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TBKP V Turkey CONSEIL COUNCIL DE L’EUROPE OF EUROPE COUR EUROPÉENNE DES DROITS DE L’HOMME EUROPEAN COURT OF HUMAN RIGHTS CASE OF UNITED COMMUNIST PARTY OF TURKEY AND OTHERS v. TURKEY (133/1996/752/951) JUDGMENT STRASBOURG 30 January 1998 The present judgment is subject to editorial revision before its reproduction in final form in Reports of Judgments and Decisions 1998. These reports are obtainable from the publisher Carl Heymanns Verlag KG (Luxemburger Straße 449, D-50939 Köln), who will also arrange for their distribution in association with the agents for certain countries as listed overleaf. i List of Agents Belgium : Etablissements Emile Bruylant (rue de la Régence 67, B-1000 Bruxelles) Luxembourg : Librairie Promoculture (14, rue Duchscher (place de Paris), B.P. 1142, L-1011 Luxembourg-Gare) The Netherlands : B.V. Juridische Boekhandel & Antiquariaat A. Jongbloed & Zoon (Noordeinde «39, NL-2514 GC 's-Gravenhage) UNITED COMMUNIST PARTY OF TURKEY AND OTHERS ii JUDGMENT OF 30 JANUARY 1998 SUMMARY 1 Judgment delivered by a Grand Chamber Turkey – dissolution of a political party by the Constitutional Court I. ARTICLE 11 OF THE CONVENTION A. Whether Article 11 was applicable Wording of Article 11: showed that trade unions were but one example among others of form in which right to freedom of association could be exercised. Political parties were a form of association essential to proper functioning of democracy – in view of importance of democracy in Convention system, there could be no doubt that political parties were within scope of Article 11. An association was not excluded from protection afforded by Convention simply because its activities were regarded by national authorities as undermining constitutional structures of State and calling for imposition of restrictions – Article 1 of Convention: made no distinction as to type of rule or measure concerned and did not exclude any part of member States’ “jurisdiction” from scrutiny under Convention – political and institutional organisation of member States had accordingly to respect rights and principles enshrined in Convention – compromise between requirements of defending democratic society and individual rights: inherent in system of Convention. Protection afforded by Article 11: lasted for an association’s entire life and dissolution of an association by a country’s authorities had accordingly to satisfy requirements of paragraph 2. B. Compliance with Article 11 1. Whether there had been an interference With rights of all three applicants. 2. Whether interference was justified (a) “Prescribed by law” Not disputed. (b) Legitimate aim Protection of “national security”. 1. This summary by the registry does not bind the Court. UNITED COMMUNIST PARTY OF TURKEY AND OTHERS iii JUDGMENT OF 30 JANUARY 1998 (c) “Necessary in a democratic society” (i) General principles Article 11 had also to be considered in light of Article 10 – fact that their activities formed part of a collective exercise of freedom of expression in itself entitled political parties to seek protection of Articles 10 and 11. Political parties made irreplaceable contribution to political debate, which was at very core of concept of democratic society. Democracy: without doubt a fundamental feature of “European public order” – Preamble to Convention: established very clear connection between Convention and democracy – democracy: appeared to be only political model contemplated by Convention and, accordingly, only one compatible with it – Court had identified certain provisions of Convention as being characteristic of democratic society. Exceptions set out in Article 11: to be construed strictly where political parties were concerned – only limited margin of appreciation, which went hand in hand with rigorous European supervision. (ii) Application of principles to the present case TBKP had been dissolved even before it had been able to start its activities, solely on basis of its constitution and programme. Political party’s choice of name: could not in principle justify a measure as drastic as dissolution, in absence of other relevant and sufficient circumstances – absence of any concrete evidence to show that in choosing to call itself “communist”, TBKP had opted for policy that represented real threat to Turkish society or Turkish State. TBKP ’s programme in so far as it concerned citizens of Kurdish origin – no justification for hindering a political group solely because it sought to debate in public situation of part of State’s population and to take part in nation’s political life in order to find, according to democratic rules, solutions capable of satisfying everyone concerned. No evidence enabling Court to conclude, in absence of any activity by TBKP , that party had borne any responsibility for problems which terrorism posed in Turkey – no need to bring Article 17 into play. Conclusion : violation (unanimously). II. ARTICLES 9, 10, 14 AND 18 OF THE CONVENTION Complaints not pursued in proceedings before Court. Conclusion : not necessary to decide this issue (unanimously). III. ARTICLES 1 AND 3 OF PROTOCOL No. 1 Measures complained of: incidental effects of TBKP ’s dissolution. Conclusion : not necessary to decide this issue (unanimously). UNITED COMMUNIST PARTY OF TURKEY AND OTHERS iv JUDGMENT OF 30 JANUARY 1998 IV. ARTICLE 50 OF THE CONVENTION A. Non-pecuniary damage TBKP : no causal link with violation found. Mr Sargın and Mr Ya ğcı: finding of a violation constituted sufficient compensation. B. Costs and expenses Awarded in part. Conclusion : respondent State to pay applicants specified sum for costs and expenses (unanimously). COURT'S CASE-LAW REFERRED TO 14.11.1960 and 1.7.1961, Lawless v. Ireland; 7.12.1976, Kjeldsen, Busk Madsen and Pedersen v. Denmark; 7.12.1976, Handyside v. the United Kingdom; 18.1.1978, Ireland v. the United Kingdom; 6.9.1978, Klass and Others v. Germany; 26.4.1979, Sunday Times v. the United Kingdom (no. 1); 13.5.1980, Artico v. Italy; 13.8.1981, Young, James and Webster v. the United Kingdom; 8.7.1986, Lingens v. Austria; 2.3.1987, Mathieu-Mohin and Clerfayt v. Belgium; 7.7.1989, Soering v. the United Kingdom; 23.4.1992, Castells v. Spain; 29.10.1992, Open Door and Dublin Well Woman v. Ireland; 16.12.1992, Hadjianastassiou v. Greece; 24.11.1993, Informationsverein Lentia and Others v. Austria; 23.9.1994, Jersild v. Denmark; 23.3.1995, Loizidou v. Turkey; 26.9.1995, Vogt v. Germany; 16.9.1996, Akdivar and Others v. Turkey; 25.11.1996, Wingrove v. the United Kingdom; 18.12.1996, Aksoy v. Turkey; 1.7.1997, Gitonas and Others v. Greece UNITED COMMUNIST PARTY OF TURKEY AND OTHERS 1 JUDGMENT OF 30 JANUARY 1998 In the case of United Communist Party of Turkey and Others v. Turkey 1, The European Court of Human Rights, sitting, in accordance with Rule 51 of Rules of Court A 2, as a Grand Chamber composed of the following judges: Mr R. BERNHARDT , President , Mr F. GÖLCÜKLÜ , Mr F. MATSCHER , Mr R. MACDONALD , Mr C. RUSSO , Mr N. VALTICOS , Mrs E. PALM , Mr I. FOIGHEL , Mr R. PEKKANEN , Mr A.N. LOIZOU , Mr J. M. MORENILLA , Sir John FREELAND , Mr A.B. BAKA , Mr M.A. LOPES ROCHA , Mr L. WILDHABER , Mr J. MAKARCZYK , Mr P. KŪRIS , Mr U. LŌHMUS , Mr P. VAN DIJK , and also of Mr H. PETZOLD , Registrar , and Mr P.J. MAHONEY , Deputy Registrar , Having deliberated in private on 26 September 1997 and 27 January 1998, Delivers the following judgment, which was adopted on the last- mentioned date: Notes by the Registrar 1. The case is numbered 133/1996/752/951. The first number is the case’s position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case’s position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission. 2. Rules of Court A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol. They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently. UNITED COMMUNIST PARTY OF TURKEY AND OTHERS 2 JUDGMENT OF 30 JANUARY 1998 PROCEDURE 1. The case was referred to the Court by the European Commission of Human Rights (“the Commission”) on 28 October 1996, within the three- month period laid down by Article 32 § 1 and Article 47 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). It originated in an application (no. 19392/92) against the Republic of Turkey lodged with the Commission under Article 25 by a political party, the United Communist Party of Turkey, and two Turkish nationals, Mr Nihat Sargın and Mr Nabi Ya ğcı, on 7 January 1992. The Commission’s request referred to Articles 44 and 48 (a) of the Convention and to Rule 32 of Rules of Court A. The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 11 of the Convention. 2. In response to the enquiry made in accordance with Rule 33 § 3 (d), the applicants stated that they wished to take part in the proceedings and designated the lawyers who would represent them (Rule 30). The lawyers were given leave by the President to use the Turkish language in the written and oral stages of the proceedings (Rule 27 § 3). 3. The Chamber to be constituted included ex officio Mr F. Gölcüklü, the elected judge of Turkish nationality (Article 43 of the Convention), and Mr R. Ryssdal, the President of the Court (Rule 21 § 4 (b)). On 29 October 1996, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr B.
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