JOINT DISSENTING OPINION OF JUDGES FUHRMANN, LOUCAIDES AND Sir Nicolas BRATZA

We regret that we are unable to share the view of the majority of the Court that there has been no violation of the applicants’ rights under Article 11 of the Convention in the present case. In our view the order of the Constitutional Court dissolving Refah, depriving the individual applicants of their membership of the National Assembly and prohibiting them for a period of five years from becoming a founder, member, administrator or auditor of any other political party, amounted to a disproportionate restriction on their freedom of association as guaranteed by that Article.

We note at the outset that, according to the undisputed assertion of the applicants, Refah is the fifteenth political party to have been compulsorily dissolved by the Turkish Constitutional Court in recent times. The present case is also the fourth in a succession of cases before the European Court involving such dissolution, the previous cases being those of the United Communist Party of Turkey and Others (judgment of 30 January 1998, Reports 1998-I), the Socialist Party and Others (judgment of 25 May 1998, Reports 1998-III) and the Freedom and Democracy Party (ÖZDEP) (Judgment of 8 December 1999). It is, in terms of its political significance in Turkey by far the most important of the four cases. The Communist, Socialist, and ÖZDEP Parties were not only relatively small; they were at the time of dissolution in their infancy. In the case of ÖZDEP, the proceedings to dissolve the party were brought within four months of its formation. In the case of the Communist and Socialist Parties, the dissolution proceedings were originally commenced within a fortnight of their formation. By contrast, Refah was founded in 1983 and had been in existence for nearly fourteen years before proceedings were brought to dissolve it. In that period it had, as noted in the judgment, grown to become one of the largest single political Parties in Turkey, with a claimed membership at the time of its dissolution of over 4.3 million people. In the General Election of 1995 Refah received some 22% of the total votes, winning 158 seats in the Assembly, and in the local election of November 1996 it received 35% of the total votes cast. In June 1996, as the party commanding the greatest number of seats in the Assembly, Refah formed a coalition government with the True Path Party under the premiership of its leader, Necmettin Erbakan. At the time of the commencement of the dissolution proceedings in June 1997 Refah remained the governing party in power.

Apart from the size and importance of the applicant party, there are two other major points of distinction between the present case and those which have already been the subject of judgments of the Court.

First, the grounds for dissolution. In the other three cases, the Parties were dissolved primarily on the grounds that the statements in the Constitution or programme of the party or public statements made on behalf of the party served to undermine the integrity and unity of the Republic by drawing a distinction between the Kurdish people and the Turkish people and by providing support for a right of self-determination of the Kurds. It is true that other grounds were also invoked by the Constitutional Court - in the case of the Communist Party, the use of the name “Communist”; and in the case of ÖZDEP, the party’s proposal that religious affairs should be under the control of the religious institutions themselves. But it was what the Constitutional Court perceived to be the aim of undermining the unity and territorial integrity of the State in violation of Articles 2 and 3 of the Constitution and sections 78 and 81 of the Law on Political Parties which was at the heart of its decision to dissolve the party. The case of Refah is quite different. The sole ground for dissolution of the party was that, in terms of section 103 of the Law on Political Parties, it had become a “centre” for activities contrary to the principle of secularism which was guaranteed by Article 2 of the Constitution and in breach of section 78 of that Law.

The second point of distinction is a related one. In the case of the Communist and ÖZDEP Parties the offending statements of the party on which reliance was placed by the Constitutional Court were contained exclusively in the party’s statute and programme. No reliance was placed on any individual statement made by the founders or leaders of the party, whether before or after the party had been formed. The dissolution of the Socialist Party was in this respect somewhat different. The first and unsuccessful attempt to dissolve the party was based exclusively on its political objectives as stated in the party’s programme. However the second and successful application to dissolve the party was based both on extracts from the party’s election publications and on oral statements made by its Chairman, Mr Perinçek , at public meetings and on television.

In the case of Refah, the dissolution of the party was based exclusively on the public statements and/or actions of the leaders and members or former members of the party. No reliance was placed either by the Principal State Counsel in bringing the proceedings or by the Constitutional Court in dissolving the party on the statute or programme of the party itself or on any election manifesto or other public statement issued by the party. In particular neither the State Counsel nor the Court was able to point to any provision of the statute or detailed programme of the party which advocated the creation of a theocratic State or which served to undermine the secular character of the State as embodied in the Constitution: on the contrary, the programme of the party expressly recognised the fundamental nature of the principle of secularism.

Despite these differences, there are we consider principles which can be drawn from the three judgments which are of direct application in the present case and which are not in our view fully brought out in the majority judgment. These principles can be summarised as follows:

(i) Notwithstanding its autonomous role and particular sphere of application, Article 11 must also be considered in the light of Article 10. The protection of opinions and the freedom to express them is one of the objectives of the freedoms of assembly and association as enshrined in Article 11. That applies all the more in relation to political parties in view of their essential role in ensuring pluralism and the proper functioning of democracy. There can be no democracy without pluralism. It is for that reason that freedom of expression as enshrined in Article 10 is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. The fact that their activities form part of a collective exercise of freedom of expression in itself entitles political parties to seek the protection of Articles 10 and 11 of the Convention (Communist Party case, § § 42-43; Socialist Party case, § 41; ÖZDEP case, § 37).

(ii) The State, as the ultimate guarantor of the principle of pluralism, has the obligation in the political sphere to hold, in accordance with Article 3 of Protocol No. 1, free elections at reasonable intervals by secret ballot under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature. Such expression is inconceivable without the participation of a plurality of political parties representing the different shades of opinions to be found within a country’s population. By relaying this range of opinion, not only within the political institutions but also at all levels, political parties make an irreplaceable contribution to political debate, which is at the very core of the concept of a democratic society (Communist Party case, § 44).

(iii) 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. Such scrutiny has been held necessary in a case concerning a Member of Parliament who had been convicted of proffering insults; it is all the more necessary where an entire political party is dissolved and its leaders banned from carrying on any similar activity in the future. Radical measures such as these may only be applied in the most serious cases (Communist Party case, § 46; Socialist Party case, § 50; ÖZDEP case, § 45).

(iv) One of the principal characteristics of democracy is the possibility it offers of resolving a country’s problems through dialogue, without recourse to violence, even when they are irksome. Democracy thrives on freedom of expression. From that point of view, there can be no justification for hindering a political group solely because it seeks to debate in public the situation of part of the State’s population and to take part in the nation’s political life in order to find, according to democratic rules, solutions capable of satisfying everyone concerned. The fact that a political programme is considered incompatible with the current principles and structures of a 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. (Communist Party case, § 57; Socialist Party case, § 45, 47; ÖZDEP case, § 44)

The central question confronting the Court is whether, applying these principles, the dissolution of Refah, and the ancillary orders made in respect of the individual applicants, can be justified as being “necessary in a democratic society” for one or more of the legitimate aims specified in Article 11 § 2 and, more particularly, whether such measures represented a response to a “pressing social need” and were proportionate to the legitimate aim served.

Before addressing this question, we would briefly consider whether the admitted and serious interferences with the applicants’ rights under Article 11 were prescribed by law and pursued a legitimate aim.

As to the former requirement, the applicants initially contended that the dissolution of Refah did not comply with the requirements of sections 101 and 103 of the Law on Political Parties. In particular it was claimed that it had not been shown that the party had been a “centre of activities contrary to the provisions of section 78 of the Law” since it had not been established in accordance with section 103 (2) of the Law that any organ capable of binding the party had been responsible for such activities or that any member of the party had been convicted of violating the provisions of the Law. In their written observations the Government pointed out that section 103 (2) had been declared unconstitutional by the Constitutional Court during the course of the dissolution proceedings and that the dissolution of the party was accordingly consistent both with the Constitution and with the Law. We initially had certain doubts as to whether the requirement of forseeability was satisfied, since section 103 (2) was declared unconstitutional only one week before Refah was dissolved by the Constitutional Court and long after the acts and statements of members of the party which formed the basis of the order dissolving the party. However in their Observations in reply the applicants no longer contested that the dissolution was lawful under domestic law “since this possibility is provided in the Constitution”. In view of the concession now made, we agree with the majority of the Court in finding that the dissolution was “prescribed by law” for the purposes of Article 11 § 2 of the Convention.

As to the legitimacy of the aim of the dissolution, we note that in the earlier political party cases the Court found it established, notwithstanding the applicants’ arguments to the contrary, that the dissolution aimed at the protection of the territorial integrity of Turkey and thereby pursued at least one of the legitimate aims in Article 11, namely the interests of national security. We consider that in the present case it may be said that the dissolution of Refah served the legitimate aim of preserving secularism which lies at the heart of democratic order in Turkey and thus equally pursued the legitimate aims of the interests of national security, as well as of the prevention of disorder and the protection of the rights and freedoms of others.

The applicants argue that the real reason why the party was dissolved was not related to the party’s views on secularism but was rather connected with the economic policies of the party, whose philosophy to reduce the indebtedness of the State was contrary to the interests of major business concerns. We do not consider that there is sufficient evidence to establish that this was the case or to suggest that the reasons for dissolving the party were other than those stated by the Constitutional Court. Accordingly we would agree with the majority of the Court that the dissolution pursued one or more legitimate aims.

On the crucial question of the necessity of the measures taken by the Constitutional Court, we would begin by making a number of preliminary remarks.

In the first place, we can readily accept the Government’s argument as to the vital importance of secularism in Turkish society. As the Government point out, the State went through a long and painful struggle to establish a democratic and secular society and remains the only State with a substantially Islamic population which adheres to the principles of a liberal democracy. The example provided by States governed by fundamentalist Islamic regimes underlines the risk to democracy posed by a departure from the secular ideal.

Secondly, not only was Refah democratically elected in 1995 as the party with the largest number of seats in the Assembly but, as we have noted above, it is common ground that the party was organised on democratic lines and that there was nothing in its statute or programme to demonstrate or even suggest any departure from the principle of secularism or any encouragement to the use of violent or undemocratic means to replace the existing constitutional structure of the Turkish society.

The Government rely, as they did in the Communist and Socialist Party cases, on Article 17 of the Convention and on the Commission’s early decision of 1957 in the case concerning the dissolution of the German Communist Party. The Court in paragraphs 54 and 60 of its judgment in the Communist Party case rejected the argument of the Government. It pointed out that the Turkish Communist Party, despite its name, was wholly different from the German Communist Party of the 1950s, whose express declarations, according to the Commission’s findings, envisaged a period of dictatorship by the proletariat during which rights and freedoms under the Convention would be destroyed. By contrast, the Court found that the Turkish Communist Party satisfied the requirements of democracy, including political pluralism, universal suffrage and freedom to take part in politics. The Court added that there was nothing in the constitution and programme of the party to warrant the conclusion that it relied on the Convention to engage in activities or to perform acts aimed at the destruction of any of the rights and freedoms set forth in it, thus bringing into play Article 17.

In our view the same may be said in the case of Refah. There is nothing in its constitution or programme to indicate that Refah was other than democratic or that it was seeking to achieve its objectives by undemocratic means or that those objectives served to undermine or subvert the democratic and pluralistic political system in Turkey. Admittedly, as the Court pointed out in the Communist Party case (paragraph 58), and as the majority reiterate in the present judgment (paragraph 48), it cannot be ruled out that a party’s political programme may conceal objectives and intentions different from the ones it proclaims.

The Court in the earlier case, went on to observe that, in order to verify whether this was the case, the content of the programme had to be compared with the party’s actions and the positions it defended. The Government in the present case indeed argue that it is a feature of Islamic politics to conceal one’s true intentions and to achieve one’s aims by surreptitious means. It is also contended that Refah showed itself to be actively aggressive against the established order. Whether this has been established to be the case depends on an examination of the evidence relied on by the Constitutional Court to dissolve the party.

Thirdly, where as here the grounds relied on by the Constitutional Court relate not to the programme and activities of the political party itself but rather to actions or statements of individual leaders or members of the party, we consider that particularly convincing and compelling reasons must be shown to justify a decision to dissolve the entire party. This is all the more so where, as in the present case, the acts or statements complained of were not linked in terms of time or place but were isolated events occurring in very different contexts over a period covering some six years and in certain cases long before Refah came to power. Moreover, it is we consider of considerable importance to note that no prosecution was ever brought against the three leading members of the party in respect of any of the acts or statements complained of; nor does it appear that they were subject to any other measures, disciplinary or otherwise. While certain other members of the party were prosecuted for statements made, it is notable that in all but one case the prosecution was launched after the proceedings to dissolve the party had commenced.

The Government argue that the fact that the leaders were not proceeded against is irrelevant. It is pointed out that section 163 of the Law on Political Parties which made it an offence to violate the provisions of the Law was repealed. More importantly, it is argued that the absence of prosecution is irrelevant since the dissolution of the party is to be seen as a genuine alternative to the prosecution of the individual leaders or members.

The Government’s argument has to some extent found favour with the majority of the Court. In paragraph 78 of the judgment it is noted that not only had section 163 been repealed but that Mr Erbakan had made clear the party’s opposition to the provisions of the section in a speech in October 1993. In the view of the majority of the Court, it is not open to the applicants in these circumstances to argue that the party leaders were not prosecuted for anti-secular activities under a provision which had been repealed, when it was those very persons who had supported and defended such repeal.

We are unable to accept these arguments for a number of reasons:

(i) Several of the acts and statements relied on by the Constitutional Court date back to a period before the repeal of section 163 and to a time when the provision remained in full force and effect.

(ii) We find the “estoppel” argument advanced by the majority to be unconvincing and do not consider that the authorities relied on in paragraph 78 of the judgment provide any support for the argument. In its judgments in the Pine Valley and the Kolompar case to which reference is made, the Court was concerned with the very different situation where arguments were being advanced to the European Court which were diametrically contrary to those which had been advanced in the national courts. In the present case, the important point is not whether the applicants publicly supported or opposed the provisions of section 163, but the fact that, despite the strong criticisms made by the Constitutional Court of the statements and actions of the individual applicants, and the decisive importance attached to them in its decision to dissolve the party, no measures were taken by the national authorities against those responsible at the time of the acts and statements complained of, whether under section 163 or otherwise.

(iii) In judging the proportionality of the measures taken to dissolve the entire party on the grounds that it was a centre of anti-secularism, we consider it to be significant that, with the repeal of section 163, the acts and statements which are relied on as evidence of this, are no longer themselves contrary to the law. In this regard we cannot accept that, in terms of Article 11, the use of the blunt instrument of dissolving a party is to be seen as a genuine alternative to the taking of steps against the individual person responsible.

(iv) Finally, in concluding that the dissolution of Refah was a proportionate measure, the majority of the Court lay emphasis in paragraph 82 of the judgment on the fact that following its dissolution only five of its 158 members of the Parliamentary Assembly including the individual applicants, were stripped of their Parliamentary functions and of their role as leaders of their political party, the remaining members of the party continuing to exercise their Parliamentary mandate and to be able to follow their political careers in the normal way.

We are again not convinced by this argument. The difficulty with the argument is that it ignores the fact that it is Refah itself, with its own separate personality in terms of the Convention, which is the principal applicant and it is the party’s rights of association which are primarily at issue. Whatever the effect of the party’s dissolution on its members, the effect on the party itself could not be more serious, its identity being destroyed and its property confiscated.

We agree with the majority of the Court (Judgment, § 68) that an assessment of the necessity of the measures taken must depend on an examination of the grounds relied on for its decision by the Constitutional Court. In our view this involves a close scrutiny of the twelve individual acts and statements on which the majority of the Constitutional Court based its judgment.

In paragraph 73 of the judgment the majority of the Court accept that, considered in isolation, four of the grounds relied on - those concerning the wearing of the Islamic scarf, the rearrangement of the working hours in the public service to accommodate prayers, the visit of the Sevket Kazan to a colleague and fellow member of the party, who was in prison awaiting trial for incitement to religious hatred, and the reception offered by Necmettin Erbakan for the leaders of different Islamic movements - could not be considered an imminent threat to the secular system in Turkey. However, the majority go on to accept as convincing the Government’s argument that these incidents are to be seen as consistent with the avowed aim of Refah to institute a political regime founded on the Sharia . While we agree that, in addition to examining the individual grounds relied on by the Constitutional Court, the judgment of that Court must be viewed as a whole, we would note that each of the grounds (including the four referred to by the majority) was regarded by the Constitutional Court as an important element in its decision to dissolve the party and must accordingly be examined on its individual merits.

The first ground relied on by the Constitutional Court indeed concerned the encouragement that Mr. Erbakan gave to the wearing of the Islamic scarf in public institutions and schools, which was said to have put pressure on those who refused to follow the custom and to have given rise to discrimination. Such wearing of scarves was declared unconstitutional in 1989 but it does not appear that any steps were taken against Mr. Erbakan in respect of any encouragement he might have given. Even if there were evidence that his actions had led to the divisions indicated, it could not in our view possibly justify the dissolution of the whole party. In this regard, the Constitutional Court and the Government draw support from two decisions of the Commission (No. 16278/90, Karaduman v. Turkey; No. 18783/91, Bulut v. Turkey) in which it was held that the application of the rules of secular universities prohibiting the wearing of the Islamic scarf did not violate the freedom of religion of the applicants in those cases. The cases are not in our view directly in point and certainly cannot be used to support the very different proposition that mere encouragement to the wearing of scarves can justify the dissolution of a political party.

The same may, in our view, be said of the charge that, as Prime Minister, Mr. Erbakan entertained at a dinner in his official residence heads of different religious movements, who were known for their anti-secular statements and activities and who wore their symbolic religious robes, thereby displaying his clear public toleration and support for such persons and groups. We note that there is a dispute as to precisely who it was who attended the reception, the applicants asserting that it was officials of the Religious Affairs Organisation and administrators and academics from the school of theology. Whatever the true position, we share the view of the minority of the Constitutional Court that such an official invitation, even if the guests were so robed, could not under any circumstances justify the dissolution of the party.

The charge that Mr. Erbakan had signed a decree in January 1997 rearranging the working hours of public employees to facilitate the observance of Ramadan , thereby revealing anti-secular tendencies, seems to us equally to afford no proper basis for the dissolution of the party. In this regard we note the undisputed submission of the applicants that the decision in question had been agreed to by all Government Ministers, including those who did not belong to Refah, and that similar decisions had been taken since 1981 without it being suggested that they were in any sense objectionable.

Reliance was further placed by the Constitutional Court on four statements made by Mr. Erbakan:

(i) a speech to the National Assembly made in March 1993, in which he referred to the right of those adhering to different religions to choose and live under their own juridical systems;

(ii) a speech to the general assembly of Refah in October 1993, in which he stated that the party would guarantee the right of everyone to live under their preferred juridical system;

(iii) a speech to the Parliamentary group of Refah in April 1994, in which he referred to the party establishing “a just order” and questioned whether the transition to such an order would be peaceful or violent;

(iv) and an interview and speech in May 1996, on the anniversary of the Kanal 7 television channel, in which Mr. Erbakan emphasised the importance of television as an instrument of propaganda in the context of the Holy War (Jihad) to establish a just social order.

As to the first two speeches, the Constitutional Court found that the “ multi -juridical system” (in the sense of a plurality of co -existing legal systems) advocated by Mr. Erbakan would lead to discrimination on grounds of religion and, as such, was contrary to the requirements of the principles of secularity.

The majority of the Court (Judgment § 69) have found that a multi -juridical system such as that proposed would introduce a discrimination between individuals on grounds of their religion, categorising them according to their membership of a particular religious movement, and that such a model of society would not be compatible with the Convention system, imposing as it would on individuals the obligation to obey not the rules laid down by the State but those imposed by the religion concerned.

Unlike the majority, we do not find it necessary to examine the precise nature or effect of the multi -juridical society to which reference was made by Mr. Erbakan, since in our view the statements afford an inadequate basis on which to conclude that these statements posed at the time of the dissolution of Refah a genuine threat to the secular order. In this regard, we note that the statements relied on by the Constitutional Court were extracts from longer addresses made in 1993, well over four years before the decision to dissolve the party and some three years before the party came to power. We can find no evidence in the material before the Court that, once in Government, the party took any steps to introduce a multi -juridical society of the kind indicated in the judgment of the Constitutional Court.

Substantially the same applies in the case of the other two speeches which were also made before Refah came to power. As to the former, while we can accept the view of the majority of the Court that, although ambiguous, terms such as “just order” are to be understood in their context as meaning a State order founded on religious norms, we can again find no evidence to indicate that Refah, once in power, ever sought to implement such a system. As to the latter speech (which we note was only added as a ground for dissolution after the dissolution proceedings had begun), while we can again accept the majority’s view as to the ambiguity of the terminology used in the speech, we are unable to find any evidence to suggest that the party used or encouraged the use of violence or undemocratic means to destroy the secular system or establish the supremacy of an Islamic regime. In this connection it is, we consider, also of some relevance to note that an investigation was instituted following the Kanal 7 speech but that a decision was taken not to prosecute, the prosecutor concluding that the statement did not include any expressions which could create hatred between religions or sects or which otherwise amounted to an offence.

Sevket Kazan was at the material time the Vice-Chairman of Refah and the Minister of Justice. The only complaint against him was that he paid a brief private visit to prison to see Bekir Yildiz, the mayor of Sincan and Vice-Chairman of Refah, who was in detention on remand charged with anti-secular activities. The Constitutional Court observed that, as Minister of Justice, it was Mr. Kazan’s duty to conform to the spirit as well as to the letter of law in his political and administrative activities and that his prison visit conveyed the public message that he and the party approved of the acts with which Mr. Yildiz was charged and that the action of Mr. Kazan was thus contrary to the principle of secularity.

Whether or not such a visit was in the circumstances wise, we are unable to accept that it could be interpreted as support by the party for anti-secular activity; still less can we accept that it amounted to a justifiable ground for dissolving the party, not least when the National Assembly itself declined even to initiate a Parliamentary investigation into the incident.

As to Ahmet Tekdal, complaint was made that, as Vice-Chairman of the party he had made a speech in 1993 - over four years before the dissolution of the party - during a pilgrimage to Saudi Arabia which was televised in Turkey in November 1996 and in which he referred to the need to use all efforts to install a “just order” in Turkey. The Constitutional Court concluded that Mr. Tekdal had thereby foreseen the installation of a regime based on the Sharia and that the speech was thus clearly contrary to secular principles.

As in the case of Mr. Erbakan, we can find no basis for concluding that a speech made long before Refah came to power could justify dissolution of the party itself, the more so since there appears to have been no legal investigation against Mr. Tekdal himself at the relevant time.

The other grounds of dissolution relate to speeches made by four members or former members of Refah, who were at no stage leaders or officials of the party. The first was that of Åževki Yilmaz, who in a public speech in April 1994 called on the population to unleash a Holy War and defended the establishment of the Sharia - statements which, as the Constitutional Court found, were incontestably contrary to the requirements of the principle of secularity. As noted in the judgment of the Constitutional Court, criminal proceedings were instituted against Mr. Yilmaz in relation to one of his speeches. As was further noted, Mr. Yilmaz had been expelled from the party within a month of the commencement of the proceedings to dissolve the party.

The charge against the party, which was upheld by the Constitutional Court was that, notwithstanding that the anti-secular views of Mr. Yilmaz were well known, the party had proposed him as a candidate in the municipal elections and, after his election as mayor of Rize , had assured his election as a Member of the National Assembly, thereby clearly showing that it had adopted his anti-secular activities and speeches. In addition, reliance was placed on the fact that the party had not conducted its own investigation against Mr. Yilmaz before the dissolution proceedings began and had not expressed its disapproval of his speeches, thereby showing that it approved of his views. As to the fact that he had been expelled from the party, this was dismissed by the Constitutional Court as a mere attempt by the party to escape from the dissolution proceedings.

We are not convinced by the argument that, in failing to take measures against Mr. Yilmaz or to disavow the terms of his speech, Refah is to be held to have adopted his views as their own. Moreover, unlike the Constitutional Court and the majority of our Court (Judgment, § 77), we attach some significance to the fact that he was excluded from the party, albeit after the proceedings began. In this regard, we observe that section 101(d) of the Law on Political Parties (which was in effect until section 103(2) of that Law was declared unconstitutional one week before the order for dissolution of the party) expressly contemplated that if an offending member of a party was expelled within thirty days of the commencement of the dissolution proceedings founded on his offence, the proceedings would automatically terminate. More importantly, we cannot in any event find that a speech made by a member of a party in 1994, whether or not disavowed by the party itself, could justify the dissolution of the party some four years later.

The same applies to the two speeches - in 1992 and March 1993 - of Hasan Huseyin Ceylan, which were found by the Constitutional Court to be both discriminatory and to encourage violent action by supporters of the Sharia against those opposing their views. Mr. Ceylan was prosecuted for the statements after the proceedings for the dissolution of the party had commenced. He was also expelled from the party. Nevertheless, the party was held to have shown that they approved of his statements by supporting his candidature for election and by distributing a video recording of the latter speech within the local party organisation.

Although the speeches - and particularly that of March 1993 - were undeniably cast in intemperate terms, we again cannot find that they could justify the dissolution of the party as a whole, several years later.

The speeches of Şükrü Karatepe and Ibrahim Çelik , although more recent in time, fall in our view into the same category. The former, as mayor of Kayseri , in a speech in November 1996 called on the Muslim population to harbour their hatred until there was a change in the regime. Mr. Karatepe was prosecuted and convicted for inciting religious hatred after the dissolution proceedings had begun. Ibrahim Çelik , a Refah Party member of the National Assembly, was found to have stated in the corridors of the Assembly in May 1997 that, if religious schools were closed, blood would flow and that he wished to install the Sharia . As in the case of the other three members of the party, an investigation was opened against him on a number of grounds. Like Mr. Yilmaz and Mr. Ceylan he was expelled from the party. Nevertheless, the Constitutional Court found that the fact that he had been put forward as a candidate by the party in the knowledge of his activities and views showed that Refah approved of them.

As in the case of the other two members of Refah, who were not leaders of the party and who did not act as its official spokesmen, we consider that any infringement of the law fell to be dealt with, as it indeed was, by an investigation against the individuals responsible. What we cannot accept is that the making of such statements, whether or not ultimately resulting in prosecution, could also justify the draconian measure of dissolving the entire party to which they belonged.

The question which the Constitutional Court was required to determine was whether, having regard to the acts and statements of the leaders of Refah and of its members, the party had become a centre of anti-secular activity for the purposes of the Law on Political Parties. Having decided that it had, the dissolution of the party was mandated by the Law and Constitution.

The question before our Court is a different one, namely whether the extreme measure of dissolution (a measure which was alternatively described by the Court in its earlier judgments as “radical” and “drastic”) could be considered as responding to a pressing social need and as a measure which was proportionate to the legitimate aims served.

In answering this question in the affirmative, the majority of the Court have found that the national authorities were entitled to act to prevent the realisation of the political aims which were incompatible with Convention norms before those aims could be put into effect in a manner which compromised civil peace and the democratic system within the country (Judgment, § 80).

We regret that we are unpersuaded by this reasoning. What is in our view lacking is any compelling or convincing evidence to suggest that the party, whether before or after entering Government, took any steps to realise political aims which were incompatible with Convention norms, to destroy or undermine the secular society, to engage in or to encourage acts of violence or religious hatred, or otherwise to pose a threat to the legal and democratic order in Turkey.

In the absence of such evidence, we find that the dissolution of Refah and the confiscation of its property, as well as the ancillary orders made against the individual applicants were in violation of Article 11 of the Convention.

[1] 1. Chapter 4 of Law no. 2820, referred to in section 101, includes in particular section 90(1), which is reproduced above.

[2] 1. Paragraph 2 of section 103, which the Constitutional Court declared unconstitutional on 9 January 1998, prescribed the use of the procedure laid down in section 101 (d) for determination of the question whether a political party had become a centre of activities contrary to the Constitution.