CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ ARTICLE 18 OF THE ECHR AS AN EARLY WARNING INSTRUMENT FOR THREATS… democracy also jeopardizes the principle of subsidiarity. It is relevant to note that Article 13 which guarantees the right to an effective remedy can only be exercised in a democracy. As it was held by the Court, democracy is a fundamental feature of the European public order which is apparent from the Preamble to the Convention. The Preamble establishes a very clear link between democracy and the Convention and states that the realisation and maintenance of human rights and freedoms are best ensured by an effective political democracy and by a common understanding on human rights. The Preamble affirms that European countries share their political tradition, ideas, as well as have a common heritage of freedom and rule of law. 16 The Court has held on several occasions that the Convention is designed to maintain and promote the values of a democratic society. In this Article, our aim is to show how the concept of democracy is reflected in the case law of ECtHR and the policy of the case law of the court concerning Article 18 and the evolution of the court’s approach in regard to refereeing to Article 18. It is to show how the Court reacts to the decline of democracy and rule of law in some countries, through the activation of usage of Article 18. 2. Democracy in the jurisprudence of the ECtHR Democracy is mainly concerned with participation and representation under the case law of the ECtHR. Therefore, democracy within the meaning of the Convention must be understood as participatory democracy which shows respect for the expression and differences of opinions and beliefs. 17 Democracy encourages the standards of pluralism, tolerance as provided by the Convention and requires the protection of substantive rights. 18 The concept of democracy plays a particularly important role in the judicial practice of the ECtHR because in most cases the existence of a violation of individual rights depends on the assessment of whether the interference was ‘necessary in a democratic society’. In other words, the Court assesses whether the intensity of a particular interference with individual rights is proportionate to the conditions of ‘democratic society’. As it was held by the Court, democracy is a fundamental feature of the European public order which is apparent from the Preamble to the Convention. The Preamble establishes a very clear link between democracy and the Convention and states that the realisation and maintenance of human rights and freedoms are best ensured by an effective political democracy and by a common understanding on human rights. The Preamble affirms that European countries share their political tradition, ideas, as well as have a common heritage of freedom and rule of law. The Court has held on several occasions that the Convention is designed to maintain and promote the values of a democratic society. Additionally, Articles 8, 9, 10 and 11 of the Convention states that the interference with the exercise of the rights must be assessed by the yardstick of what is ‘necessary in a democratic society’. Thus, it appears that democracy is the only political model which is compatible with the Convention.

16 Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 222 (amended by the provision of Protocol No. 15 (CETS No. 213)) [ECHR]. 17 Zdanoka v. Latvia , Merits and Just Satisfaction, Judgment of 16 March 2006, Appl. No. 58278/00. 18 HARUTYUNYAN, A. ‘The Future of the European Court of Human Rights in the Era of Radical Democracy’, (2021) 2 European Convention on Human Rights Law Review 20, p. 22.

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