Anti-Democratic Associations: Content and Consequences in Article 11 Adjudication
| Author | Stefan Sottiaux |
| Published date | 01 December 2004 |
| Date | 01 December 2004 |
| DOI | http://doi.org/10.1177/016934410402200404 |
| Subject Matter | Part A: Article |
ANTI-DEMOCRATIC ASSOCIATIONS: CONTENT AND
CONSEQUENCES IN ARTICLE 11 ADJUDICATION
STEFAN SOTTIAUX*
Abstract
This article wishes to address the position of anti-democratic political parties under Article 11 of
the European Convention on Human Rights. More precisely, it offers an analysis of Refah
Partisi (The Welfare Party) and others vs Turkey, a case in which the European Court of
Human Right developed a full-scale test for assessing far-reaching interference with the right to
freedom of association of political parties. It seeks to set the Refah ruling in the context of the
Convention organ’s freedom of expression case-law. The central claim is that the Refah Court
adopted a standard which is both content and consequences-based. As a result, the Court’s
Article 11 adjudication bears resemblance to the United States Supreme Court’s First
Amendment jurisprudence. The article concludes that such a partially ‘American’ approach is
justified with regard to the Convention rights of anti-democratic parties.
1. INTRODUCTION
Many European States are confronted with political parties that promote ideas or
pursue activities contrary to the fundamental principles of democracy and the rule
of law. The question how a democratic regime should deal with such anti-democratic
associations still is a controversial one. Karl Loewenstein’s dilemma is as relevant as it
was more than 60 years ago: how can democracy curtail political parties without
violating fundamental political rights and liberties and thus destroying the very basis
of its own existence and justification?
1
In the wake of the fascist and communist revolutions of the first half of the 20
th
century, many European countries adopted legislation restricting and outlawing the
activities of organisations subversive to democracy. Some of these freedom-
restricting measures were challenged under the European Convention on Human
Rights (hereafter: the ‘Convention’).
2
However, it is not until recently that the
European Court of Human Right (hereafter: the ‘European Court’) was offered the
opportunity to develop a full-scale test for assessing far-reaching interference with
the political rights of anti-democratic parties. The case that gave birth to this test is
Refah Partisi (The Welfare Party) and others vs Turkey (hereinafter: ‘Refah’).
3
Netherlands Quarterly of Human Rights, Vol. 22/4, 585-599, 2004.
#Netherlands Institute of Human Rights (SIM), Printed in the Netherlands. 585
* Doctoral candidate, University of Antwerp, Belgium.
1
Loewenstein, Karl, ‘Militant Democracy and Fundamental Rights’, The American Political Science
Review, Vol. XXXI, 1937, p. 431.
2
See, e.g., Vogt vs Germany, 26 September 1995, Series A, No. 323 (concerning the duty of political
loyalty imposed on German civil servants).
3
Refah Partisi (The Welfare Party) and Others vs Turkey, 31 July 2001 (Third Section) and Refah Partisi
(The Welfare Party) and Others vs Turkey, 13 February 2003 (Grand Chamber).
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