Claimed Terrorist Links
Herri Batasuna and Batasuna v. Spain 2009 Having previously been established as an electoral coalition Herri Batasuna was registered as a political party in 1986 and Batasuna sought registration as a political party in 2001. In 2003, the Spanish Supreme Court declared both parties illegal, ordered their dissolution and liquidated their assets. It referred to the 2002 law on political parties, finding that the parties were part of “a terrorist strategy of ‘tactical separation’” and that there were significant similarities between them and the terrorist organisation ETA.
The Court found no violation of Article 11 of the Convention. It held in particular that the Spanish courts, after a detailed study of the evidence before them, had arrived at the reasonable conclusion that there was a link between the applicant parties and ETA. In view of the situation that had existed in Spain for many years with regard to terrorist attacks, those links could objectively be considered as a threat for democracy.
HADEP and Demir v. Turkey 2010 The People’s Democracy Party, “HADEP”, a smaller opposition party, had been established in May 1994. According to its programme, it advocated “a democratic solution to the Kurdish problem”. HADEP was dissolved in 2003 by a decision of the Turkish Constitutional Court, finding that the party had become a centre of illegal activities, which included aiding and abetting the illegal Workers Party of Kurdistan (PKK). The Constitutional Court further banned a number of HADEP’s party members from becoming founders or members of any other political party for five years.
The Court found a violation of Article 11 of the Convention. It held that certain statements made by party members – calling the actions of the Turkish security forces in south-east Turkey in their fight against terrorism a “dirty war” – to which the Turkish court had referred when concluding that HADEP was guilty of aiding and abetting the PKK, were a sharp criticism of the Government’s policy but did not encourage violence armed resistance or insurrection. Those statements could therefore not in themselves constitute sufficient evidence to equate the party with armed groups carrying out acts of violence. The European Court further found, in particular, that statements by HADEP members which considered the Kurdish nation as distinct from the Turkish nation had to be read together with the party’s aims as set out in its programme, namely that it had been established to solve the country’s problems in a democratic manner. Even if HADEP advocated the right to self-determination of the Kurds, that would not in itself be contrary to democratic principles and could not be equated to supporting acts of terrorism.
Turkey Kurdish Issues
United Communist Party of Turkey and Others v. Turkey 1998 The United Communist Party of Turkey (“the TBKP”) was formed in June 1990. It was dissolved by an order of the Constitutional Court in July 1991 on the grounds that it had incorporated the word “communist” into its name, which was against Turkish law, and, in particular, that it had encouraged separatism and the division of the Turkish nation.
The Court found a violation of Article 11 of the Convention. It considered that a political party’s choice of name could not in principle justify a measure as drastic as dissolution, in the absence of other relevant and sufficient circumstances. In the absence of any concrete evidence to show that in choosing to call itself “communist”, the TBKP had opted for a policy that represented a real threat to Turkish society or the Turkish State, the Court could not accept that the submission based on the party’s name might, by itself, entail the party’s dissolution. The Court noted that although the TBKP referred in its programme to the Kurdish “people” and “nation” and Kurdish “citizens”, it neither described them as a “minority” nor make any claim – other than for recognition of their existence – for them to enjoy special treatment or rights, still less a right to secede from the rest of the Turkish population.
The Court underlined that one of the principal characteristics of democracy was the possibility it offered of resolving a country’s problems through dialogue. There could thus be no justification for hindering a political group solely because it sought 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.
Freedom and Democracy Party (ÖZDEP) v. Turkey 1999 (Grand Chamber) The Freedom and Democracy Party (ÖZDEP) was founded in October 1992. In July 1993, the Turkish Constitutional Court made an order dissolving ÖZDEP. While the proceedings concerning the party’s dissolution – brought on the grounds that its programme sought to undermine the territorial integrity and secular nature of the State and the unity of the nation – were still pending, the founding members of the party resolved to dissolve it in order to protect themselves and the party leaders from the consequences of a dissolution order – namely a ban on their carrying on similar activities in other political parties.
The Court found a violation of Article 11 of the Convention. It had not found anything in ÖZDEP’s programme that could be considered a call for the use of violence, an uprising or any other form of rejection of democratic principles. On the contrary, the need to abide by democratic rules when implementing the proposed political project was stressed in the programme. In its programme ÖZDEP also referred to the right to self- determination of the “national or religious minorities”. However, taken in context, those words did not encourage separation from Turkey but were intended instead to emphasise that the proposed political project must be underpinned by the freely given, democratically expressed, consent of the Kurds.
In the Court’s view, the fact that such a political project was considered incompatible with the current principles and structures of the Turkish State did not mean that it infringed democratic rules. It was of the essence of democracy to allow diverse political projects to be proposed and debated, even those that called into question the way a State was currently organised, provided that they did not seek to harm democracy itself.
Refah Partisi (The Welfare Party) and Others v. Turkey
13 February 2003 (Grand Chamber)
Refah Partisi (the Welfare Party – “Refah”) was founded in July 1983. It was dissolved in January 1998 by a judgment of the Turkish Constitutional Court on the ground that it had become a “centre of activities against the principle of secularism”. The Turkish Constitutional Court also declared that Refah’s assets were to be transferred to the Treasury. The Constitutional Court further held that the public declarations of Refah’s leaders had been unconstitutional. Consequently, it banned them from sitting in Parliament or holding certain political posts for five years.
The Court found no violation of Article 11 of the Convention. It considered that the acts and speeches of Refah’s members and leaders cited by the Turkish Constitutional Court had been imputable to the whole of the party, that those acts and speeches had revealed Refah’s long-term policy of setting up a regime based on sharia within the framework of a plurality of legal systems and that Refah had not excluded recourse to force in order to implement its policy. Given that those plans were incompatible with the concept of a “democratic society” and that the real opportunities Refah had had to put them into practice had made the danger to democracy tangible and immediate, the decision of the Constitutional Court, even in the context of the restricted margin of appreciation left to it, might reasonably be considered to have met a “pressing social need”.
Republican Party of Russia v. Russia The applicant party was created in 1990 by the consolidation of the Democratic Wing of the USSR Communist Party and its subsequent secession from that party. In August 2002, it was registered as a party by the Ministry of Justice of the Russian Federation. Before the Court, the applicant party complained that in 2006 the Ministry of Justice refused to amend information about it contained in the State register of legal entities, which had allegedly disrupted its activities, and that it was dissolved in 2007 for failure to comply with the requirements of minimum membership and regional representation.
The Court held that there had been a violation of Article 11 of the Convention on account both of the authorities’ refusal to amend information about the applicant party in the State register and of the party’s dissolution. With regard to the latter, it found that the Russian courts had not adduced relevant and sufficient reasons to justify the interference with the applicant party’s right to freedom of association and the party’s dissolution for failure to comply with the requirements of minimum membership and regional representation had been disproportionate to the legitimate aims cited by the Russian Government.
In particular, in the Court’s view, there would be means of protecting Russia’s laws, institutions and national security other than a sweeping ban on the establishment of regional parties. Moreover, the applicant party, which had existed and participated in elections since 1990, had never advocated regional interests or separatist views, indeed one of its aims had been promotion of the country’s unity.
Partidul Comunistilor (Nepeceristi) and Ungureanu v. Romania 2005 Partidul Comunistilor (Nepeceristi), a party of Communists who had not been members of the Romanian Communist Party, “the PCN”, had been founded in March 1996. Its registration as a party was refused by the Romanian courts in a decision upheld in August 1996 on the grounds that the PCN was seeking to gain political power in order to establish a “humane State” founded on communist doctrine, meaning that it considered the constitutional and legal order that had been in place since 1989 as inhumane and not based on genuine democracy.
The Court found a violation of Article 11 of the Convention. Having examined the PCN’s constitution and political programme – on the sole basis of which the Romanian courts had rejected the application for the party’s registration – it noted that they stressed the importance of upholding the national sovereignty, territorial integrity and legal and constitutional order of the country, and democratic principles including political pluralism, universal suffrage and freedom to participate in politics.
They did not contain any passages that might be considered a call for the use of violence, an uprising or any other form of rejection of democratic principles. It was true that there were passages criticising both the abuses of the former Communist Party before 1989, from which the PCN distanced itself, and the policy that had been followed subsequently. However, the Court considered that there could be no justification for hindering a political group that complied with the fundamental principles of democracy solely because it had criticised the constitutional and legal order of the country and had sought a public debate in the political arena. Romania’s experience of totalitarian communism prior to 1989 could not by itself justify the need for the interference with the party’s freedom of association.
Racist / Naz1 Association
Vona v. Hungary The applicant was the chair of the Hungarian Guard Association, founded in 2007 by members of a political party called Movement for a Better Hungary with the stated aim of preserving Hungarian traditions and culture. The association was dissolved on account of rallies and demonstrations throughout Hungary organised by the movement, including in villages with large Roma populations, calling for the defence of ethnic Hungarians against so-called Gipsy criminality.
The Court found no violation of Article 11 of the Convention. The State was entitled to take preventive measures to protect democracy against associations if a sufficiently imminent threat to the rights of others undermined the fundamental values upon which a democratic society rested. The movement created by the Hungarian Guard Association had led to demonstrations conveying a message of racial division, which, reminiscent of the Hungarian Nazi Movement (Arrow Cross), had had an intimidating effect on the Roma minority. Such paramilitary marches had gone beyond the mere expression of a disturbing or offensive idea, which was protected under the Convention, given the physical presence of a threatening group of organised activists.
Registration of Political Parties
Yordanovi v. Bulgaria In 2008 the applicants, two brothers, who were businessmen and belonged to the Turkish-Muslim minority, set up and registered an association for the integration of the Turkish speaking population in Bulgaria. They complained about the subsequent criminal proceedings brought against them for attempting to set up a political party “on a religious basis”.
The Court held that there had been a violation of Article 11 of the Convention, finding that the criminal proceedings against the applicants for attempting to set up a political party on a religious basis had not been necessary in a democratic society. It emphasised in particular that a criminal conviction represented one of the most serious forms of interference with the right to freedom of association, one of whose objectives was the protection of opinions and the freedom to express them, especially where political parties were concerned…… There was also a possibility for the authorities to dissolve a party which had been declared unconstitutional by the Constitutional Court. The Court therefore saw no reason why, in the circumstances of the case, criminal proceedings for attempting to set up a political party, which resulted in the applicants’ conviction and sentence, thus representing a particularly severe response on the part of the authorities, had been necessary in addition to those other possibilities.
The Committee for the organisation and for the registration of the Romanian Communist Party v. Romania case concerned the denial of the application for registration on the list of political parties of the Romanian Communist Party (RCP). The domestic authorities had taken the view that the RCP’s programme and constitution contained vague and general terms, disregarding the social and political evolution of the country since 1989, that they allowed for totalitarian and extremist actions capable of harming national security, that they represented a danger for democratic values and that the party had not dissociated itself from the former Romanian Communist Party (former RCP).The Court declared the application inadmissible, as being manifestly ill-founded, finding that the denial of the applicant’s registration had been “necessary in a democratic society” within the meaning of Article 11 of the Convention. ….The authorities had wished to prevent a political formation which had seriously abused its position over a long period, by creating a totalitarian regime, from misusing its rights in the future, and thereby to avoid any danger to national security or to the foundations of a democratic society.
Financing of political parties
Political Parties’ Expenditure
Cumhuriyet Halk Partisi v. Turkey 2016 e concerned the confiscation of a substantial part of the assets of Turkey’s main opposition party, Cumhuriyet Halk Partisi, by the Constitutional Court following an inspection of its accounts for the years 2007 to 2009..
The Court held that there had been a violation of Article 11 of the Convention, finding that the high standard of foreseeability required as regards laws that govern the inspection of the finances of political parties had not been satisfied in the applicant party’s case.. In the applicant party’s case, the scope of the notion of unlawful expenditure under the relevant legal provisions in force at the time as well as the applicable sanctions for unlawful expenditure had, however, been ambiguous.
Freedom to Express
Associazione Politica Nazionale Lista Marco Pannella et Radicali Italiani v. Italy The first applicant, a political association, complained that the three television channels of the State broadcaster RAI had discontinued a type of programme devoted to political debate, known as “political platforms”. In the first applicant’s case, the Court held that there had been no violation of Article 10 (freedom of expression) of the Convention, finding that the discontinuation of the “political platforms” had not deprived the applicant association of the possibility of imparting its opinions, and could thus not be regarded as a disproportionate interference with its right to freedom of expression. The Court held, however, that there had been a violation of Article 13 (right to an
Holding of Congresses
Yeşiller ve Sol Gelecek Partisi v. Turkey concerned the National Electoral Commission’s refusal to allow the applicant party (“Greens and the Left Party of the Future”) to hold local party conferences in the cities of Ankara, Antalya and Artvin, in 2013, on the grounds that it did not have branches in at least one third of the municipalities of those cities. The Court held that there had been no violation of Article 11 of the Convention, finding that the reasons given by the National Electoral Commission had been relevant and sufficient, and that the interference with the applicant party’s right to freedom of association had been proportionate to the legitimate aim pursued in a democratic society. It noted, in particular, that the reasons put forward in the impugned decisions, as well as those of the legislature, had not prevented the applicant party from exercising its right to the freedom to pursue associative activities, in its capacity as a political party.
Dismissal of Member
Redfearn v UK was concerned with the dismissal of a member of the British National Party (whose membership was limited to white British nationals at the time) who was a councillor from a company which was a contractor for the local authority. The BNP advocated anti-immigration positions which were controversial. There was no criticism of the person in their employment, but the public bus company carried many Asians.
The person the applicant did not qualify for unfair dismissal. The court held there was a breach of the Convention’s obligations. The applicant’s political beliefs did affect his competence. Dissenting judges in European Court held that the UK was within its margin of discretion in having the exception to unfair dismissal legislation.