Electoral standards in the case-law of the European Court of Human Rights and the Venice Commission code of good practice on electoral matters

Abstract

The identification and consolidation of human rights standards is part of the work of the European Court of Human Rights. However, the applicability of the European Court’s case-law to the construction of common standards in the field of democracy and elections is one of the most difficult areas, as electoral law is generally part of the sovereign choice of the State. The Court has developed a rich case-law on the rights to political participation on the basis of Article 3 to Protocol I. In spite of the particular content of this Article, different of the other rights recognised in the European Convention on Human Rights, there has been a clear evolution towards a protection of both the individual and the dual nature of political rights. This development would have been incomplete without the work and the interactions with the Council of Europe’s Venice Commission, which full name is «Commission for Democracy through Law», which largely contributes to the development of standard-setting processes, acting as a catalyser of the States’ will to reach a European consensus. The Venice Commission is an international body that has a diplomatic dimension: it must cooperate with States, and, at the same time, it must issue opinions and recommendations that are not always easy to implement (and not always followed) at the national level. This paper focuses on the complex role played by the European Court of Human Rights and the Venice Commission in successfully setting common European standards and good practices in the field of elections. This article explores first the hard law standards as developed by the European Court of Human Rights in its case-law in the field of elections. It further examines the role of the Venice Commission and its working methods when identifying soft law standards in the electoral field and how, through its interactions with the Court, reinforces these standards and hard law standards to promote an electoral ius commune.