The Judgments of the European Court of Human Rights - Essay Example

Compare and contrast the judgments of the European Court of Human Rights in Refah Partisi & Others v Turkey (judgment of Grand Chamber 13 February 2003) and United Communist Party Case v Turkey (judgment of 30 January 1998). Can they be reconciled? Introduction European Convention of Human Rights (ECHR) contains rules regarding fundamental rights and freedom that is to be accorded to the subjects of member countries of European Union. The following are the some instances of fundamental freedom and rights granted under ECHR: Right to existence or life Proscription of forced labour and slavery Prohibition of torture Right to have a just and fair due process of law Right to security and liberty No punishment in the absence of any law Article 9- Freedom of religion ,thought and conscience Article 10- Freedom of expression or speech Right to respect for private and family life Article 11- Freedom of association and assembly Right to get an effective relief or remedy Right to get married Freedom of religion Article 14- Proscription of prejudice or discrimination In addition to the above fundamental rights, many more rights are accorded by additional protocol to the Convention. (www.echr.coe.int 2003). European Union members have undertaken to assure these privileges and freedoms to all of its citizens within their jurisdiction. The European convention has also established an international enforcement mechanism. The European Court of Human Rights (ECHR) was established in Strasbourg mainly to make sure the adherence of the engagements perused by the member countries. (Neuman, Gerald L. 2003:1863).The Court deals with petitions presented by both the inter-state and individuals. The Court is empowered to offer advisory opinions concerning the elucidation of the Conventions and protocols thereto at the request of the Council’s committee of Ministers. (Alaster Mowbray 2004:723) In case of human rights violations by any member nations, petitions can now be filed directly to the Court. (Nachmani, Amikam 2003:185) In most of the cases, the case will be decided by a chamber of seven judges. The chamber not only judges the admissibility of a case but also looks into the merits of each application and also conducts identical investigation if it is necessary. Before initiating any proceedings, the Court will attempt to settle the matter through mediation in respect of any human rights issue involved. (O’Boyle 1994). In case, if any party wants to appeal the verdict given by the Court, in deserving cases, an appeal is allowed to the Grand Chambers within three months of the verdict. The Judgment of the Court must be abided by the parties concerned and member nations must take all required steps to comply with them. The execution of judgments will be supervised by the committee of Ministers. The Secretary General may request Parties to offer explanations on the manner in which their domestic legislation ensures the efficacy of execution of the Convention. It is to be observed that the verdict made by Grand Chambers will be final and binding on the parties concerned. (www.echr.coe.int 2003). Though the following cases from Turkey had been referred to ECHR Convention Court for final adjudication by the applicants concerned, the commonality is that in both the cases, it is alleged that there was violation of Article 11 namely right to assembly and expression. However, though they are identical as regards to applicability of Article 11 but both cases differ in their perspectives. This research study analyses both cases individually and compares them and also contrast them and then finally arrive at a conclusion of its finding. Refah Partisi (The Welfare Party) and Others v. Turkey1 This case relates to an appeal made to Grand Chambers of European Court of Human Rights (ECHR) against the verdict of lower European Court which upheld the decision of Constitutional Court of Turkey which ordered the dissolution of the Refah Party and imposed a ban on its leaders not to engage in political activities for five years and ordered to forfeit its assets. The European Court concurred unanimously the disbanding of the Refah Party and the sanctions against its leaders as simpatico with the liberty of affiliation or association guaranteed under article 11 of ECHR. It was the contention of Turkey’s Constitutional Court that the Refah Party was to be disbanded since it was a religious party – an Islamic instigated party and it attempted to establish Islamic laws and principles (sharia) that would transform the Turkish secular principle and undermine democracy. The majority of European Court felt that it was essential to disband the Refah Party on the pressing social need. (European Court of Human Rights 2003). In the appeal, the Grand Chamber held unanimously that there was no infringement of Article 11 which refers to the freedom of assembly and association of the ECHR. Hence, there was no need to scrutinise the complaints under the following articles: Article 9- Liberty of Contemplation Article10-Liberty of Speech or Expression Article 14- Proscription of favouritism Article 17- Proscription of misuse of privileges Article 18- Restraints on use of limitation on rights .and further under Protocol No 1 Article 1- Safeguarding of asset and property Article3- Liberty to free elections (Jacobs & White 2006) The appellants contended that dissolution of Refah and the actions that followed it tantamount to an intrusion with the plaintiffs’ enjoyment of their privilege to liberty of association under Article 11 of the Convention. The applicants also recalled that in a democratic system, every political party is having a liberty to enjoy the freedoms and rights preserved in Article 11(liberty of association) and also in Article 10 (liberty of expression) of the Convention. The applicants also preyed that a political organisation cherished by the ideologies inflicted by a religious conviction could not be considered as inherently contrary to the basic standards of democracy, as described in the Convention. However, the privileges assured by Article 9(freedom of religion), and by Articles 10 and 11 of the Convention, could not take away the powers of a member nation in which a political party, by its actions, endangered that nation’s establishments and the privilege to safeguard those establishments. (Wheatley Steven 2005). The Grand Chamber was of the opinion that the deeds and utterances of Refah’s leaders and members quoted by the Constitutional Court of Turkey were ascribable to the whole of the Refah party, that those deeds and utterances exposed Refah’s long-run policy of establishing a government based on sharia within the structure of a multitude of legal structures and that Refah did not rule out it’s recourse to violence in order to execute its policy and place the scheme it conceived of in place. Bearing in mind that these designs were irreconcilable within the perception of a "democratic society" and that the factual options which Refah had to place them into practice that made the threat to democracy more substantial and more instantaneous, the penalty levied on the applicants by the Constitutional Court of Turkey, might rationally be regarded to have met a "pressing social need". (Alaster Mowbray 2004:737) The Grand Chamber concluded that the intervention could not be considered as inconsistent in relation to the designs pursued. Thus, there were compelling and convincing grounds rationalising dissolution of Refah and the provisional recalling of some political privileges inflicted on the rest of the applicants. The Grand Chamber was of the opinion that Refah’s closure could be considered as an "essential in a democratic society" within the purview of Article 11 § 2 and hence, there was no infringement of Article 11. According to me , both the Turkish Constitutional Court and ECHR Court have erred in their decision to bar Refah party since no concrete proof or evidence is available that it is going to implement sharia based Islamic government in Turkey in the near future . Further, it has been not been established by Turkish government that Refah party has either indulged in violence or terror attacks or acts involving destabilizing democratic principles or being involved in activities that amounted to grave threat to democracy. Here also, the utopian principle has been applied that Refah party may install a sharia based Islamic government in Turkey in near future with out any concrete evidence or proof corroborating the same. United Communist Party of Turkey v. Turkey2 In this case, the applicant, the United Communist Party of Turkey before its formation submitted its programme and its draft constitution to the national court of Turkey for an appraisal of its harmony and adaptability with the constitution of Turkey. The Government of Turkey argued that communist party should not be allowed to be incorporated and to be dissolved since the proposed communist party’s aims were infringing of provisions of constitution of Turkey. Turkey government argued that since the communist party was attempting to establish the supremacy of one social group over the others and also attempted to pursue on activities apparently to weaken the territorial integrity of the Turkey government by supporting autonomy in respect of a minority faction within the Turkey. (Janis Mark W .et al 2008: 315) The constitutional court of Turkey held that the communist party to be dissolved. The communist party appealed to ECHR court alleging that it violated its privileges under Article 11 of the convention namely liberty to assembly and expression. Further, it was alleged by the applicant that the disbanding of United Communist Party by the Turkey constitutional court had infringed the following articles of the Convention. Article 9- Liberty of Thought Article10-Liberty of Expression Article 11- Freedom of association and assembly Article 14- Proscription of discrimination Article 18- Restraints on use of limitation on rights Article 6 § 2- and further under Protocol No 1 Article 1- Safeguarding of asset and property Article3- Right to free elections The ECHR court held that the dissolution order served on Communist Party constituted an infringement of Article 11 of the convention as the steps perused by constitutional court of Turkey was drastic as the dissolution order was served even before its activities had actually commenced and is inconsistent to the goal pursued and hence deemed unwarranted in a democratic setup. The Convention court was of the view that a political organisation is a kind of an association safeguarded by Article 11 of the Convention. For efficient functioning of a democratic society, the existences of political parties are essential and inevitable. (Çarkoglu, 2003:220) The Court observed that a political organisation is not secluded from the safeguard offered by the Convention just because its functions and activities are considered by the member nation’s authorities as sabotaging the constitutional systems of the State and demanding for the infliction of restrictions. The Court also cited the exemptions given under Article 11(2) of the Constitution. Imposition of restriction on a political party by national government is justified only if there is a compelling social need. To corroborate if such requirement exists, it should be scrutinised if: There is a genuine and pressing danger to democracy The deeds and utterances of activists of a party can be ascribed to the party itself. Further, while deciding a particular case, the court should accord an overall appraisal to arrive at a conclusion on the proportionality of measures initiated. After taking into consideration of the above facts, the Convention court held that action of Turkish government by banning the United Communist Party violated its privileges under Article 11 of the convention namely liberty to assembly and expression. Comparison between the Refah Partisi (The Welfare Party) and Others v. Turkey and United Communist Party of Turkey v. Turkey. Both the cases raised the issue under the Article 11 of the Convention – i.e. Right for association and assembly. However the Refah case is also dealt with the liberty of religion or religious faith in association with the privilege to freedom of expression. Hence, Refah has to be considered on the background of Articles 10, 11 and Right to freedom of religion. In Refah case, a mention was made by the applicant about the decision made in the United Communists Party of Turkey and verdict made by Convention Court opining that there was a breach of the provisions of Article 11 of the Convention and pleaded that the same principle should also be extended to Refah case also. In Communist Party case, the Turkish government was in a utopian mode by disbanding it as it had constituted an infringement of Article 11 of the convention as the steps taken by constitutional court of Turkey was drastic as the dissolution order was served even before its activities had actually commenced and is inconsistent to the goal pursued and hence deemed unwarranted in a democratic setup. Contrast between the Refah Partisi (The Welfare Party) and Others v. Turkey and United Communist Party of Turkey v. Turkey In the United Communists Party case , it was observed that when there was in existence of specific threat within a country , the State would have to able to establish that the applicant was responsible for the issues which that threat posed in that country. Whereas in the Refah party case, the dissolution of the organisation was ordered on the fundamental of the statements made and postures perused by its chairman and by certain members, rather than on what was obvious in its constitution. The Grand Chamber also affirmed the findings of lower Chamber’s finding that a multitude of legal systems would be antagonistic with the Convention. While arriving at a verdict, the Court considered the key Islamic principles like jihad and Sharia, its acknowledgment of Turkish replica of secularism and its disagreement with the plurality of legal setups supposedly encouraged by Refah party. The Constitutional Court of Turkey was of the view that contentious proclamations and deeds made by Refah party and by its leaders was antagonistic with democratic principle which Refah attempted to realise through its political power and authority as religious fundamentalists carried over somewhere else. (Mowbray 2004). In United Communists Party of Turkey and other, it was observed that according to Article 11, the political organisations were a kind of alliance necessary to the accurate performance of democracy. (Janis Mark W et al 2008:315) Hence, in consideration of the part perused by political organisations, a step instituted in opposition to their interest which concerned both democratic functioning and liberty of expression of the State concerned. Further, it was held that political parties are also enabled to look for the safeguard provided by the Article 10 of the Convention. In Refah case, it was submitted by the applicants that order to close down the Refah party was in violation of Articles 11 as it negated the right to assembly and expression. In United Communist Party case as the dissolution order was served even before its activities had actually commenced and was found to be inconsistent to the goal to be pursued and hence deemed unwarranted in a democratic setup. Hence, the Convention Court held that Article 11 of the Convention was actually infringed. Thus, the Convention Court held that harsh steps like dissolution of a party and barring its leaders from political activities may be initiated only in serious and grave cases and in United Communists party case, the said conditions were absent. In Refah case, deeds and utterances exposed Refah’s long-run policy of establishing a sharia government. Refah did not rule out it’s recourse to violence and to achieve its designs by violence were irreconcilable within the perception of a "democratic society" and that the factual options Refah had to place them into practice made the threat to democracy more substantial and more instantaneous, the penalty levied on the applicants by the Constitutional Court of Turkey, might rationally be regarded to have met a "pressing social need". (Harris, O’Boyle & Warbrick 1995) In United Community Party case, the communist party was yet to function and at its infancy stage. (Yavuz 2003) It had not started any of its activity and not infringed any rights and never used violence to achieve its goals whereas in Refah case, the Refah was actually sharing power in a coalition government and it had won the largest percentage of vote, about 22% in general election and its leader was functioned as the Prime Minister of Turkey in 1995. By any means, the toppling of a political party from office is a drastic interference in democratic political life by a national court. It was to be observed that it was third consecutive time that the leader of Refah party namely Necmettin Erbakan had been unseated by Turkish government. In Communist Party case , the European Convention Court held that a political party could not be dissolved by Turkish government by citing the reason that it considered a political party as discouraging the constitutional organisation of the State when such political party actually not engaged in any illegal activity. However , in Refah’s case , the Grand Chamber was of the opinion that Refah party closure could be considered as an "essential in a democratic society" within the purview of Article 11 § 2 and hence Article 11 was infringed.( Council of Europe 2004). (Harris, O’Boyle & Warbrick 1995) In Refah case, Grand Chambers court concurred the decision of lower courts for banning a political party which preached a kind of legal philosophy that would initiate ingredients of Islamic sharia into the legal echelon of Turkey. It was alleged by the State that Refah was in the idea of creating a legal platform in which controversies over the constitutional limits of legal doctrine and military rule will occur in the near future. However, the legitimacy of militant democracy as projected by the Turkish constitutional democracy can perform lawfully in an antidemocratic style to confront the challenges to its survival is yet to be demonstrated. Further, it is unclear about the extent to which global legal order permits political goals that looks for to introduce many kinds of sovereignty including the validity of the legal pluralism. Further, the obscure legitimacy of these occurrences establishes circumstances for the exploitation of authority both by religious, national and cultural communities which is looking for a measure of independence and by states advocating democracy. However, in Communist Party case, the Court observed that a political organisation is not secluded from the safeguard offered by the Convention just because its functions and activities are considered by the member nation’s authorities as sabotaging the constitutional systems of the State and demanding for the infliction of restrictions. (Howard 2007). Conclusion Both the cases raised the issue under the Article 11 of the Convention – i.e. Right for association and assembly. The ECHR court held that the dissolution order served on United Communist Party of Turkey constituted an infringement of Article 11 of the convention as the steps taken by constitutional court of Turkey was drastic as the dissolution order was served even before its activities had actually commenced and is inconsistent to the goal pursued and hence deemed unwarranted in a democratic setup. The Refah case is also dealt with the freedom of religion or religious faith in association with the privilege to freedom of expression. Hence, Refah has to be considered on the background of Articles 10, 11 and Right to freedom of religion. To me, Grand Chamber verdict in the Refah case was regrettable, appears to be erroneous and it cannot be reconciled. It is suggested that the interpretation of the minority of judges both in the minority in the Chamber judgment of the European Court and the Turkish Constitutional Court who observed that the dissolution was an inconsistency measure, is to be favoured. In their observation, the substantiation provided to sustain the step of dissolving the Party was not adequate enough .The majorities’ judgment relied on utopian principles that Refah may indulge in violent activities in the guise of religion in near future. No evidence has been provided that Refah has currently engaged in establishing a sharia based government or indulged in attaining jihad. Thus, the basis of divergence over the Grand Chamber verdict does not care about the values to be adopted under the Convention when pondering about safeguarding of democracy and the disbanding of a political party. Rather it paid more attention on their application to the reality of this case in the background of Convention law. 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