CASE OF PARTIDUL COMUNISTILOR (NEPECERISTI) AND UNGUREANU v. ROMANIA [Extracts]
Violation of Art. 11;Not necessary to examine Art. 14;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award
9. The first applicant is a political group which was refused registration as a political party in a judgment delivered by the Bucharest Court of Appeal on 28 August 1996. The second applicant is its chairman. 10. On 23 March 1996 the PCN was founded at a national conference chaired by the second applicant, at which its constitution and political programme were adopted. The relevant parts of the constitution read as follows: “The PCN shall respect national sovereignty, the territorial integrity of the State, its legal order and the principles of democracy. None of its members shall defame the country and the nation, promote war and national, racial, class or religious hatred, encourage discrimination, territorial separatism or public violence, or engage in obscene and immoral activities. The PCN is a free association of citizens who support political pluralism, uphold the principles of a democratic law-based State and strive to defend their own interests without denying those of others. Aims Article 1: The PCN shall express, represent and defend the political interests of the workers, without any distinction based on ethnic origin, sex, age, profession, belief or opinions. 'Workers' means all those who earn their living by working, regardless of activity ... With a view to ensuring a constant increase in workers' living standards, the PCN shall act within the law, using any means lawfully available to all political parties, to gain political power in order to establish a humane and democratic society. ... Article 20: The PCN is not the successor of the former Romanian Communist Party, with which it has no connection; it represents the continuation of the resistance against the Communist Party prior to 1989. Being founded by and composed of persons who were not members of the former Communist Party, the PCN emphasises that none of the qualities with which the former Communist Party was credited, or the criticisms that party aroused, should be attributed to it.” 11. In its political programme, adopted on 23 March 1996, the PCN stated that its aims were to defend workers' interests and to adhere to the essence of communist doctrine, based on the following fundamental principles: non-exploitation of certain persons by others or by the State; social justice based on labour and proper qualitative competition; and genuine democracy capable of securing the rights of the majority through free elections in which all political tendencies should be allowed to take part. It deplored what it called the antisocial and anti-working-class direction in which Romanian society had moved since the overthrow of the previous regime in 1989, and the country's transformation into a “colony of the European and global neo-colonialist empires”. The programme also contained the following political ideas: “The thesis underlying all policy and all doctrine is that the main advantage in politics is number. Those who are greatest in number are always right, irrespective of the way they think or act, and this is constantly being borne out, as, for example, on 22 December 1989 when the anti-working-class, antisocial and antinational counter-revolution emerged victorious in several European countries. The starting-point of all workers' action has been the desire to change what is evil; in practice, only what is good has changed, and almost completely. What do we mean by good? ... During its years of socio-economic practice in the territory of former Dacia[], socialism achieved goals for the masses – despite the errors, excesses, failings and abuses on the part of the former Communist Party bourgeoisie – which workers cannot abandon or forget: the highest material and spiritual living standards in history; the highest level of culture and civilisation in history ...; the broadest and most extensive democratic legal framework ... The PCN is a workers' revolutionary political group that acts in an organised, conscious manner within the constitutional framework to eradicate the effects of the counter-revolution and to resume building the most humane and democratic society ever known – socialism. Regardless of its position in relation to the other political forces, [that is, whether it is] involved in the exercise of power and the administration of the State, the PCN will strive to attain such goals as may ensure the protection of the interests of the masses.” 12. On 4 April 1996 the second applicant, as the PCN's representative, applied to the Bucharest County Court to enter it in the special register for political parties. 13. By a decision of 19 April 1996, the court refused the application as being ill-founded. The relevant passages of the reasoning of the decision read as follows: “In support of the application to register the party, a number of documents have been filed: a list of the party leaders, a list of its founder members, the constitution governing its organisation and functioning, its political programme, the lease for its headquarters, evidence of its financial resources and its constitutive instrument, namely the minutes of the national conference held on 23 March 1996. It appears from an examination of the documents in the file that the party's constitution, in the chapter setting out its aims, ... states that it strives to gain political power in order to establish a humane and democratic society. It therefore follows from its constitution and political programme that the party pursues the aim of establishing a humane State based on communist doctrine, which would imply that the constitutional and legal order in place since 1989 is inhumane and not founded on genuine democracy. The party is therefore in breach of Article 2 §§ 3 and 4 of Legislative Decree no. 8/1989, which provides that 'the aims of political parties must be based on respect for sovereignty, and that the means employed to achieve them must be in accordance with Romania's constitutional and legal order'.” 14. On 6 July 1994 the applicant appealed against that decision to the Bucharest Court of Appeal. In a judgment delivered on 28 August 1996, the Court of Appeal dismissed the appeal on the ground that the assessment made in the decision had been correct. It finalised the text of the judgment on 21 October 1996 and sent it to the Bucharest County Court to be archived. The second applicant states that he learned of the reasons for the judgment on 13 November 1996. The relevant paragraph of the reasoning reads as follows: “As to the final ground of appeal, concerning the merits of the case, the first-instance court was correct in considering the [PCN's] constitution to be in breach of Legislative Decree no. 8/1989 with regard to the country's constitutional and legal order. Accordingly, the Court dismisses the complaint as being ill-founded.” 15. On 28 May 1997 the Procurator-General of Romania informed the second applicant that he could see no reason to lodge an application (recurs în anulare) to have the judgment of 28 August 1996 quashed. 16. The second applicant lodged an application to set aside (contestaţie în anulare), which the Bucharest County Court dismissed as being out of time on 5 December 1997. 17. After 1997 the second applicant continued to express his political opinions in the newspaper Pentru socialism (“For Socialism”), of which he was the editor. On 13 August 1998 he published an article entitled “The communist manifesto”, which proclaimed his attachment to communist doctrine and criticised both the direction taken by the Communist Party leaders before 1989 and the policy pursued by successive governments since then. A large number of articles which the second applicant published in the newspaper in 1998 and 1999 contained slogans such as “Workers of all countries, unite!”, “The struggle continues!” and “Long live socialism!”. In one article he stated that, once in power, he would “accept only those who accept[ed him]”. 18. In 2000 the second applicant published a book, The anti-socialist, anti-working-class and antinational counter-revolution, in which he replied to about a hundred questions from a journalist. In December 2003 he sent the Court a copy of the book. In it he set out his political vision, outlining his commitment to communist doctrine and the working classes and describing Marx as the greatest political philosopher of all humanity; he also criticised both the authorities' gradual betrayal, in his view, of communist ideals prior to 1989 – while praising former President Ceausescu – and the policy pursued by those in power after that date. He stated that, unlike the pre-1989 communist regime, he was in favour of free, multi-party elections in which all the political forces could take part, except extremists and fascists, and voiced his support for a form of political competition based on respect for others and their political views. Among other things, he referred to the difficulties encountered since 1989 in finding sufficient members to register the PCN and to the fact that the party was not well known in Romania, particularly among those for whom it was primarily intended, the peasants and workers. 19. Arguing that socialism had in the past been the subject of frequent “attacks” designed to destroy it, examples being the events in 1968 in Prague, 1978 in Poland and 1985 and 1993 in Russia, the second applicant stated in conclusion to his reply to a question from the journalist: “As long as there are still capitalist, imperialist and religious brutes in the world, whose main aim is to enslave others, the conditions for further internal and external activities against socialism will continue to exist, ... [socialism] being a fundamental idea and belief of the people; remember the endless succession of attacks against the forces of good in fairy tales ... These attacks will not cease until the hideous and parasitic farmyard fowls, who commit crimes in all places and at all times, have been destroyed.” 20. He stated in the book that the political system would in time become structured according to social class, that the PCN sought to represent the interests of the peasants and workers, and that a democratic parliament should reflect the country's social structure, with the two classes in question holding the vast majority of seats according to their share of the population. 21. Arguing that capitalism encouraged theft, the second applicant stated in the book that the masses, who despised wealth, would move away from the post-1989 political parties and, over about fifty years, towards the PCN. 22. With regard to property, he stated that it was for the people to decide whether privatisation was beneficial and that “the rich” could enjoy possessions they had obtained by lawful means. As to the restitution of property that had passed into State ownership during the communist regime, the second applicant considered that property confiscated for political reasons should be returned, although entire buildings and factories should not, because the nationalisation measures carried out after 1947-48 had been acts of social justice. 23. At the material time the relevant provisions of Legislative Decree no. 8/1989 on the registration and operation of political parties, which was published in the Official Gazette on 31 December 1989 and repealed by the Political Parties Act (Law no. 27 of 26 April 1996), read as follows: “Political parties may be freely founded in Romania, with the exception of fascist parties or those that spread ideas contrary to the constitutional and legal order. No other objection, whether based on race, religion, nationality, level of culture, sex or political views, may hinder the formation and operation of political parties ...” “... 3. The aims of political parties and public-interest organisations shall be based on respect for the nation's sovereignty, independence and territorial integrity and for democracy, in order to ensure the exercise of citizens' rights and freedoms and to uphold the dignity of the Romanian nation. 4. The means employed to achieve the aims of political parties and public-interest organisations shall be in accordance with Romania's constitutional and legal order.” “Political parties shall be registered with the Bucharest County Court, which shall give a decision within five days as to whether they have been lawfully constituted. An appeal against the decision of the Bucharest County Court shall lie to the Supreme Court of Justice ...” 24. Article 37 § 2 of the Constitution provides: “Any political parties or organisations which, through their aims or activities, campaign against political pluralism, the principles of the rule of law, or the sovereignty, integrity or independence of Romania, shall be unconstitutional ...” 25. Section 3 of the National Security Act (Law no. 51/1991) provides: “The following shall constitute a threat to the national security of Romania: ... (h) the act of provoking, organising, carrying out or supporting, by whatever means, any totalitarian or extremist action inspired by communism, fascism, ... racism, anti-Semitism, revisionism or separatism that might jeopardise in any manner the unity and territorial integrity of Romania; and the act of encouraging activities that might undermine the rule of law.” Section 13 provides that, in cases referred to in section 3 above, the public prosecutor may allow certain measures to be taken, such as phone-tapping, in order to obtain further information about the acts in question. By section 19, the formation and organisation of intelligence networks capable of undermining national security is an offence punishable by two to seven years' imprisonment.