Council of Europe
Forum for the Future of Democracy, 2010
Perspectives 2020: Democracy in Europe - Principles and challenges
Working Session 1 ‘Law and Democracy’
Rapporteur’s summary and recommendations
by Yuri DHZIBLADZE,
President of the Center for the Development
of Democracy and Human Rights, Russian Federation
Summary of the first session on ‘The impact of European law and case-law on shaping democracy’
The first session on the theme of Law and Democracy focused on the legal aspects of democracy, on the one hand, and on practical issues regarding the impact of the European Convention on Human Rights on the other hand. In particular on the ways in which interpretations by the European Court of Human Rights (ECtHR), and their application to constitutional questions by the Venice Commission, shape democracy and national legal systems. Difficult structural or systemic problems which require time and resources to address, such as detention conditions, lengthy trial proceedings, ensuring of freedom of expression, etc. represent a particular challenge as concerns the practical impact of the Convention.
Human rights and democracy are interconnected although there are often tensions between the two. The Council of Europe legal acquis regards democracy as the best and the necessary political framework for the effective realisation of human rights through law and as a political regime that aims to broaden rights and freedoms.
At the same time, the very legitimacy of a democratic regime is assessed by its ability to ensure the protection of human rights. The most prominent example of this is the ECtHR's interpretation of the ‘necessary in a democratic society’ clause in Articles 8, 9, 10, and 11 of the European Convention stating that all restrictions to the rights to privacy, freedom of thought and religion, expression, assembly and movement must be prescribed by law and must be justified as a necessary measure in a democratic society. This is an expansive interpretation of rights as they can be limited only in the most exceptional circumstances.
The question of whether the “necessity in a democratic society” test should be incorporated in the constitutions of the Council of Europe member states was raised. Similarly, how can domestic decision makers be encouraged to apply this test when they decide on concrete policy issues such as considering application for a protest demonstration, deciding on registration of a political party, or ensuring freedom of expression while protecting the public from hate speech in the media or during demonstrations? Are recommendations and guidelines based on best practices enough or do we need to think of some new ways, including legal mechanisms?
Democracy is understood as a framework for not just protecting, but also for expanding freedoms. In particular, the ECtHR sees freedoms of expression, assembly and association as intrinsic to democracy; it does not treat these rights as separate from democracy but as being at the very centre of the improvement of democratic governance. These, along with the right to participate, can be described as “democratic rights”.
Council of Europe legal frameworks also provide protection of the so-called pre-democratic rights, namely the right to life, freedom from torture, freedom from arbitrary detention, freedom from slavery, and the right to a fair trial. These are non-derogable rights and are not subject to any political negotiation, unlike the “democratic rights” that can be limited in exceptional circumstances. They also extend to non-citizens. However, 9/11 has affected the implementation of non-derogable pre-democratic rights with governments starting to restrict them in legislation and policies on grounds of combating terrorism, often with popular support. A challenge the Council of Europe needs to address is how a popular domestic backlash with respect to the protection of these rights can be prevented – such as the right to fair trial of suspects of terrorist acts.
Importantly, European human rights legislation offers protection for non-citizens, minorities, and marginalised groups, serving as a venue of last resort for those with limited access to national institutions. Non-discrimination case law and the doctrine of positive obligations provide important safeguards and empower these groups to participate in domestic democratic processes.
Challenging this approach, the recent rise of xenophobic sentiments and populist discourse has led to restrictions of the rights of minorities and non-citizens in many countries. We need to ask ourselves the question of how to prevent such a popular demand for restrictions of minority rights? Should their explicit protection be included in national constitutions?
Several panellists and participants expressed deep concerns over the huge gap between rights on paper and the lack of proper implementation/enforcement of human rights obligations at the national level. Or even the disconnect between the elaboration of ever more sophisticated legal standards and interpretations of democracy and the dire situation of democratic institutions and practices in practice.
The negative role of the political elites in many member states was discussed. Many speakers stressed that systematic prevention of execution of ECtHR judgments by the elites puts into question the very legitimacy of the European Court. Furthermore, some participants pointed out that when quite a number of member states have illegitimate governments because of lack of free and fair elections, the legitimacy of the Council of Europe itself is undermined because representatives of these governments sit in various Council of Europe bodies. This problem is exacerbated by the fact that the Court has so far effectively chosen not to deal with violations of electoral rights. Inability of the Council of Europe to ensure implementation of the Convention’s provisions and ECtHR decisions disempowers citizens because they see that Council of Europe decisions can be blatantly ignored with no consequences.
Having agreed that the implementation issue is crucial and more important than the development of a legal framework, some recommendations with regard to the implementation were proposed:
- national courts should be equipped with appropriate resources (i.e. funding, independent bodies for appointments, transparent rules on tenure and promotion);
- the judiciary should receive adequate funding to discharge its functions independently;
- the Council of Europe should reinforce its monitoring mechanisms to influence states which fail to comply with its obligations.
Political process and the application of legal standards are strongly linked. The Council of Europe is a political organisation and the process of bringing a country towards a better democracy is critical and involves education, awareness building, peer reviews and peer pressure by member states.
Maintaining this kind of political pressure, through for example PACE and other Council of Europe bodies, including the Committee of Ministers, was deemed essential by the participants as well as striving for a more active role of civil society within the Council of Europe. In addition, the rotating chairmanship of the Committee of Ministers by each member state provides an opportunity to put pressure on them to improve their implementation of democratic and human rights legislation.
Summary of the second session on “Should there be a ‘right to democracy’” ?
The second session on the theme of Law and Democracy addressed the notion of an emerging “right to democracy” with participants debated its meaning, scope, monitoring mechanisms and methods of implementation.
There was agreement that the essential principles, elements and ingredients of democracy are all described and readily available in the existing Council of Europe acquis and expressed as political commitments in relevant Committee of Ministers and PACE decisions as well as in a number of important documents of other regional and international organisations.
While participants also agreed that a universal right to democracy already exists at the conceptual and philosophical level, it needs to be defined and spelled out more concretely if we want to move from theory to effective implementation.
Some elements of this right are classic individual justiciable rights subject to protection by courts, while others are formulated as positive obligations by states to protect rights enjoyed by individuals in community with others. In the latter case, the states should have to demonstrate that they are taking concrete steps and making progress towards fuller implementation – as is already the case for economic and social rights under the European Social Charter and within the UN system.
What we are evoking is a framework of positive obligations on good governance, transparency, accountability, the ability of government to address corruption and abuse of power and the establishment of mechanisms and space for public participation.
Money politics is also an issue if narrow interest groups with a monopoly on resources effectively control the political process. The capacity of states to address this problem is very important.
Whether these obligations should be developed one day into a single body of political commitments in the form of a Democracy Declaration or even into legally binding commitments in some kind of a Democracy Charter remains an open question.
Many participants argued that instead of producing further normative frameworks, we need to focus on fostering better implementation of the existing Council of Europe acquis in the field of democracy.
In order to hold member states accountable, minimum standards should be laid down in order to be able to measure and assess the degree of implementation of democracy. Soft law, including recommendations of the Committee of Ministers, guidelines on best practices, Venice Commission reports, etc. could help in developing more concrete definitions to enable states to bring existing normative framework to life.
However, given that democracy is a work in progress, with a variety of institutional designs, and not something static, is it really appropriate or even possible to set up benchmarks for compliance?
Who monitors the implementation of democracy is an essential question, especially given that much of the scope of democracy obligations cannot be protected through the courts. Could a mechanism like the UN Human Rights Council Universal Periodic Review (UPR), undertaken by peers be applied in the Council of Europe? Or should new monitoring mechanisms be established similar to those used by the European Committee for the Prevention of Torture which visits countries and reports on conditions? Many argued that peer monitoring would not work due to political sensitivity and that we need to develop stronger mechanisms of monitoring by independent experts. It was suggested that the monitoring work of PACE provides a good basis to build upon. Civil society should also be encouraged and empowered by the Council of Europe to function as a monitoring mechanism.
Clearly, once such a right is more concretely defined, the appropriate monitoring mechanisms would begin to be developed. Until that time, use can be made of voluntary models and best practices implemented by member states.
Participants agreed that participation is an essential element of democracy and that this is often blocked by those who are afraid to lose power. Everybody should be able to participate in decision-making; democracy without participation is not possible. What happens in between elections is key to the success of democracy. Rousseau’s notion of “people’s sovereignty” as opposed to “state sovereignty” was mentioned in this context.
There has been some encouraging progress in this field lately, including adoption of the Council of Europe’s Strategy for Innovation and Good Governance at Local Level which in fact is applicable to all levels of governance. Moreover, a new Additional Protocol to the European Charter of Local Self-Government on Citizen Participation at Local Level has been adopted by the Committee of Ministers and is open for ratification.
The question was raised how to foster a popular "demand" for democracy in countries where people are less engaged in the political process or are cynical about participation? As a panellist said, “You cannot consume democracy; you have to work for it”. Local ownership is essential. After all, democracy is not only about freedom but also about the ability to define one’s destiny.
Paradoxically, never before have so many people lived in democratic states but never before have so many people been disappointed with democracy. This disappointment and frustration seems to be referring to representative democracy where no proper mechanisms and space for participation are created.
We need to do a much better job in explaining our ideas to the public and civil society. There is a real lack of public confidence in international and European organisations. This is particularly the case for the Council of Europe and its bodies. How can we improve communication of Council of Europe instruments (recommendations, opinions, action of monitoring bodies) to make them better known, accessible, clear and comprehensible so that the relevant national actors and civil society are able to make better use of them. Such accessibility could come from preparing guidelines, checklists, and bullet points instead of lengthy, opaque texts.
It was argued that while we can and should engage in this process of developing, monitoring and ensuring implementation of the right to democracy within the Council of Europe space, the European situation cannot be imposed on the entire world. Creating a universal right to democracy now is too ambitious; without universal consensus we cannot agree on a universal right. However, we should strive to gradually move to such consensus.
In this context, how do we develop more effective cooperation between the Council of Europe and other international organisations in the field of democracy development so that they can speak with one voice and are able to reinforce, rather than duplicate each other? These organisations need to stop developing their own separate sets of commitments and obligations. Similarly, how can we rebuild citizens' confidence in international and European organisations, in particular the Council of Europe and its bodies?
Finally, how do we build democracy at a transnational level beyond national parliaments and national governments, and how can democratic governance in global institutions be ensured?