Information Note on the Court’s case-law 195

April 2016

Cumhuriyet Halk Partisi v. Turkey - 19920/13

Judgment 26.4.2016 [Section II]

Article 11

Article 11-1

Freedom of association

Legally unforeseeable and thus unlawful confiscation of political party’s assets: violation

Facts – The applicant was the Turkish main opposition party, Cumhuriyet Halk Partisi (“the People’s Republican Party”). Following an inspecti on of the applicant party’s final accounts for the years 2007, 2008 and 2009, the Constitutional Court declared some of its expenditure to be unlawful under the Political Parties Act and ordered the confiscation of the applicant party’s assets in an amount equalling the deemed unlawful expenditure (in excess of EUR 1,000,000).

In its application to the European Court, the applicant party complained, inter alia , that the Constitutional Court’s decisions had infringed its right to association under Article 11 of the Convention.

Law – Article 11: The Court acknowledged the necessity of supervising political parties’ financial activities for purposes of accountability and transparency, which served to ensure public confidence in the political process. Therefore , the inspection of political parties’ finances did not in itself raise an issue under Article 11. Moreover, there was no uniform practice across the Council of Europe member States regarding the oversight of political parties’ financial accounts. However, the margin of appreciation enjoyed by States, although wide, was nevertheless not unlimited. Where the inspection of the finances of a political party had the effect of inhibiting a party’s activities, it could amount to an interference with the right to freedom of association. In the applicant party’s case, the sanctions in question had had a considerable impact on its activities, although their full impact could not be taken into account, having regard to the Court’s finding of inadmissibility in respect of the sanctions concerning the 2007 accounts. Nevertheless, the sanctions pertaining to the 2008 and 2009 accounts alone constituted a sum which could not be considered to be negligible, as they had obliged the applicant party to curtail a significant nu mber of its political activities, including at local branch level. Accordingly, the sanctions in question constituted an interference with the applicant party’s political activities and thus its freedom of association under Article 11 of the Convention.

I n order to prevent the abuse of the financial inspection mechanism for political purposes, a high standard of “foreseeability” had to be applied with regard to laws that govern the inspection of the finances of political parties.

(a) Unforeseeability of “unlawful expenses” – The unlawfulness of the applicant party’s expenditure allegedly concerned the fact that it had not been incurred in pursuance of the “objectives of a political party” and “in the name of the party’s legal personality” as provided for in domestic law. Prior to amendments introduced in 2011, the relevant domestic law did not offer any guidance on how the expression “objectives of a political party” would be interpreted for the purposes of the inspection to be carried out by the Constitut ional Court, and what activities would fall outside the scope of those objectives. Furthermore, prior to the amendments, there was no provision to specify the nature and scope of the inspection. Therefore the relevant domestic law suffered prima facie from a lack of precision in this respect.

As to the Constitutional Court’s decisions providing, in the Government’s view, the guidance that was lacking from the written law, they were delivered after the relevant accounts were submitted to the Constitutional Court for inspection and so had no prec edential value for the purposes of the instant case. The decisions also suffered from inconsistencies as to the criteria to be applied in the assessment of the lawfulness requirements, thus adding to their unpredictability. The legal uncertainty was furthe r exacerbated by the delays encountered in the inspection procedure, in the absence of any time-limits set out in the law. Bearing in mind the significant financial interests at stake for the applicant party, the Constitutional Court should have acted with special diligence to finalise the inspections in a timely manner, which would have also allowed the applicant party to regulate its conduct in order to avoid facing sanctions for similar expenditure in the following years.

(b) Unforeseeability of applica ble sanctions – The domestic law provided for a warning mechanism for any contravention of the legislation regulating political parties’ activities. However, the warnings issued in the instant case were not triggered by an application from the chief public prosecutor as required under the relevant provisions. This, coupled with the absence, in the Constitutional Court’s decisions, of a specific reference to the legal provisions establishing the warning mechanism, created an ambiguity as to the actual legal basis of those warnings. Moreover, it was not clear from the relevant legislation, from the Government’s submissions, or from the Constitutional Court’s decisions when a warning, as opposed to a confiscation order, could be issued in relation to expenditur e that fell foul of the requirements of the legislation. Nor was it possible to derive clarification from the nature of the expenses that were the subject of warnings, which did not appear to be characteristically different from other unlawful expenses tha t resulted in confiscation orders. Therefore, the applicant party had not been able to foresee whether and when unlawful expenditure would be sanctioned with a warning or a confiscation order.

In conclusion, the Court accepted that the broad spectrum of a ctivities undertaken by political parties in modern societies made it difficult to provide for comprehensive criteria to determine those activities which could be considered to be in line with the objectives of a political party and which relate genuinely to party work. It stressed however that, having regard to the important role played by political parties in democratic societies, any legal regulations which may have the effect of interfering with their freedom of association, such as the inspection of th eir expenditure, must be couched in terms that provide a reasonable indication as to how those provisions will be interpreted and applied.

It followed from these considerations that the condition of foreseeability was not satisfied and the interference in question was not prescribed by law.

Conclusion : violation (unanimously).

Article 41: EUR 1,085,800 in respect of pecuniary damage.

(See Refah Partisi (the Welfare Party) and Others v. Turkey [GC], 41340/98 et al., 13 February 2003, Information Note 50 ; and Republican Party of Russia v. Russia , 12976/07, 12 April 2011, Information Note 140 )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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