Post-1948, the plan to quickly adopt at the global level a complete Bill of Human Rights of a binding nature proved to be a difficult matter, mainly because of the Cold War and the differences of position between the West and the East concerning the contents of human rights and the meaning of democracy. Instead, steps were taken at regional level, particularly in Europe, where the Council of Europe (CoE) was created in 1949 and the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) was adopted in 1950.
The ECHR did not contain any mention of participation as such, although its articles made provisions concerning the adjacent political rights, that is, everyone’s freedom of expression, of association and of assembly. A Protocol to the Convention was opened for ratification in 1952, which provided rights upon which the States had not agreed in time for their inclusion in the Convention, including a ‘right to free elections’.
Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms (1952)
Article 3 – Right to free elections
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.
Interestingly, rather than providing citizens with a right to vote in elections, Article 3 of the First Protocol to the ECHR merely places an obligation on the States to organise elections. The wording of Article 3 does not indicate any individual right to participation in elections, and it was originally considered that Article 3 did not create subjective rights.
Nevertheless, the European Court of Human Rights (ECtHR) eventually pronounced itself on the matter and interpreted the article as creating an individual right, on the basis of which an individual under the jurisdiction of one of the State Parties can file individual complaints against that State. This interpretation of the ECtHR was given through the leading case of Mathieu-Mohin and Clerfayt v. Belgium (1987). The ‘people’ referred to in the article is to be understood as the citizens of the State, in the form of the electorate, consisting of individuals who are the beneficiaries of the provision.
Since the end of the Cold War, there has been a proliferation of case law resulting from Article 3. According to Article 3 in the First Protocol, elections shall be held at reasonable intervals. This qualification is somewhat more specific than the principle of periodic elections in Article 21 of UDHR and Article 25 of the ICCPR. In addition to the requirement of fixed intervals in national legislation, Article 3 asks the State to establish a reasonable interval for the elections. This requirement certainly excludes the possibility of fixing very long intervals – such as a generation or 10 years – while indicating that a normal length of parliamentary period should be identified. In the Member States of the Council of Europe, that period is between 3 and 6 years. It is not quite clear on the basis of the wording of Article 3 what the ‘conditions which will ensure the free expression of the opinion of the people’ are, but generally speaking the idea is to facilitate an atmosphere during the election times which is free from intimidation or coercion and other measures that could thwart the free expression of the opinion of the people in the choice of the legislature.
The evolution of the case-law contains milestones such as Hirst v. UK, Frodl v. Austria, Scoppola v. Italy and Anchugov and Gladkov v. Russia on the right to vote of prison inmates, Labita v. Italy on the use of special measures to combat infiltration of organised crime in politics as grounds for restricting the right to vote, Zdanoka v. Latvia on ineligibility of a candidate running for a party that had been declared unconstitutional for activities after the re-gained independence of Latvia, Tanase v. Moldova on prevention of elected MPs with multiple nationalities from taking seats in Parliament and Sitaropoulos and Giakoumopoulos v. Greece on the inability of the State to implement the right to out-of-country voting, just to mention a few (see Election-related Jurisprudence).
According to the Council of Europe statute (Treaty of London - May 1949), membership is open to ‘any European State’ (Article 4, CoE Statute) which accepts ‘the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realisation of the aim of the Council as specified in Chapter I’ (Article 3, CoE Statute). As of July 2022, it had 46 member states, representing around 820 million citizens.
From the early days, the Council of Europe has been at the forefront of standards setting in human rights, and has elaborated a rich corpus of conventions, recommendations, guidelines and declarations in the field or human rights covering areas that include personal data protection, electronic voting, political and campaign finance, human rights of older people, Internet freedoms and corporate responsibility in the field of human rights, among others.
Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) (1950-1953)
Article 10 Freedom of Expression
Article 11 Freedom of assembly and association
Everyone has the right to freedom of peaceful assembly and to freedom of association with others;
No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the state.
Article 16 Restrictions on political activity of aliens
Nothing in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activity of aliens.
First Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR - P1) (1952-1954)
Article 3 Right to free elections
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 legislature.
Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms (2000-2005)
Article 1 General prohibition of discrimination
The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.
Framework Convention for the Protection of National Minorities (FCPNM) (1995-1998)
Article 4
The Parties undertake to adopt, where necessary, adequate measures in order to promote, in all areas of economic, social, political and cultural life, full and effective equality between persons belonging to a national minority and those belonging to the majority. In this respect, they shall take due account of the specific conditions of the persons belonging to national minorities.
The measures adopted in accordance with paragraph 2 shall not be considered to be an act of discrimination.
Article 7
The Parties shall ensure respect for the right of every person belonging to a national minority to freedom of peaceful assembly, freedom of association, freedom of expression, and freedom of thought, conscience and religion.
Article 9
Article 15
The Parties shall create the conditions necessary for the effective participation of persons belonging to national minorities in public affairs, in particular those affecting them.
European Charter of Local Self-Government (ECLSG) (1985-1988)
Article 3 Concept of local self-government
Local self-government denotes the right and the ability of local authorities, within the limits of the law, to regulate and manage a substantial share of public affairs under their own responsibility and in the interests of the local population.
This right shall be exercised by councils or assemblies composed of members freely elected by secret ballot on the basis of direct, equal, universal suffrage, and which may possess executive organs responsible to them. This provision shall in no way affect recourse to assemblies of citizens, referendums or any other form of direct citizen participation where it is permitted by statute.
Article 1 Right to participate in the affairs of a local authority
4.1 Each Party shall recognise by law the right of nationals of the party to participate, as voters or candidates, in the election of members of the council or assembly of the local authority in which they reside.
4.2 The law shall also recognise the right of other persons to so participate where the party, in accordance with its own constitutional order, so decides or where this accords with the party’s international legal obligations.
5.1 Any formalities, conditions or restrictions to the exercise of the right to participate in the affairs of a local authority shall be prescribed by law and be compatible with the party’s international legal obligations.
5.2 The law shall impose such formalities, conditions and restrictions as are necessary to ensure that the ethical integrity and transparency of the exercise of local authorities’ powers and responsibilities are not jeopardised by the exercise of the right to participate.
5.3 Any other formalities, conditions or restrictions must be necessary for the operation of an effective political democracy, for the maintenance of public safety in a democratic society or for the party to comply with the requirements of its international legal obligations.
Article 2 Implementing measures for the right to participate
Convention on the Participation of Foreigners in Public Life at Local Level (CPFPL) (1992-1997)
Article 2
For the purposes of this Convention, the term “foreign residents” means persons who are not nationals of the State and who are lawfully resident on its territory.
Article 3
Each Party undertakes, subject to the provisions of Article 9, to guarantee to foreign residents, on the same terms as to its own nationals:
Article 6
Each Party undertakes, subject to the provisions of Article 9, paragraph 1, to grant to every foreign resident the right to vote and to stand for election in local authority elections, provided that he fulfills the same legal requirements as apply to nationals and furthermore has been a lawful and habitual resident in the State concerned for the 5 years preceding the elections.
However, a Contracting State may declare, when depositing its instrument of ratification, acceptance, approval or accession, that it intends to confine the application of paragraph 1 to the right to vote only.
Article 7
Each Party may, either unilaterally or by bilateral or multilateral agreement, stipulate that the residence requirements laid down in Article 6 are satisfied by a shorter period of residence.
Article 9
In time of war or other public emergency threatening the life of the nation, the rights accorded to foreign residents under Part I may be subjected to further restrictions to the extent strictly required by the exigencies of the situation, provided that such restrictions are not inconsistent with the Party’s other obligations under international law.
As the right recognised by Article 3 (a) carries with it duties and responsibilities, it may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
The right recognised by Article 3.b may not be subject to any restrictions other than such as are prescribed by law and are necessary in a democratic society, in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.
[...]
Article 15
The provisions of this Convention shall apply to all the categories of local authorities existing within the territory of each Party. However, each Contracting State may, when depositing its instrument of ratification, acceptance, approval or accession, specify the categories of territorial authorities to which it intends to confine the scope of this Convention or which it intends to exclude from its scope.
Council of Europe Convention on Access to Official Documents (2009-2020)
Article 2 Right of access to official documents
Article 3 Possible limitations to access to official documents
Concerned States may, at the time of signature or when depositing their instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of the Council of Europe, declare that communication with the reigning Family and its Household or the Head of State shall also be included among the possible limitations.
Article 10 Documents made public at the initiative of the public authorities
At its own initiative and where appropriate, a public authority shall take the
necessary measures to make public official documents which it holds in the interest of promoting the transparency and efficiency of public administration and to encourage informed participation by the public in matters of general interest.
Criminal Law Convention on Corruption (1999-2002)
Article 2 Active bribery of domestic public officials
Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally, the promising, offering or giving by any person, directly or indirectly, of any undue advantage to any of its public officials, for himself or herself or for anyone else, for him or her to act or refrain from acting in the exercise of his or her functions.
Article 3 Passive bribery of domestic public officials
Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally, the request or receipt by any of its public officials, directly or indirectly, of any undue advantage, for himself or herself or for anyone else, or the acceptance of an offer or a promise of such an advantage, to act or refrain from acting in the exercise of his or her functions.
Article 4 Bribery of members of domestic public assemblies
Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law the conduct referred to in Articles 2 and 3, when involving any person who is a member of any domestic public assembly exercising legislative or administrative powers.
The European human rights protection system emerged within the Council of Europe (CoE), founded in 1949. The European Convention for the Protection of Human Rights and Fundamental Freedoms (usually called European Convention on Human Rights - ECHR) was the first treaty to establish a supranational organ, the European Court of Human Rights (ECtHR), to ensure that the States Parties fulfil their obligations.[1] The Committee of Ministers ensures continuous supervision of the execution of judgments. Until a reshaping of the system in 1998, there was a European Commission of Human Rights to which individuals had to apply. The Commission would forward only those cases deemed sufficiently grounded to the Court. In the new system, the Commission does not exist any longer and individuals can directly apply to the Court.
Several rights are not covered by the Convention but by the First Protocol to the European Convention, signed in 1952, specifically the right to property, the right to education and the right to free elections. According to the Preamble to the Convention, fundamental human rights and freedoms are best maintained by ‘an effective political democracy’. Article 3 of the First Protocol (P1-3) is hence of crucial importance in the Convention system.
The other substantive clauses in the Convention system use the words ‘Everyone has the right’ or ‘No one shall’, while Article 3 of the 1st Protocol (P1-3) uses the phrase ‘The High Contracting Parties undertake’; consequently, for many years the position of the Court was that P1-3 did create an obligation for State Parties to hold free elections, but did not create substantive rights for individuals. The Court then moved to the concept of subjective rights of participation - the ‘right to vote’ and the ‘right to stand for election to the legislature’.[2]
For a complaint to be admissible, the plaintiff must qualify as a victim. There is no ‘actio popularis’ (action in the name of a collective interest) in the ECHR system. Applicants have to be personally affected by the measure they challenge.
There are implied limitations to these rights, and States have a wide margin of appreciation to establish the conditions in which they are exercised. The Court has clarified the conditions under which these limitations are acceptable in a number of judgements since the case of Mathieu-Mohin and Clerfayt:
Case of Mathieu-Mohin and Clerfayt v. Belgium, 1987
Since the Mathieu-Mohin case, the ECtHR has developed a substantive corpus of principles in its case law related to Article P1-3. For example:
The Venice Commission is composed of independent experts who have achieved international prominence through their experience in democratic institutions or by their contribution to the enhancement of law and political science. The members are mainly senior academics, particularly in the fields of constitutional or international law, supreme or constitutional court judges, national members of parliament and senior public officials. The Commission’s primary task is to assist and advise individual countries in constitutional matters.
While the Venice Commission originally gathered member states of the Council of Europe, its reach has now become global with member states ranging from the Americas to North Africa and the Middle East as well as East Asia.
List of Venice Commission Member States
Code of Good Practice in Electoral Matters (2002)
Joint Guidelines of the Venice Commission and OSCE/ODIHR on Political Party Regulation (2020)
The European Union is a treaty-based institutional framework that defines and manages economic and political cooperation among its European member states. It was established by six countries in 1957 as an economic community and emerged as the European Union in 1992. In July 2013, the EU expanded its membership to become a union of 28 countries, until the United Kingdom exited in 2019.
European Union Treaty Standards
Charter of Fundamental Rights of the European Union (2000/2010)
Article 11 Freedom of Expression and Information
Article 12 Freedom of Assembly and of Association
Article 39 Right to vote and to stand as a candidate at elections to the European Parliament
Article 40 Right to vote and to stand as a candidate at municipal elections
Every citizen of the Union has the right to vote and to stand as a candidate at municipal elections in the Member State in which he or she resides under the same conditions as nationals of that State.
Act concerning the election of the Members of the European Parliament by direct universal suffrage (2002-2002)
Council Directive 93/109/EC of 6 December 1993 laying down detailed arrangements for the exercise of the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals
Council Directive on the right to vote and to stand as a candidate in municipal elections (1994-1995) (Council Directive 94/80/EC, amended by Council Directive 96/30/EC and 2006/106/EC)
Regulation governing political parties at European level and the rules regarding their funding (2003) (Regulation (EC) No204/2003 as amended by Regulation (EC) no 1524/2007)
European Union Non-Treaty Standards
Communication of the Commission on EU Election Assistance and Observation (2000)
Elections do not equate to democracy but they are an essential step in the democratisation process and an important element in the full enjoyment of a wide range of human rights. Elections are human rights events for two reasons. First because they give voice to the political will of the people.
Secondly because to be truly free and fair they must be conducted in an atmosphere which is respectful of human rights. [...]
The development co-operation policy of the European Community is centred on human beings and is closely linked to the enjoyment of their fundamental rights and freedoms as well as on the recognition and application of democratic principles, the consolidation of the rule of law and good governance. In the case of elections, good governance refers to an appropriate legislative and regulatory framework, as well as to a transparent and accountable election administration -including independent supervision and monitoring - that ensures the respect for the rule of law. An informed people, owning the electoral process, is the key factor in this context.
The Commission’s action in the field of external relations will be guided by compliance with the rights and principles contained in the EU Charter of Fundamental Rights [...].
Cotonou Agreement (Between EU and ACP Partner Countries) (2000) (Revised in June 2005, with the revision entering into force on 1 July 2008)[3]
Article 9: Essential Elements and Fundamental Element
Respect for all human rights and fundamental freedoms, including respect for fundamental social rights, democracy based on the rule of law and transparent and accountable governance are an integral part of sustainable development.
The Parties reaffirm that democratisation, development and the protection of fundamental freedoms and human rights are interrelated and mutually reinforcing. Democratic principles are universally recognised principles underpinning the organisation of the State to ensure the legitimacy of its authority, the legality of its actions reflected in its constitutional, legislative and regulatory system, and the existence of participatory mechanisms. On the basis of universally recognised principles, each country develops its democratic culture.
The structure of government and the prerogatives of the different powers shall be founded on rule of law, which shall entail in particular effective and accessible means of legal redress, an independent legal system guaranteeing equality before the law and an executive that is fully subject to the law.
Respect for human rights, democratic principles and the rule of law, which underpin the ACP-EU Partnership, shall underpin the domestic and international policies of the Parties and constitute the essential elements of this Agreement.
Good governance, which underpins the ACP-EU Partnership, shall underpin the domestic and international policies of the Parties and constitute a fundamental element of this Agreement. The Parties agree that only serious cases of corruption, including acts of bribery leading to such corruption, as defined in Article 97 constitute a violation of that element.
These areas will be an important subject for the political dialogue. In the context of this dialogue, the Parties shall attach particular importance to the changes underway and to the continuity of the progress achieved. This regular assessment shall take into account each country’s economic, social, cultural and historical context.
These areas will also be a focus of support for development strategies. The Community shall provide support for political, institutional and legal reforms and for building the capacity of public and private actors and civil society in the framework of strategies agreed jointly between the State concerned and the Community.
[1] Decisions and judgements of the ECtHR are available at: http://hudoc.echr.coe.int
[2] The leading case on this matter is Mathieu-Mohin and Clerfayt v. Belgium, Application no. 9267/81, 1987.
[3] It should be underlined that the Cotonou Agreement is a binding treaty under inter-national law not only for the EU but also for the ACP Partner Countries, sustaining their commitment to international human rights, including the right to participation and the different election elements.
