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European Criteria For Party Closure
Prof. ERGUN ÖZBUDUN*
The recent closure cases filed against the Democratic Society
Party (DTP) and the Justice and Development Party (AK Party)
brought the need to examine the European criteria on party
closure to the fore.
Some foreign and domestic circles -- particularly the
representatives of some European institutions -- draw attention
to the criteria adopted by the Venice Commission and the
standards set by the European Court of Human Rights. Above all,
compliance with the international criteria and standards in this
particular field is not at the sole discretion and subjective
appreciation of the Turkish Constitutional Court; it should be
noted that such compliance is an obligation under Turkish
positive law. As might be recalled, Article 90 of the
Constitution was amended in 2004 as follows: "In the case of a
conflict between international agreements in the area of
fundamental rights and freedoms duly put into effect and the
domestic laws due to differences in provisions on the same
matter, the provisions of international agreements shall
prevail." There is no doubt that the European Convention on
Human Rights, signed in Rome in 1950 under the auspices of the
Council of Europe and ratified by Turkey on May 18, 1954, is
such an international agreement. Furthermore, Turkey pledged to
recognize the right to file an individual petition with the
European Human Rights Commission on Jan. 22, 1987, and the
jurisdiction of the European Court of Human Rights and the
binding effect of its decisions on Sept. 25, 1989. To this end,
it becomes apparent that the Turkish judicial institutions and
organs are obliged to consider European court rulings that
interpret the convention provisions before domestic rules and standards.
The European Commission for Democracy through Law (better known
as the Venice Commission) is an advisory organ charged to
forward recommendations for the institutions of the Council of
Europe; the commission was set up via an enlarged agreement
under the auspices of the council in 1990. The commission, upon
the request by one of the council organs (Parliamentary
Assembly, Committee of Ministers and secretary-general) or by
the relevant member state, prepares re****ts on constitutional
matters. The views of the commission where I have been serving
as member since its foundation are not binding; while its
decisions are of advisory nature, there is no doubt that they
are highly regarded in the council circles. The commission has
greatly contributed to the democratization of the former Soviet
republics as well as the Central and Eastern European states in
the aftermath of the collapse of communism. It has made active
contribution to the preparation of their constitutions and
fundamental laws including election laws, bills on political
parties, bills on the establishment and operation of the
constitutional courts. This is exactly the goal of the
commission. Therefore, the Guidelines on Prohibition and
Dissolution of Political Parties and Analogues Measures, Venice
10-11 December 1999, CDL-INF 2000, 1, prepared by the commission
bears great im****tance vis-ŕ-vis our party closure cases.
Party closure a rare incident
A brief review of the European court rulings, the principles of
the Venice Commission and the practices in the European
countries demonstrates that closure of the political parties, as
opposed to the arguments of the representatives of the
Republican People's Party (CHP) and their sup****ters, is not an
ordinary incident; instead, it is considered a rare sanction in
quite extreme and exceptional cases. In many European countries,
there is no prescribed mechanism to impose such a sanction;
countries that have established rules to make party closure
possible resort to this option in exceptional situations. The
number of political parties closed since the end of World War II
in Europe is only three -- two in Germany and one in Spain. The
two parties closed in Germany are the Socialist State Party,
banned in 1952 because it was an extension of the Nazi Party,
and the German Communist Party, closed in 1956. No doubt, both
were seeking to undermine democracy. The political parties that
promoted similar views remained active in the later stages. The
Spanish case is the closure of Basque Batasuna Party in 2001
based on its clear connection with the Basque terrorist organization.
As opposed to this, the Turkish Constitutional Court has closed
down 24 political parties since 1962; six out of these 24 were
closed during the 1961 constitutional era and the remaining
during the period where the 1982 constitution was in effect.
Most of these decisions were based on the constitutional
prohibitions on the protection of the integrity of the state and
the nation and the principle of the secularist state. This
simple comparison alone suffices to demonstrate that standards
in Turkey on party closure are far distant from European norms.
The inconsistency between the criteria held by the Turkish
Constitutional Court in party banning and the rulings and the
criteria implemented in Europe becomes even more visible in the
European court rulings. The court has ruled in all applications
in regards to party closures -- with the exception of the
Welfare Party (RP) case -- in Turkey that Turkey had violated
the European Convention on Human Rights.
Under Guideline 3 of the said re****t by the Venice Commission:
"Prohibition or enforced dissolution of political parties may
only be justified in the case of parties which advocate the use
of violence or use violence as a political means to overthrow
the democratic constitutional order, thereby undermining the
rights and freedoms guaranteed by the constitution. The fact
alone that a party advocates a peaceful change of the
Constitution should not be sufficient for its prohibition or
dissolution." The explanatory re****t annexed to the guidelines
recalls that advocating violence includes "such specific
demonstrations of it such as racism, xenophobia and
intolerance." Therefore, it becomes obvious that these elements
may be considered reasons for party closure only if they are
promotion of violence. The same explanatory re****t underlines:
"If relevant state bodies take a decision to seize the judicial
body on the question of prohibition of a political party they
should have sufficient evidence that there is a real threat to
the constitutional order or citizens' fundamental rights and
freedoms."
Previous rulings
In its rulings with regard to the RP and People's Labor Party
(HEP) cases, the European court made it clear that at least one
out of two fundamental conditions should exist for a legitimate
action to ban a political party. First, the political parties
have to rely on peaceful, legal and democratic means to promote
their agendas and projects; in other words, they are obligated
to stay away from violent means and methods while they operate
in the political landscape. Apparently, this is in parallel with
the criteria of the Venice Commission. Second, the political
project offered by the party should be reconcilable with the
fundamental principles of democracy. Considering these two
criteria, the European court held that closure of the RP was not
in breach of the convention. The court upheld that statements by
some of the RP's leading figures may be considered as call for violence:
"While it is true that [the RP's] leaders did not, in government
do***ents, call for the use of force and violence as a political
weapon, they did not take prompt practical steps to distance
themselves from those members of [the RP] who had publicly
referred with approval to the possibility of using force against
politicians who opposed them. Consequently, Refah's (the RP's)
leaders did not dispel the ambiguity of these statements about
the possibility of having recourse to violent methods in order
to gain power and retain it" (European Court of Human Rights,
Case of Refah Partisi (the Welfare Party) and others v. Turkey, para.
131).
Furthermore, the European court endorsed the closure case on the
grounds that the political project of the new project was
irreconcilable with the fundamental democratic values. In its
relevant ruling, the European court made reference to the
party's proposal on introduction of a legal system based on
multiple law settings and the statements that can be considered
promotion of a Shariah order:
"The Court notes that, when read together, the offending
statements, which contain explicit references to the
introduction of sharia, are difficult to reconcile with the
fundamental principles of democracy, as conceived in the
Convention taken as a whole. It is difficult to declare one's
respect for democracy and human rights while at the same time
sup****ting a regime based on sharia, which clearly diverges from
Convention values, particularly with regard to its criminal law
and criminal procedure, its rules on the legal status of women
and the way it intervenes in all spheres of private and public
life in accordance with religious precepts. ... In the Court's
view, a political party whose actions seem to be aimed at
introducing sharia in a State party to the Convention can hardly
be regarded as an association complying with the democratic
ideal that underlies the whole of the Convention." (Ibid., para. 123).
The European court relied on these same criteria followed in the
RP case in its ruling with regard to the HEP case:
"[A] political party may campaign for a change in the law or the
legal and constitutional structures of the State on two
conditions: firstly, the means used to that end must in every
respect be legal and democratic, and secondly, the change
proposed must itself be compatible with fundamental democratic
principles. It necessarily follows that a political party whose
leaders incite to violence or put forward a policy which does
not comply with one or more of the rules of democracy or which
is aimed at the destruction of democracy and the flouting of the
rights and freedoms recognised in a democracy cannot lay claim
to the Convention's protection against penalties imposed on
those grounds." (Yazar, Karataţ, Aksoy and the People's Labour
Party (HEP) v. Turkey, 22723/93, European court 408, April 9, 2002, para.
49).
The European norms on party closure are pretty clear and
apparent. The justifications for party closure and banning are
limited to use of violence and reliance on violent means,
promotion of violence and seeking to undermine fundamental
democratic principles. Compliance with these criteria by the
Turkish Constitutional Court is an obligation under last
paragraph of Article 90 of the Turkish Constitution which was
briefly examined above; that is to say, it is not solely
required by the international obligations of Turkey under
international conventions and agreements and its member****p in
the Council of Europe. The Constitutional Court has never ruled
for closure of a political party since 2004 when the above
amendment was made to the constitution. Whether the court will
consider these international criteria vis-ŕ-vis the current party
closure cases will be a great test for the Constitutional Court.
* Professor Ergun Özbudun is an instructor at Bilkent University.
04 May 2008
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