Introduction
It is a standard feature of our current political commentary that constitutional democracy faces serious challenges. Faith in democracy is in decline across the West; movements labelled populist or even authoritarian populist are winning elections and threatening to undermine the fundamental values of constitutional democracy when in power.Footnote 1 Terms such as ‘illiberal democracy’,Footnote 2 ‘populism’Footnote 3 and ‘autocratic legalism’Footnote 4 describe concerns about the rise of parties that, using apparently legal and democratic means, undermine human rights and democracy. In Europe, governing parties in Hungary (2010–2026), Poland (2015–2023) and Türkiye (since 2014), exemplify this challenge; those regimes have undermined judicial independence, interfered with the media and generally sought to enhance executive power.Footnote 5 And they have engaged in strategic manipulation of elections.
Strategic electoral manipulation is ‘incremental, yet deliberate’.Footnote 6 Anti-democratic parties no longer steal elections on election day.Footnote 7 Rather, they manipulate electoral rules and practices to subtly and cumulatively operate in their favour. This manipulation can include disenfranchising groups of voters, discouraging certain groups from voting, diluting the voting power of groups likely to oppose the governing party or skewing equality of opportunity in the regulation of campaigns, public or private media or political party financing. These practices undermine an ideal central to democracy, the ideal of political equality.
Political equalityFootnote 8 requires that we treat everyone as an equal in our political institutions. It is fundamental for both human rights and democracy.Footnote 9 Human rights, such as those contained in the European Convention on Human Rights (the Convention, the ECHR), protect everyone’s status as an equal in society.Footnote 10 At the same time, democracy secures political equality because democracy treats (or should treat) everyone as an equal in the political process. According to Christiano, ‘[d]emocratic decision-making is the unique way to publicly embody equality in collective decision-making under the circumstances of pervasive conscientious disagreement in which we find ourselves’.Footnote 11 In his analysis, persons have interests in correcting the cognitive biases of others, having a sense of being ‘at-home’ in the world and being treated as someone of equal moral standing.Footnote 12 To publicly express equality, democracy requires ‘equality in voting power, equality of opportunity to run for office, and ideally equality of opportunities to participate in the process of negotiation and discussion that lead up to voting’,Footnote 13 including steps to eliminate ‘effects of differences of wealth and social power on the democratic process’.Footnote 14 Such requirements embody the ideal that everyone should be treated as an equal in the political process.
In this article, I focus on how the ECHR and the European Court of Human Rights (the Court) protect political equality. The ECHR is a regional human rights instrument protecting mainly civil and political rights. Following World War 2 and facing an undemocratic Communist system to the East, the ECHR’s drafters conceived that the Court would signal a warning if a European democracy seemed likely to fail.Footnote 15 The Court’s jurisdiction covers 46 Council of Europe states, including Hungary, Poland, Türkiye and, until its expulsion from the Council of Europe in 2022, Russia. The Court has had opportunities to consider the challenges of populism and democratic backsliding.Footnote 16 The Court is not the only Council of Europe institution concerned with these challenges. The Council of Europe’s advisory body on constitutional matters, the Venice Commission, also plays a role.
In that context, I examine how the Court has and should protect political equality. This examination entails two research questions: how has the Court protected political equality? And how might the Court’s case law on political equality be made more robust?
Section ‘Democracy in the European Convention on Human Rights’ introduces the ECHR’s approach to democracy. Section ‘Political equality in the case law of the Court’ answers the first research question and explores the Court’s democracy case law. It discusses three areas relevant to political equality identified in the Venice Commission’s Code of Good Practice in Electoral Matters: equal voting rights (considering both formal inclusion and effective inclusion), equal voting power and equality of opportunity in the political sphere. This section concludes by considering the difficulties facing the Court when it addresses political equality and challenges posed by populism and democratic backsliding. Section ‘Improving political equality under the ECHR: The role of the Venice Commission’ turns to the second research question and suggests how the Court could, by drawing on standards in the Venice Commission’s Code of Good Practice in Electoral Matters, strengthen its case law on political equality. First, though, let us consider what the ECHR says about democracy.
Democracy in the European Convention on Human Rights
The ECHR often refers to democracy or democratic society. The Preamble specifies an ‘effective political democracy’ as one of the means of maintaining fundamental freedoms.Footnote 17 Five ECHR articles refer to a ‘democratic society’ when addressing the possibility of limiting rights. The rights which can be so limited when necessary in a democratic society are the right to a judgment pronounced in open court (article 6), the right to respect for private and family life (article 8), the right to freedom of thought, conscience and religion (article 9), the right of free expression (article 10) and the right to free assembly and association (article 11).
The ECHR’s text envisages that a democracy in the ECHR system must be a representative one based on elections. The right to free elections in article 3 of the First Protocol reads:
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.
This provision does not explicitly set out electoral rights. However, the Court’s first judgment on this provision, Mathieu-Mohin, involving consociational political arrangements in Belgium, held that the article protected both the right to vote and the right to stand for election.Footnote 18
As well as protecting electoral rights, the Court highlights the liberal nature of the ECHR’s democratic society. The Court has stressed that the right to free expression (article 10 ECHR) and the right to free association and assembly (article 11 ECHR) are important for a democracy and has held that the ECHR envisages a democratic society animated by the values of pluralism, tolerance and broad-mindedness.Footnote 19 The democracy envisaged by the Convention is thus representative and liberal.Footnote 20 What does the ECHR say about political equality?
While article 3 of the First Protocol does not explicitly refer to political equality, its reference to the ‘conditions’ for ensuring the free expression of the people offers scope for elaborating the text’s implications.Footnote 21 Furthermore, as with all ECHR rights, we need to read the rights to free elections, free expression, free assembly and association, alongside the prohibition of discrimination in article 14 ECHR. The Court’s case law tells us more.
The Court has recognised that equality is important to realise a democracy based on the will of the people, while offering leeway to states in how they realise this equality. According to the Court in Mathieu-Mohin,
the phrase ‘conditions which will ensure the free expression of the opinion of the people in the choice of the legislature’ implies essentially, apart from freedom of expression … the principle of equality of treatment of all citizens in the exercise of their right to vote and their right to stand for election.Footnote 22
At the same time, the Court stresses that this does not mean that ‘all votes must necessarily have equal weight as regards the outcome of the election or that all candidates must have equal chances of victory. Thus, no electoral system can eliminate “wasted votes”’.Footnote 23 The Court has accepted that the protection of ‘equality between political competitors during an election period’ may be a legitimate aim justifying limiting free expression and that it corresponds to a pressing social need in a democratic society.Footnote 24 The Court has also held that ‘tolerance and respect for the equal dignity of all human beings constitute the foundations of a democratic, pluralistic society’.Footnote 25 As such, the Court has recognised that some idea of political equality is a presupposition of a democratic society. What does this mean in practice?
Political equality in the case law of the Court
The Court has fleshed out the ideal of political equality in its case law on the rights to vote and stand for election (article 3 of the First Protocol) and the right to free expression (article 10). I will examine three areas where political equality has featured in the Court’s case law: equal voting rights, equal voting power and equality of opportunity in the political sphere. I will conclude this section by reviewing the difficulties facing the Court when deciding cases on political equality in the context of populism and democratic backsliding.
Equal voting rights
The Court has promoted political equality by ensuring that members of disadvantaged groups enjoy equal voting rights and are formally included in the political system. For instance, the Court has held that exclusion from the right to vote on ethnic grounds in Cyprus lacked objective and reasonable justificationFootnote 26 and that general exclusions of persons with mental disabilities subject to partial guardianship in Hungary are suspect and trigger a narrow margin of appreciation.Footnote 27 Apart from non-nationals (to which I return in Section ‘Improving political equality under the ECHR: The role of the Venice Commission’), the Court’s case law on equal voting rights generally supports formal inclusion in electoral rights.
However, formal inclusion in electoral rights does not necessarily amount to effective inclusion. An electoral system might not have any formal exclusions that directly discriminate against persons but may have formally neutral rules, policies or practices that in reality weigh more heavily on members of some groups than others. To address such problems in other areas of law, the Court has developed doctrines on indirect discrimination and positive obligations.
Indirect discrimination concerns neutral rules or practices that do not explicitly exclude anyone, but whose effects disadvantage members of particular groups defined by a personal characteristic (e.g., race, ethnicity, sex).Footnote 28 For example, residence requirements can disadvantage members of nomadic communities; the design of ballot papers may make it difficult for people with disabilities or literacy problems to participate; voter ID requirements can also indirectly disadvantage members of some groups.Footnote 29 Forms of indirect exclusion from the franchise are a key feature of the ‘stealth authoritarianism’Footnote 30 of authoritarian populists, so the Court should be especially attentive where the governing party creates allegedly reasonable distinctions that tend to support the governing party.Footnote 31
The Court’s case law, though, suggests it may not always be alive to these forms of indirect exclusion. Consider Vámos v Hungary Footnote 32 involving a Hungarian electoral law distinguishing between Hungarians working or studying abroad but permanently resident in Hungary and those Hungarians living abroad with no permanent address in Hungary. Hungarians temporarily abroad could vote either by returning to Hungary or by voting in an embassy; they were allowed to vote both for a party list and an individual candidate in Hungary’s mixed electoral system. Hungarians living abroad without a permanent address in Hungary could vote only for a party list but were allowed to vote using a postal ballot, which was arguably easier than returning to Hungary or voting in an embassy. In Vámos, the applicants who were temporarily abroad objected to this distinction because they were not allowed to use a postal ballot.
The Court held the application inadmissible for being manifestly ill-founded. While there was a distinction, the Court could not say it was without objective and reasonable justification, considering the differences between the two types of voters, the margin of appreciation available to the state and the Court’s reluctance to assess the ‘efficiency of the organisation of a voting system’.Footnote 33
The case demonstrates several difficulties facing courts, and especially international courts, when dealing with governing parties seeking to skew the electoral system. First, courts depend on the parties before them to explain the implications. The concern for democratic observers about the Hungarian law was that Hungarians who had never lived in Hungary seemed to favour the governing Fidesz party, while those Hungarians temporarily abroad were more likely to oppose the governing regime, and it was this latter group that could not access the easier postal voting option.Footnote 34 This concern seems never to have been made explicit in the materials before the Court. Second, the arguments against finding a violation appear perfectly reasonable in the Court’s formal equality analysis. The two groups of voters are differently situated; voters temporarily abroad benefit in some ways (e.g., they could vote both for a candidate and a party) even if the absence of a postal vote disadvantages them. Third, any argument against the distinction may have to rest on identifying the government’s intent, but this creates problems for international courts; in particular, international courts will hesitate to accuse a government of bad faith. Fourth, considered in isolation, the distinction looks unlikely to have significant effects; it is only when seen as one element in a wider structure, where multiple elements combine to skew the result, that the overall democratic implications appear serious.
The Court has tools for dealing with such problems. In cases involving indirect discrimination, if an applicant demonstrates that apparently neutral rules, practices or policies have a disproportionate impact on disadvantaged groups or systematically disadvantage opposition parties, the Court should insist on a proportionality analysis. The state should be expected to prove that any such rules, practices or policies have a legitimate aim, that they correspond to a pressing social need and that there are no less intrusive means reasonably available to achieve that legitimate aim.Footnote 35
Sometimes, the Court approaches issues about indirect discrimination by requiring the state to address the problem by taking action, such as fulfilling positive obligations or providing reasonable accommodation. In areas like non-discrimination in education and the prohibition of practices akin to slavery and forced labour (e.g., trafficking, domestic servitude), the Court has developed wide-ranging positive obligations, including to provide training for public servants and to require outreach to assist members of vulnerable groups to exercise their rights.Footnote 36 The concept of positive obligations would enable the Court to require positive state action to assist people who risk exclusion from the electoral process, such as people with nomadic lifestyles or people with mental or physical disabilities, or others.
The Court’s electoral rights case law has endorsed such a positive obligations approach in principle. In Toplak and Mrak v Slovenia the applicants had muscular dystrophy and relied on electric wheelchairs for mobility.Footnote 37 They argued that they had not been able to vote on an equal basis with other voters in a 2015 referendum and the 2019 European Parliament elections. They complained that they lacked access to voting booths and that they needed assistive technologies. Toplak submitted that he had had to vote in the 2015 referendum at a table in the middle of a room and voting secrecy was not guaranteed. Mrak had also voted but complained of difficulties in accessing the polling station. Both applicants submitted that the voting facilities in the 2019 election were not accessible; Toplak explained that his condition made it impossible to use a pen and he did not want the assistance of others in voting, so he needed assistive technology to vote.
The Court treated this as a case where it was alleged that the state had failed, without objective and reasonable justification, to treat differently people whose situations were different; that is, the case concerned the absence of positive measures.Footnote 38 The Court indicated it could draw inspiration from the principles in other treaties ratified by Council of Europe states and in particular article 29 of the Convention on the Rights of Persons with Disabilities (CRPD).Footnote 39 Accordingly, article 14 ECHR and Protocol 12 require reasonable accommodation to address factual inequalities. States have a margin of appreciation in providing that reasonable accommodation, bearing in mind factors including limited state resources.Footnote 40 For the state to make all facilities fully accessible might take some time, so what matters now is the assistance provided by the state. The state had assisted the applicants to vote in the 2015 referendum – for example, a ramp was provided and a site visit in advance arranged for one of the applicants. Both applicants had voted, and they did not explain how they had suffered any ‘particularly prejudicial impact’ or how the state had treated them with indifference.Footnote 41 Accordingly, the Court found no violation as regards the 2015 referendum.
Regarding the 2019 European Parliament elections, Toplak argued that he needed assistive technology to vote without relying on someone else. The Court noted that such assistive technology raised challenges including the cost and fears about secrecy; it found that international law standards created no obligation to provide assistive technology and that there was no European consensus as regards assistive technology.Footnote 42 The domestic court had carefully examined the use of technology, noting that technology could not help everyone with a disability and was costly.Footnote 43 The Court accepted that these were persuasive reasons to accept that the ECHR did not require the state to provide assistive technologies.
Despite finding no violation in this case, the Court established the principle that positive obligations required reasonable accommodation to facilitate voting by persons with disabilities. The case provides a basis to argue for positive obligations to adopt reasonable accommodation for members of other minorities and disadvantaged groups, such as nomadic racial or ethnic minorities and people with literacy problems.
The Court has developed case law to ensure the formal and, to an extent, the effective inclusion of people as regards voting rights. This is an important achievement, but political equality can still be limited in other ways, for instance, if the weight or power of the votes are seriously unequal.
Equal voting power
Upsetting the equality of voting power is one strategy that populist parties (and others) can use to skew electoral outcomes. As Scheppele has explained, the (former) Hungarian government had drawn constituency boundaries with considerable disparities in size (some with 60,000 voters and others with 90,000 voters) to the disadvantage of opposition parties.Footnote 44 The Venice Commission, among others, has criticised the Hungarian government for the process used to redraw electoral boundaries,Footnote 45 while the Organisation for Security and Cooperation in Europe (OSCE) has drawn attention to Poland’s failure to revise constituencies in light of demographic changesFootnote 46 and to inequalities in Turkish constituencies as well.Footnote 47
The Court has only rarely considered cases involving constituency boundary drawing. In Bompard v France, the applicant complained that the constituencies used for the 2002 parliamentary elections in France had not been revised since 1986 even though there had been two censuses in the intervening period, and so argued there was a denial of equality in the voting process.Footnote 48
The Court declared the application inadmissible as manifestly ill-founded. The Court noted that the applicant did not demonstrate that there was any demographic discrepancy in respect of her constituency that would affect the opinion of the people or alter the result of any election. Further, the French government explained that there had been no review following the most recent census because there was insufficient time for a comprehensive review between the census and the next election. The Court accepted that this was a legitimate reason not to have held a review before the 2002 elections, bearing in mind the wide margin of appreciation available to states.
While the Court declared this case inadmissible, its reasoning does not preclude further complaints in other countries where there is clear evidence of demographic disparities. The Court therefore offers the opportunity to protect equal voting power. Ensuring equal voting power is important but insufficient to ensure the free expression of the opinion of the people if voters have already been swayed by distorted or unequal electoral campaigns or media coverage.
Equality of opportunity in the political sphere
Equality of opportunity in the wider political sphere is essential for democratic political equality. According to the Venice Commission, this covers matters relating to electoral campaigning, the role of public and private media and the public financing of parties. While the Court has case law on many of these areas,Footnote 49 this subsection will focus on media regulation and paid political advertising.
Media regulation
Populist parties (and others) may intervene in the media to skew the political playing field. Scheppele gives the example that public and private broadcasting in Hungary has been under the influence of the Fidesz party and Orbán, so that opposition politicians could not reach voters.Footnote 50 The Venice Commission issued a critical opinion on Hungary’s Media Law in 2015.Footnote 51 The Parliamentary Assembly of the Council of Europe and the OSCE have pointed to unequal media coverage favouring the incumbent AK Party and Erdoğan in both the 2018 and 2023 elections in Türkiye.Footnote 52 The OSCE has noted that the public broadcaster in Poland favoured the incumbent political party in the 2023 parliamentary elections.Footnote 53 These criticisms could give rise to legal challenges based on the right to free elections (article 3 of the First Protocol) and free expression (article 10).
Applying ECHR principles to media regulation in the context of democratic backsliding can be difficult, as a case from Russia illustrates. In Communist Party of Russia and others v Russia (decided before Russia’s expulsion from the Council of Europe), the Court heard a complaint from two political parties and several individual voters and candidates that Russian broadcasters did not give fair coverage to opposition politicians during the 2003 Duma elections.Footnote 54 The applicants complained about general media coverage and not specific allocation of free airtime or paid political advertising. According to the applicants’ analysis of the general media coverage, the governing United Russia Party received more media coverage and received much more positive media coverage than the opposition parties.Footnote 55 In addition, the media covered comments by then-President Putin, which hinted at his support for the United Russia Party.Footnote 56 Evidence from the OSCE and the nongovernmental organisation Transparency International supported this allegation of media bias on the part of state broadcasters.Footnote 57 The applicants had brought complaints before the domestic Supreme Court sitting as a first instance court and again as an appeal court but the Supreme Court rejected the complaints.
In Strasbourg, the Court found no violation of the right to free elections.Footnote 58 The Court indicated that it was ‘mindful’ of the Venice Commission Code of Conduct’s principle of equality of opportunity but that article 3 of the First Protocol was not intended to be an electoral code.Footnote 59 Furthermore, a wide margin of appreciation was especially required when the case concerned the ‘passive’ right to stand for election rather than the ‘active’ right to vote.Footnote 60 While that margin of appreciation was wide, the Court would be concerned to ensure that no group was excluded from the political process and that any restrictions did not ‘thwart the free expression of the opinion of the people’.Footnote 61 The Court considered two main questions: whether the Government had manipulated the media and whether Russia had failed in its positive obligations under article 3 of the First Protocol.
On the question of alleged manipulation, the Court concluded it could not fault the domestic court’s decision. The Court started its analysis by noting that the case did not concern a formal legal distinction or limitation, but rather a complaint that the law was not properly implemented.Footnote 62 The applicants’ complaints had been examined by the domestic Supreme Court; in that scenario, the Court decided to examine whether the domestic court’s findings were arbitrary or manifestly unreasonable.Footnote 63 The domestic court had not said there was no inequality of coverage but found in more careful language that it could not be shown to be so egregious as to make it impossible to ascertain the people’s will. The Court accepted that there was no clear correlation between media coverage and electoral success, so there was uncertainty about the extent to which unequal coverage affected the expression of the opinion of the people.Footnote 64 The Court could not deem the domestic court’s findings to be irrational and, in particular, noted the absence of evidence that the governing party had set out to manipulate news coverage.Footnote 65
The Court then concluded that Russia had met its positive obligations, both procedural and substantive. In terms of procedure, the applicants had had access to potential remedies;Footnote 66 the Court noted that the Supreme Court’s independence was not called into question and that there was no convincing evidence that the Supreme Court lacked impartiality.Footnote 67 The substantive positive obligations mean that the state must provide for pluralism.Footnote 68 The Court noted that respect for pluralism meant there could be restrictions on free expression but that political expression should be respected, prior restraint on expression was undesirable and the state did have a margin of appreciation. Russia had legislation on media neutrality, and the applicants had had access to appreciable coverage. The Court accepted that ‘probably … the arrangements did not secure de facto equality of all competing political forces in terms of their presence on TV screens’, but held that this was insufficient reason, in the overall circumstances, to find a violation of the right to free elections.Footnote 69
The case demonstrates again the difficulties facing the Court in dealing with democratic backsliding. The Court comments on the difference between cases where there is a clear legal rule or established practice and cases such as this one where the allegation concerns how those rules have been applied. This is a problem because governing parties could capture key institutions by appointing supporters or otherwise encouraging a supportive attitude rather than formally changing the law. This problem is aggravated where the Court limits itself to reviewing the domestic court’s decision for arbitrariness or manifest unreasonableness, as populists could capture the domestic courts. The case also demonstrates the possible tension between free expression and political equality; the Court was concerned that any positive obligations on political equality might interfere with media freedom.Footnote 70
Paid political advertising
Another issue where freedom of expression is in tension with political equality is paid political advertising. This is an area where economic inequality threatens political equality. Unrestricted paid political advertising allows wealthy individuals, corporations, political parties and other associations to dominate political and public debate, whether at election time or outside election time. Well-resourced individuals and associations can saturate different media – audiovisual, print, billboards, social media, etc. – with their views and overwhelm views from those with fewer financial resources. This damages political equality in multiple ways. It benefits well-financed politicians, parties or associations and disadvantages those with fewer resources. It also means that the voter is exposed to views based on the resources available to the speakers and not any intrinsic merit of the argument. Unrestricted paid political advertising has other deleterious effects, including raising the costs of politics (and so making parties and politicians ever more dependent on fund-raising), undermining democratic deliberation and lowering the quality of debate if advertising takes the form of negative campaigning. Concerns such as these have led some European states to regulate or ban paid political advertising, especially on broadcasting media (TV and radio).
The Court has produced contradictory case law on paid political advertising. In two chamber judgments, the Court has found that bans on political advertising breached the right to free expression in article 10 ECHR. In Verein Gegen Tierfabriken v Switzerland (VgT), the applicant association VgT was an animal protection group which wanted to pay for an advert on animal cruelty in the meat industry to counter advertising by the meat industry.Footnote 71 The company responsible for television advertising refused to accept the advert as it violated a Swiss prohibition on political advertising. The association challenged this prohibition. The Swiss government defended the ban before the Court as necessary to protect the ‘formation of public opinion’ ‘from the pressures of powerful financial groups’.Footnote 72
The Court concluded that the ban breached the right to free expression. The Court accepted that protecting media pluralism from the risks posed by ‘powerful financial groups’ was important.Footnote 73 It noted, however, that VgT was intervening on a matter of public debate and so the state’s margin of appreciation was narrow.Footnote 74 Further, the Court found that a ban on only some media (TV and radio) and not others (the printed press) did not appear to correspond to a pressing need.Footnote 75 Crucially, while the Court accepted that a ban on political advertising might sometimes be justified, it found that VgT was not the sort of powerful financial group that the ban was intended to deal with. Accordingly, the Court found that the ban was not necessary in a democratic society and so breached article 10 ECHR.
The Court reached a similar conclusion in a case from Norway. The applicants in TV Vest AS & Rogaland Pensjonistparti v Norway (TV Vest) were a television broadcaster and a political party, the Rogaland Pensioners Party.Footnote 76 The party was small and had obtained only 1.3% of the votes nationally. It sought to raise its profile with a television advertisement. The TV company was fined for airing the advert and so breaching the ban on political advertising. Both the party and TV company complained that the ban violated their right to free expression. The Norwegian government defended the ban on the grounds that it protected fairness and equality in political debate, protected the quality of political debate, protected the impartiality of broadcasters and limited the total amount of money spent on political campaigning.Footnote 77
The Court again found a breach of article 10. It reiterated that the ECHR allowed limited scope to restrict free expression on matters of public or political debate, while acknowledging that protecting the integrity of the political process could sometimes justify restrictions.Footnote 78 It noted that the ban applied not just at election times.Footnote 79 The Court rejected the government’s justifications for the ban, noting that the applicant political party was not the sort of powerful group that the ban was intended to deal with, and that the advertisement did not contain material that was likely to lower the level of political debate or stir up division.Footnote 80
Between these two cases, the Court decided a similar case which concerned paid religious advertisement. Murphy v Ireland concerned Ireland’s general ban on religious (and political) advertisements on TV and radio.Footnote 81 The Court accepted that this general ban on religious advertising was compatible with the ECHR. It held that the regulation of expression on matters of morals or religion called for a wider margin of appreciation than political expression.Footnote 82 The Court accepted the Irish government’s argument that religious issues were sensitive in Ireland and that allowing such advertisements could lead to unrest.Footnote 83
If these three chamber judgments represented a consistent view that states could not ban all paid political advertising, but could ban paid religious advertisements, the Grand Chamber judgment in Animal Defenders International v United Kingdom upends that.
In Animal Defenders International, the Grand Chamber highlighted the importance of protecting equality of opportunity in the political sphere, even if this meant limiting freedom of expression. The Grand Chamber accepted, by a narrow margin, that the UK’s ban on paid political advertising could be justified where the measure aimed to prevent paid advertising from deforming political debate and so undermining political equality.Footnote 84 The Court highlighted the ‘exceptional examination by parliamentary bodies of the cultural, political and legal aspects of the prohibition’, as well as the thorough domestic judicial scrutiny, all of which concluded the prohibition was ‘necessary to prevent the distortion of crucial public debates’.Footnote 85 The Court concluded the measure was ‘specifically circumscribed to address the precise risk of distortion’.Footnote 86 The Court emphasised that there was no European consensus on how to address such problems and this factor widened the margin of appreciation.Footnote 87
Animal Defenders International is difficult to reconcile with VgT and TV Vest, even though it does not disavow them.Footnote 88 The Grand Chamber ruling is a majority one decided by the narrowest margin, 9 judges to 8 on a 17-judge panel. Some may read the majority judgment as the Court not wanting to pick a fight with the UK on its long-established policy of banning paid political advertising on broadcast media, bearing in mind there was already controversy over the UK’s resistance to implementing the Hirst judgment on prisoner voting. Certainly, the dissenters pointed to inconsistencies in how the UK law was assessed and how the law in Switzerland was assessed.Footnote 89 Other problems are evident, such as the case law leaves unaddressed the rapid emergence of social media and the role played by well-financed interests in social media advertising. Despite the difficulties, it is welcome that the Court in Animal Defenders International upholds political equality and accepts that democratic states may prevent powerful financial actors from distorting public debate.
Difficulties facing the Court
In sum, while the Court has given some attention to political equality in its democracy case law, it faces significant difficulties.
The Court gives the states considerable leeway in its democracy case law, that is, it accords a wide margin of appreciation. A wide margin of appreciation is inevitable in cases involving the state’s positive obligations to regulate elections under article 3 of the First Protocol. Democratic systems must respond to competing imperatives and to different political contexts. Even what is required by political equality is often uncertain – the Venice Commission Code of Good Practice, for instance, recognises that equality can be either strict or proportional according to differing criteria. Deciding how much leeway the Court should give the state is a troublesome question because the government may both protect and threaten democratic pluralism, political equality and free expression.
Furthermore, the Court faces difficulties when political inequality takes the form of practices rather than formal legal distinctions. The Court finds it easier to adjudicate cases involving clear, explicit distinctions and is more reluctant to intervene when problems concern what has happened in practice (e.g., Russian Communist Party).Footnote 90 This is a problem for the challenge of populism and democratic backsliding more generally, as it suggests that governing parties looking to skew the electoral systems should appoint or cultivate supporters in key institutions (media, electoral commissions, courts) and allow them to exercise discretion rather than adopt explicit but reviewable rules.
In addition, the Court often examines just one aspect of a wider electoral system, and when that one aspect is viewed in isolation, the Court overlooks how that specific element contributes to overall democratic backsliding. This was a problem in Vámos Footnote 91 and the Russian Communist Party case; specific voting rules for nationals living abroad or unequal media coverage of political parties might not, in isolation, thwart the expression of the opinion of the people, but the Court may not recognise wider mechanisms that contribute to such a result.
Finally, and especially crucial when considering populist parties or others who use legal autocratic methods,Footnote 92 the Court resists assessing the motives or good faith of domestic authorities.
Having identified some difficulties facing the Court in its case law in this area, the next section considers what support the Court can draw from other Council of Europe institutions, especially the work of the Venice Commission.
Improving political equality under the ECHR: The role of the Venice Commission
The Court is not the only Council of Europe institution which has pronounced on the requirements of a democratic society. Other Council of Europe institutions have done so. As they need not take a case-by-case approach, they can offer more holistic guidance. The Committee of Ministers has, for instance, published recommendations on balanced participation of men and women in political and public decision-making,Footnote 93 corruption and the funding of political parties,Footnote 94 electoral communication and media coverage of elections.Footnote 95 The Parliamentary Assembly has published resolutions and recommendations on democracy,Footnote 96 political parties,Footnote 97 gender equality in politics,Footnote 98 elections,Footnote 99 young people and democracy,Footnote 100 persons with disabilities,Footnote 101 participation and deliberation,Footnote 102 portrayal of migrants at election times,Footnote 103 and political finance.Footnote 104
One especially useful Council of Europe institution in this regard is the Council’s advisory body on constitutional matters, the Venice Commission.Footnote 105 It has 61 independent members, representing the 46 Council of Europe states and 15 other states. It produces reports and studies, including codes of conduct and checklists, on democratic standards and practices. It also offers, at the request of a member state, Council of Europe institution or other international organisation participating in the work of the Commission,Footnote 106 opinions on specific legal developments in member states.
The Venice Commission’s work is not without criticism. A 2015 review highlighted concerns about the procedural flexibility of working methods, the inconsistent use of standards and the need to consider balance among the different regions included in the Commission’s membership.Footnote 107 The Venice Commission’s differential approach to ‘new’ and ‘established’ democracies is problematic, especially when older democracies may also experience democratic backsliding.Footnote 108
Not forgetting these criticisms, the Commission’s role in standard-setting is relevant to the Court’s work. In its Code of Good Practice in Electoral Matters, the Venice Commission identifies five pillars of the European electoral heritage: universal, equal, free, secret and direct suffrage.Footnote 109 Equal suffrage has the following five elements.
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a) First, equal suffrage entails equal voting rights, so everyone should have the same number of votes.Footnote 110 This should be read alongside the requirement of universal suffrage: all human beings should be entitled to vote, subject to certain restrictions based on age, nationality, residence and the possibility of lawful and proportionate deprivation of the right.Footnote 111
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b) Second, equal suffrage requires equal voting power, that is, seats must be evenly distributed between constituencies.Footnote 112 The distribution should be based on one or more of the following criteria: population, number of resident nationals, number of registered voters and number of people actually voting. Although some variation is permitted, this must be limited. The distribution of seats should be reviewed at least once every 10 years, preferably outside of election time. Any redistricting should be done impartially, without detriment to national minorities and taking account of the opinion of a committee, most of whose members should be independent.
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c) Third, there must be equality of opportunity in the election campaign, media coverage (especially public media) and public funding of political parties.Footnote 113 This requires the state to be impartial as between parties and candidates, and requires neutrality as regards the electoral campaign, media coverage (especially publicly owned media) and public funding of parties and campaigns.Footnote 114 Equality can be strict (i.e., each party is treated the same) or proportional (i.e., proportionate to results in elections). There must be a minimum level of access to private audiovisual media for all participants. Political funding must be transparent. Equality of opportunity can require limitations on political party spending, including advertising.
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d) Fourth, there are protections for national minorities. Political parties representing national minorities must be permitted. Special rules to ensure the representation of national minorities are permitted, such as reserved seats or exemptions from general rules on quorum requirements. No one should be obliged to reveal their membership of a national minority.
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e) Fifth, parity rules in respect of the sexes are permitted if they have a constitutional basis.Footnote 115
The Court has referred to the Venice Commission, other Council of Europe bodies and other regional and international bodies in its case law, and it has relied on the Venice Commission in elaborating the ECHR’s free election requirements. For example, in a case from Moldova, the Court refers to the Venice Commission’s observations on the need for stability in electoral law and on the discriminatory effect of a law prohibiting dual nationals from being candidates in an election.Footnote 116 However, the Court’s approach is inconsistent: Turkut has criticised the Court’s failure to make effective use of the Venice Commission’s work in cases from Hungary and Türkiye.Footnote 117 As noted above, the Court rather briefly dismissed the Venice Commission’s Code of Good Practice in the Communist Party of Russia case. This inconsistent record recognises that the Court and the Venice Commission do not have identical remits. There will be times that ECHR text and the Court’s case law do not coincide with the Venice Commission’s views.
Nevertheless, the Venice Commission’s work in elaborating standards and assessing whether states have respected democratic norms could assist the Court. Both the ECHR text and the Court’s case law support the legitimacy of this practice. Article 3 of the First Protocol refers to the ‘conditions which will ensure the free expression of the opinion of the people’, but does not specify what those conditions are. The Venice Commission, with its 61 expert members from across the Council of Europe and beyond, is well placed to explain what these conditions are. The Court’s case law reinforces such an approach. When interpreting the ECHR text, the Court has regularly said that it interprets rights to be effective in contemporary conditions.Footnote 118 The Venice Commission’s work, based on comparative insights, provides guidance on what is required to make electoral and political rights effective. Further, the Court often refers to the state of any European consensus when determining how rights should be interpreted and protected.Footnote 119 The Venice Commission examines national experience to ‘construct common European standards’Footnote 120 and so offers insights into views among European states.
On the theme of political equality, the Court might usefully draw on the Venice Commission’s work. Consider, for instance, the three issues discussed in Section ‘Political equality in the case law of the Court’, which reflect the first three elements of equal suffrage identified in the Code of Good Practice: equal voting rights, equal voting power and equality of opportunity.
To take one question of equal voting rights, non-nationals are one group frequently excluded from the franchise. Notwithstanding its attention to problematic cases of disenfranchisement, the Court has tended to assume that non-nationals can be excluded from the franchise; the Court in Mathieu-Mohin suggested that only citizens enjoy electoral rights, though article 3 of the First Protocol does not explicitly so provide.
If political parties seek to undermine the interests of non-nationals while non-nationals are denied political participation rights, this raises concerns about both human rights and democracy. If non-nationals are treated differently from citizens, this is potentially discriminatory, a breach of human rights. If non-nationals cannot participate in the political process, then they are affected by decisions they cannot influence, and this is a problem for democracy. To put it in terms the Court might use, long-term resident non-nationals are in a relevantly analogous position to resident nationals: by their long-term residence, they have gained familiarity with the state and they are affected by the decisions of the national legislature.Footnote 121 Ensuring that everyone affected by a decision can participate in making the decision is a fundamental feature of democracy and political equality.Footnote 122
While there is no widespread view that non-nationals should be allowed to vote in national elections, this may be changing as regards local elections. The Venice Commission Code of Good Practice takes for granted that non-nationals can be excluded from national elections while noting the advisability of admitting non-nationals, after a period of residence, to voting in local elections.Footnote 123 This is in line with the Council of Europe Convention on the Participation of Foreigners in Public Life at Local Level. Admittedly, only nine states have so far ratified this Convention, but it is also significant that European Union states must permit all EU citizens to vote in local elections.Footnote 124 The Parliamentary Assembly has also suggested that states should consider giving the franchise in local and regional elections to lawfully resident immigrants.Footnote 125 While the ECHR does not provide for the right to vote in local elections, Protocol 12 provides for non-discrimination in the enjoyment of rights set forth by law. So, a state subject to Protocol 12 could be challenged if its local election franchise excludes all long-term non-national residents.
If the Court ever accepts such an argument, whether in relation to local elections or other elections, there will likely be a wide margin of appreciation. This is analogous to the prisoner voting saga. What the Court criticises in those prisoner disenfranchisement cases is a general and indiscriminate ban on voting; so, one option would be for the Court to hold that a general and indiscriminate ban on non-nationals voting, irrespective of length of residence, breaches the ECHR.
As a further example, consider equal voting power. This is one area where potential litigants could consider supplying the Court with cases which exhibit significant disparities designed to benefit the governing party. The Court could and should adopt two principles in such matters. It should require that discrepancies in constituency size be more equal. Mathematical precision is impossible, but the Court could adopt the Venice Commission approach that deviations of more than 10% should seldom be acceptable and deviations of more than 15% never, except in exceptional cases.Footnote 126 Second, the Court should require that anybody charged with drawing constituency boundaries needs to be impartial; it should not be the government or dominated by the government or any one party. The Venice Commission specifies that decisions on boundaries should take account of a commission, most of whose members should be independent.Footnote 127 If unequal constituency sizes seem to benefit the governing party, then the Court should closely scrutinise both the rationale for the boundaries and the process of deciding them.
Where it comes to equality of opportunity in the political sphere, the Court would do well to emphasise this more. In Mathieu-Mohin, the Court stressed equality in electoral rights (i.e., the right to vote and to stand for election), but this is too limited a conception of political equality. In the context of widespread, deep and persistent economic and status inequalities in society, equal electoral rights alone will not guarantee that everyone is treated as an equal. States need to take steps to compensate for, or eliminate, such inequalities. The Court has already emphasised the state’s role as the ultimate guarantor of pluralism,Footnote 128 and the Court should validate state efforts to secure equality of opportunity. The majority judgment in Animal Defenders International is a welcome example of this.
The Court can use the equality principle in relation to political expression and broadcasting. Although the regulation of media is sensitive, the Court could insist that proportionately equal airtime be allocated as between political parties during an election (allowing that there are different ways to provide proportionately equal time). The Court could also insist that any institution regulating the media be impartial and not be dominated by the government or any one party.
Conclusion
I conclude by reiterating the difficulties for the Court in this area, noting examples where the Court has developed relevant case law and identifying opportunities for further development.
As explained above, the Court faces difficulties in upholding political equality in its case law. These include: the wide margin of appreciation the Court considers appropriate in cases involving political democracy; problems stemming from a practice rather than explicit provisions in law and policy; the Court often deals with a specific problem whereas the issues need to be assessed more holistically; and the Court’s reluctance to question the good faith of a government. For all these reasons, one needs to be realistic about what a court, and especially an international court, can do about political equality. It may be that the most important priority for a court is not to interfere with a domestic political decision to protect political equality; assertive judicial protection of a purely negative conception of free expression might undermine political equality.Footnote 129
Despite these difficulties, the Court has done some valuable work. The Court has indicated that equality is central to the democracy envisaged by the ECHR and has read equality concerns into other rights (article 10, article 3 of Protocol 1). The Court has examined efforts to exclude people from the franchise. It has stressed that free expression is not unlimited and carries responsibilities, and that the state has a duty to ensure pluralism. This means that the state can regulate the media and political advertising to protect pluralism and equality.Footnote 130
The Court could develop its case law. The Court could do more by addressing issues of indirect discrimination, developing positive obligations and considering more the implications of other international treaties (the CRPD) or authoritative European standards. It could draw on the Venice Commission standards if faced with efforts to gerrymander constituencies by creating districts of different sizes. Similarly, insisting on procedural safeguards in sensitive political matters rather than deciding cases on the substance offers a more palatable way for the Court to promote equality in the political process. So, for instance, while the Court may be reluctant to decide that any particular approach to drawing constituencies or regulating broadcasting breaches the Convention, it could insist on procedural safeguards in how these activities are undertaken: they should be done by independent bodies in which the governing party does not have disproportionate influence.
The Court can only decide the cases brought before it, and it relies on the arguments presented to it. There are some areas – rights of non-nationals, redistricting and media regulation – where there have been relatively few cases brought to the Court. On questions like these, applicants and practitioners could bring more cases to allow the Court to develop its case law. Applicants and practitioners also need to consider the difficulties facing the Court. They should highlight context that explains why isolated policies or practices cause problems when looked at holistically; and they should suggest procedural solutions where the Court would hesitate to intervene on the substance. Given that the Court has recognised that states may regulate electoral campaigns and the media to ensure political equality, applicants and practitioners may want to look for cases where the Court might require states to protect pluralism and political equality.
In the context of challenges created by populists and instances of democratic backsliding, I have sketched how the Court might play a valuable role in supporting political equality in democracy, staying within its institutional competence and developing its existing principles, principles that should treat everyone as an equal in the political process.
Acknowledgments
I thank Cormac Mac Amhlaigh, Mikael Rask Madsen and the participants at workshops they organised on The European Court of Human Rights and Democracy Promotion in Copenhagen and Taking Ambivalence Seriously in Edinburgh for comments on earlier drafts. I am also grateful to the anonymous reviewers at Global Constitutionalism for their comments on this article.
Competing interests
The author declares none.
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