Resolution CM/ ResDH (2010)184 [1]

Execution of the judgments of the European Court of Human Rights

Kavakçı , Sılay , Ilıcak and Sobacı against Turkey

(Applications Nos. 71907/01 ( Kavakçı ) and 8691/02 ( Sılay ), judgments of 5/04/2007, final on 5/07/2007; 15394/02 ( Ilıcak ), judgment of 5/04/2007, final on 24/09/2007, rectified on 14/12/2007,

26733/02 ( Sobacı ), judgment of 29/11/2007, final on 29/02/2008)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violation of the Convention found by the Court in these cases concerns the breach of the applicants ’ right to free elections due to temporary limitations on their political rights following the dissolution of their political party by the Constitutional Court (violation of Article 3 of Protocol No. 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicants the just satisfaction provided in the judgments (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination of these cases.

Appendix to Resolution CM/ ResDH (2010)184

Information on the measures taken to comply with the judgments in the cases of

Kavakçı , Sılay , Ilıcak and Sobacı against Turkey

Introductory case summary

The cases concern the violation of the right to electoral freedom of the applicants, who had been elected in April 1999 to the Turkish Grand National Assembly as members of Fazilet Partisi (the Virtue Party). In June 2001 the Constitutional Court dissolved Fazilet Partisi on the ground that the party, which had based its political programme in particular on the issue of wearing the Islamic headscarf, had become a centre of activities contrary to the constitutional principle of secularism.

In arriving at its conclusion, the Constitutional Court relied on Article 69§6 of the Constitution (as at the material time) and took account of the actions and statements of the party ’ s Chair and some of its directors and members, including the applicants. The applicants were specifically accused of the following offences: Ms Ilıcak and Mr Sobacı of making certain statements in public containing anti-secular propaganda, Ms Kavakçı of taking an oath before the National Assembly wearing an Islamic headscarf, and Mr Sılay of publishing a book containing anti-secular propaganda. As provided in Article 69§8 of the Constitution as an ancillary measure, the Constitutional Court banned both applicants from becoming founder members, ordinary members, leaders or auditors of any other political party for five years.

The European Court held that the constitutional provisions concerning the dissolution of political parties in force at the material time had been very broad in their scope. All actions and statements by party members could be imputed to the party for the purposes of finding it to be a centre of activities contrary to the Constitution and ordering its dissolution. No distinction was made according to the degree of involvement of members in the activities in question. In the present case some party members, including its Chair and deputy Chair, whose situation had been comparable to that of the applicants, had had no sanctions imposed on them. The Court therefore considered that the sanctions imposed on the applicants had not been proportionate to the legitimate aims pursued (violation of Article 3 of Protocol No. 1).

I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Kavakçi

71907/01

-

-

4 000 EUR

4 000 EUR

Paid on 21/09/2007

Sιlay

8691/02

-

-

3 000 EUR

3 000 EUR

Paid on 21/09/2007

Ilιcak

15394/02

-

-

5 000 EUR

5 000 EUR

Paid on 11/12/2007

Sobacι

26733/02

No just satisfaction

b) Individual measures

The restrictions imposed on the applicants by the Constitutional Court in 2001, which consist of a ban from becoming founder members, ordinary members, leaders or auditors of any other political party expired in 2006 and they were lifted. Thus, no other individual measure appears to be necessary.

II. General measures

Article 69 § 6 of the Turkish Constitution called into question in these cases was amended in 2001 (see §27 of the judgment). In its current version, Article 69 § 6 specifies the circumstances under which actions or statements of members of a political party may be attributed to the party. The amended provisions now contains the following sentence: “A political party shall be deemed to have become the centre of activities [against Constitutional principles of independence of the state, of human rights, of equality and of the rule of law, of sovereignty of the nation, of democracy and secularism] only when such activities are carried out intensively by the members of that party or condoned implicitly or explicitly by the grand assembly, 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 co-ordination with the above-mentioned party organs directly”.

Furthermore, a new paragraph has been added to Article 69, which now provides sanctions less stringent than closure of a party, a measure which would automatically lead to political restrictions imposed on its members whose actions and/or statements had been attributed to that party.

The European Court noted with satisfaction these amendments and stated that “the political restrictions on an individual would, without a doubt, take place much less frequently and political rights would be reinforced” (see §48 of Kavakçı judgment, §35 of Sılay judgment, §38 Ilıcak judgment and §34 of Sobacı judgment).

III. Conclusions of the respondent state

The government considers that no individual measure is required, apart from the payment of the just satisfaction and that the general measures adopted will prevent similar violations and that Turkey has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 2 December 2010 at the 1100th meeting of the Ministers’ Deputies