Up-301/96

Reference no.:
Up-301/96
Objavljeno:
Official Gazette RS, No. 13/98 and OdlUS VII, 98 | 15.01.1998
ECLI:
ECLI:SI:USRS:1998:Up.301.96
Act:
Supreme Court Judgment No. U-1262/95, dated 12 September 1996, and Decision of the Ministry of the Interior No. 0001-2/1-S-28/533-95, dated 17 July 1995,

The Political Parties Act (Official Gazette RS, No. 62/94, the fourth paragraph of Article 3
Operative provisions:
Supreme Court Judgment No. U-1262/95, dated 12 September 1996, and Decision of the Ministry of the Interior No. 0001-2/1-S-28/533-95, dated 17 July 1995, are annulled.
 
The fourth paragraph of Article 3 of the Political Parties Act (Official Gazette RS, No. 62/94) is abrogated.
Abstract:
Only the Constitutional Court may decide by a two-thirds majority on the prohibition of a political party (on its expulsion from the register of political parties), if it finds that the acts and operation of the political party contradict the Constitution so severely that merely the abrogation of its unconstitutional act or the prohibition of its unconstitutional operation do not suffice, but that the party must be excluded from the political sphere.

To refuse the entry of a political party into the register due to its alleged unconstitutional acts or allegedly intended unconstitutional operation would mean to prohibit a political party from operating. If an administrative agency establishes that an act of a political party is unconstitutional, it must refuse its entry into the register. The Constitutional Court may first only abrogate the unconstitutional act, and abstain from ordering the expulsion of a party from the register. The Court may also prohibit a specific activity of a political party, without ordering at the same time its expulsion from the register.

According to the Political Parties Act (ZPolS), a political party is an association of individuals created for the realization of their political goals. It is left to the founders of an association to define their association as a political party. Pursuant to the Act, the registration of a political party is however mandatory. By being registered, a political party becomes a legal entity, and it must not operate as a political party until it is registered (Art. 3, Para. 1 and Art. 12, Para. 3 of ZPolS). This means that a political party is actually created by the act of establishment, yet until its registration, it cannot operate as such except in cases when it initiates proceedings and starts activities connected with the registration (including claiming standing to file legal remedies if its registration is dismissed). The registrar issues an administrative decision on the entry of a political party into the register (Art. 12, Para. 1 and Art. 13 of ZPolS). By this decision, the registrar may only establish whether a political party fulfills the procedural conditions required by the Act.

In contrast, concerning the fulfillment of substantive conditions, i.e. the consistency of the acts and operation of a political party with the Constitution, only the Constitutional Court may decide.

In the case at hand, the registrar had decided on the constitutionality of the political party's program as a condition required for entry into the register, and applied the statutory provision which the Constitutional Court abrogated as unconstitutional. That is why the challenged individual acts were abrogated ab initio. The registrar will have to reconsider the complainant's request to be registered as a political party, without applying the abrogated Art. 3, Para. 4 of ZPolS. It will only be allowed to examine the fulfillment of procedural conditions prescribed by the statute, and if it finds that these are fulfilled it will have to enter the party into the register.
Password:
Principle of linking issues, constitutional complaint, extension of the complaint upon the discretion of the Constitutional Court (ex offo).
Principle of equality before the law.
Realization and restriction of rights.
Right to assembly and association.
Prohibition against incitement to discrimination and intolerance and prohibition against incitement to violence and war.
Decision on the unconstitutionality of acts and operation of political parties.
Concurring opinion of a Constitutional Court justice.
Legal basis:
Constitution, Arts. 14, 15, 42, 63, 160
Constitutional Court Act (ZUstS), Art. 23, 59, 68
Document in PDF:
The full text:
Up-301/96
15 January 1998
 
 
DECISION
 
At a session held on 15 January 1998 in proceedings to decide upon the constitutional complaint of IDZ-DDI [Istrski Demokratski Zbor – Dieta Democratica Istriana], after a public hearing held on 12 January 1998, the Constitutional Court
 
 
decided as follows:
 
1. Supreme Court Judgment No. U-1262/95, dated 12 September 1996, and Decision of the Ministry of the Interior No. 0001-2/1-S-28/533-95, dated 17 July 1995, are annulled.
 
2. The fourth paragraph of Article 3 of the Political Parties Act (Official Gazette RS, No. 62/94) is abrogated.
 
 
Reasoning
 
A
 
1. By the Decision dated 17 July 1995, the Ministry of the Interior (hereinafter referred to as the Ministry) rejected the complainant's application for registration in the register of political parties. By its Judgment dated 12 September 1996, the Supreme Court rejected the complainant's lawsuit in the proceedings for the judicial review of administrative acts. The complainant believes that the challenged decision violates its right to equality before the law, its right of association, and its acquired rights. The complainant states that it had already been entered into the register of political organisations before the Political Parties Act was adopted. According to the complainant, the finding of the Supreme Court and the Ministry that a part of the party's programme was unconstitutional is unacceptable. The complainant, as a political party, is seeking redress for injustices which were inflicted upon those individuals who lived on the territory of the Slovene part of Istria during the post-war period. The complainant has fought for the recognition of the continuity of Slovene citizenship of these persons, the return of their property, and the recognition of all other rights that derive from their civic status, i.e. including the right of domicile. In particular, the complainant asserts that its right to equality before the law has been violated because it was prevented from being registered in the register of political parties despite having already been registered as a political organisation in the same way as other parties that, in contrast, did not have any problems with registration. According to the complainant, the decisions of the Supreme Court and the Ministry resulted from an arbitrary interpretation of part of the party's programme and the completely unsubstantiated designation of this programme as unconstitutional. The complainant argues that the right of association has been violated because the party’s completely legitimate programme, i.e. the fight to redress injustices suffered by persons who lived on the territory of the Slovene part of Istria, is being misinterpreted to its detriment, thereby preventing a group of people from organising themselves in an association in order to seek redress of injustices. In its opinion, the acquired rights of the complainant have been violated by denying it, as a political organisation, the right to continuity and the right to exist as a political group.
 
2. In its Decision, the registration authority (the Ministry) found that the complainant’s political programme, according to which “the party will endeavour to secure immigration priority for those persons who have left Istria as political or economic emigrants, and their descendants and relatives ...”, is contrary to the provisions of Article 12 of the International Covenant on Civil and Political Rights and Article 32 of the Constitution regarding freedom of movement and the freedom to choose one's place of residence. Furthermore, it was established in the Decision that the provision of Article 14 of the Constitution on equality before the law irrespective of personal circumstances had also been violated. Therefore, on the basis of Articles 13 and 33 of the Political Parties Act (Official Gazette RS, No. 62/94 – hereinafter referred to as the PPA), the registration authority rejected the complainant's application for registration in the register of political parties on the grounds that it had not fulfilled the condition of the fourth paragraph of Article 3 of the PPA. In the reasoning of the Decision, the party's name (i.e. simply the translation of the name of a foreign party) was also found to be inconsistent with the law, and that amendments to the party's Statute were not adopted by the authorised body (i.e. not by the party's assembly or its council but, in fact, by its extended executive committee). These statements were, however, written as findings in relation to the party's complaints against an alleged delay in the proceedings, and not as justification for refusing the application for the registration.
 
3. In the challenged Judgment, the Supreme Court stated that the principal condition for registering a party in the register is determined by the fourth paragraph of Article 3 of the PPA. If this condition is not fulfilled, the registration authority must refuse the application for the registration. Moreover, according to the Supreme Court, the programme objective that accords immigration priority to the former inhabitants of a specific part of the country (Istria), or their descendants and relatives, is unconstitutional because it placed these persons in an unequal (i.e. privileged) position when compared to persons who had emigrated from other areas of Slovenia for the same (political or economic) reasons. However, Article 14 of the Constitution does not permit such different treatment. In the opinion of the Supreme Court, it is irrelevant to the refusal of the application for registration in the register of political parties whether such programme objective is also contrary to any other constitutional right, or whether, in addition to a party's intention to be engaged in unconstitutional activities, there exists any additional statutory restriction on registering the political party in the register.
 
4. By the Order dated 2 December 1996, the panel of the Constitutional Court accepted the constitutional complaint for consideration and, upon the complainant's petition, issued a temporary injunction according to which no legal consequences resulting from the final decision on the refusal of registration should arise for the complainant until a final decision is adopted.
 
5. In the proceedings to decide on the constitutional complaint, acting on the basis of the second paragraph of Article 59 in conjunction with Article 30 of the Constitutional Court Act (Official Gazette RS, No. 15/94 – hereinafter referred to as the CCA), the Constitutional Court initiated proceedings for a review of the constitutionality of the provisions of the PPA, on which the challenged Judgment is based.
 
6. Regarding the disputed statutory regulation, the Secretariat of the National Assembly for Legislation and Legal Matters explains that the relevant subject matter is regulated by the PPA and the CCA. The former determines the rules that apply in the establishment and registration procedures, and the latter regulates the manner in which the unconstitutionality of the acts and activities of political parties is determined after a party has already begun to operate as such. The Secretariat deems that Article 160 of the Constitution and Article 68 of the CCA do not grant the Constitutional Court direct power to decide in the procedure for establishing a political party before the party is registered. Such was the reason for the refusal of the initial proposal for a regulation, according to which the registration authority had the authority to suspend a registration procedure and request a Constitutional Court decision whenever it deemed that the submitted acts of a political party were unconstitutional. The Secretariat further deems that the registration procedure includes regular procedural rules for exercising rights or freedoms and, at the same time, respects the judicial protection of human rights and freedoms and the right to a legal remedy. In the Secretariat’s opinion, the provision of the fourth paragraph of Article 3 of the PPA is somewhat imprecise in the part that reads as follows: “or it nevertheless intends to operate unconstitutionally, or has already been operating in such way”. However, it is allegedly only possible to understand this provision in the context of the whole text, and, in the opinion of the Secretariat, it is therefore not unconstitutional.
 
 
B–I
 
7. Owing to the painful historical experience endured by Slovene society during the former totalitarian system, the historical mission of the Slovene Constitution also included its fundamental aim – to prevent any attempt to restore a totalitarian regime. The right of free association constitutes one of the fundamental constitutional values that must be afforded particular respect and consistently implemented. This is even more important due to the fact that, after assuming power in 1945, the communist regime fictitiously assured freedom of association, including the establishment of political parties and their freedom to pursue their activities, on the constitutional level and also through statutory regulation; however, in reality, the communist authorities completely suppressed the activities of opposition parties through repressive measures, thereby excluding them from the political process. In its Decision OdlUS I, 102, the Constitutional Court already established that the then government had prevented political parties from carrying out their activities after the war, and that, contrary to the legal order in force at that time, it had removed political opponents using pseudo-legal proceedings and distorted legal remedies. The prevention and suppression of the opposition was not only inconsistent with the Constitution in force at that time but also explicitly unlawful, and resulted in a permanent and severe violation of human rights and fundamental freedoms.
 
8. The Communist Party used the political system to deal with the bourgeois opposition and subordinate its wartime political allies. The party in power used judicial proceedings against the potential opposition. The main purpose of politically motivated proceedings was to deal with class enemies and confiscate their property. These politically motivated judicial proceedings shared many of the characteristics of show trials instigated by Stalin. Politicians viewed the courts as their “battle agency” who fought the class enemy (Zdenko Čepič et al., Ključne značilnosti slovenske politike v letih 1929 do 1955: Znanstveno poročilo [Basic Characteristics of Slovene Politics between 1929 and 1955: A Scientific Report], Inštitut za novejšo zgodovino, Ljubljana 1995, p. 89). By March 1945, the Politburo of the Central Committee of the Communist Party of Slovenia had already decided (J. Vodušek Starič, Prevzem oblasti [Assuming the Power], pp. 170, 331) that it would not allow the restoration of political parties in Slovenia but would instead preserve the unity of the Liberation Front (unlike, for example, in Serbia where Grol's Democratic Party, the Radicals, Jovanović's Peasant Party, etc., operated). The OZNA [the Department of National Security] monitored the relationships between these politicians and the leaders of parties abroad (J. Vodušek Starič, Prevzem oblasti, pp. 164–169). A series of events, such as the fate of the Tito-Šubašić Agreement, electoral manipulation (manipulation of electoral registers), the resignation first of the deputy, M. Grola, and then the Minister of Foreign Affairs, I. Šubašić (Ibidem, pp. 331, 351, 353), as well as the presence of OZNA at polling stations (Ibidem, p. 364), all indicated that there was no future for political parties in Yugoslavia. Nevertheless, attempts were made in Ljubljana at that time to increase interparty connections and contacts with the Yugoslav opposition, with OZNA monitoring events closely – it designated smaller opposition groups by a common name: the “reaction” (Ibidem, pp. 351–352). In order to combat the internal enemy, OZNA created a special service – Section II, which included the notorious Subsection 2, which was responsible for the fight against the interior reaction that also included the so-called remnants of bourgeois political parties (J. Pučnik, Iz arhivov slovenske politične policije [From the Archives of Slovene Political Police], Veda, Ljubljana 1996).[1] The post-war Yugoslav authorities strived to prevent domestic Yugoslav and Slovene politicians from establishing contact with politicians who emigrated in 1945 or remained abroad.[2]
 
9. Immediately after the end of the Second World War, the Slovene political elite demanded that the UDV [the State Security Administration] carry out detailed monitoring of the activities of all political parties in Slovenia. After a first wave of brutal methods, the UDV began to apply significantly subtler methods: multiple interrogations, psychological pressure, threats of court action, blackmail with pressure on family members, professional colleagues, or friends, tailing, and, in particular, the denunciation among people belonging to the same group, ideology, or party, which was referred to as differentiation (J. Vodušek Starič, Prevzem oblasti po vojni in vloga OZNE - obračun [Assuming the Power after the War and the Role of the OZNA - Settlement of Accounts], in: Slovenija v letu 1945, Zbornik referatov [Slovenia in 1945, Collection of Papers], Zveza zgodovinskih društev Slovenije, 1996, pp. 93–110). In this regard, the UDV was influencing or directing activities within specific groups and, at the same time, informing its superiors and leading political fora (the Central Committee of the Slovene Communist Party, the Politburo, and the Supreme Committee of the Liberation Front) of the activities and atmosphere in the former political groups, church circles, ministries, etc. (Ibidem, p. 96).
 
10. The UDBA[*] [the State Security Administration] and the Slovene Communist Party perceived Christian Socialism as a threat. In 1949 the UDBA carried out two reports on Christian Socialism, and began to closely monitor the activities of individuals from the Christian-Socialist group (Ibidem, p. 100). They had been gathering information on Kocbek from 1946 onwards (Ibidem, p. 101). In 1951, the Slovene Party leadership decided to “eliminate” the Faculty of Theology from the university. On 20 January 1952, they poured gasoline on Ljubljana's Archbishop, Anton Vovk, and set fire to him when he was on his way to Novo Mesto (Ibidem, p. 107). At the Party's plenary meeting, in 1952, the then Minister of the Interior and a member of the Politburo, Boris Kraigher, considered lawyers, various writers, artists, and scientists, who were considered to be Catholic (the Academy of Sciences, the University, Institutes, in particular those with a humanistic orientation), and “the espionage centre of our predominantly bourgeois emigrants in Trieste and Klagenfurt” to constitute reactionary circles, i.e. those “who represent, in my opinion, the most dangerous attempt to organise activities directed against us” (Ibidem, p. 108). On 19 July 1952, the Slovene UDV prepared a plan of proceedings to be initiated against Dr Jakob Šolar, a member of the Slovene Academy of Sciences and Arts. They accused him of treason (Ibidem, p. 110). The arrest was thoroughly prepared by the Committee for the Remnants of Bourgeois Parties (RBP) of the Slovene UDV. On 24 November 1952, the UDBA first arrested Dr Janez Fabijan and then, on 11 December 1952, Dr Jakob Šolar, for their alleged intention to destroy the state and the social order of the Federal People's Republic of Yugoslavia (FPRY) (Ibidem, p. 111). The court sentenced Dr Šolar to ten years and Dr Fabijan to six years in prison. During that time, Edvard Kocbek was relieved of all his political offices (Ibidem, p. 113). This concluded the fight against the Christian Socialists as a political group.
 
 
B–II
 
11. The right of assembly and association referred to in Article 42 of the Constitution is a fundamental human right that allows for the free expression of opinion, the formation of political will, and self-organisation. The right of association, which also encompasses the right to establish political parties and that they carry out their activities, is the starting-point of a multiparty political system, without which a free democratic society cannot exist.
 
12. A free democratic society is a constitutional system, which, by excluding any violence and arbitrariness, represents the social order of a state governed by the rule of law based on the self-determination of its people according to the will of the majority, freedom, and equality. In addition, at least the following key predispositions have to be included among the underlying principles of such an order: respect for human rights as determined by the Constitution, an individual's right to life, the inviolability of personality rights, the sovereignty of the people, the separation of powers, the accountability of the Government and the lawfulness of the activities of the executive branch of power, the independence of the courts, a multiparty political system, and equal opportunities for all political parties, including the right to establish an opposition and participate in it according to the Constitution. These principles were expressed in point V of the Declaration of Independence, which was adopted by the first democratic parliament on 25 June 1991 (Official Gazette RS-I, No. 1/91).
 
13. A system of legally determined rules of conduct established on the basis of the aforementioned principles during the course of a long period of historical development in accordance with the democratic heritage of the European legal civilisation ensures the functioning of the free democratic system. Political freedom of opinion, expression, the formation of political will and association, which is guaranteed in various ways, leads to a multiparty system and an organised political opposition. Free elections held at relatively short intervals guarantee that people have control over the use of power by the political majority. The government is accountable to the parliament. The implementation of the principle of the separation of powers, which ensures that the different branches of power check and balance each other, prevents an excessive concentration of power in one place within the state. Every citizen is provided a sphere of freedom of conduct through the recognition of fundamental human rights and extensive protection ensured by independent courts. The protection of the entire system is above all entrusted to the Constitutional Court.
 
14. As a free social order may also be jeopardised due to its openness and the fact that it guarantees various types of rights, freedoms, and influences, its protection against forces that may seriously threaten its fundamental values, fundamental order, and rules of conduct is justified. A constitutional or statutory limitation of the right to free association constitutes a very sensitive interference with fundamental constitutional freedoms, which may only be justified through the protection of the free democratic society as a whole. In this respect, a statute cannot go beyond the limitations determined by the third paragraph of Article 42 of the Constitution – i.e. for reasons of national security (if an association is acting against the constitutional order, the state's territorial integrity, and sovereignty) or public safety – or if such is necessary for the protection of the rights of others (the third paragraph of Article 15 of the Constitution).
 
15. The essential element of every association is a common purpose reflected in the fundamental constitutive acts of the association: a statute or programme. The constitutionality of the association’s activities is assessed according to the decisions and actions of its bodies or members. When defining the concept of “unconstitutional activity” tolerance is required. It is not sufficient for an association to reject, contradict, or not recognise the constitutional order. Active operation with the intention of destroying (eliminating) the existing constitutional order is required. Mere criticism, regardless of whether it is real and substantiated, is not enough. A serious threat to the underlying principles of a free democratic society has to be established.
 
16. Owing to the special significance of political parties for the existence of a free democratic state, it is not possible to exclude them from political life as long as they employ legal means to fight specific regulations or even specific constitutional institutions. Such exclusion is only permitted if these parties intend to undermine the fundamental values of a free democratic constitutional state.
 
17. Political parties have to be guaranteed freedom of establishment, with regard to their programmes, the pursuit of their activities, and the exertion of influence on the formation of political will. The state has to guarantee the effective implementation of these predispositions; in other respects, however, it must abstain from interfering with or influencing the sphere of political parties.
 
18. Compared to other associations, political parties have a special position because only the Constitutional Court may decide that their activities are unconstitutional (the tenth indent of the first paragraph of Article 160 of the Constitution). This so-called parties’ privilege protects the existence of a party until the Constitutional Court establishes the unconstitutionality of its acts or activities. By a decision the Constitutional Court abrogates the unconstitutional act of a political party or prohibits its unconstitutional activities (the third paragraph of Article 68 of the CCA). The establishment of the unconstitutionality of acts or activities does not, however, simultaneously entail that the party must be removed from the register, i.e. prohibited from operating. Pursuant to the fourth paragraph of Article 68 of the CCA, the Constitutional Court must decide on that issue separately by a two-thirds majority vote of all judges. The first indent of the first paragraph of Article 17 of the PPA may therefore only be interpreted in such a way that a mere decision on the unconstitutionality of an act of a political party, without a special order of removal from the register, cannot constitute the basis for removing a party from the register.
 
19. Therefore, there is no doubt that only the Constitutional Court can decide on the prohibition of the functioning of a political party (i.e. its removal from the register), by a two-thirds majority vote of all the judges, provided it finds that the acts or activities of the party contradict the Constitution so severely that the mere abrogation of the unconstitutional act or the prohibition of the unconstitutional activity does not suffice, and it is necessary to eliminate the party from political life.
 
20. It is evident from the legislative procedure and the statements made by the National Assembly representative at the public hearing that the intention underlying the inclusion of the fourth paragraph of Article 3 in the PPA was primarily to prohibit the registration of political parties whose acts or activities were unconstitutional. In this way, the Act determined a substantive condition for the registration of a party, the fulfilment of which is decided on by administrative authorities.
 
21. An affected party has the possibility to initiate proceedings for judicial review of administrative acts and to lodge a constitutional complaint against a registration authority's decision on the refusal of the party's registration (as the petitioner did in the case at issue). In constitutional complaint proceedings, if paragraph 4 of Article 3 of the PPA were still applicable, the Constitutional Court could also have considered whether the acts and activities of the association were really unconstitutional. However, the question that was raised is whether it is constitutionally admissible for the administrative authority to decide on the fulfilment of such substantive constitutional conditions for the establishment of a political party, as such could entail that the establishment and activities of a party were unacceptably dependent on the prior authorisation of an administrative authority.
 
22. A registered party cannot be impeded in its political activities until the Constitutional Court, which is the only authority that can prohibit a party’s activities, reaches a decision on such. As a result, administrative interference with the existence of a political party is excluded, regardless of how hostile its actions are with regard to a free democratic constitutional order. In this way, the activities of each party are allowed to continue until their unconstitutionality is established in order to guarantee the highest possible degree of political freedom. A party still operates within the framework of the constitutionally admissible tolerance, even if it propagates aims that are hostile (contrary) to the Constitution in a constitutionally admissible manner.
 
23. The refusal to register a party due to the alleged unconstitutionality of its acts or its allegedly intended unconstitutional activities is, in terms of its content, the same as the prohibition of the functioning of the party. If an administrative authority establishes the unconstitutionality of a party's act, it must refuse its registration. However, the Constitutional Court has the possibility to initially only abrogate a specific unconstitutional act without also ordering, at the same time, the removal of the party from the register. Furthermore, the Constitutional Court may prohibit a specific activity of the party without ordering, at the same time, its removal from the register.
 
24. According to the PPA, a political party is an association of individuals organised with the intention of realising their political aims. It is left to the founders of an association to define it as a political party. Yet the PPA prescribes the mandatory registration of political parties. In this way, a political party becomes a legal entity, and only from the day of its registration may it commence operation as a political party (the first paragraph of Article 3 and the third paragraph of Article 12 of the PPA). This entails that a political party is created on the day of its establishment but that it cannot operate as such until its registration, except in proceedings and activities intended for its registration (including its active standing to lodge legal remedies against a decision to refuse registration). The registration authority issues an administrative decision on the registration of a party in the register (the first paragraph of Article 12 and Article 13 of the PPA). In such a decision, the registration authority may merely establish whether a political party has met the formal conditions prescribed by statute; however, only the Constitutional Court may decide on the fulfilment of the substantive conditions, i.e. on the conformity of the acts and activities of a political party with the Constitution.
 
25. As a political party comes into existence before its registration, the Constitutional Court may, pursuant to Article 68 of the CCA, also decide on the unconstitutionality of its acts during the period between its establishment and its registration, provided a petition or request for such a review is submitted (e.g. a request by the Government as an applicant who may submit a request pursuant to Article 23 of the CCA). If the party had already been entered into the register by the time the Constitutional Court decision was reached, the Constitutional Court could also have ordered its removal from the register on the basis of the fourth paragraph of Article 68 of the CCA; however, only if it had found that the party's acts exceed the limits of constitutionally admissible tolerance (particularly in the sense of Paragraphs 14, 15 and 22) to the extent that the mere abrogation of the unconstitutional parts of these acts would not suffice, and that the party has to be eliminated immediately from the legal order. If by the time the Constitutional Court reached a decision the party had not yet been registered, in such an extreme case, the Constitutional Court could have applied the fourth paragraph of Article 68 of the CCA mutatis mutandis to prohibit its registration, instead of ordering its removal from the register. Certainly, such extreme cases in which the contents of a party's acts would require the immediate use of the strictest measure possible are less probable. In all other cases, the Constitutional Court has the possibility, pursuant to the third paragraph of Article 68 of the CCA, to merely abrogate a party's unconstitutional acts or their parts, and to prohibit the party, perhaps even in advance, from operating in such a direction as indicated by these acts, especially if the party or its members had already unlawfully begun such activities before its registration, when their party activities were still prohibited.
 
26. In the case at issue, the registration authority had decided on the question of the constitutionality of the programme as a condition for registration on the basis of the statutory provision that the Constitutional Court abrogated as unconstitutional. Therefore, the challenged individual acts had to be annulled. The registration authority will have to decide again on the application of the complainant for registration in the register of political parties, without taking into account the abrogated fourth paragraph of Article 3 of the PPA. It will be allowed to review only the fulfilment of the formal statutory conditions and, if it finds that these are fulfilled, it will have to register the party.
 
27. It was necessary to abrogate the fourth paragraph Article 3 of the PPA in the part where this statutory provision refers to the administrative registration of a party, on the grounds that have been explained in the previous paragraphs of this reasoning. If only the words “must not be registered (either)” were abrogated in this statutory provision, the prohibition would still apply to the activities of parties which “advocate violence, the subversion of the constitutional order, or request the separation of some part of Slovenia, or intend to operate or have already been operating unconstitutionally.” This statutory prohibition had to be abrogated because the first part thereof was not consistent with the hierarchy of values as established by the Constitution and the second part thereof was not sufficiently clear and could, with such a sensitive topic, easily lead to an erroneous understanding of which political parties' activities are really prohibited, which political parties' activities may be prohibited by the Constitutional Court with a decision pursuant to Article 68 of the CCA, or which activities would cause the Constitutional Court to order the removal of a party from the register. More specifically, a party, as has already been stated above in Paragraph 22, “operates within the framework of the constitutionally admissible tolerance, even if it propagates aims that are hostile (contrary) to the Constitution in a constitutional manner.” Article 63 of the Constitution is the only constitutional provision that explicitly declares incitement to national, racial, religious, or other discrimination, and the inflaming of national, racial, religious, or other hatred or intolerance, and incitement to violence and war, as unconstitutional; however the aforementioned statutory provision has chosen to only include “the propagation of violence” in its wording and, instead of the other unconstitutional activities determined by Article 63 of the Constitution, refers to the propagation of the subversion of the constitutional order and the request for the secession of part of Slovenia, and therefore the first part of the statutory provision is inconsistent with the constitutional hierarchy of values. The issue of whether, on the basis of the aforementioned criteria, some other political party activity of this kind could be and should be prohibited as unconstitutional or whether the removal of the political party from the register should be ordered due to such activity, is to be, according to the Constitution, decided on by the Constitutional Court in concrete cases. For these reasons, the fourth paragraph of Article 3 of the PPA had to be abrogated in its entirety.
 
28. In the opinion of the Supreme Court the part of the IDZ programme that reads as follows: “The party will endeavour to secure immigration priority to those persons who had left Istria as political or economic emigrants, as well as their descendants and relatives” is contrary to Article 14 of the Constitution, because it places some individuals (i.e. political and economic emigrants from the territory of Istria) in an unequal, i.e. privileged, position when compared to persons who had emigrated from other parts of Slovenia for political or economic reasons.
 
29. The prohibition of the functioning of the complainant as a political party is therefore based on the assessment that a single sentence from its programme declaration was unconstitutional. Such a decision is unacceptable from the start. If such a programme provision were found to be unconstitutional, the Constitutional Court could also merely abrogate it, without ordering, at the same time, the removal of the party from the register. The review of the unconstitutionality of the acts and activities of the complainant as a political party is not a subject of review in these constitutional complaint proceedings; however, it could be the subject of review in the proceedings pursuant to Article 68 of the CCA, if and when they are initiated.
 
 
C
 
30. The Constitutional Court adopted this Decision on the basis of Article 59 of the CCA, composed of: Dr Lovro Šturm, President, and Judges Dr Miroslava Geč-Korošec, Dr Peter Jambrek, Dr Tone Jerovšek, Mag. Matevž Krivic, Mag. Janez Snoj, Franc Testen, Dr Lojze Ude, and Dr Boštjan M. Zupančič. The decision was reached unanimously. Judges Krivic, Šturm, and Ude submitted concurring opinions.
 
 
Endnotes:
[*] Translator’s note: UDBA is the Serbian translation of UDV, i.e. the State Security Administration.
[1] Among the first Slovene politicians who were charged collectively were the politicians of Mladina JNS [the Youth section of the Yugoslav National Party], who were sentenced at the Christmas Trial in December 1945 (J. Vodušek Starič, Prevzem oblasti, p. 415; Vodušek Starič, Dosje Mačkovšek [The Mačkovšek File], pp. 15, 33, 42, 52). Before the elections to the Slovene Constitutional Assembly, connections between the Slovene opposition and the opposition-circles in Zagreb and Belgrade had been established (L. Sirc, Med Hitlerjem in Titom [Between Hitler and Tito]; CZ, Ljubljana 1992, pp. 253, 257–9, 269, 273); because of these attempts the Nagode-Furlan group was also put on trial in 1947 (L. Sirc, Sodba [The Judgment], pp. 471–505). In a series of smaller scale judicial proceedings, some leading politicians were tried, such as Dr Jože Pučnik, one of the leading politicians of the JNS, in 1946, Vinko Vrhunec (J. Vodušek Starič, Dosje Mačkovšek, pp. 23, 43), and others. All these proceedings were prepared by the OZNA, which also interrogated the accused (J. Vodušek Starič, Prevzem oblasti, p. 257).
[2] Those were led by Dr Miha Krek, who founded the multiparty Slovene National Committee in Rome (J. Vodušek Starič, Prevzem oblasti, p. 342). In order to prevent these contacts, the OZNA or UDBA also kidnapped some of these politicians in Trieste or Zone A of the Free Territory of Trieste: Dr Albin Šmajd (a member of the Slovene National Committee in Rome) at the beginning of 1946 (J. Vodušek Starič, Dosje Mačkovšek, p. 53), Andrej Uršič in 1947 (J. Vodušek Starič, Dosje Mačkovšek, p. 35), and others. These individuals have never been tried; they disappeared without a trace.
 
 
President:
Dr Lovro Šturm
 
Concurring Opinion of Judge Dr Ude
 
 
1. I voted for the operative provisions of the Decision because I believe that the fourth paragraph of Article 3 of the Political Parties Act is contrary to the Constitution insofar as it allows an administrative authority to review the constitutionality of the acts and activities of a political party during the procedure for the party's registration. Only a decision of the Constitutional Court may abrogate an unconstitutional act of a political party or prohibit a party’s unconstitutional activities. For this reason, it was also necessary to annul Supreme Court of the Republic of Slovenia Judgment No. U 1262/95 and Decision of the Ministry of the Interior No. 0001-2/1-S-28/533-95.
 
I do not agree, however, with the reasoning of the Decision, especially the reasoning in Paragraphs 7 to 10, under Section B–I of the Decision. The point of this reasoning is to establish that after the Second World War the regime in power introduced a one-party system.
 
2. I believe that this part of the reasoning is irrelevant for the Decision of the Constitutional Court because it has no direct link with its content. Such a part of the reasoning is also rare in constitutional decisions, and it would be difficult to find a decision of another constitutional court that would consider issues that were not the subject of discussion and decision-making to such an extent and through such extensive citing of historical sources. In fact, none of the participants to the proceedings referred to a historical evaluation of the period after the Second World War or the regime in power at that time, which was undoubtedly undemocratic and responsible for gradually establishing a one-party system. The mentioned part of the Decision is solely the contribution of the Constitutional Court to the discussion on the issue of the registration of political parties. As such, it is also part of a general heated discussion that is currently ongoing in our country. It could also be viewed as support to a specific political group.
 
In relation to this issue, it would, in my opinion, have been possible to only briefly establish that the registration of political parties and the assessment of the unconstitutionality of their acts and activities is a particularly sensitive issue in our legal system, because the experiences of Slovene society with political association in the past, i.e. before the Second World War and thereafter, were not democratic.
 
3. A more comprehensive discussion of these historical experiences might also have been relevant if there was a risk in our society that the state authorities would attempt to introduce a one-party system by prohibiting some parties or not registering them in the register of political parties. It is evident that none of the participants in the proceedings considered that risk. Why should historical evaluations then be included in the reasoning of the judicial decision?
 
4. If, however, history is being discussed, the experiences of Slovene society with the pre-war political system were also not democratic. In the Kingdom of Yugoslavia in 1920, an Obznana [public pronouncement] was adopted that prohibited the workers’ party. In 1931, the Electoral Act prohibited the activities of political groups that did not enjoy royal support. Article 13 of the Constitution of the Kingdom of Yugoslavia from 1931 prohibited association “on the basis of religion, tribal affiliation, or region for party and political purposes”. Even this short sentence demonstrates that the political regime of the time did not even recognise nations, since it referred to tribal affiliation, and that the Istrski demokratski zbor – Dieta Democratica Istriana would not have had any possibilities to be registered or to pursue its activities.
 
There was therefore no democratic system in place before the Second World War. To continuously emphasise the undemocratic nature of the political system after the Second World War, however, gives the impression that it was only after the war that the system departed from the previously democratic order and practice.
 
Dr Lojze Ude
 
 
Concurring Opinion of Judge Krivic
 
 
I fully agree with the Decision and its reasoning. I am of the opinion, however, that only the first paragraph, i.e. Paragraph 7 of Section B–I belongs in the reasoning of this decision. The content of the three paragraphs that follow (i.e. Paragraphs 8–10) is certainly very interesting and substantively indisputable (e.g. how the post-war authorities suppressed political parties and, in general, any opposition); however, it does not actually serve any purpose in the reasoning of the present decision (i.e. that only the Constitutional Court, and not the Ministry of the Interior, may currently prohibit political parties in Slovenia by a two-thirds majority). In my opinion, this could be likened to the situation where in a present-day decision on the protection of the constitutional right to private property it would be deemed necessary to first describe in the reasoning the historical details and interesting facts regarding how and through what means the post-war government destroyed private property, on the grounds that the person, to whom the decision is addressed, and other readers of the decision will only then sufficiently understand why it is necessary in the present-day political and constitutional system to consistently protect private property as a vital important constitutional right. In my opinion, such a “educational” approach underestimates the citizens and is, as such, questionable. A legal and historical analysis of the circumstances during and after the war was naturally necessary and had its purpose in cases where the Constitutional Court has decided and is still deciding on the constitutionality of various regulations applicable during and after the war, insofar as these are still currently applicable; in cases, such as the case at issue, however, an excessive description of the historical reminiscences may entirely needlessly raise various doubts as to the motives of such writing and I believe, as I have already stated, that this serves no purpose and is superfluous. In the case at issue it was found that the refusal to register the Istrski demokratski zbor [Istrian Democratic Assembly] on the grounds that one sentence in their programme was allegedly unconstitutional, was in fact unconstitutional in itself. In my opinion, it is entirely inappropriate to compare the conduct of the present day Ministry of the Interior – that was not a reflection of its political arbitrariness and systematic suppression of the opposition, but primarily a consequence of the implementation of an unconstitutional statutory provision – with the post-war brutality and suppression of the entire opposition, which was illegal even pursuant to the then applicable regulations. As a result, the attention is at least partially diverted from what is really important in this Decision in relation to the present time and circumstances.
 
Matevž Krivic
 
Concurring Opinion of Judge Dr Šturm
 
 
The operative provisions and the reasoning have my full support. This case represents one of the most important decisions of the Constitutional Court in recent years, as it is the first time that the Constitutional Court has exhaustively and convincingly defined the constitutional premises and principles of a free democratic society and the freedom of political association. The reasoning under Section B–I, Paragraphs 7 to 10, is apt, as it is the first Constitutional Court decision of its kind. Like other European constitutional courts, some of which have been adopting positions on previous totalitarian systems even decades since their removal (e.g. the German, Italian, Spanish, Czech, and Bulgarian constitutional courts), the Constitutional Court has done the same in specific cases on numerous occasions. Allow me to draw attention to the decisions in the following cases:
 
- OdlUS I 102, Official Gazette RS, No. 61/92 (U-I-69/92) – Peter Urbanc and others (Citizenship Act)
 
- OdlUS III 33, Official Gazette RS, No. 23/94 (U-I-6/93) – Public prosecutor of the Republic of Slovenia (Decree on Military Courts)
 
- OdlUS III 123, Official Gazette RS, No. 73/94 (U-I-172/94) – Supreme Court (the Petan case)
 
- OdlUS IV 20, Official Gazette RS, No. 18/95 (U-I-158/94) – the Deputies of the National Assembly
 
- OdlUS IV 54, Official Gazette RS, No.  41/95 (U-I-344/94) – Sergij V. Majhen (the Notary Act)
 
- OdlUS V, 31, Official Gazette RS, No. 24/96 (U-I-67/94) – Public prosecutor of the Republic of Slovenia (the Combating Illicit Trafficking, Illicit Speculation, and Economic Sabotage Act)
 
- OdlUS V 174, Official Gazette RS, No. 1/97 (U-I-107/96) – The Roman Catholic Diocese of Maribor and others, and in recent Decision U-I-25/95, dated 27 November 1997, Official Gazette RS, No. 5/98, dated 23 January 1998 – Miha Brejc and others (the Criminal Procedure Act – police tapping)
 
If there were no such decisions of the Constitutional Court in the Slovene constitutional and legal space (these decisions were published in the Official Gazette RS and in the annual official collected decisions and orders of the Constitutional Court), a casual observer might get the impression as though there had been no communist totalitarian system in Slovenia and that a democratic system had been in place after 1945, with individual excesses, which were more or less severe, and human rights violations.
 
In this separate opinion, I focus on some constitutional, comparative, and historical facts and positions in order to completely clarify the issues discussed in Decision No. Up-301/96.
 
Historical reasons that are based on the empirical generalisations from some countries of the European continent in the 20th century are of great importance for the restrictions imposed on intolerant groups or undemocratic political parties. Experience suggests that democracy can be overthrown, as was the case when Hitler came to power in the 1930s. Constitutional safeguards against political parties, the programmes and activities of which are contrary to the principles of a free democratic society, were incorporated into the constitutional system by the Federal Republic of Germany (second paragraph of Article 21 of the Basic Law from 1949) and the Italian Republic (Transitional Provision XII of the Italian Constitution from 1947). The Portuguese Republic imposed similar safeguards based on historical experiences (Article 46 of the Constitution from 1976).
 
Two typical cases on the prohibition of political parties and their activities from German constitutional case law
 
The German Federal Constitutional Court prohibited the Socialist Reich Party (Sozialistische Reichspartei – SRP), which was the national socialist party, and the German Communist Party (Kommunistische Partei Deutschlands – KPD) on 23 October 1952 and 17 August 1956, respectively. Both of the mentioned judgments on the prohibition of the right and left extremist political parties gave the German Federal Constitutional Court an opportunity to define the concept of a free democratic society and the concept of democracy in general. This definition namely allowed the German Constitutional Court to substantiate the key reasons for prohibiting their activities.
 
In the judgment on the prohibition of the national socialist party SRP (BverfGE, 2, 1 and ff.), the German Constitutional Court established the principle that, owing to the special significance of political parties for the existence of a free democratic state, their exclusion from political life is not possible if they employ legal means to fight specific regulations or even specific constitutional institutions. Such exclusion is only permitted if these parties intend to undermine the fundamental values of a free and democratic constitutional state. These fundamental values are integral to a free democratic fundamental system, which deems the constitution to be the foundation of the entire state system. The fundamental constitutional order is linked with values. It is the antithesis of a totalitarian state that, as the only authority, rejects human dignity, freedom, and equality. The claim made by the SRP’s representative that there may be different free democratic constitutional orders is erroneous. That claim is based on the confusion between the concept of a free democratic fundamental system and the forms in which it can be implemented within a democratic state. In this way, a free democratic fundamental system can be determined as a system that, by excluding any violence and oppression, represents the social order of a state governed by the rule of law and based on the self-determination of the people in accordance with the will of the majority, freedom, and equality.
 
The judgment on the prohibition of the German communist party, the KPD (BVerfGE, 5, 85 and ff.), refers to this premise. A free democracy rejects the notion that historical development is determined by a final objective which can be scientifically determined, and that, as a result, this final objective also determines specific community decisions as steps towards the realisation of this objective. It is rather the people themselves who determine their own development through community decisions, and these decisions can only be made if absolute freedom is guaranteed. This further requires that every community member is free to be involved in the creation of community decisions. The freedom of community decision-making is only possible if community decisions (i.e., in practice, majority decisions) leave the greatest possible degree of freedom, in terms of content, to each individual. As to what must be done in practice is determined through a continuous dialogue between all the people and groups who participate in shaping social life. This struggle escalates into a fight for political power in the state. However, it is not limited only to such. During this fight for power, an underlying process of clarification and transformation of these ideas is taking place. The decisions that are finally adopted will certainly correspond more to the wishes and interests of one or another group or social class; the purpose of the regulation and the possibility of free agreement between all real and intellectual forces provided thereby serves to balance and protect everyone’s interests. The welfare of the community cannot therefore be equated a priori with the interests and wishes of a particular class; in principle, it strives to promote the welfare of all the citizens more or less equally and an approximately equal distribution of burdens. The ideal of democratic society exists in the form of a state governed by the rule of law.
 
A state system with a free democracy must therefore be systematically oriented towards continuous adjustment and improvement and social compromise; in particular, it must prevent the abuse of power. Its function is essentially to leave all doors open for every possible solution and to always enforce the will of the actual majority of people regarding specific decisions; however, it must also force the majority to substantiate its decision before all the people, i.e. even before the minority. This is the purpose of the guiding principles of such a system as well as its specific institutions. The will of the majority is established on a case-by-case basis in a carefully regulated procedure. However, the majority’s decision is preceded by demands made by the minority that are followed by open discussion, for which a free democratic system provides, desires, and supports several different possibilities, and offers such to the members of the minority with as little risk as possible. Since the majority can always change, minority opinions have a real chance of becoming relevant. As a result, it is possible to positively come to terms with the critique of what currently exists, i.e. dissatisfaction with people, institutions, and specific decisions, to a significant extent within the existing system. The finally adopted majority decision is always linked to the critique of the minority in the opposition and its creative cooperation and intellectual work. Since there exist different, even drastic, ways of expressing discontent and critique, the awareness of the majority that its position is fragile also forces it to consider, in principle, the interests of the minority.
 
The functioning of such system, its ability to ultimately ensure the community’s welfare in a manner that is acceptable to all, is ensured through a system of rules of the game that was legally determined in advance and established on the basis of the described principles over a long period of historical development.
 
Political freedom of opinion, expression, and association, which is guaranteed in various ways, leads to a multiparty system and organised political opposition. Free elections held at relatively short intervals guarantee that the people have control over the use of power by the political majority. The government is accountable to the parliament. The implementation of the principle of the separation of powers, which ensures that the different branches of power check and balance each other, prevents an excessive concentration of power in one place within the state. The same aim is also pursued by the transfer of state functions from the central leadership to institutions which, in principle, assume responsibility for the performance of such functions. Citizens are guaranteed freedom not only by being granted fundamental rights but also by the extensive protection of their rights through independent courts. The protection of the entire system is above all entrusted to the constitutional court. As such a system, which is open and guarantees all kinds of freedoms and influence, is thus also a threatened system, it protects itself from forces which, in essence, deny its highest principles and ground rules, by way of provisions such as Articles 18 and 21 of the German Basic Law.
The dictatorship of the proletariat is not compatible with a free and democratic social order. Both government systems are mutually exclusive. In the KPD’s opinion, a proletarian dictatorship represents the highest form of democracy. Such assessment depends on the conceptualisation and criteria applied. Evidently, the form of democracy that was to exist as a proletarian dictatorship is not a democracy in accordance with the principles of the German Basic Law (BVerfGE 5, 195–196). The aim of the KPD is to establish a form of government that is not compatible with the free democratic system of the Basic Law (BVerfGE 5, 207). Furthermore, the KPD is, in principle, hostile to a free and democratic system, which follows from a substantive and structural analysis of Marxism and Leninism (BVerfGE 5, 298 and ff.). Convincing evidence of the genuine opinion of the KPD regarding a free and democratic system is evident from the party’s declarations, especially its political style and party tactics, which are clear from its agitation and propaganda (BVerfGE 5, 380).
 
These declaratory statements are an expression of planned incitement with the aim of overthrowing and eliminating the constitutional order. Their purpose is to undermine the trust of the people in fundamental values, and it is crucial that they do not entail individual aberrations but a systematic whole (BVerfGE 5, 384).
 
The prohibition of the German communist party was explicitly not extended to other dependent organisations, supporter movements, or organisations, which served as a disguise for its activities. More specifically, these organisations were not political parties and therefore did not enjoy the special protection afforded to political parties in the context of freedom of association. If such organisations violated the constitutional order, it would be necessary to apply the constitutional and statutory regulation of associations (BVerfGE 5, 392).
 
In its judgment on the prohibition of the SRP, the Federal Constitutional Court also found that the requirement for democracy within parties prohibits a party from organising itself in a way that would substantially deviate from democratic principles. If a party deviates from the fundamental principles of the democratic internal organisation of parties to such extent that it is only possible to interpret the deviation as the expression of an action that is, in principle, hostile to democracy, then a state of facts arises (especially, if other circumstances also confirm such orientation of a party) that justifies the establishment of the unconstitutionality and prohibition of a political party.
 
In its decision on the prohibition of both extremist political parties, the German Federal Constitutional Court ordered the dissolution of the neo-national-socialist party (SRP) as well as the communist party (KPD) and the confiscation of their assets for the benefit of the state. Furthermore, the court declared a prohibition on establishing any substitute organisations for both extremist political parties or any further activities of the existing organisations as substitute organisations. The judgment in the SRP case also resulted in the termination of their deputies’ terms of office in the federal and state assemblies.
 
A retrospective on the prohibition of the Communist Party of Yugoslavia
 
In the context of the above-mentioned constitutional premises and as a comparison with the prohibition of extremist political parties in the Federal Republic of Germany, an examination of the prohibition of the former Communist Party of Yugoslavia [hereinafter referred to as the CPY] could be interesting. The question that we are interested in is whether this prohibition withstands assessment in terms of the modern notion of the admissibility, or rather the inadmissibility, of political parties and their activities, in particular from the viewpoint of the present constitutional order and principles of a free and democratic social order.
 
On 29 December 1929 by the special public pronouncement No. 29282, known as the Obznana, the Council of Ministers of the Kingdom of Serbs, Croats, and Slovenes prohibited communist propaganda and communist organisations, their publications and any other document produced by those organisations that could breach the peace in and outside the state, or justify and approve of dictatorship, revolution or any violence. It further prohibited any calls for a general strike and demonstrations of a disruptive or disturbing nature during the Constitutional Assembly in Belgrade. In particular, it imposed the requirement for all weapons to be registered, announced drastic measures against riots designed to overthrow the government, determined that foreigners involved in riots would be deported, and dismissed all officials from the state services who spread Bolshevik propaganda in the country. Even students who were communists were deprived of financial support for their studies.
 
A prohibition of any press that would diminish the importance of these measures was issued separately. The Council of Ministers explained that the then state authorities learned from reliable sources that disruptive elements were preparing an attack on the state, its structure, and social order with the intention to destroy – following the example of the Russian Bolsheviks – all its laws, institutions, and public and private goods, and to establish a proletarian dictatorship. It also referred to the then turbulent situation in the state and abroad, especially in Hungary and Czechoslovakia. Due to the announced general strike, which was to begin at the same time as the Constitutional Assembly in Belgrade and develop into a general riot, bloody revolution, and collapse, the Council of Ministers decided to act immediately.
 
Seven months later, on 1 August 1921, the Yugoslav Assembly adopted the Act of the Kingdom of Serbs, Croats, and Slovenes on the Protection of Public Security and State Order (Službene Novine Kraljevine SHS [Official Gazette of the Kingdom of the Serbs, Croats, and Slovenes], No. 170 A, dated 3 August 1921). This Act represented the confirmation of the public pronouncement, dated 29 December 1920; the provisions of this Act were similar to the pronouncement in terms of content, but were legally more structured. It also included elements of criminal sanctions and determined criminal offences. It reiterated that members of communist parties were prohibited from being employed in public services; however, those affected could appeal against the minister’s decision before the State Council. Types of conduct that constituted criminal offences under this Act were tried by judges in regular state courts on the basis of the judges' free assessment of the evidence.
 
Owing to the very long time that has passed since then, it is difficult to assess the situation that existed when the CPY was prohibited. In any event, this is primarily the task of the historical sciences. It is easier to carry out a constitutional review of the acts of the Communist Party of Yugoslavia. Article 1 of the Statute of the Communist Party of Yugoslavia from 1920 defined the aim of the CPY. It expressly stated that the aim of the CPY, as a member of the Communist International, was to completely liberate the working class and all the supressed social classes of working people through uncompromising class struggle and the dictatorship of the proletariat and by establishing a communist order to replace its capitalist equivalent. Article 2 provided, inter alia, that members of the CPY could only be those persons that accepted the programme, statute, and tactics of the party and undertake by a written declaration that they will be active within the party (The Second Congress of the CPY, p. 118).
 
The first chapter of the CPY Programme stated that the ultimate objective of all the activities of the international communist party, as a wilful expression of the class movement, is social revolution, i.e. to replace capitalist relations of production with their communist equivalents.
 
The proletarian dictatorship, i.e. establishing the political power of the proletariat required to enable it to break any resistance of the exploiters, was a prerequisite for this social revolution to occur. The international communist party, the assignment of which was to train the proletariat to carry out its historic mission, had to organise the proletariat into an independent political party against all bourgeois parties, and lead and direct its class struggle (The Second Congress of the CPY, pp. 74–76).
 
The second chapter of the CPY Programme emphasised that a new era had arrived: the downfall of capitalism and an era of global proletarian revolution.
 
The second chapter concluded with the finding that the proletariat had to persist in constant economic and political struggle in order to be finally liberated, with all means available that were to be determined with regard to the social situation and the balance of forces between the proletariat and the bourgeoisie. The third chapter emphasised that the CPY, as a member of the Communist International, accepted the requirements of the world revolution as the starting point of its struggle. Therefore, it was the duty of the working class of the entire world to establish a socialist order. To this end, the proletariat had to first destroy the political power of the bourgeoisie and take political power into its own hands. The takeover of state power could not be confined solely to the replacement of persons holding power in the state authorities; it had to also entail the destruction of the alien state apparatus and the replacement of the bourgeois courts with proletarian courts, the destruction of the reactionary bureaucracy, and the establishment of new proletarian authorities. The victory of the proletariat was guaranteed by the organisation of the proletarian authority. It was supposed to lead to a complete breakdown of the bourgeois apparatus and the establishment of the state proletarian apparatus (see The Second Congress of the CPY, pp. 78–80).
 
The fourth chapter of the CPY Programme emphasised that the lessons learned from the Russian Revolution demonstrated that it is only possible to establish a new social order through a social war against those in power.
 
Through their dictatorship, the supporters of the new order were to ensure the transition from the old to the new order. Socialism could not be established by means of bourgeois democracy or parliamentary institutions, but only through workers’ councils. It was therefore the duty of the CPY to lead, through words and actions, the proletariat towards a revolutionary battle until the dictatorship of the proletariat was established in the form of Soviet republics (see The Second Congress of the CPY, p. 81).
 
The sixth chapter of the CPY Programme expressly stated that it was fighting for the Soviet Republic, i.e. for the transition to socialism by means of a dictatorship of the proletariat in the form of Soviet power.
 
The Soviet republic was to give all powers – legislative, executive, and judicial – to the working people, who were organised in workers’, military, and farmers’ councils. Immediately after assuming political power, the proletariat was to confiscate the means of production from the bourgeoisie (see The Second Congress of the CPY, p. 84).
 
The seventh chapter of the CPY Programme determined that the revolutionary era required the proletariat to use methods of fighting that engage large proletarian masses in major fights and incidents that end in open conflict with the bourgeois state. The idea that socialism could be introduced by making a compromise with the bourgeoisie was utopian. The working class was to actively participate in the movement and lead and conclude its struggle with the activation of the masses, subordinating, in the critical stage of the revolution according to the movement of the masses, all other means that are primarily used for class struggle during peaceful times. Representative bodies were also included among these (subordinated) means. In principle, the CPY opposed parliamentarism as a way to impose class rule. After the takeover of political power, parliamentarism was no longer possible (see The Second Congress of the CPY, pp. 85–86).
 
A comparative analysis reveals that a political party with such a programme, or a similar one, that operated in the same manner as the former CPY would be inconsistent with the principles of a free and democratic social system that is very tolerant towards the freedom of activities of political parties, and with the democratic European constitutional systems that exist today. In this light, the prohibition of the CPY was also justified at that time. Specific measures resulting from the prohibition of the CPY, which were directed against certain students and government officials, would now be deemed excessive and unacceptable in terms of constitutional democracy. However, such does not affect the principled finding that the prohibition of the CPY as a party and all its activities was constitutionally admissible.
 
 
Sources:
BVerfGE: Official Collection of Decisions of the German Federal Constitutional Court, Vols. 2 and 5.
Drugi kongres KPJ: Drugi (Vukovarski) kongres KPJ [The Second Congress of the CPY: The Second (Vukovar) Congress of the CPY], Izvori za istoriju SKJ, Izdavački centar Komunist, Belgrade, 1983.
Cristian TOMUSCHAT in: MACDONALD, et al.: The European System for the Protection of Human Rights, M. Nijhoff, 1993, pp. 493–513.
 
 
Dr Lovro Šturm
Type of procedure:
constitutional complaint
Type of act:
other acts
Date of application:
30.10.1996
Date of decision:
15.01.1998
Type of decision adopted:
decision
Outcome of proceedings:
annulment or annulment ab initio
Document:
AN01470