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GRAND CHAMBER

CASE OF TĂNASE v. MOLDOVA

(Application no. 7/08)

JUDGMENT

STRASBOURG

27 April 2010

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TĂNASE v. MOLDOVA JUDGMENT

In the case of Tănase v. Moldova,

The European Court of Human Rights, sitting as a Grand Chamber

composed of:

Peer Lorenzen,

President,

Françoise Tulkens,

Josep Casadevall,

Ireneu Cabral Barreto,

Corneliu Bîrsan,

Rait Maruste,

Vladimiro Zagrebelsky,

Elisabeth Steiner,

Dean Spielmann,

Sverre Erik Jebens,

Ján Šikuta,

Dragoljub Popović,

Isabelle Berro-Lefèvre,

Päivi Hirvelä,

George Nicolaou,

Zdravka Kalaydjieva,

Mihai Poalelungi,

judges,

and Michael O’Boyle,

Deputy Registrar,

Having deliberated in private on 16 September 2009 and on 10 March

2010,

Delivers the following judgment, which was adopted on the last-

mentioned date:

PROCEDURE

1. The case originated in an application (no. 7/08) against the Republic

of Moldova lodged with the Court under Article 34 of the Convention for

the Protection of Human Rights and Fundamental Freedoms (“the

Convention”) by two Moldovan and Romanian nationals, Mr Alexandru

Tănase and Mr Dorin Chirtoacă (“the applicants”), on 27 December 2007.

2. The applicants were represented by Ms J. Hanganu, a lawyer

practising in Chişinău. The Moldovan Government (“the Government”)

were represented by their Agent, Mr V. Grosu.

3. The applicants alleged, in particular, a breach of their right to stand as

candidates in free elections and to take their seats in Parliament if elected,

thus ensuring the free expression of the opinion of the people in the choice

of the legislature as guaranteed by Article 3 of Protocol No. 1. They also

complained under Article 14 taken in conjunction with Article 3 of Protocol

No. 1.

TĂNASE v. MOLDOVA JUDGMENT

4. The application was allocated to the Fourth Section of the Court

(Rule 52 § 1 of the Rules of Court). In a joint decision and judgment dated

18 November 2008, a Chamber of that Section, composed of Nicolas

Bratza, Lech Garlicki, Giovanni Bonello, Ljiljana Mijović, Davíd Thór

Björgvinsson, Ledi Bianku and Mihai Poalelungi, judges, and Fatoş Aracı,

Deputy Section Registrar, found, by a majority, the application in respect of

Mr Chirtoacă inadmissible; declared, unanimously, the application in

respect of Mr Tănase admissible; held, unanimously, that there had been a

violation of Article 3 of Protocol No. 1; and found, unanimously, that it was

not necessary to examine separately the complaint under Article 14 taken in

conjunction with Article 3 of Protocol No. 1.

5. On 6 April 2009, following a request by the Government, the panel of

the Grand Chamber decided to refer the case to the Grand Chamber in

accordance with Article 43 of the Convention.

6. The composition of the Grand Chamber was determined according to

the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24.

Judge Jean-Paul Costa was unable to attend the second deliberations.

Judge Peer Lorenzen took over the presidency of the Grand Chamber in the

examination of the application and Judge Corneliu Bîrsan, first substitute,

became a full member (Rule 11).

7. The remaining applicant, Mr Tănase, and the Government each filed

observations on the merits. In addition, third-party comments were received

from the Romanian Government, which had exercised its right to intervene

(Article 36 § 1 of the Convention and Rule 44 § 1 (b)).

8. A hearing took place in public in the Human Rights Building,

Strasbourg, on 16 September 2009 (Rule 59 § 3).

There appeared before the Court:

(a)

for the Government

V. G

ROSU

(b)

for the applicant

Ms J. H

ANGANU

(c)

for the Romanian Government

R.-H. R

ADU

D. T

ASE

I. P

OPESCU

I. C

IOPONEA

Agent;

Counsel;

Agent,

Advisers.

The Court heard addresses by Mr Grosu, Ms Hanganu and Mr Radu.

TĂNASE v. MOLDOVA JUDGMENT

9. Following developments subsequent to the hearing (see paragraphs

68-70 below), the applicant advised that he did not wish the case to be

struck out of the Court’s list.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

10. The applicant was born in 1971 and lives in Chişinău. He is

ethnically Romanian and is a Moldovan politician.

A. Historical background

11. The Principality of Moldavia first emerged as an independent State

in 1359. Its territory covered the area between the Eastern Carpathian

Mountains, the Dniester River and the Black Sea; today, this area

encompasses Moldova, part of Romania and part of Ukraine. Its population

spoke the same language and was of the same descent as the populations of

Wallachia and Transylvania (both part of modern-day Romania).

12. In the fifteenth century, Moldavia accepted the suzerainty of the

Ottoman Empire.

13. Following the Russo-Turkish war of 1806 to 1812, the eastern part

of the Principality of Moldavia, bounded by the Dniester River on the east

and the River Prut on the west, was annexed by the Russian empire. It was

renamed Bessarabia.

14. In 1859, the western part of the Principality of Moldavia united with

Wallachia and formed a new State. From 1861, the new State was known as

Romania. In 1877, Romania gained independence from the Ottoman

Empire.

15. In early 1918, Bessarabia declared its independence from Russia

and, on 27 March 1918, united with Romania. The population of Bessarabia

became Romanian citizens.

16. The Soviet Union did not recognise the unification of Bessarabia and

Romania. On 28 June 1940, following the Molotov-Ribbentrop Pact with

Nazi Germany, the Soviet Union re-annexed the territory of Bessarabia.

17. Following the conclusion of the Second World War, approximately

70% of the territory of Bessarabia, inhabited by some 80% of its population,

became the Moldavian Soviet Socialist Republic (changed to the Soviet

Socialist Republic of Moldova in 1990). The remaining territory of

Bessarabia became part of the Ukrainian Soviet Socialist Republic. Those

TĂNASE v. MOLDOVA JUDGMENT

residing in Bessarabia lost their Romanian nationality and became Soviet

citizens. Romania became a Soviet Union satellite State.

18. Following the collapse of the Soviet Union, in the Declaration of

Independence of 27 August 1991, the Parliament of the Republic of

Moldova condemned,

inter alia,

the Russian annexation of the territory

from the Principality of Moldavia in 1812 and the Soviet annexation of the

territory from Romania in 1940 and proclaimed the independence of the

country within the boundaries of the former Moldavian Soviet Socialist

Republic. Shortly thereafter, Moldova joined the United Nations and was

recognised by the international community.

B. Nationality post-independence

19. In 1991 the Parliament of the Republic of Moldova adopted a Law

on citizenship and proclaimed as its citizens,

inter alios,

all persons who

had lived in the territory of the former Moldavian Soviet Socialist Republic

before the Soviet annexation and their descendants.

20. The applicant obtained Moldovan nationality as a descendant of

persons living on the territory of the Republic of Moldova before 28 June

1940.

21. Also in 1991, the Romanian Parliament adopted a new Law on

citizenship, making it possible for persons who had lost their Romanian

nationality before 1989, for reasons not imputable to them, and their

descendants to reacquire Romanian nationality.

22. Initially, under Article 18 of the Moldovan Constitution adopted on

29 July 1994, which entered into force on 27 August 1994, nationals of

Moldova were not permitted to hold the nationality of any other State other

than in exceptional cases. However, the prohibition was ineffective in

practice as many Moldovans of Romanian descent used the provisions of

Romanian law to reacquire their lost Romanian nationality. At the same

time, many Moldovans of other ethnic backgrounds acquired other

nationalities such as Russian, Ukrainian, Bulgarian and Turkish.

23. In 2002 the Moldovan constitutional provisions prohibiting multiple

nationalities were repealed.

24. On 5 June 2003, following the repeal of the constitutional

prohibition on multiple nationalities, the Moldovan Parliament amended the

Law on citizenship, repealing the restriction preventing Moldovan nationals

from holding other nationalities (see paragraph 74 below). The new

provisions provided that the holders of multiple nationalities had equal

rights to those holding only Moldovan nationality, without exception (see

paragraph 75 below).

25. On an unspecified date the applicant obtained Romanian nationality.

His current Romanian passport was issued in December 2005.

Subsequently, he made public his holding of Romanian nationality.

TĂNASE v. MOLDOVA JUDGMENT

26. The total number of Moldovans who have obtained Romanian

citizenship since 1991 is unknown as the Romanian government have never

made this information public. However, it has been estimated that between

95,000 and 300,000 Moldovans obtained Romanian nationality between

1991 and 2001. On 4 February 2007 the President of Romania stated in an

interview that there were some 800,000 Moldovans with pending

applications for Romanian nationality and that his government expected the

number to reach 1,500,000, of the total of 3,800,000 Moldovan citizens,

before the end of 2007.

27. As to the number of Moldovans holding a second nationality other

than Romanian, this figure is also unknown. However, it appears to be

considerable and it seems that Russian nationality is the second most

popular, after Romanian. On 16 September 2008 the Russian Ambassador

to Moldova stated in a televised interview that there were approximately

120,000 Moldovans with Russian passports on both banks of the Dniester

River (i.e. in the whole of Moldova).

28. The Moldovan Government indicated in their observations before

the Chamber that one-third of the population of Transdniestria had dual

nationality, while a communist member of parliament (MP), Mr V. Mişin,

advanced during Parliament’s debates concerning Law no. 273 (see

paragraphs 78-81 below) the number of 500,000 as an approximate total

number of Moldovans with dual nationality.

C. Overview of the political evolution of Moldova prior to the

electoral reform in 2008

29. During the last decade and prior to the elections of 2009, the

Communist Party of Moldova was the dominant political party in the

country with the largest representation in Parliament.

30. Besides the Communist Party, there were over twenty-five other

political parties in the country with considerably less influence. Their exact

number was difficult to ascertain because of constant fluctuation. Because

of their weaker position, very few of them managed to clear the 6%

electoral threshold required in past legislative elections to enter Parliament.

31. In the 2001 elections the Christian Democratic People’s Party was

the only party aside from the Communist Party, from the twenty-seven

parties participating in the elections, which succeeded in clearing the

electoral threshold alone by obtaining some 8% of the vote. Six other parties

merged into an electoral bloc (a common list) and in this way were able to

obtain some 13% of the vote. The Communist Party obtained some 50% of

the vote and, after the proportional distribution of the wasted votes, obtained

71 of the 101 seats in Parliament.

32. In 2002 the electoral legislation was amended. The 6% electoral

threshold for a single party was retained but a new 9% threshold was

TĂNASE v. MOLDOVA JUDGMENT

introduced for electoral blocs composed of two parties, rising to 12% for

three or more parties.

33. In the 2005 elections, out of twenty-three participating parties, the

Christian Democratic People’s Party was again the only party, besides the

Communist Party, which managed to clear the electoral threshold by itself

with some 9% of the vote. Three other parties, united into an electoral bloc,

obtained some 28% of the vote, while the Communist Party obtained almost

46% of the vote. After the proportional distribution of the wasted votes, the

Communist Party obtained 56 of the 101 seats in Parliament.

34. In July 2005, following persistent criticism by international

observers and the Council of Europe, Parliament again amended the

Electoral Code, setting the electoral threshold for individual parties at 4%

and for electoral blocs composed of any number of parties at 8%. The

European Commission for Democracy through Law of the Council of

Europe (the Venice Commission) and the Organization for Security and

Co-operation in Europe (OSCE) praised the lowering of the electoral

threshold for individual parties and suggested a similar threshold for

electoral blocs, which, in their view, were to be encouraged in order to

provide more cooperation and stable government.

35. In the local elections of June 2007, the Communist Party obtained

some 40% of the vote in the local legislative bodies. As there is no electoral

threshold in local elections, it became an opposition party in the majority of

the local councils. The applicant became a member of the Chişinău

Municipal Council following these elections.

36. The applicant was subsequently elected Vice-President of the Liberal

Democratic Party, an opposition party created in January 2008.

D. The 2008 electoral reform

37. On 10 April 2008 the Moldovan Parliament passed a reform

consisting of three major amendments to the electoral legislation: an

increase of the electoral threshold from 4% back to 6%; a ban on all forms

of electoral blocs and coalitions; and a ban on persons with dual or multiple

nationality becoming MPs.

38. The amendment banning those with dual or multiple nationalities

becoming MPs was introduced by way of Law no. 273 (see paragraphs 78-

80 below). This Law was approved in its first reading by Parliament on

11 October 2007. The draft, prepared by the Ministry of Justice, provided

that only persons having exclusively Moldovan citizenship were entitled to

work in senior positions in the government and in several public services

and be candidates in legislative elections (see paragraph 78 below). It

contained a specific provision relating to Transdniestria (see paragraphs 80-

81 below).

TĂNASE v. MOLDOVA JUDGMENT

39. In an explanatory note to the draft law, the Deputy Minister of

Justice stated:

“Having analysed the current situation in the country in the field of citizenship, we

observe that the tendency of Moldovans to obtain citizenships of other countries is

explained by their desire to obtain privileges consisting of unrestrained travel in the

European Union, social privileges, family reunion, employment and studies.

At the same time, persons holding other nationalities have political and legal

obligations towards those States. This fact could generate a conflict of interest in cases

in which there are obligations both towards the Republic of Moldova and towards

other States, whose national a particular person is.

In view of the above, and with a view to solving the situation created, we consider it

reasonable to amend the legislation in force so as to ban holders of multiple

nationalities from public functions ...

This will not mean, however, that those persons will not be able to work in the

Republic of Moldova. They will be able to exercise their professional activities in

fields which do not involve the exercise of State authority ...”

40. During the debates in Parliament numerous opposition members

requested that the draft law be sent to the Council of Europe for a

preliminary expertise. However, the majority voted against this proposal.

Instead, the opposition was invited to challenge the new Law before the

Constitutional Court of Moldova. No such challenge was made at that time

(but see paragraphs 54-58 below). Numerous MPs from the opposition

argued that the proposed amendment banning multiple nationals from sitting

as MPs was contrary to Article 17 of the European Convention on

Nationality (see paragraphs 83-85 below) but the Deputy Minister of Justice

expressed a contrary view and argued that, in any event, it was open to

Parliament to denounce that Convention if there were any incompatibility.

41. On 7 December 2007 the draft law was approved by Parliament in a

final reading (see paragraph 78 below). Following its adoption by

Parliament, however, the President refused to promulgate the Law and

returned it to Parliament for re-examination.

42. The draft law was accordingly further amended and the list of

positions in the government and in the public service closed to holders of

multiple nationalities was reduced. The provisions concerning legislative

elections were also amended to allow persons with dual or multiple

nationality to be candidates in legislative elections; however, they were

obliged to inform the Central Electoral Commission about their other

nationalities before registering as candidates and to renounce them, or

initiate a procedure to renounce them, before the validation of their MP

mandates by the Constitutional Court (see paragraph 79 below).

43. On 10 April 2008 the new draft law was again put before Parliament

by the Law Commission of Parliament. As noted above, it was adopted on

that date. In the light of the amendments made by Law no. 273, an

TĂNASE v. MOLDOVA JUDGMENT

exception was introduced to the provision in the Law on citizenship

concerning equality of citizens to allow different treatment where provided

for by law (see paragraphs 24 above and 75 below)

44. On 29 April 2008 the President promulgated the Law adopted by

Parliament on 10 April 2008. On 13 May 2008 the Law was published in

the Official Gazette, thus entering into force. The other two amendments to

the electoral legislation (see paragraph 37 above) were also enacted and

entered into force in May 2008.

E. International reactions to the electoral reform

1. The Council of Europe’s European Commission against Racism and

Intolerance

45. On 29 April 2008 the Council of Europe’s European Commission

against Racism and Intolerance (ECRI) made public a report adopted on

14 December 2007. In its report, ECRI expressed concern about the

amendments concerning dual and multiple nationalities:

“16. ECRI notes with interest that section 25 of the Law on citizenship, in full

accordance with Article 17 of the European Convention on Nationality, which has

been ratified by Moldova, provides that Moldovan citizens who are also citizens of

another State and who have their lawful and habitual residence in Moldova enjoy the

same rights and duties as other Moldovan citizens. In this respect, ECRI would like to

express its concern about a draft law on the modification and completion of certain

legislative acts adopted in its first reading by Parliament on 11 October 2007.

According to this draft law, only persons having exclusively Moldovan citizenship are

entitled to work in senior positions in the government and in several public services.

From the information it has received, ECRI understands that if this draft law enters

into force as it stands, Moldovan citizens with multiple citizenship would be seriously

disadvantaged compared with other Moldovan citizens in access to public functions. It

thus appears that, if the law enters into force as such, this could lead to discrimination,

i.e. unjustified differential treatment on the grounds of citizenship. ECRI understands

that a wide-ranging debate is occurring within Moldova at the time of writing this

report as far as this draft law is concerned and that many sources both at the national

and international level have stressed the need to revise the text thoroughly before its

final adoption in order to ensure its compatibility with national and international

standards.

...

18. ECRI strongly recommends that the Moldovan authorities revise the draft law

of 11 October 2007 ... in order to ensure that it neither infringes the principle of non-

discrimination on the grounds of citizenship nor undermines all benefits of the recent

changes made to the Law on citizenship and allowing for multiple citizenship.”

TĂNASE v. MOLDOVA JUDGMENT

2. The Council of Europe Parliamentary Assembly’s Committee on the

Honouring of Obligations and Commitments by Member States of

the Council of Europe

46. In a report dated 14 September 2007, entitled “Honouring of

obligations and commitments by Moldova”, the Parliamentary Assembly’s

Committee on the Honouring of Obligations and Commitments by Member

States of the Council of Europe (“the Monitoring Committee”) noted the

following:

“20. The Assembly appreciates the efforts made by the Moldovan authorities in

order to assess the degree of implementation of the recommendations made by

Council of Europe experts. However, all new draft legislation in areas relating to the

commitments to the Council of Europe must be submitted to expertise and discussed

with Council of Europe experts prior to adoption.”

47. In its subsequent report of 9 June 2008, entitled “The state of

democracy in Europe: the functioning of democratic institutions in Europe

and progress of the Assembly’s monitoring procedure”, the Monitoring

Committee stated,

inter alia,

that:

“80. In their 2007 report on the ‘Honouring of obligations and commitments by

Moldova’ (Doc. 11374), the co-rapporteurs of the Committee on Moldova welcomed

the changes made to the Electoral Code in 2005. In particular, the threshold for party

lists was lowered to 4% for lists presented by individual political parties and 8% for

coalitions of political parties ...

...

82. The Monitoring Committee was ... alarmed by the recent legislative

developments with regard to the Electoral Code. In April 2008, the Moldovan

Parliament amended the Electoral Code again to raise the threshold for party lists up

to 6%. Moreover, the establishment of ‘electoral blocs’ – joint lists submitted by a

coalition of political parties – was prohibited. These measures have raised concern

and the Committee decided at short notice to hold an exchange of views with the

Moldovan delegation on 15 April [2008]. The electoral legislation should not be

changed every two or three years according to political imperatives. It should allow a

wide spectrum of political forces to participate in the political process to help build

genuinely pluralistic democratic institutions. The co-rapporteurs will closely examine

the recent amendments as well as the reasons behind the recent legislative

developments during the observation of the preparation of the forthcoming

parliamentary election to be held in spring 2009.”

3. The Parliamentary Assembly of the Council of Europe

48. Concern was also expressed by the Parliamentary Assembly in its

Resolution 1619 (2008) on the state of democracy in Europe, adopted on

25 June 2008:

“5.3. ... [T]he Assembly ... regrets the recent decision of the Moldovan Parliament

to raise this threshold for party lists to 6%.”

TĂNASE v. MOLDOVA JUDGMENT

49. In Resolution 1666 (2009) on the functioning of democratic

institutions in Moldova, the Parliamentary Assembly expressed its serious

concern:

“3. The Assembly is seriously concerned about the Moldovan authorities’ partial

compliance with its earlier recommendations regarding the improvement of the

electoral process and the strengthening of the State’s democratic institutions before

the parliamentary elections of 5 April 2009. The amendments introduced to the

Electoral Code in April 2008 raised the electoral threshold from 4% to 6%, did not

provide for electoral coalitions of political parties and socio-political organisations

and introduced a ban on the exercise of elevated public functions by Moldovan

citizens holding multiple nationality. The combined effect of these amendments was

to restrict the opportunities for a number of political forces to participate effectively in

the political process, thus weakening pluralism.”

50. It called on Moldova to do the following:

“8.1. resume reform of the electoral legislation, in cooperation with the European

Commission for Democracy through Law (Venice Commission), in order to lower the

electoral threshold for political parties, thus opening up the political process for more

pluralism; ...

8.2. suspend the application of Articles of the Electoral Code prohibiting people

who hold multiple citizenship from exercising elevated public functions, while

awaiting the judgment of the Grand Chamber of the European Court of Human Rights

in the case of

Tănase and Chirtoacă v. the Republic of Moldova.”

4. The European Commission for Democracy through Law (the Venice

Commission)

51. On 23 October 2008 the Venice Commission made public a report

adopted on 17 to 18 October 2008 (Opinion no. 484/2008) concerning the

amendments to the Electoral Code made in April 2008. The report

expressed critical views in respect of all the aspects of the reform. As to the

amendments concerning holders of multiple nationalities it stated the

following:

“30. A new paragraph to Article 13 § 2 denies the right to ‘be elected’ in

parliamentary elections to ‘persons who have, beside the Republic of Moldova

nationality, another nationality for the position of deputy in the conditions of

Article 75’. Article 75 § 3 states that a person may stand as a candidate with multiple

citizenship, provided he/she upon election denounces other citizenships than the

Moldovan. This must be considered as an incompatibility.

31. Beyond the mere question of the wording, restrictions of citizens’ rights should

not be based on multiple citizenship. The Code of Good Practice in Electoral Matters

quotes the European Convention on Nationality, ratified by Moldova in

November 1999, which unequivocally provides that ‘Nationals of a State Party in

possession of another nationality shall have, in the territory of that State Party in

which they reside, the same rights and duties as other nationals of that State Party’.

TĂNASE v. MOLDOVA JUDGMENT

32. Moreover, this restriction could be a violation of the Convention for the

Protection of Human Rights and Fundamental Freedoms, Articles 3 of [Protocol

No. 1] and 14 of the Convention.”

5. Other international criticism

52. On 27 May 2008, at a meeting of the European Union-Moldova

Cooperation Council in Brussels, the Slovenian Minister for Foreign

Affairs, the then President of the European Union General Affairs and

External Relations Council, stated that it was important that Moldova

conduct its parliamentary elections in 2009 in line with international

standards and expressed concern at the latest amendments to the electoral

law, which increased the electoral threshold to 6%.

53. Concerns about the electoral reform were also raised on 9 July 2008

by the President of the Parliamentary Assembly of the Council of Europe in

a speech to the Moldovan Parliament:

“... I strongly encourage you to obtain the approval by the Venice Commission in

respect of the recent amendments to the legislation which will apply in the next

elections, namely in what concerns the electoral threshold, the electoral blocs and the

dual nationality. These are delicate problems and it is necessary to find the right

balance between the preoccupations which guided you to make these amendments and

the concern of the international community that these amendments are compatible

with the principles of the Council of Europe.”

F. Challenge before the Constitutional Court

54. On 9 December 2008, Mr Vlad Filat, President of the Liberal

Democratic Party, addressed a complaint to the Constitutional Court

alleging that Law no. 273 was unconstitutional.

55. On 26 May 2009 the Constitutional Court delivered a judgment on

the constitutionality of Law no. 273. It found the Law to be constitutional

and valid in its entirety. It held that the provisions of the Law were clear and

unambiguous, that they were accessible in that they were published in the

Official Gazette and that they were foreseeable as they enabled, with

sufficient precision, Moldovan citizens wishing to stand for Parliament but

holding another nationality to adopt appropriate social-minded conduct to

ensure that their rights were not curtailed. It emphasised that Law no. 273

did not prevent dual nationals from becoming MPs as it offered them the

possibility of complying with the law. It further considered the provisions of

the Law to be in conformity with norms of international law, concluding

that the various international instruments permitted States to stipulate

incompatibilities relating to the holding of multiple nationalities by public

officials.

56. The court also found Law no. 273 to be in pursuit of a legitimate

aim, namely loyalty to the Moldovan State, in the light of the importance of

TĂNASE v. MOLDOVA JUDGMENT

State sovereignty and the need for a permanent political and legal link

between an elector and the State. It considered that for Moldovan citizens

holding the nationality of another State, the significance of Moldovan

citizenship was substantially diminished as such a person might not be

guided only by the constitutional requirements of Moldova and the interests

of the Moldovan people but also by the interests of a foreign State.

Accordingly, allowing MPs to hold dual nationality was contrary to the

constitutional principle of the independence of the mandate of MPs, State

sovereignty, national security and the non-disclosure of confidential

information. In this regard, the court insisted that ensuring national security

and consolidating Moldovan statehood had become an urgent necessity in

the light of movements to undermine the Moldovan State.

57. The court also considered the interference to be proportionate since

it did not affect the substance of electoral rights but merely made the

exercise of the right to be an MP conditional upon holding exclusive

Moldovan citizenship. Citizens could choose between holding a job which

required single citizenship and retaining their multiple citizenships but

working in a different post.

58. As regards the argument that Law no. 273 resulted in unequal

treatment of Moldovan citizens, the court considered that the principle of

equality should not be confused with the principle of uniformity. Those

holding multiple nationalities were not in the same position as those holding

single Moldovan nationality and the two cases were therefore not

comparable.

G. Political developments following the 2008 electoral reform

59. On 5 April 2009 legislative elections were held. The Communist

Party obtained 60 seats in Parliament. The three opposition parties gained

41 seats altogether: the Liberal Democratic Party and the Liberal Party

obtained 15 seats each; and the Our Moldova Alliance obtained 11 seats. Of

the 101 MPs elected, 21 held more than one nationality or had pending

applications for a second nationality and were therefore affected by the

provisions of Law no. 273. All 21 MPs were members of opposition parties.

60. In the April elections, the applicant was elected to the Moldovan

Parliament. In order to be able to take his seat, he was required to initiate a

procedure to renounce his Romanian nationality. He did this by way of a

letter addressed to the Romanian embassy in Chişinău announcing that he

was forced to initiate the renunciation of his Romanian nationality, but

indicating that he reserved his right to withdraw the letter after the judgment

of the Grand Chamber in the present case.

61. On 22 April 2009 the Constitutional Court validated the applicant’s

mandate, taking into consideration his letter to the Romanian embassy.

TĂNASE v. MOLDOVA JUDGMENT

62. The Communist Party subsequently sought to elect a president of the

Republic. However, on two separate occasions they failed to obtain the 61

Parliamentary votes required for the election of the president. Accordingly,

on 15 June 2009, Parliament was dissolved. Fresh parliamentary elections

were called for 29 July 2009.

63. Prior to the dissolution of Parliament, it once again amended the

electoral legislation, lowering the electoral threshold from 6% to 5% and

lowering the mandatory rate of participation from 51% to one-third of

registered voters. The opposition expressed concern about the amendments,

arguing that they were intended to help the Christian Democratic People’s

Party, an ally of the Communist Party in the previous Parliament, clear the

electoral threshold and enter Parliament.

64. In the meantime, a prominent figure from the Communist Party and

Speaker of the previous Parliament, Mr Marian Lupu, quit the Communist

Party and became the leader of a small party, the Democratic Party, which

had not cleared the electoral threshold in the April 2009 elections.

65. In the elections of 29 July 2009, five parties cleared the electoral

threshold: the Communist Party obtained 48 seats; the Liberal Democratic

Party obtained 18 seats; the Liberal Party obtained 15 seats; the Democratic

Party obtained 13 seats; and the Our Moldova Alliance obtained 7 seats.

The latter four parties formed a coalition called the Alliance for European

Integration. The coalition had 53 seats in total and thus a majority in

Parliament.

66. The applicant was re-elected. His mandate was subsequently

confirmed by the Constitutional Court, upon production of the documents

showing that he had initiated a procedure to renounce his Romanian

nationality (see paragraph 60 above).

67. The majority elected Mr Mihai Ghimpu as Speaker on 28 August

2009. On 11 September 2009 the President of Moldova, Mr Vladimir

Voronin, resigned. Under the Moldovan Constitution, Mr Ghimpu, in his

capacity as Speaker, assumed the role of acting President until the election

of a president in due course.

68. Since 25 September 2009 Moldova has been governed by the

Alliance for European Integration coalition. On that date, Mr Vlad Filat was

formally appointed Prime Minister and a number of ministers were also

formally appointed. The applicant was appointed Minister of Justice. Under

Moldovan law, the applicant will retain his mandate as an MP for six

months following his appointment as Minister.

69. On 10 November 2009 Parliament made a first attempt to elect

Mr Marian Lupu as President. Mr Lupu was not elected as the required

61 votes in favour were not obtained. The Communist Party refused to

participate in the vote. A second attempt to elect a president was made on

7 December 2009. Again, the attempt was unsuccessful as a result of the

failure to obtain the 61 votes required.

TĂNASE v. MOLDOVA JUDGMENT

70. Under the Moldovan Constitution, in the light of the failure of the

coalition to elect a president, fresh parliamentary elections will have to be

held.

II. RELEVANT DOMESTIC LAW

A. The position of international treaties in Moldova

71. Article 4 of the Constitution of the Republic of Moldova reads:

“1. Constitutional provisions for human rights and freedoms shall be understood

and implemented in accordance with the Universal Declaration of Human Rights, and

with other conventions and treaties to which the Republic of Moldova is a party.

2. Wherever inconsistencies appear between human rights conventions and treaties

signed by the Republic of Moldova and its own national laws, international

regulations shall prevail.”

72. Article 8 of the Constitution provides that:

“1. The Republic of Moldova is obliged to respect the United Nations Charter and

the treaties to which it is a party ...”

73. The relevant provisions of Law no. 595-XIV on international treaties

of the Republic of Moldova read:

Section 19

Compliance with international treaties

“International treaties shall be complied with in good faith, in accordance with the

principle

pacta sunt servanda.

The Republic of Moldova cannot invoke the provisions

of its internal legislation as a justification for non-compliance with an international

treaty to which it is a party.”

Section 20

The application of international treaties

“The provisions of the international treaties which, according to their wording, are

susceptible to be applicable without there being need for enactment of special

legislative acts, shall have an enforceable character and shall be directly applied in the

Moldovan law system. For the realisation of other provisions of the treaties, special

normative acts shall be adopted.”

B. The Law on citizenship of the Republic of Moldova

74. According to section 24 of the Law on citizenship of the Republic of

Moldova (Law no. 1024 of 2 June 2000), as amended on 5 June 2003,

multiple nationalities are permitted in Moldova and the acquisition by a

TĂNASE v. MOLDOVA JUDGMENT

Moldovan national of another nationality does not entail loss of the

Moldovan nationality.

75. Section 25 provides that Moldovan citizens who reside lawfully and

habitually in the territory of Moldova and hold the nationality of another

State shall enjoy the same rights and duties as the other citizens of Moldova.

Law no. 273 inserted an exception to the principle in section 25 of equal

treatment of all citizens “in cases provided for by law”.

76. Section 39 provides for an oath of allegiance to be sworn by those

granted citizenship of Moldova through naturalisation or reacquisition of

nationality. The oath states:

“I (surname, first name), born (time and place of birth), swear to be a faithful citizen

of the Republic of Moldova, to respect its Constitution and other laws and not to take

any actions that would prejudice the interests and territorial integrity of the State.”

C. The right to vote and stand for election

77. On the right to vote and to be elected, the relevant parts of the

Constitution provide:

Article 38

The right to vote and to be elected

“...

3. The right to be elected is guaranteed to Moldovan citizens who enjoy the right to

vote, within the conditions of the law.”

Article 39

The right to participate in the administration

“1. The citizens of Moldova shall have the right to participate in the administration

of public affairs in person or through their representatives.

2. Every citizen shall have access, in accordance with the law, to public functions.”

78. Law no. 273 set out amendments to the electoral legislation.

Section 10 of the draft law adopted by Parliament on 7 December 2007 but

not promulgated by the President, proposed that the Electoral Code be

amended to include the following:

“Candidates for the office of MP shall be at least 18 years old on the day of the

elections, shall have exclusively Moldovan citizenship, shall live in the country and

shall fulfil the conditions provided for in the present code.”

79. Section 9 of the final version of Law no. 273, which came into force

on 13 May 2008, introduces the following provisions into the Electoral

Code:

TĂNASE v. MOLDOVA JUDGMENT

“(1) Candidates for the office of MP shall be at least 18 years old on the day of the

elections, shall have Moldovan citizenship, shall live in the country and shall fulfil the

conditions provided for in the present code.

(2) At the moment of registering as a candidate, any person holding the citizenship

of another country shall declare that he or she holds another citizenship or that he or

she has applied for another citizenship.

(3) At the time of validation of the MP mandate, the person indicated in

paragraph (2) shall prove with documents that he or she has renounced or initiated the

procedure of renunciation of the citizenship of other States or that he or she has

withdrawn an application to obtain another citizenship.

(4) A failure to declare the fact of holding another citizenship at the moment of

registering as a candidate for the office of MP or the fact of obtaining another

citizenship during the exercise of an MP mandate, shall be sufficient grounds for the

Constitutional Court to annul the MP mandate at the request of the Central Electoral

Commission.”

80. The position of Transdniestria is set out in section 21 of the Law:

“ ...

(3) The incompatibilities provided for in the present Law shall apply to persons

living in Transdniestria only in so far as they are stipulated in the legislation

concerning the special legal status of Transdniestria.”

81. Limited parliamentary debate took place on this particular provision

of the Law. The only relevant extract, from the plenary parliament debates

on 7 December 2007, is as follows:

“Vladimir Braga, MP:

The citizens who are citizens of the Republic of Moldova and live in Transdniestria

will continue to have double nationality and then the effectiveness of the Law is

marginalised, or, to put it better, we reject the citizens from Transdniestria, who are

also citizens of the Republic of Moldova.

Vladimir Ţurcan, MP:

Not at all. There is one thing which has to be understood: firstly, this Law does not

apply to all citizens. Secondly, it refers only to those who have positions in public

authorities. Thirdly, we deliberately inserted here a clause in the final and transitional

provisions: I draw your attention to the fact that the third paragraph refers to persons

who live and work in the respective authorities of the left bank, in Transdniestria, that

this Law does not apply in this case to the said persons and that it will only be applied

[to them] in so far as this is provided for in the Law concerning the special status of

Transdniestria.”

TĂNASE v. MOLDOVA JUDGMENT

D. Access to the Constitutional Court

82. According to Article 38 of the Code of Constitutional Jurisdiction of

the Republic of Moldova, the Constitutional Court may be seized only by

the President of the country, the government, the Minister of Justice, the

Supreme Court of Justice, the Economic Court, the Prosecutor General, the

MPs, the parliamentary factions and the Ombudsman.

III. RELEVANT INSTRUMENTS OF THE COUNCIL OF EUROPE

A. The European Convention on Nationality

83. The Preamble to the Council of Europe European Convention on

Nationality (“the ECN”), which came into force in general and in respect of

Moldova on 1 March 2000, explains the purpose of the ECN. The relevant

parts of the Preamble provide:

“Recognising that, in matters concerning nationality, account should be taken both

of the legitimate interests of States and those of individuals;

...

Noting the varied approach of States to the question of multiple nationality and

recognising that each State is free to decide which consequences it attaches in its

internal law to the fact that a national acquires or possesses another nationality;

...”

84. Article 15 of the ECN sets out possible cases of multiple nationality

other than those which arise where individuals acquire multiple nationalities

automatically at birth or a second nationality automatically upon marriage.

It provides as follows:

“The provisions of this Convention shall not limit the right of a State Party to

determine in its internal law whether:

a. its nationals who acquire or possess the nationality of another State retain its

nationality or lose it;

b. the acquisition or retention of its nationality is subject to the renunciation or loss

of another nationality.”

85. On the rights and duties related to multiple nationality, Article 17

provides:

“Nationals of a State Party in possession of another nationality shall have, in the

territory of that State Party in which they reside, the same rights and duties as other

nationals of that State Party.

TĂNASE v. MOLDOVA JUDGMENT

The provisions of this chapter do not affect:

a. the rules of international law concerning diplomatic or consular protection by a

State Party in favour of one of its nationals who simultaneously possesses another

nationality;

b. the application of the rules of private international law of each State Party in

cases of multiple nationality.”

B. The Code of Good Practice in Electoral Matters of the Venice

Commission of the Council of Europe (CDL-AD (2002) 23 rev)

86. The Venice Commission has adopted a Code of Good Practice in

Electoral Matters. The relevant parts of the explanatory report to this code

read as follows:

“6b. [U]nder the European Convention on Nationality persons holding dual

nationality must have the same electoral rights as other nationals.

...

63. Stability of the law is crucial to credibility of the electoral process, which is

itself vital to consolidating democracy. Rules which change frequently – and

especially rules which are complicated – may confuse voters. Above all, voters may

conclude, rightly or wrongly, that electoral law is simply a tool in the hands of the

powerful, and that their own votes have little weight in deciding the results of

elections.

64. In practice, however, it is not so much stability of the basic principles which

needs protecting (they are not likely to be seriously challenged) as stability of some of

the more specific rules of electoral law, especially those covering the electoral system

per se,

the composition of electoral commissions and the drawing of constituency

boundaries. These three elements are often, rightly or wrongly, regarded as decisive

factors in the election results, and care must be taken to avoid not only manipulation

to the advantage of the party in power, but even the mere semblance of manipulation.

65. It is not so much changing voting systems which is a bad thing – they can

always be changed for the better – as changing them frequently or just before (within

one year of) elections. Even when no manipulation is intended, changes will seem to

be dictated by immediate party political interests.”

IV. LAW AND PRACTICE IN THE COUNCIL OF EUROPE MEMBER

STATES

87. On the basis of the information available to the Court, it would seem

that, apart from Moldova, three countries (Azerbaijan, Bulgaria and

Lithuania) clearly ban dual nationals from being elected to Parliament. In

Azerbaijan and Lithuania, it is in any event prohibited to hold dual

TĂNASE v. MOLDOVA JUDGMENT

nationality; in Bulgaria, holding dual nationality is permitted. The

Constitution of a fourth country, Malta, provides that a person shall not be

qualified for election to the House of Representatives “if he is a citizen of a

country other than Malta having become such a citizen voluntarily or is

under a declaration of allegiance to such a country”; it is not entirely clear

whether the provision applies to non-nationals or to multiple nationals. In

any case, there are no known examples of the provision being enforced and

it is not clear whether it was intended that the limitation remain in force

after the law was amended to permit dual nationality in Malta in 2000.

Romania, which permits dual nationality, lifted its ban on dual nationals

becoming MPs in 2003.

88. In Latvia, there is no prohibition on MPs having dual nationality but

a person with dual nationality cannot be elected president. It should be

noted that dual nationality is prohibited in principle under Latvian law,

although it is allowed in certain limited circumstances. Monaco restricts

citizens from becoming members of the

Conseil National

if they hold public

or elected office in another State. Portugal prohibits non-resident dual

nationals from becoming MPs for the constituency covering the territory of

their other nationality.

89. In short, three member States of the Council of Europe – Bulgaria,

Malta and Moldova (subject to the ambiguity outlined above) – currently

allow dual nationality but prohibit dual nationals from becoming MPs. In

addition, Azerbaijan and Lithuania, which prohibit dual nationality, also

prohibit dual nationals becoming MPs. Of these four other countries,

Azerbaijan and Lithuania have not signed the ECN; Bulgaria has lodged a

reservation in respect of Article 17 of the ECN; and Malta has signed, but

not ratified, the ECN.

90. Twenty-seven States other than Moldova allow dual nationality. In

nineteen member States, dual citizenship is prohibited in principle. Dual

nationality is prohibited in Ukraine.

91. Estonia, Latvia and Lithuania prohibit dual nationality. According to

the census for the year 2000, there were around 200 dual nationals in

Estonia. There are around 700 dual nationals in Lithuania. No figures are

available for Latvia. Around a quarter of the population of Estonia and

Latvia is ethnically Russian.

92. In the States of the former Yugoslavia, Croatia, Serbia, Slovenia and

“the former Yugoslav Republic of Macedonia” allow dual citizenship,

although Croatia and Slovenia seek to exclude it for naturalised citizens. In

Bosnia and Herzegovina and Montenegro, dual nationality is permitted only

in respect of States with which a bilateral agreement has been concluded.

The populations of most of these States are ethnically mixed. Montenegro

(43% Montenegrin; 32% Serb; 8% Bosniak; 17% other) and Bosnia and

Herzegovina (48% Bosniak; 37.1% Serb; 14.3% Croat; 0.6% other) have

the most ethnically mixed populations, followed by “the former Yugoslav

TĂNASE v. MOLDOVA JUDGMENT

Republic of Macedonia” (64.2% Macedonian; 25.2% Albanian; 10.6%

other). The numbers of dual nationals in these countries is not known. None

of these States prohibit dual nationals from standing for Parliament.

93. In the twenty-seven member States of the European Union, sixteen

allow dual nationality, five prohibit it or allow it only in exceptional

circumstances (the Czech Republic, Denmark, Greece, Lithuania and

Poland) and six (Austria, Estonia, Germany, Latvia, the Netherlands and

Spain) allow it in certain circumstances, to varying extents. Two States –

Bulgaria and Lithuania – prohibit the election of dual nationals to

Parliament. Further limitations exist in three States (Latvia, Malta and

Portugal – see paragraphs 87-88 above).

THE LAW

94. The applicant alleged that the prohibition on Moldovan nationals

holding other nationalities sitting as members of parliament (MPs)

following their election interfered with his right to stand as a candidate in

free elections and to take his seat in Parliament if elected, thus ensuring the

free expression of the opinion of the people in the choice of the legislature.

He relied on Article 3 of Protocol No. 1, which provides:

“The High Contracting Parties undertake to hold free elections at reasonable

intervals by secret ballot, under conditions which will ensure the free expression of

the opinion of the people in the choice of the legislature.”

95. He also complained under Article 14 of the Convention taken in

conjunction with Article 3 of Protocol No. 1 that he had been subjected to

discrimination in comparison with Moldovan nationals holding multiple

nationalities and living in Transdniestria. Article 14 of the Convention

provides:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be

secured without discrimination on any ground such as sex, race, colour, language,

religion, political or other opinion, national or social origin, association with a

national minority, property, birth or other status.”

TĂNASE v. MOLDOVA JUDGMENT

I. PRELIMINARY OBJECTIONS

A. Victim status

1. The Chamber’s conclusions

96. The Chamber referred to the Court’s previous case-law to the effect

that it was open to a person to contend that a Law violated his rights in the

absence of an individual measure of implementation if he was required to

modify his conduct or was a member of a class of people who risked being

directly affected by the legislation. It considered that the applicant was

directly affected by Law no. 273 because, if elected, he would have to make

the difficult choice between sitting as an MP or keeping his dual nationality.

Indeed, awareness of that difficult choice could have an adverse effect on

the applicant’s electoral campaign, both in terms of his personal investment

and effort and in terms of the risk of losing votes with the electorate. The

Chamber therefore dismissed the Government’s objection that the applicant

lacked victim status.

2. The parties’ submissions

(a) The Moldovan Government

97. The Government maintained in their submissions to the Grand

Chamber that the applicant was not a victim within the meaning of

Article 34 of the Convention because the case was lodged with the Court

before Law no. 273 had been promulgated. Relying on

Očič v. Croatia

((dec.), no. 46306/99, ECHR 1999-VIII), they further contended that the

applicant’s claim was an

actio popularis

seeking review of legislation in the

abstract as at the time of his application to the Court, the Law in question

had never been applied to him to his detriment. The cases to which the

Chamber referred to support its conclusion that the applicant was a victim

were distinguished by the Government because, in those cases, unlike in the

present case, the Law being challenged had entered into force. Although the

Court had considered an applicant a potential victim of an enacted Law

which had never been applied to him, it had never before found an applicant

to be a victim or a potential victim of a draft law. The Government relied on

The Christian Federation of Jehovah’s Witnesses in France v. France

((dec.), no. 53430/99, ECHR 2001-XI), where the Court observed that it had

accepted the notion of a potential victim in cases where the applicant was

not in a position to demonstrate that the legislation about which he

complained had actually been applied to him because of the secret nature of

the measures it authorised (see

Klass and Others v. Germany,

6 September

TĂNASE v. MOLDOVA JUDGMENT

1978, Series A no. 28); where a Law punishing homosexual acts was likely

to be applied to a certain category of the population, to which the applicant

belonged (see

Dudgeon v. the United Kingdom,

22 October 1981, Series A

no. 45); and, lastly, where the forced removal of aliens had already been

decided on but not yet carried out and enforcement of the measure would

have exposed the persons concerned to the risk of treatment contrary to

Article 3 in the country of destination (see

Soering v. the United Kingdom,

7 July 1989, Series A no. 161) or would have infringed the right to respect

for family life (see

Beldjoudi v. France,

26 March 1992, Series A

no. 234-A). The Government argued that States Parties had not agreed when

ratifying the Convention that draft laws could be challenged before the

Court. If such challenges were possible, where there was no possibility at

domestic level to challenge a draft law applicants would be encouraged to

come directly to the Court, breaching the principle of subsidiarity and

leading to a large increase in the number of cases before the Court.

98. The Government further argued that a person with multiple

nationalities was allowed to stand for election in Moldova and merely had

to show, in order for his mandate to be approved by the Constitutional

Court, that he had initiated a renunciation procedure in respect of

nationalities other than Moldovan (see paragraph 79 above). There was no

provision in the Electoral Code which allowed an MP’s mandate to be

subsequently annulled on the ground that the renunciation procedure had

never been completed. In the present case, once the applicant’s mandate was

confirmed there was no way of annulling his mandate if he did not follow

through with the renunciation of his Romanian nationality.

(b) The applicant

99. The applicant acknowledged that his application to the Court was

submitted before Law no. 273 was officially enacted. However, he argued

that it had already been passed by Parliament (see paragraph 38 above) and

that it was therefore inevitable that the Law would be signed by the

President and would enter into force sooner or later. The Government were

given notice of the application by the Court on 17 June 2008, by which time

the contested Law was in force (see paragraph 44 above).

100. The applicant also pointed out that, following his election to

Parliament, he was not permitted to take his seat until he had begun the

procedure to renounce his Romanian citizenship (see paragraphs 60-61 and

66 above). Had he refused to initiate the procedure, he would have been

unable to sit as an MP.

101. The applicant accordingly invited the Court to find that he was a

victim of the contested legislation.

TĂNASE v. MOLDOVA JUDGMENT

102. The Romanian Government contended that the applicant could be

considered a victim under Article 34 of the Convention. Relying on

Klass

and Others

(cited above, § 34), they argued that a person could be a victim

by virtue of the mere existence of measures or legislation, without having to

show that the measures or Law in question had been applied to him. They

noted that when the application was submitted to the Court, the applicant, a

politician, had expressed his intention to stand as a candidate in the 2009

elections. He therefore risked being affected by the new Law. In the event,

he was elected and was required to initiate a procedure to renounce his

Romanian nationality. The Romanian Government considered the

Očič

case, cited by the respondent Government, to be irrelevant to the present

application because in that case, the applicant failed to demonstrate that he

could have been personally affected by the contested legislation. The

Romanian Government further relied on the fact that the Chamber gave its

judgment after the Law had been enacted. Accordingly, they argued, the

application did not concern a mere draft law.

103. The Romanian Government invited the Court to reject the objection

of the respondent Government.

3. The Court’s assessment

104. The Court reiterates that, in order to be able to lodge a petition by

virtue of Article 34, a person, non-governmental organisation or group of

individuals must be able to claim to be the victim of a violation of the rights

set forth in the Convention. In order to claim to be a victim of a violation, a

person must be directly affected by the impugned measure: the Convention

does not envisage the bringing of an

actio popularis

for the interpretation of

the rights it contains or permit individuals to complain about a provision of

national law simply because they consider, without having been directly

affected by it, that it may contravene the Convention. However, it is open to

a person to contend that a Law violates his rights, in the absence of an

individual measure of implementation, if he is required either to modify his

conduct or risks being prosecuted or if he is a member of a class of people

who risk being directly affected by the legislation (see

Burden v. the United

Kingdom

[GC], no. 13378/05, §§ 33 and 34, ECHR 2008;

Open Door and

Dublin Well Woman v. Ireland,

29 October 1992, § 44, Series A no. 246-A;

and

Klass and Others,

cited above, § 33).

105. In

Burdov v. Russia

(no. 59498/00, § 30, ECHR 2002-III), the

Court held that the question whether or not the applicant could claim to be a

victim of the violation alleged was relevant at all stages of the proceedings

under the Convention (see also

E. v. Austria,

no. 10668/83, Commission

decision of 13 May 1987, Decisions and Reports (DR) 52, p. 177). The

Court notes that the provisions of the Convention are to be interpreted in a

TĂNASE v. MOLDOVA JUDGMENT

manner which renders its safeguards practical and effective (see,

inter alia,

Soering,

cited above, § 87, and

Artico v. Italy,

13 May 1980, § 33, Series A

no. 37). In assessing whether an applicant can claim to be a genuine victim

of an alleged violation, account should be taken not only of the formal

position at the time when the application was lodged with the Court but of

all the circumstances of the case in question, including any developments

prior to the date of the examination of the case by the Court (see,

mutatis

mutandis, Akdivar and Others v. Turkey,

16 September 1996, § 69,

Reports

of Judgments and Decisions

1996-IV).

106. With these elements in mind, the Court considers that the question

whether an applicant has victim status falls to be determined at the time of

the Court’s examination of the case where such an approach is justified in

the circumstances. In this respect, it refers to its case-law on loss of victim

status where it has examined objections raised by respondent Governments

that steps taken by or in the respondent State subsequent to the lodging of

the application with the Court afforded adequate redress for the alleged

violation such that the applicant could no longer be considered a victim for

the purposes of Article 34 of the Convention (see, for example,

Amuur

v. France,

25 June 1996, § 36,

Reports

1996-III;

Chevrol v. France,

no. 49636/99, §§ 37-43, ECHR 2003-III;

Siliadin v. France,

no. 73316/01,

§§ 54 and 63, ECHR 2005-VII; and

Ramazanova and Others v. Azerbaijan,

no. 44363/02, §§ 36-39, 1 February 2007). In a number of cases,

applications have been ruled inadmissible or struck out of the list where

such subsequent steps have provided adequate redress to the applicant, who

has accordingly lost his victim status (see, for example,

Conrad v. Germany,

no. 13020/87, Commission decision of 13 April 1988, DR 56;

Caraher

v. the United Kingdom

(dec.), no. 24520/94, ECHR 2000-I; and

Ohlen

v. Denmark

(striking out), no. 63214/00, §§ 28-31, 24 February 2005). The

Court will therefore examine whether the applicant has victim status for the

purposes of Article 34 of the Convention, having regard to all the

circumstances of the case.

107. In the present case, the Court notes that the impugned Law entered

into force in May 2008 (see paragraph 44 above). The present application

therefore concerns enacted legislation.

108. As to whether the measure has been applied to the applicant to his

detriment, the Court observes that, following his election in April 2009, the

applicant was obliged to initiate a procedure to renounce his Romanian

nationality in order to have his mandate as an MP confirmed by the

Constitutional Court to allow him to take his seat. He has initiated this

procedure (see paragraphs 60-61 above). Again, following his election in

July 2009, the applicant was required to provide evidence of his initiation of

the renunciation procedure to the Constitutional Court in order to have his

mandate confirmed (see paragraph 66 above). The Court accordingly

concludes that the applicant was directly affected by Law no. 273 as he was

TĂNASE v. MOLDOVA JUDGMENT

obliged to initiate a procedure which put him at risk of losing his Romanian

nationality. Further and in any event, even before his election the

knowledge that, if elected, he would be required to take steps to renounce

his Romanian nationality if he wished to take his seat in Parliament

undoubtedly affected him throughout his electoral campaign. He may,

moreover, have lost votes since the electorate was aware that there was a

chance that he would decide not to take his seat if that would mean losing

his status as a dual national. Since the applicant was directly affected by the

Law in question, the Court concludes that the measure has had a detrimental

impact on him.

109. As to the Government’s argument that Law no. 273 required a

renunciation procedure merely to be initiated, and not to be completed, the

Court does not consider that this removes the applicant’s status as a victim.

Although the applicant’s mandate has now been confirmed by the

Constitutional Court, he was required to send a letter to the Romanian

authorities requesting the initiation of a procedure to renounce his

Romanian nationality, which he did. It is true that the Romanian

Government have not yet taken steps to strip the applicant of his Romanian

nationality. However, the conduct of the Romanian authorities is not within

the applicant’s control and they have made no formal undertaking not to act

upon the applicant’s request to renounce his Romanian nationality.

Accordingly, they may choose at any time to complete the renunciation

procedure.

110. In any event, each time the applicant wishes to stand for election to

Parliament he will face the uncertainty of not knowing whether the

Constitutional Court will accept that he has complied with the law and

whether the Romanian Government will take steps to give effect to his

request to renounce his Romanian nationality.

111. The Government’s objection as to lack of victim status is therefore

dismissed.

B. Non-exhaustion of domestic remedies

1. The Chamber’s conclusions

112. The Chamber rejected the Government’s objection that the

applicant had failed to exhaust domestic remedies in that he had not

complained to the Ombudsman, who could in turn have lodged a challenge

to Law no. 273 before the Constitutional Court. The Chamber emphasised

that the requirement to exhaust domestic remedies applied only to those

remedies which were accessible and effective. In the present case, the

remedy relied upon by the Government could not be considered effective as

it was not open to the applicant to complain directly to the Constitutional

Court.

TĂNASE v. MOLDOVA JUDGMENT

2. The parties’ submissions

(a) The Moldovan Government

113. The Government argued that the applicant could have requested

Mr Filat, who was an MP and therefore had standing to lodge a request with

the Constitutional Court (see paragraph 82 above), to challenge Law no. 273

before the Constitutional Court. Referring to the Chamber’s conclusion that

a request to the Constitutional Court via the Ombudsman was not an

effective remedy, the Government distinguished the present proposal on the

ground that Mr Filat was the President of the political party of which the

applicant was Vice-President; Mr Filat also held dual nationality; and

Mr Filat had already assisted the applicant in the present case. Accordingly,

they argued, the remedy proposed was accessible to the applicant.

114. The Government emphasised that the present case concerned a

matter of constitutionality which could only be remedied by the

Constitutional Court. In their submissions on admissibility before the

Chamber, the Government had raised the possibility of lodging a case with

the Constitutional Court via the Ombudsman. They argued that the

substance of the remedy advanced was the possibility of the Constitutional

Court considering the case and that the precise intermediary by which the

applicant sought its introduction was irrelevant. Accordingly, the

Government argued, the current objection was not a new plea but a

reiteration of the previous objection and they were therefore not barred from

raising the objection at this stage of the proceedings.

115. Finally, the Government pointed out that a request to the

Constitutional Court in December 2008 to consider the constitutionality of

Law no. 273 was successful as the request was admitted for examination

(see paragraphs 54-58 above). Thus, this was clearly an effective remedy,

although in the event the court found the Law to be constitutional.

(b) The applicant

116. The applicant argued that the objection raised by the Government

was a new objection. It did not depend on facts which were not available

when the Court considered the admissibility of the case. Accordingly,

relying on

Sejdovic v. Italy

([GC], no. 56581/00, § 41, ECHR 2006-II), the

applicant contended that the Government should have raised the possibility

of this remedy in their written and oral pleadings on admissibility. He did

not consider that there were any exceptional circumstances in favour of

relieving the Government of the obligation to comply with this requirement

and accordingly he invited the Court to reject the Government’s objection.

117. In the event that the Court were minded to allow the objection to be

raised at this stage in the proceedings, the applicant argued that a complaint

to the Constitutional Court via Mr Filat was not an effective remedy open to

TĂNASE v. MOLDOVA JUDGMENT

the applicant within the meaning of Article 35 of the Convention. He

pointed to the fact that it was inaccessible as it was not open to any citizen

to lodge a complaint and he was not a member of any of the categories of

persons entitled to lodge a complaint until 22 April 2009, when his mandate

as an MP was confirmed. In any event, the applicant had appeared as Mr

Filat’s representative in the proceedings brought before the Constitutional

Court and raised all the issues which had come before this Court. The court

ruled that the Law was constitutional (see paragraph 55 above). To the

extent that the remedy could be considered effective, it had clearly been

exhausted.

118. The Romanian Government highlighted that the remedy proposed

by the respondent Government had been raised for the first time in their

submissions to the Grand Chamber. They argued that it was clear from the

Court’s case-law that such objections should be made in submissions on

admissibility. The Romanian Government further noted that the respondent

Government had at their disposal all the facts necessary to have raised this

objection at the admissibility stage and had provided no explanation for

their failure to do so. Accordingly, there were no exceptional circumstances

justifying the delay in advancing this objection and the respondent

Government were therefore estopped from objecting at this stage of the

proceedings.

119. In the event that the Court allowed this objection to be considered

notwithstanding the delay, the Romanian Government contended that the

remedy proposed did not satisfy the requirements of Article 35 of the

Convention. It was not accessible to the applicant because he had no right

directly to address a challenge to the Constitutional Court but had to make a

request through an intermediary, who could choose whether to apply to the

court to have the contested legislation examined.

3. The Court’s assessment

120. The Court reiterates that the purpose of Article 35 § 1 of the

Convention is to afford the Contracting States the opportunity of preventing

or putting right the violations alleged against them before those allegations

are submitted to the Court. Consequently, States are dispensed from

answering for their acts before an international body before they have had

the opportunity to put matters right through their own legal systems (see, for

example,

Remli v. France,

23 April 1996, § 33,

Reports

1996-II, and

Selmouni v. France

[GC], no. 25803/94, § 74, ECHR 1999-V). Under

Article 35 § 1 of the Convention, normal recourse should be had by an

applicant to remedies which are available and sufficient to afford redress in

respect of the breaches alleged. The existence of the remedies in question

must be sufficiently certain not only in theory but also in practice, failing

TĂNASE v. MOLDOVA JUDGMENT

which they will lack the requisite accessibility and effectiveness (see,

among other authorities,

Akdivar and Others,

cited above, § 66).

121. The Court further reiterates that under Rule 55 of the Rules of

Court, any plea of inadmissibility must be raised by the respondent

Contracting Party in its written or oral observations on the admissibility of

the application (see

K. and T. v. Finland

[GC], no. 25702/94, § 145, ECHR

2001-VII, and

N.C. v. Italy

[GC], no. 24952/94, § 44, ECHR 2002-X).

However, there may in particular cases be exceptional circumstances that

dispense the Government from the obligation to raise their preliminary

objection at the admissibility stage (see

Prokopovich v. Russia,

no. 58255/00, § 29, 18 November 2004, and

Sejdovic,

cited above, § 41).

122. The Court considers it unnecessary to examine whether the

Government were estopped from raising this objection at this stage in the

proceedings as, in any case, the Court finds the remedy now proposed to be

one which the applicant was not required to exhaust. The Court notes the

finding of the Chamber, which is not contested by the respondent

Government, that the possibility of lodging a complaint with the

Ombudsman, who in turn could challenge the Law before the Constitutional

Court, was not an effective remedy because it was not open to the applicant

to complain directly to the court. The Court sees no reason to disagree with

the Chamber’s assessment. The remedy currently proposed by the

Government is, similarly, not directly accessible to the applicant as he was

unable to approach the Constitutional Court directly but had to rely on the

exercise of discretion by Mr Filat to lodge a complaint. Accordingly, this

remedy was not effective for the purposes of Article 35 § 1 of the

Convention.

123. In any event, it is clear that, the Constitutional Court having

pronounced on the constitutionality of Law no. 273 (see paragraphs 54-58

above), the remedy proposed has now been exhausted. In the circumstances,

the Government’s objection is dismissed.

C. Incompatibility

ratione materiae

1. The parties’ submissions

(a) The Moldovan Government

124. In their submissions to the Grand Chamber, the Government raised

for the first time an objection

ratione materiae

following references to the

European Convention on Nationality (“the ECN”) in the Chamber’s

judgment. In their view, the Chamber did not consider the right to stand for

elections, protected by Article 3 of Protocol No. 1, but instead examined the

right to multiple nationalities and the right to acquire a nationality, which

TĂNASE v. MOLDOVA JUDGMENT

were not rights guaranteed by the Convention. The Government challenged

the significance accorded by the Chamber to ratification and non-ratification

of the ECN. They pointed out that Moldova could simply denounce the

ECN and, if it wished, re-ratify it subject to a reservation in respect of

Article 17.

125. The Government requested the Court to consider this objection as

an objection relevant to the substantive questions raised by the case and to

deal with it in its examination of the merits.

126. Relying on

Blečić v. Croatia

([GC], no. 59532/00, §§ 63-69, ECHR

2006-III), they contended that they were not estopped from raising the

objection at this stage in the procedure as it went to the question of the

Court’s jurisdiction.

(b) The applicant

127. The applicant argued that, in principle, this objection should also

have been raised before the application was declared admissible and that,

accordingly, the Government were estopped from raising it at this stage.

However, he accepted that the Court had to satisfy itself that it had

jurisdiction in any case brought before it and that it was required to examine

the question of jurisdiction at every stage of the procedure.

128. The applicant concluded that the complaint raised by the

Government should not be considered a preliminary objection because it

related to the interpretation of rights under Article 3 of Protocol No. 1. He

invited the Court to consider the arguments raised by the Government in its

examination of the substance of the complaint.

129. The Romanian Government referred to their arguments as to

estoppel in relation to the objection of the respondent Government regarding

exhaustion of domestic remedies and contended that similar arguments

applied to the objection of incompatibility

ratione materiae.

Unlike in

Demir and Baykara v. Turkey

([GC], no. 34503/97, ECHR 2008), the

respondent Government had clearly indicated that their objection was a

reaction to the judgment of the Chamber and that the argument had not

previously been raised in substance. Although in

Blečić

(cited above), the

Court gave examples of incompatibility objections which could be raised at

any stage of the procedure, none of the examples was similar to the present

case. Accordingly, in the view of the Romanian Government, the

respondent Government was not able to raise the objection at this stage.

130. However, if the Court were to conclude that there was no estoppel,

the Romanian Government invited the Court to join the objection to the

merits and to consider it in that context. They argued that it was necessary

to analyse the undertakings of Moldova in the context of international

agreements in order to assess how Moldova had chosen to give effect to

TĂNASE v. MOLDOVA JUDGMENT

rights guaranteed in the Convention. They referred to the Court’s consistent

case-law to the effect that the Convention could not be interpreted in a

vacuum and that regard should be had to other relevant instruments of

international law (for example,

Emonet and Others v. Switzerland,

no. 39051/03, § 65, 13 December 2007, and

Al-Adsani v. the United

Kingdom

[GC], no. 35763/97, § 55, ECHR 2001-XI). Thus, in the view of

the Romanian Government, the Chamber was correct to refer to

engagements assumed by Moldova at European level as relevant to its

analysis of the restrictions imposed by Law no. 273. In this regard, the

Romanian Government noted that Moldova had ratified the ECN without

lodging reservations and that the obligation on States to execute in good

faith international treaties to which they were party was a fundamental

principle of international law.

2. The Court’s assessment

131. The Court observes that the Government’s objection

ratione

materiae

was not previously raised at the admissibility stage and is therefore

a new objection. However, it notes that an objection of incompatibility

ratione materiae

is an objection which goes to the Court’s jurisdiction and

points out that the Court is obliged to examine whether it has jurisdiction at

every stage of the proceedings. As a result, the Government cannot be

considered as being estopped from raising such an objection at this stage

(see,

mutatis mutandis, Blečić,

cited above, § 67).

132. Like the parties, the Court considers that the objection is closely

linked to the merits of the applicant’s complaint. It will therefore deal with

the objection in its examination of the merits below.

D. Conclusion

133. The application cannot be rejected as incompatible

ratione

materiae

with the provisions of the Convention for failure to exhaust

domestic remedies or for lack of victim status. The Court therefore

dismisses the respondent Government’s preliminary objections, with the

exception of its objection of incompatibility

ratione materiae,

which is

joined to the merits.

II. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL No. 1

A. The Chamber’s conclusions

134. The Chamber accepted that the impugned provisions were

formulated in clear terms and that they pursued the legitimate aim of

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ensuring the loyalty of MPs to the Moldovan State. However, it considered

that the means employed by the Government for the purpose of ensuring the

loyalty of its MPs to the State were disproportionate. There was therefore a

violation of Article 3 of Protocol No. 1.

135. In its assessment of the proportionality of the measure, the

Chamber took into consideration the practice of other member States of the

Council of Europe and other methods available to the Government to ensure

the loyalty of MPs, such as requiring them to swear an oath. It also

considered the provisions of the ECN and the comments of the European

Commission against Racism and Intolerance (ECRI) and the Commission

for Democracy through Law of the Council of Europe (the Venice

Commission) on the new Law. Even in the specific context of Moldova’s

political evolution, the Chamber was not satisfied that the prohibition on

multiple nationals sitting as MPs could be justified, particularly in view of

the fact that such a far-reaching restriction had been introduced

approximately a year or less before the general elections.

B. The parties’ submissions

1. The Moldovan Government

136. The Government explained by way of preliminary remarks that all

that was required under Law no. 273 was that an individual prove that he

had initiated a procedure to renounce the citizenship of any other State (see

paragraph 79 above). Further, as noted above (see paragraph 98), once the

Constitutional Court had confirmed the mandate of an MP, there was no

mechanism whereby the mandate could subsequently be revoked: the Law

made no provision for such a procedure.

137. The Government reiterated its submissions before the Chamber that

the interference was lawful and that it pursued the legitimate aims of

ensuring loyalty, defending the independence and existence of the State and

guaranteeing the security of the State. They pointed to the findings of the

Constitutional Court as to the consistency of Law no. 273 with the

Moldovan Constitution and international conventions (see paragraph 55

above). They contested the Chamber’s conclusion that the measure was not

proportionate, arguing that the Chamber had failed to give adequate weight

to their submissions on the special historical context of Moldova which in

their view necessitated restrictions on those with dual nationality becoming

MPs. They pointed out that when the ECN was ratified in 1999, the number

of Moldovans holding dual nationality was insignificant as it was not

permitted under the law in force at the time (see paragraph 22 above).

Accordingly, no reservation in respect of Article 17 was thought necessary.

They further explained that in 1999, Moldova was not a parliamentary

republic as it is today, but a semi-presidential republic. The legislature

TĂNASE v. MOLDOVA JUDGMENT

therefore played a greater role in the State today than it did then. Although

of the other Council of Europe member States which banned dual nationals

from sitting as MPs, Azerbaijan, Lithuania and Malta had not ratified the

ECN and Bulgaria had lodged a reservation to Article 17, Moldova could

simply denounce the ECN and, if it wished to do so, re-ratify it subject to a

reservation in respect of Article 17. This would place it in the same position

as Bulgaria.

138. The Government also criticised the Chamber for drawing

significance from the fact that Moldova had failed to submit the draft law

for consideration by relevant international authorities and had failed to abide

by the recommendations of ECRI and the Venice Commission (see

paragraphs 40, 45 and 51 above). Referring to

Boicenco v. Moldova

(no. 41088/05, 11 July 2006), the Government pointed out that the Court

had in the past found a violation even where the Law in question had been

submitted to Council of Europe experts and had been amended to comply

with their recommendations. Conversely, in

Yumak and Sadak v. Turkey

([GC], no. 10226/03, ECHR 2008), Turkey’s failure to comply with

recommendations of Council of Europe experts did not lead the Court to

find a violation of the Convention. The Government also contested the

relevance of the report of the Venice Commission, given that it had not been

published by the date on which Law no. 273 was adopted.

139. As to the other methods of ensuring loyalty proposed by the

Chamber, the Government argued that an oath would be insufficient as any

dual national Moldovan would also have sworn an oath to their other State

of nationality. Accordingly, an oath was merely declaratory and was

ineffective at ensuring loyalty.

140. Finally, the Government noted that 21 out of 101 MPs elected in

the April 2009 elections were dual nationals. They argued that this gave rise

to serious concerns as far as Moldovan independence, security and

statehood were concerned.

141. The Government invited the Court to find that there was no

violation of Article 3 of Protocol No. 1 in the present case.

2. The applicant

142. The applicant maintained that the restrictions in Law no. 273

violated his right to stand as a candidate in free elections which ensured the

free expression of the people in the choice of the legislature. He argued that

the requirement that he initiate a procedure renouncing his Romanian

nationality in order to be able to take his seat in Parliament curtailed the

rights guaranteed by Article 3 of Protocol No. 1 to such an extent as to

impair their very essence and deprive them of their effectiveness, as the

right to stand for election would be rendered meaningless without the right

to sit as an MP once elected (referring to

M. v. the United Kingdom,

no. 10316/83, Commission decision of 7 March 1984, DR 37, p. 129).

TĂNASE v. MOLDOVA JUDGMENT

143. The applicant reiterated his complaint that Law no. 273 did not

satisfy the requirement of lawfulness because it was inconsistent with the

provisions of the Constitution and the ECN, which was ratified by Moldova

in 1999 and was therefore part of the internal legal order (see

paragraphs 71-73 above).

144. The applicant further alleged that Law no. 273 did not pursue a

legitimate aim because the aim of ensuring loyalty towards Moldova was

not the genuine motivation behind the enactment of the new Law. By way

of example, Mrs Larisa Savga had been reappointed a member of

government following the April 2009 elections, even though it was well

known that she also held Romanian nationality. He also referred to

unconfirmed press reports that the former President of Moldova,

Mr Voronin, had held Russian citizenship while serving as President and

received a pension from Russia. Relying upon conclusions of independent

analysts, the applicant argued that holding dual nationality did not make

Moldovan citizens less patriotic.

145. Finally, the applicant alleged that the Law was disproportionate,

arbitrary and anti-democratic. He argued that the Convention had to be

interpreted in a manner which rendered the rights contained therein practical

and effective. To this end, it had to be read as a whole and in such a way as

to promote internal consistency between its various provisions. Relevant

rules and principles of international law had to be taken into account. Any

emerging consensus among European States was a relevant factor for

consideration by the Court (see

Demir and Baykara,

cited above, §§ 66-85).

Applying these principles, the applicant concluded that the Court should not

ignore the obligations assumed by the Government under the ECN when

assessing the proportionality of the restrictions under Article 3 of Protocol

No. 1. The same applied to the recommendations and findings of other

international organisations. The applicant also pointed to the fact that

Moldova was the only Council of Europe member State which allowed

multiple nationalities but banned those who were multiple nationals from

standing for national elections. He argued that this demonstrated an absence

of international acceptance for the approach of the Government.

146. The applicant further contended that it was disproportionate of the

Government to restrict the right to sit as an MP to individuals with only

Moldovan nationality in the light of their previous policy of encouraging

Moldovan nationals to acquire other nationalities. The Government had

admitted that a significant number of Moldovans had acquired a second

nationality for social and economic reasons (see paragraph 39 above), a fact

which, in the applicant’s view, rendered their new policy even more

disproportionate. He emphasised that the Government had provided no

example of any threat to the security or independence of Moldova from dual

nationals. In the applicant’s view, the existence of sanctions for treason was

an adequate means of preventing disloyalty. In any case, access to classified

TĂNASE v. MOLDOVA JUDGMENT

information was dependent upon security clearance which was only granted

following a thorough investigation by the secret services.

147. Finally, the applicant criticised the adoption of the new legislation

less than one year before the 5 April 2009 elections. He argued that the

proportionality of the Law should be assessed in the general context of

electoral reform in Moldova, including the raising of the threshold for

gaining seats in Parliament from 4% to 6% and the prohibition of electoral

blocs (see paragraph 37 above). The election results of 5 April 2009

demonstrated that the new Law mainly affected the opposition, as 21 of its

41 members were concerned (see paragraph 59 above). The example of

Mrs Savga (see paragraph 144 above) was evidence of the arbitrary

application of the new Law. In the applicant’s submission, it was relevant

for the Court whether the effect of rules governing elections excluded a

group of persons from participating in the political life of a country, whether

discrepancies created by a particular electoral system could be considered

arbitrary or abusive and whether the system tended to favour one political

party over another (referring to,

inter alia, Aziz v. Cyprus,

no. 69949/01, §

28, ECHR 2004-V, and

Yumak and Sadak,

cited above, § 121). The

applicant contended that the real aim behind the electoral reform was to

diminish the electoral prospects of the opposition party and that Law no.

273 was therefore arbitrary and abusive.

3. The Romanian Government

148. The Romanian Government contested the legality of Law no. 273.

They argued that the Law was not foreseeable given the fact that it was not

uniformly applied and that different interpretations could be given to its

provisions.

149. They further argued that a minimum European standard emerged

from an examination of the legislation applicable in the different member

States and that this standard did not impose a condition of single citizenship

for election to Parliament. Unlike the other Council of Europe member

States which banned dual nationals from sitting as MPs, Moldova had

chosen to assume all of the obligations arising under the ECN. The fact that

Moldova had chosen to change its position on the possibility of acquiring

dual nationality did not absolve it from complying with its obligations under

the ECN. The Romanian Government emphasised that Article 4 of the

Moldovan Constitution provided that in the event of a disagreement

between international human rights conventions to which Moldova was a

party and domestic legislation, the international measures prevailed (see

paragraph 71 above). Furthermore, section 25 of the Law on citizenship of

the Republic of Moldova provided that citizens of Moldova who also held

citizenship of another State had the same rights and obligations as other

Moldovan citizens (see paragraph 75 above).

TĂNASE v. MOLDOVA JUDGMENT

150. The Romanian Government also pointed out that, some seventeen

years after Moldova gained its independence, the respondent Government

asserted a risk to that independence without providing any proof. They

emphasised that no causal link had been established between dual

nationality and the alleged danger to the independence of the State and that

no example had been proffered of a case where a dual national had

committed acts which undermined independence or national security.

151. The Romanian Government also argued that the legislation did not

pursue a legitimate aim. They did not contest that the protection of the

independence and national security of the State could be a legitimate aim

which had to be assessed in the context of the historical and political

background of the State in question. However, they disputed the submission

by the respondent Government that the historico-political situation in

Moldova rendered the aim legitimate in the present case. They further

emphasised that a number of Laws passed between 1991 and 2000 did not

impose a condition of single citizenship for candidacy for certain public

posts. One example was Law no. 720 of 18 September 1991, regulating

presidential elections. The Romanian Government, relying on

�½danoka

v. Latvia

([GC], no. 58278/00, § 135, ECHR 2006-IV) and

Ādamsons

v. Latvia

(no. 3669/03, § 123, 24 June 2008), argued that even if a condition

of single citizenship could have been justified in the early years following

Moldovan independence, with the passage of time and the consolidation of

democracy, such a condition could no longer be justified. It was therefore

difficult to understand the position of Moldova, which for three parliaments

had allowed multiple citizens to become MPs but which now, some

seventeen years later, considered the possession of another citizenship to

constitute a grave danger to Moldova and assimilated dual nationality with

treason. They argued that the aim of ensuring loyalty to the State should be

realised through the imposition of sanctions for conduct which harms the

national interest and not through restricting access of multiple nationals to

certain public functions.

152. As regards proportionality, the Romanian Government again

emphasised the existence of a minimum European standard which did not

impose a condition of single citizenship for election to Parliament. Further,

the reports published by ECRI and the Venice Commission (see

paragraphs 45 and 51 above), which, as demonstrated by

Shtukaturov

v. Russia

(no. 44009/05, § 95, ECHR 2008), were a relevant factor of the

Court’s consideration, supported the assertion that there was a common

European standard in electoral matters. Such reports were important both

because of the intrinsic value of the opinion expressed – which was the

opinion of impartial legal experts – and precisely because of the weight

attributed to them by the Court and the other organs of the Council of

Europe.

TĂNASE v. MOLDOVA JUDGMENT

153. The Romanian Government concluded that Moldova had exceeded

its margin of appreciation in this area. In this regard, it was not enough that

the applicant was permitted to stand as a candidate. In order for the right to

be effective, he had to be able to take his seat (referring to

M. v. the United

Kingdom,

cited above). The adoption of Law no. 273 impaired the very

essence of the rights guaranteed by Article 3 of Protocol No. 1, rendering

them theoretical and illusory. In conclusion, the Romanian Government

invited the Court to endorse the Chamber’s conclusion that there had been a

violation of that Article.

C. The Court’s assessment

1. General principles

154. The Court has consistently emphasised the importance of Article 3

of Protocol No. 1 in an effective democracy and, as a consequence, its prime

importance in the Convention system. In

Yumak and Sadak

(cited above,

§ 105), it reiterated that the rights guaranteed under Article 3 of Protocol

No. 1 are crucial to establishing and maintaining the foundations of an

effective and meaningful democracy governed by the rule of law. In

Mathieu-Mohin and Clerfayt v. Belgium

(2 March 1987, § 47, Series A

no. 113), and

Lingens v. Austria

(8 July 1986, §§ 41 and 42, Series A

no. 103), the Court held that free elections and freedom of expression, and

particularly freedom of political debate, formed the foundation of any

democracy.

155. The Court’s case-law has distinguished between the active aspect

of Article 3 of Protocol No. 1, which relates to the right to vote, and the

passive aspect, namely the right to stand as a candidate for election (see

�½danoka,

cited above, §§ 105 and 106). The present case is principally

concerned with the latter aspect. However, as noted above (see

paragraph 108), the prohibition on multiple nationals sitting as MPs may

also have had a secondary impact on the manner in which the electorate

exercised its right to vote in Moldova.

156. As regards the passive aspect of Article 3 of Protocol No. 1, the

Court has emphasised the considerable latitude which States enjoy in

establishing criteria on eligibility to stand for election. In

�½danoka

(cited

above, § 106), the Court explained:

“... although [the criteria] have a common origin in the need to ensure both the

independence of elected representatives and the freedom of choice of electors, these

criteria vary in accordance with the historical and political factors specific to each

State. The multiplicity of situations provided for in the constitutions and electoral

legislation of numerous member States of the Council of Europe shows the diversity

of possible approaches in this area. Therefore, for the purposes of applying Article 3,

TĂNASE v. MOLDOVA JUDGMENT

any electoral legislation must be assessed in the light of the political evolution of the

country concerned ...”

157. Similarly, in

Podkolzina v. Latvia

(no. 46726/99, § 33, ECHR

2002-II), the Court observed that for the purposes of applying Article 3, any

electoral legislation must be assessed in the light of the political evolution

of the country concerned, so that features that would be unacceptable in the

context of one system may be justified in the context of another. However,

it emphasised that the State’s margin of appreciation in this regard was

limited by the obligation to respect the fundamental principle of Article 3 of

Protocol No. 1, namely “the free expression of the opinion of the people in

the choice of the legislature” (see also

Mathieu-Mohin and Clerfayt,

cited

above, § 47, and

Melnychenko v. Ukraine,

no. 17707/02, § 55, ECHR

2004-X).

158. In assessing the limitations of the latitude afforded to States, the

Court in

Aziz

(cited above, § 28) noted:

“Although ... States enjoy considerable latitude to establish rules within their

constitutional order governing parliamentary elections and the composition of the

parliament, and ... the relevant criteria may vary according to the historical and

political factors peculiar to each State, these rules should not be such as to exclude

some persons or groups of persons from participating in the political life of the

country and, in particular, in the choice of the legislature, a right guaranteed by both

the Convention and the Constitutions of all Contracting States.”

159. Applying these principles, the Court considered in

�½danoka

(cited

above, §§ 119-35), that historical considerations could provide justification

for restrictions on rights intended to protect the integrity of the democratic

process by, in that case, excluding individuals who had actively participated

in attempts to overthrow the newly established democratic regime.

However, the Court suggested that such restrictions were unlikely to be

compatible if they were still applied many years later, at a point where the

justification for their application and the threats they sought to avoid were

no longer relevant. Subsequently, in

Ādamsons

(cited above, §§ 123-28), the

Court emphasised that with the passage of time, general restrictions on

electoral rights become more difficult to justify. Instead, measures had to be

“individualised” in order to address a real risk posed by an identified

individual.

160. In

Hirst v. the United Kingdom (no. 2)

([GC], no. 74025/01, § 62,

ECHR 2005-IX), the Court observed more generally that any conditions

imposed on the rights guaranteed under Article 3 of Protocol No. 1 must

reflect, or not run counter to, the concern to maintain the integrity and

effectiveness of an electoral procedure aimed at identifying the will of the

people through universal suffrage.

161. Finally, notwithstanding the wide margin of appreciation afforded

to States in this area, the Court has reiterated on numerous occasions that it

is for the Court to determine in the last resort whether the requirements of

TĂNASE v. MOLDOVA JUDGMENT

Article 3 of Protocol No. 1 have been complied with. In this regard, 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, for example,

Hirst

(no. 2),

cited above, § 62, and

Yumak and Sadak,

cited above, § 109).

2. Application of the general principles to the present case

162. The Court notes that it has found that the applicant can claim to be

a victim of Law no. 273 (see paragraph 111 above). It further observes that

in both the April 2009 and the July 2009 elections, the applicant was elected

as an MP (see paragraphs 60 and 66 above). In order to have his mandate

confirmed by the Constitutional Court, he was required to initiate a

procedure to renounce his Romanian nationality (see paragraphs 60-61 and

66 above). Accordingly, the Court considers that there has been an

interference with the applicant’s rights under Article 3 of Protocol No. 1.

Such interference will constitute a violation unless it meets the requirements

of lawfulness, it pursues a legitimate aim and it is proportionate.

(a) Lawfulness

163. The Court observes that the prohibition on multiple nationals sitting

as MPs contained in Law no. 273 was couched in sufficiently clear terms.

Once adopted, the Law was published in the Official Gazette. Accordingly,

the Court is satisfied that the impugned legislation met the requirements of

foreseeability. Although there would appear to be an inconsistency between

the Law and Article 17 of the ECN, which is part of the domestic legal order

under the Moldovan Constitution and takes precedence over national

legislation (see paragraphs 71-73 above), the Court does not find it

necessary to resolve the apparent conflict of norms. However, it will

consider the impact of the ECN more closely in its examination of the

proportionality of the measure below.

(b) Legitimate aim

164. Unlike Articles 8, 9, 10 and 11 of the Convention, Article 3 of

Protocol No. 1 does not itself set out a list of aims which can be considered

legitimate for the purposes of that Article. Several aims are relied upon by

the Government to justify the prohibition introduced by Law no. 273,

namely ensuring loyalty, defending the independence and existence of the

State and guaranteeing the security of the State. The Court observes that the

Constitutional Court found the aim pursued by the prohibition to be

securing the loyalty of MPs to the State and concluded that allowing MPs to

hold dual nationality was contrary to the constitutional principle of the

independence of the mandate of MPs, State sovereignty, national security

TĂNASE v. MOLDOVA JUDGMENT

and the non-disclosure of confidential information (see paragraph 56

above). The Deputy Minister of Justice, explaining the aim of the proposed

legislation, said that there may be a conflict of interest in cases where

Moldovan citizens had political and legal obligations towards other States

by virtue of holding a second nationality (see paragraph 39 above).

165. As regards the aim of ensuring loyalty, a concept invoked by all

parties in their submissions before the Court (see paragraphs 137, 144

and 151 above), the Court observes that “loyalty”, as invoked by the parties

to justify the introduction of the prohibition, is not clearly defined and no

explanation of its content has been provided by the parties. However, the

parties appear to agree that loyalty in this context is linked to the existence

and independence of the State and to matters of national security. The oath

of allegiance sworn by Moldovan citizens who acquire Moldovan

nationality by naturalisation or reacquisition further refers to the need to

respect the Constitution and the laws of the State and to refrain from action

which would prejudice the interests and territorial integrity of the State (see

paragraph 76 above).

166. For its part, the Court would distinguish at the outset between

loyalty to the State and loyalty to the government. While the need to ensure

loyalty to the State may well constitute a legitimate aim which justifies

restrictions on electoral rights, the latter cannot. In a democratic State

committed to the rule of law and respect for fundamental rights and

freedoms, it is clear that the very role of MPs, and in particular those

members from opposition parties, is to represent the electorate by ensuring

the accountability of the government in power and assessing their policies.

Further, the pursuit of different, and at times diametrically opposite, goals is

not only acceptable but necessary in order to promote pluralism and to give

voters choices which reflect their political opinions. As the Court has

previously noted, protection of opinions and the freedom to express them is

one of the objectives of the freedoms guaranteed by the Convention, and in

particular Articles 10 and 11. This principle is all the more important in

relation to MPs in view of their essential role in ensuring pluralism and the

proper functioning of democracy (see, regarding the importance of freedom

of expression for political parties in general,

Refah Partisi (the Welfare

Party) and Others v. Turkey

[GC], nos. 41340/98, 41342/98, 41343/98 and

41344/98, § 88, ECHR 2003-II).

167. As to what loyalty is required from MPs to the State, the Court

considers that such loyalty in principle encompasses respect for the

country’s Constitution, laws, institutions, independence and territorial

integrity. However, the notion of respect in this context must be limited to

requiring that any desire to bring about changes to any of these aspects must

be pursued in accordance with the laws of the State. Any other view would

undermine the ability of MPs to represent the views of their constituents, in

particular minority groups. The Court has previously emphasised that there

TĂNASE v. MOLDOVA JUDGMENT

can be no justification for hindering a political group solely because it seeks

to debate in public the situation of part of the State’s population and to take

part in the nation’s political life in order to find, according to democratic

rules, solutions capable of satisfying everyone concerned. Similarly, in the

present case, the fact that Moldovan MPs with dual nationality may wish to

pursue a political programme which is considered by some to be

incompatible with the current principles and structures of the Moldovan

State does not make it incompatible with the rules of democracy. A

fundamental aspect of democracy is that it must allow diverse political

programmes to be proposed and debated, even where they call into question

the way a State is currently organised, provided that they do not harm

democracy itself (see

Socialist Party and Others v. Turkey,

25 May 1998,

§§ 45 and 47,

Reports

1998-III, and

Manole and Others v. Moldova,

no. 13936/02, § 95, ECHR 2009).

168. With this in mind, the Court turns to consider whether the measure

in the present case was genuinely intended to secure loyalty to the State as

alleged by the Government. In this regard, the Court observes that Law

no. 273 was the third aspect of an electoral reform package, whose other

measures consisted of raising the electoral threshold and banning electoral

blocs (see paragraph 37 above). All the measures proposed had a

detrimental impact on the opposition, which had previously found it

difficult to secure enough votes to meet the threshold to enter Parliament

and had succeeded in doing so only through the formation of electoral blocs

(see paragraphs 31 and 33 above). The results of the April 2009 elections, in

which of the 101 MPs elected, 21 were negatively affected by Law no. 273

and all 21 were opposition MPs (see paragraph 59 above), demonstrate the

disproportionate effect of the new Law. The applicant’s allegation that the

Law exempts from its scope the residents of Transdniestria, a large number

of whom hold Russian nationality, raises further concerns about the true aim

of the legislation (however, see further paragraph 187 below concerning the

ambiguity surrounding this exemption). Finally, the Court considers it

significant that the amendments were introduced less than a year before the

general elections (see paragraph 44 above). Following the April 2009

elections, a further amendment was introduced to the electoral legislation,

which was again criticised by opposition parties as being intended to

improve the prospects of the governing party and its political allies (see

paragraph 63 above). In this regard, the Court refers to the Venice

Commission Code of Practice in Electoral Matters, which warns of the risk

that frequent changes to electoral legislation or changes introduced just

before elections will be perceived, rightly or wrongly, as an attempt to

manipulate electoral laws to the advantage of the party in power (see

paragraph 86 above). It is also significant that the Monitoring Committee

and the Parliamentary Assembly of the Council of Europe expressed

concern at the changes to the electoral legislation, which they considered

TĂNASE v. MOLDOVA JUDGMENT

restricted opportunities for political forces to participate effectively in the

political process and thus weakened pluralism (see paragraphs 47 and 49-50

above).

169. Where the authorities introduce significant restrictions on the right

to vote or stand for election, and in particular where such changes are

introduced shortly before elections take place, it is for the Government to

provide to the Court the relevant evidence to support their claim as to the

intended aim of the impugned measure. Further, in cases such as the

present, where the measure has a significant detrimental effect on the ability

of opposition parties to participate effectively in the political process, the

requirement that the Government produce evidence to demonstrate that the

amendments were introduced for legitimate reasons is all the more pressing.

In the present case, the Government have been unable to provide a single

example of an MP with dual nationality showing disloyalty to the State of

Moldova. Other than brief references in the judgment of the Constitutional

Court to movements to undermine the State of Moldova, very little

explanation at all has been provided for the change in electoral policy.

Further, there would appear to be evidence that the Law is not being

uniformly applied (see paragraph 144 above).

170. In the circumstances, the Court is not entirely satisfied that the aim

of the measure was to secure the loyalty of MPs to the State. It is not,

however, necessary for it to reach a conclusion on this question, in view of

its conclusions concerning the proportionality of the prohibition (see

below). Accordingly, the Court leaves open whether the prohibition on

multiple nationals taking seats in Parliament pursued a legitimate aim.

171. In the first place, the Court observes that very few member States

of the Council of Europe prohibit dual nationals becoming MPs (see

paragraph 87 above). Of the three countries other than Moldova in which a

clear prohibition exists, two do not allow their nationals to hold dual

nationality. Further, none of these three States have signed up to Article 17

of the ECN (see paragraph 89 above). The States of the former Yugoslavia,

most of which have ethnically diverse populations, all allow dual nationality

in at least some circumstances, but none prohibits multiple nationals from

standing for Parliament (see paragraph 92 above).

172. The Court considers that a review of practice across Council of

Europe member States reveals a consensus that where multiple nationalities

are permitted, the holding of more than one nationality should not be a

ground for ineligibility to sit as an MP, even where the population is

ethnically diverse and the number of MPs with multiple nationalities may be

high. However, notwithstanding this consensus, a different approach may be

justified where special historical or political considerations exist which

render a more restrictive practice necessary.

TĂNASE v. MOLDOVA JUDGMENT

173. The Court emphasises the special position of Moldova, which has a

potentially high proportion of dual nationals and has only relatively recently

become independent. The Court considers that in the light of Moldova’s

history (see paragraphs 11-18 above), there was likely to be a special

interest in ensuring that, upon declaring independence in 1991, measures

were taken to limit any threats to the independence and security of the

Moldovan State in order to ensure stability and allow the establishment and

strengthening of fragile democratic institutions. The Court notes that, of the

other States in the region, a ban in Romania, which allows dual nationality,

on dual nationals sitting as MPs was lifted as recently as 2003. Bulgaria

currently adopts the same approach as Moldova (see paragraph 87 above).

Ukraine continues to prohibit dual nationality (see paragraph 90 above). The

restriction introduced by Law no. 273 must be assessed with due regard to

this special historico-political context and the resultant wide margin of

appreciation enjoyed by the State (see

�½danoka,

cited above, § 121).

Accordingly, the Court does not exclude that in the immediate aftermath of

the Declaration of Independence by Moldova in 1991, a ban on multiple

nationals sitting as MPs could be justified.

174. However, the Court considers it significant that the ban was not put

in place in 1991 but in 2008, some seventeen years after Moldova had

gained independence and some five years after it had relaxed its laws to

allow dual citizenship. In the circumstances, the Court considers the

argument that the measure was necessary to protect Moldova’s laws,

institutions and national security to be far less persuasive. In order for the

recent introduction of general restrictions on electoral rights to be justified,

particularly compelling reasons must be advanced. However, the

Government have not provided an explanation of why concerns have

recently emerged regarding the loyalty of dual citizens and why such

concerns were not present when the law was first changed to allow dual

citizenship. The Government argued that the numbers involved – around

one-fifth of current MPs hold or are in the process of applying for a second

nationality – are sufficient to justify the approach taken (see paragraph 140

above). The Court acknowledges that the numbers are significant. However,

it also emphasises that a large proportion of citizens also hold dual

nationality (see paragraphs 26-28 above) and that these citizens have the

right to be represented by MPs who reflect their concerns and political

views.

175. The Court further refers to its judgment in

Ādamsons

(cited above,

§ 123), in which it noted that with the passage of time, general restrictions

on electoral rights become more difficult to justify. There, the Court

emphasised the need to “individualise” measures, to take account of the

actual conduct of individuals rather than a perceived threat posed by a group

of persons. In the present case, the Court considers that there are other

means of protecting Moldova’s laws, institutions and national security.

TĂNASE v. MOLDOVA JUDGMENT

Sanctions for illegal conduct or conduct which threatens national interests

are likely to have a preventative effect and enable any particular threat

posed by an identified individual to be addressed. The Government have not

suggested that security clearance for access to confidential documents is

inadequate to ensure protection of confidential and sensitive information. It

should be noted that both of these measures are concerned with identifying a

credible threat to State interest in particular circumstances based on specific

information, rather than operating on a blanket assumption that all dual

nationals pose a threat to national security and independence. The Court

reiterates that this is the approach preferred where an immediate threat to

democracy or independence has passed (ibid., § 125).

176. Further, and in any event, historico-political considerations should

be viewed in the broader context of the obligations which Moldova has

freely undertaken under the ECN and the recommendations and conclusions

of relevant international bodies. It is appropriate to consider in this context

the objection

ratione materiae

raised by the respondent Government (see

paragraphs 131-32 above). The Court emphasises that it has consistently

held that it must take into account relevant international instruments and

reports, and in particular those of other Council of Europe organs, in order

to interpret the guarantees of the Convention and to establish whether there

is a common European standard in the field. It is for the Court to decide

which international instruments and reports it considers relevant and how

much weight to attribute to them. Where there is a common standard which

the respondent State has failed to meet, this may constitute a relevant

consideration for the Court when it interprets the provisions of the

Convention in specific cases (see,

inter alia, Demir and Baykara,

cited

above, §§ 85-86, and

Shtukaturov,

cited above, § 95). In the present case,

the Court considers the provisions of the ECN, the conclusions and reports

of ECRI and the Venice Commission (see paragraphs 45 and 51 above) and

the resolutions of the Parliamentary Assembly of the Council of Europe (see

paragraphs 48-50 above) to be relevant to its assessment of whether Law

no. 273 is proportionate. In particular, in making reference to the ECN, the

Court is not seeking to examine the applicant’s right to hold dual nationality

but rather the right of the respondent State to introduce restrictions on his

right to take his seat following his election as a result of his dual nationality

and the compatibility of any such restriction with Article 3 of Protocol

No. 1.

177. As to the content of such reports and commentaries, the Court

observes that the Venice Commission, ECRI, the Parliamentary Assembly

of the Council of Europe and the Monitoring Committee were unanimous in

their criticism of the prohibition (see paragraphs 45-51 above). Concerns

were expressed as to the discriminatory impact of Law no. 273 as well as its

impact on the ability of a number of political forces to participate effectively

in the political process. The Court further takes note of Article 17 of the

TĂNASE v. MOLDOVA JUDGMENT

ECN and Moldova’s undertaking pursuant to that Article to ensure that

Moldovan nationals in possession of another nationality have the same

rights and duties as other Moldovan nationals (see paragraph 85 above).

178. Finally, the Court notes that any restriction on electoral rights

should not be such as to exclude some persons or groups of persons from

participating in the political life of the country (see paragraph 158 above).

In this respect, the Court emphasises the disproportionate effect of the Law

on the parties which were at the time of its introduction in opposition (see

paragraph 168 above). Pluralism and democracy must be based on dialogue

and a spirit of compromise, which necessarily entails various concessions

on the part of individuals or groups of individuals which are justified in

order to maintain and promote the ideals and values of a democratic society

(see

United Communist Party of Turkey and Others v. Turkey,

30 January

1998, § 45,

Reports

1998-I, and

Leyla Şahin v. Turkey

[GC], no. 44774/98,

§ 108, ECHR 2005-XI). In order to promote such dialogue and exchange of

views necessary for an effective democracy, it is important to ensure access

to the political arena for opposition parties on terms which allow them to

represent their electorate, draw attention to their preoccupations and defend

their interests (see

Christian Democratic People’s Party v. Moldova,

no. 28793/02, § 67, ECHR 2006-II).

179. The Court must examine with particular care any measure which

appears to operate solely, or principally, to the disadvantage of the

opposition, especially where the nature of the measure is such that it affects

the very prospect of opposition parties gaining power at some point in the

future. Restrictions of this nature curtail the rights guaranteed by Article 3

of Protocol No. 1 to such an extent as to impair their very essence and

deprive them of their effectiveness. The introduction of the prohibition in

the present case shortly before the elections, at a time when the governing

party’s percentage of the vote was in decline (see paragraphs 31-44 above),

further militates against the proportionality of the measure.

180. In the light of all of the above factors, and notwithstanding

Moldova’s special historical and political context, the Court finds the

provisions of Law no. 273 preventing elected MPs with multiple

nationalities from taking seats in Parliament to be disproportionate and in

violation of Article 3 of Protocol No. 1. The respondent Government’s

objection

ratione materiae

is accordingly dismissed.

TĂNASE v. MOLDOVA JUDGMENT

III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION

TAKEN IN CONJUNCTION WITH ARTICLE 3 OF PROTOCOL

No. 1

A. The Chamber’s conclusions

181. The Chamber considered that the matters raised under Article 14

related to the same matters as those examined in the context of the

complaint under Article 3 of Protocol No. 1. Accordingly, it concluded that

there was no need to examine the Article 14 complaint separately.

B. The parties’ submissions

1. The Moldovan Government

182. The Government argued that section 21(3) of Law no. 273 (see

paragraph 80 above) did not exclude Transdniestrian residents from the

prohibition on MPs holding multiple nationalities but excluded

Transdniestrian institutions from the scope of the law. The Government

agreed with the Chamber’s finding that no further issues arose under this

head.

2. The applicant

183. The applicant refuted the Government’s explanation of the meaning

of section 21(3), arguing that the text of the Law was self-explanatory and

applied to those living in Transdniestria, and not to elections to

Transdniestrian institutions, which were in any event not recognised by the

Moldovan Government. He maintained that in his view, a separate issue

arose under Article 14 because Law no. 273 expressly excluded its

application to Moldovan nationals living in Transdniestria, although a

number of them also held Russian nationality. There was no justification for

this difference in treatment.

184. The applicant requested the Court to find a separate violation of

Article 14 taken in conjunction with Article 3 of Protocol No. 1.

3. The Romanian Government

185. The Romanian Government also disagreed with the more limited

interpretation which the respondent Government sought to give to

section 21(3) of Law no. 273 on the exception for Transdniestria, which

they argued was contrary to general principles of interpretation. Given that

the respondent Government did not recognise the institutions and authorities

established in Transdniestria, they could not claim that the Law passed in

TĂNASE v. MOLDOVA JUDGMENT

Moldova sought to regulate elections to such bodies. They highlighted that

ECRI had criticised the distinction as being unjustified (see paragraph 45

above) and invited the Court to accord some weight to this conclusion

(relying on

Cobzaru v. Romania,

no. 48254/99, §§ 49-50, 26 July 2007).

186. In conclusion, the Romanian Government invited the Court to find

that there was a violation of Article 14 taken in conjunction with Article 3

of Protocol No. 1.

C. The Court’s assessment

187. The Court notes that there is a dispute as to the correct

interpretation of section 21(3) of Law no. 273, the wording of which is

unclear. It considers that both interpretations advanced by the parties are

possible. It is not the role of this Court to rule on the correct interpretation

of domestic legislation, which is a matter for the domestic courts.

188. In the present case, in the light of the Court’s finding that there has

been a violation of Article 3 of Protocol No. 1, the Court concludes that

there is no need to examine separately the applicant’s complaint under

Article 14 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

189. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols

thereto, and if the internal law of the High Contracting Party concerned allows only

partial reparation to be made, the Court shall, if necessary, afford just satisfaction to

the injured party.”

A. Damage

190. The applicant did not make any claim for pecuniary or non-

pecuniary damage.

B. Costs and expenses

191. The applicant submitted a detailed claim for costs amounting to

5,021.83 euros (EUR) in additional costs and expenses of the proceedings

before the Grand Chamber, including the costs of attending the hearing. He

provided receipts. Including costs incurred in respect of the proceedings

before the Chamber, the applicant claimed the sum of EUR 8,881.83 in

total.

192. The Government made no submissions to the Grand Chamber on

the applicant’s claim for costs.

TĂNASE v. MOLDOVA JUDGMENT

193. The Court notes that the Chamber awarded the sum of EUR 3,860

in respect of costs and expenses incurred in the proceedings before it.

Further receipts have been provided in respect of the subsequent costs and

expenses of the proceedings before the Grand Chamber. The Court

accordingly awards the entire amount claimed.

C. Default interest

194. The Court considers it appropriate that the default interest rate

should be based on the marginal lending rate of the European Central Bank,

to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

Decides

to join to the merits the respondent Government’s objection

ratione materiae,

and dismisses it;

Dismisses

the

objections;

respondent

Government’s

remaining

preliminary

Holds

that there has been a violation of Article 3 of Protocol No. 1;

Holds

that there is no need to examine separately the complaint under

Article 14 of the Convention taken in conjunction with Article 3 of

Protocol No. 1;

Holds

(a) that the respondent State is to pay the applicant, within three months

from the date date on which this judgment becomes final, EUR 8,881.83

(eight thousand eight hundred and eighty-one euros and eighty-three

cents), plus any tax that may be chargeable to the applicant, in respect of

costs and expenses to be converted into Moldovan lei at the rate

applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until

settlement simple interest shall be payable on the above amount at a rate

equal to the marginal lending rate of the European Central Bank during

the default period plus three percentage points.

TĂNASE v. MOLDOVA JUDGMENT

Done in English and in French, and delivered at a public hearing in the

Human Rights Building, Strasbourg, on 27 April 2010.

Michael O’Boyle

Deputy Registrar

Peer Lorenzen

President