EUROPEAN COURT OF HUMAN RIGHTS IN ACTION / Alla Tymofeyeva (ed.)

political democracy and on the other by a common understanding and observance of human rights. The Preamble goes on to affirm that European countries have a common heritage of political traditions, ideals, freedom and the rule of law. This common heritage consists in the underlying values of the Convention; thus, the Court has pointed out on many occasions that the Convention was in fact designed to maintain and promote the ideals and values of a democratic society. In other words, democracy is the only political model contemplated by the Convention and, accordingly, the only one compatible with it (see, among many other examples, United Communist Party of Turkey and Others , cited above, § 45; Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, § 86, ECHR 2003- II; and, lastly, Gorzelik and Others v. Poland [GC], no. 44158/98, § 89, ECHR 2004-I). It cannot be ruled out that a person or a group of persons will rely on the rights enshrined in the Convention or its Protocols in order to attempt to derive therefrom the right to conduct what amounts in practice to activities intended to destroy the rights or freedoms set forth in the Convention; any such destruction would put an end to democracy. It was precisely this concern which led the authors of the Convention to introduce Article 17, which provides: “Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention” (see Collected Edition of the “Travaux Préparatoires”: Official Report of the Consultative Assembly , 1949, pp. 1235-39). Following the same line of reasoning, the Court considers that no one should be authorised to rely on the Convention’s provisions in order to weaken or destroy the ideals and values of a democratic society (see Refah Partisi (the Welfare Party) and Others , cited above, § 99). Consequently, in order to guarantee the stability and effectiveness of a democratic system, the State may be required to take specific measures to protect itself . Thus, in the above-cited Vogt judgment, with regard to the requirement of political loyalty imposed on civil servants, the Court acknowledged the legitimacy of the concept of a “democracy capable of defending itself ” (§§ 51 and 59). It has also found that pluralism and democracy are based on a compromise that requires various concessions by individuals, who must sometimes be prepared to limit some of their freedoms so as to ensure the greater stability of the country as a whole ( Refah Partisi (the Welfare Party) and Others , cited above, § 99). The problem which is then posed is that of achieving a compromise between the requirements of defending democratic society on the one hand and protecting individual rights on the other (see United Communist Party of Turkey and Others , cited above, § 32). Every time a State intends to rely on the principle of “a democracy capable of defending itself ” in order to justify interference with individual rights, it must carefully evaluate the scope and consequences of the measure under consideration, to ensure that the aforementioned balance is achieved. Finally, with regard to the implementation of measures intended to defend democratic values, the Court stated in Refah Partisi (the Welfare Party) and Others (cited above, § 102): “The Court considers that a State cannot be required to wait, before intervening, until a political party has seized power and begun to take concrete steps to implement a policy incompatible with the standards of the Convention and democracy, even though the danger of that policy for democracy is sufficiently established and imminent. The Court accepts that where the presence of such a danger has been established by the national courts, after detailed scrutiny subjected to rigorous European supervision, a State may ‘reasonably forestall the execution of such a policy, which is incompatible with the Convention’s provisions, before an attempt is made to implement it through concrete steps that might prejudice civil peace and the country’s democratic regime’. …” Article 3 of Protocol No. 1 differs from other rights guaranteed by the Convention and its Protocols as it is phrased in terms of the obligation of the High Contracting Party to hold elections which ensure the free expression of the opinion of the people rather than in terms of a particular

88

EUROPEAN COURT OF HUMAN RIGHTS IN ACTION