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Numerical criterion and territorial representation for the registration of political parties
On 25 February 2020, the Constitutional Court ruled on the exception of unconstitutionality of some provisions of Article 8 para. (1) d) of Law no. 294 of 21 December 2007 on Political Parties (Judgement no. 5 of 25.02.2020).
In this case, on 8 February 2018, a group of people submitted an application for the registration of a political party to the Ministry of Justice, which was returned with no decision adopted. After a repeated request, the Ministry of Justice refused to register the party because it did not meet the numerical criteria and territorial representation requirements for the registration of political parties.
During the examination of the case in court, the applicants raised the exception of unconstitutionality of some provisions of Article 8 para. (1) d) of Law no. 294 of 21 December 2007 on Political Parties.
At the admissibility stage, the Court observed that in its previous acts on this matter, it limited itself to noting that the power to lay down rules for the registration of political parties belongs to the Parliament who enjoys a margin of discretion. As a result, the Court did not resort to the proportionality test of the measures instituted in this regard by the Legislature.
Aware of this fact, the Court decided to examine the proportionality of the impugned rule in the light of Article 41 of the Constitution, which guarantees the freedom of parties and other socio-political organizations.
Thus, the Court considered that it had to analyze whether the three cumulative conditions imposed on the registration of a political party: 1) the requirement of four thousand citizens with the right to vote; 2) the requirement that the party members be domiciled in at least half of the second level administrative-territorial units; 3) the requirement to gather at least 120 members in each of the mentioned administrative-territorial units, constitutes a necessary measure in a democratic society, in accordance with the provisions of Article 54 of the Constitution.
As to whether the impugned rule is clear, the Court noted that the law sets out accessible, clear and foreseeable criteria that a citizens' association must meet in order to acquire the legal status of a political party.
As to whether the impugned rule pursued a legitimate aim, the Court found that the information note to the draft law on political parties did not set out any arguments which would justify the institution of conditions for the registration of a political party.
From the general context of that measure, the Court inferred that the pursued aim was to ensure the representativeness of political parties and to avoid excessive fragmentation of the political spectrum, thereby promoting the stability of the political system and the protection of public confidence in political parties. These objectives may be subsumed under the general legitimate aims of defending the national security, territorial integrity and public order, provided by Article 54 para. (2) of the Constitution.
As to whether there is a rational link between the representation requirement and the legitimate aims pursued by it, the Court held that, from an abstract point of view, the numerical criterion and territorial representation requirements can contribute to the achievement of the above objectives.
As to whether the representation requirement is necessary to achieve the proposed aims, the Court noted that in the area covered by the impugned rule, the Parliament enjoys a certain margin of discretion. It is for the Court to determine whether the legislature did not manifestly exceed the limits of its discretion.
The Court noted that although it is clear that the measure under review is excessive, compared to the alternatives that the legislature allegedly had available, i.e. reducing the numerical criterion and representativeness conditions for the registration of a political party below the currently regulated limits, the specificity of the numerical criterion and representativeness conditions is that they leave room for discussion on the best solution in the case of registration of a political party.
When comparing the regulation of the national representation requirement with the regulation of this requirement in other states, the Court found that there is no European consensus on the formula for calculating the minimum number of members required for the registration of a political party. In view of these facts, the Court noted that it was not within its power to establish a specific number which at the same time would constitute an appropriate solution. The power to determine this number belongs to the legislator.
At the same time, the Court noted that in order to achieve the intended purpose of ensuring the representation of political parties, of avoiding excessive fragmentation of the political spectrum, of promoting the stability of the political system and protecting the public trust in political parties, certain conditions may be established not for the formation of political parties, but for their participation in elections.
There is also an additional measure to ensure the achievement of the intended legitimate aim, namely the minimum representation threshold, laid down by Article 94 of the Electoral Code for parliamentary elections. Thus, political parties, electoral blocs and independent candidates who received a smaller number of votes than the one specified in the law are excluded from the mandate assignment process by a decision of the Central Electoral Commission.
As to whether there is a fair balance between the competing principles, the Court held that at this stage it must weigh, on the one hand, the stability of the political system and the protection of the public confidence in political parties, which is a protected principle, and, on the other hand, the freedom of association into political parties, which is an affected principle.
In its case-law, the European Court established that the numerical criterion and representativeness condition for political parties under registration would be justified only if it allowed the unhindered establishment and functioning in optimal conditions of a plurality of political parties representing the interests of various population groups. It is important to ensure access to the political arena for different parties on terms which allow them to represent their electorate, draw attention to their preoccupations and defend their interests (Republican Party of Russia v. Russia, 12 April 2011, § 119; see, mutatis mutandis, the case of Christian Democratic People's Party v. Moldova, 14 February 2006, § 67). Moreover, the European Court held that any interference with the freedom of association must correspond to a “pressing social need” (Gorzelik and others v. Poland [GC], 17 February 2004, § 95).
The Court noted that the numerical criterion and territorial representation condition is a difficult obstacle to overcome when registering a political party. This obviously implies a high threshold that unduly limits the benefit of freedom of association into political parties.
The condition in question lays down disproportionate restrictive requirements for the registration of a political party, the cumulative fulfillment of three quantitative and territorial-representative conditions being necessary.
The Court also found that there was no proper balance between the collective and individual interests in the application of the impugned rule.
The Venice Commission, in its Opinion CDL-AD(2007)025 on the draft law on political parties of Moldova, also mentioned that the regulation of the requirement of five thousand members with domicile in at least half of the territorial administrative units of the second level of the country, but no less than 150 members in each of the aforementioned units seems to be a “formidably high threshold”, “almost impossible to fulfil for any group of common interest related to a limited part of the country”, they “put a burden on citizens trying to exercise their rights under Article 11 of the ECHR” is “potentially restrictive” and as such “would be disproportionate and not necessary in a democratic society”.
Finally, the Court noted that the numerical criterion of 4000 persons and the requirement of territorial representation of at least 120 members in at least half of the second level territorial administrative units in the Republic of Moldova, for the party under registration, is an excessive and disproportionate measure in relation to the legitimate aim pursued.
The Court noted that such a restriction is not justified, goes beyond the scope of an acceptable margin of discretion of the Parliament and is therefore incompatible with the provisions of Articles 41 and 54 of the Constitution.
In order to give the Parliament the opportunity to devise a reasonable legislative solution, the Court has ruled that the effects of this Judgment were to be applied from 31 July 2020.
At the same time, the Court took into account the fact that an exception of unconstitutionality was brought before it. The Court held that the exception of unconstitutionality “expresses an organic and logical link between the problem of constitutionality and the merits of the main proceedings” and that access to justice (including constitutional justice) must be understood as a concrete and effective right of access. As a result, in order to give effect to the present Judgement in the case in which the exception of unconstitutionality was raised, the Court decided that it would have immediate effect for the authors of the application. When adopting this solution, the Court also took into account the opinion of the Venice Commission Amicus curiae for the Constitutional Court of Georgia on the effects of the Constitutional Court decisions on final judgments in civil and administrative cases (Venice, 22-23 June 2018, CDL-AD (2018) 012, §§ 53-56), and the case-law of the European Court of Human Rights (see Frantzeskaki and Others v. Greece (Dec.), 12 February 2019, § 42).
In the event the Parliament does not revise Law no. 294 of 21 December 2007 on Political Parties in accordance with the reasoning set out in this judgement until 31 July 2020, the competent authority shall ensure the registration of political parties in accordance with the conditions established by law, except for the provisions that were declared unconstitutional.