CONCURRING OPINION OF JUDGE RESS JOINED BY JUDGE ROZAKIS

The only point on which I would like to clarify the reasoning of the judgment, as I interpret it, relates to paragraphs 97 and 98, where the Court refers to the limits under which political movements can continue to rely on the protection of the Convention while conducting their activities. In paragraph 97 of the judgment the Court refers to United Communist Party of Turkey and Others v. Turkey (judgment of 30 January 1998, Reports of Judgments and Decisions 1998-I, p. 27, § 57) where the Court reiterated the characteristics of democracy and the available possibilities to resolve a country’s problems – even irksome ones – through dialogue and other means of expression without recourse to violence. The Court then in paragraph 98 of the judgment says that a political party may campaign for a change in the law or the legal and constitutional structures of a State on two conditions: firstly, the means used to that end must be legal and democratic and secondly, the change proposed must itself be compatible with fundamental democratic principles.

Since this case is related to the dissolution of a political party for its activities and far-reaching political aims, one has to be careful with very general statements. These two paragraphs should not be understood to mean that the protection of the Convention is limited to situations where the political party has acted in every respect in conformity with the law. There are situations in between. The reference to the legality of means, in my view, cannot be interpreted in the sense that a political party, which on one occasion or another does not act fully in conformity with domestic law thereby loses its capacity to lay claim to the Convention’s protection against penalties imposed against it, and in particular against dissolution. Not all minor violations of the law which occur in the course of political assemblies, or the conduct of one or another of a party’s members or illegal situations relating to its internal order can be deemed to justify such a measure. The formulation in paragraph 98 of the judgment should in my view not be understood to exclude for more or less minor illegalities the application of the principle of proportionality in relation to sanctions such as dissolution of a party. In respect of a possible dissolution of the party the following sentence relating to a situation where party leaders incite to violence or put forward a political programme which fails to respect basic rules of democracy or which is even aimed at the destruction of democracy and the flouting of the rights and freedoms recognised in a democracy is a more reliable guide. But even there one should be prudent and not overstep the limits set out in other decisions and judgments of the Court. It is difficult to give an exhaustive list of the rules of democracy, apart from the basic ones. It is without doubt correct to say that parties that aim at the destruction of democracy cannot enjoy protection against even such drastic measures as

dissolution. But whether the failure to respect this or that rule of democracy justifies dissolution or whether a less drastic measure is the only appropriate and adequate one is again a question that has to be judged with regard to the principle of proportionality. Furthermore, the last part relating to the flouting of the rights and freedoms recognised in a democracy must be seen in the context of the very basic rights and freedoms. In my view it cannot be interpreted to the effect that any campaign to change rights and freedoms recognised in a democracy amount to a situation where a political party would lose protection. In this respect also all depends on the specific rights and freedoms which a political party aims to change and furthermore what kind of change or modification is envisaged. So the very general sentences of paragraph 98 of the judgment need some further clarification and limitation in the light of the principle of proportionality and in the light of the judgments which are quoted at the end of that paragraph.

I have no doubt that the aims for which the applicant party and its prominent leaders stood and which they advocated rather vigorously are not in conformity with basic rules of democracy and justify the dissolution. The only point I wanted to make is that the Court’s observation in paragraph 98 of the judgment must be read in the light of the other quoted judgments and within the interpretation that was given in these judgments, in particular United Communist Party of Turkey and Others , and not be taken for a general dictum, as its wording might appear to suggest.

CONCURRING OPINION OF JUDGE KOVLER

(Translation)

I concur for the most part in the Court’s ruling that there has been no violation of Article 11 of the Convention in this specific case for the simple reason that some of the applicants’ activities and statements were in contradiction with the principle of secularism, a pillar of Turkish democracy as conceived by Mustafa Kemal Atatürk and enshrined in the Constitution of the Republic of Turkey (particularly Articles 2 and 24 § 4), to which contradiction the State, as the guarantor of constitutional order, was obliged to react, taking account in particular of Articles 9 § 2 and 11 § 2 of the Convention.

What bothers me about some of the Court’s findings is that in places they are unmodulated, especially as regards the extremely sensitive issues raised by religion and its values. I would prefer an international court to avoid terms borrowed from politico-ideological discourse, such as “Islamic fundamentalism” (paragraph 94 of the judgment), “totalitarian movements” (paragraph 99 of the judgment), “threat to the democratic regime” (paragraph 107 of the judgment), etc., whose connotations, in the context of the present case, might be too forceful.

I also regret that the Court, in reproducing the Chamber’s conclusions (paragraph 119 of the judgment), missed the opportunity to analyse in more detail the concept of a plurality of legal systems, which is linked to that of legal pluralism and is well-established in ancient and modern legal theory and practice (see, in particular, the proceedings of the international congresses on customary law and legal pluralism organised by the International Union of Anthropological and Ethnological Sciences, and J. Griffiths: “What is legal pluralism?”, Journal of Legal Pluralism and Unofficial Law , 1986, no. 24). Not only legal anthropology but also modern constitutional law accepts that under certain conditions members of minorities of all kinds may have more than one type of personal status (see, for example, P. Gannagé, “ Le pluralisme des statuts personnels dans les Etats multicommunautaires – Droit libanais et droits proche-orientaux ”, Brussels, Editions Bruylant, 2001). Admittedly, this pluralism, which impinges mainly on an individual’s private and family life, is limited by the requirements of the general interest. But it is of course more difficult in practice to find a compromise between the interests of the communities concerned and civil society as a whole than to reject the very idea of such a compromise from the outset.

This general remark also applies to the assessment to be made of sharia, the legal expression of a religion whose traditions go back more than a thousand years, and which has its fixed points of reference and its excesses, like any other complex system. In any case legal analysis should not caricature polygamy (a form of family organisation which exists in societies other than Islamised peoples) by reducing it to ... “discrimination based on the gender of the parties concerned” (paragraph 128 of the judgment).

Lastly, I find the use of figures derived from opinion polls (paragraph 107 of the judgment), which would be natural in a political analysis, rather strange in a legal text which constitutes res judicata .