In addition to its electoral activities, the Venice Commission is also working on the question of political parties and their funding, which play a fundamental role in democratic life. The key points of the Commission’s “case-law” in this field are the following:
- As a specific type of “free association of persons”, political parties are central to the functioning of democracy. They are essential to a pluralist political society, and their role in the formation of the will of the people is fundamental.
- As their role is essential in ensuring the proper functioning of democracy, political parties should benefit from a number of guarantees. These include, in particular, pluralism, non-discrimination and transparency, which find their basis in the core values of the Council of Europe: human rights, democracy and the rule of law.
While the requirement for registration as such does not amount to a violation of those principles, the Venice Commission applies in this field the principle of proportionality in order to avoid the imposition of excessive requirements on the establishment of political parties, which would be inconsistent with international standards.
The importance of the principles of representativeness and receptiveness, responsibility and accountability as well as the principle of transparency with regard to the internal organisation of political parties has to be underlined. These principles of course have some consequences on the rules governing membership in political parties, in particular, the participation and representation of women and minorities in political parties, as well as the rules imposing restrictions on the membership of foreign citizens or stateless persons.
The Venice Commission puts specific emphasis on the principles of equal opportunity and transparency concerning the financing of political parties. In particular, with regard to private financing, the Commission considers that reasonable limitations on private contributions could be imposed in order to minimise the possibility of corruption or the purchasing of political influence. On the other hand, sanctions imposed on political parties in case of irregularities in financing should be proportionate to the severity of the offence.
Taking into consideration the fundamental role of political parties in the functioning of a pluralist democracy, the Venice Commission underlines in its opinions the importance of three basic principles concerning the prohibition or dissolution of political parties:
(1) the exceptional nature of prohibition or dissolution
(2) the proportionality of the dissolution or prohibition to the legitimate aim pursued and
(3) the procedural guaranties: the procedure for prohibition or dissolution of political parties should guarantee the principles of fairness, due process and openness.
In its opinions, the Venice Commission has also provided an overview of national regulations on party closure, in particular concerning the possible criteria for dissolution and the procedures for dissolution or prohibition established in different legal systems.
The Commission's main studies in the area of political parties are:
The Guidelines on Political Party Regulation have been drafted jointly by the OSCE/ODIHR and the Venice Commission. After defining eleven fundamental principles, they explain and develop them. The Guidelines are based in particular on the case-law of the European Court of Human Rights and previous Venice Commission documents.
The eleven principles are:
- Freedom of Association of Political Parties; Presumption of Lawfulness
- Duty to Respect, Protect and Facilitate
- Freedom of Expression and Opinion
- Political Pluralism
- Legality and Legitimacy of Restrictions
- Necessity and Proportionality of Restrictions
- Effective Remedy
- Equal Treatment of political parties
- Equal Treatment by and within Political Parties, Special Measures, Internal Democracy
- Good Administration
The Code of Good Practice in the Field of Political Parties brings together the standards relating to political parties in one single document. This document, which is intended for the parties themselves and not the states, first recalls the guiding principles for political parties: rule of law, democracy, non-discrimination, transparency and openness. Regarding the internal organisation of political parties, it underlines that everyone must be free to choose whether to be a member of a political party or not and which party to join. In best practices exclusion procedures need to be submitted to disciplinary bodies and there must be clear procedures for reasoned decisions. The organisation of political parties should be subject to the main principles of representativeness and receptiveness, responsibility and accountability, as well as transparency. Party leaders must be democratically elected at any given level. Party funding must comply with the principles of accountability and transparency. One of the most important functions of political parties is the elaboration of a programme which in best practice is the result of the internal debate of party members and its approval according to established procedures. Programmes lead party action when the party is in power. More broadly, the general principles that form the basis of this Code also applies to performance in office and to situations where parties are in opposition. Party members should clearly make a distinction between their allegiance to the party and their office duties.
This study emphasises the fact that the activity of political parties is guaranteed by the freedom of association. In particular, it points out that the prohibition or enforced dissolution of political parties is justifiable only in cases where parties advocate the use of violence or use it as a political means to overthrow the democratic constitutional order, thereby undermining the rights and freedoms protected by the Constitution. The legal measures taken to prohibit or enforce the dissolution of political parties must be the result of a judicial ruling of unconstitutionality and must be regarded as an exception and governed by the principle of proportionality.
This opinion, adopted following a request from the European Court of Human Rights for an amicus curiae brief, considers whether prohibiting financial contributions to political parties from foreign sources is "necessary in a democratic society" under Article 11.2 of the European Convention on Human Rights. It concludes that this may be the case, for example: if financing from foreign sources is used to pursue aims not compatible with the Constitution and the laws of the country (for example, the foreign political party advocates discrimination and violations of human rights); if it undermines the fairness or integrity of political competition or leads to distortions of the electoral process or poses a threat to national territorial integrity; if it inhibits effective democratic development; if such a prohibition forms part of the State's international obligations. In order to establish whether the prohibition of financing from abroad is problematic in light of Article 11 of the European Convention on Human Rights every individual case has to be considered separately in the context of the general legislation on financing of parties as well as the international obligations of the State, including the obligations emanating from membership of the European Union:
In addition, the Venice Commission has adopted a number of opinions on legislation on political parties in States such as Armenia, Azerbaijan, Bulgaria, Georgia, Kyrgyzstan, Malta, the Republic of Moldova, the Russian Federation, Serbia, Turkey and Ukraine.