The International Journal
of Not-for-Profit Law

Volume 6, Issue 1, September 2003

Christian Moe*

I.          Introduction

In 1998, the Turkish Constitutional Court dissolved the Refah Party as a “center of activities contrary to the principle of secularism” and banned six of its leaders from political party activities for five years. Two of the judges dissented, arguing, inter alia, the incompatibility of this measure with the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). The party, and the politicians affected, applied to the European Court of Human Rights (the Court).

The Court is part of the enforcement mechanism set up under the ECHR. It can hear complaints by individuals, including legal persons such as political parties. Until recently a separate body, the Commission, determined the admissibility of applications and sought to bring about a settlement in cases declared admissible, but this body was abolished in 1998 as part of an institutional reform.[1] Individual applications are now examined by a seven-judge Chamber, which determines both admissibility and merits. A Chamber may choose to relinquish jurisdiction to a seventeen-member Grand Chamber where important issues of interpretation are involved. Within three months after the Chamber’s judgment, either party may request that the case be referred to a Grand Chamber. Final judgments of the Court are binding on the respondent States, and may require States to award the applicants just satisfaction.

On July 10, 2001, a Chamber of the Court found that there had been no violation of the applicants’ freedom of association in the Refah case. The measures were found to be prescribed by law and necessary in a democratic society for the pursuit of legitimate aims. Three of the seven judges dissented, finding the measures disproportionate. On the request of the applicants, the case was referred to a Grand Chamber of the Court. On February 13, 2003, the 17 judges of the Grand Chamber upheld the previous judgment, with no dissent, though with two concurring opinions.[2]

The Refah case is a modern test case for the notion of “militant democracy.” It raises questions as to the range of policies and opinions that political parties may espouse under the ECHR’s Article 11 on the freedom of association. While the Court chose to deal with it as an Article 11 case, the case is also of clear interest to those concerned with the right to freedom of religion or belief in conjunction with the right to freedom of expression. This is so not least because of the Court’s interpretations of key Islamic concepts such as sharia and jihad, its endorsement of the Turkish model of secularism, and its arguments against the plurality of legal systems allegedly promoted by the Refah party. Finally, because of a specific legal maneuver carried out by the Turkish Constitutional Court, the case raises certain concerns over due process.

A.        Factual background

The Court’s judgment is remarkable in light of the fact that Refah was the fifteenth political party to be dissolved by Turkish authorities in recent times. The Court had previously examined three of these cases and had found violations of Article 11 in all three.[3] Furthermore, Refah had existed as a political party for fifteen years. Its leader, Necmettin Erbakan, had been a fixture of Turkish politics for nearly twice that long. He had led a succession of political parties broadly described as “Islamist,” which articulated a defense of national and traditional religious values and the interests of provincial small businesses. Erbakan’s Islamists, immoderate in rhetoric but pragmatic office-seekers rather than rigid ideologues in practical politics, had served as coalition partners with parties of both the center-left and the center-right.

At the time of its dissolution, Refah was the largest party in parliament, having gained a plurality (21.4%) of the popular vote and 158 out of 450 parliamentary seats in the 1995 national elections. Before its dissolution, it had ruled for nearly a year in a coalition government with the center-right True Path party, with Erbakan as prime minister. Leaving aside certain symbolic measures and ill-fated initiatives that galvanized sectors of public opinion against it, the party had not realized any radical Islamist agenda while in power. On the contrary, it had had to preside over an extension of military-industrial cooperation with Israel and a pruning of religious education. It had left office peacefully when it lost parliamentary support, apparently as a result of pressure from the Turkish military leadership.

The military leadership, which has staged three coups since multi-party politics began in Turkey in the 1940 and exerts considerable influence on the civilian government,[4] acts as the self-appointed guardian of the principles established by the country’s founder, Mustafa Kemal Ataturk, including the principle of secularism or laïcism. Turkish secularism, however, allows for state control of mosques, and since 1980 the military leadership has supported the government’s instrumentalization of conservative Sunni forces as a counterweight to radical leftism.

B.         The Refah Case

Unlike the previous cases before the Court, the judgment in Refah was based not on the party’s statutes or program, but on various statements and symbolic public acts by party members of various standing (mayors, MPs, the chairman) over a six-year period. The Court found that these controversial statements and acts, taken as a whole, pointed to a theocratic vision incompatible with democracy, which Refah would be able to realize through its political influence, as fundamentalists had done elsewhere.

The Court’s reasoning follows a set pattern, first determining whether there was an “interference” with the applicants’ rights, and then whether this interference was “prescribed by law.” If so, the Court examines whether the interference was “in pursuit of legitimate aims” (i.e., the specific limitations on the right to freedom of assembly expressly set out in Article 11 of the ECHR), and whether it meets the test of “a pressing social need” that is “necessary in a democratic society.” I will depart from this order to deal first with the critically important questions pertaining to the limitations on a political party’s freedom of assembly. Then I will return briefly to the separate technical question whether Refah’s dissolution was in fact prescribed by law.

II.        Necessary in a democratic society?

The Court determined that Refah’s dissolution pursued several of the legitimate aims set out in Article 11 as grounds for restrictions on the right to freedom of association: viz., national security, public safety, prevention of disorder or crime, and protection of the rights and freedoms of others.

A.        Statements of Law

The Court reiterated its general principles that “democracy appears to be the only political model contemplated by the Convention and, accordingly, the only one compatible with it”; that political parties are a form of association essential to the proper functioning of democracy; that the freedom of expression applies all the more in relation to political parties and that it extends to ideas that “offend, shock or disturb”; and that the freedom of thought, conscience, and religion is one of the foundations of a democratic society (§§86-90).[5] The State should be the “neutral and impartial organizer of the exercise of various religions.” Restrictions on the freedom of religion might be necessary, however, and the freedom to manifest one’s beliefs “does not protect every act motivated or influenced by a religion or belief” (§§91-92).

With regard to Turkey, the Court stated that:

[…] the principle of secularism is certainly one of the fundamental principles of the State which are in harmony with the rule of law and respect for human rights and democracy. An attitude which fails to respect that principle will not necessarily be accepted as being covered by the freedom to manifest one’s religion. [§93]

The Court recalled in this context its decisions allowing the Turkish State to require its civil servants to refrain from taking part in the Islamic fundamentalist movement and to impose restrictions on the use of headscarves in universities.[6]

One may wonder if too much weight is being placed on this case law, which consists of inadmissibility decisions made by the Court’s now-defunct screening body, the Commission, and not actual judgments by chambers of the Court. The Court unfortunately did not take the opportunity afforded by the Refah case to reexamine the problematic assumption that the Turkish understanding of secularism is fully in harmony with respect for human rights.[7]

As for the permissible limits to the activities of political parties, the Court sets out the dual test that:

[…] a political party may promote 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 be legal and democratic; secondly, the change proposed must itself be compatible with fundamental democratic principles. It necessarily follows that a political party whose leaders incite violence or put forward a policy which fails to respect democracy or which is aimed at the destruction of democracy and the flouting of rights and freedoms recognised in a democracy cannot lay claim to the Convention’s protection against penalties imposed on those grounds […] [§98]

The dissenting minority in the first Chamber, however, added a proviso that had already been established in previous cases on Turkish political parties:

The fact that a political programme is considered incompatible with the current principles and structures of a 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 organized, provided that they do not harm democracy itself.[8]

This proviso was not incorporated in the Refah judgments. The Grand Chamber repeated the two conditions set out in the previous judgment, though a concurring opinion states that this should not be interpreted “to the effect that any campaign to change rights and freedoms recognised in a democracy amount to a situation where a political party would lose protection” (p. 47).

As compared to previous cases, Refah thus appears to have narrowed somewhat the range of permissible policies promoted by political parties that enjoy protection under the ECHR, and a minority of judges in both Chambers appeared uncomfortable with this development.

Still, the Court reiterated that, where political parties are concerned, the exceptions in Article 11 are to be construed strictly, the States have only a limited margin of appreciation, and drastic measures such as dissolving a party might be taken only in the most serious cases (§100).

The Court considered it not improbable that totalitarian political parties might do away with democracy after prospering under a democratic regime (§99). A party’s political program might conceal its real objectives, and it must therefore be compared with the acts and stances of the party’s leaders. A State could not be required to wait until a party had seized power and begun to implement a policy before intervening. The Court held that a State’s “power of preventing intervention” is consistent with, inter alia, the States’ positive obligations to secure the rights and freedoms of persons within their jurisdiction against interference from private individuals within non-State entities. (§§101-103).[9]

Such intervention met the standard of a “pressing social need” if (1) the risk to democracy was sufficiently imminent, (2) the acts and speeches were imputable to the party as a whole, and (3) those acts and speeches as a whole gave a clear picture of a model of society which was incompatible with the concept of a “democratic society” (§104). However, the Court had also to take account of the historical context and “the general interest in preserving the principle of secularism in that context in the country concerned” (§105).

B.         Application of the law to the facts in Refah

The Court held that in this case:

1. The risk to democracy was found to be sufficiently imminent because of Refah’s rise in influence as a political party and its considerable chances of coming to power alone (§§107-110). The importance placed on the political influence of the party is consistent with the Court’s approach in the previous Turkish party cases, which differed from the Refah case in that the parties concerned had hardly had a chance to carry out any activities before they were dissolved.
2. The statements and acts of the chairman and vice-chairman were clearly imputable to the party, and those of other party members who held government posts were imputable to the party as it had not distanced itself from them (§§111-115).
3. The Court grouped the evidence under three main headings, finding that Refah had (a) sought to establish a plurality of legal systems, (b) sought to introduce sharia, and (c) suggested the use of jihad and political violence.

(a) The notion of a plurality of legal systems, grounded on religion, was found incompatible with the Convention system for two reasons:

Firstly, it would do away with the State’s role as the guarantor of individual rights and freedoms and the impartial organiser of the practice of the various beliefs and religions in a democratic society, since it would oblige individuals to obey, not rules laid down by the State in the exercise of its above-mentioned functions, but static rules of law imposed by the religion concerned. […]

Secondly, such a system would undeniably infringe the principle of non-discrimination between individuals as regards their enjoyment of public freedoms, which is one of the fundamental principles of democracy. […] [§119]

(b) As for Refah’s alleged intention of introducing sharia law, the Court found that “sharia is incompatible with the fundamental principles of democracy”:

[…T]he Court considers that sharia, which faithfully reflects the dogmas and divine rules laid down by religion, is stable and invariable. Principles such as pluralism in the political sphere or the constant evolution of public freedoms have no place in it. […] 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. [§123]

In this connection the Court also made the historical argument that religious fundamentalist movements have in the past seized power in certain states, and that Turkey had experienced “an Islamic theocratic regime” under Ottoman law (§125).

The Court rejected the applicants’ argument that it was self-contradictory to accuse them of having wished to introduce both legal pluralism and sharia, as well as the argument that “prohibiting a plurality of private-law systems […] amounted to establishing discrimination against Muslims who wished to live their private lives in accordance with the precepts of their religion.” In this regard, the court stressed that “freedom of religion, including the freedom to manifest one’s religion by worship and observance, is primarily a matter of individual conscience,” and that “the sphere of individual conscience is quite different from the field of private law […].” The Grand Chamber here referred specifically to polygamy and privileges for the male sex in divorce and in succession as gender-discriminatory rules contrary to the Convention. (§§126-128)

(c) The possibility of recourse to force had been raised by several speeches by Refah members, some of which contained references to “jihad.” The Court considers that the “primary meaning” of the term is “holy war and the struggle to be waged until the total domination of Islam in society is achieved,” but also that whatever the interpretation of that term, Refah had not dispelled the “ambiguity” of its statements about the possibility of using violent methods. (§§129-131)

The Court accordingly concluded that acts and speeches imputable to the whole of the party “revealed Refah’s long-term policy of setting up a regime based on sharia within the framework of a plurality of legal systems and that Refah did not exclude recourse to force in order to implement its policy and keep the system it envisaged in place.” In view of the incompatibility of these plans with democracy, and Refah’s real opportunities to put them into practice, the Court held that the Turkish Constitutional Court’s decision had met a “pressing social need.” Nor could the interference be regarded as disproportionate in relation to the aims pursued; in short, Refah’s dissolution was “necessary in a democratic society,” and Article 11 had not been violated. (§132-136)

I have argued at length elsewhere that the Court reaches an implausible conclusion by interpreting the evidence in the light of questionable assumptions about Islamic law, the meaning of religious terms, and the lessons to be drawn from Muslim history. These assumptions are couched in problematic language that reflects stereotypes of Muslims, disregarding the diversity of Muslim thought by equating it with the views of a fundamentalist minority.[10] The concurring opinion of Judge Kovler also expresses concern about the “unmodulated” findings of the court as regards sensitive religious issues, and voices regret that the Court “missed the opportunity to analyse in more detail the concept of a plurality of legal systems” (p. 48). The entrenchment of these findings in the Court’s case law by a judgment of a full seventeen-member Grand Chamber raises troubling prospects for the equal protection of Muslims’ rights to freedom of belief, association, and expression under the European Convention.

Some of the statements made by party members were highly provocative and could only be understood as threats of violence against secularists. A slender case for the banning of Refah might conceivably have been built on these statements alone, taking into account the polarization of Turkish opinion and the country’s relatively recent history of political violence. By taking this line of argument, the Court would have avoided interpreting ambiguous religious symbolic expressions and taking a stand on Turkish secularism.

III.       Prescribed by law?

Before examining whether the actions of the Turkish Constitutional Court were necessary in a democratic society, the Court also addressed the issue of whether these actions were prescribed by law. A loophole in Turkish law had presented an obstacle to dissolving Refah as a “centre of activities contrary to the fundamental principles of the Republic” (i.e., secularism). One week before its judgment in the Refah case, the Turkish Constitutional Court closed the loophole by declaring the relevant portion of Turkish legislation unconstitutional.

Article 69 §4 of the Turkish Constitution authorizes the Constitutional Court to dissolve a political party if the party is held to constitute a “centre” of such activities (Art. 69 §6). The law regulating political parties imposed a specific and rather peculiar procedure for determining whether the party was such a center.[11] Following this procedure, State Counsel would have to order the permanent exclusion from the party of those members who had been convicted of activities against secularism; only if the party had failed to comply within thirty days could State Counsel institute proceedings for the dissolution of the party. However, activities against the principle of secularism no longer constituted a criminal offense after the repeal, in 1991, of the applicable Article 163 of the Criminal Code. Since party members could not be convicted of activities against secularism, State Counsel could not order their exclusion, and hence should not be able to institute proceedings for the dissolution of a party as a center of such activities. During the proceedings against Refah, the Turkish Constitutional Court ruled the relevant paragraph of the law on political parties unconstitutional, null, and void.

On the face of things, this violates the principle of legality, as Refah representatives could not have foreseen the legal consequences of their actions: the legal situation was changed as a result of issues arising from the Refah case, and the resultant legal situation was applied, retroactively, to that same case. Due process would seem a particularly sensitive issue given the broader political context: i.e., the military leadership’s evident commitment to removing Refah from politics.

In the hearings before the first Chamber, curiously, the applicants had come to agree that the dissolution of the party was “prescribed by law.” The dissenting minority of judges plainly expressed regret that this prevented them from examining the matter. The issue, however, was examined by the Grand Chamber, which considered that the applicants were not estopped from raising the issue again. The Grand Chamber noted that the changes to the criminal law had resulted in a divergence between the law on the regulation of political parties and the Constitution, and that this had rendered meaningless the Constitutional Court’s constitutionally prescribed power to dissolve political parties which constituted centers of anti-secular activities. The Court found that, given such a discrepancy between statutory law and the Constitution, the Constitutional Court was clearly required to disregard the unconstitutional provisions of the relevant legislation and exercise its constitutional authority directly. The Court further found that the applicants, being experienced politicians who had taken part in relevant parliamentary discussions and who were in two cases lawyers by profession, were reasonably able to foresee this outcome. Hence the interference was “prescribed by law.” (§§52-64)

The courts understood the discrepancy as an unintended outcome of changes in the criminal code that had to be remedied. It might be argued, however, that a constitutional provision giving a court the sole authority to dissolve political parties does not in itself require that it actually exercise this authority–i. e., that political parties actually be dissolved. If so, procedural obstacles to their dissolution do not necessarily constitute a violation of the constitution. It is surely acceptable, and not unusual in some countries, for constitutional provisions to be rendered dormant even though they remain on the books. Might the applicants reasonably have assumed this to be the case with regard to their situation?

That question, which the present author is in no way competent to address, could presumably only be settled by a deeper study of Turkish law, including the lawgivers’ intent behind the legal changes concerned. A supporting argument for construing the constitutional provisions as dormant in this case, however, is that the relevant statutory legal changes and their effects tend to strengthen democracy and human rights. Decriminalizing “acts against the principle of secularism” strengthens the freedoms of belief and of expression. Restricting the state prosecutor from requiring political parties to exclude members strengthens the internal autonomy of parties against government interference. It will remain a contested issue whether parties with anti-democratic aims may be dissolved only if their members are convicted of criminal acts – there are good reasons why “militant democracies” might consider this too stringent a test. Again, however, preventing the judiciary from dissolving parties on grounds of acts against secularism (rather than acts against democracy as such, which is arguably not quite the same category) may be a sound policy for strengthening the freedoms of belief and of expression.

IV.       Conclusion

Trying, over the years, to balance national sovereignty and European supervision, the Court has developed the doctrine that States should be allowed a certain discretion – a “margin of appreciation” – in implementing the standards of the ECHR. Being closer to the issues at hand, it is argued, national authorities are in a better position than international judges to decide on the appropriateness of derogations from or limitations to rights in a given situation. Critics have argued that the expansion of this doctrine has led to excessive deference to States, based on opaque arguments, to the detriment of individual rights when these are most at risk.[12]

In the Refah case, the Court reiterated its view that States have only a limited margin of appreciation where the dissolution of political parties is at stake. However, the Court appears implicitly to give the national authorities a rather wide margin of appreciation. In effect, it defers to their particular understanding of secularism, to their understanding of Refah as a theocratic threat to democracy, and to their constitutional argument on due process. Besides the usual reasons, this deference may also owe something to the judges’ lack of experience with political Islam and a feeling that their Turkish colleagues were better placed to interpret notions of sharia and jihad. However, numerous factors argue instead for a closer independent scrutiny. These factors include the behind-the-scenes role of the Turkish military and the intensely emotional polarization of Turkish public opinion on the appropriate role of religion, from which the judiciary can hardly be expected to be detached.

The Court’s resulting “unmodulated” formulations about Islamic matters will remain part of the case law under the ECHR, raising concerns about European Muslims’ equal enjoyment of political freedoms. As compared with some other recent cases, the Court has also set out a stricter test as to the substantive policies that political parties of any persuasion may legitimately espouse. It remains to be seen whether Refah therefore heralds a more restrictive line toward political parties in general.[13]

Notes

* Christian Moe is a research fellow at the Norwegian Centre of Human Rights, pursuing a Ph.D. in the History of Religions at the University of Oslo. He is currently based in Ljubljana, Slovenia.

[1] Protocol No. 11 to the ECHR.

[2]Refah Partisi (The Welfare Party) and Others v. Turkey, Judgment, Strasbourg, February 13, 2003 (includes a concurring opinion of Judges Ress and Rozakis [pp. 46-7] and a concurring opinion by Judge Kovler [p. 48]).

The first Chamber’s judgment was given on July 31, 2001, and includes a joint dissenting opinion of Judges Fuhrmann, Lucaides, and Sir Nicolas Bratza (pp. 35-47).

[3] United Communist Party of Turkey and Others v. Turkey (133/1996/752/951), January 30, 1998; Socialist Party and Others v. Turkey (20/1997/804/1007), May 25, 1998; Freedom and Democracy Party (ÖZDEP) v. Turkey (Application no. 23885/94), December 8, 1999.

[4] At the time of writing, the influence of the military through the National Security Council looks set to be reduced as a part of reforms aimed at preparing Turkey for eventual EU membership.

[5] In the following, all paragraph and page references in the text are to the Grand Chamber judgment unless a different source is expressly identified.

[6] Kalaç v. Turkey, no. 20704/92, judgment of June 23, 1997, Reports 1997-IV; Yanasik v. Turkey, no. 14254/89, Commission decision of January 6, 1993, DR 74, p. 14; Karaduman v. Turkey, no. 16278/90, Commission decision of May 3, 1993, DR 74, p. 93. Cf. Dahlab v. Switzerland, no. 42393/98, ECHR 2001-V.

[7] See, e.g., the concerns raised by Abdelfattah Amor, “Situation in Turkey,” Add. 1 to the interim report of the Special Rapporteur on the elimination of all forms of intolerance and discrimination based on religion or belief, August 11, 2000 (UN Doc. A/55/280/Add. 1).

[8] Joint dissenting opinion of Judges Fuhrmann, Loucaides, and Sir Nicolas Bratza, Refah v. Turkey, judgment, July 31, 2001, p. 38. Cf. Socialist Party (§47) and ÖZDEP (§41), cited in n. 3 supra.

[9] The classic “militant democracy” case under the ECHR is Communist Party (KPD) v. the Federal Republic of Germany, no. 250/57, Commission decision of July 20, 1957, Yearbook 1, p. 222.

[10] C. Moe, “Refah Revisited: Strasbourg’s Construction of Islam,” paper presented at the conference “The Turkish Welfare Party Case: Implications for Human Rights in Europe,” Central European University, Budapest, June 12-15, 2003.

[11] Law no. 2820 on the regulation of political parties, sections 103 (second paragraph) and 101 (d).

[12] See e.g. Oren Gross and Fionnuala Ní Aoláin, “From Discretion to Scrutiny: Revisiting the Application of the Margin of Appreciation Doctrine in the Context of Article 15 of the European Convention on Human Rights,” Human Rights Quarterly 23 (2001): 625-649. This article focuses on derogation from rights (under Article 15 of the ECHR) in times of declared national emergency rather than on the inherent limitations of rights as in the Refah case, but the argument could easily be extended.

[13] So far, Refah has been cited in passing in a handful of cases, most importantly (on the justifiability under Article 11 of drastic measures against organizations in serious cases) in the rather different case of Gorzelik and Others v. Poland, no. 44158/98, judgment, December 20, 2001, §60.