EUROPEAN
COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
opinion
on the constitutional and
legal provisions
relevant TO the prohibition
of political parties in Turkey
Adopted by the Venice Commission
at its 78th Plenary
Session
(Venice, 13-14 March 2009)
on the basis of contributions by
Mr C. CLOSA MONTERO (Member, Spain)
Mr P. VAN DIJK (Member, Netherlands)
Mr Ch. GRABENWARTER (Member, Austria)
Mr W. HOFFMANN-RIEM (Member, Germany)
Mr F. SEJERSTED (Substitute member, Norway)
Mr K. TUORI (Member, Finland)
Mr H.-H. VOGEL (Member, Sweden)
1. Introduction
1. The Venice
Commission received a request from the Monitoring Committee of the
Parliamentary Assembly of the Council of Europe (PACE) on 15 September 2008
asking it “to review the constitutional and legal provisions which are relevant
to the prohibition of political parties in Turkey”.
2. In view of
its mandate, the Commission understands its task to be the review and assessment
of whether the rules in the Turkish Constitution and legislation on prohibition
and dissolution of political parties are in conformity with European democratic
standards, the rule of law and human rights, as set forth in the European
Convention on Human Rights (ECHR).
3. The general
background for the request from the PACE is, on the one hand, the fact that in Turkey a high number of political parties have been prohibited over the years. This comes in
contrast with the prevailing European approach, under which political parties
are prohibited or dissolved only in exceptional cases. On the other hand, Turkey is engaged at present in a process of democratic reform which provides an
opportunity to reconsider some traditional practices that are no longer in
harmony with the state of development of modern Turkish society. A further
reform of the rules on party prohibition would be in line with the logic of this
reform process.
4. The more
specific and actual background is the procedure against the ruling AK Party,
which was initiated on 14 March 2008 and ended with the 30 July 2008 decision
of the Turkish Constitutional Court. Although the AK Party was not dissolved,
the case still demonstrates a number of problematic aspects of the rules on
party prohibition in Turkey. Ten out of the 11 judges found that the AK Party had
exploited religious feelings for the sake of political interests and had become
the focus of activities contradicting the principles of a democratic and
secular republic. The Court sanctioned the party by withdrawing half of its
public financial support for the period of one year. A majority of 6 judges
voted for dissolving the party, falling one vote short of the necessary
qualified majority of 7.
5. When
announcing the judgment, the President of the Constitutional Court stated that
the case demonstrated the need for a constitutional amendment changing the
rules in order to make it more difficult to bring party closure cases before
the Court. The same point was made by a number of European observers, including
members of the EU-Turkey delegation in the European Parliament.
6. This is in
line with the position taken before the judgment by the PACE, which in a
Resolution passed on 26 June 2008 stated that:
14. 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. The Assembly notes that it becomes clear that
further constitutional and legislative reforms in this respect are necessary.
7. In the
“Turkey 2008 Progress Report” presented by the Commission of the European
Communities on 5 November 2008, it is stated that:
As regards political parties, the closure
cases against the AKP and the DTP (see section on Parliament)
illustrate that the current legal provisions applicable to political parties do
not provide political actors with an adequate level of protection from the
state's interference in their freedom of association and freedom of expression.
(p. 18)
In the light of this case, the legal
provisions on political parties need to be amended and brought into line with
the case law of the ECtHR and best practice in EU Member States, as outlined by
the Council of Europe's Venice Commission. (p. 70)
8. The present
opinion will cover the following three elements:
1.
An overview of “European standards” for
regulating prohibition and dissolution of political parties;
2.
A general analysis of the present regulation on
prohibition and dissolution of political parties in the Turkish constitution
and legislation;
3.
An evaluation of whether reform of the Turkish
rules is necessary in order to comply with European standards.
9. The present
Opinion was adopted at the 78th plenary session of the Commission in
Venice on 13 March 2009 in the presence of Mr Yuksel Erdogan (Judge Rapporteur,
Ministry of Justice of Turkey), on the basis of contributions by Messrs Closa
Montero (Spain), van Dijk (Netherlands), Grabenwarter (Austria), Hoffmann-Riem
(Germany), Sejersted (Norway), Tuori (Finland) and Vogel (Sweden). Preliminary
discussions took place at the 76th and 77th Plenary
Sessions of the Commission in October and December 2008, respectively.
2.
European standards for the
protection of political parties against prohibition and dissolution
2.1.
Introduction
10. In order to
assess the Turkish rules and practice on prohibition and dissolution of
political parties against “European standards”, it is first necessary to
analyse to what extent such standards exist in this field, and what they
consist of.
11. A basic
distinction should be drawn between (i) standards for “best practice” (“model”
regulation) on how to regulate party closure, and (ii) legal minimum standards
of protection which must be given to political parties in the member States of
the Council of Europe.
12. The first
is a matter of comparing rules on the subject in Council of Europe member
states in order to identify whether there is a common model or, if not, to
identify different alternative models which might serve as inspiration for
national reform, for example in Turkey. The second is a question of what legal
standards of protection can be derived from common legal obligations, in
particular those ensuing from the ECHR, as interpreted by the European Court of
Human Rights (ECtHR), and from a common European democratic and constitutional
heritage. The first may form a basis for answering the question of whether and
how the national provisions should be reformed, the second determines
whether they must be reformed in order to comply with international
legal obligations. Both are examined in the following.
2.2.
Rules on prohibition and
dissolution of political parties in the member States of the Council of Europe – a comparative overview
2.2.1 A general comparative overview
of national regulation on party closure
13. In 1998 the
Venice Commission undertook a comprehensive comparative review on “Prohibition
of political parties and analogous measures” at the request of the Secretary
General of the Council of Europe. Responses were
received from Albania, Argentina, Austria, Azerbaijan, Belarus, Belgium, Bosnia and Herzegovina, Bulgaria, Canada, Croatia, the Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Ireland, Italy, Japan, Kyrgyzstan, Latvia, Liechtenstein, Lithuania, Moldova, Netherlands, Norway, Poland, Portugal, Romania, Russia, Slovakia, Spain, Slovenia, Sweden, Switzerland, Turkey, Ukraine, and Uruguay.
14. On this
basis the Venice Commission drew up a report that was
adopted at the 35th Plenary Session on 12-13 June 1998, and which
categorises and analyses national rules on the prohibition of political
parties.
15. For the
purposes of the present opinion, the Venice Commission has examined new
comparative material. This updated material confirms that there have been no
major changes in the last decade in how the member States of the Council of
Europe regulate and handle the question of party closure. The conclusions made
in the 1998 Venice Commission report therefore still apply as a concise summary
of European practice. The conclusions read as follows:
Conclusion
The diversity of the legal provisions governing party activities in
the countries which answered the questionnaire makes it difficult to define a
European standard. A number of common features do stand out, however:
a. Party activities everywhere are guaranteed by the
principle of freedom of association.
b. The fact that certain measures are lacking in many, if
not most, of the states concerned leads us to conclude that they are not
essential to the smooth functioning of democracy. Examples include:
- registration of political parties: no registration is
required, even as a formality; this does not mean, however, that candidates for
elective office do not have to meet certain formal requirements;
- sanctions, including prohibition and dissolution,
against political parties which fail to abide by certain rules. This does not,
of course, preclude the punishment of criminal behaviour by individuals in the
context of political activities.
c. Even in those states, which do provide for sanctions
against political parties, there is still considerable diversity. The same
situations are not sanctioned in the same way or with the same severity in the
different states.
d. The fact that it is so difficult – perhaps even
impossible – to define behaviours which would generally warrant such serious
sanctions as the prohibition or dissolution of a political party highlights the
need to apply the principle of proportionality when enforcing legislation restricting freedom of association.
The way in which the often vast legal arsenal governing the
activities of political parties is actually applied in practice reflects a
genuine determination to respect this principle. There are very few democratic
states in which the sanctions covered by the questionnaire have actually been
imposed on political parties in the recent past other than for formal reasons.
With the exception of restrictions of form, particularly those
designed to avoid confusion between party names, measures designed to prevent
the activities of political parties – which do not exist at all in certain
states and are reserved in others to wartime situations – should be permitted
only in exceptional circumstances. The extreme restraint shown by the vast
majority of national authorities confirms this.
e. Finally, a recurrent feature in the national
legislations studied was the guarantee of being heard by an independent and
impartial judicial authority or tribunal. This is a clear sign of concern to
keep something as politically important as the fate of political parties out of
the control of the executive or administrative authorities, whose impartiality
is often open to doubt.
16. The Venice
Commission reiterates and confirms these conclusions, as a description of the
common features of European practice, which forms an appropriate basis for
assessing national rules on party prohibition in any given member State of the Council of Europe for their conformity with European standards.
17. A main
point when comparing national rules on party closure is that as regards the
legal (formal) regulation, there is no common European model, but rather
“considerable diversity” – reflecting different constitutional traditions,
differences in history, context and social and political conditions. A number
of states have no rules on party closure at all, and manage well without. Those
states that do have rules on the prohibition of parties have regulated this
very differently, both in form, procedure and substance.
18. On the
other hand, there is a clear common European approach in that there is a common
democratic legacy that political parties are not prohibited and dissolved.
Even in states with seemingly wide rules on party closure there is “extreme
restraint” in how these rules are applied. The threshold for actually applying
(or even invoking) these rules is extremely high. The very few examples to the
contrary only serve to confirm this common legacy.
19. This
practice demonstrates a clear common European approach to the classic “liberal
dilemma” of how a democracy should respond to those forces that threaten it –
namely by way of open debate and through democratic channels. There is a common
practice for allowing parties which advocate fundamental changes in the form of
government, or which advocate opinions that the majority finds unacceptable.
Political opinions are not censored by way of prohibition and dissolution of
the political party concerned, while illegal activities by party members are
sanctioned through the ordinary criminal law system.
20. This
practice is basically the same in all European states, whether they have formal
rules on party closure or not, and regardless of how these are formulated. This
even holds good for those constitutional systems which formally adhere to a
principle of “militant democracy”, such as the German one, which, on closer analysis,
is not “militant” but rather liberal and tolerant.
21. The fact
that a large number of European states have no regulation of party prohibition
at all led the Venice Commission to conclude in its 1998 report, that such rules
“are not essential to the smooth functioning of democracy”. This conclusion
still stands today. At the same time, it should be added that in some countries
the provisions on party closure in practice do not function as a limitation on
the freedom of party activity, but on the contrary as a special privilege and
protection, which raises the threshold and protects political parties from the
kind of legal dissolution to which other forms of associations might be
subjected.
22. In those
states which have specific provisions on party closure, these are usually the
result of historical factors – but even there the provisions are hardly ever
invoked. Even in those states, where the constitution formally provides for
relatively wide rules on party dissolution, these rules do not appear to form
part of the operative and “living” constitution, but are rather a passive
safety valve, which might serve a function by its mere existence, but which is
rarely if ever actually invoked.
2.2.2.
Comparative overview of possible criteria
for prohibition and dissolution of political parties
23. The
“considerable diversity” of national regulations on party closure is reflected
in the formulation of material requirements that political parties have to
abide by, and which might be invoked as criteria for prohibition and
dissolution. Based on the 1998 Venice Commission report and new updated
material, various national requirements for political parties include bans
against:
·
threatening the existence or sovereignty of the
state
·
threatening the basic democratic order
·
threatening the territorial integrity of the
state
·
fostering social, ethnic, or religious hatred
·
fostering ethnic discrimination
·
use or threat of violence
·
nazism or fascism
·
criminal associations
·
military or paramilitary associations
·
secret or subversive methods.
24. The list is
not exhaustive, but illustrates the variation in substance even among those
states which do have specific regulations. The basic criteria are usually set
out in the national constitution, but can sometimes be supplemented (and
extended) in statutory law. It appears that, to a considerable extent, the
variations can be explained by different historical experiences.
25. It should
be emphasised that no European constitutional system includes all these
criteria. Most national provisions are rather short, with just one or two such
criteria. Others have several, but not all of them. It can be argued that although
several of these criteria in themselves may be acceptable as part of a
democratic system, they are still not acceptable if there are too many that go beyond
a “critical mass”.
26. For the
purpose of analysis, a useful distinction can be drawn depending on whether the
national criteria for prohibition or dissolution refer to means
(activities) or ends (objectives). Only a few states prohibit party
objectives and opinions as such. It is more common that the national criteria refer
to illegal means, such as the use of violence. But the most common model in
those countries that have rules on party prohibition is that prohibition
requires both unlawful means (activities) and illegitimate ends
(objectives).
27. The very
few and scattered cases in which political parties have actually been
prohibited in Europe in modern times have all (with the exception of Turkey)
concerned marginal and extremist parties, inter alia in Germany in the
1950s and lately in Spain. In Germany the Constitutional Court (BVerfG) has
held that the basis for prohibiting a party must go beyond its anti-democratic
opinions so as to also require the showing (with a high standard of proof) of a
fixed purpose to combat the basic democratic order constantly and resolutely
manifested in political action according to a fixed plan (cf. BVerfGE 5, 85,
141).
28. When
assessing different national criteria, one is faced with several challenges
familiar to comparative constitutional law. First, it is difficult to compare
constitutional texts without going into their interpretation in national legal
practice within their specific political and legal context. Second, the extent
to which these criteria are actually “hard law”, which might be invoked before
the courts varies. In some countries the legal requirements imposed on
political parties are not even linked to procedures for their actual
application, and thus serve more as political statements. In others,
application is in theory possible, but the procedural hurdles are so high as to
make this almost impossible.
29. The number
and content of the material criteria contained in any given constitutional
system therefore do not necessarily indicate the legal and actual threshold for
prohibition of parties. Still it might be held that the more formal
restrictions there are, and the wider their formulation, the clearer the signal
that this is a legal instrument which may actually be invoked in practice.
30. A (first)
general comparative approach shows that the most striking feature of the
Turkish rules on party closure is that they combine a very long list of
material criteria for prohibition or dissolution with a very low procedural
threshold. Furthermore, prohibition or dissolution can be based both on
unlawful activities and on ideological opinions as such. This, together with
the national political and historical context, is probably the reason why this
instrument has been so widely used.
2.2.3
Comparative overview of procedures
for prohibition and dissolution of political parties
31. When
assessing what restrictions apply to political parties, the procedural aspect
is as important as the material one. It is the procedural rules that determine
how and to what extent the substantial rules may actually be applied.
32. It is a
common principle in all democratic states that cases of potential party
prohibition must be heard and decided by impartial courts of law. In most
countries with rules on party closure this task is entrusted to the Constitutional Court, as in Turkey. In some
countries, such as Spain and Denmark, the competence lays in the hands of the
Supreme Court, but with special procedures and the possibility of an appeal to
the Constitutional Court in the Spanish case.
33. Most
important from a procedural perspective is the question of which institution is
given the competence to initiate a prohibition procedure against a
political party. Unlike in criminal cases, this power is very seldom entrusted
solely to the prosecuting authorities. The reason is the political nature of
such cases, and the fact that initiating a procedure for prohibition or
dissolution may in itself have grave negative impact on the political situation
in the country. Therefore initiating the procedure for the closure of a
political party should not be the automatic legal consequence of the fulfilment
of certain legal criteria. It should rather be a discretionary decision, which
has to be based on an assessment of the risk posed by this party to the
functioning of democracy and which has to take into account, in addition to the
legal criteria, the political consequences of an eventual closure.
34. For this
reason, the states with rules on party prohibition have established special
procedures for bringing such cases before the competent court. In many
countries this is purely a political decision. In Germany, for example, the
competence rests with the Federal Parliament, the Federal Council or the
Federal Government, while the Federal Prosecutor is not entitled to file
an application. In other countries, there are other forms of political filters,
which hinder a purely “legal” approach to such cases. Spain seems, at first
sight, an exception to this rule since the procedure for the closure of a
political party can be launched not only by the government through the state
attorney, acting on its own initiative or at the request of one of the two
chambers of the Cortes, but also by the Fiscal Ministry (prosecutor) acting on
its own. Spanish practice shows, however, that this power has been used by the
Fiscal Ministry only when this was in line with government policy.
35. The Venice
Commission notes that, with the exception of Turkey, there seem to be very few,
if any, countries in Europe in which the legal competence to initiate a
prohibition case against a political party is given to the ordinary public
prosecutor without any kind of political and democratic check or balance. For
this reason, there is no other European state in which it would have been
procedurally possible to initiate closure proceedings against a democratically
elected majority party under circumstances comparable to those in Turkey in 2008.
2.3.
European legal standards for the
protection of national political parties against prohibition and dissolution
2.3.1 Introduction
36. As a
starting point, it is for the national (constitutional) legislator to determine
whether there should be legal restraints on political parties and what, if any,
should be the rules on prohibition and dissolution. To the extent that there
are legal limits on states in this regard, these result from legally binding
international law, leaving to states a greater or smaller margin of
appreciation.
37. The basic
question is to what extent the member states of the Council of Europe are
obliged, under international law, to offer political parties protection
against illegitimate prohibition and dissolution.
38. The common
European legal standard on party protection is primarily to be deducted from
Article 11 of the ECHR, as interpreted by the European Court of Human Rights
(ECtHR), mainly in cases concerning Turkey. Article 22 of the International
Covenant on Civil and Political Rights corresponds to Article 11 of the ECHR.
39. In
addition, there are other relevant sources of law and legal argument, which
might be considered more as “soft law”, but are still important, not least
politically. These include:
·
Resolutions and other documents by the Council
of Europe, in particular of the Parliamentary Assembly of the Council of Europe
(PACE) and the Committee of Ministers;
·
Guidelines and reports by the Venice Commission.
40. Article 11
ECHR, like all substantive provisions of the Convention, contains a minimum
legal standard, stating the lowest common denominator for protection of
political parties, which is to be inferred from the right of freedom of
association and assembly. This should not be confused with the question
of how to best regulate the freedom to form and operate political
parties. There is nothing to prevent a state offering its political parties
better protection than Article 11 (see Article 53), and the great majority of
European democracies clearly do so.
41. The other
relevant legal sources (PACE resolutions, Venice Commission guidelines,
etcetera) are not minimum standards, but to some extent go further, and rather
reflect a “best model” approach.
2.3.2 The European Court of Human Rights
42. The
existence and activities of political parties are protected by Article 11 ECHR
on freedom of association and assembly, and also Article 10 on freedom of
expression. The dissolution of a political party amounts to a restriction under
Art. 11 ECHR. For such a restriction to be justified, it must be “prescribed by
law in pursuit of one of the legitimate aims laid down in the article and
“necessary in a democratic society”. Furthermore, the ECtHR has stated that
even more basic than the wording of Article 11 is the fact that political
parties are a form of association essential to the proper functioning of
democracy, which is the only form of government compatible with the ECHR. Due
to this importance of political parties for the functioning of democracy, the
ECtHR requires a particularly strong justification for the prohibition or
dissolution of a political party as opposed to prohibition of other
associations.
43. There is a
relatively extensive case-law from the Court on party prohibition, with most major
cases concerning Turkey. These include:
·
United Communist Party v. Turkey – 30 January 1998
·
Socialist Party v. Turkey – 25 May 1998
·
Özdep v. Turkey – 8 December 1999
·
Yazar v. Turkey – 9 April 2002
·
Refah v. Turkey – 13 February 2003.
44. There are
also a number of other judgments in which the Court confirms and reiterates the
principles stated in the above-mentioned judgments.
The basic approach and general principles were laid down by the Court in the
first two cases – concerning the United Communist Party and the Socialist
Party. They were confirmed in the Özdep case, and developed in the Yazar case,
which further strengthened protection of political parties. In the Refah
judgment of 2003 the Court referred to its earlier strict interpretation, but
after careful scrutiny of the evidence found that the prohibition of the Refah
(Welfare) Party was within the margin of appreciation of the Turkish courts,
and therefore did not constitute an infringement of Article 11.
45. The Venice
Commission is of the opinion that the following principles can be deduced from
the relevant case law of the Court on Article 11:
1) Democracy appears to be the only political model contemplated by the
Convention and, accordingly, the only one compatible with it; the Convention is
a constitutional instrument of European public order;
political parties play a primordial role in a democratic state and are a form
of association essential to the proper functioning of democracy;
2) Political parties enjoy the right of freedom of expression and of
freedom of association;
3) Political parties play an important role in ensuring pluralism,
which requires a close link between freedom of expression and freedom of
association;
4) Because freedom of expression is a vital tool for ensuring pluralism
in democracy, its protection not only extends to information and ideas that are
favourably received or regarded as inoffensive or as a matter of indifference,
but also, subject to the restrictions provided for in the second paragraph of
Article 10, to those that offend, shock or disturb;
5) However, political parties may promote a change in the law or the
legal or constitutional structures of the State, provided that:
a.
the means used to that end are legal and
democratic, and
b. the change proposed is in itself compatible with fundamental
democratic principles;
6) Political parties cannot invoke provisions of the Convention in
order to undermine the rights and freedoms of the Convention and thus bring
about the destruction of democracy;
7) In view of the close link between the Convention and democracy,
political parties may have to accept limitations of some of their freedoms in
order to guarantee greater stability of the country; however, where political
parties are concerned, the limitations of freedom of expression and
association, provided for under the second paragraph of Articles 10 and 11,
respectively, are to be construed strictly, with only a limited margin of
appreciation for the domestic authorities and rigorous supervision by the
European Court of Human Rights;
8) In examining the justification of the dissolution of a political
party on the ground of a pressing social need, the following points are of
particular relevance:
a.
whether there is plausible evidence that the
risk to democracy invoked as a justification, provided it has been proved to
exist, is sufficiently imminent;
b.
whether the acts and speeches of the leaders and
members of the political party concerned are imputable to the party as a whole;
and
c. whether these acts and speeches 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;
9) In addition, it has to be examined whether dissolution is a measure
proportionate to the aims pursued; although democracies have the right to
defend themselves against extremist parties, drastic
measures, such as the dissolution of a political party or barring its leaders
from carrying on their political activities, may be taken only in the most
serious cases;
10)
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,
provided that the means used to that end are legal and democratic and that the
change proposed is itself compatible with fundamental democratic principles.
46. The Venice
Commission would, in particular, emphasise the Court’s basic statement that a
political party must be allowed to express opinions that require national
constitutional change, as long as this does not harm democracy itself:
“In the Court’s view,
the fact that such a political programme is considered incompatible with the
current principles and structures of the Turkish State does not make it
incompatible with the rules of democracy. It is of the essence of democracy to
allow diverse political programmes to be proposed and debated, even those that
call into question the way a State is currently organised, provided that they
do not harm democracy itself.”
47. The Court
has been clear on the criteria for interpretation and judicial review under the
ECHR in cases of national party prohibition:
“Consequently, the exceptions set out in Article 11 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 necessity within the meaning of Article
11 § 2 exists, the Contracting States have only a limited margin of
appreciation, which goes hand in hand with rigorous European supervision
embracing both the law and the decisions applying it, including those given by
independent courts.”
48. In this
way, the Court has interpreted Article 11 of the Convention so as to protect
political parties of all variations and to set strict limits on the possibility
of the national legislator to prohibit parties, except in truly extraordinary
circumstances.
49. Even so, it
should be emphasised that Article 11, as interpreted by the Court, is still
only a minimum standard for the protection of political parties. According to
Article 53, nothing in the Convention shall be
construed as limiting or derogating from any of the human rights and
fundamental freedoms which may be ensured under the laws of any Contracting State. As regards protection of political parties, almost all European
countries provide higher protection to their parties than what can be derived
from the ECHR. The soft law standards developed by the Parliamentary Assembly
of the Council of Europe and the Venice Commission also opt for a higher
standard of protection.
50. This
difference of approach does not present a legal conflict, but is merely a
consequence of the fact that the common democratic European practice in this
sector goes further than the minimum legal protection guaranteed under ECHR
Article 11. This is indeed acknowledged by the Court itself, which frequently
cites the Venice Commission guidelines in its judgments.
2.3.3 The Parliamentary Assembly and the Committee of Ministers of the
Council of Europe
51. On several
occasions the Parliamentary Assembly of the Council of Europe (PACE) has
considered what should be the European standard for protection of political
parties against prohibition or dissolution. In Resolution 1308 (2002) on
“Restrictions on political parties in the Council of Europe member states” the
PACE stated in para 11 that:
11. In conclusion and in the light of
the foregoing, the Assembly calls on the governments of member states to comply
with the following principles:
i. political pluralism is one of the
fundamental principles of every democratic regime;
ii. restrictions on or dissolution of
political parties should be regarded as exceptional measures to be applied only
in cases where the party concerned uses violence or threatens civil peace and
the democratic constitutional order of the country;
iii. as far as possible, less radical
measures than dissolution should be used;
iv. a party cannot be held responsible
for the action taken by its members if such action is contrary to its statute
or activities;
v. a political party should be banned or
dissolved only as a last resort, in conformity with the constitutional order of
the country, and in accordance with the procedures which provide all the
necessary guarantees to a fair trial;
vi. the legal system in each member state
should include specific provisions to ensure that measures restricting parties
cannot be used in an arbitrary manner by the political authorities.
52. In it
Resolution 1380 (2004) closing the monitoring procedure for Turkey, the PACE
stated that the frequency with which political parties were dissolved was a
source of real concern and expressed the hope that in future, the
constitutional changes of October 2001 and those introduced in the legislation
on political parties would “limit the use of such an extreme measure as
dissolution”.
In Resolution 1622 (2008) of 26 June 2008 the
PACE recalled its Resolutions 1308 (2002) and 1380(2004) and stated:
14. 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. The Assembly notes that it becomes clear that
further constitutional and legislative reforms in this respect are necessary.
15. A full revision of the 1982
Constitution which, despite repeated revisions, still bears the marks of the
1980 military coup d’Etat, 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.
53. The Venice
Commission notes in particular that the Parliamentary Assembly has thus
endorsed and referred to its 1999 Guidelines as a proper basis on which to
assess national rules on party prohibition.
54. The Committee of Ministers of the Council of
Europe addressed the issue of the prohibition of political parties in Turkey in the framework of its task of supervising the execution of the judgments of the
ECtHR. In its Resolution CM/ResDH(2007)100
on the Execution of the judgments
of the European Court of Human Rights in the cases United Communist Party of Turkey (judgment of the
Grand Chamber of 30/01/1998) and 7 other cases against Turkey concerning the
dissolution of political parties between 1991 and 1997 the following considerations
appear:
Emphasising with the Court the essential role played by political
parties in maintaining the pluralism and proper functioning of democracy, and
the need to avoid restricting their freedom of association and expression
unless there are convincing and compelling reasons for doing so, and recalling
that a political party may campaign to change the law or the legal or
constitutional structures of a state subject to two conditions: (1) the means
used to this end must be legal and democratic in every respect; and (2) the
change advocated must itself be compatible with the fundamental principles of
democracy;
Noting in this connection the constitutional changes of 2001 and the
amendments to the Law on Political Parties adopted in 2003 which reinforced the
requirement of proportionality for any interference by the state in the freedom
of association;
Recalling the importance in this situation of the Turkish
authorities' continued efforts to ensure the direct effect of the Court's
judgments in the interpretation of the Turkish Constitution and law (see, for
example the authorisation of the Communist Party to take part in the 2003
general election despite the formal constitutional ban on using the name
“Communist”; see also the more general efforts described in Resolution
ResDH(2001)71 in the Akkuş case and Interim Resolution ResDH(2005)43
concerning the actions of the security forces in Turkey);
Welcoming the 2004 amendment to Article 90 of the Constitution,
henceforth providing that international human rights treaties take precedence
over any incompatible national legislation;
Strongly encouraging the Turkish authorities to pursue their efforts
to give direct effect of the Court's case-law in the implementation of Turkish
law.
2.3.4 The Guidelines of the Venice Commission
55. The survey
on prohibition and dissolution of political parties in Europe, done by the
Venice Commission in 1998, led to the adoption by the Venice Commission of its
“Guidelines on prohibition and dissolution of political parties and analogous
measures” in December 1999. These
guidelines consist of seven paragraphs, stressing inter alia the
importance of political parties, and that prohibition or dissolution is a
particularly far-reaching measure, which should be used with “utmost restraint”
and subject to a strict principle of proportionality.
56. In the
present opinion, the Venice Commission reiterates and confirms these
guidelines, which have also been endorsed by the Parliamentary Assembly of the
Council of Europe, and which for a decade have been widely referred to as
general European standards, inter alia by the institutions of the
Council of Europe and the European Union.
57. Of
particular relevance to the present assessment is paragraph 3 of the
guidelines, which states that:
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.
58. The essence
of this paragraph is that the Venice Commission only recognises the threat or
use of violence as the sole legitimate criterion for dissolution of political
parties. In other words, first of all the means must be undemocratic, not only
the ends (objectives), and, secondly it is not in itself sufficient for
dissolution that a party holds opinions that are incompatible with democracy.
There must in addition be a threat of violent activity on the part of the party
concerned for prohibition to be legitimate.
59. This
standard adopted by the Venice Commission is somewhat stricter than that
formulated by the ECtHR in its case law. In theory, it may also be stricter
than the wording of the provisions on party closure that are to be found in
some European countries. However it conforms to what has been the actual
practice in democratic Europe for many decades.
60. It may
therefore be concluded that the Venice Commission’s standard accurately
reflects the common European practice and model for protection of political
parties.
61. Of
particular interest is also the emphasis on proportionality and burden of proof
in paragraphs 5 and 6 of the guidelines:
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.
2.4.
Summary – European standards
62. The
European constitutional and democratic standards on the issue of party
prohibition and dissolution can be summarised in three points:
·
There is no common European model on how to
formally regulate prohibition and dissolution of political parties. On the
contrary, there is great diversity among national constitutional and statutory
regulations, ranging from no such rules at all to rather detailed provisions.
·
However, there is a clear European approach as
to how these rules are applied in practice: they are not applied. Even in
countries with comprehensive provisions on party closure, these are narrowly
interpreted and not applied in practice. The few exceptions to this only
confirm the main model.
·
There are common legal standards on the extent to
which political parties must be protected against prohibition and dissolution,
based on Article 11 of the ECHR. These are however only minimum standards. Each
state is free to offer broader legal protection to its political parties, and
most European states do so. There are also soft law standards formulated by the
PACE and the Venice Commission, which may be said to reflect the common
European democratic practice.
63. These are
the standards against which the rules on party prohibition and their actual
application in Turkey must be reviewed.
3.
Rules and practice on
dissolution of political parties in Turkey
3.1.
Introduction
64. The Venice
Commission notes, first of all, that in Turkey the constitutional rules on
party closure have for many decades played a fundamentally different role as
compared to the common European approach, and continue to do so right up to the
recent AK Party case of 2008 and the pending case against the DTP.
65. The
different tradition of Turkey refers both to the wording of the law and to its
actual application. The Turkish legal restrictions on political parties are
stricter than the European approach, with more material restrictions on party
programmes and activities, a lower general threshold, and fewer procedural
obstacles for initiating a procedure of prohibition or dissolution. The
fundamental difference, however, concerns the way the rules have been applied
in Turkey, and how they have functioned as an ordinary and operative part of
the constitution, unlike in any other European country in modern times.
66. An analysis
of the Turkish rules on prohibition and dissolution of political parties must
cover both the text of the legal rules and the way in which these rules have
been interpreted and applied in practice. Furthermore, it must take into
account the specific Turkish context – politically, constitutionally and
historically.
3.2.
The constitutional and statutory
framework for dissolution of political parties in Turkey
67. Turkey already had provisions on party closure in the 1961 Constitution. In the present
1982 Constitution, the relevant provisions are found in Articles 68 and 69,
which were amended in 1995 and 2001. In the Law on Political Parties of 1983,
additional provisions are to be found in great detail in Part 4 “Bans regarding
the political parties” covering Articles 78 to 108. It appears to be a
contested issue in the national legal debate whether the statutory rules place stricter
limits on parties than the constitutional provisions, and, if so, whether this
in itself is unconstitutional.
Articles 68
and 69 of the Constitution
68. Article 68
is titled “Forming parties, membership and withdrawal from membership in a
party”. Paragraph 1 states that citizens have the right to form political
parties, paragraph 2 that parties “are indispensable elements of democratic
political life”, and paragraph 3 that they may be formed “without prior
permission and shall pursue their activities in accordance with the provisions
set forth in the Constitution and law”. Paragraph 4 states the criteria with
which parties have to comply:
Article 68 (4). The statutes and programs, 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.
69. Article 69
regulates the criteria and procedure for dissolving parties. The provision is
lengthy and rather detailed. Relevant parts include:
Article 69. (1) 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. […]
(5) The dissolution of political parties shall
be decided finally by the Constitutional Court after the filing of a suit by
the office of the Chief Public Prosecutor of the Republic.
(6) The permanent dissolution of a political
party shall be decided when it is established that the statute and program of
the political party violate the provisions of the fourth paragraph of Article
68.
(7) 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.
(8) Instead of dissolving them permanently in
accordance with the above-mentioned paragraphs, the Constitutional Court may
rule the concerned party to be deprived of State aid wholly or in part with
respect to intensity of the actions brought before the court.
(9) A party which has been dissolved
permanently cannot be founded under another name.
(10) The members, including the founders of a
political party whose acts or statements have caused the party to be dissolved
permanently cannot be founders, members, directors or supervisors in any other
party for a period of five years from the date of publication in the official
gazette of the Constitutional Court's final decision and its justification for
permanently dissolving the party. […]
70. Article 69
(12) stipulates that further rules on political parties shall be regulated by
statute, in accordance with the above-mentioned principles. This is done in the
1983 Law on political parties (see below).
71. While
Articles 68 and 69 constitute the main constitutional provisions on party
prohibition, they must be seen in relation to other parts of the Constitution,
with which they are closely related. This in particular applies to Article 2,
which states that “the Republic of Turkey is a democratic, secular and social
state” and also mentions loyalty to the nationalism of Atatürk. Of practical
relevance is also Article 3 (1), according to which “the Turkish state, with
its territory and nation, is an indivisible entity”. These articles belong to
the non-amendable provisions of the Constitution (Article 4 prohibits even
proposing their amendment), and they lay the foundation for the particular Turkish
tradition of interpreting democracy in accordance with a particular model of
secularism and nationalism, which has been central to the Constitutional
Court’s argumentation in the party prohibition cases. Another relevant
provision, which was a main basis for the Constitutional Court’s decision in
the AKP case, is Article 24 (5):
Art. 24(5). No one shall be allowed to exploit
or abuse religion or religious feelings, or things held sacred by religion, in
any manner whatsoever, for the purpose of personal or political influence, or
for even partially basing the fundamental, social, economic, political, and
legal order of the state on religious tenets.
72. By
contrast, Article 90 (5), which was introduced in 2004, and which accords
international human right treaties primacy over “domestic laws” is a very
positive provision. It reflects the reform spirit of recent years in Turkey and has the potential to lead to a harmonisation of Turkish practice with European
standards. However, the wording leaves unclear whether this primacy also
includes the Constitution, and to what extent Article 11 of the ECHR under
Turkish law may prescribe a more restrictive interpretation of Articles 68 and
69.
The criteria
for prohibiting and dissolving parties
73. The wording
of Articles 68 and 69 is lengthier and more detailed than what is usual in
European constitutions, which reflects the historical background and political
context of the rules. The material criteria for political parties are laid down
in Article 68 (4), which states that neither the statutes and programmes nor
the activities of a political party should be “in conflict” with:
·
the independence of the state,
·
the indivisible integrity of its territory and
nation,
·
human rights,
·
the principles of equality and the rule of law,
·
the sovereignty of the nation,
·
the principles of the democratic and secular
republic;
·
shall not aim to protect or establish class or
group dictatorship or dictatorship of any kind,
·
shall not incite citizens to crime.
74. The
paragraph thus lists 8 criteria, which is more than in other European
constitutions. Some of them are formulated in very broad terms, as for example
the prohibition against party programmes or activities which are in conflict
with “the principles of the democratic and secular republic”.
75. The list of
material criteria gets even longer when Article 68 (4) of the Constitution is
supplemented with the provisions in the Law on political parties, Articles 78
to 96, which state a number of additional “bans” on party opinions or
activities. Some of them are statutory supplements which form additions to the
list in the Constitution, as for example the bans against “defamation or
denigration of the personalities and activities of Ataturk”, the “abuse of
religion and religiously sacred relics”, the ban on “religious demonstrations”
or of acting against the “preservation of the status of the Religious Affairs
Department”, or on the “use of uniforms”.
76. It has been
argued by Turkish legal scholars that the Law on political parties interprets
and extends several of the criteria of Article 68 (4) beyond the wording of the
Constitution. This in particular applies to the important provisions in Article
80 on “Protection of the principle of unity of the state” and Article 81 on
“Preventing the creation of minorities”, which have been invoked in several
cases as the basis for prohibiting parties representing mainly Turkish citizens
of Kurdish origin. According to the critics, while Article 68 (4) of the
Constitution protects the “territorial integrity” of the state, Article 80 of
the Law extends this to protect the unitary nature of the state as such, thus
for example banning calls for a more federal system of government. This clearly
goes beyond the ordinary meaning of “territorial” integrity.
77. Likewise,
the prohibition in Article 81 of the Law against “the creation of minorities”
clearly seems to go further than the concept of “indivisible integrity” of the
state in Article 68 (4) of the Constitution. Indeed, many states have and
recognise “minorities” without this being regarded as threatening the
“integrity” of the state as such.
78. Taken as a
whole, it would seem in effect that Article 68 (4) and the supplementary
statutory rules can be invoked against almost any party programme that would
argue for changes in the constitutional model, regardless of whether this is
advocated through the threat of violence or merely through peaceful democratic
means.
The general
threshold for applying the rules on party closure
79. There is no
general qualifying criterion for the application of the closure procedure in
Articles 68 and 69 of the constitution and the supplementary legislation. The
wording of the provisions does not for example state that they should only be
invoked in particularly severe cases, and there is no real formulation of a
general principle of proportionality.
80. One
qualification was however introduced in the 2001 constitutional amendment, when
the criterion was introduced into Article 69 that for a party to be dissolved
it must be a “centre for the execution of such activities” as mentioned in
Article 68 (4).
81. This
qualification is included first in Article 69 (1). It seems not to apply under Article
69 (6) in cases where it is the party statutes or programmes which are in
breach of ArtIcle 68 (4). But if it is only the activities of the party
and party members that are “in conflict” with Article 68 (4), then it applies,
with the explanation in Article 69 (7) that a 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 central party organs.
82. When the
qualification was introduced in 2001, there were hopes that this would be
sufficient to actually raise the threshold for invoking Articles 68 and 69 to a
level where this would only take place in exceptional circumstances. So far,
practice shows that this is not necessarily the case, at least not as regards
the initiation of cases by the Public Prosecutor, as demonstrated by the recent
actions against the AK Party and the DTP. The fact that 10 out of 11 judges in
the AK Party case concluded that the party acted in contradiction with the
principle of securalism also seems to indicate that the standard of proof for
the fulfilment of this requirement is not particularly high.
83. Another
threshold that was introduced in 2001 was that voting rules were changed,
introducing the requirement of a 3/5 qualified majority for prohibition of a
party (cf. Article 149 of the Constitution). This was decisive for the AK Party
judgment in July 2008, in which a majority of 6 out of 11 judges voted for
prohibition, falling only one vote short of the necessary qualified majority.
On the
procedure for dissolving parties
84. The
procedural rules concerning party closure before the Constitutional Court are
to be found in Article 69 of the Constitution and Articles 98 to 108 of the Law
on political parties. The power to take action rests with the Public
Prosecutor. There are procedures under which the Minister of Justice or another
political party may demand that the Public Prosecutor take action. But the
latter may also initiate cases ex officio and according to his or her
own discretion, without any form of political checks or balances.
85. As
explained above, this stands in contrast to other European countries that have
rules on party closure, in which – because of the exceptional nature of such
cases – the decision to raise a case either rests with the democratic political
institutions or at least is subject to some element of direct or indirect
democratic control.
86. The Venice
Commission is of the opinion that the Turkish model of giving this competence
to one official – the Public Prosecutor – makes the system subject to his
discretion, which is problematic since the initiation of the procedure by
itself will normally be a dramatic event that may have severe impact on the
political climate and may cause considerable instability.
87. By
contrast, it is in line with the prevailing European approach that the decision
on closure has to be taken by the Constitutional Court. The fact that the
Turkish Constitutional Court has ruled fairly frequently in favour of the
closure of political parties and that in the AKP decision 10 of 11 judges
regarded the governing party, which had received more than 46% of the votes in
free and fair elections, as a centre for unconstitutional activities, might,
however, be seen as an indication that the composition of the Court does not
sufficiently reflect the various tendencies of Turkish society.
88. In its
study on ‘the composition of constitutional courts,
the Venice Commission states:
“Society is necessarily pluralist - a field for the expression of
various trends, be they philosophical, ethical, social, political, religious or
legal. Constitutional justice must, by its composition, guarantee independence
with regard to different interest groups and contribute towards the
establishment of a body of jurisprudence which is mindful of this pluralism.
The legitimacy of a constitutional jurisdiction and society's acceptance of its
decisions may depend very heavily on the extent of the court's consideration of
the different social values at stake, even though such values are generally
superseded in favour of common values. To this end, a balance which ensures
respect for different sensibilities must be entrenched in the rules of
composition of these jurisdictions.”
89. It would go
beyond the purpose of this Opinion to examine in detail the rules on the
composition of the Turkish Constitutional Court. It is, however, striking that
the Turkish Constitution does not provide for any involvement of Parliament in
the nomination or appointment of constitutional court judges. All judges of the
Court are appointed by the President of the Republic from among senior judges
or candidates nominated by courts (including military courts) and the Higher
Education Council, with the President being bound by these proposals. This is
in contrast with the usual European approach giving parliament an important
role, at least with respect to some of its members. The latter approach seems
to better guarantee the necessary pluralism of a constitutional court.
3.3.
The practice for dissolution of
political parties in Turkey
90. When
examining the compatibility of rules with European standards, it is not
sufficient to look at the wording of the rules, but it is necessary to take
into account the extent to which the rules are actually applied in practice and
the way in which they are interpreted. Since the Constitutional Court is the
final authority for interpreting the Turkish Constitution, the Venice
Commission has to base itself on the interpretation provided by this Court.
91. The first
thing to be noted when examining Turkish practice is that, unlike in any other
European state, there is in Turkey a tradition of frequently invoking and
applying the rules on dissolution of political parties, as an operative part of
the constitution and the political system.
92. According
to figures often cited, since the 1961 Constitution entered into force, the Constitutional Court has closed down a total of 24 political parties, not including parties
that were prohibited during periods of military intervention. Of these, 6 date
from the period of the 1961 Constitution and 18 from that of the 1982
Constitution.
93. Political
parties prohibited and dissolved by the Constitutional Court in recent times
include inter alia:
·
The United Communist Party of Turkey (TBKP) – dissolved July 1991
·
The Socialist Party (SP) – dissolved July 1992
·
The Freedom and Democratic Party (Özdep) –
dissolved July 1993
·
The People’s Labour Party (HEP) – dissolved July
1993
·
The Socialist Party of Turkey (STP) – dissolved November 1993
·
The Democracy Party (DEP) – dissolved June 1994
·
The Labour Party (EP) – dissolved February 1997
·
The Welfare Party (Refah) – dissolved January
1998
·
The Virtue Party (Fazilet) – dissolved June 2001
·
The People’s Democracy Party (HADEP) – dissolved
in March 2003
94. In addition
to the recent case concerning the AK Party, there is another case concerning
the Democratic Society Party (DTP), which was lodged by the public prosecutor
in November 2007, and which is still pending. The DTP is the currently most
important party representing primarily Turkish citizens of ethnic Kurdish
origin, with 21 MPs in Parliament.
95. The great
majority of closure cases have been brought against parties representing
Kurdish interests, based on alleged violations of the provisions protecting the
indivisible territorial and national integrity of the state. As set forth
above, the Turkish Law on Political Parties does indeed contain provisions
which can be used as the basis for the prohibition or dissolution of any party
which questions the present unitary character of the Turkish state or defends
the interest of minorities. The forthcoming decision of the Constitutional
Court in the DTP case will presumably provide an indication as to whether the
constitutional amendments already adopted will lead to a more liberal practice
with respect to the closure of such parties.
96. In five
cases the Constitutional Court has closed down parties on account of their
alleged anti-secular activities. In addition
there is the recent AK Party case, which was based on the same allegations, and
which ended not with the closure of the party, but with the imposition of
financial sanctions.
97. The
tradition of political party closure in Turkey has long been regarded as a
problem in the light of European democratic standards. In a monitoring report
on Turkey in 2004 the PACE stated that the frequency with which political
parties were being dissolved in Turkey did not only constitute 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. In Resolution 1380 (2004) the PACE stressed that this was a real
source of concern, but expressed the hope that in the future the constitutional
changes of 2001 would limit the practice.
98. Recent
cases, both the one against the AK Party and the pending one against the DTP
illustrate that, with respect to the actions of the Chief Public Prosecutor,
contrary to the hope expressed by PACE there has been no change in practice. On
the contrary, the AK Party case has been widely regarded by observers as the
most controversial and politically intrusive closure case ever. The fact that
the AK party enjoys strong democratic legitimacy from a large part of the
electorate made it not only politically more problematic to challenge the constitutional
legitimacy of its existence, but also, in the light of European standards, legally
far more problematic. Dissolution in such a case may in itself be seen as a
threat to democracy and as an attempt at disenfranchisement of a large part of
the electorate.
99. As regards
the Constitutional Court, its decision in the AKP case shows that, on the basis
of the constitutional amendments already enacted, the Court has felt able to
take a position which is closer to the common European approach but which still
falls short of European standards. The decision clearly recognises the crucial
role of political parties for the functioning of the democratic system and
refers to the constitutional guarantees for their functioning. It is stated
“that parties can only be dissolved under “exceptional conditions”, and that
under Article 90 of the Constitution international agreements concerning
fundamental rights have the force of law before the domestic courts. The Court
here refers explicitly both to the ECHR and to “the Venice Criteria”, and goes
on to state that Articles 68 and 69 must be assessed within this framework:
… the activities and statements in statutes and programs shall be
conducive to the dissolution of political parties only if they are fundamentally
in contradiction with the principles protected under article 68, paragraph four
of the Constitution, aiming to eliminate these principles, and hence directly
constitute clear and imminent danger to the democratic life.
100. The Venice
Commission welcomes this interpretation of Articles 68 and 69 as well as the
general new emphasis on democratic and liberal principles. It is in the spirit
of the ECHR and the 1999 Venice Commission guidelines and confirms that recent
reforms have brought Turkish practice closer to the usual European approach.
101. However,
the further reasoning and the result of the decision also show that even the
reformed rules in Turkey still leave room for an excessive intervention with
the freedom of political parties. The decision lists a number of activities of
AKP or its representatives regarded as being in contradiction with the
“principle of democratic and secular republic” expressed in
Article 68 (4) of the Constitution. It does, however, not become
clear why these activities should be regarded as a threat to the principle of
the secular state as such and not only as an attempt to change the present
rules on the functioning of secularism in Turkey. The decision does not claim
that AKP is aiming at the abolition of the democratic system in Turkey. When sanctioning the Party, it seems to apply both material standards and standards
of proof which are at variance with the standards applied by the European Court
of Human Rights or advocated by the Venice Commission.
102. The
practice of the Constitutional Court therefore shows that the Turkish
constitutional and legal rules on the prohibition of political parties do not
only make it too easy to prohibit a political party but that these rules are
also applied in a way incompatible with European standards. The mere fact that
the Constitutional Court, due to the specific voting rules introduced by the
2001 constitutional amendments, did not pronounce the closure of AKP but
pronounced financial sanctions only, is not sufficient to arrive at a different
conclusion. While a purely financial sanction may be more easily regarded as
proportional, it remains a serious interference with the freedom of a political
party which can only be justified in exceptional cases.
103. The Venice
Commission is also concerned about the chilling effect which the legal
provisions together with the case law of the Constitutional Court may have on
freedom of association in Turkey, in particular for political parties. The
Commission recalls in this respect that the ECtHR stated in the case of Informationsverein
Lentia v. Austria that the state is the ultimate guarantor of the principle
of pluralism and that it has the obligation to ensure that fee elections take
place at reasonable intervals under conditions ensuring the expression of the
opinion of the people in the choice of the legislature, Such expression of the
people’s will is inconceivable without the participation of a plurality of
parties representing the different shades of opinion to be found within a
country’s population.
4.
Conclusions on the need
to reform the Turkish rules on prohibition and dissolution of political parties
104. The Venice
Commission, first of all, wishes to acknowledge the importance of the reforms
carried out in Turkey in recent years. These reforms constitute important steps
towards full harmonisation with standards of democracy applied in other
European states and reflect the advances made by Turkish society. An example of
this new approach is paragraph 5 of Article 90 of the Constitution, introduced
in 2004, which gives priority to international human rights treaties over
domestic laws. This encourages the Commission in its conviction that any
criticism of the remaining imperfections in the system should not be regarded
as outside interference based on ignorance of or indifference with respect to
Turkish realities but as an encouragement to continue on the path of reforms
the country already has chosen to undertake.
105. The Venice
Commission concludes that, when compared to the common European practice, the
situation in Turkey differs in three important respects:
1.
There is a long list of substantive criteria
applicable to the constitutionality of political parties, as laid down in
Article 68 (4) and the Law on political parties, which go beyond the criteria
recognised as legitimate by the ECtHR and the Venice Commission.
2.
There is a procedure for initiating decisions on
party prohibition or dissolution which makes this initiative more arbitrary and
less subject to democratic control, than in other European countries.
3.
There is a tradition for regularly applying the
rules on party closure to an extent that has no parallel in any other European
country, and which demonstrates that this is not in effect regarded as an
extraordinary measure, but as a structural and operative part of the
constitution.
106. In
conclusion, the Venice Commission is of the opinion that the provisions in
Article 68 and 69 of the Constitution and the relevant provisions of the Law on
political parties together form a system which as a whole is incompatible with
Article 11 of the ECHR as interpreted by the ECtHR and the criteria adopted in
1999 by the Venice Commission and since endorsed by the Parliamentary Assembly
of the Council of Europe.
107. The basic
problem with the present Turkish rules on party closure is that the general
threshold is too low, both for initiating procedures for and for prohibiting or
dissolving parties. This is in itself in abstracto deviating from common
European democratic standards, and it leads too easily to action that will be
in breach of the ECHR, as demonstrated in the many Turkish cases before the
European Court of Human Rights.
108. Because
the substantial and procedural threshold for applying the Turkish rules on
party prohibition or dissolution is so low, what should be an exceptional
measure functions in fact as a regular one. This reduces the arena for
democratic politics and widens the scope for constitutional adjudication on
political issues. The scope of democratic politics is further eroded by the
constitutional shielding of the first three articles of the Constitution, in
such a way as to prevent the emergence of political programmes that question
the principles laid down at the origin of the Turkish Republic, even if done in
a peaceful and democratic manner.
109. The Venice
Commission is of the opinion that within democratic Europe these strict
limitations on the legitimate arena for democratic politics are particular to
the Turkish constitutional system, and difficult to reconcile with basic
European traditions for constitutional democracy.
110. The Venice
Commission recognises and welcomes the fact that in recent years the rules on
party prohibition in Turkey have been changed in such a way as to raise the
threshold for dissolution. In the 2001 reform, Article 69 was amended to
include the qualification that for a party to be in conflict with the criteria
of Article 68 (4) the party must be a “centre” for such activities. At the same
time, the requirement of a 3/5 majority of the Constitutional Court for
dissolving a political party was introduced into Article 149. This has shown
itself to be an important reform, which was decisive for the outcome of the AK
party case. While laudable, these reforms have not been sufficient to fully
bridge the gap between the Turkish rules and the standards of the ECHR and the
Venice Commission Guidelines.
111. Consequently,
the Venice Commission is of the opinion that, although the 2001 revision was an
important step in the right direction, it is still not sufficient to raise the
general level of party protection in Turkey to that of the ECHR and the
European common democratic standards. Further reform is necessary in order to
achieve this, both on the substantive and the procedural side.
112. It is not
for the Venice Commission to make concrete proposals on how a reform might be
construed, unless invited to do so by the national authorities. It is for the
appropriate Turkish institutions to make the necessary amendments to the
national constitution and legislation. Several models are possible, and within
the requirements set by common European standards the national provisions may
legitimately be tailored to the constitutional tradition and the political and
historical context of each state. The main issue is not how the reform is
formulated in detail, but that it is done in a way which ensures that the
instrument of party closure is transformed from being part of the operative
constitution to become a genuine safety valve, to be invoked only in truly
extraordinary circumstances.
113. In order
to achieve this, in the opinion of the Venice Commission it will be necessary to
change the provisions both on substance and procedure. As for the substantive
rules, it seems clear that the list of criteria for the prohibition and
dissolution of political parties in Article 68 (4) should be scrutinised,
revised and reduced, and so should the many restrictions in the Law on
political parties. As regards procedure, the Venice Commission would advocate a
system under which the competence of the Public Prosecutor to initiate
procedures concerning party closure subject to some form of democratic control.
Furthermore, one might want to consider introducing a general threshold in the
form of a strict principle of proportionality and more clearly defined
standards of proof.
114. Any reform
to the Turkish rules on party closure will require constitutional amendment.
This can be done either as a separate process, confined to changing the
relevant provisions of the Constitution, or as part of a more comprehensive
constitutional reform. The Parliamentary Assembly of the Council of Europe
(PACE) in Resolution 1622 (2008) advocated the latter approach, referring to
the fact that the 1982 Constitution still bears the marks of the 1980 military coup
d’état. The link between Articles 68 and 69 on the one hand and other
constitutional provisions, such as Article 24 (5), makes it also seem
preferable to opt for a more comprehensive reform. The Venice Commission notes
in this context that the issue of general constitutional reform has been
discussed in Turkey, and that in 2007 a preliminary draft for such a text was
presented by a group of experts headed by professor Özbudun.
115. The Venice
Commission remains at the disposal of the Turkish authorities, should they
desire its assistance with and advice on amending the rules on party
prohibition, as a separate process or as part of broader constitutional reform.
