Information Note on the Court’s case-law No. 102
November 2007
Sobacı v. Turkey - 26733/02
Judgment 29.11.2007 [Section III]
Article 3 of Protocol No. 1
Stand for election
Ancillary penalty of removal from office imposed on Member of Parliament on the dissolution of his party: violation
Facts: The applicant was elected to the Grand National Assembly, on a list presented by the Fazilet Partisi. The Constitutional Court ordered the dissolution of his party, based on the words and actions of a number of its members, including the applicant. It considered that, for the purposes of the Constitution, the party had become a centre of activities contrary to the principle of secularism and that its dissolution was justified by a pressing social need. The party had based its political programme on the issue of the Islamic headscarf. Its members stirred up popular hatred against the authorities at their public appearances, stating that the ban on the wearing of headscarves in schools and administrative buildings amounted to persecution and an attack on people’s rights and freedoms. The court decided, as an ancillary penalty, to remove the applicant and another MP from parliamentary office. It banned them and three more party members, for a period of five years, from being founders, members, administrators or auditors of any other political party.
Law: The purpose of the disputed measure had been to preserve the secular nature of the political system, with the legitimate aims of preventing disorder and protecting the rights and freedoms of others. As to whether it had been proportional to the aims pursued, the Court had to take into account the provisions of the Constitution concerning the dissolution of a political party, in so far as the applicant’s removal from parliamentary office had been the consequence of the dissolution of the Fazilet party. In the version in force at the material time, the Article of the Constitution concerned was very broad in scope. The party could be held accountable for all the actions and words of its members and, as a result, considered as a centre of activities contrary to the Constitution and dissolved. No distinction was made between different degrees of involvement in the activities concerned. However, the Court noted with interest the constitutional amendment whereby a political party could be considered a centre of activities contrary to the Constitution only if its leaders and members engaged intensively in such activities and the party authorities approved or condoned the situation. In addition, the amendment gave the Constitutional Court the power to impose a penalty less severe than outright dissolution of the party, namely depriving it of public funding. As a result, resorting to removal from parliamentary office would no doubt become less frequent. These changes thus strengthened the position of MPs. Removal from parliamentary office was en extremely serious penalty. The applicant’s removal from office could not be considered proportionate to the legitimate aims pursued. Accordingly, the disputed measure had impaired the very essence of his right to be elected and to serve his term of office, as well as the sovereign power of the electorate who had elected him.
Conclusion: violation (unanimously).
Article 41 – Non-pecuniary damage: finding of a violation sufficient.
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This summary by the Registry does not bind the Court.
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