MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1521/H46-16

6 March 2025

1521st meeting, 4-6 March 2025 (DH) Human rights   H46-16 Bakirdzi and E.C. v. Hungary (Application No. 49636/14) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2024)1483, CM/Del/Dec(2024)1492/H46-16

 

Application	Case	Judgment of	Final on	Indicator for the classification
49636/14	BAKIRDZI AND E.C.	10/11/2022	03/04/2023	Complex problem

Case description

This case concerns discriminatory restrictions of the voting rights of the applicants, both members of recognised national minorities (Greek and Armenian), on account of the national minority voting system (introduced by Act no. CCIII of 2011 on the Election of Members of Parliament – the Election Act), which “limited the opportunity of national minority voters to enhance their political effectiveness as a group and threatened to reduce, rather than enhance, diversity and the participation of minorities in political decision-making” (§ 73) (violation of Article 3 of Protocol No.1 in conjunction with Article 14).

Status of execution

Since the Committee of Ministers’ examination of this case in March 2024, the authorities submitted an information note on 18 December 2024 (DH-DD(2024)1483).

Background

Under the Fundamental Law of Hungary, participation of national minorities living in Hungary in the work of Parliament shall be ensured. To this end, the Election Act introduced a system for the representation of national minorities in Parliament, which led to the facts at stake in the present judgment.

Those who identify as members of one of the 13 recognised national minorities may pre-register as “national minority voters”. For each election cycle, national minority self-governments draw up a closed candidate list (“national minority list”). On election day, national minority voters cannot vote for political parties’ lists like other voters, but instead their choice is limited to voting (or abstaining from voting) for the one national minority list drawn up for the minority they belong to. The national minority lists benefit from a “preferential quota” (i.e. being exempted from the 5% threshold applicable to political party lists, one single preferential mandate can be obtained from each national minority list provided that the list gets one quarter of the votes that would be required for a mandate from a political party list). If this preferential threshold is not reached, the first candidate on the national minority list is instead appointed as a parliamentary spokesperson entitled to advocate on behalf of the minority without the right to vote.

In 2014, 140 voters pre-registered as Greek and 184 as Armenian minority voters (see § 11). The preferential quota for minorities in that year’s elections was 22 022 votes.

Individual measures

The Court held that the finding of a violation constituted sufficient just satisfaction and made no award concerning damages. The costs and expenses awarded by the Court were duly paid to both applicants.

Further individual measures are linked to the general measures, as the applicants’ possibility to participate in future elections in line with the Convention depends on the adoption of general measures (see below).

General measures

The minority voting system criticised by the Court has not been changed since the 2014 national elections, which were at issue in the present case. Thus, members of recognised national minorities who had pre-registered as national minority voters participated in national elections under the same legislative framework in 2018 and in 2022.

In March 2024, the Committee noted the authorities’ conclusion that legislative changes are required and that they needed to hold extensive consultations with the relevant stakeholders, including the representatives of the national minorities. It invited the authorities to establish a timeline for the legislative process, including the consultation with stakeholders, to identify the measures required to bring the domestic legislation fully in line with the Convention requirements, and to cooperate closely with the Secretariat. The Committee called on the authorities to ensure that the requisite legal reform comes into effect in good time before the next parliamentary elections, foreseen to take place in spring 2026, in order to ensure its compliance with the 2002 Code of Good Practices of the Venice Commission on electoral matters. Lastly, it encouraged the authorities to make full use of the resources and expertise available within the Council of Europe during this process, including the relevant texts and recommendations of the Framework Convention for the Protection of National Minorities, and the possibility to consult the Venice Commission.

In their most recent submissions, the Hungarian authorities noted that a national minority representative obtained a mandate on two occasions, namely one German minority representative who won a seat in Parliament in 2018 and in 2022, which demonstrated that the system was functioning. They further reiterated that the judgment required that changes be made to the underlying legislation, which however could only be made after extensive consultations with the relevant stakeholders, including the representatives of the national minorities.

Rule 9.2 communication

In their joint communication of 20 January 2025 (DH-DD(2025)106), the Hungarian Civil Liberties Union and the Hungarian Helsinki Committee underlined that while the Election Act was recently amended in another context, no measures have been taken concerning the implementation of the present case. Moreover, despite the judgment being final for almost two years, no consultations with minority representatives or other stakeholders have been launched on the requisite reform. 

Analysis of the Secretariat

It is recalled that the Court found a violation on account of the total effect of the combination of three aspects of the legislation (§ 74):

      i.        First, due to their size, it was practically impossible for certain national minorities to attain the preferential quota required to obtain a parliamentary seat, even if all voters belonging to these national minorities were to cast their vote for the respective minority list. In this respect, the Court emphasised that “the national legislator needs to assess whether the statutory scheme creates a disparity in the voting power of members of national minorities (…) to avoid that the potential value of votes that might be cast for national minority lists becomes diluted”. In addition, “when setting up a quorum for national minority groups, consideration needs to be given to whether (…) that electoral threshold has a negative impact on the opportunity of national minority voters to participate in the electoral process on an equal footing with other members of the electorate” (§§ 57-59).

     ii.        Second, the “characteristics of the domestic legislation resulted in the applicants’ being substantially limited in their electoral choice” (§ 72) as they “could only vote for their respective national minority lists as a whole or abstain from voting for the national minority list altogether”, irrespective of their political viewpoint. They “could not express their political views or choice at the ballot box, but only the fact that they sought representation in political decision-making as members of a national minority group” (§§ 61, 65).

    iii.        Third, the electoral system entailed “the obvious likelihood that their electoral preferences would be revealed” (§ 72) thereby compromising the applicants’ right to secrecy of the ballot.

Regarding the first aspect, related to the value of votes that might be cast for national minority lists, the authorities maintained that the system was functioning as a national minority representative obtained mandates in Parliament on two occasions, in 2018 and 2022.

The Court underlined in this respect that “there is no requirement under the Convention of different treatment in favour of minority parties.” Nonetheless, “once the legislature decides to set up a system intended to eliminate or reduce actual instances of inequality in political representation, it is only natural that measure should contribute to the participation of national minorities on an equal footing with others in the choice of the legislature, rather than perpetuating the exclusion of minority representatives from political decision-making at a national level” (§ 73).

Indeed, whilst it is possible for certain minorities to achieve parliamentary representation, the system does not offer fair and equal opportunities to all 13 national minorities. During the last three elections the preferential quota has always been set at a number higher than 22 000 votes (22 022 in 2014, 23 831 in 2018, and 23 085 in 2022). According to the 2022 census, such a high number of votes, even in theory, is achievable only for the Roma,[1] German, Slovak, Romanian, and Ukrainian minorities.[2] The remaining eight national minorities, even if all their members pre-registered as national minority voters and voted for the national minority list, have no practical chance to ever win a preferential mandate, so their votes are cast in vain from the outset.

Against this background, even taking into account that a few minorities already have achieved or theoretically may achieve parliamentary representation, the authorities’ statement that the current electoral system is “functioning” is not convincing. The Court has identified clear shortcomings of the current minority voting system, which still need to be addressed by the authorities.

Furthermore, no information has been submitted by the authorities regarding the other aspects, related to the freedom of electoral choice and the secrecy of the ballot even though the authorities generally recognise that changes need to be made to the legislation.

It falls within the authorities’ margin of appreciation to identify which legal solution fits best into the Hungarian electoral system, provided that it is capable of addressing the underlying problems. In identifying the best legislative solutions, the authorities could be guided by the Framework Convention for the Protection of National Minorities and its thematic commentary to Article 15.[3] The commentary underlines that several special mechanisms are available to achieve effective participation in decision-making through representation in legislative bodies.[4] Furthermore, scholars argue that apart from direct representation of national minorities in Parliament, there are many other means of achieving effective participation in public affairs.[5]

While it therefore appears that several viable solutions and approaches are available and could at least be considered, the authorities have not provided information on any preparatory work or consultations with the relevant stakeholders which they underline are also necessary before changes to the legislation can take place.

The Committee might wish to note with regret that, so far, no measures have been taken and that time is running out for the authorities to enact the requisite legal reform and for it to come into effect at least one year before the next parliamentary elections, foreseen to take place in spring 2026, in order to ensure its compliance with the 2002 Code of Good Practices of the Venice Commission on electoral matters.[6]

It might wish to urge the authorities to establish a timeline for the legislative process, including the consultation with stakeholders, to identify the measures required to bring the domestic legislation fully in line with the Convention requirements, and to cooperate closely with the Secretariat during this process with a view to ensuring the timely adoption of a Convention-compliant voting system.

The Committee might wish to encourage again the authorities to make full use of the resources and expertise available within the Council of Europe during this process, including the relevant texts and recommendations of the Framework Convention for the Protection of National Minorities, and the possibility to consult the Venice Commission.

Finally, it might wish to invite the authorities to submit an updated action plan, including a timeline for the legislative process and information on all the above issues, by the end of September 2025 at the latest, and decide to resume consideration of this case at its DH meeting in March 2026 at the latest.

Financing assured: YES