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State Support and Financing

Piroğlu and Karakaya v Turkey, 18 March 2008 [ECtHR]

Cases nos 36370/02 and 37581/02

57.  The second applicant also relied on Article 11 of the Convention, complaining that she had been convicted, pursuant to Sections 4 and 50 of the Associations Act, for not annulling the membership of thirteen persons, including her own, of the Human Rights Association ...

1.  Whether there was interference


61.  The Government maintained that there had been no interference with the second applicant's rights under Article 11 of the Convention.

62.  The Court considers that the second applicant's conviction on the membership question constituted, in itself, an interference with her rights under Article 11.

2.  Was the interference “prescribed by law”?


63.  The Government contended that the second applicant's conviction was prescribed by law, namely the Associations Act, and that it had pursued the legitimate aim of preventing disorder.
64.  The second applicant maintained that the interference in question was not prescribed by law, as at the material time the law stipulated that only those who had been convicted of certain offences were not entitled to be members of an association. However, she had had no prior conviction which would have required the annulment of her membership.
65.  As to the requirement of legality, according to the Court's case-law, which is also mentioned above (paragraph 51), the expression “in accordance with the law” refers to the quality of the legislation in question. Domestic law must afford a measure of protection against arbitrary interference by public authorities with Convention rights, in respect of which the rule of law, one of the basic principles of a democratic society, would not condone unfettered powers being conferred on the executive. Consequently, the law must indicate with sufficient clarity the scope of any executive discretion and the manner of its exercise (see Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 84, ECHR 2000-XI). It must furthermore provide adequate and effective safeguards against abuse, which may in certain cases include procedures for effective scrutiny by the courts (see, Glas Nadezhda EOOD and Elenkov v. Bulgaria, no. 14134/02, § 46, 11 October 2007).
66.  Turning to the present case, the Court notes at the outset that the interference with the second applicant's freedom of association stemmed from Sections 4 and 16 of the Associations Act, which provided that those who had been convicted of certain offences were not entitled to become members of an association. The Court observes that the second applicant contended that there had been no reason to terminate the membership of the thirteen people, including her own. She maintained that, although she had been taken into custody in 1999, she had been released and no criminal proceedings had been brought against her at that time. The Court is persuaded by the applicant's claim in the light of the Izmir Governor's letter of 10 July 2001 (paragraph 5 above). Consequently, the Government have not demonstrated why the public authorities could otherwise have legitimately required the annulment of the applicant's membership.
67.  This element leads the Court to conclude that the second applicant was deprived of proper legal protection against arbitrary interference with her freedom of association, as there was a failure to meet the requirements of lawfulness. That being so, the Court is again not required to determine whether this interference pursued a legitimate aim or whether it was proportionate to the aim pursued.
68.  There has therefore been a violation of Article 11 of the Convention.

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