In 1949, at an international conference on the development of the European Convention on Human Rights (ECHR), French professor Pierre-Henri Teitgen (1908-1997), dissident, Minister of Justice of the Provisional Government, General de Gaulle (1945-1946) and whom many consider the “father” of the ECtHR , supported the creation of the European Court of Justice in Strasbourg (ECtHR) with the following words (colleague Har. Antopoulos reminds us of them in his recent speech):

“Democracies do not slide into Nazism overnight. Evil comes insidiously, at first in the minority, neutralizing the mechanisms of control. Freedoms are canceled one by one, first here, then there. Public opinion and national consciousness are suffocated, and then, when everything is ready, the Fuhrer is installed and the case is taken to the crematorium oven. That is why it is imperative that we intervene before it is too late. […]. The International Court of Justice in the Council of Europe and the system of checks and guarantees could be the conscience we need […]”.

As paradoxical as it may sound, Golden Dawn was not banned. Legally, it still exists. And this despite the characterization of it as a criminal organization and the sentences of its leading core to long prison terms. Because there is no such option in Greece. So, a few days ago, on the anniversary of the founding of EOKA (04/01/1955), some of its young followers calmly demonstrated with torches in the center of Athens. Pushing aside his helpless former leader, Ilias Kasidiaris took the reins of power into his own hands. Despite being imprisoned, he has now founded his own party, which defiantly demands, personally or through his proxies, his passage to parliament.

This could not happen in any other European country. Because the Golden Dawn as a criminal organization (which it really was) would be banned, as is the case with private militias in France. If it had continued to be considered a political party (which it was not), it would have been dissolved by decision of the Constitutional Court, as is the case in Germany and Spain. Finally, Kasidiaris and his friends would be stripped of their political rights.

However, in our case, the ban is excluded, since the Constitution does not contain a corresponding norm, and in order to deprive political rights, the guilty verdict would have to become irrevocable, i.e.). A process that can take more than ten years, as in this case. Until then, our democracy will be dormant?

The solution chosen last fall attempts to overcome the above obstacles without violating the Constitution, and I believe it succeeds. Because it does not formally ban Nazi symbols, which would be constitutionally problematic and set a dangerous precedent, but it does not deprive prisoners of their civil rights. On the contrary, the amendment, adopted in February last year, excludes from the elections parties running with candidates convicted even in the first instance for participation in a criminal organization. This also excludes agents of the latter.

The natural adjudicator of the announcement of candidates has not changed. Instead, it was provided that all judges of the relevant chamber would be able to participate in the proceedings.

To the extent that these individuals can become citizens as independents, such an arrangement raises no questions of constitutionality. Nor extending the ban to their agents, unless, of course, the dependence of the latter on the prisoners is proven. That, after the well-known statements of Kasidiaris and Kanellopoulos, I do not think it can be seriously disputed.

But is there any chance of success if Kasidiaris appeals to the Strasbourg Court if his party is banned by the Supreme Court? I think not, for the following reasons:

1. With a fixed jurisprudence, EDDA considers it lawful not only to exclude from elections, but also to completely ban parties that use violence in their daily activities. It even bases its decisions on Article 17 of the ECHR, which prohibits abuse of right (see instead of many the Grand Chamber’s judgment in Zdanoka v. Latvia, 16.03.2006, which also reviews the relevant jurisprudence).

2. In addition, the EDDA ruled that the exclusion of “third party” parties from elections is legal if it can be shown that they maintain “strong and confirmed ties” (liens forts et avérés) with parties that have been declared illegal. In the decision of Etxebarria et al. v. Spain (30.06.2009), concerning the Basque nationalists, through which the banned parties Batasuna and Erri Batasuna tried to get through in the elections. The latter’s dissolution would be futile, the court ruled, “if other electoral groups could pursue the same goals as the banned political party.”

Concluding remarks on the government amendment adopted by the parliament at its final meeting (04/11/2023): without further ado, any changes to the electoral law on the eve of the elections are condemnable. Because it is unfair for any government to change the rules of the game at the last minute in its favor.

Here, however, this did not happen, because the natural judge of the proclamation of candidates has not changed. On the contrary, it was envisaged that all judges of the competent department – appointed, it should be noted, at an unexpected time, i.e. from the beginning of the current judicial year – will be able to participate in the relevant procedure, and not only five of them, during an uncontrolled (possible) decision of the responsible vice president. Therefore, I do not consider that the contested amendment can be considered contrary to Article 8 of the Constitution and Article 6, paragraph 1, of the ECHR. And I am amazed and outraged by the ease with which SYRIZA especially supported opposites.

Mr. Nikos K. Alivisatos is Professor Emeritus of Constitutional Law at the University of Athens.