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Multiparty Democracy: International and European Human Rights Law Perspectives

Published online by Cambridge University Press:  02 February 2010

Abstract

Although multiparty elections are not explicitly required by international human rights instruments or the European Convention on Human Rights (ECHR), certain human rights provisions have been interpreted as leading to such a requirement. While a democratic interpretation of human rights law has been settled in the ECHR framework, it remains disputable at the universal level. Despite numerous references to democracy in the documents adopted in the UN framework in the post-Cold War era, this article argues that an explicit link between international human rights law and multiparty elections has yet to be established. On the other hand, such a link has been developed by the European Court of Human Rights (ECtHR). Multiparty elections are considered to be part of the European public order. Moreover, the ECtHR has shown that it understands democracy beyond the existence of electoral procedures. But the role and understanding of democracy within the ECHR cannot be universalized.

Type
CURRENT LEGAL DEVELOPMENTS
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2010

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References

1 F. Fukuyama, The End of History and the Last Man (1992), 276–7.

2 See generally T. Franck, ‘The Emerging Right to Democratic Governance’, (1992) 86 AJIL 46; T. Franck, ‘Legitimacy and the Democratic Entitlement’, in G. Fox and B. Roth (eds.), Democratic Governance and International Law (2001). See also C. Cerna, ‘Universal Democracy: An International Legal Right or the Pipe Dream of the West?’, (1995) 27 New York University Journal of International Law and Politics 289, at 295.

3 See generally Franck, ‘Emerging Right’, supra note 2.

note 2

4 Ibid.; see also F. Teson, A Philosophy of International Law (1998).

5 S. Marks, The Riddle of All Constitutions (2000); J. Alvarez, ‘Do Liberal States Behave Better? A Critique of Slaughter's Liberal Theory’, (2001) 12 EJIL 183.

6 B. Roth, Governmental Illegitimacy in International Law (1999), 324–38.

7 Section 2, infra.

8 Section 3.1, infra.

9 G. Sorensen, Democracy and Democratization: Processes and Prospects in a Changing World (1993), 3.

10 Relatively recently women in many states deemed that ‘democratic’ did not constitute the category of ‘people who rule’. Many male citizens had long been excluded from this category based on reasons such as ethnic and racial background, class background, level of education, and wealth. Ibid., at 9–16.

11 S. Huntington, The Third Wave (1990), 6.

12 See D. Held, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (1995), 9–12.

13 In some sense such rule was similar to that later established in apartheid South Africa, where democratic rule was in the hands of a minority determined by race, while the majority could not participate in the exercise of rule. Sorensen, supra note 9, at 14–17.

note 9

14 S. M. Lipset, The Encyclopedia of Democracy (1994), 75.

15 It is argued that elections are the most tangible part of the democratic process and therefore are often considered a synonym for democracy. T. Carothers, ‘Empirical Perspectives on the Emerging Norm of Democracy in International Law’, (1992) ASIL Proceedings 261, at 264.

16 J. Schumpeter, Capitalism, Socialism, and Democracy (1942), 269.

17 See section 1.2, infra.

18 Such an understanding of democracy may be challenged by the question whether a democratic political system would not be ‘more democratic if ordinary citizens (as they typically do) lobbied their representatives between elections, organized campaigning groups, engaged in consultative processes, took part in demonstrations . . . if they actively regarded public matters as their affair, and if representatives were systematically required to listen to them’. D. Beetham, Democracy and Human Rights (1999), 3. In other words, the democratic process also operates between elections and not only at elections.

19 Schumpeter, supra note 16, at 269.

note 16

20 Marks, supra note 5, at 51.

note 5

21 Schumpeter, supra note 16, at 271–2.

note 16

22 Marks, supra note 5, at 51.

note 5

23 Echoes of the Schumpeterian definition of democracy are apparent in the normative democratic entitlement theory: ‘The existence of a democratic form of government – evidenced by fair and free periodic elections, three branches of government, an independent judiciary, freedom of political expression, equality before the law, and due process – is sine qua non to the enjoyment of human rights’. Cerna, supra note 2, at 295.

note 2

24 See the UN Human Rights Committee (HRC), General Comment 25, UN Doc. CCPR/C/21/Rev.1/Add.7 (1996), para. 12.

25 Beetham, supra note 18, at 90–1 (emphasis in original).

note 18

26 S. Marks and A. Clapham, International Human Rights Lexicon (2005), 3.

27 Marks, supra note 5, at 73.

note 5

28 Beetham, supra note 18, at 114.

note 18

29 Marks and Clapham, supra note 26, at 64–5.

note 26

30 Beetham, supra note 18, at 114.

note 18

32 Huntington, supra note 11, at 9.

note 11

33 Consider the following definition of neo-liberalism: ‘Neoliberalism is in the first instance a theory of political economic practices that proposes that human well-being can best be advanced by liberating individual entrepreneurial freedoms and skills within an institutional framework characterized by strong private property rights, free markets, and free trade. The role of the state is to create and preserve an institutional framework appropriate to such practices . . . [I]f markets do not exist . . . then they must be created, by state action if necessary. State interventions in markets (once created) must be kept to a bare minimum because, according to the theory, the state cannot possibly possess enough information to second-guess market signals (process) and because powerful interest groups will inevitably distort and bias state interventions (particularly in democracies) for their own benefit’. D. Harvey, A Brief History of Neoliberalism (2005), 2.

34 Fukuyama, supra note 1, at 42–3.

note 1

35 Beetham, supra note 18, at 101.

note 18

37 Ibid., at 100–1.

38 Rich, R., ‘Bringing Democracy into International Law’, (2001) 12 Journal of Democracy 20, at 20CrossRefGoogle Scholar.

39 Art. 29(2) of the UDHR provides, ‘In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society’.

40 Roth, supra note 6, at 326.

note 6

41 The International Covenant on Economic, Social and Cultural Rights (ICESCR) comprehends a general limitation clause in Art. 4, which, inter alia, makes a reference to ‘democratic society’. The ICESCR also refers to ‘democratic society’ as part of the limitation clause in the elaboration of subparagraphs (a) and (c) of Art. 8 (the right to form trade unions). The International Covenant on Civil and Political Rights (ICCPR) attaches the interest of ‘democratic society’ as one of the limitation clauses to Arts. 14 (right to a fair trial), 21 (freedom of assembly), and 22 (freedom of association). The Convention on the Rights of the Child (CRC) invokes, inter alia, the interest of democratic society as a limitation clause to Art. 15 (rights of a child to freedom of association and assembly). The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families attaches the interest of ‘democratic society’ within the limitation clause to Arts. 26 (the right of migrant workers to take part in trade unions) and 40 (the freedom of assembly of migrant workers).

42 Cerna, supra note 2, at 295.

note 2

43 The term ‘democratic rights’ in this article will therefore describe those civil and political rights which are relevant for the procedural definition of democracy. The right to political participation, freedom of assembly, and freedom of expression can be most notably identified as such. See section 1.1, supra.

44 UDHR, Art. 21(3).

45 ICCPR, Art. 25(b).

46 A possible interpretation could also be that, for example, multiparty elections are not required if the will of the people is against them. See Rich, supra note 38, at 23.

note 38

47 The term ‘Western states’ at that time implied states belonging to the regional group ‘Western European and Others’, unofficially used within the UN system. Yet after the end of the Cold War such a definition of ‘Western states’ is no longer adequate. References to ‘Western states’ in the post-Cold War era should then be understood as states of Europe, broadly understood, and non-European states in which societies are of European historic, cultural, religious and linguistic origin. In this context Carothers, supra note 15, at 263, argues, ‘Latin America and Eastern Europe are essentially parts of the Western world’.

note 15

48 Roth, supra note 6, at 325–32.

note 6

49 Ibid., at 331; consider especially the following argument: ‘In the Marxist-Leninist view, multi-party competition [otherwise a crucial postulate of the Western concept of liberal democracy] masks the inalterable structure of power rooted in the concentrated ownership and control of the major means of production, distribution and exchange’.

50 The amendment to Art. 21 of the UDHR, which would call for multiparty elections, was withdrawn on a protest by the Soviet government. See Roth, supra note 6, at 326–7.

note 6

51 Ibid., at 330.

52 This postulate of liberal democracies is subject to caution. Since the liberal-democratic model does not prescribe a single model of government formation or a single constitutional system (presidential, semi-presidential, or parliamentary), the ‘representative government’ may significantly differ from electoral results. What is more, the question of what is a ‘representative government’ to a great degree becomes subject to subjective analyses. For more see note 150, infra.

note 150

53 Even this postulate is subject to caution, as the liberal-democratic model does not prescribe a single model of party system, which is also a consequence of different electoral systems. The model of two-party democracy may lead to significant considerations regarding its democratic quality and so can a fragmented, so-called hundred-party system. A detailed analysis of these deficiencies would, however, be beyond the scope of this article. For more see K. von Beyme, ‘Institutional Engineering and Transitions to Democracy’, in R. Elgie and J. Zielonka (eds.), Democratic Consolidation in Eastern Europe (2001), 3; R. Elgie and J. Zielonka, ‘Constitutions and Constitution Building: A Comparative Perspective’, in ibid., at25.

54 See supra note 49.

note 49

55 Roth, supra note 6, at 332.

note 6

57 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, Judgment of 27 June 1986, [1986] ICJ Rep. 14, at 132, para. 261 (hereinafter Nicaragua case).

58 Ibid., para. 263.

59 Commission on Human Rights Resolution 1999/57 (27 April 1999).

60 Commission on Human Rights Resolution 2000/47 (25 April 2000).

61 Commission on Human Rights Resolution 2002/46 (23 April 2002).

62 ICCPR, Art. 25(2).

63 Commission on Human Rights Resolution 2002/46 (23 April 2002), para. 1.

65 In the Nicaragua case, supra note 57, at 99, para. 188, the ICJ held that opinio juris may be deduced from, inter alia, the attitude of states toward relevant General Assembly resolutions, and concluded that consent to the text of a resolution ‘may be understood as an acceptance of the rule or set of rules declared by the Resolution’. See also D. Harris, Cases and Materials on International Law (2004), 58, arguing: ‘The process by which they [General Assembly resolutions] are adopted (adopted unanimously, or nearly unanimously, or by consensus or otherwise) establishes whether the practice is a “general” one’.

note 57

66 See UN Doc. A/RES/43/157 (8 December 1988); UN Doc. A/RES/44/146 (15 December 1989); UN Doc. A/RES/46/137 (17 December 1991); UN Doc. A/RES/47/138 (18 December 1992); UN Doc. A/RES/48/131 (20 December 1993). The last two resolutions mainly deal with electoral assistance.

67 UN Doc. A/RES/45/150 (18 December 1990). The Resolution was adopted with a vote of 129 in favour and 8 against, with 9 abstentions.

68 UN Doc. A/RES/45/151 (18 December 1990). The Resolution was adopted with a vote of 111 in favour and 29 against, with 11 abstentions.

69 UN Doc. A/RES/50/133 (20 December 1995); UN Doc. A/RES/51/31 (13 December 1996); UN Doc. A/RES/52/18 (21 November 1997); UN Doc. A/RES/53/31 (23 November 1998); UN Doc. A/RES/54/36 (29 November 1999); UN Doc. A/RES/55/43 (27 November 2000); UN Doc. A/RES/58/13 (17 November 2003); UN Doc. A/RES/58/281 (9 February 2004); UN Doc. A/RES/60/253 (2 May 2006); UN Doc. A/RES/61/226 (22 December 2006); UN Doc. A/RES/55/2 (8 September 2000) – the Millennium Declaration.

70 UN Doc. A/RES/60/253, preamble, para. 11; UN Doc. A/RES/61/226, preamble, para. 7, UN Doc. A/RES/62/7, preamble, para. 7.

71 UN Doc. A/51/512 (18 October 1996), para. 4. – Support of the United Nations System of the Efforts of Governments to Promote and Consolidate New or Restored Democracies, Report of the Secretary-General.

72 UN Doc. A/51/761 (20 December 1996), para. 4 – Support of the United Nations System of the Efforts of Governments to Promote and Consolidate New or Restored Democracies, Letter dated 17 December 1996 from the Secretary-General addressed to the President of the General Assembly.

73 UN Doc. A/CONF.157/23 (12 July 1993) – Vienna Declaration and Programme of Action.

74 UN Doc. A/RES/55/2 (8 September 2000), paras. 24, 25.

75 The UN Secretary-General has affirmed that due to different understandings of democracy in various societies, the UN system does not attempt to define democracy. See UN Doc. A/51/512 (18 October 1996), para. 4 – Support of the United Nations System of the Efforts of Governments to Promote and Consolidate New or Restored Democracies, Report of the Secretary-General.

76 UN Doc. A/RES/63/301 (1 July 2009).

77 UN Doc. S/RES/1132 (8 October 1997), para. 1

78 UN Doc. S/RES/940 (31 July 1994).

79 Roth, supra note 6, at 385.

note 6

80 The Governors Island Agreement, concluded on 3 July 1993, was a UN-sponsored agreement between the elected overthrown president Aristide and the de facto government of Haiti which foresaw a retreat from power of the non-elected de facto government in exchange for amnesty. For more see UN Doc. S/26063 (12 July 1993).

81 See Falk, R., ‘The Haiti Intervention: A Dangerous World Order Precedent for the United Nations’, (1995) 36 Harvard International Law Journal 341, at 342Google Scholar.

82 Roth, supra note 6, at 149.

note 6

83 UN Doc. S/RES/1244 (10 June 1999).

84 UN Doc. S/RES/1272 (25 October 1999).

85 R. Wilde, ‘From Danzig to East Timor and Beyond: The Role of International Territorial Administration’, (2001) 95 AJIL 503, at 503.

86 UN Doc. S/RES/1363 (30 July 2001).

88 UN Doc. S/RES/1378 (14 November 2001), para. 1.

89 HRC, General Comment 25, UN Doc. CCPR/C/21/Rev.1/Add.7 (1996), para. 1.

90 Ibid., para. 12.

91 Rich, supra note 38, at 23.

note 38

92 Roth, supra note 6, at 343.

note 6

93 Franck, ‘Emerging Right’, supra note 2, at 47.

note 2

95 In response to Franck's argument it was held that ‘this observation greatly overstates the prevalence of electoral structures that can usefully be characterized as liberal-democratic. Electoral processes in many countries coexist with de jure or de facto repression, exclusion of candidates regarded as unacceptable, and reserves of power (especially military) elites, not to mention mechanisms for the perpetration of fraud’. Roth, supra note 6, at 337.

note 6

96 ECHR, Preamble, para. 5.

97 Such an argument was also made with regard to the UDHR in the time of its drafting. See Roth, supra note 6, at 326.

note 6

98 Marks, S., ‘The European Convention on Human Rights and Its “Democratic Society”’, (1995) 66 British Yearbook of International Law 208, at 211Google Scholar.

99 See note 41, supra.

note 41

100 See note 43, supra.

note 43

101 UDHR, Art. 21.

102 Preparatory Commission of the Council of Europe, Committee of Ministers, Consultative Assembly (11 May – 8 September 1949) (1975) (hereinafter Travaux, vol. 1), at 296 (attached to Teitgen report). From the aspect of the understanding of democracy and human rights at the time of the ECHR drafting, the inclusion of the phrase ‘as regards their metropolitan territory’ is especially interesting and self-explanatory. It points out the question whether one can assume that European colonial powers could be classified as democracies in the age of colonialism.

103 Committee of Experts (2 February–10 March 1950) (1976) (hereinafter Travaux, vol. 3), at 182 (Dowson). See also Marks, supra note 98, at 222.

note 98

104 Ibid.

105 ECHR, Protocol 1 (1952), Art. 3.

106 See notes 40 and 41, supra.

notes 40
41

107 ECHR, Art. 6(1).

108 ECHR, Art. 8(2).

109 ECHR, Art. 9(2).

110 ECHR, Art. 10(2).

111 ECHR, Art. 11(2).

112 At the time of the drafting of the Convention there were also specific arguments made in favour of a liberal interpretation of democracy. In this context it was, for example, argued that the right to political participation, as worded in the draft article (see note 103, supra), is a ‘fundamental requirement of democracy’. See ibid., at 202 (Teitgen).

note 103

113 Section 2.2, supra.

114 Handyside v. United Kingdom, (1976) 1 EHRR 737, para. 49.

115 See the following cases: Lingens v. Austria, (1986) 8 EHRR 407, Judgment, para. 41; Oberschlick v. Austria, (1991) 19 EHRR 389, Judgment, para. 57; Castells v. Spain, (1992) 14 EHRR 445, Judgment, para. 42; Jersild v. Denmark, (1995) 19 EHRR 1, Judgment, para. 31; Goodwin v. United Kingdom, (1996) 22 EHRR 123, Judgment, para. 39; Karhuvaara and Iltalehti v. Finland, (2005) 41 EHRR 51, Judgment, para. 37; Busuioc v. Moldova, (2005) 42 EHRR 252, Judgment, para. 58; and Steel and Morris v. United Kingdom, (2005) 41 EHRR 22, Judgment, para. 87.

116 Young, James and Webster v. United Kingdom (1982) 4 EHRR 22, para. 57.

117 Chassagnou and Others v. France (1999) 29 EHRR 615, para. 100. See also the Ezelin case: ‘Notwithstanding its autonomous role and particular sphere of application, Article 11 (art. 11) must, in the present case, also be considered in the light of Article 10 . . . The protection of personal opinions, secured by Article 10 (art. 10), is one of the objectives of freedom of peaceful assembly as enshrined in Article 11’. Ezelin v. France, (1991) 14 EHRR 362, para. 37.

118 These cases include United Communist Party of Turkey and Others v. Turkey, (1998) 26 EHRR 121; Socialist Party and Others v. Turkey, (1999) 27 EHRR 51; Freedom and Democracy Party (ÖZDEP) v. Turkey, (1998) 26 EHRR 121; and Refah Partisi and Others v. Turkey, (2002) 35 EHRR 3 and (2003) 37 EHRR 1.

119 See note 48, supra.

note 48

120 Section 3.1, supra.

121 ECHR, Art. 11.

122 United Communist Party of Turkey case, supra note 118, para. 24.

note 118

123 Ibid.

124 Ibid., para. 44.

125 Ibid., para. 25. The Court, inter alia, based this conclusion on the reference to democracy in the Preamble to the Convention (supra note 96): ‘[That democracy is without a doubt a fundamental feature of the European public order] is apparent . . . from the Preamble to the Convention, which establishes a very clear connection between the Convention and democracy by stating that the maintenance and further realization of human rights and fundamental freedoms are best ensured on the one hand by an effective political democracy and on the other by a common understanding and observance of human rights’. United Communist Party of Turkey case, supra note 118, para. 45.

note 96
note 118

126 Consultative Assembly, second session of the Committee of Ministers, Standing Committee of the Assembly (10 August–18 November 1949) (1975) (hereinafter Travaux, vol. 2), at 157 (Teitgen). A cynical remark made by Joseph Goebbels could serve as a good comparison to this statement: ‘This will always remain one of the best jokes of democracy, that it gave its deadly enemies the means by which it was destroyed’. Quoted in G. Fox and G. Nolte, ‘Intolerant Democracies’, G. Fox and B. Roth (eds.), Democratic Governance in International Law (2000), 389.

127 Refah Partisi case (2003), supra note 118, para. 102. In English translation ‘Refah Partisi’ is often referred to as either ‘Welfare Party’ or ‘Prosperity Party’.

note 118

128 United Communist Party of Turkey case, supra note 118, para. 47.

note 118

129 Ibid., para. 54.

130 See Kommunistische Partei Deutschlands – Verbotsurteil, BVerfGE 5, 85, 17 August 1956. The German Communist Party, inter alia, declared as its goals the ‘dictatorship of the proletariat’, the ‘opposition to the democratic order’ of the Federal Republic of Germany, and ‘propaganda of the Marxist-Leninist teachings’. The Constitutional Court of Germany accepted the application of the German Government, arguing that ‘The goals of the German Communist Party and the behaviour of its adherents aim at hindering, even abolishing, the liberal democratic fundamental order, and endangering the very existence of the Federal Republic of Germany’. (Ibid., s. 3, para. 1, author's translation. The original reads, ‘Die KPD gehe nach ihren Zielen und dem Verhalten ihrer Anhänger darauf aus, die freiheitliche demokratische Grundordnung zu beeinträchtigen, ja sogar zu beseitigen, und den Bestand der Bundesrepublik zu gefährden’.)

131 United Communist Party of Turkey case, supra note 118, para. 54. At this point it is worth mentioning another wording from the same paragraph: ‘The Court considers that a political party's choice of name cannot in principle justify a measure as drastic as dissolution, in absence of other relevant and sufficient circumstances’ (ibid.). Despite the clear argument made by the Court that merely a name associated with a particular ideology or political system does not necessarily imply the party's automatic commitment to such an (anti-democratic) ideology or political system, one cannot escape the impression that by including the phrase ‘in principle’ in the above-quoted wording the Court left the door open for a possible assessment of parties choosing to call themselves Nazi or Fascist. Unlike communist ideology, which stresses equality, the Nazi and fascist ideologies stem from the perceived superiority of a certain race. Thus there could be, arguably, a much stronger argument made in favour of dissolving Nazi or fascist parties based on their name than is the case with communist parties, which would mean a differentiation between political ideologies that are anti-democratic at their roots and those which become anti-democratic by development.

note 118

132 Kommunistische Partei Deutschlands—Verbotsurteil, BVerfGE 5, 85, 17 August 1956, section 3, para. 2, author's translation. The original reads, ‘Die Auflösung der Partei ist keine selbständige Exekutivmaßnahme, sondern eine gesetzlich angeordnete normale, typische und adäquate Folge der Feststellung der Verfassungswidrigkeit’.

133 United Communist Party of Turkey case, supra note 118, para. 61.

note 118

134 A. W. Heringa and F. van Hoof, ‘Freedom of Association and Assembly’, in P. van Dijk et al. (eds.), Theory and Practice of the European Convention on Human Rights (2006), 829.

135 See Socialist Party case, supra note 118, paras. 41–50; Freedom and Democracy Party case, supra note 118, paras. 37–48.

note 118

136 Refah Partisi case (2003), supra note 118, para. 132.

note 118

137 Heringa and Van Hoof, supra note 134, at 829. See also Partidul Comunistilor and Ungureanu v. Romania, (2007) 44 EHRR 17, para. 48.

note 134

138 ‘The Court further observes that there was already an Islamic theocratic regime under Ottoman law. When the former theocratic regime was dismantled and the republican regime was being set up, Turkey opted for a form of secularism which confined Islam and other religions to the sphere of private religious practice. Mindful of the importance for survival of the democratic regime of ensuring respect for the principle of secularism in Turkey, the Court considers that the Constitutional Court was justified in holding that Refah's policy of establishing sharia was incompatible with democracy . . .’. Refah Partisi case (2003), supra note 118, para. 125.

note 118

139 Refah Partisi case (2003), supra note 118, para. 12.

note 118

140 Ibid., para. 132.

141 See note 44, supra.

note 44

142 Refah Partisi case (2003), supra note 118, para. 107. The Court's reliance on opinion polls was criticized by Judge Kovler in his Concurring Opinion: ‘I find the use of figures derived from opinion polls . . . which would be natural in a political analysis, rather strange in a legal text which constitutes res judicata’. Refah Partisi case (2003), supra note 118, Judge Kovler Concurring, at 49.

note 118
note 118

143 See Roth, supra note 6, at 442, arguing that it is rather odd to give a message that democracy gives people an option to choose any kind of government, except the one that most of them currently think they want to have. One could observe that the ECtHR adopted such reasoning, but used it in a pre-emptive way – to prevent Refah Partisi from winning the following election.

note 6

144 See note 142, supra.

note 142

145 United Communist Party of Turkey case, supra note 118, para. 54; Partidul Comunistilor case, supra note 137, para. 51. In cases when a political party was dissolved after a few days of existence (e.g. the United Communist Party of Turkey) or had not even been registered (e.g. Partidul Comunistilor), the Court was much more reluctant to acknowledge a ‘pressing social need’ than was the case with Refah Partisi, where the Court even referred to opinion polls in order to establish the existence of a ‘pressing social need’.

note 118
note 137

146 ECHR, Preamble, para. 5.

147 United Communist Party of Turkey case, supra note 118, para. 45.

note 118

148 See note 125, supra.

note 125

149 Timke v. Federal Republic of Germany, (1995) 20 EHRR CD 133, Decision on Admissibility, at 158. In this case the Commission had to establish what a ‘reasonable interval’ was, specifically whether an interval of five years was reasonable. The Commission held that a ‘reasonable interval’ should be neither too short nor too long. According to the Commission, an interval that was too short could prevent representatives of the people from implementing the ‘popular will’, while one that was too long would no longer represent the current ‘popular will’. The Commission established that a five-year interval, as used in the German federal unit (Bundesland) of Niedersachsen, qualified as a ‘reasonable interval’.

150 Mathieu-Mohin and Clerfayt v. Belgium, (1987) 10 EHRR 1, para. 54.

151 See generally A. Reynolds, Electoral System Design (2005).

152 Refah Partisi case (2003), supra note 118, Judge Kovler Concurring, at 48.

note 118

153 Constitution of Turkey (1982), Arts. 2, 3, 4, 5 and 6.

154 Refah Partisi case (2003), supra note 118, para. 11. See also J. Petman, ‘Human Rights, Democracy and the Left’, (2006) 2 Unbound 63, at 77–8.

note 118

155 Refah Partisi case (2003), supra note 118, para. 135.

note 118

156 Ibid., para. 74.

157 Ibid., para. 123.

158 Ibid., para. 128.

159 Ibid., Judge Kovler Concurring, at 46–7.

160 Petman, supra note 154, at 80.

note 154

161 ‘[T]he concept of jihad, whose primary meaning is a holy war, to be waged until the total domination of Islam in society is secured’. Refah Partisi case (2002), supra note 118, para. 74.

note 118

162 Petman, supra note 154, at 80.

note 154

163 Ibid.

164 Ibid., at 79.

165 See notes 146 and 147, supra.

notes 146
147

166 ‘The Government further observed that the Turkish population was more than 95% Muslim and that the abusive use of religious ideas by politicians was a threat to, and a potential danger for, Turkish democracy’. Refah Partisi case (2002), supra note 118, para. 60.

note 118

167 See note 159, supra.

note 159

168 One of the arguments of the Constitutional Court of Germany in its Judgment on the Prohibition of a neo-Nazi Socialist Reich Party (Sozialistische Reichspartei, SRP) was: ‘A Party which is in its views and in its essential forms of expression in essence related to a clearly constitutionally forbidden [i.e. anti-democratic] political movement from the past will, as long as it can further operate, try to pursue goals of the same or of a similar kind’. Verbotsurteil-SRP, BVerG, 23 October 1952, Section VI, para. 5 (author's translation). The original reads, ‘[E]ine Partei, die einer eindeutig verfassungswidrigen politischen Bewegung der Vergangenheit in ihrer Vorstellungswelt und in allen wesentlichen Formen der Äußerung wesensverwandt ist, wird auch, sofern sie weiterwirken kann, die gleichen oder doch gleichartige Inhalte zu verwirklichen suchen’.

169 See note 162, supra.

note 162

170 Ibid.

171 See, e.g., the Refah Partisi case (2002), supra note 118, para. 71.

note 118

172 See note 163, supra.

note 163

173 Refah Partisi case (2002), supra note 118, para. 61.

note 118

174 Ibid., para. 62.

175 Section 1.1, supra.

176 This argument has been supported even by the ECtHR in the Refah Partisi case (2003), supra note 118.

note 118

177 Tepe, S., ‘Religious Parties and Democracy: A Comparative Assessment of Israel and Turkey’, (2005) 12 Democratization 283, at 299–300CrossRefGoogle Scholar.

178 See, e.g., J. Linz and A. Stepan, Problems of Democratic Transition and Consolidation (1996), 7.

179 Tepe, supra note 177.

note 177

180 See, e.g., G. Harris, ‘The Role of the Military in Turkey: Guardians or Decision-Makers?’, in M. Heper and A. Evin (eds.), State, Democracy and the Military: Turkey in the 1980s (1988), 177; A. Evin, ‘Changing Patterns of Cleavages Before and After 1980’, in ibid., at 201; I. Sunar, ‘State, Society and Democracy in Turkey’, in ibid., at 65.

181 See note 185, infra.

note 185

182 See, e.g., K. Karpat, ‘Military Interventions: Army–Civilian Relations in Turkey before and after 1980’, in Heper and Evin, supra note 180, at 137.

note 180

183 Tepe, supra note 177, at 300.

note 177

184 See notes 112, 117, 122, 123, 124, 134, and 156, supra.

notes 112
117
122
123
124
134
156

185 Rekvenyi v. Hungary, (2000) 30 EHRR 519, para. 47.

186 Ibid., para. 42.

187 Section 3.3, supra.

188 See, e.g., O'Donnell, G., ‘Illusions about Consolidation’, (1996) 7 Journal of Democracy 34, at 38CrossRefGoogle Scholar.

189 See notes 137, 141 and 156, supra.

notes 137
141
156

190 Ibid.

191 Ždanoka v. Latvia, (2007) 45 EHRR 17, para. 110. This decision is interesting in the light of the lustration laws adopted in some post-communist states. See, e.g., V. Pettai, ‘Estonia: Positive and Negative Institutional Engineering’, in A. Pravda and J. Zielonka (eds.), Institutional Engineering in Eastern Europe (2001), 126–7.

192 Ždanoka case, supra note 191, para. 108. See also para. 85, where the Court held, ‘[N]either a parliament nor an individual member of parliament may, by definition, be “politically neutral”’.

note 191

193 Ždanoka case, supra note 191, para. 66.

note 191

194 Ibid., para. 110.

195 Constitutional Court of Latvia, Judgment of 30 August 2000, cited in the Ždanoka case, supra note 191, para. 49.

note 191

196 For more on Latvian democracy see, e.g., A. Sprudzs, ‘Rebuilding Democracy in Latvia: Overcoming a Dual Legacy’, in Pravda and Zielonka, supra note 191, at 139.

note 191

197 Note 42, supra.

Note 42

198 United Communist Party of Turkey case, supra note 118, para. 25.

note 118

199 Section 3.2, supra.

200 See especially the Refah Partisi case (2003), supra note 118, Judge Kovler Concurring, at 49.

note 118
2
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