PARTIALLY DISSENTING OPINION OF MR G. RESS,

JOINED BY MR S. TRECHSEL AND MR K. HERNDL

1. To a large extent I join the dissenting opinion of my colleague Mr Geus . However, I have doubts whether the notion of "political party", which has to be defined in the context of the Hungarian domestic law, is really so imprecise as to conclude that the requirements of foreseeability are not met.

Modern constitutions often use the notion of "political parties" (cf. Article  21 of the German Basic Law). There even exist specific statutes in many countries on "political parties". The German " Parteiengesetz " for example gives a more detailed description of the notion of "political party". This notion normally implies an association of citizens pursuing more or less general political goals, laid down in a programme . A "political party" aims at participating in general or regional elections of legislative bodies and has a certain minimum number of members.  Even if in a given case it might be doubtful whether an association may be regarded as a political party,  these legal problems nevertheless prevail in all democratic systems based on party pluralism. They cannot lead to the conclusion that the notion of "political party", as such, is vague and not sufficiently specific to enable the applicant to regulate his conduct.

2. Article 11 para. 2 provides for two grounds of justification for restrictions on the exercise of the rights guaranteed in its paragraph 1. The first sentence lists those grounds which could be said to be necessary in a democratic society for specific public interests. The second sentence envisages grounds specifically allowing  restrictions for members of the police.

Turning to the first sentence, restrictions on party affiliation by members of the police can neither be justified in the interests of national security nor on any of the other grounds, i.e. public safety, the prevention of disorder or crime, the protection of health or morals and the protection of the rights and freedoms of others.  The amendment to the Hungarian Constitution and the relevant legislation do not pursue any of these public interests. Their aim is rather to ensure that the armed forces, the police and the security services are politically neutral entities in order to avoid institutional links which, during the totalitarian period, existed with the ruling party.  In a politically pluralistic democracy, political parties are independent of the State. This is even a prerequisite for admission to the Council of Europe and the European Convention of Human Rights. In these circumstances, there is no pressing social need for such prohibitions on the membership in political parties.  On the contrary, it would seem to be one of the basic conditions of a modern pluralistic democracy that, regardless of profession or status, every citizen can freely express his political convictions, in particular through elections, but also by adhering to political parties.  Political parties are the major instrument for the citizen to participate in the political life of a nation.

The separation between political parties and the administration of the State as a whole was part of the constitutional monarchy where the army, the police and the civil service owed loyalty to the monarch. This element does not provide sufficient justification within a modern pluralistic democracy.

3. The second sentence of Article 11 para. 2 may justify restrictions on specific categories of State officials, such as the police, even if none of the public interests mentioned in the first sentence can be invoked. This is, in my view, the very sense of this second sentence. Nevertheless, any interference has to stand the test of necessity in a democratic society.  There is no convincing argument to justify a complete prohibition of party membership.  This goes beyond a restriction,  amounting to a denial, for the members of the police, of the right to join specific categories of associations.

Mr Geus has indicated that there may be legitimate reasons to impose on the police restrictions regarding the exercise of the right to associate. For instance, they may be prohibited from having leading posts in a political party or from participating in public demonstrations of that political party or from declaring in public their party affiliation during an election campaign.  However, to impose a complete prohibition on party membership is disproportionate in a democratic society where every citizen should have, as far as possible, the chance to participate in the formation of the political will of the people and the State.