Responsibility of Political Parties for Criminal Offences: Preliminary Observations, Challenges and Controversies

Abstract

This paper provides preliminary observations on the models of responsibility of political parties for criminal offences. First of all, it opens the general research question: Do we need criminal responsibility of political parties?In most countries it is difficult or impossible to attribute criminal liability to political parties. This is mainly due to legal obstacles to prosecute or convict political parties, or because of unwilling law enforcement bodies to undertake criminal procedures and hold political parties criminally liable. There is some paradox in such state of affairs. Namely, political parties have the highest responsibilities when governing state administrations, however, they bear little responsibility when they abuse the given powers. There are two main reasons for this. First is that classical doctrine of criminal law rejects the possibility of holding collectives criminally liable. Second is that ruling political parties – being the creators of legal frameworks governing their activities and having to certain extent the political influence on the criminal justice system – are in a position to minimize the possibility of sanctions for the wrongdoings they commit throughout their mandates. This vicious circle creates a state of “responsibility without accountability” i.e. it provides power and functions to political elites, but the risk of sanctioning their misbehaviours are minimal.The phenomenology of the criminal activities of political parties is somewhat specific due to the particularity of the position they have in states and societies. The preliminary research for this paper reveals the categories of crimes that can be attributed to political parties. They are mainly limited to: economic crimes, election crimes, political crimes, international crimes, crimes against privacy, hate speech, unlawful imprisonment and torture. One of the hypotheses of this research is that the causes of criminal activities of political parties are linked to the misbalance of two colliding interests: the duty to act for the benefit of the people vs. the will to power. When the prevailing goal of their conduct is to satisfy their will to power – there is a tendency to engage in criminal activities. The main two models used so far in criminal proceedings against political parties were in principle related to their status. The first model is to treat political parties as legal entities, while the second is to treat them as criminal organisations. In any case, it is important to be aware of the consequences of criminal proceedings and imposed sentences against political parties, which can be fatal for their political future. Various controversies linked to political trials throughout history have demonstrated the need of restrictions to the criminal responsibility of political parties in political settings where there is a danger of instrumentalisation of criminal proceedings in confrontations with the opposition parties. Therefore, it is necessary to find an adequate balance between the interests of justice and the need of preserving the functioning of the democratic system. This requires reconsidering possible alternatives to criminal law approach (constitutional, political, civil, administrative) since criminal law ought to be the “ultima ratio”. This research has the task to compare the advantages and disadvantages of different models and make proposals about how to address the criminality of political parties. Finally, a special attention is given to the types of sanctions that could be imposed on political parties.