Resolution CM /ResDH(2007)100 [1]

Execution of the judgments of the European Court of Human Rights

United Communist party of Turkey (judgment of Grand Chamber of 30/01/1998) and 7 other cases against Turkey concerning the dissolution of political parties between 1991 and 1997

(see details in Appendix )

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the P rotection oh 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 violations of the Convention found by the Court in these cases all concern the dissolution of political parties by the Constitutional Court between 1991 and 1997 (violation of Article 11, see details in the Appendix);

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

Having examined the information provided by the government, as well as other relevant information at its disposal 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 including, where appropriate, default interest (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 judgment, 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 of the Convention;

Having examined the measures taken by the respondent state to that effect, the details of which appear in the Appendix;

Noting with satisfaction in this respect, as far as individual measures are concerned, that all applicants have been able to resume their political activity without further interference contrary to the Convention, both by taking part individually in elections and by securing the re-registration of their parties or the registration of new parties;

Deploring nonetheless that, shortly after the delivery of the Court ' s judgment in the case of the Socialist P arty and others, one of the applicants was convicted on the basis of the same facts as those at the origin of the dissolution of his party and the consequences of this conviction could not be erased without successive interventions by the Committee of Ministers (see Interim Resolutions ResDH(99)245 and ResDH(99)529 followed by the conditional release of the applicant and restoration of his civil and political rights); and by the Court, following a further application (No. 46669/99, judgment of 21 June 2005, just satisfaction for remaining prejudice);

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 P olitical P arties 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 P arty 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;

Recalling that the Committee of Ministers ' decisions under Article 46, paragraph 2, of the Convention are entirely without prejudice to the Court ' s consideration of the other cases currently pending before it concerning the dissolution of political parties,

DECLARES 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(2007)100

Information about the measures to comply with the judgments in the cases of

United Communist party of Turkey (judgment of Grand Chamber of 30/01/1998) and 7 other cases against Turkey concerning the dissolution of political parties between 1991 and 1997

Introductory case summary

All these cases concern the dissolution of political parties by the Constitutional Court between 1991 and 1997 on the ground that the these parties ' manifestos and/or statements made by their leaders (applications Nos. 1237/93, 22723/93 and 25141/94) were considered to undermine the territorial integrity and the unity of the nation, mainly on account of references to the Kurdish people or to Kurdish self-determination, in violation of the constitution and of various provisions of the Law on P olitical P arties (L P P ), in particular Articles 78, 81 and 101 b.

Most of the parties (applications Nos. 19392/92, 23885/94, 26482/95, 39974/98 and 39434/98) were dissolved either on the sole basis of their manifesto or very shortly after their creation (applications Nos. 21237/93, 22723/93 and 25141/94) before they could even begin their activities.

Additional grounds were constituted in the United Communist P arty case by the use of the term “communist”, prohibited under Article 96(3) of the L P P and, in the ÖZDE P case by the fact that the apparent aim of the party was to abolish the secular state in violation of Article 89 of the L P P .

These cases also concern the fact that the leaders of the political parties concerned were subject to bans on the exercise of similar office in any other political party, and the fact that Mr P erinçek, the leader of the Socialist P arty was convicted, subsequent to the Court ' s judgment, for the same statements as those at the origin of the dissolution of the party.

In each of these cases, the Court concluded that there had been a violation of the right of freedom of association (violations of Article 11).

I. P ayment of just satisfaction and individual measures

a) Details of just satisfaction

Application

No.

Name of the case

Judgment of

Just satisfaction [2]

Deadline for payment

Date of the payment

Non-pecuniary damage

Costs and expenses

19392/92

United Communist party of Turkey and others

final on the same day

120 000 FRF

30/04/1998

30/04/1998

21237/93

Socialist P arty and others

final on the same day Interim Resolutions DH(99)245

DH(99)529

100 000 FRF

25/08/1998

25/08/1998

23885/94

Freedom and Democracy P arty (ÖZDE P )

08/12/1999 final on the same day - Grand Chamber

30 000 FRF

08/03/2000

21/02/2000

22723/93+

Yazar, KarataÅŸ, Aksoy and the P eople ' s Labour P arty (HE P )

09/04/2002

final on the same day

30 000 FRF

10 000 FRF

09/07/2002

05/07/2000

25141/94

Dicle for the Democratic P arty (DE P )

10/12/2002 final on 21/05/2003

200 000 €

10 000 €

21/08/2003

26482/95

Socialist P arty of Turkey (ST P ) and others

12/11/2003 final on 12/02/2004

0

10 000€

12/05/2004

12/05/2004

39974/98

39210/98

Democracy and Change P arty and others

26/04/2005 final on 26/07/2005

0

4 316€

26/10/2005

13/10/2005

39434/98

Emek P artisi and Åženol

15 000€

3 000€

31/11/2005

28/11/2005

b) Individual measures

The political bans imposed on applicants who were leaders or active members of the dissolved parties have been lifted, not least by the constitutional reforms (see “General measures” below).

The obstacles to re-registering the dissolved parties or registering similar parties have been removed. The Communist P arty and the Socialist P arty were able to take part in the 2003 general election (see also “General measures”). The participation of the Communist P arty was particularly noteworthy given that it was authorised without formally repealing the constitutional ban on parties using the denomination “communist”.

In the Socialist P arty case in particular, in which the party leader, Mr P erinçek, was sentenced to 14 months ' imprisonment shortly after the Court ' s judgment on the basis of the same statements as has had occasioned the dissolution of the party, the Committee of Ministers took specific action to erase the consequences of this conviction, which had been imposed in violation of Turkey ' s obligations under the Convention.

Following a reminder concerning its obligations from the Committee of Ministers in Interim Resolutions DH(99)245 and 529 and a letter from the Chairman of the Committee of the Ministers to the Turkish Minister for Foreign Affairs, Mr P erinçek was granted conditional release. In application of a Law on the Suspension of Sentences and Judgments (Law No. 4454 of 28/08/1999), he was restored to his civil and political rights – on condition that he “committed no further crime” – and he was able to found a new political party and take part in the 2003 general election.

Fully in line with the Committee of Ministers ' resolutions mentioned above, the court subsequently found, in a new judgment of 21 June 2005 (application No. 46669/99) that the conviction of Mr P erinçek had been in contravention of the Convention and granted him just satisfaction in respect of the damage sustained as a result of his wrongful conviction. In this judgment it is noted that the Turkish Court of Cassation, when it confirmed Mr P erinçek ' s conviction of July 1998 criticised in that judgment, took insufficient account of the European Court ' s judgment in the case of the Socialist P arty against Turkey . The Committee considered this question separately in the context of the latter judgment.

II. General measures

1) Constitutional reforms

The 1995 constitutional reform transformed the permanent prohibition placed on members of dissolved parties, from exercising political activity of any kind, into a five-year ban applicable only to party leaders.

Subsequently, after the facts at the origin of these cases, further constitutional changes entered into force on 17 October 2001, which made it possible to comply with the Convention obligation not to sanction a political party on the sole basis of its manifesto or without any evidence of clearly anti-democratic activity. They also introduced a requirement of proportionality, providing recourse to lesser penalties than dissolution (partial or total withdrawal of public financial support, depending on the gravity) for breaches of the authorised limitations placed upon political activity.

In addition, the new text of Article 90 of the Constitution as amended in 2004 gives international human rights treaties a superior status to national law in case of conflict.

2) Law reforms

The Law on P olitical P arties (L P P ) was amended on 11 January 2003 (Law No. 4748/2002) so as to give effect to the constitutional changes of 2001. Accordingly:

- the conditions for political party membership have been eased (conviction under Article 312 of the P enal Code no longer constitutes a bar on membership);

- Articles 98, 100, 102 and 104 of the L P P have been amended to bring them into conformity with the constitutional changes regarding both the criteria for imposing penalties and the proportionality of the penalties themselves;

- political parties have been given a right of appeal against motions for dissolution by the P rosecutor before the Constitutional Court ;

- the majority required for deciding to dissolve a political party has been increased.

3) Changes in practice

The governmental recalls at the outset that the Constitution has been brought into line with the Court ' s case-law. Thus the Communist P arty was authorised to take part in the 2003 general election even though the prohibition provided in Article 96(3) of the L P P – which was at the origin of the violation in the United Communist P arty case – was still in place.

The government emphasises that the direct effect of the court ' s judgment thus accepted is the reflection of a more general development (see Resolution ResDH(2001)71 in the AkkuÅŸ case) which has been encouraged by the Turkish legislature through the amendment of Article 90 of the Constitution (see above) and by the government (see for example Interim Resolution ResDH(2005)43 concerning the actions of the Turkish Security Forces.

In the light of these developments, the government now expects that all domestic courts, including the constitutional court, will give direct effect to the Convention and the case-law of the European Court , not least when deciding matters relating to the dissolution of parties or the penalties to be imposed on their members.

4) P ublication of the European Court ' s judgments

All the judgments of the European Court in these cases have been translated into Turkish and published in the Official Journal of the Ministry if Justice.

III. Conclusions of the respondent state

The government considers that the measures taken have entirely remedied the consequences for the

applicants of the violations found in these cases, that the general measures, particularly given the efforts made to ensure the direct effect of the Court ' s case-law in the interpretation of the Turkish Constitution and law, will prevent new, similar violations in the future and that Turkey has thus fulfilled its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 20 June 2007 at the 997th meeting of the Ministers’ Deputies.

[2] The amounts awarded were co n verted in to Turkish liras (TRL) at the rate applicable on the date of p ayment.