Case no 23885/94
21. The representative of the Freedom and Democracy Party (ÖZDEP) maintained that the fact that it 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. The Government’s preliminary objection
22. The Government maintained before the Court that ÖZDEP could not be regarded as a victim of the dissolution complained of as it had been dissolved voluntarily on 30 April 1993, well before 14 July 1993 when the Constitutional Court had ordered its dissolution. The Constitutional Court had made that order, notwithstanding the voluntary dissolution, to prevent the party leadership from forming a new party with the same name and status. Had ÖZDEP’s leaders lodged their application before the Court in their own name, too, then they could have claimed to have been victims of the dissolution; but they had not done so.
23. At the hearing before the Court, the Delegate of the Commission said that in his view the Government were estopped from raising their objection because they had not done so at the admissibility stage of the proceedings before the Commission and the Commission had not found any ground for declaring the application inadmissible of its own motion. Exceptionally, however, the Commission had considered it appropriate to consider of its own motion the issue of ÖZDEP’s standing in its report made under former Article 31 of the Convention. Nonetheless, that did not prevent the estoppel arising against the Government owing to their failure to raise the objection before the Commission.
24. The applicant party contended that the Government were estopped from raising the objection for the first time before the Court. It invited the Court to accept that it was a victim since the sole purpose of dissolving the party voluntarily had been to allow its leaders to escape the effects of a dissolution by the Constitutional Court.
25. The Court notes that the Government did not raise before the Commission the preliminary objection they have now made under Article 34 of the Convention that ÖZDEP did not have standing as a victim. Consequently, an estoppel should arise against them (see, among other authorities, the Zana v. Turkey judgment of 25 November 1997, Reports of Judgments and Decisions 1997-VII, p. 2546, § 44). In its report, however, the Commission examined that issue of its own motion. If an estoppel was nonetheless held to arise against the Government, they would be deprived of an opportunity to make representations on a point that was considered by the Commission of its own motion and was the subject of argument before the Court. That appears inconsistent with the principles of adversarial procedure and equality of arms. Consequently, the Government must be permitted to raise the objection concerned even though it was made out of time.
26. As to the merits of the objection, the Court accepts that ÖZDEP’s leaders resolved to dissolve their party in the hope of avoiding certain effects of a dissolution by the Constitutional Court, in their case a ban on their holding any similar office in any other political body (see section 95 of the Law on the regulation of political parties – paragraph 16 above). That explanation is supported by section 108 of the Law on the regulation of political parties which, by providing that voluntarily dissolved political parties continue to exist for the purposes of dissolution by the Constitutional Court, is intended to ensure that they are subject to all the effects of the latter form of dissolution (see paragraph 16 above). Thus the decision of ÖZDEP’s leaders to dissolve the party was not made freely, as the decisions of leaders and members of associations should be if they are to be recognised under Article 11.
In addition, as the Court has already noted, section 108 of the Law on the regulation of political parties provides “[a] resolution by the competent body of a political party dissolving that party after an application for its dissolution has been lodged shall not prevent the proceedings before the Constitutional Court continuing or deprive any dissolution order that is made of its legal effects”. It therefore follows that as domestic law provides that a voluntarily dissolved political party remains in existence for the purposes of dissolution by the Constitutional Court, the Government cannot contend before the Court that ÖZDEP was no longer in existence when the dissolution order was made (see, mutatis mutandis, the Kolompar v. Belgium judgment of 24 September 1992, Series A no. 235-C, p. 54, § 32, and the Open Door and Dublin Well Woman v. Ireland judgment of 29 October 1992, Series A no. 246-A, p. 22, § 42).
Consequently, the Government’s preliminary objection must be dismissed.
B. Merits of the complaint
1. Whether there has been an interference
27. All of those appearing before the Court accepted that ÖZDEP’s dissolution amounted to an interference with the freedom of association of its members. The Court takes the same view.
2. Whether the interference was justified
28. 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”
29. It was common ground that the interference was “prescribed by law”, as the measures ordered by the Constitutional Court were based on the Constitution and sections 78, 81 and 89 of Law no. 2820 on the regulation of political parties (see paragraphs 15-16 above).
(b) Legitimate aim
30. The Government maintained that the interference pursued a number of legitimate aims: preventing disorder, protecting the rights of others and ensuring national security, including the territorial integrity of the country.
31. The applicant party denied that it had ever been a threat to Turkish society.
32. The Commission considered that the impugned measures could be regarded as having pursued at least one of the legitimate aims set out in paragraph 2 of Article 11: the protection of territorial integrity and thus the preservation of “national security”.
33. The Court shares the Commission’s view on this point.
(c) “Necessary in a democratic society”
37. 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 said 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).
38. In the instant case, it must firstly be noted that in its judgment of 14 July 1993, the reasons given by the Constitutional Court for ordering ÖZDEP’s dissolution were that the party’s programme tended to undermine the territorial integrity of the State and the unity of the nation, while violating the Constitution and sections 78(a) and 81(a) and (b) of the Law on the regulation of political parties. In the Constitutional Court’s view, the programme was based on the assumption that there was a separate Kurdish people in Turkey with its own culture and language. The Kurds were presented in the programme as an oppressed people whose democratic rights were being completely ignored. ÖZDEP had called for a right to self-determination for the Kurds and supported their right to wage a “war of independence”. Its stance was similar to that of terrorist organisations and constituted in itself an incitement to insurrection. That justified making an order for its dissolution (see paragraph 14 above).
In addition, the Constitutional Court found that, by advocating the abolition of the government Religious Affairs Department in its programme (on the ground that religious affairs should be under the control of the religious institutions themselves), ÖZDEP had undermined the principle of secularism. The Constitutional Court therefore held that there had been a breach of section 89 of the Law on the regulation of political parties.
39. In the light of these factors, the Court must consider the content of the passages in issue and determine whether it justified ÖZDEP’s dissolution.
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 in particular to satisfy itself that the national authorities based their decisions on an acceptable assessment of the relevant facts (see, mutatis mutandis, the Socialist Party and Others judgment cited above, p. 1256, § 44).
40. Having analysed ÖZDEP’s programme, the Court finds nothing in it that can be considered a call for the use of violence, an uprising or any other form of rejection of democratic principles. That, in the Court’s view is an essential factor to be taken into consideration (see, mutatis mutandis, Okçuoglu v. Turkey [GC], no. 24246/94, § 48, 8 July 1999, unreported). On the contrary, the need to abide by democratic rules when implementing the proposed political project was stressed in the programme. Among other things, it says that ÖZDEP “proposes the creation of a democratic assembly of representatives of the people elected by universal suffrage” and “favours a peaceful and democratic solution to the Kurdish problem, subject to the strict application of international instruments such as the Helsinki Final Act, the European Convention on Human Rights and the Universal Declaration of Human Rights” (see paragraph 8 above).
According to the Government, however, ÖZDEP “openly supported the armed struggle by declaring in a statement leaving no room for doubt that ‘ÖZDEP supports the just and legitimate struggle of the peoples for independence and freedom. It stands by them in this struggle’”.
While the Court considers that that phrase did represent a statement of intent by ÖZDEP to make certain political demands, it finds nothing in it that would incite people to use violence or break the rules of democracy. In that respect, the passage concerned is virtually indistinguishable from passages to be found in the programmes of certain bodies that are politically active in other member States of the Council of Europe.
41. The Constitutional Court also criticised ÖZDEP for having distinguished two nations in its programme – the Kurds and the Turks – and for having referred to the existence of minorities and to their right to self-determination, to the detriment of the unity of the Turkish nation and the territorial integrity of the Turkish State.
The Court notes that, taken together, the passages in issue present a political project whose aim is in essence the establishment – in accordance with democratic rules – of “a social order encompassing the Turkish and Kurdish peoples”. It is stated elsewhere in the programme that “[t]he Freedom and Democracy Party is campaigning for the voluntary unification of the Kurdish and Turkish peoples, who participated in the foundation of the country”. It is true that in its programme ÖZDEP also refers to the right to self-determination of the “national or religious minorities”; however, taken in context, those words do not encourage people to seek separation from Turkey but are intended instead to emphasise that the proposed political project must be underpinned by the freely given, democratically expressed, consent of the Kurds.
In the Court’s view, the fact that such a political project is considered incompatible with the current principles and structures of the Turkish State does not mean that it infringes democratic rules. It is of the essence of democracy to allow diverse political projects 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 (see the Socialist Party and Others judgment cited above, p. 1257, § 47). The same applies, too, to ÖZDEP’s proposals for the abolition of the Religious Affairs Department.
42. Admittedly, it cannot be ruled out that the passages concerned may conceal a different political design from the publicly proclaimed one. However, given the absence of any concrete acts suggesting otherwise, there is no reason to cast doubts on the genuineness of ÖZDEP’s programme. ÖZDEP was therefore penalised solely for exercising its freedom of expression.
43. The Court must now determine whether, in the light of the above considerations, ÖZDEP’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 the Socialist Party and Others judgment cited above, p. 1258, § 49).
44. In view of the essential role played by 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 (ibid., p. 22, § 46).
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 Socialist Party and Others judgment cited above, p. 1256, § 45).
45. In the instant case, the Court notes that the interference in issue was radical: ÖZDEP was definitively dissolved with immediate effect, its assets were liquidated and transferred ipso jure to the Treasury and its leaders were banned from carrying on certain similar political activities. Such drastic measures may be taken only in the most serious cases.
46. The Court has already noted that the relevant passages in ÖZDEP’s programme, though voicing criticism and demands, do not in its view call into question the need to comply with the principles and rules of democracy.
The Court takes into account the background of cases before it, in particular the difficulties associated with the fight against terrorism (see, among other authorities, the United Communist Party of Turkey and Others judgment cited above, p. 27, § 59). In that connection, the Government have affirmed that ÖZDEP bears a share of the responsibility for the problems caused by terrorism in Turkey (see paragraph 35 above). The Government nonetheless fail to explain how that could be so as ÖZDEP scarcely had time to take any significant action. It was formed on 19 October 1992, the first application for it to be dissolved was made on 29 January 1993 and it was dissolved, initially at a meeting of its founding members on 30 April 1993 and then by the Constitutional Court on 14 July 1993. Any danger there may have been could have come only from ÖZDEP’s programme, but there, too, the Government have not established in any convincing manner how, despite their declared attachment to democracy and peaceful solutions, the passages in issue in ÖZDEP’s programme could be regarded as having exacerbated terrorism in Turkey.
47. In view of the findings referred to above, there is no call either for Article 17 to come into play, as nothing in the passages concerned 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 Socialist Party and Others judgment cited above, p. 1259, § 53).
48. In conclusion, ÖZDEP’s dissolution 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.