There is no doubt that the dropping out of neo-Nazi groups of any name in elections, and even more so their voting, is one of the darkest moments of democracy. This phenomenon raises a number of questions: how should a democracy treat its enemies? Should he deal with them through criminal law or suffrage? Are candidates and electoral formations allowed to be excluded from the judgment of the electorate, and if so, by what criteria? Who decides all these issues? Constitution, parliament or judge? All of them concerned constitutional law for decades, they were raised again after the decision of the Court of Appeal of Athens on the “Golden Dawn” and again raised in connection with the intention of the Kasidiaris party to lose the elections. Opinions have been submitted for public discussion that suggest that the electoral origin of those parties whose associations include persons convicted of participation in a criminal organization, even of the first degree, should be prohibited by law.

The current Constitution of 1975 does not provide for the possibility of banning political parties. A court-ordered ban on political parties “who act to undermine a free democratic state” was included in the government’s draft constitution, but was lifted after a sharp reaction from the opposition. Well, the legislature faced the challenge of banning political parties and deliberately rejected the possibility. Also, our Constitution in Article 51, paragraph 3 states that a person may be deprived of the right to vote and be elected due to the presence of an irrevocable (neither preliminary nor final) conviction for certain crimes.

As regards the proposal for a ban, it can be argued that it finds support in Article 29 para. 1, which states that the organization and activities of political parties must serve the free functioning of a democratic state. In addition, this same position protects all democratic citizens from the unpleasant sensation of being handed ballots like those of the Golden Dawn in the next parliamentary elections. However, one should not interpret the Constitution and defend our democracy in terms of emotions. They must be carried out constitutionally and with an eye to the future.

After all, to what extent can a democracy expand its prohibitions on civil rights to counter its enemies?

In this regard, many questions arise: are we not thus essentially arriving at the same result that the constitutional legislator rejected in 1975, namely, the prohibition of political parties? Political parties, by definition, exist to go to the polls and claim the vote of the people. If we want to be able to ban political parties, let’s boldly say so and revise the Constitution. Further: is a conviction in a criminal case in a court of first instance sufficient as a basis for not declaring a political party in parliamentary elections, or, on the contrary, should the conviction become irrevocable, since the Constitution provides for the deprivation of political rights? And finally: what will the Supreme Court decide if not the convicts themselves are running, but some, literally or politically, of their “relatives”? Have we considered the possibility of abuse of such a possibility that it can be used against other political entities and in other circumstances? The Constitution must be interpreted with methodological consistency and with an eye not only to the present, but also to the future. Otherwise, the regulatory power of constitutional provisions would be weakened, since the possibility of each parliamentary majority would be recognized de facto to change their content through legislation.

After all, to what extent can a democracy expand its prohibitions on civil rights to counter its enemies? Doesn’t this risk not only calling into question its liberal nature, but also establishing a practice that can be applied to the detriment of other political actors in other contexts? Let us also recall that even where a variant of militant democracy with the possibility of banning political parties has been adopted, this model has proved ineffective, as in Turkey and Germany.

In conclusion, democracy can be protected by means of criminal law and punish those who use the means of democratic political struggle to commit criminal acts. The criminal conviction, combined with the political condemnation of the Golden Dawn in the 2019 parliamentary elections, was the best defense of our democracy. And we hope that this will happen in the 2023 elections as well.

* Mr. Spyros Vlahopoulos is a professor at the Faculty of Law at the University of Athens.