Print European Court of Human Rights
Case of Mathieu-Mohin and Clerfayt v. Belgium
2 March 1987, 9/1985/95/143, series A no.113
Interpretation of Article 3 of Protocol No. 1 (P1-3)
46. Since the Court is being asked to determine complaints under Article 3 of Protocol No. 1 (P1-3) for the first time, it deems it necessary to indicate the meaning it ascribes to that Article (P1-3) in the context of the instant case.
47. According to the Preamble to the Convention, fundamental human rights and freedoms are best maintained by "an effective political democracy". Since it enshrines a characteristic principle of democracy, Article 3 of Protocol No. 1 (P1-3) is accordingly of prime importance in the Convention system.
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51. As to the nature of the rights thus enshrined in Article 3 (P1-3), the view taken by the Commission has evolved. From the idea of an "institutional" right to the holding of free elections (decision of 18 September 1961 on the admissibility of application no. 1028/61, X v. Belgium, Yearbook of the Convention, vol. 4, p. 338) the Commission has moved to the concept of "universal suffrage" (see particularly the decision of 6 October 1967 on the admissibility of application no. 2728/66, X v. the Federal Republic of Germany, op. cit., vol. 10, p. 338) and then, as a consequence, to the concept of subjective rights of participation - the "right to vote" and the "right to stand for election to the legislature" (see in particular the decision of 30 May 1975 on the admissibility of applications nos. 6745-6746/76, W, X, Y and Z v. Belgium, op. cit., vol. 18, p. 244). The Court approves this latter concept.
52. The rights in question are not absolute. Since Article 3 (P1-3) recognises them without setting them forth in express terms, let alone defining them, there is room for implied limitations (see, mutatis mutandis, the Golder judgment of 21 February 1975, Series A no. 18, pp. 18-19, § 38). In their internal legal orders the Contracting States make the rights to vote and to stand for election subject to conditions which are not in principle precluded under Article 3 (P1-3) (Collected Edition of the "Travaux Préparatoires", vol. III, p. 264, and vol. IV, p. 24). They have a wide margin of appreciation in this sphere, but it is for the Court to determine in the last resort whether the requirements of Protocol No. 1 (P1) have been complied with; it has to satisfy itself that the conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate (see, amongst other authorities and mutatis mutandis, the Lithgow and Others judgment of 8 July 1986, Series A no. 102, p. 71, § 194). In particular, such conditions must not thwart "the free expression of the opinion of the people in the choice of the legislature".
53. Article 3 (P1-3) applies only to the election of the "legislature", or at least of one of its chambers if it has two or more ("Travaux Préparatoires", vol. VIII, pp. 46, 50 and 52). The word "legislature" does not necessarily mean only the national parliament, however; it has to be interpreted in the light of the constitutional structure of the State in question. (…)
54. As regards the method of appointing the "legislature", Article 3 (P1-3) provides only for "free" elections "at reasonable intervals", "by secret ballot" and "under conditions which will ensure the free expression of the opinion of the people". Subject to that, it does not create any "obligation to introduce a specific system" ("Travaux Préparatoires", vol. VII, pp. 130, 202 and 210, and vol. VIII, p. 14) such as proportional representation or majority voting with one or two ballots. Here too the Court recognises that the Contracting States have a wide margin of appreciation, given that their legislation on the matter varies from place to place and from time to time. Electoral systems seek to fulfil objectives which are sometimes scarcely compatible with each other: on the one hand, to reflect fairly faithfully the opinions of the people, and on the other, to channel currents of thought so as to promote the emergence of a sufficiently clear and coherent political will. In these circumstances the phrase "conditions which will ensure the free expression of the opinion of the people in the choice of the legislature" implies essentially - apart from freedom of expression (already protected under Article 10 of the Convention) (art. 10) - the principle of equality of treatment of all citizens in the exercise of their right to vote and their right to stand for election. It does not follow, however, that all votes must necessarily have equal weight as regards the outcome of the election or that all candidates must have equal chances of victory. Thus no electoral system can eliminate "wasted votes". For the purposes of Article 3 of Protocol No. 1 (P1-3), any electoral system must be assessed in the light of the political evolution of the country concerned; features that would be unacceptable in the context of one system may accordingly be justified in the context of another, at least so long as the chosen system provides for conditions which will ensure the "free expression of the opinion of the people in the choice of the legislature".