The Right to an Effective (and Judicial) Examination of Election Complaints
Published online by Cambridge University Press: 22 February 2022
Summary
ABSTRACT
In its case law the European Court of Human Rights (ECtHR, the Court) holds the effective examination of election complaints as one of the essential guarantees of free and fair elections. For just over a decade, the Court has adopted an institutional approach to election disputes by interpreting Article 3 of Protocol No. 1 to the European Convention of Human Rights (ECHR) to contain a positive obligation for states to maintain a domestic system for effective examination of individual complaints and appeals concerning electoral rights. This contribution endeavours to provide an overview of the procedural requirements for effective examination as developed in the case law and what it means for existing election dispute resolution systems in the Member States. In particular, this contribution argues that the seminal Grand Chamber decision in Mugemangango v Belgium from 2020 will require fundamental changes in all Member States where parliament is the judge of its own elections. On a more general level, the contribution argues that this decision may herald a shiftin the Court's traditionally state deferent approach to Article 3 of Protocol No. 1 in favour of a more substantive approach to democracy.
INTRODUCTION
Democracy lies at the heart of the European Convention of Human Rights (ECHR). Its preamble maintains that fundamental freedoms ‘are best maintained by an effective political democracy’. In its case law, the European Court of Human Rights (ECtHR) has also underscored that ‘[d]emocracy is without doubt a fundamental feature of the European public order.’ Articles 10 on freedom of expression and 11 on the right to assembly are key prerequisites for a well-functioning democracy, and clauses in other convention rights require interferences to be necessary in a democratic society. Whilst these concepts are well known from the ECtHR's case law, Article 3 of Protocol No. 1 of the ECHR also protects the fundamental element of democracy itself, which underpins the other Convention rights. This is the right to ‘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’.
- Type
- Chapter
- Information
- European Yearbook on Human Rights 2021 , pp. 541 - 568Publisher: IntersentiaPrint publication year: 2021