NGOs under European Convention on Human Rights / Tymofeyeva

As to the composition of the electoral commissions, the Court concluded that it was not provided with any proof of particular acts of abuse of power or electoral fraud committed within the electoral commissions. Therefore, no breach of the applicant’s right to stand for election could be established. According to the Convention, the Court could not find a violation of Article 3 of Protocol No. 1 solely on the basis of the allegation, no matter how plausible, that the electoral system used in Georgia created possibilities for fraud. The last part of the Court’s analysis under Article 3 of Protocol No. 1 to the Convention dealt with the Khulo and Kobuleti voters’ inability to participate in the repeat parliamentary election. It is true that the applicant party was entitled to rely on the electorate of Khulo and Kobuleti, irrespective of its chances of obtaining a majority of their votes. The exclusion of voters could therefore impede the effective exercise by an election candidate of its right to stand for election. The Georgian government did not adduce any relevant and sufficient reasons to explain why, without examining the electoral material from each district, the CEC had come to the conclusion that all of the results in the two districts were invalid. In the Court’s view, the CEC’s decision could be seen as arbitrary. Moreover, after the failure to open polling stations on 18 April 2004, the CEC had taken a hasty decision to terminate the country-wide election. Taking into account the positive obligations of the state and the importance of the principle of universal suffrage, the Court concluded that there had been a violation of Article 3 of Protocol No. 1 on this account. 1220 As stated before, states enjoy a wide margin of appreciation in the area of law on elections. With regard to this, in a number of cases, applications of Article 34 NGOs about their right to stand for electionwere declared inadmissible. For instance, in the case of Federación nacionalista Canaria v. Spain, 1221 the applicant, Federación Nacionalista Canaria, was a federation of political parties based in Arrecife (Lanzarote). Relying on Article 3 of Protocol No. 1, it complained that as a result of amendments to the legislation in the region setting thresholds for parliamentary representation as high as 30% of the vote in any given constituency, the three mainstream parties had the most benefit from the reform. It acknowledged that, in principle, such amendments served a legitimate aim of avoiding the excessive “atomisation” of political representation, but considered that these thresholds were excessive. It noted that the other regions in Spain had imposed thresholds of between 3% and 5% of the vote in a particular constituency. Therefore, it effectively precluded the election of parties and coalitions standing in a single constituency, and therefore their right to stand for election was affected in a disproportionate manner. The Court supported its decision by the fact that even a system that fixes a relatively high threshold, e.g. on the number of signatures required in order to stand for election or a minimum percentage of votes on the national level, may be regarded as not exceeding the margin of appreciation permitted to states in the matter. In this connection, the Court reiterated that it is not its task to take the place of the national courts. 1222 It is primarily for the national

1220 LÉCUYER, 2014, cited above, p. 34. 1221 Federación nacionalista Canaria (dec.), cited above. 1222 WELLER, 2010, cited above, p. 216.

232