Case no 21237/93
24. The applicants maintained that the fact that the Socialist Party (“the SP”) had been dissolved and its leaders banned from holding similar office in any other political party had infringed their right to freedom of association, as guaranteed by Article 11 of the Convention ...
A. Applicability of Article 11
29. In its judgment in the case of United Communist Party of Turkey and Others v. Turkey, the Court held that political parties are a form of association essential to the proper functioning of democracy and that in view of the importance of democracy in the Convention system, there can be no doubt that political parties come within the scope of Article 11. The Court noted on the other hand that an association, including a political party, is not excluded from the protection afforded by the Convention simply because its activities are regarded by the national authorities as undermining the constitutional structures of the State and calling for the imposition of restrictions (see the United Communist Party of Turkey and Others v. Turkey judgment of 30 January 1998, Reports of Judgments and Decisions 1998-I, p. 17, §§ 25 and 27). The Court sees no reason to come to a different conclusion in the instant case.
As to the application of Article 17, the Court will deal with it after considering the question of compliance with Article 11 (see paragraph 53 below).
B. Compliance with Article 11
2. Whether there was an interference
30. All those appearing before the Court acknowledged that the SP’s dissolution amounted to an interference in the three applicants’ right to freedom of association. That is also the Court’s view.
2. Whether the interference was justified ??
31. Such an interference will constitute a breach of Article 11 unless it was “prescribed by law”, pursued one or more legitimate aims under paragraph 2 and was “necessary in a democratic society” for the achievement of those aims.
(a) “Prescribed by law”
32. It was common ground that the interference was “prescribed by law”, as the measures ordered by the Constitutional Court were based on Articles 2, 3 § 1, 6, 10 § 1 and 14 § 1 and former Article 68 of the Constitution and sections 78, 81 and 96(3) of Law no. 2820 on the regulation of political parties (see paragraphs 16–17 above).
(b) Legitimate aim
33. The Government maintained that the interference pursued a number of legitimate aims: ensuring national security, public safety and territorial integrity and protecting the rights and freedoms of others. If the Court had accepted, as it had done in the Hadjianastassiou v. Greece judgment of 16 December 1992 (Series A no. 252), that an isolated case of espionage could harm national security, there was all the more reason to reach a similar conclusion where, as in the instant case, the very existence of a State Party to the Convention was threatened.
34. The applicants observed that before the Constitutional Court Principal State Counsel had at no stage relied on either national security or public safety.
35. The Commission considered that prohibiting activities which, in the authorities’ view, were likely to cause the collapse of the State or the division of its territory could be said to be intended to protect “national security” and territorial integrity.
36. The Court considers that the dissolution of the SP pursued at least one of the legitimate aims set out in Article 11: the protection of “national security”.
(c) “Necessary in a democratic society”
41. The Court reiterates that notwithstanding its autonomous role and particular sphere of application, Article 11 must also be considered in the light of Article 10. The protection of opinions and the freedom to express them is one of the objectives of the freedoms of assembly and association as enshrined in Article 11. That applies all the more in relation to political parties in view of their essential role in ensuring pluralism and the proper functioning of democracy.
As the Court has emphasised many times, there can be no democracy without pluralism. It is for that reason that freedom of expression as enshrined in Article 10 is applicable, subject to paragraph 2, not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. The fact that their activities form part of a collective exercise of freedom of expression in itself entitles political parties to seek the protection of Articles 10 and 11 of the Convention. (see, among other authorities, the United Communist Party of Turkey and Others judgment cited above, pp. 20–21, §§ 42–43).
42. In the instant case it must first be noted that in its judgment of 10 July 1992 the Constitutional Court held that on that occasion it no longer had to consider whether the SP’s programme and constitution were lawful, but only whether its political activities contravened the statutory prohibitions. In dissolving the party, the Constitutional Court had had regard to public statements – some of them in written form – made by Mr Perinçek which it considered to constitute new facts and evidence that were binding on the SP (see paragraph 15 above). Consequently, the Court may confine itself to examining those statements.
43. The Constitutional Court noted that, by distinguishing two nations –the Kurdish nation and the Turkish nation – Mr Perinçek had advocated the creation of minorities within Turkey and, ultimately, the establishment of a Kurdish-Turkish federation, to the detriment of the unity of the Turkish nation and the territorial integrity of the State. The SP was ideologically opposed to the nationalism of Atatürk, which was the most fundamental principle underpinning the Republic of Turkey. Although different methods were used, the aim of the SP’s political activity was similar to that of terrorist organisations. As the SP promoted separatism and revolt its dissolution was justified (see paragraph 15 above).
44. In the light of these factors, the Court must firstly consider the content of the statements in issue and then determine whether they justified the dissolution of the SP.
With regard to the first issue the Court reiterates that when it carries out its scrutiny, its task is not to substitute its own view for that of the relevant national authorities but rather to review under Article 11 the decisions they delivered in the exercise of their discretion. In so doing, the Court has to satisfy itself that the national authorities based their decisions on an acceptable assessment of the relevant facts (see, mutatis mutandis, the United Communist Party of Turkey and Others judgment cited above, p. 22, § 47).
45. Further, the Court has previously held that one of the principal characteristics of democracy is the possibility it offers of resolving a country’s problems through dialogue, without recourse to violence, even when they are irksome. Democracy thrives on freedom of expression. From that point of view, there can be no justification for hindering a political group solely because it seeks to debate in public the situation of part of the State’s population and to take part in the nation’s political life in order to find, according to democratic rules, solutions capable of satisfying everyone concerned (see the United Communist Party of Turkey and Others judgment cited above, p. 27, § 57).
46. Having analysed Mr Perinçek’s statements, the Court finds nothing in them that can be considered a call for the use of violence, an uprising or any other form of rejection of democratic principles. On the contrary, he stressed on a number of occasions the need to achieve the proposed political reform in accordance with democratic rules, through the ballot box and by holding referenda. At the same time, he spoke out against “the former culture idolising violence and advocating the use of force to solve problems between nations and in society” (see paragraph 13 above).
At the hearing the Agent for the Government stated that Mr Perinçek had “justified the use of violent and terrorist methods” by saying in particular: “The Kurd has proved himself through the fight of impoverished peasants by linking its destiny [to theirs]. By holding meetings with thousands of people in the towns and provinces, the Kurd had proved himself and broken down the barriers of fear.” Furthermore, by calling on those present to “sow courage, rather than watermelons”, Mr Perinçek had, in the Government’s submission, “exhorted them to stop all activities other than the destruction of order”. Lastly, by using the phrase “The Kurdish people are standing up” he had called upon them to revolt.
While the Court accepts that these phrases were directed at citizens of Kurdish origin and constituted an invitation to them to rally together and assert certain political claims, it finds no trace of any incitement to use violence or infringe the rules of democracy. In that regard, the relevant statements were scarcely any different from those made by other political groups that were active in other countries of the Council of Europe.
47. The Constitutional Court had also criticised Mr Perinçek for having drawn a distinction between two nations, the Kurdish nation and the Turkish nation, in his speeches and of thereby pleading in favour of creating minorities and the establishment of a Kurdish-Turkish federation, to the detriment of the unity of the Turkish nation and the territorial integrity of the State. Ultimately, the SP had advocated separatism.
The Court notes that, read together, the statements put forward a political programme with the essential aim being the establishment, in accordance with democratic rules, of a federal system in which Turks and Kurds would be represented on an equal footing and on a voluntary basis. Admittedly, reference is made to the right to self-determination of the “Kurdish nation” and its right to “secede”; however, read in their context, the statements using these words do not encourage secession from Turkey but seek rather to stress that the proposed federal system could not come about without the Kurds’ freely given consent, which should be expressed through a referendum.
In the Court’s view, the fact that such a political programme is considered incompatible with the current principles and structures of the Turkish State does not make it incompatible with the rules of democracy. It is of the essence of democracy to allow diverse political programmes to be proposed and debated, even those that call into question the way a State is currently organised, provided that they do not harm democracy itself.
48. It is true here too that, as was the case with the TBKP (see the United Communist Party of Turkey and Others judgment cited above, p. 27, § 58), it cannot be ruled out that the statements in issue concealed objectives and intentions different from the ones proclaimed in public. In the absence of concrete actions belying Mr Perinçek’s sincerity in what he said, however, that sincerity should not be doubted. The SP was thus penalised for conduct relating solely to the exercise of freedom of expression.
49. The Court also notes that Mr Perinçek was acquitted in the National Security Courts where he had been prosecuted in respect of the same statements (see paragraph 11 above). In that connection the Government stressed that the two types of proceedings were entirely different, one concerning the application of criminal law, the other the application of constitutional law. The Court merely notes that the Turkish courts had divergent views as to the effect of Mr Perinçek’s statements.
It is now important to determine whether, in the light of the above considerations, the SP’s dissolution can be considered to have been necessary in a democratic society, that is to say whether it met a “pressing social need” and was “proportionate to the legitimate aim pursued” (see, among many other authorities and mutatis mutandis, the Vogt v. Germany judgment of 26 September 1995, Series A no. 323, pp. 25–26, § 52).
50. The Court reiterates that, having regard to the essential role of political parties in the proper functioning of democracy (see the United Communist Party of Turkey and Others judgment cited above, p. 17, § 25), the exceptions set out in Article 11 are, where political parties are concerned, to be construed strictly; only convincing and compelling reasons can justify restrictions on such parties’ freedom of association. In determining whether a necessity within the meaning of Article 11 § 2 exists, the Contracting States have only a limited margin of appreciation, which goes hand in hand with rigorous European supervision embracing both the law and the decisions applying it, including those given by independent courts (see the United Communist Party of Turkey and Others judgment cited above, p. 22, § 46).
51. The Court observes that the interference in question was radical: the SP was dissolved with immediate and permanent effect, its assets were liquidated and transferred ipso jure to the Treasury and its leaders – who admittedly did not include Mr Perinçek when the party was dissolved (see paragraph 14 above) – were banned from carrying on certain similar political activities. Measures as severe as those may only be applied in the most serious cases.
52. The Court has already noted that Mr Perinçek’s statements, though critical and full of demands, did not appear to it to call into question the need for compliance with democratic principles and rules.
The Court is prepared to take into account the background of cases before it, in particular the difficulties associated with the prevention of terrorism (see, among other authorities, the United Communist Party of Turkey and Others judgment cited above, p. 27, § 59). In the present case, however, it has not been established how, in spite of the fact that in making them their author declared attachment to democracy and expressed rejection of violence, the statements in issue could be considered to have been in any way responsible for the problems which terrorism poses in Turkey.
53. In view of the findings referred to above, there is no need either to bring Article 17 into play, as nothing in the statements warrants the conclusion that their author relied on the Convention to engage in activity or perform acts aimed at the destruction of any of the rights and freedoms set forth in it (see, mutatis mutandis, the United Communist Party of Turkey and Others judgment cited above, p. 27, § 60).
54. In conclusion, the dissolution of the SP was disproportionate to the aim pursued and consequently unnecessary in a democratic society. It follows that there has been a violation of Article 11 of the Convention.