Negating pluralist democracy: the European Court of Human Rights forgets the rights of the electors. (Pozitsiya Yevropeiskovo Suda po Pravam Cheloveka v Voprose ob Izbiratelnikh Pravakh Grazhdan v Kontekste Latviiskoi Praktiki: Kriticheskii Vzglyad).

Abstract

This article reviews some recent judgments of the European Court of Human Rights (ECtHR) in relation to Article 3 of Protocol 1 to the European Convention on Human Rights (ECHR). It first explores the provenance of this rather oddly worded provision, starting with Article 21 of the Universal Declaration on Human Rights of 1948 (UDHR), and the rather fraught negotiations which took place in the first years of the Council of Europe. This is then set against some of the arguments as to the meaning and content of the concept of "democracy". Following an analysis of the case-law as it has developed over the years, the article looks in more detail at two recent cases of the ECtHR. In Ždanoka v. Latvia (Grand Chamber judgment of 16 March 2006), the Court, in a judgment described by the leading dissent (Judge Rozakis) as "dubious" and "obscure", has allowed the State a practically unlimited margin of appreciation. A similar trend can be observed in Yumak and Sadak v. Turkey (judgment of 30 January 2007). This article argues that, in these judgments, the ECtHR appears to be forgetting a fundamental principle underlying the right to pluralistic democracy, which is that the "passive" right to stand as a candidate in elections is not the right of the candidate, but of the electors. Unless there is a very good reason indeed, the electors should be able to elect the candidate of their choice. Otherwise, how can there be free elections