Recent Important Decision by the Argentine Supreme Court on Freedom of Association and Political Parties

On March 17, 2009, the Supreme Court of Argentina ruled that the “Partido Nuevo Triunfo” cannot be recognized as a political party. The issue had been heard in the lower court, the “Cámara Nacional Electoral” – which rules on issues regarding political parties and elections – that “Partido Nuevo Triunfo” had tried to get recognition with the name “Partido Nacionalista de los Trabajadores” – a name that resembled the “National Sozialistiche Deutschen Arbeiterpartei” – and that its political program included the idea that the “homosexual, junky, and corrupted net currently present in Argentina” shall be dismantled (art. 29 of its Political Program) and that laziness should be prosecuted, and that respect for that last rule would be twice as important with regards to foreigners (art. 29 of its Program). Articles 16 and 38 of the Organic Law of Political Parties 23.298 state that the name of a party shall not include racist or discriminatory references and that the same rule applies to the use of symbols that represent the party.

In order to decide the case, the Court analyzed whether banning the “Partido Nuevo Triunfo” would amount to using a “suspicious classification.” The issue at stake was whether banning this party from participating in elections would amount to a violation of equality before the law, which is a constitutional guarantee – as stated in Section 16 of the Argentine Constitution and also in international human rights treaties ratified by Argentina. When the State provides a differential treatment to a certain group, it has the burden of showing that there are “compelling state interests” that justify the distinction. The use of the suspicious classifications standard by Argentine Supreme Court was inspired by its use in American jurisprudence. According to this idea, it is insufficient for the State to show merely that a legal classification is “reasonable,” “convenient,” or “timely.” Rather, the government must demonstrate the existence of a justifying “compelling state interest.”

The Court held that the State had an interest in promoting policies favouring racial equality – this justifies banning parties who are openly disrespectful of that fundamental aim. Furthermore, the Court quotes International Treaties: Article 2 of the International Covenant on Civil and Political Rights ratified by Argentina, which states that “1. Any propaganda for war shall be prohibited by law; and that 2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” Article 13.5, American Convention on Human Rights: “Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be considered as offenses punishable by law.”

The Court held that Articles 16 and 38 of the Organic Law of Political Parties 23.298 shall be understood on the basis of the aforementioned clauses.