L’intensité variable du contrôle dans la jurisprudence électorale de la Cour européenne des droits de l’homme

peer reviewedThe paper will focus on the electoral case law of the European Court of Human Rights. When they are called upon to verify the conformity of electoral legislation with the European Convention on Human Rights, the Court operates a judicial test whose intensity varies according to the precise electoral law matter that is under review. In other words, there is a clear judicial activism in some areas, while deference remains a strong trend in others. For instance, the Courts uses strict scrutiny when it comes to determining the boundaries of the electorate. Indeed, it tends to rule out provisions that exclude certain citizens from the right to vote, such as prisoners (ECtHR, Hirst v. United Kingdom (No. 2), 2005), despite the nuances brought by subsequent case law (ECtHR, Scoppola v. Italy (No. 3), 2012), or persons who lack legal capacity because of their mental health (ECtHR, Alajos Kiss, 2010). On the other hand, the ECtHR, remains far more deferent when it reviews rules regulating the voting system. This trend can be seen, for example, in cases regarding the voting method (ECtHR, Matthews v. United Kingdom, 1999; Riza v. Bulgaria, 2015), the establishment of electoral thresholds (ECtHR, Yumak and Sadak v. Turkey, 2008). Between these two extremes, there are fields of electoral law where the case law seems to be more hesitant. This is particularly the case in the area of post-election litigation. On the one hand, the European Court of Human Rights requires the respect of a certain standard of quality in the organisation and implementation of the procedures for contesting the result of elections (ECtHR, Davydov v. Russia, 2017), on the other hand, it also refrains from radically opposing traditional, yet questionable, institutions such as parliamentary self-control (ECtHR, Mugemangango v. Belgium, 2020). From this heterogeneous case law, it appears that the European Court of Human Rights contributes to the consolidation of the right to participate in elections as a voter or as a candidate, but that it interferes less in the control of the electoral "rules of the game", leaving national legislators a considerable margin of appreciation when it comes to choosing or maintaining a certain type of democracy or institutional system, even when it favours the dominant political parties. It is thus genuinely accepted that electoral rules may seek to "channel currents of thought so as to promote the emergence of a sufficiently clear and coherent political will" (ECtHR, Cernea v. Romania, 2018, § 35)