European Court of Human Rights

Inna Shyrokova

EUROPEAN ELECTORAL EUROPEAN ELECTORAL HERITAGEHERITAGE

Article 3 ofProtocol No. 1

Code of Good Practice in Electoral

Matters

Article 3 of Protocol No. 1

Right to free elections.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

legislature1954Legal obligation!(interpreted in the Court’s case-law)

Code of

Good

Practice

in Electo

ral

Matters

2002Detailed inventory (recommendatory)

of basic rules and guidelines + explanatory report

Form & legal status

Scope (1)Not always the same aspects of the

electoral process covered

EXAMPLES:

-The Communist Party of Russia and Others v. Russia, 19 June 2012-Geraguyn Khorhurd Patgamavorakan Akumb v. Armenia (dec.), 14 April 2009-Lykourezos v. Greece, ECHR 2006

Code: virtually all aspectsP1-3: only the aspects raised in admissible complaints to the ECHR

Scope (2)Not always the same types of elections

EXAMPLES:

-Mółka v. Poland (dec.), 11 April 2006-Cherepkov v. Russia (dec.), 25 January 2000-Valentin Gorizdra v. Moldova (dec.), 2 July 2002-Ljube Boškoski v. the former Yugoslav Republic of Macedonia (dec.), 2 September 2004-Krivobokov v. Ukraine (dec.), 19 February 2013-Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987-Vito Sante Santoro v. Italy, ECHR 2004

Code: virtually all types of electionsP1-3: only the legislative elections (NB: in the “autonomous” meaning!)

Principles are the same!Principles are the same!

Interrelation

Code Court’s case-law

- as the hard core of the European election heritage

- as consideration for interpretation of P1-3

Wide – Wide – but but notnot all-embracing! all-embracing! - margin of appreciation- margin of appreciationfor Member Statesfor Member States

The Court is the last resort to determine complianceThe Court is the last resort to determine compliancewith P1-3with P1-3

Aims of restrictionsMust be compatible with:Must be compatible with:

-the principle of the rule of law;the principle of the rule of law;

-the general objectives of the Conventionthe general objectives of the Convention-& its Protocols& its Protocols

EXAMPLE:

-Campagnano v. Italy, ECHR 2006‑IV

What does the Court look at?

- Arbitrariness?- Proportionality?- Interference with the free expression of the

opinion of the people?- Extent of the limitation curtailing the rights

in question as to impair their very essence and depriving them of their effectiveness?

The “active”electoral right –

TO VOTE

The “passive”electoral right –TO STAND FOR

ELECTIONS

Restriction on the voting right based on criminal

conviction

EXAMPLES:

-Hirst v. the United Kingdom (no. 2) [GC], ECHR 2005‑IX-Frodl v. Austria, 8 April 2010-Scoppola v. Italy (no. 3) [GC], 22 May 2012

Acceptable in principle.BUT: No automatic and indiscriminate restriction on all detained convicts’ right to vote!Could be decided by courts or incorporated in law

Restriction on the voting right based on residence

EXAMPLES:

-Sitaropoulos and Giakoumopoulos v. Greece [GC], ECHR-2012-Shindler v. the United Kingdom, 7 May 2013

Acceptable even where envisaged by the domestic legislation, but impossible in practice.

Restriction on the right to stand for elections

Stricter requirements may be imposed than on the voting eligibility

Restrictions must be clear and foreseeable

Prevention of arbitrariness and abuse of powerEXAMPLES:

-Melnychenko v. Ukraine, ECHR-2004-The Russian Conservative Party of Entrepreneurs and Others v. Russia, 11 January 2007

= equal treatment of all citizens in their right to vote and to stand for election

≠ specific electoral system

- Freedom to form an opinion- Freedom to express an opinion

≠ ensuring a specific voting preference!EXAMPLE:

-The Russian Conservative Party of Entrepreneurs and Others v. Russia, 11 January 2007

Impartiality & independence of election administration

There should be sufficient checks and balances against outside pressure!

EXAMPLE:

-The Georgian Labour Party v. Georgia, ECHR-2008.

Effective system of appeal

Effective = respected and complied with!

EXAMPLE:

-Petkov and Others v. Bulgaria, 11 June 2009.