Case no 46626/99
26. The applicants complained that the domestic courts' refusal of their application to register the PCN as a political party had infringed their right to freedom of association, as guaranteed by Article 11 of the Convention ...
B. Whether the interference was justified
(...) 3. “Necessary in a democratic society”
(...) 44. The Court reiterates that, notwithstanding its autonomous role and particular sphere of application, Article 11 must also be considered in the light of Article 10. The protection of opinions and the freedom to express them is one of the objectives of the freedoms of assembly and association as enshrined in Article 11. That applies all the more in relation to political parties in view of their essential role in ensuring pluralism and the proper functioning of democracy.
45. The Court considers that there can be no democracy without pluralism. It is for that reason that freedom of expression as enshrined in Article 10 is applicable, subject to paragraph 2, not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb (see, among other authorities, Handyside v. the United Kingdom, judgment of 7 December 1976, Series A no. 24, p. 23, § 49, and Jersild v. Denmark, judgment of 23 September 1994, Series A no. 298, p. 26, § 37). The fact that their activities form part of a collective exercise of the freedom of expression in itself entitles political parties to seek the protection of Articles 10 and 11 of the Convention (see United Communist Party of Turkey and Others v. Turkey, judgment of 30 January 1998, Reports of Judgments and Decisions 1998-I, pp. 20-21, §§ 42-43).
46. The Court has previously held that a political party may campaign for 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 in every respect be legal and democratic, and 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 does not comply with one or more of the rules of 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 (see Yazar and Others v. Turkey, nos. 22723/93, 22724/93 and 22725/93, § 49, ECHR 2002-II, and [Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98,] § 98 [, ECHR 2003-II]).
47. Moreover, for the purpose of determining whether an interference is necessary in a democratic society, the adjective “necessary”, within the meaning of Article 11 § 2, implies the existence of a “pressing social need”.
48. The Court reiterates that its examination of whether the refusal to register a political party met a “pressing social need” must concentrate on the following points: (i) whether there was plausible evidence that the risk to democracy was sufficiently imminent; (ii) whether the leaders' acts and speeches taken into consideration in the case under review were imputable to the political party concerned; and (iii) whether the acts and speeches imputable to the political party formed a whole which gave a clear picture of a model of society conceived and advocated by the party which was incompatible with the concept of a “democratic society”. Its overall examination of the above points must also take account of the historical context in which the refusal to register the party concerned took place (see Refah Partisi (the Welfare Party) and Others, cited above, § 104).
49. The Court's task is not to take the place of the competent national authorities but rather to review under Article 11 the decisions they delivered pursuant to their power of appreciation. This does not mean that the Court's supervision is limited to ascertaining whether a respondent State exercised its discretion reasonably, carefully and in good faith. It must look at the interference complained of in the light of the case as a whole in order to determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 11 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see, mutatis mutandis, Ahmed and Others v. the United Kingdom, judgment of 2 September 1998, Reports 1998-VI, pp. 2377-78, § 55, and Goodwin v. the United Kingdom, judgment of 27 March 1996, Reports 1996-II, pp. 500-01, § 40).
50. In the instant case the Court must assess whether the interference in issue, namely the refusal by the Bucharest Court of Appeal to register the PCN as a political party in a judgment of 28 August 1996, met a “pressing social need” and was “proportionate to the legitimate aims pursued”.
51. The Court notes at the outset that the national courts based their refusal of the applicants' application solely on an assessment of whether the PCN's constitution and political programme complied with the provisions of Legislative Decree no. 8/1989; the PCN had not been politically active before applying for registration. It observes in this connection that neither the Bucharest County Court nor the Bucharest Court of Appeal based their respective decisions of 19 April 1996 and 28 August 1996 on any other document produced by the PCN or on any particular position taken by the second applicant or any other leader of the PCN. Like the national authorities, the Court will therefore take the PCN's political programme and constitution as a basis for assessing whether the interference in question was necessary (see, among other authorities, Refah Partisi (the Welfare Party) and Others, cited above, § 116, and United Communist Party of Turkey and Others, cited above, p. 25, § 51).
52. In this connection, the Court cannot accede to the Government's request to extend the scope of its examination to the policy statements made by the second applicant, several years after the interference in issue, in the press articles published in 1998 and 1999 and the book The anti-socialist, anti-working-class and antinational counter-revolution published in 2000. It observes that it adopted a similar approach in a case in which political speeches made before the dissolution of the applicant party had not been taken into account by the domestic courts (see Dicle for the Democracy Party (DEP) v. Turkey, no. 25141/94, § 50, 10 December 2002). It cannot take the place of the domestic courts in assessing facts outside the scope of the case, the more so in the instant case as the facts referred to by the Government occurred after the interference in issue.
In any event, the Court cannot find any statements in the second applicant's subsequent publications, despite the critical and sometimes hostile language used, that might reasonably be construed as a call for the use of violence for political ends or as a policy in breach of the rules of democracy. In this connection, the Court observes that, even in these unofficial documents aimed at potential supporters of the PCN, the second applicant stated that he was in favour of free, multi-party elections and a political system based on respect for others and their political opinions (see paragraph 18 above).
53. The Court observes that in refusing the application to register the PCN, the Bucharest Court of Appeal endorsed, without elaborating on, the reasoning of the Bucharest County Court to the effect that the PCN was seeking to gain political power in order to establish a humane State founded on communist doctrine, which in the court's view implied that the applicants regarded the constitutional and legal order that had been in place since 1989 as inhumane and not based on genuine democracy.
Accordingly, the domestic courts held that the PCN had infringed Article 2 §§ 3 and 4 of Legislative Decree no. 8/1989. It appears from a combined reading of their decisions that the reproach made against the applicants was that the PCN's aims did not uphold national sovereignty and, in particular, that the means proposed for achieving them were incompatible with the constitutional and legal order in place in Romania. Accordingly, the Court's assessment of the necessity of the interference in issue will relate mainly to the reasons given by the domestic courts for refusing the applicants' application (see, mutatis mutandis, United Communist Party of Turkey and Others, cited above, p. 25, § 52).
54. Examining the PCN's constitution and political programme, the Court observes that these documents lay emphasis on upholding the country's national sovereignty, territorial integrity and legal and constitutional order, and on the principles of democracy, including political pluralism, universal suffrage and freedom to take part in politics. It further notes that they do not contain any passages that may be considered a call for the use of violence, an uprising or any other form of rejection of democratic principles – an essential factor to be taken into consideration – or for the “dictatorship of the proletariat” (see Socialist Party of Turkey (STP) and Others v. Turkey, no. 26482/95, § 45, 12 November 2003, and, conversely, Communist Party of Germany v. Federal Republic of Germany, no. 250/57, Commission decision of 20 July 1957, Yearbook I, p. 222).
55. The Court notes that the PCN's political programme and constitution in fact contained passages criticising both the abuses committed before 1989 by the former Communist Party, from which it distanced itself – not least through its own name – and the policy pursued since 1989.
The Court considers one of the principal characteristics of democracy to be the possibility it offers of addressing through dialogue, without recourse to violence, issues raised by different strands of political opinion, even when they are irksome or disturbing. Democracy thrives on freedom of expression. From that point of view, there can be no justification for hindering a political group that complies with fundamental democratic principles (see paragraph 46 above) solely because it has criticised the country's constitutional and legal order and sought a public debate in the political arena (see, mutatis mutandis, United Communist Party of Turkey and Others, cited above, p. 27, § 57). In the instant case the domestic courts did not show any way in which the PCN's programme and constitution were contrary to the country's constitutional and legal order and, in particular, to the fundamental principles of democracy.
In this connection, the Court cannot accept the Government's argument that Romania cannot allow the emergence of a new communist party to form the subject of a democratic debate.
56. Admittedly, the political experience of the Contracting States has shown that in the past political parties with aims contrary to the fundamental principles of democracy have not revealed such aims in their official publications until after taking power. A party's political programme may conceal objectives and intentions different from the ones it proclaims. To verify that it does not, the content of the programme must be compared with the actions of the party's leaders and the positions they defend (see Refah Partisi (the Welfare Party) and Others, cited above, § 101).
57. In the present case the PCN's programme could hardly have been belied by any practical action it took, since its application for registration was refused and it consequently did not even have time to take any action. It was thus penalised for conduct relating solely to the exercise of freedom of expression.
58. The Court is also prepared to take into account the historical background to cases before it, in this instance Romania's experience of totalitarian communism prior to 1989. However, it observes that that context cannot by itself justify the need for the interference, especially as communist parties adhering to Marxist ideology exist in a number of countries that are signatories to the Convention.
The Court accordingly observes that the criteria defining a “pressing social need” (see paragraph 48 above) have not been satisfied in the instant case, as the courts failed to establish that the applicants' political programme was incompatible with a “democratic society”, let alone that there was evidence of a sufficiently imminent risk to democracy.
59. Nor is there any need to bring Article 17 into play as nothing in the constitution and programme of the PCN warrants the conclusion that it relied on the Convention to engage in activity or perform acts aimed at the destruction of any of the rights and freedoms set forth in it (see United Communist Party of Turkey and Others, cited above, p. 27, § 60).
60. Accordingly, a measure as drastic as the refusal of the applicants' application to register the PCN as a political party, before its activities had even started, is disproportionate to the aim pursued and consequently unnecessary in a democratic society.
61. There has therefore been a violation of Article 11 of the Convention.back