Thursday, May 8, 2008

Ruminating Party Closures: European Practice

From Sunday's Today's Zaman:

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 reports 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 importance vis-à-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 supporters, 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 report 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 report 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 report 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 documents, 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 supporting 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, Karataş, 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 membership 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-à-vis the current party closure cases will be a great test for the Constitutional Court.

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