Summary
States must take the steps necessary to give effect to human rights.
Election Parts
Issues
- The Election Calendar and Enjoyment of Rights
- The Content of Voter Education Campaigns
- Provision of Voter Education by the Electoral Management Body
- The Right to an Effective Remedy, Including Challenging Election Results
- Right to an Effective Remedy and Voting Operations
- Choice of the Electoral System
- International Human Rights Obligations and the Legal Framework
- Legal Framework for Voting Operations
- Electoral Management Body Responsibility for Protection of Rights
- Independent Body to Regulate Broadcasting During Elections
- Determining Voter Intent
- Training of Polling and Counting Workers
- Voter Registration and the Fulfillment of Human Rights
- Training for Election Officials
Criteria
- Voter education efforts included information about all electoral rights, including equal suffrage, the right to vote and be elected, the right to an effective remedy, and the secret ballot
- The electoral calendar allowed sufficient time for all aspects of the electoral process to take place, including vote counting
- The scheduling of elections granted sufficient time for a complete and comprehensive voter education program
- The state took the steps necessary to give effect to rights during voter education
- The state took the steps necessary to give effect to rights during the electoral process, including through the dispute resolution process
- Steps were taken to prevent and punish fraud and electoral offenses
- The legal framework for elections was consistent with international human rights
- The electoral system allowed multiparty participation and actual and equal representation
- The legal framework for elections included the protection of fundamental rights and made international obligations domestically binding
- The electoral management body took steps to implement an electoral process that fulfilled and protected human rights
- An electoral management body implemented elections with adequate time to implement all parts of the electoral process
- The electoral calendar included adequate time to implement all parts of the electoral process, including the electoral dispute resolution processes
- The state took the steps necessary to guarantee rights with regard to the media; for example, through the establishment of an independent body to regulate election broadcasts
- The state took the steps necessary to give effect to rights during the vote counting process
- The state educated officials and citizens on the vote counting and tabulation process
- The state took the steps necessary to give effect to rights during the voter registration process, including the creation of an effective procedure for voter registration
- The state educated officials and citizens on the voting process
Quotes
- The Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms set out in the present convention.
- The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this convention.
- State Parties shall: (…) 3. enact legislation and take other measures that protect the right of older persons to express opinions and participate in social and political life.
- The Member States of the Organization of African Unity parties to the present Charter shall recognize the rights, duties and freedoms enshrined in this Chapter and shall undertake to adopt legislative or other measures to effect to them.
- States parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all race.
- State Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating the discrimination against women and to this end, undertake: (g) to repeal all national penal provisions which constitute discrimination against women.
- Where the exercise of any of the rights or freedoms referred to in Article 1 is not already ensured by legislative or other provisions, the States Parties undertake to adopt, in accordance with their constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to those rights or freedoms.
- The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
- State Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating the discrimination against women and to this end, undertake: (f) to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women.
- State parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating the discrimination against women and to this end, undertake: (e) to all appropriate measures to eliminate discrimination against women by any person, organization or enterprise.
- To adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention; (b) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities; (c) To take into account the protection and promotion of the human rights of persons with disabilities in all policies and programs.
- State parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating the discrimination against women and to this end, undertake (d) To refrain from engaging in any act of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation.
- Where not already provided for by existing legislation or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislation or other measures as may be necessary to give effect to the rights recognized in the present Covenant.
- The State’s general obligation to adapt its domestic laws to the provisions of the Convention in order to guarantee the rights it embodies, which is established in Article 2, includes issuing norms and developing practices that lead to the effective observance of the rights and freedoms embodied in the Convention, as well as adopting measures to eliminate norms and practices of any nature that entail a violation of the guarantees established therein.
- With the exception of some rights that cannot be restricted in any circumstance, such as the right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment, human rights are not absolute. As the Court has established previously, the establishment and application of requirements to exercise political rights is not, per se, an undue restriction of political rights. However, the power of the States to regulate or restrict rights is not discretional, but is limited by international law, which requires compliance with certain obligations that, if they are not respected, make the restriction unlawful and contrary to the American Convention. As established in Article 29(a) in fine of this instrument, no provision of the Convention shall be interpreted as restricting them to a greater extent than is provided for therein.
- Article 23 contains various norms that refer to the rights of the individual as a citizen; that is, as titleholder of the decision-making process in public matters, in his capacity as a voter by means of his vote, or as a public servant; in other words, to be elected by the people or by appointment or designation to occupy a public office. In addition to possessing the particularity of dealing with rights recognized to the citizen, as distinct from almost all the other rights established in the Convention that are recognized to every person, Article 23 of the Convention not only establishes that its titleholders must enjoy rights, but adds the word “opportunities.” The latter implies the obligation to guarantee with positive measures that every person who is formally the titleholder of political rights has the real opportunity to exercise them. As the Court has previously indicated, it is essential that the State create optimum conditions and mechanisms to ensure that political rights can be exercised effectively, respecting the principle of equality and non-discrimination.
- The object and purpose of the Convention, which is an instrument for the protection of human rights, requires its provisions to be interpreted and applied in such a way as to make their stipulations not theoretical or illusory but practical and effective (see, among many other authorities, United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 33, Reports of Judgments and Decisions 1998-I; Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 100, ECHR 1999-III; and Lykourezos v. Greece, no. 33554/03, § 56, ECHR 2006-VIII). The right to stand as a candidate in an election, which is guaranteed by Article 3 of Protocol No. 1 and is inherent in the concept of a truly democratic regime, would be merely illusory if one could be arbitrarily deprived of it at any moment. Consequently, while it is true that States have a wide margin of appreciation when establishing eligibility conditions in the abstract, the principle that rights must be effective requires that the eligibility procedure contain sufficient safeguards to prevent arbitrary decisions (see Podkolzina, cited above, § 35). This principle requiring prevention of arbitrariness is equally relevant in other situations where the effectiveness of individual electoral rights is at stake (see, mutatis mutandis, Kovach v. Ukraine, no. 39424/02, § 55, ECHR 2008).
- The Court has stated that it cannot be considered that every difference in treatment, in itself, violates human dignity. The Court has also distinguished between distinctions and discriminations, so that the former are differences that are compatible with the American Convention because they are reasonable, proportionate and objective, while the latter are arbitrary differences that lead to the detriment of human rights.
- States must take effective measures to ensure that all persons entitled to vote are able to exercise that right.
- The object and purpose of the Convention, which is an instrument for the protection of human rights, requires its provisions to be interpreted and applied in such a way as to make their stipulations not theoretical or illusory but practical and effective (see, for example, United Communist Party of Turkey and Others v. Turkey, 30 January 1998, Reports of Judgments and Decisions 1998-I, § 33, and Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 100, ECHR 1999-III).
- The exceptions set out in Article 11 are to be construed strictly; only convincing and compelling reasons can justify restrictions on freedom of association. In determining whether a necessity within the meaning of Article 11 § 2 exists, the States have only a limited margin of appreciation, which goes hand in hand with rigorous European supervision embracing both the law and the decisions applying it, including those given by independent courts (see, for example, Sidiropoulos and Others, cited above, § 40). That is especially so in relation to political parties in view of their essential role in “a democratic society” (see, for example, United Communist Party of Turkey and Others, cited above §§ 25, 43 and 46).
- It should be recalled that the right to vote is not a privilege. In the twenty-first century, the presumption in a democratic State must be in favour of inclusion (see Hirst (no. 2), cited above, § 59; and Sitaropoulos and Giakoumopoulos, cited above, § 67). The exclusion from the right to vote of any groups or categories of the general population must be reconcilable with the underlying purposes of Article 3 of Protocol No. 1 (see Ždanoka, cited above, § 105; and Sitaropoulos and Giakoumopoulos, cited above, § 67). Any general, automatic and indiscriminate departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws it promulgates (see Hirst (no. 2), § 62; and Sitaropoulos and Giakoumopoulos, cited above, § 68).
- Consequently, the State not only has the general obligation established in Article 1 to ensure the enjoyment of the rights, but has specific guidelines to comply with its obligation. The electoral system that the States establish in accordance with the American Convention should make it possible to hold genuine periodic elections, by universal and equal suffrage, and by secret ballot that guarantee the free expression of the will of the voters. Hence, this gives the State a specific mandate in relation to the mechanisms that it should choose to comply with its general obligation “to ensure” the enjoyment of the rights established in Article 1 of the Convention, compliance that, as Article 1(1) states in general, should not be discriminatory.
- The Court considers that the effective exercise of political rights constitutes an end in itself and also a fundamental means that democratic societies possess to guarantee the other human rights established in the Convention.
- In the sphere of political rights the guarantee obligation is especially relevant and is implemented, among other mechanisms, by the establishment of the organizational and institutional aspects of the electoral processes, and by the enactment of norms and the adoption of different types of measures to implement the rights and opportunities recognized in Article 23 of the Convention. In the absence of this action by the State, the right to vote and to be elected could simply not be exercised. The political and other rights established in the Convention, such as the right to judicial protection, are rights that “cannot be merely by virtue of the provisions that embody them, because they are, by their very nature, ineffectual without a detailed normative regulation, and even without a complex institutional, economic and human apparatus that endows them with the effectiveness they claim, as rights under the Convention[…]; if there were no electoral codes or law, electors’ lists, political parties, propaganda media and mobilization, polling stations, electoral boards, dates and times for exercising the vote, the right could simply not be exercised, due to its very nature; similarly, the right to judicial protection cannot be exercised unless there are courts that grant this right, and procedural norms that discipline it and make it possible.
- Whatever the form of constitution or government is in force, the Covenant requires States to adopt such legislative and other measures as may be necessary to ensure that citizens have an effective opportunity to enjoy the rights it protects.
- Political rights are human rights of fundamental importance within the inter-American system and they are closely related to other rights embodied in the American Convention, such as freedom of expression, and freedom of association and assembly; together, they make democracy possible. The Court underscores the importance of political rights and recalls that Article 27 of the American Convention prohibits their suspension and establishes the judicial guarantees essential for their protection.
- Ensure full, effective and equal participation of all citizens in political and public affairs.
- In exercising this right, they will ensure that their laws, regulations, practices and policies conform with their obligations under international law and are brought into harmony with the provisions of the Declaration on Principles and other CSCE commitments.
- [Consider] signing and ratifying or acceding to the International Covenant on Civil and Political Rights and other core international human rights treaties.
- States have a positive obligation to promote the right to freedom of peaceful assembly. This requires States not merely to refrain from interfering with assemblies, but also to take positive steps to enable individuals to express their views, including through protecting assemblies from attacks by third parties and by otherwise facilitating the ability for the right to freedom of assembly to be exercised.
- The holding of democratic elections and hence the very existence of democracy are impossible without respect for human rights, particularly the freedom of expression and of the press and the freedom of assembly and association for political purposes, including the creation of political parties. Respect for these freedoms is vital particularly during election campaigns. Restrictions on these fundamental rights must comply with the European Convention on Human Rights and, more generally, with the requirement that they have a basis in law, are in the general interest and respect the principle of proportionality.
- Democratic referendums are not possible without respect for human rights, in particular freedom of expression and of the press, freedom of movement inside the country, freedom of assembly and freedom of association for political purposes, including freedom to set up political parties.
- The Commission considers that the act of ratifying the American Convention presupposes acceptance of the obligation of not only respecting the observance of rights and freedoms recognized in it, but also guaranteeing their existence and the exercise of all of them. It is these elements of political rights presented in item 5 of this document that the State commits itself not only to respect but “guarantee their full and free exercise,” according to Article 1.1 of the Convention. It must be pointed out that the Inter-American Court of Human Rights in its Decision of July 29, 1988, in the case of Velásquez Rodríguez, has stated that Article 1.1 of the Convention: Article 1 (1) is essential in determining whether a violation of the human rights recognized by the Convention can be imputed to a State Party. In effect, that article charges the States Parties with the fundamental duty to respect and guarantee the rights recognized in the Convention. Any impairment of those rights which can be attributed under the rules of international law to the action or omission of any public authority constitutes an act imputable to the State, which assumes responsibility in the terms provided by the Convention.
- The underlying principles of European electoral systems can only be guaranteed if certain general conditions are fulfilled. • The first, general, condition is respect for fundamental human rights, and particularly freedom of expression, assembly and association, without which there can be no true democracy; • Second, electoral law must enjoy a certain stability, protecting it against party political manipulation; • Last and above all, a number of procedural guarantees must be provided, especially as regards the organisation of polling.
- The Special Rapporteur makes the following recommendations to States: (a) Adopt and implement legislation prohibiting and criminalizing violence against women in politics or incorporate adequate provisions into existing laws on eliminating violence against women, consistent with international and regional human rights standards. That includes laws to prohibit sexism, harassment and other forms gender-based violence against women in politics, public life and parliament. Laws must be comprehensive enough to cover new forms of violence, including online or ICT-facilitated violence against women.
- Violence against women in politics, as all forms of gender-based violence, constitutes a violation of human rights and is a form of discrimination against women prohibited under international human rights standards, under which States have due diligence obligations to prevent, investigate and punish acts of violence against women, whether they are perpetrated by State or non-State actors. States, therefore, have a duty to eradicate and prevent acts of violence against women in politics.
- Article 4 of the CEDAW stipulates that ‘temporary special measures aimed at accelerating the de facto equality of men and women shall not be considered discrimination’. This opens the possibility for countries to implement a policy of reserved seats or quotas for women.
- Furthermore, it is commonly agreed that policy and security forces should not routinely be inside (or even outside) the polling station, as this may have an intimidating effect on voters, especially in countries with a rather poor democratic tradition or in (post-)conflict situations. As a rule, the police should only be allowed to enter the polling station when asked by the chairman of the respective electoral commission to secure order. Of course, it should only be called when the situation could otherwise get out of control.