There are two categories of legal order, two attitudes towards the question of the prohibition or dissolution of political parties. One, known to politicians and lawyers, is German.

Establishment of a Constitutional Court with jurisdiction over dissolution. The decision, directly related to the Third Reich, was made from the very beginning by the Constitution of 1949 (Article 21). The Court decides to dissolve if it finds, with careful due process and after lengthy evidence, that the party seeks, through its aims or through the actions of its members, to activate the liberal democratic order and, moreover, bears a burden by virtue of these aims.

The Court exercised this jurisdiction very sparingly: once in 1952 (the dissolution of the “Reich Socialist Party”) and a second time in 1956 (the dissolution of the “Communist Party of Germany”). He recently rejected the Bundestag’s second call for the dissolution of the “National Democratic Party of Germany” on the grounds that although it has been shown to aim at the overthrow of the state, it does not carry the necessary weight to actually, even in the abstract, threaten the democratic state. The 263-page judgment was handed down in 2017 after a three-year legal battle.

The second decision, Greek: refusal to create a Constitutional Court, no organization of prohibition or dissolution at the level of the Constitution. The Constitution of 1975 is not indifferent, takes a position, leaves nothing to a simple legislator, except for the definition of crimes that entail the deprivation of the right to elect and be elected (part 3 of article 51). and article 55). T

The most important articles of the Constitution (29, 51 and 55) form the basis of the democratic beginning of the state. The right to vote and the right to be elected are closely linked. The conditions for election are the same as for election, with the only difference being age. The deprivation of the right to vote, and, consequently, the right to be elected, is caused only by an irrevocable conviction for certain crimes, which the legislator specifies sparingly.

Article 29 states: “Greek citizens who have the right to vote may freely form and participate in political parties whose organization and activities shall serve the free functioning of a democratic state.” This guideline comes from the so-called “government plan” of the constitution, which was submitted to the Revision Parliament by the government of K. Karamanlis. This article, however, contained two additional clauses: “2. The law determines the organization and activities of parties within a democratic framework. 3. Parties whose actions are aimed at undermining a free democratic state or endangering the territorial integrity of the country shall be outlawed by a decision of the Court in accordance with Article 100 of this Constitution.” This prevented the creation of a judicial institution (a “Constitutional Court”) that would take on the difficult and dangerous task of “outlawing political parties”. The decisions of the Revision Parliament were the result of consent, the adoption of the ND by the government. opposing views of opposition parties, especially those on the left, for fear of abuse of sanctions. The statement of H. Ilios is characteristic: “This is a terrible article 12 with the addition of article 100 on the Constitutional Court for the dissolution of parties. I think that the principle of democracy is that there is no authority in the world, no orthodoxy that is valid at all times, that obliges all citizens to have the same ideas and the same opinions … So, if a contradiction, even a basic one, even radical, against the situation, with testimony and on the basis of the files compiled by the Police Department, because what cannot yet happen, is illegal, the democratic state is catalyzed again. And do not forget … that when some kind of restraining order was issued against communism, it was soon expanded and applied to the detriment of the left, but far from communism at the expense of the center and the right at the same time … ”(Proceedings of Olomelias 1975 page 14). In connection with the same provision, department A1 of the Office for Society Affairs. A.P. takes part in its decision (65/2014): “The constitutional legislator who, with Art. 29 para. 1 sec. 1 S., reduced political parties to a constitutional institution and guaranteed the right of Greek citizens to form and participate in them, avoiding at all stages of the adoption and amendment of the relevant provisions (legislative committees, parliamentary debates) and any ideological or other restriction, in addition to the established obligation, that their organization and actions serve the free functioning of a democratic state in order to prevent any interference with their free functioning by law or by judicial decision…”.

In addition, he acknowledges that “only the filing of criminal charges for criminal acts without an irrevocable criminal conviction and subsequent deprivation of political rights does not entail the deprivation of the rights of the person involved and does not affect the legal position and institutional activities of a political party, as an institution, within the framework of the constitutional regulation, in accordance with the provisions of Article 29 par. 1 of the Constitution and 29 par. 1, 2, 4 and 6 of Law 3023/2002…”. .2014. It should be noted that the correctness of this decision was confirmed by the decision of the AED dated 6/2015.

From 1975 to the present day, there have been 4 revisions of the Constitution, each time initiated by one of the three ruling parties (ND, PASOK, SYRIZA). The last one is in 2019. Nobody touched upon the system of Articles 29, 51 and 55 of the Constitution.

The 1975 constitution leaves nothing to the discretion of the general legislature, except for the definition of crimes leading to the deprivation of the right to vote and be elected.

With their faithful imprint, suffrage was formed and this is how the state functioned for about half a century …

The current crisis begins in 2021 with the first legislative initiative of the government, continues with the second stage in February 2023 and ends with the third stage in April 2023, a few days before the elections. The first (Law 4804/2021) establishes a ban on the participation in elections of a party, some of whose leaders have been sentenced, even in the first instance, to imprisonment for certain crimes or to life imprisonment for any crime. A party becomes a catalyst if it is prevented from fulfilling its goal of entering parliament and thus winning the role of government or opposition (StE 4037/1979 Coll.). With the second action (Law 5019/2023) a) an attempt is made to impose a ban and when it is “discovered” that the party is actually controlled not by the seemingly “innocent” leadership, but by the criminal “real” leadership b) the second reason for the ban of the parties is also established : when they do not “serve the free functioning of the democratic state”. A reason that is taken into account only in the case of conviction of a candidate for deputy (and other persons), even in the first instance, for high treason, or for acts of terrorism, or for the crime of a criminal organization. The third action (law 5043/2023) is to change the composition of the judicial body responsible for declaring combinations, i.e. Department A1 of the Supreme Court, so that instead of a permanent 5-member composition, it meets with all its members.

It is clear that the “system” that has been tried to be built into the electoral law is contrary to the constitutional order referred to above. He is trying to give the purely directive provision of article 29 part 1 of the Constitution the sanction of the prohibition of parties, rejected by the Parliament that created the current Constitution. In the same context, it breaks the link between the right to be elected and the right to vote by removing the irrevocable conviction, which corresponds to the presumption of innocence of any defendant, which also applies until his conviction becomes irrevocable (see ECtHR, Constas v. Greece) , May 24, 2011, p. 36). It introduces a constitutional dispute in the AU Division of special composition and summary procedure (not litigation!), which can lead to the banning of a political party. That is, with much broader powers than those that, according to the Constitution, were exercised in the context of ordinary judicial proceedings and after the elections of the AED.

In conclusion, it should be noted that all legislative innovations are the work of the legislator-auditor, so their possible judicial legalization will create a permanent fluidity in the operation of democratic power, and especially in its most important practical manifestation: the right of citizens to determine the composition of parliament.

Mr. Sotiris Rizos is the former Chairman of the Council of Ministers.