Tanja Venisnik, a lawyer assisting MRG’s Legal Cases team, delves more deeply into the background, and possible consequences, of a recent judgment by Europe’s highest court.
Taking a position on banning extremist political parties and groups that incite hatred, advocate violence and/or engage in hate crimes is no straightforward task. The recent rise in political extremism across the world, but particularly in Europe, has put a question mark over the concept of unfettered freedom of association.
Extremist political parties and other groups have been resorting not only to hate speech but also to violence and hate crimes. Even mainstream political parties tend to rely on racist discourse in order to avoid losing votes to the extreme right. These dehumanising statements and violent attacks mostly target minority communities, and if unaddressed, may result in persecution of minorities on a larger scale. However, simply banning political parties, even the most extremist ones, can encroach on other basic rights and freedoms, such as the freedom of expression, freedom of assembly and, in some cases, freedom of religion.
The guidelines and recommendations of various regional and international bodies monitoring human rights, including the Council of Europe’s Venice Commission, have always erred on the side of caution in this respect, stating that prohibition or dissolution of political parties should only be envisaged in extreme cases. The ban as a measure of last resort must be necessary in a democratic society and there must be evidence that a party is engaged in activities threatening democracy and fundamental freedoms. Furthermore, any restrictive measures taken against a political party on the basis of the behaviour of its members should be supported by concrete evidence that he or she acted with the support of the party in question or that such behaviour was the result of the party’s programme or political aims.
Last week, the European Court of Human Rights (ECtHR) delivered a long-awaited judgement in the case of Vona v. Hungary, in which it dealt with the issue of banning an association and a movement, rather than a political party. The ECtHR held that Hungary had not violated the freedom of association by banning the Hungarian Guard Association and the Hungarian Guard Movement.
The former was founded in 2007 by the right-wing political party Jobbik. Later that same year, the Hungarian Guard Association created the Hungarian Guard Movement, whose president was Jobbik’s leader Gábor Vona. The Movement defined its mission as “defending a physically, spiritually and intellectually defenceless Hungary” against “Gypsy crime”. The members of the Movement conducted marches in Roma neighbourhoods, intimidating the inhabitants with racist chants and military attire, reminiscent of Nazi uniforms.
According to the ECtHR, Hungary was entitled to take preventive measures to protect democracy against associations if a sufficiently imminent prejudice to the rights of others undermined the fundamental values upon which a democratic society rested and functioned. The ECtHR further held that paramilitary marches organised by the Movement had gone beyond the mere expression of a disturbing or offensive idea, which is protected under the Convention, given the physical presence of a threatening group of organised activists. Therefore, the only way to effectively eliminate the threat posed by the Hungarian Guard Movement was to remove the organisational backup provided by the Hungarian Guard Association.
Important points, stemming from the ECtHR’s decision are that states do not have to wait until a political movement resorts to violence before intervening, and that while spreading anti-democratic ideas is not enough in itself for banning an association, the Movement’s coordinated and planned actions together with its actual influence on political life in Hungary constituted sufficient and relevant reasons for such a measure. The ECTHR relied on the notion of intimidated “captive audience,” as the people living in the communities targeted by the Movement could not escape the extreme and exclusionary views held against them.
However, after being banned, the Hungarian Guard simply reorganised under a different name without applying for formal registration. The New Hungarian Guard continues the work of the banned movement, still spreading hostile propaganda and intimidation campaigns against the Roma.
This only goes to show that banning similar movements might prove to be fruitless or, in some cases, even counter-productive, as there might be a risk of further radicalisation and an increase in violence. Nevertheless, states have a positive obligation to act against dissemination of racism and intolerance, whereas democratic institutions should send strong messages that inciting racial hatred and engaging in violence against minorities is simply not acceptable in a democratic society.
In his concurring opinion to the Vona decision, judge Pinto de Albuquerque noted that, according to international treaties, states have positive obligations to dissolve every group, organisation, association or party that promotes racism or ethnic intolerance. He further asserted that this obligation must be acknowledged as customary international law, binding on all states. This position is problematic, however, because there is no evidence of uniform state practice regarding the issue of banning political parties, let alone other associations or movements. In this respect, legal approaches vary considerably from one state to another, meaning that it is still too early to talk about the emergence of a customary norm.
Finally, it should be kept in mind that limitations and prohibitions of political activities are often used by states to restrict minorities from promoting their culture and identity or from expressing critical views on a vast array of issues. Therefore, the issue should always be examined in light of the question whether the restrictions could actually be used against those they are meaning to protect in the first place, and whether in the future they could pose a danger to minority rights in general.