Information Note on the Court’s case-law 240

May 2020

Ignatencu and the Romanian Communist Party v. Romania - 78635/13

Judgment 5.5.2020 [Section IV]

Article 11

Article 11-1

Freedom of association

Refusal to register a political party declaring itself as the successor to the communist party dissolved in 1989 for imposing a totalitarian regime: no violation

Facts – The second applicant, the Romanian Communist Part y, is a political entity which proclaims that it seeks to continue, in fact and in law, the Communist Party which governed Romania during the totalitarian regime and which was dissolved following its overthrow in the violent events of December 1989. The fi rst applicant is its chairman. The domestic courts refused the applicants’ request to register the second applicant on the list of political parties.

Law – Article 11: The refusal to register the second applicant as a political party could be seen as an in terference with the applicants’ right to their freedom of association, as prescribed by law, with the aims of the protection of national security and the protection of the rights and freedoms of others.

The Provincial Court and the Court of Appeal had expl ained the reasons for their rejection of the applicants’ request using two categories of argument.

(i) The formal reasons given to justify the decision to refuse registration

Domestic law provided for two situations where a political entity could be regist ered on the list of political parties: the constitution of a new political formation; or a reorganisation, where the formation to be reorganised was already legally constituted. The applicants’ request to reconstitute a party which had previously engaged i n political activity did not fall within either of those situations: the former Communist Party had not been active since December 1989 and had not been legally registered on the list of political parties since that date.

It was not unreasonable for a State to subject the formation of a political party to the fulfilment, in a precise order, of certain formalities which were not unduly excessive. Those formalities might vary depending on the specific historical and political factors of each country and States had a certain margin of appreciation to decide on them. In the present case, it was not unreasonable, especially in the historical context of the case, for Romanian legislation not to allow the reconstitution of politica l formations such as the Communist Party which had never operated legally in a democratic regime since December 1989, the date of the first normative instrument governing political pluralism in a democratic society.

In addition, it was not unreasonable in itself to impose a requirement to attach, when seeking to register a party, a declaration of liability by the person who had established the list of signatures in question. In the present case, the legal requirements that the applicants had failed to meet were purely neutral as to their content and were not specifically aimed at the applicant party. Thus to invoke this category of argument in response to the applicants’ request had not sought to penalise this entity on account of its opinions or policies.

L astly, the applicants could have met the condition for submitting the declaration of liability by presenting a new declaration by the person responsible for compiling the list of signatures of the followers; this was not a disproportionate obstacle.

Accord ingly, the formal reasons put forward by the Court of Appeal to justify refusing the registration of the second applicant were “relevant and sufficient” and “proportionate to the legitimate aim pursued”.

(ii) As to the reasons relating to the content of th e constitution and the political programme justifying the refusal of registration

The fact that a political project might be incompatible with the State’s current principles and structures did not in itself mean that it ran counter to democratic rules. Yet it could not be excluded that a party’s political programme might conceal objectives and intentions that were different from those that it displayed publicly. To verify whether this was the case, it was necessary to compare the content of this programme w ith the acts and stances of the members and leaders of the party in question.

The party’s constitution and political programme stressed that it respected the country’s territorial integrity and its legal and constitutional order, together with the principles of democracy, which included political pluralism, and they expressly mentio ned the party’s opposition to totalitarianism and discrimination. Those documents did not contain any passage calling for violence, an uprising or any other form of anti-democratic action, or anything that might be perceived as advocating the “dictatorship of the proletariat”.

The experience of totalitarian Communism in Romania up to 1989 could not justify on its own the need for interference, especially as Communist parties with a Marxist ideology existed in a number of States parties to the Convention, in cluding Romania. Thus the applicants’ right to form a Communist political party was not illusory, not least because they could have adapted their constitutive documents and they had stated that they wished to proceed with a new constitution, not based sole ly on the stated values of the former Romanian Communist Party. However, the applicants were not merely seeking the creation of a new communist party.

The domestic authorities had justified their refusal by citing the indication in the constitution that th e applicant party “assumed the continuity of the theoretical and practical experience of the movement of Romanian socialist and communist workers”, after engaging in an assessment of the means proposed to fulfil the party’s purpose, namely the setting-up o f a socialist society based mainly on the socialist ownership of means of production, in the light of the applicants’ statement that the party wished to represent the continuity of the former Romanian Communist Party. Thus the applicants had not practicall y or fully disassociated themselves from the former party.

The Court of Appeal had amply explained to the applicants the reasons why it had found that their request did not satisfy the conditions of the law or the Constitution and that, furthermore, it had shown how the applicant party’s programme and constitution were contrary to the country’s constitutional and legal order, and in particular the fundamental principles of democracy.

In this very specific context, also having regard to the margin of appreci ation, albeit reduced, afforded to the States, the analysis by the national courts as to the constitution and political programme presented by the applicants was not unfounded. The grounds for refusing their registration lay in the policy of preventing a p olitical formation which had seriously abused its position over a long period, by introducing a totalitarian regime, from misusing its rights in the future, and thus to avoid undermining State security or the foundations of a democratic society. The aim of the refusal had been to counter particularly serious abuse, albeit only potential, on the part of the applicants, since the party might have undermined the rule of law and democracy.

Accordingly, the reasons relating to the constitutive texts of the secon d applicant, as given by the national authorities to refuse its registration, were “relevant and sufficient” and “proportionate to the legitimate aim pursued”.

Conclusion : no violation (unanimously).

(See also United Communist Party of Turkey and Others v. Turkey [GC], 19392/92, 30 January 1998; Socialist Party and Others v. Turkey , 21237/93, 25 May 1998; Refah Partisi (the Welfare Party) and Others v. Turkey [GC], 41340/98 et al., 13 February 2003, Information Note 50; Socialist Party of Turkey (STP) and O thers v. Turkey , 26482/95, 12 November 2003; Gorzelik and Others v. Poland [GC], 44158/98, 17 February 2004, Information Note 61; Partidul Comunistilor (Nepeceristi) and Ungureanu v. Romania , 46626/99, 3 February 2005, Information Note 72; Ždanoka v. Latvi a [GC], 58278/00, 16 March 2006, Information Note 84; Tsonev v. Bulgaria , 45963/99, 13 April 2006; Party nationaliste basque – Organisation régionale d’Iparralde v. France , 71251/01, 7 June 2007, Information Note 98; the United Macedonian Organisation Ilin den – PIRIN and Others (no. 2) , 41561/07 and 20972/08, 18 October 2011)

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