How can the ECtHR stay true to its commitment to democracy?

2020 is a special year for Europe: it marks the 70th anniversary of the establishment of the European Convention on Human Rights, which has played an essential role in stabilizing democracies in post-war and post-cold war Europe. Owing to the mandatory jurisdiction enjoyed by the European Court of Human Rights, it has had an enormous impact on the nature of democracy in the member states.

There is a consensus in academic circles that the Court is the single most effective regional judicial body today. The term ‘effective’ is used mostly to emphasize that the Court provides a far higher standard of human rights protection than was ever intended. It has an impressive and unique human rights record, but it is ‘effective’ in another sense, too. The Court promotes democracy by insisting that democracy is the only political model contemplated by the Convention and the only system compatible with it. The Convention has its own ‘democracy clause,’ namely, article 3 of protocol 1, which provides for the right to free elections. Why should it be described as a ‘democracy clause’ and what is its significance for today?

In the late 1940s and early 1950s, the mission of the Convention meant different things to different drafters. For some, it was designed to strengthen already existing domestic democratic institutions. For others, the main aim of the Convention was to ensure that member states stayed true to their democratic aspirations and to prevent backsliding by the new democracies. Ultimately, the Convention was signed on 4 November 1950 without a clause guaranteeing democracy, because the ministers were not able to reach agreement on its content. However, they decided to add a protocol incorporating, among other things, the right to free elections. On 20 March 1952, the protocol was finalized and signed by the ministers. Article 3 stipulates:

‘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 legislature.’

Although the text of article 3 protocol 1 became relatively modest, the provision had a systematic ambition. The drafting documents reveal that the founding member states were acting in their own best interests to protect their privileges as colonial empires, but at the same time, they were united in their commitment to preventing systemic shifts. The preparatory works suggest that there was a consensus among the drafters on the importance of democracy, which was forged by their shared anti-totalitarian commitment. The Second World War delivered a widely understood historical lesson; subsequently, politicians who aimed to prevent backsliding (‘never again’) created a European human rights regime whose members were committed to protecting democracy. At that time, all the founding member states were democracies with functioning parliaments. They institutionalized their democratic systems differently: they used different systems of government (e.g. unitary, federal) and constitutional forms (e.g. republican, constitutional monarchy), and they had different electoral systems (e.g. proportional representation, first-past-the-post). However, there was a consensus among them on the core feature of a democratic system: the national parliaments were at the heart of their democratic structures. Thus, they agreed that the new European order should be based on parliamentary democracies. Consequently, the core concept of article 3 protocol 1 is associated negatively with anti-totalitarianism and positively with parliamentary democracy.

Article 3 protocol 1 explicitly requires member states to have an institution called a legislature performing a deliberative task. Furthermore, it encompasses the procedures of parliamentarism: the secret ballot and individual voting rights. The clause prescribes that the legislative power should rest with a body constituted as a result of free elections and confirms the importance of the individuality and secrecy of voting. Hence, the provision establishes a very clear connection between law-making and basic democratic voting processes. It thus requires member states to be committed to parliamentary democracy when structuring and organizing basic democratic processes that affect legislative matters or institutions enjoying legislative power.

Over time, the Court developed a pluralist model of democracy and acknowledged that article 3 protocol 1 explicitly excludes the possibility that democracy can rely on instruments other than a legislature based on pluralist popular elections. Thus, the Court’s model of democracy rests on two pillars: pluralism and parliamentarism. It subscribes to pluralist democracy theories but contradicts the monolithic conception as developed by Carl Schmitt. The Court’s model has the potential to offer a robust account of democracy. Yet article 3 of protocol 1 has never lived up to its potential. The Court does not recognize presidential elections and referendums as democratic processes of domestic decision-making, even though, as the example of Turkey demonstrates, a systemic shift from a parliamentary democracy to a presidential regime can be institutionalized through a nationwide referendum. Likewise, a transfer of power may happen through a presidential election. Hence, the Court’s relevant jurisprudence is inadequate to address the contemporary antidemocratic shifts that are underway in certain member states.

Currently, the only reason for not involving the Convention mechanism in the cases of referendums and presidential elections is the literal understanding of article 3 protocol 1. However, if its underlying principle is parliamentary democracy, it is reasonable to accord protection to all domestic voting processes that clearly and substantially affect the situation of parliamentarism in a member state. As the historical account indicates, the drafters of the Convention assumed that parliamentary democracy might be endangered. Hence, applying article 3 protocol 1 to presidential elections and referendums would not seem out of step with the original mission of the Court, which was to protect the already existing domestic parliamentary systems and democratic governments from sliding into non-democracy. On the contrary, it would be a natural development of the case law if the Court provided an autonomous meaning of the concept of the ‘legislature’ and adopted a functional approach by understanding the ‘legislature’ as an organ possessing rulemaking power. This ‘organ’ may be a directly elected president assuming legislative powers or a referendum deciding on legislative matters or determining the type of legislature a country would have. The Court would then be able to conduct full-fledged judicial inquiries into an allegation of non-compliance with the Convention and discredit measures that betray the principle of parliamentary democracy.

The narrative of this blog post is drawn from Kriszta Kovács: “Parliamentary Democracy by Default: Applying the European Convention on Human Rights to Presidential Elections and Referendums”. In: Jus Cogens. A Critical Journal of Philosophy of Law and Politics (2020). It is available here.

The project has received funding from the European Union’s Horizon 2020 research and innovation program under the Marie Skłodowska-Curie grant agreement No 794368.

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Kriszta Kovács is a Research Fellow of the Research Professorship "Global Constitutionalism" at the WZB and a Senior Research Fellow at the Cluster of Excellence "Contestations of the Liberal Script (SCRIPTS)".
Website at the WZB

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