EUROPEAN COURT OF HUMAN RIGHTS
CASE OF
FREEDOM AND DEMOCRACY PARTY (ÖZDEP) v. TURKEY
(Application
no. 23885/94)
JUDGMENT
STRASBOURG
8 December
1999
This judgment
is subject to editorial revision before its reproduction in final form in the
official reports of selected judgments and decisions of the Court.
In the case of Freedom and Democracy Party
(ÖZDEP) v. Turkey,
The European Court of Human Rights, sitting, in
accordance with Article 27 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”), as amended by
Protocol No. 111, and the relevant
provisions of the Rules of Court2, as a Grand Chamber composed of the
following judges:
Mr L. Wildhaber,
President,
Mr A. Pastor Ridruejo,
Mr G.
Bonello,
Mr L. Caflisch,
Mr J.
Makarczyk,
Mr P. Kuris,
Mr J.-P.
Costa,
Mrs F. Tulkens,
Mr K.
Jungwiert,
Mr M. Fischbach,
Mr V.
Butkevych,
Mr J. Casadevall,
Mrs W.
Thomassen,
Mrs H.S. Greve,
Mr A.
Baka,
Mrs S. Botoucharova, judges,
Mr F.
Gölcüklü, ad hoc judge,
and also of Mr P.J. Mahoney and Mrs M. de
Boer-Buquicchio, Deputy Registrars,
Having deliberated in private on 22 April and on 24
November 1999,
Delivers the following judgment, which was adopted on
the last-mentioned date:
PROCEDURE
1. The case was referred to the Court, as
established under former Article 19 of the Convention3, by the European
Commission of Human Rights (“the Commission”) on 24 September 1998, within the
three-month period laid down by former Articles 32 § 1 and 47 of the Convention.
It originated in an application (no. 23885/94) against the Republic of Turkey
lodged with the Commission under former Article 25 by a Turkish political
party, the Freedom and Democracy Party (ÖZDEP), acting through its
Chairman, Mr Mevlüt Ilik, on 16 March 1993.
The Commission’s request referred to former Articles
44 and 48(a) of the Convention and to Rule 32 § 2 of former Rules of Court A1. The object of
the request was to obtain a decision as to whether the facts of the case
disclosed a breach by the respondent State of its obligations under
Article 11 of the Convention.
2. In response to the enquiry made in
accordance with former Rule 33 § 3 (d), the applicant party stated
that it wished to take part in the proceedings and designated Mr Hasip Kaplan,
of the Istanbul Bar, as the lawyer who would represent it (former Rule 30).
Subsequently, the lawyer was given leave by the President of the Court at the
time, Mr R. Bernhardt, to use the Turkish language in the written procedure
(former Rule 27 § 3).
3. In the meantime Mr Bernhardt, acting
through the Registrar, had consulted the Agent of the Turkish Government (“the
Government”), the applicant party’s lawyer and Mr A. Weitzel, the Delegate of
the Commission, on the organisation of the written procedure (former Rules 37
§ 1 and 38). Pursuant to the order made in consequence on
15 October 1998, the Registrar received the applicant party’s memorial
on 6 January 1999 and the Government’s memorial on 8 February.
4. After the entry into force of Protocol
No. 11 on 1 November 1998 and in accordance with the provisions of Article 5 § 5
thereof, the case was referred to the Grand Chamber of the Court. The Grand
Chamber included ex officio Mr R. Türmen, the judge elected in respect of
Turkey (Article 27 § 2 of the Convention and Rule 24 § 4 of the Rules of
Court), Mr. L. Wildhaber, the President of the Court, Mrs E. Palm, the
Vice-President of the Court, Mr M. Fischbach and Mr J.-P. Costa, Vice-Presidents
of Sections (Article 27 § 3 of the Convention and
Rule 24 §§ 3 and 5 (a)). The other members appointed to
complete the Grand Chamber were Mr A. Pastor Ridruejo, Mr G. Bonello, Mr J.
Makarczyk, Mr P. Kuris, Mrs F. Tulkens, Mrs V. Stráznická, Mr V. Butkevych,
Mr J. Casadevall, Mrs H.S. Greve, Mr A. Baka, Mr R. Maruste and Mrs S.
Botoucharova (Rule 24 §§ 3 and 5 (b) and Rule 100 § 4). Subsequently Mrs Palm,
Mrs Stráznická and Mr Maruste, who were unable to take part in the further
consideration of the case, were replaced by Mr L. Caflisch, Mr K. Jungwiert and
Mrs W. Thomassen, substitute judges (Rule 24 § 5 (b)).
5. On 12 January 1999 Mr Wildhaber
exempted Mr Türmen from sitting after his withdrawal from the case having regard
to the decision of the Grand Chamber in the case of Ogur v. Turkey (application
no. 21594/93) taken in accordance with Rule 28 § 4.
On 2 February 1999 the Government notified the
registry that Mr F. Gölcüklü had been appointed ad hoc judge
(Article 27 § 2 and Rule 29).
6. At the Court’s invitation (Rule 99),
the Commission delegated one of its members, Mr J.-C. Geus, to take part in the
proceedings before the Grand Chamber.
7. In accordance with the decision of the
President, who had also given the applicant party’s counsel leave to address the
Court in the Turkish language (Rule 34 § 3), a hearing took place in public
in the Human Rights Building, Strasbourg, on 22 April 1999. The Court had held a
preparatory meeting beforehand.
There appeared before the
Court:
(a) for the Government
Mr D.
Tezcan, Agent,
Mr Özmen,
Mr D.
Akçay, Co-Agents,
Mr F. Polat,
Mrs B.
Keremoglu,
Mrs G. Acar,
Mrs M.
Karali, Advisers;
(b) for the applicant party
Mr H.
Kaplan, of the Istanbul Bar, Counsel;
(c) for the Commission
Mr J.-C.
Geus, Delegate.
The Court heard addresses by Mr Geus, Mr Kaplan and
Mr Tezcan.
AS TO THE
FACTS
I. the circumstances of the
case
A. Formation of
ÖZDEP
8. The Freedom and Democracy Party
(ÖZDEP) was founded on 19 October 1992. Its constitution was lodged
with the Ministry of the Interior the same day. Its programme included the
following passages.
“...Following the war of ‘Liberation’ waged jointly
by Kurds, Turks and other national minorities, the Sultanate was abolished in
Turkey and the Republic proclaimed.
The sole aim of the Republic has been to establish
national sovereignty. Efforts to unite Turkey with Europe have come to nothing.
Turkey has not succeeded in lifting itself out of mediocrity.
From the earliest days of the Republic, certain
parties have had a monopoly on power along with the collaboration of civil and
military bureaucrats.
In order to preserve that monopoly, the policy of
those in power has been to refuse to recognise the existence of the Kurdish
people and to ignore its most legitimate rights.
The dominant ‘Turkish’ philosophy has been maintained
up to the present day, overriding the most natural rights and claims of the
Kurdish people, by means of militaristic and chauvinistic propaganda and a
policy of exile and destruction. State policy, based on a capitalist system
designed to oppress minorities – particularly Kurdish minorities, but even
Turkish ones – has been pursued in the name of modernisation and
westernisation.
Owing to this policy, which colours the political,
economic and social aspects of Turkey’s territorial integrity, there is no
possibility of this monopoly of State power being brought to an end. That power
runs counter to the interests of the vast majority of the population.
It uses force to impose the present situation on the
people in order to preserve its economic interests. Thus, it blocks the way to
any democratic process aimed at protecting the interests of Turkish and Kurdish
workers.
The Freedom and Democracy Party proposes to create a
system ruled by peace and fraternity in which our peoples will be entitled to
self-determination.
The Freedom and Democracy Party uses political,
democratic and ideological means to combat all fascist, fundamentalist,
chauvinistic and racist movements or organisations hindering solidarity, unity
and brotherhood between peoples.
Both in domestic and foreign policy, the aim of the
Freedom and Democracy Party is to protect the interests of our peoples and those
of all workers. ÖZDEP is the guarantor of the cultural, occupational,
economic and political values of the various national or religious minorities
and of every socio-professional category. It seeks recognition of the right to
form a political party.
Our Party will guarantee the religious and national
minorities the right to worship as they please, to practise their religion
freely, to freedom of thought and to respect for their customs, cultures and
languages. Every individual will be entitled to use the media, especially radio
and television.
ÖZDEP has proposals on how to determine and
define the prerequisites for establishing a social order encompassing the
Turkish and Kurdish peoples.
ÖZDEP regards our peoples as the sole owners
of the country’s wealth, natural wealth and mineral
resources.
ÖZDEP supports the just and legitimate
struggle of the peoples for independence and freedom. It stands by them in this
struggle.
Our party proposes the creation of a democratic
assembly of representatives of the people elected by universal suffrage. This
assembly will represent the interests of the Turkish people, the Kurdish people
and any other minority.
This popular and democratic assembly will have the
same powers the current legislature and will be the guarantor of our peoples’
national sovereignty.
The media will be the moving force for the
consolidation of fraternity and friendship between peoples. They will encourage
a better approach to different cultures and languages and will guarantee the
national identity of each sector of the population. They will be responsible for
ensuring that the political, economic, social and cultural rights of the peoples
are recognised.
There will be no Government interference in religious
affairs, which will be placed in the hands of the relevant
institutions.
In order to preserve the right of self-determination
of oppressed peoples, our party will outlaw any form of cultural, military,
political or economic aggression.
The Freedom and Democracy Party is fighting for the
voluntary unification of the Kurdish and Turkish peoples, both of whom played a
role in founding the country.
The Freedom and Democracy Party considers that there
can be democracy only if the Kurdish problem is solved. This problem concerns
every Turk and Kurd who supports freedom and democracy.
The Freedom and Democracy Party favours a peaceful
and democratic solution to the Kurdish problem, and strict compliance with
international-law instruments such as the Helsinki Final Act, the European
Convention on Human Rights and the Universal Declaration of Human
Rights.
The Freedom and Democracy Party will fully respect
the Kurdish people’s right to self-determination so that a democratic solution
based on the self-determination and equality of peoples can be
found.
Currently, our legislation and the manner in which
the legal system operates are inherently undemocratic, contrary to fundamental
human rights and freedoms and based on class interests. They deny the Kurdish
people an identity and forbid any form of workers’ organisation or association.
They are racist and retrograde.
An order will be established permitting the Turkish
and Kurdish peoples and the minorities to develop and enjoy their particular
cultures freely. Each people will be entitled to education in its mother tongue,
that being an essential prerequisite for the development of a people and a
nation.
Everyone will have the right to basic education in
his mother tongue. The education system from primary school to university will
be based on education in one’s mother tongue. A person’s mother tongue shall be
given precedence in court proceedings...”
B. The application to have
ÖZDEP dissolved
9. On 29 January 1993, Principal State
Counsel at the Court of Cassation (“Principal State Counsel”) applied to the
Turkish Constitutional Court to have ÖZDEP dissolved on the grounds that
it had infringed the principles of the Constitution and the Law on the
regulation of political parties. He considered that the content and aims set out
in the party’s programme sought to undermine the territorial integrity and
secular nature of the State and the unity of the nation.
10. On 25 February 1993 the President of
the Constitutional Court sent Principal State Counsel’s application to the
Chairman of ÖZDEP inviting him to lodge his preliminary observations in
defence.
11. On 29 March 1993 ÖZDEP’s
lawyers filed preliminary written observations and requested a hearing. They
argued, inter alia, that the Law on the regulation of political parties
contained provisions that were contrary to the fundamental rights guaranteed by
the Constitution. They also maintained that dissolving the party would infringe
the provisions of international instruments such as the European Convention on
Human Rights, the International Covenant on Civil and Political Rights, the
Helsinki Final Act and the Charter of Paris for a New Europe. They submitted
that it was unacceptable to force a political party, on pain of being dissolved,
to promote an ideology which conformed to the Turkish
Constitution.
C. Dissolution of
ÖZDEP
12. On 30 April 1993, while the
Constitutional Court proceedings were still pending, a meeting of the founding
members of ÖZDEP resolved to dissolve the party.
13. On 11 May 1993 Principal State Counsel
lodged his submissions on the merits of the case with the Constitutional Court.
Since ÖZDEP had gone into voluntary dissolution, it did not file any
submissions on the merits.
14. On 14 July 1993 the Constitutional
Court made an order dissolving ÖZDEP, notably on the ground that its
programme was apt to undermine the territorial integrity of the State and the
unity of the nation and violated both the Constitution and sections 78(a) and
81(a) and (b) of the Law on the regulation of political parties. The judgment
was served on Principal State Counsel, the Speaker of the National Assembly and
the Prime Minister’s Office. The Constitutional Court’s judgment was published
in the Official Gazette on 14 February 1994.
The Constitutional Court held, firstly, that,
pursuant to section 108 of the Law on the regulation of political parties,
ÖZDEP’s resolution to go into voluntary dissolution did not prevent that
court from ruling on the merits of the case as it had been made after the
commencement of the proceedings before it.
As to the merits, the Constitutional Court began by
reiterating the constitutional principles that all persons living on Turkish
territory, whatever their ethnic origin, formed a whole united by their common
culture. The sum of the persons who made up the Republic of Turkey was called
the “Turkish nation”. The different ethnic groups making up the “Turkish nation”
were not divided into a majority and minorities. The court reiterated that,
under the Constitution, no political or legal distinction based on ethnic or
racial origin could be made between citizens: all Turkish nationals, without
distinction, could avail themselves of all civil, political and economic
rights.
With particular reference to Turkish citizens of
Kurdish origin, the Constitutional Court held that in every region of Turkey
such persons enjoyed the same rights as other Turkish citizens. That did not
mean that the Constitution denied the existence of a Kurdish identity, since
citizens of Kurdish origin were not forbidden to express their Kurdish identity.
The Kurdish language could be used on all private premises, in workplaces, in
the press and in works of art and literature.
The Constitutional Court reiterated the principle
that everyone was bound to observe the provisions of the Constitution even if
they did not agree with them. The Constitution did not preclude the celebration
of difference but forbade propaganda based on racial difference and aimed at
destroying the constitutional order. It pointed out that by virtue of the Treaty
of Lausanne having a separate language or ethnic origin was not by itself enough
for a group to qualify as a minority.
With regard to the content of ÖZDEP’s
programme, the Constitutional Court observed that it was based on the assumption
that there was a separate Kurdish people in Turkey with its own culture and
language. The Kurds were portrayed in the programme as an oppressed people whose
democratic rights were being completely ignored. According to the Constitutional
Court, ÖZDEP called for a right of 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.
In relation to the principle of secularism, the
Constitutional Court noted that ÖZDEP’s programme contained a proposal
for the abolition of the Religious Affairs Department of the Government on the
ground that religious affairs should be under the control of the religious
institutions themselves. After reiterating what was meant by the principle of
secularism,
the court said that advocating the abolition of the Government
Religious Affairs Department amounted to undermining the principle of
secularism. It concluded that that aspect of ÖZDEP’s programme was
contrary to section 89 of the Law on the regulation of political
parties.
The Constitutional Court pointed to the fact that the
Charter of Paris for a New Europe condemned racism, ethnic hatred and terrorism
and that the Helsinki Final Act guaranteed the inviolability of national
frontiers and territorial integrity. It concluded that ÖZDEP’S activities
were subject, inter alia, to the restrictions referred to in paragraph 2
of Article 11 and to Article 17 of the Convention.
II. relevant domestic
law
The Constitution
15. The relevant provisions of the
Constitution read as follows:
Article
2
“The Republic of Turkey is a democratic, secular and
social State based on the rule of law, respectful of human rights in a spirit of
social peace, national solidarity and justice, adhering to the nationalism of
Atatürk and resting on the fundamental principles set out in the
Preamble.”
Article 3
§ 1
“The State of Turkey constitutes with its territory
and nation, an indivisible whole. The official language is
Turkish.”
Article
6
“Sovereignty resides unconditionally and unreservedly
in the nation.
...
Sovereign power shall not under any circumstances be
transferred to an individual, a group or a social
class...”
Article 10
§ 1
“All individuals shall be equal before the law
without any distinction based on language, race, colour, sex, political opinion,
philosophical belief, religion, membership of a religious sect or other similar
grounds.”
Article 14
§ 1
“None of the rights and freedoms referred to in the
Constitution shall be exercised with a view to undermining the territorial
integrity of the State and the unity of the nation, jeopardising the existence
of the Turkish State or Republic, abolishing fundamental rights and freedoms,
placing the control of the State in the hands of a single individual or group,
ensuring the domination of one social class over other social classes,
introducing discrimination on the grounds of language, race, religion or
membership of a religious sect, or establishing by any other means a political
system based on any of the above concepts and opinions.”
Article 66
§ 1
“Everyone linked to the Turkish State by nationality
shall be Turkish.”
(Former)
Article 68
“Citizens shall have the right to form political
parties and to join them or withdraw from them in accordance with the lawful
procedure laid down for the purpose...
Political parties shall be an indispensable part of
the democratic political system.
Political parties may be formed without prior
permission and shall carry on their activities in accordance with the
Constitution and the law.
The constitutions and programmes of political parties
shall not be inconsistent with the absolute integrity of State territory and of
the nation, human rights, national sovereignty or the principles of a democratic
secular Republic.
No political party shall be formed which aims to
advocate or establish the domination of one social class or group, or any form
of dictatorship...”
(Former)
Article 69
“Political parties shall not engage in activities
other than those referred to in their constitutions and programmes, nor shall
they disregard the restrictions laid down by Article 14 of the Constitution, on
pain of permanent dissolution.
...
The decisions and internal running of political
parties shall not be contrary to democratic principles.
...
Immediately a political party is formed, Principal
State Counsel shall verify as a matter of priority that its constitution and
programme and the legal position of its founding members are consistent with the
Constitution and the laws of the land. He shall also monitor its
activities.
Political parties may be dissolved by the
Constitutional Court, on application by Principal State Counsel.
Founding members and managers, at whatever level, of
political parties which have been permanently dissolved may not become founding
members, managers or financial controllers of any new political party, nor shall
a new party be formed if a majority of its members previously belonged to a
party which has been dissolved...”
B. Law no. 2820 on the
regulation of political parties
16. The relevant provisions of Law no.
2820 on the regulation of political parties read as
follows:
Section
78
“Political parties
(a) shall not aim or strive to or incite
third parties to
change: the republican form of the Turkish State; the
... provisions concerning the absolute integrity of the Turkish State’s
territory, the absolute unity of its nation, its official language, its flag or
its national anthem; ... the principle that sovereignty resides unconditionally
and unreservedly in the Turkish nation; ... the provision that sovereign power
cannot be transferred to an individual, a group or a social class...;
jeopardise the existence of the Turkish State and
Republic, abolish fundamental rights and freedoms, introduce discrimination on
grounds of language, race, colour, religion or membership of a religious sect,
or establish, by any means, a system of government based on any such notion or
concept.
...
(c) shall not aim to defend or establish
the domination of one social class over the other social classes or the
domination of a community or the setting up of any form of dictatorship; they
shall not carry on activities in pursuit of such aims...”
Section
80
“Political parties shall not aim to change the
principle of the unitary State on which the Turkish Republic is founded, nor
carry on activities in pursuit of such an aim.”
Section 81
“Political parties shall not
(a) assert that there exist within the
territory of the Turkish Republic any national minorities based on differences
relating to national or religious culture, membership of a religious sect, race
or language; or
(b) aim to destroy national unity by
proposing, on the pretext of protecting, promoting or disseminating a
non-Turkish language or culture, to create minorities on the territory of the
Turkish Republic or to engage in similar activities...”
Section
89
“Political parties shall not have an aim that runs
counter to Article 136 of the Constitution, which provides that the Religious
Affairs Department, which is bound to carry out the duties assigned to it in
conformity with the principle of secularism..., shall be accountable to central
Government.”
Section
90(1)
“The constitution, programme and activities of
political parties shall not contravene the Constitution or this
Law.”
Section
95
“Where a political party has been definitively
dissolved, its founding members, its chairman, the members of its executive
committee and central office, the members of its disciplinary and administrative
organs at all levels and the members of political groups in the Grand National
Assembly of Turkey shall, if still members when the party was dissolved, be
disqualified from acting as founders, managers or financial controllers of any
other political party. Any members whose actions were responsible for the
political party’s being dissolved shall be disqualified for ten years from
joining a political party or standing for election to
Parliament.
No political party shall be formed with a majority of
members from a political party that has been dissolved.”
Section
96(3)
“No political party shall be formed with the name
‘communist’, ‘anarchist’, ‘fascist’, ‘theocratic’ or ‘national socialist’, the
name of a religion, language, race, sect or region, or a name including any of
the above words or similar ones.”
Section 101
“The Constitutional Court shall dissolve a political
party where
(a) the party’s programme or constitution
... is contrary to the provisions of Chapter 4 of this Law;
or
(b) its membership, central office or
executive committee ... take a decision, issue a circular or make a statement
... contrary to the provisions of Chapter 4 of this Law or the Chairman,
Vice-Chairman or General Secretary makes any written or oral statement contrary
to those provisions...”
Chapter 4 of the Law, referred to in section 101,
includes in particular sections 90(1) and 96(3), which are reproduced
above.
Section
107(1)
“All the assets of political parties dissolved by
order of the Constitutional Court shall be transferred to the
Treasury.”
Section
108
“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.”
PROCEEDINGS BEFORE THE
COMMISSION
17. ÖZDEP applied to the Commission
on 21 March 1994. It alleged a violation of Articles 9, 10, 11 and 14 of the
Convention.
18. The Commission declared the
application (no. 23885/94) admissible on 2 September 1996. In its report of 12
March 1998 (former Article 31 of the Convention), it expressed the opinion
(twenty-nine votes to one) that there had been a violation of Article 11, that
no separate issue arose under Articles 9 or 10 and that it was unnecessary to
examine separately whether there had been a violation of Article 14. The full
text of the Commission’s opinion and of the dissenting opinion contained in the
report is reproduced as an annex to this judgment1.
FINAL SUBMISSIONS TO THE COURT
19. In their memorial the Government
requested the Court to hold that:
“(1) the ÖZDEP party cannot assert
that it is a victim since a meeting of ÖZDEP’s founding members had
passed a resolution on 30 April 1993 for the dissolution of the party before the
Constitutional Court delivered its decision on 14 July
1993;
(2) ÖZDEP’s winding up was
necessary in a democratic society and proportionate to the legitimate aim which
that democratic society sought to pursue since it had violated the territorial
integrity of the State by all possible means, whether legal or illegal;
consequently, there had been no violation of Article 11 of the
Convention;
(3) there had been no violation of
Articles 9, 10 or 14 of the Convention on Human Rights in the instant case as
the interference had been lawful under Article 11 § 2 of the
Convention;
(4) Article [41] of the Convention did not
apply as there had been no violation of the Articles relied on by the
applicant.”
20. The applicant invited the Court to
hold that there had been a violation of Articles 9, 10, 11 and 14 of the
Convention and to award it just satisfaction under Article
41.
AS TO THE
LAW
I. ALLEGED VIOLATION OF ARTICLE 11 OF
THE CONVENTION
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, which
provides:
“1. Everyone has the right to freedom of
peaceful assembly and to freedom of association with others, including the right
to form and to join trade unions for the protection of his
interests.
2. No restrictions shall be placed on the
exercise of these rights other than such as are prescribed by law and are
necessary in a democratic society in the interests of national security or
public safety, for the prevention of disorder or crime, for the protection of
health or morals or for the protection of the rights and freedoms of others.
This Article shall not prevent the imposition of lawful restrictions on the
exercise of these rights by members of the armed forces, of the police or of the
administration of the State.”
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 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 in
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 and freedoms 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 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”
i. The submissions of those appearing before
the Court
(@) The applicant party
34. The applicant party submitted that it
had been clearly stated in its programme that it favoured a democratic and
peaceful solution to the Kurdish problem and one complying with international
law. It was wrong to suggest that the party sought the partition of Turkey. On
the contrary, ÖZDEP’s programme had stressed the need for the country to
remain unified, as it said that the party wished to work for the unity of the
Turkish and Kurdish peoples, who together would form the country on the basis of
equality and voluntarism. Nothing in ÖZDEP’s programme or activities
expressed a separatist aim, as indeed was confirmed by the fact that so far no
prosecution had been brought against the parties’ leaders under Article 125
of the Criminal Code, which made it an offence to engage in separatist
activities.
The Kurdish problem was currently the most serious
problem facing Turkey. Given the scale of that problem, political parties were
not only able to seek out and propose solutions, they had a duty to do so.
However, in the eyes of the authorities, the mere fact that a party had used the
word “Kurd” was enough to justify its dissolution. That was what had happened to
ÖZDEP: both Principal State Counsel and the Constitutional Court had
based their accusations on the use of the words “Kurd”, “Kurdish people”,
“minority” and “peoples” in the party’s programme. Yet the programme did not
describe the Kurds as a minority or contain a call for them to receive special
treatment or to be separated from the Turkish population. Furthermore, there was
not a single sentence in the programme that did not reflect the party’s true
intentions. Thus, banning a political party solely because it had announced in
its programme that it intended to press for a just, democratic and peaceful
solution to the Kurdish problem amounted to a breach of Article
11.
(@) The Government
35. The Government submitted that the
objectives contained in ÖZDEP’s programme were apt to incite part of the
Turkish population to revolt or to engage in illegal activities such as devising
a new political order and laws that would have been incompatible with the
constitutional principles of the Turkish State.
ÖZDEP was thus using democratic freedoms in an
attempt to divide Turkey by choosing as its fundamental theme an alleged
oppression by the Turkish State of minorities and, more particularly, of the
Kurds. After referring to the right of peoples to self-determination,
ÖZDEP had openly supported the armed struggle in its programme, notably
by declaring: “ÖZDEP supports the peoples’ just and legitimate struggle
for their independence and freedom. It stands by that struggle.” Such ideas
amounted to approval of the illegal activities of terrorist organisations whose
aim was to destroy the unity of the State and to incite part of the Turkish
population to revolt.
Furthermore, in its programme, ÖZDEP advocated
self-determination for the population of Kurdish origin; self-determination was
not only unconstitutional but also ineligible for protection under the
Convention as it undermined the integrity of the Turkish nation and the
indivisibility of the territory of the State.
Moreover, the instant case differed from the cases of
the United Communist Party of Turkey (judgment of the Court of 30 January 1998,
Reports 1998-I, p. 1) and the Socialist Party (judgment of 25 May 1998,
Reports 1998-III, p. 1233) as ÖZDEP’s aim, unlike that of the
United Communist Party and the Socialist Party, had not been to abide by the
rules of democratic debate but instead to divide the country by, on the one
hand, drawing on the support of part of the population and, on the other,
applauding the battle being fought by terrorist
organisations.
Propaganda in favour of self-determination for part
of the population, in this case people of Kurdish origin, was not only contrary
to the Turkish Constitution, but also liable to cause unrest among the Turkish
population. In a country such as Turkey, which since its creation has been based
on a unitary structure and where, by virtue of Article 10 of the Constitution,
“[a]ll individuals shall be equal before the law without any distinction based
on language, race, colour, sex, political opinion, philosophical belief,
religion, membership of a religious sect or other similar grounds”, such
propaganda would inevitably provoke grave discord between the various sectors of
the Turkish population.
In sum, regard being had to the background to the
present case and in particular to the difficulties to which the fight against
terrorism gave rise, it was possible to conclude on the basis of the evidence
relied on by the Constitutional Court that ÖZDEP bore some responsibility
for the problems caused by terrorism in Turkey. The party’s dissolution did not
appear to have been a disproportionate measure and, accordingly, could not have
amounted to a violation of Article 11 of the Convention.
(@) The Commission
36. The Commission expressed the opinion
that there had been a violation of Article 11. It observed, firstly, that
ÖZDEP’s constitution demonstrated that the party was democratic in
structure. It had sought to attain its political objectives by purely lawful
means. Indeed, Principal State Counsel had not argued the contrary in the
Constitutional Court. Further, it had not been shown that ÖZDEP had
intended to destroy the democratic and pluralist system in Turkey or had
encouraged a breach of fundamental human rights in the form of racial
discrimination.
Moreover, the section of ÖZDEP’s programme
dealing with the situation of Turkish citizens of Kurdish origin did not contain
any proposal for the use of violence or other anti-democratic or
unconstitutional means. On the contrary, the programme suggested exclusively
democratic and political solutions to the problems posed. Nor did it contain any
encouragement to extremist or terrorist groups to destroy the constitutional
order of the State or to found a Kurdish State by the use of
force.
ii. The Court’s
assessment
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 of 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, the Okçuoglu v. Turkey judgment of
8 July 1999, Reports 1999-..., p. ..., § 48). 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 composed 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 final Helsinki Agreement, 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 peoples’ just and legitimate struggle
for their independence and freedom. It stands by that
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 iure 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.
II. alleged violation of Articles 9,
10 and 14 of the Convention
49. The applicant party also alleged a
violation of Articles 9, 10 and 14 of the Convention. As its complaints relate
to the same matters as those considered under Article 11, the Court does not
consider it necessary to examine them separately.
III. application of article 41 of the
Convention
50. Article 41 of the Convention
provides:
“If the Court finds that there has been a violation
of the Convention or the protocols thereto, and if the internal law of the High
Contracting Party concerned allows only partial reparation to be made, the Court
shall, if necessary, afford just satisfaction to the injured
party.”
A. Pecuniary
damage
51. ÖZDEP claimed 500,000 French
francs (FRF) for pecuniary damage. That sum represented the total costs of
forming the party, renting premises, travel and accommodation for party members
in connection with its formation, setting up its structures in forty provinces
with a view in particular to taking part in the elections, and printing and
distributing brochures.
52. The Government maintained that
ÖZDEP’s claims for just satisfaction were both exorbitant and entirely
unsubstantiated. They contended that any finding by the Court of a violation
would constitute sufficient just satisfaction. As to the alleged pecuniary
damage, there was no causal link between it and the facts of the
case.
53. The Delegate of the Commission
considered that there was no reason for the Court to reach a different
conclusion from that reached in the cases of the United Communist Party and the
Socialist Party cited above.
54. The Court notes that the applicant
party has not furnished any evidence in support of its claim. Consequently, it
is unable to accept it (Rule 60 § 2 of the Rules of Court; see, mutatis
mutandis, the Socialist Party and Others v. Turkey judgment of 25 May 1998,
Reports 1998-III, p. 1261, § 67).
B. Non-pecuniary
damage
55. ÖZDEP also claimed FRF 200,000
as compensation for the non-pecuniary damage caused by its
dissolution.
56. The Government considered that sum
exorbitant, too. In the event that there was found to have been a violation,
that should suffice to redress any non-pecuniary damage.
57. In the Court’s view, ÖZDEP’s
dissolution must have been highly frustrating for its founders and members. The
Court assesses at FRF 30,000 the sum to be paid to Mr Mevlüt Ilik,
ÖZDEP’s representative for the purposes of the proceedings before the
Court (see paragraph 1 above), as compensation for the non-pecuniary damage
sustained by the founders and members of the applicant
party.
C. Costs and
expenses
58. ÖZDEP sought FRF 200,000 for
costs and expenses, being FRF 120,000 for the fees charged by its counsel
for representing it before
the Constitutional Court and in Strasbourg and
FRF 80,000 for translation, communications and travel expenses connected
therewith.
59. The Government argued, firstly, that
the costs of ÖZDEP’s representation before the Constitutional Court could
not be relevant here as it was unconnected with the proceedings before the
Strasbourg institutions. In addition, since there was no accurate, detailed
statement of account, it was impossible to verify whether the documents produced
by ÖZDEP’s lawyer in support of its claim for reimbursement of the costs
and expenses related to the present proceedings. Lastly, the fees claimed were
out of all proportion with those generally paid in similar cases in Turkey. The
present case was a relatively straightforward one that had not required much
time or work. In any event, just satisfaction should reflect the social and
economic conditions of the country concerned and not constitute a source of
unjust enrichment for the applicant.
60. The Court reiterates that in order for
costs to be recoverable under Article 41 of the Convention, it must be
established that they were actually and necessarily incurred, and reasonable as
to quantum (see, among other authorities, the Nikolova v. Bulgaria judgment
of 25 March 1999, Reports 1999-..., p. ..., § 79). In that connection, it
should be noted that if the Court finds that there has been a violation of the
Convention, it may award the applicant not only the costs and expenses incurred
before the Convention institutions, but also those incurred in the national
courts for the prevention or redress of the violation (see, among other
authorities, the Van Geyseghem v. Belgium judgment of 21 January 1999,
Reports 1999-..., p. ..., § 45).
In the present case, the costs relating to
ÖZDEP’s representation before the Constitutional Court were incurred with
a view to avoiding the party’s dissolution. It is that dissolution that led to
the above finding of a violation (see paragraph 49 above). Consequently, the
dissolution proceedings are relevant to the determination of just
satisfaction.
The Court notes, however, that ÖZDEP has not
provided details of the number of hours’ work for which its lawyer claims
payment. Pursuant to Rule 60 § 2 it cannot grant the amount claimed. Making its
assessment on an equitable basis, it awards FRF 40,000 to be paid to Mr Mevlüt
Ilik, for costs and expenses.
C. Default
interest
61. The Court deems it appropriate to
adopt the statutory rate of interest applicable in France at the date of
adoption of the present judgment which according to the information available to
it, is 3.47% per annum.
FOR THESE REASONS, THE COURT
unanimously
1. Dismisses the Government’s preliminary
objection;
2. Holds that there has been a violation
of Article 11 of the Convention;
3. Holds that it is unnecessary to
consider whether there has been a violation of Articles 9, 10 or 14 of the
Convention;
4. Holds
(a) that the respondent State is to pay Mr
Mevlüt Ilik, the representative of the applicant party in the proceedings before
the Court, within three months, by way of just satisfaction, 30,000 (thirty
thousand) French francs for non-pecuniary damage and 40,000 (forty thousand)
French francs for costs and expenses, to be converted into Turkish liras at the
rate applicable on the date of settlement;
(b) that simple interest shall be payable on the
above sums at an annual rate of 3.47% from the expiry of the above-mentioned
three months until settlement;
5. Dismisses the remainder of the claim
for just satisfaction.
Done in English and in French, and delivered at a
public hearing in the Human Rights Building, Strasbourg, on 8 December
1999.
Signed: Luzius
Wildhaber
President
Signed: Paul Mahoney
Deputy
Registrar
1. Rules of Court A applied to all cases
referred to the Court before the entry into force of Protocol No. 9 (1 October
1994) and from then until 31 October 1998 only to cases concerning States
not bound by that Protocol.
1. Note by the Registrar. For
practical reasons this annex will appear only with the final printed version of
the judgment (in the official reports of selected judgments and decisions of the
Court), but a copy of the Commission’s report is obtainable from the
Registry.