Critical Review of Jurisprudence

• Kurnosov, Dmitry 1

Abstract

During the past 30 years, the European Court of Human Rights (ECtHR) has been constantly expanding its footprint in the area of democratic rights. However, the Court’s approach to election cases has been arguably more cautious compared to its jurisprudence on freedom of speech, association and assembly. Despite a growing body of scholarship on the ECtHR and democratic processes, this caution is yet to be adequately contextualized. This article aims to fill the gap by developing a normative model of how external considerations affect the ECtHR election jurisprudence. American judge-scholar Richard Posner has proposed pragmatic adjudication as a blueprint for incorporating external considerations into political disputes before the courts. I rely on this blueprint to gauge the level of deference to respondent governments in election cases at the ECtHR between 1987 and 2020. I find that, while the Court gives states wide leeway over political competition, it is less deferential when cases concern access to political process. At the same time, the ECtHR increasingly relies on procedural oversight to detect unfair electoral practices without changing the general distribution of competences.

• 1Postdoctoral Researcher, University of Helsinki Faculty of Law, Finland