Supranational Courts and The Law of Democracy: The European Court of Human Rights

Supranational Courts and The Law of Democracy: The European Court of Human Rights ABSTRACT This article involves a systematic exploration of the European Court of Human Rights’ decisions in cases involving the actual structure of the democratic process itself. These ‘law of democracy’ cases pose some of the most conceptually difficult and politically charged cases even for domestic courts, let alone for a supranational court tasked with enforcing democratic rights across the diverse ways the Member States have structured and institutionalized their democratic systems. In the court’s doctrinal terms, the question is how much of a ‘margin of appreciation’ the court should recognize for the various Member States to interpret and apply democratic rights in differing ways across their different systems of democracy. Focusing on the court’s decisions regarding regulation of political advertising, access to the vote, and the spending of money to influence electoral outcomes, the article concludes that the court has recurringly in recent decades entered into these areas with bold initial decisions, only to be forced to back down in response to the powerful political backlash such interventions have spawned, particularly in certain Member States. This pattern suggests that a supranational court has trouble mobilizing the political legitimacy required to sustain acceptance of its decisions involving such morally powerful issues such as how different countries structures their systems of self-governance. 1. INTRODUCTION The ‘margin of appreciation’ (MA) is a principal means through which the European Court of Human Rights (ECtHR) sometimes defers to the national democratic and judicial processes within the Member States. The doctrine reflects the precarious political position of a supranational constitutional court tasked with applying ‘human rights’ that are framed in the European Convention on Human Rights (ECHR) in general, universal terms to the differing institutional forms and cultural understandings of democracy in the signatory states. By acknowledging an appropriate MA in how these rights are understood across different countries, the ECtHR essentially struggles to balance the legitimate role of democratic self-governance in the Member States with the legitimate demands of human rights and the ECHR. Put another way, the MA reflects the court’s view that not all human rights recognized in the ECHR should be understood as universal, at least in application. Democratic states can legitimately interpret these rights differently, to some extent. As Yuval Shaney’s contribution to this Symposium documents, the ECtHR has identified a variety of specific factors that influence how it applies the MA, including the nature of the right involved, the importance of the state interests at stake, the processes the state uses to enforce the right and the degree of European consensus about the proper implementation of the right in question. But underlying these specific doctrinal factors is the more general question of the extent to which rights-adjudication in the court ought to defer to the democratic processes in the Member States. But how does the court understand the nature of democracy itself? To examine that question concretely, we can explore the subset of cases in which the ECtHR is asked to judge the structure of democracy itself in various Member States. In an important set of cases, the court has been asked not to weigh the rights of individuals against state interests in matters like national security, but to determine whether the very processes of democracy themselves are structured in a manner consistent with the ECHR. Among the human rights, the Convention expressly protects are some of the central rights of democratic participation: the right to freedom of expression, thought, assembly and association (but not the right to vote, as discussed further below). How does the court apply these rights to the different ways democracy is institutionalized and structured in various states? Does—or should—the court embrace the view that there is a universally correct way to structure the rights of democracy? Or does—and should—the court apply the MA doctrine to the structure of democracy itself? The national courts of most of the Member States also, of course, apply their domestic constitutions to assess the constitutionality of their own democratic processes; how should the supranational ECtHR take the views of domestic courts into account on these questions? To shed light on the debates about the proper role of the MA doctrine, this article, therefore, proposes to engage that question more directly by exploring how the court assesses the structure of democracy and democratic rights themselves. The article will do so focusing on three areas in which, over time, the ECtHR has confronted challenges to the fundamental democratic processes of various states: challenges to the role of political speech in elections; to the rules concerning how elections can be financed; and to judgments about who can be excluded from exercising the right to vote. There are other aspects of democratic processes the court has confronted, particularly a series of cases testing whether certain kinds of purportedly ‘anti-democratic’ political parties can be banned or restricted under the ECHR, but those cases have already received sufficient attention in the academic literature.1 As Mikael Rask Madsen has insightfully noted, starting in the 1970s, the ECtHR began to transform its role dramatically.2 Before then, the goal of the 1950 ECHR and the ECtHR had been primarily understood as a means to resist the lapse back into totalitarian regimes that had preceded WWII, and to serve as a bulwark against Soviet expansionism into Western Europe.3 As originally conceived, the court was seen as protecting against only ‘the more severe violations of human rights’4 and not as a means to change the practices of Member States to bring them into line with an ever-evolving understanding of what human rights meant; human rights activism in Europe in these years was focused on non-democratic governments, such as those in Spain and Portugal. But in the 1970s, the self-conception of the court’s role began to shift, accompanied by a changing jurisprudential philosophy. Reflecting changes in the larger political context of Europe, such as the end of colonialism, as well as the broader emphasis on human rights exemplified in President Carter’s emphasis on this ideology from the USA, the court began to itself become a major institutional factor pushing for the deeper integration of Europe and the ECHR began to be transformed into a genuine regime of law for, and within, the Convention states.5 Methodologically, the court began to talk of the Convention as ‘a living instrument’; the court embraced a dynamic approach to interpreting the ECHR; and the court insisted that the rights of the Convention had to be giving ‘practical effect’.6 This led the court into a far more active and central role in seeking to impose on the Convention states a more uniform set of legally binding understandings concerning the content of the rights recognized in the ECHR.7 In addition, when Protocol No 11 took effect in 1998, it made it mandatory that states permit individuals (not just governments) the right to petition the court.8 Today, the court has ‘de facto supreme jurisdiction over human rights in Europe’, in the words of some experts.9 As we shall see, this transformation in the ECtHR has also extended into issues dealing with the structure of the basic democratic processes within the Convention states. In recent decades, the ECtHR has taken on the role of determining whether the democratic processes within otherwise democratic states are nonetheless consistent with the court’s understanding of the democratic rights embedded in the ECHR. At times, this has led the court to condemn ways of organizing democracy that are shared across many Member States, but which the court nonetheless concludes, even absent widespread political consensus across the Member States, violate the Convention. In reaching these kinds of decisions, the court has paid formal rhetorical service to the importance of granting states a MA in constructing their democratic systems, while in practice the court has effectively imposed more of a singular vision of democracy on the Member States. The court’s actions in the sphere of cases involving the organization of democratic politics have been erratic; the pattern of decisions shows a series of forward movements to apply the Convention aggressively, followed by a significant retreat that is difficult to explain or rationalize in purely doctrinal terms. Instead, the court has learned that judicial intervention into the way the democratic processes of democratic states are designed can trigger some of the most significant domestic political backlash against a supranational court like the ECtHR. National polities appear to experience perhaps the most powerful sense of moral ownership over the terms of their own systems of democratic self-governance. As this article shows, when the court intervenes to declare a longstanding aspect of those systems now to be in violation of an evolving ECHR—as the court interprets it—there has been a powerful reassertion of national self-determination against the court. This has led, in at least one well-known instance, to the court’s declarations being affirmatively and aggressively defied by the UK10 In other areas, the court has ended up crafting rules that appear to apply differently in the less powerful than in the most powerful Member States. Or the court has been forced to back down from its most aggressive initial rulings. Section I of this article identifies the general conceptual and practical issues that arise from the context of a supranational court seeking to apply the democratic rights in a charter like the ECHR to the democratic systems of nation-states. Section II examines how the ECtHR has played this role in certain key areas involving the organization of democracy. The conclusion raises larger questions about what kind of role the ECtHR ought to play in this area in the future, and what role the MA ought to play, in light the ECtHR’s experience to date. 2. General Considerations Involving Constitutionalizing Democratic Politics Even for domestic constitutional or High Courts in democratic states, the question of how to apply individual rights to the processes and structures of democracy is an exceptionally complex one. On the one hand, few roles seem more important for such courts than protecting the integrity of the democratic process; from a theoretical perspective, it has long been argued that the most justified role for constitutional courts is ensuring that the processes of democratic debate, decision-making and elections remain open and fairly structured.11 Moreover, the temptation for those currently in power to use that power to structure in their favour, the rules of democratic contestation is clear and, by this point in our experience with democracy, well known.12 The need for judicial protection of the fundamental rights of democratic engagement is widely recognized and reflected in the ECHR itself. Yet at the same time, an aggressive judicial role in overseeing the way a polity structures its democratic processes can be highly problematic.13 There is general consensus among democratic countries on certain core features of a legitimate democratic system, but beyond this core, there are many diverse ways of institutionalizing and organizing a democratic system—with the differences between proportional representation and first-past-the-post systems being the most immediate and obvious. In addition, polities do not create a system of democracy at one moment in time and then leave it statically in place ever after; part of the nature and justification of democracy is that polities will continually debate what makes for a fair and legitimate democratic system and potentially modify their design in response to changing public preferences (though doing so can, of course, be difficult as a practical matter, given the vested interests that coalesce around existing forms of politics). Anytime judges conclude that individual rights are violated by the way a polity chooses to structure its processes, outside of the core area of consensus on the content of these rights, the courts risk freezing in place one vision of proper democratic processes over another. Constitutionalizing one understanding or another of the various rights of democracy takes off the table democratic decision-making about how democracy itself ought to be structured. Americans are well aware of this dynamic from the campaign-finance area; because the Supreme Court in the USA has concluded that the spending of money on campaigns is part of constitutionally protected speech, many options for how to change the system of election financing in the USA are taken off the table. If the democratic rights courts were enforcing were specific enough, this tension might be reduced. But in both domestic constitutions and international texts like the ECHR, these rights are typically framed in highly general terms, such as the right to freedom of expression, or to political assembly and association. As the oldest constitution in continuous force, the American Constitution offers one model of how these rights are defined textually: the American Constitution simply defines basic rights of free expression or the right to petition the government in very general and broad, indeed absolutist, terms. More modern constitutions tend to adopt a different model, in which rights are first enumerated, then accompanied with a set of legitimate limitations that exist on the scope of those rights. The ECHR takes this form. But this second structure of textual rights definition does not provide much more specific guidance to courts. The limitations recognized are themselves also typically framed in general and fairly abstract terms that provide little precise guidance on how the rights of democracy and their legitimate limitations are to be applied in concrete cases. Depending on how broadly courts are prepared to generalize from the basic democratic rights, courts can quickly slide into a position of remaking broad aspects of a country’s democratic system; the American Supreme Court, for example, has said that the right to vote means the right to ‘an equally effective voice’;14 the court has never developed that line of reasoning in practice, in part because who knows what structural changes would be thought to be necessary to ensure ‘equally effective voice’—a concept that is almost certainly unrealizable in any event. But this stands as an example of how small the distance is between textual democratic rights and judicial interpretations of those rights that could have sweeping implications. Thus, given the thin guidance available to courts from the texts of charters like the ECHR, judges inevitably have a great deal of discretion in deciding how the rights of democracy are to be applied in specific cases. And depending on how that discretion is exercised, it can lead courts into dramatic restructuring of a polity’s democratic institutions. In addition, courts run particular risks when they engage with the political process. To the extent there are clear winners and losers in partisan or ideological terms from judicial decisions, there is the likely prospect that courts will be perceived as themselves partisan political actors supporting the side that benefits from the courts’ rulings. That risk is all the greater when it is obvious in advance which set of interests or partisan actors will benefit from a court ruling one way or the other. Partly for that reason, the political backlash against courts for intervening in the democratic process also tends to be greater. And the perception that courts are taking over citizens’ moral right to define the terms of self-government for themselves can also be distinctly aroused in the process of judicial determination of the ‘rights’ of democratic politics. If courts were enforcing textually clear and specific rights, that would perhaps reduce these pressures, but as already noted, that kind of clarity tends not to exist in the way texts define the rights of democracy. For these reasons, the oldest constitutional court in the world, the US Supreme Court, was extremely reluctant for most of its existence to become enmeshed in defining the content of ‘democratic rights’. The court referred to these as matters of ‘political rights’ and proclaimed that courts did not have a role to play in enforcing these rights; they were to be enforced through the processes of democracy themselves. Only starting in the 1960s did the Supreme Court abandon this view and begin to take on a significant role in concluding that the structures of democracy in various American states violated the rights the Constitution guaranteed. But in recent decades, starting with the post-WWII constitutional courts of Europe, constitutional and High Courts have come to view enforcement of ‘democratic rights’ as one of their most important functions. Thus, courts around the world today, including the ECtHR, have come in recent decades to take a more active role in overseeing the processes of democracy.15 If courts were enforcing democratic rights whose core content was clear against a few outlier jurisdictions or states, courts might be on firmer ground as they take on this role. But as we shall see soon, in the cases that the ECtHR has confronted in recent decades—involving political advertising, campaign finance or prisoner access to the vote—the democratic practices of the Convention countries span a broad range. The cases that make up most of those involving democracy in the ECtHR today are not ones enforcing core, consensual understandings of democracy widely shared, but ones in which the Member States endorse diverse democratic understandings. Thus, even domestic courts enforcing domestic constitutions face powerful competing pushes and pulls in carving out their appropriate role in enforcing vaguely defined democratic rights. Yet those pressures are compounded for a supranational court such as the ECtHR. That court sits atop the democratic systems of 47 countries covering roughly 800 million people. Those various countries differ greatly, especially since the ascension of the Central and Eastern European countries to the Convention, in their histories, cultural understandings and institutional designs of democracy.16 Some of these democracies are longstanding and securely established; others are more recent and more fragile. Yet the interpretations of rights, the ECtHR generates are designed to apply uniformly across these countries. Indeed, while some commentators go so far as to call the ECtHR a constitutional court for Europe with respect to human rights, others suggest the court has not achieved all the attributes of typical domestic constitutional courts and is still an institution in flux.17 Moreover, although the term legitimacy is overused, there are indeed particularly pressing questions about how legitimate the decisions of a supranational court will be perceived to be within the domestic democratic systems of various Member States. While even domestic constitutional courts can be controversial, those courts at least are embedded within the democratic systems of their particular states. Domestic democratic understandings inevitably mediate the role of these courts, at least to some extent. Judges are sometimes appointed through processes that incorporate some role for domestic political forces to find expression; the judges are likely to pay attention to local media and to have internalized the political culture of their particular countries. While there is of course a political process involved in the appointment of judges to the ECtHR, there is no democratic ‘State’ at the Convention-wide level within which those judges are embedded, and they are considerably more distant from the domestic systems of most of the Member States, other than their own, than any domestic judge. Each state has one judge on the court, meaning that Germany and tiny San Marino have the same amount of representation; and the judges now have non-renewable 9-year terms.18 Particularly when judging whether the democratic processes within democratic states are structured consistently with the ECHR, as the court understands it, the ECtHR judges are more likely to be viewed as lacking legitimacy than their domestic counterparts in ordering the restructuring of a state’s basic democratic processes.19 Compliance rates with ECtHR judgments were generally good in the court’s early years,20 but today, the court’s judgments ‘are occasionally ignored and some national bodies – including constitutional courts – simply refuse to follow them’.21 Non-compliance in major countries is also becoming more visible, which might further increase non-compliance.22 Indeed, at times, the ECtHR has itself recognized the fragility of its legitimacy, albeit in cases not involving the even-more difficult issues of the proper design of democratic processes.23 The role, then, that a supranational court should take in evaluating challenges to the democratic practices of many and diverse states, when enforcing a charter, like the ECHR, that inevitably defines the rights of democracy and their limitations in highly general terms—and, as a result, leaves the courts considerable discretion in how to interpret and apply those rights—is thus an exceptionally freighted one. Section II now turns to exploring the role the ECtHR has carved out for itself in this area. 3. The ECtHR’s Attempt to Define Democratic Rights This section focuses on three areas of the court’s jurisprudence concerning claims of democratic rights: the right to engage in political messaging through paid advertisements; the right to vote; and the right to spend money to attempt to influence electoral outcomes. A. Restrictions on Paid ‘Political Advertising’ Nowhere is the ECtHR’s tentative and ambivalent stance towards its role of overseeing national democratic processes more evident than in its inconsistent and intellectually meandering series of cases addressing the legality of bans on paid political advertisements. Political advertisements are what would be called ‘issue ads’ in American election law; they are not election ads, which advocate the victory or defeat of particular candidates or parties, but ads designed to move public opinion on particular issues. In the Convention countries, the large majority of the Western European countries statutorily ban paid political advertisements on certain media, along with several countries from Central and Eastern Europe (the specifics of these bans vary).24 Some countries in Western Europe, by contrast, do permit these ads, as well as many of the Central and Eastern European countries. Typically, these restrictions apply only to non-print media, such as television and radio. The breadth of these restrictions is remarkable from an American perspective, in particular. Unlike regulation of the more narrowly bounded electoral process, which applies only during the limited time frame of what is known as ‘the election period’, these restrictions apply at all times. The restrictions apply to political parties and candidates, as well as any organization whose paid messages are directed to a political end. Consider the structure of the bans in the main cases that have come before the ECtHR. In Norway, for example, the relevant 1992 statutory provision stated that: ‘Broadcasters cannot transmit advertisements for life philosophy or political opinions through television. This applies also to teletext.’25 In Switzerland, the law provided that: ‘Religious and political advertising is prohibited, as is advertising for alcoholic beverages, tobacco and medicaments. To protect juveniles and the environment, the Federal Council may ban other advertisements.’26 In the UK, the 2003 Act (enacted without dissent)’s prohibitions on paid political advertising on television and radio states that the prohibition is violated by ‘(a) an advertisement which is inserted by or on behalf of a body whose objects are wholly or mainly of a political nature; (b) an advertisement which is directed towards a political end; or (c) an advertisement which has a connection with an industrial dispute’.27 The principal justification for these bans is essentially that they level the playing field of public debate by avoiding the risk that those with greater resources will dominate the most important modes of communication affecting public discourse. Thus, the UK Parliament had concluded that the prohibition was necessary to ‘avoid the unacceptable risk that the political debate would be distorted in favor of deep pockets funding advertising in the most potent and expensive media’.28 Arguing that the objective of the law was to ‘enhance the public debate’, the UK asserted that ‘[u]nregulated broadcasting of paid political advertisements would turn democratic influence into a commodity which would undermine impartiality in broadcasting and the democratic process.’29 In addition to this justification, states argue that such restrictions improve the ‘quality’ of public debate, because paid political ads on issues are conveyed without any immediate opposition or critical journalistic filter, and hence would paint a ‘manufactured picture’ not all that different in tone or substance from that ‘found in propaganda in totalitarian regimes’.30 Some states also claim the absence of such bans would increase social divisiveness. Context matters in assessing how the ECtHR has applied the human rights provisions of the Convention to these restrictions. Thus, in the first of the most important cases in this series, VgT (2001), the challengers were an organization devoted to animal protection, which centered on the use of animals in industrial food production. They wanted to run a paid ad showing poor conditions for pigs reared for industrial food production which ended with the line: ‘Eat less meat, for the sake of your health, the animals and the environment.’31 The ad, they argued, was in response to commercial touting the meat industry. Animal rights were also the basis for the challenge in the recent Animal Defenders case from the UK, in which an NGO wanted to run a 20-s television ad against locking up primates; the ad involved the image of an animal cage in which a girl in chains slowly emerged from the shadows. In yet other cases, the challengers have been minor political parties; in Norway, ‘the Pensioners Party’ wanted to run ads identifying that party’s issues that ended by asking for the viewer’s vote.32 The party argued that, as a minor party, it had trouble attracting media attention and did not have the same access the larger parties had to debates and other initiatives in the news, nor was the Pensioners Party identified in opinion polls. Absent these paid ads, the party argued it had little possibility of being heard. From the perspective of American constitutional law concerning the freedom of speech, these are all extremely easy cases: they involve content-based regulation of political communication and would be transparently unconstitutional. Indeed, most American constitutional lawyers would likely find it shocking that other democracies have these bans on paid political ads; legally sophisticated Americans are perhaps aware that European states ban hate speech, or use public financing of elections, but the idea that could be legal to ban paid advertising on public issues of the day would probably surprise even these sophisticated American lawyers, as well as astound them. These would not be controversial issues in American constitutional law; these restrictions would not be unconstitutional for reasons having anything to do, for example, with the controversial US Supreme Court decision in the Citizens United case,33 but for more basic and fundamental reasons than that. While ongoing doctrinal and political controversy roils the USA over whether government should have the power to regulate spending on election-related speech, there is overwhelming doctrinal consensus, and always has been, that the free speech guarantees of the First Amendment would be violated were the government to try to ban paid ads that seek to persuade people on matters of public policy outside the context of elections. Indeed, in the USA, the issue has been whether it is possible conceptually, legally and practically to regulate differently in the domain of general public debate—where regulation is widely understood to be off limits—and the domain of elections, where reformers focus.34 But the notion that the government could ban animal-rights groups from taking out television ads to promote their perspective on that issue would be immediately ruled out as unconstitutional. From its position as a supranational court, faced with different approaches in practice to this question across the Convention countries, how does the ECtHR instead address the issue? In all these cases, the restrictions had been approved by the highest level domestic court applying domestic law, including any domestic constitution. The legal challenge arises under Article 10 of the ECHR, the provision that protects ‘freedom of expression’ as a fundamental human right across the signatory countries. After recognizing this right in section 1, Article 10 goes on in section 2 to delimit in general terms the kind of justifiable reasons that states can limit this freedom by law if such limits are ‘necessary in a democratic society’ and rest on certain legitimate aims. The enumerated legitimate aim states offer for these restrictions is ‘the protection of the rights of others’; fairly quickly in its jurisprudence and without extensive analysis, the ECtHR accepted that the ‘rights of others’ could be understood to include the right to ‘protect the democratic process’ and the ‘impartiality’ of broadcast media on matters of public interest.35 Thus, the cases turn on whether these restrictions are also ‘necessary in a democratic society’. One sign that the ECtHR cannot resolve what its proper role ought to be in overseeing the designing of democratic processes is that the court cannot reach consistent answers on a technical or methodological question. The question is whether the court ought to address legislatively created regulations of the political process, such as these restrictions, as a matter of what American courts would call the ‘facial’ constitutionality of the restrictions or at the level of the effect in application of these restrictions on a case-by-case or ‘as applied’ level of analysis.36 In the ECtHR context, this involves review of what are called ‘general measures’, meaning policies that operate in terms of general rules. If the court assesses Convention compliance in terms of the ‘facial’ constitutionality of these provisions, that means evaluating whether the rule as a rule has sufficient justification; if it does, then the rule is valid, regardless of whether as applied in specific contexts the operation of the rule might seem overinclusive, with respect to the general purposes of the legislation. If the court takes an as-applied approach, in contrast, the court then asks on a case-by-case basis whether the legitimate justifications for such restrictions are actually furthered or not—in the court’s view—by permitting the legislative rule to be applied to the particular actor before the court. Initially, the ECtHR was somewhat sympathetic to these kinds of challenges to bans on political advertising through employing an as-applied method to resolving these cases.37 In the VgT case, the court accepted the general legitimacy under the Convention of these bans. But having done that, the court decided to apply Article 10 differently depending on the type of group and ads involved. Thus, the court looked at the particular animal rights group involved there and concluded that it was too small and financially low scale to pose the risks the ban was designed to avoid; the court concluded that it did not constitute ‘a powerful financing group which, with its proposed commercial, aimed at endangering the independence of the broadcaster, at unduly influencing public opinion or at endangering equality of opportunity among the different forces of society’.38 In addition, the court suggested that the fact that these bans applied only to certain media and not others undermined the claim that that the measures were ‘necessary’ in a democratic society. Through this style of decision, the ECtHR seemed to be position itself as a case-by-case arbiter throughout Europe of which kinds of groups and ads to which these bans could be applied. Which groups would be financially ‘small enough’ to be protected under Article 10? Which ads would or would not ‘unduly influence’ public opinion or ‘endanger equality of opportunity?’ Applying this same approach to the efforts of a minor political party to run its ads in Norway, the court similarly applied this case-by-case approach and concluded that a minor political party was not the kind of group meant to be a target of the ban, which was aimed at parties that ‘because of their relative financial strength might have obtained an unfair advantage over those less endowed by being able to spend most on broadcast advertising’.39 The court accepted that the paid ads were the only effective way for the minor party to get its message out, and it was also willing to judge that nothing in the ads would lower the ‘quality’ of public debate. Yet having decided these cases in the last 15 years, the ECtHR turned around in its most recent confrontation with these issues and took a fundamentally different approach and reached essentially the opposite conclusion. After the VgT case, some of the Convention countries modified their restrictions on political advertising, in efforts to comply with the decision.40 The UK, however, did not. As noted above, the UK restrictions are particularly broad: they are triggered by the political nature and character of either the organization paying for the ad or the political character and content of the ad itself. The term ‘political’ encompasses most issues of public interest and it applied outside any narrowly defined ‘electoral period’. As in VgT, the challengers were an animal rights organization here too; as noted above, they wanted to run ads condemning the keeping and exhibition of primates and their use in television. Based on the court’s prior decisions, it would seem clear that the court would require the UK to make an as-applied exception to permit the Animal Defenders organization to run its paid ads. Yet the court, nonetheless, decided to uphold the UK’s restriction and refusal to permit this group to run its ad. I will first explore how the court justified this result in legal terms, and the debate within the sharply divided 9-8 court, before turning to assessing the larger political and cultural context in which this decision took place. Formally, the court began its analysis by proclaiming that the MA was a ‘narrow one’ in cases such as this, given that the regulation arguably impinged on rights of free expression. Yet having announced that, the court later in the opinion manifested its uncertainty in overseeing national democratic processes by turning around and ‘recalling’ that ‘there is a wealth of historical, cultural and political differences within Europe so that it is for each State to mold its own democratic vision’.41 As Oddny Arnardottier points out in her contribution to this Symposium, the court then relied heavily on what it considered a highly deliberative legislative process within the UK that had produced this restriction, along with the processes of judicial review in the UK (both the High Court and the House of Lords) that had held the restriction to be consistent with the Convention, as the domestic courts interpreted the Convention. To the court, it seemed to matter both that the UK had a more than 50-year history of having such restrictions in place, that the UK parliament had extensively reviewed this restriction in the context of re-assessing communications policy more generally, and that in the recent Communications Act of 2003, the restriction had been re-enacted in Parliament without dissent—the court called the domestic processes in the UK ‘of central importance’ to its decision to uphold the restriction. Beyond accepting the judgment of UK authorities as to the necessity and proportionality of the restriction, the ECtHR’s decision actually contains precious little actual analysis explaining why it is now upholding this kind of restriction and exactly why this case is so different from the prior ones coming out the other way. Indeed, the key move in the opinion is the court’s implicit shift to analysing this kind of restriction in ‘facial’ rather than ‘as-applied’ terms; the court hardly even directly acknowledges this shift, let alone explains why such a radical break from the prior cases is warranted. The court essentially simply announces that to determine proportionality, it must primarily assess the legislative choices underlying the policy—that is, it must assess the policy as a rule, on its face. The closest the court comes to acknowledging how dramatic a change it is making from its prior cases is through the (mysterious and incoherent) statement that ‘the more convincing the general justifications for the general measure are, the less importance the Court will attach to its impact in the particular case’.42 In other words, if a measure is really valid, the court will not engage in any as-applied analysis; but if a measure is partially pregnant—if it is merely valid, but not really really valid—the court might engage in as-applied, case-by-case application of the rights analysis the Convention entails. Yet, these are not the only technical areas in which the court’s analysis is radically different from that in the Swiss and Norwegian cases, while the court in those cases considered singling out only radio and television for the restrictions, as opposed to including newer media as well (such as the Internet) to undermine the state’s case for how necessary the measure was, in Animal Defenders the court concluded that precisely this difference marked a ‘coherent’ distinction based on ‘the particular influence of the broadcast media’.43 And while the court noted that there had been some movement away from employing these restrictions in the Convention states, partly in response to the court’s own earlier decisions, that too did not weigh heavily against the UK restriction, for the court celebrated the value of national diversity in choosing how to structure the democratic process. In a cogent concurring opinion, the British judge argued more explicitly that facial analysis was the appropriate judicial methodology to apply to legislative regulations of the democratic process and much more directly acknowledged the conflict with the court’s earlier cases. He essentially urged the court to overrule those earlier decisions. And an impassioned eight-Justice dissent correctly and sarcastically proclaimed that the ‘inescapable conclusion’ was that a prohibition on political advertising was proportionate and necessary for Swiss democracy, but not for that in the UK. Calling this a ‘double standard’, the dissenters applied the kind of analysis that would be much more familiar to an American court, calling the restriction ‘well-intentioned paternalism’ and a ‘benevolent silencing of all voices (except those of the political parties)’ that ought to violate Article 10.44 Even sophisticated academic commentators on the Court who praise the decision in Animal Defenders acknowledge how surprising the outcome was, in light of the prior cases on this issue.45 I agree with the editors of one of the leading social–scientific studies of the court that understanding the ECtHR, like understanding all courts, requires ‘analysis of the interdependency between the evolution of European human rights law and the changing socio-political and institutional contexts in which this development is embedded’.46 One cannot understand the dramatic change in approach taken in Animal Defenders without appreciating how much the court’s approach to other areas of the law of democracy, under the ECHR, spawned a profound political backlash against the court in at least some countries, particularly the UK. There is a direct linkage, in my view, between how the ECtHR addressed other areas involving claims of democratic rights, particularly the issue of access to the vote the next section addresses, and the court’s about face in the political advertising cases. After surveying two other areas of the court’s work concerning democratic rights, we will look at the broader political and institutional context in which the court has come to function. B. Access to the Vote for Prisoners A similar battlefield pattern of advance and retreat characterizes another series of ECtHR cases involving the structure of democracy. These cases involve direct access to the ballot box, and arise in the context of those disenfranchised because they have been convicted of crime and are currently serving prison sentences. In recent years, this has become a significant matter of political controversy in the USA, but there, the issue primarily involves those who are disenfranchised even after having fully completed their sentences.47 In the ECtHR cases, the issue primarily involves those currently in prison. The ECtHR has faced enormous political backlash from the UK in this area, a backlash that has surely been on the minds of the judges in subsequent ECtHR cases involving democracy. The saga begins with the well-known Hirst case from 2005. A 1983 UK statute barred convicted prisoners during the period of their penal detention from voting in national or local elections.48 Among the Convention countries, 18 imposed no restrictions on prisoner voting; 13 barred voting; and 12 imposed some restrictions on prisoner voting. The UK provision had been unanimously held by the domestic courts to be consistent with the ECHR, but the ECtHR declared that the UK ban violated Article 3 of the ECHR. Despite the fact that the UK has a relatively small prison population compared to the USA (though average for Europe),49 the decision triggered an enormous outcry in the UK, both in Parliament and the media, and to this day, the UK has continued not to implement the Hirst decision—in probably the single most noteworthy act of political defiance of the court by a major Western European country. Hirst exemplifies the ECtHR in its boldest and most assertive phase. The original ECHR does not actually contain any provision that expressly protects the right to vote, unlike the other individual rights provisions in the Convention. Presumably this absence reflects the fact that the contracting states understood they varied in some respects regarding aspects of how they regulated the voting process. Instead of any individual-rights recognizing provision, the Convention contains a more structurally oriented committed to free and fair elections. Thus, Article 3 of Protocol 1 to the Convention provides that: ‘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.’50 The court acknowledged that ‘at first sight’ this provision did not appear to guarantee any individual right, but it reaffirmed its earlier momentous decision interpreting the provision to nonetheless secure an individual right to vote and hold office.51 The court also acknowledged that the MA was ‘wide’ in this area.52 Yet, the court concluded that the UK law had to be subjected to the kind of analysis required to protect those rights the Convention expressly granted, namely whether the law reflected a legitimate aim and was proportionate to its purpose. Hirst also exemplifies the bizarre methodological approach we have seen in other cases from the ECtHR in the democracy area. The court did not hold that disenfranchisement for those serving sentences was a per se violation of the Convention; it recognized that states were pursuing a legitimate aim in disenfranchising at least some serving time. As examples, the court observed that those who had abused a public position or whose conduct threatened to ‘undermine the rule of law or democratic foundations’ could be barred from voting while serving their sentences.53 Thus, the ban was not unconstitutional in principle. Instead, the problem with the UK ban was procedural: the problem was that the bar was automatic and applied to all convicted prisoners. At some point, the court seemed troubled by the fact that there was no judicial procedure involved in determining whether a specific convicted individual should lose the right to vote. Yet, the court left it mysterious as to what specific questions should be adjudicated on a case-by-case basis and what kind of evidence would be sufficient to enable a judge to determine that loss of the right to vote in a specific case was appropriate.54 It was the automatic nature of the rule, which applied to all those convicted of crimes serious enough to warrant imprisonment, that led the court to conclude that the UK rule could not be sustained. Thus, Hirst reflects, again, the court’s strange discomfort with legislative rules that function as rules; the decision requires some kind of individualized determination in each case as to whether disfranchisement is warranted, based on some unclear calculus of considerations (the decision also seems at odds with the court’s decision 7 years earlier upholding the principle that deprivation of the vote for criminal conviction does ‘not affect the expression of the opinion of the people in the choice of legislature’.).55 The ECtHR presumably did not anticipate the outrage with which Hirst would be greeted in the UK. Indeed, aspects of the opinion suggest the court might have thought the ban rested on outdated moral judgments that the UK had not re-visited and that did not necessarily reflect contemporary values in the UK. If that was the court’s view, it was disastrously wrong. For Hirst was one of the most important triggers to the most consequential political backlash against the court since its creation. Indeed, Hirst has become the source of one of the greatest tests between the court and national democratic authorities in the court’s existence. To this day, the UK has not complied with the Hirst decision. It is hard to overstate the resistance in the UK, across the political spectrum, to complying with the decision in Hirst. Neither Labor nor Conservative governments have sought to implement the decision. In a non-binding 2011 vote, Parliament overwhelmingly rejected any change to the existing legislation. In 2010, the ECtHR tried to add to the pressure on the UK with its follow-up judgment in the Greens case, in which the court used its new ‘ilot judgment procedure’ (in which the court orders a specific remedy, in contrast to ordinary judgments that leave to the states the means of compliance) to instruct the UK to introduce legislative proposals within 6 months to comply with Hirst.56 A special Joint Committee of the UK Parliament was then created, which issued a report in 2013 that compliance would require only minor changes. But Parliament did nothing to act on the report. Upping the level of confrontation, the Committee of Ministers, which monitors compliance with the court’s orders and seeks to ensure implementation, passed the second of two resolutions highly critical of the UK’s defiance. Yet the UK continues to maintain its ban on prisoner voting. Moreover, Hirst has become the most visible flashpoint in the UK—perhaps because the issue is so easily understandable—in the conflict between domestic sovereignty over democratic processes and the authority of the court in Strasberg. Former Prime Minister David Cameron was vehement in his insistence that the UK would not comply;57 ministers of the government have cast the conflict as a matter of ‘democratic principle’. Similarly, when the UK took over leadership of the Council of Europe, during a Conservative and Liberal coalitional government, Prime Minster Cameron’s important speech on the future of the ECtHR invoked Hirst as a prime example of why there had come a need to rein in the court. Calling the prisoner voting rights issue a source of ‘democratic anxiety’ about the proper role of the court, Cameron asserted that the court had failed to recognize a proper ‘margin of appreciation’ when it came to the authority of the Member States.58 The shrinking MA the court was applying was the source of growing controversy about the court, Cameron asserted. Instead, he demanded that there be greater respect for subsidiarity and that the court was discrediting the notion of rights through decisions as in the Hirst case. These principles in Prime Minister Cameron’s opening speech eventually found expression in the jointly issued Brighton declaration, to be discussed below. Hirst also exemplifies another recurring feature of the ECtHR’s positioning concerning issues of the democratic processes of the Member States: the court’s felt need to back away from its initial bold ventures into this terrain. For by 2012, the court stepped back from Hirst to accept a rule-like policy on prisoner disenfranchisement from Italy that was in considerable tension with the position the court had marked out in Hirst. By statute, Italy effectively denied the vote to those sentenced to more than 3 years in prison and to those convicted of certain specific offences, regardless of the length of sentence, such as abuse of public office, ‘market abuse’ and offences against the judicial system. No provision existed for individual judicial determination of the appropriateness of the disenfranchisement; as in the UK, this was an automatic or blanket withdrawal of the vote from those convicted of certain crimes or receiving sentences of more than a certain length. Yet, now the court upheld this ban and sought to re-write the basis of Hirst. In the wake of Hirst, the first section the ECtHR in Frodl v Austria had invalidated an Austrian voting ban that applied only to those convicted of crimes of intent who had received sentences of more than 1 year. Frodl understood Hirst to require an individualized judicial determination before the vote could be withdrawn.59 And yet, the Grand Chamber in the Italian case, Scoppola, disclaimed that any such principle actually underlay Hirst. In language purporting to distinguish Hirst, the Scoppola Court now asserted that ‘[w]hile the intervention of a judge is in principle likely to guarantee the proportionality of restrictions on prisoners’ voting rights, such restrictions will not necessarily be automatic, general and indiscriminate simply because they were not ordered by a judge.’60 The court then upheld the automatic, general disenfranchisement of those sentenced to more than 3 years because ‘the measure is not applied, therefore, to all individuals sentenced to a term of imprisonment but only to those sentenced to a prison term of three years or more’.61 In the court’s view, this made the measure proportionate. (Hirst had been convicted for manslaughter, Scoppola for murder.) As a purely legal matter, it is hard to accept the court’s attempt to re-write the basis for Hirst.62 Instead, the decision in Scoppola is better seen as a fundamental retreat from the principles of Hirst, presumably in response to the critique of the court launched against the Hirst decision in the UK and the refusal of a major country to accept the decision in Hirst.63 As the dissenting judge in Scoppola wrote: ‘The present judgment offers a very narrow interpretation of the Hirst judgment and [is] in fact a retreat from the main arguments advanced therein. Regrettably the judgment in the present case has now stripped the Hirst judgment of all its bite as a landmark precedent for the protection of prisoners’ voting rights in Europe.’64 As in the campaign-finance area, discussed below, the ECtHR’s advance and retreat in this area has now put the court in an even more difficult position going forward. Once again, it has made itself the arbiter of questions of degree, rather than principle—in this context, with regard to which forms of prisoner disenfranchisement provisions are valid. Had the court stuck to the principle that only judges could make decisions about disenfranchisement, the court would at least have rested on a clear legal principle (although a bizarre one). Had the court ruled that disenfranchisement for criminal conviction was a per se violation of the Convention—or that disenfranchisement while serving a criminal sentence was a valid basis for disenfranchisement—the court would also have rested on clear legal principles. Instead, the court will now assess on a case-by-case basis whether particular criminal disenfranchisement provisions rest on ‘serious’ enough crimes or ‘long’ enough sentences. That approach is almost certain to create greater political friction with the Convention countries that restrict prisoner voting rights, to the extent the court upholds and rejects various provisions based not on clear, general principles, but on these judgments on much more nebulous questions such as ‘how long’ a sentence is long enough to justify loss of the right to vote while in prison. C. Campaign Finance The ECtHR has not yet faced many cases raising challenges to the more aggressive forms of campaign finance regulation that exist in many Convention countries compared to in the USA, and which could certainly be challenged under Article 10 as violations of the right to freedom of expression. But the way the court has intervened in its one major decision suggests that here too, the court might be setting itself up in a difficult position that the court might have to back away from should many future challenges be brought before it. Most European countries use public financing of elections and most systems of public financing require a panoply of ancillary regulations and restrictions to be effective. In particular, these systems typically tightly regulate or prohibit spending first, by the political parties, which receive the public funds, and then by outside, non-party entities as well. The spending by non-party entities is regulated out of concern that the purposes of public financing would otherwise be compromised; if those purposes include avoiding the ‘distortion’ that many European countries believe is created by unlimited private contributions or spending on elections, that purpose would be undermined if political parties could only spend certain amounts but private entities could spend whatever amounts they wanted. These restrictions on outside spending are designed to avoid the current situation of SuperPacs in the USA, where political parties are capped in the contributions they can receive, but SuperPacs are not if they spend their money only on independent advocacy. The case the ECtHR faced provided virtually the perfect circumstances to present the image of an overweening state seeking to oppress dissident political speech. Arising in 1998, the case again involved the UK, though in the 1990s, the court was prepared to take on the UK. Domestic law prohibited and made criminal any spending during the ‘election period’ in excess of the extravagant sum of 5 pounds (in the UK, the election period typically lasts 4–6 weeks, from the time the incumbent Prime Minister announces the date of the general election until it is held). The restriction applied to spending designed to promote the election of a particular candidate, but not to spending designed to express opinions or communicate political information more generally, including to support political parties. In addition to promoting political equality, the restriction was defended by the government as designed to prevent political debate from being ‘distorted’ by being shifted from matters of general concern to single-issue politics. Ms Bowman was a right-to-life activist who was concerned that the major political parties had endorsed no general policies with respect to abortion and related issues and left votes on these issues to the conscience of individual members of Parliament. She and her organization sought to inform the public, therefore, of how various individual candidates stood with respect to these issues; to do that, she arranged to have more than a million leaflets made and spread throughout the UK doing so. Doing anything to communicate such information costs more than 5 pounds, and she was charged with a criminal offence, with that charge upheld in the UK courts. The major political parties had made abortion an issue of private conscience for their parliamentary members, meaning there was no party position as such on the issue. From one perspective, then, Ms Bowman might be viewed as trying to force the political process, during the election period, to confront a major issue which the large parties had sought to keep off the agenda as too threatening to party cohesion. In a short, confident 14-6 opinion, the ECtHR held that this bar on outside spending violated Article 10.65 The court did not take issue with the general validity of spending restrictions, but with how low the limit had been set in the UK. The court simply concluded that the UK limit resulted for all practical purposes in a ‘total barrier’ to Ms Bowman publishing information with a view to influencing voters in favour of various anti-abortion candidates, though the material did not advocate voting for or against any specific candidate. The court did not examine the legislative or judicial processes in the UK that had led to the adoption of this policy in any detail, nor did it engage in significant comparisons of the level at which these limits were set in various Convention countries. But what does the Bowman decision mean in terms of how much the ECtHR is going to police the campaign spending regulations of countries throughout Europe? The court did not decide the case in terms of any broad general principle; in the USA, of course, the American Supreme Court has held that the First Amendment prohibits any restrictions on independent election spending. But the ECtHR instead decided Bowman in terms of questions of degree: at some point, a cap on third-party spending was too low to be valid under the ECHR. Of course, that raises the question of how the court is going to decide how low is too low. In response to the decision, the UK kept its spending restrictions, but raised the amount of the limit to 500 pounds in general elections and 50 pounds in local elections; no case has yet challenged those caps.66 The situation of Ms Bowman is compelling, from any perspective on democracy. Although she had a small organization behind her, she is much like the solitary pamphleteer, seeking to raise an issue the major parties were avoiding and to inform voters of the candidate’s positions. Can a democratic system really make it a crime to do that? Much like the animal rights organizations in the ‘political advertisement’ cases, she and her organization hardly look like the deep-pocketed commercial organization that reformers fear will undermine political equality by dominating the airwaves through greater access to financial resources. Thus, as in the early political advertisement cases, the court tried to carve out an exception for small players by declaring the UK system unlawful. Yet by going about that in the way the court did, it of course has put itself in a difficult, perhaps untenable position and created considerable legal uncertainty.67 Is the court actually going to decide—and on what basis—what levels of caps on third-party spending across Europe are high enough to be acceptable under the ECHR? Or, as in other areas of its confrontation with the basic democratic structures of the Convention countries, is the court going to back down after this initial foray into applying the right of free expression to caps on election spending? The affirmative right to freedom of expression in section 1 of Article 10 and the limitations in section 2 are all framed at a high enough level of generality—and do not address election spending specifically—that the text alone could be read to permit the court to uphold or invalidate all regulation on election spending, including by third parties. Yet, it is hard to imagine the court invalidating across the board these spending restrictions, which would be in effect to take the position the American Supreme Court took in Buckley v Valeo.68 Given the hostility to the way American elections are financed throughout much of Europe, few decisions would cause more of a backlash against the ECtHR than that. But at the same time, it was also too difficult for the court to accept the principle, when faced with a context like that of Ms Bowman, that all caps on third-party spending are consistent with Article 10. The court thus left itself in an undefined intermediate space, in which some caps are fine and others are not. My own speculation is that Bowman is going to turn out to be cabined in narrowly and not lead the ECtHR to invalidate many more spending caps, if further cases of this type are brought before the court. The domestic courts in some individual states might use domestic constitutional provisions to invalidate certain spending caps as violations of the right of freedom of expression. But even though the provisions in the ECHR on these matters read much the same way as many of the state constitutions of the contracting parties, the legitimacy and role of a supranational court is different. In recent years, we have seen the ECtHR back away from its more aggressive forays into declaring long-standing features of democracy in the Member States to violate the Convention. I suspect the same will be true in the area of campaign finance, and that Bowman will turn out to be a mostly symbolic case—one expressing that there are indeed some limits on how far states can go in shutting down third-party spending during election periods—that will not generate a series of cases declaring other limits invalid as well. 4. OF BRITAIN, BRIGHTON, BREXIT AND JUDICIAL EXITS Hirst, which received extensive coverage in the UK press, was perhaps the most significant catalyst for significant UK-led pushback against the ECtHR.69 As noted above, resistance to the court’s decision was immediate across the major political parties and Parliament unanimously re-enacted the ban the court had declared to violate the ECHR, and the UK continues to defy the court on this issue. Prime Minister David Cameron commented that ‘[i]f parliament decides that prisoners should not get the vote then I think they damn well shouldn’t. It should be a national decision taken in our parliament.’70 But Hirst was only perhaps the most charged, direct confrontation between the UK and the court; cases in which the court precluded the UK from deporting radical Islamic clerics similarly spawned intense British political reaction against the court.71 Calling the ECtHR a ‘court of fourth instance’, after the domestic courts, Prime Minister Cameron led an effort to rein in the court and explicitly invoked Hirst as an example of the court having gone too far. This resistance took concrete shape when the UK government took over the Chairmanship of the Committee of Ministers of the Council of Europe, in 2012. The UK led an effort to cut back on the scope of the court’s authority, for the first time in the history of the ECtHR.72 This effort culminated, initially, in the Brighton Declaration of 2012, a ‘watershed’ in the history of the ECtHR,73 in which 47 Council of Europe states agreed to amend the court’s charter. Although the final version of the declaration was milder than the initial drafts, it was clear to all that the message of Brighton was that some Member State governments were prepared to exercise their political muscle to constrain the court; indeed, since Brighton, the rhetorical challenges to the court have become more pronounced in many European countries.74 Protocol 15, which if it becomes adopted will give effect to the principles of Brighton,75 would add to the Convention’s Preamble an express reference to the principle of subsidiarity and the doctrine of the MA. The commitment to subsidiarity would mean that national authorities should be understood to have the primary responsibility for giving effect to the Convention’s rights. There was no mistaking the fact that Protocol 15 was designed to press the court to take a more limited role in overturning the judgment of domestic actors concerning the meaning of Convention rights, including the democratic rights that had been the basis for Hirst. After the drafting of Protocol 15, the ECtHR also became embroiled in the Brexit debate, as the decisions of the court to declare certain UK practices in violation of the Convention—such as the disfranchisement policy in Hirst—became flashpoints in that debate. All these developments—the immediate reaction to Hirst in the UK, the adoption of Protocol 15, the critique of the court in the Brexit debates, and then Brexit itself—will surely lead to a more chastened court, as perhaps is visible already in recent decisions such as the Animal Defenders case. Indeed, the ECtHR might already be signaling one ‘exit strategy’ it will take to remove itself further from too explosive a continuing engagement with issues of democratic design within democratic states. My co-author, Pamela Karlan, has identified various exit strategies the US Supreme Court has taken for extricating itself from complex, charged areas of democratic institutional design, after the Supreme Court took some initial measures to correct extreme deficiencies regarding American democratic structures.76 Having felt it necessary to undertake an initial intervention, the American Supreme Court came to recognize the risks of putting itself in the position of taking on a continuous role in overseeing certain aspects of American democracy; in response, according to Karlan, the court developed various techniques for limiting its further involvement. In the context of the ECtHR, this is one way of understanding the court’s move towards a more ‘procedural’ mode of review, a movement in the court’s cases that many commentators on the ECtHR have noted, including Professor Arnardottir in this Symposium.77 Through this move, the court has indicated that it will give states a greater MA when the domestic parliamentary and judicial processes reveal that the ctate has paid proper attention to the Convention right at stake; if it has, the court will be more deferential to the way the state has struck the balance between the right and the legitimate justifications for limiting it. Significantly, this approach was deployed most overtly, with the most direct justification from the court, in the Animal Defenders case; it was precisely because of the court’s judgment that the UK Parliament had extensively deliberated over the right to freedom of expression, as codified in the ECHR, when deciding how to regulate political advertisements that the court majority was willing to defer to the ban on paid political advertising. Through this shift towards a more procedural mode of review, the court is suggesting that it will defer to domestic actors as long as they demonstrate that they have focused clearly and deliberatively on the relevant ECHR right when adopting policy that touches upon that right.78 To be sure, there are a variety of difficult normative questions about such an approach. Does it mean, for example, that the same policy might violate the ECHR in one country, because the parliament there did not self-consciously address the Convention right when adopting that policy, but be acceptable in another country because there the Parliament did debate the issue? And how intensively is the court going to be prepared to assess the ‘thoroughness’ of any parliamentary consideration of an issue? Will it be sufficient if the parliament merely makes some reference to the relevant Convention right? But these questions aside, it is easy to see the attraction to the ECtHR of the move towards proceduralized judicial review, particularly for dealing with how various Member States apply ‘democratic rights’. This approach enables the court to continue to police—or give the appearance of policing—the Convention to ensure that the rights it demarcates are being taken seriously, without putting itself in the position of being directly at odds with a Member State by declaring that a certain law actually violates the Convention. At most, the court would declare that a parliament had not engaged in a thorough enough consideration of whether the Convention right needed to be impaired to realize some important, legitimate public policy; if the court reached that conclusion, it would still be open, in principle, for the parliament to re-visit the issue in a more extensive deliberation. This proceduralization of Convention rights thus keeps the court at one remove from direct substantive confrontation with Member State political institutions, while still leaving the court a role to play in ensuring that Convention rights are given due weight. The temptation for the court of this approach is obvious. Through proceduralization of the MA in this way, the court would be giving greater weight to the values of democratic self-government, without the court appearing to withdraw from the field of enforcing democratic rights.79 The ECtHR’s pattern of initial articulation of a strong conception of fundamental rights, only to be followed by a substantial retreat in the face of sharp political opposition within powerful countries, is not limited to cases that involve the structure of democratic politics. The same pattern is evident in the way the ECtHR has addressed the issue of whole life prison sentences. For a brief period of time staring around 2013, the ECtHR, in a series of cases centered around the decision in Vinter v The United Kingdom, seemed to hold that the Convention was violated if a prisoner was given a whole-life sentence without domestic law providing an established mechanism for ongoing review of that sentence with the possibility of release and without the prisoner knowing what he or she had to do to be considered for release. But a few years later, after Vinter also triggered a major political backlash in the UK, the ECtHR walked back from its overture and accepted in Hutchinson v The United Kingdom a regime of whole life sentences from the UK that fell far short of what Vinter seemed to demand. Indeed, one of the leading experts on this issue has said the Hutchinson decision ‘makes no sense’, given the principle seemingly established in Vitner, and that the ECtHR has ‘simply funked the confrontation’ with the UK and accepted a ‘wildly implausible’ position to enable the issue to go away.80 4. CONCLUSION When the ECHR and the court were first created, their main purpose was to provide institutional resistance against the feared return of totalitarian regimes to Europe. Ironically, the court has turned out not to have played a significant role along that dimension in recent years; its willingness and capacity to do so will soon be tested by recent political transformations in countries like Hungary and Poland. Indeed, when the court has acted to resolve cases about the basic democratic processes and structures of the Member States, it has often been in the context of assessing how politics and participation are structured within the otherwise democratic regimes of countries like Switzerland, Norway, the UK, Italy and others. The court has, to be sure, also at times addressed significant questions concerning the structure of democratic institutions in some of the countries of Central and Eastern Europe, and for a window of time, the court’s decisions were viewed as having contributed to strengthening democracy in certain of these countries. In Hungary, for example, the court handed down important judgments that the domestic courts followed on the right to vote, freedom of expression and access to information.81 The court had been less consequential on issues concerning democracy in other former communist countries, such as Poland.82 With the recent rise in both Hungary and Poland of governing parties that are exceptionally aggressive in attempting to entrench themselves in power and subordinating all other institutions, it is too early to know how the court will respond, and whether any of its judgments will be effective in the face of these new challenges. But ironically, at this stage in the court’s history, some of the strongest resistance to the court in its decisions concerning the structure of democratic institutions has come from Western Europe, particularly the UK. As a supranational court not embedded in a larger democratic polity, the ECtHR is on particularly shaky ground when it seeks to challenge the democratic processes of essentially democratic states, particularly when the court does not limit itself to ‘outlier’ practices that only one or two Member States employ. The result of the court’s interventions has been erratic doctrinal practice, in which the court veers inexplicably between whether it ought to review state laws ‘on their face’ or ‘as applied’—whether it ought to accept what the court calls ‘general measures’ regulating the exercise of democratic rights or demand that these measures be evaluated on a case-by-case basis. Similarly, the court appears unable to settle on any clear set of legal principles in this area; thus, the court has not been willing to permit or forbid all bans on paid political advertising; it has not been willing to permit all or no bans on outside electoral spending; it has not been willing to uphold or reject all bans on voting by those currently serving sentences for criminal convictions. Instead, the court has put itself in the position of having to decide questions of degree that do not lend themselves to any clear resolution of principle: how low is too low for caps on outside spending, or how long a prison sentence is long enough to justify denial of the vote while in prison. That position reflects the tentativeness the court has when it takes on these issues. These doctrinal struggles are a manifestation of the deeper political environment within which the ECtHR operates.83 Eyal Benvenisti has pointed out various imperfections that in theory or fact, inevitably characterize democracy. But it does not follow from these concerns that courts, let alone a supranational court, are the best or most legitimate institutional forums for resolving the issues instead. There remains considerable moral and cultural value in the process of self-governance itself, and it is no surprise when national polities defend that value vigorously. Until a thicker sense of political union exists throughout the Convention states, it will remain difficult for the court to impose a uniform understanding of democratic rights on those states. The court has contributed to the integration of Europe through law. But there is a limit on the extent to which courts can play the leading role in any such project—and a limit on the extent to which various polities in Europe today want to be further integrated. I am grateful to the organizers of the Conference on The Margin of Appreciation and Democracy: Human Rights and Deference to Political Bodies, sponsored by iCourts at the University of Copenhagen Faculty of Law. Thanks particularly to Shai Dotan, Dirk van Zyl Smit, Mikael Rask Madsen and Sam Issacharoff for comments and to Jordan Rux for extremely helpful research assistance. Footnotes 1 eg Samuel Issacharoff, ‘Fragile Democracies’ (2007) 120 Harv L Rev 1407; Paul Harvey, ‘Militant Democracy and the European Convention on Human Rights’ (2004) 29 EL Rev 407, 407–20. 2 Mikael Rask Madsen, ‘The Protracted Institutionalization of the Strasbourg Court: From Legal Diplomacy to Integrationist Jurisprudence’ in Jonas Christoffersen and Mikael Rask Madsen (eds), The European Court of Human Rights between Law and Politics (OUP 2011). 3 ibid. See also Samuel Moyn, The Last Utopia: Human Rights in History (Harvard UP 2012). For the classical argument that states created the ECHR to protect their own governments from sliding into dictatorship, see Andrew Moravcsik, ‘The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe’ (2000) 54 Intl Org 217; Ed Bates, ‘The Birth of the European Convention on Human Rights – and the European Court of Human Rights’ in Jonas Christoffersen and Mikael Rask Madsen (eds), The European Court of Human Rights between Law and Politics (OUP 2011) 17, 21 (the court was to ‘be the conscience of free Europe, acting like an “alarm bell” warning the other nations of democratic Europe that one of their number was going “totalitarian”.’) 79–81 (discussing limited role of ECHR in practice before 1970s). 4 ibid 44. By the mid-1970s, the ECtHR had still decided only 17 cases. ibid 80 5 Madsen (n 2) 52. 6 These developments are summarized in Madsen (n 2) and Jonas Christoffersen and Mikael Rask Madsen, ‘Introduction: The European Court of Human Rights between Law and Politics’ in Jonas Christoffersen and Michael Rask Madsen (eds), The European Court of Human Rights between Law and Politics (OUP 2011). 7 See, eg Moyn (n 3) 218 (noting that ‘the slow but sure move toward a politics of human rights was most visible in Western Europe starting in the 1980s, where human rights NGOs proliferated and the newly prominent European Court in Strasbourg symbolized the great strides a rhetoric of human dignity and rights made at every level of the continent’s affairs.’). 8 When the Convention first came into force, signatory states had the discretion to choose to permit individual citizens or residents to petition the court; at the time, only three of the original ten contracting states recognized this right. Protocol No 11 also abolished the previous two-tier structure in which the European Commission of Human Rights had first screened cases for their ‘admissibility’ before they went to the court, and the Protocol also made compulsory assent to the Court’s jurisdiction over the Member States. 9 Mikael Rask Madsen, ‘The Challenging Authority of the European Court of Human Rights: From Cold War Legal Diplomacy to the Brighton Declaration and Backlash’ (2016) 79 Law and Contemporary Problems 140. 10 See the discussion of the Hirst case, below in Section II. 11 The first and still most classic statement of this position is John Hart Ely, Democracy and Distrust (Harvard UP 1981). 12 See, eg Richard H Pildes, ‘The Inherent Authoritarianism in Democratic Regimes’ in Michel Rosenfeld and Andràs Sajó (eds), The Oxford Handbook of Comparative Constitutional Law (OUP 2012). 13 For a general discussion of the conceptual complexities in the judicial application of constitutional rights to the processes of democracy, see Richard H Pildes, ‘Foreword: The Constitutionalization of Democratic Politics’ (2004) 118 Harv L Rev 25. 14 Reynolds v Sims 377 US 533, 565 (1964). 15 For a summary of these developments, see Pildes (n 12). 16 For discussion of how this ascension has affected the ECHR system, see the fine work by Wojciech Sadurski, Constitutionalism and the Enlargement of Europe (OUP 2012). 17 Sidurski, ibid 44–51. 18 ECHR arts 20, 22. A judge from the state in question in a case sits as an ex oficio member of every chamber and Grand Chamber proceeding. ECHR art 26(4). When terms were renewable, a judge’s potential interest in renewal might be considered one mechanism through which domestic political values would have greater capacity to be reflected in judicial behaviour. 19 For discussion of the resistance of Austrian, Spanish and French courts towards decisions of the ECtHR, see N Krisch, ‘The Open Architecture of European Human Rights Law’ (2008) 71 MLR 183, 196. 20 See eg R Ryssdal, ‘The Enforcement System set up under the European Convention on Human Rights’ in MK Bulterman and M Kuijer (eds), Compliance with Judgments of International Courts M.K. Bulterman and M. Kuijer eds., (1996) 49, 67; Andrew Moravcsik, ‘Explaining International Human Rights Regimes: Liberal Theory and Western Europe’ (1995) 1 Eur J Intl Rel 157, 171; Laurence R Helfer and Anne-Marie Slaughter, ‘Toward a Theory of Effective Supranational Adjudication (1997) 107 Yale LJ 273, 296. 21 Sidurski (n 16) 7. Nonetheless, as Sidurski points out, no other supra- or international human rights system comes close to the strength of the system based upon the ECHR. ibid 8. See Madsen (n 9) 172–73 (discussing increasing rates of non-compliance and concluding that ‘partial compliance’ has become the norm in both Western and Eastern Europe); ibid 174 (noting that with respect to the ECtHR ‘highly critical voices speak out in every single European state’ today, including presidents of national supreme courts in several countries). 22 See the discussion of the Hirst case, below. 23 More recent decisions of the court are particularly attuned, at least rhetorically, to these concerns, as in this passage from the decision in S.A.S. v France, ECHR 2014-III 341, para 129: It is also important to emphasize the fundamentally subsidiary role of the Convention mechanism. The national authorities have direct democratic legitimation and are, as the Court has held on many occasions, in principle better placed than an international court to evaluate local needs and conditions. In matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy-maker should be given special weight. 24 A relatively recent summary of state practices can be found in Case of Animal Defenders International v UK ECHR 2013-II 211. 25 TV Vest AS and Rogaland Pensjonistparti v Norway ECHR 2008-V 265, 277, para 22. 26 Case of Verein Gegen Tierfabriken Schweiz (VgT) v Switzerland App no 24699/94 (ECtHR, 28 June 2001) para 28. 27 Animal Defenders (n 24) para 58. 28 ibid, para 88. 29 ibid. 30 TV Vest (n 25) para 43. 31 VgT (n 26) para 56. 32 TV Vest (n 25). 33 Citizens United v FEC 558 US 310 (2010). 34 See Frederick Schauer and Richard H Pildes, ‘Electoral Exceptionalism and the First Amendment’ (1999) 77 Texas L Rev 1803. 35 VgT (n 26) para 24. 36 The most thorough summary of these issues is Richard H Fallon, Jr, ‘As-Applied and Facial Challenges and Third-Party Standing’ (2000) 113 Harv L Rev 1321. 37 One of the tensions in the court’s decision is that, in the context of a ban on paid advertising for religious or political purposes, the court earlier had been willing to accept a general ban on religious ads. In the aptly titled case of Murphy v Ireland, the court essentially addressed the challenge there in facial terms and upheld the general validity of an Irish ban on religious ads, even though the particularly challenger claimed that his ad would not offend anyone’s religious sensibilities and was innocuous. The court took the position that states had a greater margin of appreciation in regulating religious advertising than political advertising, at least at a time when the VgT (n 26) case defined the law with respect to regulation of the latter. 38 VgT (n 26) para 75. 39 TV Vest (n 25) para 72. 40 Rosalind English, ‘Strasbourg Ties Itself in Knots over Advertising Bans’ (UK Human Rights Blog, 23 April 2013) <https://ukhumanrightsblog.com/2013/04/23/strasbourg-ties-itself-in-knots-over-advertising-ban/> accessed 5 September 2016. (‘Vgt inspired a number of member States to repeal their general ban — a change that was effected without major difficulties.’). 41 Animal Defenders (n 24) para 11. 42 ibid para 109. 43 ibid para 119. 44 ibid (Joint Dissent) para 14. 45 Jacob Rowbottom, ‘Animal Defenders International: Speech, Spending, and a Change of Direction in Strasbourg’ (2013) Journal of Media Law 5(1) 1–13; Jacob Rowbottham, ‘A Surprise Ruling? Strasbourg Upholds the Ban on Paid Political Ads on TV and Radio’ (UK Constitutional Law, 22 April 2013) <https://ukconstitutionallaw.org/2013/04/22/jacob-rowbottom-a-surprise-ruling-strasbourg-upholds-the-ban-on-paid-political-ads-on-tv-and-radio/> accessed 05 September 2016. 46 Jonas Christoffersen and Mikael Rask Madsen, ‘Introduction: The European Court of Human Rights between Law and Politics’ in Jonas Christoffersen and Michael Rask Madsen (eds), The European Court of Human Rights between Law and Politics (OUP 2011). 47 For general discussion of this issue, see Issacharoff and others, The Law of Democracy (5th edn, Foundation Press 2016) 28–38. 48 Hirst v UK ECHR 2005-IX 187. 49 The Institute for Criminal Policy Research puts the England/Wales population at around 85,000, compared to around 2.2 million in the USA, with the poor capita rate in the USA about five times that in the UK See <http://www.prisonstudies.org/sites/default/files/resources/downloads/world_prison_population_list_11th_edition_0.pdf> accessed 16 May 2017. 50 Convention for the Protection of Human Rights and Fundamental Freedoms (2010) Protocol 1, art 3. 51 Mathieu-Mohin v Belgium App no 9267/81 (ECtHR, 2 March 1987). 52 Hirst (n 48) para 82. 53 ibid, para 71. 54 At other points, the court came closer to suggesting that the problem with the ban was that it applied without regard to the length of the sentence or the severity of the crime, which suggested that perhaps a more narrowly tailored, but still per se ban for certain offenses or sentences, might have been upheld—but the opinion is far from a model of clarity on the fundamental flaw in the UK ban. 55 Holland v Ireland App no 24827/94 (ECtHR, 14 April 1998) para 2. 56 Greens and M.T. v the United Kingdom App nos 60041/08 and 60054/08 (Final judgment: 11/04/2011). 57 For a summary of the sage of Hirst from a point of view critical of the UK government, see Ed Bates, ‘The Continued Failure to Implement Hirst v UK’ (EJIL: Talk!, 15 December 2015) <http://www.ejiltalk.org/the-continued-failure-to-implement-hirst-v-uk/> accessed 5 September 2016. 58 David Cameron, ‘Speech on the European Court of Human Rights’ (Cabinet Office, London, 25 January 2012) < https://www.gov.uk/government/speeches/speech-on-the-european-court-of-human-rights> accessed 5 September 2016. 59 Frodl v Austria App no 20201/04 (ECtHR, 8 April 2010). As the court in Frodl understandably understood Hirst: ‘Under the Hirst test, besides ruling out automatic and blanket restrictions it is an essential element that the decision on disenfranchisement should be taken by a judge, taking into account the particular circumstances, and that there must be a link between the offence committed and issues relating to elections and democratic institutions (ibid., § 82).’ ibid, para 34. Thus, the ECtHR judges in Frodl took Hirst to impose the requirement that the Grand Chamber of the court rejected as required in Scoppola. 60 Scoppola v Italy (No 3) App no 126/05 (ECtHR, 22 May 2012) para 99. 61 ibid, para 106. 62 Frodl (n 59). 63 Former UK Attorney General Dominic Grieve, a critic of Hirst, stated in ___ that he ‘sensed “a slight measure of embarrassment about the original judgment” on the part of the Court – a judgment which, he added, represented “a high point of activism”.’ LSE European Institute, The Implications of Brexit for Fundamental Rights Protection in the UK (Report of the Hearing Held on 25 February 2016). 64 Scoppola (n 40). 65 Bowman v UK App no 24839/94 (ECtHR, 19 February 1998). For other discussion of Bowman, see Samuel Issacharoff, ‘The Constitutional Logic of Campaign Finance Regulation’ (2008–09) 35 Pepperdine L Rev 379–84. 66 See Jacob Rowbottom, Democracy Distorted: Wealth, Influence and Democratic Politics (CUP 2010) 120. 67 See Keith Ewing, The Cost of Democracy: Party Funding in Modern British Politics (Hart Publishing 2007) 51 (‘This uncertainty about the amount of permissible limits on third-party spending is only one of a number of problems associated with spending limits as a regulatory strategy.’). 68 424 US 1 (1976). 69 See, eg Jon Robbins, ‘What Now for Human Rights in the UK Post-Brexit’ (Halsbury’s Law Exchange, 4 July 2016) <http://www.halsburyslawexchange.co.uk/what-now-for-human-rights-in-the-uk-post-brexit/> accessed 14 September 2016 (‘Unsurprisingly, anti-human rights sentiment cropped up in the official Leave literature which blithely asserted: “If we vote to remain, EU laws will overrule UK laws and the European Courts will be in control of our trade, our borders, and big decisions like whether prisoners are allowed to vote. If we vote Leave, UK laws will have ultimate authority and we will take back control.” ’); Tim Bale, ‘Banging on about Europe: How the Eurosceptics Got Their Referendum’ (Brexit Vote Blog, 23 June 2016) <http://blogs.lse.ac.uk/brexit/2016/06/23/banging-on-about-europe-how-the-eurosceptics-got-their-referendum/> accessed 14 September 2016 (‘The ECHR was not, as sceptics knew full well, an EU institution, but its ability to override British sovereignty was, as far as they were concerned, all of a piece with Brussels and therefore grist to their mill.’); The Week, ‘European Convention of Human Rights: Pros and Cons of Leaving’ (The Week, 26 April 2016) <http://www.theweek.co.uk/72028/european-convention-of-human-rights-the-pros-and-cons-of-leaving> accessed 14 September 2016 (‘Opponents often cite a controversial ruling on prisoner voting and the cases of clerics such as Abu Hamza and Abu Qatada, who were charged with terrorism offenses abroad but avoided extradition from the UK for long periods due to legal battles with the ECHR.’); Anthony Reuben and Peter Barnes, ‘Reality Check: Checking the Vote Leave Leaflet’ (BBC News, 11 April 2016) <http://www.bbc.com/news/uk-politics-eu-referendum-36014941> accessed 14 September 2016 (‘Over the past 43 years, the EU has taken control over more and more areas which don't have anything to do with trade - such as our borders, our public services and whether prisoners have the right to vote.’). 70 See <http://www.theguardian.com/politics/2013/dec/13/prisoners-right-to-vote-david-cameron>. 71 See <http://www.nytimes.com/2012/01/18/world/europe/european-court-overrules-britain-on-terror-detainee.html?_r=0; https://www.theguardian.com/uk/2010/jul/08/abu-hamza-human-rights-ruling>. 72 See <http://www.publications.parliament.uk/pa/jt201415/jtselect/jtrights/71/71.pdf>. 73 Helfer, The Burden and Benefits of Brighton, ESIL Reflections. 74 See Madsen (n 9) 175 (‘Since the Brighton Delcaration Europeans have gotten accustomed to a different kind of discourse where both the judgments and the judges are scolded by not only fuming heads of state but also the press and senior members of the legal profession.’). 75 Protocol 15 enter into force only if and when signed and ratified by all the Convention State Parties. As of the date this article went to press, around 33 states have done so. For a listing of the states that signed and ratified protocol 15 so far, see <https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/213/signatures?p_auth=205qv74f>. 76 Pamela S Karlan, ‘Exit Strategies in Constitutional Law: Lessons for Getting the Least Dangerous Branch out of the Political Thicket’ (2002) 82 Boston Univ L Rev 667. 77 See also Matthew Saul, ‘The European Court of Human Rights’ Margin of Appreciation and the Processes of National Parliaments’ (2015) 15 Human Rights L R 745. 78 There is a family resemblance here to the proceduralist way the Canadian Supreme Court handled the explosive question concerning basic democratic structures of whether Quebec had a right to secede under the Canadian Constitution. Rather than resolve this issue in substantive terms, the court concluded that Quebec had the right to initiate a dialogue on secession with the national government, if a ‘clear majority’ of Quebec voters voted in a referendum in favour of a ‘clear question’ asking about their desire to secede. See Sujit Choudhry, ‘Popular Revolution or Popular Constitutionalism? Reflections on the Constitutional Politics of Quebec Secession’ in Richard W. Bauman and Tsvi Kahana (eds) The Least Examined Branch: The Role of Legislatures in the Constitutional State (CUP 2006) 480, 487. 79 An insightful article argues that the ECtHR uses the MA as a tool of prudence, rather than any doctrine of ‘principled institutional deference’, and that the MA allows the court ‘to avoid a final determination of the content or scope of a particular Convention right while nevertheless maintaining its supervisory function and the possibility of revisting the question’. Erin Delaney, ‘Analyzing Avoidance: Judicial Strategy in Comparative Perspective’ (2016) 66 Duke LJ1, 28–43. 80 See Professor Dirk van Zyl Smit, Testing the Limits of Judicial Activism: The Life Imprisonment Jurisprudence of the European Court of Human Rights and Its Global Impact (Hoffinger Lecture, NYU School of Law, 27 March 2017). 81 Karoly Bard, ‘Hungary: The Legal Order of Hungary and the European Convention on Human Rights’ in Iulia Motoc and Ineta Ziemele (eds), The Impact of the ECHR on Democratic Change in Central and Eastern Europe: Judicial Perspectives (2016) 176, 199. 82 A 2016 survey of the cases from Poland concludes that Polish cases concerning ‘democracy and pluralism’ did not constitute a large portion of the cases concerning Poland that had gone to the ECtHR, with the most important cases involving criminal defamation laws and Poland’s lustration law. Lech Garlicki and Ireneusz Kondak, ‘Poland: Human Rights Between International and Constitutional Law’ in Iulia Motoc and Ineta Ziemele (eds), The Impact of the ECHR on Democratic Change in Central and Eastern Europe: Judicial Perspectives (ECHR 2016). 83 For an excellent analysis of the changing geopolitical contexts in which the court has operated since its creation and the effects of those changes on the court’s role, see Madsen (n 9). © The Author 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of International Dispute Settlement Oxford University Press

Supranational Courts and The Law of Democracy: The European Court of Human Rights

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Abstract

ABSTRACT This article involves a systematic exploration of the European Court of Human Rights’ decisions in cases involving the actual structure of the democratic process itself. These ‘law of democracy’ cases pose some of the most conceptually difficult and politically charged cases even for domestic courts, let alone for a supranational court tasked with enforcing democratic rights across the diverse ways the Member States have structured and institutionalized their democratic systems. In the court’s doctrinal terms, the question is how much of a ‘margin of appreciation’ the court should recognize for the various Member States to interpret and apply democratic rights in differing ways across their different systems of democracy. Focusing on the court’s decisions regarding regulation of political advertising, access to the vote, and the spending of money to influence electoral outcomes, the article concludes that the court has recurringly in recent decades entered into these areas with bold initial decisions, only to be forced to back down in response to the powerful political backlash such interventions have spawned, particularly in certain Member States. This pattern suggests that a supranational court has trouble mobilizing the political legitimacy required to sustain acceptance of its decisions involving such morally powerful issues such as how different countries structures their systems of self-governance. 1. INTRODUCTION The ‘margin of appreciation’ (MA) is a principal means through which the European Court of Human Rights (ECtHR) sometimes defers to the national democratic and judicial processes within the Member States. The doctrine reflects the precarious political position of a supranational constitutional court tasked with applying ‘human rights’ that are framed in the European Convention on Human Rights (ECHR) in general, universal terms to the differing institutional forms and cultural understandings of democracy in the signatory states. By acknowledging an appropriate MA in how these rights are understood across different countries, the ECtHR essentially struggles to balance the legitimate role of democratic self-governance in the Member States with the legitimate demands of human rights and the ECHR. Put another way, the MA reflects the court’s view that not all human rights recognized in the ECHR should be understood as universal, at least in application. Democratic states can legitimately interpret these rights differently, to some extent. As Yuval Shaney’s contribution to this Symposium documents, the ECtHR has identified a variety of specific factors that influence how it applies the MA, including the nature of the right involved, the importance of the state interests at stake, the processes the state uses to enforce the right and the degree of European consensus about the proper implementation of the right in question. But underlying these specific doctrinal factors is the more general question of the extent to which rights-adjudication in the court ought to defer to the democratic processes in the Member States. But how does the court understand the nature of democracy itself? To examine that question concretely, we can explore the subset of cases in which the ECtHR is asked to judge the structure of democracy itself in various Member States. In an important set of cases, the court has been asked not to weigh the rights of individuals against state interests in matters like national security, but to determine whether the very processes of democracy themselves are structured in a manner consistent with the ECHR. Among the human rights, the Convention expressly protects are some of the central rights of democratic participation: the right to freedom of expression, thought, assembly and association (but not the right to vote, as discussed further below). How does the court apply these rights to the different ways democracy is institutionalized and structured in various states? Does—or should—the court embrace the view that there is a universally correct way to structure the rights of democracy? Or does—and should—the court apply the MA doctrine to the structure of democracy itself? The national courts of most of the Member States also, of course, apply their domestic constitutions to assess the constitutionality of their own democratic processes; how should the supranational ECtHR take the views of domestic courts into account on these questions? To shed light on the debates about the proper role of the MA doctrine, this article, therefore, proposes to engage that question more directly by exploring how the court assesses the structure of democracy and democratic rights themselves. The article will do so focusing on three areas in which, over time, the ECtHR has confronted challenges to the fundamental democratic processes of various states: challenges to the role of political speech in elections; to the rules concerning how elections can be financed; and to judgments about who can be excluded from exercising the right to vote. There are other aspects of democratic processes the court has confronted, particularly a series of cases testing whether certain kinds of purportedly ‘anti-democratic’ political parties can be banned or restricted under the ECHR, but those cases have already received sufficient attention in the academic literature.1 As Mikael Rask Madsen has insightfully noted, starting in the 1970s, the ECtHR began to transform its role dramatically.2 Before then, the goal of the 1950 ECHR and the ECtHR had been primarily understood as a means to resist the lapse back into totalitarian regimes that had preceded WWII, and to serve as a bulwark against Soviet expansionism into Western Europe.3 As originally conceived, the court was seen as protecting against only ‘the more severe violations of human rights’4 and not as a means to change the practices of Member States to bring them into line with an ever-evolving understanding of what human rights meant; human rights activism in Europe in these years was focused on non-democratic governments, such as those in Spain and Portugal. But in the 1970s, the self-conception of the court’s role began to shift, accompanied by a changing jurisprudential philosophy. Reflecting changes in the larger political context of Europe, such as the end of colonialism, as well as the broader emphasis on human rights exemplified in President Carter’s emphasis on this ideology from the USA, the court began to itself become a major institutional factor pushing for the deeper integration of Europe and the ECHR began to be transformed into a genuine regime of law for, and within, the Convention states.5 Methodologically, the court began to talk of the Convention as ‘a living instrument’; the court embraced a dynamic approach to interpreting the ECHR; and the court insisted that the rights of the Convention had to be giving ‘practical effect’.6 This led the court into a far more active and central role in seeking to impose on the Convention states a more uniform set of legally binding understandings concerning the content of the rights recognized in the ECHR.7 In addition, when Protocol No 11 took effect in 1998, it made it mandatory that states permit individuals (not just governments) the right to petition the court.8 Today, the court has ‘de facto supreme jurisdiction over human rights in Europe’, in the words of some experts.9 As we shall see, this transformation in the ECtHR has also extended into issues dealing with the structure of the basic democratic processes within the Convention states. In recent decades, the ECtHR has taken on the role of determining whether the democratic processes within otherwise democratic states are nonetheless consistent with the court’s understanding of the democratic rights embedded in the ECHR. At times, this has led the court to condemn ways of organizing democracy that are shared across many Member States, but which the court nonetheless concludes, even absent widespread political consensus across the Member States, violate the Convention. In reaching these kinds of decisions, the court has paid formal rhetorical service to the importance of granting states a MA in constructing their democratic systems, while in practice the court has effectively imposed more of a singular vision of democracy on the Member States. The court’s actions in the sphere of cases involving the organization of democratic politics have been erratic; the pattern of decisions shows a series of forward movements to apply the Convention aggressively, followed by a significant retreat that is difficult to explain or rationalize in purely doctrinal terms. Instead, the court has learned that judicial intervention into the way the democratic processes of democratic states are designed can trigger some of the most significant domestic political backlash against a supranational court like the ECtHR. National polities appear to experience perhaps the most powerful sense of moral ownership over the terms of their own systems of democratic self-governance. As this article shows, when the court intervenes to declare a longstanding aspect of those systems now to be in violation of an evolving ECHR—as the court interprets it—there has been a powerful reassertion of national self-determination against the court. This has led, in at least one well-known instance, to the court’s declarations being affirmatively and aggressively defied by the UK10 In other areas, the court has ended up crafting rules that appear to apply differently in the less powerful than in the most powerful Member States. Or the court has been forced to back down from its most aggressive initial rulings. Section I of this article identifies the general conceptual and practical issues that arise from the context of a supranational court seeking to apply the democratic rights in a charter like the ECHR to the democratic systems of nation-states. Section II examines how the ECtHR has played this role in certain key areas involving the organization of democracy. The conclusion raises larger questions about what kind of role the ECtHR ought to play in this area in the future, and what role the MA ought to play, in light the ECtHR’s experience to date. 2. General Considerations Involving Constitutionalizing Democratic Politics Even for domestic constitutional or High Courts in democratic states, the question of how to apply individual rights to the processes and structures of democracy is an exceptionally complex one. On the one hand, few roles seem more important for such courts than protecting the integrity of the democratic process; from a theoretical perspective, it has long been argued that the most justified role for constitutional courts is ensuring that the processes of democratic debate, decision-making and elections remain open and fairly structured.11 Moreover, the temptation for those currently in power to use that power to structure in their favour, the rules of democratic contestation is clear and, by this point in our experience with democracy, well known.12 The need for judicial protection of the fundamental rights of democratic engagement is widely recognized and reflected in the ECHR itself. Yet at the same time, an aggressive judicial role in overseeing the way a polity structures its democratic processes can be highly problematic.13 There is general consensus among democratic countries on certain core features of a legitimate democratic system, but beyond this core, there are many diverse ways of institutionalizing and organizing a democratic system—with the differences between proportional representation and first-past-the-post systems being the most immediate and obvious. In addition, polities do not create a system of democracy at one moment in time and then leave it statically in place ever after; part of the nature and justification of democracy is that polities will continually debate what makes for a fair and legitimate democratic system and potentially modify their design in response to changing public preferences (though doing so can, of course, be difficult as a practical matter, given the vested interests that coalesce around existing forms of politics). Anytime judges conclude that individual rights are violated by the way a polity chooses to structure its processes, outside of the core area of consensus on the content of these rights, the courts risk freezing in place one vision of proper democratic processes over another. Constitutionalizing one understanding or another of the various rights of democracy takes off the table democratic decision-making about how democracy itself ought to be structured. Americans are well aware of this dynamic from the campaign-finance area; because the Supreme Court in the USA has concluded that the spending of money on campaigns is part of constitutionally protected speech, many options for how to change the system of election financing in the USA are taken off the table. If the democratic rights courts were enforcing were specific enough, this tension might be reduced. But in both domestic constitutions and international texts like the ECHR, these rights are typically framed in highly general terms, such as the right to freedom of expression, or to political assembly and association. As the oldest constitution in continuous force, the American Constitution offers one model of how these rights are defined textually: the American Constitution simply defines basic rights of free expression or the right to petition the government in very general and broad, indeed absolutist, terms. More modern constitutions tend to adopt a different model, in which rights are first enumerated, then accompanied with a set of legitimate limitations that exist on the scope of those rights. The ECHR takes this form. But this second structure of textual rights definition does not provide much more specific guidance to courts. The limitations recognized are themselves also typically framed in general and fairly abstract terms that provide little precise guidance on how the rights of democracy and their legitimate limitations are to be applied in concrete cases. Depending on how broadly courts are prepared to generalize from the basic democratic rights, courts can quickly slide into a position of remaking broad aspects of a country’s democratic system; the American Supreme Court, for example, has said that the right to vote means the right to ‘an equally effective voice’;14 the court has never developed that line of reasoning in practice, in part because who knows what structural changes would be thought to be necessary to ensure ‘equally effective voice’—a concept that is almost certainly unrealizable in any event. But this stands as an example of how small the distance is between textual democratic rights and judicial interpretations of those rights that could have sweeping implications. Thus, given the thin guidance available to courts from the texts of charters like the ECHR, judges inevitably have a great deal of discretion in deciding how the rights of democracy are to be applied in specific cases. And depending on how that discretion is exercised, it can lead courts into dramatic restructuring of a polity’s democratic institutions. In addition, courts run particular risks when they engage with the political process. To the extent there are clear winners and losers in partisan or ideological terms from judicial decisions, there is the likely prospect that courts will be perceived as themselves partisan political actors supporting the side that benefits from the courts’ rulings. That risk is all the greater when it is obvious in advance which set of interests or partisan actors will benefit from a court ruling one way or the other. Partly for that reason, the political backlash against courts for intervening in the democratic process also tends to be greater. And the perception that courts are taking over citizens’ moral right to define the terms of self-government for themselves can also be distinctly aroused in the process of judicial determination of the ‘rights’ of democratic politics. If courts were enforcing textually clear and specific rights, that would perhaps reduce these pressures, but as already noted, that kind of clarity tends not to exist in the way texts define the rights of democracy. For these reasons, the oldest constitutional court in the world, the US Supreme Court, was extremely reluctant for most of its existence to become enmeshed in defining the content of ‘democratic rights’. The court referred to these as matters of ‘political rights’ and proclaimed that courts did not have a role to play in enforcing these rights; they were to be enforced through the processes of democracy themselves. Only starting in the 1960s did the Supreme Court abandon this view and begin to take on a significant role in concluding that the structures of democracy in various American states violated the rights the Constitution guaranteed. But in recent decades, starting with the post-WWII constitutional courts of Europe, constitutional and High Courts have come to view enforcement of ‘democratic rights’ as one of their most important functions. Thus, courts around the world today, including the ECtHR, have come in recent decades to take a more active role in overseeing the processes of democracy.15 If courts were enforcing democratic rights whose core content was clear against a few outlier jurisdictions or states, courts might be on firmer ground as they take on this role. But as we shall see soon, in the cases that the ECtHR has confronted in recent decades—involving political advertising, campaign finance or prisoner access to the vote—the democratic practices of the Convention countries span a broad range. The cases that make up most of those involving democracy in the ECtHR today are not ones enforcing core, consensual understandings of democracy widely shared, but ones in which the Member States endorse diverse democratic understandings. Thus, even domestic courts enforcing domestic constitutions face powerful competing pushes and pulls in carving out their appropriate role in enforcing vaguely defined democratic rights. Yet those pressures are compounded for a supranational court such as the ECtHR. That court sits atop the democratic systems of 47 countries covering roughly 800 million people. Those various countries differ greatly, especially since the ascension of the Central and Eastern European countries to the Convention, in their histories, cultural understandings and institutional designs of democracy.16 Some of these democracies are longstanding and securely established; others are more recent and more fragile. Yet the interpretations of rights, the ECtHR generates are designed to apply uniformly across these countries. Indeed, while some commentators go so far as to call the ECtHR a constitutional court for Europe with respect to human rights, others suggest the court has not achieved all the attributes of typical domestic constitutional courts and is still an institution in flux.17 Moreover, although the term legitimacy is overused, there are indeed particularly pressing questions about how legitimate the decisions of a supranational court will be perceived to be within the domestic democratic systems of various Member States. While even domestic constitutional courts can be controversial, those courts at least are embedded within the democratic systems of their particular states. Domestic democratic understandings inevitably mediate the role of these courts, at least to some extent. Judges are sometimes appointed through processes that incorporate some role for domestic political forces to find expression; the judges are likely to pay attention to local media and to have internalized the political culture of their particular countries. While there is of course a political process involved in the appointment of judges to the ECtHR, there is no democratic ‘State’ at the Convention-wide level within which those judges are embedded, and they are considerably more distant from the domestic systems of most of the Member States, other than their own, than any domestic judge. Each state has one judge on the court, meaning that Germany and tiny San Marino have the same amount of representation; and the judges now have non-renewable 9-year terms.18 Particularly when judging whether the democratic processes within democratic states are structured consistently with the ECHR, as the court understands it, the ECtHR judges are more likely to be viewed as lacking legitimacy than their domestic counterparts in ordering the restructuring of a state’s basic democratic processes.19 Compliance rates with ECtHR judgments were generally good in the court’s early years,20 but today, the court’s judgments ‘are occasionally ignored and some national bodies – including constitutional courts – simply refuse to follow them’.21 Non-compliance in major countries is also becoming more visible, which might further increase non-compliance.22 Indeed, at times, the ECtHR has itself recognized the fragility of its legitimacy, albeit in cases not involving the even-more difficult issues of the proper design of democratic processes.23 The role, then, that a supranational court should take in evaluating challenges to the democratic practices of many and diverse states, when enforcing a charter, like the ECHR, that inevitably defines the rights of democracy and their limitations in highly general terms—and, as a result, leaves the courts considerable discretion in how to interpret and apply those rights—is thus an exceptionally freighted one. Section II now turns to exploring the role the ECtHR has carved out for itself in this area. 3. The ECtHR’s Attempt to Define Democratic Rights This section focuses on three areas of the court’s jurisprudence concerning claims of democratic rights: the right to engage in political messaging through paid advertisements; the right to vote; and the right to spend money to attempt to influence electoral outcomes. A. Restrictions on Paid ‘Political Advertising’ Nowhere is the ECtHR’s tentative and ambivalent stance towards its role of overseeing national democratic processes more evident than in its inconsistent and intellectually meandering series of cases addressing the legality of bans on paid political advertisements. Political advertisements are what would be called ‘issue ads’ in American election law; they are not election ads, which advocate the victory or defeat of particular candidates or parties, but ads designed to move public opinion on particular issues. In the Convention countries, the large majority of the Western European countries statutorily ban paid political advertisements on certain media, along with several countries from Central and Eastern Europe (the specifics of these bans vary).24 Some countries in Western Europe, by contrast, do permit these ads, as well as many of the Central and Eastern European countries. Typically, these restrictions apply only to non-print media, such as television and radio. The breadth of these restrictions is remarkable from an American perspective, in particular. Unlike regulation of the more narrowly bounded electoral process, which applies only during the limited time frame of what is known as ‘the election period’, these restrictions apply at all times. The restrictions apply to political parties and candidates, as well as any organization whose paid messages are directed to a political end. Consider the structure of the bans in the main cases that have come before the ECtHR. In Norway, for example, the relevant 1992 statutory provision stated that: ‘Broadcasters cannot transmit advertisements for life philosophy or political opinions through television. This applies also to teletext.’25 In Switzerland, the law provided that: ‘Religious and political advertising is prohibited, as is advertising for alcoholic beverages, tobacco and medicaments. To protect juveniles and the environment, the Federal Council may ban other advertisements.’26 In the UK, the 2003 Act (enacted without dissent)’s prohibitions on paid political advertising on television and radio states that the prohibition is violated by ‘(a) an advertisement which is inserted by or on behalf of a body whose objects are wholly or mainly of a political nature; (b) an advertisement which is directed towards a political end; or (c) an advertisement which has a connection with an industrial dispute’.27 The principal justification for these bans is essentially that they level the playing field of public debate by avoiding the risk that those with greater resources will dominate the most important modes of communication affecting public discourse. Thus, the UK Parliament had concluded that the prohibition was necessary to ‘avoid the unacceptable risk that the political debate would be distorted in favor of deep pockets funding advertising in the most potent and expensive media’.28 Arguing that the objective of the law was to ‘enhance the public debate’, the UK asserted that ‘[u]nregulated broadcasting of paid political advertisements would turn democratic influence into a commodity which would undermine impartiality in broadcasting and the democratic process.’29 In addition to this justification, states argue that such restrictions improve the ‘quality’ of public debate, because paid political ads on issues are conveyed without any immediate opposition or critical journalistic filter, and hence would paint a ‘manufactured picture’ not all that different in tone or substance from that ‘found in propaganda in totalitarian regimes’.30 Some states also claim the absence of such bans would increase social divisiveness. Context matters in assessing how the ECtHR has applied the human rights provisions of the Convention to these restrictions. Thus, in the first of the most important cases in this series, VgT (2001), the challengers were an organization devoted to animal protection, which centered on the use of animals in industrial food production. They wanted to run a paid ad showing poor conditions for pigs reared for industrial food production which ended with the line: ‘Eat less meat, for the sake of your health, the animals and the environment.’31 The ad, they argued, was in response to commercial touting the meat industry. Animal rights were also the basis for the challenge in the recent Animal Defenders case from the UK, in which an NGO wanted to run a 20-s television ad against locking up primates; the ad involved the image of an animal cage in which a girl in chains slowly emerged from the shadows. In yet other cases, the challengers have been minor political parties; in Norway, ‘the Pensioners Party’ wanted to run ads identifying that party’s issues that ended by asking for the viewer’s vote.32 The party argued that, as a minor party, it had trouble attracting media attention and did not have the same access the larger parties had to debates and other initiatives in the news, nor was the Pensioners Party identified in opinion polls. Absent these paid ads, the party argued it had little possibility of being heard. From the perspective of American constitutional law concerning the freedom of speech, these are all extremely easy cases: they involve content-based regulation of political communication and would be transparently unconstitutional. Indeed, most American constitutional lawyers would likely find it shocking that other democracies have these bans on paid political ads; legally sophisticated Americans are perhaps aware that European states ban hate speech, or use public financing of elections, but the idea that could be legal to ban paid advertising on public issues of the day would probably surprise even these sophisticated American lawyers, as well as astound them. These would not be controversial issues in American constitutional law; these restrictions would not be unconstitutional for reasons having anything to do, for example, with the controversial US Supreme Court decision in the Citizens United case,33 but for more basic and fundamental reasons than that. While ongoing doctrinal and political controversy roils the USA over whether government should have the power to regulate spending on election-related speech, there is overwhelming doctrinal consensus, and always has been, that the free speech guarantees of the First Amendment would be violated were the government to try to ban paid ads that seek to persuade people on matters of public policy outside the context of elections. Indeed, in the USA, the issue has been whether it is possible conceptually, legally and practically to regulate differently in the domain of general public debate—where regulation is widely understood to be off limits—and the domain of elections, where reformers focus.34 But the notion that the government could ban animal-rights groups from taking out television ads to promote their perspective on that issue would be immediately ruled out as unconstitutional. From its position as a supranational court, faced with different approaches in practice to this question across the Convention countries, how does the ECtHR instead address the issue? In all these cases, the restrictions had been approved by the highest level domestic court applying domestic law, including any domestic constitution. The legal challenge arises under Article 10 of the ECHR, the provision that protects ‘freedom of expression’ as a fundamental human right across the signatory countries. After recognizing this right in section 1, Article 10 goes on in section 2 to delimit in general terms the kind of justifiable reasons that states can limit this freedom by law if such limits are ‘necessary in a democratic society’ and rest on certain legitimate aims. The enumerated legitimate aim states offer for these restrictions is ‘the protection of the rights of others’; fairly quickly in its jurisprudence and without extensive analysis, the ECtHR accepted that the ‘rights of others’ could be understood to include the right to ‘protect the democratic process’ and the ‘impartiality’ of broadcast media on matters of public interest.35 Thus, the cases turn on whether these restrictions are also ‘necessary in a democratic society’. One sign that the ECtHR cannot resolve what its proper role ought to be in overseeing the designing of democratic processes is that the court cannot reach consistent answers on a technical or methodological question. The question is whether the court ought to address legislatively created regulations of the political process, such as these restrictions, as a matter of what American courts would call the ‘facial’ constitutionality of the restrictions or at the level of the effect in application of these restrictions on a case-by-case or ‘as applied’ level of analysis.36 In the ECtHR context, this involves review of what are called ‘general measures’, meaning policies that operate in terms of general rules. If the court assesses Convention compliance in terms of the ‘facial’ constitutionality of these provisions, that means evaluating whether the rule as a rule has sufficient justification; if it does, then the rule is valid, regardless of whether as applied in specific contexts the operation of the rule might seem overinclusive, with respect to the general purposes of the legislation. If the court takes an as-applied approach, in contrast, the court then asks on a case-by-case basis whether the legitimate justifications for such restrictions are actually furthered or not—in the court’s view—by permitting the legislative rule to be applied to the particular actor before the court. Initially, the ECtHR was somewhat sympathetic to these kinds of challenges to bans on political advertising through employing an as-applied method to resolving these cases.37 In the VgT case, the court accepted the general legitimacy under the Convention of these bans. But having done that, the court decided to apply Article 10 differently depending on the type of group and ads involved. Thus, the court looked at the particular animal rights group involved there and concluded that it was too small and financially low scale to pose the risks the ban was designed to avoid; the court concluded that it did not constitute ‘a powerful financing group which, with its proposed commercial, aimed at endangering the independence of the broadcaster, at unduly influencing public opinion or at endangering equality of opportunity among the different forces of society’.38 In addition, the court suggested that the fact that these bans applied only to certain media and not others undermined the claim that that the measures were ‘necessary’ in a democratic society. Through this style of decision, the ECtHR seemed to be position itself as a case-by-case arbiter throughout Europe of which kinds of groups and ads to which these bans could be applied. Which groups would be financially ‘small enough’ to be protected under Article 10? Which ads would or would not ‘unduly influence’ public opinion or ‘endanger equality of opportunity?’ Applying this same approach to the efforts of a minor political party to run its ads in Norway, the court similarly applied this case-by-case approach and concluded that a minor political party was not the kind of group meant to be a target of the ban, which was aimed at parties that ‘because of their relative financial strength might have obtained an unfair advantage over those less endowed by being able to spend most on broadcast advertising’.39 The court accepted that the paid ads were the only effective way for the minor party to get its message out, and it was also willing to judge that nothing in the ads would lower the ‘quality’ of public debate. Yet having decided these cases in the last 15 years, the ECtHR turned around in its most recent confrontation with these issues and took a fundamentally different approach and reached essentially the opposite conclusion. After the VgT case, some of the Convention countries modified their restrictions on political advertising, in efforts to comply with the decision.40 The UK, however, did not. As noted above, the UK restrictions are particularly broad: they are triggered by the political nature and character of either the organization paying for the ad or the political character and content of the ad itself. The term ‘political’ encompasses most issues of public interest and it applied outside any narrowly defined ‘electoral period’. As in VgT, the challengers were an animal rights organization here too; as noted above, they wanted to run ads condemning the keeping and exhibition of primates and their use in television. Based on the court’s prior decisions, it would seem clear that the court would require the UK to make an as-applied exception to permit the Animal Defenders organization to run its paid ads. Yet the court, nonetheless, decided to uphold the UK’s restriction and refusal to permit this group to run its ad. I will first explore how the court justified this result in legal terms, and the debate within the sharply divided 9-8 court, before turning to assessing the larger political and cultural context in which this decision took place. Formally, the court began its analysis by proclaiming that the MA was a ‘narrow one’ in cases such as this, given that the regulation arguably impinged on rights of free expression. Yet having announced that, the court later in the opinion manifested its uncertainty in overseeing national democratic processes by turning around and ‘recalling’ that ‘there is a wealth of historical, cultural and political differences within Europe so that it is for each State to mold its own democratic vision’.41 As Oddny Arnardottier points out in her contribution to this Symposium, the court then relied heavily on what it considered a highly deliberative legislative process within the UK that had produced this restriction, along with the processes of judicial review in the UK (both the High Court and the House of Lords) that had held the restriction to be consistent with the Convention, as the domestic courts interpreted the Convention. To the court, it seemed to matter both that the UK had a more than 50-year history of having such restrictions in place, that the UK parliament had extensively reviewed this restriction in the context of re-assessing communications policy more generally, and that in the recent Communications Act of 2003, the restriction had been re-enacted in Parliament without dissent—the court called the domestic processes in the UK ‘of central importance’ to its decision to uphold the restriction. Beyond accepting the judgment of UK authorities as to the necessity and proportionality of the restriction, the ECtHR’s decision actually contains precious little actual analysis explaining why it is now upholding this kind of restriction and exactly why this case is so different from the prior ones coming out the other way. Indeed, the key move in the opinion is the court’s implicit shift to analysing this kind of restriction in ‘facial’ rather than ‘as-applied’ terms; the court hardly even directly acknowledges this shift, let alone explains why such a radical break from the prior cases is warranted. The court essentially simply announces that to determine proportionality, it must primarily assess the legislative choices underlying the policy—that is, it must assess the policy as a rule, on its face. The closest the court comes to acknowledging how dramatic a change it is making from its prior cases is through the (mysterious and incoherent) statement that ‘the more convincing the general justifications for the general measure are, the less importance the Court will attach to its impact in the particular case’.42 In other words, if a measure is really valid, the court will not engage in any as-applied analysis; but if a measure is partially pregnant—if it is merely valid, but not really really valid—the court might engage in as-applied, case-by-case application of the rights analysis the Convention entails. Yet, these are not the only technical areas in which the court’s analysis is radically different from that in the Swiss and Norwegian cases, while the court in those cases considered singling out only radio and television for the restrictions, as opposed to including newer media as well (such as the Internet) to undermine the state’s case for how necessary the measure was, in Animal Defenders the court concluded that precisely this difference marked a ‘coherent’ distinction based on ‘the particular influence of the broadcast media’.43 And while the court noted that there had been some movement away from employing these restrictions in the Convention states, partly in response to the court’s own earlier decisions, that too did not weigh heavily against the UK restriction, for the court celebrated the value of national diversity in choosing how to structure the democratic process. In a cogent concurring opinion, the British judge argued more explicitly that facial analysis was the appropriate judicial methodology to apply to legislative regulations of the democratic process and much more directly acknowledged the conflict with the court’s earlier cases. He essentially urged the court to overrule those earlier decisions. And an impassioned eight-Justice dissent correctly and sarcastically proclaimed that the ‘inescapable conclusion’ was that a prohibition on political advertising was proportionate and necessary for Swiss democracy, but not for that in the UK. Calling this a ‘double standard’, the dissenters applied the kind of analysis that would be much more familiar to an American court, calling the restriction ‘well-intentioned paternalism’ and a ‘benevolent silencing of all voices (except those of the political parties)’ that ought to violate Article 10.44 Even sophisticated academic commentators on the Court who praise the decision in Animal Defenders acknowledge how surprising the outcome was, in light of the prior cases on this issue.45 I agree with the editors of one of the leading social–scientific studies of the court that understanding the ECtHR, like understanding all courts, requires ‘analysis of the interdependency between the evolution of European human rights law and the changing socio-political and institutional contexts in which this development is embedded’.46 One cannot understand the dramatic change in approach taken in Animal Defenders without appreciating how much the court’s approach to other areas of the law of democracy, under the ECHR, spawned a profound political backlash against the court in at least some countries, particularly the UK. There is a direct linkage, in my view, between how the ECtHR addressed other areas involving claims of democratic rights, particularly the issue of access to the vote the next section addresses, and the court’s about face in the political advertising cases. After surveying two other areas of the court’s work concerning democratic rights, we will look at the broader political and institutional context in which the court has come to function. B. Access to the Vote for Prisoners A similar battlefield pattern of advance and retreat characterizes another series of ECtHR cases involving the structure of democracy. These cases involve direct access to the ballot box, and arise in the context of those disenfranchised because they have been convicted of crime and are currently serving prison sentences. In recent years, this has become a significant matter of political controversy in the USA, but there, the issue primarily involves those who are disenfranchised even after having fully completed their sentences.47 In the ECtHR cases, the issue primarily involves those currently in prison. The ECtHR has faced enormous political backlash from the UK in this area, a backlash that has surely been on the minds of the judges in subsequent ECtHR cases involving democracy. The saga begins with the well-known Hirst case from 2005. A 1983 UK statute barred convicted prisoners during the period of their penal detention from voting in national or local elections.48 Among the Convention countries, 18 imposed no restrictions on prisoner voting; 13 barred voting; and 12 imposed some restrictions on prisoner voting. The UK provision had been unanimously held by the domestic courts to be consistent with the ECHR, but the ECtHR declared that the UK ban violated Article 3 of the ECHR. Despite the fact that the UK has a relatively small prison population compared to the USA (though average for Europe),49 the decision triggered an enormous outcry in the UK, both in Parliament and the media, and to this day, the UK has continued not to implement the Hirst decision—in probably the single most noteworthy act of political defiance of the court by a major Western European country. Hirst exemplifies the ECtHR in its boldest and most assertive phase. The original ECHR does not actually contain any provision that expressly protects the right to vote, unlike the other individual rights provisions in the Convention. Presumably this absence reflects the fact that the contracting states understood they varied in some respects regarding aspects of how they regulated the voting process. Instead of any individual-rights recognizing provision, the Convention contains a more structurally oriented committed to free and fair elections. Thus, Article 3 of Protocol 1 to the Convention provides that: ‘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.’50 The court acknowledged that ‘at first sight’ this provision did not appear to guarantee any individual right, but it reaffirmed its earlier momentous decision interpreting the provision to nonetheless secure an individual right to vote and hold office.51 The court also acknowledged that the MA was ‘wide’ in this area.52 Yet, the court concluded that the UK law had to be subjected to the kind of analysis required to protect those rights the Convention expressly granted, namely whether the law reflected a legitimate aim and was proportionate to its purpose. Hirst also exemplifies the bizarre methodological approach we have seen in other cases from the ECtHR in the democracy area. The court did not hold that disenfranchisement for those serving sentences was a per se violation of the Convention; it recognized that states were pursuing a legitimate aim in disenfranchising at least some serving time. As examples, the court observed that those who had abused a public position or whose conduct threatened to ‘undermine the rule of law or democratic foundations’ could be barred from voting while serving their sentences.53 Thus, the ban was not unconstitutional in principle. Instead, the problem with the UK ban was procedural: the problem was that the bar was automatic and applied to all convicted prisoners. At some point, the court seemed troubled by the fact that there was no judicial procedure involved in determining whether a specific convicted individual should lose the right to vote. Yet, the court left it mysterious as to what specific questions should be adjudicated on a case-by-case basis and what kind of evidence would be sufficient to enable a judge to determine that loss of the right to vote in a specific case was appropriate.54 It was the automatic nature of the rule, which applied to all those convicted of crimes serious enough to warrant imprisonment, that led the court to conclude that the UK rule could not be sustained. Thus, Hirst reflects, again, the court’s strange discomfort with legislative rules that function as rules; the decision requires some kind of individualized determination in each case as to whether disfranchisement is warranted, based on some unclear calculus of considerations (the decision also seems at odds with the court’s decision 7 years earlier upholding the principle that deprivation of the vote for criminal conviction does ‘not affect the expression of the opinion of the people in the choice of legislature’.).55 The ECtHR presumably did not anticipate the outrage with which Hirst would be greeted in the UK. Indeed, aspects of the opinion suggest the court might have thought the ban rested on outdated moral judgments that the UK had not re-visited and that did not necessarily reflect contemporary values in the UK. If that was the court’s view, it was disastrously wrong. For Hirst was one of the most important triggers to the most consequential political backlash against the court since its creation. Indeed, Hirst has become the source of one of the greatest tests between the court and national democratic authorities in the court’s existence. To this day, the UK has not complied with the Hirst decision. It is hard to overstate the resistance in the UK, across the political spectrum, to complying with the decision in Hirst. Neither Labor nor Conservative governments have sought to implement the decision. In a non-binding 2011 vote, Parliament overwhelmingly rejected any change to the existing legislation. In 2010, the ECtHR tried to add to the pressure on the UK with its follow-up judgment in the Greens case, in which the court used its new ‘ilot judgment procedure’ (in which the court orders a specific remedy, in contrast to ordinary judgments that leave to the states the means of compliance) to instruct the UK to introduce legislative proposals within 6 months to comply with Hirst.56 A special Joint Committee of the UK Parliament was then created, which issued a report in 2013 that compliance would require only minor changes. But Parliament did nothing to act on the report. Upping the level of confrontation, the Committee of Ministers, which monitors compliance with the court’s orders and seeks to ensure implementation, passed the second of two resolutions highly critical of the UK’s defiance. Yet the UK continues to maintain its ban on prisoner voting. Moreover, Hirst has become the most visible flashpoint in the UK—perhaps because the issue is so easily understandable—in the conflict between domestic sovereignty over democratic processes and the authority of the court in Strasberg. Former Prime Minister David Cameron was vehement in his insistence that the UK would not comply;57 ministers of the government have cast the conflict as a matter of ‘democratic principle’. Similarly, when the UK took over leadership of the Council of Europe, during a Conservative and Liberal coalitional government, Prime Minster Cameron’s important speech on the future of the ECtHR invoked Hirst as a prime example of why there had come a need to rein in the court. Calling the prisoner voting rights issue a source of ‘democratic anxiety’ about the proper role of the court, Cameron asserted that the court had failed to recognize a proper ‘margin of appreciation’ when it came to the authority of the Member States.58 The shrinking MA the court was applying was the source of growing controversy about the court, Cameron asserted. Instead, he demanded that there be greater respect for subsidiarity and that the court was discrediting the notion of rights through decisions as in the Hirst case. These principles in Prime Minister Cameron’s opening speech eventually found expression in the jointly issued Brighton declaration, to be discussed below. Hirst also exemplifies another recurring feature of the ECtHR’s positioning concerning issues of the democratic processes of the Member States: the court’s felt need to back away from its initial bold ventures into this terrain. For by 2012, the court stepped back from Hirst to accept a rule-like policy on prisoner disenfranchisement from Italy that was in considerable tension with the position the court had marked out in Hirst. By statute, Italy effectively denied the vote to those sentenced to more than 3 years in prison and to those convicted of certain specific offences, regardless of the length of sentence, such as abuse of public office, ‘market abuse’ and offences against the judicial system. No provision existed for individual judicial determination of the appropriateness of the disenfranchisement; as in the UK, this was an automatic or blanket withdrawal of the vote from those convicted of certain crimes or receiving sentences of more than a certain length. Yet, now the court upheld this ban and sought to re-write the basis of Hirst. In the wake of Hirst, the first section the ECtHR in Frodl v Austria had invalidated an Austrian voting ban that applied only to those convicted of crimes of intent who had received sentences of more than 1 year. Frodl understood Hirst to require an individualized judicial determination before the vote could be withdrawn.59 And yet, the Grand Chamber in the Italian case, Scoppola, disclaimed that any such principle actually underlay Hirst. In language purporting to distinguish Hirst, the Scoppola Court now asserted that ‘[w]hile the intervention of a judge is in principle likely to guarantee the proportionality of restrictions on prisoners’ voting rights, such restrictions will not necessarily be automatic, general and indiscriminate simply because they were not ordered by a judge.’60 The court then upheld the automatic, general disenfranchisement of those sentenced to more than 3 years because ‘the measure is not applied, therefore, to all individuals sentenced to a term of imprisonment but only to those sentenced to a prison term of three years or more’.61 In the court’s view, this made the measure proportionate. (Hirst had been convicted for manslaughter, Scoppola for murder.) As a purely legal matter, it is hard to accept the court’s attempt to re-write the basis for Hirst.62 Instead, the decision in Scoppola is better seen as a fundamental retreat from the principles of Hirst, presumably in response to the critique of the court launched against the Hirst decision in the UK and the refusal of a major country to accept the decision in Hirst.63 As the dissenting judge in Scoppola wrote: ‘The present judgment offers a very narrow interpretation of the Hirst judgment and [is] in fact a retreat from the main arguments advanced therein. Regrettably the judgment in the present case has now stripped the Hirst judgment of all its bite as a landmark precedent for the protection of prisoners’ voting rights in Europe.’64 As in the campaign-finance area, discussed below, the ECtHR’s advance and retreat in this area has now put the court in an even more difficult position going forward. Once again, it has made itself the arbiter of questions of degree, rather than principle—in this context, with regard to which forms of prisoner disenfranchisement provisions are valid. Had the court stuck to the principle that only judges could make decisions about disenfranchisement, the court would at least have rested on a clear legal principle (although a bizarre one). Had the court ruled that disenfranchisement for criminal conviction was a per se violation of the Convention—or that disenfranchisement while serving a criminal sentence was a valid basis for disenfranchisement—the court would also have rested on clear legal principles. Instead, the court will now assess on a case-by-case basis whether particular criminal disenfranchisement provisions rest on ‘serious’ enough crimes or ‘long’ enough sentences. That approach is almost certain to create greater political friction with the Convention countries that restrict prisoner voting rights, to the extent the court upholds and rejects various provisions based not on clear, general principles, but on these judgments on much more nebulous questions such as ‘how long’ a sentence is long enough to justify loss of the right to vote while in prison. C. Campaign Finance The ECtHR has not yet faced many cases raising challenges to the more aggressive forms of campaign finance regulation that exist in many Convention countries compared to in the USA, and which could certainly be challenged under Article 10 as violations of the right to freedom of expression. But the way the court has intervened in its one major decision suggests that here too, the court might be setting itself up in a difficult position that the court might have to back away from should many future challenges be brought before it. Most European countries use public financing of elections and most systems of public financing require a panoply of ancillary regulations and restrictions to be effective. In particular, these systems typically tightly regulate or prohibit spending first, by the political parties, which receive the public funds, and then by outside, non-party entities as well. The spending by non-party entities is regulated out of concern that the purposes of public financing would otherwise be compromised; if those purposes include avoiding the ‘distortion’ that many European countries believe is created by unlimited private contributions or spending on elections, that purpose would be undermined if political parties could only spend certain amounts but private entities could spend whatever amounts they wanted. These restrictions on outside spending are designed to avoid the current situation of SuperPacs in the USA, where political parties are capped in the contributions they can receive, but SuperPacs are not if they spend their money only on independent advocacy. The case the ECtHR faced provided virtually the perfect circumstances to present the image of an overweening state seeking to oppress dissident political speech. Arising in 1998, the case again involved the UK, though in the 1990s, the court was prepared to take on the UK. Domestic law prohibited and made criminal any spending during the ‘election period’ in excess of the extravagant sum of 5 pounds (in the UK, the election period typically lasts 4–6 weeks, from the time the incumbent Prime Minister announces the date of the general election until it is held). The restriction applied to spending designed to promote the election of a particular candidate, but not to spending designed to express opinions or communicate political information more generally, including to support political parties. In addition to promoting political equality, the restriction was defended by the government as designed to prevent political debate from being ‘distorted’ by being shifted from matters of general concern to single-issue politics. Ms Bowman was a right-to-life activist who was concerned that the major political parties had endorsed no general policies with respect to abortion and related issues and left votes on these issues to the conscience of individual members of Parliament. She and her organization sought to inform the public, therefore, of how various individual candidates stood with respect to these issues; to do that, she arranged to have more than a million leaflets made and spread throughout the UK doing so. Doing anything to communicate such information costs more than 5 pounds, and she was charged with a criminal offence, with that charge upheld in the UK courts. The major political parties had made abortion an issue of private conscience for their parliamentary members, meaning there was no party position as such on the issue. From one perspective, then, Ms Bowman might be viewed as trying to force the political process, during the election period, to confront a major issue which the large parties had sought to keep off the agenda as too threatening to party cohesion. In a short, confident 14-6 opinion, the ECtHR held that this bar on outside spending violated Article 10.65 The court did not take issue with the general validity of spending restrictions, but with how low the limit had been set in the UK. The court simply concluded that the UK limit resulted for all practical purposes in a ‘total barrier’ to Ms Bowman publishing information with a view to influencing voters in favour of various anti-abortion candidates, though the material did not advocate voting for or against any specific candidate. The court did not examine the legislative or judicial processes in the UK that had led to the adoption of this policy in any detail, nor did it engage in significant comparisons of the level at which these limits were set in various Convention countries. But what does the Bowman decision mean in terms of how much the ECtHR is going to police the campaign spending regulations of countries throughout Europe? The court did not decide the case in terms of any broad general principle; in the USA, of course, the American Supreme Court has held that the First Amendment prohibits any restrictions on independent election spending. But the ECtHR instead decided Bowman in terms of questions of degree: at some point, a cap on third-party spending was too low to be valid under the ECHR. Of course, that raises the question of how the court is going to decide how low is too low. In response to the decision, the UK kept its spending restrictions, but raised the amount of the limit to 500 pounds in general elections and 50 pounds in local elections; no case has yet challenged those caps.66 The situation of Ms Bowman is compelling, from any perspective on democracy. Although she had a small organization behind her, she is much like the solitary pamphleteer, seeking to raise an issue the major parties were avoiding and to inform voters of the candidate’s positions. Can a democratic system really make it a crime to do that? Much like the animal rights organizations in the ‘political advertisement’ cases, she and her organization hardly look like the deep-pocketed commercial organization that reformers fear will undermine political equality by dominating the airwaves through greater access to financial resources. Thus, as in the early political advertisement cases, the court tried to carve out an exception for small players by declaring the UK system unlawful. Yet by going about that in the way the court did, it of course has put itself in a difficult, perhaps untenable position and created considerable legal uncertainty.67 Is the court actually going to decide—and on what basis—what levels of caps on third-party spending across Europe are high enough to be acceptable under the ECHR? Or, as in other areas of its confrontation with the basic democratic structures of the Convention countries, is the court going to back down after this initial foray into applying the right of free expression to caps on election spending? The affirmative right to freedom of expression in section 1 of Article 10 and the limitations in section 2 are all framed at a high enough level of generality—and do not address election spending specifically—that the text alone could be read to permit the court to uphold or invalidate all regulation on election spending, including by third parties. Yet, it is hard to imagine the court invalidating across the board these spending restrictions, which would be in effect to take the position the American Supreme Court took in Buckley v Valeo.68 Given the hostility to the way American elections are financed throughout much of Europe, few decisions would cause more of a backlash against the ECtHR than that. But at the same time, it was also too difficult for the court to accept the principle, when faced with a context like that of Ms Bowman, that all caps on third-party spending are consistent with Article 10. The court thus left itself in an undefined intermediate space, in which some caps are fine and others are not. My own speculation is that Bowman is going to turn out to be cabined in narrowly and not lead the ECtHR to invalidate many more spending caps, if further cases of this type are brought before the court. The domestic courts in some individual states might use domestic constitutional provisions to invalidate certain spending caps as violations of the right of freedom of expression. But even though the provisions in the ECHR on these matters read much the same way as many of the state constitutions of the contracting parties, the legitimacy and role of a supranational court is different. In recent years, we have seen the ECtHR back away from its more aggressive forays into declaring long-standing features of democracy in the Member States to violate the Convention. I suspect the same will be true in the area of campaign finance, and that Bowman will turn out to be a mostly symbolic case—one expressing that there are indeed some limits on how far states can go in shutting down third-party spending during election periods—that will not generate a series of cases declaring other limits invalid as well. 4. OF BRITAIN, BRIGHTON, BREXIT AND JUDICIAL EXITS Hirst, which received extensive coverage in the UK press, was perhaps the most significant catalyst for significant UK-led pushback against the ECtHR.69 As noted above, resistance to the court’s decision was immediate across the major political parties and Parliament unanimously re-enacted the ban the court had declared to violate the ECHR, and the UK continues to defy the court on this issue. Prime Minister David Cameron commented that ‘[i]f parliament decides that prisoners should not get the vote then I think they damn well shouldn’t. It should be a national decision taken in our parliament.’70 But Hirst was only perhaps the most charged, direct confrontation between the UK and the court; cases in which the court precluded the UK from deporting radical Islamic clerics similarly spawned intense British political reaction against the court.71 Calling the ECtHR a ‘court of fourth instance’, after the domestic courts, Prime Minister Cameron led an effort to rein in the court and explicitly invoked Hirst as an example of the court having gone too far. This resistance took concrete shape when the UK government took over the Chairmanship of the Committee of Ministers of the Council of Europe, in 2012. The UK led an effort to cut back on the scope of the court’s authority, for the first time in the history of the ECtHR.72 This effort culminated, initially, in the Brighton Declaration of 2012, a ‘watershed’ in the history of the ECtHR,73 in which 47 Council of Europe states agreed to amend the court’s charter. Although the final version of the declaration was milder than the initial drafts, it was clear to all that the message of Brighton was that some Member State governments were prepared to exercise their political muscle to constrain the court; indeed, since Brighton, the rhetorical challenges to the court have become more pronounced in many European countries.74 Protocol 15, which if it becomes adopted will give effect to the principles of Brighton,75 would add to the Convention’s Preamble an express reference to the principle of subsidiarity and the doctrine of the MA. The commitment to subsidiarity would mean that national authorities should be understood to have the primary responsibility for giving effect to the Convention’s rights. There was no mistaking the fact that Protocol 15 was designed to press the court to take a more limited role in overturning the judgment of domestic actors concerning the meaning of Convention rights, including the democratic rights that had been the basis for Hirst. After the drafting of Protocol 15, the ECtHR also became embroiled in the Brexit debate, as the decisions of the court to declare certain UK practices in violation of the Convention—such as the disfranchisement policy in Hirst—became flashpoints in that debate. All these developments—the immediate reaction to Hirst in the UK, the adoption of Protocol 15, the critique of the court in the Brexit debates, and then Brexit itself—will surely lead to a more chastened court, as perhaps is visible already in recent decisions such as the Animal Defenders case. Indeed, the ECtHR might already be signaling one ‘exit strategy’ it will take to remove itself further from too explosive a continuing engagement with issues of democratic design within democratic states. My co-author, Pamela Karlan, has identified various exit strategies the US Supreme Court has taken for extricating itself from complex, charged areas of democratic institutional design, after the Supreme Court took some initial measures to correct extreme deficiencies regarding American democratic structures.76 Having felt it necessary to undertake an initial intervention, the American Supreme Court came to recognize the risks of putting itself in the position of taking on a continuous role in overseeing certain aspects of American democracy; in response, according to Karlan, the court developed various techniques for limiting its further involvement. In the context of the ECtHR, this is one way of understanding the court’s move towards a more ‘procedural’ mode of review, a movement in the court’s cases that many commentators on the ECtHR have noted, including Professor Arnardottir in this Symposium.77 Through this move, the court has indicated that it will give states a greater MA when the domestic parliamentary and judicial processes reveal that the ctate has paid proper attention to the Convention right at stake; if it has, the court will be more deferential to the way the state has struck the balance between the right and the legitimate justifications for limiting it. Significantly, this approach was deployed most overtly, with the most direct justification from the court, in the Animal Defenders case; it was precisely because of the court’s judgment that the UK Parliament had extensively deliberated over the right to freedom of expression, as codified in the ECHR, when deciding how to regulate political advertisements that the court majority was willing to defer to the ban on paid political advertising. Through this shift towards a more procedural mode of review, the court is suggesting that it will defer to domestic actors as long as they demonstrate that they have focused clearly and deliberatively on the relevant ECHR right when adopting policy that touches upon that right.78 To be sure, there are a variety of difficult normative questions about such an approach. Does it mean, for example, that the same policy might violate the ECHR in one country, because the parliament there did not self-consciously address the Convention right when adopting that policy, but be acceptable in another country because there the Parliament did debate the issue? And how intensively is the court going to be prepared to assess the ‘thoroughness’ of any parliamentary consideration of an issue? Will it be sufficient if the parliament merely makes some reference to the relevant Convention right? But these questions aside, it is easy to see the attraction to the ECtHR of the move towards proceduralized judicial review, particularly for dealing with how various Member States apply ‘democratic rights’. This approach enables the court to continue to police—or give the appearance of policing—the Convention to ensure that the rights it demarcates are being taken seriously, without putting itself in the position of being directly at odds with a Member State by declaring that a certain law actually violates the Convention. At most, the court would declare that a parliament had not engaged in a thorough enough consideration of whether the Convention right needed to be impaired to realize some important, legitimate public policy; if the court reached that conclusion, it would still be open, in principle, for the parliament to re-visit the issue in a more extensive deliberation. This proceduralization of Convention rights thus keeps the court at one remove from direct substantive confrontation with Member State political institutions, while still leaving the court a role to play in ensuring that Convention rights are given due weight. The temptation for the court of this approach is obvious. Through proceduralization of the MA in this way, the court would be giving greater weight to the values of democratic self-government, without the court appearing to withdraw from the field of enforcing democratic rights.79 The ECtHR’s pattern of initial articulation of a strong conception of fundamental rights, only to be followed by a substantial retreat in the face of sharp political opposition within powerful countries, is not limited to cases that involve the structure of democratic politics. The same pattern is evident in the way the ECtHR has addressed the issue of whole life prison sentences. For a brief period of time staring around 2013, the ECtHR, in a series of cases centered around the decision in Vinter v The United Kingdom, seemed to hold that the Convention was violated if a prisoner was given a whole-life sentence without domestic law providing an established mechanism for ongoing review of that sentence with the possibility of release and without the prisoner knowing what he or she had to do to be considered for release. But a few years later, after Vinter also triggered a major political backlash in the UK, the ECtHR walked back from its overture and accepted in Hutchinson v The United Kingdom a regime of whole life sentences from the UK that fell far short of what Vinter seemed to demand. Indeed, one of the leading experts on this issue has said the Hutchinson decision ‘makes no sense’, given the principle seemingly established in Vitner, and that the ECtHR has ‘simply funked the confrontation’ with the UK and accepted a ‘wildly implausible’ position to enable the issue to go away.80 4. CONCLUSION When the ECHR and the court were first created, their main purpose was to provide institutional resistance against the feared return of totalitarian regimes to Europe. Ironically, the court has turned out not to have played a significant role along that dimension in recent years; its willingness and capacity to do so will soon be tested by recent political transformations in countries like Hungary and Poland. Indeed, when the court has acted to resolve cases about the basic democratic processes and structures of the Member States, it has often been in the context of assessing how politics and participation are structured within the otherwise democratic regimes of countries like Switzerland, Norway, the UK, Italy and others. The court has, to be sure, also at times addressed significant questions concerning the structure of democratic institutions in some of the countries of Central and Eastern Europe, and for a window of time, the court’s decisions were viewed as having contributed to strengthening democracy in certain of these countries. In Hungary, for example, the court handed down important judgments that the domestic courts followed on the right to vote, freedom of expression and access to information.81 The court had been less consequential on issues concerning democracy in other former communist countries, such as Poland.82 With the recent rise in both Hungary and Poland of governing parties that are exceptionally aggressive in attempting to entrench themselves in power and subordinating all other institutions, it is too early to know how the court will respond, and whether any of its judgments will be effective in the face of these new challenges. But ironically, at this stage in the court’s history, some of the strongest resistance to the court in its decisions concerning the structure of democratic institutions has come from Western Europe, particularly the UK. As a supranational court not embedded in a larger democratic polity, the ECtHR is on particularly shaky ground when it seeks to challenge the democratic processes of essentially democratic states, particularly when the court does not limit itself to ‘outlier’ practices that only one or two Member States employ. The result of the court’s interventions has been erratic doctrinal practice, in which the court veers inexplicably between whether it ought to review state laws ‘on their face’ or ‘as applied’—whether it ought to accept what the court calls ‘general measures’ regulating the exercise of democratic rights or demand that these measures be evaluated on a case-by-case basis. Similarly, the court appears unable to settle on any clear set of legal principles in this area; thus, the court has not been willing to permit or forbid all bans on paid political advertising; it has not been willing to permit all or no bans on outside electoral spending; it has not been willing to uphold or reject all bans on voting by those currently serving sentences for criminal convictions. Instead, the court has put itself in the position of having to decide questions of degree that do not lend themselves to any clear resolution of principle: how low is too low for caps on outside spending, or how long a prison sentence is long enough to justify denial of the vote while in prison. That position reflects the tentativeness the court has when it takes on these issues. These doctrinal struggles are a manifestation of the deeper political environment within which the ECtHR operates.83 Eyal Benvenisti has pointed out various imperfections that in theory or fact, inevitably characterize democracy. But it does not follow from these concerns that courts, let alone a supranational court, are the best or most legitimate institutional forums for resolving the issues instead. There remains considerable moral and cultural value in the process of self-governance itself, and it is no surprise when national polities defend that value vigorously. Until a thicker sense of political union exists throughout the Convention states, it will remain difficult for the court to impose a uniform understanding of democratic rights on those states. The court has contributed to the integration of Europe through law. But there is a limit on the extent to which courts can play the leading role in any such project—and a limit on the extent to which various polities in Europe today want to be further integrated. I am grateful to the organizers of the Conference on The Margin of Appreciation and Democracy: Human Rights and Deference to Political Bodies, sponsored by iCourts at the University of Copenhagen Faculty of Law. Thanks particularly to Shai Dotan, Dirk van Zyl Smit, Mikael Rask Madsen and Sam Issacharoff for comments and to Jordan Rux for extremely helpful research assistance. Footnotes 1 eg Samuel Issacharoff, ‘Fragile Democracies’ (2007) 120 Harv L Rev 1407; Paul Harvey, ‘Militant Democracy and the European Convention on Human Rights’ (2004) 29 EL Rev 407, 407–20. 2 Mikael Rask Madsen, ‘The Protracted Institutionalization of the Strasbourg Court: From Legal Diplomacy to Integrationist Jurisprudence’ in Jonas Christoffersen and Mikael Rask Madsen (eds), The European Court of Human Rights between Law and Politics (OUP 2011). 3 ibid. See also Samuel Moyn, The Last Utopia: Human Rights in History (Harvard UP 2012). For the classical argument that states created the ECHR to protect their own governments from sliding into dictatorship, see Andrew Moravcsik, ‘The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe’ (2000) 54 Intl Org 217; Ed Bates, ‘The Birth of the European Convention on Human Rights – and the European Court of Human Rights’ in Jonas Christoffersen and Mikael Rask Madsen (eds), The European Court of Human Rights between Law and Politics (OUP 2011) 17, 21 (the court was to ‘be the conscience of free Europe, acting like an “alarm bell” warning the other nations of democratic Europe that one of their number was going “totalitarian”.’) 79–81 (discussing limited role of ECHR in practice before 1970s). 4 ibid 44. By the mid-1970s, the ECtHR had still decided only 17 cases. ibid 80 5 Madsen (n 2) 52. 6 These developments are summarized in Madsen (n 2) and Jonas Christoffersen and Mikael Rask Madsen, ‘Introduction: The European Court of Human Rights between Law and Politics’ in Jonas Christoffersen and Michael Rask Madsen (eds), The European Court of Human Rights between Law and Politics (OUP 2011). 7 See, eg Moyn (n 3) 218 (noting that ‘the slow but sure move toward a politics of human rights was most visible in Western Europe starting in the 1980s, where human rights NGOs proliferated and the newly prominent European Court in Strasbourg symbolized the great strides a rhetoric of human dignity and rights made at every level of the continent’s affairs.’). 8 When the Convention first came into force, signatory states had the discretion to choose to permit individual citizens or residents to petition the court; at the time, only three of the original ten contracting states recognized this right. Protocol No 11 also abolished the previous two-tier structure in which the European Commission of Human Rights had first screened cases for their ‘admissibility’ before they went to the court, and the Protocol also made compulsory assent to the Court’s jurisdiction over the Member States. 9 Mikael Rask Madsen, ‘The Challenging Authority of the European Court of Human Rights: From Cold War Legal Diplomacy to the Brighton Declaration and Backlash’ (2016) 79 Law and Contemporary Problems 140. 10 See the discussion of the Hirst case, below in Section II. 11 The first and still most classic statement of this position is John Hart Ely, Democracy and Distrust (Harvard UP 1981). 12 See, eg Richard H Pildes, ‘The Inherent Authoritarianism in Democratic Regimes’ in Michel Rosenfeld and Andràs Sajó (eds), The Oxford Handbook of Comparative Constitutional Law (OUP 2012). 13 For a general discussion of the conceptual complexities in the judicial application of constitutional rights to the processes of democracy, see Richard H Pildes, ‘Foreword: The Constitutionalization of Democratic Politics’ (2004) 118 Harv L Rev 25. 14 Reynolds v Sims 377 US 533, 565 (1964). 15 For a summary of these developments, see Pildes (n 12). 16 For discussion of how this ascension has affected the ECHR system, see the fine work by Wojciech Sadurski, Constitutionalism and the Enlargement of Europe (OUP 2012). 17 Sidurski, ibid 44–51. 18 ECHR arts 20, 22. A judge from the state in question in a case sits as an ex oficio member of every chamber and Grand Chamber proceeding. ECHR art 26(4). When terms were renewable, a judge’s potential interest in renewal might be considered one mechanism through which domestic political values would have greater capacity to be reflected in judicial behaviour. 19 For discussion of the resistance of Austrian, Spanish and French courts towards decisions of the ECtHR, see N Krisch, ‘The Open Architecture of European Human Rights Law’ (2008) 71 MLR 183, 196. 20 See eg R Ryssdal, ‘The Enforcement System set up under the European Convention on Human Rights’ in MK Bulterman and M Kuijer (eds), Compliance with Judgments of International Courts M.K. Bulterman and M. Kuijer eds., (1996) 49, 67; Andrew Moravcsik, ‘Explaining International Human Rights Regimes: Liberal Theory and Western Europe’ (1995) 1 Eur J Intl Rel 157, 171; Laurence R Helfer and Anne-Marie Slaughter, ‘Toward a Theory of Effective Supranational Adjudication (1997) 107 Yale LJ 273, 296. 21 Sidurski (n 16) 7. Nonetheless, as Sidurski points out, no other supra- or international human rights system comes close to the strength of the system based upon the ECHR. ibid 8. See Madsen (n 9) 172–73 (discussing increasing rates of non-compliance and concluding that ‘partial compliance’ has become the norm in both Western and Eastern Europe); ibid 174 (noting that with respect to the ECtHR ‘highly critical voices speak out in every single European state’ today, including presidents of national supreme courts in several countries). 22 See the discussion of the Hirst case, below. 23 More recent decisions of the court are particularly attuned, at least rhetorically, to these concerns, as in this passage from the decision in S.A.S. v France, ECHR 2014-III 341, para 129: It is also important to emphasize the fundamentally subsidiary role of the Convention mechanism. The national authorities have direct democratic legitimation and are, as the Court has held on many occasions, in principle better placed than an international court to evaluate local needs and conditions. In matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy-maker should be given special weight. 24 A relatively recent summary of state practices can be found in Case of Animal Defenders International v UK ECHR 2013-II 211. 25 TV Vest AS and Rogaland Pensjonistparti v Norway ECHR 2008-V 265, 277, para 22. 26 Case of Verein Gegen Tierfabriken Schweiz (VgT) v Switzerland App no 24699/94 (ECtHR, 28 June 2001) para 28. 27 Animal Defenders (n 24) para 58. 28 ibid, para 88. 29 ibid. 30 TV Vest (n 25) para 43. 31 VgT (n 26) para 56. 32 TV Vest (n 25). 33 Citizens United v FEC 558 US 310 (2010). 34 See Frederick Schauer and Richard H Pildes, ‘Electoral Exceptionalism and the First Amendment’ (1999) 77 Texas L Rev 1803. 35 VgT (n 26) para 24. 36 The most thorough summary of these issues is Richard H Fallon, Jr, ‘As-Applied and Facial Challenges and Third-Party Standing’ (2000) 113 Harv L Rev 1321. 37 One of the tensions in the court’s decision is that, in the context of a ban on paid advertising for religious or political purposes, the court earlier had been willing to accept a general ban on religious ads. In the aptly titled case of Murphy v Ireland, the court essentially addressed the challenge there in facial terms and upheld the general validity of an Irish ban on religious ads, even though the particularly challenger claimed that his ad would not offend anyone’s religious sensibilities and was innocuous. The court took the position that states had a greater margin of appreciation in regulating religious advertising than political advertising, at least at a time when the VgT (n 26) case defined the law with respect to regulation of the latter. 38 VgT (n 26) para 75. 39 TV Vest (n 25) para 72. 40 Rosalind English, ‘Strasbourg Ties Itself in Knots over Advertising Bans’ (UK Human Rights Blog, 23 April 2013) <https://ukhumanrightsblog.com/2013/04/23/strasbourg-ties-itself-in-knots-over-advertising-ban/> accessed 5 September 2016. (‘Vgt inspired a number of member States to repeal their general ban — a change that was effected without major difficulties.’). 41 Animal Defenders (n 24) para 11. 42 ibid para 109. 43 ibid para 119. 44 ibid (Joint Dissent) para 14. 45 Jacob Rowbottom, ‘Animal Defenders International: Speech, Spending, and a Change of Direction in Strasbourg’ (2013) Journal of Media Law 5(1) 1–13; Jacob Rowbottham, ‘A Surprise Ruling? Strasbourg Upholds the Ban on Paid Political Ads on TV and Radio’ (UK Constitutional Law, 22 April 2013) <https://ukconstitutionallaw.org/2013/04/22/jacob-rowbottom-a-surprise-ruling-strasbourg-upholds-the-ban-on-paid-political-ads-on-tv-and-radio/> accessed 05 September 2016. 46 Jonas Christoffersen and Mikael Rask Madsen, ‘Introduction: The European Court of Human Rights between Law and Politics’ in Jonas Christoffersen and Michael Rask Madsen (eds), The European Court of Human Rights between Law and Politics (OUP 2011). 47 For general discussion of this issue, see Issacharoff and others, The Law of Democracy (5th edn, Foundation Press 2016) 28–38. 48 Hirst v UK ECHR 2005-IX 187. 49 The Institute for Criminal Policy Research puts the England/Wales population at around 85,000, compared to around 2.2 million in the USA, with the poor capita rate in the USA about five times that in the UK See <http://www.prisonstudies.org/sites/default/files/resources/downloads/world_prison_population_list_11th_edition_0.pdf> accessed 16 May 2017. 50 Convention for the Protection of Human Rights and Fundamental Freedoms (2010) Protocol 1, art 3. 51 Mathieu-Mohin v Belgium App no 9267/81 (ECtHR, 2 March 1987). 52 Hirst (n 48) para 82. 53 ibid, para 71. 54 At other points, the court came closer to suggesting that the problem with the ban was that it applied without regard to the length of the sentence or the severity of the crime, which suggested that perhaps a more narrowly tailored, but still per se ban for certain offenses or sentences, might have been upheld—but the opinion is far from a model of clarity on the fundamental flaw in the UK ban. 55 Holland v Ireland App no 24827/94 (ECtHR, 14 April 1998) para 2. 56 Greens and M.T. v the United Kingdom App nos 60041/08 and 60054/08 (Final judgment: 11/04/2011). 57 For a summary of the sage of Hirst from a point of view critical of the UK government, see Ed Bates, ‘The Continued Failure to Implement Hirst v UK’ (EJIL: Talk!, 15 December 2015) <http://www.ejiltalk.org/the-continued-failure-to-implement-hirst-v-uk/> accessed 5 September 2016. 58 David Cameron, ‘Speech on the European Court of Human Rights’ (Cabinet Office, London, 25 January 2012) < https://www.gov.uk/government/speeches/speech-on-the-european-court-of-human-rights> accessed 5 September 2016. 59 Frodl v Austria App no 20201/04 (ECtHR, 8 April 2010). As the court in Frodl understandably understood Hirst: ‘Under the Hirst test, besides ruling out automatic and blanket restrictions it is an essential element that the decision on disenfranchisement should be taken by a judge, taking into account the particular circumstances, and that there must be a link between the offence committed and issues relating to elections and democratic institutions (ibid., § 82).’ ibid, para 34. Thus, the ECtHR judges in Frodl took Hirst to impose the requirement that the Grand Chamber of the court rejected as required in Scoppola. 60 Scoppola v Italy (No 3) App no 126/05 (ECtHR, 22 May 2012) para 99. 61 ibid, para 106. 62 Frodl (n 59). 63 Former UK Attorney General Dominic Grieve, a critic of Hirst, stated in ___ that he ‘sensed “a slight measure of embarrassment about the original judgment” on the part of the Court – a judgment which, he added, represented “a high point of activism”.’ LSE European Institute, The Implications of Brexit for Fundamental Rights Protection in the UK (Report of the Hearing Held on 25 February 2016). 64 Scoppola (n 40). 65 Bowman v UK App no 24839/94 (ECtHR, 19 February 1998). For other discussion of Bowman, see Samuel Issacharoff, ‘The Constitutional Logic of Campaign Finance Regulation’ (2008–09) 35 Pepperdine L Rev 379–84. 66 See Jacob Rowbottom, Democracy Distorted: Wealth, Influence and Democratic Politics (CUP 2010) 120. 67 See Keith Ewing, The Cost of Democracy: Party Funding in Modern British Politics (Hart Publishing 2007) 51 (‘This uncertainty about the amount of permissible limits on third-party spending is only one of a number of problems associated with spending limits as a regulatory strategy.’). 68 424 US 1 (1976). 69 See, eg Jon Robbins, ‘What Now for Human Rights in the UK Post-Brexit’ (Halsbury’s Law Exchange, 4 July 2016) <http://www.halsburyslawexchange.co.uk/what-now-for-human-rights-in-the-uk-post-brexit/> accessed 14 September 2016 (‘Unsurprisingly, anti-human rights sentiment cropped up in the official Leave literature which blithely asserted: “If we vote to remain, EU laws will overrule UK laws and the European Courts will be in control of our trade, our borders, and big decisions like whether prisoners are allowed to vote. If we vote Leave, UK laws will have ultimate authority and we will take back control.” ’); Tim Bale, ‘Banging on about Europe: How the Eurosceptics Got Their Referendum’ (Brexit Vote Blog, 23 June 2016) <http://blogs.lse.ac.uk/brexit/2016/06/23/banging-on-about-europe-how-the-eurosceptics-got-their-referendum/> accessed 14 September 2016 (‘The ECHR was not, as sceptics knew full well, an EU institution, but its ability to override British sovereignty was, as far as they were concerned, all of a piece with Brussels and therefore grist to their mill.’); The Week, ‘European Convention of Human Rights: Pros and Cons of Leaving’ (The Week, 26 April 2016) <http://www.theweek.co.uk/72028/european-convention-of-human-rights-the-pros-and-cons-of-leaving> accessed 14 September 2016 (‘Opponents often cite a controversial ruling on prisoner voting and the cases of clerics such as Abu Hamza and Abu Qatada, who were charged with terrorism offenses abroad but avoided extradition from the UK for long periods due to legal battles with the ECHR.’); Anthony Reuben and Peter Barnes, ‘Reality Check: Checking the Vote Leave Leaflet’ (BBC News, 11 April 2016) <http://www.bbc.com/news/uk-politics-eu-referendum-36014941> accessed 14 September 2016 (‘Over the past 43 years, the EU has taken control over more and more areas which don't have anything to do with trade - such as our borders, our public services and whether prisoners have the right to vote.’). 70 See <http://www.theguardian.com/politics/2013/dec/13/prisoners-right-to-vote-david-cameron>. 71 See <http://www.nytimes.com/2012/01/18/world/europe/european-court-overrules-britain-on-terror-detainee.html?_r=0; https://www.theguardian.com/uk/2010/jul/08/abu-hamza-human-rights-ruling>. 72 See <http://www.publications.parliament.uk/pa/jt201415/jtselect/jtrights/71/71.pdf>. 73 Helfer, The Burden and Benefits of Brighton, ESIL Reflections. 74 See Madsen (n 9) 175 (‘Since the Brighton Delcaration Europeans have gotten accustomed to a different kind of discourse where both the judgments and the judges are scolded by not only fuming heads of state but also the press and senior members of the legal profession.’). 75 Protocol 15 enter into force only if and when signed and ratified by all the Convention State Parties. As of the date this article went to press, around 33 states have done so. For a listing of the states that signed and ratified protocol 15 so far, see <https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/213/signatures?p_auth=205qv74f>. 76 Pamela S Karlan, ‘Exit Strategies in Constitutional Law: Lessons for Getting the Least Dangerous Branch out of the Political Thicket’ (2002) 82 Boston Univ L Rev 667. 77 See also Matthew Saul, ‘The European Court of Human Rights’ Margin of Appreciation and the Processes of National Parliaments’ (2015) 15 Human Rights L R 745. 78 There is a family resemblance here to the proceduralist way the Canadian Supreme Court handled the explosive question concerning basic democratic structures of whether Quebec had a right to secede under the Canadian Constitution. Rather than resolve this issue in substantive terms, the court concluded that Quebec had the right to initiate a dialogue on secession with the national government, if a ‘clear majority’ of Quebec voters voted in a referendum in favour of a ‘clear question’ asking about their desire to secede. See Sujit Choudhry, ‘Popular Revolution or Popular Constitutionalism? Reflections on the Constitutional Politics of Quebec Secession’ in Richard W. Bauman and Tsvi Kahana (eds) The Least Examined Branch: The Role of Legislatures in the Constitutional State (CUP 2006) 480, 487. 79 An insightful article argues that the ECtHR uses the MA as a tool of prudence, rather than any doctrine of ‘principled institutional deference’, and that the MA allows the court ‘to avoid a final determination of the content or scope of a particular Convention right while nevertheless maintaining its supervisory function and the possibility of revisting the question’. Erin Delaney, ‘Analyzing Avoidance: Judicial Strategy in Comparative Perspective’ (2016) 66 Duke LJ1, 28–43. 80 See Professor Dirk van Zyl Smit, Testing the Limits of Judicial Activism: The Life Imprisonment Jurisprudence of the European Court of Human Rights and Its Global Impact (Hoffinger Lecture, NYU School of Law, 27 March 2017). 81 Karoly Bard, ‘Hungary: The Legal Order of Hungary and the European Convention on Human Rights’ in Iulia Motoc and Ineta Ziemele (eds), The Impact of the ECHR on Democratic Change in Central and Eastern Europe: Judicial Perspectives (2016) 176, 199. 82 A 2016 survey of the cases from Poland concludes that Polish cases concerning ‘democracy and pluralism’ did not constitute a large portion of the cases concerning Poland that had gone to the ECtHR, with the most important cases involving criminal defamation laws and Poland’s lustration law. Lech Garlicki and Ireneusz Kondak, ‘Poland: Human Rights Between International and Constitutional Law’ in Iulia Motoc and Ineta Ziemele (eds), The Impact of the ECHR on Democratic Change in Central and Eastern Europe: Judicial Perspectives (ECHR 2016). 83 For an excellent analysis of the changing geopolitical contexts in which the court has operated since its creation and the effects of those changes on the court’s role, see Madsen (n 9). © The Author 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

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Journal of International Dispute SettlementOxford University Press

Published: Jun 19, 2017

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