The Individual Rights of Association and Expression in Exceptional Circumstances - Essay Example

‘ Introduction “The European Convention on Human Rights” was originally drafted by the former Council of Europe, with the the active participation of member states including the UK government. The Convention and its Five Protocols were approved on September 4, 1950.1 Today, all member states of the European Union (EU) are party to the Convention and required to oblige by its rules and regulations, including the fifteen protocols now appended to the original Convention. Issues around human rights are initially the responsibility of the national judiciaries. Ultimately, however there is recourse to the European Court of Human Rights (ECHR) in Strasbourg, if parties to the dispute are dissatisfied by the decision of their highest national court. A significant number of the cases that have been heard by the ECHR have related to political parties. Specifically, concerning interpretation of Council of Europe, Parliamentary Assembly. “Resolution 1308 (2002) Restrictions on political parties in the Council of Europe member states” in light of Article 11 of the Convention. (Appendix 1 lists all ECHR judgments of merit concerning political parties.) Article 11 relates to freedom of association, and it is most certainly a double-edged sword. The first section boldly proclaims, “everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.” The second section outlines a host of constrains on that freedom of association, “such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.”2 Resolution 1308 can be seen as an application of Article 11, section 2. It is operationalisation of the concept of measures in the general interest even when they interfere with a given category of individual rights’. The issue of restrictions on political parties will form the content of this discussion. The ECHR's interpretation of the weighing of the right to freedom of association and the needs of the state will be assessed. Therefore, the discussion will begin with a detailed outline of Resolution 1308. Subsequently, the legal history and significant case law of Resolution 1308 disputes will be presented. The conclusion will evaluate the legal themes and concepts raised by the banning of political parties in societies apparently committed to inclusiveness, participatory democracy and responsible government. Resolution 1308 “Resolution 1308 (2002) Restrictions on political parties in the Council of Europe member states” affirms, “the Assembly believes that in exceptional cases, it may be legitimate for a party to be banned if its existence threatens the democratic order of the country.”3 Opportunities to do so in practice are limited by an expressly narrow window. the Court emphasises that “the exceptions set out in Article 11 are, where political parties are concerned, to be construed strictly; only convincing and compelling reasons can justify restrictions on such parties’ freedom of association.” Resolution 1308 permits the banning of political parties but applies a very narrow interpretation of the situations that permit this exceptional response. It states “restrictions on or dissolution of political parties should be regarded as exceptional measures to be applied only in cases where the party concerned uses violence or threatens civil peace and the democratic constitutional order of the country...” It further qualifies this exceptional response adding, “the legal system in each member state should include specific provisions to ensure that measures restricting parties cannot be used in an arbitrary manner by the political authorities.”4 Political Parties and the European Court of Human Rights Most recently, in the case of HADEP [the People's Democracy Party] and Demir v. Turkey, The European Court of Human Rights (Second Section), Françoise Tulkens, President, delivered its judgment on December 14, 2010.5 The decision places significant reliance on the European Commission for Democracy through Law, better known as the Venice Commission. The Monitoring Committee of the Parliamentary Assembly of the Council of Europe (PACE) engaged it “to review the constitutional and legal provisions which are relevant to the prohibition of political parties in Turkey”. The result was the “Opinion on the Constitutional and Legal Provisions Relevant to the Prohibition of Political Parties in Turkey”.6 The opinion savagely criticized the government's use of the prohibition of political parties as a tool to oppress the population and aggressively undermine opposition an it included a list of the eight parties banned in the 1990s in Turkey:7 1. The United Communist Party of Turkey (TBKP) – dissolved July 1991 2. The Socialist Party (SP) – dissolved July 1992 3. The Freedom and Democratic Party (Özdep) – dissolved July 1993 4. The People’s Labour Party (HEP) – dissolved July 1993 5. The Socialist Party of Turkey (STP) – dissolved November 1993 6. The Democracy Party (DEP) – dissolved June 1994 7. The Labour Party (EP) – dissolved February 1997 8. The Welfare Party (Refah) – dissolved January 1998 The decision in HADEP and Demir v. Turkey, concisely outlines the three key findings of the Opinion:8 1.  There is a long list of substantive criteria applicable to the constitutionality of political parties, as laid down in Article 68 (4) and the Law on political parties, which go beyond the criteria recognised as legitimate by the ECtHR and the Venice Commission. 2.  There is a procedure for initiating decisions on party prohibition or dissolution which makes this initiative more arbitrary and less subject to democratic control, than in other European countries. 3.  There is a tradition for regularly applying the rules on party closure to an extent that has no parallel in any other European country, and which demonstrates that this is not in effect regarded as an extraordinary measure, but as a structural and operative part of the constitution. It then stated “the exceptions set out in Article 11 of the Convention are, where political parties are concerned, to be construed strictly; only convincing and compelling reasons can justify restrictions on such parties' freedom of association.... the Contracting States have only a limited margin of appreciation, which goes hand in hand with rigorous European supervision embracing both the law and the decisions applying it, including those given by independent courts.”9 Contrasting these very narrow restrictions on the banishment of political parties with the frequent resort of Turkish governments to banning of political parties the ECHR concluded their were no legitimate grounds for banning HADEP. This rebuff occurred despite the Venice Commission having visited Turkey in November 2010, only weeks before the judgment was issued. The commission's representatives were in Turkey to comment “on the bill on the recently reconfigured Supreme Board of Judges and Prosecutors, or HSYK.”10 The approval of a constitutional reform package in a September 12, 2010 referendum was not enough to counterbalance decades of political repression including banning political parties. That is not surprising nor is it unjustified in the case of Turkey. The reasoning in HADEP and Demir v. Turkey simply repeated a decision delivered 7 years earlier against Turkey in the similar case, Refah Partisi (The Welfare Party) and others v. Turkey.11 Although it is not for the Court to take the place of the national authorities, which are better placed than an international court to decide, for example... it must exercise rigorous supervision embracing both the law and the decisions applying it, including those given by independent courts. Drastic measures, such as the dissolution of an entire political party and a disability barring its leaders from carrying on any similar activity for a specified period, may be taken only in the most serious cases. Neither the recommendations nor the reasoning have changed over the past seven years. Turkish intransigence in practice has also persisted. Refah Partisi (Welfare Party) was an Islamic fundamentalist party that advocated the introduction of sharia law. The governing party deemed that platform to violate the Turkish constitution enshrining a secular state, and used that as a pretext to ban the party. Turkey has been frequently before the ECHR for its wide ranging application of bans on political parties. However it is hardly alone in its clashes with the ECHR's over political parties. The ECHR has long been a defender of political parties. In 2006 it described 15 years of state harassment. According to the ECHR, “In their decisions of July and November 1990 and March 1991 the [Bulgarian] courts found that Ilinden’s aims were directed against the unity of the nation, that it advocated national and ethnic hatred and that it was dangerous for the territorial integrity of Bulgaria” and that a campaign against the party had been ongoing since then. Eventually, the Bulgarian courts approved a ban on the political activities of Ilinden.12 The ECHR immediately invoked Article 11 and the fundamental and essential contribution that a diversity of political parties makes to democratic life. “The Court has often referred to the essential role played by political parties in ensuring pluralism and democracy, associations formed for other purposes, including those protecting cultural or spiritual heritage, pursuing various socio-economic aims, proclaiming or teaching religion, seeking an ethnic identity or asserting a minority consciousness, are also important to the proper functioning of democracy.”13 Moreover, the ECHR asserted categorically that to advocate autonomy is not to advocate violence:14 However, the mere fact that a group of persons calls for autonomy or even requests secession of part of a country’s territory – thus demanding fundamental constitutional and territorial changes – cannot automatically justify interferences with their rights under Article 11. Expressing separatist views and demanding territorial changes in speeches, demonstrations, or program documents does not amount per se to a threat to a country’s territorial integrity and national security. Specifically asserting that 'calls for autonomy' did not threaten a country's national security precluded a country's invocation of national security concerns as justification for 'extreme restraints'. It effectively severed politicians and political parties from being tarred with the same brush as violent revolutionaries and terrorists. In doing so it also placed 'extreme restraints' on the ability of national governments to interfere with political parties free of the taint of violence. In the spring of 2010 Fransje Molenaar, praised the role of the ECHR: “Over the last decade the European Court of Human Rights transformed itself into a beacon of hope for national parties that have come to fear for their existence.” She believed that they had to fear for their existence as a consequence of a seismic paradigm shift that occurred in the wake of 9/11:15 The standard changed from one that is commonly found in ‘immunized democracies’, or strongly liberal democracies that are generally opposed to judicial measures against political parties to one commonly found in ‘defending democracies’, or liberal democracies that change the boundaries of the ‘rule of law’ in response to a serious threat. Increasingly, 'judicial measures against political parties' are emerging as a contentious issue as the defending democracy paradigm challenges traditional concern for the 'rule of law'. In October, 2010 European Commission for Democracy through Law, (Venice Commission) issued “Guidelines on Political Party Regulation by the Office for Democratic Institutions and Human Rights (OSCE/ODHIR) and Venice Commission”. It presents the most recent legal analysis of the issue of political parties and their banishment. Section 5 deals with “Regulation of Political Parties”. Paragraph 64. points to both the strictness of the limitations on regulation and the role of the ECHR in maintaining that narrow interpretation: “Further, the European Court of Human Rights has consistently ruled that, due to their important role in the functioning of democracy, limitations on the formation of political parties should be used with extreme restraint and only when necessary in a democratic society.”16 Arguably, 'extreme restraint' is the strongest phrase that can be used in this situation. Paragraph 68 addresses a passive/aggressive form of restraint, requiring, but blocking, registration of political parties:17 Grounds for rejection of party registration must be clearly stated in law and based on objective criteria. Where parties can be denied registration for administrative reasons, such failure to meet a deadline, such administrative requirements must be reasonable and well known to parties. Clearly established deadlines and procedures for registration are necessary to minimize the negative impact of denials of party registration for purely administrative reasons. Registration of political parties, if it is required, must be accessible and facilitated. In 2006 the ECHR overturned a Bulgarian decision concerning a small political party, Ilinden. Ilinden was not banished or otherwise sanctioned. It was, however, made impossible for it to register.18 Part XIII deals with the regulation of political parties. It immediately states, “Sanctions should be applied to political parties found in violation of relevant laws. Sanctions at all times must be objective, enforceable, effective and proportionate to their specific purpose.”19 Arguably, the two most important words in that paragraph are objective and proportionate. Political parties cannot be sanctioned for their platform and ideas only for their performance and only if and when it violates 'relevant laws'. Bearing that in mind, also, an accusation of tearing down another candidate's signs cannot provide grounds for banishment as the sanctions must be proportionate. Sanctions must be applied evenly and objectively and proportionate to the violation they are addressing. Furthermore, Paragraph 230 expressly states, “any interference by authorities in the activities of political parties should provide an opportunity for the party to challenge such decision or action in a court of law and to have the challenge adjudicated publicly by an impartial tribunal.” It goes on to assert, “this is particularly true in regard to the prohibition or dissolution of a political party, where a court should make the final decision on such a serious matter.”20 Conclusions The ECHR has actively worked and reasoned in defense of political parties throughout its existence. The increasing awareness of the importance of political parties to freedom of association and expression, has led to an EU wide movement toward greater awareness of political parties. Organizations such as the European Commission for Democracy through Law, (Venice Commission) actively promote protection of political parties multiple commentators refer to the the ECHR as ' a beacon of hope for national parties' and the keystone in the protection of the rights of political parties. The ECHR is the highest court in the matter and one establishing a strong tradition in precedent of supporting and protecting political parties. However, that well developed conclusion can be construed as only an indirect answer to the question posed in the introduction to this discussion: 'Must the democratically elected legislature be free to take measures in the general interest even when they interfere with a given category of individual rights?’ In the context of regulation of the individual rights of association and expression as they are manifest in the political party structure must the democratically elected legislature be free to take measures to limit those rights when necessary? The answer to that question is yes, a very, highly, qualified yes. Not a tentative yes, an absolute affirmative with significant qualifications. The founding principle Article 11 relates to freedom of association, and it is outlines a host of constrains on that freedom of association, “such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.”21 Case law and precedent established at the ECHR has strengthened that second section of the article. Therefore, unequivocally national states reserve the right to sanction political parties, infringing the individual rights of association and expression in exceptional circumstances. The qualifications on that answer relate to the strict conditions on this right of the national state to do so. “Resolution 1308 (2002) Restrictions on political parties in the Council of Europe member states” asserts “the Assembly believes that in exceptional cases, it may be legitimate for a party to be banned if its existence threatens the democratic order of the country.” (italics added)22 The right to restrain political parties exists but only in exceptional cases that threaten the democratic order of the country. Satisfying that single condition is a narrow window that epitomizes the constraints on the national state's right to regulate and sanction political parties. That narrow interpretation has been supported by the ECHR. Sanctions including banishment of political parties by national states without adequate, objective justification has been repeatedly overturned at the ECHR. Moreover, the ECHR has also introduced the broader concept of proportionality into the calculation of sanctions. Sanctions must be proportionate to the violation preventing a political party from being banned for a minor violation. “Resolution 1038” states that objectivity and transparency are essential to “ensure that measures restricting parties cannot be used in an arbitrary manner by the political authorities.”23 This approach has been supported by the European Commission for Democracy through Law, (Venice Commission) In September 2010 it reported that, “Sanctions at all times must be objective, enforceable, effective and proportionate to their specific purpose.”24 All of these stipulations amount to the qualifications attached to the earlier affirmative comment. National states retain the right, in exceptional circumstances to constrain political parties and the individual rights of expression and association if “its existence threatens the democratic order of the country.”25 That right is significantly limited, it has been defined by the EHRC strictly and narrowly. Additionally, the issue of proportionality has been introduced by the EHRC. The sanctions must be applied objectively and transparently, and be moderated and proportional to the violation: A party cannot be banned for a minor violation of electoral rules or regulations. Further, it is the contention of this discussion that the balance as it currently exists is functional and ethical. The national state retains the right to constrain and sanction political parties that threaten national security and advocate resort to violence. However, political parties that advocate regional autonomy or independence are not inherently a threat to national security provided their advocacy does not include the use of violence. References Council of Europe, Parliamentary Assembly. “Resolution 1308 (2002) Restrictions on political parties in the Council of Europe member states”. Text adopted by the Standing Committee, acting on behalf of the Assembly, on 18 November 2002 (see Doc. 9526, report of the Political Affairs Committee,rapporteur: Mr Dreyfus–Schmidt). http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta02/ERES1308.htm#_ftn1. Council of Europe. (4 November 1950). “The European Convention on Human Rights and its Five Protocols”. http://www.hri.org/docs/ECHR50.html. European Commission for Democracy through Law, (Venice Commission). (25 October 2010). “Guidelines on Political Party Regulation by the Office for Democratic Institutions and Human Rights (OSCE/ODHIR) and Venice Commission”. http://www.venice.coe.int/docs/2010/CDL-AD%282010%29024-e.pdf. European Commission for Democracy through Law (Venice Commission). (13-14 March 2009). “Opinion on the Constitutional and Legal Provisions Relevant to the Prohibition of Political Parties in Turkey”. http://www.venice.coe.int/docs/2009/CDL-AD%282009%29006-e.asp. European Court of Human Rights, (ECHR), (13 February 2003). “Case of Refah Partisi (The Welfare Party) and others v. Turkey. http://cmiskp.echr.coe.int/tkp197/view.asp?item=5&portal=hbkm&action=html&highlight=political%20|%20party%20%20ban&sessionid=63771186&skin=hudoc-en. European Court of Human Rights, (ECHR), (19 January 2006). “Case of the United Macedonian Organisation Ilinden and others v. Bulgaria”. http://cmiskp.echr.coe.int/tkp197/view.asp?item=3&portal=hbkm&action=html&highlight=pirin%20|%20bulgaria&sessionid=63789770&skin=hudoc-en. European Court of Human Rights. (ECHR). (14 December 2010). “HADEP and Demir v. Turkey, Judgment”. http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=HADEP&sessionid=63771186&skin=hudoc-en. Molenaar, Fransje (March 2010). ‘The Development of European Standards on Political Parties and their Regulation’, working paper series on the legal regulation of political parties, no. 04 - 09. http://www.partylaw.leidenuniv.nl/pdfs/wp0410.pdf. “Venice Commission Meets Turkish Deputies”. (27 November 2010). Turkish Weekly. http://www.turkishweekly.net/news/109703/venice-commission-meets-turkish-deputies.html. Yavuz, Ercan (7 December 2010). “Bill to rid parties laws of coup spirit”, Todays Zaman. http://www.todayszaman.com/news-228905-bill-to-rid-parties-law-of-coup-spirit.html. Read More