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Termination and Dissolution

Yazar and Others v Turkey, 9 April 2002 [ECtHR]

Cases nos 22723/93, 22724/93 and 22725/93

29.  The applicants alleged that the dissolution of the People's Labour Party (“the HEP”) had infringed their right to freedom of association, guaranteed by Article 11 of the Convention ...


A. Applicability of Article 11


30.  As a preliminary point, the Government raised the question of the applicability of Article 11 of the Convention to political parties. In their submission, the States parties to the Convention had at no stage intended to submit their constitutional institutions, and in particular the principles they considered to be the essential conditions of their existence, to review by the Strasbourg institutions. The views of a political party, amplified by an organisation with many branches across the country, might expose the State to considerable danger where the party advocated territorial separatism and the fragmentation of national territory by stirring up hatred between the various sectors of the Turkish population. In such extreme cases, the criteria established in the Court's case-law on the subject were irrelevant in that the statements in question could not be classified as ordinary political discourse governed by the principle of pluralism of opinions. The Government considered that an examination of the Convention institutions' case-law regarding political parties showed that their dissolution fell within the margin of appreciation of constitutional courts, and pointed out that in the instant case Turkey's fundamental constitutional principles were at stake.
31.  The applicants and the Commission considered that there was nothing in the wording of Article 11 to suggest that it did not apply to political parties.
32.  In its judgment in United Communist Party of Turkey and Others v. Turkey, the Court held that political parties were 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 could be no doubt that they came within the scope of Article 11. It further noted that an association, including a political party, was not excluded from the protection afforded by the Convention simply because its activities were regarded by the national authorities as undermining the constitutional structures of the State and calling for the imposition of restrictions (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.
It follows that the Government's objection cannot be allowed.


B.  Compliance with Article 11


1 Whether there was interference


33.  The Government, subject to their observations on the applicability of Article 11, and the applicants accepted that the HEP's dissolution amounted to interference with the applicants' right to freedom of association. That view is shared by the Court.


2 Whether the interference was justified


34.  Such 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”

35.  It was common ground that the interference was “prescribed by law”, as the measures ordered by the Constitutional Court were based, inter alia, on Articles 2, 3 and 14 and former Article 68 of the Constitution and on sections 78, 80, 81 and 101 of Law no. 2820 on the regulation of political parties (see paragraphs 27-28 above).


(b) Legitimate aim

36.  The Government submitted that the interference complained of had pursued several legitimate aims, namely the protection of public safety, the rights of others and national security and the preservation of the country's territorial integrity.
37.  The applicants asserted that they and their party had always called for peaceful solutions to the problems faced by citizens of Kurdish origin in Turkey.
38.  The Commission expressed the opinion that the measures in issue could be said to have pursued at least one of the legitimate aims under paragraph 2 of Article 11, namely the preservation of territorial integrity and, therefore, “national security”.
39.  The Court shares the Commission's view on this point.


(c) “Necessary in a democratic society”

...

46.  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.

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 (see, among many other authorities, Handyside v. the United Kingdom, judgment of 7 December 1976, Series A no. 24, p. 23, § 49, and Jersild v. Denmark, judgment of 23 September 1994, Series A no. 298, p. 26, § 37). 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 United Communist Party of Turkey and Others, cited above, pp. 20-21, §§ 42-43).
47.  As to the links between democracy and the Convention, the Court has made the following observations (see, among other authorities, United Communist Party of Turkey and Others, cited above, pp. 21-22, § 45):

“Democracy is without doubt a fundamental feature of the European public order ... That is apparent, firstly, from the Preamble to the Convention, which establishes a very clear connection between the Convention and democracy by stating that the maintenance and further realisation of human rights and fundamental freedoms are best ensured on the one hand by an effective political democracy and on the other by a common understanding and observance of human rights ... The Preamble goes on to affirm that European countries have a common heritage of political tradition, ideals, freedom and the rule of law. The Court has observed that in that common heritage are to be found the underlying values of the Convention ...; it has pointed out several times that the Convention was designed to maintain and promote the ideals and values of a democratic society ...

In addition, Articles 8, 9, 10 and 11 of the Convention require that interference with the exercise of the rights they enshrine must be assessed by the yardstick of what is 'necessary in a democratic society'. The only type of necessity capable of justifying an interference with any of those rights is, therefore, one which may claim to spring from 'democratic society'. Democracy thus appears to be the only political model contemplated by the Convention and, accordingly, the only one compatible with it.”

48.  The Court has also defined as follows the limits within which political groups can continue to enjoy the protection of the Convention while conducting their activities (ibid., p. 27, § 57):

“... 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.”

49.  On that point, the Court considers that a political party may campaign for a change in the law or the legal and constitutional structures of the State on two conditions: firstly, the means used to that end must in every respect be legal and democratic, and secondly, the change proposed must itself be compatible with fundamental democratic principles. It necessarily follows that a political party whose leaders incite to violence or put forward a policy which does not comply with one or more of the rules of democracy or which is aimed at the destruction of democracy and the flouting of the rights and freedoms recognised in a democracy cannot lay claim to the Convention's protection against penalties imposed on those grounds (see, mutatis mutandis, Socialist Party and Others v. Turkey, judgment of 25 May 1998, Reports 1998-III, pp. 1256-57, §§ 46-47, and Lawless v. Ireland (merits), judgment of 1 July 1961, Series A no. 3, pp. 45-46, § 7).
50.  Nor can it be ruled out that the programme of a political party or the statements of its leaders may conceal objectives and intentions different from those they proclaim. To verify that they do not, the content of the programme or statements must be compared with the actions of the party and its leaders and the positions they defend taken as a whole (see United Communist Party of Turkey and Others, p. 27, § 58, and Socialist Party and Others, pp. 1257-58, § 48, both judgments cited above).
51.  Moreover, for the purpose of determining whether an interference is necessary in a democratic society, the adjective “necessary”, within the meaning of Article 11 § 2, implies the existence of a “pressing social need”.
The Court's task is not to take the place of the competent national authorities but rather to review under Article 11 the decisions they delivered pursuant to their power of appreciation. This does not mean that the Court's supervision is limited to ascertaining whether a respondent State exercised its discretion reasonably, carefully and in good faith. It must look at the interference complained of in the light of the case as a whole in order to determine whether it was “proportionate to the legitimate aims pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 11 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see, mutatis mutandis, Ahmed and Others v. the United Kingdom, judgment of 2 September 1998, Reports 1998-VI, pp. 2377-78, § 55, and Goodwin v. the United Kingdom, judgment of 27 March 1996, Reports 1996-II, pp. 500-01, § 40).
52.  In the present case, the Court's task is to assess whether the HEP's dissolution and the accessory penalties imposed on the applicants met a “pressing social need” and whether they were “proportionate to the legitimate aims pursued”.
53. The Court notes at the outset that in its judgment dissolving the HEP the Constitutional Court did not consider whether the party's programme and constitution were lawful but merely determined whether its political activities contravened the relevant statutory prohibitions. In dissolving the party, the Constitutional Court had regard to public statements made by the HEP's leaders, which it considered to constitute new facts and evidence that were binding on the party as a whole. Consequently, the Court may confine itself to examining those statements.
54.  As to whether the means used in the HEP's political campaign were lawful and democratic or whether its leaders were advocating the use of violence as a political weapon, the Constitutional Court held that “the HEP's aims resembled those of terrorists” and that “the use of accusatory and aggressive statements based on falsehoods, which the HEP's leaders constantly repeated as a form of provocation, was likely to promote tolerance of terrorist acts and to justify and encourage their perpetrators”. Those findings formed the basis of the Government's argument before the Court that the HEP's leaders had incited to ethnic hatred, insurrection and, therefore, violence.
55.  The Court must examine whether such findings may be considered to have been based on an acceptable assessment of the relevant facts. It observes, firstly, that the HEP did not express any explicit support for or approval of the use of violence for political ends. Furthermore, incitement to ethnic hatred and incitement to insurrection are criminal offences in Turkey. At the material time, however, none of the HEP's leaders had been convicted of any such offence. That was precisely the argument relied on by the Constitutional Court in dismissing the allegation by Principal State Counsel at the Court of Cassation that the HEP had become a centre of illegal activities. In the absence of any calls for the use of violence or any other illegal methods, the Court is not persuaded by the Government's argument, which is based in part on the Constitutional Court's judgment, that the HEP supported and approved the use of violence or other illegal methods for political ends.
56.  As to whether the HEP pursued aims that were incompatible with democratic principles, the Turkish Constitutional Court criticised the party for “seeking to divide the Turkish nation in two, with Turks on one side and Kurds on the other, with the aim of establishing separate States” and for “seeking to destroy national and territorial integrity”. The Court, like the Commission, observes that the HEP's political message amounted to claims that “citizens of Kurdish origin were not free to use their own language and were unable to make political demands based on the principle of self-determination, and the security forces campaigning against pro-Kurdish terrorist organisations were committing illegal acts and were responsible in part for the suffering of Kurdish citizens in certain parts of Turkey” (see the Commission's report of 1 March 1999, § 64).
57.  The Court accepts that the principles supported by the HEP, such as the right to self-determination and recognition of language rights, are not in themselves contrary to the fundamental principles of democracy. It likewise agrees with the Commission's reasoning that if merely by advocating those principles a political group were held to be supporting acts of terrorism, that would reduce the possibility of dealing with related issues in the context of a democratic debate and would allow armed movements to monopolise support for the principles in question. That in turn would be strongly at variance with the spirit of Article 11 and the democratic principles on which it is based.
58.  Moreover, the Court considers that, even if proposals inspired by such principles are likely to clash with the main strands of government policy or the convictions of the majority of the public, it is necessary for the proper functioning of democracy that political groups should be able to introduce them into public debate in order to help find solutions to general problems concerning politicians of all persuasions (see, among other authorities, Vogt v. Germany, judgment of 26 September 1995, Series A no. 323, p. 25, § 52, and United Communist Party of Turkey and Others, cited above, p. 27, § 57). The Court considers that it was not satisfactorily established in the judgment of 14 July 1993 by which the HEP was dissolved that the party's policies were aimed at undermining the democratic regime in Turkey (see, mutatis mutandis, Freedom and Democracy Party (ÖZDEP) v. Turkey [GC], no. 23885/94, § 41, ECHR 1999-VIII). Nor was it argued before the Court that the HEP had any real chance of installing a regime which would not meet with the approval of everyone on the political stage (see, mutatis mutandis, United Communist Party of Turkey and Others, cited above, p. 27, § 57).
59.  Moreover, the severe, hostile criticisms made by the HEP's leaders about certain actions of the armed forces in their anti-terrorist campaign cannot in themselves constitute sufficient evidence to equate the HEP with armed groups carrying out acts of violence. The Court reiterates in this connection that the limits of permissible criticism are wider with regard to the government than in relation to a private citizen. In a democratic system the actions or omissions of the government must be subject to the close scrutiny not only of the legislative and judicial authorities but also of the press and public opinion (see, mutatis mutandis, Castells v. Spain, judgment of 23 April 1992, Series A no. 236, pp. 23-24, § 46). The Court is not persuaded that by criticising the actions of the armed forces the HEP's members of parliament and officials were pursuing any other goal than that of discharging their duty to draw attention to their electors' concerns.
60.   As the HEP did not advocate any policy that could have undermined the democratic regime in Turkey and did not urge or seek to justify the use of force for political ends, its dissolution cannot reasonably be said to have met a “pressing social need”.
61.  Reiterating that the dissolution of a political party is a “drastic” measure (see United Communist Party of Turkey and Others, pp. 26 and 27-28, §§ 54 and 61, and Socialist Party and Others, p. 1258, § 51, both judgments cited above), the Court considers that in the instant case such interference with the applicants' freedom of association was not necessary in a democratic society.
Accordingly, the HEP's dissolution breached Article 11 of the Convention.

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Breach of rules governing NGOs National security National security, public safety and prevention of disorder Territorial integrity Grounds Breach of constitutional law National security, public safety, prevention of disorder and protection of the rights and freedoms of others Public order and protection of the rights and freedoms of others Protection of the rights and freedoms of others