Dissolution or prohibition of political parties or associations
ii. relevant domestic law The Constitution 16. The relevant provisions of the Constitution read as follows: Article 2 “The Republic of Turkey is a democratic, secular and social State based on the rule of law, respectful of human rights in a spirit of social peace, national solidarity and justice, adhering to the nationalism of Atatürk and resting on the fundamental principles set out in the Preamble.” Article 3 § 1 “The State of Turkey shall constitute with its territory and nation, an indivisible whole. The official language shall be Turkish.” Article 4 “No amendment may be made or proposed to the provisions of Article 1 of the Constitution providing that the State shall be a Republic, the provisions of Article 2 concerning the characteristics of the Republic or the provisions of Article 3.” Article 6 “Sovereignty shall reside unconditionally and unreservedly in the nation. ... Sovereign power shall not under any circumstances be transferred to an individual, a group or a social class...” Article 10 § 1 “All individuals shall be equal before the law without any distinction based on language, race, colour, sex, political opinion, philosophical belief, religion, membership of a religious sect or other similar grounds.” Article 14 § 1 “None of the rights and freedoms referred to in the Constitution shall be exercised with a view to undermining the territorial integrity of the State and the unity of the nation, jeopardising the existence of the Turkish State or Republic, abolishing fundamental rights and freedoms, placing the control of the State in the hands of a single individual or group, ensuring the domination of one social class over other social classes, introducing discrimination on the grounds of language, race, religion or membership of a religious sect, or establishing by any other means a political system based on any of the above concepts and opinions.” Article 66 § 1 “Everyone linked to the Turkish State by nationality shall be Turkish.” (Former) Article 68 “... No political party shall be formed which aims to advocate or establish the domination of one social class or group, or any form of dictatorship...” (Former) Article 69 “Political parties shall not engage in activities other than those referred to in their constitutions and programmes, nor shall they disregard the restrictions laid down by Article 14 of the Constitution, on pain of permanent dissolution. ... The decisions and internal running of political parties shall not be contrary to democratic principles. ... Immediately a political party is formed, Principal State Counsel shall verify as a matter of priority that its constitution and programme and the legal position of its founding members are consistent with the Constitution and the laws of the land. He shall also monitor its activities. Political parties may be dissolved by the Constitutional Court, on an application by Principal State Counsel. Founding members and managers, at whatever level, of political parties which have been permanently dissolved may not become founding members, managers or financial controllers of any new political party...” B. Law no. 2820 on the regulation of political parties 17. The relevant provisions of Law no. 2820 on the regulation of political parties read as follows: Section 78 “Political parties (a) shall not aim, strive or incite third parties to change the republican form of the Turkish State; the ... provisions concerning the absolute integrity of the Turkish State's territory, the absolute unity of its nation, its official language, its flag or its national anthem; ... the principle that sovereignty resides unconditionally and unreservedly in the Turkish nation; ... the provision that sovereign power cannot be transferred to an individual, a group or a social class...; jeopardise the existence of the Turkish State and Republic, abolish fundamental rights and freedoms, introduce discrimination on grounds of language, race, colour, religion or membership of a religious sect, or establish, by any means, a system of government based on any such notion or concept. ... (c) shall not aim to defend or establish the domination of one social class over the other social classes or the domination of a community or the setting up of any form of dictatorship; they shall not carry on activities in pursuit of such aims...” Section 80 “Political parties shall not aim to change the principle of the unitary State on which the Turkish Republic is founded, nor carry on activities in pursuit of such an aim.” Section 81 “Political parties shall not (a) assert that there exist within the territory of the Turkish Republic any national minorities based on differences relating to national or religious culture, membership of a religious sect, race or language; or (b) aim to destroy national unity by proposing, on the pretext of protecting, promoting or disseminating a non-Turkish language or culture, to create minorities on the territory of the Turkish Republic or to engage in similar activities...” Section 90(1) “The constitution, programme and activities of political parties may not contravene the Constitution or this Law.” Section 101 “The Constitutional Court shall dissolve a political party whose (a) constitution or programme ... is contrary to the provisions of Chapter 4 of this Law; (b) membership, central committee or executive committee ... take a decision, issue a circular or make a statement ... contrary to the provisions of Chapter 4 of this Law ..., or whose Chairman, Vice-Chairman or General Secretary makes any written or oral statement contrary to those provisions... (c) representative appointed ... by the administrative committee ..., makes oral statements on radio or television that are contrary to the provisions ... of this Law...” Section 107(1) “All the assets of political parties dissolved by order of the Constitutional Court shall be transferred to the Treasury.” Chapter 4 of the Law, which is referred to in section 101, includes in particular section 90(1), which is reproduced above. C. The Criminal Code 18. At the material time Article 142 of the Criminal Code provided: “Harmful propaganda 1. A person who by any means whatsoever spreads propaganda with a view to establishing the domination of one social class over the others, annihilating a social class, overturning the fundamental social or economic order established in Turkey or destroying the entire political or judicial order of the State shall, on conviction, be liable to a term of imprisonment of between five and ten years. 2. A person who by any means whatsoever spreads propaganda in favour of the State's being governed by an individual or social group to the detriment of republicanism or democratic principles shall, on conviction, be liable to a term of imprisonment of between five and ten years. 3. Any person who by any means whatsoever spreads propaganda inspired by racist theories aimed at abolishing in whole or in part public-law rights as guaranteed by the Constitution or undermining or eliminating patriotic sentiment shall, on conviction, be liable to a term of imprisonment of between five and ten years. ...” PROCEEDINGS BEFORE THE COMMISSION 19. The applicants applied to the Commission on 31 December 1992. They maintained that the dissolution of the SP by the Constitutional Court had infringed: (i) Article 6 §§ 1 and 2 and Articles 9, 10, and 11 of the Convention, taken individually and together with Articles 14 and (in the case of Articles 9, 10 and 11) 18 of the Convention; (ii) Articles 1 and 3 of Protocol No. 1. 20. On 6 December 1994 the Commission declared the complaint under Article 6 § 2 of the Convention inadmissible and the remainder of the application (no. 21237/93) admissible. 21. In its report of 26 November 1996 (Article 31), it expressed the unanimous opinion that there had been a violation of Article 11 of the Convention but no violation of Article 6 § 1, that no separate issue arose under Articles 9 and 10 and that it was unnecessary to consider separately the complaints under Articles 14 and 18 of the Convention and Articles 1 and 3 of Protocol No. 1. The full text of the Commission's opinion is reproduced as an annex to this judgment [7]. FINAL SUBMISSIONS TO THE COURT 22. In their memorial, the Government “... asked the Court to declare that there had been no violation of Articles 6, 9, 10, 11, 14 or 18 of the Convention or of Articles 1 or 3 of Protocol No. 1”. 23. The applicants asked the Court to hold that there had been a breach of the rights guaranteed by the aforementioned provisions of the Convention and Protocol No. 1. AS TO THE LAW ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 24. The applicants maintained that the fact that the Socialist Party (“the SP”) had been dissolved and its leaders banned from holding similar office in any other political party had infringed their right to freedom of association, as guaranteed by Article 11 of the Convention, which provides: “1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.” Applicability of Article 11 1. Submissions of those appearing before the Court (a) The applicants 25. The applicants maintained that there was no doubt that political parties came within the ambit of Article 11. (b) The Government 26. In their memorial the Government submitted that Article 11 did not in any event apply to political parties. Where in its constitution or programme a party attacked a State's constitutional order, the Court should declare the Convention to be inapplicable ratione materiae or apply Article 17. 27. The SP had intended through its activities unambiguously to break with Turkey's fundamental constitutional principles. It was apparent from what the SP said that the party considered that citizens of Kurdish origin had “nation” and “people” status and the right to “found a separate State”, that it advocated the setting up of a federation, without moreover excluding the creation of other federated bodies entitled to open consulates in other countries. As that amounted to challenging the very basis of the State, the Constitutional Court had had to review the constitutionality of that political aim. In so doing, it had followed the line taken by the German Constitutional Court in its judgment of 31 October 1991 on the right of foreign nationals to vote in local elections and by the French Constitutional Council in its decision of 9 May 1991 on the status of Corsica. In the Government's submission, the States Parties to the Convention had at no stage intended to submit their constitutional institutions, and in particular the principles they considered to be the essential conditions of their existence, to review by the Strasbourg institutions. For that reason, where a political party such as the SP had called those institutions or principles into question, it could not seek application of the Convention or its Protocols, since it was not the SP's freedom of association that was in issue in the present case, but the right to self-determination, which did not come within the compass of the Convention. At the very least, Article 17 of the Convention should be applied in respect of the SP since the party sought to justify the use of violence and to promote hatred of the Turkish State and the wrongful division of an entire people into two opposing camps. In so doing, the SP had said the same things as the Workers' Party of Kurdistan (“the PKK”), without distancing itself from any of the latter's methods. Moreover, the Constitutional Court had, in its judgment ordering the dissolution of the SP, recognised that Article 17 was relevant in the case of the SP and concluded that the party's activities were covered by that provision. (c) The Commission 28. The Commission expressed the opinion that there was nothing in the wording of Article 11 to limit its scope to a particular form of association or group or to suggest that it did not apply to political parties. On the contrary, if Article 11 was considered to be a legal safeguard that ensured the proper functioning of democracy, political parties were one of the most important forms of association it protected. In that connection, the Commission referred to a number of decisions in which it had examined, under Article 11, various restrictions on the activities of political parties and even the dissolution of such parties, thereby implicitly accepting that Article 11 applied to that type of association (see the German Communist Party case, application no. 250/57, Yearbook 1, p. 225; the Greek case, Yearbook 12, p. 170, § 392; the France, Norway, Denmark, Sweden and the Netherlands v. Turkey case, applications nos. 9940–9944/82, Decisions and Reports 35, p. 143). At the hearing before the Court the Delegate of the Commission also said that it was unnecessary to apply Article 17 of the Convention, since neither the SP's programme nor the statements made by Mr Perinçek that were in issue indicated that they had sought to destroy the rights and freedoms protected by the Convention. 2. The Court's assessment 29. In its judgment in the case of United Communist Party of Turkey and Others v. Turkey, the Court held that political parties are a form of association essential to the proper functioning of democracy and that in view of the importance of democracy in the Convention system, there can be no doubt that political parties come within the scope of Article 11. The Court noted on the other hand that an association, including a political party, is not excluded from the protection afforded by the Convention simply because its activities are regarded by the national authorities as undermining the constitutional structures of the State and calling for the imposition of restrictions (see the United Communist Party of Turkey and Others v. Turkey judgment of 30 January 1998, Reports of Judgments and Decisions 1998-I, p. 17, §§ 25 and 27). The Court sees no reason to come to a different conclusion in the instant case. As to the application of Article 17, the Court will deal with it after considering the question of compliance with Article 11 (see paragraph 53 below). B. Compliance with Article 11 Whether there was an interference 30. All those appearing before the Court acknowledged that the SP's dissolution amounted to an interference in the three applicants' right to freedom of association. That is also the Court's view. 2. Whether the interference was justified 31. Such an interference will constitute a breach of Article 11 unless it was “prescribed by law”, pursued one or more legitimate aims under paragraph 2 and was “necessary in a democratic society” for the achievement of those aims. (a) “Prescribed by law” 32. It was common ground that the interference was “prescribed by law”, as the measures ordered by the Constitutional Court were based on Articles 2, 3 § 1, 6, 10 § 1 and 14 § 1 and former Article 68 of the Constitution and sections 78, 81 and 96(3) of Law no. 2820 on the regulation of political parties (see paragraphs 16–17 above). (b) Legitimate aim 33. The Government maintained that the interference pursued a number of legitimate aims: ensuring national security, public safety and territorial integrity and protecting the rights and freedoms of others. If the Court had accepted, as it had done in the Hadjianastassiou v. Greece judgment of 16 December 1992 (Series A no. 252), that an isolated case of espionage could harm national security, there was all the more reason to reach a similar conclusion where, as in the instant case, the very existence of a State Party to the Convention was threatened. 34. The applicants observed that before the Constitutional Court Principal State Counsel had at no stage relied on either national security or public safety. 35. The Commission considered that prohibiting activities which, in the authorities' view, were likely to cause the collapse of the State or the division of its territory could be said to be intended to protect “national security” and territorial integrity. 36. The Court considers that the dissolution of the SP pursued at least one of the legitimate aims set out in Article 11: the protection of “national security”. (c) “Necessary in a democratic society” i. Submissions of those appearing before the Court (α) The applicants 37. The applicants said that in a pluralist democratic and parliamentary system, people should have the right to express their opinion on the Kurdish problem and on how to resolve it. The SP was a political party supported by a sector of public opinion which should have had the right to accede to power. The SP bore no resemblance to the German Communist Party that had been dissolved at the time by the German Federal Constitutional Court (see application no. 250/57, Yearbook 1, p. 225). Otherwise, the Turkish Constitutional Court would not have dismissed, on 8 December 1988, the first application for the SP to be dissolved (see paragraph 10 above). In that decision the Constitutional Court had found the party's constitution and programme to be in accordance with the Constitution and that it was part of the country's democratic system and clearly opposed terrorism. The SP had never acted unlawfully and the best proof of that was that its then Chairman, Mr Perinçek, was now Chairman of another political party, the Workers' Party, and carried on his work quite lawfully. The SP had always defended the union of the Turkish State. The federal system it proposed as a solution to the Kurdish problem would not prevent State unity. Germany and Switzerland were federations and no one saw in that status a programme to divide those countries. As for Turkey, federation would, on the contrary, afford a much more reliable solution for the future. (β) The Government 38. In the Government's submission, any resemblance between the present case and that of the United Communist Party of Turkey (“the TBKP”) was in appearances only, the sole real similarity lying in the fact that both parties had been dissolved by an order of the Constitutional Court. In the case of the TBKP the Constitutional Court's task had been to assess whether the party's programme and constitution complied with the Constitution and the Law on the regulation of political parties. In the case of the SP on the other hand – as the Constitutional Court had clearly explained in its judgment – the court had had to assess whether the SP's activities subsequent to its formation were consistent with those documents. After the first review of the constitutionality of the party (see paragraphs 9–10 above), new facts and evidence had come to light concerning the SP's activities, which the Commission, unlike the Constitutional Court, had failed to take into account. They showed that from 1990, and in particular in 1991, the SP's activities had shifted radically away from its initial approach reflected in its constitutive documents and were directed towards the disruption of the fundamental concepts which have inspired the Republic of Turkey since its formation. The shift was to be seen in particular in the speeches made by the SP's Chairman, Mr Perinçek, at meetings, congresses or political rallies, some of which were later published by the party. He had used violent, aggressive and provocative language, denigrated all the other political parties and sought to vindicate the use of violence and terrorist methods by calling for an uprising through the use, inter alia, of the expression “ Ayağa kalk ”, which meant “stand up”. The Constitutional Court consequently found that the language and methods of the SP were not at all consistent with its calls for brotherhood and equality. 39. Referring to the Court's analysis of the situation in Turkey in its judgment in the case of Zana v. Turkey of 25 November 1997 ( Reports 1997-VII), the Government said that in 1990 and 1991 there had been an intolerable increase in terrorist activity that had caused thousands of deaths and had spared neither women nor children. Against that background, the declarations of a well-known political leader were bound to aggravate the violence and hatred. In such cases, the authority to the effect that freedom of expression also applied to statements that offended, shocked or disturbed bore no relevance. In the present case, the Court was not concerned with a political debate on political and economic issues of interest to the whole country, but with incitement to join a bloody and murderous conflict between two sections of the population which enjoyed, without any discrimination, all the rights and liberties defined by the Constitution and statute. In that connection, the Government referred, as they had done in the TBKP case (see the judgment cited above, pp. 23–24, § 49), to the Commission's case-law whereby if the interference pursued as a legitimate aim the protection of public order, territorial integrity, the public interest or democracy, the Convention institutions did not require that the risk of violence justifying the interference should be real, current or imminent. Nor was it at all relevant to rely on Mr Perinçek's acquittals before the National Security Courts in order to contest the necessity of the interference in issue, as two types of proceedings, pursuing entirely different aims, were involved: the first type was criminal proceedings, in which the court ruled on an individual's personal responsibility, whereas in the second type of proceedings – constitutional proceedings, such as those impugned before the Court – the sole issue was whether a political party was compatible with the Convention and that necessitated applying different criteria. (γ) The Commission 40. The Commission considered that the SP's dissolution had not been necessary in a democratic society. It noted that Mr Perinçek had previously been prosecuted in the criminal courts for making statements to the same effect as those made in the present case, but had been acquitted of the charges against him. The Commission inferred that even in the eyes of the Turkish judicial authorities, the publications did not contain anything intended to encourage extremist or terrorist groups to destroy the constitutional order of the State or to found a Kurdish State through the use of force. The Commission also observed that the SP had sought to achieve its political aims solely through lawful means and that it had not been shown that the SP had had any intention of destroying Turkey's democratic and pluralist order or had advocated infringing fundamental human rights by promoting racial discrimination. ii. The Court's assessment 41. The Court reiterates that 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. As the Court has emphasised many times, there can be no democracy without pluralism. It is for that reason that freedom of expression as enshrined in Article 10 is applicable, subject to paragraph 2, 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. (see, among other authorities, the United Communist Party of Turkey and Others judgment cited above, pp. 20–21, §§ 42–43). 42. In the instant case it must first be noted that in its judgment of 10 July 1992 the Constitutional Court held that on that occasion it no longer had to consider whether the SP's programme and constitution were lawful, but only whether its political activities contravened the statutory prohibitions. In dissolving the party, the Constitutional Court had had regard to public statements – some of them in written form – made by Mr Perinçek which it considered to constitute new facts and evidence that were binding on the SP (see paragraph 15 above). Consequently, the Court may confine itself to examining those statements. 43. The Constitutional Court noted that, by distinguishing two nations –the Kurdish nation and the Turkish nation – Mr Perinçek had advocated the creation of minorities within Turkey and, ultimately, the establishment of a Kurdish-Turkish federation, to the detriment of the unity of the Turkish nation and the territorial integrity of the State. The SP was ideologically opposed to the nationalism of Atatürk, which was the most fundamental principle underpinning the Republic of Turkey. Although different methods were used, the aim of the SP's political activity was similar to that of terrorist organisations. As the SP promoted separatism and revolt its dissolution was justified (see paragraph 15 above). 44. In the light of these factors, the Court must firstly consider the content of the statements in issue and then determine whether they justified the dissolution of the SP. With regard to the first issue the Court reiterates that when it carries out its scrutiny, its task is not to substitute its own view for that of the relevant national authorities but rather to review under Article 11 the decisions they delivered in the exercise of their discretion. In so doing, the Court has to satisfy itself that the national authorities based their decisions on an acceptable assessment of the relevant facts (see, mutatis mutandis, the United Communist Party of Turkey and Others judgment cited above, p. 22, § 47). 45. Further, the Court has previously held that 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 (see the United Communist Party of Turkey and Others judgment cited above, p. 27, § 57). 46. Having analysed Mr Perinçek's statements, the Court finds nothing in them that can be considered a call for the use of violence, an uprising or any other form of rejection of democratic principles. On the contrary, he stressed on a number of occasions the need to achieve the proposed political reform in accordance with democratic rules, through the ballot box and by holding referenda. At the same time, he spoke out against “the former culture idolising violence and advocating the use of force to solve problems between nations and in society” (see paragraph 13 above). At the hearing the Agent for the Government stated that Mr Perinçek had “justified the use of violent and terrorist methods” by saying in particular: “The Kurd has proved himself through the fight of impoverished peasants by linking its destiny [to theirs]. By holding meetings with thousands of people in the towns and provinces, the Kurd had proved himself and broken down the barriers of fear.” Furthermore, by calling on those present to “sow courage, rather than watermelons”, Mr Perinçek had, in the Government's submission, “exhorted them to stop all activities other than the destruction of order”. Lastly, by using the phrase “The Kurdish people are standing up” he had called upon them to revolt. While the Court accepts that these phrases were directed at citizens of Kurdish origin and constituted an invitation to them to rally together and assert certain political claims, it finds no trace of any incitement to use violence or infringe the rules of democracy. In that regard, the relevant statements were scarcely any different from those made by other political groups that were active in other countries of the Council of Europe. 47. The Constitutional Court had also criticised Mr Perinçek for having drawn a distinction between two nations, the Kurdish nation and the Turkish nation, in his speeches and of thereby pleading in favour of creating minorities and the establishment of a Kurdish-Turkish federation, to the detriment of the unity of the Turkish nation and the territorial integrity of the State. Ultimately, the SP had advocated separatism. The Court notes that, read together, the statements put forward a political programme with the essential aim being the establishment, in accordance with democratic rules, of a federal system in which Turks and Kurds would be represented on an equal footing and on a voluntary basis. Admittedly, reference is made to the right to self-determination of the “Kurdish nation” and its right to “secede”; however, read in their context, the statements using these words do not encourage secession from Turkey but seek rather to stress that the proposed federal system could not come about without the Kurds' freely given consent, which should be expressed through a referendum. In the Court's view, the fact that such a political programme is considered incompatible with the current principles and structures of the Turkish 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. 48. It is true here too that, as was the case with the TBKP (see the United Communist Party of Turkey and Others judgment cited above, p. 27, § 58), it cannot be ruled out that the statements in issue concealed objectives and intentions different from the ones proclaimed in public. In the absence of concrete actions belying Mr Perinçek's sincerity in what he said, however, that sincerity should not be doubted. The SP was thus penalised for conduct relating solely to the exercise of freedom of expression. 49. The Court also notes that Mr Perinçek was acquitted in the National Security Courts where he had been prosecuted in respect of the same statements (see paragraph 11 above). In that connection the Government stressed that the two types of proceedings were entirely different, one concerning the application of criminal law, the other the application of constitutional law. The Court merely notes that the Turkish courts had divergent views as to the effect of Mr Perinçek's statements. It is now important to determine whether, in the light of the above considerations, the SP's dissolution can be considered to have been necessary in a democratic society, that is to say whether it met a “pressing social need” and was “proportionate to the legitimate aim pursued” (see, among many other authorities and mutatis mutandis, the Vogt v. Germany judgment of 26 September 1995, Series A no. 323, pp. 25–26, § 52). 50. The Court reiterates that, having regard to the essential role of political parties in the proper functioning of democracy (see the United Communist Party of Turkey and Others judgment cited above, p. 17, § 25), 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 (see the United Communist Party of Turkey and Others judgment cited above, p. 22, § 46). 51. The Court observes that the interference in question was radical: the SP was dissolved with immediate and permanent effect, its assets were liquidated and transferred ipso jure to the Treasury and its leaders – who admittedly did not include Mr Perinçek when the party was dissolved (see paragraph 14 above) – were banned from carrying on certain similar political activities. Measures as severe as those may only be applied in the most serious cases. 52. The Court has already noted that Mr Perinçek's statements, though critical and full of demands, did not appear to it to call into question the need for compliance with democratic principles and rules. The Court is prepared to take into account the background of cases before it, in particular the difficulties associated with the prevention of terrorism (see, among other authorities, the United Communist Party of Turkey and Others judgment cited above, p. 27, § 59). In the present case, however, it has not been established how, in spite of the fact that in making them their author declared attachment to democracy and expressed rejection of violence, the statements in issue could be considered to have been in any way responsible for the problems which terrorism poses in Turkey. 53. In view of the findings referred to above, there is no need either to bring Article 17 into play, as nothing in the statements warrants the conclusion that their author relied on the Convention to engage in activity or perform acts aimed at the destruction of any of the rights and freedoms set forth in it (see, mutatis mutandis, the United Communist Party of Turkey and Others judgment cited above, p. 27, § 60). 54. In conclusion, the dissolution of the SP was disproportionate to the aim pursued and consequently unnecessary in a democratic society. It follows that there has been a violation of Article 11 of the Convention. II. ALLEGED VIOLATIONs OF ARTICLES 9, 10, 14 AND 18 OF THE CONVENTION 55. The applicants also maintained that there had been breaches of Articles 9, 10, 14 and 18 of the Convention. As their complaints relate to the same facts the Court considers it unnecessary to examine them separately. III. ALLEGED VIOLATIONs OF ARTICLES 1 AND 3 OF PROTOCOL No. 1 56. The applicants further submitted that the effects of the SP's dissolution – its assets were confiscated and transferred to the Treasury, and its leaders were banned from taking part in elections – entailed a breach of Articles 1 and 3 of Protocol No. 1, which provide: Article 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” Article 3 “The High Contracting Parties undertake to hold 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.” 57. The Court notes that the measures complained of by the applicants were incidental effects of the SP's dissolution, which the Court has held to amount to a breach of Article 11. It is consequently unnecessary to consider those complaints separately. IV. ALLEGED VIOLATION OF Article 6 § 1 OF the Convention 58. Lastly, the applicants complained that instead of holding a public hearing, the Constitutional Court had heard them merely in camera and that they had not had access to the case file or the verbatim record of the hearing. They considered that that amounted to a breach of Article 6 § 1 of the Convention. 59. Neither the Government nor the Commission considered that Article 6 § 1 was applicable on the facts of the case. 60. In view of its conclusion concerning compliance with Article 11, the Court considers that it is unnecessary to examine this complaint. V. APPLICATION OF ARTICLE 50 OF THE CONVENTION 61. Article 50 of the Convention provides: “If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.” A. Annulment of the order for dissolution 62. The applicants firstly requested the annulment of the Constitutional Court's order of 10 July 1992 dissolving the SP. They also sought “recognised political-party status” for the SP. 63. The Court holds that it has no jurisdiction under the Convention to order these measures (see, mutatis mutandis, the Saïdi v. France judgment of 20 September 1993, Series A no. 261-C, p. 57, § 47). B. Damage and costs and expenses 64. In respect of pecuniary damage the applicants claimed 1,500,000 US dollars (USD): USD 1,000,000 for the SP and USD 250,000 each for Mr Doğu Perinçek and Mr İlhan Kırıt. They sought USD 6,000,000 for non-pecuniary damage, that is USD 2,000,000 for each applicant. In support of their claims they stressed that the SP had had more than 400 offices spread over the whole of Turkey, all its assets had been seized, it had had the right to present candidates at the elections, had taken part in the elections and was the only left-wing socialist party in existence when it was dissolved. According to the applicants, the thousands of people who had helped to form the SP – which had been active for four years before its dissolution – and the leaders of that party had sustained substantial non-pecuniary damage and financial loss. The applicants also sought “reimbursement of all the costs to which the case had given rise”. At the hearing before the Court, they explained that the fees and costs of the 308 lawyers who had represented the SP before the Constitutional Court alone had come to 1,955,800 French francs (FRF). As to the costs of the applicants' representation before the Convention institutions, they had come to FRF 300,000. 65. As its main submission, the Government considered that no compensation was payable in this case. In the alternative, they considered the applicants' claims exorbitant. In the further alternative, they argued that a violation of Article 11 only could not confer on the applicants a right to be compensated individually. As to the alleged pecuniary damage, the Government affirmed that it had no causal link with the SP's dissolution, that political parties and their leaders could not be equated with commercial undertakings and that in any event there was no supporting accounting evidence for the claims. As for the claims in respect of non-pecuniary damage, the Government considered them to be “even more unreliable” since not only were they exorbitant but they included a claim for non-pecuniary damage allegedly sustained by the SP itself. Lastly, as regards the claims for costs and expenses, the Government found them to be insufficiently detailed. 66. The Delegate of the Commission submitted that the applicants' presentation – which was very general and hypothetical – was insufficient to allow their claims under Article 50 to be upheld. 67. The Court notes that the applicants have not furnished any evidence in support of their claims for substantial sums in respect of pecuniary damage and costs and expenses. Consequently, it cannot uphold those claims (see, mutatis mutandis, the Pressos Compania Naviera S.A. and Others v. Belgium judgment of 3 July 1997 ( Article 50 ), Reports 1997-IV, p. 1299, § 24). It notes, however, that the applicants received FRF 57,187 in legal aid paid by the Council of Europe. As to non-pecuniary damage, the Court notes that, unlike the TBKP, the SP's constitution and programme were approved by the Constitutional Court and the party was active for four years before being dissolved by it. Mr Perinçek and Mr Kırıt therefore sustained definite non-pecuniary damage. Making its assessment on an equitable basis, the Court assesses that damage at FRF 50,000 each. C. Default interest 68. According to the information available to the Court, the statutory rate of interest applicable in France at the date of adoption of the present judgment is 3.36% per annum.
The Court found a violation of Article 11 of the Convention. It noted that statements by the party’s former chairman had referred to the right to self-determination of the “Kurdish nation” and its right to “secede”. However, read in their context, the statements did not encourage secession from Turkey but sought to emphasise that the proposed federal system could not come about without the Kurds’ freely given consent, which should be expressed through a referendum. In the Court’s view, the fact that such a political programme was considered incompatible with the principles and structures of the Turkish State at the time did not make it incompatible with the rules of democracy. It was of the essence of democracy to allow diverse political programmes to be proposed and debated, even those that called into question the way a State was currently organised, provided that they did not harm democracy itself.