From phobic to militant democracy, constitutionally
Modern liberal democracy can easily become phobic, but is hesitant to act as a militant democracy. It is anxious and fearful about election results in several Western countries – e.g. the recent congressional midterm elections – where the choices of the electorate may call into question the very values of liberal democracy. On the other hand, as a militant democracy, it must respect constitutional legitimacy and democratic pluralism.
Engels recalls the notorious phrase uttered in 1849 by Odilon Barrot, head of the council of ministers under President Louis-Napoleon Bonaparte, when addressing the French National Assembly: “La legalite nous tue.” Legality kills us. Transposing this phrase to the present context, we can say that it raises the question of the difficult balance between democratic fear and constitutional defense.
After the adoption of the first instance decision of the Athens Court of Appeal on the Golden Dawn organization, the issue of its participation or that of a successor organization with connections to Golden Dawn's members, political views and practices in the next parliamentary elections was raised.
At individual level
At the individual level under Article 51(3)(b) of the Greek Constitution, “The law cannot abridge the right to vote except in cases where a minimum age has not been attained or in cases of legal incapacity or as a result of irrevocable criminal conviction for certain felonies.” The current Penal Code no longer provides for the ancillary penalty of deprivation of civil rights. It provides for the ancillary penalty of deprivation of positions and offices. Besides, the previous Criminal Code also provided that the ancillary penalty of deprivation of civil rights is activated only when the decision becomes irrevocable, as this is explicitly provided for in the Constitution. The fact that the ancillary penalty of deprivation of political rights has been abolished does not deprive the legislator of the option to provide for restrictions in the electoral law – the constitutional prohibition of retroactivity of a criminal law does not apply in this case – of the right to vote for certain categories of persons convicted of serious crimes of contempt towards democracy and for a period of time determined in accordance with the principle of proportionality. Anyone who does not have active and unlimited voting rights does not have the right to be elected according to Article 55 of the Constitution, and therefore cannot be elected as a member of Parliament, or if this reason arises, he or she is disqualified from being a member of Parliament by decision of the Special Supreme Court.
At the collective level
At the collective level, democracy must be liberally militant, self-protecting and strictly respectful of the guarantees of the rule of law. The Hellenic Republic must not let the enemies of its values use the institutional guarantees it provides.
Could the experience of Golden Dawn let the issue of banning a political party resurface, something that is not provided for in the Greek Constitution in Article 29 – in fact something that was rejected, although it was proposed, in the post-dictatorship constituent Parliament of 197475? Can we interpret the Constitution in such a way as to lead to a legislative ban on political parties? I am not in favor of this, not because of an “originalist” interpretation that seeks the initial intent of the constitutional legislature and the elements of subjective historical interpretation, but because, if the Constitution offered this possibility, it would have to provide for the relevant judicial procedure. To be more precise, it would have to provide for the relevant jurisdiction – and that is not the case.
On the other hand, can a criminal organization, which commits or merely prepares acts which have serious penal consequence, be formed and – potentially – operate under the shell of a political party according to Article 29 of the Constitution? Obviously not.
The absence of a party-banning mechanism, which exists in other countries, such as Germany or Turkey, does not mean that it is constitutionally prohibited to take electoral exclusion measures against organizations that appear in the form of a political party and seek to move from the realm of civil society to the institutional processes of representative parliamentary democracy.
Therefore, the electoral law offers the discretion to prohibit the improper disguise of a potential criminal organization as a political party seeking to participate in the electoral process. This is different from banning or, much more so, disbanding a political party. It concerns the legislative provision of minimum base requirements for the participation of a collective entity in elections. These base requirements are judicially verifiable by analogy to those provided for associations, when the civil courts and, at the highest level, the Areios Pagos supreme civil and criminal court, traditionally exercise powers of electoral law relating to the declaration of candidates and, ultimately, electoral lists. The relevant judicial decision, specifically and thoroughly justified, may be formulated by means of rapid and simple procedures, using any appropriate means of proof and, more generally, any evidence produced by anyone with a legitimate interest, including any voter, or taken into account ex officio, but in the context of a fair trial which guarantees the right to be heard to the concerned parties. The judicial diagnosis must take into account which persons exercise actual leadership and the modus operandi they use. The judgment of the Areios Pagos supreme court is not penal, it does not establish the commission of the crimes of Articles 187 and 187 A of the Criminal Code (formation of a criminal organization) or other related penal provisions and no penal sanction is imposed. It is an independent judgment in the field of electoral law, with legal consequences in the same field alone.
The European Court of Human Rights' rich case-law on political parties, based on the single provision of Article 11, ECHR on associations or related entities and parties, offers a margin of appreciation to member-states. A political party's program is not the only criterion for determining its aims and intentions. The actions of the members of the (real) leadership and the views they support are crucial. The non-respect of the rights protected by the ECHR is an appropriate criterion for the formulation of a national court's – negative towards this party – judgment.
This approach does not affect the electoral rights of persons who have not been irrevocably convicted, but only at first instance. It therefore respects the express provision of Article 51 (3)(b) of the Greek Constitution. It also respects the presumption of innocence which is rebutted when a first instance or even more so an appeal judgment is executed, but is active before criminal courts until an irrevocable sentence is imposed. It also respects the ne bis in idem principle, as the restriction of the participation of a party in the elections is an independent judicial judgment with broader criteria relating to the free functioning of the democratic regime, and not a second penal or administrative (and even quasi-penal) sanction against a specific person, for specific acts for which they were convicted in the first instance by a criminal court and for which they are being tried on appeal.
The broad consensus of political forces and the scientific community, and ultimately the application of the relevant provisions of the electoral legislation by a supreme court, are evidence of the legitimacy of an interpretative approach that does not replace the Constitution, but transforms its general and abstract provisions into a specific normative response to specific practical questions. These questions are answered first by legislators and at the end by judges. They can all take scientific discourse into account as much or as little as they desire, but they must operate with the caution, sensitivity and balance required by the respect for constitutional legitimacy, which does not lead a phobic democracy to paralysis and a militant democracy to arbitrariness.
The current Penal Code no longer provides for the ancillary penalty of deprivation of civil rights. It provides for the ancillary penalty of deprivation of positions and offices
The electoral law offers the discretion to prohibit the improper disguise of a potential criminal organization as a political party seeking to participate in the electoral process