Accountability and Supervision

United Communist Party of Turkey and Others v Turkey, 30 January 1998 [ECtHR]

Case no 19392/92

18.  The applicants maintained that the fact that the United Communist Party of Turkey (“the TBKP”) had been dissolved and its leaders – including Mr Sargin and Mr Yagci – 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
24.  The Court considers that the wording of Article 11 provides an initial indication as to whether political parties may rely on that provision. It notes that although Article 11 refers to “freedom of association with others, including the right to form … trade unions …”, the conjunction “including” clearly shows that trade unions are but one example among others of the form in which the right to freedom of association may be exercised. It is therefore not possible to conclude, as the Government did, that by referring to trade unions – for reasons related mainly to issues that were current at the time – those who drafted the Convention intended to exclude political parties from the scope of Article 11.
25.  However, even more persuasive than the wording of Article 11, in the Court’s view, is the fact that political parties are a form of association essential to the proper functioning of democracy. In view of the importance of democracy in the Convention system (see paragraph 45 below), there can be no doubt that political parties come within the scope of Article 11.
26.  As to the Government’s allegation that the TBKP had called Turkey’s constitutional order into question and the inferences that were to be drawn from that fact, it should be said at the outset that at this stage the Court does not have to decide whether that allegation is true or whether it could be sustained solely on the basis of the constitution and programme of the party concerned. The Court refers in this connection to its observations concerning the necessity of the impugned interference (see paragraphs 42-47 below).
27.  The Court notes 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. As the Court has said in the past, while it is in principle open to the national authorities to take such action as they consider necessary to respect the rule of law or to give effect to constitutional rights, they must do so in a manner which is compatible with their obligations under the Convention and subject to review by the Convention institutions (see the Open Door and Dublin Well Woman v. Ireland judgment of 29 October 1992, Series A no. 246-A, p. 29, § 69).
28.  The Preamble to the Convention refers to the “common heritage of political traditions, ideals, freedom and the rule of law” (see paragraph 45 below), of which national constitutions are in fact often the first embodiment. Through its system of collective enforcement of the rights it establishes (see the Loizidou v. Turkey judgment of 23 March 1995 (preliminary objections), Series A no. 310, p. 26, § 70), the Convention reinforces, in accordance with the principle of subsidiarity, the protection afforded at national level, but never limits it (Article 60 of the Convention).
29.  The Court points out, moreover, that Article 1 requires the States Parties to “secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention”. That provision, together with Articles 14, 2 to 13 and 63, demarcates the scope of the Convention ratione personae, materiae and loci (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 90, § 238). It makes no distinction as to the type of rule or measure concerned and does not exclude any part of the member States’ “jurisdiction” from scrutiny under the Convention. It is, therefore, with respect to their “jurisdiction” as a whole – which is often exercised in the first place through the Constitution – that the States Parties are called on to show compliance with the Convention.
30.  The political and institutional organisation of the member States must accordingly respect the rights and principles enshrined in the Convention. It matters little in this context whether the provisions in issue are constitutional (see, for example, the Gitonas and Others v. Greece judgment of 1 July 1997, Reports of Judgments and Decisions 1997-IV) or merely legislative (see, for example, the Mathieu-Mohin and Clerfayt v. Belgium judgment of 2 March 1987, Series A no. 113). From the moment that such provisions are the means by which the State concerned exercises its jurisdiction, they are subject to review under the Convention.
31.  Moreover, it may on occasion prove difficult, even artificial, in proceedings before the Court, to attempt to distinguish between what forms part of a State’s institutional structures and what relates to fundamental rights in the strict sense. That is particularly true of an order for dissolution of the kind in issue in the present case. In view of the role played by political parties (see paragraph 25 above), such measures affect both freedom of association and, consequently, democracy in the State concerned.
32.  It does not, however, follow that the authorities of a State in which an association, through its activities, jeopardises that State’s institutions are deprived of the right to protect those institutions. In this connection, the Court points out that it has previously held that some compromise between the requirements of defending democratic society and individual rights is inherent in the system of the Convention (see, mutatis mutandis, the Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, p. 28, § 59). For there to be a compromise of that sort any intervention by the authorities must be in accordance with paragraph 2 of Article 11, which the Court considers below (see paragraphs 37 et seq.). Only when that review is complete will the Court be in a position to decide, in the light of all the circumstances of the case, whether Article 17 of the Convention should be applied.
33.  Before the Commission the Government also submitted, in the alternative, that while Article 11 guaranteed freedom to form an association, it did not on that account prevent one from being dissolved.
The Commission took the view that freedom of association not only concerned the right to form a political party but also guaranteed the right of such a party, once formed, to carry on its political activities freely.
The Court reiterates that the Convention is intended to guarantee rights that are not theoretical or illusory, but practical and effective (see, among other authorities, the Artico v. Italy judgment of 13 May 1980, Series A no. 37, p. 16, § 33, and the Loizidou judgment cited above, p. 27, § 72). The right guaranteed by Article 11 would be largely theoretical and illusory if it were limited to the founding of an association, since the national authorities could immediately disband the association without having to comply with the Convention. It follows that the protection afforded by Article 11 lasts for an association’s entire life and that dissolution of an association by a country’s authorities must accordingly satisfy the requirements of paragraph 2 of that provision (see paragraphs 35–47 below).
34.  In conclusion Article 11 is applicable to the facts of the case.

B. Compliance with Article 11

1.Whether there has been an interference

35.  Before the Commission, the Government submitted that the dissolution of the TBKP had not constituted an interference with Mr Sargin and Mr Yagci’s right to freedom of association. However, it did not reiterate that argument before the Court.
36.  Like the Commission, the Court concludes that there has been an interference with that right in respect of all three applicants, having regard (in the case of Mr Sargin and Mr Yagci) to their role as founders and leaders of the party and to the ban which prevented them from discharging similar responsibilities in any other political grouping (see paragraph 10 above).

2.Whether the interference was justified

37.  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”

38.  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 11–12 above).

(b) Legitimate aim

39.  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.
40.  The Commission distinguished between the different grounds relied on by the Constitutional Court for dissolving the TBKP. Inasmuch as the interference was based on the use of the word “communist” in the party’s name, it could not, in the Commission’s view, be said to be justified by any of the legitimate aims referred to in Article 11. Indeed, the Constitutional Court had recognised that there was nothing to suggest that the TBKP would not respect democratic institutions or that it intended to establish a dictatorship. In addition, Law no. 3713 on the prevention of terrorism, which came into force on 12 April 1991, had repealed the provisions of the Criminal Code making it an offence to participate in organisations or activities that professed to be, inter alia, communist in inspiration.
On the other hand, inasmuch as the dissolution was based on a distinction drawn in the TBKP’s programme between Turks and Kurds, it could, in the Commission’s view, be said to have been ordered with the aim of protecting territorial integrity and thus “national security”. It was not that the TBKP was a terrorist organisation or one sponsoring terrorism, but it could be regarded as openly pursuing the creation of a separate Kurdish nation and consequently a redistribution of the territory of the Turkish State.
41.  Like the Commission, the Court considers that the dissolution of the TBKP pursued at least one of the “legitimate aims” set out in Article 11: the protection of “national security”.

(c) “Necessary in a democratic society”

1. General principles

42.  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 (see, among other authorities, the Young, James and Webster v. the United Kingdom judgment of 13 August 1981, Series A no. 44, p. 23, § 57, and the Vogt v. Germany judgment of 26 September 1995, Series A no. 323, p. 30, § 64).
43.  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 (see paragraph 25 above).
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 (see, among many other authorities, the Vogt judgment cited above, p. 25, § 52). 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.
44.  In the Informationsverein Lentia and Others v. Austria judgment the Court described the State as the ultimate guarantor of the principle of pluralism (see the judgment of 24 November 1993, Series A no. 276, p. 16, § 38). In the political sphere that responsibility means that the State is under the obligation, among others, to hold, in accordance with Article 3 of Protocol No. 1, free elections at reasonable intervals by secret ballot under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature. Such expression is inconceivable without the participation of a plurality of political parties representing the different shades of opinion to be found within a country’s population. By relaying this range of opinion, not only within political institutions but also – with the help of the media – at all levels of social life, political parties make an irreplaceable contribution to political debate, which is at the very core of the concept of a democratic society (see the Lingens v. Austria judgment of 8 July 1986, Series A no. 103, p. 26, § 42, and the Castells v. Spain judgment of 23 April 1992, Series A no. 236, p. 23, § 43).
45.  Democracy is without doubt a fundamental feature of the European public order (see the Loizidou judgment cited above, p. 27, § 75).
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 (see the Klass and Others judgment cited above, p. 28, § 59). 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 (see the Soering v. the United Kingdom judgment of 7 July 1989, Series A no. 161, p. 35, § 88); it has pointed out several times that the Convention was designed to maintain and promote the ideals and values of a democratic society (see the Kjeldsen, Busk Madsen and Pedersen v. Denmark judgment of 7 December 1976, Series A no. 23, p. 27, § 53, and the Soering judgment cited above, p. 34, § 87).
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.
The Court has identified certain provisions of the Convention as being characteristic of democratic society. Thus in its very first judgment it held that in a “democratic society within the meaning of the Preamble and the other clauses of the Convention”, proceedings before the judiciary should be conducted in the presence of the parties and in public and that that fundamental principle was upheld in Article 6 of the Convention (see the Lawless v. Ireland judgment of 14 November 1960 (preliminary objections and questions of procedure), Series A no. 1, p. 13). In a field closer to the one concerned in the instant case, the Court has on many occasions stated, for example, that freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual’s self-fulfilment (see, among other authorities, the Vogt judgment cited above, p. 25, § 52), whereas in the Mathieu-Mohin and Clerfayt judgment cited above it noted the prime importance of Article 3 of Protocol No. 1, which enshrines a characteristic principle of an effective political democracy (p. 22, § 47).
46.  Consequently, 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. The Court has already held that such scrutiny was necessary in a case concerning a Member of Parliament who had been convicted of proffering insults (see the Castells judgment cited above, pp. 22–23, § 42); such scrutiny is all the more necessary where an entire political party is dissolved and its leaders banned from carrying on any similar activity in the future.
47.  When the Court 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. This does not mean that it has to confine itself to ascertaining whether the 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 and determine whether it was “proportionate to the legitimate aim 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, the Jersild v. Denmark judgment of 23 September 1994, Series A no. 298, p. 26, § 31).

2 Application of the principles to the present case

51.  The Court notes at the outset that the TBKP was dissolved even before it had been able to start its activities and that the dissolution was therefore ordered solely on the basis of the TBKP’s constitution and programme, which however – as is for that matter apparent from the Constitutional Court’s decision – contain nothing to suggest that they did not reflect the party’s true objectives and its leaders’ true intentions (see paragraph 58 below). Like the national authorities, the Court will therefore take those documents as a basis for assessing whether the interference in question was necessary.
52.  It is to be noted further that in support of his application for a dissolution order, Principal State Counsel at the Court of Cassation made four submissions. Two of these were rejected by the Constitutional Court: the claim that the TBKP intended to maintain that the proletariat was superior to the other social classes and the argument that it was contrary to section 96(2) of Law no. 2820 for it to claim to be the successor to a political party that had previously been dissolved – the Turkish Workers’ Party (see paragraph 9 above).
The Court can therefore confine its review to the other two grounds, which were upheld by the Constitutional Court.
53.  In the first of these it was alleged that the TBKP had included the word “communist” in its name, contrary to section 96(3) of Law no. 2820 (see paragraph 12 above). The Constitutional Court held, in particular, that that provision prohibited the formation of political parties on a purely formal ground: the mere fact of using a name proscribed in that section sufficed to trigger its application and consequently to entail the dissolution of any political party that, like the TBKP, had contravened it (see paragraph 10 above).
54.  The Court considers that a political party’s choice of name cannot in principle justify a measure as drastic as dissolution, in the absence of other relevant and sufficient circumstances.
In this connection, it must be noted, firstly, that on 12 April 1991 the provisions of the Criminal Code making it a criminal offence to carry on political activities inspired, in particular, by communist ideology were repealed by Law no. 3713 on the prevention of terrorism. The Court also attaches much weight to the Constitutional Court’s finding that the TBKP was not seeking, in spite of its name, to establish the domination of one social class over the others, and that, on the contrary, it satisfied the requirements of democracy, including political pluralism, universal suffrage and freedom to take part in politics (see paragraph 10 above). In that respect, the TBKP was clearly different from the German Communist Party, which was dissolved on 17 August 1956 by the German Constitutional Court (see the Commission’s decision cited above in the German Communist Party case).
Accordingly, in the absence of any concrete evidence to show that in choosing to call itself “communist”, the TBKP had opted for a policy that represented a real threat to Turkish society or the Turkish State, the Court cannot accept that the submission based on the party’s name may, by itself, entail the party’s dissolution.
55.  The second submission accepted by the Constitutional Court was that the TBKP sought to promote separatism and the division of the Turkish nation. By drawing a distinction in its constitution and programme between the Kurdish and Turkish nations, the TBKP had revealed its intention of working to achieve the creation of minorities which – with the exception of those referred to in the Treaty of Lausanne and the treaty with Bulgaria – posed a threat to the State’s territorial integrity. It was for that reason that self-determination and regional autonomy were both proscribed by the Constitution (see paragraph 10 above).
56.  The Court notes that although the TBKP refers in its programme (see paragraph 9 above) to the Kurdish “people” and “nation” and Kurdish “citizens”, it neither describes them as a “minority” nor makes any claim – other than for recognition of their existence – for them to enjoy special treatment or rights, still less a right to secede from the rest of the Turkish population. On the contrary, the programme states: “The TBKP will strive for a peaceful, democratic and fair solution of the Kurdish problem, so that the Kurdish and Turkish peoples may live together of their free will within the borders of the Turkish Republic, on the basis of equal rights and with a view to democratic restructuring founded on their common interests.” With regard to the right to self-determination, the TBKP does no more in its programme than deplore the fact that because of the use of violence, it was not “exercised jointly, but separately and unilaterally”, adding that “the remedy for this problem is political” and that “[i]f the oppression of the Kurdish people and discrimination against them are to end, Turks and Kurds must unite”.
The TBKP also said in its programme: “A solution to the Kurdish problem will only be found if the parties concerned are able to express their opinions freely, if they agree not to resort to violence in any form in order to resolve the problem and if they are able to take part in politics with their own national identity.”
57.  The Court considers one of the principal characteristics of democracy to be 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. To judge by its programme, that was indeed the TBKP’s objective in this area. That distinguishes the present case from those referred to by the Government (see paragraph 49 above).
58.  Admittedly, it cannot be ruled out that a party’s political programme may conceal objectives and intentions different from the ones it proclaims. To verify that it does not, the content of the programme must be compared with the party’s actions and the positions it defends. In the present case, the TBKP’s programme could hardly have been belied by any practical action it took, since it was dissolved immediately after being formed and accordingly did not even have time to take any action. It was thus penalised for conduct relating solely to the exercise of freedom of expression.
59.  The Court is also prepared to take into account the background of cases before it, in particular the difficulties associated with the fight against terrorism (see, among other authorities, the Ireland v. the United Kingdom judgment cited above, pp. 9 et seq., §§ 11 et seq., and the Aksoy v. Turkey judgment of 18 December 1996, Reports 1996-VI, pp. 2281 and 2284, §§ 70 and 84). In the present case, however, it finds no evidence to enable it to conclude, in the absence of any activity by the TBKP, that the party bore any responsibility for the problems which terrorism poses in Turkey.
601.  Nor is there any need to bring Article 17 into play as nothing in the constitution and programme of the TBKP warrants the conclusion that it 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 Lawless v. Ireland judgment of 1 July 1961 (merits), Series A no. 3, pp. 45–46, § 7).
61.  Regard being had to all the above, a measure as drastic as the immediate and permanent dissolution of the TBKP, ordered before its activities had even started and coupled with a ban barring its leaders from discharging any other political responsibility, is disproportionate to the aim pursued and consequently unnecessary in a democratic society. It follows that the measure infringed Article 11 of the Convention.

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