PARTIALLY DISSENTING OPINION OF MR L. LOUCAIDES

I am unable to agree with the decision of the majority of the Commission as regards the applicant's complaint under Article 11 of the Convention. In my opinion the prohibition in this case on joining political parties by members of the police force is incompatible with protection of the right to freedom of association safeguarded by Article 11 of the Convention.

Any restrictions of the rights safeguarded by the Convention should be interpreted narrowly. This should apply a fortiori and even more strictly to exceptional restrictions applicable to certain classes of persons by virtue of specific provisions, like the one in issue in paragraph 2 of Article 11 of the Convention, which is expressed as follows:

"This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State."

It is true that members of the State services referred to in the proviso in question have traditionally been kept away from politics by States out of fear that their impartiality in the execution of their duties, which is essential for the proper functioning of the State, might be impaired. And this was a consideration when the Convention was drafted leading to the above-mentioned authorisation for the imposition of restrictions on the rights of members of the services in question. However, one should not lose sight of the fact that the traditional restrictive approach to freedom of members of the security forces and civil servants, to participate in political life and public life in general, developed under the influence of certain regimes in which the elements of democracy were far behind present day standards. On political matters civil servants were expected to express only the views of the government and not their own.

However, times have changed. In the meantime, democracy has developed and its concepts and requirements are not compatible with a complete cutting off of the members of the above services from the political life of a country. The persons in question have political views and political preferences which they are entitled to express freely. The role and responsibilities of every individual, including civil servants, for the bringing about of political and social changes desired by people, and generally of sustaining the values and principles of democracy, is nowadays more important than ever.

Therefore, the proviso for special restrictions in respect of the members of the services in question with reference to the present standards of democracy, should at least be applied in as liberal a way as possible and the resulting restrictions should be confined to the minimum. This proposition, in my view, should be valid for every member State of the Council of Europe whatever its past history. In applying the Convention, there should not be different standards depending on the history of democracy of each particular State. From the moment that a State becomes a member of the Council of Europe, it is presumed that it has reached, and it is expected to maintain, the standard of democracy which is required as a qualification for membership of the Council.

On the basis of the above approach, I find that the prohibition in question is an unjustifiable interference with the right of association of persons like the applicant, because it is of an unacceptably general character. The prohibition is expressed in absolute terms. No account is taken of the possibility of allowing party affiliation with only limited restrictions, such as the non-holding of certain positions in the party and/or the non-participation in activities or manifestations that may be incompatible with the official duties of persons like the applicant.

In these circumstances, I find that the prohibition in question is arbitrary and, therefore, the condition of "lawfulness" within the wider meaning of that term in the second sentence of Article 11 para. 2 of the Convention was not met, with the result that there has been, in my opinion, a violation of that Article in this case.

(or. English)