Home > 2.4 Complaints and appeals > UKRANIE - Joint Opinion on the Draft Law Amending Certain Legislative Acts Which Restrict the Participation in the State Power of Persons Associated with Political Parties Whose Activities are Prohibited by Law
 
 
 
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Paragraph 20
 

20. The right to stand for elections is not absolute. In its advisory opinion on the assessment, under Article 3 of Protocol No. 1 to the Convention, of the proportionality of a general prohibition on standing for election after removal from office in impeachment proceedings,29 the European Court of Human Rights reminded essential elements of its case-law on the limitation of the rights guaranteed by this provision:


“b) The concept of “implied limitations” 81. In Selahattin Demirtaş ([(no.2)[GC], no.14305/17, 22 December 2020], §§ 387-88), the Court underscored the principle of implied limitations: (…) (…) 388. The concept of ‘implied limitations’ means that the traditional tests of ‘necessity’ or ‘pressing social need’ which the Court uses in the context of its analyses under Articles 8 to 11 of the Convention are not applied in cases concerning Article 3 of Protocol No. 1. Rather, the Court first sets out to ascertain whether there has been arbitrary treatment or a lack of proportionality. Next, it examines whether the limitation has interfered with the free expression of the opinion of the people (see Mathieu-Mohin and Clerfayt, [2 March 1987, no. 9267/81], §52, and Ždanoka, [[GC], 16 March 2006, no. 58278/00], §115).”
c) Legitimate aim 82. 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 (see Tănase, [[GC], 27 April 2010, no. 7/08], §164).
(…) The Court also specified that where an immediate threat to democracy or independence had passed, measures that were concerned with identifying a credible threat to the State interest in particular circumstances based on specific information should be preferred to operating on a blanket assumption that a certain category of persons posed a threat to national security and independence.
d) Impact of the political and historical context
86. In Tănase (cited above), the Court acknowledged that any electoral legislation must be assessed in the light of the historical and political context of the country concerned, but that restrictions on electoral rights should be individualised as time passes.
(…)


“159. […] in Ādamsons [v. Latvia (no. 3669/03, §§ 123-28, 24 June 2008]), 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.”
The Court also specified that where an immediate threat to democracy or independence had passed, measures that were concerned with identifying a credible threat to the State interest in particular circumstances based on specific information should be preferred to operating on a blanket assumption that a certain category of persons posed a threat to national security and independence.
87. Regarding the time-limit for restrictions on electoral rights, the Court held in Ždanoka (cited above): “135. It is to be noted that the Constitutional Court observed in its decision of 30 August 2000 that the Latvian parliament should establish a time-limit on the restriction. In the light of this warning, even if today Latvia cannot be considered to have overstepped its wide margin of appreciation under Article 3 of Protocol No. 1, it is nevertheless the case that the Latvian parliament must keep the statutory restriction under constant review, with a view to bringing it to an early end. Such a conclusion seems all the more justified in view of the greater stability which Latvia now enjoys, inter alia, by reason of its full European integration. Hence, the failure by the Latvian legislature to take active steps in this connection may result in a different finding by the Court (see, mutatis mutandis, Sheffield and Horsham v. the United Kingdom, 30 July 1998, § 60, Reports 1998-V; see also the follow-up judgment to that case, Christine Goodwin v. the United Kingdom [GC], no. 28957/95, §§ 71-93, ECHR 2002-VI). e) Procedural safeguards 88. For the purpose of supervising the compatibility of an interference with the requirements of Article 3 of Protocol No. 1, the Court must scrutinise the relevant domestic procedures and decisions in detail, in order to determine whether sufficient safeguards against arbitrariness were afforded to the applicant and whether the relevant decisions were sufficiently reasoned (see Abil v. Azerbaijan, no. 16511/06, § 34, 21 February 2012).”