Covenant on Civil and Political Rights and Arts. 11 and 17 of the European Convention for
the Protection of Human Rights and Fundamental Freedoms. The Tribunal stated:
The neutrality of the armed forces in political matters (Art. 26.2 of the Constitution)
has two aspects. Firstly, it means that the armed forces cannot be an autonomous
entity within the state political structure, capable of influencing political decisions
of state constitutional organs. This political neutrality is secured in particular
through civil control, by subjecting the military to the constitutional organs of the
republic. The second aspect of the neutrality of the armed forces is that they must
be removed from the sphere of direct influence of political parties.76
Moderately restrictive policies of political neutrality, on the other hand, seek to restrict the
mode of participation in public life of members of the armed forces. The objective is to
avoid the appearance that the military or individuals identified as servicemen or -women
are publicly aligned with a political cause. For example, in Italy, Belgium, and the United
Kingdom, restrictions exist on political activities while in uniform.77 Limitations may be
imposed (as in the United Kingdom) on serving soldiers holding office in political parties
but not on membership per se.
There may be duties to seek permission or notify the authorities before engaging in political activities. In Croatia, for example, the right to stand for election, the right to join a
political party, and the right to freedom of expression relating to military issues all require
prior approval at the ministerial level.78 In Luxembourg, members of the armed forces are
permitted to stand for election but if elected must leave the service.
Least restrictive policies of political neutrality aim to encourage political participation by
limiting restrictions on members of the armed forces provided the exercise of political
rights does not interfere with military duty. The Netherlands follows this approach and
even permits, under certain circumstances, demonstrations at military installations or the
participation of soldiers in uniform in public meetings. The rationale of minimal restrictions may be — as with highly restrictive means — to protect democratic values, albeit by
different means. The German “citizen in uniform” approach, for example, aims to inculcate
active promotion of democracy in the military by permitting the participation of individual members of the forces.
All of these approaches have something to be said for them in terms of guaranteeing democratic practice and balancing this with the individual rights of members of the armed
forces. It is submitted that, while no one approach can be prescribed, what is needed is
sensitivity to when political activity genuinely calls neutrality into question and to when
restrictions on rights are excessive. Restrictions on the rights of service personnel that are
contextual in taking account of different layers of political office, differing degrees of political involvement, and the military requirements of different places and occasions are
more easily defended. In that sense, less restrictive policies are to be preferred, although
the particular history or situation in a country may, exceptionally, justify a more restrictive
approach to ensure neutrality. It would also be exceptional that prohibitions based on the
type of political view supported by a member of the armed forces could be justified; in the
case of a political party advocating the overthrow of democratic institutions, however, such
restrictions might be justified.
76 An unofficial translation from the website of the Polish Constitutional Tribunal, <http://www.trybunal.
gov.pl/eng/index.htm>.
77 Nolte and Krieger, op. cit., note 74, pp. 79-80.
78 ODIHR-DCAF project questionnaire, question 54.b, 2006.
62
Handbook on Human Rights and Fundamental Freedoms of Armed Forces Personnel
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