Right to free elections (Article 3 of Additional Protocol No. 1 to the ECHR)

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.

According to the Preamble of the ECHR, fundamental human rights and freedoms “are best maintained by an effective political democracy.” The mentioned provision absolutely guarantees the basis of a parliamentary democracy. The said basis is accordingly of prime importance in the ECHR system.²⁰²⁵ This provision, through the case-law of the ECHR organs, gradually evolved from an objective institutional guarantee to a subjective right, i.e., it developed into classical human rights or freedoms. At the beginning, after the entry into force of the provisions of Article 3 of Additional Protocol No. 1 to the ECHR, the European Commission of Human Rights regarded the said provision as an institutional right to free elections.²⁰²⁶ Afterwards, the idea of universal suffrage was incorporated. As a consequence, Article 3 of Additional Protocol No. 1 to the ECHR developed into the concept of subjective political human rights – the “right to vote” and the “right to stand for election to the legislature.”²⁰²⁷

This provision actually guarantees the right of participation in the election to the “legislature” or at least of one of its chambers if it has two or more. In addition, the provision of Article 3 of Additional Protocol No. 1 to the ECHR is not limited only to the national parliament; however, it has to be interpreted in light of the constitutional structure of the State in question.²⁰²⁸ Consequently, the right to free elections encompasses all the bodies with legislative jurisdiction.

This means that a body that can only propose laws and not adopt them cannot be deemed to be a legislative body within the scope of the relevant right under the ECHR.²⁰²⁹ An obligation to hold elections does not relate to bodies with legislative powers transferred by the legislature and bodies whose legislative powers relate to a restricted circle of persons.²⁰³⁰ Hence, a legislative body is a body whose powers derive directly from a constitution.²⁰³¹

As to the quality of standards, Article 3 of Additional Protocol No. 1 to the ECHR foresees 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. Article 3 of Additional Protocol No. 1 to the ECHR does not create any obligation on a State to introduce a specific system, such as, for example, proportional representation or majority voting with one or two ballots, etc. For this reason, there is no violation of Article 3 of Additional Protocol No. 1 to the ECHR in cases where the Constitution of the FBiH foresees different types of elections for different administrative-territorial units within the Entity or where the election results at the level of the Entity do not reflect the election results achieved at cantonal level.²⁰³²

In addition, the phrase “conditions which will ensure the free expression of the opinion of the people in the election of the legislature” implies essentially – apart from the freedom of expression (already protected under Article 10 of the European Convention) – the principle of equality of treatment of all citizens in the exercise of their right to vote and their right to stand for election.²⁰³³

Article 3 of Additional Protocol No. 1 to the ECHR applies not only to direct elections, but also to the indirect elections of the legislature. The Constitutional Court bases its argument on the linguistic interpretation of Article 3 of Additional Protocol No. 1 to the ECHR, as there is no mention of the word “direct” in the Article concerned. The Constitutional Court therefore reaches the conclusion that Article 3 of Additional Protocol No. 1 to the ECHR does not exclude indirect elections and that people may freely express their opinion on the final composition of the legislature even in indirect elections.²⁰³⁴

The rights contained in Article 3 of Additional Protocol No. 1 to the ECHR are not absolute. States have a wide margin of appreciation in making the right to vote and the right to stand for elections subject to conditions, as long as the conditions do not curtail the right in question to such an extent as to impair their very essence and deprive them of their effectiveness. Furthermore, any electoral system must be organised and assessed in light of the political evolution of the country concerned, and, as such, it will be accepted as long as the free expression of the opinion of the people in the choice of the legislature is ensured. In addition, conditions that are imposed must be in pursuit of a legitimate aim and must not be disproportionate. In examining whether certain restrictions on the right to free elections, i.e., on the right to vote and the right to stand for elections, are proportional, the emphasis is placed on considering the nature and severity of interference. Next, the importance is on considering whether the eligibility conditions are imposed by a body that has to provide, for example, sufficient procedural guarantees of fairness and objectivity. The lack of procedural safeguards and arbitrariness by the competent body involved in the removal of the candidate’s name from the list of candidates constitute a violation of Article 3 of Additional Protocol No. 1 to the ECHR.²⁰³⁵ In cases where a certain measure cannot be characterised as a limitation on the right to vote and the right to stand for elections, such as, for example, the imposition of a pecuniary penalty on a political party as a result of a violation of the Election Law, such a case does not fall within the scope of the provisions of Article 3 of Additional Protocol No. 1 to the ECHR.²⁰³⁶ On the basis of such a legal view, a conclusion may be reached that it is no longer of importance to distinguish the “so called” direct and indirect restrictions on the electoral rights as only direct restrictions constitute an “interference” with electoral rights. Nevertheless, it would be more appropriate to apply, even in cases of indirect restrictions on the electoral right, the general principles for determining the justification for an interference with a certain right or freedom. The reason for the aforementioned is that even indirect restrictions on electoral rights may, to a large extent, affect the free exercise thereof.²⁰³⁷

In the Case of Obradović, the applicant was a high-ranking military officer and former Assistant Minister of Defence of the FBiH. Since he was involved in the creation of “parallel” (Croatian) institutions,²⁰³⁸ he took early retirement. In such a situation, it remained unclear as to whether these measures were ordered directly by the SFOR Commander or the Minister of Defence of the FBiH, with the consent of the SFOR Commander. On the basis of the mentioned disciplinary sanction, the Election Commission banned the applicant from standing at the general elections. The Court of BiH upheld that decision. In the decision preventing certain persons who obstructed the implementation of the Dayton Peace Agreement from standing for election, the Human Rights Chamber recognised the public aim given the fledgling nature of the post-war political system in BiH at that time, which needed protection. The ban on standing for elections related to certain candidates, who acted, to a large extent, contrary to the political rules in post-war BiH, was not a disproportionate penalty. In the relevant case, the Human Rights Chamber established that the proceedings were lacking in all procedural fairness and legal certainty and that the applicant was therefore prevented from instituting the relevant proceedings wherein his claim could be seriously considered. Consequently, the Human Rights Chamber established that the ban on the applicant from participating in the elections could not be considered proportional to the aim sought.²⁰³⁹