ARM-2007-1-001
a) Armenia / b) Constitutional Court / c) Plenary / d) 22-12-2006 / e) DCC-669 / f) On the compliance of Article 31.2 and 31.3 of the RA Law on Political Parties with the Constitution of the Republic of Armenia / g) Tegekagir (Official Gazette) / h) .
Keywords of the Systematic Thesaurus:
|
Sources - Categories - Case-law - International case-law - European Court of Human Rights. |
|
|
General Principles - Democracy - Representative democracy. |
|
|
Institutions - Legislative bodies - Political parties - Prohibition. |
|
|
Institutions - Elections and instruments of direct democracy - Electoral system. |
|
|
Fundamental Rights - Equality - Scope of application - Elections. |
|
|
Fundamental Rights - Civil and political rights - Freedom of association. |
|
|
Fundamental Rights - Civil and political rights - Right to participate in public affairs - Right to participate in political activity. |
|
|
Fundamental Rights - Civil and political rights - Right to property. |
|
|
Fundamental Rights - Civil and political rights - Electoral rights - Right to stand for election. |
Keywords of the alphabetical index:
Political party, participation in elections, right / Political party, dissolution / Political party, asset / Political activity.
Headnotes:
Political parties are free to decide on the format of their activities. They participate in elections to state representative bodies. It is the right of a political party, rather than an obligation, to put forward deputies as candidates for the National Assembly and Presidency.
Summary:
I. The Human Rights Defender asked the Constitutional Court to review the compliance of Article 31.2 and 31.3 of the Armenian Law on Political Parties with the Constitution. Under these provisions, if a political party has not participated in the National Assembly in any two successive elections, it will be wound up and its assets will pass to the State. The applicant suggested that these provisions were out of line with Articles 28.2 and 43.1 of the Constitution.
He argued that these provisions of the Law on Political Parties contradict Article 7.2 of the Constitution, under which political parties are formed freely and assist "the formation and expression of the political will of the nation". Even though a political party might not have received enough votes at the elections under the proportional system, its continued activity could still "assist the formation and expression of the political will of the nation".
The respondent countered that the right to form and to join a political party is not absolute. It may be restricted by law and the limitations within Article 5. Also, under Article 3, the raison d'être of a political party is to participate in the political life of the state and society.
II. The Constitutional Court enumerated the guarantees within the Constitution for political parties. Article 7 of the Constitution envisages that they are freely formed and that they promote the formulation and expression of the political will of the people. Their activities may not contravene the Constitution and legislation nor may their practices contravene the principles of democracy.
Article 28 of the Constitution bestows on every citizen the right to freedom of association. This includes the right to form and to join trade unions and political parties. There are certain legal restrictions on membership of trade unions and political parties for those employed by the armed forces, police, national security, the Prosecutor's Office and the judiciary. Restrictions also apply to members of the Constitutional Court. The activities of associations can only be suspended or prohibited through judicial proceedings and in cases prescribed by the law.
The Constitutional Court pointed out that the legislation in question goes further than suspending or prohibiting political party activities. It provides for the winding up of the political party. This is not mentioned in the Constitution. There are a number of reasons justifying winding up of political parties. If the political party in question is wound up as a result of a decision by the Constitutional Court, then the logics of Article 31 of the Constitution dictate that the prohibition of political party activity is the result of the winding-up. Winding up is realised by the state body and courts of general jurisdiction. A logical interpretation of Article 31 of the Constitution also dictates that participation in the political life of society and state consists simply of obligatory participation in elections to the National Assembly by the proportional list. The other problem with the legislation is that the property of the political party passes to the Republic of Armenia. This is deprivation of property and does not comply with the requirements of Article 31 of the Constitution, as it makes no reference to prohibition of the activities of a political party and any judicial proceedings.
The Constitutional Court found that the relevant provisions of the Law on Political Parties were not in accordance with the Constitution. They have made the process of prohibiting political parties' activities easier, by bypassing the Constitutional Court. The limitations on freedom of association envisaged by the Constitution have been transformed, in the Law on Political Parties, into measures, which effectively freeze that freedom, by the winding-up procedure. This becomes even more significant when the provisions of the law and its amendments are called upon in the case of re-registration. Even if a political party is wound up, it still continues to exist as a legal entity, under international practice. It will then continue in existence as a general association; it still keeps its property.
Subparagraphs 1, 2 and 3 of Article 31.2 do not conform to the requirements of Articles 10 and 11 ECHR. Limitation of freedom of association does not meet the requirements of the case-law of the European Court of Human Rights. This provides that a political party's activities may only be cancelled in furtherance of a legal objective and where this is necessary for democratic society. No such objective can be discerned here.
Under Articles 8, 20 and 21 of the Law on Political Parties, the parties are free to define their modus operandi. They also participate in elections to state representative bodies; the nomination of candidates to the National Assembly and the Armenian Presidency is RA President is a party's right, not an obligation.
If, as subparagraphs 1, 2 and 3 of Article 31.2 envisage, parties which do not participate in the National Assembly as the result of elections carried out under the proportional system end up being wound up, this results in contradictory principles and regulation of legal relationships. This not only means that the law is disproportionate, but also jeopardises the right of freedom of association.
Jurisprudence from the European Court of Human Rights shows that cancellation and prohibition of party activities is possible only in exceptional cases, where the fundamental rights of citizens are in under threat. Encroachment on party activity must be in proportion to the goal which is to be achieved. Cancellation must be carried out by judicial process, within the framework of constitutional guarantees.
Analysis of Subparagraph 9, Article 15.2, Article 19.2, Article 5.5, as well as that of the other provisions mentioned above, demonstrates that winding up is based on the principle of free-will. It is not to become a tool to stamp out political party activity, without permission from the Constitutional Court.
Armenian.