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]