Participation in European Human Rights Law

This is a version of an article that appears in the latest issue of Minority Rights Now. Check out their blog at

Core to the concept of citizenship is the idea of political participation; the citizen participates in the process of collective decision-making. This indeed is recognised in Article 21 of the Universal Declaration of Human Rights 1948. The right to participate is taken up in Article 25 of the International Covenant on Civil and Political Rights  1966, and (in a much more circumscribed way) in Protocol 1 Article 3 of the European Convention on Human Rights 1950.

Until the end of the Cold War little attention was paid to these rights to political participation. The end of the Cold War was accompanied with processes of transition from authoritarian to more democratic rule in Eastern Europe; the same period saw similar processes of democratisation elsewhere notably in Latin America and Apartheid South Africa. These transition processes prompted greater interest in political participation rights, including within the circumscribed European Convention system.

The European system is limited because the language of Article 3, Protocol 1 is mainly concerned with the institutions of representative democracy, ie the rights to vote and to run for election. Indeed it is even more limited in that the text seems to be concerned only with these rights in the context of electing a legislature. These limitations are important.

The limitation to legislative elections means that participation in referenda, local elections, consultative body elections and presidential elections are all probably outwith the scope of the European Convention, though elections for the Assembly and the European Parliament are covered. The effect of this is that (for example) a voter with a mobility disability who cannot access a polling station is effectively unprotected in the European system (Molka v Poland).

Even when the election to a legislative body is involved, the provisions of Protocol 1, Article 3 still appear limited as by definition we are dealing only with representative models of democracy. A purely representative model is frequently a very limited model of democracy, especially from the viewpoint of minority groups. A model of democracy based on representation has the potential to be an anaemic exercise whereby voters are consulted every four or five years on who should be the governors. This may reduce democracy to an exercise by political parties to acquire political power. In such a system, political parties will put a premium on electoral strategies to secure votes rather than deliberation on public policy. A purely representative model may treat the electoral process as a simply matter of counting up interest based (or even identity based) preferences. This is potentially worrying for minority groups or other groups that experience structural disadvantage. Such a representative systems leaves interests (and identities) unexamined; and may be compatible with underrepresentation of women, minority ethnic groups and other disadvantaged groups. To make the promise of political participation meaningful a human rights system needs to promote inclusion, substantive equality and participatory democracy.

For these reasons, the language of the Universal Declaration or the International Covenant is preferable to that of the European Convention. The Universal Declaration and the International Covenants speak of the right to take part in the government of one’s country; both of these terms extend beyond the mere possibility to participate in elections. Other European texts also go beyond the requirements of representative democracy: see for instance the OSCE Lund Recommendations on the Effective Participation of National Minorities in Public Life or Article 15 of the Framework convention on National Minorities.

Nevertheless the contribution of the European Convention is important (see ‘Realising Political Equality’ for more). The European Court of Human Rights has used the language of the Protocol to promote the value of inclusion. Thus European Court has condemned the formal exclusions of significant groups from formal election rights. Thus it has said that states cannot exclude racial and ethnic minorities  from running for electoral office (Sejdic and Finci v Bosnia and Herzegovina); states cannot summarily exclude people with mental disabilities from voting (Alajos Kiss v Hungary); and of course states cannot impose a blanket ban on all convicted prisoners voting (Hirst v UK). The failure of the UK to implement the Hirst ruling on prisoner disenfranchisement is unacceptable, all the more so since the European Court has toned down some of the more radical aspects of its case law in this area (Scoppola v Italy).

The European Court’s role in promoting inclusion is welcome, but the European Court could do more to promote substantive equality (or effective participation) in the political process.  Impediments to effective political participation may not take the form of formal exclusions, but may instead consist in social structures or practices that indirectly affect the possibility of participation. Such structures or practices may need to be addressed by indirect discrimination case law, positive obligations or even positive action. In Northern Ireland political parties have the possibility to adopt positive action measures (eg all women shortlists) to facilitate the election of women representatives (Sex Discrimination  (Election Candidates) Act 2002). The European Convention may not require such measures, but in some of its case law on discrimination against Roma, the court has highlighted that facilitating the inclusion of Roma children in education may require a flexible approach to formal requirements like registration (Sampanis v Greece)  and also require actions to promote the value education among the Roma community  (Oršuš and others v Croatia). One could imagine similar positive action measures in respect of Irish Travellers or other minority ethnic groups.

Finally, the European Convention may help promote participatory democracy as well as representative democracy. The touchstone for this is not Article 3 of Protocol 1 but rather the Article 8 right to respect for private and family life and one’s home. The European Court has required that certain decisions affecting one’s home, including decisions affecting the environment, must be based on a process which allows those affected a chance to participate (Chapman v UK, Hatton v UK).  Furthermore as well as creating opportunities for participation and consultation, this line of cases also endorses the principle that ‘some special consideration’ should be given in regulatory frameworks to the needs and different lifestyles of  minorities (Chapman v UK).

In sum the European Convention has carried out some welcome work in promoting inclusion in the formal representative political process, but there is potential for principles of substantive equality and participatory democracy to be developed further.