Information Note on the Court’s case-law 41
April 2002
Yazar and Others v. Turkey - 22723/93, 22724/93 and 22725/93
Judgment 9.4.2002 [Section IV]
Article 11
Article 11-1
Freedom of association
Dissolution of political party: violation
Facts: At the material time, the first applicant was chairman of the People’s Labour Party, the HEP, the second applicant its vice-chairman and the third its secretary general. The Party was established in 1990. In 1992, the Principal State Counsel at the Court of Cassation asked the Turkish Constitutional Court to dissolve the HEP. In 1993, the Constitutional Court decided in a judgment to dissolve the party. On the basis of written and oral statements made at meetings by its leaders and officers, it found that the party was seeking to undermine national integrity by differentiating between Turks and Kurds, with the aim of setting up a separate state. The HEP's view was that there was a separate Kurdish people with its own culture and language, which the Turkish authorities did not allow them to practise freely. The party also called for the Kurdish people's right to self-determination. According to the Constitutional Court, the HEP referred to PKK terrorists as freedom fighters and claimed that rather than fighting the latter the security forces were really more concerned with exterminating the Kurdish people. In all its activities, in which the sole emphasis was equality between Turks and Kurds, the HEP were seeking the establishment of an independent state built on racist foundations, which posed a threat to the "Turkish nation". According to the Constitutional Court, "the HEP's objectives resembled those of terrorists" and "statements based on lies, accusations and hostile attitudes, which the HEP's leaders constantly repeated as a form of provocation, were likely to promote tolerance of terrorist acts, and justify and encourage their perpetrators".
Law: Article 11 – The Government maintained that the dissolution of political parties fell within the margin of appreciation of constitutional courts and that in this case Turkey's fundamental constitutional principles were being challenged. The Court considered that political parties made a key contribution to the workings of democracy and were covered by Article 11. Political parties did not cease to be covered by the Convention simply because national authorities considered that their activities posed a threat to the relevant country's constitutional institutions and must have restrictions placed on them. The Government's objection was therefore untenable. Dissolution of the HEP constituted interference in the three applicants' right of freedom of association. Such interference had statutory force, since the contested decisions were based both on the Constitution and on the legislation governing political parties. The lawful aim of such decisions was to protect territorial integrity and national security. However, in judging whether such restrictions were necessary in a democratic society, the Constitutional Court had not taken account of the lawfulness of the HEP's programme and statutes and had confined its assessment to the party's political activities. Its decision to dissolve the party had been based on the party leaders' public statements, which it had accepted as evidence of the HEP's general position. The Court could therefore confine itself to considering these statements. The Government maintained in particular that the party leaders were inciting ethnic hatred, insurrection and violence. Yet the Court noted that the HEP had offered no explicit support or approval for violence for political ends. At the material time, none of the HEP's leaders had been convicted of incitement to ethnic hatred or insurrection, even though these were criminal offences. The Government's arguments were therefore unconvincing. As to whether the HEP's objectives were incompatible with democratic principles, the party's platform amounted to claims that Kurds were not free to use their own language and were unable to make political demands based on the principle of self-determination, and that the security forces engaged in the struggle against terrorist organisations had committed illegal acts and were responsible in part for the suffering of Kurdish citizens in certain parts of Turkey. These views were not, as such, incompatible with fundamental democratic principles. To see the defence of such views by a political party as support for terrorism could amount to giving terrorist movements a monopoly of the defence of such views. Moreover, even if defending such views ran counter to government policy or the convictions of a majority of the public, it was necessary in a properly functioning democracy for political parties to be able to introduce them into public debate. The Constitutional Court's decision did not establish that the HEP's political proposals posed a threat to Turkey's democratic system. By themselves, the HEP party leaders' strong criticisms of certain actions of the security forces did not provide sufficient evidence that the HEP amounted to a terrorist group. The acceptable limits for criticism were broader when the target was a government rather than an individual. Nor had it been established that by criticising the actions of the armed forces the HEP's members of parliament and officers were pursuing any other goal than that of discharging their duty to draw attention to their electors' concerns. Briefly, since the HEP had not advocated any policy which could have undermined the country's democratic regime and had not urged or sought to justify recourse to force, its dissolution could not be considered to reflect a pressing social need.
Conclusion: violation (unanimously).
Article 6 § 1 – The proceedings before the Constitutional Court had concerned the HEP's right, as a political party, to pursue its political activities. They therefore concerned a political right, which was not covered by Article 6 § 1. The party's dissolution had led to the transfer of its assets to the Treasury and as such it could have brought a civil law action, within the meaning of this article, to establish its property rights. However, neither the proceedings before the Constitutional Court nor any other proceedings were concerned with the right to respect for the HEP's property, and the transfer of its assets to the Treasury was a direct legal consequence of the party's dissolution.
Conclusion: no violation (unanimously)
Article 41 – The Court awarded each of the three applicants EUR 10 000 for non-pecuniary damage and a further EUR 10 000 to the three of them for costs and expenses.
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This summary by the Registry does not bind the Court.
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