THE LACK OF ELECTIONS TO THE EUROPEAN PARLIAMENT IN GIBRALTAR HAD BEEN A VIOLATION OF ARTICLE 3 OF PROTOCOL NO.1

In a judgment delivered at Strasbourg on 18 February 1999 in the case of Matthews v. the United Kingdom (application no. 24833/94), the European Court of Human Rights held by 15 votes to two that there had been a violation of Article 3 of Protocol No. 1 (right to participate in elections to choose the legislature) to the European Convention on Human Rights.

Principal facts

The applicant, Ms Denise Matthews, a British citizen, is a resident of Gibraltar. She was born in 1975. In April 1994 she applied to be registered as a voter in the elections to the European Parliament. She was told that under the terms of the EC Act on Direct Elections of 1976 Gibraltar was not included in the franchise for those elections.

Decision of the Court

It was common ground that Article 3 of Protocol No. 1 applied in Gibraltar.
The Court first considered whether the United Kingdom could be held responsible for the lack of elections to the European Parliament in Gibraltar. It noted that acts of the European Community as such could not be challenged before it as the European Community was not a Contracting Party. However, notwithstanding the transfer of competences to the European Community, Contracting States remained responsible for ensuring that Convention rights were guaranteed. Contracting States were responsible under the Convention and its Protocols for the consequences of international treaties entered into subsequent to the applicability of the Convention guarantees. Moreover legislation emanating from the legislative process of the European Community affected the population of Gibraltar in the same way as legislation which entered the domestic legal order exclusively via the Gibraltar House of Assembly. There was accordingly no reason why the United Kingdom should not be required to secure the rights set out in Article 3 of Protocol No. 1 in respect of European legislation. It followed that the United Kingdom was responsible for securing the rights guaranteed by Article 3 of Protocol No. 1 regardless of whether the elections were purely domestic or European.
The Court then considered whether Article 3 of Protocol No. 1 was applicable to an organ such as the European Parliament and whether that body had the characteristics of a “legislature” in Gibraltar. The Court observed that the word “legislature” in Article 3 did not necessarily mean the national Parliament and that elections to the European Parliament could not be excluded from the ambit of Article 3 merely on the ground that it was a supranational, rather than a purely domestic representative organ. The Court examined the powers of the European Parliament in the context of the European Community and concluded that the Parliament was sufficiently involved both in the specific legislative processes leading to the passage of certain types of legislation and in the general democratic supervision of the activities of the European Community to constitute part of the legislature of Gibraltar for the purposes of Article 3 of Protocol No. 1.
The Court finally addressed the question whether the absence of European Parliamentary elections in Gibraltar was compatible with Article 3. It emphasized that the choice of the electoral system by which the free expression of the opinion of the people in the choice of the legislature was ensured was a matter in which States enjoyed a wide margin of appreciation. However, in the case before it the applicant had been denied any opportunity to express her opinion in the choice of members of the European Parliament, despite the fact that, as the Court had found, legislation that emanated from the European Community formed part of the legislation in Gibraltar and the applicant was directly affected by it. The very essence of the applicant’s right to vote to choose the legislature, as guaranteed under Article 3 of Protocol No. 1, had been denied.
There had accordingly been a violation of that provision.

Source: ECHR press release

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