Case Brief:

REFAH PARTISI (THE WELFARE PARTY)

AND OTHERS v. TURKEY

Case / Case of the Refah Partisi (The Welfare Party) and others v. Turkey. ECHR. Grand chamber Judgment, Strasbourg 13 February 2003
App nos.: 41340/98, 41342/98, 41343/98 and 41344/98
Parties / Applicants: Refah Partisi (The Welfare Party) Party members: Mr Necmettin Erbakan, Mr Sevket Kazan and Mr Ahmet Tekdal
State parties: Turkey
Facts / Refah partisi was a political party in Turkey formed in 1989. The results of the 1995 general election made Refah the largest political party in Turkey, and in 1996 Refah came to power by forming a coalition government. In 1997 the State authorities started proceedings in the Turkish Constitutional court with an application to have Refah dissolved on the grounds that it was a “centre” of activities contrary to the principle of secularism which is enshrined in the Constitution of Turkey. By its judgment of 9 January 1998, the Constitutional court dissolved Refah on the ground that it became a centre of anti-constitutional activities and banned its leaders (including the applicants) for five years from holding similar office in any other political party.
The applicants alleged that the dissolution of Refah by the Constitutional court and the suspension of certain political rights of applicants who were leaders of Refah had breached Articles 9, 10, 11, 14, 17 and 18 of the Convention and Articles 1 and 3 of Protocol No. 1.
Procedural Posture / On 17 January 1998 the Turkish Constitutional Court dissolved Refah. The case originated in four applications against the Republic of Turkey by the applicants. The applications were transmitted to the Court on 1 November 1998. The applications were joined (Rule 43 § 1) and on 3 October 2000 they were declared partly admissible by a Chamber of that Section. On 31 July 2001 the Chamber gave judgment, holding by four votes to three that there had been no violation of Article 11. On 30 October 2001 the applicants requested, under Article 43 of the Convention and Rule 73, that the case be referred to the Grand Chamber. On 12 December 2001 a panel of the Grand Chamber decided to refer the case to the Grand Chamber. A hearing took place in public in the Human Rights Building, Strasbourg, on 19 June 2002. The Court delivered is judgment on 13 February 2003.
Issues / The questions facing the Court in the case of Refah v. Turkey, are :
- Has there been a violation of article 11?
- Is the action taken by the government in accordance to the rules set in article 11, §2
Rights / Directly: The right to assembly and freedom of association
Indirectly: The right to freedom of expression, freedom of religion
Holding and Reasoning / The Court held that Refah’s dissolution and measures imposed on its leaders’ political rights amounted to an interference with the applicants’ exercise of their right to freedom of association. Such an interference will constitute a breach of Article 11 unless it was: 1) “prescribed by law”, 2) pursued one or more of the legitimate aims set out in paragraph 2 of that provision and 3) was “necessary in a democratic society” for the achievement of those aims. (§51)
1)  “Prescribed by law”: the Court reiterates that the expression requires firstly that the impugned measure should have a basis in domestic law. It also refers to the quality of law in question, requiring that it be accessible to the persons concerned and formulated with sufficient precision to enable them to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. In the case The Court notes that the dispute concerned the constitutionality of the activities of a political party. The written law most relevant to the question whether the interference was “prescribed by law” is the Turkish Constitution. The Court considers that the applicants were reasonably able to foresee that they ran the risk of proceedings to dissolve Refah if the party engaged in anti-secular activities.
2)  Legitimate aim: Taking into account the importance of the principle of secularism for the democratic system in Turkey, the Court considers that Refah’s dissolution pursued several of the legitimate aims listed in Article 11, namely protection of national security and public safety, prevention of disorder or crime and protection of the rights and freedoms of others.
3)  “Necessary in a democratic society”:
The court underlines that the state has an obligation to ensure pluralism in a democratic society and freedom to hold and practice religious believes, or not to hold religious believes. It may be necessary to place restrictions to make sure that several religions can coexist within one and the same population. A political party may promote changes in law and constitution through the state’s mechanisms. But the changes they promote must itself be compatible with democratic principals. Parties that want changes in legislation which will bring the destruction of democratic society can not lay claim of the protection of the convention. Groups and individuals must sometimes agree to some limitations in their rights to ensure the continuing stability and security of the state.
According to the Convention and the case-law of the Turkish courts on constitutional-law issues, nothing oblige States to tolerate the existence of political parties that are seeking the destruction of democracy and the rule of law. Refah partisi had, on several occasions, portended the intention to set up a regime based on sharia, and according to the Court, it was reasonable to conclude that, if given the opportunity , they would. The rules of sharia are incompatible with the democratic regime, and the Government mentioned a number of instances of incompatibility between the main rules of sharia and the rights and freedoms guaranteed by the Convention. The fact that Refah did not exclude recourse to force in order to implement it’s policy and keep the system it envisaged in place, and the fact of the real opportunities Refah had to put it’s plans into practice, made the danger to democracy more tangible and more immediate. The conclusion of the different issues mentioned above, following a rigorous review to verify that there was convincing and compelling reasons justifying Refah’s dissolution and the temporary forfeiture of certain political rights imposed on the other applicants, made it reasonable for the Court to say that the situation met the requirements for “pressing social needs” .
Therefore, it follows that Refah’s dissolution was regarded as “necessary in a democratic society” within the meaning of article 11 §2 .
Rules of Law / A political party and its members can be subject to the restrictions of freedom of assembly and association under Article 11 paragraph 2 if party’s activities are contrary to the fundamental principles of democracy and the Convention.
While political parties are the main protagonists of democratic policies, their activities are not exempt from certain restrictions.
Limitations the rights of individuals and groups may be limited to ensure the existence of democracy in the state. One of the main goals of the convention is to protect democratic ideals, groups or political parties may not claim the protection of the convention when seek the destruction of these ideals.
Decision / The Court held that since there was no violation of Article 11, it was not necessary to examine the complaints under Art. 9, 10, 14, 17 and 18 of the Convention and Articles 1 and 3 of Protocol No. 1.
Validity / Legal binding

Group E, October 2006

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