CASE OF FREEDOM AND DEMOCRACY PARTY (ÖZDEP) v. TURKEY
Preliminary objection dismissed (Article 34 - Victim);Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Luzius Wildhaber;Paul Mahoney
8. The Freedom and Democracy Party (ÖZDEP) was founded on 19 October 1992. Its constitution was lodged with the Ministry of the Interior the same day. Its programme included the following passages. “... Following the war of ‘Liberation’ waged jointly by Kurds, Turks and other national minorities, the Sultanate was abolished in Turkey and the Republic proclaimed. The sole aim of the Republic has been to establish national sovereignty. Efforts to unite Turkey with Europe have come to nothing. Turkey has not succeeded in lifting itself out of mediocrity. From the earliest days of the Republic, certain parties have had a monopoly on power along with the collaboration of civil and military bureaucrats. In order to preserve that monopoly, the policy of those in power has been to refuse to recognise the existence of the Kurdish people and to ignore its most legitimate rights. The dominant ‘Turkish’ philosophy has been maintained up to the present day, overriding the most natural rights and claims of the Kurdish people, by means of militaristic and chauvinistic propaganda and a policy of exile and destruction. State policy, based on a capitalist system designed to oppress minorities – particularly Kurdish minorities, but even Turkish ones – has been pursued in the name of modernisation and westernisation. Owing to this policy, which colours the political, economic and social aspects of Turkey’s territorial integrity, there is no possibility of this monopoly of State power being brought to an end. That power runs counter to the interests of the vast majority of the population. It uses force to impose the present situation on the people in order to preserve its economic interests. Thus, it blocks the way to any democratic process aimed at protecting the interests of Turkish and Kurdish workers. The Freedom and Democracy Party proposes to create a system ruled by peace and fraternity in which our peoples will be entitled to self-determination. The Freedom and Democracy Party uses political, democratic and ideological means to combat all fascist, fundamentalist, chauvinistic and racist movements or organisations hindering solidarity, unity and brotherhood between peoples. Both in domestic and foreign policy, the aim of the Freedom and Democracy Party is to protect the interests of our peoples and those of all workers. ÖZDEP is the guarantor of the cultural, occupational, economic and political values of the various national or religious minorities and of every socio-professional category. It seeks recognition of the right to form a political party. Our Party will guarantee the religious and national minorities the right to worship as they please, to practise their religion freely, to freedom of thought and to respect for their customs, cultures and languages. Every individual will be entitled to use the media, especially radio and television. ÖZDEP has proposals on how to determine and define the prerequisites for establishing a social order encompassing the Turkish and Kurdish peoples. ÖZDEP regards our peoples as the sole owners of the country’s wealth, natural wealth and mineral resources. ÖZDEP supports the just and legitimate struggle of the peoples for independence and freedom. It stands by them in this struggle. Our Party proposes the creation of a democratic assembly of representatives of the people elected by universal suffrage. This assembly will represent the interests of the Turkish people, the Kurdish people and any other minority. This popular and democratic assembly will have the same powers as the current legislature and will be the guarantor of our peoples’ national sovereignty. The media will be the moving force for the consolidation of fraternity and friendship between peoples. They will encourage a better approach to different cultures and languages and will guarantee the national identity of each sector of the population. They will be responsible for ensuring that the political, economic, social and cultural rights of the peoples are recognised. There will be no government interference in religious affairs, which will be placed in the hands of the relevant institutions. In order to preserve the right to self-determination of oppressed peoples, our Party will outlaw any form of cultural, military, political or economic aggression. The Freedom and Democracy Party is campaigning for the voluntary unification of the Kurdish and Turkish peoples, who participated in the foundation of the country. The Freedom and Democracy Party considers that there can be democracy only if the Kurdish problem is solved. This problem concerns every Turk and Kurd who supports freedom and democracy. The Freedom and Democracy Party favours a peaceful and democratic solution to the Kurdish problem, subject to the strict application of international instruments such as the Helsinki Final Act, the European Convention on Human Rights and the Universal Declaration of Human Rights. The Freedom and Democracy Party will fully respect the Kurdish people’s right to self-determination so that a democratic solution based on the self-determination and equality of peoples can be found. Currently, our legislation and the manner in which the legal system operates are inherently undemocratic, contrary to fundamental human rights and freedoms and based on class interests. They deny the Kurdish people an identity and forbid any form of workers’ organisation or association. They are racist and retrograde. An order will be established permitting the Turkish and Kurdish peoples and the minorities to develop and enjoy their particular cultures freely. Each people will be entitled to education in its mother tongue, that being an essential prerequisite for the development of a people and a nation. Everyone will have the right to basic education in his mother tongue. The education system from primary school to university will be based on education in one’s mother tongue. A person’s mother tongue shall be given precedence in court proceedings ...” 9. On 29 January 1993, Principal State Counsel at the Court of Cassation (“Principal State Counsel”) applied to the Turkish Constitutional Court to have ÖZDEP dissolved on the grounds that it had infringed the principles of the Constitution and the Law on the regulation of political parties. He considered that the content and aims set out in the party’s programme sought to undermine the territorial integrity and secular nature of the State and the unity of the nation. 10. On 25 February 1993 the President of the Constitutional Court sent Principal State Counsel’s application to the Chairman of ÖZDEP inviting him to lodge his preliminary observations in defence. 11. On 29 March 1993 ÖZDEP’s lawyers filed preliminary written observations and requested a hearing. They argued, inter alia, that the Law on the regulation of political parties contained provisions that were contrary to the fundamental rights guaranteed by the Constitution. They also maintained that dissolving the party would infringe the provisions of international instruments such as the European Convention on Human Rights, the International Covenant on Civil and Political Rights, the Helsinki Final Act and the Charter of Paris for a New Europe. They submitted that it was unacceptable to force a political party, on pain of being dissolved, to promote an ideology which conformed to the Turkish Constitution. 12. On 30 April 1993, while the Constitutional Court proceedings were still pending, a meeting of the founding members of ÖZDEP resolved to dissolve the party. 13. On 11 May 1993 Principal State Counsel lodged his submissions on the merits of the case with the Constitutional Court. Since ÖZDEP had gone into voluntary dissolution, it did not file any submissions on the merits. 14. On 14 July 1993 the Constitutional Court made an order dissolving ÖZDEP, notably on the ground that its programme was apt to undermine the territorial integrity of the State and the unity of the nation and violated both the Constitution and sections 78(a) and 81(a) and (b) of the Law on the regulation of political parties. The judgment was served on Principal State Counsel, the Speaker of the National Assembly and the Prime Minister’s Office. The Constitutional Court’s judgment was published in the Official Gazette on 14 February 1994. The Constitutional Court held, firstly, that, pursuant to section 108 of the Law on the regulation of political parties, ÖZDEP’s resolution to go into voluntary dissolution did not prevent that court from ruling on the merits of the case as it had been made after the commencement of the proceedings before it. As to the merits, the Constitutional Court began by reiterating the constitutional principles that all persons living on Turkish territory, whatever their ethnic origin, formed a whole united by their common culture. The sum of the persons who made up the Republic of Turkey was called the “Turkish nation”. The different ethnic groups making up the “Turkish nation” were not divided into a majority and minorities. The court reiterated that, under the Constitution, no political or legal distinction based on ethnic or racial origin could be made between citizens: all Turkish nationals, without distinction, could avail themselves of all civil, political and economic rights. With particular reference to Turkish citizens of Kurdish origin, the Constitutional Court held that in every region of Turkey such persons enjoyed the same rights as other Turkish citizens. That did not mean that the Constitution denied the existence of a Kurdish identity, since citizens of Kurdish origin were not forbidden to express their Kurdish identity. The Kurdish language could be used on all private premises, in workplaces, in the press and in works of art and literature. The Constitutional Court reiterated the principle that everyone was bound to observe the provisions of the Constitution even if they did not agree with them. The Constitution did not preclude the celebration of difference but forbade propaganda based on racial difference and aimed at destroying the constitutional order. It pointed out that by virtue of the Treaty of Lausanne having a separate language or ethnic origin was not by itself enough for a group to qualify as a minority. With regard to the content of ÖZDEP’s programme, the Constitutional Court observed that it was based on the assumption that there was a separate Kurdish people in Turkey with its own culture and language. The Kurds were portrayed in the programme as an oppressed people whose democratic rights were being completely ignored. According to the Constitutional Court, ÖZDEP called for a right to self-determination for the Kurds and supported their right to wage a “war of independence”. Its stance was similar to that of terrorist organisations and constituted in itself an incitement to insurrection. In relation to the principle of secularism, the Constitutional Court noted that ÖZDEP’s programme contained a proposal for the abolition of the Religious Affairs Department of the government on the ground that religious affairs should be under the control of the religious institutions themselves. After reiterating what was meant by the principle of secularism, the court said that advocating the abolition of the government Religious Affairs Department amounted to undermining the principle of secularism. It concluded that that aspect of ÖZDEP’s programme was contrary to section 89 of the Law on the regulation of political parties. The Constitutional Court pointed to the fact that the Charter of Paris for a New Europe condemned racism, ethnic hatred and terrorism and that the Helsinki Final Act guaranteed the inviolability of national frontiers and territorial integrity. It concluded that ÖZDEP’s activities were subject, inter alia, to the restrictions referred to in paragraph 2 of Article 11 and to Article 17 of the Convention. 15. The relevant provisions of the Constitution read as follows: “The Republic of Turkey is a democratic, secular and social State based on the rule of law, respectful of human rights in a spirit of social peace, national solidarity and justice, adhering to the nationalism of Atatürk and resting on the fundamental principles set out in the Preamble.” “The State of Turkey constitutes with its territory and nation, an indivisible whole. The official language is Turkish.” “Sovereignty resides unconditionally and unreservedly in the nation. ... Sovereign power shall not under any circumstances be transferred to an individual, a group or a social class ...” “All individuals shall be equal before the law without any distinction based on language, race, colour, sex, political opinion, philosophical belief, religion, membership of a religious sect or other similar grounds.” “None of the rights and freedoms referred to in the Constitution shall be exercised with a view to undermining the territorial integrity of the State and the unity of the nation, jeopardising the existence of the Turkish State or Republic, abolishing fundamental rights and freedoms, placing the control of the State in the hands of a single individual or group, ensuring the domination of one social class over other social classes, introducing discrimination on the grounds of language, race, religion or membership of a religious sect, or establishing by any other means a political system based on any of the above concepts and opinions.” “Everyone linked to the Turkish State by nationality shall be Turkish.” “Citizens shall have the right to form political parties and to join them or withdraw from them in accordance with the lawful procedure laid down for the purpose ... Political parties shall be an indispensable part of the democratic political system. Political parties may be formed without prior permission and shall carry on their activities in accordance with the Constitution and the law. The constitutions and programmes of political parties shall not be inconsistent with the absolute integrity of State territory and of the nation, human rights, national sovereignty or the principles of a democratic secular Republic. No political party shall be formed which aims to advocate or establish the domination of one social class or group, or any form of dictatorship ...” “Political parties shall not engage in activities other than those referred to in their constitutions and programmes, nor shall they disregard the restrictions laid down by Article 14 of the Constitution, on pain of permanent dissolution. ... The decisions and internal running of political parties shall not be contrary to democratic principles. ... Immediately a political party is formed, Principal State Counsel shall verify as a matter of priority that its constitution and programme and the legal position of its founding members are consistent with the Constitution and the laws of the land. He shall also monitor its activities. Political parties may be dissolved by the Constitutional Court, on application by Principal State Counsel. Founding members and managers, at whatever level, of political parties which have been permanently dissolved may not become founding members, managers or financial controllers of any new political party, nor shall a new party be formed if a majority of its members previously belonged to a party which has been dissolved ...” 16. The relevant provisions of Law no. 2820 on the regulation of political parties read as follows: “Political parties (a) shall not aim or strive to or incite third parties to change: the republican form of the Turkish State; the ... provisions concerning the absolute integrity of the Turkish State’s territory, the absolute unity of its nation, its official language, its flag or its national anthem; ... the principle that sovereignty resides unconditionally and unreservedly in the Turkish nation; ... the provision that sovereign power cannot be transferred to an individual, a group or a social class ...; jeopardise the existence of the Turkish State and Republic, abolish fundamental rights and freedoms, introduce discrimination on grounds of language, race, colour, religion or membership of a religious sect, or establish, by any means, a system of government based on any such notion or concept. ... (c) shall not aim to defend or establish the domination of one social class over the other social classes or the domination of a community or the setting up of any form of dictatorship; they shall not carry on activities in pursuit of such aims ...” “Political parties shall not aim to change the principle of the unitary State on which the Turkish Republic is founded, nor carry on activities in pursuit of such an aim.” “Political parties shall not (a) assert that there exist within the territory of the Turkish Republic any national minorities based on differences relating to national or religious culture, membership of a religious sect, race or language; or (b) aim to destroy national unity by proposing, on the pretext of protecting, promoting or disseminating a non-Turkish language or culture, to create minorities on the territory of the Turkish Republic or to engage in similar activities ...” “Political parties shall not have an aim that runs counter to Article 136 of the Constitution, which provides that the Religious Affairs Department, which is bound to carry out the duties assigned to it in conformity with the principle of secularism ..., shall be accountable to central Government.” “The constitution, programme and activities of political parties shall not contravene the Constitution or this Law.” “Where a political party has been definitively dissolved, its founding members, its chairman, the members of its executive committee and central office, the members of its disciplinary and administrative organs at all levels and the members of political groups in the Grand National Assembly of Turkey shall, if still members when the party was dissolved, be disqualified from acting as founders, managers or financial controllers of any other political party. Any members whose actions were responsible for the political party’s being dissolved shall be disqualified for ten years from joining a political party or standing for election to Parliament. No political party shall be formed with a majority of members from a political party that has been dissolved.” “No political party shall be formed with the name ‘communist’, ‘anarchist’, ‘fascist’, ‘theocratic’ or ‘national socialist’, the name of a religion, language, race, sect or region, or a name including any of the above words or similar ones.” “The Constitutional Court shall dissolve a political party where (a) the party’s programme or constitution ... is contrary to the provisions of Chapter 4 of this Law; or (b) its membership, central office or executive committee ... take a decision, issue a circular or make a statement ... contrary to the provisions of Chapter 4 of this Law or the Chairman, Vice-Chairman or General Secretary makes any written or oral statement contrary to those provisions ...” Chapter 4 of the Law, referred to in section 101, includes in particular sections 90(1) and 96(3), which are reproduced above. “All the assets of political parties dissolved by order of the Constitutional Court shall be transferred to the Treasury.” “A resolution by the competent body of a political party dissolving that party after an application for its dissolution has been lodged shall not prevent the proceedings before the Constitutional Court continuing or deprive any dissolution order that is made of its legal effects.”