Parliamentary Democracy by Default: Applying the European Convention on Human Rights to Presidential Elections and Refer
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Parliamentary Democracy by Default: Applying the European Convention on Human Rights to Presidential Elections and Referendums Kriszta Kovács 1,2 Accepted: 18 September 2020/ # The Author(s) 2020
Abstract
This paper is concerned with the Convention’s “democracy clause,” that is Article 3 of Protocol No. 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? The paper first sketches out the drafting history, which reveals that while the framers were keen to preserve their inherited domestic institutions, they also thought it crucial to promote democracy. The Convention invokes but does not define democracy. It is within the Court’s competence to elucidate its meaning. The Court holds that pluralist democracy is the only system compatible with the Convention. This paper argues that Article 3 of Protocol No. 1 further presupposes a representative legislature. It does not require member states to introduce a specific system of elections and representation, but it obliges them to conform to parliamentary democracy. 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 endorsed by Carl Schmitt. The Court’s model has the potential to offer a robust account of democracy. Yet, Article 3 of Protocol No. 1 has never lived up to its potential. The Court’s relevant jurisprudence is inadequate to address the contemporary antidemocratic shifts that are underway in certain member states. Hence, the paper suggests that the Court’s power to apply this clause is not limited to general elections but also extends to presidential elections and referendums. Keywords European Convention on Human Rights . Article 3 Protocol 1 . Parliamentary democracy . Presidential election . Referendum
* Kriszta Kovács [email protected]
1
WZB Center for Global Constitutionalism, Berlin, Germany
2
Faculty of Law, ELTE University, Egyetem tér 1-3, 1053 Budapest, Hungary
Jus Cogens
1 Introduction “(T)he ECHR cannot be correctly applied and effectively respected by a dictatorial or an illiberal regime. Only a genuinely democratic regime is compatible with the philosophy and the spirit of the Convention.”1 That is how the president of the European Court of Human Rights (henceforth, the Court) described the close link between human rights protection and democratic institutional design when he addressed a conference organized to mark the 70th anniversary of the establishment of the Convention in May 2020. The criterion of democracy pervades the Convention. Its preamble emphasizes that human rights “are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the human rights upon which they depend.” Thus, safeguards on human rights are inseparable from the institutions of an effective political democracy. The notion of “democratic society” is also invoked in the limitat
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