Journal Article

Concentric democracy: Resolving the incoherence in the European Court of Human Rights’ case law on freedom of expression and freedom of association

Stefan Sottiaux and Stefan Rummens

in International Journal of Constitutional Law

Published on behalf of The New York University School of Law

Volume 10, issue 1, pages 106-126
Published in print January 2012 | ISSN: 1474-2640
Published online January 2012 | e-ISSN: 1474-2659 | DOI: http://dx.doi.org/10.1093/icon/mor074
Concentric democracy: Resolving the incoherence in the European Court of Human Rights’ case law on freedom of expression and freedom of association

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This article analyzes the democratic function of the freedoms of expression and of association and its implications for the relationship between both rights. We start out from the observation that the European Court of Human Rights article 10 and article 11 case law provide special protection to the expressive liberties of political parties over those of other associations or individuals. We demonstrate that this special protection is not adequately justified and betrays an incoherence in the Court’s underlying view of democracy. Building on an alternative, concentric model of democracy, we argue—against the Court—that their closeness to the center of actual political decision-making implies that restrictions on political parties can be more readily justified than those on other associations or individuals. This does not mean, however, that the current article 11 standards should become less protective. On the contrary, protection of the right to freedom of expression under article 10 should be further strengthened.

Journal Article.  10840 words. 

Subjects: Constitutional and Administrative Law ; UK Politics

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