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Negating pluralist democracy: the Court forgets the rights of the electors

Bowring, Bill (2007) Negating pluralist democracy: the Court forgets the rights of the electors. Kurdish Human Rights Project Legal Review 11 , pp. 67-96. ISSN 1748-0639.

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Abstract

This article reviews some recent decisions of the European Court of Human Rights (ECtHR) in relation to Article 3 of Protocol 1 to the European Convention on Human Rights (ECHR). It first explores the provenance of this rather oddly worded provision, starting with Article 21 of the Universal Declaration on Human Rights of 1948 (UDHR), and the rather fraught negotiations which took place in the first years of the Council of Europe. This is then set against some of the arguments as to the meaning and content of the concept of “democracy”. Following an analysis of the case-law as it has developed over the years, the article looks in more detail at three recent cases of the ECtHR. In Ždanoka v Latvia (Grand Chamber decision of 16 March 2006)_, the Court, in a decision described by the leading dissent (Judge Rozakis) as “dubious” and “obscure”, has allowed the State a practically unlimited margin of appreciation. A similar trend can be observed in the Chamber judgment in Yumak and Sadak v Turkey (decision of 30 January 2007)._ This article argues that, in these decisions, the ECtHR appears to be forgetting a fundamental principle underlying the right to pluralistic democracy, which is that the “passive” right to stand as a candidate in elections is not the right of the candidate, but of the electors. Unless there is a very good reason indeed, the electors should be able to elect the candidate of their choice. Otherwise, how can there be free elections?

Item Type: Article
School or Research Centre: Birkbeck Schools and Research Centres > School of Law
Depositing User: Administrator
Date Deposited: 11 Nov 2009 16:06
Last Modified: 17 Apr 2013 12:16
URI: http://eprints.bbk.ac.uk/id/eprint/860

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