Guide on Article 3 of Protocol No. 1 – Right to free elections I. General principles Article 3 of Protocol No. 1– Right to free elections “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” HUDOC keywords Right to free elections (P1-3) – Periodic elections (P1-3) – Elections by secret ballot (P1-3) – Free expression of opinion of people (P1-3) – Choice of the legislature (P1-3) – Vote (P1-3) – Stand for election (P1-3) A. Meaning and scope 1. “According to the Preamble to the Convention, fundamental human rights and freedoms are best maintained by ‘an effective political democracy’. Since it enshrines a characteristic principle of democracy, Article 3 of Protocol No. 1 is accordingly of prime importance in the Convention system” (Mathieu-Mohin and Clerfayt v. Belgium, 1987, § 47). 2. Article 3 of Protocol No. 1 concerns only the choice of the legislature. This expression is not, however, confined to the national parliament. The constitutional structure of the State in question has to be examined (Timke v. Germany, Commission decision, 1995). Generally speaking, the scope of Article 3 of Protocol No. 1 does not cover local elections, whether municipal (Xuereb v. Malta, 2000; Salleras Llinares v. Spain (dec.), 2000) or regional (Malarde v. France, 2000). The Court has found that the power to make regulations and by-laws, which is conferred on the local authorities in many countries, is to be distinguished from legislative power, which is referred to in Article 3 of Protocol No. 1, even though legislative power may not be restricted to the national parliament alone (Mółka v. Poland (dec.), 2006). However, having examined the Italian constitutional structure, the Court has found that Article 3 of Protocol No. 1 applied to local elections to provincial councils in Italy. By a 2001 constitutional reform, the Italian regions were granted very broad legislative powers, covering all matters which were not expressly reserved to the exclusive powers of the State. As such, the provincial councils were to be considered as part of the “legislature” (Repetto Visentini v. Italy (dec.), 2021). 3. The Court has clarified the interpretation to be given to the notion of “elections”, thus determining the scope of Article 3 of Protocol No. 1 (Cumhuriyet Halk Partisi v. Turkey (dec.), 2017, §§ 33-34 and 37-38). 4. The Court has explained that in principle a referendum does not fall within the scope of Article 3 of Protocol No. 1 (Cumhuriyet Halk Partisi v. Turkey (dec.), 2017, §§ 33 and 38; Moohan and Gillon v. the United Kingdom (dec.), 2017, § 40;). However, it takes account of the diversity of electoral systems in the various States. It has thus not excluded the possibility that a democratic process described as a “referendum” by a Contracting State could potentially fall within the ambit of Article 3 of Protocol No. 1. In order to do so the process would need to take place “at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature” (ibid., § 42). In Forcadell i Lluis and Others v. Spain (dec.), 2019, the applicants complained that the suspension by the Constitutional Court to hold a plenary sitting of the Catalan Parliament and announce the results a of the referendum on independence of Catalonia had violated the free expression of the opinion of the people in the choice of the European Court of Human Rights 5/35 Last update: 30.04.2021