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Strasbourg, 20 June 2003
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CDL-AD (2003) 11
Or. eng.
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Opinion N° 241 / 2003
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EUROPEAN COMMISSION
FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
OPINION
On
the Draft law
on
prohibition of extremist organisations
and
unions in Georgia
Adopted by the Venice
Commission
at its 55th
Plenary Session
(Venice, 13-14 June 2003)
on the basis of comments by
Ms F. FLANAGAN (Member,
Ireland)
Mr. H-H VOGEL (substitute
Member, Sweden)
I.
Introduction
1. The
Venice Commission was invited by the Georgian authorities to comment on the
draft law ‘on prohibition of extremist organisation and unions in Georgia (CDL (2003) 36). The stated purpose of the draft law is to prohibit the use of force
in Georgia for political purposes, to protect the constitutional order from
“coup d’état” or forceful change “as well as prevention of other manifestations
of extremism”. This draft law is stated to be in accordance with Article 26 of
the Georgian Constitution, which provides for rights for individuals to form
and join associations and political parties in accordance with law.
2. The text of the draft
was provided by the Council of Europe’s office in Tbilissi. According to
information received by the Rapporteurs of the Venice Commission and the
Secretariat, there were several drafts of this law. The examined version was
the draft by the Georgian Ministry of State Security. The translation provided,
done in Tbilissi, was poor and sometimes ambiguous. The draft law, distributed
in the press on 19 February 2003, was described as a working draft aimed at
filling the gaps in Georgian legislation in order to curb extremism, including
militancy by extreme religious groups. The
present opinion was adopted by the Venice Commission at its 55th
Plenary Session (Venice, 14-15 June 2003).
II.
General provisions of the draft: Articles 1 - 4.
3. This law is stated to be in accordance
with Article 26 of the Georgian Constitution, which provides for rights for
individuals to form and join associations and political parties in accordance
with law. Article 1 prohibits such associations or political parties whose aims
include subversion of the State or attempts to create “ethnic, racial, social
or national unrest”. Prohibition of public and political organisations is only
possible by court order. Article 2 states that the “law defines grounds and
rules of prohibition of organisations and political unions”.
4. Article 3 of the draft law defines and
draws a distinction between ‘an organisation’ and ‘a political union’.
An ‘organisation’ appears to comprehend all organisations or
combinations of persons, of whatever number and for whatever purpose, whether
officially registered or not, whether structured or unstructured, other than
political parties. There is no requirement that an organisation be established
for any particular period of time to be covered by the definition. ‘Organisation’
includes ‘religious’ unions and ‘commercial organisations’. A ‘political
union’, which is separately defined, includes a political party within the
meaning of the law on Political Unions of Citizens, as well as other unions of
citizens which may not be legally registered as political parties but whose
activities are political.
5. The provisions of the draft organic law
are basically written in a two-step pattern: Article 3 defines certain
activities as extremist and article 4.1 declares any such activity
impermissible in Georgia. The wording of both provisions is very broad.
6. Article 3.d1, for example,
defines “extremist activities (extremism)”. The definition is
comprehensive and complex; not only activities of an organisation or a
political union are included in it
– “…
aimed at obliterating or forcefully changing the constitutional order or the
government of Georgia …”
but also
– “creating
illegal military groups;”
– “conducting
terrorist, including international terrorist, activities;”
– “propagating
war or violence, or facilitating national, regional, religious or social
enmity;” and
– “perpetrating
acts of hooliganism and vandalism … with motive of ideological, political,
racial, ethnical [national], religious abhorrence or hatred towards any social
group”.
In addition,
in Articles 3.d2 and 3.d3 the definition also includes
– “public
call for implementation or conduction of such activities, as well as
distribution of extremist literature;” and
– “financing
of such activities or any other support to their implementation”.
As can be seen from the above,
this definition includes activities which are very heterogeneous; some of them
are essentially and typically political, while others are not. No distinction
is made between generally criminal activities and other activities, which
basically may be considered political and therefore be met by means of
political dialogue but which because of violence, etc. are no longer acceptable
and justifiable and therefore may have to be penalised.
7. The absence of such a distinction risks
creating a problem in the light of the principle of proportionality, since the
margin of appreciation of a State is different in cases mentioned above. It can
be linked to three main points:
-
precise definition of restrictions;
-
necessity in a democratic society;
-
proportionality.
These aspects
will be examined further in paragraphs concerning requirements of the European
Convention on Human Rights.
Further, it
should be observed that in the English language the adjective “extremist”
and the noun “extremism” both are bearers of connotations which would
make it unsuitable to use either adjective or noun in English legal texts. If
the corresponding terms in the Georgian text of the draft are bearers of
similar connotations, the use of other terms should be considered.
8. Article 4 makes ‘extremist
activities…impermissible in Georgia’’ whether carried out by an ‘organisation’
or a ‘political union’. If
either an organisation or a political union conducts ‘extremist activities’ it
can be declared to be ‘an extremist union’ by the Supreme Court or the
Constitutional Court. The draft law
applies to an extremist union a range of consequences including liquidation,
prohibition of all activities and forfeiture of its property to the state.
III.
Application of the European Convention on Human Rights
and international practice in this field.
A. Application
of the European Convention to extremist organisations and unions in general.
9. When it comes to essentially and
typically political activities any legislation to penalise those activities
which are not acceptable and justifiable in a democratic society has to be
drafted with regard to human rights protection in this field. Freedom of
association, freedom of opinion and other fundamental freedoms and human rights
as enshrined in human rights’ documents have to be respected.
10. Article 5 of the draft law establishes a
set of rules on warning of an organisation or a political union about
“impermissibility of conduction of extremist activities”. Article 6 sets
procedures for a prohibition of an organisation or a political union that
failed to rectify their activity following a warning as established in Article
5.
12. Article 1 of the European Convention on
Human Rights requires that the contracting parties secure everyone subject to
their jurisdiction the rights set out in the Convention and in the protocols
where ratified. Care must therefore be taken by governments and legislatures to
ensure that laws of their states contain only legitimate restrictions on
fundamental freedoms and that implementation of those laws do not impose
burdens or restrictions on or harm other legitimate interests which are
disproportionate to the objects to be achieved by the restrictions. Therefore,
restrictions should be narrowly interpreted and applied, and the need for those
restrictions convincingly established. As a Party to the Convention, Georgia
must abide by this requirement for legitimacy and proportionality.
13. Both the European Convention and the
Georgian Constitution guarantee freedom of association
and freedom of expression.
However, this draft law seeks to impose on all Georgian organisations
significant restrictions on the freedom of association primarily and, through
these restrictions, on the freedom of expression. Freedom of association is regarded as fundamental to the
democratic process and is closely related to freedom of political expression,
which secures the right of the citizen to be involved in the political process.
The protection of opinions and freedom to express them is one of the objectives
of the freedoms of assembly and association in Article 11. Freedom of
expression constitutes one of the foundations of a democratic society and
effective advocacy of political views requires organisation and freedom of
association. Freedom of association and
expression are also fundamental to the operation of trade unions and also the
promotion of other economic, social and cultural rights. Restrictions on these
rights will necessarily be contentious and therefore require a clear
justification and narrow application.
14. Article 11 of the Convention is not the
only provision which is relevant in this context. In its case law the European
Court of Human Rights has repeatedly stated that Article 11, notwithstanding
its autonomous rule and particular sphere of application, also must be considered
in the light of Article 10 of the Convention, which guarantees freedom of
expression. The protection of opinions and the freedom to express them is one
of the objectives of the freedoms of assembly and association as enshrined in
Article 11. That applies, according to the Court, all the more in relation to
political parties in view of their essential role in ensuring pluralism and the
proper functioning of democracy. The Court has pointed out that there can be no
democracy without pluralism, and that it is for that reason that freedom of
expression, as enshrined in Article 10 of the Convention, is applicable,
subject to paragraph 2 of Article 10, not only to “information” or “ideas” that
are favourably received or regarded as inoffensive or as a matter of indifference,
but also to those that offend, shock or disturb. According to the Court,
inasmuch as the activities of political parties form part of a collective
exercise of the freedom of expression, political parties are entitled to seek
the protection of Article 10 of the Convention.
The Court has also both found and reiterated that it is the essence of
democracy to allow diverse political projects to be proposed and debated, even
those that call into question the way a state is currently organised, provided
that they do not harm democracy itself.
When it comes to placing restrictions on a political party or dissolving it as
“necessary in a democratic society” it must therefore be considered whether the
measure – be it restriction or dissolution – would meet a “pressing social
need” and be “proportionate to the legitimate aim pursued”.
The Court has taken the view that a political party may campaign for a change
in the law or the legal and constitutional basis of the state on two
conditions:
(1)
the means used to that end must in every respect be legal and
democratic;
(2)
the change proposed must itself be compatible with fundamental
principles.
But the Court
has also found that it necessarily follows that a political party whose leaders
incite violence or put forward a policy which fails to respect democracy or
which is aimed at the destruction of democracy and the flouting of the rights
and freedoms recognised in a democracy cannot lay claim to the Convention’s
protection against penalties imposed on those grounds.
16. Finally, it has to be recalled that
Article 17 of the Convention provides that nothing in the Convention “may be
interpreted as implying for any State, group or person any right to engage in
any activity or perform any act aimed at the destruction of any of the rights
and freedoms set forth herein or at their limitation to a greater extent than
is provided for in the Convention.”
B. Provisions of the Draft law concerning international co-operation in
the field of fight against extremism (Article 7 of the draft).
17. The draft law tries to make reference to
the international co-operation aimed at fighting extremism. In the context of
the draft, the term ‘extremism’ seems too broad. If Article 7 is intended to
fight international terrorism, it can be recalled that the Committee of
Ministers [of the Council of Europe] at its 804th meeting on 11 July 2002
adopted “Guidelines on human rights and the fight against terrorism”. According
to Section II of these guidelines, “all measures taken by states to fight
terrorism must respect human rights and the principle of the rule of law, while
excluding any form of arbitrariness, and must be subject to appropriate
supervision”. In addition, Section III.2 of the guidelines states that, “when a
measure restricts human rights, restrictions must be defined as precisely as
possible and be necessary and proportionate to the aim pursued”.
18. When considering the issue of
‘organisations and political unions of foreign States’, Georgian authorities
might consider more precise definitions and the close connection between the
organisation and its subversive or terrorist aims that are made in various
international instruments which have dealt with the difficult area of
international terrorism. For example,
see the definition of “terrorist group” set out in the EU Council Framework
Decision of 13th June 2002 on combating terrorism. The formulation
of words used in Article 2 is:
"For
the purposes of this Framework Decision, "terrorist group" shall
mean: a structured group of more than two persons, established over a period of
time and acting in concert to commit terrorist offences. "Structured group" shall mean a
group that is not randomly formed for the immediate commission of an offence
and that does not need to have formally defined roles for its members,
continuity for its membership or a developed structure".
19. A list of ‘intentional acts’,
where committed with specified terrorist aims, is set out in Article 1 of the
Framework Decision. The Preamble to the Framework Decision states that the EU
endeavoured to draft the Framework Decision in a way that respected fundamental
rights and freedoms though to date it has not been the subject of any judicial
decision. The European Convention on Human Rights has been given indirect
effect through incorporation into EC and EU norms.
* * * * *
20. Only convincing and compelling reasons
can justify restrictions on parties’ or organisations’ freedom of association.
The European Court of Human Rights’ case law on this topic is reflected in the
“Guidelines on Prohibition and Dissolution of Political parties” adopted by the
Venice Commission –CDL-INF(2000)1. These, inter alia, require that
states recognise that everyone has the right to associate freely in political
parties. Limitations on the exercise of the right to associate freely in
political parties and to hold political opinions must be consistent with the
European Convention on Human Rights.
In particular, paragraph 3 of the Guidelines provides that ‘prohibition or
enforced dissolution of political parties may only be justified in the case of
parties which advocate the use of violence or use violence as a political means
to overthrow the democratic constitutional order, thereby undermining the
rights and freedoms guaranteed by the constitution. The fact alone that a party advocates a peaceful change of the
Constitution should not be sufficient for its prohibition or dissolution.’ The Georgian draft law does not give such a
clear and precise definition. To take
an example from the text of the draft law, it is not clear whether the phrase
in Article 3.d, “obliterating…the constitutional order or the government of
Georgia”, is intended to connote only violent activity. Reference is made again to the remarks at
paragraph 7 above on the unsuitability of the words “extremism” and
“extremist”.
21. In order for a restriction on the
guaranteed freedoms to be justified in accordance with article 11(2) or 10(2),
the European Court of Human Rights require the state to show that the
interference:
a)
is prescribed by law and, in particular, that it is
formulated with sufficient precision to enable persons likely to be affected by
it of their rights to understand the circumstances in which any such
restriction may be imposed and on the other hand, to enable such persons to
foresee with a reasonable degree of accuracy the consequences of their actions;
b)
must pursue a legitimate aim in accordance with Article
11(2) ie its objective must be:
a.
the prevention of disorder and crime
b.
the protection of health or morals or
c. the
protection of the rights and freedoms of others.
c) must
be necessary in a democratic society.
22. A certain margin of appreciation is
granted to contracting states in imposing restriction on qualified rights.
However this is not unlimited, and the European Court will ultimately decide
whether the restriction is compatible with the European Convention. The phrase
means that in order to be compatible the interference must be in response to a
‘pressing social need’ and must be ‘proportionate to the legitimate aim
pursued’. In assessing the proportionality of the interference the Court will
ask, inter alia, whether there was a less restrictive alternative
capable of meeting the same aim,
whether safeguards are in place to prevent abuse
and whether the restriction in question destroys the ‘very essence’ of the
Convention right in issue.
So, for instance, if it is the case that any definition of ‘extremist
activity’ would result in the restriction of non-violent political dialogue
or protest with the aim of constitutional change, this would not be necessary
in a democratic society and would violate fundamental rights and freedoms as
they are enshrined in the national Constitution (see par.13 of this text) and
in the European Convention. It needs to be examined, for example, whether an
organisation, when some of its members are involved in an isolated incident of
‘hooliganism’ or ‘vandalism’, should be prohibited pursuant to the draft law or
otherwise dealt with pursuant to the ordinary criminal law.
IV.
Judicial review and the provisions of the draft.
23. In order to be in compliance with, the
European Convention as interpreted by the European Court of Human Rights, with
the Guidelines of the Committee of Ministers and those of the Venice
Commission, any legislation concerning restrictions on activities of political
parties would have to pass the tests and meet the requirements which the Court
has specified. However, it is not obvious that the provisions of the proposed
organic law would do that. The wording of the draft is very broad. Indeed, the
draft is so broadly written, that the provisions of the organic law would be
applicable not only to activities which would be unjustifiable and unacceptable
under Articles 10 and 11 of the European Convention and the Guidelines, but
also to activities which are both justifiable and acceptable in an open and
pluralistic democracy.
24. As to procedural requirements, the
Venice Commission in its above mentioned guidelines, has expressed the view that
cases concerning prohibition or dissolution of a political party should be
decided by the Constitutional Court or other appropriate judicial body and that
the procedure should offer all guarantees of due process, openness and a
fair trial. The first requirement – decision by the Constitutional Court or by
the Supreme Court – is met by articles 6.1 and 6.2 of the proposed organic law
but it is not clear whether the proposed law is in compliance with the second
requirement – a procedure that offers all guarantees of due process, openness
and a fair trial. This second requirement would clearly not be met, if it were
intended that only the proposed organic law would be guiding court procedures.
The situation may be different if the intention is to make general rules of
procedure before the two Courts applicable to procedures concerning requests
under the proposed organic law. If the latter is the case, it should be stated
clearly, either by a reference in the text of the proposed organic law to the
applicable general rules of procedure or by some other clarifying legislation.
25. According to article 6.3 of the
proposed organic law it would be the Georgian
Security Service which would have to make a request to the
Constitutional Court or the Supreme Court to initiate proceedings concerning
the prohibition of extremist organisations. However, in order to achieve a
thorough and comprehensive examination of a possible case at an early stage,
the decision to initiate court proceedings aiming at prohibition or dissolution
of a political party or other political organisation should be made, not
by the Security Service, but by a political instance such as, the parliament,
the government or a minister. Requests to prohibit or dissolve other
organisations should be made by the public prosecutor or by an
administrative agency, which is independent of the Security Service.
V.
Conclusions
26. The draft law examined by the Venice
Commission seeks to establish a definition of what could be considered an
extremist organisation or union whose activities are impermissible. The draft
law provides a number of sanctions against any such organisation or union,
including prohibition. Since Georgia is party to the European Convention on
Human Rights it must respect the rights guaranteed in the Convention. The law
is insufficiently clear in its definition of what can be considered as
“extremist activities” and who and what activities are the target of the draft
law so as to be “prescribed by law” according to the jurisprudence of the European
Court of Human Rights thus giving rise to a risk of abusive control of
political parties and unions.
27. The examined text could be applicable not
only to activities unacceptable under the Constitution and the European
Convention but also has the possibility of applying to activities that are
acceptable in a pluralistic democracy. It would be advisable that the draft law
be adjusted to comply with Articles 10 and 11 of the European Convention.
28. As to the procedural requirements,
additional guarantees should be envisaged with an aim of providing all
conditions for access to justice and fair trial.
29. The Venice
Commission hopes that the Georgian authorities will consider the
recommendations given in the present opinion in their further work on this
piece of draft legislation.
