The Democratic Dilemma: Dissolution of Political Parties in the Jurisprudence of the European Court of Human Rights

Sammanfattning: Any democratic State must to some extent take a stand on the classic democratic dilemma of how to approach anti-democratic forces in society. When the threat to democracy emanates from a political party, whose existence and functionality are central to modern democracies, the State will have to undertake a very delicate balancing exercise. The primary research question is what legal standard the Court has set up for the dissolution of political parties. Additionally, the aim is to compare that legal standard with the conception of democracy of the Council of Europe. To some extent, there is a common conception of democracy within the Council of Europe. It can be described as going well beyond a procedural model of democracy, but still emphasizing the importance of elections and therefore also of political parties. Furthermore, there appears to be some consensus as to what the general principles for the limits of dissolution of political parties should be. As an extremely intrusive measure that affects individual’s democratic participation, it should only be applied in exceptional cases and with utmost restriction. The European Court of Human Rights has over the years developed a test for assessing the legality of party dissolution measures, that in many ways sets a high threshold for the legality of such measures. However, its reasoning in especially the Refah Partisi case can be criticized for not adhering to, for instance, the democratic principles of tolerance and pluralism. The thesis concludes that it is not currently possible to give a clear answer to the research question. In some cases it is questionable whether the reasoning of the Court is in line with the conception of democracy within the Council of Europe. This is primarily due to the use of elusive concepts such as ‘democracy’, ‘pluralism’ and ‘secularism’. Acknowledging the difficulties of undertaking to clarify the concept of democracy, the author nevertheless suggests that the institutions of the Council of Europe should attempt to do so.