CDL-PP(1999)001e-restr
Strasbourg, 30 March 1999
GUIDELINES
ON PROHIBITION OF POLITICAL PARTIES AND ANALOGOUS MEASURES
WORKING DOCUMENT
prepared
by
Mr
A. FARCAS
(Romania)
Introduction.
At the request
of the Secretary General of the Council of Europe, the European Commission for
Democracy through Law conducted a survey on the prohibition of political
parties and analogous measures (CDL-PP (98) 3).
Considering
the importance of the issue the Commission has decided to continue the study of
this problem with a view to drafting guidelines in this field.
The
Sub-Commission on democratic institutions which held its 6th meeting
in Venice, 10 December 1998 decided to have the first draft of guidelines on
the prohibition of political parties and analogous measures for its first
meeting in 1999.
The following
text, which presents the main ideas to be developed in the guidelines, was
prepared by Mr A. Farcas in order to be discussed by rapporteurs who are involved
in this study.
Draft guidelines:
1.-
reiteration of the principles of freedom of association and of freedom of
expression as fundamental legal rules guaranteeing essential values of European
democracy and public life – in this context the broad concept of the Council of
Europe on “democratic security” (with all its implications as to the rule of
law, internal stability of states, good neighbourly relations between states,
responsibility within the country and outside it for dialogue through peaceful means
only) should be also reiterated;
2.- recognition of the primordial role of
the responsibility of the individual persons as a basis of the criminalisation
of their behaviour – especially employment of and advocacy of violent means –
within the frame of political/public and party activities;
3.- restatement of the exceptional nature
of the legal measures directed to the prohibition or legally enforced
dissolution of political parties – which are to be seen as “collective”
sanctions to a group of individuals persons, identified by criteria of
political party affiliation and joint actions or intentions aimed at the denial
or abolition of the basic democratic values common to all European states
governed by the rule of law; the prevailing principle for public authorities
starting any kind of above-mentioned procedures should be that of
proportionality;
4.- recommendation of establishment
or consolidation of special procedures for dealing with the question of
prohibition or enforced legal dissolution of a political party, that should be
necessarily placed under the supervision of a court of justice with a special
power of jurisdiction such as the Constitutional Court;
5.- avoidance of confusion between the prohibition
or enforced dissolution of a political party and such formalities as the
registration of political parties, the meeting of certain criteria for
candidates in elections etc., which are to be seen as legitimate measures of
organising the exercise of the right to freedom of association in conjunction
with the general public interest in a democratic society. The sanctions for
non-observance of such formalities should be individualised and proportional,
resulting thus in certain limitations of possibilities of action for the given
political party – e.g. the need to renounce to candidates in elections that do
not meet the criteria established by law – that are not to affect the very
existence of the political party itself nor its overall political responsibility.
