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UNITED COMMUNIST PARTY OF TURKEY and OTHERS v TURKEY, Judgment of the ECtHR, 30 January 1998 [1998] IIHRL 3 (30 January 1998)

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UNITED COMMUNIST PARTY OF TURKEY and OTHERS v TURKEY, Judgment of the ECtHR, 30 January 1998

ECtHR: European Court of Human Rights

30 January 1998

Turkey

ASSOCIATION - Dissolution - objectives insufficient basis for decision - ECHR Art 11

COMPENSATION - Non-pecuniary - judgment afforded just satisfaction - ECHR Art 50

United Communist Party of Turkey (U) was a political party formed on 4 June 1990 and S and Y were respectively its chairman and general secretary. On the day of U’s formation its constitution and programme were submitted to the principal state counsel at the cassation court for assessment of their compatibility with Turkey’s constitution and with the law on the regulation of political parties, as required by both of the latter. Ten days later, when U was preparing to participate in a general election, the principal state counsel applied to the constitutional court for an order dissolving it. He accused U of having, contrary to the law and/or the constitution, (a) sought to establish the domination of one social class over the others, (b) incorporated the word ‘communist’ into its name, (c) carried out activities likely to undermine Turkey’s territorial integrity and the nation’s unity and (d) declared itself to be the successor of a previously dissolved party (the workers’ party). The principal state counsel relied in particular on passages from U’s programme, including ones in which it (a) called for a peaceful, democratic and fair solution for the Kurdish problem, (b) referred to being a party of the working class formed from the merger of the workers and communist parties and (c) stated that a cultural revival would be fashioned by the influences of contemporary universal culture, Turkish and Kurdish national values, the heritage of the Anatolian civilisations, the humanistic elements of Islamic culture and the values developed by the people in evolving with the times. The workers’ party had been dissolved in October 1981 on grounds similar to those invoked against U. The constitutional court rejected the submission that U maintained that one social class was superior to others and held that it satisfied the requirements of democracy, which was based on political pluralism, universal suffrage and freedom to take part in politics. It also rejected the argument that no political party could claim to be the successor to a previously dissolved one, holding that it was natural and consistent with the concept of democracy for a political party to claim the cultural heritage of past movements and currents of political thought and that U had not infringed the law merely by its intention of drawing on the experience and achievements of Marxist institutions. However, it held that the mere fact that a political party included in its name a word prohibited by the political parties law (‘communist’) sufficed to trigger its prohibition of parties with that name and consequently entailed the dissolution of the party concerned. The constitutional court also held that, as (a) there was only one nation under the constitution, (b) there were no minorities other than those recognised by treaty and (c) there were no constitutional or legislative provisions allowing distinctions to be made between citizens, the reference to a Kurdish nation in U’s objectives encouraged separatism and the division of the of the Turkish nation which was unacceptable and justified dissolution. It thus made an order dissolving U on 16 July 1991 which, in accordance with the law, entailed ipso jure its liquidation and the transfer of its assets to the treasury. This order was published in the official gazette in January 1992 and as a consequence the founders and managers of U were banned from holding similar office in any other political body. The applicants complained about U’s dissolution and the Commission, considering the application inadmissible insofar as it related to Art 6(2), found a breach of Art 11, no separate issue arising under Arts 9 and 10 and no need to consider separately complaints regarding Arts 14 and 18 and Prot 1 Arts 1 and 3. The Court held: (1) that the reference to ‘trade unions’ in Art 11 was an example of a form in which freedom of association might be exercised and did not involve an attempt to exclude political parties from its scope; (2) that, given the fact that political parties were a form of association essential to the proper functioning of democracy, there could be no doubt that such parties came within Art 11's scope; (3) that an association was not excluded from the protection afforded by the ECHR simply because its activities were regarded by the national authorities as undermining the State’s constitutional structures and as calling for the imposition of restrictions; (4) that national authorities, when taking action to respect the rule of law or to give effect to constitutional rights, must do so in a manner compatible with their obligations under the ECHR and subject to review by the ECHR institutions; (5) that it was with respect to the jurisdiction of High Contracting Parties as a whole - often exercised in the first place through the constitution - that they were called on to show compliance with the ECHR and the rights and principles enshrined in the latter must thus be respected by their political and institutional organisation; (6) that, although some compromise between the requirements of defending democratic society and individual rights is inherent in the ECHR system, any intervention by the authorities must be in accordance with Art 11(2) and only when the review of that was complete could it be decided whether Art 17 should be applied; (7) that the right guaranteed by Art 11 was not limited to the founding of an association but lasted for its entire life and dissolution must, therefore, satisfy the requirements of Art 11(2); (8) that Art 11 was thus applicable; (9) that, having regard to the role of S and Y as founders and leaders of U and to the ban on their similar involvement in any other political grouping, there was an interference with the freedom of association of all three applicants; (10) that this interference was prescribed by law and pursued at least the legitimate aim of national security; (11) that the inclusion of the protection of opinions and freedom to express them in the objectives of freedom of assembly and association applied all the more in relation to political parties in view of their essential role in ensuring pluralism and the proper functioning of democracy; (12) that the exceptions in Art 11 were to be construed strictly where political parties were concerned since only convincing and compelling reasons could justify restrictions on their freedom of association; (13) that U was dissolved even before it had been able to start its activities and solely on the basis of its constitution and programme but there was nothing to suggest that the latter did not reflect its true objectives and its leaders’ true intentions; (14) that, having regard to (a) the repeal of the criminal offence of carrying out political activities inspired by communist ideology and (b) the constitutional court’s finding that U satisfied the requirements of democracy and was not - in spite of its name - seeking to establish one social class’s domination over others, there was no evidence to show that U in choosing to call itself ‘communist’ had opted for a policy representing a real threat to Turkish society or the Turkish State and thus its name could not, by itself, entail dissolution; (15) that U’s programme, although referring to the Kurdish ‘people’ and ‘nation’, did not describe them as a ‘minority’ nor make any claim - other than for recognition of their existence - for them to enjoy special treatment or rights, still less a right to secede; (16) that there could be no justification for hindering a political group solely because it sought 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 which was U’s objective; (17) that, as U’s programme could hardly have been belied by any practical action it had taken since it was dissolved immediately after being formed and thus did not even have time to take any, it was penalised for conduct relating solely to the exercise of freedom of expression; (18) that, in the absence of any activity, it could not be concluded that U bore any responsibility for the problems which terrorism posed in Turkey; (19) that there was no need to bring Art 17 into play as there was nothing in U’s constitution and programme to warrant the conclusion that it relied on the ECHR to engage in activity or perform acts aimed at the destruction of any of the rights and freedoms set forth in it; (20) that a measure as drastic as immediate and permanent dissolution, ordered before its activities had started and coupled with a ban on its leaders discharging any other political responsibility, was disproportionate to the aim pursued and was thus a violation of Art 11; (21) that the applicants had not pursued their complaints regarding Arts 9, 10, 14 and 18 and there was no reason for them to be considered of its own motion; (22) that the confiscation of U’s assets and the ban on its leaders taking part in elections were incidental effects of its dissolution in breach of Art 11 and it was thus unnecessary to consider the complaints regarding Prot 1 Arts 1 and 3 separately; (23) that a claim for pecuniary loss of FRF 20 million was based on an imaginary application of the law on the funding of political parties and on an estimation of contributions from U’s members and supporters but, as the Court could not speculate on these matters, it should be dismissed; (24) that a finding of a violation of Art 11 constituted sufficient compensation for the non-pecuniary damage suffered by S and Y; (25) that S and Y should be awarded FRF 120,000, assessed on an equitable basis and to converted into Turkish lira at the rate applicable at the date of payment, in respect of costs and expenses; and (26) that the statutory rate of interest applicable in France was 3.87% per annum. Comment: This ruling is a ringing endorsement of the values to which the Council of Europe is committed and confirms that securing a properly functioning democracy is a key objective of the ECHR. This is something which the Court has already recognised in numerous cases concerning freedom of expression and its extension to freedom of association was not simply a logical progression but was essential given the importance of collective action in any democracy. The Court rightly rejected the attempt to constrain freedom of association to trade union activity but this rejection is not just important for political associations; it is also underlining that Art 11 is there to protect almost any institutional attempt by a group of persons to pursue a common set of objectives. There is a limit, not least in that the ECHR, in Art 17, itself recognises that there is no protection extended to those seeking to destroy the very rights and freedoms which it seeks to guarantee but the Court has here held that this ambition is not something that can be readily presumed of anyone. Moreover this is an issue to be invoked only after the balancing exercise in applying an individual right or freedom is complete; Art 17 cannot be the starting point of the exercise. It is, however, not surprising that the Court accepted that the aim of the measures was legitimate since they had at least an ostensible connection with national security. The virtual impossibility of disproving the latter demonstrates yet again the critical importance of the way in which the necessity test is applied and, as with political expression, the significance for democracy led the Court to the conclusion that this was an area in which particularly strict scrutiny was appropriate. It is doubtful whether the interference in this case could have been considered acceptable even if subjected to a less exacting scrutiny, given that U had actually not pursued any activities and the dissolution was based partly on its choice of name, but the insistence on the higher standard is welcome since it should further underline the need for restrictions to be based on deeds rather than mere apprehension; see, also Vogt v Germany, (1996) 10 Interights Bulletin 131. Certainly the evident disproportionality of the action in this case ought not to lead to assumptions that lesser restrictions on political associations might evade successful challenge, notwithstanding that they are based merely on suppositions about the objectives to be pursued. Furthermore the ruling has underlined the importance of being able to advocate change, so long as this is done in a manner compatible with the ECHR. However, in emphasizing that U was not describing Kurdish people as a ‘minority’, making claims for special treatment for them or promoting secession, the ruling leaves it a little uncertain as to how far the advocacy of constitutional change by peaceful means is protected. There is no reason why the constitutional status of a matter should inhibit the formation of associations advocating its alteration in some way; temperate advocacy of secession ought to be regarded as protected by Arts 10 and 11 as much as such advocacy of autonomy or union with one or more States. However, the Court was rightly not deterred from finding a violation by the constitutional basis for the restriction; to have done otherwise would have deprived the obligation in Art 1 regarding a State’s jurisdiction of much force but the particular provision in this case could probably be applied henceforth in a manner compatible with the ECHR. Although the reluctance to decide the case on the basis of Prot 1 Art 3 is understandable, the refusal to make a finding under Prot 1 Art 1 is less compelling given that dissolution entailed a confiscation of assets. This seems even stranger given the dismissal of the claim for pecuniary damage but this may be because the applicants were seeking to recover what they might have obtained through public finance of political parties rather than the assets which they actually lost.

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