PLURALISM AND DEMOCRACY UNDER THREAT

A CALL FOR THE EUROPEAN COURT OF HUMAN RIGHTS TO TAKE A NEW APPROACH TO CULTURAL RIGHTS

Resumo

“Pluralism and multiculturalism are essential European values and should so remain”. Today, this statement made about ten years ago by the then Commissioner for Human Rights of the Council of Europe sounds like a call to fiercely oppose the retreat of multiculturalism that is bolstered by the rise of populism in European countries. For its part, the European Court of Human Rights (ECtHR) has consistently stressed that pluralism is an essential requirement for any democratic society. As opposed to the populist understanding of democracy that exalts the majoritarian principle, on the assumption that the will of the majority is the will of the people, the ECtHR has repeatedly maintained that: “democracy does not simply mean that the views of the majority must always prevail: a balance must be achieved that ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position”. Indeed, acknowledging that ‘the people’ is not a homogeneous entity – as populists pretend it to be -, the ECtHR is continuously stressing that a democratic society stands on “genuine recognition of, and respect for, diversity and the dynamics of cultural traditions, ethnic and cultural identities, religious beliefs and artistic, literary and socioeconomic ideas and concepts”, and that the States’ positive obligation to secure the effective enjoyment of the Convention rights and freedoms is especially relevant for persons holding unpopular views or belonging to minorities. The model of democracy put forward by the ECtHR is thus centered on the idea of a pluralistic society in which competing values coexist and are equally respected. However, the same Court on several occasions stopped short of granting recognition to non-majoritarian values, thereby reinforcing domestic majoritarianism, instead of pluralism. I posit that to address democratic distortion nurtured by populists the ECtHR should pay more attention to exclusionary side effects that the accommodation of non-dominant normative and cultural claims based on commonly used arguments, such as neutrality and integration, can bring about. Furthermore, in my opinion the Court should develop an approach that would enhance the moral standing of minority cultures, as a first step toward the empowerment of minority groups with genuine and effective participatory ability. To that purpose my paper will discuss what the Court could do to reverse to a counter-majoritarian drive, focusing on cases where minority applicants seek recognition and protection for non-majoritarian cultural practices and traditions invoking Convention rights and freedoms.