Page - 257 - in Austrian Law Journal, Volume 2/2015

ALJ 2/2015 Constance Grewe 257 These provisions introduce some flexible elements counterbalancing the rigidity of the ethnic structures. The Constitutional Court in the Constituent peoples’ case considered them and tried to take them into account. Therefore the principle of equality of the constituent peoples is present- ed as a compromise formula that has to be balanced with the democratic multi-ethnic state, individual equality and political majority. The constitutional rules and principles based on ethnic affiliation must be viewed as an exception explicitly authorized by the Constitution. This nuanced analysis has then regressed in favor of a stronger preference given to the ethnic structures. In France as well the new Art 4 proclaims in its § 3 that ‘Statutes guarantee the pluralistic expres- sion of opinions and the equitable participation of political parties and groups in the democratic life of the Nation.’ While the Constitutional Council had already qualified the pluralism of opinions as one of the constitutional objectives,22 this is the first time that the concept of pluralism is ex- plicitly mentioned in the Constitution. Even though it is certainly important to proclaim solemnly this principle because constitutional texts have to be taken seriously, the effectiveness of the latter does not seem to be completely realized when compared to its definition by the ECtHR in the Gorzelik v. Poland case:23 ‘While in the context of Art 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 heritage, pursuing various socio-economic aims, proclaiming or teaching religion, seeking an ethnic identity or asserting a minority consciousness, are also im- portant to the proper functioning of democracy. For pluralism is also built on the genuine recogni- tion of, and respect for, diversity and the dynamics of cultural traditions, ethnic and cultural iden- tities, religious beliefs, artistic, literary and socio-economic ideas and concepts. The harmonious interaction of persons and groups with varied identities is essential for achieving social cohesion. It is only natural that, where a civil society functions in a healthy manner, the participation of citi- zens 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.’ The most characteristic element of a pluralist society is indeed the possibility given to everybody to play manifold different roles in his/her public, professional or private life: To accede freely to and to withdraw from various groups, associations, trade unions, parties, churches, etc. These roles or identities are neither necessarily same nor even similar or coherent and they are likely to evolve in time. This is the precious ingredient of flexibility allowing for the establishment of a pluralist society. And this is the missing dimension of a society governed by fixed ethnic groups or rigid social structures. 22 CC 29. 7. 1986, 86-210 DC, Régime de la presse. 23 ECtHR 17. 2. 2004 (GC), 44158/98 point 92.