Modern liberal democracy easily becomes a phobia, but does not dare to act as a fighter. He is tormented by the results of elections in many Western countries – the recent US midterm elections are an example – in which the choice of the electorate could call into question the very values ​​of liberal democracy. On the other hand, as a struggling democracy, it must respect constitutional legitimacy and democratic pluralism.

Engels recalls the infamous phrase spoken in 1849 by Louis Bonaparte’s prime minister, Odilon Barot, to the French National Assembly: “La legalité nous tue.” The law is killing us. Putting this phrase into today’s context, we can say that it raises the question of a difficult balance between democratic fear and constitutional protection.

A few days after the decision of the Athens Court of Criminal Appeal, composed of three members in the first instance in the Golden Dawn case, on 10/19/2020, the Circle of Ideas organized an online debate on the topic: “The consequences of the Golden Dawn decision – Political rights convicts.” We had the opportunity to speak with Nikos Alivisato, Charalambos Anthopoulos, Christophoros Argyropoulos, Spiros Vlahopoulos, Antipas Karipoglu, Vassilis Markis, Elli Simeonidou-Kastanidou. The transcript is posted on the Circle of Ideas website and anyone can get acquainted with the scope of reflections, general assumptions and disagreements. Let me summarize my position.

At the individual level, in accordance with Article 51 par. 3 par. 2 of the Constitution: “The law may not restrict the right to vote, except in cases of reaching the minimum age limit or in case of incapacity, or due to an irrevocable conviction for certain crimes.” The current Criminal Code no longer provides for a secondary punishment in the form of deprivation of political rights, but a secondary punishment in the form of deprivation of positions and posts. This is a legally modern choice of criminal liberalism.

In addition, the previous Criminal Code provided that a subsequent penalty of deprivation of political rights would only take effect when the decision became irrevocable, as expressly provided for in the Constitution. The abolition of an additional measure of punishment in the form of deprivation of civil rights does not deprive the electoral legislator, and not the criminal one, of the opportunity to provide for in the electoral law, and now the constitutional ban on the retroactive effect of the criminal law does not apply. in this case, the restriction of the right to vote for certain categories of persons irrevocably convicted of serious crimes against democratic reputation, and for a period determined by the principle of proportionality. After all, Article 51, paragraph 3 of Sind. does not require additional punishment, it requires irrevocable conviction of the main punishment. Anyone who does not have active and unrestricted suffrage is not eligible to be elected in accordance with Article 55 of the Constitution, therefore he cannot be elected as a member of Parliament, or, if this reason arises, he is disqualified. from membership in Parliament by decision of the Supreme Special Court.

Thus, in any case, with regard to the individual exercise of active and passive suffrage, the provisions of the electoral law must be consistent with the criminal law in the context of Article 51 part 3 Coll.

At the collective level, democracy must be a liberal fighter, defending itself with strict adherence to the guarantees of the rule of law. The Hellenic Republic must not allow its noble enemies to use the institutional guarantees it provides to their detriment.

The electoral law has the power to prohibit the offensive masquerading of a potentially criminal organization as a political party, which is distinct from the prohibition of a political party.

Could the experience of the Golden Dawn bring back to the surface the question of the prohibition of a political party, which is not provided for in Article 29 of the Greek Constitution, in fact, something that was rejected, although proposed, in the constitutional post-political parliament of 1974-1975? Can we interpret the Constitution in such a way as to lead us to legally ban political parties? My position is negative not because of the “originalist” interpretation, which seeks the original intent of the drafter of the bill and elements of subjective historical interpretation, but because if the Constitution left this possibility open, it would have to provide for the appropriate judicial procedure. , for the accuracy of the relevant jurisdiction, which is not the case.

On the other hand, can he be disguised as a political party under Article 29 Comp. to form and manage a – potentially – criminal organization that performs or simply prepares actions that have a serious criminal reputation? The obvious answer is “no”.

The absence of a party ban mechanism, which exists in other countries, such as Germany or Turkey, does not mean that it is constitutionally forbidden to take measures to disqualify in elections for organizations that act in the form of a political party and seek to move out of the field of civil society into the sphere of institutional procedures of a representative parliamentary democracy . With this phrase, I am trying to summarize and simplify the voluminous and intense theoretical and legal debate that has been going on for several decades in Europe. D. Tsatsos, the leading European theorist of the law of political parties, would have done this much better than me if he were alive.

Thus, the electoral law has the right to prohibit the abuse of disguising a potentially criminal organization as a political party claiming to participate in the electoral process. This is something other than a ban or, moreover, the dissolution of a political party. We are talking about the legislative provision of minimum basic conditions for the participation of collective education in elections. These basic conditions are subject to judicial review in the same way as the conditions provided for unions, i.e. even with the procedure of “voluntary jurisdiction” (Article 94, part 2 of the Coll.), when civil courts and at the highest level the Supreme Court traditionally exercise voting rights. legal powers related to the announcement of candidates and, ultimately, combinations. An appropriate adjudication, specifically and comprehensively reasoned, can be formed through quick and procedurally simple procedures, using any suitable means of proof and, more generally, evidence provided by any person with a legitimate interest, that is, even by each voter, or taken into account ex officio, but in the context of a fair trial that ensures the right of the parties concerned to be heard. Forensic diagnostics should take into account which individuals exercise real leadership and the modus operandi they use. Crisis A.P. is not criminally punishable, the commission of crimes under Articles 187 and 187 A of the Criminal Code of the Russian Federation has not been established. or other relevant criminal provisions and no criminal penalties are imposed. This is an independent crisis in the field of electoral law, with legal consequences that apply only in the same field.

The extensive jurisprudence of the ECtHR in relation to political parties, set out in the uniform regulation of Article 11 of the ECHR for unions or related organizations and parties, recognizes the margin of appreciation of the participating States, since, apparently, the relevant legislation is not evaluated by national courts. contrary to the Constitution of the country. The party program is not the only criterion for determining its aims and intentions. The actions of members of the (real) leadership and the positions they support are critical. Non-observance of the rights protected by the ECtHR is a suitable criterion for the formation of a (negative for a particular party) decision of the national court.

This approach does not affect the suffrage of persons who have not been irrevocably convicted, but only in the first instance or finally. He thus complies with the express provision of Article 51 para. 3 sec. 2nd comp. He also respects the presumption of innocence, which is waived in the execution of a decision of the first instance or, even more so, of the court of appeal, but it remains valid in criminal courts until an irrevocable conviction is delivered. It also respects the ne bis in idem rule, since the restriction of an association’s participation in elections is an independent judicial decision with broader criteria relating to the free functioning of a democratic state, and not a second criminal or administrative (and even quasi-criminal) sanction against a specific person and for specific acts. for which he was convicted in the first instance by the criminal court and for which he is being tried in the appellate instance.

The broad consensus of political forces and the scientific community and, finally, the application of the relevant provisions of the electoral legislation by the highest court and, in fact, its main formation, are a presumption of legitimization of an interpretive approach that does not replace the Constitution, but turns its general and abstract structure into a specific normative response to specific practical issues. These questions are answered first by the legislator, and lastly by the judge. Both take scientific reason into account as much as they like, but they must move with the caution, sensitivity, and balance required by respect for constitutional legitimacy, which does not lead a phobic democracy to paralysis, and a struggling democracy to arbitrariness.

Mr. Evangelos Venizelos is Professor of Constitutional Law at the AUTH School of Law. General Rapporteur for the 2001 Constitutional Review. Former Deputy Prime Minister, former Chairman of PASOK.