Political parties are essential to any pluralistic democracy. Forming and joining political parties is one of the most common ways in which individuals engage in public dialogue and decisionmaking and realize their right to “participate in the conduct of public affairs.”
In its Guidelines on Political Party Regulation, the Venice Commission defines a political party as
a free association of persons, one of the aims of which is to participate in the management of public affairs, including through the presentation of candidates to free and democratic elections. Political parties are a collective platform for the expression of individuals’ fundamental rights to association and expression and have been recognized by the European Court of Human Rights as integral players in the democratic process. Further, they are the most widely utilized means for political participation and exercise of related rights.
The Commission also explained that
[a]lthough the legal capacity and standing of a political party may vary from state to state, political parties have rights and responsibilities regardless of their legal status. While political parties may be governed under laws separate from general associations, at a minimum they still retain the basic rights provided to other associations.
In discussing government regulation of political parties, the Commission noted that
[w]here regulations are enacted, they should not unduly inhibit the activities or rights of political parties. Instead, legislation should focus on facilitating the role of parties as potentially critical actors in a democratic society and ensuring the full protection of rights relevant to their proper functioning. While a specific law for political parties is not required, political parties must at a minimum retain the same basic rights afforded other associations, as well as the rights to nominate candidates and participate in elections.
9.1. Objectives and means of political parties in a democracy
Political parties may pursue any political goal, including changes in the laws and policies of the State, so long as they use lawful avenues and are pursuing changes that do not conflict with fundamental democratic principles.
The ECtHR has explained that:
a political party may promote a change in the law or the legal and constitutional structures of the State on two conditions: firstly, the means used to that end must be legal and democratic; secondly, the change proposed must itself be compatible with fundamental democratic principles. It necessarily follows that a political party whose leaders incite to 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 … .
In Yatama v. Nicaragua, the IACtHR recognized the importance of political parties as essential for democracy as well as the explicit protection political parties enjoy. Yet, it found that Nicaragua had violated the convention where its electoral law: (1) prohibited citizens to stand for office unless put forward by a registered political party, and (2) required for municipal elections that parties present candidates in at least 80 percent of the municipalities in the district. These requirements impaired the ability of local indigenous communities to put forward candidates. In a later decision, the IACtHR limited the reach of Yatama v. Nicaragua and accepted for federal elections in Mexico the need for candidates to be registered by a political party[7] Castañeda Gutman v. México, IACtHR, Judgment of 6 August 2006. .
9.2. Banning, Dissolving, or Refusing to Register
States must ensure the right to form and join political parties. Any blanket ban on the right to form political parties is a per se violation of the right to freedom of association, among other fundamental rights. For example, in Jawara v. the Gambia, the AComHPR found violations where the government had banned political parties and further banned government officials from a prior regime from running for office or joining a political party, among other restrictions:
67. The imposition of the ban on former Ministers and Members of Parliament is in contravention of their rights to participate freely in the government of their country provided for under Article 13(1) of the Charter. Article 13(1) reads:
“Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law.”
68. Also, the banning of political parties is a violation of the complainants’ rights to freedom of association guaranteed under Article 10(1) of the Charter. In its decision on communication 101/93, the Commission stated a general principle on this right, to the effect that “competent authorities should not enact provisions which limit the exercise of this freedom. The competent authorities should not override constitutional provisions or undermine fundamental rights guaranteed by the constitution and international human rights standards”. And more importantly, the Commission in its Resolution on the Right to Freedom of Association had also reiterated that: “The regulation of the exercise of the right to freedom of association should be consistent with States’ obligations under the African Charter on Human and Peoples’ Rights”.
In Lawyers for Human Rights v. Swaziland, the AComHPR again found a ban on all political parties to be a per se violation of the right to freedom of association.
In rare instances, a State may ban a specific political party where the party’s objectives and activities are entirely antithetical to democracy and pose a severe risk to the rights of others, but such restrictions are subject to the strictest review.
A strict scrutiny is warranted and no false attribution can be made on party intentions.
In HADEP and Demir v. Turkey, [ click for full case explanation ]
In focus:
HADEP and Demir v. Turkey
In the case HADEP and Demir v. Turkey, the People’s Democracy Party, “HADEP” advocated “a democratic solution to the Kurdish problem”. HADEP was dissolved in 2003 by a decision of the Turkish Constitutional Court, finding that the party had become a centre of illegal activities, which included aiding and abetting the illegal Workers Party of Kurdistan (PKK). The Constitutional Court further banned a number of HADEP’s party members from becoming founders or members of any other political party for five years. The Court found a violation of Article 11 of the Convention. It held that certain statements made by party members – calling the actions of the Turkish security forces in south-east Turkey in their fight against terrorism a “dirty war” – to which the Turkish court had referred when concluding that HADEP was guilty of aiding and abetting the PKK, were a sharp criticism of the Government’s policy but did not encourage violence, armed resistance or insurrection. Those statements could therefore not in themselves constitute sufficient evidence to equate the party with armed groups carrying out acts of violence. The European Court further found, in particular, that statements by HADEP members which considered the Kurdish nation as distinct from the Turkish nation had to be read together with the party’s aims as set out in its programme, namely that it had been established to solve the country’s problems in a democratic manner. Even if HADEP advocated the right to self-determination of the Kurds, that would not in itself be contrary to democratic principles and could not be equated to supporting acts of terrorism.
, the ECtHR found a violation where the State dissolved a political party after conflating its members’ public criticisms of government policy as advocating for violence, while the party’s aims as set out in its program was to solve problems in a democratic manner.
In Partidul Comunistilor (Nepeceristi) and Ungureanu v. Romania [ click for full case explanation ]In focus:
Partidul Comunistilor (Nepeceristi) and Ungureanu v. Romania
In Partidul Comunistilor (Nepeceristi) and Ungureanu v. Romania, Partidul Comunistilor (Nepeceristi), a party of Communists who had not been members of the Romanian Communist Party, “the PCN”, had been founded in March 1996. Its registration as a party was refused by the Romanian courts in a decision upheld in August 1996 on the grounds that the PCN was seeking to gain political power in order to establish a “humane State” founded on communist doctrine, meaning that it considered the constitutional and legal order that had been in place since 1989 as inhumane and not based on genuine democracy. The Court found a violation of Article 11 of the Convention. Having examined the PCN’s constitution and political programme – on the sole basis of which the Romanian courts had rejected the application for the party’s registration – it noted that they stressed the importance of upholding the national sovereignty, territorial integrity and legal and constitutional order of the country, and democratic principles including political pluralism, universal suffrage and freedom to participate in politics. They did not contain any passages that might be considered a call for the use of violence, an uprising or any other form of rejection of democratic principles. It was true that there were passages criticising both the abuses of the former Communist Party before 1989, from which the PCN distanced itself, and the policy that had been followed subsequently. However, the Court considered that there could be no justification for hindering a political group that complied with the fundamental principles of democracy solely because it had criticised the constitutional and legal order of the country and had sought a public debate in the political arena. Romania’s experience of totalitarian communism prior to 1989 could not by itself justify the need for the interference with the party’s freedom of association.”
, the ECtHR found a violation of the right to freedom of association where the State refused to allow a communist party to register. The court found that registration was rejected on the sole basis of the political programme of the party while in fact the programme stressed the importance of upholding the constitutional order and did not contain passages calling for violence or rejecting democratic principles.
See also Destructing democracy and inciting violence (Association Section 12.5) and Suspension or dissolution of associations (Association Section 12).
9.3. Access to Foreign Funding
Although generally the right to freedom of association includes the right to access funding (see Association Section 10.5), including funding from foreign sources, certain restrictions on access to foreign funds for political parties – those vying for power – may meet the three-prong test under international law and serve to avoid “undue influence by foreign interests in domestic affairs.” For example, the ECtHR has upheld restrictions on political parties’ access to funds from foreign political parties where the national party in question had access to the same public funding mechanism available to other political parties in the State and it could not show a disproportionate impact on its ability to engage in its activities.[13] Basque Nationalist Party – Iparralde Regional Organisation v. France, ECtHR Judgment of 7 June 2007).. In discussing such regulations, the Venice Commission has commented that it is vital such restrictions are carefully drawn to avoid violating the right to freedom of association, noting in particular that “legislation should carefully weigh the protection of national interests against the rights of individuals, groups and associations to co-operate and share information.”[14] OSCE/Venice Commission, Guidelines on Political Party Regulation, para/ 172. It also highlighted the increasingly important role of external support for individuals, groups and organizations promoting human rights and fundamental freedoms and the need for any regulations to avoid unduly restricting such cooperation and support.[15] OSCE/Venice Commission, Guidelines on Political Party Regulation, para 172.
9.4. Election Periods
International and regional bodies have adopted explicit resolutions on the vital position of freedom of association within the context of elections. The Human Rights Council, for example, has called on States:
to respect and fully protect the rights of all individuals to assemble peacefully and associate freely, including in the context of elections, and including persons espousing minority or dissenting views or beliefs, human rights defenders, trade unionists and others, including migrants, seeking to exercise or to promote these rights, and to take all necessary measures to ensure that any restrictions on the free exercise of the rights to freedom of peaceful assembly and of association are in accordance with their obligations under international human rights law.
The protection of freedom of association is especially significant in the context of elections because of the vulnerabilities and risks associated with this period. The UN Special Rapporteur on the rights to freedom of peaceful assembly and of association has emphasized that all associations are entitled to engage in the activities related to the electoral process without any regard to the character or position of the association, “whether they are apolitical in their means and operations, partially or totally supportive of the Government or express criticism of Government policies:”[19] UN Human Rights Council, Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/68/299, 7 August 2013, para 46.
The right to freedom of association is an essential component of democracy that empowers men and women and is therefore particularly important where individuals may espouse minority or dissenting religious or political beliefs … As such, no restrictions should be placed on associations, solely because they do not share the same views as those in authority.
The Special Rapporteur also called upon States to step up the scrutiny for imposing legitimate restrictions on the right freedom of association during times of elections to ensure that the strictest test of necessity and proportionality in a democratic society, coupled with the principle of non-discrimination, is imposed:
In the context of elections, the Special Rapporteur believes that the test threshold should be raised to a higher level. It is therefore, not sufficient for a State to invoke the protection of the integrity of the election process, the need to ensure non-partisan and impartial elections, the need to preserve peace or security to limit these rights, insofar as the context of elections is a critical time when individuals have a say about the fate of their country.