Doc. 9904

11 September 2003

Racist, xenophobic and intolerant discourse in politics

Report

Committee on Legal Affairs and Human Rights

Rapporteur: Mr Kevin McNamara, United Kingdom, Socialist Group

Summary

Despite the long-standing and continuing work of the Parliamentary Assembly, as well as other political institutions such as the European Parliament and the United Nations General Assembly, despite numerous international treaties – such as the European Convention on Human Rights, the Convention on the Elimination of All Forms of Racial Discrimination and the 2003 Additional Protocol to the Convention on Cybercrime, concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems and despite the best efforts of specialist organs such as the European Commission against Racism and Intolerance and the European Union Monitoring Centre on Racism and Xenophobia, racism, xenophobia and intolerance continue to blight European society. In particular, recent years have seen an increase in racist discourse in politics, not only amongst what might be termed “far-right” parties, but also on the part of mainstream politicians.

The fundamental principles of the Council of Europe – as elaborated and applied by bodies such as the European Court of Human Rights and the European Commission for Democracy Through Law – are absolutely clear on the unacceptability of this abhorrent phenomenon. Accordingly the Assembly recommends the adoption and implementation by member States of a full and progressive range of measures, consistent with existing jurisprudence and guidelines and based on its own previous declarations, intended to deter and prevent incidents of racist discourse in political life. It also proposes that European political parties sign and adhere to the Charter of European Parties for a Non-Racist Society, as a means of internalising the relevant principles and clarifying a useful model of best practice.

I.       Draft resolution

1.       The electorates of all sovereign states are entitled to choose their political representatives in free and fair elections. The Parliamentary Assembly observes, however, that this principle is neither freestanding nor absolute, but implies and depends upon respect for the rule of law and non-discriminatory protection of human rights and fundamental freedoms.

2.       The Council of Europe is an organisation devoted to supporting and promoting all of these three pillars as the joint foundations of liberty, justice and security. Membership requires that states act to protect and promote all the interconnecting and interdependent basic principles of the organisation. Democracy is incomplete and the rule of law ineffective if human rights are not protected equally and universally. In this respect, the Assembly recalls Article 3 of the Statute of the Council of Europe.

3.       The Assembly also recalls Articles 13 and 14 of the European Convention on Human Rights and Fundamental Freedoms, which require states to ensure provision of effective remedies against violations of rights and freedoms and to secure the enjoyment of protected rights and freedoms without discrimination. The Assembly further recalls Protocol No. 12, which requires that the enjoyment of all rights and freedoms set forth in law be secured without discrimination and Article 17, which prohibits that the Convention be interpreted in such a way as to allow disproportionate limitation of the rights and freedoms contained therein.

4.       The Assembly is itself a body of democratically-elected national representatives and as such is profoundly and immediately concerned with the preservation and promotion of political freedoms and pluralism. It therefore supports without reservation full protection of the rights contained in Articles 10 and 11 of the ECHR, concerning the freedoms of expression and of assembly and association, without which pluralist democratic political activity would be impossible.

5.       The Assembly observes, however, that Articles 10 and 11 are not absolute rights, but qualified rights whose enjoyment may be limited by competing public interests, amongst which are the prevention of disorder, the protection of morals and the protection of the rights of others. In particular, this allows for limitation of these rights and freedoms when they are exercised in such a way as to cause, incite, promote, advocate, encourage or justify racism, xenophobia or intolerance. The Assembly recalls the relevant jurisprudence of the European Court of Human Rights and notes with approval the guidance on these matters given by the European Commission for Democracy through Law (the Venice Commission) in its “Guidelines on Prohibition and Dissolution of Political Parties and Analogous Measures”1 and by the European Commission on Racism and Intolerance (ECRI) in its General Policy Recommendation No. 7 on national legislation to combat racism and racial discrimination.2

6.       The Assembly also recalls the 2003 Additional Protocol to the Convention on Cybercrime, concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems, as well as the 1965 United Nations Convention on the Elimination of All Forms of Racial Discrimination (CERD).

7.       The Assembly notes in particular and fully supports the invaluable work of the European Commission against Racism and Intolerance (ECRI). The Assembly also notes with appreciation the complementary work of the European Union’s Monitoring Centre on Racism and Xenophobia (EUMC). The Assembly recalls the work of the European Conference Against Racism of October 2000 and in particular its Conclusions and report.

8.       The Assembly recalls its own previous work, in particular Recommendations 1222 (1993) and 1275 (1995) on the fight against racism, xenophobia, anti-semitism and intolerance, 1438 (2000) on the threat posed to democracy by extremist parties and movements in Europe and 1543 (2001) on racism and xenophobia in cyberspace, along with Resolution 1308 (2002) on restrictions on political parties in the Council of Europe member states. The Assembly also recalls the work of the European Parliament concerning racism, intolerance and xenophobia, in particular its reports on countering racism, xenophobia and intolerance in the European Union and in the candidate countries. It further recalls the positions of the UN Commission on Human Rights in its Resolutions 2002/39 and 2001/15, of the UN General Assembly in its Resolution 55/82 and of the Secretary-General of the UN in his Note A/53/269

9.       The Assembly takes note of the Charter of European Parties for a Non-Racist Society.3 The Assembly strongly encourages extension of application of this instrument throughout Europe. It fully supports establishment of a permanent body representative of political parties from all Europe to monitor implementation of the Charter and considers that co-operation with the European Parliament is highly desirable in this respect.

10.       The Assembly recognises that manifestations of racism, xenophobia and intolerance in political discourse come from all parts of the political spectrum, take a variety of forms and are of varying gravity. Accordingly, the Assembly recommends a progressive range of measures intended to accommodate and address fully the complexity of the situation.

11.       The Assembly therefore recommends to political parties in all member states of the Council of Europe to sign the Charter of Political Parties for a Non-Racist Society, to fully and effectively implement its provisions and to co-operate in the establishment and thereafter in the activities of its supervisory body.

12.       The Assembly further recommends to member states:

II.       Explanatory memorandum

      by Mr McNamara, Rapporteur

A.       Introduction

1.       The peoples of member states of the Council of Europe have a right to free elections under conditions which ensure the free expression of the people in the choice of their legislature. This right, however, does not and cannot stand alone, but is interdependent on respect for the rule of law and universal protection of human rights, without which a society will be unable to return a truly representative government. These three fundamentally related principles are the very raison d’être of the Council of Europe.

2.       Democratic elections are the most important and powerful expression of its individual and collective opinions a country’s population makes; to represent effectively the popular will, activists must be free to form parties and to campaign. Consequently, a state’s membership of the Council of Europe brings with it a commitment to the principles of the European Convention on Human Rights (ECHR) which include (under Articles 10 and 11) protection of the freedoms of expression and of association as necessary foundations for effective democracy and imply pluralism as a necessary corollary. It must be recalled, however, that these freedoms may be qualified by consideration of competing public interests, including the prevention of crime and the protection of public order and of the rights and freedoms of others.

3.       A state’s membership of the Council of Europe also requires it to privilege the prevention of racism, xenophobia and intolerance as a public interest with which the freedoms of expression and association may not unduly interfere. This is made clear by Article 3 of the organisation’s Statute and by Articles 14 and 17 and Protocol No. 12 of the ECHR.

4.       The reasoning, with respect to racism, xenophobia and intolerance, is made explicit in the preamble of the 1965 UN Convention on the Elimination of All Forms of Racial Discrimination (CERD):

5.       Article 4 of the CERD prescribes that states-party take certain specific measures, including punishment of dissemination of ideas of racial superiority or hatred, incitement to racial discrimination, acts of racist violence or incitement to commit them, and the provision of assistance to racist activities. It also requires that organisations involved in such activities be declared illegal and prohibited. All member States of the Council of Europe have signed the ECHR and all but the newest, Serbia and Montenegro, have ratified it; 32 have signed Protocol No. 12 but with only four ratifications (ten are required for its entry into force); and all have signed the CERD, with 24 ratifications.4 The Rapporteur believes that those member States which have not yet ratified Protocol No. 12 and the CERD should do so and give their provisions full effect at the earliest opportunity.

6.       Deep concern has been expressed in numerous international fora at the increase in racism, xenophobia and intolerance in politics: these bodies have declared their absolute rejection of racist ideas and encouragement for the promotion of solidarity, tolerance and respect by politicians, along with the adoption and implementation of appropriate preventive measures. In this respect the UN Commission on Human Rights’ Resolution 2002/39 on “The incompatibility between democracy and racism” and also its Resolution 2001/15 are significant. The General Assembly of the UN has expressed similar concern, for example in Resolution 55/82 of 4/12/00 on “Measures to be taken against political platforms and activities based on doctrines of superiority which are based on racial discrimination or ethnic exclusiveness and xenophobia, in particular, neo-Nazism”, as has the Secretary-General in a Note on “Measures to combat contemporary forms of racism, racial discrimination, xenophobia and related intolerance” (A/53/269).

7.       The “Copenhagen Document” of the OSCE includes provisions relating to the issue, requiring that states prohibit and protect against discrimination, and clearly and unequivocally condemn racial and ethnic hatred, anti-Semitism, xenophobia and discrimination as well as persecution on religious grounds. The European Parliament also has addressed the issue, for instance in its Report on countering racism and xenophobia in the European Union5.

8.       It may be said that if the electorate of a country agrees with the policies of a party advocating racial discrimination, xenophobia or intolerance, then the democratic wishes of that population should be respected: it should not be for the Council of Europe to be interfering of such an outcome of the democratic process of a sovereign state. The Rapporteur believes that to be a false argument. The Council of Europe is an organisation intended to support and protect not only such narrowly-defined ‘democracy’. A member State which allows racism, xenophobia and intolerance to flourish unchecked in its political and public life is failing in its most basic obligations of membership; and were the Council of Europe not to act whether in anticipation or response, it would be failing in its historic mission. A State persistently embracing such principles ought not to remain a member.

B.       Racism in contemporary European politics

9.       The European Commission against Racism and Intolerance (ECRI), in its general policy recommendation No.7, employs the following definition of ‘racism’:

Elements such as nationality, language or religion are required in the list of grounds because reference to such characteristics can act as a cipher for particular ethnicities or races6: these grounds should therefore be borne in mind when enacting legislation to combat racism (and racial discrimination). ‘Xenophobia’ is a less technical, more general term meaning a morbid dislike of foreigners. ‘Intolerance’ means a refusal or inability to accept difference, or to allow those exhibiting certain distinguishing characteristics to co-exist or to engage in certain distinctive practices without interference; in the context of this report, these differences, characteristics or practices would arise from the list of grounds enumerated in the definition of ‘racism’. These three words, being continuous but not coterminous, provide complete coverage of the phenomenon in all its aspects.

10.       It must be observed that parties and politicians of all complexions have been responsible for reprehensible conduct, and also that the discriminatory views of ‘far-right’ parties are increasingly being tolerated and on occasion even adopted by their mainstream counterparts. Some of the statements reported can only have been intended to be derogatory; others perhaps were not, in the subjective intention of their makers: but when looked at from the subjective perceptions of sections of their audience (especially those from national or ethnic minorities, but also elements of the majority which are potentially receptive to racist views and so which would receive encouragement from them), their effects become unacceptable. This consideration is also relevant to statements being ‘taken out of context’. Some statements are indefensible whatever the context in which they were made; as to the more ambiguous examples, it must be remembered that, since politicians should be aware that what they say will rarely be reported in full, much if not most of their eventual audience will only ever receive partial reports from which any ‘explanation’ of context may be missing.

11.       Following 11 September 2001, there has been a particular increase in extreme Islamophobic political statements by politicians in many European countries, whilst recent conflict in the Palestinian territories has heightened anti-Semitism. Discourse and policies often portray the domestic problem as being ‘immigration’ or ‘culture’ rather than ‘immigrants’ and ‘foreigners’ and avoid evoking particular races or nationalities, yet the language employed and issues invoked raise clearly and unavoidably in the public mind the suggestion that ‘foreigners’ are predominantly

unproductive, resource-consuming, threatening, criminal and dangerous. Whilst debate on public order and security, immigration policies and multicultural societies is important and legitimate, this approach is racist, xenophobic and false.

12.       It is valuable here to repeat the following concern, from one of ECRI’s country reports:

13.       In recent years there has been extensive coverage, in the media, in the reports of national and international political bodies and in the publications of intergovernmental organisations, of occurrences of racism, intolerance or xenophobia. These have received widespread publicity and in some instances obtained considerable notoriety. Even if it could be said that there is a risk of racism infecting the discourse of mainstream parties, nevertheless allegations and accusations of racism are matters of extreme political sensitivity. In the absence of exclusively reliable and universal information, it is impossible for a report of this nature to portray the overall situation in a balanced way which is fair and free of accidental bias on political or geographical grounds. The degree to which the phenomenon has spread is clearly indicated, however, by the fact that ECRI has expressed specific concerns in its country-by-country reports on Austria, Belgium, Denmark, Hungary, Italy, Norway, Romania, Russia, Slovakia and the United Kingdom. The European Union’s European Monitoring Centre on Racism and Xenophobia (EUMC) has reported post-September 11 incidents of Islamophobia by politicians in Austria, Denmark, France and the Netherlands. The Rapporteur has absolutely no doubt that few if any other member States would prove free of similar taint.

14.       On the other hand, the Rapporteur has faith that the great majority of European politicians reject racism, xenophobia and intolerance and the incorporation of discrimination as a basis for political action. The Rapporteur also hopes that, given an atmosphere of political openness free of mutual suspicion and manipulation, the elected political representatives of Council of Europe member States gathered together in the Parliamentary Assembly can unite in their abhorrence and repudiation of racism, xenophobia and intolerance in politics and agree to fight against them on the basis of certain common principles.

C.       A progressive response to racism, xenophobia and intolerance in politics

15.       It is perhaps trite to observe that not all political manifestations of racism are of equal gravity: consequently, an progressive range of appropriate responses is required. The uncharacteristic and inadvertent lapse in the heat of the moment for which prompt apology is given may require nothing more. Repeated racist slurs or a single instance of extreme vitriol may require a more deterrent response. The incorporation of racist, xenophobic or intolerant rhetoric or propaganda into a party’s published programme and policies would justify a more determined reaction by the administrative and judicial authorities. Eventually, should a racist, xenophobic or intolerant party come into political power and pursue such policies, or a government permit such a party to indulge in extreme discourse without restraint or sanction, such circumstances would bring into question the tenability of that state’s rights within and ultimately membership of the Council of Europe.

i.       The Charter of European Parties for a Non-racist Society

16.       The Charter of European Parties for a Non-racist Society was an initiative of the Migration Policy Group and the Dutch National Bureau against Racial Discrimination, supported by the EU’s Consultative Commission on Racism and Xenophobia, launched in Utrecht in 1998 to set down “specific principles of good practice” for the avoidance of racism in the activities of its signatory political parties. Despite its EU-related origins it is open to signature by political parties in any European state, and has in fact already been signed by parties from 26, of which Switzerland and San Marino are neither members of nor candidates to the EU, along with (in the European Parliament) the European Liberal, Democrat and Reform Party, the Party of the European Socialists, the European Federation of Green Parties, the Parliamentary Group of the European People’s Party and the Parliamentary Group of the European Socialists.

17.       The Charter is an entirely voluntary measure which a recent report by the Trans-European Policy Studies Association has described as operating by “soft co-ordination, since its authors wish to bind the signatories politically without directly addressing the issue of legal sanctions. Instead, compliance with the Charter remains an issue of ongoing review and monitoring by the Charter’s Steering Committee as well as by the Charter’s constituent units, i.e. all member parties.” The Steering Committee is at present comprised of the board of the EUMC7 and MEPs, but this monitoring system is currently under review by an informal ad hoc group consisting of representatives of the European Parliament and the Parliamentary Assembly, with technical advice from the secretariats of ECRI and the EUMC. It has been proposed to relaunch the Charter for signature by parties across Europe, with a new administrative structure reflecting its pan-European application. If politicians and political parties are to know the limits of acceptable campaigning, this document represents a clear, solid text. (A copy of the Charter is appended to this report.)

18.       The Charter was explicitly supported by the European Conference Against Racism of October 2000. The section of the General Conclusions on the “Role of politicians and political parties” stated that “The European Conference… encourages political parties in Europe to take concrete steps to promote solidarity, tolerance and respect and to explain issues to the general public in such a way as to increase understanding and acceptance of difference”. Along with supporting adoption of the Charter, the Conclusions encouraged states “to include anti-racist policies in election programmes and to condemn racist exploitation of issues such as immigration and asylum for electoral purposes, ensuring that any candidate for elected office is committed to anti-racist policies [and] to refuse any support, explicit or implicit, to parties that advocate racist and xenophobic positions.”

19.       The European Parliament, in its Report on countering racism and xenophobia in the European Union8 has urged “all political parties to sign and observe the ‘Charter of European parties for a non-racist society’, to condemn intolerance and racist remarks or behaviour and refrain from choosing candidates and cooperating with political groups who subscribe to racist and xenophobic objectives.” The EP Committee on citizen’s freedoms and rights, justice and home affairs made almost identical comments with respect to candidate countries in its Opinion on Countering racism, xenophobia and anti-Semitism in the candidate countries9.

20.       Recommendation 1438 (2000) of the Parliamentary Assembly on the “Threat posed to democracy by extremist parties and movements in Europe” noted that “Currently the extremist movements and parties that pose one of the greatest threats to democracy in member states are those of the far right and, more generally, those that encourage intolerance, xenophobia and racism.” Although not referring to the Charter of European parties, this Recommendation made similar proposals:

21.       The accompanying report elaborates this idea as follows:

22.       Initiatives similar to the Charter have been developed and implemented in the United Kingdom and Ireland. In 1996 the UK Commission for Racial Equality produced “Principles for good practice and conduct for political campaigners” which noted the qualifications on the freedoms of political expression and association, which “must not be allowed to be abused in the competition for the popular vote by exploiting, causing or initiating prejudice on the grounds of race or nationality. There can be no place in our society for those who seek to incite, whether blatantly or covertly, racial hatred, prejudice or discrimination.” Electoral campaigners were asked to endorse basic principles and to “accept that action should be taken against candidates or party members who, knowingly, fail to comply with these principles. This could include their removal from any formal role on behalf of the party and a public disavowal by the party.” The leaders or senior representatives of the Conservative Party, Labour Party, Liberal Democratic Party, Scottish National Party and Plaid Cymru (Party of Wales) – the latter two being proponents of respective national independence – all signed. The principles were further developed for individual candidates into the “Election Compact 2001”. Again, the leadership of all five main parties signed the document, and very many but not all MPs or candidates: it was reported that 38% of Scots considered that racism in Scotland was likely to increase as a result of the failure of various high-profile politicians to sign the Compact10. There is also a mandatory Model Code of Conduct requiring local government representatives to “promote equality by not discriminating unlawfully against any person”. In Ireland the National Consultative Committee on Racism and Interculturalism is responsible for the “Anti-Racism Protocol for Political Parties in relation to the conduct of election campaigns.”

23.       It should also be noted that the “Declaration” of the former Austrian governing coalition11 stated that:

24.       The Rapporteur therefore strongly encourages parties of all political persuasions from throughout Europe to show their common commitment to the fight against racism by signing the Charter and effectively implementing its principles. The Parliamentary Assembly of the Council of Europe, as the democratic forum of a pan-European organisation built on respect for the non-discriminatory protection and promotion of human rights, is the perfect setting for such an event. At a time when the public is often disillusioned with politicians, with the “European project” and with the democratic process itself, here is an occasion on which democratically-elected politicians from across Europe can prove that they have not lost sight of their common principles nor forgotten the terrible lessons which gave birth to political integration and the international protection of human rights in Europe.

25.       The Rapporteur wishes to record that considerable work has recently been undertaken to prepare for future extension and promotion of the Charter. A succession of meetings have involved Graham Watson MEP (leader of the Liberal Democratic group of MEPs and former Chairman of the European Parliament Committee on Citizen’s Freedoms and Rights, Justice and Home Affairs) in collaboration with the Rapporteur and have received invaluable advice and support from the Chairs and secretariats of both ECRI and the EUMC. It is hoped that the Charter can be relaunched with a new permanent Steering Committee representing all political groups of the Parliamentary Assembly and the European Parliament, along with observers as appropriate, and with secretarial support based in the secretariats of the Assembly and the Parliament. This Steering Committee would coordinate the activities of national and European parties; publicise and promote the Charter; maintain the list of signatories and approve new applications; and encourage, support and follow initiatives relating to the Charter. A further suggestion is that the Steering Committee could then prepare annual reports to both the Assembly and the Parliament on the list of signatory parties, activities relating to the Charter undertaken at national and European levels, and new examples of good practice. A Steering Committee with genuine multi-party composition would ensure that the Charter could receive broad political support and that it could be promoted and monitored in a politically neutral, non-partisan manner.

ii.       Administrative sanctions against racism, xenophobia and intolerance in politics

26.       As mentioned above, the CERD requires the governments of states party to take certain actions against racist propaganda and organisations. Those set out are relatively extreme, however, when set against the potential lower end of the range of offending political conduct. The Charter discussed above is a voluntary measure without attached legal sanctions; beyond that, however, there comes a point where the response to politicians and parties propounding racism, xenophobia and intolerance must become punitive.

27.       In countries where political parties receive state funding, a first step would be to withhold those funds. Such measures are already in place in the Netherlands (under the 1999 law on subsidisation of political parties) and Belgium. In the latter case, ECRI’s second report “notes with interest the recent introduction of a provision which allows for the partial or total suppression of public financing for those political parties whose members are responsible for racist or discriminatory acts. These recent changes in the regulations… do not aim to proscribe anti-democratic parties, but to deprive them of direct public funding on grounds of human rights and fundamental freedoms. Offending political parties may continue to present lists and manifestos at election times. The object is to prevent them from using tax-payers’ money for their racist material.” The Belgian process involves complaints by a supervisory committee to the Conseil d’État when it is believed that a political party, through its constituent elements, candidates or elected representatives, shows manifest hostility, of which there are several indications, towards the rights guaranteed by the ECHR. The Conseil d’État may withhold all or part of the relevant grant, and there is a non-suspensive appeal to the Court of Cassation. ECRI states its encouragement for this provision, which “clearly represents a practical step forward in the financial penalisation of parties whose propaganda is openly racist and xenophobic.” ECRI has also suggested for Latvia “the partial or total suppression of public financing for those political parties whose members are responsible for racist or discriminatory acts.” ECRI’s general policy recommendation no.7 on national legislation to combat racism and racial discrimination proposes a legal obligation to suppress public financing of organisations, including political parties, which promote racism.

28.       In countries which do not provide state funding to political parties, an alternative (which is included in the Dutch legislation) would be to deny them access to in state-controlled media. Again this would show official disapproval and represent a denial of tax-funded resources for the dissemination of the propaganda of parties which have shown a propensity to racism, xenophobia and intolerance. Parties and politicians would be free, subject to the criminal law provisions implied by accession to the CERD, to stand as candidates, to campaign and to address the public, but would not have the benefit of state-funded platforms from which to propagate unacceptable views.

29.       Temporary suspension from holding public office would deny to individual politicians who have shown a proclivity to indulge in discriminatory discourse the privilege of such status from which to engage in such conduct. Such a measure would, of course, have to be accompanied by proper legal and procedural safeguards. It would send a message to electorates that their representatives were behaving in a manner incompatible with the basic principles of the institution in question, and of the state as a whole, whilst maintaining essential respect for the democratic choice. One would hope that, should it fail to engender the abandonment of discriminatory behaviour, such a sanction would inform and inspire an electorate against selecting such representatives in future. A further and related but more extreme measure would be permanent prohibition from public office: in circumstances where this was justified but the individual’s own party had failed to act, however, intervention at party level might be more appropriate.12

iii.       Criminal sanctions

30.       Amongst states which have ratified the CERD, penal law measures criminalising racist acts should already be in place, according to its Article 4. When lesser sanctions such as those described above have failed to induce respect for the principle of non-discrimination and the conduct in question is sufficiently serious, the criminal law has an appropriate and proper role to play in regulating political activity. Use of this measure has the support of ECRI, which in one of its country reports stresses, in the context of political discourse,

ECRI’s general policy recommendation no.7 also proposes specific criminal offences, including creation or leadership of support for or participation in a group which promotes racism, for both physical and legal persons and also covering incitement, attempt and participation.

31.       The Rapporteur feels that member States should be far more rigorous in resorting to the criminal justice system to punish and deter perpetrators of racist offences committed in political life. Rather than being allowed greater leeway, politicians and political parties - because of their profile, access to the media and role as opinion leaders - should if anything be subjected to closer scrutiny than other individuals and groups; at the very least there should be no double standards.

iv.       Prohibition and dissolution of political parties

32.       In the most extreme cases and where progressive application of the lesser measures described above have failed to induce respect for the law and for universal, non-discriminatory human rights, it may become necessary for the state to prohibit entirely the activities of racist, xenophobic and intolerant political parties. In the national context, this is clearly to be seen only as an exceptional measure.

33.       In Germany both the DVU and the Republikaner parties have been under investigation by the authorities with a view to being prohibited as anti-constitutional14. The government also began legal moves to ban the National Democratic Party, which has been accused of neo-Nazism and of provoking xenophobic sentiment15, the first time such steps had been taken in Germany since prohibition of the Communist Party in 1956. In the Netherlands the Centrum Partij ’86 was declared illegal by the Amsterdam district court in November 1998 on the basis that the main purpose of its activities was discrimination against ethnic minorities.

34.       In Russia – which has seen some of the most disturbing examples of racism in politics – Articles 13 and 29 of the Constitution, whilst protecting the freedoms of political association and of expression, respectively prohibit “The establishment of public associations, whose aims and actions are directed at… the incitement of… racial, national and religious strife” and “Propaganda or campaigning inciting… racial, national and religious strife. The propaganda of… racial, national, religious or language superiority is forbidden.” These provisions have been relied upon to withhold or revoke the registration as political parties of several racist organisations, and in 2002 were reinforced by a Law on Preventing Extremist Activities which explicitly prohibits the promotion of racial or religious hatred, the distribution of fascist writings, offensive Internet sites and use of the Nazi swastika. On 10 October 2002 an Omsk Oblast court, applying the new law, annulled the registration of a local chapter of Russian National Unity for inter alia the use of stylised Nazi symbols and incitement of racial conflict.16

35.       ECRI’s general policy recommendation no.7 proposes legal measures providing for the possibility of dissolving organisations (implicitly including political parties) which promote racism. It is emphasised that the decision to take such a measure should be made by courts, according to proper legal procedural safeguards.

36.       The European Commission for Democracy through Law (the “Venice Commission”) has produced “Guidelines on Prohibition and Dissolution of Political Parties and Analogous Measures” (document CDL-INF (2000) 1). After stating the right of political association, the Guidelines acknowledge that it may be limited, consistent with the relevant provisions of the ECHR. They note that “prohibition or dissolution of political parties as a particularly far-reaching measure should be used with utmost restraint”. Before invoking the appropriate legal procedures, responsible political bodies should carefully assess “whether the party really represents a danger to the free and democratic political order or to the rights of individuals and whether other, less radical measures could prevent the said danger”. Advocacy of peaceful constitutional change should not be seen as sufficient grounds, nor should a party be held responsible for the unauthorised individual behaviour of members. In conformity with the ECHR, the measure should only be used where effective lesser alternatives are unavailable and where the measure is proportionate with the aim pursued.

37.       Paragraph 3 of the Guidelines would seem to limit prohibition or dissolution to parties promoting violent upheaval, yet the ECHR foresees limitations to the right of association on wider grounds, including “protection of the rights of others.” This is reflected in Paragraph 5 of the Guidelines, however, which refer to “a danger to the free and democratic political order or to the rights of individuals.” This reference is further clarified in Paragraph 14 of the Explanatory Report, which states that “the competent bodies should have sufficient evidence that the political party in question is advocating violence (including such specific demonstrations of it such as racism, xenophobia and intolerance)” (emphasis added). Of course, the prohibition or dissolution of a political party on the basis of its racist, xenophobic or intolerant conduct representing a threat to the rights of others could only be justified in the most extreme circumstances. The Rapporteur supports application of the sanction in the wider circumstances of Paragraph 5 of the Guidelines, therefore, but would like to repeat that such action can only be suggested as a last resort.

38.       The European Court of Human Rights in the case of Refah Partisi v. Turkey has ruled on the compatibility with the ECHR of dissolution of a political party and temporarily barring its leaders from certain types of political activity.17 It is worth considering this judgment in some detail. To be permissible under Articles 10 and 11 of the ECHR, the respondent State had to show that its actions were necessary in a democratic society to achieve such legitimate aims as protection of national security and public safety, prevention of disorder or crime and protection of the rights an freedoms of others.18 Three sets of grounds had been relied upon by the Turkish Constitutional Court: (i) the party’s intention to set up a plurality of legal systems, leading to discrimination based on religious beliefs; (ii) its intention to apply sharia to the internal or external relations of the Muslim community within the context of this plurality; and (iii) references to the possibility of recourse to force as a political method.19

39.       The Court placed great emphasis on the central role of democracy in the ‘European public order’: “the maintenance and further realisation of human rights and fundamental freedoms are best ensured on the one hand by an effective political democracy and on the other by a common understanding and observance of human rights”.20 Political parties exercising their rights under Articles 10 and 11 of the ECHR play a “primordial role” in the democratic process, and furthermore are unique in being the only bodies which can come to power and implement their policy proposals.21

40.       The Court stated that political parties could only campaign for legal or constitutional changes on two conditions: “firstly, the means used to that end must be legal and democratic; secondly, the change proposed must itself be compatible with fundamental democratic principles… [A] political party whose leaders incite violence or put forward a policy which fails to respect democracy or which is aimed at the destruction of democracy and the flouting of the rights and freedoms recognised in a democracy cannot lay claim to the Convention’s protection against penalties imposed on those grounds... In view of the very clear link between the Convention and democracy, no-one must be authorised to rely on the Convention’s provisions in order to weaken or destroy the ideals and values of a democratic society.”22

41.       State intervention, however, could only take place in the most exceptional circumstances: “the exceptions set out in Article 11 are, where political parties are concerned, to be construed restrictively; only convincing and compelling reasons can justify restrictions on such parties’ freedom of association.”23 On the other hand, political parties were under “the duty to respect and safeguard the rights and freedoms guaranteed by the Convention and the obligation not to put forward a political programme in contradiction with the fundamental principles of democracy.”24

42.       Three questions were relevant to assessing whether the gravity of the risk posed by the party as a whole amounted to a “pressing social need”: (i) whether there was plausible evidence that a proven risk to democracy was sufficiently imminent; (ii) whether the acts and speeches of leaders and members were imputable to the party as a whole; and (iii) whether the acts and speeches imputable to the party “formed a whole which gave a clear picture of a model of society conceived and advocated by the party which was incompatible with the concept of a ‘democratic society’.”25

43.       On the second of these questions the Court found that the statements and actions of Chairmen and vice-chairmen of parties could be distinguished from those of ordinary members on account of such individuals’ official and emblematic status, and thus stood as expressions of the policies and intentions of the party as a whole. Furthermore the party’s position could be determined from the aggregate of the statements and actions of other elected representatives of the party, unless the party as a whole effectively and voluntarily distanced itself from them: indeed “Such acts and speeches were potentially more effective than abstract forms of words written in the party’s constitution and programme in achieving any unlawful ends.”26

44.       The Court found that a plurality of legal systems “would introduce into all legal relationships a distinction between individuals grounded on religion, would categorise everyone according to his religious beliefs and would allow him rights and freedoms not as an individual but according to his allegiance to a religious movement”. Furthermore it “would do away with the State’s role as the guarantor of individual rights and freedoms and the impartial organiser of the practice of the various beliefs and religions in a democratic society.” The result would be discrimination based on religion in the enjoyment of protected rights, thus infringing “one of the fundamental principles of democracy.”27

45.       As to imposition of sharia law for Muslims, the Court accepted that this policy was incompatible with democracy. “Turkey, like any other Contracting Party, may legitimately prevent the application within its jurisdiction of private-law rules of religious inspiration prejudicial to public order and the values of democracy for Convention purposes (such as rules permitting discrimination based on the gender of the parties concerned, as in polygamy and privileges for the male sex in matters of divorce and succession).”28 Finally, the Court found that leaders and members of Refah had referred to the use of force as a means of gaining and retaining political power, and the party’s leaders had not taken steps to distance themselves of the party from such positions.29 Accordingly, dissolution of the party, forfeiture of its assets and barring of its leaders from certain political activities were acts proportionate to the aim being pursued.30

46.       Assembly Resolution 1438 (2000) on the “Threat posed to democracy by extremist parties and movements in Europe” stated of such organisations that “Even if they do not advocate violence directly, they nevertheless create a climate that encourages its development… Legislation should be enacted – where it does not exist – to prohibit oral or written instigation to racism, anti-Semitism and xenophobia; freedom of expression cannot be accepted as an excuse for it.” Such considerations, particularly the indirect encouragement of violence, are tantamount to the third element of justification for dissolution found by the Court in the Refah Partisi case.

47.       The Court’s detailed analysis and restrictive interpretation of the limitation on the rights are exemplary and an approach to be recommended to national administrative and judicial systems faced with similar cases. Noting the Court’s overwhelming concern at the discriminatory potential of Refah’s policies, and referring also to the implications of violence and the creation of an atmosphere of hostility and fear implicit in racism, xenophobia and intolerance, the Rapporteur therefore concludes that policies of institutionalised discrimination proposed by a racist or xenophobic party could thus also in extremis justify dissolution or prohibition.31

D.       Conclusions

48.       As a starting point for addressing the problem of racist discourse in politics, the Rapporteur therefore proposes to recommend to political parties in all member States of the Council of Europe to sign the Charter of Political Parties for a Non-Racist Society, to fully and effectively implement its provisions and to co-operate in the establishment and thereafter the activities of its supervisory body.

49.       The Rapporteur also proposes the following recommendation to the governments of member States:

APPENDIX

Charter of European Parties for a non-racist Society

WE, THE DEMOCRATIC POLITICAL PARTIES OF EUROPE,

Having regard to the international human rights instruments signed and ratified by our European Union Member States, in particular to the United Nations Convention on the Elimination of All Forms of Racial Discrimination,

Having regard to article 1 of this Convention, which defines racial discrimination as "... any distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise on an equal footing of human rights and fundamental freedoms in the political, economic, social, cultural of any other field of public life ...",

Having regard to the preamble to the Single European Act in which the Member States of the European Community declare to work together to promote democracy on the basis of the fundamental rights recognised in the constitutions and laws of the Member States, in the European Convention for the Protection of Human Rights and Fundamental Freedoms and the European Social Charter,

Having regard to the Treaty of Amsterdam which enables the European Community to "... take appropriate action to combat discrimination based on ... racial or ethnic origin, religion or belief..." and facilitates police and judicial cooperation in the framework of the European Union in preventing and combating racism and xenophobia,

Recognising that the fundamental rights as enshrined in the international human rights instruments signed and ratified by the EU member states include the right to free and uninhibited political speech and debate,

Mindful that according to these same international human rights instruments one's political freedoms are not absolute in view of the equally fundamental right to be protected against racial discrimination and that therefore political freedoms cannot be allowed to be abused to exploit, cause or initiate prejudice on the grounds of race, colour, ethnic origin or nationality or for the purpose of seeking to gain the sympathy of the electorate for prejudice on such grounds,

Being aware of the special tasks and responsibilities of political parties as actors in a democratic political process, defending, articulating and bearing witness to the basic principles of a democratic society; providing a platform for discussion on issues where there may be differences of opinion, integrating different views into the process of political decision making, thereby enabling society to solve conflicts of interest and of opinion between various social groups through dialogue rather than through opting out and conflict; selecting representatives at various levels for active participation in the political process,

Convinced that free use of one's political rights can and must go hand in hand with firmly upholding the principle of non-discrimination and is inherent in the democratic process itself,

Being convinced furthermore that representation of ethnic minority groups in the political process is properly an integral part of the democratic process, since political parties are or should strive to be a reflection of society,

COMMIT OURSELVES TO ADHERE TO THE FOLLOWING SPECIFIC PRINCIPLES OF GOOD PRACTICE:

And further pledge to take appropriate action to ensure that all persons who work for or associate themselves in any way with any of our election campaigns or other activities will be aware of and at all times act in accordance with the above principles.

Utrecht, 28 February 1998

Reporting committee: Committee on Legal Affairs and Human Rights

Reference to committee: Order 511 (1995)

Draft resolution adopted unanimously by the Committee on 1 September 2003.

Members of the Committee: Mr Lintner (Chairperson), Mr Marty, Mr Jaskiernia, Mr Jurgens (Vice-Chairpersons), Mrs Ahlqvist, Mr Akçam, Mr Alibeyli (alternate: Mr R. Huseynov), Mrs Arifi, Mr Arzilli, Mr Barquero Vázquez, Mr Berisha, Mr Bindig, Mr Brecj, Mr Bruce, Mr Chaklein, Mrs Christmas-Møller (alternate: Mrs Auken), Mr Cilevics, Mr Clerfayt, Mr Contestabile, Mr Daly, Mr Davis, Mr Dees, Mr Dimas, Mrs Domingues, Mr Engeset, Mrs Err, Mr Fedorov, Mr Fico, Mrs Frimansdóttir, Mr Frunda, Mr Galchenko, Mr Guardans, Mr Gündüz, Mrs Hajiyeva, Mrs Hakl, Mr Holovaty (alternate: Mr Shybko), Mr Ivanov, Mr Kalezić, Mr Kelber (alternate: Mrs Hoffmann), Mr Kelemen, Mr Kontogiannopoulos, Mr S. Kovalev, Mr Kroll, Mr Kroupa, Mr Kucheida, Mrs Leutheusser-Schnarrenberger, Mr Livaneli, Mr Malins, Mr Manzella, Mr Martins, Mr Mas Torres, Mr Masson, Mr McNamara, Mrs Nabholz-Haidegger, Mr Nachbar, Mr Olteanu, Mrs Pasternak, Mr Pehrson, Mr Pellicini (alternate: Mr Budin), Mr Pentchev, Mr Piscitello, Mr Poroshenko, Mrs Postoica, Mr Pourgourides, Mr Prica, Mr Pullicino Orlando, Mr Raguz, Mr Ransdorf, Mr Rochebloine, Mr Rustamyan, Mr Skrabalo, Mr Solé Tura (alternate: Mrs Lopez Gonzalez), Mr Spindelegger, Mr Stankevic, Mr Stoica, Mr Symonenko, Mr Tabajdi, Mr Takkula, Mrs Tevdoradze, Mr Toshev, Mr Vanoost, Mrs Wohlwend

N.B. The names of those members who were present at the meeting are printed in italics.

Secretaries to the Committee: Ms Coin, Mr Schirmer, Mr Ćupina, Mr Milner


1 Document CDL-INF (2000) 1

2 See www.coe.int/T/E/human_rights/Ecri/1-ECRI/

3 See www.eumc.eu.int

4 ECHR and Protocol No. 12 data as of 20/6/03; CERD data as of 2/5/03

5 European Parliament document A5-0049/2000

6 ECRI, being devoted to combating “racism, xenophobia, anti-Semitism and intolerance”, employs such a broad, teleological definition of racism so as to offer as complete and effective protection as possible

7 Article 8 of the Regulation establishing the EUMC provides for a Council of Europe appointee (most recently M. Voyame of ECRI in September 2002) to sit on its Management Board, and there has been a formal co-operation agreement between the EUMC and ECRI since 10/2/99

8 European Parliament document A5-0049/2000

9 European Parliament document A5-0055/2000

10 The Sunday Mail, 6/5/01

11 Which consisted of the People’s Party and the Freedom Party

12 ECRI’s general policy recommendation no.7 proposes deprivation of certain civil and political rights for physical persons and various ancillary or alternative sanctions against legal persons as criminal law sanctions for a certain number of (racist) offences.

13 See also ECRI general policy recommendation no. 1: Combating racism, xenophobia and intolerance.

14 Country Studies, Federal Research Division, Library of Congress, ed. Eric Solsten, August 1995

15 These moves failed when it emerged that several leading members of the party had also acted as agents of domestic intelligence service: see The Guardian, 29/1/02, 8/5/02 & 19/3/03.

16 RFE/RL Newsline, 11/10/02

17 Grand Chamber judgment of 13/2/03

18 Judgment paragraph 67

19 Paragraph 116

20 Paragraph 86

21 Paragraph 87

22 Paragraphs 98 & 99

23 Paragraph 100

24 Paragraph 103

25 Paragraph 104

26 Paragraphs 113, 114 & 115

27 Paragraph 119

28 Paragraph 128

29 Paragraphs 130 & 131

30 Paragraphs 132, 133 & 134

31 The Rapporteur takes note of Resolution 1308 (2002) on restrictions on political parties in the Council of Europe member states, in which the Assembly supported the Venice Commission Guidelines but with reference to the Chamber judgment of the Court rather than to the subsequent one of the Grand Chamber.