The ECHR and Gender Quotas in Elections

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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.

Both the Supreme Court and the Constitutional Court dismissed the appeals and upheld the impugned decisions of the electoral authorities. The courts ruled that the rules were clear, and that the sanctions for non-compliance had been known. While the courts acknowledged that some other countries had introduced different types of sanctions for non-observance of the gender quota requirement, they determined that it was vital that all proposers submit complete and lawful lists of candidates within the prescribed time-limit in order to enable the timely conclusion of the electoral process.

The Constitutional Court dismissed the appeal by seven votes to two. In a dissent, Judge Klemen Jaklič, joined by Judge Marko Šorli, wrote that the rejection of an entire list contradicted the legitimate aim pursued, namely facilitating women’s access to parliament. He pointed to numerous other, less severe sanctions for non-compliance that would attain the aim with greater precision and in a proportionate manner.

The applicants then appealed to the ECtHR that the immediate and definite rejection of the lists of candidates, based on gender quota rules, had disproportionately interfered with their free election rights under Article 3 of Protocol No. 1 to the Convention.

ECHR: The advancement of gender equality is a major goal in Europe

The Court’s three-judge panel declared their application inadmissible. It referred to four different Council of Europe documents, which encourage the balanced participation of men and women. In particular, it quoted Resolution 2111 (2016) on assessing the impact of measures to improve women’s political representation, a document that reads, in part:

“Electoral quotas are the most effective means of achieving significant, rapid progress, provided that they are correctly designed and consistently implemented. Quotas should be adapted to the electoral system in force, set ambitious targets and be coupled with stringent sanctions for non-compliance… In the light of these considerations, the Assembly calls on the Council of Europe member and observer States [to]…, in particular:…introduce applicable sanctions for non-compliance with positive measures, such as the rejection of lists of candidates….”

The Court stressed “that the advancement of the equality of the sexes is today a major goal in the member States of the Council of Europe” and that “its institutions consider the lack of gender balance in politics to be a threat to the legitimacy of democracy and a violation of the right of gender equality.” Consequently, the Court determined that “the interference in question pursued the legitimate aim of strengthening the legitimacy of democracy by ensuring a more balanced participation of women and men in political decision-making.”

In doing so, it explicitly referred to its 2012 decision Staatkundig Gereformeerde Partij v. the Netherlands , in which it wrote that “the advancement of the equality of the sexes is today a major goal in the member States of the Council of Europe” and that “nowadays the advancement of the equality of the sexes in the member States of the Council of Europe prevents the State from lending its support to views of the man’s role as primordial and the woman’s as secondary.” The court also mentioned that lists of candidates were submitted a day before the deadline, further referring to the states’ wide margin of appreciation in organizing and running elections.

The Zevnik decision is important in its confirmation both that increasing female participation is a legitimate and favorable aim, and that gender quotas are a legitimate tool to achieve this goal. Regrettably, the ECtHR did not increase the level of protection of candidates to allow them a day or two to correct potential flaws in any submitted documents.

If our goal was more women, should we have eliminated predominantly female party lists?

The applicant in the Pečnik case was a rejected female candidate, who had appeared on a list that contained seven female and three male candidates. In her appeals, she argued that, if females are underrepresented in Slovenian politics and the goal of gender quotas was to achieve more females in politics, then there could be no legitimate aim in taking away the rights of those who propose many female candidates. 

During the Constitutional Court’s deliberations, Professor Ciril Ribičič argued that, under a proportionality test, the authorities should not reject candidate lists with too many female candidates. A comparative study by Professor Drude Dahlerup, the world’s leading gender quota scholar, and Dr. Lenita Freidenvall, both of Stockholm University, explains quotas in 30 European democracies. This work and the OSCE ODIHR reports show that, out of the 30 countries in the EU/EEA, only Slovenia rejects entire candidate lists for gender quota breaches, without providing the parties an opportunity to amend them.

However, the three-judge panel of the Constitutional Court dismissed the appeal as inadmissible. The judges explained that the rules were clear and that elections have to finish as scheduled. As of this writing, the Pečnik application is still pending with the ECtHR.

A question remains, why exactly Slovenia does not want to introduce a remedial deadline of some kind, when that is clearly feasible? On other issues too, many lawyers, together with politicians, defend a strong government, adherance to strict rules, and only just as much human rights protection as is needed under the ECHR.

The existence of a quota and the lack of any opportunity to remedy a deficiency are two separate issues, which need to be justified separately. The ECtHR seems to be confusing them. In the Zevnik decision, the issue was the lack of remedy, but the Court justified it with its strong support for the quotas and strict sanctions for non-compliance. In the Pečnik case, the Court will probably focus on whether the restriction and the measure taken – the elimination of the predominantly female list – were narrowly tailored and appropriate to achieve the aim, which was the increase of the number of elected women.

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Alexandre Guerreiro says

December 21, 2019

According to the Portuguese "Parity Law" each party or movement should submit a list with at least 40% os each gender represented. That minimum is applied to both a minimum of 40% men or women in order to avoid the subversion of the law and allow indirectly the parties to show a list composed entirely of women. If it's gender equality the goal to pursue than it must be applied to protect both genders.

No problem registered here so far.

Jurij Toplak says

December 22, 2019

Alexandre, thank you for your comment. The equality sounds like a simple answer, but does it pass the proportionality test? The male and female quotas are two different limitations and must be justified separately. The percentage of elected women was about ten before the introduction of the quotas. It has subsequently risen to about 30 percent. Overall, there are more male candidates than female candidates. Nearly all candidate lists contain more males than females. In these circumstances: (1) do men really need protection? (2) what is the legitimate aim in establishing a male quota? (3) what is the legitimate aim in disqualifying women from elections for lack of men? (4) does the measure taken serve to achieve the aim (does the male quota contribute to achieving more equal representation in a country with a low female representation)? (5) how is the male quota necessary (considering there are more men than women on most of the lists as well as in the parliament)?

Even if the measure "male quota" and aim "equality" do pass the steps (2) or (3) above, do they pass the steps (4) and (5)?

Yesterday, the applicant in Pečnik v Slovenia received the ECHR decision. Judge Egidijus Kūris, acting as a single judge, issued a one-paragraph decision. He stated that “the matters complained of do not disclose any appearance of a violation.”