1. Introduction
1. On 18 April 2008, during the spring part-session
of the Assembly, a written declaration was signed by 21 Parliamentary
Assembly members
expressing concern about the
judicial proceedings recently instituted by the Chief Prosecutor
of the Supreme Court of Turkey to dissolve the ruling Justice and
Development Party (AK Party) and ban 71 of its members from politics.
Recognising the independence of the judiciary and prosecution, the
signatories expected the latter to respect the case law of the European
Court of Human Rights on Articles 10 and 11 of the European Convention
on Human Rights (hereafter “the Convention”) when considering political
party closure and bans on individual members.
2. At its meeting in Stockholm on 29 May 2008, following a request
for a debate under urgent procedure submitted by the five chairpersons
of the Assembly’s political groups on behalf of their groups, the
Bureau of the Assembly decided to recommend that the Assembly hold
a debate on “the functioning of democratic institutions in Turkey”
and proposed to refer this matter to the Monitoring Committee for
report. At the opening of its June 2008 part-session, the Assembly
voted in favour of holding a debate under urgent procedure on the recent
developments regarding the functioning of democratic institutions
in Turkey. The Monitoring Committee appointed me rapporteur at its
meeting on 23 June 2008.
3. Turkey has been engaged in a post-monitoring dialogue with
the Monitoring Committee of the Parliamentary Assembly since the
closure of the monitoring procedure in April 2004. I drafted the
last report on the honouring of obligations and commitments by Turkey,
together with Ms Mady Delvaux-Stehres (Luxembourg, Socialist Group),
which was debated by the Assembly on 22 June 2004 and led to the
adoption of
Resolution
1380 (2004).
This
text listed 12 issues which Turkey, as part of its authorities’
current reforms, was invited to address, starting from the need
to carry out “a major reform of the 1982 Constitution, with the assistance
of the Venice Commission, to bring it into line with current European
standards”.
4. These 12 issues are the object of the post-monitoring dialogue
between the Monitoring Committee and the Turkish authorities, which
falls within the responsibility of the committee’s chairman. Upon
the request of the former chairman of the committee, Mr Eduard Lintner,
the Turkish delegation to the Assembly provided information on the
progress made with regard to these 12 issues in December 2007. The
present chairman of the committee, Mr Serhiy Holovaty, has planned
a fact-finding mission to Turkey in autumn 2008.
5. I therefore do not intend to interfere with the chairman’s
mandate under the post-monitoring dialogue and will limit myself
to presenting recent developments in the country, linked to the
on-going proceedings against the ruling party, and their implications
for the functioning of the country’s democratic institutions, as
well as the challenges lying ahead. My report also provides background
information as regards the Council of Europe standards in the field
of dissolution of political parties and previous cases of dissolution
of political parties in Turkey.
2. Developments in 2007-2008
6. Turkey has been governed by the Justice and Development
Party (“AK Party”), led by Mr Recep Tayyip Erdoğan, for over five
years now. The government has stood for strong economic growth and
political reform and has won the favour of investors for its pursuit
of macroeconomic stability and privatisation in the country.
7. When founded in 2001 by Mr Erdoğan and Mr Gül, the AK Party
offered a significantly more moderate alternative in the Turkish
political spectrum than the Welfare Party (Refah Partisi), led by
Mr Necmettin Erbakan and dissolved in 1998, and the two parties
that followed, the Virtue Party (Fazilet Partisi), dissolved in
June 2001, and the Happiness Party (Saadet Partisi). The AK Party
rejected the “Islamist” label
and presented itself as a pro-western
mainstream party, with a conservative social agenda and a firm commitment
to a liberal market economy and the initiation of intensive reforms
with the aim of European Union membership.
8. In its
Resolution
1380 (2004), the Assembly already noted with satisfaction
that, despite initial concern in November 2002 about the accession
of the AK Party to power, the new government, with the unstinting support
of the then only opposition party, the Republican People’s Party
(CHP), had made good use of its absolute majority in parliament
to expedite and intensify the reform process.
9. Major amendments were made in the framework of the three constitutional
amendment packages introduced in 2001, 2002 and 2004, including
the abolition of the death penalty in all circumstances, the abolition
of State Security Courts from the Turkish judicial system, the enshrinement
of the principle of gender equality in the constitution, with an
emphasis on the state’s obligation to guarantee the respective principles, and
the elimination of the principle of secrecy with respect to the
auditing of state property in possession of the armed forces. In
addition, the supremacy of international human rights treaties over
domestic law in case of conflict between the two was established
as a constitutional principle.
10. It was in the light of these reforms that the Assembly decided
to close its monitoring procedure for Turkey in 2004 and follow
further developments in the context of the more flexible post-monitoring
dialogue. In its
Resolution
1380 (2004), the Assembly noted that Turkey had achieved
“more reforms in little more than two years than in the previous
ten”. It was also to a great extent in the light of these same reforms
that the European Union opened accession negotiations with Turkey
in October 2005. Since then, Turkey has made continuous efforts
to fully comply with the Copenhagen criteria, including the need
to achieve “stability of institutions guaranteeing democracy, the
rule of law and human rights”.
11. A new package of constitutional and legislative reforms was
on the agenda of the government in 2007, but was hampered by the
political crisis which erupted as a result of the failure by the
Turkish Grand National Assembly (TGNA) to elect a new president
of the republic to succeed Ahmet Necdet Sezer before the expiry of
his single seven-year term, on 16 May 2007.
12. The first round for the election of the new president by the
TGNA took place on 27 April 2007. The vote was boycotted by the
opposition, with the Republican People’s Party (CHP), the AK Party’s
main rival, complaining about the lack of prior discussion and consultation
and the surprise announcement of the AK Party’s candidate, Foreign
Minister and Deputy Prime Minister Abdullah Gül,
shortly
before the expiry of the legal deadline.
13. Political tensions immediately increased, fuelled by statements
made by the army warning that the armed forces were the defenders
of secularism. Mass demonstrations in Istanbul and other major cities
were organised against what was perceived as a threat of growing
Islamisation in secular Turkey.
14. On 1 May 2007, the Constitutional Court invalidated the first
round of elections on the grounds that the required quorum of two-thirds
of the membership of the TGNA
to elect a new president
had not been attained due to the boycott by the opposition.
15. The entire procedure was cancelled, Mr Gül’s candidature was
withdrawn and the prime minister, Mr Erdoğan, submitted a package
of constitutional amendments to the TGNA, proposing,
inter alia:
- the election of the president by popular vote for a renewable
term of five years;
- the shortening of the parliament’s term of office from
five to four years;
- the establishment of a quorum of one third for all sessions
and decisions of parliament.
16. President Sezer used his constitutional powers to reject the
constitutional amendments as the opposition complained that there
had not been enough discussion of the proposed reform package. The
reform package was then again approved by the TGNA on 31 May 2007.
The president may not veto a reform package a second time, but he
can refer the matter to the Constitutional Court. On 5 July 2007,
the Constitutional Court declared valid the proposed constitutional
amendments regarding the election of the Turkish president by direct popular
vote.
17. Meanwhile, President Sezer also exercised his right to veto
legislative reforms launched by the ruling majority, notably the
Law on the Ombudsman, the Law on Foundations and the Law on Private
Education Institutions, which inevitably slowed down the pace of
political reform in the country.
18. In accordance with constitutional provisions requiring the
immediate holding of parliamentary elections if the parliament fails
to elect a new president of the republic, the TGNA decided, in early
May 2007, to hold early parliamentary elections on 22 July 2007.
19. The snap July 2007 parliamentary elections were observed by
an ad hoc committee of the Parliamentary Assembly under my chairmanship.
We concluded, together with other international observers, that
the elections were generally in compliance with Turkey’s Council
of Europe commitments and European standards for free and fair elections
and that the voting was well organised and conducted in an orderly
and professional fashion, which testifies to a long-standing tradition
of democratic elections in Turkey. The high voter turnout showed
that confidence in the democratic process exists in Turkey. Electoral
administrators at all levels performed their duties effectively
and in good faith.
20. The AK Party won the elections for the second consecutive
time with 46.6% of the vote (compared with 34.2% in the 2002 elections).
It thus obtained 341 seats out of a total of 550 in the TGNA and
was ensured a large, absolute majority.
21. Two more parties, the Republican People’s Party (CHP) and
the Nationalist Movement Party (MHP), exceeded the 10% electoral
threshold, which, despite repeated Assembly requests that it should
be lowered,
still remains excessive
and by far the highest in Europe. The current parliament is thus
more representative of the country’s political diversity than the
previous one, representing the opinions of about 90% of the electorate
(although
this is not due to any steps taken by the Turkish authorities themselves).
22. One month after the July snap elections the newly-elected
TGNA elected Mr Gül as president of the republic, on 28 August 2007,
with 339 votes. Mr Erdoğan remained prime minister.
23. The constitutional amendments approved by the TGNA in May
2007, including the election of the president by popular vote, were
endorsed by a referendum held on 21 October 2007.
3. Judicial proceedings against the Justice and Development
Party (AK Party)
24. Following the parliamentary elections of July 2007
and the election of a new president of the republic one month later,
the institutional crisis, which had erupted in spring that year,
appeared to have come to an end. It was expected that, with a stable
government enjoying a strong parliamentary majority and a more diverse
and representative parliament, the country could again start moving
forward with the delayed and much needed political and economic
reforms. Prime Minister Erdoğan committed himself to the fact that
2008 was going to be the year of reform.
25. However, tensions rose again dramatically when Prime Minister
Erdoğan proposed to amend the constitution so as to allow the headscarf
ban to be lifted in universities, arguing that it was a matter of
individual freedom and that this ban prevented many young women
from receiving higher education. Opponents see the headscarf as
a symbol of political Islam and a threat to secularism, which is
one of the founding principles of modern Turkey.
26. On 17 January 2008, the Chief Prosecutor of the Supreme Court,
Mr Abdurrahman Yalçinkaya, warned the AK Party that its attempt
“to lift the headscarf ban” would have serious consequences, that
the reform would generate social discord and that universities would
become centres of anti-secular activity.
27. On 9 February 2008, the TGNA approved, by 411 votes to 103,
the proposed constitutional amendment which would ease the ban on
female students wearing the Muslim headscarf in universities. In
particular, the amendment consisted of adding a sentence to Article
10 of the constitution concerning equality before the law, specifying
that the principle of equality before the law also applied to “the
provision of all public services”. An amendment to the Law on Higher
Education was also approved so as to provide that no one should
be deprived of the right to higher education “for any reason not
explicitly specified by law. The limits of the use of this right will
be determined by law”.
28. On 5 June 2008, the Constitutional Court ruled that the vote
by the TGNA to ease the ban on headscarves worn in universities
violated the constitution’s secular principles.
29. In the meantime, on 14 March 2008, the Chief Prosecutor of
the Supreme Court asked the Constitutional Court to close down the
AK Party on the grounds that the party had become a “centre of anti-secular
activities” and to ban from politics 71 party officials, including
President Abdullah Gül, Prime Minister Erdoğan, four ministers and
39 MPs for a period of five years. On 31 March 2008, the Constitutional
Court decided unanimously in favour of the admissibility of the
case with respect to the closure of the AK Party and the ban on
70 party officials. In the case of President Gül, the Court decided
to hear the case by a majority vote.
30. This is not the first time that AK Party had been threatened
with closure and Mr Erdoğan with a ban on political activity: two
months prior to the November 2002 snap parliamentary elections,
Mr Erdoğan was declared ineligible by the Supreme Electoral Council
on account of a criminal conviction in 1998 for incitement to racial
hatred under Article 312 (now Article 301) of the Criminal Code,
for which he had served four months of a ten-month sentence before
being released as the result of an amnesty in 1999. In October 2002,
only one month before the elections, the chief prosecutor had asked
the Constitutional Court to dissolve the AK Party, on the ground
that Mr Erdoğan had remained chairman of the party despite an earlier
Constitutional Court injunction. However, the chief prosecutor finally
decided to seek only partial or total withdrawal of public financing
of the AK Party.
31. The current indictment is based on Article 69 of the constitution
and the Law on Political Parties (LPP). Article 69 of the constitution
states that: “the permanent dissolution of a political party shall
be decided when it is established that the statute and programme
of the political party violate the provisions of the fourth paragraph of
Article 68”. According to the latter:
The statutes and programmes,
as well as the activities of political parties shall not be in conflict
with the independence of the state, its indivisible integrity with
its territory and nation, human rights, the principles of equality
and rule of law, sovereignty of the nation, the principles of the
democratic and secular republic; they shall not aim to protect or
establish class or group dictatorship or dictatorship of any kind, nor
shall they incite citizens to crime. (emphasis added)
32. Following constitutional amendments in 1995 and 2001, the
conditions for the dissolution of political parties in Article 69
are now stricter:
The decision
to dissolve a political party permanently owing to activities violating
the provisions of the fourth paragraph of Article 68 may be rendered
only when the Constitutional Court determines that the party in
question has become a centre for the
execution of such activities. A political party shall
be deemed to become the centre of such actions only when such actions
are carried out intensively by
the members of that party or the situation is shared implicitly
or explicitly by the grand congress, general chairmanship or the
central decision-making or administrative organs of that party or
by the group’s general meeting or group executive board at the Turkish
Grand National Assembly or when these activities are carried out
in determination by the above-mentioned party organs directly. (emphasis added)
33. Article 69, as amended, also provides that, instead of permanent
dissolution, the Constitutional Court may rule that the party concerned
be deprived of state aid wholly or in part depending on the intensity
of the actions brought before the court.
34. The 162-page indictment acknowledges that the AK Party’s programme
and its written statutes are not unconstitutional. However, it states
that the AK Party has “in actions and verbal statements acted against
laws and the constitution”.
35. The indictment cites scores of incidents and acts by AK Party
officials as evidence of its anti-secular activities. The chief
prosecutor noted that the AK Party is the successor of previous
Islamic parties, which based their policies on a struggle against
republican values, especially secularism.
The secular characteristic of
the Turkish state is enshrined in Article 2 of the constitution
and protected in its Article 4, which declares the immovability
of the founding principles of the republic defined in the first
three Articles and rules out any proposal for their modification.
36. The indictment concludes that the AK Party has:
revealed
its intention to constitute the environment in which basic principles
of the Republic of Turkey will be changed by the actions mentioned
above and especially by their proposals for a constitutional amendment
and changes [in] the Law on Higher Education [abolishing the ban
on headscarves at universities]; ignored the fact that religious
symbols cannot be used in secular systems; been determined to transform
the secular republic into a new life system and a new state order
and begun to divide the society into those who are religious and
those who are not; attempted to change gradually the secular judicial
structure and to give it a new shape; [and] opened the discussion
on the future of the regime and the republic.
37. The indictment goes on to state that: “it is a fact that the
AK Party will use material power to change the secular order because
it enjoys the government power today and this danger is not far.
This is a fact when we consider that they will adopt Shariah by
enabling the society to evolve towards an Islamic structure through what
they call consensus processes”; and “the AK Party would use jihad
as required by Shariah if it fails to achieve to establish the regime
[that] it aims [to]. In other words, the use of jihad, that is to
say, violence, is probable”; “the threat posed by the policies of
the AK Party is clear and present. Concrete steps have been taken
that may harm the civilized peace and the democratic regime in the
country”; “in this context, there is no other possibility than closing
the party as the only sanction applicable and also required by the
society in order to protect the society from this danger and to
prevent [the AK Party] from reaching its objective”.
38. On 16 June 2008, the ruling AK Party submitted its final written
defence to the Constitutional Court.
39. In its introduction, the 98-page defence statement strongly
denied accusations that the AK Party had became a “centre of anti-secularist
activity,” arguing that the chief prosecutor’s indictment was motivated
by ideological and political motives rather than legitimate legal
concerns. It said that the tone of the indictment was too simplistic.
It also argued that the chief prosecutor’s understanding of the
concepts of democracy and secularism did not live up to the universally
accepted understanding of those concepts: the chief prosecutor was
defending secularism as a lifestyle rather than as a healthy separation
between religion and state affairs.
40. The defence testimony argued that the text of the indictment
was not a legal text but a document filled with fictitious accusations
based on speculative assumptions regarding the future, ignoring
both the performance of the ruling party for some six years and
the reality in the country. It further presented proof that some
of the evidence had been produced only after the prosecutor had
decided to launch the lawsuit to shut down the AK Party. The defence
statement also noted that banning the AK Party would be a violation
of the freedom of association guaranteed by the European Convention
on Human Rights, as interpreted by the European Court of Human Rights.
41. It is expected that the Constitutional Court will take a decision
on the case in the summer months or in September 2008. Apart from
being able to reject or grant the request of the chief prosecutor
with regard to the dissolution of the AK Party, the court is empowered
to rule instead that the party should be deprived of state aid,
either wholly or in part, depending on the seriousness of the actions
brought before the court. In the event that the Court decides in
favour of the dissolution of the party or the deprival of state
aid, it is also empowered to decide whether or not to ban the party
officials.
42. Pending the Court’s decision and regardless of the outcome,
the lawsuit against the ruling party is seriously affecting the
political stability in the country and the democratic functioning
of its institutions. The rapporteur is aware that a further increase
in political tensions would most regrettably distract the government from
urgent economic and political reforms.
43. At the same time, the rapporteur underlines that the independence
of the judiciary should be fully guaranteed and respected and no
influence should be exercised on the Constitutional Court. The rapporteur is
confident that the latter will be inspired by European standards
in the field of dissolution of political parties, and, in particular,
the relevant case law of the European Court of Human Rights and
the Guidelines on prohibition and dissolution of political parties
and analogous measures, adopted by the Venice Commission in 1999.
4. European standards in the field of dissolution
of political parties
4.1. General principles in the relevant case law of
the European Court of Human Rights
44. The Court has repeatedly stated that “democracy appears
to be the only political model contemplated by the Convention and,
accordingly, the only one compatible with it”.
45. The Court has also confirmed, on a number of occasions, the
primordial role played in a democratic regime by political parties
enjoying the rights and freedoms enshrined in Article 11 (freedom
of association and of assembly) and Article 10 (freedom of expression)
of the Convention. It has found even more persuasive than the wording
of Article 11 the fact that “political parties are a form of association
essential to the proper functioning of democracy”. In view of the
role played by political parties, any measure against them affects
both freedom of association and, consequently, democracy in the
state concerned.
It is in the nature of the role they play
that political parties, the only bodies which can come to power,
also have the capacity to influence the whole of the regime in their
countries. By the proposals for an overall societal model which
they put before the electorate and by their capacity to implement
those proposals once they come to power, political parties differ
from other organisations which intervene in the political arena.
46. Moreover, the Court has noted that protection of opinions
and the freedom to express them within the meaning of Article 10
of the Convention is one of the objectives of the freedoms of assembly
and association enshrined in Article 11. That applies all the more
in relation to political parties in view of their essential role
in ensuring pluralism and the proper functioning of democracy.
47. The Court considers that there can be no democracy without
pluralism. It is for that reason that freedom of expression as enshrined
in Article 10 is applicable, subject to the restrictions provided
in its paragraph 2, not only to “information” or “ideas” that are
favourably received or regarded as inoffensive or as a matter of indifference,
but also to those that offend, shock or disturb.
Inasmuch as their activities
form part of a collective exercise of the freedom of expression,
political parties are also entitled to seek the protection of Article
10 of the Convention.
48. The Court thus considers that a political party may promote
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; secondly, the change proposed must
itself be compatible with fundamental democratic principles. It
necessarily follows that a political party whose leaders incite
to violence or put forward a policy which fails to respect democracy
or which is aimed at the destruction of democracy, and the flouting
of the rights and freedoms recognised in a democracy, cannot lay
claim to the Convention’s protection against penalties imposed on
those grounds.
49. The possibility cannot be excluded that a political party,
in pleading the rights enshrined in Article 11 and also in Articles
9 and 10 of the Convention, might attempt to derive therefrom the
right to conduct what amounts in practice to activities intended
to destroy the rights or freedoms set forth in the Convention and
thus bring about the destruction of democracy.
In
view of the very clear link between the Convention and democracy, no
one should be authorised to rely on the Convention’s provisions
in order to weaken or destroy the ideals and values of a democratic
society. Pluralism and democracy are based on a compromise that
requires various concessions by individuals or groups of individuals,
who must sometimes agree to limit some of the freedoms they enjoy
in order to guarantee greater stability of the country as a whole.
In that context, the Court has considered that it is not at all
improbable that totalitarian movements, organised in the form of
political parties, might do away with democracy after prospering
under the democratic regime, there being examples of this in modern
European history.
50. The Court has, however, repeatedly underlined that the restrictions
on freedom of association set out in Article 11, paragraph 2, are,
where political parties are concerned, to be construed strictly;
only convincing and compelling reasons can justify restrictions
on such parties’ freedom of association. In determining whether
a restriction is “necessary within a democratic society” within
the meaning of Article 11, paragraph 2, the contracting states have
only a limited margin of appreciation. Although it is not for the
Court to take the place of the national authorities, which are better
placed than an international court to decide, for example, the appropriate
timing for interference, it must exercise rigorous supervision embracing
both the law and the decisions applying it, including those made
by independent courts. Drastic measures, such as the dissolution of
an entire political party and a ban on its leaders preventing them
from carrying on any similar activity for a specified period, may
be taken only in the most serious cases.
51. Thus the Court has held that, provided that the means used
to that end are legal and democratic and that the change proposed
is itself compatible with fundamental democratic principles, a political
party animated by the moral values imposed by a religion cannot
be regarded as intrinsically inimical to the fundamental principles
of democracy, as set forth in the Convention.
52. The Court’s overall examination of the question whether the
dissolution of a political party, on account of a risk that democratic
principles would be undermined, met a “pressing social need” focuses
on the following points: i. whether there was plausible evidence
that the risk to democracy, supposing it had been proved to exist,
was sufficiently imminent; ii. whether the acts and speeches of
the leaders and members of the political party concerned were imputable
to the party as a whole; and iii. whether the acts and speeches
imputable to the political party formed a whole which gave a clear
picture of a model of society conceived and advocated by the party,
which was incompatible with the concept of a “democratic society”.
53. The Court then examined whether dissolution is a sanction
“proportionate to the legitimate aims pursued”. In this respect,
the Court has repeatedly stated that the dissolution of a political
party accompanied by a temporary ban prohibiting its leaders from
exercising political responsibilities is a drastic measure and that measures
of such severity might be applied only in the most serious cases.
4.2. Guidelines on prohibition and dissolution of political
parties and analogous measures, adopted by the European Commission
for Democracy through Law (Venice Commission) in 1999
54. Following a report on the prohibition of political
parties and analogous measures prepared in 1998 upon the request
of the Secretary General of the Council of Europe, the Venice Commission
adopted, one year later, in December 1999, guidelines on this subject.
The
aim of these guidelines (seven in total) is to establish a set of
common principles for all member states of the Council of Europe
and other countries sharing the same values, which are reflected
in the European Convention on Human Rights. Guidelines 3 to 6 read
as follows:
3.
Prohibition or enforced dissolution of political parties may only
be justified in the case of parties which advocate the use of violence
or use violence as a political means to overthrow the democratic constitutional
order, thereby undermining the rights and freedoms guaranteed by
the constitution. The fact alone that a party advocates a peaceful
change of the constitution should not be sufficient for its prohibition
or dissolution.
4. A political party as a whole
can not be held responsible for the individual behaviour of its
members not authorised by the party within the framework of political/public
and party activities.
5. The prohibition or dissolution
of political parties as a particularly far-reaching measure should
be used with utmost restraint. Before asking the competent judicial
body to prohibit or dissolve a party, governments or other state
organs should assess, having regard to the situation of the country concerned,
whether the party really represents a danger to the free and democratic
political order or to the rights of individuals and whether other,
less radical measures could prevent the said danger.
6. Legal measures directed
to the prohibition or legally enforced dissolution of political
parties shall be a consequence of a judicial finding of unconstitutionality
and shall be deemed as of an exceptional nature and governed by
the principle of proportionality. Any such measure must be based
on sufficient evidence that the party itself and not only individual
members pursue political objectives using or preparing to use unconstitutional
means.
55. Parliamentary Assembly
Resolution
1308 (2002) on restrictions on political parties in the
Council of Europe member states
56. In its
Resolution
1308 (2002), the Assembly, along the lines of the Venice
Commission’s guidelines, underlined that, although democracies have
the right to defend themselves against extremist parties, the dissolution
of political parties should be regarded as an exceptional measure
to be applied only in cases where the party concerned uses violence
or threatens civil peace and the democratic constitutional order
of the country.
5. Cases concerning the dissolution of political
parties in Turkey
57. Turkey has a legacy of political party closures.
In our last monitoring report on Turkey in 2004, we had already
considered that the frequency with which political parties were
dissolved in Turkey was not only a breach of the freedom of assembly
and association embodied in Article 11 of the European Convention
on Human Rights, but also reflected a more general institutional
problem. Of all European states, Turkey has the most dissolutions
of political parties. Most of the banned parties have circumvented
the bans by regrouping under new names.
58. In almost all cases concerning the dissolution of political
parties by the Constitutional Court between 1991 and 1997, the European
Court of Human Rights, applying the general principles summarised
above, concluded that the sanction of dissolution was disproportionate
and that there had therefore been a violation of the right of freedom
of association enshrined in Article 11.
59. Most of the parties
were
dissolved either on the sole basis of their name and/or statute
or very shortly after their creation
or before they could even
begin their activities. These parties’ statutes and/or statements made
by their leaders
were
considered to undermine the territorial integrity and the unity
of the nation, mainly on account of references to the Kurdish people
or to Kurdish self-determination, in violation of the constitution and
of various provisions of the Law on Political Parties (LPP).
60. In the case of the United Communist
Party and Others v. Turkey, additional grounds were constituted
by the use of the term “communist”, prohibited under Article 96.3
of the LPP and, in the Freedom and Democracy Party (ÖZDEP) case,
by the fact that the apparent aim of the party was to abolish the
secular state in violation of Article 89 of the LPP.
61. In the case of the
Socialist Party
and Others v. Turkey, one of the applicants, Mr Perinçek,
the chairman of the party, was convicted on the basis of the same
facts as those at the origin of the dissolution of his party after
the Court’s judgment.
In
this case, the Court found a violation of freedom of expression
(Article 10). The reasons relied on by the Turkish courts could
not be regarded as sufficient in themselves to justify the interference
with the applicant’s right to freedom of expression. The applicant
had made his speeches in his capacity as a politician, a player
on the Turkish political scene. The speeches did not encourage the
use of violence or armed resistance or insurrection and did not
constitute hate speech, which, in the Court’s view, was an essential
factor. In addition, the Court found that the applicant’s conviction
and sentence were disproportionate to the aims pursued and, accordingly,
not “necessary in a democratic society”.
62. Through constitutional reforms in 1995 and 2001, as well as
amendments in 2003 to the LPP, the Turkish authorities introduced
provisions which reinforced the requirement of proportionality for
any interference by the state in the freedom of association enjoyed
by political parties. Also, in 2004, an amendment to Article 90
of the constitution provided that international human rights treaties
take precedence over any incompatible national legislation.
63. In its
Resolution
1380 (2004) closing the monitoring procedure for Turkey,
the Assembly, underlining that the frequency with which political
parties are dissolved was a real source of concern, expressed the
hope that in future the constitutional changes of 2001 and those
introduced in the legislation on political parties would limit the
use of such an extreme measure as dissolution.
64. Also, in the light of these same reforms and further individual
measures taken, the Council of Europe’s Committee of Ministers in
2007 closed the supervision of the execution of judgments of the
European Court of Human Rights in all cases concerning the dissolution
of political parties in Turkey between 1991 and 1997, as it was
satisfied that the relevant judgments of the European Court of Human
Rights had been appropriately executed.
In so doing, the Committee
of Ministers strongly encouraged the Turkish authorities to pursue
their efforts to give direct effect to the Court’s case law in the
implementation of Turkish law.
65. The current proceedings against the AK Party, regardless of
their outcome, show that, despite the abovementioned reforms, the
issue of dissolution of political parties in Turkey is not closed.
It becomes clear that further constitutional and legislative reforms
in this respect are necessary.
66. A full revision of the 1982 constitution which, despite repeated
revisions, still bears the marks of the 1980 military coup d’état, and a comprehensive
review of the Law on Political Parties are required in order to
bring these texts fully into line with European standards. In pursuing
such reforms, the Turkish authorities should, in particular, envisage
introducing stricter criteria for dissolution of political parties,
such as condoning or inciting to violence or overt threats to fundamental
democratic values, in line with the above-mentioned guidelines of the
Venice Commission.
67. The co-rapporteurs on Turkey’s monitoring had already supported
the idea of a full revision of the Turkish Constitution in 2004,
when they proposed the closure of the monitoring procedure. The
assistance of the Venice Commission in carrying out a major constitutional
reform, as the Assembly requested when adopting
Resolution 1380 and
closing the monitoring procedure for Turkey, should be sought.
6. Conclusions
68. The rapporteur is concerned that, regardless of its
outcome, the lawsuit against the ruling party, together with that
against the prime minister and the president of the republic, is
seriously affecting the political stability in the country, as well
as the democratic functioning of its institutions and is delaying
urgent economic and political reforms.
69. At the same time, the rapporteur underlines that effective
separation of powers and the independence of the judiciary are fundamental
principles of a democracy based on the rule of law, which should
be fully guaranteed by all state institutions. No influence should
be exercised on the Constitutional Court of the country. In this
respect, the rapporteur is confident that the latter will apply
European standards in the field of dissolution of political parties
resulting from the case law of the European Court of Human Rights
on Articles 10 (freedom of expression) and 11 (freedom of association
and of assembly) of the European Convention on Human Rights, and
the Guidelines on prohibition and dissolution of political parties,
adopted by the Council of Europe’s European Commission for Democracy
through Law (Venice Commission) in December 1999.
70. The rapporteur notes that respect for the principle of proportionality
is of particular importance in the field of dissolution of political
parties in view of their essential role in ensuring pluralism and
the proper functioning of democracy. The European Court of Human
Rights has repeatedly stated that the dissolution of a political party,
accompanied by a temporary ban prohibiting its leaders from exercising
political responsibilities, is the most drastic measure; a measure
of such severity should be applied only in the most serious cases.
71. The current proceedings against the AK Party, regardless of
their outcome, spark a renewed debate about the legal basis for
the closure of political parties in the country and show that, despite
the above-mentioned reforms, the issue of dissolution of political
parties in Turkey is not closed. It becomes clear that further constitutional
and legislative reforms in this respect are necessary.
72. A full revision of the 1982 constitution which, despite repeated
revisions, still bears the marks of the 1980 military coup d’état, and a comprehensive
review of the Law on Political Parties are required in order to
bring these texts fully into line with European standards. In pursuing
such reforms, the Turkish authorities should, in particular, envisage
introducing stricter criteria for the dissolution of political parties,
such as condoning or inciting violence or overt threats to fundamental
democratic values, in line with the above-mentioned guidelines of
the Venice Commission.
73. When adopting
Resolution
1380 and closing the monitoring procedure for Turkey,
the Assembly had invited Turkey, as part of its reform process,
to “carry out a major reform of the 1982 Constitution, with the assistance
of the Venice Commission, to bring it into line with European standards”.
74. It has now become more clear than ever that an altogether
new, civilian constitution, guaranteeing an appropriate system of
checks and balances and making the protection of human rights and
fundamental freedoms its main priority, in line with European standards,
is urgently required in Turkey to fully ensure the democratic functioning
of its institutions and the consolidation of its modernisation and
reform process.
75. In this regard, the rapporteur notes the government’s initiative
to draft a new constitution and considers that this opens a window
of opportunity for a broad national debate involving all actors
in Turkish society and encourages the government to finalise this
process in close cooperation with the Venice Commission.
76. All state institutions should respect each other’s competences
and join efforts to pursue, with renewed vigour, the much-needed
economic and political reforms that will turn Turkey into a modern
democracy.
77. 76. The rapporteur believes that the Monitoring Committee
should intensify its post-monitoring dialogue with Turkey, closely
follow the development of the democratic functioning of the institutions
in Turkey and, in particular, the constitutional drafting process,
and, if need be, consider the possibility of re-opening the monitoring
procedure for Turkey.
***
Reporting committee: Committee on the Honouring of
Obligations and Commitments by Member States of the Council
of Europe (Monitoring Committee).
Reference to committee: No. 3464 of 23 June 2008 and Resolution 1115 (1997).
Draft resolution unanimously adopted by the committee on 24
June 2008.
Members of the committee: Mr Serhiy Holovaty (Chairperson),
Mr György Frunda (1st Vice-Chairperson), Mr Konstantin
Kosachev (2nd Vice-Chairperson), Mr Leonid Slutsky (3rd
Vice-Chairperson), Mr Aydin Abbasov, Mr Avet Adonts,
Mr Pedro Agramunt, Mr Miloš Aligrudić, Mrs Meritxell Batet Lamaña,
Mr Ryszard Bender, Mr József
Berényi, Mr Aleksandër Biberaj,
Mr Luc Van den Brande, Mr Jean-Guy
Branger, Mr Mevlüt Çavuşoğlu,
Mr Sergej Chelemendik, Ms Lise Christoffersen,
Mr Boriss Cilevičs, Mr Georges Colombier,
Mr Telmo Correia, Mr Valeriu Cosarciuc,
Mrs Herta Däubler-Gmelin, Mr Joseph Debono Grech, Mr Juris Dobelis, Mrs Josette Durrieu, Mr Mátyás
Eörsi, Mrs Mirjana Ferić-Vac, Mr Jean-Charles Gardetto, Mr József Gedei, Mr Marcel Glesener, Mr Charles
Goerens, Mr Andreas Gross, Mr Michael Hagberg, Mr Holger
Haibach, Ms Gultakin Hajiyeva,
Mr Michael Hancock, Mr Davit Harutyunyan, Mr Andres Herkel, Mr Raffi Hovannisian, Mr Kastriot Islami, Mr Miloš Jevtić, Mrs Evguenia Jivkova, Mr Hakki Keskin, Mr Ali Rashid
Khalil, Mr Andros Kyprianou,
Mr Jaakko Laakso, Mrs Sabine Leutheusser-Schnarrenberger, Mr Göran
Lindblad, Mr René van der Linden,
Mr Eduard Lintner, Mr Younal Loutfi, Mr Pietro Marcenaro, Mr Mikhail
Margelov, Mr Bernard Marquet,
Mr Dick Marty, Mr Miloš Melčák,
Mrs Assunta Meloni, Mrs Nursuna Memecan,
Mr João Bosco Mota Amaral, Mr Theodoros Pangalos, Ms Maria Postoico, Mr Christos
Pourgourides, Mr John Prescott, Mr Andrea Rigoni,
Mr Dario Rivolta, Mr Armen Rustamyan, Mr Indrek
Saar, Mr Oliver Sambevski, Mr Kimmo Sasi, Mr Andreas Schieder, Mr Samad Seyidov, Mrs Aldona Staponkienė,
Mr Christoph Strässer, Mrs Elene Tevdoradze, Mr Mihai Tudose, Mr Egidijus Vareikis, Mr Miltiadis Varvitsiotis,
Mr José Vera Jardim, Mrs Birutė Vėsaitė,
Mr Piotr Wach, Mr Robert Walter, Mr David Wilshire, Mrs Renate
Wohlwend, Mrs Karin S. Woldseth,
Mr Boris Zala, Mr Andrej Zernovski.
NB: The names of the members who took part in the meeting
are printed in bold.
See 26th Sitting, 26 June 2008 (adoption of the draft resolution,
as amended); and Resolution
1622.