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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)
821
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.
1204
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