FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 41334/98
by Esat Kenan ALABAY and Emir GÜZEL
against Turkey
The European Court of Human Rights (First Section), sitting on 26 September 2000 as a Chamber composed of
MrsE. Palm, President,
MrL. Ferrari Bravo,
MrGaukur Jörundsson,
MrR. Türmen,
MrB. Zupančič,
MrT. Panţîru,
MrR. Maruste, judges,
andMrM. O’Boyle, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 19 March 1998 and registered on 22 May 1998,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The first applicant, Mr Esat Kenan Alabay (E.K.A.), born in 1956, is a merchant and resident in Ankara. The second applicant, Mr Semir Güzel (S.G.), is a lawyer practising in Diyarbakır. Both applicants are Turkish nationals. The first applicant is represented before the Court by the second applicant.
A.The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
At the material time, the first applicant was the accountant (sayman) of Demokrasi ve Değişim Partisi (“DDP”), a political party formed under Turkish law on 3 April 1995. The second applicant was the Chairman of the Diyarbakır Branch of the DDP.
On 6 June 1995 the Office of the Chief Public Prosecutor at the Court of Cassation (Yargıtay Cumhuriyet Başsavcılığı) (“the Chief Public Prosecutor”) applied to the Constitutional Court (Anayasa Mahkemesi) for an order dissolving the DDP. In support of his application, he cited various parts of the DDP’s constitution (parti programı). He contended that in its constitution the DDP expressed its aim to amend various provisions of Turkish law dealing with the constitutional principles of the Turkish State, namely its territorial and national integrity, its language and unitary character. He also contended that the DDP’s constitution assumed the existence of a Kurdish minority in Turkey with a distinctive national identity. He further argued that the DDP’s constitution expressed the party’s aim of destroying the integrity of the nation by proposing to create a Kurdish minority within the territory of the Turkish Republic on the pretext of protecting and promoting a non-Turkish language and culture.
The Chief Public Prosecutor accused the DDP of pursuing aims which were banned under the Preamble as well as under Articles 2, 3, 14, 69 of the Turkish Constitution (Anayasa) and sections 78(a), 80, 81(a) and (b) of Law No. 2820 on the regulation of political parties (Siyasi Partiler Kanunu). He requested the Constitutional Court to order the dissolution of the DDP in accordance with section 101(a) of Law No. 2820 for having violated these provisions of the Law.
On 28 July 1995 the DDP submitted to the Constitutional Court its preliminary defence (ön savunma). The DDP raised, inter alia, a preliminary objection (ön sorun) to the indictment stating that the Chief Public Prosecutor had not specified any de facto unlawful acts or actions (eylem ve işlem) carried out by the party, which had only been formed two months before the indictment was drafted.
On 2 August 1995 the Chief Public Prosecutor submitted to the Constitutional Court his observations on the DDP’s preliminary defence. He contended, inter alia, that the mere fact that the party’s constitution contained unlawful aims was a sufficient ground for its dissolution.
On 13 October 1995 the DDP submitted its defence on the merits (esas hakındaki savunma).
With regard to the merits of the case, the DDP contended that the accusations in the indictment were unfair and unsubstantiated. In this respect, the DDP alleged, inter alia, that the indictment was drafted on the basis of the established official ideology of the Turkish Republic which denied historical and scientific facts with regard to the Kurdish people. According to the DDP, the party’s aim was to change various laws in Turkey which oppressed the Kurds since they were drafted on the basis of an official denial of the fact that Turkey had a “multilingual” and “multicultural” population.
In its judgment dated 19 March 1996 the Constitutional Court dissolved the DDP. The judgment was published on 23 October 1997 in the Official Gazette (Resmi Gazete).
In its judgment of 19 March 1996, and with regard to the accusation under Article 78 (a) of Law No. 2820, the Constitutional Court summarised as follows selected views and policy goals set out in the DDP’s constitution:
“The founding fathers of the Republic [in the mid 1920s] avoided the adoption of a political and administrative structure compatible with the country’s ethnic reality, its multilingual and multicultural character. They attempted to “Turkify” and “dissolve” ethnic groups by force. This oppression caused the Kurds to revolt. Kurds are still deprived of their liberty. It is necessary to put an end to the policy of oppression, to recognise the rights of the Kurds, to provide a political, administrative and cultural structure founded on the basis of equality. Necessary measures shall be taken to allow the free use of the Kurdish language in all aspects of social life and in official acts (resmi işlemler)”.
The court held that the indivisible integrity of the State with its territory and nation and the supporting concepts of “common language, culture, education and Atatürk nationalism” were based not only on legal and political but also historical and social realities.” According to the court, there was no provision in the Constitution or in the laws of Turkey which made a distinction between her citizens of different ethnic origins. The court noted that it was unlawful to challenge the national and unitary character of the State by making references to ethnic differences within the nation. It was also unlawful, even indirectly, to aim at the foundation of a separate state with its own nation. In the court’s view, no State organ could tolerate such risk-laden aims which may be inspired by various political views, presumptions, interpretations, excuses, ill-founded human rights or liberation claims. The court further noted that other contemporary democratic states of a uni-national character have also taken legal measures to protect their national integrity. Finally, the court found that the DDP expressed the impugned views and policy goals in its constitution with the intention of “demolishing the indivisible integrity of the State with its Territory and Nation”.
With regard to the accusation under section 81(a) and (b) of the Law no. 2820, the Constitutional Court cited a section of the DDP programme which reads:
“Our party maintains that the Turks and the Kurds live together in brotherhood. This can be achieved by ending the continuing policies of oppression, by recognising the rights of the Kurds in accordance with the principles of international law and treaties which also bind Turkey and by providing a multidirectional political, administrative and cultural democratic organisation (yapılanma) based on equality. [...]
The oppression of the Kurdish language-culture, [and] the forced policy of assimilation policy shall be ended. International legal norms and treaty provisions shall be implemented.
Necessary measures shall be taken to ensure the free use of the Kurdish language, including radio and television broadcasting, in every sphere of social life and in official affairs”.
The court referred to the reasons for the adoption of section 81(a) and (b) which stated, inter alia, that there were no minorities in Turkey except for those recognised by the Treaty of Lausanne and that it was the duty of the State to provide every citizen with the knowledge of the official language for the purposes of equality and the efficient administration of public services. According to the Constitutional Court, the fact that some languages other than the official language are known or regionally spoken did not constitute a minority. The court added that Turkey had one single nation whose members are equal citizens of various origins.
The Constitutional Court found that the DDP’s constitution violated the duty of political parties to refrain from any act or propaganda aimed at the destruction of territorial or national integrity which might lead to the disintegration of its component parts.
With regard to the accusation under section 80 of the Law no. 2820, the Constitutional Court found that the DDP’s constitution was not aimed at abolishing the principle of State unity and rejected the Chief Public Prosecutor’s request for dissolution of the party on that ground.
B.Relevant domestic law
a.The Constitution
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 shall constitute with its territory and nation, an indivisible whole. The official language shall be Turkish.”
Article 4
“No amendment may be made or proposed to the provisions of Article 1 of the Constitution providing that the State shall be a Republic, the provisions of Article 2 concerning the characteristics of the Republic or the provisions of Article 3.”
Article 6
“Sovereignty shall reside 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.”
Article 68
“...
The statutes and programmes of political parties shall not be in conflict with the indivisible integrity of the State with its territory and nation, human rights, national sovereignty and the principles of the democratic and 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...”
Article 69 §§ 4 and 5
“The decision to dissolve a political party permanently shall be taken when it is established that the statutes and programme of the political; party violate the provisions of the fourth paragraph of Article 68.
The decision to dissolve a political party permanently due to activities violating the fourth paragraph of Article 68 may be taken only when the Constitutional Court determines that the party in question has become a centre for the execution of such activities.”
b.Law no. 2820 on the regulation of political parties
The relevant provisions of Law no. 2820 on the regulation of political parties read as follows:
Section 78
“Political parties
(a) shall not aim, strive 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. ...
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 90(1)
“The constitution, programme and activities of political parties may not contravene the Constitution or this Law.”
Section 101
“The Constitutional Court shall dissolve a political party whose
(a) constitution or programme ... is contrary to the provisions of Chapter 4 of this Law ...”
COMPLAINTS
1.The applicants complain that the dissolution of the DDP deprived them of their right to hold opinions which reflected those espoused by the party. In this respect, they invoke Article 9 of the Convention.
2.The applicants also complain that the dissolution of the DDP deprived them of their right to communicate and disseminate opinions to the general public. They invoke Article 10 of the Convention.
3.The applicants further complain that the dissolution of the DDP violated their right to freedom of peaceful assembly and to freedom of association with others. They invoke Article 11 of the Convention.
4.The applicants finally complain that the above mentioned rights were violated on account of the fact that the DDP programmes favoured the official use of Kurdish as opposed to another language such as English or French. They contend that if the DDP programme had favoured the use of one of the latter languages, the Constitutional Court would not have found any violation of the relevant domestic law and would not have dissolved the party. The applicants invoke Article 14 of the Convention.
THE LAW
1.The applicants maintain that the dissolution of the DDP violated their rights to hold and disseminate opinions as well as their right to freedom of association, in breach of Articles 9, 10 and 11 of the Convention. These Articles provide respectively:
Article 9
“1 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2 Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
Article 10
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
Article 11
“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.”
The Government state that the alleged interference does not come within the scope of Article 9 of the Convention and falls to be considered under Articles 10 and 11.
The applicants for their part maintain that Article 9 can be relied on by them and state that the dissolution order deprived them of their right to share and promote support for their opinions.
The Government further assert with reference to the applicants’ allegations under Articles 10 and 11 of the Convention that the decision of the Constitutional Court to dissolve the DPP cannot be considered in isolation of the terrorism campaign being waged at the material time against the territorial integrity of the State and the unity of the nation and the right of the respondent State to protect itself, human rights and democracy against that threat.
In this connection, the Government stress that the DPP’s programme did not take a stand against the terrorists and the massacres for which the latter were responsible. The Kurdish rebellion was depicted as legitimate. Significantly, the programme referred to the “so-called terror” and the use of the word “peace” in the programme canvassed the ending of the State’s right to defeat terrorism and its surrender to the terrorists’ opposition to the integrity and unity of the territory and nation. For the Government, any party whose aim is to bring about peace should reflect its responsibility with respect to the defeat of terrorism.
In the view of the Government, the interference with the applicants’ rights under Article 11 had a clear legal basis, namely Articles 68 and 69 of the Constitution and sections 78(a), 81(a) and (b) and 101 of Law no. 2820 on the regulation of political parties. Furthermore, the dissolution pursued legitimate aims covered by the second paragraph of Article 11: the protection of national security, territorial integrity and public safety. That the interference was necessary in a democratic society is confirmed by the security situation in the respondent State at the relevant time and the terms of the DPP’s programme as well as the party’s attitude with respect to the Kurdish rebellion. The Government contend that the impugned measure is consistent with the approach which any other democratic State would have followed if faced with similar circumstances. Furthermore, they stress that the right of States to take measures to protect their territorial integrity and to act against terrorist threats to this value are in accordance with international principles embodied in texts such as the Helsinki Act and the 1991 “Paris Charter for a New Europe”.
The applicants state in reply that the goals referred to it the DPP’s programme were not in conflict with Article 68(4) taken in conjunction with Article 69(6) of the Turkish Constitution. In particular, the party never became an instrument for the execution of activities prohibited under the former provision since the Principal State Counsel applied to have it dissolved only three months after its formation. The respondent Government cannot therefore rely on these provisions as a legal basis for the dissolution.
The Government disagree and maintain that Article 69 of the Constitution regulates not only the activities of political parties but also their statutes and programmes where these are incompatible with the Constitution.
The applicants further submit that the respondent Government’s reliance on the provisions of the 1982 Constitution is at variance with the commitments which they have entered into in the perspective of Turkey’s accession to the European Union to ensure respect for democratic institutions, human rights and the rule of law, including compliance with the criteria adopted at the European Union Summit in Copenhagen in 1993 (“the Copenhagen criteria”) and the terms of the 1991 OSCE “Paris Charter for a New Europe”. In the view of the applicants, the legitimacy of the decision to dissolve the DPP must not be evaluated from the standpoint of domestic constitutional law provisions but in the context of Turkey’s international obligations under treaties such as the European Convention on Human Rights, which, as stated in Article 90 of the Constitution, have the force of law. The applicants further refer to the pledges made by the country’s present leaders to reform the anti-democratic provisions of that Constitution which, they recall, was drafted by the military leaders following the 1980 military coup.
The Government submit in turn that although Article 90 of the Constitution provides that no appeal can be made to the Constitutional Court in respect of duly ratified international agreements, this does not mean that such agreements are superior to other laws. The Government affirm that Articles 68 and 69 of the Constitution and Law no. 2820 on the regulation of political parties are in any event compatible with the provisions of the Convention.
In the applicants’ submission, the DDP was formed in particular to solve “the Kurdish problem” which, in their opinion, is the source of all other problems in Turkey. They add that the party’s aim was to solve all the country’s problems using peaceful methods and in particular favoured the implementation of human rights for all the people of Turkey of various ethnical backgrounds including the right to unrestricted use of their mother tongues. The applicants deny that the DPP had any duty or responsibility to adopt a stance with respect to the PKK and maintain that the latter organisation is the result of negative conditions and wrong policies. They allege that the DDP was dissolved because its constitution favoured peace in all aspects of life and, as such, was in contrast to the official ideology of the Turkish Republic.
The applicants deny that the DPP programme offends against the integrity of the State or the unity of the nation, its official language, anthem, flag or the designation of the capital. In their submission, the authorities in reality object to the DPP’s support for the free use of the Kurdish language, a principle which is embodied in the above-mentioned Paris Charter to which Turkey is a signatory. Although the prohibition on the use of the Kurdish language was removed in 1991 it is still the case that restrictions continue to be applied as illustrated by the almost daily seizure of Kurdish language publications and the obstacles placed in the way of the running Kurdish language courses. The applicants stress that the DPP’s views on the free use of the Kurdish language are geared towards the search for a solution to the main problem besetting Turkey and are in the interests of both Kurds and Turks.
The applicants further contend that the respondent Government’s references to sections 81(a) and (b) of the Law on the regulation of political parties are equally invalid since these provisions are premised on the denial of the existence of minorities on the territory of the Republic of Turkey and at the same time on the prohibition on the creation of minorities. The applicants assert that minorities are the process of history and cannot be created by law or their existence denied by law. These are realities and as such are reflected in the DPP’s policy on the use of the Kurdish language currently spoken by 15-20 million persons on the national territory.
The Court considers, in the light of the parties’ submissions, that these complaints raise serious issues of fact and law under the Convention, the determination of which should depend on an examination of their merits. The Court concludes therefore that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.
2.The applicants complain that the above mentioned rights were violated because the DDP’s programme favoured the official use of Kurdish as opposed to another language such as English or French. The applicants rely on Article 14 of the Convention taken together with Articles 9, 10 and 11 thereof. Article 14 provides:
Article 14
“The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The Government reject the applicants’ allegations that they are the victims of unlawful discrimination . They submit that the dissolution of the DPP was a measure directed at ensuring equality between citizens taken in the face of the party’s aim to bestow a privileged status on a particular group and to create a separate nation for it.
The applicants state that ninety per cent of the members of the DPP were born in east or south-east Turkey. The applicants argue that the party was dissolved on that account as well as on account of its peaceful objectives with respect to the Kurdish question.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court, unanimously,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case.
Michael O’BoyleElisabeth Palm
RegistrarPresident
Full & Egal Universal Law Academy