A number of political and
electoral systems specifically exclude participation by persons, groups and
organizations which are considered to pose a threat to constitutional or social
order. The determination of what
constitutes such a threat is usually based on historical experience. While there are indirect avenues (such as
judicial action) for excluding immediate threats in most systems, in some
systems there is also a specific legal (constitutional or legislative) basis
for outlawing certain social or political programs as well as unacceptable
behavior by their adherents.
The types of program or
actions that are subject to such restrictions arise in several ways:
1. “Lustration”[1]
– “Cleansing” of the political system to eliminate past influences deemed to be
undesirable: Among those applied in
recent elections include the banning of certain candidates or parties
associated with or supportive of –
- former Socialist governments (especially their security services) in
post-Soviet States or States formerly subject to Soviet control or influence;[2]
- former Nazi or Nazi-controlled regimes, particularly in Germany
and Austria;[3] and
- former Monarchical families, such as the Hapsburgs in Austria,[4] or the former ruling families in Romania
and Serbia.
2. Other threats to constitutional order, such as by violent dissident or
terrorist groups. This principle is
perhaps best illustrated by a series of cases brought against Turkey
in the European Court of Human Rights.[5]
3.
Potential threats of social disorder arising from extreme programs against
certain groups in society, such as particular ethnic groups (generally referred
to as “hate speech”), or other countries (“war propaganda”); prohibitions
against such expression and association are widespread in formerly Socialist
countries. This category also includes
related restrictions such as on denial of the Holocaust or of the Armenian
genocide.
In assessing regulations
excluding individuals or groups that threaten constitutional order, it is
important to weigh the type and extent of the perceived threat against the
infringement of the human and civil rights of freedom of conscience,
expression, association and assembly.
With respect to regulations aimed at minimizing the influence of former
ruling houses or regimes, it is also important to take into account the passage
of time since these groups were in power and whether they continue to pose a
real threat. (In certain cases, such as
the Hapsburg case, however, the obligation to exclude former rulers from the
democratic process continues to have a legal basis arising from
provisions of the Austrian State Treaty re-establishing an independent Austrian
State, and the anti-Nazi Prohibition Law [Verbotsgesetz])[6]
enacted in 1947.
On the subject of imposition
and continuation of rules limiting the participation of certain individuals and
organizations from the electoral
process, an OSCE/ODIHR document indicates as follows:
“Denial of candidacy on the
grounds that the programme of a candidate or paty violates the constitution or
that candidacy poses an unreasonable risk of violence must be based on a
justified determination, subject to judicial review, that a) the programme of
the candidate or party is based on ethnic hatred, political violence, or war
propaganda or is otherwise inconsistent with fundamental democratic values; or
(b) its conduct demonstrates that it is not prepared to respect the law or to
confine itself to peaceful means in order to achieve its objectives. Actions against candidacies on such grounds
must be proportionate and not undertaken for political reasons.”[7]
[1] The
term “lustration” is said to derive from Medieval usage, referring to cleansing
of fields and villages by fire after a serious epidemic.
[2] See,
e.g., OSCE/ODIHR, Republic of Latvia, Parliamentary Elections, 7 October 2006,
OSCE/ODIHR Limited Election Observation Mission Report (Warsaw, 8 February 2007), pp. 4-6.
[3] See,
e.g., OSCE/ODIHR, Republic of Austria,
Presidential Election, 25 April 2010, OSCE/ODIHR Election Assessment Mission
Report (Warsaw,
9 July 2010), pp. 10-11
[5] See, e.g., Incal v. Turkey,
ECHR Reports 1998-IV
[6] See OSCE/ODIHR, Republic of Austria,
Presidential Election, 25 April 2010, OSCE/ODIHR Election Assessment Mission Report, ibid.
[7] OSCE/ODIHR,
“Existing Commitments …”, op. cit., Part
One, paragraph 6.4
