E.L. Rev. 2004, 29(3), 407-420

European Law Review

2004

Militant democracy and the European Convention on Human Rights

Paul Harvey

© 2010 Sweet & Maxwell and its Contributors

Subject: Human rights

Keywords: Freedom of association; Freedom of thought conscience and religion; Political parties

Legislation: European Convention on Human Rights 1950 Art.10, Art.11, Art.17

Case: Refah Partisi (Welfare Party) v Turkey (41340/98) (No.2) (2003) 37 E.H.R.R. 1 (ECHR (Grand Chamber))

*407 Almost since its inception, the European Court of Human Rights has been required to consider the question of the rights of anti-democratic actors within liberal democracies. The principal justification for curtailing those rights has been the doctrine of the “militant” democracy in European constitutional thought. While a product of the immediate post-war period, the doctrine still finds judicial support at the Court. Recent patterns in the practice of democracy and recent cases on this matter invite us to re-examine the basis of the doctrine and its contemporary application. This in turn invites us to speculate on the future direction of litigation in this field. The principal aim of this note is to set out the doctrine

and difficulties with it before tracing its application through the jurisprudence of the European Court of Human Rights.

Introduction

The question of when liberal democracies may restrict the rights of their anti-democratic opponents has always been a vexatious one both for democratic theorists and for courts required to adjudicate on the permissibility of such restrictions. Normally respect for human rights is a fundamental tenet of democracy but paradoxically states justify restrictions on the human rights of anti-democratic actors on the grounds of protecting democracy itself-the so-called “militant democracy” thesis of post-war European constitutional politics. Recent cases at the European Court of Human Rights involving the banning of political parties suggest that this Court again has to address this paradox but to do so in new ways. Furthermore, it may be that such cases mark the beginning of a qualitatively different form of democratic rights litigation at the Court, particularly when 45 European states have now recognised the right of their citizens to bring cases against them at the Court. This note is divided into two parts. The first sets outs the doctrine of the militant democracy and the problems its application presents for Courts generally and for the Court of Human Rights in particular. The second considers the jurisprudence of the Court of Human Rights on the democratic rights of anti-democratic actors and outlines the challenges the Court faces in its future adjudication in this area.

Militant democracy

The concept of the “wehrhafte (or streitbare) Demokratie ” (the fighting, vigilant or militant democracy) has its origin in contemporary responses1 to the Nazi take-over in *408 Germany and the fact that it came about as a result of more or less free elections in the impotent Weimar Republic. In its shadow, the German Basic Law was the first European constitution to recognise the necessity of designing a democracy capable of defending itself against anti-democratic actors who use the democratic process in order to subvert it.2 Most post-war European constitutions have since followed this model in providing for, either by explicitly constitutional norms or by organic laws, the restriction of the rights of those opposed to the constitutional order.3 This militancy means they take an active stance in restricting the human rights of anti-democratic actors to protect the substantive, predetermined values that democracy is meant to secure and to ensure that democracy does not become “the Trojan Horse by which the enemy enters the city”.4 In practice, such restrictions may take the form of banning political parties, denying them registration or state funding or, in the case of individuals, preventing them from standing in elections, distributing pamphlets, addressing rallies and so on. Thus militant democracy simultaneously advances three claims. Firstly, that it is a particular variant or sub-type of liberal democracy and not a departure from it. Secondly, that it is possible for the survival of democracy to be purchased by restrictive actions and thirdly that the ethical cost of such restrictive actions does not fatally undermine liberal democracy and indeed may even strengthen it.

At this general, theoretical level, these claims immediately present a number of difficulties both normative and empirical. Equally important, however, is that a number of added complexities arise when we consider this question in its contemporary context and in relation to the Court of Human Rights, complexities which any contemporary contribution to the debate cannot ignore given this Court's primacy in articulating the content of democratic rights in Europe. It is proposed to consider briefly the general objections to the doctrine before turning to the difficulties of its application by a supranational court such as the Court of Human Rights.

Militant democracy: contemporary difficulties

At an abstract level, the principal difficulty with the doctrine is that it is based in one of two contested conceptions of democracy namely the substantive rather than the procedural conception. The accusation is that militant democracy simply cannot overcome the paradox that it is prepared (albeit under exceptional circumstances) to subordinate the substantive value of tolerance to the protection of other substantive values. In order for it to do so, it must privilege certain substantive values above others (e.g. a Rawlsian conception of justice)5 and conceive of democracy merely as an instrument of such *409 substantive values. As a matter of constitutional politics this merely begs the question as to what the proper ordering of substantive values ought to be, democracy's relationship to those values and how to specify the means by which courts may resolve conflict between them. Any attempt to do so by framing a constitution in terms of this substantive conception of democracy therefore always carries the suspicion of being little more than constitutional fiat. However this is not to say that any alternative procedural conception of democracy provides any better a response. This is the case for two reasons. The first is that even if democracy seen in a more procedural sense (e.g. in Schumpeters's idea of democracy merely as a desirable institutional arrangement)6 then it does not follow that the democratic rights underpinning this arrangement are held absolutely. Furthermore, while we may question the high ethical cost of militant democracy, if we assume that its second claim as to its own efficacy is true, even such a high cost is preferable in ethical terms to a constitutional suicide pact.

At a more practical level, six further difficulties present themselves, the latter two being of particular concern to the Court of Human Rights. The first is that an excessively narrow definition of the scope legal political action to the exclusion of a number of different antidemocratic parties endangers political pluralism and, by virtue of its constitutional status, this definition creates a priori a kind of petrified oligarchy7 instead of a modern, pluralist democracy. A second, related difficulty is the simple suspicion that the label antidemocratic is used too often as a pretext for banning those whose political activism amounts to no more than a challenge to the dominant national ideology which all branches of government subscribe to in spite of their formal separation.8 Here the objection is not so much to the conceptual validity of the doctrine rather its abuse in practice. The charge here is that constitutional provisions designed as tutelary powers for new democracies become instruments for symbolic justice in

mature liberal democracies where it cannot be said there is a grave threat to the democratic system of government by insurgent antidemocratic parties. Germany and Spain provide very good examples of this in that they are template militant democracies who in the course of 2002 to 2003 sought to bring about party closures largely because of the symbolic value such closures would have.9

*410 The following two difficulties concern more probative issues and question the contemporary relevance of the doctrine. The first of these is the possibility that as a matter of practice democracy will be a “Trojan Horse” inside anti-democratic movements, that by initially participating in order to destroy the democratic process, instead anti-democratic movements are changed by democracy and are disciplined by it. In other words, democracy itself is capable of defending itself through its ordinary political processes without the need for specific legal weapons. This counter argument is descriptive rather than prescriptive and it problematic because it is pre-legal, doubting both the need and the appropriateness of Courts acting in this area.10 The second empirical problem is that in its traditional application to Fascist and Communist political parties, militant democracy may be essentially a cold-war paradigm that fails to capture the contemporary patterns of opposition politics. It is an irony of modern politics that triumph of liberal democracy that has led to its now almost universal normative appeal which in turn has made it impossible for bona fide liberal democracies to identify their opponents. As the political scientist Phillippe Schmitter says:

“It is striking how few contemporary parties or movements openly advocate a nondemocratic mode of rule. Usually they claim that their (authoritarian) tutelage will eventually lead to some culturally appropriate kind of democracy.”11

That political scientists now feel the need to coin new terms to describe such movements (as anti-system, anti-establishment and so on) is indicative of the difficulty in appropriately characterising the range of modern political parties.12 In addition, it suggests that the binary distinction between the “democratic” and the “anti-democratic” party which militant democracy relies upon may now be anachronistic.

The fifth difficulty is also a more contemporary one and, for the Court of Human Rights, is an altogether more pressing one hitherto not considered in the literature. Militant democracy's first claim is that it is a specific sub-type of liberal democracy made necessary by past experience of Fascism and latterly Communism. In doing so, it presupposes the existence of liberal democracy and its principal preoccupation is to define when an otherwise liberal constitutional order can take illiberal action. In contemporary Europe this is an unjustified assumption. Even among those States accepting the jurisdiction of the Court of Human Rights, we see a number of Member States, such as Russia and the

Caucasian republics, occupying the “gray zone” between authoritarianism and consolidated liberal democracy. They are variously called “illiberal democracies”, “semi-authoritarian regimes” or “hybrid regimes”.13 They defy easy classification since *411 they combine a rhetorical acceptance of liberal democracy, the existence of some formal democratic institutions and respect for a limited sphere of civil and political liberties with essentially illiberal or even authoritarian traits. This ambiguous character is deliberate: such states are not imperfect democracies struggling toward improvement and consolidation but regimes determined to maintain the appearance of democracy without exposing themselves to the political risks that free competition entails. The suspicion in this context is not that such litigation is the regrettably illiberal but necessary response to illiberal political actors but rather that it is indicative of a regime's general illiberalism and otherwise dubious liberal-democratic credentials. This presents the further complication of how to distinguish between the state which claims the right to act militantly in order to protect its transition to democracy and the state which merely invokes that right as a legitimating façade when the democratisation process has all but faltered.

The sixth and final difficulty is that of translating the doctrine to the supra-national level. We might say that traditionally conceived, the difficulties of militant democracy have been for national constitutional courts, bound to uphold a particular constitutional order, to decide whether that constitutional order is best served by authorising restrictions or not. Their decision hinges simply on evaluating the implications of each course of action. The critical point for the Court of Human Rights is that it is not a domestic constitutional court bound to uphold an existing constitutional order which often explicitly sets out the blueprint for militant democracy and specific procedures for its operation. Its task is to interpret and apply the European Convention on Human Rights. Given this lack of a mandate, the Court is obliged to choose between contested conceptions of democracy. It is not therefore faced with the domestic dilemma of whether a particular constitutional order is best served by legal decision A or B rather its task is to determine whether the Convention system is better served by legal decision A or B. Thus in matters of democratic rights litigation, it must first choose between contested conceptions of democracy before it can decide whether that contested model is best served by upholding a national measure or not. In doing so its task is further complicated by the fact that the number of contested conceptions of democracy have multiplied with enlargement of the Council of Europe and by the fact that paradoxically it is the traits of illiberalism and authoritarianism in these newer members that may in fact produce this kind of democratic rights litigation in the first place.

It should be noted at this point that none of these difficulties need be an insurmountable obstacle to the contemporary application of the militant democracy doctrine or to its conceptual validity. Cumulatively though, they bring immensely complex legal and political issues to the Court. The second part of this note considers how it has addressed these issues in its jurisprudence thus far. It also offers some observations on the future of litigation on these issues.

The European Court of Human Rights and militant democracy

In order to understand the Court's contemporary response to the challenges of militant democracy, it is proposed to make a number of comments about democracy and the *412 Convention before examining the Court's past jurisprudence on this issue. That jurisprudence on militant democracy can be grouped under two headings. The first involves cases falling within the paradigm of Cold War politics and Central and Eastern European democratisation in its immediate aftermath, the second more recent cases which do not fit within this paradigm. It is from these more recent cases that we may see the beginnings of a qualitatively different form of litigation in this field.

Democracy and the Convention: some preliminary remarks

When we speak about democracy and the Convention three caveats must be entered. Firstly, democracy simpliciter 14 is presupposed by the Convention. This means democracy in its primary sense--as a political system which is not illiberal or authoritarian--is (or at least ought to be) a pre-condition for those states who wish to subscribe to the Convention.15 Secondly the Convention contains (or assumes) an inherent compatibility between promoting democracy and protecting human rights. As the Preamble to the Convention states:

“Fundamental freedoms … are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the human rights upon which they depend.”

However, while the relationship between democracy and human rights may be symbiotic, the Court has always understood there also to be an inherent tension between the two. For example, in Klass v Germany the Court affirmed that:

“[S]ome compromise between the requirements for defending democratic society and individual rights is inherent in the system of the Convention”.16

Finally, in relation to the Convention proper, the Court's conception of democracy is only elucidated incidentally--through consideration of the democratic rights contained in the Convention. This occurs in three ways: through judgments on Arts 10 and 11 on the merits of applications and through Art.17 in decisions on admissibility.17 Articles 10 and 11 guarantee freedom of expression and association respectively. Article 17 prohibits the abuse of the Convention rights in order to destroy the rights and freedoms of others and was designed specifically to prevent totalitarian movements from using human

rights as a vehicle for their cause. In cases before the Court, anti-democratic actors have alleged violation of their Convention rights, usually Arts 10 and 11. States have defended their actions either with reference to Art.17 or to the limitation clauses contained in Arts 10(2) and 11(2) which permit restrictions on freedom of expression and association when those restrictions are prescribed by law, meet legitimate aims and are necessary in a democratic society. The latter involves considering the proportionality of the measures taken to the aim pursued and whether there was “pressing social need” for the restriction. It is often difficult to prise apart these defences and, if the state's defence is successful, the practical *413 result is the same. For example, as the Court stated in one of the earliest opinions on Art.17, De Becker v Belgium, it “applies only to persons who threaten the democratic system of the contracting parties and then to an extent strictly proportionate to the seriousness and duration of such threat”.18 Moreover, the Court in Glasenapp v Germany 19 required a “clearly established need” for the application of Art.17. This exacting requirement and placing temporal and material limitations on restrictions of the enjoyment of rights is often the same as considering if Art.10(2) and 11(2) justifications are proportionate in the facing of a “pressing social need” at the time the interference took place. Consequently, in subsequent sections of this note, they are considered together.

Traditional opponents: Communist and Fascist actors and the cold war paradigm

Not surprisingly, from the 1950s until very recently, all of the Court's jurisprudence on anti-democratic actors concerned Fascist and Communist applicants and without question the Court's analysis of these claims has been through a cold war lens. In relation to the former the line of cases is rather simple: the Court has been consistent in its refusal to consider applications from any racist and Fascist groups from any state. All such cases have been declared inadmissible either as manifestly ill-founded or removed from the protection of the Convention by Art.17. This applies to a range of activities; distributing racist and fascist pamphlets,20 denial of the Holocaust,21 denial of the Austrian State by advocating a pan-Germanic nation,22 organising National Socialist para-military training camps,23 and attempting to revive the Italian Fascist party.24 It also endorses prosecution for Nazi activities.25

Indeed the only possible caveat to this jurisprudence is the case of Lehideux and Isorni v France 26 concerning a criminal conviction for a newspaper article eulogising Marshal Pétain. The Court found a violation of Art.10. It stated that the use of Art.10 to negate the Holocaust would be removed from the protection of Art.10 by Art.17 but since the newspaper article had not done so, Art.17 was not applicable.27 The concurring opinion of Judge Jambrek attempted to set out the conditions for the application of Art.17. He stated that

“In order that Article 17 may be applied, the aim of the offending actions must be to spread violence or hatred, to resort to illegal or undemocratic methods, to encourage the use of violence, to undermine

the nation's democratic and pluralist political system, or to pursue objectives that are racist or likely to destroy the rights and freedoms of others.”28

*414 He considered that the more desirable way to deal with resurgent anti-Semitism was “free critique” since “democracies, unlike dictatorships, can cope with the sharpest controversies”.29 He then went on to say, however, that “on the other hand the requirements of Article 17 also reflect concern for the defence of democratic society and its institutions”30 and thus endorsed the principle, and the continuing relevance, of the militant democracy doctrine in determining the Convention's “compromise” between democracy and human rights.

The Court has been much more ambivalent in its attitude to anti-democratic actors coming from the other end of the political spectrum. The first dissolution of a political party reviewed by then the Commission was that of the German Communist Party (KPD) Case. 31 The Commission looked at the goal of the party, that of a proletarian dictatorship, and found it to be incompatible with the Convention. It further noted that the fact that the party directed itself towards attaining power by constitutional means did not mean it had renounced any its aims. As such the organisation and functioning of the KPD constituted an abuse of Convention rights for the purposes of Art.17 and the ban was upheld. It appeared therefore that the restrictions on anti-democratic parties did not require to be justified by any threshold of proof; a ban was valid by virtue of the fact that it applied to anti-democratic actors. Yet this is precisely one of the dangers highlighted in the first part of this note: governments cannot deprive a political actor of rights merely by labelling it anti-democratic. The effect of this would be a circumvention of review of such restrictions by the Court, itself a violation of Art.17. The readiness of the Court to endorse German constitutional provisions restricting the activities of the KPD can also be seen in Glasenapp v Germany. 32 This concerned the requirement that probationary civil servants could only take up permanent positions if they guaranteed that they would uphold the free democratic constitutional system of the Basic Law thereby preventing members of the KPD from working as civil servants. The Court refused to countenance the idea that this was an interference with Art.10, considering this only as a measure regulating access to the civil service.33 However, evidence of a more tolerant approach can be found in later cases. In Vogt v Germany 34 the Court narrowly held that there had been a violation of Arts 10 and 11 in dismissing a secondary school teacher for her failure to comply with the duty of loyalty of civil servants. Mrs Vogt had carried out activities on behalf of the DKP, the successor party to the KPD. The Court distinguished Glasenapp on the ground that Vogt was a permanent civil servant and that her dismissal, as a disciplinary penalty, amounted to interference whereas Glasenapp pertained only to access. Nonetheless, the Court did recognise that given the role of the civil service in guaranteeing the Constitution and democracy the dismissal pursued a legitimate aim under Art.10(2).35 This was deemed to have special significance in Germany because of the Basic Law's militant democracy provisions. Significantly though, the Court observed that the DKP had not been banned by the Federal Constitutional Court therefore it was not necessary in a democratic society to *415 dismiss her.36 This clearly privileged the value of tolerance towards the enemies of the then West

German Republic and began a more progressive attitude towards antidemocratic actors by the Court. Thus while Glasenapp was distinguished, the two cases are not easily reconciled since it is difficult to envisage that had a permanent civil servant brought a case at the time of Glasenapp that it would have been decided in the same way as Vogt. Interestingly, the dissenting opinions in the case privileged instead the claim that a state such as West Germany had both the right and duty to safeguard its survival. The minority judges observed that Germany was an “amputated state” and that the DKP was supported by the Communist regime of East Germany as a means of infiltrating West German democracy.37 They argued that this made it necessary, even desirable, to strengthen the democratic order by restricting the rights of the applicant.

Extending the paradigm: post-Communist democratisation

More recently, faced with similar claims from Central and Eastern European states, the Court has returned to a more militant stance but only in so far as militant democracy may be a tutelary power for those new democracies. For example in Rekvenyi v Hungary, 38 the Court endorsed restricting access to the police and civil service of Communist sympathisers justifying such a stance of the grounds that this ensured neutrality particularly in light of the former regime's reliance on these institutions. However, the Court was at pains to point out that the contested restriction was permissible only as a democratisation measure which would imply that it could only apply for a limited time. Two pending cases will force the Court to clarify this position. In Zdanoka v Latvia 39 and Partidul Comunistilor (Nepeceristi) and Gheorghe Ungureanu v Romania, 40 the Court will be asked to adjudicate on the permissibility of continuing restrictions on the political participation of Communist political parties due to past anti-democratic behaviour. It is by no means clear where these cases will fit in this line of cases since they directly concern the rights of political actors in terms of restricting their participation in the democratic process rather than simply restrictions on access to employment. The margin of appreciation in such cases must always be a narrow one. On the other hand, the Court has recently stressed the “primordial role”41 of political parties in democracy as a reason for requiring a greater degree of loyalty from them which may widen the margin somewhat. The critical factor may be the timing of the restrictions concerned. In the early 1990s, attempts to exclude former-Communists from democratic competition could have been justified in terms of protecting the nascent Latvian and Romanian democracies from Communist subversion. However, the events in these cases date from the period 1999 to *416 2002. Whether the same pressing social need can be found is another matter. Consequently, it may be when judgment is given in Zdanoka and Partidul Comunistilor that we will see the end of this “democratisation” paradigm at least in relation to Communist political actors.

Beyond the paradigm? Recent Turkish cases

Recent Turkish cases involving political parties are indicative both of the contemporary challenges of militant democracy and of a qualitative change in the Court's jurisprudence in this field. To date there have been seven party closure cases concerning Turkey in as many years.42 In the first six, the reasoning

in each case was very similar. The original action for dissolution was brought principally because each party advocated in its programme a peaceful settlement to the Kurdish problem in Turkey and proposed a federal state comprised of a Kurdish and a Turkish nation.43 The Court held that this alone could not justify a ban and while states could take measures to protect their institutions, a political party could not be excluded from the protection afforded by the Convention simply because its activities are regarded by national authorities as undermining the constitutional structures of the state.44 In the case of the United Communist Party the mere inclusion of the word “Communist” in the name of a party could not justify dissolution in the absence of other relevant circumstances.45 In contrast to the German Communist Party case, this party posed no threat to Turkish society as it did not pursue traditional communist aims.46 This would appear to preclude the mere labelling of a political party “anti-democratic” from being sufficient justification for a restriction. The Court did recognise though that the programme advanced by the party could conceal the real intentions of the party.47 However, to determine whether or not this was the case, there must be an opportunity to compare the party's programme and its actions. Since all six parties were dissolved immediately after their formation and that there was no evidence they bore any of responsibility for Kurdish terrorism, the dissolution violated Art.11.

However, in contrast to these cases, in Refah Partisi (the Welfare Party) v Turkey (hereinafter Welfare Party ),48 the Court upheld the decision of the Turkish Constitutional Court to ban an Islamist party. This itself is remarkable since unlike the other six cases is this area, the Welfare Party was not a new fringe party rather the largest single party in *417 Turkey at the time of its dissolution.49 It came to power in June 1996 in coalition with the secular, centre-right True Path (Doğru Yol ) Party under the premiership of Welfare Party leader, Necmettin Erbakan.50 In July 1997 it was ousted from power in a behind the scenes military coup d'état.51 While it was still in office the Principal State Counsel applied to the Turkish Constitutional Court to have the party dissolved and on January 16, 1998 the Constitutional Court did so.52 Since there was nothing specific in the party's programme which provided evidence of an anti-democratic purpose, the Constitutional Court relied on a series of speeches by Welfare leaders. These speeches, it was alleged, demonstrated that the party intended to set up a plurality of legal systems, that it wanted to apply Sharia to the Muslim community and that it advocated jihad (holy war) as a political method.

The Court of Human Rights, sitting as a Grand Chamber of 17 judges, unanimously decided that there was no violation.53 Given that the party had over four million members this amounts to the largest single interference with freedom of association in European jurisprudence. The reason of the Grand Chamber was as follows. The Court considered the speeches of Welfare leaders alongside certain policy decisions taken by the party while in government. These included reorganising working hours in the public sector to accommodate prayers, the visit of the Minister of Justice to a member of his party charged with inciting racial hatred, and a reception given by Prime Minister Erbakan to the leaders of the various Islamic movements.54 It therefore accepted the Government's argument that these acts and

policy statements betrayed an intention to introduce a political regime based on Sharia.55 Sharia was considered irreconcilable with democracy, as conceived by the Convention, particularly with regard to criminal law, the status of women and its inflexibility.56 Any plan to implement a plurality of legal systems was also incompatible.57 Furthermore, the party's leaders did not dissociate themselves from those members of the party who had advocated jihad. This failure was, in the Court's opinion, particularly damning.58 Relying on opinion polls from January 1997 showing that the Welfare Party would receive 38 per cent of the votes were an election held then and 67 per cent were it held four years later,59 the Court considered that the “real chance” the party had to *418 implement its agenda fulfilled the requirement of a “pressing social need” and the ban was affirmed.

Re-endorsing militant democracy: the challenges

In its understanding of that “pressing social need”, in the Welfare Party case the Court offered this clear (re-)endorsement of militant democracy:

“[A] state cannot be required to wait, before intervening, until a political party has seized power and begun to take concrete steps to implement a policy incompatible with the standards of the Convention and democracy, even though the danger of that policy for democracy is sufficiently established and imminent.”60

Further evidence of its re-endorsement of the doctrine is that the Court reaffirmed the principle that it was essential for political pluralism that a party be allowed to advocate change to the nature of the state but also imposed two conditions on the exercise of that freedom. These were that the means used had to be legal and democratic and that the change proposed had to be compatible with fundamental democratic principles.61 At first, this would seem consistent with the reasoning employed in the earlier cases. However, it is the application of these principles to Welfare Party case that is problematic and which is also illustrative of the difficulty in the continuing to apply the doctrine beyond the original paradigm. The point made by the dissenting minority in the Chamber judgment was that the means used by Welfare Party were legal and democratic. There was no actual violence by its leaders or members or any incitement to disorder, merely a failure to dispel any ambiguity from speeches discussing the party's aims. In addition, given that it is permissible to debate, or even undermine, the existing constitutional structure of the state,62 it would appear a party could only be banned if it sought to change the something fundamental to democracy. If this is the criterion by which we determine if a party is antidemocratic or not, then this becomes problematic when we seek to differentiate fundamental and non-fundamental changes or even to define each category. In essence, this returns us to the original conceptual difficulty with militant democracy that if it claims that tolerance must be curtailed to protect other substantive values then it must specify those substantive values. Additionally, we must bear in mind the sixth difficulty set out above namely that even by preferring one contested

conception to democracy to another, the Court of Human Rights must still specify the substantive values contained in (or represented by) the Convention in order that it can determine which parties are intrinsically inimical to the fundamental principles of democracy as understood in the light of the Convention.

In this, its task is not made easier by the fact that the few political parties in Europe would now openly claim their programme to be intrinsically inimical to the Convention's values--one of the empirical difficulties considered in part one. Therefore, if the doctrine of militant democracy to be of continuing relevance to the regulation of contemporary political parties, then the Court must be capable of distinguishing those parties which will be tolerated by it as being acceptably “anti-system” or “anti-establishment” rather than *419 unacceptably anti-democratic. Similarly, in assessing the existence of a “pressing social need” it must consider the possible socialising effects of democracy upon anti-democratic actors especially those who couch their aims in gradualist, reformist language-the second empirical difficulty set out above. Unfortunately, this amounts to little more than a factual assessment by the Court and leaves it open to what it has called “casuistic criticism” from commentators.63

Finally, in seeking to re-endorse the militant democracy doctrine the Court faces the difficulty that the extension of the Convention to a greater number of democracies and traditions has increased the probability of finding these newer patterns of party politics. It has also increased the probability of dealing with the hybrid regimes that will also produce this kind of litigation if they use militant democracy merely a convenient cover for repressive, political justice. It would not be overly political for the Court to become more attuned to these difficulties. In the Chamber judgment in the Welfare Party case, the dissenting judges saw the dissolution of the party in the light of the previous cases concerning Turkey discussed above and took this to be indicative of that state's more general illiberalism.64 Indeed in future litigation, assessing a Member State's dubious liberal-democratic credentials may become unavoidable. A number of applications have been filed by political parties against Russia following that Member State's extensive regulation of political parties.65 Given current democratic trends in Russia,66 it would be myopic for the Court to ignore this question when considering the merits of these applications.

Conclusion: towards new forms of democratic rights litigation

It is for these reasons that we must now speak of qualitatively different forms of democratic rights litigation developing at the Court of Human Rights. We are seeing the emergence of new kinds of applicants bringing cases to the Court and new kinds of states defending those cases. By its nature, democratic rights litigation always forces a court to articulate a coherent normative conception of democracy even if that conception is ultimately contested. Zdanoka, Partidul Comunistilor and eventually the Russian cases set out here will challenge the ability of Court of Human Rights to apply its

conception of *420 democracy within a different paradigm. Yet as long as it continues to endorse the doctrine of militant democracy, the proper resolution of these disputes by the Court will continue to turn on the conceptual validity of the doctrine, its proper application and its relationship to the Convention's values. As such, the Court's response to this litigation may continue to be conditioned by this doctrine with all its attendant difficulties. However, it is just as likely these new forms of litigation will force the Court to revise its normative conception of democracy and to reconsider its endorsement of militant democracy as an appropriate response to that litigation. Either approach creates an immensely complex challenge for the Court--if only for the difficulties set out in this note.

PhD researcher, European University Institute, Florence. My sincerest thanks to Jim Murdoch and Aileen McHarg, University of Glasgow, Wojciech Sadurski and Neil Walker, European University Institute.

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1. The term was coined by Karl Lowenstein, writing in exile in the late 1930s. See K. Lowenstein, “Autocracy versus democracy in contemporary Europe Pts I & II” (1935) 29 American Political Science Review 571 and 755; “Legislative control of political extremism in European democracies Pts I & II” (1936) 38 Columbia Law Review 591 and 725; “Militant democracy and fundamental rights Pts I & II” (1937) 31 American Political Science Review 417 and 638. For a succinct outline of the doctrine see D. Oberndörfer, “Germany's ‘militant democracy’: an attempt to fight incitement against democracy and freedom of speech through constitutional provisions: history and overall record” in D. Kretzner and F. Kershman-Hazan (eds.), Freedom of Speech and Incitement Against Democracy (Kluwer Law International, The Hague, 2000).

2. In particular see Arts 9(2), 18 and 21(2) of the German Basic Law of 1948.

3. Most new constitutions of Europe either take Art.6 of the Spanish Constitution or Arts 9, 18 and 21 of the German Basic Law as the basis of their regulation of political parties. G. Brunner, “The treatment of anticonstitutional parties in Eastern Europe” in F. Feldbrugge and W. B. Simons (eds.), Human Rights in Russia and Eastern Europe, Essays in Honor of Ger P. van den Berg (Kluwer Law International, The Hague, 2000), at pp.17 et seq. See also P. Esplugas, “L’interdiction des partis politiques” (1998) 36 Revue française de Droit Constitutionnel 675.

4. K. Lowenstein, “Militant democracy and fundamental rights I” (1937) 31 American Political Science Review 417, p.424.

5. J. Rawls, A Theory of Justice (Revised edition, Oxford University Press, 1999), pp.190-200.

6. J. A. Schumpeter, Capitalism, Socialism and Democracy (2nd ed., 1947), p.249 quoted in G. H. Fox and G. Nolte, “Intolerant democracies” (1995) 36 Harvard International Law Journal 1, p.14.

7. In the modern context, the term is used by Michels to demonstrate the trend in all modern democracies towards elitism and exclusionary practices both among and within political parties R. Michels, Political Parties: A Sociological Study of the Oligarchic Tendencies of Modern Europe (The Free Press, London, 1962).

8. D.V. Sandifer and L.R. Scheman, The Foundations of Freedom: The Interrelationship between Democracy and Human Rights ( Frederick A. Praeger, New York, 1966), pp.102-104.

9. On June 4, 2002, the Spanish Parliament passed a new Organic Law on Political Parties considerably extending the grounds on which a party could be banned, paving the way for the dissolution of the Basque separatist party Batasuna. An interlocutory appeal challenging the constitutionality of the Organic Law was denied by the Spanish Constitutional Court on March 12, 2003 (STC 48/2003-Pleno), and the party was dissolved on March 27, 2003. On May 8, 2003, the Spanish Constitutional Court subsequently affirmed restrictions on former adherents of the party from standing in regional elections under the name Ametzak de Amezketa (STC 85/2003-Sala Primera). Both judgments are available online at www.tribunalconstitucio nal.es/JC.htm. The attempt by the Basque Government to challenge the dissolution at the European Court of Human Rights was declared inadmissible rationae personae --App. No.29134/03, Government of the Autonomous Community of the Basque Country v Spain, Dec. 10.09.03. Also in March 2003, the German Federal Constitutional Court threw out the joint application of the Federal Government, the Bundestag and the Bundesrat to ban the small, neo-Fascist National Democratic Party (NPD). The reason for this was a technical one: that the infiltration of the party by the Security Service prejudiced a fair hearing. 2 BvB 1/01, 2 BvB 2/01, 2 BvB 3/01, March 18, 2003 available at www.bverfg.de/cgi-bin/link.pl?presse.

10. Pedahzur calls this the “operative perspective” where the focus is on not so much the ethical price paid as the effectiveness of the counteraction policy whether that policy is legal or political. A. Pedahzur, ‘The defending democracy and the extreme right: a comparative analysis” in R. Eatwell and C. Mudde (eds.), Western Democracies and the New Extreme Right Challenge (Routledge, London, 2004).

11. P. Schmitter, “The dangers and dilemmas of democracy” in L. Diamond and M. F. Plattner (eds.), The Global Resurgence of Democracy (2nd ed., John Hopkins University Press, Baltimore and London, 1996), p.76.

12. On this conceptual confusion see, e.g. A. Schedler, “Anti-political establishment parties” (1996) 2 Party Politics 291.

13. Within democratic theory, the literature is substantial. A good bibliography can be found in M. Ottaway, Democracy Challenged : The Rise of Semi-Authoritarianism, Carnegie Endowment for International Peace, Washington D.C., 2003, p.271. The best survey of the field is D. Collier and S.

Levitsky, “Democracy with adjectives: conceptual innovation in comparative research” (1997) 49 World Politics 430. On hybrid regimes see L. Diamond, “Thinking about hybrid regimes” (2002) 13 Journal of Democracy 21 and for a particularly European focus, see Ottaway on Azerbaijan and Croatia (Chs 2 and 5) and L. Shevtsova, “Russia's hybrid regime” in L. Diamond and M. Plattner (eds.), Democracy After Communism (Johns Hopkins University Press, Baltimore & London, 2002).

14. The term is used in a different context in L. Siedentop, Democracy in Europe (Penguin, London, 2000), p.48.

15. See the Statute of Council of Europe, London May 5, 1949, ETS 001 in particular the Preamble and Arts 3 and 4.

16. (1979-80) 2 E.H.R.R. 214, para.[59].

17. Also relevant is the rather weaker protection offered by Art.3 of Additional Protocol 1, the undertaking by Member States to hold free elections.

18. (1979-80) 1 E.H.R.R. 43, para.[279].

19. (A/104) (1987) 9 E.H.R.R. 25, para.[110].

20. App. No.12194/86, Kühnen v Germany (1988) 56 D.R. 205; App. Nos 8348/78 & 8406/78, Glimmerveen and Hagenback v Netherlands (1979) 18 D.R. 187.

21. See ex multis, App. No.9777/82, T v Belgium (1983) 34 D.R. 158; App. No.12774/87, BH, MW, HP and GK v Austria (1989) 62 D.R. 216; App. No.25096/94, Remer v Germany (1995) 82-A D.R. 117; most recently, App. No.65831/01, Garaudy v France, Dec. 24.06.03.

22. App. No.9905/82, Association A. and H v Austria (1984) 36 D.R. 187.

23. App. No.32307/96, Schimanek v Austria, Dec. 1.2.00.

24. App. No.6741/74, X v Italy (1976) 5 D.R. 833.

25. App. No.12774/87, H, W, P, and K v Austria (1989) 62 D.R. 216.

26. (2000) 30 E.H.R.R. 665.

27. ibid. para.[47].

28. Concurring opinion of Judge Jambrek at para.[2].

29. ibid. para.[2].

30. ibid. para.[3].

31. (1957) 1Y.B. 222.

32. (A/104) (1987) 9 E.H.R.R. 25.

33. See also Kosiek v Germany (A/105) (1987) 9 E.H.R.R. 328 restricting the access to the civil service of a member of the NPD whose aim was to abolish parliamentary government, para.[17].

34. (A/323) (1996) 21 E.H.R.R. 205.

35. para.[51].

36. ibid. para.[54].

37. Dissenting opinion of Judge Jambrek at para.[3].

38. (2000) 30 E.H.R.R. 519, para.[41]. See also App. No.24157/94, Matejka v Slovakia, Dec. 28.06.95 (inadmissible).

39. App. No.58278/00, Dec. 06.03.03 (admissible).

40. App. No.46626/99, Dec 16.12.03 (admissible).

41. In Refah Partisi (the Welfare Party) v Turkey, Chamber judgment of July 31, 2001 (2002) 35 E.H.R.R. 3, Grand Chamber judgment of February 13, 2003 (2003) 37 E.H.R.R. 1 discussed below. For comments on the case see M. Koçak & E. Örücü, “Dissolution of political parties in the name of democracy: cases from Turkey and the European Court of Human Rights” (2003) 9 E.P.L. 399; B. Olbourne, “Refah Partisi (The Welfare Party) v Turkey” (2003) 4 E.H.R.L.R. 437; F. M. Broglio, “Principio costituzionale di laicità e partiti politici islamico nell’ordinamento della Turchia” (2002) LXIX Rivista di Studi Politici Internazionali 629.

42. In addition to the Welfare Party case these are: Freedom and Democracy Party (ÖZDEP) v Turkey (2001) 31 E.H.R.R. 27; Socialist Party of Turkey v Turkey (1998) 27 E.H.R.R. 51; United Communist Party of Turkey v Turkey (1999) 26 E.H.R.R. 121; Yazar, Karataş, Aksoy and People's Workers Party (HEP) v Turkey (2003) 36 E.H.R.R. 6; Dicle for the Democratic Party of Turkey (DEP) v Turkey, December 10, 2002; and Socialist Party of Turkey (STP) v Turkey, November 12, 2003-all of which found violations of Art.11. See also App. No.41334/98, Alabay and Güzel v Turkey, Dec. 26.9.00 (admissible), concerning the DDP. Finally, Selma Sadak v Turkey (2003) 36 E.H.R.R. 26 where the applicants were automatically deprived of their parliamentary mandate following dissolution of their party (violation).

43. e.g. United Communist Party, para.[9]; Socialist Party, para.[13]; Freedom and Democracy Party, para.[9].

44. United Communist Party, para.[27].

45. ibid. para.[54].

46. It did not seek the domination of one social class and satisfied the requirements of democracy by supporting political pluralism, universal suffrage and freedom to take part in politics. ibid. para.[54].

47. e.g. United Communist Party, para.[57].

48. See n.41 above.

49. At the time of the 1995 elections it had 4.3 million members and won 6 million votes. Welfare Party, Chamber judgment, para.[82].

50. Welfare Party, Grand Chamber judgment, para.[11]. All subsequent references are to the Grand Chamber judgment unless specified.

51. The role of the army in ousting the Erbakan government, while a matter of historical record and openly admitted by those involved, strangely is not referred to in either the Chamber nor Grand Chamber judgment. The coup was immediately dubbed the world's first ever “post-modern” coup. Nor was the fact that the Welfare Party's successor, the Virtue Party was banned by the Turkish Constitutional Court on June 22, 2001. That party came third in parliamentary elections in 1999 and the action for dissolution was brought when one of its successful candidates took the parliamentary oath wearing a headscarf. On the military intervention and the consequences for Turkish democracy see, e.g. A. Aydintasbas, “The malaise of Turkish democracy” (1998) 28 Middle East Report 32; M. Hakan-Yavuz, “Cleansing Islam from the public sphere and the February 28 Process” (2000) 52 Journal of International Affairs 21.

52. Welfare Party, para.[23].

53. This was on appeal from a previous Chamber judgment that had reached the same conclusion, albeit by four votes to three. See n.41 above.

54. Welfare Party, paras [12], [32], [39].

55. ibid. para.[122].

56. ibid. para.[123].

57. ibid. para.[119] et seq.

58. ibid. paras [111]-[115].

59. ibid. para.[107], though quite how an opinion polls could reflect current support and support in four years time and that the poll could reflect a difference of 29 per cent between these intentions is puzzling.

60. ibid. para.[102].

61. ibid. paras [94] and [95].

62. United Communist Party, para.[27].

63. See the joint concurring opinion of Judges Costa and Zupan%24ci%24c, joined by Judge Kovler in Gorzelik v Poland (2004) 38 E.H.R.R. 4. The case concerned the refusal to register an association because it claimed the existence of a national Silesian minority. The Polish authorities had not registered the association because of the chance that it would later stand in elections and take advantage of the privileges afforded to national minorities in elections. The factual assessment was discerning the ultimate aims and motives of the association (no violation).

64. Welfare Party, Chamber judgment, dissenting opinion, p.35.

65. These include App. No.65659/01, Presidential Party of Mordovia v Russia, Dec. 9.9.03, (admissible); App. No.55066/00, Russian Conservative Party of Entrepreneurs v Russia and App. No.55638/00, Zhukov and Vasilyev v Russia (communicated); App. No.47978/99, Vatan (People's Democratic Party) v Russia, Dec. 4.9.2003 (admissible). Others include App. No.51501/99, Cherepkov v Russia, Dec. 25.01.00, concerning the refusal of authorities to register the applicants candidacy in mayoral elections (inadmissible); App. No.17707/02, Melnychenko v Ukraine, concerning the eligibility of a political refugee to stand in elections (communicated).

66. See e.g. the OSCE/Council of Europe Joint Press Release of December 8, 2003, “State Duma elections well organised but fail to meet many international standards” and of March 15, 2004 on the presidential elections, “Russian election generally well administered but lacking elements of a genuine democratic contest”--available online at http://press.coe.int. For a review of recent academic commentary on Russian democracy see J. Squier, “Putin's deep freeze” (2004) 15 Journal of Democracy 167.

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