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The ECHR and Gender Quotas in Elections

Published on December 19, 2019        Author: 

 

The ECtHR recently decided its first gender quota case, and another one is pending. The former dealt with a gender imbalance favoring male candidates, while the latter concerns a gender imbalance favoring female candidates.

There is no Europe-wide right to remedy the deficiencies in submitted candidatures.

In most European democracies, electoral authorities do not immediately and definitely reject faulty candidatures. Instead, they allow political parties a day or two to correct such deficiencies. In Zevnik and Others v. Slovenia, 54893/18, the ECtHR decided that the Convention does not guarantee a right to correct flaws and that a final rejection of a candidate list, without the possibility of correction, remained in line with the Convention. It is thus up to the member states to grant (or not) such a privilege to candidates and parties. In this case, the relevant candidate list was rejected for containing more males than allowed. On the other hand, Pečnik v. Slovenia, 53662/18, concerns a case in which, applying a rule that aimed at increasing female representation, the authorities disqualified a predominantly female list of candidates. This post endeavors to explain both cases.

Under the Slovenian Parliamentary Elections Act, on a district list of candidates, no gender may be represented by less than 35% of the total actual number of candidates. The first applicant in the Zevnik case was a female candidate who ran for the 2018 parliamentary elections. Her party had submitted lists with less than 35% of female candidates in two districts. One of the lists contained five male and two female candidates, while the other included six men and two women. Electoral authorities rejected the entire lists of candidates, without giving either the candidates or the parties any possibility to remedy these deficiencies.

The rejected parties subsequently complained that the electoral commissions should have allowed them to do so by amending or shorten the lists, allowing some male candidates to withdraw, removing some male candidates themselves, or rejecting the lists partially, rather than entirely. They maintained that the rejection of the complete candidate lists for an alleged failure to ensure gender‑balanced representation was a disproportionate sanction, especially as no other European democracy immediately and definitely disqualifies entire candidate lists for similar reasons. Read the rest of this entry…