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     The Concept of Pluralism in the Case-Law of the
           European Court of Human Rights
                                  Aernout Nieuwenhuis*


   Meanings of pluralism in different disciplines ­ Meaning in jurisprudence, esp.
   European Court of Human Rights ­ Feature of society and idea of society ­ Indi-
   vidual freedom v. group existence ­ Politics, religion, education ­ Pluralism as ex-
   pression of rights and as guarantee of rights ­ Rejection of legal pluralism ­
   Contradiction of elitist theory ­ State protection of pluralism and its limits


Introduction
The concept of pluralism is widely used. A brief outline shows that the meaning
may vary in different disciplines. In philosophical ethics, value pluralism, or moral
pluralism implies that there is a diversity of conflicting values.1 Therefore, indi-
viduals normally have more than one rational moral choice. Social pluralism is
used to characterise a society in which different religious, cultural, ethnic or other
groups live together. Individuals may to a certain extent be considered as mem-
bers of these groups.2 In political science, more specifically, the concept of plural-
ism points to the existence of all kinds of associations and groupings that aim for
political influence, without one particular group being predominant.3 If we de-
scribe political decisions as choices between different and partly conflicting values
(liberty ­ equality; privacy ­ public safety) we may have come back to value plu-
ralism.
    These different concepts may all affect the meaning of pluralism when used in
jurisprudence.4 Value pluralism is an argument for individual expressive liber-

    * Associate professor of constitutional law, University of Amsterdam.
    1
      I. Berlin, `Two Concepts of Liberty', in Four Essays on Liberty, Oxford 1969. Cf. W. Galston,
Liberal Pluralism, Cambridge 2002, p. 5.
    2 E.g., Dictionary of the Social Sciences, Oxford 2002, p. 363-364.
    3
      R. Dahl, A Preface to Democratic Theory, Chicago 1956; R. Dahl, Who Governs, Yale 1961; A.
Eisenberg, Reconstructing Political Pluralism, New York 1995.
    4 For an extensive overview of the meaning of pluralism in jurisprudence, see A. Soeteman (ed.),

Pluralism and Law, Amsterdam 2001.

European Constitutional Law Review, 3: 367­384, 2007
© 2007 T.M.C.ASSER PRESS and Contributors                        DOI:   101017/S1574019607003677
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ties5 and state neutrality.6 After all, every citizen must choose his own idea of a
good life. The importance of the existence of various groups may be translated
into an argument for associational liberties in general and freedom for religious
associations in particular.7 When social pluralism and the role of groups is stressed,
there may be a more general tendency to recognise group interests in law. The
existence of group libel laws may serve as an example.8 A more drastic step would
be the creation of different legal orders for different groups, a system known as
legal pluralism. Political pluralism, to conclude, may call for legal safeguards against
predominance of one particular group in the political process.
    The concept of pluralism plays a prominent part in the case-law of the Euro-
pean Court of Human Rights (ECtHR). The Court considers `pluralism' as one of
the main characteristics of a democratic society. That is to say that pluralism is an
important factor determining the scope and impact of a number of fundamental
rights such as the right to freedom of speech and the right to freedom of associa-
tion.
    The question rises of what the meaning of pluralism is in the case-law of the
ECtHR. This question is all the more important because the concept is ambiva-
lent in several respects. As we have seen, the concept may be smoothly linked with
individual fundamental rights, but actually refers to groups, associations and in-
stitutions such as the media. Moreover, pluralism is often aimed at a characterisation
of society as a whole but it may also serve a useful purpose in the political process.
To conclude, the concept both aims at an existing feature of certain societies and
at an idea that is to be fostered. In this respect, not surprisingly, the ECtHR sees
pluralism as something that is to be protected and guaranteed by the state. One of
the consequences thereof is that restrictions may be imposed on groupings which
threaten pluralism.
    This paper aims to clarify the concept of pluralism in the case-law of the
ECtHR.9 The paper will start with a section on the scope of the concept of plural-
ism; in what field and for what fundamental rights is this concept relevant? The
next section will analyse the complex and ambivalent character: do we speak about

    5
       W. Galston 2002, supra n. 1, p. 15 et seq.
    6  W. Sadurski, Moral Pluralism and Legal Neutrality, Dordrecht 1990.
     7 W. Galston 2002, supra n. 1, p. 110 et seq.
     8
       R. Post, `The Social Foundations of Defamation Law', Cal. Law Review 1969, p. 691-742.
     9 Some references to European community law and to the constitutional law of some European

states will be made as well. The concept of pluralism, after all, is also to be found in European
Community law, for example in the considerations of the `Television without Frontiers Directive'.
The Constitutional Treaty of the European Union even made pluralism a constitutional value or,
more precisely, a characteristic of a society that includes values as human dignity, liberty and equal-
ity (Art. I-2). The concept of pluralism is also present in certain national constitutions and in the
case-law of national constitutional courts. The concept is often aimed at diversity in the forming of
public opinion in particular, but it may imply as well a characterisation of society as a whole.
The Concept of Pluralism in the Case-Law of the ECHR
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individual liberties or about group rights, and what is the relationship between a
pluralistic political process and a pluralistic social structure? Special attention will
be devoted to the limits to pluralism and to the role of the state as the ultimate
guarantor of pluralism. The conclusion will give a survey of the findings.

The scope of the concept
In 1976 the ECtHR rendered two judgments in which for the first time the con-
cept of pluralism was used to interpret the fundamental rights laid down in the
European Convention on Human Rights (ECHR) and its protocols.10 The first
judgment is the well-known Handyside case.11 In its general considerations about
the importance of freedom of speech, the ECtHR links its manner of judging to
its characterisation of a democratic society:

   Freedom of expression constitutes one of the essential foundations of such a soci-
   ety, one of the basic conditions for its progress and for the development of every
   man. Subject to paragraph 2 of Article 10 (Art. 10-2), it is applicable not only to
   `information' or `ideas' that are favourably received or regarded as inoffensive or as
   a matter of indifference, but also to those that offend, shock or disturb the State
   or any sector of the population. Such are the demands of that pluralism, tolerance
   and broadmindedness without which there is no `democratic society'.

The other judgment rendered on the same day is the equally well-known Kjeldsen,
Busk, Madsen & Pedersen case that deals with the right to and the freedom of
education.12 In this case the Court points out the importance of pluralism as well:

   The second sentence of Article 2 [First Protocol, ed.] aims in short at safeguarding
   the possibility of pluralism in education which possibility is essential for the pres-
   ervation of the `democratic society' as conceived by the Convention.

It follows that the state when organising education has to make sure that:

   information or knowledge included in the curriculum is conveyed in an objective,
   critical and pluralistic manner.

These two judgments in and of themselves make clear that the concept of plural-
ism has a rather wide scope. Pluralism is described as a characteristic of and a
condition for a democratic society, and `democratic society' is not narrowly inter-

   10
      The concept is already implicitly present in the Belgian language cases, ECtHR 23 July 1968.
   11 ECtHR 7 Dec. 1976, Handyside v. UK.
   12 ECtHR 7 Dec. 1976, Kjeldsen, Busk, Madsen & Pedersen v. Denmark.
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preted. That means that several fundamental rights can be directly linked to the
concept of pluralism. An overview is given below.

Freedom of speech and media structure
The aforementioned reflections about `pluralism, tolerance and broadmindedness'
and about information and ideas that `offend, shock or disturb' have become regular
considerations in judgments of the ECtHR about free speech restrictions. This
case-law makes clear that it cannot be taken for granted that freedom of speech
can be restricted when an utterance or opinion is offensive for a certain group.
Individuals with different ideas and members of groups with different values may
all publish their views. This starting point is particularly relevant for contribu-
tions to the public debate. As far as political discussion is concerned, there has to
be room for severe criticism. The question of whether in a pluralistic society, the
State has a positive obligation to protect groups against offensive utterances as
well will be treated later on in this paper.
    The judgments about content-based restrictions of freedom of speech regard
pluralism as a feature of a democratic society. Other judgments under the terms of
Article 10 of the Convention deal especially with pluralism of the press and the
other media. In the Lentia case, for example, the ECtHR has stated that the press
cannot successfully perform its task to impart information and ideas of general
interest unless that undertaking `is grounded in the principle of pluralism'. There-
fore, as many voices as possible should be heard. Not allowing broadcasting by
others than the public broadcasting organisation, when ether frequencies are still
available, is a violation of Article 10 ECHR. While public broadcasting may be
important for the realisation of pluralism, there are less restrictive means to pro-
tect public broadcasting and its pluralism, according to the Court.13 In granting
broadcasting licences, the state may still be guided by the importance of plural-
ism. In this respect one may think of pluralism as cultural, linguistic and regional
diversity. The possible contribution to pluralism of programs devoted to facts and
news about motor cars seems to be smaller.14 In any case, national authorities do
have a rather wide margin of appreciation in this field.15
    The exercise of power by mighty financial groupings may form a threat to
media pluralism.16 The same holds true for a far-reaching monopolisation in the
press and media sector.17 In this particular respect, the concept of pluralism has a


   13 ECtHR 24 Nov. 1993, Lentia v. Austria.
   14 ECtHR 5 Nov. 2002, Demuth v. Switzerland.
   15
      ECtHR 7 Nov. 2000, United Christian Broadcasters v. UK (admissibility decision).
   16 ECtHR 28 June 2001, VGT Vereiniging gegen Tierfabriken v. Switzerland.
   17 EComHR 6 July 1976, R. 5178/71 (Geïllustreerde Pers v. The Netherlands).
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long tradition in European Community law as well. The `Television without fron-
tiers directive (1989)' includes the consideration:

   Whereas it is essential for the Member States to ensure the prevention of any acts
   which may prove detrimental to freedom of movement and trade in television
   programmes or which may promote the creation of dominant positions which
   would lead to restrictions on pluralism and freedom of televised information and
   the information sector as a whole.18

Political parties and other associations
The ECtHR has expressly pointed out the importance of pluralism in its case-law
concerning political parties. They play an `essential role in ensuring pluralism'.19
That is not surprising because in a democracy, the only system compatible with
the Convention,20 the will and opinion of the people must be expressed in the
free elections the state is obliged to organise in accordance with Article 3 First
Protocol to the Convention. Such elections are inconceivable `without the partici-
pation of a plurality of political parties representing the different shades of opin-
ion to be found within a country's population.'21
    The strong emphasis on the importance of political parties should not conceal
the fact that according to the Court, associations of a different kind play an essen-
tial role in a democratic society too:

   While in the context of Article 11 the Court has often referred to the essential role
   played by political parties in ensuring pluralism and democracy, associations
   formed for other purposes, including those protecting cultural or spiritual heri-
   tage, pursuing various socio-economic aims, proclaiming or teaching religion,
   seeking an ethnic identity or asserting a minority consciousness, are also impor-
   tant to the proper functioning of democracy. For pluralism is also built on the
   genuine recognition of, and respect for, diversity and the dynamics of cultural tra-
   ditions, ethnic and cultural identities, religious beliefs, artistic, literary and socio-
   economic ideas and concepts.22



     18 Cf. consideration 44, Television without frontiers directive 1997. In the Constitutional Treaty

there was also a special provision dedicated to respect for pluriformity in the media (Art. II-71
para. 2).
     19 ECtHR 30 Jan. 1998, United Communist Party of Turkey and others v. Turkey.
     20
        Idem par. 45.
     21 Idem par. 44.
     22 EtCHR 17 Feb. 2004, Gorzelik v. Poland, par. 92; cf. more recently ECtHR 20 Oct. 2005,

Ouranio Toxo v. Greece, par. 35; ECtHR 19 Jan. 2006, United Macedonian Organization Ilinden and
others v. Bulgaria, par. 58, cf. ECtHR 5 Oct. 2006, Moscow Branch of the Salvation Army v. Russia,
par. 61.
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Religion and belief
The previous paragraph already implicates that the ECtHR considers a demo-
cratic society much more than just a political system. Therefore it is not surprising
that the right to freedom of religion and belief is also inextricably related to de-
mocracy and pluralism:

   Freedom of thought, conscience and religion is one of the foundations of a
   `democratic society' within the meaning of the Convention. It is, in its religious
   dimension, one of the most vital elements that go to make up the identity of be-
   lievers and their conception of life, but it is also a precious asset for atheists, ag-
   nostics, sceptics and the unconcerned. The pluralism indissociable from a
   democratic society, which has been dearly won over the centuries, depends on
   it.23

Consequently, the Court looks upon the freedom to associate with others with
the same religion or philosophy of life as an essential feature of a democratic
society:

   The autonomous existence of religious groups is indispensable for pluralism in a
   democratic society and is thus an issue at the very heart of the protection which
   Article 9 affords.24

The importance of this religious and philosophy of life pluralism entails a certain
obligation for the state to act neutrally and impartially. A registration system for
religious groupings, for example, must take that into account.25

Education
The relationship between education and pluralism has already been mentioned.
Pluralism in this field may be seen as the result of the responsibility of the state for
the effectuation of the right to education as recognised in Article 2 First Protocol
of the Convention on the one hand and the parents' right to respect for their
religion or philosophy of life on the other hand. Once again, according to the
Court there is a direct connection with democracy:

   safeguarding pluralism in education (...) is essential for the preservation of the
   `democratic society' as conceived by the Convention. In view of the power of the

    23 ECtHR 15 May 1993, Kokkinakis v. Greece, par. 31; ECtHR 13 Feb. 2003, Refah Partisi and

others v. Turkey, par. 90; ECtHR 10 Nov. 2005, Leyla Sahin v. Turkey, par. 104.
    24 ECtHR 5 Oct. 2006, Moscow Branch of the Salvation Army v. Russia, par. 58
    25 ECtHR 13 Dec. 2001, Metropolitan Church of Bessarabia v. Moldova.
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   modern State, it is above all through State teaching that this aim must be
   realised.26

In this respect it has to be taken into account that the parents' right should not
infringe the children's right to education which is also laid down in Article 2 First
Protocol. Respecting parents' religious and philosophical convictions does not
prevent the State from `imparting through teaching or education information of a
directly or indirectly religious or philosophical kind.'27 It is forbidden, however,
for the State to impose an established religion on the pupils or to pursue another
aim of indoctrination.28


A further analysis
It turns out that the ECtHR uses the concept of pluralism when judging interfer-
ences with a number of individual fundamental rights. The Court strongly links
individual liberties with a characteristic of society. Moreover, the Court stresses
the importance of a pluralist political process within a pluralist society. In this
section these two connections will be further analysed.

Pluralism and individual liberty
The right to freedom of religion or belief, the right to freedom of expression and
even the right to freedom of association first and foremost belong to individuals.
How is that to be reconciled with the importance of pluralism, a concept aiming
at groups or institutions?
   On the one hand pluralism can be considered to be the outcome of the exercise
of several individual fundamental rights. Individual freedoms make it possible to
get organised by reason of conviction, preference or interest. The existence of
associations, churches and other religious groups, political parties and media can
be seen as just the result of individual choices. On the other hand pluralism can be
considered to be the very condition for the exercise of certain individual rights.
The average person does not found an association or a political party. On the
contrary, he chooses from among the existing possibilities. The average person
does not publish a newspaper, he chooses one.29 Without any given diversity he
would not have a real choice.
    26 ECtHR 11 Sept. 2006, Konrad and others v. Germany (admissibility decision), referring to

Kjeldsen, Busk, Madsen & Pedersen, par. 50. More generally, pupils may be educated to become
responsible citizens participating in the democratic process in a pluralistic society, cf.
Bundesverfassungsgericht (German Constitutional Court) 31 May 2006, 2 BvR 1693/04.
    27
       ECtHR 29 June 2007, Folgerø v. Norway.
    28 Idem.
    29 The phenomenon of `weblog journalism' will be left aside.
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                                         Bernhard Knoll                         EuConst 3 (2007)

    One may even argue that fundamental freedoms in general and religious free-
dom in particular did not in the first place originate for the sake of individual
choice. Religious freedom had to make room for the existence of different reli-
gious groups by withdrawing from the state the authority to assess religious truth.
The individual right to choose is in a way, then, an additional result. In Western
societies, however, the right to freedom of religion and belief nowadays is ex-
pressly seen as a right to change your mind. Article 9 ECtHR not only lays down
everyone's right to manifest his religion or belief, but also the right to change his
religion or belief. Consequently, existing groups and associations may change if
their followers change and they will not remain if all their followers pull out.
From that point of view there is no real antithesis between the concept of plural-
ism and the concept of individual liberty, even though the stress is laid differently.

The notion that pluralism is both a result of and a condition for the exercise of
several rights in particular holds true for minorities. In other words, pluralism is
both an expression of their existence and at the same time a guarantee for their
existence. Pluralism, after all, is opposed to predominance by one group. There-
fore it is obvious that in several judgments the ECtHR has linked pluralism with
the rights of minorities. According to the Court, the fact that `pluralism, tolerance
and broadmindedness are hallmarks of a "democratic society"' implies that

   democracy does not simply mean that the views of a majority must always prevail:
   a balance must be achieved which ensures the fair and proper treatment of mi-
   norities and avoids any abuse of a dominant position.30

In another judgment, the Court refers to the Council of Europe Framework Con-
vention to argue that `a pluralist and genuine democracy is particularly important
for persons belonging to minorities.' 31 That also goes for ethnic and national
minorities. The Court points out the importance of the possibility for minorities
to express their own identity. Discrimination on account of ethnic origin conflicts
with the pluralistic starting point of a democratic society:

   In any event, the Court considers that no difference in treatment which is based
   exclusively or to a decisive extent on a person's ethnic origin is capable of being
   objectively justified in a contemporary democratic society built on the principles
   of pluralism and respect for different cultures.32

    30 ECtHR 13 Aug. 1981, Young, James & Webster v. UK, par. 23, 49 and 63, Cf. ECtHR 17 Feb.

2004, Gorzelik v. Poland, par. 90; ECtHR 10 Nov. 2005, Leyla Sahin v. Turkey, par. 108. See
Schokkenbroek, Toetsing aan de vrijheidsrechten van het Europees verdrag tot bescherming van de rechten
van de mens, Zwolle 1996, p. 191.
    31
       ECtHR 17 Feb. 2004, Gorzelik v. Poland.
    32 ECtHR 13 Dec. 2005, Timishev v. Russia, par. 58.
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Obviously, the concept of pluralism recognises the importance of groups and in-
stitutions. Therefore the concept of pluralism is sometimes regarded as supple-
mentary to an all too individualistic liberalism. After all, most values are group
values and groups play an important part in the development of the individual.33
That may be true, but the case-law of the ECtHR normally focuses on individual
liberty. The viewpoints of individuals do not lose their weight because the major-
ity of the group has another viewpoint.34
    In this line of argument, the Court rejects the notion of legal pluralism con-
ceived as a system in which different laws apply to the members of different reli-
gious groupings. One of the issues in the Refah Partisi case was that party's proposal
that there should be a plurality of legal systems. According to the Court, this
proposal would introduce into all legal relationships a distinction between indi-
viduals grounded on religion. It would categorise everyone according to his reli-
gious beliefs and it would allow him rights and freedoms not as an individual but
according to his allegiance to a religious movement.35 The Court judged such a
system to be contrary to the basic principles of the Convention.
    More generally, individual freedoms are not just derivates of the existing plu-
ralism. Pluralism may be considered as a `technicité' of freedom36 or even as a
social objectification of freedom, to be studied more easily by the social sciences
than the individual freedoms, which to a certain extent remain as yet to be exer-
cised. That does not mean that individual liberties are swallowed up by pluralism.
It is the other way round: pluralism enhances individual liberties.

Pluralism and political participation
Pluralism is especially important as far as political participation and political opinion
building is concerned. The constitutions of a number of European states explic-
itly lay down this principle. The constitutions of Spain and Romania mention
`political pluralism', the constitution of Portugal refers to `pluralistic democratic
expression and organisation'. Other constitutions state the importance of a multi-
party system or the free competition between political parties.
    Apparently, between the individual citizens and the state there is no vacuum
where the general will spontaneously arises. One of the most important means for
an individual to have some influence on the decision-making process is voting for
and being a member of one of the political parties which for their part bid for the

    33 A. Eisenberg, Reconstructing Political Pluralism, New York 1995.
    34 Cf. ECtHR 13 Aug. 1981, Young, James & Webster v. UK: `Accordingly, the mere fact that the
applicants' standpoint was adopted by very few of their colleagues is again not conclusive of the
issue now before the Court'.
    35 ECtHR 13 Feb. 2003, Refah Partisi v. Turkey, par. 119.
    36 J. Mertens de Wilmars, `Libertés, pluralisme et droit, Pluralisme et intégration Européenne',

in L. van Goethem & L. Waelkens (eds.), Liberté, pluralisme et droit, Bruxelles 1995, p. 14.
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                                     Bernhard Knoll                    EuConst 3 (2007)

public's favour. In this process the media play an important part as well. They
offer the public

   information and ideas on political issues just as on those in other areas of public
   interest. (......) Freedom of the press furthermore affords the public one of the
   best means of discovering and forming an opinion on the ideas and attitudes of
   political leaders.37

In a democratic society all kinds of personal opinions, group interests and associa-
tional aspirations may nourish the political process. Religion may play its part as
well.
    Opinions may be based on religious values38 and the exercise of the right of
freedom of association may have a religious background.39 In its judgment in the
Refah Partisi case, the Court is somewhat more cautious with regard to religiously
based political parties, but it does not exclude in advance their significance for
pluralism and democracy. Provided that the means used are legal and democratic
and the aims of the party are compatible with fundamental democratic principles,
`a political party animated by the moral values imposed by a religion cannot as
such be regarded as intrinsically inimical to the fundamental principles of democ-
racy, as set forth in the Convention.'40 This paper will return to this subject later
on.

By recognising the essential role of political parties, the Court does not discount
the importance of other associations. There are all kinds of associations in which
an individual may express his identity or his opinions.41 Participating in these
associations may give an individual all kinds of different valuable experiences,
spiritual or rather worldly, intellectually challenging or rather entertaining. More-
over, the function of a lot of associations goes further:

   It is only natural that, where a civil society functions in a healthy manner, the par-
   ticipation of citizens in the democratic process is to a large extent achieved
   through belonging to associations in which they may integrate with each other
   and pursue common objectives collectively.42



   37  ECtHR 8 July 1986, Lingens v. Austria.
   38
       ECtHR 4 Dec. 2003, Ozgür Gündüz v. Turkey.
    39 ECtHR 17 Feb. 2004, Gorzelik v. Poland.
    40 ECtHR 13 Feb. 2003, Refah Partisi v. Turkey, par. 100.
    41
       Cf. the two foundations of freedom of expression: self development and democracy.
    42 ECtHR 5 Oct. 2006, Moscow Branch of the Salvation Army v. Russia, ECtHR 21 June 2007,

Zhechev v. Bulgaria, both referring to Gorzelik.
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At this place the Court's concept of pluralism demonstrates a certain affinity with
pluralism theory in political science. The concept coined by Dahl assumes that all
kinds of groupings and associations (trade unions, organisations of entrepreneurs,
organisations of elderly people, churches, environment protection associations,
organisations of farmers, human rights organisations and so on) try to influence
government policies. They lobby directly at government agencies and inside po-
litical parties as well. Normally, a citizen belongs to several groupings and as such
he has some influence in determining the policy of the government.43 Political
pluralism may therefore be described as: `a plurality of groups to which individu-
als belong and by which individuals seek to advance and, more importantly, to
develop, their interests.'44
    This theory, in spite of being criticised at several points, still has some impor-
tant aspects. Firstly, the theory contradicts elitist theory which assumes that every
democracy has a definite elite with which the real power rests.45 Secondly, the
theory considers the influence of all kinds of groups to be a guarantee that not one
grouping can actually seize power. Thirdly, the theory assumes that membership
of groups and associations, more particularly the membership of all kinds of dif-
ferent groups and associations, furthers social integration and stability. An indi-
vidual learns to compromise and to adapt himself within these groupings and
associations. Moreover, being a member of different associations which may have
different and sometimes contradicting aims improves the individual's willingness
to accept compromise.
    This paper does not claim that the ECtHR has really adopted this theory, but
some judgments seem to have a similar background. The above quotation about
participation and integration is actually preceded by this consideration: `The har-
monious interaction of persons and groups with varied identities is essential for
achieving social cohesion.'46 The emphasis in pluralism theory on the phenom-
enon of the individual organising himself in different associations in different fields
can also be found in the case-law of the Court. In a decision on a petition about
the possibilities of special private and denominational education in Germany the
Court considered:

   The Federal Constitutional Court stressed the general interest of society to avoid
   the emergence of parallel societies based on separate philosophical convictions and
   the importance of integrating minorities into society. The Court regards this as

    43
       R. Dahl, Who governs? Yale 1961; R. Dahl, Pluralist democracy in the United States. Conflict
and Consent, Chicago 1967.
    44 A. Eisenberg, Reconstructing Political Pluralism, New York 1995
    45
       Vgl. A. Hicks & F. Lechner in T. Janovski (ed.), The Handbook of Political Sociology, CUP
2005.
    46 ECtHR 5 Oct. 2006, Moscow Branch of the Salvation Army v. Russia, par. 61.
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                                         Bernhard Knoll                           EuConst 3 (2007)

   being in accordance with its own case-law on the importance of pluralism for de-
   mocracy.47, 48

To sum up, the case-law of the Court shows the important role of pluralism in the
political process. Citizens do not only try to influence political decisions as indi-
viduals, but also as members of all kinds of associations. Participating in these
associations may contribute to a pluralist democracy and to social cohesion as
well. The comments of the Court about religiously based political parties and the
possible emergence of parallel societies do suggest that these effects are not to be
taken for granted. In certain circumstances pluralism may even need some protec-
tion. That is our next section's subject.

Protection of pluralism
Pluralism is not only a concept that aims at a description of the actual situation of
a democratic society and its consequences for individual liberty, but pluralism is a
value to be protected as well.49 After all, pluralism offers the individual a real
choice and possibilities for developing himself, it provides for a many-voiced po-
litical process and may contribute to social stability.
    Yet, pluralism to a large extent is the outcome of government abstention. The
notion of pluralism as a hallmark of a democratic society, however, may also imply
that the state has a part to play in the protection and safeguarding of pluralism.
For years this idea is to be found in the case-law of the ECtHR. The Court labels
the state as the `ultimate guarantor of pluralism' (...).50 It has also linked the idea
that pluralism is especially important for minorities with the notion that the state
not only has to respect their freedoms, but under circumstances has a duty to look
after the conditions for minorities to express their identity.51 The potential task in
the field of the media recognised by the Court was already mentioned above. In
France the Conseil Constitutionnel judged a press merger law to be in conformity

    47  ECtHR 11 Sept. 2006, Konrad and others v. Germany (admissibility decision).
    48  The ECtHR apparently lacks confidence in the integrative power of a `pillarised' society. For
40 years such a structure of society existed in the Netherlands. The individual had an interest in all
kinds of different associations and organisations (trade union, sporting club, school, church, news-
paper and so on) but all these institutions were often part of one and the same Catholic, Protestant
or Socialist pillar. In other words, there were not many associational connections between individu-
als living in different pillars. One of the most famous Dutch political scientists has studied the
reasons why this very society was stable after all: A. Lijphart, The politics of accommodation, pluralism
and democracy in the Netherlands, Berkeley 1975. Stability was achieved by co-operation and will-
ingness to compromise at the top.
     49 Cf. J. Mertens de Wilmars, `Libertés, pluralisme et droit, Pluralisme et intégration Européenne',

in L. van Goethem & L. Waelkens (eds.), Liberté, pluralisme et droit, Bruxelles 1995, p. 14.
     50 E.g., ECtHR 24 Nov. 1993, Lentia v. Austria.
     51 Gorzelik, para. 93.
The Concept of Pluralism in the Case-Law of the ECHR
Bosnia: Reclaiming Local Power from International Authority                             379

with the constitution, because this law's restrictions served pluralism, an `objectif
de valeur constitutionnelle'.52
   This paper will treat two special aspects of the more active role of the state in
protecting pluralism: the possible positive obligations of the state as far as the
relationship between different groups is concerned and the obligation of the state
to prevent an anti-pluralistic seize of power.

Relationship between different groups
The ECtHR realises that pluralism may carry tensions just because people of all
kinds of convictions live in one and the same society. Actually, pluralism, toler-
ance and broadmindedness must go together, according to the Court. So there
must be room to express controversial opinions. The state, for example, has an
obligation to prevent opponents of a controversial demonstration from rendering
the freedom to assembly illusory.53
    Tolerance and broadmindedness imply that groups and their members have to
bear criticism. That principle has been made clear by the Court as well as far as
religious groups are concerned:

   Those who choose to exercise the freedom to manifest their religion, irrespective
   of whether they do so as members of a religious majority or minority, cannot rea-
   sonably expect to be exempt from all criticism. They must tolerate and accept the
   denial by others of their religious beliefs and even the propagation by others of
   doctrines hostile to their faith.54

A ban on serious criticism of a religion therefore will be contrary to Article 10
ECHR.55
    Even if differences of opinion between different religious groupings create a
tension, the State's duty is not to remove the tension by eliminating pluralism. For
example, when a religious community splits up, the mutual tension thereafter is
to be considered as one of the inevitable effects of pluralism. In such a situation
the State has to take care that the `competing groups' tolerate each other.56 In any
case the State's duty of neutrality and impartiality, as defined in the Court's case-
law, is incompatible with any power on the State's part to assess the legitimacy of
religious beliefs.57

   52
      84-181 DC, 10/11 Oct. 1984; 82-141 DC, 27 July 1982.
   53 ECtHR 21 June 1988, Plattform Ärzte für das Leben v. Austria.
   54 ECtHR 20 Sept. 1994, Otto Preminger Institut v. Austria, par. 47.
   55
      ECtHR 31 Jan. 2006, Giniewski c. France; ECtHR 2 May 2006, Tatlav c. Turquie.
   56 ECtHR 13 Dec. 2001, Metropolitan Church of Bessarabia v. Moldova.
   57 ECtHR 5 Oct. 2006, Moscow Branch of the Salvation Army v. Russia, par. 58, referring to

ECtHR 13 Dec. 2001, Metropolitan Church of Bessarabia v. Moldova, and to ECtHR 26 Oct. 2000,
Hasan & Chaush v. Bulgaria.
380                                Aernout Nieuwenhuis
                                      Bernhard Knoll                      EuConst 3 (2007)

However, another starting point of the Court is the idea that groupings are to be
protected against too vehement attacks. The state has a positive obligation to
protect religious groupings against treatment that would make it impossible for
them to profess their conviction without being threatened.58 In other cases the
Court has given national authorities a rather wide margin of appreciation to judge
if the offensiveness of certain anti-religious utterances was a sufficient reason for a
ban. A `gratuitously' offensive and biting satire for example could be prohibited.59
    The importance of pluralism seems to be a double-edged sword here. On the
one hand pluralism involves room for all kinds of different opinions. On the
other hand pluralism, tolerance and respect for the `equal dignity' of others are
foundations of a democratic society and may prompt state action against `hate
speech'.60 The case-law of the Court shows that the question whether an utter-
ance is to be considered as a contribution to public debate is often decisive. If this
is the case, freedom of speech gives a substantial protection and offensiveness as
such will not easily be a good reason for a ban. On the other hand it may be stated
that in several cases, the Court has pointed to an obligation of every citizen

   to avoid as far as possible expressions that are gratuitously offensive to others and
   thus an infringement to their rights, and which therefore do not contribute to any
   form of public debate capable of furthering progress in human affairs.61

Anti-pluralistic political groupings
In a pluralistic and democratic society all kinds of different and conflicting values
may exist.62 In that respect pluralism and democracy involve a certain value-
relativism.63 Individuals themselves decide what values they prefer; they may choose
for example between an active or a contemplative life. In politics there exist all
kinds of values as well. Political parties decide for themselves whether in a given
situation they prefer equality above liberty or the other way around. These parties
must leave room for each other. The actual outcome of the political process will
therefore always be `provisional'.
    The existence of groupings with ideas contrary to the very values of democracy
and pluralism raises a problem, however. It may be useful to distinguish between

    58
       ECtHR 20 Sept. 1994, Otto Preminger Institut v. Austria; ECtHR 25 Nov. 1996, Wingrove v.
UK; ECtHR 9 Sept. 2005, I.A. c. Turquie.
    59 ECtHR 20 Sept. 1994, Otto Preminger Institut v. Austria.
    60
       ECtHR 4 Dec. 2003, Gündüz v. Turkey, par. 40.
    61 ECtHR 20 Sept. 1994, Otto Preminger Institut v. Austria.
    62 J. Rawls, `The Domain of the Political and Overlapping Consensus', in Collected Papers,

Boston 1999.
    63 R.C. van Ooyen, Der Staat der Moderne, Hans Kelsens Pluralismustheorie, Berlin 2003. For

that matter pluralism is not the same as relativism, Galston 2002, supra n. 1, p. 30.
The Concept of Pluralism in the Case-Law of the ECHR
Bosnia: Reclaiming Local Power from International Authority                                381

such groupings that strive for political power and such groupings that do not.
After all, in Europe nowadays, the democratic and pluralistic freedoms do not
automatically extend to anti-democratic or anti-pluralistic political movements.64
Experiences with fascism and communism have been decisive at this point. The
preamble of the ECHR shows that human rights and democracy are to be consid-
ered to be inextricably bound up with each other and that democracy is a part of
the `European public order'.65 The abuse of law provision (Article 17 ECHR)
shows even more clearly that some political groupings are to be treated differently:

   One of the main objectives of Article 17 is to prevent totalitarian or extremist
   groups from justifying their activities by referring to the Convention.66

Subsequently, the Court has under certain circumstances allowed a ban on a po-
litical party. Because of the fact that such a ban is one of the most drastic interfer-
ences with the freedom of association, only `serious breaches such as those which
endanger political pluralism or fundamental democratic principles could justify a
ban on a political party.'67 One of the essential considerations of the Court in the
Refah Partisi case was the fact that the aforesaid party was regarded as aiming at a
replacement of the system of free and pluralistic political decision-making by a
theocratic system. An earlier Commission judgment shows that a party that wants
to set up a communistic and thus anti-pluralistic regime may be banned as well.68

   This special approach normally does not hold true for groupings not striving
for political power or using violence. Inside religious and other groups exist all
kinds of convictions that are incompatible with the basic principles of a modern
democratic society. Most religions, for example, do not strongly support equality
between men and women. Many groupings may be organised in an authoritarian
way as well. As long as they do not want to impose their views on others and as
long as it is guaranteed that members of such groups are free to leave, these groups
may actually be considered as contributing to social pluralism. These groups them-
selves may even endorse pluralism and the corresponding freedom.69 In any case


    64 Cf. A. Logemann, Grenzen der Menschenrechte in demokratischen Gesellschaften, Baden Baden

2004, p. 292.
    65 ECtHR 30 Jan. 1998, United Communist Party of Turkey and others v. Turkey.
    66 Among others ECtHR 17 June 2004, Zdanoka v. Latvia, par. 109; cf. ECtHR 16 Nov. 2004,

Norwood v. UK (admissibility decision). The Court has also referred to totalitarian examples in
modern European history, ECtHR 13 Feb. 2003, Refah Partisi v. Turkey, par. 99.
    67 ECtHR 14 Feb. 2006, Christian Democratic Peoples Party v. Moldava, par. 76.
    68
       EComHR 20 July 1957, 250/57.
    69 J. Rawls, `The Domain of the Political and Overlapping Consensus', in Collected Papers,

Boston 1999, p. 474.
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                                        Bernhard Knoll                        EuConst 3 (2007)

they do not by definition threaten the `overlapping consensus' in politics neces-
sary for the maintenance of democracy.70
    Nevertheless, we have seen that there is no strict separation between political
and other opinions. Therefore, the range of thought of some groupings may form
a breeding ground for farther-reaching and anti-pluralistic political opinions.
Government interference to eliminate such thoughts could easily infringe the free-
dom of religion or the freedom of association, because a ban on the dissemination
of these thoughts will not as such be necessary in a democratic society. In fact, the
ECtHR judged a criminal conviction because of a religiously inspired argument
in favour of sharia in the setting of a television debate to be a violation of Article
10 ECHR.71 This catches the eye because in the Refah Partisi case, the aim of
introducing sharia was one of the reasons for the party ban that the Court ac-
knowledged:

   the Court considers that sharia, which faithfully reflects the dogmas and divine
   rules laid down by religion, is stable and invariable. Principles such as pluralism in
   the political sphere or the constant evolution of public freedoms have no place in
   it.72

Yet, the government is not powerless in defending the basic principles of a mod-
ern democratic society. Even if a grouping presents itself as having a religious
character, the state is permitted to review its real character:

   the Court recognizes that the States are entitled to verify whether a movement or
   association carries on, ostensibly in pursuit of religious aims, activities which are
   harmful to the population.73

Moreover, the government is allowed to restrict the reach of religious convictions
that contradict those starting points. The Court accepted the banning of the
headscarf from public education institutions. One of the reasons for that ban was
the assessment of the headscarf as an expression of gender inequality. In this area
the national authorities do have a rather wide margin of appreciation. So the
Court's none-too-clear concept of `true religious pluralism'74 is to be elaborated
by every member state of the Convention.


     70 Cf. Art. 7 of the Convention on the Elimination of all Forms of Discrimination against

Women. This provision is more strict for organisations with a political nature.
     71 ECtHR 4 Dec. 2003, Gündüz v. Turkey.
     72 ECtHR 13 Feb. 2003, Refah Partisi v. Turkey, par. 123.
     73
        In ECtHR 26 Sept. 1996, Manoussakis v. Greece, the Court talks about the need to secure true
religious pluralism.
     74 ECtHR 10 Nov. 2005, Leyla Sahin v. Turkey, par. 110.
The Concept of Pluralism in the Case-Law of the ECHR
Bosnia: Reclaiming Local Power from International Authority                       383

Conclusion
The ECtHR often uses the concept of pluralism. The concept is used in free
speech cases, in freedom of education cases, in freedom of association cases and in
freedom of religion cases. Generally speaking, the concept of pluralism reinforces
individual and associational freedoms. Individuals and members of associations
may for example express their different opinions. There are no predominant groups
whose values may not be criticised. Government may not thwart new religious
groups or cultural minorities' organisations. There is even a reciprocity between
pluralism and individual and associational freedoms. Pluralism may be consid-
ered to be the outcome of the exercise of certain rights such as the right to freedom
of association or freedom of religion, but at the same time it may be considered to
be a condition for the exercise of those rights.
    Pluralism in politics is especially important, and political freedoms are also
reinforced by the concept. Political pluralism, however, is not to be separated
from pluralism in society. It is not too far-fetched a conclusion that the ECtHR
considers pluralism in society to be a conditio sine qua non for pluralism in poli-
tics. In this respect the special importance of media pluralism is to be understood.
Media do not only express all kinds of values and identities, but they play their
indispensable role in the political process as well. Therefore, predominance in the
media sector must be prevented in order to safeguard political pluralism.
    According to the Court, pluralism may contribute to the proper functioning
of the social and political system, especially when individuals participate in all
kinds of different groups and associations. The Court is less confident about a
situation in which society is really split up and members of the same group do not
have much contact with members of other groups. In other words, pluralism is
different from the existence of separate societies. In this respect the Court's rejec-
tion of legal pluralism, of different legal orders for different groups fits in easily.

Individual liberty and pluralism do not always coincide. When the state is pro-
tecting pluralism the relationship between pluralism and individual freedoms be-
comes more ambiguous. Some of the free speech cases may serve as an example.
On the one hand pluralism of speech may be at its peak when offensive speech is
not banned at all. On the other hand, the Court leaves room for protecting the
feelings of the members of religious groups against offensive utterances. In this
ambiguous situation, a margin of appreciation is left to the national authorities.
To a certain extent they may decide what `true religious pluralism' means. The
same holds true for government measures to discourage thoughts contradicting
the basic principles of democracy.
384                            Aernout Nieuwenhuis
                                  Bernhard Knoll                   EuConst 3 (2007)

When a political party promotes such thoughts, even a ban could be justified. A
ban is allowed for by the Court if a party strives for one of the opposites of plural-
ism. These opposites may be described as totalitarianism, theocracy and absolut-
ism. In this respect pluralism forms an essential part of the concept of democracy.

The question whether the concept of pluralism in the case-law of the ECtHR has
a clear and distinct meaning can be answered by now. Pluralism can be defined as
diversity of values, opinions, and social groups and the absence of predominance
of particular values, opinions or groups. By using the concept of pluralism, the
Court adds to the importance of individual and associational fundamental rights.
As long as groups and associations leave individuals free to go, there's no discrep-
ancy between individual and associational liberties either.
    The Court's concept of pluralism gets rather vague in cases concerning the
protection or the promotion of pluralism. Then, individual liberties as freedom of
speech may conflict with group interests. In that kind of cases, the Court still
seems to use its own single and distinct notion of pluralism, but at the same time
allows for a plurality of national pluralisms. Some might find that a little bit
disappointing. Nevertheless, the Court's case-law on the meaning of pluralism
and the limits to pluralism will continue to be fascinating, simply because it is
with that concept that the Court tries to reconcile individual liberties with the
existence of groups.