Arguments for the elimination of the representativeness threshold from the legislation on political parties in Romania
Goals and methods
In terms of legal-normative point or view, political parties can be analysed at least from a dual perspective: as a condition and guarantee of the democratic principle itself1 and as the content of one of the fundamental human rights, namely freedom of association. Our analysis has been carried out exclusively from the perspective of the right to free association.
Firstly, freedom of association in political parties is limited by the Romanian Parliament, through the conditions governing the activities of political parties2.
Secondly, each of the conditions imposed by the Law on various aspects pertaining to political parties represents a clear restriction both of the assembly of the conditions and of each of the components of the assembly. In other words, every condition, regardless of its nature, of the intensity of interference with the right to freedom of association, can and should pass the test, substantive and procedural, provided by article 53 of the Constitution3.
Our goal in this study is to show that some of the restrictions on the exercise of the fundamental right to freedom of association do not comply with the essential principle that we formulate in the following terms – the interference in the exercise of the right must be as low as possible4.
The method to achieve this goal is, in the first stage, the analysis of the relevant case law of the CCR and in the second stage, presenting counter-arguments to the arguments raised by the CCR judges.
Notes on the history of adoption of the Law
The Law was initiated in February 2002 by eight senators and deputies of the National Liberal Party. The Law was passed by the Parliament in December of the same year, after ten months of analysis and debate, and it was published in the Official Gazette in January 2003.
The initial form of the legislative proposal made tougher the regime of registration of political parties, including the collection of 30.000 signatures from the supporters of a political party, “residing in at least 21 counties and in Bucharest municipality, but not less than 900 people for each of these counties and Bucharest Municipality.” (article 21 paragraph 3)5. Apparently, the form adopted by the Parliament reduce the number of signatures required and facilitate the process of establishing a political party, asking only for “25.000 founding members residing in at least 18 counties and in Bucharest municipality, but not less than 700 people for each of these counties and Bucharest municipality.” (article 19, paragraph 3).
The initial form foresaw supporters, while the promulgated form foresees founding members, resulting in a change of nature of the process of registration of a political party, becoming even more difficult.
In terms of conditions of dissolution of a political party, the originally proposed form provided for the dissolution of a political party if it didn’t organize a Congress for five years and “does not designate candidates, alone or in alliance, in two successive parliamentary campaigns, in at least 21 of the constituencies.” (article 36). The form adopted slightly relaxed the conditions of dissolution, thereby reducing to 18 the number of constituencies in which candidatures must be submitted.” (article 47 paragraph 1, point b).
Also, the Law ignored and excluded the possibility of territorial representation. Basically, by analysing the provisions of the Law, we can see that the legislator wished to obtain a homogeneous community of citizens, without differences of interests, needs or desires. The establishment of regional and territorial parties is discouraged, representation being strictly at national level.
On the other hand, the Commission recommends that, although they must take into account the remarks related to national and state unity, Council of Europe Member States should not impose regulations that are not necessary in a democratic society having as their object the establishment of regional/local parties and organizations6.
The Jurisprudence of the Constitutional Court of Romania in the matter of political parties
In Decision no. 35/1996, CCR has resolved the objection of unconstitutionality of some provisions of the law on political parties no. 27/19967. Among others, the unconstitutionality objection concerned article 17 point b) of this law, which stipulated as a condition of representativeness for the registration of a political party that the proposal had to be supported by at least 10.000 founding members, residing in 15 counties, but not less than 300 in each county. CCR rejected this objection with the following argument:
„The assessment of appropriateness of a certain representativeness threshold, however, is not a constitutional issue, as long as the threshold set does not cause the suppression of the exercise of rights, aiming only, as in the present law, that the association of citizens in parties have the meaning of institutionalization of a political current, without which the party resulted can not fulfil its constitutional role …”
CCR made a distinction between the threshold of representativeness and the electoral threshold considering that, in an attempt to control the phenomenon of devaluation of the parties, the option for one or the other of the two thresholds is also a matter of opportunity rather than constitutionality.
In the Decision no. 147/1998, CCR retained the solution given by the Decision of 1996 previously cited, considering that there wasn’t any new information to justify changing the orientation of the case-law. A tinge still appears by invoking explicitly the principle of proportionality..8
Additionally, CCR approached as well the comparative law:
” … in the Law on political parties in Germany it is not provided the need for a minimum number of members; but equally true is the fact that the definition given to a political party by article 2 of this act reveals the idea that such an association of citizens is characterized, inter alia, by the scope and robustness of their organization, the number of members and the veracity of their public position, offering a sufficient guarantee in terms of seriousness of purposes.” Moreover, also in the law of other countries (e.g., Canada, Norway, Portugal), there is a restriction of the right of association in political parties as to the minimum number of members”.
In Decision no. 433/2006, CCR raised the question of unconstitutionality of article 19 paragraph (3) of the Law. The exception of unconstitutionality was raised before the Bucharest Court of Appeal, which considered that the exception of unconstitutionality raised was unfounded.
Both the common law court and CCR retained the solution whereby the legal provision attacked is constitutional. An observation of the Bucharest Court of Appeal deserves, however, being mentioned, considering that it represents an argument in addition to the ones previously mentioned, in favour of maintaining the representativeness threshold: “once they get to the power (political parties–our note), they are distinguished from all other organizations operating in the political field”.
In Decision no. 71/2005, CCR has stated that “The purpose of these legal provisions (article 19, paragraph (3) and (4)9 – n. n.) is the confirmation, in each pre-electoral year, of fulfilling one of the mandatory requirements relating to the establishment of a political party, namely the existence of the minimum number of founding members and their territorial dispersion”.
In the Decision no. 793/2008, CCR rejected an exception of unconstitutionality regarding article 46, paragraph (2) and 48 of the Law10. In this Decision, the threshold of representativeness was understood not only as a condition relating to the establishment (party registration), but also as a condition for continuing the existence of the party.
Normative embodiment and limitation of the right to freedom of association
It can be assumed that an appropriate characterization of the phrase “constitutional democracy”11 is to point out that the fundamental law (and constitutionalism) represents a limitation of the principle of democracy. From this perspective, the fundamental human rights, regulated practically by any constitution in the world, represent the most significant and substantial limitation of the principle of democracy12, more specifically, of the legislative power13. The Parliament, although the supreme representative body of the Romanian people, cannot regulate any field in any conditions. The Constitution, by removing from the area of the legislative power certain matters which, for this reason, we call fundamental and the people itself, by exercising its prerogative to choose its representative supreme body members, represents the legislative power limits.
Therefore, it can be said that one of the units of measurement of the intensity of the limitations brought about by the Constitution to the legislative power is exactly the extent of what ad hoc we call it content of fundamental rights. And the content of fundamental rights is intrinsically related to the drawing up and regulatory technique of constitutional texts. This technique consists in distinguishing between what we call rule, namely that the right is protected and guaranteed by the Constitution against the legislature’s action and what we call exception, that field of law that the legislature, for one reason or another, authorized by the Constitution, may limit.
At the level of drawing up the constitutional text, this principle is reflected by the fact that the first division of the article is dedicated to the determination of the rule, and the subsequent division is dedicated to establishing the limits of the law.
Establishing the principle14 of the right to freedom of association in political parties
In the Constitution of Romania, according to article 40, paragraph 1, the „Citizens15 may freely associate into political parties …”. The most important source of international human rights law is undoubtedly the European Convention on Human Rights, hereinafter referred to as the Convention. According to article 11, point 1 of the Convention, “Everyone has the right to freely associate with others …”. Even if, in contrast to the article 40 of the Constitution of Romania, the regulation by principle of the right to freedom of association in the Convention does not refer to political parties, the European Court of Human Rights, hereinafter referred to as the Court, extended the scope of article 11 also to the political parties.16
Appointing the possibility of establishing limitations on the right
As a general rule, we identified two types of constitutional grounds based on which the legislative power can limit, in various ways and pursuing different goals, the activity of the political parties.
Article 53 of the Constitution provides the ground for the general consideration and it is applied without distinction of any kind, to any fundamental rights17. Paragraph 1 of the text specifies restrictively the situations where restraints can be applied to the rights18, while paragraph 2 indicates the conditions when such restrictions may occur19. The difference between the two types of norms20 is important. If, in a case of limitation on the exercise of a right, it is sufficient to prove the existence of at least one of the situations referred to in paragraph 1 of Article 53 of the Constitution, the procedural conditions listed in paragraph 2 of article 53 of the Constitution must be met cumulatively.
There are, however, grounds specific to the right to freedom of association in political parties, based on which restrictions can be applied21. In this case, the penalty for any of the cases mentioned in article 40 of the Constitution is not anymore a simple “limitation on the exercise” of the right, but the declaration of unconstitutionality and the decision of dissolution of the party.
Point 2 of article 11 of the Convention contains provisions similar to those of article 53 of the Constitution22, and article 18 of the Convention provides that restrictions to the fundamental rights can only be applied in those cases explicitly mentioned.
The main consequence of the assumption underlying the regulation of the freedom of association in political parties according to the technique “rule / exception” (which derives, in fact, from the very manner in which the distinction between rule and exception is used) is that the concrete setting of the interference with the right shouldbe as low as possible23.
We do not put into question the fact that the interferences, i.e. imposing a registration procedure in order to acquire the status of political party, in the fundamental right would be illegitimate, per se, but just the fact that they are disproportionate.
Numerical representativeness threshold
The content of the measure envisaged
Article 18-19 of the Law provides that “For the registration of a political party, the following documents shall be submitted to the Bucharest Court of Justice: … d) … the list of signatures in support of the founder members; … article 19 … (3) The list shall contain at least 25.000 founder members …”.
The measure represents a restriction of the right
The drafting form (“For the registration of a political party … the list must (our bold) contain at least 25.000 members … “), as well as the general spirit of the Law lead to the conclusion that the threshold of representativeness is a restriction of the fundamental right of freedom of association in political parties.
The measure is imposed by an act of the legislative power
The threshold is set in the Law. The original constituent power considered the political parties matter to be of sufficient importance as to place it in the special field of matters which will be regulated by an organic law24. Therefore the Law was adopted by Parliament by an absolute majority of its members25 and not by the simple majority required by the Constitution for ordinary laws adoption26.
The situation giving rise to the taking of the measure
In the text of the Law27 there are not given any clues regarding this aspect.
CCR, by Decision no. 35/1996, evoked the phenomenon of devaluation of the parties, implying that on this case-premise was grafted the measure of the legislator to impose the threshold.
If the “inflation of parties” represented the case-premise on which was grafted the threshold measure established by law, it is very difficult to produce such a phenomenon in Romania of the year 2012 . Therefore if the goal (to counter inflation/devaluation of the parties) for which certain legislative measures have been imposed has become obsolete, it results that also the means, namely establishing a threshold of representativeness, through which it has been sought to achieve that goal have become obsolete and should be deleted.
The purpose sought by the legislator by the measure of restriction of the right of freedom of association must be provided by the Constitution/ Convention
The Law does not clearly transpire the objective that could be pursued by setting the threshold so that it becomes necessary to analyse the abstract of the case for the adoption of the Law.
The abstract of the case for the legislative proposal tabled by the liberal parliamentarians clearly referred to a certain type of parties to be encouraged: „parties with national representation, discouraging those who tend to be confined to a regional or provincial level.”28. The increase of the number of members required to register a political party was justified by the need to ensure a high representativeness.
The figure initially proposed of 30.000 supporters was reached by the following calculation: „In Romania, there are 2.948 localities where at least 11 candidatures for the local council must be submitted. It results that a party with national coverage must have at least 30.000 members.”29 As stated in the abstract of the case, the Law aims to institutionalize the political parties, making them representative institutions of the entire Romanian population. So, the Romanian political parties are required to be representative for all the Romanian citizens before participating in elections and get representation in parliament. Thus, to a certain extent, the Law equates what should be two different types of political participation: adherence to a party and electoral vote.
The purpose of establishing the threshold by the legislator, namely the need to ensure a high representativeness, should be included in the exhaustive enumeration of the text in paragraph 1, article 53 of the Constitution:
– the defence of national security,
– the defence of public order, health or morals,
– the defence of rights and freedoms of citizens,
– conduct of the criminal investigation,
– prevention of the consequences of a natural calamity, disaster, or an extremely serious disaster.
A minimum analysis, however, shows that the purpose put forward by the legislator in support of the threshold does not fall within any of the situations listed exhaustively in the constitutional text.
Another argument that could have been the basis for determining the threshold is described in a paragraph of the Code of Good Practice in Electoral Matters of the Commission of October 9, 2002: the number of parties in Parliament should not be too high and that in order to minimize the risk of unstable governance. For this purpose, the legislator may restrict inter alia the number of parties that can be registered30.
However, in the same document it is stated that the general trend is to avoid restricting the number of parties by methods aiming the terms and conditions for the registration of parties, since the refusal to register a party is often a convenient method for those authorities who want to get rid of a competitor who is rather uncomfortable than insignificant31.
According to article 8 paragraph 2 of the Constitution, “Political parties are established and operate under the conditions provided by the law. In other words, the Constitution expressly grants the legislative power the exclusive prerogative to impose the general regulatory framework for the activities of parties. And the Law is the mere expression of exercising this prerogative.
On the one hand, article 8, paragraph 2 of the Constitution and, on the other hand, article 40 paragraph, 1 and article 53 of the Constitution have different content and objectives. First, there is only partial overlap between the matters governed by article 8, paragraph 2 of the Constitution and article 40 and article 53 of the Fundamental Law. Under article 8, paragraph 2, the legislator regulates as a general rule the activity of the parties. Only that article 40 concerns not so much the matter of the political parties as such, but the fundamental right of citizens to freely associate in political parties. From this perspective, we can say that the fundamental right to associate in political parties is a part of the general matter of political parties. As such, the specific regulation regarding the fundamental right to associate in political parties is special in relation to the regulation of political parties as such. Correlatively, this regulation acquires the status of general or common law in the matter of political parties.
It is indisputable that the measure of the threshold imposed by the Law is part both of the general matter of political parties and thus, it is subject to the rule provided by article 8, paragraph 2 of the Fundamental Law, and of the special matter of the fundamental right to freedom of association in political parties and thus, it is subject to the rule provided by article 40 and article 53 of the Constitution. But given that generalia specialibus non derogant, the measure concerning the threshold, imposed by the Law, must be analysed primarily in terms of article 40, and 53 of the Constitution, i.e. if it is not a restriction of the fundamental right to freedom of association, and only secondly in terms of article 8, paragraph 2 of the Constitution.
Finally, the measure regarding the threshold can not escape the rigorous control of constitutionality provided by article 53 of the Constitution for the reason that it is a measure established by the legislator in exercise of the prerogative provided by article 8, paragraph 2 of the Fundamental Law. Therefore, it is necessary to clarify the relation between the objectives referred to in article 53 of the Constitution and the measure of restriction of the right.
Measure is necessary in a democratic society
Suppose that, reductio ad absurdum, setting the threshold of 25.000 signatures is a necessary measure in a democratic society, that is to save one of the values set out in paragraph 1 of article 53 of the Constitution, which should have been considered by the legislator on the adoption the Law. The fact that a measure is necessary to preserve the integrity of the values of a democratic society means that none of the measures whose intensity is lower than envisaged can ensure this goal32. In other words, a lower threshold (10.000 signatures or 5.000 signatures or even a formal single one) can not provide sufficient guarantees that the social objective defended by legislator’s will shall be able to be achieved.
However, we do not see any solid basis for such a support. In fact, it falls upon the legislator, as the author of the measure of restricting the right of association, to prove that none of the restrictions inferior to the one deemed necessary is fit to lead to safeguarding the objectives pursued33. In the Law, however, there is no such justification.
There must be proportionality between the measure that restricted the right and the situation that caused it
In Moldavia, a threshold of 5.000 members had been considered by the Commission34 a serious barrier in the way of maintaining the existence of the political party. Using the argument per analogiam, it can be said that the arguments raised with regard to Moldavia apply, mutatis mutandis, also in respect to Romania.
Indeed, if in a country with a population of about 5 times smaller than Romania a threshold of representativeness of 5.000 members was reckoned as a barrier to the existence of the party, why wouldn’t it be the same when it comes to a 5 times higher threshold of representativeness, i.e. the threshold of 25.000 signatures required by Law, established in a country with a population five times greater?
Also, according to the Commission35, „the establishment or regulation of the activities of political parties must be proportionate. Dissolution or refusal of registration will be ruled only to the extent that there are no less restrictive means to resort to”.
In the Law, a party is obliged to obtain, at two successive general elections, a minimum of at least 50.000 votes nationwide for applications lodged in any of the following voting rounds: county councils, local councils, the Chamber of Deputies, the Senate. This practice, however, is questioned again by the Commission36.
The measure of restriction should be applied in a non-discriminatory way
Neither this step of the test of constitutionality is passed by the Law, in general, and, in particular, by the measure regarding the threshold. In the Recommendations on the regulation of political parties of October 25, 2010, the Commission states that “No person or group of people wishing/wanting to associate in a political party must be advantaged or disadvantaged …”.
The most important of the reasons for the establishment of a threshold in terms of the establishment of the political parties, taking into account the specific nature of these types of associations37, is ensuring their representativeness.
Only that, assuming that a party might be established without meeting a certain threshold and, to this end, it would be devoid of some (minimal) degree of political-social representativeness, nothing prohibits that such a party could still be the vehicle of some ideas whose utility and special value exceed the minimum threshold level.
If the legislator would reassess the appropriateness and especially the level of the threshold in the spirit of true democracy, it should decide not only on the basis of what it is at the time of the application for registration of a political party, but rather from what it might become if it would be given the opportunity to enter the political arena. The legislator should not dogmatically stick to a certain legal party concept – the condition of representativeness is not quintessential for meeting all the functions of political parties38, although of course it is useful. What can be lost by giving up to such a high threshold (one of the highest in Europe)?
It is obvious that small parties are harmed by a high representativeness threshold and, therefore, one can speak of a discriminatory application of the measure of restricting the exercise of the right to associate in political parties. One of the meanings of pluralism in a democratic society is the opportunity given to all its members, generally organised in forms of cooperation, to be represented as effectively as possible in the political life39.
The measure of restriction shall not prejudice the existence of the right
In this analysis we shall not assert that the threshold represents a direct and unmediated prejudice brought upon the existence of the right of freedom of association itself. Rather, as it will be seen in the section immediately following, the Law and the CCR can be criticised from a different perspective. Thus, in addition to the influence brought upon the existence of the right to free association itself, the fundamental right to free association in political parties must be protected by CCR also in front of some attacks less severe than the annihilation of the right itself, but whose seriousness cannot be questioned.
Counter-arguments regarding the position of the Constitutional Court in the matter of the threshold of representativeness
In this section we will show that the main argument invoked by the CCR in defence of the threshold, i.e. that its establishment is a matter of opportunity and not of constitutionality, is unconvincing. Therefore, the analysis we undertake aims to demonstrate that the threshold of representativeness, as it is regulated in Romania by Law no. 14/2003, could mean even an annihilation of the right to association provided in the Constitution and that it is therefore a matter of constitutionality.
We will formulate new arguments which were not put forward until now by the authors of the complaints of unconstitutionality, in support of the unconstitutionality of the representativeness threshold. In this case the CCR will not be able to plead that there were not, at the time of the rejection of such complaints of unconstitutionality, new elements which would justify changing the case law and will have to take them into consideration and provide grounds for acceptance or rejection thereof.
As a rule, by the new elements, there is a change in the objective situation, but a new element can also be considered an argument that could be brought into question but which, for one reason or another, has not been brought into the discussion to support the unconstitutionality of the representativeness threshold. According to the principle of availability, CCR resolves a referral of unconstitutionality only within the limits of the referral, that is only in respect of the subject-matter and the cause of the referral of unconstitutionality.
The arguments for reducing or even eliminating the representativeness threshold must be placed on two levels of discussion – constitutionality and opportunity. The distinction between constitutionality and opportunity is an issue different from the question of how extensive is the area of the fields that fall within the scope of constitutionality. It can be more extended or more reduced without affecting the distinction between constitutionality and opportunity. The text stating that the threshold represents (also) a matter of constitutionality, not only of opportunity does not imply that the distinction between constitutionality and opportunity is annihilated.
Therefore, it is not necessary to ask CCR to reconsider the jurisprudence based on the grounds that one cannot draw a principle line between constitutionality and opportunity. The basis that makes possible the request to reconsider the case law is more “soft”, namely the CCR has narrowed excessively the scope of issues falling under the umbrella of constitutionality. In Decision no. 433/2006, CCR has decided that the question of the representativeness threshold of the parties falls under the “umbrella” of constitutionality only insofar as it is likely to lead to the annihilation of the right to association itself.
The control exercised by CCR is, in our opinion, too little intense by reference to the role that CCR has, that is to guarantee the supremacy of the Constitution and particularly the obligation of this key State authority to protect the fundamental rights.
We will show that CCR’s mission, in the pursuit of these objectives, can and should overcome the minimal level, i.e. to ensure that the fundamental rights are not annihilated, and to censor even “weaker” interferences with the fundamental right to freedom of association that do not annihilate the right itself to free association.
CCR reasoning seems to have as its basis a presupposition of which theoretical weaknesses we will further continue to expose and which ad hoc we will call it tertium non datur – the interferences with a fundamental right are either reasonable, or have the gift to annihilate it. According to the CCR, there is no third possibility.
If CCR appreciates that the interference with the fundamental right of association40does not lead to the annihilation of the right then there is no problem of constitutionality, but only an opportunity, so CCR cannot censor the interference. This presupposition is assumed uncritically by CCR. It is obvious that the annihilation of the fundamental right is the most radical, the ultimate form of prejudice brought to a fundamental right. From this statement, however, we can not conclude that it is the only form of serious interference with the fundamental rights – and this seems to be the wrong interference to which CCR appeals to.
It is as plausible as possible that in addition to the limit-form of the interferences with the fundamental right, to have a diversity of situations in which interferences with the fundamental right can be gradually classified, depending on the severity of the interference.It is not mandatory that all interferences which do not lead to the annihilation of the fundamental right to be included without discrimination in a single category, designated negatively by the phrase “interferences which do not annihilate the fundamental right”.
The error of subsuming all the prejudices brought to a fundamental right in a single category becomes obvious in the following example.Suppose there is a full agreement on the fact that a certain prejudice to the fundamental right does not entail its annihilation, for example the prejudice created by setting the representativeness threshold.Suppose also that there is a similar agreement concerning three other legal conditions which are prejudices to the fundamental right, but without annihilating it, namely the condition of not being a member in other political parties, the one regarding the organization of the General Assembly at least once every five years 41 and the registration of the party in the political parties register. However, it is reasonable to show that among these four interferences, having in common the fact that they do not annihilate the fundamental right, there should be differences at least as significant as that common feature.
Indeed, it can successfully be shown that the representativeness threshold of 25.000 signatures is a more significant interference than the one established by the legislator with regard to the obligation of registration in the Register of Political Parties42. Although both have in common the fact that they do not annihilate the fundamental right of association, it is obvious, on the other hand, that the obligation of the representativeness threshold is significantly more onerous than the obligation to register the party in a register. The differences between the two situations, which otherwise we place them under one and the same “umbrella”, are at least as significant as the similarities.
Therefore, in terms of intensity of the interference (and thus the severity) with the fundamental right of association, it is possible that a representativeness threshold of 25.000 signatures to be closer to a given situation which would be equivalent for CCR with the very annihilation of the fundamental right43 than to a certain hypothesis of some category that does not annihilate the fundamental right.
It is to be assumed that, if, for example, the representativeness threshold had been established at 250.000 signatures, for CCR it would have been interpreted as a case of annihilation of the right itself. Yet, the interference of the threshold of representativeness set at 25.000 signatures is it closer to the interference of the representativeness threshold of 250.000 or to the interference by which the party is obliged to be registered in the register of political parties?
We believe that one could hardly justify a negative response to the question above. In this case, however, we see more clearly the effects that may have the presupposition according to which interferences either annihilate, or do not annihilate the right. The effect lies in the fact that it is forbidden de plano for the Court to control the interferences with the fundamental rights which, in terms of their intensity, are very different. On the contrary, if CCR would abandon the presupposition tertium non datur, it could, based on a model more flexible this time, e.g. based on the idea of similarities, achieve a more just and equitable control.
So, if it would admit, that there are poles, respectively paradigmatic cases where interferences donotannihilate the right and paradigmatic cases where interferences annihilate the right, CCR could analyse the intensity of the interference by establishing similarities with one of the two poles. In response to the possible objection that this procedure is arbitrary it can be replied by the fact that the effects of adopting this model are not as unfair as the effects the tertium non datur model carries along. It is a criterion that leaves much more room to a fair and judicious exercise of the constitutional jurisdictional control function.
To check the conclusion stated above we resort again to the example of the representativeness threshold of 25.000 signatures. If the model is tertium non datur and CCR concludes that the interference regarding the threshold does not annihilate the right of association, then44, without any further analysis or further discussion, it will establish that there is a constitutional matter and that it is exclusively in the charge of the legislator to establish it, just as it is with respect to party’s registration in the register.
Conversely, if the model of similarities is considered, CCR will be able to analyse the similarities and differences between the two conditions of restriction about which it is a priori assumed not to annihilate the fundamental right, idea that obviously has no utility in the tertium non datur model.
Further, CCR will be able to conclude, where appropriate, that one of the two conditions which a priori was assumed not to annihilate the right of association, the condition that establishes the representativeness threshold, looks more like a paradigmatic instance of annihilation of the right of association in political parties, a representativeness threshold of 250.000 signatures. And on the basis of this statement, it could determine that it is necessary to exercise the control for constitutionality not only in the paradigmatic case, namely the representativeness threshold of 250.000 signatures, but also in a situation that resembles to such an extent as to conclude that it is worth to exercise this control for the similar case, i.e. the representativeness threshold of 25.000 signatures.
In conclusion, the model of similarities, but not the tertium non datur model, allows, at least in the case analysed above, to “do justice” for the purpose of determining more accurately the variety of situations where interferences with the right occur.
Thus, to the extent that the model tertium non datur is abandoned, CCR will be able to resolve a potential new referral on the unconstitutionality of the representativeness threshold of 25.000 signatures, in the sense of its admission. In this way, a representativeness threshold of 25.000 signatures, even if it does not annihilate the right itself to freedom of association in political parties, could be declared unconstitutional. And an extremely important field of the political parties activity as the representativeness threshold, according to the current case law of CCR, lies solely in terms of opportunity, will be legitimately constitutionalized.
1 Art. 8 of the Constitution of Romania.
2 Set out in the political parties law no. 14 of January 9, 2003, published in the Official Gazette of Romania, part I, no. 25 of January 17, 2003, republished inthe Official Gazette of Romania, no. 550 of August 6, 2012, hereinafter the Law. See the Appendix Romania. The Constitutional Court of Romania, hereinafter CCR, contributes to the limitation of this right through the decisions handed down during the process of determination of the constitutionality of the Law.
3 The restriction can be achieved also under article 40 of the Constitution of Romania which is a lex specialis with regard to the matter on the restriction of fundamental rights, namely the right to association, compared to the matter of restricting the fundamental rights as provided by the common law in article 53 of the Constitution of Romania.
4 The European Commission for Democracy through Law of the Council of Europe, hereinafter referred to as the Commission, has the same position. In Recommendations on the regulation of political parties of October 25, 2010, the Commission stated the following: „The right of individuals to associate / form political parties shall be, as far as possible (our bold), free of interference”. See the document available online, http://www.venice.coe.int/docs/2010/CDL-AD(2010)024-e.pdf, p. 9, revised on November 28, 2012. This paper has a double advantage – on the one hand, it contains references to many previous Commission documents relevant for the topic of the present study and, on the other hand, it is a recent standpoint of the Commission on the said matter. These two reasons have led us to consider as main bibliographic tool this paper of the Commission. For convenience of reference, we will refer to this paper hereinafter using the formula Commission, 2010.
6 Commission, April 15, 2004, Guidelines and explanatory report concerning the political parties law: specific aspects – http://www.venice.coe.int/docs/2004/CDL-AD%282004%29007rev-f.pdf, accessed on November 28, 2012.
7 Published in the Official Gazette of Romania, Part I, no. 87 of April 29, 1996. A part of that law was repealed by the Law, and the other part by the Law 43/2003 on the financing of political parties and election campaigns, published in the Official Gazette no. 54 of January 30, 2003.
8 “A correct application of the principle of proportionality takes into consideration that the regulation under certain conditions does not result in the abolition of the right itself; however, in this respect, law no. 27/1996 does not have, through the imposed conditions, the significance of a prohibition to exercise the right of association in political parties”.
9 These texts of the Law establish the threshold of representativeness.
10 In the motivation it was shown that “… the estalishment by law of an electoral threshold, justified by the very purpose of the establishment of a political party – that to reflect the political will of the citizens -, as a condition for the continuation of the existence of that party, may not have the significance of breach of the right of association as long as the Fundamental Law stipulates, in article 8, paragraph (2) that “The political parties are established and operate under the law.”
11 Article 1, paragraph 4 of the Constitution of Romania: “The State shall be organized according to the principle of separation and balance of powers – legislative, executive and judicial – within the framework of constitutional democracy”.
12 Article 2 of the Constitution: „(1) The national sovereignty belongs to the Romanian people, who shall exercise it through its representative bodies established by periodic and free elections, as well as through referendum”.
(2) No group or person may exercise sovereignty in its own name.
13 Article 61, paragraph 1 of the Constitution – „The Parliament is the supreme representative body of the Romanian people and the sole legislative authority of the country.”
14 By this formula we have considered the same thing that is involved in formulas like “the law is the rule” and “its imitation is the exception.”
15 Although article 40 appears in Chapter II of Title I of the Constitution (Fundamental Rights and Freedoms), the right to freedom of association in political parties is recognized exclusively to Romanian citizens, in contrast with normal regulation of the other fundamental rights that are recognized regardless of the nationality criterion.
16 In the case of Refah Partisi (The Welfare Party) and others v. Turkey, the Court decided, on February 13, 2003, that: “the protection of the opinions and of the freedom to express them, for the purposes of article 10 of the Convention, is one of the objectives of freedom of association and expression as laid down in Article 11. This is especially true in the case of political parties in view of the crucial role they play in ensuring pluralism and the functioning of democracy.”
17 Article 53 of the Constitution is as follows: “(1) The exercise of some rights or freedoms can only be restricted by law, and only if necessary, as appropriate, for: the defence of national security, public order, health or morals, rights and freedoms of citizens; conducting a criminal investigation; preventing the consequences of a natural calamity, disaster, or an extremely serious disaster.
(2) Restriction may be ordered only if necessary in a democratic society. The measure must be proportionate to the situation that caused it, must be applied without discrimination and without prejudice to the existence of the right or freedom”.
18 It answers the question “When the exercise of fundamental rights can be restricted?”. However, paragraph 1 of Article 53 of the Constitution mentions also a procedural requirement, namely “The exercise … may be restricted only by law.”
19 It answers the question “How the exercise of fundamental rights can be restricted?”.
20 To some extent it is useful to distinguish between substantial vs. procedural – paragraph 1 is concerned with substantial rules and paragraph 2 with procedural rules.
21 Article 40, paragraph 2 of the Constitution: “The parties or organizations that, by their goals or activity, militate against political pluralism, against the principles of the rule of law or the sovereignty, against integrity or independence of Romania are unconstitutional.”
22 „2. The exercise of these rights may only be subject to the limitations stipulated by law which, in a democratic society, are necessary for national security, public safety, prevention of disorder or crime, for the protection of health or morals or the rights and freedoms of others. This article does not prevent thtat lawful restrictions to be imposed to the exercise of these rights by the members of the armed forces, of the police or of the administration of the state..”.
23 Commission, 2010, p. 14: „…the formation and operation of political parties should not be limited, nor should be allowed the dissolution, except in extreme cases according tothe legal procedures and to the extent that it is necessary in a democratic society”.
24 According to article 73, paragraph 3, point b) of the Constitution, “the Parliament adopts constitutional laws, organic laws and ordinary laws…(3) By an organic law are regulated: … b) the organization, operation and financing of political parties”;
25 According to article 76, paragraph (1) of the Constitution, “Organic laws … are adopted by a majority vote of the members of each Chamber”.
26 According to article 76, paragraph (2) of the Constitution, “Ordinary laws … are adopted by a majority vote of the members present of each Chamber”.
27 The law does not contain a preamble, and its general provisions do not offer any concrete indication about the reasons that pushed the legislator to institute as regulatory framework of the parties, inter alia, the threshold.
30http://www.venice.coe.int/docs/2002/CDL-EL%282002%29005-e.asp#_ftn60, accessed on November 28, 2012.
31http://www.venice.coe.int/docs/2002/CDL-EL%282002%29005-e.asp#_ftn60, accessed on November 28, 2012.
32 In Commission, 2010, p. 16, it is stated that one of the factors to be taken into account to verify the proportionality of the measure of restriction is to check if there are “less restrictive means available to achieve the purpose specified in the light of the facts”.
33 Extremely suggestive seems, in this regard, the Commission‘s position in the Commission, 2010, p. 16: “Any restriction on political parties that restricts tge freedom of association must be constructed in such a way as to respect the specific purpose sought by the authorities. It is the responsibility of the State to prove that such limitations promote general public interest and that it cannot be served in the absence of this limitation … “.
35Commission, 2010, p. 16.
36 Commission, 2010, p. 23: ”In some States a political party that does not reach a minimum threshold in the elections loses its status of the registered political party. This practice is far from being ideal and should not be undertaken in the relevant legislation ”.
37 Commission 2010, p. 7 – ”…the legislation which recognizes the special role played by parties in a democratic society should be promoted”.
38 Commission 2010, p. 12 – „A special law of political parties … it is not necessary for the proper functioning of democracy and it can be effective, although minimal as length”.
39 Commission, 2010, p. 20: ”Although the limitations regarding the support to be given to the parties by the minimum signature lists are legitimate, the State must ensure they are such a burdensome measure as to restrict the political activity of small parties or to discriminate against parties representing minorities”.
40 Obviously one cannot question that the establishment of the representativeness threshold is an intromission.
41 Otherwise, the applicable penalty is the dissolution decided by the Tribunal of Bucharest.
42 See the provisions of the article 23 of the Law – „Political parties whose applications for registration have been accepted shall be registered in the Register of political parties”.
43 For example, a threshold of representativeness of 250.000 members.
44 As it always did in its jurisprudence so far!
Constitution of Romania of 1991, amended, published in the Official Gazette, Part I no. 767 of 31/10/2003
European Convention on Human Rights of 4.11.1950, ratified by Law no. 30/1994 on the ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms and of additional protocols to this Convention
(published in the Official Gazette no. 135 of May 31, 1994)
Political parties law no. 14 of January 9, 2003, published in the Official Gazette of Romania, part I, no. 25 of January 17, 2003, republished in the Official Gazette of Romania, no. 550 of August 6, 2012
Decisions of the Constitutional Court of Romania
Decision no. 35 of April 02, 1996 on the constitutionality of certain provisions of the Political parties law, published in the Official Gazette no. 75 of April 11, 1996
Decision no. 147 of October 27, 1998 on the exception of unconstitutionality of the provisions of article17, point b), article 31 and article 46, paragraph(2) and paragraph(3) of the Political parties law no. 27/1996, amended by the Government Emergency Ordinance no.3/1996, approved by Law no. 46/1998, Published in the Official Gazette no. 85 of March 01, 1999
Decision no. 192 of April 27, 2004 on the exception of unconstitutionality of the provisions of article 5, paragraph (1) second thesis of the Political parties law no.14/2003, Published in the Official Gazette no. 432 of May 13, 2004
Decision no. 71 of February 8, 2005 on the exception of unconstitutionality of the provisions of article 1, paragraph(2) and article 9, paragraph(1) of the Law no.90/2003 on the sale of the premises privately owned by the state or by the administrative territorial units, intended for political parties registered offices, article 3, paragraph(3), article 5, paragraph(6), article 6, paragraph(2) and (3), article7, article 11, paragraph(3) and (5), article 13, paragraph(2) and article 22, paragraph(4) of the Law no.43/2003 on the financing of political parties and electoral campaigns, article 21, article 88, paragraph 1, point a), b), c) and d) and article 153, paragraph 2 of the Law no. 92/1992 on organization of the courts, article 121 paragraph(1) of the Law no.304/2004 on judicial organization, article 91, paragraph(2) of the Law no.303/2004 on the status of judges, article2, article 21, paragraph(4), article 26, paragraph(4) and article 27 of the Political parties law no.14/2003, article 75, paragraph(2) and article78 of the Law no. 47/1992 on organization and functioning of the Constitutional Court, Published in the Official Gazette no.380 of May 05, 2005
Decision no. 433 of May 25, 2006 on the exception of unconstitutionality of the provisions of article 19, paragraph(3) of the Political parties law no.14/2003, Published in the Official Gazette no. 492 of June 07, 2006
Decision no. 793 of July 03, 2008 on the exception of unconstitutionality of the provisions of article 46, paragraph(2) and article 48 of the Political parties law no.14/2003, Published in the Official Gazette no. 571 of July 29, 2008
Decisions of the European Court of Human Rights
Grand Chamber judgement Refah Partisi and Others v. Turkey of February 13, 2003
Documents of the Council of Europe institutions
European Commission for Democracy through Law of the Council of Europe – Guidelines and explanatory report concerning the political parties law: specific aspects, April 15, 2004
European Commission for Democracy through Law of the Council of Europe – Recommendations on the regulation of political parties of October 25, 2010
Document of the Committee of Ministers of the Council of Europe