cases where the statutory minimum age has not been attained or in cases of legal incapacity or as a result of 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 living outside the country may be specified by statute. 5. The exercise of the right to vote is compulsory. Exceptions and criminal sanctions shall be specified in each case by law.” 12. Following the Constitutional revision of 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 simultaneously holding elections does not rule out the exercise of their right to vote by postal vote or by other appropriate means, provided that the counting of votes and the announcement of the results is carried out at the same time as within the country.” “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.” 13. 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: “Any Greek national aged 18 or over is entitled to vote. ...” “The following persons are not entitled to vote: (a) Persons who have been placed under guardianship, in accordance with the provisions of the Civil Code. (b) Persons finally convicted of one of the offences provided for in the Criminal Code or the Military Criminal Code, for the duration of their sentence. “ “1. The right to vote in a constituency is reserved to those persons registered on the electoral roll of a municipality or local authority area within that constituency. 2. Voting is mandatory.” 14. The report on that 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 the right to vote of Greek nationals living abroad arose out of both Article 108 and Article 51 § 4 of the Constitution. In particular, as regards Article 108, the report pointed out that it “affords Greek expatriates a ‘social right’. The provision obliges the Greek State to take all necessary measures to maintain Greek expatriates’ ties with Greece, to ensure 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 stated that the law to which that Article referred had the status of an implementing law of the Constitution. Finally, the report considered that “in these times of globalisation, Greek expatriates must be able to have a decisive political say in the development of their own country”. 15. The Scientific Council (Επιστημονικό Συμβούλιο) of Parliament, a consultative body reporting to the Speaker of Parliament, produced a report dated 31 March 2009 on the aforementioned bill. That report noted that in the past, some legal authorities had argued that Article 51 § 4 of the Constitution imposed upon Parliament an obligation to grant expatriate Greeks the right to vote from outside Greece. However, referring to other legal authorities and the preparatory work for Article 51 § 4 of the Constitution, the Scientific Council stated that it was an option rather than a duty of the legislature to grant the right to vote from abroad. It observed, further, that the optional nature of the aforementioned provision of the Constitution had not been affected by the Constitutional revision of 2001. 16. On 7 April 2009 the bill was rejected by Parliament since it failed to gain the majority of two thirds of the total number of Members of Parliament required under Article 51 § 4 of the Constitution. 17. According to the information provided on the website of the Greek Ministry of the Interior concerning Greek nationals living abroad, elections to the European Parliament are organised as follows: “Greek citizens who have their residence in the other 26 countries of the European Union and Greeks who happen to be in another Member State of the European Union on Election Day are entitled to participate in the election process in Greece in parallel with Greek voters throughout the Greek State. These results will be incorporated into the general voting results achieved in the Greek State overall. ... In order to exercise their right to vote at their place of residence Greeks resident abroad should: be registered in an electoral roll of a municipality or community in Greece; be entitled to vote and not have been deprived of that right; submit a statement to the local Embassy or Consulate (in the area where they intend to exercise their voting rights) that they wish to vote at their place of residence. ...; have their residence in a Member State of the European Union on Election Day. Based on this statement they will be entered in special electoral rolls prepared by the Ministry of Interior. ... Buildings belonging to Greek Embassies or Consulates, buildings of other Greek authorities or services, independent offices of Greek Christian Orthodox Churches and buildings or other premises belonging to Greek communities, associations or other Greek organizations may be used as polling stations (to be decided on by the Minister of Interior), which will form electoral departments. In case these buildings are inadequate to meet election needs, buildings belonging to the EU Member State may be used. The number of electoral departments (to be decided on by the Minister of Interior), which will be established for each Embassy or Consulate depends on the number of voters stating their intention to vote in that area ... Voting at each electoral department will take place under the supervision of a returning board which will consist of ... a Chairman and three voters from those included in the special electoral rolls. The [Chairman] will be appointed by Chamber I of the Hellenic Supreme Court. The other members of the returning board drawn from persons registered in the special electoral rolls will be appointed by the local Ambassador or Consul following a public draw of lots at the Embassy or Consulate. The date and time of such drawing of lots shall be notified by Embassies and Consulates by displaying a notice to this effect at their offices. Judicial functionaries, court employees and attorneys at law from Greece may be appointed as [Chairmen] of the returning boards. If inadequate numbers of such persons are available to cover the needs of all electoral departments, at exception the Chamber I of the Hellenic Supreme Court may appoint the following persons ...: permanent Embassy and Consul attachés and secretaries ... of higher or tertiary level education employed in the post of Advisor (Grade A or above) serving within the area covered by the Embassy or Consulate.” 18. The relevant texts adopted by the competent bodies of the Council of Europe provide as follows: “ ... 2. In accordance with the opinion of the European Commission for Democracy through Law (Venice Commission) adopted in December 2004, it therefore 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 evoting. 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; ...” “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.” “... 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; ...” “... 52. Although the Code of Good Practice in Electoral Matters is not a binding document, it does nonetheless set out a European standard which could influence the interpretation of treaty-based rules, in particular Article 3 of Protocol 1 (see infra 2.). 53. Guideline I.3.2 of the Code states that electronic voting should be accepted only if it is secure and reliable. In particular, electors must be able to obtain confirmation of their vote and correct it if necessary, while respecting secret suffrage. The system’s transparency must be guaranteed. Any violation of secret suffrage should be sanctioned (guideline I.4.d). 54. In paragraph 42 onwards of the explanatory report, this guideline is clarified as follows: Although mechanical and electronic voting methods present clear advantages when several elections are taking place at the same time, certain precautions are needed to minimise the risk of fraud, for example by enabling the voter to check his or her vote immediately after casting it. In order to facilitate verification and a recount of votes in the event of an appeal, it may also be provided that a machine could print votes onto ballot papers; these would be placed in a sealed container where they cannot be viewed. All the methods used should enable the confidentiality of the ballot to be guaranteed (see explanatory report, § 42). Electronic voting methods are ‘secure’ if the system can withstand deliberate attack; they are ‘reliable’ if they can function on their own, irrespective of any shortcomings in the hardware or software (§ 43). The system’s transparency must be guaranteed, in the sense that it must be possible to check that it is functioning properly (§ 43). 55. According to guideline I.1.a., democratic elections are not possible without respect for human rights, in particular freedom of expression and of the press, freedom of circulation inside the country, freedom of assembly and freedom of association for political purposes, including the creation of political parties. Restrictions of these freedoms must be in conformity with the ECHR and, more generally, have a basis in law, be in the public interest and comply with the principle of proportionality (cf. § 60 of the explanatory report). 56. It may be concluded that, on the one hand, the institutionalisation of postal voting and e-enabled voting is, in principle, compatible with the Code of Good Practice. On the other hand, their compatibility depends primarily on adequate provision, through national legislation and legal practice, of the prescribed conditions, taking particular account of technical and social conditions.” 56. 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 .... 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 ... ... 151. Postal voting is permitted in several established democracies in Western Europe, e.g. Germany, Ireland, Spain, Switzerland and, for voters abroad, the Netherlands, Norway, and Sweden ... 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. ...” 19. Having carried out a comparative study of the domestic law of thirty-three Council of Europe member States based primarily on data gathered by the Venice Commission and by the Organisation for Security and Cooperation in Europe, the Court notes that the great majority of those countries have implemented procedures to allow their nationals living abroad to vote in parliamentary elections. In particular, twenty-six countries make provision, without restriction as to the persons concerned, for the right to vote from abroad (Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Estonia, Finland, France, Georgia, Germany, Hungary, Italy, Latvia, Lithuania, Luxembourg, Moldova, Poland, the Netherlands, Romania, Russia, Serbia, Slovakia, Spain, Sweden, Switzerland, Ukraine and the United Kingdom). Three member States impose certain restrictions on their nationals’ right to vote from abroad (Ireland, Denmark and the Czech Republic). Finally, four member States make no provision for their nationals living abroad to vote in parliamentary elections (Albania, Armenia, Azerbaijan and Malta).