GSTF International Journal of Law and Social Sciences (JLSS) Vol.2 No.1, December 2012
Prohibition of Political Parties: Effective Tool to
Square the Circle in the Business of Protecting
Democracy?
Svetlana Tyulkina
Postdoctoral Research Fellow
Australian Research Council Laureate Fellowship: Anti-Terror Laws and the Democratic Challenge
Gilbert + Tobin Centre of Public Law •
Faculty of Law • The University of New South Wales •
UNSW Sydney NSW 2052, Australia
[email protected]
Abstract— Procedure to outlaw political parties is known
to many modern states; however its effectiveness in the
business of protecting democracy from potential enemies
is a highly debated matter. The present paper looks at two
jurisdictions – Turkey and Spain - to investigate if
dissolution of political parties remains to be an effective
tool to protect democracy. The paper starts with the brief
overview of the European standards and practices in
relation to provision of political parties as both
jurisdictions are member states of the Council of Europe
and therefore are bound by the same standards of
protection accorded to political parties and also by
decisions of the European Court of Human Rights. The
introductory is followed by two chapters to outline the
legislative regime and practice of banning political parties
in selected jurisdictions. Towards the end the paper aims
to draw some conclusions and to sum up lessons we can
learn from these case-studies to answer the question
whether dissolution of political parties is an effective legal
measure to guard democracy and protect it from its
potential enemies.
country where prohibition of political parties as one
of the elements of militant democracy was elevated to
the constitutional level [2]. Originally, this procedure
was adopted as a response to the tragic events of the
past where democracy gave a chance to its enemies to
gain power and use it to overthrow it and later also as
a preventive technique against a new enemy many
democracies were afraid of: the communist regime.
The fear of communism made many countries adopt
legislation against the possible rise of communism
and even constitutional democracies with stable
systems of governments were on the verge of trade
off their most cherished democratic values for the
sake of protecting their state structures. At least
Australia and the United States had unpleasant
moments dealing with state policies against the rise of
communism in the 1950s.
The next phase in the development of this legal
structure was the collapse of the communist regime in
the European continent. Many young democracies in
Central and Eastern Europe followed the German
example and introduced various restrictions imposed
on political parties. These restrictions came in the
form of either a priori prohibition of parties adherent
to certain ideologies or a requirement to have party
programs and activities to be compatible with major
democratic principles. However, at some stage
activism in militating post-communist democracies
became
worrying
even
for
international
organizations, such as the Council of Europe. Thus,
in 1999 the Venice Commission [ 3 ] conducted a
survey on the prohibition of political parties and
analogous measures following the request of the
Secretary General of the Council of Europe[ 4 ].The
survey showed that “there are numerous legal means
of prohibiting the activities of political parties”[5] in
Europe, though party activities are guaranteed
everywhere and protected by the principle of freedom
Keywords- dissolution of political parties, regulation of
political parties activities, self-protective democracies,
democracy.
I.
PROHIBITION OF POLITICAL PARTIES IN
EUROPE: STANDARDS AND PRACTICE
The list of countries where procedure to ban political
parties is present and can be potentially invoked to
preserve democracy could be too long to disclose
here. As a matter of fact, the idea to limit democratic
tolerance towards potential enemies, including
possibility to ban political parties, is not new and as
early as in 1930s prominent legal scholar Karl
Loewenstein published two essays where he
summarized various anti-fascist techniques employed
at that times in different European states (also known
as militant democracy)[1]. Germany became the first
DOI: 10.5176/2251-2853_2.1.54
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GSTF International Journal of Law and Social Sciences (JLSS) Vol.2 No.1, December 2012
practices cause legitimate concerns about the
effectiveness of legislative provisions such as
banning of political parties. Turkey is one of the
examples which demonstrate many problematic
aspect of the procedure at stake.
Turkey has considerable experience with the
prohibition of political parties: the Turkish
Constitutional Court has closed down six parties
under the 1961 Constitution and 18 under the current
Constitution of 1982[ 9 ]. The analysis of the
Constitutional Court jurisprudence on party
prohibition cases demonstrates that “one of the most
important areas of remaining democratic deficit
concerns the low level of protection granted to
political parties”[10]. Most of the rulings on political
parties’ dissolution were based on the alleged
violation of the constitutionally protected principles
of the indivisibility and territorial integrity of the state
or the principle of secularity. The jurisprudence of the
Constitutional Court demonstrates that political
parties with an Islamic agenda or aiming at the
protection of the rights of Kurdish minority almost
automatically become targets of the party prohibition
provisions (some of the parties were banned by the
Constitutional Court even before they started their
activities [11] or after the party dissolved itself [12]).
As a result, since the early 1990s political parties
with Kurdish or political Islamic sentiments operate
and function under the normalized threat of being
banned. Political parties with the above mentioned
agendas have adjusted to these circumstances and had
to develop a ‘spare party’ system [ 13 ], a process
where a new party is created with the purpose so that
the main party could resume political activities in
case it is banned. This is by no means a pleasant or
desirable situation for the political environment and
stability of democracy in general. In the Turkish
political environment parties got used to the
possibilities to be banned and form another party with
the same agenda even before the main party is
dissolved. This might be an endless process when the
government bans a party but another party with the
same
program
appears
immediately.
This
demonstrates that elimination of a party from the
political space is not always an effective and helpful
solution. Such a situation does not only affect the
functioning of the political parties and voting system
but also means that the Constitutional Court will be
permanently dealing with party prohibition cases
while it obviously has some other important things to
do. Numerous cases on party prohibition will make
the Constitutional Court care less about the
justification and grounds of dissolution presented by
the government; it might lead to a more relaxed and
generalized approach to party prohibition without
taking into account individual features and
peculiarities of each and every case. Dealing with
parties’ prohibition in a manner that it becomes the
usual business of the Constitutional Court does not
add anything to the protection and support of political
of association. However, it was concluded that “it is
nearly impossible to define behaviors which would
generally warrant such serious sanctions as
prohibition or dissolution of political parties” [6].
At the same time, Central and Eastern European
post-communist states have been extremely reluctant
in putting constitutional and legislative provisions on
prohibition of political parties into a wide practice [7].
However, it would be an exaggeration to claim that
the treatment of political parties in this region is free
from problems and concerns. It is important to bear in
mind that most of the attempts to ban political parties
as well as some other measures imposing limitations
on party activities were brought later to the attention
of the European Court of Human Rights (ECHR) and
in most of the cases political parties were accorded
extremely wide protection as long as they do not
advocate the use violence as a mean of achieving
their political goals. As a result, most of the
unjustified attempts on the side of the governments to
dissolve or prohibit political parties were corrected by
domestic constitutional courts [8 ] or by the ECHR.
Therefore, it appears that provisions on banning
political parties are present in the national
constitutions and legislative acts not with a purpose to
be applied but rather to send a message to the
potential addressees of such measures and warn them
so they have a chance to adjust their agendas and
programs to comply with the rules of the game, such
as democratic principles of the political participation
and state governance.
In general, there is a clear common European
approach to the issue of how democracy should
respond to attempts to threaten it: by opening a free
marketplace of ideas which is capable of neutralizing
extremist and allegedly dangerous ideologies and
ideas for democracy. The ECHR has a developed
body of case-law which in general supports the
possibility of preventive actions to be taken by
democratic states in order to prevent the harm to
established democratic order, including the possibility
to ban/dissolve political parties. However, states are
only allowed to utilize such radical and drastic
measures in extreme situations. Most of the postcommunist states in Europe adequately assessed the
possible danger of illiberal policies in suppressing of
allegedly dangerous ideas and some degree of
‘militancy’
is
present
in
post-communist
constitutional regimes to allow everyone to
participate in a political debate as long as all players
follow the established rules of the game.
II.
PROHIBITION OF POLITICAL PARTIES IN
TURKEY: BUSINESS AS USUAL?
Despite the fact that there is a high degree of
consensus in Europe about level of protection to be
accorded to political parties, there are some troubling
cases where procedure to dissolve political parties
was employed unnecessary often. Presence of such
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GSTF International Journal of Law and Social Sciences (JLSS) Vol.2 No.1, December 2012
the party was denied half of its public funding. In this
judgment the Constitutional Court “persisted in its
rigid and authoritarian interpretation” [ 19 ] of the
notion of secularism as constitutional principle of the
Turkish Republic. This fact combined with an
absolute majority of the Court in favor of the AK
Party closure indicates that “the prohibitionist
tendency” in Turkey is still quite strong and political
parties do not have same level of protection as in the
majority of modern democracies [20].
pluralism and freedom of speech and association. In
this case, procedure which was originally aimed at
the protection of democracy might become a mean to
destroy or damage it.
One of the controversial and well-known cases on
party prohibition coming from Turkey is the Refah
Party (the Welfare Party) case. The Refah party was
not a new player in Turkish politics, it was presented
under different names since the late 1960s (it is a
good example of the spare-party system phenomenon
mentioned above) [14]. The latest version of the Refah
party with mainly an Islamic agenda appeared in
1983. In the 1991 elections the party gained 62 out of
450 seats in Parliament and after the 1995 general
elections became the largest single block in the
parliament with 21.5% of the popular support (158
seats out of 450) [15]. In June 1996 Refah formed a
coalition government with the True Path Party
(centre-right oriented party) and came into power. In
May 1997 the case to dissolve the party was initiated,
the party was accused of becoming a centre of
activities contrary to the principles of secularism
because of its proposal to introduce plurality of legal
system (which allegedly would lead to the
discrimination on grounds of belief); intention to
introduce Islamic law (Sharia) as the ordinary law
and as the law applicable to the Muslim community;
reference by some Refah members to the concept of
jihad, a holy war to fight for the complete domination
of Islam in society. On January 1998 the party was
dissolved, its assets were transferred to the Treasury.
The Constitutional Court judgment sparked extensive
public debate and was highly criticized by domestic
and international politicians and scholars [16].
The Refah party case was very instructive for the
Turkish judiciary and political environment if we
look briefly at the recent development in this field.
The 2008 case of the AK Party (the Justice and
Development Party) was called by many
commentators, AK party leaders and foreign
politicians as a “victory for Turkish Democracy”
[17].The party was accused of violating the principle
of secularism. The party became a target of the
compulsory dissolution procedure due to its move to
lift the existing ban on wearing the headscarf
(however the move could be considered as a failure
so far as the Constitutional Court overruled the
relevant amendment in June 2008). Procedure to
outlaw the Justice and Development Party which is a
governing political party in Turkey since 2002 was
initiated in March of 2008. In July 2008 the
Constitutional Court of Turkey handed out the
judgment against AK Party dissolution[ 18 ]. While
someone can call the AK Party case a victory of
Turkish democracy the story is not as shining as
someone might see it from the first glance. The party
was not dissolved (the Court was one vote short of
the required qualified majority of seven judges) but
10 out of the 11 judges agreed that AK Party became
a focal point of anti-secularism activities. As a result
III.
BANNING POLITICAL PARTIES IN SPAIN: TEN
YEARS OF EXPERIENCE.
History of banning of political parties in Spain is
rather short. Article 6 of the 1978 Spanish
Constitution imposes obligations on political parties
to observe the Constitution and requires that internal
structure of political parties must be democratic [21].
Similar provisions were contained in the Law
regulating the activities of political parties adopted
almost at the same time as Constitution [22]. In other
words, the rights and privileges of political parties in
Spain were never unlimited.
The 1978 Law on Political Parties provided for
the possibility to dissolve a political party when its
activities fit into the definition of criminal association
provided in the criminal law, and when organizations
and activities of the party disregard democratic
principles. The procedure to outlaw a political party
under the 1978 Law was not applied at any time
between 1978 and 2002 [ 23 ]. However, these
provisions were not able to address the major
challenge to the Spanish democracy: the Batasuna
party and its alleged connections with the terrorist
organization ETA[ 24 ]. Existing then constitutional
model was ineffective arguably because it did not
have any preventive means to cease the activities of
undemocratic parties and the criminal law provisions
standing alone could not address the threat being
posed by political parties with dangerous political
agendas unless its members committed a crime. The
model of proscription for organizations (including
political party) through criminal law relies upon
individual guilt of its members; so it can be applied
only retroactively – after the criminal character of
party members activities are established in a separate
court procedure involving highest standards of proof
(the latter appeared to be too challenging for the
Spanish government to comply with). The situation
was meant to be changed with the enactment of the
new law which introduced possibility to ban allegedly
dangerous and undemocratic political parties without
need to wait for an occasion to apply criminal law
provisions.
The new Law on Political Parties (Ley Organcia
de Partidos Politicos) was passed in June 2002. The
most important novelties in the regime of regulating
political parties’ activities are to be found in Articles
6-9 of the Law [25]. Article 9 is of major interest for
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GSTF International Journal of Law and Social Sciences (JLSS) Vol.2 No.1, December 2012
law might be manipulated and easily applied to
suppress political dissent. However, broad, imprecise
and ambiguous language is unfortunate but not
unusual attribute of many counterterrorism laws these
days containing anti-terrorism provisions it might
pose particularly troubling implications for political
rights and freedoms.
Just a few weeks after the enactment of the new
law, the lower house of Spanish Parliament approved
the motion to require the government to bring action
against Batasuna for its violation of the new law. The
motion was prompted by Batasuna's refusal to
condemn ETA's attack on August 4, 2002, in Santa
Pola, in which a car bomb exploded and as a result
two bystanders were killed. In September the case
was brought to the special chamber of the Supreme
Court assigned with power to political parties under
the recently enacted statute. Most out of 23 charges
constituting the case were related to Batasuna’s
reaction to the ETA’s terrorist act of August 2002 in
Santa Pola; Batasuna was accused mainly of tacit
support of terrorism (due to the refusal to condemn
terrorist attacks). The Supreme Court declared
Batasuna illegal (unanimously) [ 31 ] and concluded
that its activities amounted to assisting and giving
political support to terrorist organizations with the
aim of subverting the constitutional order (Article
9.2(c) of the Law on Political Parties).
As a result, the 2002 Law not only brought
substantial changes into the existing constitutional
system by introducing new legal structure not
anticipated by the national Constitution; it also
proved to be ineffective in eliminating a targeted
group as political party Amaiur, a Basque political
coalition that represents the separatist trend of
terrorist group ETA [ 32 ], won the election in
November 2011 in the Basque region and at the
moment it occupies now seven seats in the Spanish
parliament [33]. However, current Prime Minister of
Spain Mariano Rajoy declared in no uncertain terms
his unwillingness to engage in any kind of dialogue
with this parliamentary group [34]. This development
inevitably provokes further questions on the
effectiveness of the procedure to ban political parties
introduced with the 2002 Law and how to deal with
political parties similar to Batasuna in the future.
the purpose of this article as it introduced the
procedure to declare a party illegal independently
from declaring it a criminal organisation. Article 9(2)
allows dissolving political party:
A political party shall be outlawed when its
activity violates the democratic principles, in
particular, when through its activity it seeks to
deteriorate or destroy the system of liberties, or
make impossible the democratic system, or eliminate
it, through any of the following conduct, if they are
realized in a reiterated and grave manner. Prohibited
activities of political parties: a) violating
fundamental rights by promoting, justifying, or
excusing attacks on the life or dignity of the person
or the exclusion or persecution of an individual by
reason of ideology, religion, beliefs, nationality,
race, sex, or sexual orientation; (b) encouraging or
enabling violence to be used as a means to achieve
political ends or as a means to undermine the
conditions that make political pluralism possible;
and c) assisting and giving political support to
terrorist organizations with the aim of subverting the
26
constitutional order [ ].
Further, Article 9(3) defines the types of behavior
which might provoke the procedure to dissolve a
political party [27].
The 2002 Law on Political Parties could be
criticized on many accounts. The first problematic
aspect is that law was adopted with the intention to
outlaw a particular political group: the Batasuna party
[28]. The second critical remark in relation to this law
refers to the fact that the statute is unnecessary wide
in the scope and imprecise in definition. Some of the
conduct prohibited by law appears not to be
controversial, and it is reasonable and legitimate to
prohibit some behavior listed in the law [ 29 ].
However, some of the acts prohibited to be
committed by political parties are not that
uncontroversial. One of them is the prohibition to
promote, justify or excuse attacks on the life or
dignity of the persons, or the exclusion or persecution
of an individual by reason of ideology, religion,
beliefs, nationality, race, sex, or sexual orientation.
This provision legitimately led some commentators to
conclude that a political party advocating for criminal
law sanctions to prosecute homosexual behavior
(which might happen in the event of a political
movement supporting and/or inspired by conservative
religious views) could be outlawed under the new law
[ 30 ]. Not least controversial are provisions on the
prohibition of ‘tacit support to terrorism’ and
‘legitimizing violence as a method to achieve
political ends’ without specifying any geographical
limitation and ends to be achieved through violence
(what about support expressed for a foreign political
movement fighting against a dictatorial regime?).
The broad language of the Law in question did not
make it looking more effective and legitimate and, in
fact, it might capture much more than only
prohibition of Batasuna and similar parties. The law
might pose a significant threat for the activities of
political parties in the future if the statute is to be
taken seriously. In certain political environments the
IV. CONCLUDING REMARKS: PROHIBITION OF
POLITICAL PARTIES: AN EFFECTIVE TOOL TO
PROTECT DEMOCRACY?
It was not articulated above but it is nevertheless
obvious that the procedure to outlaw political parties
is highly contested and somehow dangerous legal
structure. First, it might appear as self-contradiction
as it limits some political rights and freedoms in order
to secure their existence. Further, application of the
measures is nevertheless a highly politicized matter
as certain political parties might become a victim of
political games and intrigue played by more powerful
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GSTF International Journal of Law and Social Sciences (JLSS) Vol.2 No.1, December 2012
governing party had to tailor their Islamic agenda to
the Constitutional Court case-law on prohibition of
political parties and cut down its ambitions. In case of
Spain, Basque nationalists learnt their lesson from the
Batasuna Party prohibition case and realized that
complete turn away from the violence is the only way
to be allowed to fight for their political interests and
ideas. As was mentioned above, many European
democracies included party prohibition provisions
into their constitution to feel more confident during
the years of transition to make potential enemies of
democracy aware of the possibility to be banned from
the political arena.
Overall, procedure to dissolve political party is
controversial, complex and uneasy measure to
implement. But at the same time it still is capable to
assist in sustaining democracies and in the absence of
a better option it deserves a place in the constitutional
practice. It clearly helps to discipline political parties,
motivate them to comply with the rules of the game
and filter the ones which are potentially dangerous for
democracy. Having said this, it is important to keep
in mind that prohibition of political parties should be
a rather exceptional measure and strong judicial
control is required to prevent any possibility to abuse
this procedure for political purposes.
political players. It is also uneasy to define the right
momentum to ban a party and define when it actually
becomes dangerous and can harm democracy.
Political parties occupy a very special place in any
political system based on free marketplace of ideas
and decision to ban any of them from the political
arena is never easy and cannot completely avoid
criticism. Needless to say, the procedure to dissolve
political parties might become a powerful weapon to
suppress the political opposition especially if it
advocates unpopular and/or extreme views.
However, history of the last century proved that
democracy cannot afford to remain tolerant and
inactive in relation to its potential enemies. It should
be cautious and ready to take measures once its
existence and well-being is under the threat. The
events of the 20th century also demonstrate that some
disasters could have been avoided where stricter
control over political parties was in place.
What can liberal democracies learn from the casestudy of two jurisdictions on prohibition of political
parties? First of all, it is clear that this legal structure
is extremely context sensitive and it is very hard to
achieve generalized conclusions about root-cause of
such measures and fears they aim to address. Second,
in both cases it is evident that two democratic nations
with quite distinct social, legal, cultural and social
background did not find it easy to employ the concept
of self-protective democracy via banning political
parties. Further, at the first glance it might appear that
dissolution(s) of political parties in Spain and Turkey
harmed democracy more than protected it. This
conclusion, however, should not be made in a rush. In
case of Turkey, political parties with certain agenda
had to function under the normalized threat of being
banned and had to develop a spare-party system to
ensure the continuity of the representation of certain
ideas in political sphere. Moreover, the procedure lost
its exceptional character and the Constitutional Court
started to deal with those cases in an ordinary matter.
At the end, current ruling party has very similar
agenda as the banned some years ago Refah party.
So, someone might conclude that the legislation on
prohibition of political parties and its application did
not achieve anything as the same people and the same
ideas are governing the state. In case of Spain, we can
observe that procedure to ban parties amended the
existing constitutional order and it could have been
done in a better way. The 2002 Law is far from being
a desired piece of legislation and supporters of the
same party are back to the politics. This is all true;
however it does not necessarily mean that the
procedure as such to ban political parties is poisonous
for democracy.
In both cases and in many other jurisdictions
which cannot be covered here due to the lack of
space, legal structure to ban political parties is
equipped with a very important mission of sending a
message to warn political players that they must
observe the rules of the game. In Turkey, the
REFERENCES
1
Karl Loewenstein, Militant Democracy and Fundamental Rights
I, II, 31 American Political Science Review 417-432, 638-658
(1937).
2
Article 21 of the 1949 German Basic Law: (1) Political parties
shall participate in the formation of the political will of the people.
They may be freely established. Their internal organization must
conform to democratic principles. They must publicly account for
their assets and for the sources and use of their funds. (2) Parties
that, by reason of their aims or the behaviour of their adherents,
seek to undermine or abolish the free democratic basic order or to
endanger the existence of the Federal Republic of Germany shall
be unconstitutional. The Federal Constitutional Court shall rule on
the question of unconstitutionality.
3
The European Commission for Democracy through Law, better
known as the Venice Commission, is the Council of Europe's
advisory body on constitutional matters. Established in 1990, the
commission has played a leading role in the adoption of
constitutions that conform to the standards of Europe's
constitutional
heritage.
For
details
see
http://www.venice.coe.int/site/main/Presentation_E.asp.
4
European Commission for Democracy through Law (Venice
Commission). Guidelines on prohibition of political parties and
analogous measures. Adopted by the Venice Commission at its
41st Plenary session (Venice, 10-11 December, 1999). Available
online
at
http://www.venice.coe.int/docs/2000/CDLINF%282000%29001-e.asp.
5
Ibid.
6
Ibid.
7
Jiri Priban & Wojciech Sadurski, The Role of Political Rights in
the Democratization of Central and Eastern Europe in Wojciech
Sadurski, Political Under Stress in the 21st Century Europe
(2006), p. 228.
8
Ibid
9
Ozbudun Ergun, Party prohibition cases: different approach by
the Turkish Constitutional Court and the European Court of
Human Rights, 17 Democratisation 1 (2010), p.126
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GSTF International Journal of Law and Social Sciences (JLSS) Vol.2 No.1, December 2012
10
32
Carlos Alberto Montaner, No Reason to Negotiate with Spain’s
Separatist ETA, The Miami Herald (Nov.28, 2011),
http://www.miamiherald.com/2011/11/28/v-print/2522285/noreason-to-negotiate-with-spains.html.
33
Election Resources on the Internet: Elections to the Spanish
Congress
of
Deputies
Results
Lookup,
http://electionresources.org/es/congress.php?election=2011
34
[29]
Ibid., at 126.
Socialist Party of Turkey.
12
Freedom of Democracy Party (OZDEP).
13
Dicle Kogacioglu, Progress, Unity, and Democracy: Dissolving
Political Parties in Turkey, 38 Law and Society Review 3 (2004),
p. 435.
14
For more details on the Refah Party history see Mehran
Kamrava, Pseudo-Democratic Politics and Populist Possibilities:
The Rise and Demise of Turkey's Refah Party, 25 British Journal
of Middle Eastern Studies 25(2) (1998), p.286.
15
December 1995 elections result: Refah Part 21.5%, Motherland
Party 19.5%, True Path Party 19%, Democratic Left Party 14.5%,
Republican People’s Party 11%, smaller parties gained 14.5% of
the votes together.
16
See for example: David Schilling, European Islamaphobia and
Turkey - Refah Partisi (The Welfare Party) v. Turkey, 26 Loyola of
Los Angeles International & Comparative Law Review (2004).
17
See for example’ Turkey's ruling party escapes ban’. Story from
BBC NEWS: http://news.bbc.co.uk/2/hi/7533414.stm. Published:
2008/07/30.
18
Decision of the Constitutional Court of Turkey 30.07.2008,
E.2008/1
(SPK),
K.2008/2.
Summary
available
at
http://www.anayasa.gov.tr/index.php?l=content&lang=en&id=137.
Main argument to initiate the procedure to ban a party was the
initiative of Constitutional amendment aimed at the abolition of
headscarf ban at the universities. See for example, Sinan Ikinci,
Turkey’s Chief Prosecutor Seeks to Ban the Ruling AK, available
online
at
http://www.wsws.org/articles/2008/apr2008/turka02.shtml.
19
Ozbudun Ergun, Party prohibition cases: different approach by
the Turkish Constitutional Court and the European Court of
Human Rights, 17 Democratisation 1 (2010), p. 137.
20
Id.
21
Article 6: “Political parties express democratic pluralism, assist
in the formulation and manifestation of the popular will, and are a
basic instrument for political participation. Their creation and the
exercise of their activity are free within the observance of the
Constitution and the laws. Their internal structure and operation
must be democratic”.
22
Law on Political Parties (1978) (Ley 54/1978 de Partidos
Politicos).
23
See Miguel Revenga Sanchez, The Move Towards (And the
Struggle For) Militant Democracy in Spain (2003), Paper delivered
at the ECPR Conference, Marburg, 18-21, September 2003, also
available
at
http://www.essex.ac.uk/ecpr/events/generalconference/marburg/pa
pers/10/7/Sanchez.pdf; p. 8.
24
Leslie Turano, Spain: Banning a Political Parties as a Response
to Basque Terrorism, 1 International Journal of Constitutional Law
4 (2003), p. 732.
25
For detailed description of the new law see Id, p. 730-740.
26
Id., p. 733.
27
For list of proscribed behaviour see Id., p. 733-734.
28
Anna Oehmichen, Terrorism and Anti-Terror Legislation: The
Terrorised Legislator?, School of Human Rights Research Series
No.34 128 (2009)., p. 216
29
For example the prohibition of the following activities should be
contested: including regularly in its directing bodies and on its
electoral lists persons who have been convicted of terrorist crimes
and who have not publicly renounced terrorist methods and aims,
or maintaining among its membership a significant number of
those who belong to groups with links to terrorist organisations;
conceding to terrorist organisation the rights and prerogatives
given by law to political parties; giving institutional support to any
group that act systematically in accordance with terrorist or violent
organisations or that protect and support terrorism and terrorists
(Article 9.3).
30
Victor Ferreres Comella, The New Regulation of Political
Parties in Spain, in A. Sajo, (Ed.), Militant Democracy (2004), p.
142.
31
Decision of the Sala Especial of the Spanish Supreme Court,
STC 27/ 2003.
11
Dr. Svetlana Tyulkina is a Postdoctoral Research Fellow on the
Australian Research Council Laureate Fellowship: Anti-Terror
Laws and the Democratic Challenge Project in the Gilbert + Tobin
Centre of Public Law, University of New South Wales
Prior to joining the UNSW Faculty of Law Svetlana Tyulkina
was a PhD student at the Central European University, where she
has completed the doctoral thesis entitled "Militant Democracy".
Svetlana’s areas of expertise and research interest are Comparative
Constitutional Law, Ant-terrorism Legislation, Public International
Law and International Human Rights, Political Participation
Rights. Currently, Svetlana researches on various constitutional
aspects of counterterrorism policies.
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