Guide on Article 3 of Protocol No. 1 – Right to free elections III. Passive aspect: the right to stand for election 44. Like the “active” aspect, the “passive” aspect, namely the right to stand as a candidate for election, has been developed in the case-law. The Court has thus stated that the right to stand for election is “inherent in the concept of a truly democratic regime” (Podkolzina v. Latvia, 2002, § 35). However, it has been more cautious in its assessment of restrictions under this aspect of Article 3 of Protocol No. 1 than when it has been called upon to examine restrictions on the right to vote: the proportionality test is more limited. The States thus enjoy a broader margin of appreciation in respect of the “passive” aspect (Etxeberria and Others v. Spain, 2009, § 50; Davydov and Others v. Russia, 2017, § 286). 45. However, the prohibition of discrimination, under Article 14 of the Convention, is equally applicable. In this context, even though the margin of appreciation usually afforded to States as regards the right to stand for election is a broad one, where a difference in treatment is based on race, colour or ethnicity, the notion of objective and reasonable justification must be interpreted as strictly as possible (Sejdić and Finci v. Bosnia-Herzegovina [GC], 2009, § 44). 46. In Sejdić and Finci v. Bosnia-Herzegovina [GC], 2009, the Court examined an exclusion rule to the effect that only persons declaring affiliation with a “constituent people” were entitled to run for the House of Peoples (second chamber of the State Parliament). Potential candidates who refused to declare such an affiliation could not therefore stand. The Court noted that this exclusion rule pursued at least one aim which was broadly compatible with the general objectives of the Convention, namely the restoration of peace. When the impugned constitutional provisions were put in place a very fragile ceasefire was in effect on the ground. The provisions were designed to end a brutal conflict marked by genocide and ethnic cleansing. The nature of the conflict was such that the approval of the “constituent peoples” (namely, the Bosniacs, Croats and Serbs) was necessary to ensure peace. This could explain, without necessarily justifying, the absence of representatives of the other communities (such as local Roma and Jewish communities) at the peace negotiations and the participants’ preoccupation with effective equality between the “constituent peoples” in the post-conflict society. However, there had been significant positive developments in Bosnia and Herzegovina since the Dayton Agreement. In addition, by ratifying the Convention and the Protocols thereto without reservations, the respondent State had voluntarily agreed to meet the relevant standards. The Court thus concluded that the applicants’ continued ineligibility (being of Roma or Jewish origin) to stand for election lacked an objective and reasonable justification and had therefore breached Article 14 of the Convention in conjunction with Article 3 of Protocol No. 1. 47. In Zornić v. Bosnia-Herzegovina, 2014, the Court found, for the same reasons, a violation of Article 3 of Protocol No. 1 as regards the applicant’s ineligibility, for the same reason, to stand for election to the House of Peoples and to the presidency. Observing that there had been excessive delay in executing its judgment in Sejdić and Finci v. Bosnia-Herzegovina [GC], 2009, and that the violation complained of was the direct result of that delay, the Court made a ruling under Article 46 of the Convention. It found that, eighteen years after the tragic conflict in Bosnia-Herzegovina, the time had come to adopt a political system capable of affording all citizens of that country the right to stand for election to the House of Peoples and to the presidency without any distinction as to ethnic origin (Zornić v. Bosnia-Herzegovina, 2014, § 43). 48. In Tănase v. Moldova [GC], 2010, the Court ruled on the question of dual nationality, albeit under Article 3 of Protocol No. 1 alone. It found that there was a consensus that where multiple nationalities were 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. European Court of Human Rights 14/35 Last update: 30.04.2021