Freedom of expression, the right to vote, and proportionality at the European Court of Human Rights: An internal critique

Abstract

This article offers an internal critique of the European Court of Human Rights’ deferential approach to the content and limits of the right to vote (under the right to free and fair elections, article 3 of Protocol 1 to the European Convention on Human Rights). Rather than imposing an independent theory of democratic rights, the critique is internal as it relies on the Court’s own conception of democracy developed under article 10 ECHR (freedom of expression) and article 11 ECHR (freedom of reunion and assembly). It uses normative democratic theory to show that the Court’s conception under those rights reveals an utmost concern for political inclusion and that this conception is systematically used by the Court to balance alleged interferences with this article. It then argues that this concern has implications for the Court’s review of the right to vote. While the Court proclaims the complementarity between expression and vote at the level of principle, the Court refrains from engaging in the balancing exercise under P1-3. The article takes the notorious example of the right of convicted felons to vote. The article does not conclude, however, that the Court should systematically maintain its franchise on democratic grounds. It rather contends that the Court should apply proportionality with the same substantive democratic principles across democratic rights.

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