What is the right to free elections?
The right to free elections is fundamental to democracy and this is one of the most important political rights of a person. It paves the way for the emergence and anchoring in human rights law of a principle according to which governments must possess democratic legitimacy.
The right to free elections in different countries can be understood in various ways. It is interpreted more broadly in one state and more narrowly in another. However, international practice – Article 3 of Protocol No. 1 of the European Convention on Human Rights – leads to the conclusion that the right to free elections consists of 3 main parts as an obligation to states:
- free elections shall be held at reasonable intervals;
- the election shall be by secret ballot;
- freedom of expression is guaranteed in the election of the legislature.
On the other hand, this provision also implies individual rights, comprising the right to vote and to stand for election.
Are there any restrictions to this right?
The rights to free election are not absolute. There is room for “implied limitations”. When assessing the possibility of restricting this right, it is important to consider 2 main criteria:
- whether there has been arbitrariness or a lack of proportionality,
- and whether the restriction has interfered with the free expression of the opinion of the people.
As mentioned before, the regulation of the right to free elections may differ from state to state. This is particularly important in view of the possibility of restricting this right. States enjoy a certain margin of appreciation which varies depending on the context. It is, for example, possible to fix a minimum age to ensure that individuals taking part in the electoral process are sufficiently mature.
In Lithuania, the right to vote is a constitutional right enshrined in Article 34 of the Constitution. It can be limited by setting an age limit from which a person can vote. The requirement of citizenship also applies - in most state elections the person casting his / her vote must be a citizen of the Republic of Lithuania. Citizens who have been declared incapacitated by a court shall not participate in the elections.
Restrictions on the right to stand for election also depend on age, citizenship, or permanent residence in Lithuania as well as declared incapacity in a particular area. Candidates for election may not be persons who have not served their sentence in accordance with a court order.
Who protects this right?
The State is the main guarantor of human rights. Its obligations are twofold: negative (obligations “not to do” something) and positive (obligations “to do” something).
The negative obligation is to refrain from arbitrary interference with this right, ensuring the right to vote and be elected. The positive obligation is to secure this right; this includes ensuring the proper regulation of the voting process and criteria for standing for elections.
International recognition of this right
The right to free elections is fundamental to a democratic society. After the end of the Second World War, the international community was determined to build a peaceful, democratic world. Thus, this right was naturally included in the Universal Declaration of Human Rights of 1948, the first comprehensive list of human rights adopted by the United Nations General Assembly. Article 21(3) reads:
The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
This right was subsequently also included in international and regional human rights conventions.