The Court agrees not to include the Romanian Communist Party in the list of political parties. Non-violation of its freedom of association

JUDGMENT

Ignatencud and Romanian Communist Party (PCR) v. Romania 05.05.2020 (appl. no. 78635/13)

see here 

SUMMARY

Freedom of association. Refusal to register on the list of political parties, a party claiming to be a successor to the communist party that ruled Romania during the totalitarian regime and disbanded in 1989 after the overthrow of power in December 1989.

A political union called Partidul Comunist Român (Communist Party of Romania “PCR”) and its President appealed before the ECtHR. The national courts rejected the union’s request to register the list of political parties, on the one hand because the old PCR had not been active since December 1989, when the Republic was restored in Romania, and had not been legally registered in the list of political parties after that date. , and on the other hand because the program and statute of the applicant party were contrary to the constitutional and legal order of the country, and in particular to the fundamental principles of democracy.

The Court ruled that the reasons for rejecting the registration of the above party were “relevant and sufficient” and “proportionate to the intended legitimate aim”. Violation of the right to freedom of association (Article 11 of the ECHR).

PROVISION

Article 11

PRINCIPAL FACTS

The applicants are Mr Petre Ignatencu, a Romanian national who was born in 1955 and lives in
Bucharest, and a political group with the name Partidul Comunist Român (Romanian Communist
Party – “the PCR”), of which Mr Ignatencu is the Chairman. The applicants alleged that the rejection
by the courts of their application to register the political group as a political party had infringed their
right to freedom of association under Article 11 of the Convention.

At a congress held in May 1921 the Romanian Communist Party (PCR) was formed after the far-left
wing of the Romanian Social Democratic Party split from the main party. From 1947 to 1989 the PCR
was the only official political party active in Romania. The totalitarian regime established by the PCR
was overthrown following the violent clashes of December 1989. On 27 December 1989 a legislative
decree on the formation of the Council of the National Salvation Front was passed, providing for all
the structures created by the totalitarian regime to be dissolved. A further legislative decree was
enacted on 18 January 1990, transferring all the PCR’s assets into State ownership.

On 27 March 2010 a committee to reorganise the Romanian Communist Party was set up. Mr Ignatencu was elected as its Chair.

In July-August 2010 Mr Ignatencu, in his capacity as Chair of the committee, published an article in a
journal under the heading “The PCR – a party for history and a party for the future”. He stated that,
after December 1989, several political groups had tried unsuccessfully to form a communist party
and that the only group that had succeeded was the Partidul Comunistilor (Nepeceristi) (Party of
communists who have not been members of the Romanian Communist Party – “the PCN”), following
the judgment of the European Court of Human Rights of 3 February 2005.

On 16 October 2012 the applicants and five other founding members of the party, including C.C.,
applied to the Bucharest County Court seeking to have the PCR registered on the list of political
parties. The County Court rejected the application as unfounded. The court held that it was clear
from Articles 6 and 9 of the applicant party’s constitution that the persons concerned sought to
achieve a socialist-type society and were proposing the same doctrine and ideologies that had
formed the basis for the traumatic totalitarian regime that had governed the country for around half
a century. The applicants appealed against this judgment to the Bucharest Court of Appeal. In a final
judgment of 16 July 2013 the Court of Appeal dismissed the appeal as unfounded.

On 25 August 2013 the members of the party and the committee held a general assembly at which
Mr Ignatencu was re-elected as Chair of the committee. Following a majority vote he was tasked
with making the present application to the Court.

On an unspecified date a committee “for the organisation and registration of the Romanian
Communist Party”, chaired by C.C., was set up as a separate body from the committee chaired by
Mr Ignatencu. The new committee drew up its own constitution with a view to registering a new
political group under the name of the “Romanian Communist Party”. C.C. and other individuals
applied to the national courts to have the new group registered. C.C. argued that it was a new
political group which was not intended as the successor to the former PCR and did not pursue the
same policies. During the appeal proceedings, C.C. requested the registration of the new party under
the name “Romanian Communist Party – 21st Century”, with a new emblem. In a final judgment of
27 June 2016 the Court of Appeal, noting that the constitution and programme that had been
submitted were compatible with the relevant domestic and European law, ordered that the
Romanian Communist Party – 21st Century be registered on the list of political parties.

Relying in particular on Article 11 (freedom of assembly and association) of the Convention, the
applicants alleged that the domestic courts’ refusal to grant their application for the political group
the “Romanian Communist Party” to be registered on the list of political parties had infringed their
right to freedom of association.

THE DECISION OF THE COURT…

The refusal to register the second applicant as a political party is tantamount to interfering with the applicant’s right to freedom of association, as provided for by law, and to protect national security and the protection of the rights and freedoms of others.

The Court of First Instance and the Court of Appeal justified the rejection of the request of the applicants with two types of arguments.

i) As to the formal reasons given for justifying the refusal to register

The national law specifically provided for two cases of a political party being included in the list of political parties: the formation of a new political party or the reorganization of a political party that had been legally established in the past. However, the applicants’ request to form a party that had previously been politically active did not fall within the scope of these cases, as the old PCR had not been active since December 1989 and had not been legally registered in the list of political parties after that date. .

It is not unreasonable for a state to make the formation of a political party dependent on the mediation of a particular series of stages that are not excessive. The formalities required may vary depending on the historical and political factors concerning each country and the states have a certain discretion in this regard. In the present case, it is not unreasonable, especially under the historical context of the case, that Romanian law does not allow the reorganization of political parties that have never been legally active in a democratic regime, such as the PCR since December 1989, the date of its establishment. democratic regime.

In addition, it is not unreasonable for the applicant himself to be required to provide a responsible statement from the person who compiled the list of signatures on his application. In this case, the legal requirements with which the applicants did not comply were neutral in terms of their content and did not specifically target the applicant. Therefore, this argument was not intended to punish the applicant because of the views or policies he defended.

Finally, the applicants could satisfy the condition related to the submission of the responsible statement, by submitting a new statement, which did not constitute an excessive obstacle.

Consequently, the formal reasons given by the Court of Appeal against the registration of the second applicant are “relevant and sufficient” and “proportionate to the intended legitimate aim”.

ii) With regard to the reasons related to the content of the articles of association and the political program

The fact that a political plan is considered incompatible with current state principles and structures does not in itself make it contrary to democratic rules. And it cannot be ruled out that a party’s political agenda hides different goals and intentions from those it displays in public. For reasons of certainty, the content of this program should be compared with the actions and positions of the members and leaders of that party.

The party’s constitution and political program insist on respecting the country’s territorial integrity and the country’s legal and constitutional order, as well as the principles of democracy, including political pluralism, and explicitly state the party’s opposition to totalitarianism and totalitarianism. all types of discrimination. These documents also do not contain any excerpts that could be seen as a challenge to violence, insurrection or any other form of rejection of democratic principles, and which can be seen as a call for a “dictatorship of the proletariat.”

The experience of totalitarian communism in Romania until 1989 alone cannot justify the need for intervention, even more so because communist parties with a Marxist ideology exist in many of the countries that have signed the Convention, including Romania. Therefore, the right of applicants to form a communist political party is not unconstitutional, especially since those interested could reshape the drafting documents with a new Statute and declare that they only wanted to continue the positive principles of the old PCR. However, the plaintiffs did not simply seek the creation of a communist party.

The internal authorities justified the rejection of the party’s registration with the reference contained in the statute, according to which the applicant party “undertook the continuation of the theoretical and practical ideology of the socialist and communist workers’ movement in Romania”, after evaluating the proposed to achieve the party’s goal, namely the creation of a socialist society based mainly on the socialist ownership of the means of production, in the light of the applicants’ statements that the latter was intended to be the successor to the old PCR.

The Court of Appeal fully explained to the applicants the reasons which led it to conclude that their application did not meet the conditions laid down by law and the Constitution and, in addition, proved that the program and statute of the applicant party were unconstitutional and legal and in particular to the fundamental principles of democracy.

In this very special context, also taking into account the scope of the assessment of the states, the analysis of the national courts regarding the statutes and the political program presented by the applicants is not unfounded. The reason for the refusal to register the specific political party is due to the purpose of preventing a political party from seriously abusing its position for a long time, by creating a totalitarian regime, to abusing its rights in the future and, therefore, avoiding attacks on the security of the state or the foundations of a democratic society. Therefore, the purpose of the refusal to register was to deal with a particularly serious, albeit hypothetical, abuse that would consist of deviating from the principles of the rule of law and the foundations of democracy.

Consequently, the reasons attached to the content of the founding texts of the second applicant cited by the national courts are “relevant and sufficient” and “proportionate to the intended legitimate aim”.

No violation of Article 11


ECHRCaseLaw

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