Ely’s democracy and distrust

Ely’s original theory certainly offers no intuitive fit with the practice of the ECtHR. In his monograph ‘Democracy and Distrust’ published in 1980, Ely developed his account of a political process theory as an attempt to explain and justify much of the jurisprudence of the US Supreme Court under the leadership of Earl Warren (‘Warren Court’), famous for its progressive civil rights jurisprudence. Central to Ely’s original theory was the epistemic question why courts should interpret constitutional rights in cases where that interpretation was not clear from the constitutional text itself. His argument was framed as a relational account of judicial power as a question about trust and distrust: Trust in the political process generally seemed appropriate to Ely – like Jeremy WaldronFootnote ⁵ – in a well-functioning democratic system, but – unlike Waldron – Ely thought some exceptions were warranted. Whenever the constitutional text was not clear, Ely argued, constitutional review should be geared at and limited to two particular constellations: (1) when insiders were ‘choking off the channels of political change to ensure that they will stay in and the outs will stay out’, or in situations where (2) ‘though no one is actually denied a voice or a vote, representatives beholden to an effective majority are systematically disadvantaging some minority out of simple hostility or a prejudiced refusal to recognize commonalities of interest, and thereby denying the minority the protection afforded other groups by a representative government’.Footnote ⁶ For Ely, both scenarios concerned the importance of participation and thus representation in the democratic process.

Comparative representation reinforcement

Ely’s arguments have come in for considerable criticism over the years. In particular, the questions of which minorities are in need of judicial protection and how to identify them have been hotly debated and the usefulness of the minority prong of Ely’s argument has been contested.Footnote ⁷ This may be surprising given that judicial review has often been linked with the need to protect minorities. It is perhaps less surprising that the details of the argument have been hard to operationalize. Recently, it is the representation reinforcement strand of Ely’s work on judicial intervention that has attracted renewed attention, as a response to political developments and signs of democratic backsliding in a host of different countries. In the comparative law literature, the work of David Landau deserves particular mention in this regard, who put forward an Elyian argument in a comparative context in 2010, arguing that the dysfunctionality of the Colombian parliament and its democratic institutions more broadly are central to understanding and evaluating the legitimacy of the expansive jurisprudence of the Colombian Constitutional Court.Footnote ⁸ Rosalind Dixon subsequently put forward a similar argument, building on Waldron and Ely, by spelling out cases of democratic dysfunction in ‘ordinary’ and otherwise well-functioning democratic states that called for (weak forms of) judicial intervention, focusing on what she calls legislative blind spots and burdens of inertia.Footnote ⁹ Drawing on Ely as well as other US political process theorists such as Samuel Issacharoff and Richard PildesFootnote ¹⁰ as well as Pamela Karlan,Footnote ¹¹ Niels Petersen has also argued for a stronger role of courts in cases of ‘political market failures’ including the capture of democratic processes, for example, by wealthy minority interests, as well as faulty legislative reasoning, for example, because of misinformation or a lack of information. He suggests that stricter judicial scrutiny is necessary in these cases.Footnote ¹² Issacharoff and Tom Daly have put forward similar arguments in favor of judicial intervention in the context of fragile and developing democracies.Footnote ¹³ More recently, Stephen Gardbaum has developed a more comprehensive proposal for a ‘comparative political process theory’ in which he argues for a broader role for courts when it comes to protecting and enabling democracy. According to Gardbaum, courts should intervene in cases of outright dysfunction of the political process, or in cases where legislatures fail to hold executives accountable; in cases of government capture of independent institutions and more broadly capture of the political process by special interests, and even legislative failures to deliberate.Footnote ¹⁴

Finally, Dixon has more recently put forward a more comprehensive theory of responsive judicial reviewFootnote ¹⁵ which argues for tailoring judicial review to the political context and the nature of issues at stake, ranging from super-strong review to protect a democratic minimum core to weaker forms of review that may address more standard cases of political dysfunction.Footnote ¹⁶ The ‘democratic minimum core’ is defined by Dixon and Landau as

These proposals are not just theoretical. The work surveyed here shows that in a wide range of jurisdictions, courts already exercise political process review along the lines sketched out in the literature and Elyian ideas are underlying their practice, sometimes, albeit not always, explicitly so.Footnote ¹⁸ Yet, current writing on the importance of judicial representation reinforcement has mostly been confined to domestic (constitutional) courts. This begs the question of whether the arguments presented might also usefully inform the work of a supranational human rights court such as the ECtHR on which we focus here.

Fit with existing approaches and resources

The European Convention of Human Rights (‘ECHR’ or ‘Convention’) protects a number of individual rights central to the democratic process, such as freedom of expression (Art 10 ECHR), freedom of assembly and association (Art 11 ECHR), as well as the right to free elections in the Additional Protocol No 1 (Art 3 Protocol No 1). Perhaps even more importantly, the Preambles of the Statute of the Council of Europe as well as of the Convention both refer to the value of a ‘genuine’ or ‘effective political democracy’. Restrictions on a number of important Convention rights can only be justified if they are necessary in a ‘democratic society’ (Arts 8 to 11 para 2 ECHR). Yet, the Convention also guarantees many individual rights that don’t aim to protect democracy or the political process as such. These include the right to respect for private and family life (Art 8 ECHR), freedom of thought, conscience and religion (Art 9 ECHR) or the prohibition of torture (Art 3 ECHR), which are rooted in the protection of individual human dignity.

Given the breadth of rights listed, it is perhaps not surprising that most legal scholars seem to understand the Court’s role and function in Dworkinian rather than Elyian terms, emphasizing the need for a moral reading of the Convention and often drawing on the Court’s ‘living instrument’ doctrineFootnote ¹⁹ rather than focusing on the protection of the democratic process. This is in line with many broader understandings of human rights as rights that are based on human dignity and are thus both individualized and universal,Footnote ²⁰ rather than, for example, guarantees of protection for specific groups as envisaged under the predecessor of the current European human rights regime, i.e., the Minority Treaties under the framework of the League of Nations.Footnote ²¹

This is not to say that authors or indeed judges see no role for the Court in protecting democracy nor would such an understanding be incompatible with the Convention itself which sets out a number of rights central to the democratic process as highlighted above. Sometimes arguments for democracy protection are even framed in Elyian terms. For example, Ian Cram suggests that ‘[t]he principled arguments he [Ely] makes in respect of safeguarding the channels of political change in the US Constitution can, without too much difficulty be transposed across to Europe’.Footnote ²² Cram is not the only one referring to Ely on a supranational level.Footnote ²³ However, Elyian arguments tend to appear mostly in the context of scholarly interpretative analyses of the Convention’s substantive political rights or with regard to the margin of appreciationFootnote ²⁴ rather than in the form of a more comprehensive argument about the ECtHR’s overall role and function. Notably, Cram himself provides no further argument for why an Elyian approach would be appropriate as a normative and analytical framework for the ECtHR as a supranational human rights court. What this might mean beyond an argument for stricter judicial scrutiny with regard to restrictions on political rights, pushing against the political calls for a more restrained role of the Court, is also not spelled out in detail.Footnote ²⁵ This is, however, not as straightforward as it might seem, given that the protection of democracy routinely figures as just one of the many important values such as human dignity or equality the Court is called upon to protect in its own self-understandingFootnote ²⁶ as well as in academic literature.Footnote ²⁷

There are a range of resources that provide support for our argument that the Court should take protection of democracy more seriously, perhaps not as the only aim underlying the Convention, but at least as one of its key roles and functions.

One of these is the literature which essentially views the ECtHR as a supranational constitutional court for Europe. Constitutionalization theories come in very different forms and guises, but by drawing on a constitutional framework they open the door for arguments about representation reinforcement. If we understand the Convention as a ‘constitutional instrument of European public order’,Footnote ²⁸ in the sense of providing a comprehensive regulatory framework, it suggests at least some role for the Court in safeguarding democracy in member states. In addition, the idea of a European constitutional court is hard to conceptualize entirely outside of the Kelsenian tradition of constitutional review in Europe which is geared toward protecting democracy and hence emphasizes procedural review.Footnote ²⁹ This represents not just theory, but reflects the practice of many domestic constitutional courts attempting to stabilize democratic institutional arrangements. However, for some, this kind of institutional legal guardianship is precisely not the task of a supranational human rights court meant to protect human and thus individual rights rather than structural arrangements. From that traditional perspective, an Elyian approach certainly looks out of place.

Yet, there are other reasons why we think that an Elyian approach may fit the ECtHR nevertheless. First and foremost, some drafters cast the court as a bulwark against totalitarianism in EuropeFootnote ³⁰ in spite of academic and political disagreement on the role and function of the ECtHR.Footnote ³¹

In the words of one of its most important founding fathers, the French politician Pierre-Henri Teitgen: ‘Democracies do not become Nazi countries in one day. Evil progresses cunningly […]. One by one, freedoms are suppressed, in one sphere after another. Public opinion and the entire national conscience are asphyxiated. […] It is necessary to intervene before it is too late. A conscience must exist somewhere which will sound the alarm to the minds of a nation menaced by this progressive corruption, to warn them of the peril and to show them that they are progressing down along a road which leads far […]. An international jurisdiction within the Council of Europe, a system of surveillance and guarantee, could be this conscience, of which other countries also maybe have special need.’Footnote ³²

Teitgen was not alone with such a vision for the Court’s role. Perhaps ironically in our eyes today, many British conservatives initially supported the Council of Europe as they thought it might function as an instrument against communism as well as fascism, providing tools for criticism and potentially even intervention.Footnote ³³ Kriszta Kovács points out that some drafters sought to include a broader democracy clause in the Convention that would go beyond protections of freedom of expression (Art 10 ECHR) and freedom of assembly and association (Art 11 ECHR).Footnote ³⁴ Their efforts failed because legal experts and representatives worried that such a clause would be too vague in light of the very different understandings of the fundamental principles of democracy in individual European states as well as the UK government’s efforts in particular to preserve their domestic institutions and overseas colonial empire.Footnote ³⁵ Ultimately, such a clause was not included in the Convention itself. As something of a compromise, Art 3 was inserted in Protocol No 1 to the Convention, guaranteeing a right to free elections on which all member states could agree in spite of their otherwise existing constitutional differences and disagreements.Footnote ³⁶

Drawing inter alia on this drafting history, Kovács has recently put forward a more comprehensive argument for a robust role of the ECtHR in combatting democratic backsliding, albeit not in Elyian terms. Importantly, Kovács also does not argue that protecting democracy is the primary or perhaps only role of the ECtHR, but rather treats it as one of several important functions of the Court. This is also echoed in the writings of several other authors.Footnote ³⁷

Often the literature does not spell out precisely why and how the Court should protect democracy, particularly considering the variety of democratic systems in Europe. We believe there is a gap to be filled and aim to do so by drawing on recent proposals for a comparative representation-reinforcement approach to judicial review. This is not because representation reinforcement answers all questions – it does not, as we will see – but because it can serve as a bridge to connect two literatures that have until now not been connected up sufficiently, namely the comparative law literature on representation reinforcement and human rights law. As the ECtHR decides how to address issues of democratic dysfunction, the comparative literature on this can provide a first important source of inspiration.

Representation reinforcement beyond the domestic sphere

Yet, approaching the ECtHR’s role in terms of representation reinforcement raises several questions. This is partly because the ECtHR is a regional tribunal rather than a domestic constitutional court and is therefore operating in different political context, without the same kind of obvious interinstitutional support that domestic institutions routinely have. In particular, representation reinforcement might appear too bold for a supranational institution dealing with a range of different national democratic systems and foremost charged with the protection of human rights. But doubts arise also because of the ECtHR’s more specific role and its fit with a representation-reinforcing approach. This is because Ely’s original theory designs a comparatively narrow role for courts that might not fit the self-understanding and existing practice of the ECtHR.

The question of whether, and how, it matters that the ECtHR is a supranational rather than a domestic court when it comes to the idea of representation reinforcement is not easily answered. This is not so much because the Convention itself sets out the task for the courts to protect rights rather than democratic process (unlike many modern constitutions) since Ely himself clearly viewed representation reinforcement as a yardstick regarding the interpretation of constitutional rights.Footnote ³⁸ His argument was thus not actually focused on protecting institutional arrangements, procedures or competences, but rather on how to interpret constitutional rights. Nevertheless, international and domestic courts are different in many ways.Footnote ³⁹ These differences matter both with respect to their legitimacy and capability. International courts such as the ECtHR are not embedded in a broader constitutional framework and their legitimacy – understood in both normative and sociological terms – is more contested than that of domestic courts, making subsidiarity a key concern. Secondly, issues of capability may arise when it comes to both understanding domestic contexts and in terms of implementation – with regard to either, supranational courts may have a harder time than domestic courts.

Yet, we believe that neither of these issues poses a fundamental obstacle to a theory of representation reinforcement at the supranational level. This is partly because the ECtHR is not just any international court. As we have seen above, it is frequently described as a constitutional court of Europe and it is also not as institutionally isolated as it may seem at first glance. Indeed, the ECtHR is embedded institutionally not just in a relationship with other constitutional courts, but also supported by the Committee of Ministers and embedded in a broader European legal framework which also includes EU institutions.Footnote ⁴⁰ Partly on account of the latter, many civil society organizations today operate transnationally, and even where they do not do so, they frequently have links and connections to other organizations that do so. As a result, their support structure when it comes to gathering information is not always significantly worse than that of domestic courts.

In contrast, the challenge of non-compliant states particularly affects the very foundation of human rights protection and thus also applies to our argument that the Court should more rigorously protect democracy. The lack of institutional agility and sometimes of coordination of the Council of Europe’s organs as well as the influence of the overall political context in Europe constrain the Court’s ability to provide timely, consistent and robust responses to systemic threats – as opposed to providing for merely remedial payments.Footnote ⁴¹ Nonetheless, the challenge of implementation is a general one and one the Court and other bodies are working hard to address. Thus, over time the Committee of Ministers has for example exercised more collective and streamlined pressure upon execution of abusive human rights restrictions under Art 18 ECHR in order to ensure the effective monitoring of the execution and implementation process.Footnote ⁴² In addition, the pilot-judgment procedure as an ‘instrument for dialogue’Footnote ⁴³ has been employed by the Court to address systemic or structural dysfunction and its root problems at the national level by way of indicating more targeted general measures that ought to be taken and subsequently enhanced supervision by the Committee of Ministers, albeit with mixed successFootnote ⁴⁴. More recently, a new study demonstrated that partial compliance is likely in states on a spectrum of democratization, often identified in the form of minimalistic, dilatory and/or contested compliance, rather than full compliance or non-compliance.Footnote ⁴⁵ All things considered, while these studies suggest that we should not place too much hope in the Court as solution to all problems, they by no means suggest that one should simply abandon the idea that the Court can make a meaningful contribution to protecting democracy in member states. Rather, the challenge is to set out when and how to do that – which is an issue we cannot tackle in this paper.

And questions of subsidiarity are real and particularly pressing if we understand representation reinforcement in its broadest sense as an argument for structural interventions in the political process, as advocated in recent literature, such as Stephen Gardbaum’s argument for intervention in cases where there is a ‘serious violation of one or more core democratic process values or their systematic undermining over time’.Footnote ⁴⁶ Adopting such a broad approach to representation reinforcement is already problematic in a domestic context given that democracy is a vague and contested concept,Footnote ⁴⁷ but those problems are compounded when dealing with a supranational context where room for different national understandings of democracy must be preserved.Footnote ⁴⁸ The concerns arising from approaches like this led to the Convention’s drafters not to adopt a general democracy clause in the Convention and prompted past and current judges to be very careful about portraying the Court primarily as a guardian of democracy and the rule of law. The challenge will then be to reconcile this role and function with the Convention’s need for subsidiarity, since, as Luzius Wildhaber and Steven Greer note, the Convention points to the existence of shared values such as democracy and the rule of law among its member states but its ‘constitutional landscape is also undeniably pluralistic, polyvalent, and heterarchical’.Footnote ⁴⁹ In the field of democratic politics in particular it can be very hard to delineate what constitutes dysfunction, given the interplay between different rules or institutional arrangements and the importance of seemingly technical details. As a result, arrangements that may be unproblematic and democratic in one state may have a very different effect in another.Footnote ⁵⁰

In spite of these difficulties, we believe the answer should not be for the ECtHR to simply stay away from addressing democratic dysfunction. As already mentioned, the drafting of the Convention was – at least for a large part – about preventing democracies from backsliding into authoritarian regimes. This is also why the ECtHR reiterates time and time again that democracy is ‘the only political model contemplated by the Convention and, accordingly, the only one compatible with it’.Footnote ⁵¹ The challenge then must be about finding the right balance. But representation reinforcement is not just about expanding review; it is also about limiting judicial intervention – which is why we believe it is so attractive in this context.

And this takes us to the second question sketched above: namely, if representation reinforcement might not be too narrow and deferential as to be reconciled with the Court’s existing practice. To start with, we do not provide a comprehensive answer here as to whether representation reinforcement should be understood as the only thing the ECtHR should be doing. Rather, we adopt the approach taken by the more recent comparative representation-reinforcing school of judicial review which uses Ely’s account only partly as an argument to justify (or deter) intervention in the first place, but rather as an argument for calibrating and fine-tuning judicial review, with regard to degrees of judicial scrutiny and the choice of remedies. Focusing on how, and not just if, courts should intervene makes sense insofar as most modern constitutions explicitly provide for judicial reviewFootnote ⁵² unlike the older US Constitution addressed by Ely’s more restrictive approach. Modern constitutional courts often do not have the option of declining review, which is also the case for the ECtHR, at least in principle.Footnote ⁵³ Not least, it is important to emphasize that Ely believed that courts should take the legal text seriously and had no problems with judges wielding their power where the law was clear. His theory thus aimed to provide help in situations where the law lacked clarity. This raises the question of what this means for systems which explicitly provide for judicial review, a hard question to answer and again one we mostly bracket here, since Ely explicitly rejected broader non-interpretivist approaches to judicial review.Footnote ⁵⁴ It suffices to say here that representation reinforcement will be hard to reconcile with a broad living-document approach or indeed arguments for a moral reading of rights, both of which are important strands in the Court’s jurisprudence and the academic literature. Applying a representation-reinforcing approach thus involves a departure from these strands in the Court’s jurisprudence and comes with arguments for deference where deference is currently not applied. That said, there is a fair amount of variation in the literature regarding the scope of political process theory and representation reinforcement.Footnote ⁵⁵

However, representation reinforcement is no magic bullet for the ECtHR. Like most theories of judicial review, it will often not generate clear answers in concrete cases. This is all the more true for the more recent strands in the literature which have expanded on Ely’s original approach. But representation-reinforcement ideas should be interesting to ECtHR lawyers because they connect two strands in the Court’s jurisprudence that are not typically connected: namely, its procedural approach to the margin of appreciation and its role in protecting democracy. It thus provides a way to reconcile two ideas – that of subsidiarity and that of democracy protection – with each other, which are traditionally seen to be in tension with one another. Moreover, it does so in an attractive manner, bringing together arguments for strengthening representation reinforcement and on protecting those that are not represented. And finally, it does so in a way that respects the need for subsidiarity in an international court while protecting democracy and minority rights.

As a theory involving both restraint and activism, representation reinforcement thus provides a principled approach to the question of when to intervene strongly and when to defer, which already fits in many respects with what the court is doing – albeit not in all respects. It is this combination that cuts across the constitutionalist–individualist divide in the literatureFootnote ⁵⁶ and which also sets it aside from other theories of the Court’s role, such as broader democracy-promoting proposals, those casting the Court as a constitutional court of Europe or indeed attempts to adopt the label of transformative constitutionalism to supranational courtsFootnote ⁵⁷. At the same time, we do see important overlap with existing work by Kovács,Footnote ⁵⁸ Janneke GerardsFootnote ⁵⁹ as well as Alain ZyssetFootnote ⁶⁰ who has drawn on the reference to a ‘democratic society’ as a tool to both sharpen and strengthen the Court’s function vis-a-vis member states as well as limit its authority in light of existing democratic processes.

Protection from politically motivated criminal prosecution

The ECtHR’s jurisprudence with regard to Art 18 ECHR is central when it comes to policing a minimum core of democracy throughout all member states. Art 18 ECHR, one of the lesser-known provisions to the Convention, states that ‘restrictions […] shall not be applied for any purpose other than those for which they have been prescribed’. Based on this clause, the Court has in recent years developed a robust representation-reinforcing case law, by prohibiting restrictions for illegitimate purposes with broad ramifications for the democratic process.Footnote ⁶⁶ It examines why state authorities restrict substantive rights, with the aim of assessing objectively if governments pursue ulterior purposes than they state on paper.Footnote ⁶⁷ As we learn from case law, in the majority of such prosecutions pre-trial detention is not imposed for the purposes of bringing the applicant before the competent legal authority on reasonable suspicion of having committed an offence,Footnote ⁶⁸ but instead to exclude dissidents from the political process by punishing them for their work and eventually silencing them, at least temporarily.Footnote ⁶⁹ The underlying root problem of such practice is always an abuse of power for political purposes – and thus the textbook example for insiders seeking to keep outsiders out and blocking the channels of political change. It also illustrates what protecting a democratic minimum core in the context of a broader representation-reinforcement approach might look like.

There are several reasons for that, but we want to highlight three points in particular here:

First, the applicants’ criminal prosecution, especially that of opposition politicians, is often deliberately initiated during crucial campaigns in the run-up to referenda or parliamentary elections,Footnote ⁷⁰ aimed at ‘stifling pluralism and limiting freedom of political debate’.Footnote ⁷¹ The underlying motivation behind such practice is twofold: For one, anyone in pre-trial detention cannot, as a matter of fact, conduct an election campaign and may even be excluded from the candidacy in question or the following one. For another, abusive criminal prosecution of politically inconvenient dissents generally has a considerable chilling effect, discouraging others from participating in public discourse and attempting to paralyze civil society as a whole. In this context, the Grand Chamber in Navalnyy v Russia [GC] (2018) explicitly pointed toward a wider threat to democracy when it observed that ‘the restriction in question would have affected not merely the applicant alone, or his fellow opposition activists and supporters, but the very essence of democracy as a means of organizing society’.Footnote ⁷² In this respect, the classic reading of Ely’s theory in the sense of protecting the openness of the political process against insider manipulation provides a useful framework for understanding and defending the ECtHR’s case law on Art 18 ECHR. For whatever different understandings of democracy we may cherish, imprisoning governmental critics and opposition leaders, unless they are genuinely suspected of having committed an offense, will not be considered compatible with it.

Second, the cases also speak to the close connection of rule of law questions and democracy, with the rule of law understood to reign in state authorities’ abuse of powers.Footnote ⁷³ Thus, the ECtHR has attributed a significant role to judicial review itself when it found that ‘the domestic courts, being the ultimate guardians of the rule of law, systematically failed to protect the applicants against arbitrary arrest and continued pre-trial detention […], limiting their role to one of mere automatic endorsement of the prosecution’s applications to detain the applicants without any genuine judicial oversight’.Footnote ⁷⁴ Although rule of law aspects do not necessarily play an explicit role in Ely’s original theory, the Court’s Art 18 jurisprudence can be understood as a concretization of the Convention’s democratic minimum core that should trigger both strict and substantive review and robust remedies where a violation is found.

Third, Art 18 ECHR provides the ECtHR with a legal basis for its response to the political foul play that marks a member state’s departure from the most basic rule of good faith human rights protection. Especially in its early case law on Art 18 ECHR, the Court emphasized that the system of the Council of Europe and thus ‘the whole structure of the Convention’ rests on the overarching presumption that its member states fulfill their obligations in good faith.Footnote ⁷⁵ Such an inquiry into state authorities’ bad faith when restricting human rights or more generally member states’ unwillingness to fulfill their obligations under the Convention is strongly reminiscent of the above-mentioned Ely-inspired question of ‘distrust’ in member states’ rule-making or practice. It also suggests that procedural review may play an important supplemental role in these cases as a way of identifying the facts of the respective cases and, in doing so, recognizing bad faith.

Two challenges in this regard are of course how to identify bad faith in these cases and, subsequently, what it means for the overall Convention system in a larger context. Scrutiny of states’ motivation can often prove difficult, given it is contingent on the ECtHR’s fact-finding capacities and thus naturally limited for reasons of subsidiarity, according to which the Court does not act as a court of fourth instance and the facts of the case have already been predominantly settled at the national level.Footnote ⁷⁶ It is, however, peculiar to bad faith scenarios that the ECtHR might have to reassess these facts since judicial independence is oftentimes affected by populist or autocratic aspirations, and this makes it difficult to establish protection in the spirit of Art 18 ECHR by domestic courts in the first place.Footnote ⁷⁷ We propose that the Court might embrace a more holistic approach to contextual evidence in line with the recent literature on the singular nature of the existing evidentiary regime under Art 18 ECHR.Footnote ⁷⁸ In this sense, the ECtHR would also engage with bad faith effects on the broader political context beyond the concrete circumstances of the case. All of this surely prompts criticism of the ECtHR’s increasing politicization. Başak Çalı has long proposed this risk can be mitigated by way of applying tailor-made judicial responses within clear and principled normative frames,Footnote ⁷⁹ for example within her ‘variable geometry’ in which trust in domestic authorities is central, giving more deference to governments acting in good faith than those who are not.Footnote ⁸⁰ This is also why we believe our normative understanding of representation reinforcement under the Convention can provide a helpful argumentative tool for robust protection of the democratic minimum core and minority rights, while otherwise resorting to process-based coping strategies as we have seen in other politically sensitive cases.

Going beyond Art 18 ECHR, such an approach would also involve an inquiry as to the legitimacy of governmental purposes when restricting rights. It would thus be in line with a whole new range of Strasbourg case law, questioning governments’ assertions of legitimate aims underlying restrictions on rights with regard to not only their legal justificatory capacities but also to their factual accuracy,Footnote ⁸¹ in particular with a view to judicial independence under Art 6 ECHR and its effects on the rule of law in Europe.Footnote ⁸²

Finally, representation reinforcement as it is discussed in the more recent literature also involves paying attention to the choice of remedies, providing for a tailored approach, including robust structural review in cases where the democratic minimum core is violated.Footnote ⁸³ In line with this, the ECtHR increasingly adopts a robust approach to remedies in Art 18 ECHR cases, especially where opposition politicians are concerned. Rather than leaving implementation to the state parties concerned, the Court has begun to prescribe both individual and/or general measures by virtue of Art 46 para 1 ECHR, namely to immediately release the applicant,Footnote ⁸⁴ to restore the applicant’s professional activitiesFootnote ⁸⁵ and to ‘focus, as a matter of priority, on the protection of critics of the government, civil society activists and human-rights defenders against arbitrary arrest and detention’ by legislative and/or other measures.Footnote ⁸⁶ For the reasons mentioned above, decisions establishing bad faith violations of the Convention are often hard to implement,Footnote ⁸⁷ prompting the Committee of Ministers to use the infringement procedures under Art 46 para 4 ECHR before the Court in two cases thus far.Footnote ⁸⁸ Importantly, a responsive approach would not be to insist on one particular form of remedy in all cases, but will be sensitive to the challenges at hand and seek to work around existing obstacles.

Voting rights

Voting rights, too, are central to democracy and should thus trigger a heightened degree of scrutiny by the ECtHR under a representation-reinforcing approach. Art 3 Protocol No 1 protects both the right to cast a vote and to run for office in elections for a (not necessarily national) parliament: ‘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.’

In spite of its drafting history as a democracy-protection clause (see above), it was only accepted over time that Art 3 Protocol No 1 entailed individual rights, initially in the practice of the (now abolished) European Commission of Human Rights.Footnote ⁸⁹ The ECtHR itself has not only emphasized its justiciability in terms of individual rights given its importance to democracyFootnote ⁹⁰ but has also stressed – with reference to the Preamble of the Convention – that the preservation of democracy is central to the protection of human rights: ‘fundamental human rights and freedoms are best maintained by “an effective political democracy”’.Footnote ⁹¹

The jurisprudence on Art 3 Protocol No 1 broadly mirrors the early debates of the Convention’s framers. Noting the lack of more specific provisions in the Convention and the travaux préparatoires in which representatives referred to the need for domestic implementation measures, the Court recognizes that Art 3 Protocol No 1 is subject to ‘implied limitations’ and emphasizes in this context that state authorities enjoy a wide margin of appreciation,Footnote ⁹² although the width of this margin unsurprisingly varies in practice. The idea of implied limitations, as the Court’s very own Guide on Art 3 Protocol No 1 explains, is important as it allows restrictions of the right to free elections that go beyond the standard list of legitimate aims familiar from other Convention rights such as Arts 8 to 11 ECHR. It focuses on two aspects rather than its otherwise traditional inquiry into the necessity of the restriction in a democratic society: ‘whether there has been arbitrariness or a lack of proportionality, and whether the restriction has interfered with the free expression of the opinion of the people’.Footnote ⁹³ In addition, it underlines ‘the need to assess any electoral legislation in the light of the political evolution of the country concerned, which means that unacceptable features in one system may be justified in another’.Footnote ⁹⁴

In the literature, this relatively wide margin of appreciation has frequently come in for criticism, in particular in the context of the ECtHR’s battle over prisoner voting rights in the UK in the Hirst (2005) saga.Footnote ⁹⁵ Scholars have drawn attention to discrepancies between the Court’s freedom of expression jurisprudence with its relatively robust proportionality approach and the Court’s tendency to grant a wide margin of appreciation combined with its propensity to invoke the concept of a European consensus when voting rights were involved.Footnote ⁹⁶ Others have argued more specifically for stricter judicial scrutiny when it comes to adjudicating the withdrawal of individual voting rights as opposed to broader questions of the organization of the electoral system where member states should enjoy larger leeway.Footnote ⁹⁷ Overall though, apart from a somewhat lesser standard of scrutiny with regard to running or standing in an election as opposed to voting rights, it seems hard to discover clear lines in the Court’s jurisprudence.

From a representation-reinforcing perspective, we must clearly envisage a robust role of the ECtHR when it comes to Art 3 Protocol No 1. Electoral rules really are central to enabling voting and thus a democratic form of government, and they must be a part of a democratic minimum core. This suggests that the Court should engage in substantive review of such rules, albeit without putting forward one specific concept of representation across all member states.

This requires a difficult balancing act. It seems to us that a good way of coping with this challenge is by adopting a substantively broad approach to the scope of application of Art 3 Protocol No 1, but at the same time engaging in a procedural review of the rules in question. This implies some protection not just for elections but also for referenda, in contrast to the ECtHR’s positionFootnote ⁹⁸ and in line with Kovács and other critics,Footnote ⁹⁹ at least in those cases where they are understood as either constitutional referenda or as referenda that are legally binding for legislators with regard to the adoption of specific rules or policies. The reason for this is that constitutional referenda are in many ways even more central to the establishment of constitutional democracies than regular elections, and it is thus important from a democratic perspective that they be free and fair. Similarly, binding referenda for legislators on specific rules or policies are functionally equivalent to legislative rule or policy making and thus at the core of democratic law-making. Not least, referenda have played a considerable role in enabling democratic backsliding in some contexts and if we understand the ECtHR as a tool to address the latter, this, too, suggests a broad reading of Art 3 Protocol No 1. Such an approach may go beyond Ely’s original focus on the text, but is very much in line with the more recent literature in comparative constitutional law.Footnote ¹⁰⁰

However, we also understand that different member states will choose different ways of organizing referenda, elections and representative institutions. In this regard, it seems essential to us to consider the process in which existing rules are changed and pay attention to insider-outsider dynamics as well as minority protection. The gold standard for changes to central electoral rules should be broad multi-partisan support because it suggests that the changes made are not directed solely or primarily toward increasing the governing party’s or coalition’s chances of staying in power by tilting the electoral playing field in their favor. A procedural approach should also mean more than a review of the amending process itself, particularly as the ECtHR is not dealing with new changes in all cases but rather longer established electoral rules. Several factors seem particularly relevant: whether the rules in question are likely to benefit insiders in the systems or seem to have little relevance and effect on electoral outcomes, and whether they have particular implications for minorities facing long-entrenched hostile prejudice.Footnote ¹⁰¹ When it is hard to make such determinations, the ECtHR may also scrutinize the consistency of the respective legislative frameworks surrounding voting rights as a tool for screening out illicit bias.Footnote ¹⁰²

A representation-reinforcing approach should, however, not be understood as a blueprint for perfecting states’ democratic systems. Thus, we might also seek to distinguish between a democratic minimum core which would entail that any members of minority groups can exercise their rights to vote on a formally equal, free and fair basis and non-core concerns with better representation for minority groups. On this basis, the difference in the ECtHR’s treatment of the demands of the German non-minority party Die Friesen for lowering vote thresholds to enter the German parliament so that their party would be able to gain seats, which the ECtHR upheld,Footnote ¹⁰³ and the referral of national minorities in Hungary in Bakirdzi and E.C. v Hungary (2022) to one particular minority voting list, which the ECtHR treated as a violation of the Convention,Footnote ¹⁰⁴ makes sense.

Minority protection

The protection of minorities has long been a core function of constitutional courts in the existing literature and is similarly important in academic writing on the ECtHR, in particular George Letsas’ arguments for a moral reading of the Convention, inter alia to protect minorities against majorities.Footnote ¹⁰⁵ There is of course a significant body of jurisprudence on Art 14 ECHR prohibiting discrimination which warrants closer analysis. We focus instead on the concept of ‘vulnerability’ in the ECtHR’s jurisprudence which is one of the factors the Court uses to determine the appropriate margin of appreciation and an argument the court draws on in determining the scope of states’ obligations. As such, it resonates with Ely’s concern about protecting minorities to some degree.

In the Court’s jurisprudence and existing scholarly accounts, vulnerability is generally not understood in light of Ely’s theory, which emphasized that two things mattered in particular: First, that a minority has faced long-entrenched hostile prejudice, and second, that it was sufficiently ‘discrete and insular’ to make it difficult to build political coalitions to advocate for its own interests. Instead, the Court conceives of vulnerability more broadly, which includes, for example, vulnerability due to pregnancyFootnote ¹⁰⁶ or, what Corina Heri calls, dependency-based vulnerability affecting minors, the elderly and those with psychosocial and cognitive disabilities.Footnote ¹⁰⁷ There is, however, no entirely precise definition of vulnerability in the Court’s jurisprudence. Thus, the ECtHR has in some cases identified vulnerability in terms of ‘historical disempowerment’,Footnote ¹⁰⁸ recognizing inter alia asylum-seekers and sexual minorities,Footnote ¹⁰⁹ people with mental disabilitiesFootnote ¹¹⁰ or living with HIVFootnote ¹¹¹ and the Roma minoritiesFootnote ¹¹² as groups in this sense. It is easy to see that this might be extended to other groups, such as those who are disadvantaged more broadly because of their race or gender. While this focus on past discrimination fits into an Elyian paradigm, Kovács and Gábor Attila Tóth argue, for example, that a focus on past social injustice is insufficient if we are trying to make sure that all citizens are treated equally in a moral sense and that their rights are not restricted in an unjustified manner.Footnote ¹¹³

This is clearly different from Ely’s original approach which focused mostly on the formal representation of the groups in question, with the consequence that women, for example, would not qualify for special judicial protection as long as they are able to voice their complaints through ordinary democratic channels. Thus, Ely noted that while women were obviously subject to long-entrenched prejudice, many women themselves held such prejudices and often seemed to prioritize other political issues, in addition to not constituting a numerical minority of the population. Although women might be wrong to adopt such beliefs about themselves, Ely argued that it was not the function of judicial review to correct such ‘false stereotypes’.Footnote ¹¹⁴

However, Ely’s analysis lacks some nuance and ignores a range of other questions that arise in this context. Thus, we might wonder if it matters that women often face structural hurdles when seeking to enter politics, e.g., because of the way political parties are organized and operate, and as a result, they typically make up considerably less than half of all members of parliament. Ultimately, there is no entirely level democratic playing field which grants all people equal chances to achieve positions of power by running for office or otherwise – and of course, women are only one example here.Footnote ¹¹⁵ The question would then be whether and to what degree this is significant from a representation-reinforcing point of view. We may think that even if women or other minorities are underrepresented, this does not necessarily lead to their interests being insufficiently represented in the democratic process. Thus, men running for office should be incentivized to take up issues important to women because after all, women make up half of the electorate. Yet, we also know that this is not always true.

One solution may then be to adopt a more case-by-case-based approach when it comes to identifying minorities in need of stronger judicial protection, rather than distinguishing between different groups a priori. In her work, Dixon suggests a path to such an approach by focusing on what she calls ‘democratic blind spots’ or ‘burdens of inertia’ due to coalition-building constraints.Footnote ¹¹⁶ Democratic blind spots arise when legislators are simply unaware of certain consequences of the rules they are putting forward. This may particularly be the case when these rules have an unequal impact on different groups and thus target minorities in unforeseen ways.Footnote ¹¹⁷ Burdens of inertia arise when the need to hold together or build a coalition leads legislators to neglect certain topics, even though the issues in question may well have majority support but perhaps particularly affect certain minorities.Footnote ¹¹⁸ As an example, we might think of some conservative government’s unwillingness to push through laws allowing same-sex marriage out of fear of splitting the political coalition on whose support they depend. In those cases, Dixon argues that weak forms of judicial review – pointing governments to their oversight without necessarily prescribing a fixed solution – are generally sufficient and appropriate here.Footnote ¹¹⁹ And yet, some unease remains given that minority rights violations are not always a sign of democratic blind spots or burdens of inertia, but rather of more straightforward hostile prejudice. For example, in many debates about issues such as same-sex marriage or abortion rights, there will be a range of different ideological positions involved, some of which will be outrightly misogynist or homophobic, whereas others will not be. The question is how this should impact judicial review.

We believe that the best way for courts including the ECtHR to respond is to consider two things in particular: first, the degree of long-entrenched hostile prejudice to which the respective minorities are subjected to, and second, the broader quality of the democratic debate in terms of their representation. Such an approach would be narrower than the vulnerability literature suggests but broader than what Ely had in mind. Thus, when the Court is dealing with groups traditionally subject to long-entrenched hostile prejudice and when the debate significantly reflects prejudice and bias (or when there was no real debate, in the sense of a democratic blind spot or burden of inertia, as was the case in Hirst, at least initially), the ECtHR should scrutinize the rules in question strictly, leaving a relatively narrow margin of discretion. In contrast, when the case involves groups not typically subjected to long-entrenched hostile prejudice, such as children or elderly people, and there are no signs of a particularly skewed or entirely lacking debate, states’ margins of appreciation should be correspondingly wider.

Such an approach would combine two lines in the Court’s existing jurisprudence, on vulnerability and existing domestic processes, both of which are already central factors in determining what margin of appreciation the Court will grant in the individual case at hand. By focusing on past injustice, the Court would not be denying equal rights to some citizens but rather exercise trust in the democratic process when there are no reasons to assume that political mobilization is unavailable to those who believe their rights have been violated. In other words, the judges would seek to encourage political responses to representation deficits as long as there is not a straightforward case for distrust.