13.2.2003
Press release issued by the Registrar
GRAND CHAMBER JUDGMENT IN THE CASE OF
REFAH PARTISI (THE WELFARE PARTY) AND OTHERS v. TURKEY
The European Court of Human Rights has delivered at a public hearing
today a judgment [fn] in the case of Refah Partisi (The Welfare
Party) and others v. Turkey (application nos. 41340/98, 41342/98,
41343/98, and 41344/98). The Court held unanimously that:
there had been no violation of Article 11 (freedom of assembly and
association) of the European Convention on Human Rights;
it was not necessary to examine separately the complaints under
Articles 9 (freedom of thought), 10 (freedom of expression), 14
(prohibition of discrimination), 17 (prohibition of abuse of rights)
and 18 (limitations on use of restrictions on rights) of the
Convention and Articles 1 (protection of property) and 3 (right to
free elections) of Protocol No. 1.
1. Principal facts
The first applicant, Refah Partisi (the Welfare Party - "Refah") was
a political party founded on 19 July 1983. The second applicant is
its former Chairman, Necmettin Erbakan, a Member of Parliament at
the material time. The third and fourth applicants, ªevket Kazan and
Ahmet Tekdal, are politicians and lawyers and were Members of
Parliament and Refah Vice-Chairmen at the time.
On 21 May 1997 Principal State Counsel at the Court of Cassation
brought proceedings in the Turkish Constitutional Court to dissolve
Refah, which he accused of having become "a centre of activities
against the principle of secularism". In support of his application,
he relied on various acts and declarations by leaders and members of
Refah which he said indicated that some of the party's objectives,
such as the introduction of sharia and a theocratic regime, were
incompatible with the requirements of a democratic society.
Before the Constitutional Court the applicants' representatives
argued that the prosecution had relied on mere extracts from the
speeches concerned, distorting their meaning and taking them out of
context. They also maintained that Refah, which at the time had been
in power for a year as part of a coalition government, had
consistently observed the principle of secularism and respected all
religious beliefs and consequently was not to be confused with
political parties that sought the establishment of a totalitarian
regime. They added that Refah's leaders had only become aware of
certain of the offending remarks in the case after Principal State
Counsel's application for the dissolution of the party was served on
them and that they had nonetheless expelled those responsible from
the party to prevent Refah being seen as a "centre" of illegal
activities for the purposes of the Law on the regulation of
political parties.
In its judgment of 16 January 1998 the Constitutional Court
dissolved Refah on the ground that it had become a "centre of
activities against the principle of secularism". It also declared
that Refah's assets were to be transferred to the Treasury. The
Constitutional Court further held that the public declarations of
Refah's leaders, and in particular Necmettin Erbakan, ªevket Kazan
and Ahmet Tekdal, had directly engaged Refah's responsibility as
regards the constitutionality of its activities. Consequently, it
banned them from sitting in Parliament or holding certain political
posts for five years.
2. Procedure and composition of the Court
The applications were lodged with the European Commission of Human
Rights on 22 May 1998 and transmitted to the Court on 1 November
1998. They were joined and declared partly admissible on 3 October
2000. In its Chamber judgment (Third Section) of 31 July 2001 the
Court held, by four votes to three, that there had been no violation
of Article 11 of the Convention in the case and, unanimously, that
no separate issues arose under Articles 9, 10, 14, 17 and 18 of the
Convention and Articles 1 and 3 of Protocol No. 1. On 30 October
2001 the applicants requested that the case be referred to the Grand
Chamber under Article 43 (referral to the Grand Chamber) and on 12
December 2001 the panel of the Grand Chamber accepted that request.
A hearing was held on 19 June 2002.
Judgment was given by a Grand Chamber of 17 judges, composed as
follows:
Luzius Wildhaber (Swiss), president,
Christos Rozakis (Greek),
Jean-Paul Costa (French),
Georg Ress (German),
Gaukur Jörundsson (Icelandic),
Lucius Caflisch (Swiss),
Riza Türmen (Turkish),
Corneliu Bîrsan (Romanian),
Peer Lorenzen (Danish),
Volodymyr Butkevych (Ukrainian),
Nina Vajiæ (Croatian),
Matti Pellonpää (Finnish),
Margarita Tsatsa-Nikolovska (FYROMacedonia),
András Baka (Hungarian),
Rait Maruste (Estonian),
Anatoly Kovler (Russian),
Antonella Mularoni (San Marinese), judges,
and also Paul Mahoney, Registrar.
3. Summary of the judgment
Complaints
The applicants complained, under Articles 9, 10, 11, 14, 17 and 18
of the Convention and Articles 1 and 3 of Protocol No. 1.
Decision of the Court
Article 11 of the Convention
The parties had accepted that Refah's dissolution and the measures
which accompanied it amounted to an interference with the
applicants' exercise of their right to freedom of association under
Article 11 of the Convention. The Court further considered that, in
accordance with the requirements of paragraph 2 of Article 11, the
interference had been prescribed by law and had pursued a legitimate
aim. Under the terms of that paragraph, it remained to determine
whether the interference had been "necessary in a democratic
society".
Citing its case-law, the Court reaffirmed the close relationship
between democracy and the Convention and also the primordial role
played in a democratic regime by political parties enjoying the
freedoms and rights enshrined in Article 11 and also in Article 10
(freedom of expression) of the Convention.
However, the freedoms guaranteed by Article 11, and by Articles 9
(freedom of religion) and 10 of the Convention, could not deprive
the authorities of a State in which an association, through its
activities, jeopardised that State's institutions, of the right to
protect those institutions. The Court had previously held that some
compromise between the requirements of defending democratic society
and individual rights was inherent in the Convention system.
The Court considered that a political party might campaign for a
change in the law or the legal and constitutional structures of the
State on two conditions: firstly, the means used to that end must be
legal and democratic in every respect; secondly, the change proposed
must itself be compatible with fundamental democratic principles. It
necessarily followed that a political party whose leaders incited
violence or put forward a political programme which failed to
respect one or more of the rules of democracy or which was aimed at
the destruction of democracy and the flouting of the rights and
freedoms recognised in a democracy could not lay claim to the
Convention's protection against penalties imposed on those grounds.
The Court reiterated, nevertheless, that the exceptions set out in
Article 11 were, where political parties were concerned, to be
construed strictly; only convincing and compelling reasons could
justify restrictions on such parties' freedom of association. In
determining whether a necessity within the meaning of Article 11 § 2
existed, the Contracting States had only a limited margin of
appreciation. Provided that it satisfied the two conditions set out
above, a political party animated by the moral values imposed by a
religion could not be regarded as intrinsically inimical to the
fundamental principles of democracy, as set forth in the Convention.
The Court further considered that the constitution and programme of
a political party could not be taken into account as the sole
criterion for determining its objectives and intentions. The
political experience of the Contracting States had shown that in the
past political parties with aims contrary to the fundamental
principles of democracy had not revealed such aims in their official
publications until after taking power. That was why the Court had
always pointed out that a party's political programme might conceal
objectives and intentions different from the ones it proclaims. To
verify that it did not, the content of the programme had to be
compared with the actions of the party's leaders and the positions
they defended.
In making an overall assessment of the necessity of the interference
and in particular whether it corresponded to a pressing social need,
the Court found that the acts and speeches of Refah's members and
leaders cited by the Constitutional Court were imputable to the
whole of the party, that those acts and speeches revealed Refah's
long-term policy of setting up a regime based on sharia within the
framework of a plurality of legal systems and that Refah did not
exclude recourse to force in order to implement its policy and keep
the system it envisaged in place. Considering that these plans were
incompatible with the concept of a "democratic society" and that the
real opportunities Refah had to put them into practice made the
danger to democracy more tangible and more immediate, the penalty
imposed on the applicants by the Constitutional Court, even in the
context of the restricted margin of appreciation left to it, might
reasonably be considered to have met a "pressing social need".
The Court further concluded that the interference could not be
regarded as disproportionate in relation to the aims pursued.
There were thus convincing and compelling reasons justifying Refah's
dissolution and the temporary forfeiture of certain political rights
imposed on the other applicants. It followed that Refah's
dissolution might be regarded as "necessary in a democratic society"
within the meaning of Article 11 § 2 and there had accordingly been
no violation of Article 11.
Articles 9, 10, 14, 17, 18, and Articles 1 and 3 of Protocol No. 1
The Court did not consider it necessary to carry out a separate
examination of the applicants' other complaints.
Judge Ress - joined by Judge Rozakis - and Judge Kovler expressed
separate opinions, which are annexed to the judgment.
***
The Court's judgments are accessible on its Internet site
(http://www.echr.coe.int).
Registry of the European Court of Human Rights
F – 67075 Strasbourg Cedex
Contacts: Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)
Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)
Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54)
Fax: +00 33 (0)3 88 41 27 91
The European Court of Human Rights was set up in Strasbourg in 1959
to deal with alleged violations of the 1950 European Convention on
Human Rights. On 1 November 1998 a full-time Court was established,
replacing the original two-tier system of a part-time Commission and
Court.
[fn] Grand Chamber judgments are final.
------------------------------------
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