Kai kurie teisės į laisvus rinkimus interpretavimo Europos žmogaus teisių teismo jurisprudencijoje aspektai.
The paper focuses on the general principles established in the caselaw of the European Court of Human Rights while applying and interpreting the Article 3 of the First Protocol of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter – Article 3 of the First Protocol) which provides: „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.“ Article 3 of the First Protocol enshrines a fundamental principle for effective political democracy, and is accordingly of prime importance in the Convention system. It refers not only to positive obligation of the Contracting State to organize democratic elections, but also guarantees individual rights, including the right to vote and the right to stand for election, although this is not explicitly stated in it. These rights are not absolute; there is room for “implied limitations” and Contracting States are given a wide margin of appreciation in this sphere. However, these limitations must be such that the rights in question were not curtailed to such an extent as to impair their very essence and deprive them of their effectiveness, should be imposed in pursuit of a legitimate aim and should not be disproportionate. The choice of electoral system by which free expression of the opinion of the people in the choice of the “legislature” is ensured – whether it is based on proportional representation, majority voting with one or two ballots or some other arrangement – is a matter in which the State enjoys a wide margin of appreciation. Article 3 of the First Protocol does not create any obligation to introduce a specific electoral system. In the second part of the paper it is analysed what types of elections fall under the scope of Article 3 of the First Protocol. This article obliges the Contracting States to set up “legislature” which is directly elected by people, it does not define the concept of “legislature” explicitly, but in any case it includes national parliaments. Under the case-law of the European Court of Human Rights, Article 3 of the First Protocol applies only to the “legislature” or at least one of its chambers if it has two or more. The concept “legislature” does not necessasarily mean only national parliament; it has to be interpreted on the basis of the constitutional structure of the state in question. In the case-law of the European Court of Human Rights the ambit of the Article 3of the First Protocol has been extended to the European Parliament. Article 3 of the First Protocol is not applied to the elections of the Head of State, to referendums, to elections of local authorities which do not exercise legislative powers. The third and fourth parts of the paper deal in more detail with issues concerning the right to vote and the right to stand for election in the judgments of the European Court of Human Rights. The right to vote is not a privilege; the presumption in a democratic state must be in favour of inclusion; universal suffrage has become the basic principle. Any conditions imposed must not thwart free expression of people in the choice of legislature, they must reflect the concern to maintain integrity and effectiveness of an electoral procedure aimed at identifying the will of people through universal suffrage. Exclusion of any groups or categories of the general population must accordingly be reconcilable with the underlying purpose of Article 3 of the First Protocol. States enjoy considerable latitude to establish in their constitutional order rules governing the status of parliamentarians, including criteria for disqualification. Under the case-law of the European Court of Human Rights the notion of “individual rights” or “subjective rights” to stand for election under Article 3 of the First Protocol have mostly been confined to physical persons, however it has been recently accepted that when electoral legislation or the measures taken by national authorities restrict individual candidates’ right to stand for election through a party list, the relevant party, as a corporate entity could claim to be a victim under Article 3 of the First Protocol independently of its candidates.
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