partly DISSENTING OPINION OF JUDGE FISCHBACH

( Translation )

While I agree with the majority that there has been no violation of Article 10, I regret that I am unable to share its view that there has been no breach of Article 11 of the Convention.

As I read the travaux préparatoires on Article 11 of the Convention (see paragraph IX, pages 18 and 19), restrictions on freedom of association must not only be lawful, as required by the second sentence of Article 11 § 2, they must also be necessary in a democratic society.

I can see no convincing argument which, in a pluralist, democratic society, could justify a ban on joining a political party.

On the contrary, I consider that the unhappy experiences suffered under the communist regime ought to encourage political leaders to advocate a fresh approach so that the democratic process can be consolidated and the future prepared for in a spirit of open-mindedness and tolerance.

As the police are now no longer at the service of the communist party, but of democracy, it is essential that change be accompanied by an approach fostering awareness of democratic pluralism through divergent political views that fuel debate over ideas.

Banning the police from joining a political party amounts to depriving them of a right, if not the democratic duty, which all citizens have to hold opinions and political convictions, to take a close interest in public affairs and to participate in the fashioning of the will of the people and of the State.

Admittedly, the right to state one’s personal convictions by belonging to a party should not be confused with either freedom to express opinions and political convictions irrespective of time or place or, above all, with freedom to comment in public on the actions of political leaders. Those are freedoms that have always to be reconciled with the obligation of discretion to which all public servants and, a fortiori , members of the police are subject by virtue of their duties to the executive of impartiality and loyalty.

It is for that reason that I share the majority’s view that there has been no violation of Article 10.

However, the total ban on belonging to a political party and, consequently, the legislature’s refusal to allow policemen to take part in the internal workings of a party is, to my mind, disproportionate and made yet more unjust by the fact that the selfsame legislature affords all members of the police the right to stand for elections at national, local or municipal level on condition that they inform the head of police of their intention to do so and remain off duty from the sixtieth day preceding the election until publication of the results.

I very much doubt the effectiveness of such a right to stand for election since its exercise is highly dependent on the person concerned being given the freedom to familiarise himself with a party’s ideas, working methods and machinery and, hence, enough time to acquire a taste for politics and to begin a political career.

[1] Notes by the Registry

1-2. Protocol No. 11 and the Rules of Court came into force on 1 November 1998.

[2] 3. Since the entry into force of Protocol No. 11, which amended Article 19, the Court has functioned on a permanent basis.

[3]

[4] Notes by the Registry

1. Protocol No. 9 came into force on 1 October 1994 and was repealed by Protocol No. 11.

[5] . Rules of Court B, which came into force on 2 October 1994, applied until 31 October 1998 to all cases concerning States bound by Protocol No. 9.

[6] 1. Note by the Registry . For practical reasons this annex will appear only with the final printed version of the judgment (in the official reports of selected judgments and decisions of the Court), but a copy of the Commission’s report is obtainable from the Registry.