Party prohibition cases: different approaches by the Turkish constitutional court and the European Court of Human Rights

Abstract

The article deals with the different approaches followed by the Turkish Constitutional Court and the European Court of Human Rights (ECtHR) in party prohibition cases. The Turkish Constitution and even more so the Law on Political Parties contain a long list of party bans, the violation of which leads to the closure of the party by the Constitutional Court. The Turkish Constitutional Court, both under the 1961 and the 1982 Constitutions, interpreted these provisions in an exceedingly illiberal manner, and has so far closed down a total of 24 political parties. Turkish rules and practices concerning the prohibition of political parties are among the most important ‘democracy deficits’ of the Turkish political system. In the article, the Turkish Court's illiberal approach to party prohibition cases, especially those involving the protection of the national and territorial integrity of the state and of the principle of secularism, is compared with the much more liberal criteria developed by the ECtHR and the Venice Commission.

Keywords:

• Turkey
• party
• constitutional court
• military
• human rights

Notes

Arslan, ‘Conflicting Paradigms, 11.

Arslan, ‘Reluctantly Sailing Towards Political Liberalism’, 223; along similar lines, Özbudun, ‘Turkey: Plural Society and Monolithic State’. For an analysis of Turkish politics on the basis of the conflict between the state elites and the political elites, Heper, The State Tradition in Turkey. The exceptionality of the Turkish case has attracted a great deal of attention by constitutional law scholars and political analysts. See, for example, Can, Demokratikleşme Serüveninde Anayasa ve Siyasi Partilerin Kapatılması; Koçak and Örücü, ‘Dissolution of Political Parties in the Name of Democracy’; Kogacioglu, ‘Dissolution of Political Parties by the Constitutional Court in Turkey’.

http://www.anayasa.gen.tr/english.htm

Öden, Türk Anayasa Hukukunda Siyasi Partilerin Anayasaya Aykırı Eylemleri Nedeniyle Kapatılmaları, 54–8.

Özbudun, ‘Siyasal Partiler ve Demokrasi’, 22; also, Erdem, ‘Türk Anayasa Mahkemesi’, 255–6, 262–3.

Constitutional Court Decision, E. 1993/3, K. 1994/2, 16 June 1994, Anayasa Mahkemesi Kararlar Dergisi (AMKD) [Constitutional Court Reports] 2, no. 30: 1201, 1199.

Indeed, in a publication of the Socialist Party, the Kurds’ unconditional right to self-determination and their rights to secede are openly acknowledged. If the Kurds decide to remain within the Republic of Turkey through a free referendum, however, the party's proposed solution is a federal system based on the equality of the Turkish and Kurdish states (Constitutional Court decision, E. 1991/2, K. 1992/1, 10 July 1992, AMKD 2, no. 28: 696–831, especially 701, 804–5).

European Court of Human Rights, Case of the Socialist Party and Others v. Turkey (20/1997/804) 1007, 25 May 1998, paras. 46, 47.

Özbudun, ‘Siyasal Partiler ve Demokrasi’, 23; Erdem, ‘Türk Anayasa Mahkemesi’, 256–8.

Tanör, Türkiye'de Demokratikleşme Perspektifleri, 44–5.

Constitutional Court decision, (Constitutional Court decision, E. 1991/2, K. 1992/1, 10 July 1992, AMKD 2, no. 28 (capital letters in the original). Same views were also expressed in the Court's decision on the Freedom and Democracy Party (ÖZDEP), Constitutional Court decision, E. 1993/1, K. 1993/2, 23 November 1993, AMKD 2 no. 30 (1993): 912–13.

Çavuşoğlu, Uluslararası İnsan Hakları Hukukunda Azınlık Hakları, 35–9.

Erdem, ‘Türk Anayasa Mahkemesi’, 267; also, Özdek, ‘Halkın Emek Partisi'nin Kapatılmasına’, 200–2.

European Court of Human Rights, Case of Freedom and Democracy Party (ÖZDEP) v. Turkey (23885/94) (1999), ECHR 139 (8 December 1999), paras. 40, 41, 44.

Ibid., para. 41.

Constitutional Court decision, E. 1997/1, K. 1998/1, 16 January 1998, AMKD 2, no. 34: 762–1145.

European Court of Human Rights, Case of Refah Partisi (Welfare Party) and others v. Turkey. Applications nos. 41340/98, 41342/98, 41343/98 and 41344/98.

Ibid., paras. 98, 99.

Ibid., para. 104.

Ibid.

Ibid., paras. 110–16.

Ibid., para. 119.

Ibid., para. 123.

Ibid., para. 131.

For a critical analysis of this decision, see Erdoğan, Anayasa ve Özgürlük, 161–75. Erdoğan characterizes the ECtHR's ruling on the WP as a return to the notion of ‘militant democracy’. On the other hand, the ECtHR maintained the same reasoning in its ruling on the People's Labour Party (HEP): Yazar, Karataş, Aksoy and the People's Labour Party (HEP) v. Turkey, 22723/93, ECHR 408, 9 April 2002, para. 49.

Venice Commission, Guidelines on Prohibition and Dissolution of Political Parties and Analogous Measures, 1.

European Court of Human Rights, Case of United Communist Party of Turkey and others v. Turkey (133/1996/752/951), 30 January 1998, paras. 54, 61.

European Court of Human Rights, Case of Refah Partisi (Welfare Party) and others v. Turkey (see note 16 above), para. 102.

Kaboğlu, ‘İfade Özgürlüğünün Siyasi Partilerce Kullanımının Sınırları’, 89.

Arslan, ‘Conflicting Paradigms’, 11.

Erdem, ‘Türk Anayasa Mahkemesi’, 288.

Constitutional Court decision, E. 1999/2, K. 2001/2, 22 June 2001, AMKD 2, no. 37: 922–1522.

On the constitutional amendments of 2001 and 2004, see Özbudun and Yazıcı, Democratization Reforms in Turkey.

Constitutional Court decision, E. 2002/1, K. 2008/1, 29 January 2008, Resmî Gazete (Official Gazette), 1 July 2008, no. 26923.

Constitutional Court decision, E. 2008/1, K. 2008/2, 30 July 2008, Resmî Gazete (Official Gazette), 24 October 2008, no. 27034. For a more detailed critique of the Constitutional Court's decision, see Özbudun, ‘Anayasa Mahkemesi'nin Kırmızı Çizgileri’.

Constitutional Court decision, E. 2003/6, K. 2008/4, 8 January 2008, Resmî Gazete (Official Gazette), 22 March 2008, no. 26824.

Venice Commission, Opinion on the Constitutional and Legal Provisions, paras. 30, 107.

Ibid., para. 108.

Ibid., paras. 111, 112.

Ibid., paras. 85, 86.

For details on the constitutional crisis of 2007–2008, see Özbudun and Faruk Gençkaya, 97–111.

Prime Minister Erdoğan, in a TV interview on 8 June 2009, stated that he did not want ‘to relive the fate of the 411 incident’ (referring to the number of votes in favour of the headscarf amendment) and that ‘they would not occupy the public opinion unless there is a consensus’ (on the amendment package). See Zaman (Istanbul daily), 10 June 2009.