The role of the European Court of Human Rights in the protection of the right to free elections

About the seminar

The recognition of the right to free elections as a fundamental right was the result of a long process in the history of democratic countries. Its incorporation into the most important international human rights documents was also preceded by heated debates, mainly because of the contracting states’ attempts to protect their sovereignty. Today, no one questions that electoral rights are fundamental rights and as a result, they demand protection both at national and at international level. In addition to the electoral disputes brought before the traditional national forums (electoral management bodies, ordinary or special courts, constitutional courts), more and more cases are now being taken to international protection mechanisms (most often to the European Court of Human Rights in the context of Europe).

The right to free elections became part of the system of the European Convention on Human Rights relatively late. The first judgment was not delivered until 1987 and the ratio of judgments dealing with the right to free elections is very low also today. However, on the one hand, the number is increasing from year to year, and on the other, these decisions’ significance is fundamental to the democratic system of the Council of Europe’s member states. The European Court of Human Rights has played a crucial role in the way Article 3 of Protocol No. 1 is interpreted, which process led from the institutional obligation to protect individual rights. Today nobody is likely to question that the right to vote and the right to stand for election are fundamental rights that can be invoked by individuals.

The aim of this paper is to give an overview of the practice of the European Court of Human Rights and evaluate the level of protection it provides to the right to free and fair elections. It examines which factors explain the Court’s reserved approach towards election-related cases and proposes an argument to justify a more activist approach by the Court.

About the speaker:

Eszter Bodnár is a Kathleen Fitzpatrick Visiting Fellow with the ARC Laureate Project in Comparative Constitutional Law. Her research interest is in comparative constitutional law, international human rights, and European constitutional law. She has been an assistant professor at the Faculty of Law of University Eötvös Loránd (ELTE) in Budapest, Hungary since 2013. She is also a faculty member in the Master of Electoral Policy and Administration program of Scoula Sant’Anna, Pisa. In the last years, she has been teaching and researching in Germany, France, the United States, the Czech Republic, Portugal, Italy, and Canada. She graduated as a lawyer and worked at the Department of Constitutional Law in the Hungarian Ministry of Justice, and in the Hungarian National Election Office. She obtained her PhD degree in constitutional law at ELTE in 2013 with her thesis on the fundamental right attributes and restrictions of the right to vote that was published in Hungarian (HVG-Orac, 2014). Currently she is working on a comparative constitutional law project on open justice, seeking the answer on how the courts should answer the challenges of the 21st century in a constitutional way.

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